RESERVED JUDGMENT.

Hokitika Guardian, 20 August 1926, Page 4

RESERVED JUDGMENT.

MAORI RIGHTS OVER NATIVE GAME. DECISION OF .MR AIELDRUM. S.M. At the Magistrate's Court, Hokitika on Thursday, Mr W, Meldrum, S.M., gave his reserved judgment, tus follows :—- POLICE v. FLUETV. Defendant, who is a .Maori, is charged with taking trout out of season. The facts are that on 30th May last he, with a friend of his, a European named Tooliey, were met by Constable Drummond near Lake Kanieri. Each of them was carrying a bag. Toohey’s contained three native pigeons (the subject of another charge) and defendant's a trout and half of another one. Defendant said he had caught the trout in tin* Arahura river between

Aft. Talma and the sea. For tho defence, Air Alurdoch has raised two questions ot historical interest. — 1. That under the Trebly of AYaitaugi members of the Native race were

guaranteed by the Crown the lull exclusive and undisputed possession ol (inter-alia) their fisheries. 2. That the Arahura .river is vested in and belongs to the Natives, and that, on cither ground, they are entitled to take fish from it as and when they will, without regard to the Fisheries Act and the regulations under it. The Treaty of AVaitangi which is dated the oth day of February, 1840. contains three articles. Under the first uio Natives signing it cede to the Queen all the rights and powers of sovereignty exercised or possessed by the chiefs. Under the second the Queen eonlirined and guarantees to the chiefsand tribes of New Zealand and to the respective families and individuals (hereof ‘‘the full ami undisputed possession of their lands and estates, Ibrestp, fisheries, and other properties. which they collectively or individually possess,” with the right of option to the Crown in cases where they desire to sell and the price is agreed on. Under the. third the Queen “extends to the Natives of New Zealand her royal protections and imparts to them all the rights and privileges of British subjects.” In conformity with the Treaty the Crown has acquired by purchase from the Natives largo -areas of land; and has also by legislation, relaxed and (in 1862) finally abrogated its right of pre-emptions, and permitted spies to corporations and to private individuals. Amongst the land ,acquired by the Crown was a large area in Westland “with its trees, minerals, waters, rivers, lakes, streams and all pertaining to the said land.” The plan in the deed of cession, which is duted the 21st Atay, 186(1, shows that the whole of the Arahura river was ceded by tho Natives to the Crown. Certain reserves for the benefit of flic Natives were

~ subsquentlv made, amongst them be--0 ing one of “2000 acres on both sides of tho Arahura river from Aft. Tah’.in _ to the sea.” Bv this reservation the y bed cf tile river, which is a non-navi-gable one, became vested in the Natives on each bank as part of their general s right of ownership. (In re-Beare and v another, G.L.R., 1900, page 242). 0 The question for the | Court to decide is whether the native owners (ol p whom defendant is one) have, by vir--1 I no of the Treaty of AVaitangi, or as p Native riparian owners, greater rights ■ ever the Arahura river, and the fish in it, than they, would have had if tlicv had been non-Maori owners. Under tho Treaty they were gtiarj anteed “the full exclusive and uiulispuked possession” of their fisheries. But “apart from legislation tho Treaty of AVaivaugi is merely a bargain binding upon the conscience of the Crown and is not a source of legal 5 right.” (Sir John Sdmond, N.Z.1..R. XXXIII p. 1068). The Privy ( ouneil \ in Nirealm, v. Baker (1904 A.O. 501) held that “the Treaty confers no rights ' ( og.ninab’e in a Court of Law”; and Sir R. Stout, 0.J., in giving judgment of tho Full Court in Waipapakurn v. 1 Hcmpton, (N.Z.L.K. XXXIII p. 1071), said.—“lt may be. . that the Treaty 1 of AVaitangi meant to give such an ex- ’ elusive right to the Alaoris, but, if it meant to do so, no legislation has ueen passed conferring the right, and in tho absence cf such both AA'i Parata v. I the Bishop of Wellington, and Nireaha Tamaki v. Baker, are authorities for. saying that, until given by statute, no such right can bo enforced. An Act alone cain confer such a right.” Unless, therefore, the Fisheries Act 1903, which regulates the ’fishing for trout in New Zealand waters, gives special privileges to Native riparian owners, such native owners must he regarded as being in the same position with regard to fishing rights as nonAlaori owners. Under Part l of the Fisheries Act 1908, which deals with sea. fishing, special references are made to Natives. But in Part TI which deals with fishing in inland waters for trout, salmon, etc., Native owners are not- referred to. There is a section in the <■ Act (see 88 (tl) ) which exempts all riparian owners of “private waters” front the operations of the Act • hut the Arahura river does not come within the definition of “private waters” because it runs through Crown Lands above Alt. Talma before reaching the reservations from ATt. Tahiti to the sea. Now under Section 90 of the Fisli-

cries Act “any person in lawful occupation of any land may fish without license, or payment of fee, upon such land within the period and upon the condition allowed iTv regulations. . . without being liable to any penalty for so doing,” and, if the defendant

had taken the trout in the open season, without a, license, he would have committed no offence. Hut., in taking the trout on the 2otli of May,. he took them during the close season, which extends from the Ist of May to the 30th of September in each year ('sec. 93) ; and in so doing, he. committed an offence under Section 87 of the Act, and under the regulations of 29th August, 1907. He is therefore convicted, and is ined the minimum penalty of 40s. POI.TCK v. FLUJCTY. (Taking pigeons while protected). On similar reasoning as on the charge >f taking trout during the close season lefendant is convicted of an offence mder Section 40 of tho Animals Prooetion and Opine Act 1921-22 and as .here was a bona-fide, belief of right >n the part of defendant no penalty is ntlicted, but is merely ordered to pay osts. ’OLTCK v. TOOHF.Y (Two Charges): The evidence shows that both the rout and pigeons wcie taken by 'luety. and that Toohey was merely iirrying the hag of pigeons lor Flucty n the way to Arahura. On the facts therefore the cases 'T,inot him are dismissed.