LAKE OWNERSHIP

Hawke's Bay Tribune, Volume XXIII, Issue 75, 10 March 1933, Page 10

LAKE OWNERSHIP

MAORI OCCUPATION TREATY RIGHTS INVOLVED. i J NORTH AUCKLAND (I,AIM. Kaitaia, March 8. An interesting case concerning the ownership of the Tangonge Lake bed, better known as the Kaitaia Lake, was heard in the Native Land Court at Roma, Ahipara, before Judge Acheson. The claimants were Wircmu Rapihana, Herepete Rapiliana, Wairama Maihi and others. The area in dispute is approximately G 93 acres, of a value of probably £lOOO. After hearing the evidence His Honour said he would give judgment immediately. but in view of the great importance of the case to the u hole of the Maoris of New Zealand, owing to its association with the Treaty of Waitangi, he proposed to give a written judgment as well as a precautionary measure in caje an appeal was lodged by the Crown, as had happened in the case concerning Lake Oniupcre. No question of the Crown’s prerogative arose in the case of Lake Tangonge, said His Honour. It was just a case of the Court having to decide all matters at issue apart from any overriding interests of the Crown. The proceedings were taken under the Native Land Act, 1931, which said than the Court had exclusive jurisdiction to investigate customary lands, in accordance with the ancient customs of the Maori people as far as they could be ascertained. It was specially provided that natives had the right of having the case of customary lands investigated by the Court, irrespective of the rights of the Crown, and the Native Land Court was the only Court in New Zealand that had jurisdiction in these cases. ANCIENT CUSTOM UPHELD The question arose, did the ancient custom and usage of the Maori recognise ownership of the beds of lakes? The Court held that they not only own. ed the beds but the lakes themselves, as a bed was only part of the lake, and if the bed were separated from the lake it would be like separating the soil from the rocks of a mountain. In olden days it would have been regarded as a good joke by the old people if they had been told that they owned the lake, but not the bed of it. Authorities showed that a lake was simply land covered with water and was as capable of being occupied as land covered with forest. The Court was well aware of the | value of a lake or swamp to the Maoris as a source of food supply, and the fact that Lake Tangonge had been used as such was very strong evidence of occupation. There they got supplies of shellfish, eels, etc., and the lake was therefore of great daily value to the Maoris. With little labour or pre- ! paration, a constant supply of food was available. A lake was sometimes of more value to the Maoris than a similar area of dry land. In the Taupo district was to be found a blindfish, not found anywhere else in the world. Through underground channels they came down in millions from Lake Rotoaira and were caught at the shore. For 400 years families had their own lake outlet where they caught the fish, and this established one of the strongest claims.

| Again, in the case of Lake Omapere i it had been conclusively proved that ! natives could occupy lakes and own them. Under the Treaty of Waitangi, the Court had no hesitation in holding that this occupation was effectual, continuous, unrestricted and exclusive. The Court was satisfied that for many generations past the natives of this district had been in possession of Lake Tangonge and lands adjoining that lake. They had lived around its shores and treasured it. They had built eel weirs, and gathered raupo and flax, all satisfactory evidences of occupation. The evidence given had been quite conelusive on that point. TITLE NEVER EXTINGUISHED. Continuing, His Honour said that the native title to papatupu land must be taken into account unless it could be shown that it was extinguished. This was not the case with Lake Tangonge, where the title had never been extinguished or ceded to the Crown. It was, therefore, native customary land. No proof whatever had been given by the Crown to establish ownership of the lake. The fact that the Crown owned adjacent land did not give it any claim to the bed of the lake. The Crown was not allowed to buy papatupu land, and it was clear that ac. cording to ancient Maori custom none of the individual owners was allowed to sell papatupu land. Was the Native Land Court bound to take cognisance of the Treaty of Waitangi, ami had that treaty been given statutory recognition by the Legislature of the Privy Council? His Honour asked. The treaty, he said, was signed in 18-10 and had not been set aside. The treaty had been recognised by Imperial Statute, and by the Land Claims Ordinance of 1841. In a former case Mr Justice Chapman said that the Treaty of Waitangi was imposed upon the colony as a sacred trust, and the treaty had culminated in a long series of enactments. That being so, it was the duty of the Court to take judicial notice of the Treaty of Waitangi. It was its duty and privilege to protect the natives not only against themselves, and unscrupulous Europeans, but against the Crown. ATTITUDE OF THE CROWN. Fortunately, the Crown wished to see justice done to the Maoris of New Zealand, said His Honour. He did not know of a single instance to be contrary. Another question which arose was whether it was contemplated at the signing of the Treaty of Waitangi that Tangonge and other lakes would pass over to the Crown. The Court held that this was not contemplated Concluding. His Honour said the Court held that the Maori occupation of Lake Tangonge had been continuous, unrestricted and effective since the signing of the Treaty of Waitangi, and that the rights of the Maoris had never been challenged. The Court held that the carrying out of drainage operations by the Land Drainage Department did not constitute an adverse right against the Maoris. The Court was satisfied that the requirements of the Native Land Act, 1931, regarding customary lands had been fulfilled, and bad no hesitation whatever in ruling that Lake Tangonge was native customary land under the Act of 1931. As no objection had been lodged it was clear that the land belonged to the natives. Finally, the Court directed that a list of owners and claims be submitted to be dealt with later.