NATIVE LAND COURT.

Poverty Bay Herald, Volume XVIII, Issue 5988, 7 February 1891, Page 2

NATIVE LAND COURT.

.» WAIPIRO REHEARINGS. [Judges G. E. Barton and S. Von Sturmbr. Assessor Hone Pete.] matarau no. 5 restrictions. Waipiro, Feb. 2. The following judgment <vas delivered by the Court : — This was a rehearing granted on the application of Sir George Whifcmore, the lessee of the Matarau No. 5 block (con. taining 349 acres), upon which Judge Scannell imposed restrictions in the following words: "The block of Matarau No. 5 to be inalienable absolutely, subject to the lease now in force." Sir George Whitmore objects to these restrictions as having been imposed contrary to law. On the 20th February, 1889, Judge Scannell partitioned the Matarau block and adjudged Matarau No. 5 to 173 owners (Natives). He then placed the above restrictions on its alienability without making any enquiry whether any of these 173 owners did or did not possess other inalienable lands sufficient for their maintenance. Sir George Whitmore'a agent (Mr E. F. Harris) contended thafc section 13 of the Native Land Courts Amendment Act, 1888, imperatively requires that before a Judge can impose any restrictions he must ascertain as to each separate*owner whether or not ho has a sufficiency of other inalienable land for his support ; if he has, no restrictions can be imposed, if he has not, then they can. Mr Harris further contended that section 13 only permits the Court to declare inalienable so much and such parts of the land then before the Court as shall be needed in aid of the support of any owner nob shown to be possessed of a sufficiency elsewhere, and to declare such parts inalienable accordingly. The words of section 13 are as follows :— "The Court . . . is hereby empowered and directed to ascertain as to each owner whether he has a sufficiency of inalienable land for his support, and shall, out of the land the subject of any such order, declare to be inalienable so much and such parts as shall bo necessary for the support of any owner not shown to be possessed of such sufficiency, and such part or share shall be inalienable accordingly." These words appear to us to show quite clearly that Judge Scannell had not power to impose restrictions without first making the enquiries directed by the section, and we also think it is quite clear that had he made such enquiries he would have had no power to declare inalienable the share of any owner shown on the enquiry to have had a sufficiency of other inalienable land for his support. Mr Harris in order to show that Judge Scanuell was wrong in assuming without enquiry that the whole 173 owners were not possessed of such sufficiency, proved by witnesses he called before us that some at all.events of the 173 had s.uch sufficiency; but he expressly refused to offer proof as to the capabilities of all the 173 owners, saying that if the statute imposed the duty upon anyone of ascertaining the facts in every case, such duty was imposed not upon him, but upon the members of the Court. He contended, however, that no such duty was imposed upon anybody, and that the words " The Court is hereby empowered and directed to ascertain as to each owner" are not mandatory but permissive. The Court he alleged is not obliged to impose restrictions or make any enquiries ; but if it desires to impose restrictions, its duty before doing so is to enquire into the circumstances of each owner, and act according to the result of such enquiry. The Judges of this Court, though they endeavored to ascertain from the witnesses before them, the capabilities of support possessed by all the others of the 173 owners, failed to elicit any information on the subject. Maoris strongly object to being questioned as to the solvency of other Maoris, and they even object to questions as to their own lands other than theland^efqre the Court. No means have been provided either by the Legislature, or by Government enabling the Court of its own motion and without the assistance of parties before it, to ascertain the capabilities of support of large numbers of owners widely scattered over the colony. If, therefore, the words of Section 13, " The Court is empowered and directed to ascertain," etc., are to be construed as mandatory in every case, we can only say that the Legislature has imposed upon us a duty impossible of performance, and that this section affords another of the many instances contained in the Native land code, in which duties are imposed sometimes upon the Court and sometimes upon parties, dealing in Native lands, with which they cannot comply. The only reasonable construction that the Native Land Court can. therefore pufc upon this 13th section is, that notwithstanding the imperative' natureof the r language used, theJL©gisktttT^rtets*teltit in the discretion of the Court whether it will impose restrictions or not, but has provided that wherever the Court deems it advisable to impose them it shall first make the enquiries as directed by the statute, and then only impose restrictions upon the shares of such owners as do not appear to have other restricted lands sufficient for their support. The English authorities, we think, justify such latitude of construction. The English Courts frequently, when required by common sense, construe the word " shall " to mean " may," and, conversely in other cases, construe the word " may " to mean "shall." Also, the English Courts have declared matters quite outside the words of a statute (but within its spirit, and the mischief intended to be remedied by it) to be within the purview of the Act, and wee versa, have held matters within the words of the statute (but not within its spirit or mischief), to be outside the purview of the Act. This Court therefore will vary Judge Scanneli's judgment by striking out the restrictions. It holds that he was wrong in imposing restrictions without first making the enquiries directed by the, statute as to the capabilities of each owner of supporting himself from other lands, and it also holds that it is itself not bound to make any enquiry, having no machinery provided enabling it to do so. The rehearing Judges of the Native Land Courb cannot be expected to close their Court;, and occupy themselves in making active enquiries all over the country respectiqg I the other lands (if any) owned by these 173 Natives, and respecting the restrictions (if any) imposed upon such other lands. If the Legislature meant to im pose upon us the performance of such a duty, it ought to have provided some efficient officer of the Court, who could make such enquiries on our behalf, and inform us of their result. We feel all the more confidence in the correctness of the construction we have put upon the words of this (13th) section, by reason of the faot that the Legislature has by the various statutes now in force for the prevention of frauds upon Native land owners, amply provided that in every case of alienation brought before the Commissioners under those statutes, such Commissioners shall make the very en^ quiries, which this Court finds it impossible to make in this case, in the general manner directed in section 13. Whenever an alienation actually takes place, the parties have to go before such Commissioner and prove to his satisfaction that the person making the alienation haa . a sufficiency of other lands for his support. It can effectively be done on that enquiry. It cannot effectively be done under section 13 in cases where the number of owners is large; as in the present instance,