WHOSE PROPERTY?

New Zealand Times, Volume XXXVI, Issue 8181, 24 July 1912, Page 2

WHOSE PROPERTY?

THE CROWN’S OR THE NATIVES’ 7

OWNERSHIP OF LAKE ROTORUA

IN QUESTION

TREATY OF WAITANGI INVOKED.

Who owns the bed of Lake Rotorua, and, consequently. Lake Rotorua itself ? This was a question involved in a special case which came before the Court of Appeal yesterday.

On the bench were their Honors Sir Robert Stout (Chief Justice), Sir Joshua Williams, Mr Justice Edwards, Hr Justice Chapman, and Mr Justice Cooper. The parties to the action were Tamihana Korokai, of Rotorua, on behalf of himself and all others who are owners according to native custom and otherwise of the land covered by the water known as Lake Rotorua, plaintiffs, and the Solicitor-General, defendant.

Mr C. P. Skerrett, K.C., with him Messrs C. B. Morison and G. H. Fell, ajipeared for the plaintiffs, and the Solicitor-General (Mr J. W. Salmoud) with him Mr H. H. Ostler, appeared in his own behalf.

No part of the bed of the lake has at any time been the subject of investigation of title in the Native Land Court nor has a Crown grant at any time been issued in respect to any part of it. The island of Mokoia in the centre of the lake is native customary land (the native title having never been ascertained or extinguished), and the island is now subject to the provisions of section 9 of the Thermal Springs Districts Act, 1910. Some portions of the land adjoining the bed of the lake are native customary land, other portions are Crown land, other portions are held in freehold title by Europeans, and the residue is native freehold land. Prior to the year 1881 all of tho land adjoining the bed of the lake was native customary land, except an area of 318 acres, called Te Ngae, which has been granted by the Crown in fee simple (with tho concurrence of or upon cession of the native owners) to the Church Missionary Society. At various times between the years 1831 and 1886 the title to most of the land adjoining the bed of the lake was investigated by the Native Land Court, and certificates of title under the Native Land Court Act, 1880, were issued in respect of the several parcels, tho title to which was so. ascertained. In the year 1894, on tho coming into operation of the Native Land Court Act, 1894, the land in respect of which Native Land Court certificates of title had been issued became, by virtue of section 73 of that Act, native freehold land, vested in the persons who were ( immediately prior to the passing ot that Act. the native owners, according to Maori custom _ as determined by the certificates of title.’ Tho certificates of title so issued 6y the Native Land Court in respect of tho several parcels of land described those parcels by reference to endorsed plans, which showed each parcel as bounded by Lake'Rotorua. In no case does the acreage mentioned in any such certificate of title include any part of the bed of the lake. Certain portions of the land adjoining tin oed of tho lake have been purchased by the Crown and are now Crown iand, namely, the ukeroa-o-Rua-vhata and portions of tho Mangorewa Kaharoa and Whakapoungakau blocks. The first-mentioned block is the site of the township of Rotorua, and is j abject to the provisions of the Rotorua Town Act, 1907, and of section 10 of the Thermal Springs Districts Act, 1910.

There are many ancient native settlements situated near the shores of the lake, and the existence of these settlements is treated by the Native Land Court and by the natives themselves as the best evidence that the occupiers thereof are the native owners and of the adjoining lands occupied and used therewith according to boundaries recognised by the natives themselves. From time immemorial the native tribes occupying land adjoining the lake have habitually fished in the lake as of right. It is claimed by the plaintiff that defined portions of tho 'lake have from time immemorial been exclusively appropriated as fishing grounds by particular tribes, communities, or individuals. Any such exclusive appropriation is denied by the Crown, and _it is claimed that these native fisheries involve no right or claim of exclusive occupation, either of the whole or of any portion of the lake, and that if any such exclusive occupation ever existed it has long since been abandoned, and that fishing in the lake has for many years been freely practised as of right by tho public, subject only to tho restrictions imposed by the statute law relating to fisheries. No agreement has been made between the Crown and any natives for the sale or cession of the bed. The Crown claims tho bed of the lake as Crown land, free from any proprietary or other right of exclusive user on the part of the natives ; and also claims that it' has at no time recognised any such right as vested in the natives. The lake has for many years been used by the public in common with tho natives as a public fishery and place of public recreation. The right to fish for trout introduced into the lake by acclimatisation societies has been subject to the issue of fishing licenses under the statute law. The lake has for many years been used by the public as a public highway, but it is admitted that the mere fact that natives acquiesce in Europeans using their properties for the ot sport or pleasure is not evidence ot a cession or surrender of their rights to the same degree aa in the case of a like acquiescence by Europeans. The Crown claims that if native customary title at any time extended to the bed of the lake such title has been extinguished by implied surrender, abandonment or cession. The natives claim:—

(a) That the bed of the lake or some part thereof is land held in freehold tenure by those natives as accessory to their trcehold title to land adjoining the bed, and s* included by implication of law in the Native Land Court certificates of title which have been issued as aforesaid and_ in the freehold titles obtained 'by virtue of these certificates of title: or in the alternative: —

(b) That the bed of the lake is customary native land in respect ot which tho Native Land Court has jurisdiction to make freehold orders under the Native Land Act, 1909: or in the alternative:—

(c) That the lake is subject to certain customary exclusive rights of fishing navigation and other user vested in those natives, and that those rights are capable in some manner of legal recognition and enforcement by this court or by the Native Land Court. All these claims are disputed by the

Grown. Among the questions submit .od for the decision of the court ari no following;— Does the freehold title to the lane idjoining the bed of the lake includ. the bed of the lake, or any portion; thereof ? Is the bed of the lake native customary land in respect of which a freehold order can be made by the Native Land Court!'

Has this court any jurisdiction tc determine as against the Crown that any land claimed by the Crown a: ooing Grown land free from native mstoinary title is, nevertheless, native customary land ?

What remedy have the natives in respect of their rights, preserved by she treaty of Waitangi ? To what extent, if at all, and subject to what limitations, if any, does the native customary title exist in rcjpect of navigable waters? Has the Native Land Court power to issue a freehold order in respect to fishing or other user? Are such alleged customary rights of fishing or other user capable ol egal recognition or enforcement in this or any other court? In pursuance of an undertaking entered into before the passing of the Native Land Act, 1909, in view of tho then intended institution of this action any objection or defence which might be based on tho provisions ol section 84 of that Act is waived by the Solicitor-General except in so far as these provisions may Do held to be merely declaratory of the law as existing before tho passing of the Act. Legal argument had not concluded when the court adjourned till 10.30 a.m. to-day.