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Faceted Search
 iii

Synthesis Lectures on Information

Concepts, Retrieval, and Services

Editor
Gary Marchionini, University of North Carolina, Chapel Hill

Faceted Search
Daniel Tunkelang
2009

Introduction to Webometrics: Quantitative Web Research for the Social Sciences

Michael Thelwall
2009

Automated Metadata in Multimedia Information Systems: Creation, Refinement,

Use in Surrogates, and Evaluation
Michael G. Christel
2009

Exploratory Search: Towards New Search Horizons

Ryen W. White and Resa A. Roth
2009

Reference in a Digital Age

R. David Lankes
2009
Copyright © 2009 by Morgan & Claypool

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in
any form or by any means—electronic, mechanical, photocopy, recording, or any other except for brief quotations
in printed reviews, without the prior permission of the publisher.

Faceted Search
Daniel Tunkelang
www.morganclaypool.com

ISBN: 9781598299991 paperback

ISBN: 9781608450008 ebook

DOI: 10.2200/S00190ED1V01Y200904ICR005

A Publication in the Morgan & Claypool Publishers series

SYNTHESIS LECTURES ON INFORMATION CONCEPTS, RETRIEVAL, AND SERVICES

Lecture #5

Series Editor: Gary Marchionini, University of North Carolina

Series ISSN
ISSN 1947-945X print
ISSN 1947-9468 electronic
Faceted Search
Daniel Tunkelang
Endeca

SYNTHESIS LECTURES ON INFORMATION CONCEPTS, RETRIEVAL,

AND SERVICES # 5
vi

ABSTRACT
We live in an information age that requires us, more than ever, to represent, access, and use in-
formation. Over the last several decades, we have developed a modern science and technology for
information retrieval, relentlessly pursuing the vision of a “memex” that Vannevar Bush proposed in
his seminal article, “As We May Think.”
Faceted search plays a key role in this program. Faceted search addresses weaknesses of con-
ventional search approaches and has emerged as a foundation for interactive information retrieval.
User studies demonstrate that faceted search provides more effective information-seeking support
to users than best-first search. Indeed, faceted search has become increasingly prevalent in online
information access systems, particularly for e-commerce and site search.
In this lecture, we explore the history, theory, and practice of faceted search. Although we
cannot hope to be exhaustive, our aim is to provide sufficient depth and breadth to offer a useful
resource to both researchers and practitioners. Because faceted search is an area of interest to com-
puter scientists, information scientists, interface designers, and usability researchers, we do not as-
sume that the reader is a specialist in any of these fields. Rather, we offer a self-contained treatment
of the topic, with an extensive bibliography for those who would like to pursue particular aspects in
more depth.

KEYWORDS
faceted search, exploratory search, information seeking, human–computer information retrieval
 vii

Preface

We live in an information age, a world where, more than ever, we need to understand how to
represent, access, and use information. Over the last several decades, we have witnessed the de-
velopment of a modern science and technology for information access. We’ve come a long way
from the vision of a “memex” that Vannevar Bush proposed in his seminal article, “As We May
Think” [1]: a mechanical device that would allow someone to access a large, self-contained research
library.
Many people may feel that we have already achieved that end goal, albeit by different means.
After all, we can now enter the name of a person or company into Google or some other web search
engine and, in most cases, be instantly directed to the associated web page. Thanks to tools like the
collectively edited Wikipedia, we may achieve similar success with more general queries, at least for
topics of broad enough interest to have inspired Wikipedia entries.
Looking beyond these use cases, however, we see that we are only in the early days of imple-
menting the memex vision (Figure 1). Modern search engines adequately address the problem of
what library scientists have historically called known-item search: we know what we are looking for
and are certain it exists in the collection we are searching [2].
In contrast, we have not developed comparably mature tools for exploratory search—that is,
information seeking where users do not have a known target document and may not even have a
well-established information need [4]. Only in the last few years have we seen an emerging pro-
gram of human–computer information retrieval (HCIR) that brings interactive techniques—many
inspired by pre-Internet research in library science—to bear on more sophisticated information-
seeking tasks [5].
Facets, a way of classifying information, play a key role in this program. Faceted classification
addresses the weakness of earlier knowledge representations—namely, the rigidity of taxonomical
schemes and the chaos of unstructured indexes. Developed by library scientists, faceted classifica-
tion offers an approach to knowledge representation that is both faithful to its richness and practical
for real-world use.
Faceted classification, however, only addresses the problem of representing information. We
still need a means to access and use that information. That means is faceted search.
viii FACETED SEARCH

FIGURE P.1: Vannevar Bush’s theoretical memex machine [3].

Researchers such as Marti Hearst have led the way with user studies that demonstrate how
faceted search provides more effective information-seeking support to users than conventional best-
first search—even though users are more familiar with the latter [6].
Those dubious of the value of faceted search interfaces raise the specter of what Joshua Porter
and his colleagues at User Interface Engineering call the “three-click rule,”—that is, the web design
rule of thumb that no piece of content should take more than three clicks to access. Luckily, that bit
of folk wisdom does not hold up to empirical study [7]. When tested in a user study, it was found
that there is no correlation between the number of times users clicked and their success in finding the
content they sought, and that the number of clicks is not what is important to users, but only whether
or not they are successful at finding what they are seeking (Figure 2).
In the lecture that follows, we will explore the history, theory, and practice of faceted search.
Although faceted search has become increasingly prevalent in online information access systems,
this text is, to our knowledge, the first comprehensive treatment of the subject. Although we cannot
hope to be exhaustive, our aim is to provide sufficient depth and breadth to offer a useful resource
to both researchers and practitioners.
Because faceted search is an area of interest to computer scientists, information scientists, in-
terface designers, and usability researchers, we do not assume that the reader is a specialist in any of
 PREFACE ix

FIGURE P.2: Results for “diamonds” at www.bluenile.com.

these fields. Rather, we offer a self-contained treatment of the topic, with an extensive bibliography
for those who would like to pursue particular aspects in more depth.
The book consists of three parts. The first part presents the key concepts leading the reader
on a historical path from Aristotle’s classical ideas of knowledge representation to a modern-day
definition of faceted search. The second part describes key work on faceted search in academia and
industry. The third part addresses some of the practical challenges that confront the developers of
faceted search applications.
Each chapter ends with take-aways that summarize the chapter’s key points. Impatient readers may
skip to these, but I hope you will find the journey as valuable as the destination.
Another Random Scribd Document
with Unrelated Content
 MEMORANDUM FOR HIS EXCELLENCY
Ministers present their respectful compliments to the Governor, and beg to
inform His Excellency that they have considered the memorial from Maori chiefs
referred to in the despatch from Lord Derby, No. 46, of 9th August 1884.
Ministers are of opinion that they would least embarrass Her Majesty's
Government by referring only to the period since 1865, when Her Majesty's troops
were removed, when for the first time the colony was left to manage the Natives
without interference by the representatives of Her Majesty in the colony. It is quite
certain that since that period there has been no infraction of the Treaty of
Waitangi. As it is clear that if there was an infraction previously Her Majesty's
Government and Imperial funds would be liable for the same, Ministers deem it
more respectful not to express an opinion on the subject, but to leave Her
Majesty's Advisers in Great Britain to arrive at their own conclusions.
As to the provisions of section 71 of the Constitution Act (15 and 16 Vict. cap.
72), Ministers would remark that it appears from the very terms of the section that
the Imperial Parliament contemplated that that section should only be used for a
short time and under the then special circumstances of the colony. The words
used in the section are, "It may be expedient," "Should for the present be
maintained." So far as allowing the laws, customs, and usages of the Natives in all
their relations to and dealings with each other to be maintained, Ministers would
point out that this has been the policy of all the Native Land Acts. The Courts that
have to deal with Native land—and it is the land that to the Natives seems the
most important—decide according to Native customs or usages (vide "Native Land
Courts Act, 1880," section 24; see also sections 5 and 6 of "The Native Lands
Frauds Prevention Act, 1881," and section 6 of "The Native Land Laws Amendment
Act, 1883").
Regarding the proclamation of Native districts the County of Waipa is practically
a Native district, and if the Natives desired such a form of local government as the
Counties Act affords, there would be no difficulty in granting their request by the
Colonial Parliament. What, however, the petitioners desire is really the setting-up
of a Parliament in certain parts of the North Island which would not be under the
control of the General Assembly of New Zealand. Seeing that in the Legislative
Council and the House of Representatives the Natives are represented by able
chiefs, and that they have practically no local affairs to look after that cannot be
done by their Committees—local bodies recognised by the Government—Ministers
do not deem it necessary to point out the unreasonableness and absurdity of such
a request.
Ministers have not deemed it necessary to go seriatim through the allegations of
the petition and show their unsubstantiality. A former Premier, Sir Frederick
Whitaker, specially dealt with a petition very similar to the one now under
consideration (see memorandum, 12th December 1882, addressed to His
Excellency the Governor, in Appendix to the Journals of the House of
Representatives, A-6, page 5); and a former Native Minister, Mr. Bryce, wrote a
memorandum referring to the alleged ill-treatment of the Maoris (see
memorandum for His Excellency, 11th January 1884, A-1, page 11, in Appendix,
vol. i., 1884). The despatch of Your Excellency, No. 9, of the 1st March 1884,
forwarding the memorandum of Mr. Bryce, also combated the statements of the
Maori chiefs who had petitioned.
Ministers do not consider that there is any allegation in this petition that has not
been before the Imperial Government, replied to by the colony, and dealt with
before.
Robert Stout.
Wellington, March 12, 1885.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street, June 23, 1885.
Sir—I have the honour to acknowledge the receipt of your Despatch, No. 39, of
the 28th of March, transmitting a memorandum from your Ministers in reference to
the memorial of the Maori chiefs, which was presented on the occasion of the
interview which took place at this office on the 23rd July 1884.
I request that you will inform Tawhiao and the other chiefs who signed the
memorial that, as stated in the letter to them of the 13th August last, the
attention of the Government of New Zealand was called to the representations
which it contains, and that the reply of your Advisers—a copy of which I request
you to transmit to them at the same time—has been received and considered by
Her Majesty's Government.
The questions to which the memorial relates have also been discussed in the
House of Commons with many expressions of sympathy for the Maori race, and of
belief that their interests and their customs would be guarded and respected by
the Government of New Zealand. The feeling, at the same time, appeared to be
general that while the Government of the Queen in this country has no longer its
former power and responsibility in regard to the internal affairs of New Zealand, it
should use its good offices with the Colonial Government with the view of
obtaining for the Natives all the consideration which can be given to them.
I trust that all who sympathise with and wish well to the Maoris will agree that it
is most important for them to understand clearly that under the present
Constitution of New Zealand the government of all Her Majesty's subjects in the
islands is controlled by Ministers responsible to the General Assembly, in which the
Natives are efficiently represented by persons of their own race, and that it is no
longer possible to advise the Queen to interfere actively in the administration of
Native affairs any more than in connection with other questions of internal
government. I observe, however, with satisfaction that it is in contemplation to
increase the number of the Native representatives.
Although, therefore, Her Majesty's Government cannot undertake to give you
specific instructions as to the applicability at the present time of any particular
stipulations of a treaty which it no longer rests with them to carry into effect, they
are confident—as I request that you will intimate to your Ministers—that the
Government of New Zealand will not fail to protect and to promote the welfare of
the Natives by a just administration of the law, and by a generous consideration of
all their reasonable representations. I cannot doubt that means will be found of
maintaining to a sufficient extent the rights and institutions of the Maoris without
injury to those other great interests which have grown up in the land, and of
securing to them a fair share of that prosperity which has of necessity affected in
many ways the conditions of their existence.—I have, etc.,
Derby.
Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

Sir W. F. D. Jervois to Tawhiao

Government House, Wellington,
August 27, 1885.
To Tawhiao.
The Petition which was signed by you, Major Te Wheoro, Patara te Tuhi, Topia
Turoa, and Hori Ropihana, and presented to the Secretary of State when you were
in England was forwarded by him to me, accompanied by a letter asking for any
statements which the Government of New Zealand might desire to make
respecting the matter. I wrote back to the Secretary of State, and enclosed a
memorandum from the Government of New Zealand. The Secretary of State has
again written to me, and requested me to send to you copies of these letters. I
therefore enclose translations.
You will see from the last letter of the Secretary of State that he says that the
Government of all Her Majesty's subjects in New Zealand, Maori as well as
European, is controlled by Ministers responsible to the Parliament at Wellington, in
which there are Maori representatives, and that the Government in London cannot
interfere in the internal affairs of the colony.—From your Friend,
Wm. F. Drummond Jervois.
 The Right Hon. the Earl of Derby to Sir W. F. D. Jervois
Downing Street, September 11, 1884.
Sir—I have the honour to submit to you a copy of a letter addressed to me by
Tawhiao, the Maori King, on his departure for New Zealand after his recent visit to
this country.
You will be so good as to inform Tawhiao that I duly received and that I
appreciate his friendly farewell salutations.—I have, etc.,
Derby.
Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

Tawhiao to the Right Hon. the Earl of Derby

Steamer "Potosi," August 20, 1884.
Friend—Salutations! Abide there with your friends, your fellow-nobles, your race,
your land: I am returning to my people under the blessing of God.—From
Tawhiao.
Lord Derby.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street, February 3, 1885.
Sir—I have the honour to inform you that I have received from the chief Hori
Ropiha a letter dated the 3rd December, expressing the satisfaction of his tribe—
the Ngatikahungunu—at the principles laid down on the occasion of the interview
between the chiefs and myself at this office, more especially in regard to
uniformity of legislation.
I request that you will cause Hori Ropiha to be informed that his statements
have given pleasure, and that I do not doubt that any well-founded complaints on
the part of the Maoris will be dealt with fairly by the Government to which Her
Majesty has given over the whole question.—I have, etc.,
Derby.
Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

The Under-Secretary, Native Department, to Hori Ropiha

 Wellington, April 27, 1885.
To Hori Ropiha.
Greeting!—Lord Derby has written a despatch to the Governor of New Zealand
acknowledging the receipt of your letter expressing the satisfaction of
Ngatikahungunu at the principles laid down by you and Lord Derby in England.
Lord Derby also says in his despatch that your statements have given pleasure,
and he feels that the Government of New Zealand will deal fairly with the most
important matters affecting the Maoris which Her Majesty has given to this
Government to administer. Sufficient.—From
T. W. Lewis

Hori Ropiha to the Under-Secretary, Native Department

Waipawa, July 8, 1885.
Friend—Greeting! Greeting to you, and all the honourable members of the
Parliament of the colony!
You have written to inform me of the receipt by the Government of New Zealand
of a despatch from Lord Derby, in which he acknowledges the receipt of the letter
expressing the satisfaction of the Ngatikahungunu at the principles laid down by
us and Lord Derby in England.
Friend, I did send such a letter to Lord Derby, and the information contained in
Lord Derby's despatch to you is correct—namely, that he does not doubt that any
well-founded complaints on the part of the Maoris will be dealt with fairly by the
Government of New Zealand, to which Her Majesty has given over the whole
question.
Friend, I am greatly pleased at the receipt of your letter. I was absent at
Mohaka, the Wairoa, and the Mahia, where I went to make known the principles
laid down by us and Lord Derby, in order that my Maori tribes might hear my
report of my visit to England. On my return from England I addressed the Maoris,
and the people of my district were greatly pleased with what I told them. It is true
that they have joined the Blue Ribbon Army,[199] and keep it faithfully.
Friend, continue to carry out a policy that will benefit the Maoris in accordance
with what Lord Derby said—namely, that any well-founded complaints on the part
of the Maoris will be dealt with fairly by the Government of New Zealand—and
justify Her Majesty's action in giving over the whole question to be dealt fairly with
by the Government.
 I know what course of policy would be beneficial to the Maori people and
establish friendly relations. Sufficient.—From your loving Friend,
Hori Ropiha.
To Mr. Lewis.

Tawhiao to Sir W. F. D. Jervois

(Translation)
Whatiwhatihoe, September 21, 1885.
Friend—Greeting. I have received your letter of the 27th of August, with the
copies of communications from yourself, your Ministers, and Her Majesty's
Government relative to the subject-matter of the petition from the Maori people
that I and my fellow Native chiefs took to lay before Her Majesty's Government
and the people of England. In your letter you inform us of one only of the words
of Her Majesty's Government—namely, that the government of all Her Majesty's
subjects in New Zealand is controlled by Ministers responsible to the Parliament.
Your so informing us is well. But you did not also inform us of another important
word of the Government of England with reference to the Maori people—namely,
that you should intimate to your Government that they should protect and
promote the welfare of the Natives by a generous consideration of all their
reasonable representations. Well, we see that these directions from the
Government of England are no mere random words, but have a bearing upon the
petition, which petition your Ministers said had no significance, and that England
would not interfere. Your communications and those of the Government of
England have been circulated among the Maori people of this Island.
However, with reference to the statement made by your Ministers that they do
not consider that there is any allegation in this petition that they have not
answered before, I and my fellow Native chiefs would say, Where are the replies
taking exception to those petitions? And why are they not quoted in connection
with this petition for the consideration of the Native people? And who is it that can
say that the complaints raised in those petitions are similar to those made in this?
And, further, with reference to the statement that since 1865 England ceased to
interfere in the management of affairs in New Zealand, and left them to be
managed by the Government of New Zealand, it may be so. But the Maori people
are not aware of the reasons that led their Pakeha friends to apply to have the
sole management of affairs in New Zealand; and the assent thereto of the Queen's
Government was given without considering the Maori people, or making any
inquiries of them. Because the right of governing and the occupation of the Island
by Europeans dates from the Treaty of Waitangi; and it was left to the chiefs, the
hapus of the Native people, and Her Majesty to carry out the provisions of the
Treaty of Waitangi, which became a covenant on the descendants.
And, further, with reference to the statement made by your Ministers that "there
has been no infraction of the Treaty of Waitangi," we would ask what portion of
the Treaty of Waitangi, what hapus, or what chiefs placed the authority over the
Native lands under the Native Land Court, or gave the Europeans the sole power
to deal with Maori lands in that Court, as stated in the paragraph respecting the
Native Land Court in that petition.
And, further, with reference to the statement respecting the presence of Native
members in the Legislature, the status of those members was pointed out in the
petition: Taking the basis of population, one Native member is returned for more
than twenty thousand persons, whereas one European member is returned for
every five thousand. When, indeed, have the applications of those members for
increased representation been acceded to by that Parliament? When, indeed, have
the applications of those members to have the grievances of the Native people
redressed been acceded to by that Parliament? When, indeed, have the
applications of those members asking that the Natives should have the power of
administering their own lands been acceded to by that Parliament? Well, it is seen
that the reason why the Government admitted Natives there (into Parliament) as
members was merely in order that it could be said that Natives dealt with the
wrongs now practised on the Maori people, and in order, too, that such wrongs
should not be looked into, and finally to abolish those members.
And, further, with reference to the statement made by the Minister that Kawhia
is a Native district: Well, if the Government really considered it to be such, why,
then, did they assume to themselves the right to do certain acts in that district,
such as establishing a military post on Native lands, which was a menace to the
Maori people?
When, indeed, have the Government paid any heed to the application of
Tawhiao and the people of that district desiring that Tawhiao should have the
management of matters in that district?
Do you forward a copy of this letter to Her Majesty's Government. Sufficient.
King Tawhiao.
His Excellency the Governor.

Sir W. F. D. Jervois to the Right Hon. Colonel Stanley

Christchurch, December 16, 1885.
 Sir—I have the honour to state that I duly forwarded to Tawhiao, a copy of your
Despatch No. 39, of the 23rd June last, concerning the Maori chiefs' memorial,
presented by them to Her Majesty's Government whilst in England.
I have received from him in reply a letter, a translation of which, in accordance
with the request contained in the last paragraph, I transmit herewith. I have, on
the advice of my Ministers, informed him that there is nothing to add to the
communications that have already been made.
It is the desire and practice of the Government of this colony to treat the Native
population with the most perfect justice, and, as far as possible, in the same
manner as the other subjects of Her Majesty in New Zealand. I submit that no
good end can be served by prolonging this correspondence.—I have, etc.,
Wm. F. Drummond Jervois.
The Right Hon. Colonel Stanley, M.P.

Sir W. F. D. Jervois to Tawhiao

Christchurch, December 16, 1885.
Sir—I have the honour to acknowledge the receipt of your letter of the 21st
September last with reference to your petition to Her Majesty. I do not think there
is anything to add to the communications that have already been made. I have, as
you requested, forwarded a copy of your letter to Her Majesty's Government.—I
have, etc.,
Wm. F. Drummond Jervois.
To Tawhiao, etc.

Tawhiao to Sir W. F. D. Jervois

Whatiwhatihoe, December 22, 1885.
To the Governor of New Zealand.
Greeting!—I am not quite certain about the copies of the letters from your
Government and Her Majesty's Government that you forwarded to me on the 27th
day of August 1885, in Maori only. I am very desirous that you should send me
copies of the same in English, which would be right. Sufficient.—From your friend,
King Tawhiao.
The Governor, Wellington.

The Under-Secretary, Native Department, to Tawhiao

 Wellington, January 29, 1886.
Friend Tawhiao—Greeting. His Excellency the Governor has forwarded to Mr.
Ballance the letter you wrote to him on the 22nd December, in which you asked
that copies in English of the despatches from Lord Derby, the Governor, and the
Government of the colony might be supplied to you, and by direction of Mr.
Ballance, I forward copies of those despatches by the mail.—From your friend,
T. W. Lewis.
Tawhiao, Whatiwhatihoe, via Alexandra, Waikato.

The Right Hon. Colonel Stanley to Sir W. F. D. Jervois

Downing Street, February 2, 1886.
Sir—I have the honour to acknowledge the receipt of your Despatch No. 127, of
the 16th December, forwarding a translation of a letter which you had received
from Tawhiao in reply to one founded on my predecessor's Despatch No. 39, of
the 23rd June, in connection with the memorial of the Maori chiefs. I request that
your Government will cause Tawhiao to be informed that I have read his letter in
accordance with his desire.—I have, etc.,
Fred Stanley.
Governor Sir W. F. D. Jervois, G.C.M.G., G.C.B., etc.

The Hon. the Native Minister to Tawhiao

(Translation)
Wellington, May 6, 1886.
Friend Tawhiao—I have been requested by His Excellency the Governor to
transmit for your information copy of a despatch he has received from the Right
Hon. the Secretary of State for the Colonies in reference to a letter from yourself.
Enough.—From your loving friend,
John Ballance.
Enclosure.—Despatch No. 7, of the 2nd February 1886.

Copy of Resolutions
The Resolutions herein written were confirmed by the chiefs and hapus
assembled at Whatiwhatihoe on this 4th day of April, in the year 1886.
1. That the Treaty of Waitangi shall continue in force, by which the authority
(mana) of the chiefs of the Maori people was assured to them, and which also
confirms and guarantees Maori people the full, exclusive, and undisturbed
possession and control of their lands, and declares that the Maori people shall be
maintained in their rights.
2. That the powers conferred by the Act of the year 1852 should be maintained
—viz. that a council or councils should be set up, and invested with power and full
authority, and that it shall be lawful for Her Majesty to authorise such councils.
3. That the Maori people of Ao-tea-roa (New Zealand) shall act together under
the law above mentioned.
4. That the Maori committees, authorised by the laws above referred to, shall be
zealous in the performance of their duties.
5. That no wrong proceedings or operations of the Government towards the
Maori people shall be sanctioned.
6. That the Native Land Courts Act should be repealed, and that it be left to the
Maoris themselves to adjudicate on their own lands.
7. That this runanga (council) shall persist in its efforts to have the directions
given by the Government of the Queen to the Government of New Zealand carried
out—viz. that the rights and interests of the Maori people shall be guarded and
respected. (This resolution was unanimously carried by the runanga: "Although
the Government of England has nothing to do with the affairs of New Zealand, still
the Government of the Queen will instruct the Government of New Zealand to
devise some measures whereby justice may be done to the Maori people and their
interests promoted, and that the Governor should be questioned concerning these
instructions from England.")
8. That the chiefs attending this meeting be deputed to put the question to the
Governor.
9. That each tribe should subscribe money for the purchase of a press to print
for circulation reports of what are done and said by the Maori people.
10. That power be given to each committee to deal with lands in its own district.
These are the Resolutions that were carried.
King Tawhiao's reply in reference to the Resolutions was: "I thank you for an
assent to the resolutions. I thank you, every one of you, for your discussions upon
those resolutions which have been formed by you in accordance with your own
wishes. I have carefully watched your discussions. There was but one tendency of
all your discussions, which corresponds exactly with the object I had in view in
inviting you to this meeting. Be zealous in lifting up and in sustaining (measures
for the benefit) of both these islands. Hearken ye! The views held by the English
people in England are precisely the same as those held by the Maori people in
New Zealand."

The Hon. the Native Minister to Tawhiao

(Translation)
Auckland, April 17, 1886.
Friend—I have the honour to enclose you the reply of the Governor to the
resolutions presented by the deputation (sent by you) to His Excellency on the 9th
instant. There is one point in the resolutions on which I desire to offer an
explanation. In the translation of Lord Derby's despatch made in the Native
Department in Wellington some of the terms are incorrectly rendered. A correct
translation has been made and handed to Major Te Wheoro. The despatch itself is
in your possession, and there can be no doubt of its meaning, which is fully
explained in the memorandum of His Excellency.—From your friend,
J. Ballance.
To Tawhiao.

Memorandum from Sir W. F. D. Jervois to the Hon. the Minister for Native Affairs
The enclosed replies to certain questions submitted to me in a memorandum
from several Maori chiefs who waited upon me on the 9th instant with a view of
laying before me resolutions passed at a Native meeting previously held at
Whatiwhatihoe are transmitted to the Minister for Native Affairs for communication
to the chiefs concerned.
In forwarding the paper to the chiefs, I request that you will inform them that I
was greatly pleased at the loyal sentiments expressed by them at their interview
with me towards Her Most Gracious Majesty the Queen, as well as the confidence
they exhibited towards myself as her representative. I also beg that you will
convey to Tawhiao, and all the chiefs concerned, how much I rejoice at the cordial
feeling they exhibit towards the Government of New Zealand.
W. F. Drummond Jervois.
Government House, Auckland, April 14, 1886.

Memorandum relating to Resolutions passed at aNative Meeting held at Whatiwhatihoe

on the 4th April 1886.
Referring to the Resolutions in the order submitted in a paper laid before His
Excellency the Governor by a deputation of Maori chiefs on the 9th April: 1. The
Treaty of Waitangi vested the mana in Her Majesty the Queen, and secures to the
Natives their land. That treaty, in its essential elements, has been faithfully kept by
the colony. A modification was made in it by which the Natives obtained the right
of selling their lands to persons outside the Government, whereas under the treaty
the Government had the sole right of purchasing Native lands. This modification,
the only one made in the treaty, was, however, introduced at the request of the
Maoris themselves. The rights of the Maori people have been carefully preserved.
2. This appears to refer to section 71 of the Constitution Act, where reference is
made to Native councils. It must be observed, however, that the section is not
mandatory, as will be seen from the clause itself, and from such terms as, "it may
be expedient," and "should for the present be maintained." Local self-government
has been extended to the Native people in the form of Committees under the Act
of 1883. These Committees have power to ascertain titles to Native lands, and to
hear and decide civil cases by agreement, and, in fact, may be said to be Courts of
Arbitration. Their usefulness is being proved, and a large majority of the Native
people appreciate them and are using them. It has been found by experience,
however, with regard to titles to land, that there is often great jealousy of the
committees, and that the Natives prefer to have the land adjudicated on by the
Land Courts. (This remark applies also to Resolution 6.) If any other form of Maori
council than that which now exists is desired under the clause of the Constitution
Act referred to, it can only be obtained by Act of Parliament of New Zealand.
No observations are necessary to Resolutions 3, 4, 5, 8, and 9.
7. This Resolution apparently refers to Lord Derby's despatch of the 23rd June
1885, but does not convey a correct impression of the terms of that document. No
directions are contained in the despatch. Lord Derby expressly says that "under
the present Constitution of New Zealand the government of all Her Majesty's
subjects in the islands is controlled by Ministers responsible to the General
Assembly, in which the Natives are efficiently represented by persons of their own
race, and that it is no longer possible to advise the Queen to interfere actively in
the administration of Native affairs, any more than in connection with other
questions of internal government." The resolution states that there is an
"instruction" contained in the despatch; but there is none. On the contrary, Lord
Derby expressly recognises the right of the New Zealand Government to deal with
the internal affairs of the colony without interference. The words of Lord Derby,
where he refers to the Native people, are as follows: "It (the Imperial
Government) should use its good offices with the Colonial Government with the
view of obtaining for the Natives all the consideration which can be given to
them." The particular request that Lord Derby makes, and it is only in the nature
of a request, is "that the Government of New Zealand will not fail to protect and to
promote the welfare of the Natives by a just administration of the law, and by a
generous consideration of all their reasonable representations." He adds, "I cannot
doubt that means will be found of maintaining to a sufficient extent the rights and
institutions of the Maoris without injury to those other great interests which have
grown up in the land, and of securing to them a fair share of that prosperity which
has of necessity affected in many ways the conditions of their existence." The
policy advocated by Lord Derby has been and is being carried out. A proof of this
is to be found in the fact that an overwhelming majority of the Natives are
satisfied with the administration of their affairs by the Government of New
Zealand.
John Jervois,
Private Secretary.
Signed by order of His Excellency the Governor. Government House, Auckland,
14th April 1886.
In the Court of Appeal of New Zealand.

Tamihana Korokai and others v. The Solicitor-General

1912.
July 23, 24, 25.
Oct. 7.

C.A.
Coram.
Stout, C.-J.
Williams, J.
Edwards, J.
Cooper, J.
Chapman, J.

Skerrett, K.C., Morison and Fell for the plaintiffs.

Solicitor-General (Salmond) and Ostler for the defendant.
STOUT, C.-J.—This is a special case stated pursuant to Rule 245 of our Code of
Civil Procedure. Neither party, however, asks that all the questions framed in the
case should be answered. Indeed both ask that some of the questions should not
be answered. The point in dispute between the parties is a narrow one. The
plaintiff contends that he has a statutory right to go to the Native Land Court
claiming under the Native Land Act a freehold title. The Solicitor-General contends
that if he, as Solicitor-General, says the land, that is the bed of Lake Rotorua, is
Crown land that concludes the matter, and the Native Land Court cannot proceed
to make any inquiries as to whether the land is native customary land. That is the
matter in contention, and it appears to me that it is the only question that this
Court has at present to decide.
 It may be necessary to refer very shortly as to how the question has arisen. In
1835 there were many English people settled in the most northerly part of New
Zealand. English Church Missionaries had been there for some years, they landed
first in 1814; and there were traders and whalers and others that had made New
Zealand their home. One called Charles Baron de Thierry, in Marquesas, claimed
that he was sovereign chief of New Zealand. He so informed Mr. James Busby, who
had been appointed British Resident in New Zealand, and Mr. Busby thereupon
took steps to deny any such sovereignty. He and other English residents saw the
Native chiefs and they formed what was called a Confederation. The thirty-five
head chiefs or heads of tribes in the most northern parts of New Zealand, that is
all the country lying north of the Firth of Thames, joined in a declaration that New
Zealand was an independent state under the name of the "United Tribes of New
Zealand." Mr. Busby sent a copy of this declaration to the Under-Secretary of State
in London, and Lord Glenelg, the Secretary of State for the Colonies, wrote to the
Governor of New South Wales regarding the declaration. The Governor was
directed to inform the chiefs "With reference to the desire which the chiefs have
expressed on this occasion to maintain a good understanding with His Majesty's
subjects, it will be proper that they should be assured in His Majesty's name that
he will not fail to avail himself of every opportunity of showing his goodwill and of
affording to those chiefs such support and protection as may be consistent with a
due regard to the just rights of others, and to the interests of His Majesty's
subjects."
Meantime the eligibility of New Zealand as a colony was being discussed both in
New South Wales and in England, and ultimately in 1840 Captain Hobson, R.N.,
was despatched to New Zealand with two commissions, one as British Consul, and
the other as Lieutenant-Governor. He reached the Bay of Islands on the 29th of
January 1840, and on the 5th and 6th of February the Treaty of Waitangi was
signed by many chiefs, then assembled at Waitangi in the Bay of Islands. The
treaty states, inter alia: "Her Majesty, therefore, being desirous to establish a
settled form of civil government with a view to avert the evil consequences which
must result from the absence of the necessary laws and institutions alike to the
native population and to her subjects, has been graciously pleased to empower
and authorise me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul
and Lieutenant-Governor of such parts of New Zealand as may be or hereafter
shall be ceded to Her Majesty to invite the confederated and independent chiefs of
New Zealand to concur in the following articles and conditions."
Then follow three articles. The first article deals with the cession. It is as
follows: "The chiefs of the Confederation of the United Tribes of New Zealand, and
the separate and independent chiefs who have not become members of the
confederation, cede to Her Majesty the Queen of England, absolutely and without
reservation, all the rights and powers of sovereignty which the said confederation
or individual chiefs respectively exercise or possess or may be supposed to
exercise or possess over their respective territories as the sole sovereigns thereof."
The second and the third articles are as follows: "Her Majesty the Queen of
England confirms and guarantees to the chiefs and tribes of New Zealand and to
the respective families and individuals thereof, the full, exclusive, and undisturbed
possession of their lands and estates, forests, and fisheries, and other properties
which they may collectively or individually possess, so long as it is their wish and
desire to retain the same in their possession: but the chiefs of the united tribes
and the individual chiefs yield to Her Majesty the exclusive right of pre-emption
over such lands as the proprietors thereof may be disposed to alienate, at such
prices as may be agreed upon between the respective proprietors and persons
appointed by Her Majesty to treat with them in that behalf." The third is as
follows: "(3) In consideration thereof, Her Majesty the Queen of England extends
to the natives of New Zealand her royal protection, and imparts to them all the
rights and privileges of British subjects."
Copies of the treaty were taken to various parts of both islands, and the chiefs
throughout New Zealand signed it, and to the present day the treaty is regarded
as their Magna Charta. The Lieutenant-Governor on the 21st May 1840 issued a
proclamation, proclaiming and declaring that after the date of the treaty the full
sovereignty of the North Island of New Zealand vested in Her Majesty, Queen
Victoria, her heirs and successors for ever.
A further proclamation was issued on the same day proclaiming and declaring
that all the Islands of New Zealand vested in Her Majesty, that is, including all
country between 34° 30´ north to 47° 10´ south latitude and between 166° 5´ to
179° east longitude. A mistake was made in this proclamation in that it proclaimed
from 34° 30´ north instead of as was intended 34° 30´ south. The ground of the
proclamation over the South Island was that of discovery. Since then it has been
recognised that the lands in the islands not sold by the natives belonged to the
natives. All the old authorities are agreed that for every part of land there was a
native owner. Two authorities may be cited. Bishop Selwyn said as follows: "Three
points then seem to be clear on this subject: (1) That there was originally a
distinct owner for every habitable spot in the Northern Island: (2) That these
claims have been complicated by the obvious causes of inheritance and marriage
without forms of conveyance or bequest: (3) That the rights of ownership whether
in one or many joint proprietors were not alienable without the consent of the
tribe."
The late Sir William Martin, formerly Chief-Justice of New Zealand, said: "So far
as yet appears the whole surface of the islands, or as much of it as is of any value
to man, has been appropriated by the natives, and, with the exception of the part
they have sold, is held by them as property. Nowhere was any piece of land
discovered or heard of (by the commissioners) which was not owned by some
person or set of persons.... There might be several conflicting claimants of the
same land: but however the natives might be divided amongst themselves as to
the validity of any one of the several claims, still no man doubted that there was in
every case a right of property subsisting in some one of the claimants. In this
Northern Island at least it may now be regarded as absolutely certain that, with
the exception of lands already purchased from the Natives, there is not an acre of
land available for purposes of colonisation, but has an owner amongst the Natives
according to their own customs."
The Governor and the Legislature of New Zealand accepted this position, and
numerous ordinances and acts of Parliament have been passed to enable the
Maoris to transmute their customary title into freehold. The position all along
assumed has been that the lands are vested in the Crown, and until the Crown
issues a freehold title the customary titles cannot be recognised; but that the
Crown will give to all who prove that the land was theirs a freehold title. The
Crown has not assumed that land could be taken or kept by the Crown from the
Natives, unless the natives ceded their rights to the Crown. Thousands of
purchases in both islands have been made by the Crown, and thousands of deeds
of cession are in existence. The reason why the Crown did not recognise any title
in the land till a grant from the Crown had issued is dealt with in the classic
judgment of the late Mr. Justice H. S. Chapman, delivered in 1847 in the case of
Reg. v. Symonds, and in the judgment of the then Chief-Justice Sir William Martin,
who agreed with the judgment of Mr. Justice Chapman. After their judgments, the
Imperial Parliament in the New Zealand Constitution Act (15 and 16 Vict. c. 72,
sec. 73) recognised the native title. Section 73 of that Act is as follows: "It shall
not be lawful for any person other than Her Majesty, her heirs and successors, to
purchase or in any wise acquire or accept from the aboriginal Natives land of or
belonging to, or used or occupied by them in common as tribes or communities, or
to accept any release or extinguishment of the rights of such aboriginal Natives in
any such land as aforesaid: and no conveyance or transfer, or agreement for the
conveyance or transfer of any such land, either in perpetuity or for any term or
period, either absolutely or conditionally, and either in property or by way of lease
or occupancy, and no such release or extinguishment as aforesaid, shall be of any
validity or effect, unless the same be made to, or entered into with and accepted
by Her Majesty, her heirs or successors. Provided always that it shall be lawful for
Her Majesty, her heirs and successors, by instructions under the signet and royal
sign manual, or signified through one of Her Majesty's Principal Secretaries of
State to delegate her powers of accepting such conveyances or agreements,
releases, or relinquishments, to the Governor of New Zealand, or the
superintendent of any province within the limits of such colony, and to prescribe or
regulate the terms of such conveyances or agreements, releases or
extinguishments shall be accepted."
 That the Crown in New Zealand recognised that it could not treat the Native
land—that is, the land over which the Natives had not given up their rights of
cession—as Crown in the fullest sense is plain from various things done: (1) In
1862 the first Act to provide for the ascertainment of the ownership of Native
lands, and for granting certificates of title therein, and for regulating the disposal
of Native lands was passed. The preamble is as follows: "Whereas by the Treaty of
Waitangi entered into by and between Her Majesty and the chiefs of New Zealand,
it was among other things declared that Her Majesty confirmed and guaranteed to
the chiefs and tribes of New Zealand and the respective families and individuals
thereof the full, exclusive, and undisturbed possession of their lands and estates,
which they collectively or individually held so long as it should be their desire to
retain the same: And it was further declared that the chiefs yielded to Her Majesty
the exclusive right of pre-emption over such lands as the proprietors thereof might
be disposed to alienate: And whereas it would greatly promote the peaceful
settlement of the colony and the advancement and the civilisation of the Natives if
their rights to land were ascertained, defined, and declared, and if the ownership
of such lands when so ascertained, defined, and declared were assimilated as
nearly as possible to the ownership of land according to British law: And whereas
with a view to the foregoing objects, Her Majesty may be pleased to waive in
favour of the Natives so much of the said Treaty of Waitangi as reserves to Her
Majesty the right of pre-emption of their lands, and to establish Courts and to
make other provision for ascertaining and defining the rights of the Natives to
their lands, and for otherwise giving effect to the provisions of the Act: And it is
expedient that the General Assembly of New Zealand should facilitate the said
objects by enacting such provisions as are hereinafter contained."
(2) When the natives committed rebellion or were guilty of insurrection, a
special Act was passed allowing the Governor in Council to take their lands. See
inter alia the New Zealand Settlements Act, 1863. A few of the sections may be
cited: "2. Whenever the Governor in Council shall be satisfied that any Native tribe
or section of a tribe or any considerable number thereof has since the first day of
January 1863 been engaged in rebellion against Her Majesty's authority, it shall be
lawful for the Governor in Council to declare that the district within which any land
being the property or being in the possession of such tribe or section or
considerable number thereof shall be situate, shall be a district within the
provisions of this Act, and the boundaries of such district in like manner to define
and vary as he shall think fit."
"3. It shall be lawful for the Governor in Council from time to time to set apart
within any such district eligible sites for settlements for colonisation, and the
boundaries of such settlements to define and vary."
"4. For the purposes of such settlements the Governor in Council may from time
to time reserve or take any land within such district, and such land shall be
deemed to be Crown land, freed and discharged from all title interest, or claim of
any person whomsoever as soon as the Governor in Council shall have declared
that such land is required for the purposes of this Act, and is subject to the
provisions thereof."
Section 5 provided for compensation to persons whose land has been taken,
provided that they had not been in rebellion.
(3) Before Native land was treated as Crown land, open for sale and settlement,
proclamations were generally made so declaring the land open. See, for example,
section 6 of the Immigration and Public Works Act, 1873, and section 247 of the
Land Act, 1885.
It is not necessary to point out that if the Crown in New Zealand had not
conserved the Native rights and carried out the treaty a gross wrong would have
been perpetrated. Since the recognition of the Native rights so often made, there
may have been interference by legislation with Native land, both before and after
the ascertainment of title. If, however, there were such interferences, they have
been based on the theory of eminent domain. There have been statutes passed
providing how Native lands may be leased, but a similar kind of interference has
been witnessed in the United Kingdom in the case of the Irish Land Acts and the
Scottish Crofters' Statutes. Such interferences did not destroy the title of Natives.
Native lands and freehold lands belonging to persons of the white race have also
been taken under such a theory when it appeared it was for the interest of the
State to do so. In such cases compensation has been awarded. To interfere with
Native lands, merely because they are Native lands, and without compensation,
would of course be such an act of spoliation and tyranny that this Court ought not
to assume it to be possible in any civilised community.
The decision of Wi Parata v. Bishop of Wellington, 3 J.R., N.S., S.C. 72, does not
derogate from that position. It only emphasised the decision in Reg. v. Symonds,
that the Supreme Court could take no cognisance of treaty rights not embodied in
a statute, and that Native Customary Title was a kind of tenure that the Court
could not deal with. In the case of Tamaki v. Baker (1901), A.C. 561, the Judicial
Committee of the Privy Council recognised, however, that the Natives had rights
under our statute law to their customary lands.
The Native Land Act, 1909, has various sections dealing with the customary land
of the Maoris (sections 84, 85, 86, and 87). What was the need of such sections if
a declaration by a law officer of the Crown was all that was necessary to say that
the land claimed as Customary Native Land was Crown Land? Section 88 is
significant in this connection. It states "(1) for the purpose of recovering
possession of customary land from any person in wrongful occupation thereof, and
for the purpose of preventing any trespass or other injury thereto, or of recovering
damages for any such trespass or injury, all such land shall be deemed to be
Crown Lands within the meaning of the Land Act, 1908. (2) No action or other
proceeding, other than a proceeding by or on behalf of the Crown under the last
preceding subsection, shall be brought in any Court by any person for the recovery
of the possession of customary land, or for damages or an injunction in respect of
any trespass, or injury to such land." Sections 90 and 91 show that the customary
titles are recognised: section 90 reads: "The Native Land Court shall have
exclusive jurisdiction to investigate the title to customary land, and to determine
the relative interests of the owners thereof." Section 91 is as follows: "Every title
to and interest in customary land shall be determined according to the ancient
custom and usage of the Maori people, so far as the same can be ascertained."
Section 92 shows the jurisdiction of the Native Land Court. Formerly there was
something more required than an order of a Native Land Court to make an
effective title. At one time His Excellency the Governor had to sign a Crown grant
and at another time a certificate of title.
I am of opinion that the Native Land Act recognises that the Natives have a right
to their customary titles. There are in my opinion only three things that can
prevent the Native Land Court entering on an enquiry as to such customary title.
(1) A proclamation of the Governor under a statute, such as has been provided
in many Acts, and is so provided in section 85 of the Native Land Act, 1909.
(2) A prohibition by the Governor under section 100 of the Native Land Act,
1909.
(3) Proof that the land has been ceded by the true owners or that a Crown
grant has been issued.
I know of no statutory authority that the Attorney-General as Attorney-General
or the Solicitor-General as Solicitor-General has to declare that the land is Crown
land. The Attorney-General and the Solicitor-General are both high officers of
State. They are legal officers, and they can appear as solicitors or counsel for the
Crown, but there their functions and powers end. Their statement as to what is
Crown property unless made in accordance with some statutory power, is of no
avail. If in an action they put in a plea to that effect, it would have to be proved
like any other pleading of a party to the action. The Solicitor-General has failed to
cite any authority that the mere statement of the legal adviser of the Crown, or
the Crown's Attorney or Solicitor-General, was to be taken as a true averment
without proof.
What the customary title to the bed of Lake Rotorua may be must be considered
and determined by the only Court in New Zealand that has jurisdiction to deal with
Native titles—the Native Land Court. At common law there may be an ownership
of the bed of navigable rivers or lakes that are non-tidal. See Kent's
Commentaries, vol. iii. p. 427, note (d). The case of Mueller v. Taupiri Coal Mines,
Ltd., 20 N.Z.L.R. 89, turned on the effect of a grant under the Land Acts.
I am of opinion that it is not necessary specifically to answer the questions put,
but only to say that the plaintiff and his people have a right to go to the Native
Land Court to have their title investigated, and that the Native Land Court can only
be prevented from performing its statutory duty, first, under the Native Land Act,
secondly, on proof in that Court that the lands are Crown Lands freed from the
customary title of the Natives, or, thirdly that there is a Crown title to the bed of
the lake.

WILLIAMS, J.—The contention of the Solicitor-General is that in all cases where

land is claimed by natives to be held by them under their customs and usages,
and they seek to have their titles ascertained by the Native Land Court, and a title
in fee simple granted to them, the Solicitor-General, by virtue of the prerogative
right of the Crown, and apart from any statutory authority, could at any time step
in and prevent proceedings being taken or continued. The arguments in support of
this contention are that when New Zealand was annexed to Great Britain all the
land in New Zealand became vested in the Crown, by virtue of its prerogative; that
the Treaty of Waitangi is binding only upon the honour of the Crown, and can be
disregarded at the discretion of the Crown; and that, although there may be a
statutory recognition of the Native title, there is no such statutory recognition as
would operate as against the Crown. Even if these arguments were sound it by no
means follows that the contention of the Solicitor-General can be supported....
There is nothing in the Governor's commission or in the Royal instructions which
expressly authorises him to interfere on behalf of the Crown to prevent the
exercise of rights given to natives by the statute law of the Dominion. Has he
then, by virtue of his commission, an implied power so to interfere?... There is a
special reason why the power now claimed should not be implied. The power now
claimed is by an act of state to disregard rights given by statutes which have been
passed to carry out treaty obligations binding upon the honour of the Crown. If
the Crown has this power, it is exercised on the advice of the responsible Minister
of the Crown. Whether it should be so exercised or not is a matter affecting the
honour of the Crown, not merely as the Sovereign of this Dominion, but as the
Sovereign of the British Empire. It was with the Sovereign of the British Empire
that the Treaty of Waitangi was entered into. Whether Imperial obligations should
or should not be observed is a matter of Imperial concern for the responsible
advisers of the Crown in Great Britain to decide upon and not for the advisers of
the Governor here, unless the power of deciding has been expressly delegated to
the Governor. Even if the power had been so delegated the Court would properly
require some evidence beyond the mere statement of the Attorney- or Solicitor-
General that the authority of the Crown was being exercised.... I agree with the
conclusion arrived at by His Honour, that rights given to natives by statute to have
their customary titles determined can only be divested in the manner prescribed
by statute. The rights given to natives by sections 90 to 93 inclusive of "The
Native Land Act, 1909," to have a legal estate in fee simple in possession vested in
the persons found to be entitled are rights expressly given against the Crown. If
these sections do not bind the Crown they are meaningless and inoperative. The
Crown is a party to the statute. It is difficult to see how, when rights which
expressly affect pre-existing rights of the Crown are created by statute, the Crown
upon the passing of the statute can disregard the rights so created, and exercise
its pre-existing rights as if the statute had not been passed.

EDWARDS, J.—In support of his contention that the bed of the lake cannot be
the subject of a Native title under Maori customs and usages, the Solicitor-General
relies upon the inherent improbability that there was any intention, either by the
Treaty of Waitangi or by the statutes relating to native lands, to recognise any
such right. To hold that there is such a right would be, the Solicitor-General
contends, to destroy the right of navigation in all non-tidal waters to the great
detriment of the public. Such considerations might well have induced those
responsible for the Treaty of Waitangi to have so framed that document as to
preclude any claim by natives to the exclusive possession of land covered by
navigable non-tidal waters. It may even be suggested that the words of the treaty,
which guarantee to the Maoris "the full, exclusive, and undisturbed possession of
their lands and estates, forests, fisheries, and other properties," were intended to
reserve to the natives merely the right to fish in non-tidal waters, without
recognising in them any property in the land covered by such waters. It is quite
possible—indeed not improbable—that there never was any Maori custom or
usage which recognised any greater right in land covered by navigable non-tidal
waters than this. That is a question which neither the Supreme Court nor this
Court can determine. If there never was any such custom or usage prior to the
Treaty of Waitangi, then the Crown will get the advantage of that when that
question has been determined by the Native Land Court, or in the last resort by
the Judicial Committee of the Privy Council. But if there was such a custom or
usage, the treaty, so far as it is effective, is sufficient to preserve it. The treaty, like
every other instrument, must be construed in accordance with the plain legal
significance of the words used, and the Courts cannot speculate as to whether or
not those words were used in another sense not apparent upon the face of the
instrument, or necessarily to be inferred from the subject with reference to which
they are used. A lake, in contemplation of the English law, is merely land covered
by water, and will pass by the description of land. Bristow v. Cormican (3 A.C.
641); Johnston v. O'Neill (1911, A.C. 552). Whatever rights were conserved to the
Maoris by the Treaty of Waitangi were fully recognised by "The Native Lands Act,
1862," which recited the treaty, and was enacted with the declared object of
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