AN EXTRAORDINARY POSITION.

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

AN EXTRAORDINARY POSITION.

The very interesting judgment of Me. Justice Edwards which we publish in full in another column affords an interesting commentary on the attitude of the Government in relation to Native land matters. The facts are very simple. Some years ago a European obtained from certain Natives a lease of 1400 odd acres of second-class land. The law at the time permitted him to do this and the lease was registered in the customary way. In course of time he disposed of it, and his successor in turn recently desired to transfer the lease to another European. The District Land .Registrar at Gisborne refused to register this last transfer because, in 1909, the law had been amended to provide that no one shall be permitted to purchase or lease more than 1200 acres of second-class Native land. In other words, he held'that, despite the fact that a European settler had legally acquired the lease, the Act of 1909 was retrospective and confiscated the powers given him when he took up the land. The law permitted him to enter into a contract, and having done so the law then proceeded to rob him of his rights under the contract. Of course such a position is contrary to all the principles of law and justice and the Court decided that the Act of 1909 was not retrospective and that the European who obtained the lease had the right to transfer it to another European. Me. Justice Edwards has made the merits of the position so clear in his judgment that it is not necessary to dwell on that aspect of the position at all. There is one point, 'however, which calls for comment. There is a clause of the Act of 1909 which permits the Government by Order-in-Council to set aside the restriction as to the area, of Native land which may be purchased or leased by any one' person. It was under'this clause that the Mokau sale was permitted. The Crown Solicitor argued that the lessee in the case under review should have gone to the Government and obtained from it an Ordcr-in-Council to over-ride the ordinary provisions of the law.

The answer to this by Mr. C. B. Monisox, counsel for the lessee, was very pointed: Why, he argued in effect, should any member of the public have to go to the Government and seek as a favour what the law had already given him as a right? The reason, of course, is very' plain. The Government wishes to retain its power of patronage in respect of Native lands transactions just as it does in all other matters. Anyone who has had dealings in Native land knows how swiftly obstacles can be removed by the Government from the path of tile man of the right colour politically: and how simple it is by means of delays, due of course to oversight, and the raising difficulties Innumerable, to penalimi and perhaps block altogether the man

who is suspected of being out of sympathy with the powers that bo. In the case under discussion a most dangerous principle was fought for by the Crown. As Mji. Justice Edwards put it: it meant, if successful, "striking a heavy blow at public confidence in the security of tenure of land honestly and lawfully acquired and in the safety of titles duly registered under' the Land Transfer Act." And the Government was prepared to strike this blowto confiscate this or any other similarly situated Native land leaseholder's rights—in order to maintain and extend its power to bestow favours or to repay affronts. It is only another step to say that no one who has purchased the freehold of Native land—no matter how long ago—shall be able to dispose of it without the consent of the Gove/nment, And another step further and no one will l)e able to sell or buy land at all without first obtaining the gracious consent of Ministers. Nothing could be more, destructive of confidence and more' damaging to the Dominion than such attacks on "the security of the tenure of land honestly and lawfully acquired-' and on "the safety of titles duly registered under the Land Transfer Act." It might be added that the Chief Justice, as is a fairly common occurrence of late, was in disagreement with the majority of the Court in holding that the Act of 1909 is not retrospective, he favouring the view of the law taken by the Government. It is interesting to note that this is the fifth occasion during the present week on which Hie .Robert Stout has been in a minority of one in Appeal Court and Supreme Court judgments. Judges differ at times all the world over, hut the Chief Justice of lata would almost seem to have established a record in the way of having his judgments upset or over-ruled by his brother Judges.