WORKING OP THE NATIVE LAND ACTS.

41

A.—No. 2a

tendency of my mind as to the decisions which may hereafter have to be given on the points raised; at the same time, I must guard myself from being bound in any way by what I now express, for my convictions are arrived at simply on Mr. McCormaek's ex parte arguments and my own reflections thereon ; and the Court will feel itself at liberty in the future to follow a course different from that which I now indicate, if in any cause sufficient ground shall be shown. It certainly does appear that the effect of this clause would be to make perpetual the communal holdings of the Natives, by getting them in their existing state registered in a Court of lieeord and made sustainable in the Supreme Court; but it is difficult to suppose that this would have the effect intended, as it would be distinctly opposed to the declared intentions of the Legislature, and, in particular, to the essential object of these Acts. As to the commercial or political effects of the clause in question, I do not think that the Court has any concern. If the mind of the Legislature is clearly indicated, it seems to me that it is the duty of this Court, as of all other Courts, to give effect to it. At the same time, if a discretion is left to us, we are bound so to interpret the law as in our judgment will most advance the interest of the suitors, and, in a secondary point of view, general public policy. It has been the practice of the Court hitherto, in case's where more than ten persons have appeared in the evidence to be interested in a piece of land, to order a subdivision or more subdivisions than one, if one division did not sufficiently reduce the number of owners to the ten limited by the Acts ; and I believe this practice has been beneficial, and in furtherance of the great object of these laws, as declared in the preambles of the Acts of 1802 and 1860, —namely, the extinction of the Native communal ownerships, and the substitution of titles known to the laws in lieu thereof. The clause under contemplation is without a preamble, and the Court is ignorant of the mischief at which its provisions are aimed ; but being apparently in direct antagonism to the great principles of the Acts of 1802 and 1865, it must be presumed that some mischiefs have resulted from the operation of those Acts which Parliament intended to remove. But it does not appear to the Court that, whatever this mischief was, it can by any possibility be obviated by establishing a regular system of concealed equities (for these equities will be virtually concealed, being recorded only in the books of the Court, whilst the Crown grant may be dealt with in a distant part of the Colony), even if all the equitable interests could always be ascertained, which is a question open to grave doubts. But it) does not appear clear that, by the enactment of this provision, Parliament intended to take from the Court the discretion which it previously had, as to the issue or the refusing to issue a grant, after it shall have heard the evidence and the arguments on the case. On the contrary, I think the discretion is still left with us ; and, believing that the great object of this system of legislation is the abolition of communal ownerships of land, and the substitution of titles known to the law in lieu thereof, the inclination of my mind will be so to exercise the discretion with which the Court is still, in my view, intrusted, as to refuse to issue a certificate of title, which will not on the face of it disclose the names of all the persons who are shown to the Court by evidence to be the owners, according to Native custom, of the lands described therein; or, in other words, to order subdivisions until the names in the grant are brought within the legal number, and display the whole of the persons interested in the property. If ihis view is wrong, this Court ma)' readily be compelled by mandamus to give the clause in question any other effect which the Supreme Court may think would more fitly interpret the intentions of Hie Legislature. The Court then adjourned sine die. Extracts from Letter of Mr. D. F. Fentox to the Hon. J. C. Richmond. (From Appendix to Journals of House of Representatives, 1867 —A. No. 10.) Sir,— Native Land Court Office, Auckland, 11th July, 1867. " It is the large blocks of land that the Native refuses to survey until his title is established. This very sensible view was first taken by William Thompson, at the Court held at Hamilton. He said that he had declined to survey land until the Court had recognized his title, for it might be that alter he had completed his survey the Court might decide in favour of another title, and how would he then recover his expenses? But let the Court, he said, first decide on his title, and then he could survey with Confidence. In all cases of interlocutory orders without surveys, a time is limited in the order." "Most of the blocks hitherto certified have been brought into Court for the purpose of enabling sales or leases to be made to Europeans, in order to rise money for the purpose of completely individualizing other blocks, or some of the blocks already passed. It must be remembered that the most formidable obstacle to the rapid progress of conversion of titles is the extreme poverty of the Natives ; and the great commercial depression which has existed for the last twelve months, and which is now more aggravated than ever, has rendered sales of land almost impossible." " Two years ago no one could have foreseen the price to which land has fallen in the Province of Auckland. Thus, Walter Kukutai's tribe have in vain been offering 40,000 acres in one block, of the finest land in the Waikato, at ss. per acre cash, or os. 6d. deferred payments extending over five years. A block in the North, called Waitaroto, cost 9d. an acre for survey, Id. per acre on other expenses, and ■was offered for sale at Is. per acre." " The intemperance and waste so noticeable amongst the Maori landlords of Hawke's Bay are matters much to be regretted ; but in my judgment it is not part of our duty to stop eminently good processes, because certain bad and unpreventable results may collaterally flow from them ; nor can it be averred that it is the duty of the Legislature to make people careful of their property by Act of Parliament, so long as their profligacy injures no one but themselves. It is well that all the money squandered by the Maori landlords is spent in the place whence it is drawn. Education will cure the evil, for drunkenness is the vice of the uncultivated and brutish man." '■ The great difficulty in the rapid conversion of the Maori titles and the individualization of holdings, is the necessity and expense of surveys. Some idea may be formed of the powerful character of this obstacle from the fact that the plans already in the Native Land Court Office have cost, according to Mr. Heale, £40,000. This large sum l|,as all been paid by the suitors nominally, though, I presume