DANGEROUS PRINCIPLE.

Dominion, Volume 4, Issue 1204, 12 August 1911, Page 14

DANGEROUS PRINCIPLE.

SECURITY OF NATIYE LEASES. INTERESTING JUDGMENT. "BLOW AT PUBLIC CONFIDENCE." , In Iho Supremo Court 1 yesterday decision was given in a caso concerning the transfer of tho lease, of a block of Maori land which was heard last Monday beforo tho Chief Justice (Sir Robert Stout) and Justices Edwards and Chapman. The land is known as Kopaatuaki No. 2 Block, m tho Gisborne district, and the case originated in a summons to tho District Laud Registrar at Gisbovno to show cause why ho. should not register a transfer- of tho leasehold interest of Robert Henry Lawrence Oldfield, sheep-farmer, of Tologa Bay, in the .Kopaatuaki Block, of 1-196 acres, in favour of Norman Macfarlane Fulton, sheep-farmer, of Gisborne. .' Tho Registrar declined to register the transfer on tho ground that by Section; 193 of tho Native Land Act of 1909, tho transferee was prevented from acquiring' 'lib land because it was second-class Native freehold, and exceeded in area tp maximum' amount (1250 acres) which-'any person ,\vas,'permitted' to acquire.Vi. At the; hearing Mr. C. B. -Morrson. ap-peared-in support of tho application, which was opposed by .tho Solicitor-Gen-eral (Mr. J.-W. Salmond). ■Tho Court-has decided that the transfer must bo ( registered. The Chief Justice dissented' anil considered the> summons Should have been dismissed. ..-.-■ Mr. Justice Edwards's View. The following is tho text "of. the judgment of Mr. Justice Edwards:— The facts in this ease are few and simple.. The land in question is land held in fee simple under the provisions of the Land -[Transfer Act by certain Maoris, who have been constituted a body corporate under tho uamo of ".The Pi\jprietors of;tho Kopaatuaki' Block No.'. 2." By- a memorandum of lease dated December 8, 1006, this body corporate leased these lands to., one Donald M'Donald. The I lease was duly registered under the provisions of the Land Transfer Act, 1908. Its validity has not-been questioned. On September 30, 1908, Donald M'Donald transferred the lease to Robert Henry Lawrence Oldfield. On June 27, 1911, Oldfield, in turn, executed a transfer of the lease to Norman Macfarlane Fulton. On June 17 the transfer to' Fulton was tendered to the district land registrar for registration. The district land registrar refused to register the transfer, giving his reason in writing as follows-.— "Re transfer of lease Oldfield to Fulton. "Registration of above , transfer is declined on tho ground that tho transferee is barred by Section 193 of the Native Land Act, 1909, from acquiring the land, inasmuch -as it is second-class land, and exceeds 1200 acres."

It is admitted that the transferee, Pulton, does not own any other land than that included in the lease, the transfer of which tho district land registrar has refused to register. The objection of ■ the district land registrar is not that tho least/ cannot be transferred to Pulton, but that it cannot be transferred to anyone. The question is whether or not this objection is sound in law. ' Section 193 of, the Native Land Act, 1909, upon which the district land registrar relies for tho ground of his refusal is as follows-.— "193. (1) It shall not be lawful for any person to Require any Native freehold and as the beneficial owncT, lessee-or sublessee thereof, whether at law or in equity, and whether solely or jointly or in common with any other person," if the land so acquired by.li.ra. together with all other land (whether Native, European, or Crown land) held by him as the beneficial owner, lessee, or sub-lessee thereof, whether at law or in.equity, and whether solely or jointly, or in common with out other person, exceeds a total area of 3000 acres calculated in manner hereinafter provided in this part of the Act. M "^. J l l , ihi ? of,..this Acft-tho term 'beneficial owner'.nicluTes""'(t'ho'ugh not v to the exclusion of any peTson entitled in remainder) a- person beneficially entitled as tenant for 'life." or as owner of anv other freehold estate or interest less thai the. fee simple.

(3) Nothing in this section shall apply to the acquisition of any interest in Native land under a will, or by way of intestate succession,'" Security of Tenure Threatened. It is obvious that, if the lease in question in the present case comes within the "^'"'"tion. of this section, the right's of Oldfield—the present owner of the .'lease— have been gravely prejudiced without notice to him, and without compensation. It is not unimportant' to notice that Oldheld has aenmred his Tights under an instrument duly registered under the Land Transfer Act,, and that there is not tho smallest suggestion. of any impropriety on his part, or on tho part of the les;eo (Donald M'Donald) through whom he claims-. If the contention of tho.SolicitorGeneral, who supports the view advanced by the district land registrar were to prevail, it must bo at the expense of staking a heavy blow at public confidence in the security of tenure of land honestly and lawfully acquired, and in tho safebof titles duly registered under tho Land Transfer Act.

If it is possible to put any other construction upon tho enactment in question, that construction should certainly be adopted. And it may be adopted with the confidence that it expresses the true intention of the Legislature, or at least that it more nearly approaches that intention than does- the construction for which tho bolicitor-General contends. . ;''? he :,?9 l i';;'.9V-Q« n oral,'; it:is true, contends that, upon the ■ construction which he asks the Court to put upgn the statute there is no serious-infraction of private rights, because, undfr Section 203, "The Governor may by Order-in-Council in any caso in which ho deems it expedient in tho public interest to do so, authorise any acquisition, alienation, or"? disposition of Native land or of any interest therein, notwithstanding any of tho provisions of this part of this Act." To this, counsel for the applicant replies that hoi objects, to-havo ' the quality-of alienability taken from his land, lawfully acquired, even though there bo a provision under which proline vice that quality may possibly be restored to it by the Executive Government. It is impossible not to feel tho force of this objection. But thero is another observation : which' may be made, nn this matter. Tf them is any principlo of public policy sufficient to justify an enactment which, in tho sen«e for which the Solicitor-General contends, is so serious an infraction of private rights, and which, construed in that sense, must necessarily so seriously shake public confidence in tho security of tho tenure of landed property in this country, then it is almost inconceivable tint the Executive Government could ever bo justified in applying Section 203 of tho statute to the case.

Retrospective Legislation, ~J t '! lc , r , e . Cil . n ', ° f co « r se, lio no question that this Act, read as tho Folicitor-Gen-eral reads it, has a retrospective operation, taking away from leasehold estates, theretofore lawfully created, their essential quality of alienability. The mode in which the construction of such a statute should be approached has been well stated by Mr. Justice Kekewirh In re Chapman (J8!)G) 3 Ch. 323 at p. 327, in these words: "There are many cases' upon tho general doctrine whether an Act of Parliament may be read retrospectively or not, and there are many cases upon the meaning of particular statutes, but onu lias the general law concisely slated by Lord Hatherley in his jurlemen't in Pardo v. Bingham L.K. I Ch. 735-739, whore ho says: "Tho question is ... . secondly, whether upon general principles the statuto onsht, in this particular .>cction, to be hold to operate retrospectively, the general rule of law undoubtedly being that, except there bo a clear indication either from tho subject matter, or from the wording of a statute, the statuto is not to havo a retrospective construction. Otherwise you assumo that it is not retrospective, but you may lind that presumption rebuffed by a consideration of tho subject matter, or by the language of tho statute. Then, on the next pase, ho says: "In fact, wo must look to I ho general scope and purview of the statute, and at tho remedy sought to be applied, and consider what was tho former stntn of the law, and what it was that tho i/Ogislaturo contemplated." Of course that opens up a wido field of inquiry; but no words can express better than these of .Lord Hatherley what the duty of the.

Court is." Beyond this, it must Tub ro. membcred that, if this statute hears tho interpretation put upon it by the SolicitorGeneral, it is ii statute taking away piivato rights, aud that it is a rule that no statute should be so interpreted, unless tho private right is taken away in direct language. The case of Walsh v. Secretary of State for India 10 11.L.C. .'lO7, 11 E.K. 3(SG, is a striking example of this rule. We havo also to remember that, upon that construction, Iho statute is a stntuto taking away private rights without compensation. To tho consideration of siieli a statute, wo may well apply tho language of that sturdy Englishman aud great master of the common law, Lord Brannvell, then Lord Justico Bramwell, in Wells v. London Tilbury and Southend ltailway Co. O.C.i). 126 at p. 130: "I agree that wo ought to construe this Act of Parliament according to the failmeaning of the words, even supposing the true construction of the Act does an injustice to the parties. But we may well approach the construction of an Act of Parliament of this kind in the belief that it was not intended to confiscate a private right, for this would .be a simple case of confiscation, and wo ought not to suppose that this was intended by the Legislature, or sought for by tho railway company. Tho statute recites that it is expedient that the rights of way therein mentioned should be extinguished. But it certainly is.not.expedient that a private right should bo taken aivay without making compensation. The Legislature, in an Act providing for the execution of public works neve 1 : takes away tho slightest private right without providing compensation for it, £nd the general recital that it is expedient that works should be done is never supposed to mean that in order to carry them, out. a man is'to ho'deprived of his private rights without compensation." ' Confiscation. • Approaching tho consideration of the Act now befora tho Court-by tho light of the principles of construction -so laid down, I find that it is "an Act to consolidate and nmond_ the law relating to Native laud." It is, I take it, an Act intended for tho ascertainment of Native titles, and for'regulating the succession to, and the disposition-of, lands held by. •Natives. Many subordinate matters aro incidentally dealt with, but always, 1 think, .with a view, to furthering the main purpose. -There 'have been many such Acts, but never.before, I think, one- which, has contisinted interests held ia' Native lands by Europeans, in strict accordance with the law and without the faintest suggestion of impropriety. Proceeding then to Part XII, of which 1 - the section to be interpreted is the earliest, I find that if the freehold of this land had been sold and transferred at the data of the lease which we have before us, there is no pretence that it could be affected by this part of the Act. The Solicitor-General admits this, but ho says that nothing ia to b« inferred therefrom because upon sale the land would cease to be Native freehold land. The words "Native freehold land," as used in this statute, mean simply freehold land owned by Natives. It would be just as reasonable, and just as easy to interfere with the rights of freeholders who had purchased from Natives, as to interfere with leaseholders who have taken leases. Tho Solicitor-General is right in saying that under tho arbitrary definition given by the interpretation clause, "Native freehold land" becomes "European laud" upon its sale and conveyance to a European. He is also right in saying that under the samo arbitrary definition, the land subject to the lense before this Court is still "Native freehold land," because tho reversion upon the termination of tho lease ; is s>till owned by Natives. But the Solicitor-General does not say, nor can anyone say, why it should bb fair and politic to, In a great measure, confiscate leasehold interests derived from Natives, while at tho same timo allowing freehold estates—acquired possibly from the same Natives and at the same time—to remain unhampered. So far as this question goes, there is no distinction between, the. freehold estato and a' leasehold estate; except a distinction in words, and in words read in the artificial meaning given to them by the Act. Turning then to Section 2H of the Act, I find this enactment: "Nothing in 'his Act shall take away or affect any right existing at the commencement of this Act to the specific performance of any contract for the alienation of Native land, or to the enforcement of any equitable interest in Native land; and every such right shall bo enforceable, nnd"niay be., acted on and carried'into full effect in the:samo manner as if this Act had not been passed." .Infringing Private Rights, I proceed then to tho consideration of Section 193 by tho light of these facts:— (1) That tho applicant claims, under a transfer of a lease duly registered under the Land Transfer Act prior to the commencement of tho Act, and that that lease admittedly complies with aJI the requisites of the law. (2)' That, if he claimed under a conveyance of tho samo date as the lease, and executed by the samo Natives, his rights would have remained entirely-unaffected by-the Act. (3) That, if ho claimed under an agreement by the Natives to grant a leaso executed prior to the ,Act, he could have enforced tho contract by a suit for specific performance, notwithstanding the provision of Part XII of the Act. AH rights of this nature aro carefully preserved by appropriate language in Section 21-1.

I next find that, by Section 193, it is forbidden "to acquiro any Native freehold land as the beneficial owner." I pause hero to observe that this can only mean a dealing with a Native or Natives, because, the moment that "Native freehold land" is conveyed to any person not of tho Maori race, it becomes "European land," whether the purchaser is European, American, African, or Asiatic. Proceeding with my examination of Section 193, I find that the full prohibition is "to acquire any Native freehold land as beneficial awner, lessee, or sub-lessee thereof.". I have already established that this prohibition, so far as it extends lo conveyances or tranfers of freehold land, is a prohibition against dealing with Natives. Bearing this in mind, and bearing in mind that the rights of purchasers, prior to the Act, of Native freeholds are excluded -from tho operation of this Section, and that the Tights of those claiming under contracts are carefully preserved by Section 2U, I am unable to doubt that the remaining words of the prohibition also refer to dealings with Natives. The case is one in which' the maxim Noscitur a sociis is applicable, and should be applied. Section 193, in my opinion, means (and should be Tcad as meaning): "It shall not be lawful for any person to acquiro from any Native any freehold land as the beneficial owner, lessee, or sub-lessee thereof," etc.

I hardly, think it necessary to invoke tho principles which regulate, the construction of statutes which are capable of being read as having a retrospective effect, or as infringing private rights. But, if it is necessary, those principles are applicable. In ray opinion they put tho question beyond argument. It will be observed that the construction which I put upon Section. 193 leaves to that section all tho operation which it can properly have. As to all transactions, posterior in date to the statute, it takes full effect. As to all transactions prior in date to tho statute, it leaves them, as it ought to leave them, wholly unaffected. In my opinion there should ha an order to tho District Land Registrar to register tho transfer. .• The costs of the applicant, thirty guineas and disbursements, should be ordered to bo paid out of the assurance fund. If tho District Land Registrar has incurred any costs, these should be ordered to bo taxed, and when taxed also to bo paid out of the assurance fund. Mr. Justico Chapman read a judgment in which he agreed with the remarks of Mr. Justice Jidwards. The' Chief Justice, in tho course of a dissenting judgment, was of opinion that Mr. Morison's contention "that as the lease was granted in 190(1, no dealings with that lease como under the section of the Act" must fail, and likewise his contention "that .Mr. i''ulton will not be a lessee." Keierring to tho third contention "that the transfer is made valid by Section 205," his Honour said that this turned on the meaning of Section 205, which read as follows: "No alienation, acquisition,' or disposition of Native land, o/ of any interest therein, shall be invalid because of any breach of tho foregoing provisions of this part of this Act, but every person who wilfully commits, aids, or abets any breach of these provisions shall be guilty of an indictablo offence," etc. Continuing, tho Chief Justico said: "Tho contention was that tho person who gives or takes a transfer may be prosecuted, but his transfer is valid. No doubt it is valid if it onco gets registered. 1 presume it was made valid so n.s to savo tho Land Transfei Assurance Fund. However, as yet thero is no alienation, for, till registration, there is no alienation, acquisition, or disposition, and, therefore, this question of validity does not arise. The Registrar has, in my opinion, a right to say that tho transaction ja aa illegal transaction, and re-

fuso registration. Tlierc was n suggestion mado rather than an argument used that the words in Section 1!M, 'together with all other land/ implied that the person acquiring must Jiavo other laud, but it does noi. sewn to zno that that suggestion is of any value. .'What tho statute is dealing with is the area that the person acquiring tho land will have when ho gets the .transfer, i'or these reasons, I am of opinion that the summons should be. dismissed with costs." The Solicitor-General asked leave- to take- tho ease to the Court of Appeal without it being necessary to lodge security. Leave was granted. .