NATIVE LAND LEGISLATION.

Gisborne Times, Volume XXVI, Issue 2116, 15 February 1908, Page 4

NATIVE LAND LEGISLATION.

EMINENT LEG Al. AITUOIUTY DECLARES IT SI lAM EL ESS IN DESIGN AND INOPERATIVE IN 10 I , T | 'ECT. THE TKKATY US WAIT ANO I STILL Til 10 011 HAT LAND CHANTER US 'IMIIO MAORI. ()no o| t-lu' highest 1 authorities in tln> Dominion on Native land legists t ion has recently laid down the tollowing opinion on tlio present position ol oil]' Native land legislation: Our Native land laws have, unfortunately, almost from tin l beginning of re.-iuinsihle government, been illogical and absurd. In one legislative breiUh the Maori bus heen treated as the owner of his land, and in the next as an outcast. Amendments have been piled on amendments of laws until no one who lias studied the subject can diseeru any safe or satisfactory course except to return as fur as possible to first principles. An important lead in Shis direction has recently boon .given by <i 'decision of the Privy Council. It was loop, supposed that the Treaty of AY'aitungi was at best an interesting 'historical documont of little or no legal value. Now, numb that has been ;>ml to this elfect will have to bo unsaid. The Privy Council in reversing a judgment of our Court of .Appeal, given as long ago as fifteen years, lias pronounced beyond all controversy that the Treaty of AVaitangi must be considered bhe foundation of (bo whole land system of the dominion, mid that it confers rights that exist at the .present .time. Tile Priw Council, in the ease referred to, overrules the opinion of the Court- of Appeal with reference to Native land that “it should hty left to the conscience of the Crown (or, in other words, the Minister of the day) to determine what is jus-tice.-This was certainly a startling doctrine, and, while it remained for several years the aiUhorutive expression of 'the law, may have been responsible for encouraging -a course of legislation Unit indicated the conscience of .the Crown to be -at a very low ebb. It- would even appear at the present day that the correction of the "former biliary -has not yet enabled those responsible for Native land legislation to rise to the level of the mind expressed .in the Treaty now reaffirmed as the great Land Charter of the Maori people. It confirms and guarantees to the aboriginal inhabitants of New Zealand “the 'full, exclusive, and undisturbed possession of -all their lands, and Estates, Fisheries, and other properties” which they collectively or individually possess “so long as it is their wish and desire to retain tho same in their possession,” subject only to tlio preemptive right of the Crown to purchase “at such prices as may bo agreed upon.” And further, 'as also affirmed by the Privy Council, one of the earliest statutes, still in force, affecting land tenure in the dominion, emphasises “the 'rightful and necessary occupation and use” by the Natives of their lands, subject (as in tlio Treaty) to the Crown’s right of pre-emption, which on being properly exercised results in the extinguishment of- the original Native title. On this point the opinion of an eminent judge bus, in the same decision of t.lie Privy Council, been quoted as follows: “Whatever may bo the opinion of jurists -as to the strength or weakness of the Native title, it cannot be too solemnly asserted that it is entitled to be respected, that itcannot be extinguished (at least in times of peace) otherwise than by the free consent of tho Native occupier*” and in strict accordance with the statutes dealing with the subject. Apart from the various Acts bearing on the special jurisdiction of the Native Land Court for .ascertaining and defining the rights of Native claimants—Acts for the most part machinery measures (more or less) defective foT the . manufacture of titles, —there has within the last eight years been a series of Acts designed to deprive the Native owners of the least "vestige of control in their own lands. These Acts have been variously called Administration Acts, and Settlement Acts, and Adjusting and Amendment Acts, with the usual defects of that kind of legislation, but all steadily sapping up towards tho citadel of Native ownership in land and intended for its ultimate destruction.

Tlio progress of 'the seigo would appear to -have been somewhat- after this plan. In 1900 there was an Administrate ion Act which set up elective Maori Councils, with the idea, possibly, of propitiating tho garrison. In tho three or four following sessions this apparently friendly advance was further developed by sundry Amendments -d i reef ed' to : stre n gtfhe uing -th a approaches already made, blit--hot: much that was important was accomplished. In 1905 fresh ground was broken under cover of what was called a Settlement Act which purported to give the Native-Minister powerover l-arnl which (in the language of the-statute) was “unoccupied or not i properly utilized.” At the same time i the elective Maori Councils were withdrawn and Maori Land Hoards nominated by the Nativo -Minister were substituted, on which the representation of the Maoris was one to • two Europeans 'who might -all (as in most .instances became the rule) bo 1 officials of the Native- Department. Still not much was done. The attack may be said to have been only nflpplied with blank cartridge. But early tliis year a Royal Commission was set up to report as to what lands were in its opinion “unoccupied or not profitably occupied,” with a view "to -the- Native- -Minister by Order in Council vesting such lands in his nominated -Boards. This was heavy artillery indeed. Reports -from the Royal Commission have from time to time been .heard. And now, in the session just closed, tho Governmenthas succeeded in passing against .the spirited but ineffectual opposition of the Maori chiefs and a few allies-in Parliament two measures, an Adjusting and Amending Act and -a Settlement Act, which are expected to hatter down the last pallisades defending Maori ownership in land. Section 14 of tho first named Act provides: “Whenever any land is vested in a Board by virtue of tlio Maori Land Settlement Act, 1905, the District Land Registrar < f the i strict -in which such kind is situated shall, on the deposit of the said Order in Council certified_ under the hand of the Native Minister, register the Board in which the land is vested as the registered pioprietor 'thereof under the Land Transfer Act, .1885, and shall .ssue a eerti.fif-'L> of title accordingly.” Any other certificate is to be •ca ncelled and any one injured thereby is deprived of the remedy in damages against the Assurance Fund under the Land Transfer Act which exists for the cop.ee'ation of other sufferers. The Settlement Act is vaguer in terms, but to the same effect in ,-u importing to destroy the Native tile, ft is at least doubtful if some - f its sweeping provisions can be operative. For instance it enacts that: “Every Order in Council purporting to be made under the authority of this part of -this Act shall he conclusive proof that all conditions precedent to the making of such Order have been duly observed and fulfilled, and the validity of any such Order shall not he questioned in any Court.” That is to say that on the issue of an Order in Council drawn up in the secrecy of the Native Department all the safeguards which the Privy Council has so recently declared should be respected in considering whether the Native title lias heen properly extinguished, are in one breath swept away. It may well he 'confiscation could possibly be upheld. Again, there :is power taken for the Governor (in other words, the Minister) to issue an Order in Council prohibiting for twelve months ah private alienation of laud if the Commission so reports. If .given effect to, such enactments would mean confiscation complete and merciless.

It may be asked:' To whnl lands do hose extraordinary provisions reI a to : J The answer i- lh.it they relate l" nearly all the land tunl has not heen ,’rown granted in IheNoith Island, rile term ".Maori Land” is .inlcrpreed in what is called the principal Art,--that of I9oo—fo include any 'and or estate or interest in land held ir which may ho real ler he held by my Maori under any class of title, viih certain unimportant except inns. Nothing of the kind, so extensive mil shameless, has ever Indore been ittemplcd. The only approach, anil dicn for special reasons and on a relatively smaller scale, was ar. pen111v for' rebellion. \Vhat particular course should he Inhen to counteract Ibis attack on properly is deserving of very enrol 111 itt.enlioii. Each instance would have its special eireumslanees to he confide red, lull the general operation ol legislation could best- be combatted bv"united action bv those eon- • erned to retain control over their lands.