NATIVE LANDS ALIENATION COMMISSION.

Wellington Independent, Volume XXVIII, Issue 3903, 6 September 1873, Page 3

NATIVE LANDS ALIENATION COMMISSION.

judge Richmond's beport. The following is the concluding portion of the report by. his Honor Mr Justice Richmond, of the recent Royal Commission appointed to inquire into the circumstances of the alienation of native lands in the province of Hawke's Bay. The report itself was laid upon the table of the House yesterday afternoon, but the Speaker having only received one copy, we publish the roost important portion for public information. It will be seen that Mr Justice Richmond makes some important suggestions with regard to future amendments of the Native Lands Act. It was in order that these might receive consideration that the pro- , gress of the Native Lands Bill through committee was temporarily arrested : — Lastly, 1 hare to discharge the duty of recommending to Parliament such measures as may, in my opinion, tend to prevent the recurrence of grounds of complaint similar to those which we have had to investigate. I agree, in the first place, with my brotherCommissioner, Judge Maning, that it will bo proper to maintain in our legislation the principle of the Frauds- Prevention Acfc of 1870. Without some such check the peace of the country, under a system of direct purchase, will be perpetually liable to be endangered by the fraud and rapacity of individuals. I am further of opinion that, as the existing Native Lands Act should be repealed, the Native Lands Court itself olenrly ought to be maintained, with certain needful reforms ; — its jurisdiction has been accepted, in a great extent, by the natives ; and this alone is an immense step in advance. A new Lands Act ought to be framed on the simp.'c principles to which I have adverted. 1. Provision ought to be made, in thfl first place, for the ascertaino-eni; of native titlo as it actually exists, and for the issue of certificates of native ownership in favor either of a tribe (one or more hapus) or individuals. Such certificates should in no way modify the native tenure, and especially should have no effect whatever in authorizing alienation to Europeans. 2. No Crown title should issue either to native proprietors or directly to European purchasers, except upon a certificate of a Judge of the Court, that all the native owners have ceded their title in favor of the proposed gran tees, or that the grantees are the sole native owners. The native owners should always be informed by the Court before their consent is recorded, that its effect will be to transfer their own rights in the land to the grantees, without any further claim on their part, either upon the land or its proceeds. No Crown title should on any account be issued, whilst the tribo or hapu maintains its right. To admit of grants to representative men If ads to fatal confusion between English and native tenure. It would be well that the principal native owners should be required to sign on behalf ef the, community an instrument of cession into the handls of -the Crown for the purpose of making the proposed grant. A very brief memorandum upon the Court's certificate of ces sion would suffice. 3. The great object being to prevent for tbe future the confupion of English and native ten« ure, any intermediate etate of title which should be admitted with great caution. I should propose that a tribe or hapu holding a certificate of native ownership might, if unanimous, be allowed to elect a number of trustees amongst themselves, with the addition, possibly, if they wished it, of some, European officer of Government. Strictly defined powers of sale and leasing to be expressed in the Act and referred to in an appendix to the certificate of native ownership, might be vested in these trustees. All rent and sale moneys should be held in trust for distribution amongst the tribe or hapu, the receipts of the trust ees being, however, a complete acquittance to lessees or purchasers. The Court should be empowered to fill up vacancies in the trusteeship in accordance with the wishes of the owners ; and no exeroise of the powers of the trustees should be allowed whilst their number should be reduced by death or otherwise below some defined limit. This is only a legal form of enabling the chief men to act for tbe community, as they have always done. The arrangement might be nrnde perfectly intelligible to natives; and they should be ex pressly warned that they must look to .their own trustees for sale-moneys and rent, and not to the strangerß dealt with by the trustees. The great point is that no interim modification of the native tenure should be allowed unless of the most intelligible and well defined character, and that the express and practically unanimous assent of the native proprietors should be given to Buch modification in open Court. Tenure by Maoris under Grown grant should be English tenure , to all intents and purposes, subject to Buch modifications in relation to succession as may be found expedient, and to such express restrictions of the power of alienation as may in particular oases be imposed ; such absurdities as Crown grants, under which the quantum of interest in each of several grantees is left to be determined by native custom Bhould be abolished. Astegards improvements in the constitution and procedure of the Court itself, I must speak sparingly, according to my limited experience. But there is one point of great importance which has forced itself upon my notice. The judges of tbe Court at present, as I understand, conceive themselves to be bound to ignore every fact, however notorious, which is not brought forward and proved by some claimant or counter - claimant. Te Wheoro naturally enough complains in his letter to Colonel Haultain, printed in appendix to journals of the Legislative Council, 18^1 (see appendix to Colonel Haultain's report an the working of the Native Lands Acts, page 29). " Perhaps," he says, "in some cases the judge of the Court has seen the cultivations and the houses, but he only pays attention to the statements made by the parties before him, and soys that it would not be right for him to speak of what he has seen, but only to take what is stated in the Court." A tribunal acting on 6uch principles is unfitted for the investigation of native title, as it may well happen that the parties before the Court agree to serve a common purpose by suppressing material facts. The supposed analogy of proceedings in ordinary courts of law and equity is quite a mistaken one. The judgments and decrees' of such courts commonly bind only the litigant parties and those who claim through them; whereas the judgments ©f the Native Lands Court are what are termed judgments in rein, which conclusively

ascertain title, nob merely as between the parties in oourt, but against all the world. A court with such a formidable power needs to be furnished with means of investigating, independently of the parties in Court, the validity of claims made before it. Some power is wanted of investigating the native title out of court. The Court needs tentacula wherewith to seek out and gmsp for itself all the facts of the case. It would not be well to throw upon the judges of the Court the duty of investigations which, to be effective, should i be made on the spot. This is rather an administrative than a judicial function, and might be committed to some officer of the Native Department at each district appointed for this duty by the Governor's warrant. A I report of this officer on any application for a certificate of native ownership, or of oeasion, should be presented to the Court, This re- : port Bhould be open to inspection by the parties interested, and should bo confirmed, overruled, or remitted for amendment to the reporting officer, as the Court might think fit. But there Bhould be no justification to prooeed without such a report. There if another reason for connecting an administrative department with the Court. The work of individualising native titles, or. in other words, of partitioning the estates of the native tribes, cannot be properly performed by a Court which initiates nothing, but proceeds, as the Native Lands Court has hitherto done in most cases, only on the application of some particular olnimant. In the instance of the Ahuriri natives, when the Native Lands Purchase Department ceased its operations, there remained intervening between the Ahuriri block on the north and Te Hapuku'i on the south a most valuable tract of land still subject to the native titles. The area of this district, which stretches southward to Te Aute," and run's back between thp rivers Ngaruroro and Tuetaekuri to the boundary of the province, was more than a quarter of a million ot acres, and it comprised tho best agricultural land in the province of Hawke's Bay. Surely the partition amongst the native owners of this magnificent estate ought to have been supervised by some execution department connected with the Court, and should not have been abandoned to the haphazard process of division which his actually been resorted to. A work of the kiud cannot possibly be dealt with piecemeal, for no single grant ought to be issued without considering what grants have been already made, and to whom ;■ what claimants remain unsatisfied ; and what land is left to meet their claims. Without proper machinery for the purpose, and, it would even seem, without legal powers (for the provision of the 24th section of the Act of 1865 is wholly inadequate), the Native Lands Court has had cast upon it the work of parcelling out whole country amongst its native owner?. It would be little less than a miracle if some forward claimants have not got greatly more than their due ; others coming off far short of their proper shares. In the foregoing proposals I find myself on several points in substantial agreement with the suggestions of Sir William Martin and Dr Shortland. I agree with them in thinking the commissions of enquiry, prosecuting their investigations en, or near the spot, would be better suited for the ascertainment of native ownership than a tribunal on the model of an English court of judication. The peremptory procedure of such a Court is, for reasons already stated,; certain to be the instrument of occasional injustice, and to create wellgrounded dissatisfaction. At the same time the jurisdiction of the Native Lands Court having to a great extent being accepted by the Maori people, its abolition will be inexpedient. It is a great point gained to have secured any sort of submission to such a jurisdiction. Those who have framed, and those who have been working under the Native Lands Acts, they will congratulate themselves on this achievement. It is practicable, and therefore the preferable course, to supply the patent defects of the Court in some such way as I have suggested. As regards the important suggestion made by Sir William Martin and DrtJhortland, that the purohase money arising from tbe sale of native land should in all oases be paid into Court, the necessity of such a rule would, I think, be removed, if the principles on which I have been insisting were acted . upon in legislation. When it becomes necessary in the purchase of native lands to obtain a certificate from the Court of cession of the native title, purchasers would have to deal with the whole body of the owners, and to pay over the money publicly to the chiefs in the old style. The creditors of individuals would haye no hold on the fund whilst undistributed, the property being in the community like that of corporations. In the distribution of the money, the natives would have to agree amongst themselves as to the shares. The Court, if entrusted with the division of the money, could do nothing more than give effect to auch agreements, it being simply ridiculous to pretend that there are any definite principles applicable in the matter, and it is desirable to leave the entire responsibility with the natives themselvep. In conclusion, I may perhaps be allowed to say, that although the work of the Commission is seemingly imperfect, inasmuch as we left in hand a large proportion of complaints presented to us, I am yefc of opinion (shared in, I have reason to believe, by those who conducted the cases on behalf of the native oomplainants), that the Commission has practically attained its only possible end in the collection of a mass of authentic material as a basis for future legislation. In cases heard, the evils of the existing state of the law are, I believe, so far as the province of Hawke's Bay is concerned, fully exemplified ; and I think it will be found that every important question affecting future legislation has been raised, which the experience of transactions in that district could suggest. (Signed) C. W. Eichmosd. Nelson, July 31, 1873.

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