*

PETITION.

11

G.—No. I

title make any statutory change in the legal character of the land comprised in it, such as would exempt it from the operation of the 73rd section of the " Constitution Act 1 " The form of certificate is contained in the schedule to the Act, and is to the effect that the Judge signing it certifies that the persons therein named are the owners, according to Native custom, of the land therein described. Now, it does appear to me that our enquiry might end here; for, as I have already intimated my opinion that the words " according to Native custom, means "subject to tribal or communal right," it seems a mathematical deduction that the Natives named in the certificate still own the land, subject to tribal right, or, as the " Constitution Act" expresses it, "in a tribe or community." But, without relying simply upon the wording of the statutory form of certificate, I will enquire whether the Legislature can be supposed, apart from that instrument, to have meant that any change in the character of the land should be worked by the issue of the certificate of title. The first Act (the Act of 1858) passed by the General Assembly on this subject was entitled "An Act to enable the Aboriginal Natives of New Zealand to have their territorial rights ascertained, and to authorise the issue in certain cases of Crown grants to Natives." This Act was prepared by the ablest real property lawyer in the Colony, and is admirable for the clear and logical manner in which the first step in the great change in the laws affecting the territorial rights of the aborigines was proposed to be taken. It was, unfortunately, disallowed by Her Majesty ; and the war, which shortly afterwards commenced at Waitara, from that moment became a question of time. This Act did not constitute any Court for the investigation of titles, but gave authority to the Governor to ascertain the ownership in his own way. It enabled him, upon the application of any tribe, community, or individuals of the aboriginal inhabitants, upon being satisfied that such tribe, community, or individuals were entitled, according to Native custom, to the exclusive use and occupancy of any lands within the Colony, over which the Native title existed, to issue to such, tribe, community, or individuals a certificate of title ; and he was authorised to grant lands over which the Native title should have been duly ceded to Her Majesty for the purpose, unto, or in trust for the benefit of any person or persons of the Native race, either in fee simple or for any lesser estate or interest. The certificate under this Act did not enable the Natives in any case to sell their lands to Europeans, and the Act still made it penal to purchase or occupy land belonging to Natives before the issue of a Crown grant. The "Native Land Act, 1862," made a step further in advance. Courts were constituted to ascertain and declare who, according to Native custom, were the proprietors of any Native lands ; and to grant to such proprietors certificates of their title to such lands, which certificates should be conclusive as to the Native proprietoi'S of the land affected thereby. And in the case of a certificate issued to less than twenty persons, the Governor had power to endorse thereon his signature, and to cause the public seal of the Colony to be affixed thereto; and every such certificate thus endorsed and sealed was to have the same effect as if the same were a grant from the Crown in fee simple. The persons named in such certificate might then dispose of their estate or interest therein. And the Governor, upon receiving the instrument of sale, or the certificate, might exchange the same for grants under the public seal of the Colony ; such grants to be as effectual as if the land had been ceded by the Native proprietors to Her Majesty. It will be remembered that it was in this year (1862) that the same principle of enabling the Governor to make grants from the Crown of Native lands, without previous cession by the proprietors, was adopted in the " Native Reserves Act." Sections 29 and 30 of the "Native Lands Act, 1862," contain the provision on which section 75 of the Act of 1865 was founded. The words are, "No person shall be liable to any penalty for the purchase, lease, or occupation of any Native land, if prior to such purchase, lease, or occupation, the Native proprietors thereof shall have obtained a certificate under the provisions of this Act, anything in the Native Land Purchase Ordinance to the contrary notwithstanding. Every contract, promise, or engagement, for the purchase, lease, or occupation of any Native land, or of any interest therein, made prior to the issue of a certificate of title under this Act, shall be absolutely void." It must here be remarked that in this Act the Native Land Purchase Ordinance was not otherwise interfered with, and that the certificate of title was an instrument of a higher character than the certificate under the Act of 1865. The certificate of 1862, when endorsed by the Governor, and sealed with the great seal of the Colony, possessed by statute the force and effect of a Crown grant, and would operate in destruction of the Native title. It is very probable that the framers of this Act of 1865, when they transcribed the clause, which became clause 75 of the Act of 1865, failed to observe that the certificate of title under their Act was an instrument of greatly inferior character, and of very ephemeral existence compared with the certificate referred to in the clause they were copying. It escaped their observation that no notice need be taken of the 73rd section of the " Constitution Act" in the Act of 1865, for the certificate under that Act operated as on a Crown grant. It is a reasonable conjecture that the authors of the Act of 1862, not being aware of the passing of the Imperial Act, which, enabled the General Assembly to alter the 73rd section of the " Constitution Act," so carefully framed their Act as to avoid the obstacle occasioned by that clause. And the framers of the Act of 1865 copied the clause, failing to observe the difference of the character between their certificate and the instrument referred to in the Act of 1862. The " Native Lands Act, 1865," commences with a definition—land in the Colony is divided into two classes. 1. Native land or lands in the Colony owned by Natives under their customs or usages. 2. Hereditaments, or land the subject of tenure, or held under title derived from the Crown. The "Native Land Purchase Ordinance" and "Native Lands Act, 1862," are repealed, and a Court is established for the investigation of the claims of persons to land under the Maori proprietary customs. The form of proceeding is thus : —Any Native may give notice that he claims to be interested in a piece of Native land, and that he desires that a title from the Crown may be issued for it. A Court is then fixed for hearing the applicant, and at the sitting it decides the title of the applicant and all others, and orders in favor of whom it thinks fit a certificate of title to be made and issued, specifying the names of persons, or of the tribe, if a tribal grant is asked for, who, according to native custom, own the land. A certificate in the form provided is then made out and forwarded to the Governor, who, on the receipt