Page image

27

G.—7

existing law as practically administered. As to the former point, numerous cases were brought before us in which it was proved, in the clearest way, that the large majority of the native owners were omitted from the certificate of title issued under the 23rd section of the Native Lands Act, 18G5. [See Cases No. I. (Papakura),No. 11. (Pahou), No. IX. (OnepuEast), No. X. (Moeangiangi), No.XIII. (Heretaunga), No. XIX. (Moteo), No. XXIII. (Hikutoto).] This was done, with the knowledge, and sometimes, it is said, at the instance of the Court—the construction put upon the first proviso to the 23rd section being, that where there appear to be more than ten native owners, a certificate may issue to ten, or any less number, if the rest assent. The Court is thus put in the false position of certifying, that the natives chosen by the whole body are " owners according to native custom " of the land in question—this plainly importing that they are exclusive owners. Such a certificate is necessarily false ; for, if the native title is to be considered as subsisting, the persons named are not exclusive owners; if the native title is to be considered as extinguished in their favour, they are not owners according to native custom. But the main evil has resulted from the absence of proper provision upon the second head, viz., for the ascertainment, before the issue of a Crown Grant, that the native owners had assented to the extinction of their rights in favour of the proposed grantees. In several of the cases I have referred to, it was most distinctly proved that nothing was further from the intention of the natives concerned than the cession of all their rights in the land to the persons in whose favour the certificate was issued —these persons being named expressly as representatives of, or trustees for, their several hapus. Yet it has been a matter of course to issue a Crown Grant to the persons named in the certificate, who indeed, by the mere order of the Court, are at once clothed with powers of alienation. From the date at which the grant takes effect, it is held that the whole body of former owners, with the exception of the grantees, cease to have any right or interest whatever in the land granted. Still the mischief would have been small, if the powers of alienation incident to the ownership of the grantees had been akin to the express powers of sale and leasing vested in the trustees of a settlement. In that case, the concurrence of the whole body of grantees would have been requisite to every lease, sale, or mortgage; and their representative character would have been maintained in all cases where they were numerous. The alienation of separate shares, which forms the principal grief in such cases as Heretaunga (No. XIII.), Ohihakarewa (No. XIV.), would thus have been avoided. But it is held, on the contrary, that the Crown Grant vests in each grantee the absolute ownership in an undivided share, which at once becomes saleable by him, and liable to be taken in execution for his debts. This result of passing land through the Court appears to have been unexpected, not merely by the natives interested, but even by some of the Judges of the Court, who were under the impression that a single grantee could not deal with his share, and who are said in the Heretaunga Case to have given the natives an assurance to this effect. Such a state of the law appears to me to constitute a very serious grievance. But, that we may not take an exaggerated view of the evil already occasioned by it, it must be remembered, that the real injustice to native owners has been confined to those cases in which the shares of the weaker and more improvident grantees have been separately bought up. Transactions, such as the purchase by the Provincial Government of Papakura, No. 1., Hikutoto, No. XXIII., and Pukahu, No. XXVI., where the grantees, being leading chiefs openly elected by the tribe, have as openly treated, in a body, for the sale of the block, cannot be complained of. From a return with which we were supplied by Mr. Locke, it appears that Crown Grants without restrictions on alienation have been issued within the Province for 509,220 acres of land, to 558-----different individuals of the native race. The names of some of these 558 persons appear over and over again in many grants. On the average, each person appears in two grants. The list probably comprises every man and woman of mark amongst the Maori population. The total population is returned at 3.773 souls. The lteturn does not give the numbers of the sexes, or of children. Perhaps one in every four of the adult population is included in some grant of alienable land. In regard to many of those included, it may fairly bo urged that they have received their full share at least, of the common inheritance, and should not be heard to complain that they have been passed over in some instauces. Nor should such persons be allowed in any case to object that the tribal title has been unfairly suppressed. True, the procedure of the Court has snapped the faggot-band, and has left the separate sticks to be broken one by one. But they should not impeach that procedure who have accepted under it the rights and advantages of independent proprietorship. This reason is valid if we are to treat the natives as out of their minority, and bound by the ordinary obligations of civilised men. As regards the deficiency of the provision left for " outsiders," we were not able to form any opinion. The area of inalienable land is stated at 221,900 acres, and 16G,5G7 acres are stated not to have gone through the Court. A large part of these areas may be rough, but it seems likely that there is left an amply sufficient supply for a population much larger than the actual one. But these remaining possessions of the natives appear to be most unequally distributed amongst the different sections of tlie population. Of the 166,507 acres which have not passed the Court, the Porangahau natives hold about 100,000 acres. For further information on this subject, I beg to refer to Mr. Locke's letter of 14th April, 1873. [Appendix. J 2. The second ground of complaint, that the Court lias unduly favoured alienation, may be passed over briefly. There was no tittle of evidence that the Judges of the Court had ever acted otherwise than with perfect good faith in their recommendations as to the imposition of restrictions on alienation. It is enough to refer to the Heretauuga Case (No. XIII.), as one in which such a charge is made by Ilenare Tomoana. In the Tamaki Case (No. XXVI.) j Ilenare Matua appears to impute that the Court so arranged its certificates as to facilitate the contemplated purchase by the Crown of the district—" the Seventy-mile Bush." If this kind of suspicion is to be raised in the native mind, it seems doubtful policy to resort to this Court for a title on Crown purchases. It ought to shake the unlimited faith, which some persons seem to place in mere political machinery and the words of Statutes, to find the same identical distrust expressed of the Court, which was supposed to attach to the Land Purchase Department.