THE NATIVE LANDS ACT AMENDMENT BILL.

New Zealand Times, Volume XXXII, Issue 5165, 11 October 1877, Page 2

THE NATIVE LANDS ACT AMENDMENT BILL.

TO THE EDITOR OF THE NEW ZEALAND TIMES. Sir, —As numerous questions have been put to me within the last few days respecting the Native Lands Act Amendment Bill, introduced by Mr. Rees in the House of Representatives, I have carefully examined the proposed measure. On first perusing it I was of opinion that a very difficult question would be settled, and lessees of native lands would be saved much trouble in apportioning rents among the lessors interested therein. On further reflection I have come to the conclusion that the proposed Act is not calculated to benefit either the native lessor or the European lessee, but will, if passed in its present form, pave the way for innumerable law suits, and will also be unjust to a large number of native grantees. By the Native Laud Act, 1869, it is enacted, in sections 12 and 14, that—- “ 12. In any grant heretofore or hereafter to be made under the said Acts, when there is more than one grantee, such grantees shall be and shall be deemed to have been tenants in common and not joint tenants; Provided always that this provision shall not apply to cases in which the grantees or the survivors of them shall have already alienated the land comprised in their grant by absolute conveyance in fee-simple or to such part of the laud comprised in such grant as they may have so alienated.” “ 14. The estate or interest of each of several grantees whether heretofore granted or hereafter to be granted shall not be deemed to be equal or of an equal value unless it shall be so stated in their grant, and every grant shall contain the definition of the estate or interest or proportion of interest in the land granted which shall be set forth in the certificate of title on which the same is founded, it any such is set forth therein : Provided always that this provision shall not apply to shares, estates, or interests, already purchased from any such grantees, which for the purposes of such transaction shall be deemed to have been equal.”

The Bill now under consideration completely alters the provisions of the sections just quoted; and in order to understand the question I append the most important clauses of the new Act.

“2. It is hereby enacted that in all cases where Europeans have been or are in possession or occupation of lauds so granted to native owners under the said Native Lands Act, 1865, and Native Lands Act, 1867, under lease or otherwise, each native grantee of such lands, his heirs and assigns, shall be and be deemed to have been since the date of such lease or occupation, but only for the purpose of receiving or recovering rent or recompense for such lease or occupation, and for no other purpose, to be an equal owner in such land: Provided always that such equal ownership for the purpose aforesaid shall only last until the individual title of such grantees shall be ascertained and decided in a Court of competent jurisdiction. “3. That wherever land held under such Crown grant as aforesaid by native owners shall be or have been occupied and used by Europeans, such Europeans shall be and be deemed to have been liable to pay to each such native owner an equal share of the rent fixed by the lease where a lease exists, equal to the share of each of the other owners of such a piece of land, or a fair value where no lease exists or where no lease has been signed by such grantees ; and such sum shall, in the case of a lease, be deemed to be one equal share in proportion to the number of grantees who have signed such lease ; and in cases where no lease has been signed by the grantees or any of them shall be a fair value of, and for the use of, such share per year. “ 4. Such grantees shall be and be deemed to have been entitled to ask for, receive, sue for, and recover their respective shares of rent, or money as recompense for the use of their respective shares as aforesaid, either singly or together ; and the receipt or receipts of such grantee or grantees shall be a good and valid discharge at all times to the European lessee or occupier for so many shares of the rent or money value as aforesaid as shall be proved there to be or to have been paid : Provided always that where rents or money for use and occupation shall have been hitherto or may hereafter be paid bona fide and under good authority to one or more of such grantees on their own account, and on the account of others of such grantees, such payments shall be deemed to be good and valid payments under this Act.”

I will now proceed to show where, in my opinion, the Act of 1869 is right, and how injustice may be done to native grantees by adopting the present Bill. Eor the purpose of illustrating my argument, I will submit a case for the consideration of the gentlemen of the long robe. A block known as Aotearoa contains ten thousand acres, and has been granted, under

the Acts of 1865, 1867, and 1869, to tennatives, named respectively Aporo, Henare, Wiremm Maaka, Honana, Manihera, Hohepa, Tamihana, Hamiora, and Nutans, as tenants in common—and very rightly so. The land is leased to a European named Robinson, who pays a rental of £SOO per annum for it. Aporo is the largest owner, and his interest, if subdivided, is equal to two thousand acres. Henare, Wiremu, Maaka, Honana, Manihera, Hohepa, and Tamihana have equal shaves, and claim 7S'io acres of the block. Hamiora and Nutana own two hundred acres between them,—that is, ose hundred each. Aporo’s share of the rent, if duly apportioned, would be £IOO. The shares of Henare, Wiremu, Maaka, Honana, Manihera. Hohepa, and Tamihana are equal to £390, or about £55 14s. 3d. each ; and the proportion payable to Hamiora and Nutana would be £lO, or £5 to each. The lessee, Robinson, for the last twelve years has been in the habit of paying the £SOO to Aporo and taken his sole receipt for the amount. Aporo has apportioned this money among his co-gran-tees, and so far no dispute has arisen. Now,, it may be assumed that the new Bill having passed, Hamiora and Nutana find themselves by the operation of piVkeha law to be in the position of joint tenants instead, of tenants in common, and say ten pounds (£10) is too little for their portion, and for the future they demand fifty pounds per annum. Robinson is sued for that amount, and they recover it. It may be said, “ but Aporo can go to the Native Lands Court and ask for a subdivision.” All I can say is, Aporo will be an uncommonly lucky member of the native race if he can get that Court to determine his interest. It is a notorious fact that the Judges of the Native Lands Court seldom lose an opportunity of dismissing or adjourning an application for the subdivision of hereditaments,, and the Native Lands Act apparently justifies them in so doing. It is much easier to put the names of ten or one hundred natives in the same certificate of title or memorial of ownership than it is to individualise the title of each person interested. I will now quote the sections of the Acts of 1365, 1869, and 1873 referring to subdivisions of native lauds. Section 50 Act 1865. —“ 50. If under the powers hereinbefore conferred upon him the Governor shall make and issue a grant to more than five persons who shall be desirous that any subdivision shall be made of the hereditaments included in the grant for the purpose of effecting a partition thereof among the owners thereof, and if no sale, lease, or other disposition shall have been made of the hereditaments comprised therein or of any part thereof such persons may apply to the Court to make such subdivision, and on the surrender of the original grant to the Crown the Court may, in its discretion, proceed to take evidence, and to order such subdivision, or any other subdivision agreeable to the parties, and may order new certificates to be issued according to the plan of such subdivision, and the provisions hereinbefore contained with respect to theprooeedings of the Courton the issueof original certificates, and with respect to the making and issue of original Crown grants shall apply to the proceedings of the Court on the issue of the new certificates, and to the making and issue by the Governor of new Crown grants in lieu of the surrendered Crown grant Provided! always that it shall not be lawful for the Governor to insert in any such new Crown grant any restrictions limitations or conditions in cases where the original Crown grant was not subject to any such, or in extension or enlargement thereof, if any such there were, but he may make and issue such new Crown grants or any of them, without any restrictions, limitations, or conditions if the Court shall have so recommended, although the surrendered grant may have been subject to restrictions, limitations, or conditions,”

Act of 1869. —“15. It shall not be lawful for less than a majority in value of the grantees of any land under the said Acts and their successors as aforesaid to make any contract lease mortgage or conveyance of their estate or interest in such land or in any part thereof Provided always that if any dispute shall arise as to such value, it shall be lawful for either or any of such parties to apply to the Court to have such value ascertained, and thereupon such proceedings shall be taken, and. such order made as is provided in the said Native Lands Act, 1865,” with respect to subdivision of hereditaments mutatis mutandis. Provided also that the Court may, if it think fit, refuse to make any order, and may dismiss the application with or without costs.” Act of 1873.—“ 4. Past Transactions.— 89. If any grantee under any of the repealed Acts shall be desirous that subdivision shall be made of the land included in the grant, or any part thereof, for the purpose of having his share in severalty allotted to him, or for the purpose of effecting a partition among the owners thereof ; and if no sale lease or disposition of the said land, or any part thereof, shall have been made before the passing of the Act, such person may apply to the Court to make such separation or subdivision, and the Court may proceed thereupon in the manner hereinbefore provided with respect to partition, and may order a Crown'grant for a defined portion of the land to be issued to the applicant ; and on the surrender of the original grant to the Crown, the Court may, it its discretion, order such subdivision as it shall deem just, and may order Crown grants to be issued according to the award iu partition.” It will be seen that according to some of these clauses no subdivision can be made if the land granted under the Acts of 1865, 1867, and 1869 is subject to a lease ; but there is a power to ascertain the value of the interest of any of the grantees. The Judges, however, generally take advantage of sections 50 and 89 and put the case out of Court. It might be feasible to amend all these provisions by enacting “ That if any native whose name has been inserted in any Crown grant, certificate of title, memorial of ownership, or succession order issued under and in accordance with the provisions of the repealed Acts or the Native Lands Act, 1873, shall apply to the Native Lands Court for a subdivision, or for the determination of the value of any estate or interest in any such hereditaments held by him ; or if any person claiming to be the holder of any interest iu such land under any deed of conveyance, lease, or other legal instrument, shall be desirous of having the interest and estate of any person or persons claiming through or under any such Crown grant, certificate of title, memorial of ownership, or succession order, it shall be lawful for the Native Lands Court to ascertain and determine the estate and interest of any such native owner ; or in the case of the sale of any part of such lands, to ascertain the proportion to which the purchaser is entitled, and the Court shall be empowered to make an order accordingly, which shall be deemed toapply to the native or European interested in the said hereditaments.”

I am not acquainted with legal phraseology, and hope that some gentleman versed in law will draft a Bill which will facilitate the individualisation of native title, and the subdivision of lands the title to which has been investigated by the Native Lands Court. To return to the case of the grantees in the Aotearoa Block. I will assume that Mr. Kobinson has for twelve years paid Aporo the rental of £SOO per annum. A European covets the Aotearoa Block, and goes to the nine natives who are co-grantees with Aporo and asks them whether they gave Kobinson any authority to pay their share of the rent to Aporo, and they reply, “No.” If that European suggests to those nine natives that by action in the Supreme Court they can claim from Kobinson £SOO each, or £5400, will aboriginal avarice not swallow the bait ?

Being largely interested in the native land question, and having formerly had as a Judge of the Native Lands Court, a Crown Agent, and a private land agent, to face this question in its various phases, I have written this letter in the hope that the subject may be fairly discussed, and that a measure may be introduced which will be advantageous to both races of her Majesty’s subjects in this colony.—l am, &c., James Mackat. Wellington, October 6, 1877.