TRANSFER OF NATIVE LEASE

Gisborne Times, Volume XXIX, Issue 3294, 12 August 1911, Page 11

TRANSFER OF NATIVE LEASE

KOPAATUAKI NO. 2 BLOCK.

REFUSAL TO REGISTER WRONG.

AN IMPORTANT JUDGMENT. fSfECIAI) TO TIMES.! WELLINGTON, August 11. More than ordinary interest attaches to the decision of the Supreme Court in the case concerning the transfer of the lease of a. block of Native land known as Kopaatuaki No. 2 Block in this district. The facts in. this case were that the land in, question (1496 acres) is land held in: fee simple under the provisions of the Land Transfer Act by certain Maoris, who. have keen constituted a body corporate, under the. name of ‘ ‘The proprietors of the Kopaatuaki Block No. 2,” by a memorandum of lease dated December Bth, 1906. This body corporate leased these lands to Mr. Donald McDonald, of Gisborne. The lease was duly registered under the provision of the" Land Transfer Act, 1908. Its validity has not been questioned. On September 30th. 1908, Donald McDonald transferred the lease to Robert Henry Lawrence Oldfield, of Tologa Bay. On June 27, 1911, Oldfield in turn executed a transfer of the lease to Norman McFarland Fulton of Gisborne. On June 17, the transfer to Fulton, was tendered to the District Land Registrar for registration. The District Land Registrar refused to register the transfer, giving his reason in writing as follows: “Re transfer of lease Oldfield to. Fulton, registration of above transfer is declined on the ground that the transferee is haired by section 193 of the Native Land Act, 1909, from acquiring the land, inasmuch as it is second-class land and exceeds 1200 acres.” To-day judgment was given as regards the summons calling upon the District Land Registrar at Gisborne to show cause why he should not renter the transfer of the lease. Them Honours Justices Edwards and Chapman held that the transfer must be. granted. His Honour the Chief Justice, dissenting When the case was before the Court Mr. Morison cf Wellington (with Mm Mr. J. W. Nolan, of-Gisborne) appeared in support of the tw P la?mSSd Ll,m ,granted, and Mr J. W. Salmond (the olicitor-Gcnera!) for the Distnc r.niui Registrar in opposition:. Ij M? Justice Edwards, in tire course of a most interesting review of the L.v relating to Native leases, said that it wl; admitted that the tmns er«r 1u 1 ; ton does not own an othei, land tlia included in the lease, the transfer of which the District Land Registrar has refused to register. The objection of the District Land Registrar was not that the lease could not be transferred to Fulton, but that it could not be transferred to anyone. The question was whether or not. this objection vas sound in law. Section 193 of the Native Land Act, 1909, upon which the District Land Registrar relies for the ground of his refusal, was as follows (193):

(1) It shall not be lawful for any person to acquire any Native fieehold land as the beneficial owner, lessee, or sub-lessee thereof, whether at law or equity, and whether solely and jointly or in common with any other person, if the lands acquired by him together with alii other land (whether Native. Emopean or owner lessee or sup-lessee thereof, whether at law or in .equity, and whether solely or jointly or in common with any other person) exceeds a total area of 3000 acres, calculated in the . manner hereinafter provided in this part of the Act.

In this part of this Act, continued His Honor, the term “beneficial order includes (though not to the exclusion of any person entitled in remainder) a person 'beneficially entitled as tenant for life or as owner of any other freehold estate or interest less than the fee simple, whilst nothing in this section smut apply to the acquisition of any imeiest in Native land under a will er by way of intestate succession. It was obvi- t ous that if the lease in question in the j present case comes Avithin. the prohibition of this section the rights of Oldfield, the present OAAmer of the lease, had been prejudiced without notice to him and Avithout compensation. It was not unimportant to notice that Oldfield has acquired his rights under an instrument duly registered under the Land Transfer Act, and there was not the smallest suggestion of any impropriety on his part or on the part of the leasee (Donald McDonald) through Avhom: he claims. If the contention.of the SoliAvho supported the view advanced by the District Land Registrar AA-ere to prevail it must be at the expense of striking a heavy bIoAA- at public' a confidence in the security of tenure of land honestly and lawfully acquired, and in the safety of titles duly reglistlered under the Land Transfer Act. If it was' possible to put any other construction upon the enactment in question that construction should certainly be protected, and it might he adopted Avith the confidence that it expresses the true intention of the Legislature, or at least it more nearly approaches that intention than does the ’construction for Avhicb the -SolicitorGene nal had contended. Rights Claimed by Applicant. The Solicitor-General, it was true, contended that upon the construction Avhich he asked the Court to put tipon the statute there A\ r as noi serious infraction of private rights, because under section 203 the Governor might, by Order-in-Council, in any case _ Avhich he deemed expedient in the public interest to do so, authorise any acquisition, alienation, or disposition of Native land, or of any interest therein, notwithstanding any of the provisions of this part of this Act. To this the Counsel for the applicant had replied that he objects to have the quality of alienability taken from his land lawfully acquired even thouse there be a provision, under Avhich prohac vice that quality might possibly be restored to it by the Executive Government. It was impossible not to feel the force of this objection, but there Avas another observation Avhich' might be made on this ma tter. If there were any principle of public policy su cient to justify an enactment Avhich in the sense for Avhich the Solicitor-General contended was S o serious an infraction of private rights, and Avhich construed in that sense must necessarily so seriously shake pulbic confidence in the security of the tenure of landed jiroperty in this country, then it Avas almost inconceivable that the Executive Government could ever be justified in applying section 203 to the case. There could, of course, be no question that this Act read as the Solicitor-General reads it had a retrospective operation in taking aivay from leasehold estates heretofore laAvfully created the essential quality of alienability. The mode in which the con-

struction of such a. .statute should bo approached had been well, stated iby Mr Justice Kewicb in re Chapman (1906) 388,323, at p 327, in these words: “There are -many cases upon the general doctrine whether an Act of Parliament may be read retrospectively or not, and there are many cases upon the meaning of particular statutes.” The Duty of the Court.

But one lias the general law concisely stated by Lord Hat'herly in his judgment in Pardo v. Bingham' L.R. 4 Cii. 735-739, where he says: “The. question is secondly whether, upon general principles, the statute ought, in this particular section, to be held to operate retrospectively, the general rule of Jaw undoubtedly being that except there be a clear indication either from the subject matter or from the wording of a statute, the statute is not. to have a retrospective construction —otherwise you assume that it is not retrospective. But you may find that presumption rebuffed' by a consideration of the subject matter or by the language of the statute.” Then, on the next page, he says: “In fact, we must look to the general scope and .purview of the stj.tute and at the remedy sought to be appjlied, and consider wlhat was the former state of the law and what it was that the legislature contemplated.” Of course, that opened up a wide field of inquiry, but no words could express better than those of Lord Matlicrley what the duty of the Court was. Beyond this, it must be remembered that if this statute bore the interpretation put upon it by the Solicitor-General it was a statute taking away private rights, and that it was a rule tnar mi statute should be so interpreted unless the private right was taken away in direct language. The case of Walsh v. Secretary of State for India, 10 H.L.C. 367, 11, E.R. 366, was a striking example of this rule. We had also to remember that upon that' construction the statute was a statute taking away private rights without compensation. Great Master Quoted. To the consideration of such a stutute we may well apply the language of that sturdy Englishman and great master of the common law, Lord Bramwell, then Lord Justice Bramwell, in Wells v. London, Tilbury and Southend Railway Co. o C.D. 126, at P 130: “I agree that we ought to construe this Act of Parliament according to the fair meaning of the words, even supposing the true construction of the Act does an injustice to the parties. But we may well approach the construction of an Act of Parliament of this kind in the belief that it was not intended to confiscate a private right; for this would be a simple case of confiscation, and we ought not to suppose that this was intended by the legislature or sought for by the railway company. The statute . recites that it is expedient that the rights of way therein mentioned should be extinguished, but it certainly is not expedient that a private right should be taken away without making compensation. The legislature in an act providing for the execution of public works never takes away the slightest private right- without providing compensation for it. and the general recital that it is expedient that works should he done is never supposed to mean that in order to carry them out a man is to be deprived of his private rights without compensation. Confiscatory Provision.

“Approaching the consideration of the Act now before the Court by the light of the principles of construction so laid down,” said Mr Justice Edwards, “I find that it- is an Act to consolidate and amend the law relating to Native land. It is, I take it, an Act intended for the ascertainment of Native titles and for regulating the succession to and the disposition of lands held by Natives. Many subordinate matters are incidentally dealt with, hut always, I think, with a view to furthering the main purpose. There have been many such Acts, but never before, I think, one which has confiscated interests held in Native lands by Europeans in strict accordance with the law and Avithout the faintest suggestion of impropriety. Proceeding then to part XII., of Avhicb the section to be interpreted is the earliest, I find that if the freehold of this land bad been sold and transferred at the date of the lease which A\-e have before us, there is no pretence that it could be affected by this part of the Act. The SolicitorGeneral admits this, hut he says that nothing is to be inferred therefrom, because upon the sale the land Avould cease to be Native freehold land. The AA r ords ‘Native freehold land’ as used in - this statute ' mean simply freehold' land owned by Natives. It Avould he just as reasonable and just as easy to interfere AA'itb the rights of freeholders who haj purchased from Natives as to interfere Avith leaseholders who have taken_ leases. The Solicitor-General is right in saying that under the arbitrary definition given by the interpretation clause ‘Native freehold land’ becomes ‘European land’ upon its sale and conveyance to a European. Is it Fair and Politic?

He is also- right in saying that under the_ same arbitrary definition the land subject to the lease before this Court is still ‘Native freehold land,’ because the reversion upon the termination of the lease is still oivned by Natives ; but the Solicitor-General does not say, nor can anyone say, A\ T hy it should be fair and politic to, in a- great measure, confiscate freehold interests derived from Natives, while ,at the same time alloiving freehold estates, acquired possibly from the same Natives and at the same- time- to remain unhampered. So far as this question goes, there is l mo' distinction ■between the freehold estate and a . leasehold estate, except a distinction, in words and in- words read in the artificial meaning given to them by the Act. Turning then to section 214 of the Act I find this enactment,; “Nothing in this A ft shall take -awav or affect any right existing at the commencement of this Act to the specific permanence of any contract for the alienation of Native land or to the enforcement of any equitable interest in Native land, and every such right shall: be enforceable' and may be acted on and carried into full effect, in the same manner as if this Act had not been' passed.’ I proceed then to the consideration of section, 193 by the light of these facts— Yl) That' the applicant claims under a transfer of a lease duly registered under the Land Transfer Act prior to the commencement «f the Act, and that that lease- admittedly complies with all the reouisites of the luav. (2) That if he claimed under a con - Amvance. of th-ei same, date as the lease and executed bv the same Natives-, his rights would have remained entirely unaffected by the Act-. (3) That if lie claimed under an a°reemeirf bv the. Natives to grant a lease executed prior to the Act he could hav-q enforced the contract by a suit for specific performance. , A Striking Distinction. Notwithstanding the provision of Part X of the Act, all rights cf this nature are carefldly preserved by appropriate language in: section 214. T find by section 193 it is forbidden ‘To acquire any Native freehold land as the

beneficial owner.' I pause here to observe that this 'can only mean a dealing Avith a Native or Natives because the moment that ' ‘ Native freehold 1 and' is oonveyed to any person not of the Maori race it becomes ‘European land,' whether the purchaser is European, American, African: or Asiatic. Proceeding Avith my examination of section 193, I find that the full prohibition is ‘To acquire any Native freehold land as beneficial owner, lessee, or sublessee thereof.' I have already established that this prohibition so far as it extends to conveyances or transfers of freehold land is * a prohibition against dealing with Natives. Bearing this in mind, and bearing in mind that the rights of purchasers prior to the Act. of Native freeholds are excluded from the operation of this section and that the rights of those claiming under contracts are carefully preserved by section 214. I am unable to doubt that the remaining AArords of the prohibition' also refer to dealings Avitli Natives. The case is one in Avliich the maxim noscitur a sociis is applicable, and should' be applied.

What Section 193 really means. Section 193, in my opinion, means (and should be read ae meaning): ‘lt shall not be lawful for any person. to acquire from any Native any freehold land as the beneficial owner, lessee, or sub-lessee thereof, etc.' “I hardly think it necessary to invoke the principles Avhich' regulate the construction of statutes Avhich are capable of being read as having a retrospective effect or as infringing private rights, but if it is necessary thqse principles are applicable in my opinion they put the question beyond argument. _lt Avill be observed that the construction Avhidh I put upon section 193 leaves to that section all the operation which it can properly have. 11 As to all transactions posterior in date to the statute it takes full effect. As to all transactions prior in date t 0 the statute it leaves them as it ought to leave them wholly unaffected. In my opinion there should be an order to the District Land Registrar to register the transfer. The costs of the applicant, thirty guineas and disbursements, should bo ordered to bo paid out of'the assurance fund. If the District Land Registrar lias incurred any costs these should be ordered to be taxed, and Avhen also to be paid out of the Assurance Fund.