NATIVE OBSTRUCTION.

Wairarapa Daily Times, Volume 2, Issue 558, 2 September 1880, Page 2

NATIVE OBSTRUCTION.

Thb growing number of cases of native obstruction to the right of European settlers to the free use of long established roadways-ex gra.. 'he Forty-Mile Bush road and ferry and the Tupurupuru road in this County, deserves the serious attention of the Government

Within the past fori night the Gladstone sotilers proposed to lake the law into their own hands in the Tupurupuru case, and pull down the fence the natives had erected across an open road used for over twenty years. Within the last few mouths travellers via the Bush road complain of delay and having been excessively charged for crossing the ferry. We have accordingly looked into the question, as a general impression appears to prevail, in which Parliament itself tacitly agrees, that the Maories have the right on their side in acting as Ihey do. It is to he regretted ihat 1 one of ihe judges of the Supreme Court has not, for the peare and goodwill of the inhabitants generally, ' inter se,' long since settled this question definitely. The common law of England is very clear upon the point, and the impression that the Maories act lightly is absurd and erroneous;

To deal with this question properly we must go back to the reaty of Waitangi. The preamble of that Treaty nets out that " Her Majesty, being desirous to establish a settled form of civil Government, with a view to avert the evil consequences which must result from the absence of the necessary laws and institutions alike.to the native <u>pulati'»n and to her subjects, has been graciously pleased" to appoint one William Hobson to treat with the native chiefs. Article 1 contains the " full and complete cession to her Majesty by the chiefs of all their actual and supposed rights of sovereignty over the Islands." In article2, Her Majesty " confirms and guarantees to the natives the full, exclusive and undisturbed possession of their lauds and estates, forests, fisheries, and other properties which they may collectively or individually possess." Article 3 makes the natives British subjects, and then follow 512 signatures of [he chiefs, who declare that they enter into the "full spirit and meaning of the Treaty." . It is clear lhat the natives were guaranteed possession of all their property in New Zealand. The Queen only received the right of sovereignty. I do not propose to enter upon the difficult and delicate subject of the rights of sovereignty, but if there was one right that the natives' ceded when signing tho Treaty of Waitangi it was clearly that of allowing all the Queen's subjects to enter intoj depart from, and travel through the country free and unopposed. That and that alone was what the natives ceded in return for hiving been made British subjects, everything else, both trade and settlement, being subsidiary! to the right of free travel. This pretty well constituted the sovereign powers of'the chiefs, for if any one of them .objected, the right of the Bwordat 'ducei determined; the qUMtibn,

In savage islands the,inhabitants-of one bay in a coast lino hardly dare venture into the adjoining bay, for fear of massacre, until one great chief arises who confers the benefit of free travel. ' Such was the casein Fiji, and is still the case in many of the Western Polynesian Islands.

Her Majesty therefore became the great chief, and'agreed with the natives for the right of all her subjects to travel over the country free and unopposed. The sovereign powers she received contained many other rights, but we cannot safely imagine that all the wondrous powers of prerogative would be understood by a savage nation, The natives clearly understood that the Queen was to be the arbiter of peace and domestic commerce, and that her European subjects would come into New Zealand, buy their land, and settle and trade with them., It was never understood by them (and in this they are supported by the great common law of England, which always regarded with extreme jealousy the right of the Grown to interfere with private lands) that the Queen could take one mch «f their ground without consent and compensation. Therefore we cannot take a road.

The right to use that road is, however, a totally different question. That the Treaty of Waitangi ceded. It was A THING APART FROM THBUNDS. But an obstructive native, claiming some interest in a piece of land over which iw old road runs (the rest of his tribe noi consenting-theTupurupuru case) chooses to fence it, saying that the land is his, and therefore the road is his. The common law is also very clear upon this point. The native claims the land as a corporeal hereditament, and the right of road as an incorporeal hereditament. He is assured in the Brst by the Treaty of Waitani!!, and he has a perfect riaht to claim the second, only in the latter case he must show title. He does so bv alleging a prescriptive right, viz., the right of his ancestors for centuries to the road. We turn back to the common law, which is only common seuse, and find under the heading, "Incorporeal hereditaments" (Stephen Bbieksioue. 3rd eduron, vol. 1, page 639,' et seq'), the following;— "And first as to fairs, markets, and ferries. A man may have a ri-ht to hold a fair or market, or to keep a boat for the ferrying of passengers, and this either by royal grant or by preoption, from which a royal grant may be presumed to have been at soma time conferred But. (unless under an Act of Parliament), no other title than those will aulfice, for no fair, market, or ferry can lie lawfully set up without license fmm the Crown. On the other band, a man may, under such title, lawfully claim to be lord of a fair onnwket, though he he Dot the owns* of the soil on which it is held; or to he proprietor of a ferry, thov K h he be not the owner of the water over which it is oxeroisod.orof the soil on either side of the river; but he must possess over it such right, at least, as will authorize him to embark and disembark his passengers, The right to take toll also from the customers is usually (though in the case of a fair or market not necessarily) a part of the privilege. But the right of the Crown to authorise the collection of tolls is viewed by the law with a salutary jealousy, so that no burthen of that kind can be imposed on the public unless it have (in the language of the books) a reasoi.able commencement; that is, unless ii- be founded on an adequate consideration, us between the public and the grantee; which consideration, in the case of a fair or market, in the duty incumbent on the grantee to provide ground for the purpose and to regulate the proceedings; on that of a ferry to keep up a boat for the passage over a stream not otherwise fordable And it is also essential that the burthen be reasonable in its amount • f„ r where the tolls granted are outrageous the franchise is illegal and void," This is sufficiently clear, especially when we consider that a prescriptive right runs from time immemorial. Any native showing title to the land over which a roadway runs, or to the banks of a river at a ferry, can claim a prescriptive right to demand toll or compensation for a road or ferry,.aud by providing (in the case of a ferry) a proper boat, and ohanring reasonable toll, can allege his title b\ prescription to that public way, aud demand a Royal granti Her Majesty would, in all fairness, hand back to him that particular portion of the one thing which had formerly been ceded to her (an incorporeal hereditament being a species of property subject to certain limitations) taking reasonable care, however, that the public interests are conserved, or purchase the land, and so compensate him. This would meet the Forty-Mile Bush Road and Ferry case, as the question of title to the laud has been settled. But in a case where title to the land has not been settled—the Tupurupuru case-how can a man claim a prescriptive title to a right-of-way over land which he does "not possess I Here the native case breaks down. Firstly, the native must get the title to the land, and then the right of toiler compensation maybe dem'tided, but this right must be concurred in by Her Majesty, she having received it by the Treaty of Waitangi. Such, briefly, in my opinion, ia the position of the question under the Treaty, aud I think it a great pity that -.he Legislature mixes up the two questions of the corporeal and incorporeal hereditament. Had a native in olden time dared to stop a road, a chieftain's ' mere' would have settled the question. I believe this ' mere' was handed over to the Queen on the 6th day of February, 1840. If the natives say it was not, then the Treaty is null and void, they are neither confirmed nor auaranteed in possession of their property, and neither are they entitled to the privilege of being considered British subjects.

In the case of the King movement, as it is called, the natives have placed themselves outside of the Treaty, They oannot, therefore, claim its protection. Practically they have no standing in our courts of law, and although they say that there is to be no more war. yet the recourse to war is their only protection. If the natives infringe the Treaty they cannot claim its protection. _ As to the statute law upon native questions, since the Treaty, little dependence oan be placed upon it. It is a fabric of paper built upon nothing. Its artiflcers, Native Ministers, thoroughly capable of rearing such an edifice. Far better is it for us to rely upon the Treaty of Waitangi and common sense.

The Maori will readily understand that if the European has not the free right of travel he oannot claim " full, exclusive, and undisturbed possession of his land." lain^&o., Coleman Phiuiw. Dry River, August 25,1880.