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SEIZED LANDS., Auckland Star, Volume XL, Issue 74, 27 March 1909
AT OKERE FALLS AND WAIOTAPU.
WAS THE GOyERNMENT EM- ___. POWERED ?
DECISION OF THE COURT.
Mr R. Goring Thomas, Registrar to the Supreme Court, delivered the judgments of Mr. Justice Edwards in three native land cases which were heard at the last Civil sessions in February In each case the right of the Government to take the land was disputed. His Honor in each case held that the Government's action was invalid. The first case has reference" to the seizure of a block of land at Waiotapu under the Public Works Act and the other concerns the taking of land at | Okere Falls, in the one case for the purpose of scenery preservation, arid in the other for the purpose of erecting an elecitrie power station.
In the course of his judgment, Mr. Justice Edwards says: "The Crown has purported to take all the lands men|tioned in both cases, under sections 88 and 89 of the Public Works Act, 1005, jfor various public purposes authorised !by that Act. The question to be determined is whether or not this taking is in either case warranted by the statute. Section SB, which is the controlling section, provides that notwithstanding anything contained in any law in force to the contrary, any native land and any land owned by natives under title derived from the Crown may be taken for any public work in the manner hereinafter provided. The powers given by sections 88 and 89 can therefore only be exercised in respect (a) of native land, (b) of land owned by natives under title derived from the Crown. It is alleged in •each of the cases stated by the Native Land it was admitted by counsel for the Minister, upon argument, and it is plain, that the lands in question are not lands owned by natives under title derived from the Crown. On | behalf of the Minister, however, it is con- | tended that they are native lands within the meaning of sections 88 and S9. Upon this question the decisions ln these cases must turn."
Mr. F. Earl for the native owners; Hon. J. A. Tole, K.C., for the Crown.
His Honor then goes on to examine tho titles to the various lands involved —at Rotomahana, Taheke, and elsewhere. He says:—"With regard to the Rotomahana lands, there can, in my opinion, be no doubt that these lands are held in fee-simple under a statutory title consequent upon a judicial investigation by a competent court of the rights of the native owners. The provision with regard to the Taheke lands is not quite so plain, as the order has not been embodied in the provisional register, for what reason does not appear. It does, however, appear that a final order has been —ade by the Native Appellate Court declaring the natives therein named to be th 9 owners of the land in question, and that order 13 entitled to registration upon the provisional register under the Land Transfer Act. The question as to who, according to native custom, would be entitled to this land, can therefore never be raised again. The rights in the land have been finally established by the order of the Court specially set up for the determination of such questions, and the adjudication of that Court is binding upon all the world. In my opinion the effect is to extinguish the native title and to create in the persons named in the order a statutory feesimple estate. It appears to mc to be plain that the effect is to extinguish tbe native title, and to substitute for it a statutory right to a land transfer titleIt remains to be considered whether or not lands held under these orders of the Native Land Court, interpreted as I have interpreted them, are 'native rands' within the meaning of sections 8S and 89 of the Public Works Act, 1905. The interpretation clause of that Act (section 2) provides that in this Act, if not inconsistent with the context. . .
native land means land held by natives under their customs and usages, whether the ownership thereof has been determined by the Native Land Court or not. In this statute, then, the words 'native land' mean land held by natives under their customs and usages. The words 'whether the ownership thereof has been determined by the Native Land Court or not' added to this desfinitdon are insensible, for the reason that, as I have shown, since the passing of the Native Land Court Act, 1894, as soon as the ownership'-tof land has been determined by the Native Land Court it ceases to be held by natives under their customs and usages."
For the reasons stated, his Honor holds that the lands in question do not come within the definition stated. Notwithstanding this, the lands in question can, of course, be taken under Part 11. of the Act of 1905, but in that case the compensation payable must be assessed under Part 111. of* the Act. The answers to the two questions —identical in termsput in each case stated 'by the Native Land Court are:—To the first question: The lands mentioned in the case stated are not lands within the meaning of the Public Works Act, 1905. To the second question: The lands mentioned in the case have not, nor has any part thereof, been lawfully taken under the Public Works Act, 1905."
In conclusion, Mr. Justice Edwards expressed the opinion that it is inadvisable to raise questions so important in a form in which there can be no appeal under which his decision cannot bind the parties interested. "The Native Land Court," he says, "is bound to follow my opinion in the matter, but this will not conclude the rights of the Crown. ■Sooner or later, unless the Crown is willing to accept the opinion which I have expressed, these questions must "be raised anew in some other form. It would, I think, have been very much better to have Taised them in the first instance in a form which would have bound the parties and in which there could have been an appeal."
SEIZED LANDS., Auckland Star, Volume XL, Issue 74, 27 March 1909
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