G.—6g

2

At this time (22nd March, 1907) Ngamoni was forty-one years of age, the elder Tiwai sixteen, Te Maunu Tiwai ten, and Ngamoni to Waari two. There is no evidence to show that the first two were known or recognized by the people as tamaiti whangai's of Ngamoni, or that she herself had ever publicly acknowledged them as such ; but it must be remembered that her mother had been dead only two months at this time, and her application to the Court to take her statement may be looked upon as a public notification of her intention to adopt all three children. No objection was raised in that Court beyond that of Inia Tahata on behalf of his niece, who he claimed had also been adopted by Ngamoni and her mother. As to the youngest child, Ngamoni tc Waari, she appears to have been taken on the day of her birth (7th January, 1905), with the consent of her father. Her mother died about a week after the child's birth. This child, like the others, is related to Ngamoni on her mother's side, and, as in the case of the others, Ngamoni stated her desire to take her as her own child, in the Court of 1907. All three have lived with Ngamoni. Under these circumstances, and in tho absence of opposition, we think any Judge would probably have given the certificate required by the Act of 1901, that in the case of each of the three children there was a bona fide adoption according to Native custom, though there is some doubt in regard to the two elder children, owing to their ago and to the fact that they were already foster-brothers of Ngamoni. Assuming, however, that all three children were adopted according to Native custom, are there any special reasons in their case why non-compliance with the Acts of 1901 or 1909 should not be, the bar that it has been in dozens of other instances ? If there are no such special reasons, then to give these children an opportunity of obtaining legal status as the adopted children of Ngamoni would result in a great number of petitions for similar treatment which Parliament could not logically refuse. In this way a virtual repeal of section 161 of the Native Land Act, 1909, would bo effected. It is for Parliament to say whether this is considered desirable. Notwithstanding the difficulties in the way of communication between the Chathams and Wellington, there was ample time between March, 1907, and March, 1910, for the application for a certificate of adoption to have been fully heard. The evidence was on record, and the attendance of witnesses was therefore not necessary. As a matter of fact, no witnesses were present at the Court on the 28th April, 1913, when the issue of a certificate was ordered, and Ngamoni's agent had been in attendance at a Court in Wellington in 1908, but did not then bring this matter forward. As for the youngest child, there was, in additiorr (as the Chief Judge, in his report pointed out), ample time, to obtain an order of adoption under tho 1909 Act between the coming into force of that Act and. the death of Ngamoni Ngawharewiti on. the 12th August, 1915. Moreover, previous to the 31st March, 191.0, the principal lands in question, except Kekeriono 28, were devisable by will, and even 28 was so devisable after that date. It was therefore in Ngamoni's power to distribute these lands in any way she wished ; but she died intestate, although her advisers must have known that a certificate of adoption was merely sufficient, not conclusive evidence. No one has even suggested that any official of the Court has been guilty of delay or error, or was in any way to blame for the application not having been brought before the Court earlier, There is also this further point of view : that, in addition to the case stated for the opinion of the Supreme Court as to the validity of the adoption order, there has been considerable, litigation over the succession to Ngamoni's lands and property. This has been rendered more than usually expensive by the fact that witnesses and parties have had to come from the Chathams. Surely the ordinary equity of the next-of-kin is enhanced by this, and they should not be lightly deprived of the results of so much expenditure of time, labour, and money. Native opinion in such cases, so far as our experience goes, usually leans more to the next-of-kin, regarding it as important from a hapu standpoint that the near relatives should not be antagonized by having their claims to succeed ousted entirely by adopted children. We think there are no special reasons to induce us to recommend legislative action to remove the bar imposed by section 161 of the Native Land Act, 1909. Ir+l « , , laoo S? A !; E D MacCormick > I Judges, Native Appellate Court. 15th September, 1922. W. E. Rawson, I b 1 x

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