LAW REPORTS

Dominion, Volume 2, Issue 325, 12 October 1908, Page 8

LAW REPORTS

SUPREME COURT. MATTERS AFFECTING NATIVES. IMPORTANT QUESTIONS. The Chief Justice (Sir Robert Stout) and Mr. Justice Edwards delivered judgment 011 Saturday morning with respect to several cases stated on points of law by tho Nativo Appellate Court to tho Supremo Court. OWNERSHIP OF A FLOCK OF SHEEP. The statement of the first caso set forth that in regard to Sections 58, 59, and 60 of the Nativo Land Laws Amendment Act, 1895, a dispute between Natives and Natives had arisen as to the ownership of a flock of 400 sheep. A civil action could not bo brought by way of detinue in tho Stipendiary Magistrate's Court, as tho amount involved exceeded its jurisdiction. There was no District Court. It was contended by the litigants that but for the section in question tho proper Court in which to bring the action would bo tho Supremo Court, but that the jurisdiction of that Court was by the section taken awav and vested in tho Nativo Appellate Court. _ Question: —Had the Supremo Court jurisdiction in tho matter, or had the Nativo Appellate Court jurisdiction.? Tho Chief Justice said the question really was: Was tho jurisdiction of tho Appellate Court extended, and was it made a Court of first instanco in such a case? Section 51 was .aimed at preventing the Supremo Court interfering by way of mandamus, prohibition or certiorari, with • tho Nativo Land Court in a purely Nativo matter. Section 58 did not purport to give nor did it givo jurisdiction to tho Nativo Appellate Court m such cases. Did Section 59 do so? He was of _ opinion that that section was meant to givo tt> tho Apiiellato Court tho samo freedom from interference by tho Supremo as was granted by Section 57. It did not_ purport to do away with Supromo Court jurisdiction save perhaps in cases of mandamus, prohibition or certiorari. The only cases in which a. Nativo Land Court had exclusive jurisdiction to deal with tho personal property of Natives was ill cases of administration or probate. Their Honours were of opinion that tho supreme Court and not .the . Native Appellate Court had jurisdiction to deal with the caso. .

INTERPRETATION OF A WILL.

n r ®i t° tho second case, it appeared that tho Native Land Court granted probate •of the will of a deceased Nativo.' The executor had claimed a decreo as to the interproration of tho will, it being contended by mm that in ono devise of a named block of land such name was not known, and that though it might in the testator's niind apply to a particular part of the block, still in the opinion of the execut-or tho devise was void for uncertainty. The questions at issuo were; (a) Had tho Appellate Court jurisdiction to make tho decreo claimed? (b) Had i ?"P£r m 6 Court jurisdiction so to do? and (c). Had the jurisdiction of tho Supreme Lourt in all or any disputo between Native and (Native as to real or personal property been taken away and, if so. had that urisdiction been vested in t-lio Native Appellate mi ??• i t i. sc °tions in question? ino Chief Justice said the question at issuo was: Could the Supreme Court or the Native Appellate Court interpret tho v.ill? . . Hive Appellate Court had no original jurisdiction ,to do so. If tho Native Land Court had jurisdiction it must be under Section fourteen, and-there was, in his opinion, no subsection of tho section granting tho jurisdiction. There was no section in either Act purporting to take away tho power of tlio supreme Court to interpret a testamentary document of a Maori. Their Honours held that tho Native-Appellate Court had no jurisdiction-to make tho decreo claimed but that tho Supreme Court had power to do so.. With rogard to question (c), Mr Justice Edwards said: Tho jurisdiction of tho Supremo Court lias bc>en taken away in cases between Nativo arid Nativo as: to real and personal property, with' respect to which jurisdiction is expressly given to tho Native Land Court by statute, and in no other cases. Tho_ Native Appellate Court can only exoreiso jurisdiction given by Sections 58 and 59 consequently upon a prior determination as to the samo matter by the Nativo Land Court.

RIGHT TO IMPOSE RESTRICTIONS IN CROWN GRANTS. An important point was involved in' the third case, that of Uru v. Te Rangi, v.hicli was again stated upon a question suggested by the Chief Justice. Tho land in question was portion of 20,070,314 acres of' Canterbury provinoo, formerly known as "Kemp's Purchase." It would appear that tho people of Ngaitahu signed a .dcod on June 12, 1848, surrendering to tho New Zealand Company the land in question, with the exception of their residence and cultivations. Pursuant to this deed reserves to the Natives wero made. Among them was ono at Kaiapoi (the subject of the present case), containing 2640 acres. This reserve was first administered under tho Native Reserves Act, 1856, and under Section 15 ; a conveyance could bo made to a beneficiary with or without restriction, but in 1862 the Native

Reserves Act was amended, and certain powers wero vested in the Governor by Sections 4 and 5. The Native beneficiaries wished "that as a. fundamental condition of the proposed grants the estate , and interests created • thereby should be entailed so as to make them inalienable to persons of other than the Maori race." The section in dispute was partitioned off arid' awarded to Henare Korako. When this Crown grant was issued 'the' Native Land Act of 1862 was in force, as well as the Crown Grants Acts 1 and' 2 of 1862, and tho Native Reserves "Act of 1856/ as amended by the Native Resorves Act of 1862. Tho question was -.—Had the Governor power to place restrictions on tho Crown grant? Tho Chief Justice said the grant was founded oil a statute, and; if the Governor had power to issue grants, as if he had the Royal- prerogative to dispose of real estate — a power which, in his opinion, lie did notpossess—he had no power by statute to put in the proviso that appeared in tho-' grant: He was not at prosent convinced that Section 22 of tho Native Reserves' Act, 1882, did make restrictions wrongfully imposed valid. Tho parties interested wero not before the Court, and considering the decision of the Court in Rangimoeko v. Strachan, and the

provisions of the section, ho was of opinion that it would be only proper for tho Native Apnellato Court to issue orders of succession, ana'allow tho persons interested an opportunity of having the matter properly litigated. Ho would forbear, therefore, at present further discussing tho restrictions imposed..

Mr. Justice Edwards said it was tho duty of the Native Land Court and of tho Native Appellate Court in all proceedings which may come before either of those Courts to treat restrictions contained in the Crown- ■ grant mentioned in the case stated as valid and binding unless and until the'contrary has been finally determined in tho Supreme Court, or- on appeal from that Court, in a suit to which all parties claiming an interest in ' the land-, granted have been made parties. In view of the fact that it appoared from the case stated that the question of the validity of the restrictions affected tho interests of a largo nurilber of other Natives claiming under grants containing similar restrictions, it might not be out of placo to observe that if it should ultimately be proved that tho restrictions, in question were not binding, it was open to question whether the grants could not be recalled by tlio Crown. Ho mentioned that matter merely in order to. draw to it the. attention of those whose duty it was to. prevent improvident Natives from becoming landless and a burden upon the State. Tho Court declined to express any'definite opinion upon tho subject as to whether, the restrictions wero lawfully imposed by the Crown. It considered that tho partios'interested should settle tho matter by a suit in tho Supremo Court, or by a case stated to tho Court of Appeal. At the hearing of the cases Mr. D. M. Fiudlay appeared on behalf of the Native Department

MOTION TO DISSOLVE AN INJUNCTION.

Sitting in Banco on Saturday. morning, Mr. Justice Cooper partially heard the casn of "W. Corry (appellant) v. W. 13. Gicson (respondent). Mr. T. Young appeared on behalf of appelland and Mr. T. S. Woston for tho respondent.

• This was a motion to dissolve an injunction granted to restrain the sale of a 'piece of land in tho Waikato by Corrie, who was tho mortgagee of tlie land, and who claimed that a breach had been made in. the terms of. his mortgage. The injunction was granted upon an application by Gicsen, who alleged that he had made an arrangement by which tho time for the payment of the interest was to be extended. _ The ground of the motion to dissolvo the injunction was that no such arrangemont had ever been made.

His Honour adjourned the case until Tuesday next at 10.30 a.m., when, if it is found to bo necessary, evidence will bo called.