37

G.—s

the actual expenditure by the Government on behalf of the Natives, including the price of the land. The balance was to be treated as a funded debt, to be used for the benefit of the Natives. Besides being founded on wrong premises, it would-be found impracticable to formulate the complicated accounts and calculations which it would require, and various matters which the Commissioners evidently did not foresee would have to be taken into account. In our opinion, had the Governor or those representing him fulfilled the duty of arbiter, left to him under the deed, to decide what was a fair and just provision for dwelling-places and cultivations of the Natives as well as for their present and future wants, he would doubtless have waited, as was contemplated by the deed, until the surveys were completed, and then made his selection on behalf of the Natives accordingly. About their settlements there could be very little doubt, although they might, as in the case of Wellington, require some adjustment for the general welfare. The rest of the reserves would be chosen with an eye to the future, probably not so much in town sections as in larger blocks, which would be expected to yield a revenue sufficient to provide for the actual wants of the Natives beyond what their small holdings would yield, as well as for their future health, education, and comfort, until at least they became sufficiently merged in the general body of inhabitants to make their special care unnecessary. The theory in buying their lands at a small price was that the lands were useless to the Natives as they were; that European settlement would vastly enhance their value; and that such enhancement of value would attach also to the reserves kept for the Natives, and would thereby yield them eventually a handsome profit. Thus they would not have the actual purchasemoney to waste, to become, when it was spent, charges on the State. This, however, has become impossible of realization. The requisite reserves for the present and reasonable future wants of the sellers and their descendants, as arranged by Sir George Grey with the principal chiefs of the South Island; or Lieutenant-Governor Eyre's instructions to Mr. Kemp, to reserve ample portions for their present and prospective wants; or those to Mr. Mantell, that liberal provision be made both for their present and future wants, and due regard be shown to secure the interests of the Natives and meet their wishes, have never been carried out. We do not lay particular stress on the non-fulfil-ment of the promises as to the hospitals, schools, and care of the Natives, as referred to by Mr. Mantell, and the claims to which were expressly recognized and preserved by the Ngaitahu Reference Validation Act, 1868, since if proper and sufficient reserves had been made at the time for the then present and future reasonable wants of the Natives there would doubtless have been sufficient revenue realized from the administration of such of the reserves as were not presently acquired for Native occupation to have adequately met all demands on that score. We hardly think it was intended to treat the Maori with charity at the expense of the State, but rather to so utilize their own proper estate, which the Governor had been specially chosen to select for them, so that their physical and social well-being would not be neglected. In view of Sir George Grey's dealings with the Natives in other portions of New Zealand, the Natives had every reason to expect that the question of their future care would not have been lost sight of. After considering the matter from every standpoint, we have arrived at the conclusion that the only fair way to deal with the matter is as if it were one between private individuals, where the contract had been unwittingly broken or for some reason had become incapable of full performance according to the original intention. Under these circumstances one would expect to put the aggrieved party in the same position as if the contract had been fulfilled, by allotting proper reserves, ascertain what the present value of them would be, and measure his loss accordingly. This, as we have already pointed out, is, under the circumstances, impossible. The reserves were to be made with certain objects, and in no sense in any relation to the average value of the whole estate. There seems, then, but one way left, and. this is to assess the value of the estate as if it had been sold without any condition attached, and the measure

1 MacKay, p. 208. 1 MaoKay, p. 212. 1888, 1.-B,p.