Chapter XXII: Section 88: of "The Native Land Act, 1909," which has been referred to

by His Honour also, recognises that these lands are not "Crown lands." They are only deemed to be Crown lands for the one purpose, namely, that if any person is in possession of or trespassing upon, or injuring the lands against the interest of the Native owners, then, for the purpose of protecting the Native owners the Crown may under the Land Act take proceedings against such wrongdoers. Even this provision is a guarded one, for subsection (3) of that section expressly provides that nothing in it contained shall take away or affect any jurisdiction conferred upon the Native Land Court.

CHAPMAN, J.--I agree with the judgments which have been read. It has been argued that the Treaty of Waitangi was an international treaty entered into with chiefs having the sovereignty. The contrary opinion was pronounced by the Supreme Court in _Wi Parata v. The Bishop of Wellington_ (3 N.Z. Jur. N.S. 72). The terms employed and the mode of execution of the treaty leave it at least an open question whether it was so regarded at the time. It professes to be made with certain federated chiefs and certain chiefs who are not federated, but it does not state over what territories they exercised authority, though the text of the treaty seems to suggest that it was contemplated that it should be made with several chiefs who might possibly be regarded, and were provisionally and hypothetically treated as sovereigns of their respective territories. Later it became a matter of general knowledge, derived, I presume, from maps prepared pursuant to section 21 of "The Native Land Act, 1873," that there are eighteen or twenty tribes in New Zealand. If that be so the numerous signatories of the Treaty of Waitangi can hardly be described as sovereign chiefs. I agree that if they had been explicitly so declared by Her Majesty's government, or had been so treated in a course of political transactions that would have been sufficient to make them so, and that their numbers and their individual unimportance would not have rendered this impossible, provided that in each case there was a sovereign to a territory. _Hemchand Devchand v. Azam Sakaral Chhotamlal_ (1906, A.C. 212). The whole current of authorities shows, however, that the question of the origin of the sovereignty is immaterial in connection with the rights of private persons professing to claim under the provisions of the treaty of cession. _Cook v. Sprigg_ (1899, A.C. 572). Such a treaty only becomes enforceable as part of the municipal law if and when it is made so by legislative authority. That has not been done. The sense in which the treaty has received legislative recognition I will refer to later.... From the earliest period of our history, the rights of the natives have been conserved by numerous legislative enactments. Section 10 of 9 and 10 Vict. cap. 103, called an Act to make further provision for the Government of the New Zealand Islands (Imperial, 1846), recognises the laws, customs, and usages of the natives which necessarily include their customs respecting the holding of land. Section 1 of 10 and 11 Vict. cap. 112, called an Act to promote colonisation in New Zealand and to authorise a loan to the New Zealand Company (Imperial, 1847), recognises the claims of the aboriginal inhabitants to the land. To the same effect is the whole body of colonial legislation. The expressions "land over which the Native title has not been extinguished" and "land over which the Native title has been extinguished" (familiar expressions in colonial legislation), are both pregnant with the same declaration. In the judgment of the Privy Council in _Nireaha Tamaki v. Baker_ (1901, A.C. 561), importance is attached to these and similar declarations in considering the effect of colonial legislation. There the whole of the legislation from the date of the constitution is summarised. This summary includes the principal colonial Acts. Referring to section 5 of "The Native Rights Act, 1865," their Lordships say: "The Legislation, both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction of 'The Native Rights Act,' and one is rather at a loss to know what is meant by such expressions as 'Native title,' 'Native lands,' 'owners,' and 'proprietors,' or the careful provision against sale of Crown lands until the Native title has been extinguished, if there be no such title cognizable by the law, and no title therefore to be extinguished." I might refer further to less precise but equally important expressions, such as "tribal lands," in "The Native Land Act, 1873," section 21. The various statutory recognitions of the Treaty of Waitangi mean no more, but they certainly mean no less than these recognitions of native rights.

[195] Tawhaki, the God-man, whose name frequently occurs in all the ancient mythology of the Maori race.

[196] Rain and wind--figurative expressions denoting wars and tumults.

[197] Te Wherowhero Potatau, the first Maori king.

[198] Tawhiao, the second Maori king.

[199] A Total Abstinence organisation.

THIS RELIC OF THE TREATY CAME INTO THE AUTHOR'S POSSESSION AFTER THE VOLUME WAS PRINTED AND IS NOW INSERTED AS A SUPPLEMENT.

_No te 30 o nga ra o Hanuere, 1840_

_E taku hoa aroha,_

_Tenei ano taku ki a koe; na, tenei ano tetahi kaipuke manawa kua u mai nei, me tetahi Rangatira ano kei runga, no te Kuini o Ingarani ia, hei Kawana hoki mo tatou. Na, e mea ana ia, kia huihuia katoatia mai nga Rangatira o te Wakaminenga o Nu Tireni, a te Wenerei i tenei wiki tapu e haere ake nei, kia kitekite ratou i a ia. Koia ahau ka mea atu nei ki a koe, e hoa, kia haere mai koe ki konei ki Waitangi, ki taku kainga ano, ki tenei huihuinga. He Rangatira hoki koe no taua Wakaminenga tahi. Heoi ano, ka mutu taku._

_Naku,_

_Na tou hoa aroha,_

_Na te PUHIPI._

_KI A TAMATI WAKA NENE._

TEXT OF THE INVITATION SENT TO TAMATI WAKA NENE TO ATTEND THE MEETING OF CHIEFS AT WAITANGI, 5TH FEBRUARY, 1840.

(ORIGINAL IN THE AUCKLAND MUSEUM).

TRANSLATION

(By H. M. STOWELL).

_Of the 3Oth day of January, 1840._

_O my dear friend._

_Herewith something special from me to you. A Man-o-war vessel has called here particularly, with a certain Chief on board. He is sent by the Queen of England, as a Governor for us._

_Now, he desires that as many representative New Zealand chiefs as possible be gathered together by Wednesday of next week to see him._

_I now therefore say unto you, O friend, make your arrangements to come along here to Waitangi, to my home here, to this gathering and meeting. For you yourself are a typical representative chief and will be welcomed to the meeting as such._

_That is all, mine ends here,_

_From your sincere friend,_

_From Te PUHIPI (Mr. Busby)_

_To Tamati Waka Nene._

BIBLIOGRAPHY

The following authorities have been consulted during the compilation of this work, and will serve as a useful bibliography of the treaty:--

A Chapter in the History of New Zealand. Sir W. Fox. 1883. Adventure in New Zealand. E. J. Wakefield. 1845. An Appeal on Behalf of the Ngatiraukawa Tribe. T. C. Williams. 1873. Ao Tea Roa (Long White Cloud). W. P. Reeves. 1898. Appendix to Twelfth Report of New Zealand Company. 1844. Aureretanga. G. W. Rusden. 1888. Australia and New Zealand. A. Trollope. 1873. Authentic and Genuine History of the Signing. Rev. W. Colenso. 1890. Britain of the South. C. Hursthouse. 1857. British Colonisation of New Zealand. Aborigines Protection Society. 1846. Christian Mission to the Aborigines of New Zealand. Rev. J. Warren. 1863. Correspondence with Earl Grey. Wesleyan Mission Committee. 1848. Early History of New Zealand. Brett Publishing Co. 1890. Early History of the Catholic Church in Oceania. Bishop Pompallier. 1888. England and the New Zealanders. Sir W. Martin. 1847. Extracts from Final Report. G. Clarke. 1846. Facsimiles of Treaty of Waitangi. H. H. Turton. 1877. Forty Years in New Zealand. Rev. J. Buller. 1878. Governor Gordon and the Maori. Sir R. Stout. 1883. Handbook for Emigrants. Dr. J. Bright. 1841. Handbook to New Zealand. E. J. Wakefield. 1848. Heke's War. Rev. R. Burrows. 1886. History of Early Colonising of New Zealand. H. T. Kemp. 1901. History of New Zealand. Alfred Saunders. 1896. History of New Zealand. G. W. Rusden. 1883. Judgments of Court of Appeal in re _Tamihana Korokai v. The Solicitor-General_. 1912. Judgments of Mr. Justice Chapman and Sir William Martin, C. J., in re _Regina v. Symonds_. 1847. King Country, The. J. H. Kerry-Nicholls. 1884. Kohimarama Conference, Proceedings of. 1860. Letters from New Zealand. Dr. Martin. 1845. Life and Times of Patuone. C. O. Davis. 1876. Life of Archdeacon Henry Williams. H. Carleton. 1874. Life of Rev. J. H. Bumby. Rev. A. Barrett. 1852. Life of Bishop Selwyn. Rev. H. W. Tucker. 1879. Life of Captain James Cook. Rev. A. Kippis. 1788. Life of Lord John Russell. J. Reid-Stuart. Life of Rev. Samuel Leigh. Rev. A. Strachan. 1863. Life of Sir George Grey. W. L. and L. Rees. 1892. Manawatu Purchase Completed. T. C. Williams. 1867. Maori English Tutor. H. M. Stowell. 1913. Maori History. Lieut.-Col. M'Donnell. 1887. Maori King, The. Sir John Gorst. 1864. Maori Record (Newspaper). 1906. Memoir of Rev. R. Davis. Rev. J. D. Coleman. 1865. Narrative of United States Exploring Expedition. Commander Wilkes. 1845. New Zealand. Alexander Kennedy. 1873. New Zealand. Charles Terry. 1842. New Zealand. Dr. R. G. Jameson. 1841. New Zealand and its Aborigines. W. Brown. 1845. New Zealand and its Colonisation. W. Swainson. 1859. New Zealand and the War. W. Swainson. 1867. New Zealand Gazette (Newspaper). 1840. New Zealand Journal. 1840-1848. New Zealand Revisited. Sir John Gorst. 1908. New Zealand Year Book. 1912. Notes on Early Life in New Zealand. Rev. G. Clarke. 1903. Notes on Maori Matters. Mr. Justice Johnston. 1860. Old New Zealand. F. E. Manning. 1863. Parliamentary Debates (English), vols. 81-82. 1845. Parliamentary Papers (English). 1839-1848. Personal Narrative of Visits to New Zealand. Dr. Marshall. 1836. Proceedings of the Royal Colonial Institute. January 1883. Remarks on New Zealand. Captain R. Fitzroy. 1846. Remarks on New Zealand. W. Brodie. 1845. Reminiscences of a Veteran. Col. T. Bunbury. 1861. Reminiscences of the War in New Zealand. Lieut. Gudgeon. 1879. Romance of a Pro-Consul. James Milne. 1899. Sketches in New Zealand. James Cowan. 1901. Story of New Zealand. Dr. A. S. Thompson. 1859. Te Ika a Maui. Rev. Richard Taylor. 1855. The Aborigines' Friend, pp. 139-157. The New Zealanders and their Lands. D. Coates. 1844. The New Zealand Question. L. A. Chamerovzow. 1848. The War in New Zealand. Sir W. Fox. 1860. Voyage to the South Pole, vols. viii. and ix. Dumont D'Urville. Waitara War--Numerous Pamphlets relating thereto.

_Printed by_ R. & R. CLARK, LIMITED, _Edinburgh_.

End of Project Gutenberg's The Treaty of Waitangi, by T. Lindsay Buick