Native Land Acts.

Poverty Bay Standard, Volume X, Issue 1030, 31 January 1882, Page 3

Native Land Acts.

Important Judgment. (From the Auckland Herald). The following important judgments were delivered by His Honor Judge Gillies in the Supreme Court, Auckland, in banco, on Tuesday last, the 24th of January, 1882: — Hamiora Maxgakahia and Another v. The New Zealand Timber Company. —Demurrer to declaration. Mr Theophilus Cooper in support of the demurrer; Mr. E. Hesketh in support of the declaration. The legal position of ownership “ according to the native custom,” was the question raised in this demurrer. His Honor delivered judgment as follows :— The declaration in the present case alleges in the first paragraph that the plaintiffs are “ owners ” of the land in question. The second paragraph discloses the nature of the alleged ownership, viz., a memorial of ownership according to native custom under the Native Lands Act, 1873. The declaration then proceeds to allege discovery of trespass by the defendants, entry made by the plaintiffs “ as such owners,” notice by plaintiffs, and further entry, and continued trespass by the defendants. The plaintiffs claim damage for the trespass, and injunction against its continuance. The declaration carefully avoids alleging possession by the plaintiffs at the time of the alleged trespass. The declaration is demurred to on two grounds: First, that the title is not such a title as confers upon the owners a right of entry, enabling them to acquire such a constructive legal possession as will support an action fur trespass ; and second, that the alleged title itself is not of such a nature as to support an action for trespass. Had the declaration alleged possession by the plaintiffs at the time of trespass, it is clear that the nature of their title would be of no consequence. Bare possession is sufficient to entitle the possessor to bring tresspass. But in the present ease, the right to bring trespass is founded, not on possession, but purely on title to possession. The question, therefore, arises as to what is the nature and incidents of the title under which the plaintiffs claim. The alleged title is that of ownership, according to native custom, such ownership being ascertained and determined in favor of the plaintiffs by a legally constituted Court. What title does legally recognised ownership according to native custom confer ? I answer that no title known to English law is thereby conferred. A pre-existing right, according to native custom, is thereby recognised and declared; an exclusive right of occupation—a right to sell or otherwise dispose of that right of occupation—a right to inherit not according to the rules of English law, but according to Maori custom. All these are recognised and declared, but though in many respects they are analogous to, they are not equivalent to a title in fee simple. If a recognised and declared native owner sells to a European, the purchaser does not derive his title from the vendor; he merely extinguishes the vendor’s right of occupation, but derives his title from the Crown. Theoretically the fee of all lands in the Colony is in the Crown, subject, neverthless, to the “ full exclusive and undisturbed possession of their lands ’’ guaranteed to the Natives by the treaty of Waitangi, which is no such “ simple nullity,” as it is termed in Wi Parata v. The Bishop of Wellington (3 N.Z., Jur. N.S., 78), quoted in argument in this case. The plaintiffs’ contention in the present case is that legally recognised ownership, according to Native custom, carries with it all the attributes or incidents of the ownership of land in fee simple, which, under English law, is that the owner, being out of possession, may by entry obtain such constructive possession as to entitle him, by virtue of his freehold, to sue a trespasser. No such attribute or incident can be held to attach to an ownership according to Native custom. The to Native custom, was much more simple, speedy, and conclusive, but our law does not recognise these modes of enforcing the incidents of native title, nor does it confer upon native title the incidents of title held under the Crown. The Native Bights Act, 1865, which was so largely relied on by the plaintiffs’ counsel, is merely a declaratory Act. It declares the pre-existing rights of the Natives as British subjects under the treaty of Waitangi, and the powers of the Queen’s Courts

I in respect of the persons and the property of the Natives? It undoubtedly declares the right of Natives to appeal to this Court for the protection or vindication of their personal rights and of their rights to their lands. But at the same time it provides that every title to an interest in land over which the native title shall not have been extinguished (and the present is such a ease) shall be determined according to the ancient custom and usage of the Maori people. Whilst, therefore, it recognises and declares the personal rights of the Natives to be the same as Europeans, it carefully excludes the idea that tenure of lands, according to Native custom, is to be equivalent to, or have the incidents of tenure of land according to English law. Were it necessary, the whole current of our legislation in respect of Native lands might be appealed to, in order to show that ownership of land, according to Native custom, has never beeu recognised as carrying with it the incidents of ownership of land under title derived from the Crown. Such being the case, the plaintiffs’ contention utterly fails. The right of entry by which constructive possession can be obtained, is an incident of title held under the Crown, not of title according to Native custom. The argument used, that according to this doctrine the Native would have no remedy against trespass on his land is fallacious. So long as he is in possession, he has his remedy. If out of his possession, he must perfect his occupationary title by exchanging it for a title under the Crown, when he can claim all the rights and remedies incident to such a title. The demurrer must be allowed with costs.

Agreements Between Natives and Europeans. —Ema Te Aouru, appellant ; Robert Darling, respondent. His Honor delivered judgment in this case as follows :— This is an appeal from a judgment of the Judge of the District Court in an action brought by a European against a Native for damages for breach of a written agreement to sell a piece of land held by the Native under Crown grant. A question was raised before me as to the fact not appearing on the face of the case stated that the defendant (appellant) was a Native, but I think that the nomenclature of the parties, as well as the points raised, are sufficient to entitle me to assume, as I have done, that the District Judge was satisfied that the plaintiff (respondent) is a European, and that the defendants (appellant) is a Native—a Maori, an aboriginal inhabitant within the meaning of the Acts which I have to consider. The real question raised by the appeal is an important, one, being the question as to whether a Native can be held liable in damages for breach of an agreement to sell land to a European under an agreement not executed in conformity with the provisions of the Native Lands Act, 1873, nor vouched for by the Commissioner under the Native Lands Fraud Prevention Act, 1870, and Amendment Act, 1873. The Native Lands Act, 1874, enacts (sec. 85): “ A'o instrument of disposition by any Native to any person not of the Native race shall be valid unless” certain formalities are complied with, which in the present case have not been complied with ; and the Native Lands Frauds Prevention Act, 1870, as explained by the Amendment Act, 1873, enacts that no (alienation — 1870) disposition, whether absolute or limited, affecting, or which may be intended to affect any lands . . . shall be valid, if &c., and no such instrument shall bo . . . received as evidence in any Court of law or equity without such certificate as aforesaid— i.e., the Trust Commissioners’ certificate, which the agreement in question had not. Upon the phraseology of these Acts the learned Judge in the Court below has expended much philological learning and research, in order to determine the meaning of the words “ alienation ” and “disposition.” With the result of these researches I do not disagree ; but the question remains as to the application of these results to the facts of the case under consideration. It is quite clear that, in order to entitle the plaintiff to recover damages for breach of an agreement, that the agreement must be a valid one; if invalid, there can be no breach. The agreement in the present case is an agreement for the sale of land, valid so far as the Statute of Frauds is concerned, and w'ould, had it been made between two Europeans, have had the effect of transferring the equitable estate in the land to the purchaser, leaving the legal estate in the vendor as trustee for the purchaser, and the vendor could have been compelled by this Court to convey. Can it for one moment be contended that such an agreement is not an instrument of disposition in the strictest sense of the term, even according to the etymological definitions quoted in the judgment appealed against. [His Honor cites at length a similar case between Tareha and Sir Donald McLean, and Karaitiana v. Sutton —3 N.Z.C. Appeal, 139.1 But, when we look at the definition of the word instrument given in the Native Lands Aet, 1873, the matter is still clearer. There the word “ instrument ” is declared to “ mean and include any grant, certificate of title, memorial of ownership, memorandum of transfer or lease, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing relating to the transfer or other dealing with land, or

evidencing the title thereto." This definition includes two classes of instruments, viz., instruments of disposition, or documents in writing relating to the -transfer, i.e., lease, conveyance, Ac., and instruments creating or evidencing the title thereto. This definition includes two classes of instruments, viz., instruments of disposition, or documents in writing relating to the transfer, i.e., lease, conveyance, &c., and instruments creating or evidencing title, i.e., grant or probate. The judgment in the Court below seems to assume that the definition of the word “instrument” so given is limited by the words “of disposition,” whereas these words in the 85th and other sections merely indicate the class of instruments which such sections are intended to effect. The agreement in the present case is clearly a document in writing, relating to the transfer of land. But it is said that this definition of “instrument" is limited bv the proviso, “Unless there be something in the context or the subject, matter repugnant to or inconsistant with such meaning,” and it is suggested that there is such inconsistency or repugnancy in section 85. 1 confess I can see none. The illustration given of what might occur in consequence of adopting the defendant’s (appellant) construction under section 7 of the Native Lands Duties Act signally fails, inasmuch as that section expressly provides that it is the person taking the legal estate who is to pay the duty. I hold, therefore, that a written agreement for the purchase and sale of native lands is an instrument of disposition within the clearly expressed meaning of the several Acts referred to, and could neither be enforced nor given in evidence, unless duly authenticated in the manner prescribed by these Acts ; that the judgment in the Court below was wrong, and that this appeal must be allowed, with the costs in this Court and the Court below.