NATIVE LANDS COURT.—Satubdat. [Before F. D. Fenton, Chief Judge.]

Daily Southern Cross, Volume XXVI, Issue 4153, 5 December 1870, Page 3

NATIVE LANDS COURT.— Satubdat. [Before F. D. Fenton, Chief Judge.]

The Shobtland Beach : Native Claim thereto. — Mr. Hesketih on behalf of the application ; Mr. MacCormiok for the Crown. —The Court proceeded to give judgment in tins case. It was an application by Hoterene Taipari and others for a certificate of title to a piece of land neat 1 Shortland, bounded towards the east by high-water mark ; south, by a line commencing near the Kauwaeranga Creek ; north, by a line nearly parallel to the southern boundary ; and west, by low- water mark on the Waihou or Thames river. It forms an extensive mud flat; and is not available for use as a highway by persons on foot where the waters have left it, except along a narrow margin near the shore. The j factß as proved in evidence, the grounds on | which the Government opposed the claim, I as well as the arguments urged on behalf of \ claimants, were referred to at length, his Honor saying it was at once evident what a vast range of constitutional and international law the inquiry into this subject mnafc embrace ; and he felt that the Parliament could never have contemplated that the Native Lands Court would have to determine questions demanding so much rpsearch, and involving such great responsibility and such important consequences. Influenced by this thought, he endeavoured to induce the parties to agree to final judgment passed by arrangement in such a manner that resort could easily and immediately be had to the Supreme Court, where alone such grave matter should be decided. But the parties did not accede to thie to this proposal, and Court' was therefore bound to give decision. The whole history of the question involved in the case before the Court was gone into by his Honor, from the discovery of New Zealaad by Captain Cook in 1769, lip to the Treaty of Waitangi, dated 6th July, 1840, which was accepted and signed by " forty-six head chiefs, in presence of at least 500 of inferior degree." By article I. of this treaty, the chiefs ceded to her Majesty absolutely and without reserve all the rights and powers of sovereignty which the confederation and independent chiefs respectively exercised or possessed, over their respective territories, as the sole sovereign thereof. By article 11. the Queen confirmed and guaranteed 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, fisheries, and other properties which they might collectively or individually possess, so long as they wish to retain the same in possession. By aiticle 111. her Majesty extended to the natives of New Zealand her equal protection, and imparted to them all tho rights and privileges of British subjects. In a despatch to Governor Gipps, dated 17th July, 1840, Lord John Russell communicated to him the entire approval of her Majesty's Government of the measures which he bad adopted, and of the manner in which they were ea ried into effect by Captain Hobson. He was of opinion, especially remembering the very clear and almost stringent nature of the instructions given to Captain Hobson, that it was the iutention of both parties to the compact to guarantee to the aborigines the continued exercise of whatever territorial rights they then exer» cised in a full and perfect manner^ \mtil they thought fit to dispose of them to the Crown. In the case before the Court, cousistent aud exclusive use of the locus in quo from time immemorial had been clearly shown. Itwaa very apparent that a place which afforded all times, and with little labour and preparation, a large and constant supply «£ almost the only animal food which tf* eye(y c(m lj{ obtain, was of the greatest possible value to them-of very much, value and importance to their existence than any equal portion of laTtf O n terra firma. It was easy Z un , derBfcand w hy the word "fisheries" should appear so prominently in the instrument by which they admitted a f reign authority to acquire rights of sovereignty over this country. The real question was one of fact : was the land now claimed, at the da,te of the Treaty of Waitangi, a fishery collectively or individually possessed by aboriginal natives ?— for, if it was, the full, exclusive, and undisturbed possession thereof is confirmed and guaranteed to the possessors by the Crown of England, and this fact was clearly proved. With respect to the treaty, the first idea that suggested itself was that this guarantee was >he maiu consideration for the cession of the sovereignty of this island. The Court was of opinion that if the word " fishery " were not present in the treaty the won* "land %> would not suffice to support * claim by the natives to the foreshore. Vie could not contemplate without uneasiness the evil consequences which - m \ ght arioe from judicially declaring tfo»*, the soil of the foreshore of the colony \vould be vested absolutely in the natives if they could prove certain acts of ownership, especially when he considered how readily they might prove such, and how impossible it was to contradict them, if only they agree among themselves. He expressed his hope that a case of so rauch importance would not be allowed to rest on the opinion of any Court, except o, Q that of the highest in the land. Lord LyUelton's maxim, that " The honour of the King is to be preferred to his profit/ h a fl no t been forgotten ; but it appeared to the Court that there could be no failure of justice if the natives had secuTedtother^ t he full, exclusive, and undisturbed possession of all the rights and privileges ov^. the locus in quo which 71 rt^ eir ar -cestors had ever exercised; and the Conrt so determined, decl-ning to make ao order for the absolute property of the Soil, at least below the surface. The tact that the Government had been negotiating for the purchase of their right was not needed to strengthen the case of the claimants, for it had not appeared what rights theGoveraraent recognised ; and they might be the same as the Court awarded. He had made j no allusion to the Goldfields Act, of 1868, for the provision contained therein was limited to "the purposes of that Act;" and the Shortland Beach Act, 1869, simply kept things as they were, evidently to gain time for Parliament to setcle the question by legislation, which it had not done.— ln answer to the Court, Mr. MacCormick Baid he should like to have time to consult with tho Government whether they were willing to take this question into the Supreme Court.~His Honor honed this course would be adopted, and so set at rest one of the gravest matters ever set before a Native Lauds Court.