MAORIS AT NGAMOTU

Taranaki Daily News, 10 April 1935, Page 5

MAORIS AT NGAMOTU

RIGHT TO LAND DISPUTED HARBOUR BOARD TAKES ACTION. QUESTION OF COURT’S POWERS? That the land between the HongiHongi and Tutu streams on Ngamotu beach, New Plymouth, belongs to the Maoris who have occupied it for many years and not to the New Plymouth Harbour Board was the assertion made in the New Plymouth Magistrate’s Court yesterday in the defence raised against an application by the New Plymouth Harbour Board for possession. It was argued that the matter was out of the jurisdiction of the Magistrate’s Court, being a dispute over the title, and consequently Mr. W. H. Woodward. S.M., reserved his decision on the point whether he could deal with the case. The New Plymouth Harbour Board claimed possession of seven tenements occupied by John and Cissy Harris, Martene Raharuhe, James Joseph, Thomas Harris, Tahi Harwood, Andrew Coffey and Max Skipper, Mr. T H. Quilliam r calling formal evidence of the land having been vested in the New Plymouth Harbour Board under a special empowering Act in 1918 after having been held under a conveyance by Her Majesty the Queen since 1883. Those rights, he held, extinguished any native customary titles. Mr. Clement White for the defendants held that the matter should be removed to the Supreme Court, producing evi-dence-designed t~ : 'v t_’’t the Maoris had been in exclusive and undisturbed possession of the land since before the breakwater was commenced in 1881. In each case the proceedings were* brought under Section 183 of the Magistrate’s Court Act, it being held that defendants occupied the land without right, license or title, said Mr. Quilliam. The land in question was on the foreshore in front of the Breakwater Hotel, between the Hongi-Hongi and the Tutu streams.; It had belonged to the harbour board since 1869 as a Government grant. In 1883 there was a conveyance from Her the Queen, and in 1918 the property was vested in the board by the 1 New Plymouth Harbour Board Empowering Act. A certificate of title was then issued.

OCCUPATION OF LAND. For some years certain persons, and in more recent years the defendants, had occupied a portion of the land, merely squatting there. At no time had any kind of right been given them. The harbour board had been anxious for some time to have them leave by peaceable means for different reasons, chiefly because of the danger to health. The board had no desire to be hard, and although notices to quit were issued no court proceedings were taken. It was now imperative that possession should be given as the land was required for ' harbour board works.

Reginald Day, chief borough inspector, gave formal evidence of the rateable value of the area—£loo unimproved value and £156 capital value. The cottages occupied by the defendants were situated on the land concerned. Notices to quit were served some time before but the defendants were still in occupation. The Health Department— Mr. White objected that, any evidence concerning the Health Department was irrelevant.

Edward J. L. Payne, law clerk, said notices to quit were served by him on November 1.

Clarence S. Rennell, secretary of the New Plymouth Harbour Board- for 33 years, produced the conveyance of 1883 and the certificate of title of 1918, and gave similar evidence to that of. Day as to the situation of the cottages. The board had never given the defendants authority to occupy the land, had never acquiesced and had tried to get rid of them. No rent had been demanded or paid. The land was now required.

To Mr. White Rennell said the foundation stone of, the breakwater was laid in 1881. Natives, he thought, were squatting oh the land in 1918. That land was included in the old deed of conveyance. He admitted the natives disputed the board’s title to the land, even to the extent of a parliamentary petition.

To Mr. Quilliam Rennell said there had been more than one petition and all had been unsuccessful. The mattehad been referred to the Native Land Court judge, Judge Browne.

REPORT OF JUDGE BROWNE. Mr. VullijaK put in the report of Judge Browne and that of the Chief Justice, to whom the matter was referred. Rennell said to Mr. Quilliam that the court had expressed the opinion that the board had a perfect right to the land and had been remiss in not previously ejecting the Maoris. Lewis C. Sladden, licensed surveyor, New Plymouth, gave formal evidence of the position of the cottages. Mr. White, opening his case, held that the title was in dispute and that the Magistrate’s Court had no jurisdiction to determine it. The defendants claimed that they were lawfully in possession of tenements fqr which they had a prescriptive title by over 20 years’ exclusive and undisturbed possession before the issue of the certificate of title. The real dispute was the title, emphasised Mr. White, although the board had the title now and had held it previously under the conveyance conferred in accord with the old deed system He submitted that the Supreme Court was the proper authority.

“We say,” continued Mr. White, “that by virtue of the Land Transfer Act, 1915, the certificate of title is void against any title of any person entitled to such land when the certificate of title was issued. Defendant* claim that they or their predecessors were in continuous occupation for 20 years before the jertificate was issued and that they have a good possession right.” Consequently, Mr. White added, it was merely necessary to produce evidence of that and* then for the Supreme Court to interpret the Empowering Act in the light of the Land Transfer Act.

Hone te Kekeu, residing at Huirangi, said he knew the land in question when he was a child, and he was now over 60. He remembered the building of the breakwater, when Maoris were in possession. They had lived there undisturbed ever since.

■To Mr. Quilliam Hone said the present defendants had lived there a great number of years.

;Mr. Quilliam: Do you know John Harris ahd Cissy Harris? Hone: I know them well.

Mr. Quilliam: How long have they lived there?—l cannot say, but her grandfather lived there.

THIRTY YEARS’ RESIDENCE.

Hone could not say whether Harris’ house was old or new. Martene Raharuhe had lived there for over 30 years, and others of the defendants had lived there following their ancestors. Morene Whatatiriri, who said he was bom in 1859, gave similar evidence. In 1918 he was living on the land in question, he said. Noho Tupuhi, aged about 52, said he was bom at the Tutu, and Maoris had occupied that land ever since he could remember.

Martene Raharuhe, one of the defendants, said he had been living on the land in question for 32 years. Before the present house there had been a whare. To Mr. Quilliam Raharuhe said neither he nor his wife, to whom the house belonged, had taken any action to enforce their right Mr. White asked if there had been any need to enforce their right. . Mr. Quilliam: Surely that is a question for the magistrate to decide. To the magistrate Raharuhe said the harbour board had never done anything on the land. He had seen no surveys made. Mr. Quilliam submitted there was no question of title involved. The defence must have an honest and bona fide claim to dispute the title, and the claim must be of such character as was capable of existence in point of law. There was not one tittle of evidence to show an honest claim. Further, a mere' claim or assertion to the title was not enough. . NO CLAIM AS OWNERS. The position was that no claim was made as owners, but evidence had merely been tendered as to occupation. The defence must show reasonable ground to satisfy the court. No action had been brought after the serving of -the notices to quit on November 1. The proceedings by the board for possession could have been brought without notices to quit,- but notices were served to give the defendants an opportunity of doing something. The magistrate had to be satisfied, Mr. Quilliam contended, that the title was definitely in question. Was the defence bona fide, he asked, with some evidence to support it, or was it a mere illusory claim? There had been years and years for defendants to take proceedings in the Supreme Court, and now the court was being asked to accept the suggestion that somebody at some time proposed to do something. It wafr clear that the native customary title had been extinguished by the issue of the Crown grant, and the case was made no weaker by the substitution of the conveyance and later the certificate of title. In any case the board’s title was derived from the 1918 Statute, to which the Crown had assented—the highest title known to law. A prescriptive right could be granted against a harbour board, bur none of the natives had acquired that right. Mr. White pointed out that it was con- ! tended the defendants had a prescrip- ■ tive right and not a customary title. 1 Mr. Quilliam suggested that Mr. Woodward was being left to guess what the * claim was. The land was vested in the 1 board. The board would have welcomed 1

an action in the Supreme Court if it had been thought any useful ‘Service would be served. If . an ; order for possession were ■. given now .the 'natives could still apply for a prohibition of* it or bring an action in’the Supreme Court. Mr. Woodward said he would reserve his decision concerning ■_ his jurisdiction, but he would make it known as soon as possible. '■ ’