A CONSIDERATION" OF THE PROPOSED NEW NATIVE LANDS ACT.

Waikato Times, Volume X, Issue 788, 5 July 1877, Page 2

A CONSIDERATION" OF THE PROPOSED NEW NATIVE LANDS ACT.

' The followiug is the concluding portion of the essay read by Major J. Wilson, at the Cambridge Farmers' Club :— EXECUTING DEEDS. "We now come to treat of the mode of executing a deed. It is set forth iv Section 111 'That every dee J, conveyance, contract, or other cheMrnen.£ affecting native land, shall be interpreted to the natives by him m the presence of and attested by a licensed interpreter and one oilier person. This it will be perceived is a reverting to Jthe old system that obtained under the Acts of 1867 and 1860, and so far as the simple ex-jcu-

tion of tho dsocl is conesmeJ, is much more easy of accomplishment than having recourse to either a Judge lof the Native Land Goavb or a Resident Magistrate. Yet it seems, even so, to be scarcely a step m advance as under the .* Native Lands Frauds Prevention Act, the. Commissioner under. that Act has to ba satisfied as to the dona fides of the transaction, and whether the natives, parties to the deed, have a sufficiency i of land left, as he must either see and interrogate the natives himself, or forward the dead to one of the? resident magistrates of the district m which the land is situate ; but small advantage seems to be gained, for the deputy has to see the natives to make the necessary enquiries^and it is quite likely he will have .more trouble now than if he had witnessed the execution of the deed, and, m anticipation, had then made the enquiries. We appear, under the circumstances, to have gained little iri the facility afforded for the speedy execution, and. we have lost much m the substitution of an unknown name for one whose name is a substantial guarantee to all parties of the "bona fides of tlie whole transaction. DUTIES PAYABLE OX FIRST TRANSACTION-. . So much,, then, for conveyances, and other deeds, and now for the duties payable to the Crown upon these first transactions set forth m the third schedule. Nothing definite is stated as the amount payable. The duty is a certain percentage upon the consideration money, all premiums and gifts being held to be part of the : consideration ancl duty paid accordiugly, but the percentage is left blank, to be fixed) and properly so, by Parliament. Jt may, thereforebe ten per cent, as hitherto, or has been suggested, twenty or thirty per cent, or even more. The Grovernment being m a measure without a land fund m this island, and one certaiuly very much disproportioned to chat of the South, it is argued that it would be only prudent to create, as it were, a laud fund out of the duties assessessed upon -first transactions between natives and Europeans, and that some fifty per cent., or even higher, should be levied by the Governtneut. When it is considered that the statistics of *this island have proved that the. Government land sales, although they brought what appeared. to be a v.cry large profit ou the money paid to , the natives, have been attended with loss, owing to the salaries absorbed ■ by the staff employed m the Native Land Purchase "Oepartinent ; the survey staff aud the department r whose duty it was to sell these lands, , ten per cent, ought to be viewed as a very liberal addition to our revenue, liberal m comparison with the losses accruing to Government when they went into the laud market as speculators. That they should now refrain from entering what may be termed that ' profession,' shows a return to that wisdom which we expect to especially mark m our rulers. Upon this exhibition of their wisdom they are deserving of commendation. Is it not wise to employ all men as 1 agents m acquiring the land, and ■ iustead of paying them commission, . td demand it, aud that iv such a . mamier that evasion of payment is hopeless ?

There is, however, another point of view from which to look at this question. By excessive taxation m this direction, it is not the speculator or farmer who will have to pay; m a very minor degree they may m some instances be made to feel what they deem au imposition ; but it is the natives who will have to suffer. The land is only worth so much m. the market, and if the 'duty will not allow of due proiit, either the laud will remain as now, waste m the hands of the Maoris, or they will have to take just so miich less for their land. If the duty be fair, the European can afford to give so much more to the original owner , and ii) on the other hand, it be excessive, the natives will have less. A heavy duty will not put an end to undue speculation, but will lull heavily on the native owners of the soil. INCOMPLErE PURCHASES BY THE CROWN. With respect to the part touch, iag upon incomplete purchase* by the Crown, a few remarks may not be undesirable. It is affirmed that this Act predicates the abandonment of all new purchases by the Crown, and that native lands will be open for private purchase subject to the provisions of the Act; but tho Government m Sections 133 to 116 inclusive, determine that they will complete all purchases and other arrangements for cession • which have beea partly negotiated for, and interference therein is punishable by a penalty. It", therefore, this determination be persisted m, where, after the two millions of acres the Government have been negotiating for, is the public to endeavour to purchase 1 In comparison with these vast tracts hereby locked up by the Government the available lauds outside are so small as not for a moment to be worth the Consideration of the public. There may be sufficient, certainly, for a few. speculators who may already have their eyes upon the Government leaviugs, but the public will' be as far m this respect from being able to buy at iirsc baud ay tk.*y are now reputed 10 UQ. There is yet another crying evil requiring remedy. The boundaries < ot these land's wliich the Govern-" meat are negotiating for are en- < closed, as it were, with an eh>,3iie ( ]

band, no positive boundaries or marks being given, or anything approaching thereto, whereby the public can possibly know where the lines are drawn. Should a purchaser attempt to approach within miles of what even the natives assume as the boundaries arranged for by the Government Agents, this elastic band is made to stretch so as to cover the coveted pieces. If the Government be resolved to acquire -these, blocks, justice to both races imperatively demands those boundaries to bo at once defiued. It is, however, to be hoped that, m the interests of the country, the third clause m section .113 willbe adopted, which provides 'for the > repayment by the natives of any sum of money whioh they may have received. The utility of such a proceedure is so obvious that no comment is required, either by way of illustration or enforcement. PAST TRANSACTIONS. Exhaustive as tbe present Draft appears to be, there is yet a most important omission, which seems the more surprising, as the Act of 1873 devotes two whole pages to its elucidation, The reference isjihere made tp. past transactions, whicVfcve . : m this draft wholly ignored. The omission would have been less surprising if the subject had not been so fully ventilated at Napier, and seeing that immense sums of money were lost to purchasers m that province, through the ambiguity of the law, it seems not only proper, but imperative, that matters m that direction should be set straight. There is a clause m the Native Lands Act of 1867, to the effect that a majority m value, of the grantees, must sign a deed of conveyance to reuder it valid, and they, of course, must sign on one deed. If, for instance, six out of tea grantees sell, and their shares are equal, that sale would be valid, if all signed the one deed, bat, if two conveyances were made, aud, say two signed one and four the other, then, the sale was invalid, and of no effect m the eyes of the law, was no sale, and the purchaser would 1039 his money. This point is quite plain. Supposing, however, that after the six grantees had signed the one deed rendering it valil, that a seventh, one of the remaining four were to sell and execute a conveyance, would this be a valid deed! According to many of our besfc lawyers, it would, the first conveyance having complied with and fulfilled the requirements of a]l tho Act; but, other equally astute lawyers say, no, arguing the meaning of the Act to be, that tho majority m value of any remainder must sign, and, that it would require three out of four to cjustitute a valid title. We here presume- that the Acfcisso ambiguous thafrit can be read both ways. Hence, those unseemly repudiation cases that have mado Napi<Jr notorious, aud. that havo tainted the Maoris' morals to au extent that the outside public can scarcely well conceive. Natives are naturally adepts at dissimulation, and are only too facile students of these instructors m the system of repudiation, which is only mildly designated by the name of spoliation. Thousands of pounds worth of property have, iv the Province of Napier, been jeapordiseJ by the want of au interpretation to this otherwise, not altogether, obnoxious clause.

Barristers of the greatest eminence m their profession, we have seen, give it us their holiest opiuion 1 that the requirements of the Act ; are fulfilled by the execution of tho first valid conveyance, and that remaining grautees nny sign other conveyances singly., Others, equj<|ly> learned, maintain quit^. &£T contrary. If, then, thero is so much , ambiguity m the matter, involving so much property, surely it is no trivial matter to desire some rectification, and to call for an interpretation of the clause m question. If the new Act would define tho meauiug of the clause, and determine either one way or the other, much would be gained. If the interpretation favoured those who maintained the fulfilment of all requirements by the due execution of the first valid deed, then no mora would be needed, and great liueasiness would give place to a sense of security; if, on the other hand, the Act was obliged to interpret differently, and make all tbe conveyances so obtained, after the first, invalid, then, m the interest of justice, a condonation clause ought to be inserted m the New Act, possibly, giving the Chief Judge the power to execute conveyance, if bho boua fides of the. sale or lease, as it might be, were proved to his satistion. This, or some such mode of rendering justice to those who purchased iii all good faitb, and of silencing defrauding re^udiators, is imperatively demanded. Be it remembered that we are touching upon the law as it obtained under the Acts previous to that of 1873, the law being altered m the Act of 1873, so that what was not huvful m 1869, is perfectly legal now. . If then, iv the abstract, it be right m principle to do so to-day, why should it have been so fraught with evil to one party —the white man, not the brown —1111869"? There are yet other points under the head of past transactions which might not unprofitably be the subject of deliberation, but time will not admit of their being here .discussed. Had this essaay been extended to a greater length than. at first proposed, o, i'egtiai9 pf the whyio wMiO

have been given with advantage, but it is to be hoped that' a sufficient recollection of . the main points under . diseussio^ will have been retained to enable a just judgement to be formed of the several subjects noticed, v There was a fear of dealj ing with the' question m a manner so perfunctory as to be ineffectual, thereby, m a measure, frustrating the object desired to be attained by its discussion; hence the, perhaps, too prolix examination of these proposed measures. If, however, the ventilation of this subject leads to a more clear understanding of. the question at issue, and is so far suggestive as to bring out features of thebill which have been either forgotten or ignored, this essay will not have been written m vain, and the object of this discussion will, have been attained.

h