NATIVE LAND CASE.

Poverty Bay Herald, Volume XXXIX, Issue 12883, 2 October 1912, Page 3

NATIVE LAND CASE.

PRECEDENT CONSENTS. A FAR-REACHING JUDGMENT. A far-reaching judgment has • been given by the Chief Justice, Sir Robert Stout, m connection with precedent consents to alienation given by Maori Land Boards, and the decision affects a number of blocks of land under the "jurisdiction of the Tairawhiti District Maori Land Board., There is an exceptionally large list of applications to come before the Board next Tuesday, and some of these *will be affected by the judgment. The case m question is a Wairoa action, Harvey and another (Mi* E. G. Matthews) v. tho Tairawhiti Land Board and Summerfleld (Mr F. W. Nolan), and the judgment is as follows : — • This is an originating summons for' a declaratory judgment to determine the following matters: — (a) Does the precedent consent to aliena tion given by a Maori Land Board under section 209 of the Native Land Act, 1909, upon an application signed by certain native owners of a block oi native land and not purporting to be signed . for or on behalf of tho other native ' owners' of the said block authorise an alienation by the native owners who have not signed such application for precedent consent? (b) If certain of the native owners signing such application for - precedent consent are trustees for; infant owners of the said Hock as well . as owners m their own right and such application does not purport to be signed by such owners m the name and on behalf of such infants does the precedent consent so given as aforesaid authorise alienation of the shares of such infants? (c) Is the confirmation by the Maori Land Board of the alienation ot such land by native owners who have not signed such* 'precedent consent but who have signed the instrument of alienation valid? The fadts out of which the need of putting such questions has arisen are peculiar and not m dispute. There are 32 native owners of a block of native land called Paeroa lEBD, situated m the Wairoa .County. It is n binall area, containing only 33 acres. The number of the owners was originally.«;l4, "but through some of the owners having died and successors having been appointed the number is now 32. On the 11th March, 1911, the plaintiffs, John Thomas Harvey. and Albert James Harvey,'acting under section 209 of the Native Land Act, 191)9, made application ' for the "precedent consent" .of the Maori Land . Board for the Tairawhiti district, iv • which district the land was situated, and the Board's consent was given. The function of the Board was as to precedent consent • ended, at all events for 18 months. There' came another application for precedent consent from' the delendant Philip Henry Summerfielcl, and his application was refused. Yet another • application , was made by five natives, and this application was as follows: "We,, the undersigned native owners, hereby apply under section. 209 of the Native Land Act, 1909, for the consent of ; the Board to the following alienation of native land owned by more than 10 owners: Nat-ire of alienation, sale; description of land proposed to be alien-, ated, Paeroa No. lEBD, 32 acres.— (Signed) Kaineka Kahiga, Tuatua (Kainga, _amihana Kainga, Tiaki Kainga, Mere Kainga." Strange :to say the Board granted this application: In i*hy opinion there could not be granted two 'precedent consents," and the explanation suggested is that the Board did not know that the alienation .proposed.,, concerned the. land with regard to which ■< they' had previously granted the "precedent .consent." I do not understand how such v a. blunder could have been made, as . the name and) number of the block were given and tho area is given. Can it be that there are m the district two blocks called Paefoa lEßD '•' of an_area , of 32 -ner >s eat t ? If nqt^ the, work of the Board must be ca-i »eu oil very perfunctorily for such a mistaKe to liave occurred. It is, . I conceive, the • uty of the Bonrd before ii "precedent consent" is given to. have a proper investigation. The Board ought to know the names of the owners iri order to Abe able to judge whether this "precedent consent" 6hould or should not be granted. They should know the position as to ownership of land of the owners, and especially if, as m this case, some are infants' the Board should know tlie position of the infants m every way. It surely cannot be possible ( that tho members o£ a Maori Land Board think that they are performing their duty if all tho necessary enquiries are not made. I again Say that I am utterly at a loss to think how the so-called second, consent could have been granted by reasonable business men. The questions. tliiit are raised are important and the Act mtisfc be examined. There are three provisions m the statute regarding the alienation of lands by natives. By section 207 it is provided that all' prohibitions or restrictions on the alienation of land ' by a native or on the alienation -of native land are removed ano! alienation may be made subject to the pro visions of the 1909 Act. * A native ' may under section/207 alienate or dispose of any '■ land or any interest m the sapi.e. manner as an, J2uroipean. save, that , there has to be. a confirmation of the alienation under Section 217. This' is the first provision: If, however, the native 'land is oftped - for •• legal estate m fee simple by more .than' 10 owners as tenants m common, no native owner thereof shall be capable of making any alienation save under Section, 209. By this section , .there are two modes provided—<a) The '"third" provision, as it may be called binder part xviii of. the Act, and (b) with the precedent oonseiit of the Maori Land Board m whose district the land is situated. It is unnecessary to deal with part xviii further than to note that before a consent can be obtained tinder that, part all th_ owners must be summoned to a meeting and, at this meeting the president' of the board, /or someone appointed by him must preside. The meeting 1 will be a valid meeting if. at least five owners are present. Five is a quorum; Tho -meeting may pass resolutions regarding- the alienation of Jbhe block (see section 346 and its various paragraphs) and the resolutions passed apd a report of the; chairman of the meeting must be 'submitted. : to the Board. The Board is not bound to agree with the resolution (see section 348). It may confirm the resolution or disallow, it, or it may v postpone' the consideration thereof. It; is important to note that it is assumed that if the owners approve of tho owners selling, .otherwise than to the Crown, the resolution to be, passed is thusi stated m section 346 (f) "That a proposed alienation of the land ' or any . part . thereof (other than & purchase by the Crown), shall be agreed to." The. meeting has to deal, m my opinion, with a specific alienation, and ' not merely with a general resolution that • the • land be sold or' otherwise alienated. There is to be a "proposed alienation," and so m section 209 if part xviii is not followed. What the Board has to consider and to give. its consent to is a "proposed alienation," and m ray opinion the section contemplates, a sale by all arid not a sale by one. That that, is 'contemplated under part xviii is clear for m sections 348 (sub-section 2), 349, 356 (sub-section 3), etc., there is provision for a partition ot a "cutting out" and i part xviii is simply another way of disposing of a' block where the number of owners is more than, 10. If then it is clear that section 209 is 'dealing with an alienation, riot of individual share:-!, but with a ."proposed alienation" of the whole block, just as part xviii' deals with an alienation of a yvhole black, then the meaning of sub-section 2 of section 209 may appear,- ■,." The application must be made "by or on behalf of a party to tho proposed alienation." Does a party mean a- person?f If it, does why is the word "party" used, i^ih-j^verj*- alienation there are at least what may be termed t\vo parties. The vendor or . vendors . aroA "described as "of the one part," mid the p"urc_aser or purhcasfers as "of the other part." 'In ;tbis way it, seems to me is tho word "party" 'used. "The application'must, therefore, be made either by or on behalf of the owners who are the one. party "of the one part," or by the purchasers who will be the other party. To *llow ono owner who may, have, as exists m many blocks, a mere negligible interest (a square foot has ■ m somo instances beeri given at the request -'of ' Maori s'.to show "aroha,' as they say) to apply pri his own behalf for the consent to an alienation by himself is not what is m my opinion contemplated by the statute. The application must be on behalf, either of all the oWners or on behalf of tlie intending purchaser who . has- been ■ negotiating with the natives. I ani, therefore, 'of opinion, that the first question, must be answered "No." As to the second question, in'hny opinion the interests of. the applicants Should have bec-n disclosed, ' i.e., whether they „we re applying m their, own rights or as trustees. The second question must also bo answered "No." It will follow that if there has been ho valid »precedent consent, the alienation. 'is void, and -tho third question must also be -answered "No." I have already pointed out that the . l recedent consent must be to- specific alienation, ahd that consequently the application made by the five natives wfcs not made' m accordance with the statute; and further- ttitft " jb could not have been granted if properly "»nia.le, as v "precedent consent" was already m existence. I allow plaintiff 7 guineas-, cost.** and disbursements. • ;