COURT OF APPEAL.

Dominion, Volume 5, Issue 1500, 24 July 1912, Page 2

COURT OF APPEAL.

THE! BED OF LAKE ROTORUA

WHO OWNS IT?

NATIVE CUSTOMARY RIGHTS

Interesting and important is the part played by the Treaty of Wnitangi in a special case which is now before the Court';of Appeal. It is a case in. which the Court is asked to determine ft nurabeiof questions in regard to-'the ownership of the bed of Lake liotoriia. The main point I .involved is embodied in the following. question There having been no cessiGu to tho Croivn by any Natives of the Native rights (if any) in Lake Jfotorua or the . or of any right of fishery or other user, to what extent and in wjiat mflnner (ifvat all) does tho Treaty of Waitangi secure t» ; the Native "owners their rights (if any) to the lake or tho bed thereof? On tho Bench yesterday were the Chief Justice - (Sir Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. The'plaintiff in tho action was Tmniihana Korokai, aboriginal native, of Rotorua.VHo is proceeding on behalf of himcclf aiid all others who-are-the owners, According to Native custom ond otheriivise, jof the land covered by the waters of Like Rotoruri. The defendant was the Solicitor-General. C. P. Skenett, K.C., and Mr. C. B. Morison, with .Mr. G. H. Fell, appeared for tlie»plaintiffs,' while ; tho;So-Hicitor-Gencral (Mr. J. W.' Salmond) appeared in person and had Mr. H. H. Ostler)' of the Crown Law Office, associated with him. . ■

n ' First Recourse to Law. 1 The;'fiction, was originally brought' in rhe Supreme Court at Auckland \vlien tho Court'.was asked to. declare that Tami-hana-"lCorokai t and the other Natives (upoiCthe vesting in them of the,fea.simplo of lands adjacent ,to Lake Kotoma) . became, or will become, tho otniers in fee simple of a portion of the hke itself. •■■Subsequently a special case was stated, MM-removed to-the _Qourt;of Appeal. Tho facts M out mention-thaf'Lake Rotorua,. Is a '-navigable tract! of:'u-ater about 7.J miles iin longthifind milef .in bveadtiu- , lhe island of Mokoia, situated in the centre of'the lake, is Native customary Jaiul,.while, of tlio'land adjoining tho bed ct the lake, some portions ore Native customary land, other portions-' are Crown land, other portions are held in freehold title ibj* Europeans, and tho freehold land. Prior to ~ 1881, all 6f theland adjoining the lied of .. 2iS? Ivns Native enstomflrr land, .cept ."18 acres granted to -the Ohnreh Jlis- ' At" various times between 18«1 and 1886 the title to most ot the land adjoining the ,bed of the . jnlve was investigated by, the.Native.Land -Court and certihcates qf;titlo".i\-ere i&sned. ■ J he owners (as determined by these certirf%hl f £ $ ,jocill "<'' f'"> proprietors of the freehold -upon the passing of tho ; Nahvo Land. Court. Act, 1891. In 110 caso did"- tho acreage" mentioned in ' the" cortifiqato.ot title include any part of Hie bed ot tfcojakp, mid .no part. of. that ■oed t has ever formed tho subject of investigation of title by tho Native Land Court, nor luis\ uuy-,- Crown, grant been 'Inke ln ro,l)oct uf: - al ' 1 J ! part of'the

Tho Fishing from-Time Immemorial." T'rom time/immemorial the Native iiiivo fished in .the lake as of right, and u I , s ' cl iVW l ' b ! tVfimilwha Korokai and others/.that defined' portions of the , e wye .always been, exclusively appropriated as:fishing -groumk'by. particular tribes, .communities, or. individuals. The lisc ot. specific fishing grounds in streams,. Jagoons, or small 1 lakes is generally acoepted.iy. the,Native.Land .Court.as cogent ; evidence of ownership by the users find,.as -no agreement has ,a't any time been-made between the Crown antl any A atires ,tor.. the. .sale.' or - cession of the .the;' Natives claim that cusruonuiry- and- exclusive -rights of fish--in!,' are-vested in them, and tlmt those t J ;capablo. of ~ legal recognition by the Court of Appeal or the/'Native i/and Court. ... . Hntep • .-the ' paheka.', , , lor ninny yt'ars, however, the lako ha? been "itseiMiy; the■ public (in common w itn the. i\ativp>). as a fishery and place ol recreation:: :Tbo Crown has also regulated, the .licensing of. launches plving for Jnrojou the.lake, while the right to' fish Jor trout has been the "subject'Df tlio issue of licenses under statute law. The Crown denies all the claims of tho Natives, and contends 'that..any jexclusivo occupation that .hitherto existed'has long since been abandoned. Furtho.y the Crown claims the bed; 01-the lako as Crown land free Irom any: propl-ietary :■.'or" other riHit of exclusive iisar on tlio part' of the Natives and alsa.claims-that it has at no timo recognised' "any. such right as vested in tho Natives, and that; if: Nativo customary title at.any timo extended to the n.etl of tho lake, such titlo .has .been extinguishM by implied surrender, abandonment, or cession.

Eleven Knots to Untie, Eleven questions woro submitted to the Court, for answer in regard to the ownership of the hod of (he lake; as to-tho jurisdiction of the Court' to- determine, as against, tho Crown, that any land claimed by the as...being Crown land free from 'Native customary title, is nevertheless Native customary land; as to whether the alleged customary rights of iish'ihft' are Capable of legal recognition by any-Court-,-and as- to what extent the Treaty of AVaitnngi" secures to tho Native owners their rights (if any) to the lako or the bed of: the lako. •■.■■'.., ■Oui'Miff/the course, of argument, the Soli(utor. : (.ieiieral, in answer to ij question by the Chief Justice, said that it was not disputed 'thaf'tho • Native*"'had ".a light to go to the Native Land Court to have th'e.' titjti ' of Native customary' lands investigated, hut, where the Crown stepped in and declared that such lands were, Crown Jnuds, the > Court • had no ji.risdietion. He-contended that Native customary title waS'iiot'a'valid.legal title as against the Crown. !" The Chief Ju-ftice said that that "would be the-main point to which Mr. Skerrett would havo to direct his argument Mr. Skerrctt's argument .occupied until 3.30 p.m., but Mr. Morison had l'tot concluded at 1.30 .p.m., .when the Court adjourned .until Jo.3p,a.m. to-dav.