Ngai Tahu Land Report

09 Banks Peninsula

9.3 The French Purchases

We now set out Dr Tremewan's condensed version in the form in which he presented it (T1:61-72).{FNREF|0-86472-060-2|9.3|1}

Langlois' 1838 "land purchase"

9.3.1 At the end of the 1830s and the beginning of the 1840s, the French whaling fleet of some sixty ships was spending long periods in New Zealand waters. One of these ships, the Cachalot, under Captain Jean Francois Langlois, was whaling out of Whakaraupo/Port Cooper (now known as Lyttelton Harbour) from 13 May to 16 August 1838. The importance of New Zealand to the French whaling fleet is shown by the amount of time spent in New Zealand waters by the French man-of-war, the Heroine, Captain J B Cecille, as part of its task of maintaining order and providing logistic support for the French whaling fleet. The Heroine was present in Port Cooper from 10 July to 4 August 1838. A number of other French, American and Australian whaling ships also spent some of the winter operating out of the same port. During the bay whaling season, the presence of the whaling ships attracted a number of Maori to Port Cooper from Port Levy and from further afield. Even so, the Maori population of Banks Peninsula was probably well under 200 at this time, largely as a result of the deaths, captivity and migration that resulted from Te Rauparaha's attacks of 1830-1832. The European population of the peninsula in 1838 was even smaller, being limited to a few dozen men engaged in the whaling trade. They were established mainly at Peraki, on the south coast, where George Hempelman ran the peninsula's only shore station. There were no European families, missionaries, farmers or traders in the area in 1838. Meaningful land sales to Europeans were confined to a sequence of negotiations made in connection with Hempelman's shore station.

The transaction of 2 August 1838

9.3.2 Just before leaving Port Cooper, Captain Langlois of the Cachalot entered into some sort of negotiations with local Maori. According to a deed dated 2 August 1838 and written in French, Langlois bought all of Banks Peninsula except tapu land or cemeteries from the leading Maori chiefs he found at Port Cooper. The original of this deed seems no longer to be extant, but copies were made.{FNREF|0-86472-060-2|9.3.2|2}

The deed states that Langlois paid a deposit of 150 francs (6) in goods and promised to pay the remainder of the total price of 1000 francs (40) on taking up possession. The signatories of the deed are hard to identify, as their names were not recorded very accurately. "Chgary", described in the deed and elsewhere as the king of the district, was known to British whalers as Jacky Lynx. He is described as one of the two principal men of Port Cooper in 1838 in Hempelman's Piraki Log, along with Tommy, who was probably the person who is recorded on the deed as "Repouini called Thomy". Because of the difficulties in identifying the Maori signatories, it is not possible to assert that they were the Maori who, in 1838, had the right to sell Banks Peninsula. Certainly, the whaling activities at Port Cooper attracted people from a wide area. However, those living in Akaroa in 1840 said that they had not been a party to the deed. And it seems very unlikely that the senior Ngai Tahu chiefs-Tuhawaiki, Patuki, Karetai and Taiaroa, for example-who lived further to the south, but who had rights to at least parts of Banks Peninsula, were consulted.

European versions of what took place when the deed was signed are dependent on Langlois' own testimony. There were no independent witnesses. The deed itself can be taken as representing Langlois' point of view. The Maori participants would not have been able to read a deed written in French and they never subsequently acknowledged this "sale". Iwikau, a leading chief and a refugee from Kaiapoi who was living on the peninsula after returning from captivity, stated categorically before a land commissioner in 1843 that he remembered Langlois being at Port Cooper in 1838 and that there had been no talk with Langlois of selling land at that time. In 1840, the Port Cooper chiefs also denied any such sale. At most, statements by Akaroa Maori can be interpreted as indicating that they thought the Port Cooper Maori had sold a small amount of land within Port Cooper to Langlois in 1838.{FNREF|0-86472-060-2|9.3.2|3} Some intelligent and responsible Frenchmen who were present on Banks Peninsula in 1840 were more sceptical: they felt that Langlois' "purchase" was very dubious indeed.{FNREF|0-86472-060-2|9.3.2|4} The deed existed, but whether it was a true record of an oral negotiation is unproved. Moreover, the deed indicated that the conveyance was not completed until payment of the balance of the price was made on taking up possession of the land.

French authority to buy: Maori authority to sell

9.3.3 When Langlois returned to France in May 1839, he sold his Banks Peninsula land rights to a group of French businessmen from the cities of Nantes and Bordeaux who formed a company known variously as the Nanto-Bordelaise Company or the French New Zealand Company. Langlois retained a substantial shareholding in the company. It was the company's aim to colonise the South Island of New Zealand and to undertake commercial activities there. The company had the active support of the French government, which undertook to add the supervision of the new colony to the duties of the new man-of-war that was being sent out to New Zealand to oversee the French whaling fleet. Langlois was to return to New Zealand with the first settlers to complete his earlier sale and to buy up the rest of the South Island. The Nanto-Bordelaise Company, which found weaknesses in the 1838 deed, supplied Langlois with model deeds for the purchases he was to make on their behalf. The French businessmen and politicians hoped that these sales would lead to French sovereignty over the South Island.

9.3.4 By the time Langlois had obtained this financial and political backing in France, the Maori population of Banks Peninsula had increased, largely as the result of the return of Ngai Tahu captives from the North Island. By 1842, when the first detailed census took place, there were 339 Maori living on Banks Peninsula, including 212 at Port Levy, 72 at Akaroa, 40 at Port Cooper and 15 at Pigeon Bay. A number of these, particularly those at Port Levy, were members of Ngai Tuahuriri hapu from the abandoned settlement of Kaiapoi on the North Canterbury plains. On the peninsula itself, Whakaraupo was the traditional territory of Ngati Te Rakiwhakaputa and its sub-hapu, Ngati Wheke. Koukourarata was the home of Ngati Huikai and its sub-hapu, Ngai Tutehuarewa. Ngati Mako were centred on Wairewa, while Ngati Te Ruahikihiki territory extended from Taumutu across the southern part of the peninsula to the western side of Akaroa Harbour. The descendants of Te Raki Taurewa, Te Ake and Tutakahikura were to be found on Akaroa Harbour's northern and eastern shores.

Among the principal inhabitants of Banks Peninsula whose names one would expect to find on a valid land conveyance in 1840 were Hoani Papita Akaroa, Hakopa Te Ataotu, Pita Te Hori, Te Ikawera, Iwikau, Katata, Te Kauamo, Apetera Kautuanui, Arapata Koti, Moihi Manunuiakarae, Maopo, Heremaia Mautai, Tiemi Nohomutu, Parure, Piripi Te Puehu, Apera Pukenui, Hone Wetere Te Ruaparae, Werahiko Tamakeke, Hoani Timaru Tiakikai, Hone Tikao, Paora Taki, Paora Tau, Tuauau and Hoani Tukutuku. Of these chiefs, Iwikau was acknowledged to be the most influential, even though he was from Kaiapoi and not from Banks Peninsula itself. Important Ngai Tahu chiefs who lived further to the south also had claims to at least parts of Banks Peninsula. These included Tuhawaiki, Te Matenga Taiaroa, Karetai, Patuki, Kahupatiti, Matiaha Te Morehu [Tiramorehu] and Te Rehe.

The August 1840 land deals

9.3.5 Langlois left the French port of Rochefort in March 1840 and sailed for New Zealand in the Comte de Paris, a new French naval ship which was specially fitted out and leased to the Nanto-Bordelaise Company. On board were some 57 prospective colonists. The Comte de Paris reached Banks Peninsula in August 1840, coming to anchor in Pigeon Bay on 9 August. He was unaware that British sovereignty had been proclaimed over the South Island, that leading Ngai Tahu chiefs had signed the Treaty of Waitangi and that the British administration had declared that new European land purchases from the Maori were invalid. Langlois invited a number of Maori on board his ship, the Comte de Paris, to negotiate the sale of land. Both the French and the Maori later agreed that a land sale had been negotiated and that the Maori had signed a deed and received payment. Langlois explained his terms in English. A Nga Puhi named Tommy, who understood a little English, acted as interpreter.

Subsequent French and Maori interpretations of the amount of land paid for and sold as a result of these negotiations differed considerably. The Maori view-expressed by Iwikau, Tikao, Parure and Nga Mana-was that small areas of land had been paid for and sold in the northern bays of the peninsula: Te Pohue (Camp Bay) in Port Cooper, Kaihope in Port Levy, and Kokakongutungutu (Holmes Bay) in Pigeon Bay. Further land around these same harbours was also promised to the French on receipt of further payment. In addition, some land around the north-east shoreline of Akaroa Harbour was acknowledged by the Maori to have been sold by Iwikau. This land extended from Te Wharekakaho (Piper's Stream) to Takapuneke (Red House Bay). However, this was done without the participation of the leading inhabitants of this southern part of the peninsula who were angry at the deal reached by the chiefs who had assembled at Pigeon Bay. This part of the sale, then, was not conducted by the chiefs who had primary rights to the land in question.{FNREF|0-86472-060-2|9.3.5|5}

Deeds dated 11 and 12 August 1840

9.3.6 One French view of the negotiations is represented by two deeds which were signed by a wide range of leading Banks Peninsula chiefs from both the north (eg Nohomutu, Pukenui, Iwikau, Te Puehu, Te Kauamo, Te Hori, Te Ao, Jacky Lynx) and the south (eg Tuauau, Tikao, Parure, Mautai, Tamakeke) of the peninsula. These deeds were dated 11 and 12 August at Pigeon Bay.{FNREF|0-86472-060-2|9.3.6|6} The first of these documents conveyed the whole of Banks Peninsula to the French in return for a payment in goods. These goods are not listed, nor is their value specified, although it was acknowledged to be greater than the 850 francs (34) required for completion of the 1838 deal. The western boundary of the area sold was said to be from Double Corner (the mouth of the Waipara River) southwards to Sandy Corner. The 160 Maori (men, women and children) with land rights to Banks Peninsula are each guaranteed 10 acres of land near a French settlement and 20 square metres within a settlement. The second document conveyed a much greater area of land, extending from the latitude of Kaikoura in the north (given as 42" 20' S) to that of Te Waiteruati (present-day Temuka, 44" 45' S.), and from the east coast to the west coast. The price was given as 120,000 francs (4800), payable in five instalments. The first instalment of 8000 francs (320), in specified goods, is to be paid at Akaroa. The balance is to be paid, in specified goods, at two-year intervals and in equal amounts over a period of 10 years (ie five payments of 22,400 francs or 896 each). A receipt for the payment of the first instalment is dated 24 August 1840 at Akaroa. Reserves in perpetuity for the Maori are to be not less than six acres per person and must be within one league of the French settlements.

These two deeds were witnessed by members of the crew of Langlois' ship, the Comte de Paris. However, it is certain that the Maori signed blank sheets of paper, leaving it to Langlois to write down what was agreed upon.{FNREF|0-86472-060-2|9.3.6|7} Langlois wrote the deeds up at Akaroa some days later, but back-dated them to the time and place when he was still unaware of the declaration of British sovereignty and of the invalidity, in British eyes, of new land purchases from the Maori. At least one of the witnesses, Aimable Langlois, signed at a much later date than the one that features on the deed, for he was not at Pigeon Bay at that time. The same applies to at least one of the Maori signatories, Tuauau. It is not only Maori statements about the extent of the land which they acknowledged as paid for and sold that throw serious doubt on the faithfulness with which Langlois recorded the oral agreements. The two deeds provide for Maori reserves in the immediate vicinity of, or even within, French settlements. On this point of detail, Iwikau was quite adamant: Langlois proposed such an arrangement, but it was rejected by the Maori negotiators.

9.3.7 Meanwhile, the naval ship which the French government had sent out to oversee the establishment of a colony and to supervise the French whaling fleet had reached New Zealand. The Aube, under Captain C F Lavaud, called first at the Bay of Islands, where it was discovered that the South Island had been placed under British sovereignty, that new European land purchases were not recognised by the British colonial authorities and earlier purchases were subject to confirmation by land commissioners. Lavaud sailed on to Banks Peninsula, preceded by a British warship, the Britomart, under Captain O Stanley. When Langlois received news that Lavaud and the Aube were at Akaroa, he left Pigeon Bay and sailed round to join him. Now that he was on the spot, Lavaud saw the original 1838 deed as deficient, in that it was not signed by any of the Akaroa Maori, whom he saw as belonging to a different tribe from those at Port Cooper. He was also aware of rival European land claims. Knowing that land deeds signed in August 1840 would not be seen as valid by the British authorities, Lavaud advised Langlois to draw up a new deed, back-dated to 1838.{FNREF|0-86472-060-2|9.3.7|8} Land negotiations were now being conducted to satisfy the British authorities rather than the Maori landowners. Lavaud and the Nanto-Bordelaise Company's representative, P J Belligny, in consultation with Lieutenant-Governor Hobson's representative, Captain Stanley, and two British magistrates, selected 3000 acres in Paka Ariki Bay and Takamatua, where the 57 colonists would live.

The 1838 deed renegotiated and back-dated

9.3.8 Langlois followed Lavaud's advice and obtained Maori signatures on a renegotiated back-dated 1838 deed of conveyance.{FNREF|0-86472-060-2|9.3.8|9} The signatories included leading chiefs from both the northern part of the peninsula (Te Kauamo, Te Puehu, Pukenui, Iwikau, Jacky Lynx, Pita Te Hori) and from Akaroa (Tikao, Tuauau, Mautai, Akaroa, Tamakeke, Parure). The senior members of the tribe from Otakou and Murihiku (eg Tuhawaiki, Taiaroa, Karetai) were not present and did not sign. During the negotiations at Akaroa, Father Comte, a French Catholic missionary, acted as interpreter. Witnesses included three officers from Lavaud's ship, the Aube. This back-dated deed purports to convey all of Banks Peninsula to Langlois, without specifying any boundary on the western side. Probably as a result of Maori objections to living next to French settlements, an area of land was set aside as a Maori reserve. The reserve was to lie between the two shore whaling stations of Peraki and Oyshore (Goashore) on the southern coast of the peninsula, extending three miles inland. This was Ngati Te Ruahikihiki territory. The original purchase price of 1000 francs (40) has now became 6000 francs (240), and the goods to be paid over to the northern and southern peninsula Maori are itemised.

Despite the wording of the deed, other Frenchmen indicated that the negotiations which led to the back-dated deed involved the conveyance of rather less than the whole of Banks Peninsula. In addition to the land sold or promised to the French in Ports Cooper and Levy and Pigeon Bay, the Akaroa Maori now agreed to sell some land around Akaroa Harbour. According to Belligny, this meant "all the harbour apart from the tapu lands in which the properties owned by British people are included".{FNREF|0-86472-060-2|9.3.8|10} The Akaroa Maori view was that they had sold "the land at Akaroa, situated between Point Te Kau and a stream called Kaitangatu [Kaitangata], and extending back to the tops of the mountains at Akaroa".{FNREF|0-86472-060-2|9.3.8|11} Kaitangata is the mouth of Pakaiariki (Aylmer's Stream). Point Te Kau is now unknown, but was perhaps a point between Takamatua and Kakakaiau (Robinson's Bay). This was the land initially occupied by the French colonists. The difference between this Maori view and Belligny's can be accounted for in terms of the French pattern of occupation. While more land around the harbour might be seen as promised to the French, occupation as well as payment would be needed, in Maori eyes, for the sale to be complete. And further occupation of land might well require further payment.

Akaroa, 1841-1845

9.3.9 When the Nanto-Bordelaise Company discovered that British sovereignty had been declared over the South Island, it sent out no more settlers. Its agent and its colonists at Akaroa were virtually abandoned. Belligny's bills of exchange were not honoured by the company back in France, where one of its main shareholders, Balguerie and Company, went into liquidation. Through the protection of the French naval officer at Akaroa and good relations with the British colonial administration, Belligny was nevertheless able to promote the Nanto-Bordelaise Company's interests on Banks Peninsula at the expense of those of rival European land claimants, notably Hempelman. At some point, the Nanto-Bordelaise Company came to terms with E Cafler and J Rateau, two Frenchmen who had also "bought" Banks Peninsula.{FNREF|0-86472-060-2|9.3.9|12} Cafler and Rateau bought the title of Captain G T Clayton, who had made his purchases from the leading Onuku (Akaroa) chief, Tuauau, in 1837. Rateau was given a one-tenth share in the Nanto-Bordelaise Company's land, while Cafler's interest seems to have been bought out, at least in part, through a land deal in the Bay of Islands. Although claims based on Clayton's purchases were not allowed by the land commissioners, the combination of Langlois' 1838 "purchase" from the Port Cooper Maori and of Clayton's 1837 "purchases" from the principal chief of Onuku presented a stronger case that was never tested in court: the combined Maori sellers were more representative of those with land rights to Banks Peninsula at that time.

In September 1841, Governor Hobson visited Akaroa and held discussions with Lavaud and Belligny. He then wrote to London, to Lord Stanley, secretary of state for the colonies, suggesting that the French be given the same privileges as the New Zealand Company. After consulting widely, Lord Stanley agreed to this proposal in July 1842.{FNREF|0-86472-060-2|9.3.9|13} This meant that, provided its land claims were substantiated, the Nanto-Bordelaise Company would be awarded a Crown grant of four acres of land for every pound sterling spent, not only on land purchases from the Maori, but also on sending out its settlers, erecting public buildings, surveying and other tasks required by a colonising venture.{FNREF|0-86472-060-2|9.3.9|14} Belligny was invited to substantiate the Nanto-Bordelaise Company's land claim.

Belligny presented the company's case before Land Commissioner E L Godfrey at a hearing at Akaroa in August 1843.{FNREF|0-86472-060-2|9.3.9|15} Depositions were taken at Akaroa from Tikao, Parure, Nga Mana, Tuauau and Iwikau, as well as from two French settlers, J Cbert and G Fleuret. Godfrey then went on to Otakou where Tuhawaiki told him that he had not been a party to the sale of Banks Peninsula to the French and would not give his consent until he received payment. The land commission report concluded from all the evidence that no sale had been proved in 1838. The Maori had admitted the sale to Langlois in August 1840 of specific areas of land (Te Pohue at Port Cooper, Kokaihope at Port Levy, Kokakongutungutu at Pigeon Bay and about 400 acres at Akaroa between Te Kau Point and Kaitangata Stream) and had promised more land around these four harbours on receipt of further payment. Because this deal was undertaken after Governor Gipps' proclamation of 14 January 1840, the commissioners would have dismissed the case if it had been made by a private individual. But, because it was a company claim, they made no recommendation but simply recapitulated the evidence.

Like Godfrey, Belligny seems to have accepted on pragmatic grounds the Maori view of what had been effectively sold to the French. Captain A Brard, who had replaced Lavaud at Akaroa as the commander of the French naval station, asked Edward Shortland to draw up a model deed of purchase in Maori and to provide him with a list of Maori with land rights on Banks Peninsula. Belligny asked Iwikau to provide him with a list of goods to be purchased by the French at Sydney and to be paid over to the Maori. The goods were bought in Sydney by Captain Brard for 6000 francs (240) at the end of 1843. Payment was delayed by Belligny in the hope that the governor would come and give his official sanction to it. When there seemed to be no chance of this, Belligny decided to go ahead independently. Maori demands for more payments and threats to pillage Akaroa showed the weakness of the French colonists' position on the peninsula. Belligny hoped to make it more secure before his own departure and before that of Brard's warship, the Rhin.

9.3.10 Some 400 Maori assembled at Akaroa in March in 1845. Two separate deeds were signed, in Maori, with accompanying maps, between Belligny and the Maori from the northern half of the peninsula and those from the southern half.{FNREF|0-86472-060-2|9.3.10|16} There is evidence that a show of force by the Rhin contributed to Maori acquiescence.{FNREF|0-86472-060-2|9.3.10|17} According to Brard, the goods given in payment for the peninsula were substantial: those paid across for the northern half of the peninsula had a value of 15,000 francs (600), while those given for the southern half were valued at 23,000 francs (920), which roughly matches Belligny's total valuation of 1485. In addition to the articles which Brard had bought in Sydney, the remaining exchange items brought out by Langlois in 1840 were also distributed. Payment for the southern half of the peninsula included an 11 ton schooner built at Pigeon Bay. Cattle, a horse, agricultural tools, saws, guns and pistols were included among the items paid. In addition to the payments made in March 1845, Belligny promised further payments of 100 per year for two years and 50 per year for five years, making a total of 450 promised but not paid.

Three very important Akaroa Maori declined to sign Belligny's deed on the grounds that it did not exclude from the sale the land being farmed by Rhodes, with whom they were associated. Because Belligny's deeds do not seem to have survived, it is difficult to be sure about some details of these negotiations. Nevertheless, it is clear that agreement was reached that the Maori would continue to live in the villages which they then occupied and that reserves of some sort were set aside. Belligny told Ngai Tahu that adjustments would be made if an official government investigation decided that the price or the reserves were insufficient. Belligny left Akaroa in April 1845 to return to France. According to the agreement he had just reached with Ngai Tahu, 450 remained to be paid to them by the Nanto-Bordelaise Company.

British government intervention 1841-1849

9.3.11 As soon as it heard of the declaration of British sovereignty over New Zealand and of the consequent plight of its own nationals, the French government asked the British government to protect the rights of French landowners in New Zealand and received a reassuring reply early in 1841. Preliminary inquiries were made by the Nanto-Bordelaise Company to see if it could sell its land rights to the British New Zealand Company. But firstly it had to have those rights recognised by the British government. It was not, however, until 1844 that the Nanto-Bordelaise Company sent an official representative, G N Maillres, to London to establish its rights to Banks Peninsula (mistakenly believed to have an area of 30,000 acres) on the basis of total company expenditure on its colonisation project. At the Colonial Office, Lord Stanley proved sympathetic to the French company's claim.

The various documents produced by Maillres were examined by the Land and Emigration Office and by Lieutenant-Colonel Godfrey, the man who had examined the French claim as a land commissioner in New Zealand and who was now back in London. Godfrey reported that Ngai Tahu agreed that small quantities of land were already sold to the French and paid for, and that they would be very willing to sell most of Banks Peninsula (excluding their villages and cultivation grounds) for a small sum. Godfrey, of course, was unaware that Belligny had conducted further negotiations with Ngai Tahu in March 1845. The Land and Emigration Office was satisfied that the French company had spent 11,685 (L3:II:93-108, 121-123).{FNREF|0-86472-060-2|9.3.11|18} At five shillings per acre, this would entitle the company to a maximum of 46,740 acres, but only 30,000 had been requested. On receiving these reports, Lord Stanley wrote to the incoming governor of New Zealand, Grey, instructing him to confirm any valid land purchases which the French had already made and to waive the Crown's right of pre-emption over any land on Banks Peninsula that was needed to bring the French company's validly purchased land up to 30,000 acres.{FNREF|0-86472-060-2|9.3.11|19} The Maori, who were seen as willing sellers, were, of course, to be paid compensation for any extra land which the French acquired through negotiation with them.

Grey, who was by no means a francophile, may well have deliberately prevaricated when he received these instructions, but he certainly encountered a real problem when he eventually went to Akaroa in 1848 and found that there was no longer a representative of the Nanto-Bordelaise Company there to negotiate with. In the meantime, and even though a Crown grant had not been issued, the Nanto-Bordelaise Company succeeded in selling its interests in Banks Peninsula land to the New Zealand Company. The final conveyance was made in London on 30 June 1849 for 4500.{FNREF|0-86472-060-2|9.3.11|20} Land already sold or given by the Nanto-Bordelaise Company to individual settlers was excluded from the sale. Any further payments that needed to be made to the Maori became, according to the deed of conveyance, the responsibility of the New Zealand Company, as did any fees or expenses incurred in acquiring a Crown grant. The deed left open the possibility that the French company had a valid claim to more than 30,000 acres, for the French negotiators had discovered their error concerning the area of Banks Peninsula. The British colonial secretary had declined to go beyond this figure, however.

Ngai Tahu's record of signing deeds with the French and accepting payment undoubtedly contributed to the impression formed among British officials that Ngai Tahu had gone quite some way towards relinquishing their rights over much of the peninsula. Just how far they had done so, and over what area, was not known.

Principal issues which emerge from the French purchases

9.3.12 That concludes Dr Tremewan's condensed version of the 1838, 1840 and 1845 French purchases. We now discuss the principal points which emerge, together with comments on them by the claimants and the Crown.

The 1838 and 1840 deeds

9.3.13 In our view these "agreements" were all fatally flawed.

(a) The original 2 August 1838 deed, prepared by Langlois in French, purported to purchase the whole of Banks Peninsula, except tapu land or urupa, from the leading chiefs he found at Port Cooper. How much, if any, of a deed in French the Ngai Tahu signatories understood must be very questionable. The principal chiefs at Akaroa in 1840 denied they were parties to the deed. Nor, it appears, were other leading chiefs such as Tuhawaiki, Patuki, Karetai and Taiaroa, who lived elsewhere but who claimed rights to parts of the peninsula, consulted. Belligny in 1840 accepted that it was defective.

(b) The first 1840 deed, dated 11 August, purported to sell the whole of Banks Peninsula and the second, of 12 August, a much greater area from Kaikoura in the north to present-day Temuka in the south, and from east to west coast. In fact Langlois obtained Ngai Tahu signatures to blank sheets of paper. He apparently undertook to later record what had been agreed. This he did several days later but back-dated the agreements. No reliance can be placed on documents so prepared and executed.

(c) The third document prepared by Langlois at Lavaud's instigation was a renegotiated version of the original 1838 agreement. It was negotiated with the Maori at Akaroa at the end of August or the beginning of September 1840, and back-dated 2 August 1838. As Dr Tremewan related:

Undertaken by Langlois on Lavaud's initiative and not his own, it was meant to bring the Akaroa Maori into the land purchase agreement and to convince the British authorities of the validity of the French claim to have bought Banks Peninsula in 1838. (T3:34)

That Lavaud felt uncomfortable about his initiative is evident from his letter of 3 September 1840 to the Nanto-Bordelaise Company, in which he said:

I confess to my shame, for it is dishonest, that it was necessary in order that in the eyes of the British authorities we have at least a semblance of right to the ownership of the land at Akaroa, for me to make Mr Langlois understand that it was absolutely necessary to draw up a contract with the native chiefs of this area and to date it 2 August 1838. (T3:33){FNREF|0-86472-060-2|9.3.13|21}

Crown counsel submitted that the back-dating of the document, though deceptive, was not in breach of any law, citing in support an ancient 1584 English decision in Goddard's Case (1584) 2 Co Rep 4b: 76 ER 396, in which it was said:

A date is not of the substance of the deed. For although it want a date, or have a false date, or an impossible date such as the 30th of February, yet the deed is good.

Crown counsel, on the strength of this statement, submitted that if the deed were otherwise regular this factor would not vitiate it; but the rights of the French company would depend upon the application of the doctrine of pre-emption. As the back-dated deed was executed after the acquisition of British sovereignty over New Zealand it might not be recognised by the Crown, but Crown counsel claimed it was not an illegal transaction or nullity. It could therefore transfer title away from Ngai Tahu.

Mr Temm, for the claimants, submitted that the Crown had already conceded the making of the false date was for the purpose of deceiving the British authorities. As we have seen, Lavaud conceded to his superiors in France that his action was dishonest and intended to deceive the British authorities. Mr Temm characterised the document as a forgery, which he rightly defined as a false document known to the maker of the document to be false in any material particular and for the purpose that it shall be acted upon as genuine. As Mr Temm pointed out, in the deed in question the date was material because if the transaction took place before the proclamation of sovereignty the consequences would be very different from those that would flow if it had been made after that proclamation.

9.3.14 We agree with Mr Temm that the alteration was made for the purposes of deceiving the British authorities and it was made also with the intention that it be acted upon as genuine. The fact that a forgery fails in its purpose does not make it any less a forgery. While, as Mr Temm agreed, a deed which lacks a date can be effective, or a deed which has a mistaken date wrongly recorded without any intention to deceive can also be effective, a forgery is a nullity and any transaction that is based upon a forgery is invalid. Nothing that was said in Goddard's Case would suggest otherwise. In that case it appears that by mistake a deed was dated later than it was executed and delivered. It was not a case of deliberate falsification of the document for ulterior purposes. We have a clear view that the back-dated French deed was a legal nullity. It was procured and back-dated for the express purpose of deceiving the Crown officials, who it was hoped would accept and act on the document as genuine and correct on its face. In our opinion it cannot be invoked or relied on, as the Crown contended, as in some way passing title away from Ngai Tahu.

The Godfrey commission, 1843

9.3.15 At a hearing in Akaroa before Land Commissioner Colonel Godfrey in August 1843, Belligny presented the Nanto-Bordelaise case for its claim to all of Banks Peninsula with the "exception of the Bay of Hikuraki. Oihoa on the South and Sandy Beach, north of Port Cooper on the north" (L3:I:86){FNREF|0-86472-060-2|9.3.15|22}, the "supposed contents" being 30,000 acres. In support of the company's claim Belligny submitted a copy of the back-dated 1838 deed. A copy of the deed is annexed to the commissioner's report (A31:5/A). As Dr Tremewan pointed out, the land commission report concluded from all the evidence, both Ngai Tahu and French, that no sale had been proved in 1838. But the commissioner found that various Ngai Tahu chiefs, whom he named, had admitted the sale to Captain Langlois in August 1840 of certain specific areas of land, being "about 400 acres" from "Point Tikau to a stream called Kaitangata and extending backwards to the top of the adjacent mountains" (L3:I:87){FNREF|0-86472-060-2|9.3.15|23}, and in addition land (area unknown) at Te Pohue at Port Cooper, Kokaihope at Port Levy and Kokakongutungutu at Pigeon Bay, and, that they had received goods worth 234 in exchange. Despite these admissions by the Ngai Tahu chiefs who gave evidence, the commissioner would have found the transaction null and void because the purchase was made after the proclamation of 14 January 1840 forbidding such direct purchases. But because the British government had decided that the claim should be dealt with on the same basis as a British company claim, the commissioner made no recommendation but simply recapitulated the evidence (L3:I:87).{FNREF|0-86472-060-2|9.3.15|24}

The claimants' historian, Mr Evison, estimated that 150 acres, or perhaps more, was "sold" to the French at Pigeon Bay; an undefined area, perhaps 400 acres, at Port Levy, and at Port Cooper at most 600 acres-these being in addition to the 400 acres referred to by the Godfrey commission as being sold at Akaroa. Later, after considering Dr Tremewan's evidence (T3:44-46) of the probable location of "Point Tikau" (or "Te Kau") referred to in the commission report, Mr Evison agreed that a small prominence near the junction of French Bay and Children's Bay, referred to as Te Keo on an Akaroa museum map, was the likely location of Point Tikao. This location, he said, would give a foreshore length to the French block of some 1200 metres, and not about 500 metres as he had earlier suggested. This would mean, Mr Evison agreed, that Godfrey, in assessing the probable area at 400 acres, had underestimated the area (U10(d):1-9). We agree with this conclusion and have estimated on the basis of a plan included by Mr Evison (U10(d):4), that the more likely area was in the vicinity of 1700 acres. If this is added to the estimated areas for the three other locations at Pigeon Bay, and Ports Levy and Cooper of 1150 acres, we have a total estimate of some 2850 acres, say 3000 acres in round figures. We doubt if a more precise estimate can be made so long after the event.

We note that Commissioner Godfrey, while in London in 1845, had referred to him a variety of papers. These included the deeds of 11 and 12 August 1840, submitted to Lord Stanley by the Nanto-Bordelaise Company. After examining the dossier, Godfrey still came to the same conclusion he had in 1843, that the only authentic sale had occurred in August 1840, when specific pieces were sold and paid for. Godfrey was at the time unaware of the 1845 transactions which had taken place between Belligny and Ngai Tahu (T3:66).

The 1845 French "purchases"

9.3.16 These have been described by Dr Tremewan (9.3.10). It appears the French handed over goods worth about 1485 in exchange for some Ngai Tahu signing two separate deeds, one for the northern half of the peninsula and the other for the southern half. As Dr Tremewan noted, Belligny was perfectly aware that the payments might not satisfy the British authorities (T3:60). It is apparent that Belligny's 1845 purchases were made from mixed motives. In a letter dated 23 April 1845 from the Akaroa police magistrate, Robinson, to the superintendent at Wellington, Robinson wrote:

In reference to the land purchases of the Nanto Bordelaise Company, I am happy to inform you, that I have anticipated your wishes, both with respect to taking no official notice of the payment made by M. Belligny to the Natives, and also by cautioning him, that it would very probably prove a useless expenditure but that M. Belligny informed me, his only object was to redeem the promise, that he had made the natives, & to ensure the tranquillity of the French Settlers, after his departure, and that he was probably aware that it was not a final payment, but subject to the approval of the Governor. (T3:116){FNREF|0-86472-060-2|9.3.16|25}

In another letter to the superintendent on the same day Robinson stated:

M. Belligny admitted to me, as did the Commandant [Brard], that the purchase was not according to the terms of the Proclamation, but said their only object was to ensure the safety and Tranquillity of the settlers, after the Departure of the Corvette, and M. Belligny-that the goods had been purchased & might as well be given to the natives, & that they had promised it and wished to keep their word. (T3:118){FNREF|0-86472-060-2|9.3.16|26}

The Crown submitted that Belligny's purchases in 1845 could reasonably be regarded by the Crown as valid in that it was effective to divest title from Ngai Tahu in respect of the lands to which they related. Under the doctrine of pre-emption, it was argued, title passed not to the French but to the Crown. But the Crown went on to say that the critical question-and one almost impossible to answer at the time-is how much land Ngai Tahu really agreed to sell in 1845 (X2:36). In view of this admission, it is difficult to see how the transaction could have the effect contended for by the Crown. But there are other compelling reasons for us finding, as we do, that the deeds cannot be relied on as having divested Ngai Tahu of ownership of Banks Peninsula:

- the deeds do not appear to have survived. No copy was produced to us and no one can say with any certainty what they contained;

- they lacked legal effect because they were made without any waiver by the Crown of its right of pre-emption;

- the sum of 450 was to be paid by annual instalments over five years. These payments were never made; and

- at least three very important chiefs-Te Ruaparae and Akaroa of Ngati Irakehu and Mautai of Ngati Mako-refused to be parties to the transaction. (T3:55)

Despite these major impediments the Crown still felt able to submit to us that by 1845, the French had surely done enough to justify a substantial grant-perhaps more than 30,000 acres. The difficulty with this argument is that the 1838 and 1840 dealings in themselves did not confer any title or rights in the French, while the 1845 transactions are not evidenced by the deeds and, as we have indicated, were seriously, indeed fatally, flawed. We are left with the very limited sales of August 1840 which the Godfrey commission found to have been admitted by Ngai Tahu. Godfrey's estimate of 400 acres for the land at Akaroa sold to the French should be revised, as we have indicated, to some 1700 acres.

Lord Stanley awards 30,000 acres to the French

9.3.17 As Dr Tremewan explained, when France accepted the fact of British sovereignty over New Zealand it sought to obtain an assurance from London that the rights of the French settlers in New Zealand would be protected. It received a reassuring reply in 1841. Lord Stanley agreed in 1842 that, provided its claims were substantiated, the Nanto-Bordelaise Company would be awarded a Crown grant of four acres of land for every pound sterling spent, not only on land purchases from the Maori, but on sending out settlers and colonising expenditure incurred in New Zealand.

The Nanto-Bordelaise Company offered to sell its South Island interests to the New Zealand Company. It also appealed to the British government in 1844 to have its claims to Banks Peninsula recognised, erroneously estimating the size of the peninsula at 30,000 acres, when the real figure was more like 250,000 acres.

The Land and Emigration Office in London reported on 12 December 1844 that it was satisfied the French company had spent 11,685 on its Banks Peninsula venture (L3:II:121-123).{FNREF|0-86472-060-2|9.3.17|27} At five shillings an acre this would entitle the company to a maximum of 46,740 acres, but only 30,000 had been requested. Colonel Godfrey's report came to hand on 2 July 1845. Five days later, 7 July 1845, Lord Stanley wrote to the incoming governor of New Zealand, George Grey, instructing him:

- to send Edward Shortland or another officer to Akaroa to confirm any valid land purchases made by the French;

- to waive the right of pre-emption over such additional land required to make up 30,000 acres after allowing for the land already purchased; and

- although not expressly stated, it is to be implied from Lord Stanley's instructions that Ngai Tahu were to be paid for any additional land required to be purchased to make up the 30,000 acres (L3:II:1-14).{FNREF|0-86472-060-2|9.3.17|28} This is accepted by Crown counsel, who added that the French could complete a purchase of up to 30,000 acres, but the British government did not assume that it had already occurred (X2:20).

Governor Grey did not act on these instructions. When he went to Akaroa three years later, in 1848, he found there was no longer a representative of the Nanto-Bordelaise Company with whom he could negotiate.

In 1849, although no Crown grant had been issued, the Nanto-Bordelaise Company succeeded in selling its interests in its now recognised claim to 30,000 acres at Banks Peninsula to the New Zealand Company. The colonial secretary, Earl Grey, had previously denied an application to extend the award when the company realised that the peninsula consisted of more than 250,000 acres (L3:III:16).{FNREF|0-86472-060-2|9.3.17|29} Under the deed of conveyance of 30 June 1849, land already sold or given by the French company to individual settlers was excluded from the sale (T3:123-126).{FNREF|0-86472-060-2|9.3.17|30} The deed also provided that any further payment that needed to be made to Maori in respect of the land being sold became the responsibility of the New Zealand Company. With the signing of this deed the interest of the French company in Banks Peninsula was extinguished.

Findings on grievances nos 1, 2 and 3

9.3.18 We now consider the claimants' first three grievances which related to Lord Stanley's award of 30,000 acres to the French company. The grievances are:

1. That Lord Stanley awarded 30,000 acres to the French without consulting Ngai Tahu.

2. That Ngai Tahu were not compensated for Lord Stanley's award.

3. That no reserves were provided for Ngai Tahu out of Lord Stanley's award. (W3)

The first grievance is clearly made out. There is no evidence before us that the Crown consulted Ngai Tahu before deciding to award 30,000 acres at Banks Peninsula to the French company. The British colonial secretary, Lord Stanley, did, however, instruct Governor Grey to send Shortland or another officer without delay to Akaroa to identify the land already purchased by the French and to facilitate the purchase of the balance required to make up the 30,000 acres. Grey failed to comply with these instructions. No representative was sent until Mantell unsuccessfully sought to purchase the Akaroa block in 1849. We have earlier estimated that the land the Godfrey commission found to have been purchased by the French company at Akaroa in August 1840 was probably of the order of 1700 acres, not 400 as estimated by Godfrey. Assuming this to be a reasonable estimate, some 28,300 acres remained to be purchased.

The tribunal is disposed to agree with the Crown historian Mr Armstrong's comment that Lord Stanley's award should be viewed as a solution to the political problems associated with the French presence on Banks Peninsula (R8:6/30:42).

As to the second grievance, there is no evidence that Ngai Tahu were ever paid for the 28,300 acres. We agree with Mr Armstrong that Belligny's payments in goods in 1845 cannot be viewed as having any relation to the "compensation" alluded to by Lord Stanley in his instructions to Grey. It had no relationship to the arrangement agreed upon in London (R8:42). Nor is there any evidence that any reserves were provided for Ngai Tahu out of Lord Stanley's award. The second and third grievances are accordingly also made out. We discuss the purchase of the Akaroa block later in this chapter (9.6) and will defer our formal findings until then.