HC Deb 19 April 1861 vol 162 cc824-30
MR. HOPE

said, he wished to ask the Under Secretary of State for the Colonies Whether it is intended to endeavour to institute a Tribunal in New Zealand to decide upon conflicting claims of Natives in cases of proposed sales of land by them to the Government. By the present system in New Zealand the Government themselves, who were the purchasers of land belonging to the Natives, were obliged to decide upon the validity of the title to the land offered to them for sale. That such a state of things was not desirable was shown by the present disturbed state of New Zealand. The settlers were anxious to acquire land and the Natives to sell it; but, complicated as the land titles wore before we took possession of New Zealand, they were gradually becoming still more complicated by the addition of several of the characteristics of land titles in civilized nations. He thought a tribunal composed of persons representing the Government, and of those of best repute among the various tribes of the Natives, and resembling a mixed commission, should be appointed by the Crown to adjudicate upon any questions of land title that might arise between Natives on proposed sales by them, and he would suggest that those tribunals should not be composed merely of nominees of the Crown, but should contain Members elected by the Natives themselves. A question arose whether the tribunals should be constituted by the authority of the Government of New Zealand or by the Home Government. He was personally very strongly in favour of the principle of making the colonist governments responsible for the management of their own affairs. But this was a matter of the colonists managing other people's affairs than their own. The Natives practically were unrepresented in the Legislature. He thought, therefore, that it ought to be taken up by the Home Government. Unless some satisfactory conclusion was come to on the subject, there would be very great difficulty in dealing with the Natives.

MR. CHICHESTER FORTESCUE

said, he could hardly answer the question satisfactorily without clearing the way by a few preliminary observations with regard to the purchase of land from the natives. In New Zealand no definite code of laws on the subject of the sale and purchase of the native lands existed; nor was there any regular court or tribunal for the adjustment of disputes between the native owners of property and the Government. In dealing with the natives in regard to land the Government proceeded by way of direct negotiation with the native owner, obtaining the consent to the disposal of property of those who were looked upon as having a title to sell it, being guided in each individual case by the customs pre- vailing in the particular district in which the land happened to be situated. Such was the course which the Colonial Government had always pursued, and which had been attended with considerable success. It was justified, not only by the necessity of the ease, but by the letter and spirit of the Treaty of Waitangi. The treaty provided that the Governor should treat for the purchase of land with the native owners by moans of authorized agents. On the other hand, there did not exist in New Zealand any such native title or claim to land as could be treated as a uniform and definite code of law, the native customs with respect to the ownership of land varying in different parts of the country. Moreover, the condition of the people had been and was such as presented almost insurmountable obstacles to the establishment and working of an ordinary court of justice for the decision of land claims. The natives in the northern island were, to a great extent, merely nominal subjects of the Crown, living apart from the Europeans in a state of semi-independence, and all dealings with them, as in the case of those respecting land, had hitherto been carried on by means of negotiation rather than of the regular and ordinary law of the Colony. In the purely native districts, in short, the natives were not wholly in the position of British subjects, and he might add that the small portion of them who were now engaged in hostilities with the Crown could not justly be regarded as being wholly in the position of rebels. For some years it had been strongly felt both by the Colonial Government and the Government at home that the system of negotiation which he had described and the condition of the natives was not a satisfactory one; but he should inform the House that the evils experienced had consisted not in difficulties arising between the Government as purchasers and the natives as sellers, but in feuds among the natives themselves and in the communistic tenure of land which prevailed among them, and which discouraged industry and led to indolence and demoralization of every kind. The best friends of the natives believed that nothing could be more desirable than an improvement in the native tenure of land, and some approach to the system of individual property. Several attempts had already been made to effect the desired change. In 1858 a Bill, called the Native Territorial Eights Bill, was sent home; but, upon full consideration by the Go- vernment of the day, the Colonial Office being then presided over by the right hon. Baronet the Member for Hertfordshire (Sir Bulwer Lytton) was not assented to, on the ground that in endeavouring to improve the native tenure of land the Bill gave the authorities in the Colony too large a discretionary power as to the purchase of land, and enabled them to issue to native owners certificates of title which the Crown could not assume the responsibility of maintaining. A second attempt was made by the Duke of Newcastle in the course of last Session, by the introduction of a Bill for the purpose of establishing a Council appointed, not by the popular voice of New Zealand, but by the Crown itself, and by whose advice and assistance the Governor might be able, with the assent of the natives themselves, to introduce improvements into the administration of their affairs and to create a tribunal for the settlement of their land titles, and, consequently, for the arrangement of all disputes with respect to those titles when they came to be purchased by the Colonial Government. The House would remember that when that Bill was submitted for their consideration there was a general feeling that it related to a subject which ought to be left to the Colonial Legislature, and that it was consequently not passed into a law. Within the last month a third measure, having practically the same object in view, had come under the consideration of the Government. The Legislature of New Zealand had sent home a Bill for the purpose of creating a Council similar to that proposed last year, and that Bill was now under consideration. Should that or any similar measure be assented to, one of its main objects would be to enable the Governor, with the advice and consent of gentlemen of the highest authority in New Zealand, appointed directly by the Crown itself, independent of any undue pressure on the part of the settlers, and possessing the confidence of the natives to introduce law and order into those districts which had hitherto been independent of British authority, and, above all, to provide means for defining native rights to land, for issuing certificates of native titles, and for inducing the Maories to submit their disputes with respect to the ownership of land to the adjudication of some regular tribunal. At the same time he was bound to add that he did not believe the existence of such a tribunal, however desirable in itself, would have sufficed to prevent the late unfortunate events. The conviction of the Governor throughout the entire transaction was that William King had never advanced any claim which would have admitted of investigation by any authority representing the British Crown. Whatever claims pretending to be of a legal and peaceful character were made had been invariably entertained and investigated; and had any such claim been made in this case it would have been entertained and investigated in the usual manner. The conviction of the Governor was that Wirimu Kingi rested his opposition to the sale of this land on entirely a different footing, setting up, in fact, his own authority as a native potentate in opposition to that of the Sovereign. In carefully considering the question his noble Friend was most anxious, in co-operation with the Governor of New Zealand, to see what improvements could be made in the native administration, introducing law and order into the native districts and leading the natives themselves to bring their disputes within the regular range of law; and with that object he hoped before long instructions would be sent out to the Governor of New Zealand. But in judging the conduct of the Home Government it must be remembered that with the institution of responsible government in New Zealand the Crown had already handed over to the colonists the power of legislating for every part of the island, including the native districts, the whole power of taxation, and the power of administering the revenues derived from land. The power of the Crown was very small. That of the Governor was very limited indeed. It was hard to say how far a very able and energetic mind armed with ample power and funds might have prevented the unfortunate state of things which now existed; but the Government must take things as they found them. They must recognize the power already given to the colonists, which was administered with very great intelligence and ability both by the Ministers and Legislature of New Zealand. The object would be in co-operation with the local authorities to improve the administration of native affairs, and, above all, to endeavour to introduce some system under which native titles to land should be subject to the decisions of regular tribunals. If this unfortunate war should lead the natives to the conclusion that their interest and wisdom lay in submitting themselves to the Queen's authority, which then would be every desire to exercise for their benefit, great good would arise to the native race themselves. As long as they stood on their own petty independence and hostility to the Crown their difficulties appeared hopeless—their true position was that not of independent tribes but of subjects of Her Majesty.

LORD ROBERT CECIL

said, he begged to state, with reference to the question of which he had given notice, as to the case of Captain Macdonald, that, having just received intimation from that gallant gentleman himself that there were further papers he hoped to obtain in the course of the week, he thought it better, as the matter had so much excited the angry passions on both sides of the water, in order to have full information before them, to postpone the question he intended to put to the noble Lord till Friday next. With reference to what had just fallen from the hon. Under Secretary of State he must say the courage of that hon. Gentleman exceeded anything he had ever witnessed before in that House. In spite of all that had been said the other night by his hon. and learned Friend, the Member for the University of Cambridge (Mr. Selwyn), he was surprised to hear it now stated that Kingi had never put in any claim. His hon. and learned Friend had read to the House four different claims. The assertion of the hon. Under Secretary was, therefore, utterly unfounded. The hon. Gentleman had also rather mistaken the drift of his hon. Friend's (Mr. Hope's) recommendation. The right course, in dealing with the question of native titles, would be not to establish a local tribunal, bound by legal forms, but a tribunal of arbitration. The real difficulty was that the natives did not believe the Governor to be fair and impartial in his conduct with regard to this matter. The state of the case was this:—A great agitation arose for land. Land was wanted to enable the Colonists to make their fortunes, and the Governor was in danger of losing his popularity if land was not rapidly acquired; he bought the land; Kingi disputed the right to sell; the Governor told him his claim was worth nothing, and he would take the land by force. The essential vice of the proceeding was that the Governor was plaintiff, judge, and jury all at once. Instead of referring the case to a court of arbitration, the Governor referred it to his own paid official, whom he might dismiss at any time; the question was settled in the re- cesses of his office, and, of course, in favour of the Governor. It was settled by a man named Parris, who was not only a removable officer of the Governor, but a settler in the very province that was urging the acquirement of more land; he had, therefore, not only a political interest for the Governor, but a pecuniary interest to serve by the rejection of Kingi's claim. Could it be supposed that under these circumstances the natives, who were sharp, shrewd men, would believe the Governor to be strictly impartial? So long as these things went on they would never govern New Zealand with success. If they intended to govern the Colony on such a principle, they must keep 10,000 soldiers there, and that the good sense of the country would not permit. If they intended to govern the people with justice, the Governor must appear to be absolutely impartial; and the only way to secure that would be to establish a court of arbitration—the Governor naming so many members, the natives so many more—and leaving to these the settlement of all disputed questions connected with land. If, after a court of arbitration so constituted had given its decision, exceptions were taken to it by native chiefs like Kingi, they would receive no support from the great body of their countrymen in the island. If the present state of affairs was to be put an end to, it would be necessary for the Government to take stronger and more decisive measures than had yet been adopted.