The Gisborne Times PUBLISHED EVERY MORNING. WEDNESDAY, AUGUST 16, 1911.

Gisborne Times, Volume XXIX, Issue 3297, 16 August 1911, Page 4

The Gisborne Times PUBLISHED EVERY MORNING. WEDNESDAY, AUGUST 16, 1911.

There is one important phase of the Kopaatuaki Block No. 2 case which it is not surpris- ■ ing to learn is being widely discussed. In this regard it will be recalled that tire chief point at issue was whether the Native Land Act, 1909, had a retrospective operation, taking away from leasehold estates theretofore legally created their essential quality of alienability. As will have been noted, the Supremo Court by a majority verdict, His Honor the Chief Justice dissenting, decided that tire statute in question did not apply retrospectively, and ordered the grant of the transfer of the lease of the block which h previously been refused. What is exciting special attention with reference to the proceedings is the attitude which was taken up on behalf of the Crown on the subject. This was in effect that even if the applicant for the transfer were debarred under the law as it at picneut stands there was really no serious infraction of private rights, because under section 203 “the Governor may by Order-in-Council in any case in which ho deems it expedient in the public interest to do so authorise any acquisition, alienation, or disposition of Native land, or any interest therein, notwithstanding any of the provisions of this part of the Act.” No doubt the solicitors for the applicant were well aware that it was open to him - under this provision to apply for an Order-in-Council. Had he so chosen, applicant might, of course, have taken proceedings to establish his legal right to the transfer only in case the request for the Order-in-Council bad been declined. But it will also have been observed that the applicant preferred to act upon what appears to have been very sound advice, viz., that he should object to have the quality of alienation taken from his land lawfully acquired, even though there be a provision under which proha c vice, that duality possibly be restored to it by the Executive Government. As Mr. Justice Edwards, in his interesting judgment in the case, emphasised, it will, we think, be agreed that it is impossible not to feel the force of this judgment. “If,” said his Honor, “there is any principle of public policy sufficient to justify an enactment which in the sense for which the Solicitor-General contends is so serious, any infraction oi private rights, and which construed in that sense must necessarily so shake public confidence in the security of the tenure of landed property in thL country, then it is almost inconceivable that the Executive Government could ever be justified in applying sec. zO3 (relating to the possibility of authority under cover of an Order-in-Council) to the case.” It is not- at all unlikely, we should say, that if the applicant had agreed not to test the matter he would have got an Order-in-Council. But supposing his action had failed, we wonder if the Government would then have proved so generous as to have approved the transaction ? In view of the importance of the question, the bringing of the action has undoubtedly been in the public interest. Where there are other cases in which the circumstances are similar, those concerned need now feel under no special obligation to the Government of the day. As counsel for the applicant argued: “Why should any member of the public have to go to the Government and seek as a favor what the law has already given him as a right?” In connection with this aspect of the case, the “Dominion” in particular was not very merciful towards the Government. “The reason,” said that journal, “is quite plain. The Government wishes to retain its power of patronage in respect of Native, lands transactions just as it does in all other matters. Anyone who has had dealings in Native land knows how swiftly obstacles can be removed by the Government from the path of the man of the light color politically; and how simple it is by means of delays, due of course to oversight, and the raising of difficulties innumerable, to penalise and perhaps block altogether the man who is suspected of being out of sympathy with the powers that be. In the case under discussion a most dangerous principle was fought for by the Crown. As Mr. Justice Edwards put it: it meant, if successful, striking a. heavy blow at public confidence in the security of tenure of land honestly and lawfully acquired and in the safety of titles duly registered under the Land Transfer Act.’ And the Government was prepared to strike this blow—to confiscate this or any other similarly situated Native land leaseholder’s right—m order to maintain and extend its power to bestow favors or to repay affronts. It is only another step to say that no one who has purchased the freehold of Native land—no matter how long ago —shall be able to dispose of it without the consent of the Government. And another step further and no one will be able to sell or buy land at all without first obtaining the gracious consent, of Ministers. Nothing could be more destructive of confidence and more damaging to the Dominion than such attacks on ‘the security of the tenure ol land honestly and lawfully acquired’ and on ‘the safety of titles duly registered under the Land Transfer Act.’ ” But this Order-in-Council business can be overdone, as the Hon. G. Fowlds lias just been pointedly reminded bv the decision of the House in Committee to eliminate from bis Town Planning Bill certain powers of veto on the part of the Government.

A Dangerous Principle.