NEW ZEALAND NATIVE LAND LAWS.

New Zealand Herald, Volume XXXIX, Issue 11854, 4 January 1902, Page 5 (Supplement)

NEW ZEALAND NATIVE LAND LAWS.

[FBO3I OUR OWN CORRESPONDENT.] 1 London, November 15. Last law term an important appeal, relating to the native tribes Of New Zealand, was argued before the Judicial Committee of the Privy Council, Mr. Haldane, K.C.. and Mr. C. B. Morison (of the New Zealand Bar) being for the appellants ; and the Hon. E. Blake, K. (of the Canadian Bar,. and the arbitrator in the New Zealand Midland .Railway case), Mr. G. R. Northcote, and Mr. T. W. Lewis (of the New Zealand Bar) for tie respondents. Judgment in this case Was , delivered on Saturday last. ~The case -Vas Te Teira Paea and others v. Te Boera Tareha and others. - i In delivering the judgment Lord Bradley 7 'said tho, question to be determined was whether a Maori chief named Tareha, ,to whom certain lands known as. the Kaiw/ka Block were allotted by the New Zealand/iovarnment:; in ; June, ; 1870, /was entitle'/ to those lands beneficially, or whether he'was a trustee of them for other natives. ,/ The S'utfge then went over the history ft the Jew Zealand Settlement Acts, under/which districts wero confiscated, : and proceeded to say the Government was willing to grant out lands in the district to loyal natives, . and to others who should come in ohd submit j within the time mentioned in the proclama-j tion. Their' title, however, to/the lands granted to them would depend entirely on the -terms of their. grants. :.y '/he district formed under that proclamation was called the Mohaka and Waikare district : or block. Hi included the Kaiwaka Bled;, which was , M question in ; the, appeal. Thit block contained : 31,200 acres, or; thereabouts. On November 18, 1869, the following letter of instructions was sent by Sir Donald McLean on behalf of, the Government to Mr. Locke, tli3 resident magistrate for that part oi the colony: —" Auckland, . November 18, 1869, Si}, —I have the honour to request that you .will carry out-the settlement of the WaikareJfohaka Block. ; The Government do not expect, or, indeed, desire, to reap any pecuriary or other: advantage from ■ the confiscation of this block, or to incur any loss in / collection therewith, but it is most desir- : aUe; that, all questions conected with it Bhculd be finally adjusted and disposed of. iYo» will .!, therefore endeavour to effect as equitable a settlement with the natives as possible, taking care that large reserves are made for their own use. The chief Tareha, who b; becoming dispossessed of most of his landed property, should have reserves secured upon him within that block. I need : not supply you with more detailed instruc- ■';); tions, as you are already acquainted with ;■[! the hiitory of this block, and I feel satisfied ': that y>u are fully competent to deal with it in slid a just and equitable manner as will meet the requirements of the case. ; You will, of course, in this, as in all other cases, confer with , His Honor Mr. Ormond, who represents-'the. general Government at Hawk*'s Bay, and act in accordance with his ) views in carrying out : these instructions. I have, etc., Donald McLean. S. Locke, ; (Esq., R.M., Napier, Hawke's Bay." : In ac- ! oordar.ee with those instructions a meeting !©f natives was held, and a formal agreement ; was come to with them on June 13, 1870. That agreement stated that the whole block : shall be subdivided into several portions, i as shown by the tracing annexed. The Go'vernment shall grant certificates of title for •the several portions to the natives mentioned in the following schedule.'- That the whole of the land shall be made inalienable, both as to sale and : mortgage, and held in trust in: the ; manner 'presided, or hereinafter to be ; provided,: by the General Assembly for native lands held under trust. (Signed by 32 ; natives.) 'Schedule.—Of blocks to be re- : tained by natives in Waikare-Mohaka Block, 'with" names of persons whose names are to be inserted in Crown certificates.'" The expression "held in trust, etc.," had given rise to much controversy, and this appeal would be found ultimately to turn on its real meaning. The schedule containing the names of the blocks and the persons to whom certificates were to be given was very important. .Thirteen blocks were named. Kaiwaka being one of them. The terms: of the agreement itself showed that the persons to whom lands were to be granted were to derive thir title from- the Crown. The Act said the grants Were to be to them in fee simple expression quite inapplicable to lands held by na- '•. tive custom.' All the blocks except Kaiwaka were to be granted to more than ten persons. There was no reference to any native custom, , and the trust referred to in the agreement did not point .to any definite class of persons, but .to "the manner provided or to be ; provided by the General Assembly for native i lands held under trust." The trust, therefore, must be. found in some.Act of the General Assembly, and could not be got at by reference! to native customs or to enactments relating to native lands generally. Trusts of lands were recognised in New Zealand, but their Lordships had not been furnished with any materials for coming to the conclusion that the General Assembly had ever declared .that the lands , mentioned in the agreement were subject to any trusts in, favour of the appellants.-- The Act of 1870 plainly treated the persons named in. the schedule to the agreement/ and, if dead, then their successors, as entitled to grants in fee simple, but subject to. the restrictions mentioned in section 5. In 1880 the chief Tareha died, leaving a will devising his lands to the respondents and four other natives. In 1881 a. colonial Act, called the Native Land Acts Amendment Act, 1881, was passed to. supply certain omissions in the Acts relating to native lands. Sections -7 to 9 related to the Mohaka-Waikare district. Section 7 referred to the Order-in-Council of January 12, 1867, and the formation of the district, and to the agreement of June 13, 1870, and the. Act of 1870, and stated that the lands to be retained by the Government had been surveyed arid" were by that Act vested in the Crown, and that the Act of 1870 had been repealed. * It appeared to their , Lordships ■plain that the persons to whom certificates were to be given, and grants made -. under that Act; were the persons named in the schedule, to "the agreement of June 13, 1870, and the successors of those of them who might be /lead. 1 The idea that the grantees were to hold in trust for an unascertained and practically unascertainable class of natives who were loyal in the old rebellion or, who came in and submitted within a reasonable time after January 12, 1867, appeared to their Lordships to be too extravagant to require serious comment. The Maori Real Estate Management Act, 1867, provided for the appointment of trustees of the hereditaments of native infants, lunatics, and others under legal disability, and for the management of such hereditaments by the trustees. Trusts were also referred to in several other r Land Acts, and the : reference to the legal . estate in the Act' of 1881 merely indicated that the grantees or some of them might be trustees of their shares" for other persons, and that the Legislature was only dealing with j the legal title. After that Act was passed on July 6, 1882, an order was made for the issue of a certificate to the chief Tareha in I respect of 'the Kaiwaka Block. The order j was made in t*ie presence of a chief, who alleged that there were many loyal natives not named in the agreement: : of June 13, 1870, who: claimed to be interested! in the lands mentioned in it. On July 10, 1882, a minute of that order was made for the issue of a certificate in favour of Tareha and title to vest from September : 12, 1870. Statutes : existed authorising grants to be made out in the names of the persons originally entitled to them, although they might be dead. (See Crown Grants Act, 1866, section 34.) ■ The judge who made that order wrote to the Native Minister giving a report of the proceedings before him, and stating the reasons for his judgment, and what he told the chief who addressed the Court. The judge's report says:—-"I told him that the agreement of June 13, 1870, was entered into between the ; Government of the colony and the nativess-Bamed in it, and that : it , had twice been'"declared to be ; valid by Acts of Council, and that the Court could not now go behind it so as to inquire whether any ->.error bad crept into it, and that the only : persons who could now be 'recognised ;as "v having interests in the land, were those named • in the agreement, or the successors of any % who might now be dead." The native chiefs protested and were ; told they must petition Parliament if they ; were advised to do so. .' Th*v declined to assist the < Court :; in any ..'; wwy". ;[■■: The r names - in V the ; agreement were thee read out, and orders >. were made for the :' isroe of certificates "to them, the estates to be >;vested r as from" September: 12, v 1870, when the above-mentioned Act came into operation. It was to be observed that the order feat referred to directed that Tareha should .be entered in the register as "the owner

according to n/ive custom." That looked as if the land/was to be treated as native land (see the iative Land Act, 1873, section 3), but it ww plain that; the judge did ; not p suppose tha/ : the words created any such j \ trust as was&sserted by, the appellants..; On 1 a| May 20,18&, a succession order was made by ] : the Nativ/Land Court' in the matter of the t- deceased^ti ief Tareha, and of the supplica-; i tion of 'frtain natives claiming to be inter- ' ested vt his estate. On the 171 of July, !e 1896, /he plaintiffs (and appellants) com- ■' merice/the action again the defendants (and d respondents). By their original and amended j 7 claim the" plaintiffs ; prayed inter alia that': it V inigli be declared .that Kaiwaka was held j by -Jareha; as ' a truste: for the loyal owners A aceffding to native custom, and usage; that d an/nquiry might; be had as to who such per- -) so/s (the natives beneficially entitled) were, e a/d for that purpose a reference might :be | e Md to the Native Land Court. On July 5, /898, the action, came on for hearing in the * .Supreme Court, and, upon the answers given 7 by the Court of Appeal, judgment was given / by the Supreme Court for the respondent. [ J From that judgment the plaintiffs had, by ,' special leave, appealed to : His Majesty in Council. The judgment of the Supreme Court ' was based upon two grounds—viz. (1) that , all the lands comprised in the Mohaka and , Waikare district were forfeited to the Crown , by /reason of the : rebellion, and could be , retained by the Crown or granted out by it \ as it pleased, and that such lands were not native lands within the meaning of the Na- / tive : Land Acts after the ; proclamation of ' January 12, 1867, was made; (2) that the . title of the plaintiffs or other natives to such of the lands comprised in the district as were not retained by the Crown must be decided by the terms of the agreement of \ June 13, 1870; and (3) that, notwithstanding the use of the word trust in that document, no such trust as is contended for by the appellants was created by it. Having come to that conclusion' it was unnecessary to consider any of .the other questions raised. Their Lordships concurred with, the Supreme Court on both the above points. The appellants' counsel felt the difficulty of establishing any trust on the numerous allottees of all the blocks; but they considered that there was such a trust in the case of the Kaiwaka Block. Their Lordships saw no reason for drawing any .distinction in that respect between one block and another. The allottees of each block must be treated/as the only persons entitled to them under the agreement. In this case the expression in the agreement of June 13, 1870, , appeared to their Lordships to mean no more than-that if any of the lands were subject to any trust they "wero to be held subject to the laws regulating the conditions and trusts on which native lands were held. Their Lordships would, therefore, humbly advise His Majesty to dismiss the appeal, and the appellants must pay the costs, but the respondents must bear the costs of their abandoned petition praying for the, diechargo of the order of July 14, 1899,' giving the appellants leave to appeal without finding security.