The Sun.
London, England, 1844-12-11 00:00:00

pursued, it was considered, its the Year 18.1-9, whefi
(:!apttien Holisoil was sent out, that the difficulties which
had thus been created, could only be got rid of b) ob-
taining from the natives their assent to the extension of
the authority of the British Crown over New Zealand.
Acting under the Instructions he had received, Captain
Hebson, therefore, immediately on his arrival in New
Zealand, at the beginning of the year tB4O, con-
cluded with a large ntimber of the chiefs of the northern
island a treaty, known by the name of the treaty of
Waitangi, by which, in return for their acknowledgment '
of British sovereignty, they were promised protection,
and guaranteed in the possession of all lands held by '
them individually or collectively. The evidence laid
before your Committee has led them to the conclusion
that the step thus taken, though a natural consequence
of previotis errors of policy, was a wrong one. It would
have been much better if no formal treaty whatever had
been made, since it is clear that the natives were inca-
pable of comprehending the real force and meaning of
such a transaction ; and it therefore amounted to little
more than a legal fiction, though it has already in
practice proved to be a very inconvenient one, and is
likely to be still more so hereafter. The sovereignty
over the northern island might have been at once as-
sumed, without this mere nominal treaty, on the ground
of prior discovery, and on that of the absolute necessity
of establishing the authority of the British Crown for
the protection of the natives themselves, when so large
a number of British subjects had irregularly settled
themselves in these islands as to make it indispensable
to provide some means of maintaining good order
amongst them. This was the course actually pursued
with respect to the middle and southern islands, to
which the treaty of Waitangi does not even nominally
extend ; and there is every reason to presume that,
or. ing to the strong desire the natives are admitted
to have entertained for the security to be
derived from the protection of the British Government,
and fur the advantages of a safe and well-
regulated intercourse with a civilivld people, there
would have been no greater difficulty in obtaining their 1
acquiescence in the assumption of sovereignty than in
gaining their consent to the conclusion of the treaty;
while the treaty has been attended with the double dis-
advantage, first, that its terms are ambiguous, and, in
the sense in which they have been understood, highly
inconvenient ; and next, that it has created a doubt
which could not otherwise have existed, and which,
though not, in the opinion of your Committee, well-
founded, has been felt, and has practically been attended
with very injurious results, whether those tribes which
were not parties to it are even now subject to the autho-
rity of the Crown.
Y, ur. Committee have observed that the terms of the
treaty are ambiguous, and in the sense in which they
have been understood, have been highly inconvenient ;
in this we refer principally to the stipulations it contains
with respect to the right of property in land. The in-
formation which has been laid before us shows that these
stipulations, and the subsequent proceedings of the Go-
vernor founded upon them, have firmly established in the
minds of the natives notions, which they had then but
very recently been taught to entertain, of their having a
proprietary title of great value to land not actually oc-
cupied ; and there is every reason to believe that, if a
decided course had at that time been adopted, it would
not have been difficult to have made the natives under-
stand that, while they were to be secured in the undis-
turbed enjoyment of the land they actually occupied,
and of whatever further quantity they might really want
for their own tise, all the unoccupied territory of the is-
lands was to vest in the Crown by virtue of the sove-
reignty that had been assumed.
Your Committee have already mentioned, that it is
one of the fundamental principles of colonial law and
policy, which they believe to have been correctly laid
down by Sir G. Gipps, that " the uncivilised inhabitants
of any country have but a qualified dominion over it or
a right of occupancy only ; and that until they esta-
blish amongst themselves a settled form of government,
and subjugate the ground to their own uses by the
cultivation of it, they cannot grant to individuals not of
their own tribe any portion of it, for the simple reason
that they have not themselves any individual property
in it." 'Unfortunately, the original instructions given to
Captain Hobson, when he was sent out for the purpose
of establishing British dominion in New Zealand, were
not sufficiently precise upon this most important point.
They contained directions as to the manner in which he
was to proceed in purchasing land from the natives, and
they did not (as your Committee think that they ought
to have done) clearly lay down the rule that, sovereignty
being established, all unoccupied lands would forth-
with vest in the Crown, and that, except in virtue
of grants from the Crown, no valid title to land could
be established by Europeans. This mode of framing
the instructions seems to have led the first Governor
into the error of acting throughout upon the assumption
that no part of the extensive and unoccupied territory of
New Zealand was to be considered as belonging to the
Crown, or available under its authority for the purposes
of settlement, until first regularly sold by the natives.
This is not indeed distinctly stated in the treaty of Wai-
tangi ; had it been so, this treaty would probably have
been attended with less injurious consequences than it
actually has been ; since in that case there can be little
doubt that it would have been at once disallowed by her
Majesty's Government ;*at least it is clear that the treaty
could not have been understood either by the Governor
of New South Wales or by the Secretary of State, in the
sense put upon it by Captain Hobson, since both ex-
pressed their approbation of it, though the former had
previously laid down the very different principle upon
this subject already quoted ; and the then Secretary of
State, Lord John Russell, after he had received and ap-
proved of the treaty, adopted in the most formal and
authentic manner the views of Sir George Gipps. By
the advice of Lord John Russell. in the, month of De...
cember, 1840, a charter passed the great seal, by which
New Zealand was erected into a separate and inde-
pendent colony ; and this charter was transmitted,
together with instructions under the royal sign' manual,
to the Governor, Captain Hobson. In this charter
and instructions, "actual occupation and enjoyment"
are clearly pointed out as alone establishing a right
of property in land to the natives ; and the rule is laid
down that all other lands must be considered as vested
in the Crown, in virtue of the sovereignty that had
been assumed, and that they must be dealt with accord-
ingly. The treaty of Waitangi (which had previously
reached England and had been approved), it may there-
foreonosl
tori fluyaei,
trihl
oyanvsbeewbahesi
eseunhmuaeneded,oe s upt
oas
ote,di
ewadhs
it
tbnewaterhri
nei sgf co
ahr
lavratredr
e da
meaningntdo
not
inconsistent with the terms in which they are couched.
The lands held " collectively," of which the possession
was guaranteed to the aboriginal inhabitants of New
Zealand, must therefore, have been regarded as the lands
actually occupied by them, and cultivated in common by
a tribe, in the manner frequently practised, and the
forests as those actually used for cutting timber.

This is the interpretation which, consistently with the
ancient and acknowledged principles of colonial law as
laid down by Sir George Gipps, and consistently also
with the terms of the charter of the colony, and of the
royal instructions to the Governor, ought to have been
put upon the treaty ; had it been so, the most serious
of the evils which have since arisen would have been
avoided. If native rights to the ownership of land had
only been admitted when arising from occupation, there
would have been no difficulty in giving at once to the
settlers secure and quiet possession of the land they re-
quired, an 1 they would thus have been able to begin
without delay and in earnest the work of reclaiming
and cultivating the unoccupied soil. The proceedings of
the Commissioners appointed to inquire into the claims
to land would also then have been short and simple; they
would have had to inquire merely whether lands actually
occupied by natives had been fairly sold to settlers by
the occupants, and with respect to wild lands, whether
Europeans claiming to have purchased them had done so
at such a price, or had incurred such an expense in re-
spect of them, as to give to the supposed purchasers not
a right to the lands (for they could not derive a title
from parties who did not themselves possess one), but a
claim on the consideration of the Crown to have granted
to them as an indulgence more or less, according to
circumstances, of the lands they had nominally pur-
chased. With respect to the New Zealand Company,
as the extent of land to which they were entitled had
been already settled by a special agreement with the
Government and the award of Mr. Pennington, they
would at once have been put in possession of all that very
large proportion of the land on which they proposed
establishing settlements which was previously wild and
unoccupied ; and the question to be determined by the
Commissioners would have reduced itself to that of
whether those inconsiderable portions of land "actually
occupied and enjoyed" by natives had been fairly sold
by the occupants—a question the decision of which one
way or the other would have been comparatively unim-
portant. _ _

To have proceeded in this manner, and to have as-
sumed at once all unoccupied land to belong to the Crown
as a right inherent in the sovereignty, would have been
attended with no sort of injustice to the natives, and
would have been conducive to their real interests. The
unoccupied land, previously to European settlement, was
of no value to them; they were neither a pastoral people,
nor one living, like the North American Indians, by the
chase, and therefore requiring a great extent of country
for their support ; they derived their chief subsistence
from the produce of the soil and agriculture, rude as it
was.; and, according to the witnesses who have been
examined by your Committee, hardly a thousandth part
of the available land was thus made use of by them.
A very different policy, with respect to ownership of
land, has been pursued, and has been attended with very
unfortunate results. Mr. Spain, who was sent out from
this country by Lord J. Russell to investigate the claims
to land of settlers in New Zealand, appears to have
been furnished with no precise instructions as to the
object of the intended inquiry, and the mode of con-
ducting it ; and as he, in common with the Governor
and the other colonial authorities, adopted the conclu-
sion that no land could be considered as vested in the
Crown, or in the New Zealand Company by virtue of
an agreement with the Crown, which could not be shown
to have been fairly purchased from the natives, there
was begun a protracted and most unsatisfactory
.in-
quiry as to the nature of these purchases. It was im -
possible that the inquiry, having this object in view, could
be of a different character, since, if the point to be de-
termined was the validity of purchases from the natives,
it follows that it was necessary to ascertain not only the
bona fide nature of the supposed sale, but also the title
of the vendors to the property of which they claimed to
dispose. The difficulty of arriving at any satisfactory
conclusion upon either point was insuperable. The evi-
dence as to the reality of alleged sales was almost inva-
riably contradictory and confused, as might reasonably
have been anticipated, considering what imperfect means
of communication there were between the parties, and
how little one of them understood the nature of such
transactions. As to the title of the vendors, the case
was still more hopeless. The evidence before your Com-
mittee, both oral and documentary, leads to the conclu-
sion that the natives of New Zealand, till they learned
to do so from Europeans, attached no idea of value to
unoccupied land, and that though they had some vague