5

G.—3

Mr. Eees in his very able and exhaustive argument has ranged over all the sections of the statute, comparing them with one another, and with those of repealed statutes, and, in illustration of his points, he has gone to some extent into the history of validating legislation. I shall have to follow a similar course when explaining my views, which differ somewhat from those of Mr. Eees. I will first shortly state the leading facts of Mr. Tiffen's case bearing on this point of jurisdiction. Mr. Tiffen asks for a certificate under this Act of 1892 recommending the validation of his purchases of thirty-seven shares out of seventy owned in the block under memorial of ownership issued under the statute of 1873. His purchases are invalid because they were made contrary to sections 48 and 49 and 59 of that Act. Section 48 provides that to every memorial of Native ownership shall be annexed " the condition that the owners have no power to sell; " but section 49 provides that that annexed condition " shall not preclude a sale of the land comprised in the memorial when all the owners of the land agree to a sale thereof"; and section 59 provides that, if any less number than the whole desire to sell, a Native Land Judge shall first make inquiry into the particulars of the transactions, satisfy himself of their justness and fairness, and also satisfy himself of the assent of all the owners to the sale. If such sale be found by him to be just and fair, and if the " transfers are signed by all the owners," and the Judge is satisfied that every seller fully understood that he is parting with his rights, then he (the Judge) shall make entries accordingly on the Court rolls and on the memorial of ownership, and shall then transmit the memorial of ownership to the Governor with his recommendation that a Crown grant be issued to the purchaser. Now, Mr. Tiffen's purchases of land held under memorial of ownership were purchased from a less number of owners than the whole number, and were not assented to by the rest of the owners. They were never brought before any Native Land Court Judge to hold any preliminary inquiry and satisfy himself as to the facts above set forth. Therefore, these purchases were purchases made in violation of the expressed condition under which the Natives held their land —namely, that they should not sell except in the manner prescribed. Mr. Eees informs me that the judgment of the Supreme Court in Poaka v. Ward decides that such purchases are invalid ; but even without that decision, the Legislature itself, in the twenty-seventh section of the Validation Act of 1889, enacted that they are invalid, and appointed a Commissioner to validate such of them as were made "ingood faith and not contrary to equity and good conscience, and where the agreed purchase-money had been properly paid." Now, on these facts, Mr. Eees's first point is that, inasmuch as that twenty-seventh section of the Validation Act of 1889 (which would clearly have included Mr. Tiffen's case) is repealed by this Act of 1892, no validation can take place under that repealed twenty-seventh section. The words of that section, stripped of superfluous verbiage, are as follows : "If the Commissioners shall find that any intended alienation of land is likely to be impeached because such alienation being of land held under memorial of ownership did not include the whole of the signatures of the Natives owning under such memorial of ownership, and that the transaction was entered into in good faith, not contrary to equity and good conscience, and the agreed purchase-money paid, they may sign a certificate to that effect, and thereafter such intended alienation shall be valid and effectual." Mr. Eees's second point is that the 4th section of the Act of 1892, the words of which approach most nearly to those of the repealed 27th section of the Act of 1889, nowhere repeats the provisions of the said repealed section, but, on the contrary, expressly limits the validation under this Act of 1892 to such lawful purchases as were "intended to enable the alienee to obtain by due process of law an estate of freehold in fee-simple." He insists that these words cannot be stretched so as to include unlawful purchases intended to enable the alienee to acquire an estate against " due process of law," and he says that if the Court so stretches the words of the statute it is legislating, not interpreting, and is usurping functions that do not belong to it. Then Mr. Eees turns to the 9th section of the Act of 1892, and shows that it too fails to reach Mr. Tiffen's case. It gives the Court jurisdiction to amend " informalities " and " irregularities " in the " signature and execution of documents of title," or "in the removal of restrictions on sale," or in "proceedings of the Native Land Court on which the title is based," or " through some doubt as to the power of a judicial officer to give title to the Natives." He points out that, even if any of the words of this section 9 could be racked and stretched until they touched a case like Tiffen's, Tiffen must nevertheless fail because the section requires the Court expressly to find that " there was no intention to evade any provisions of the law on the part of the alienee or his agent," whereas Mr. Tiffen's purchases were made in direct violation of a statute. Now I begin my judgment by frankly confessing that, so far as I can see, Mr. Tiffen's transactions do not come within the express words of any section of the Act of 1892, but I do say that the whole history of Native Land Court reform proves that the chief object of the Legislature in passing validation statutes has been the validation of all honest and straightforward purchases, whether they are legal or illegal in their inceptions. It is objected that I have no right to go outside the words of the statute to find a meaning not shown in it, and I will fully admit that in the construction of ordinary statutes a Court (and especially a Court so discredited as the Native Land Court) ought not to do so. Mr Eees is entitled to argue that a Court described in a leading journal of this country as having done more injustice than ever disgraced the worst mediaeval Courts of any known civilized nation ought not to be intrusted with any latitude of interpretation ; but the construction of the statute law must in every Court be governed by the same principles, and it is, therefore, my duty to try to find out the intention of the Legislature, and when found to follow it. An Act that is so unique and unprecedented in its provisions as this Act will require unique and peculiar construction. It ought to receive the widest instead of the narrowest interpretation, and I will endeavour to show this, not only from the form and scope of the Act itself, but also from the whole history of this branch of legislation in the colony. I can speak with some confidence respecting the history of Land Court reform. My efforts