Succession.

Section 43 of "The Native Land Court Act, 1886," is repealed by Section 23 of "The Native Land Court Act, 1886, Amendment Act, 1888." In determining the right of succession to land held under Memorial of Ownership or Certificate of Title, the Court is to be guided by "Native custom or usage." "In respect of other land, the Court should decide according to the law of New Zealand as nearly as it can be reconciled with Native custom." "Native custom or usage" is as the sign x in algebra—an unknown quantity, potent or otherwise, according to the circumstances of each case. When the question of title to land is being first "ascertained," the Court should give the widest latitude to the meaning of "Native custom and usage," as it forms the essence of all Native title.

The title having changed from parole to written, to admit a like latitude in successions would not be so desirable. "Native custom and usage" could well recognise the rights of foster or adopted children, and as both husband and wife have their separate landed estate, independent of each other (in the absence of children), should recognise the right of the nearest of kin of the husband and wife to succeed to their respective estates. To give effect to "kupu oha" or "poroaki" ("dying words or wishes") would be wide of the question, and encourage conspiracies to defraud the natural heirs, The experience of the Native Land Courts in the page 9 matter of written wills or dispositions where Natives only are the witnesses, is not to place implicit confidence in Native evidence on the question of the validity of such documents. Where the deceased hold land under Crown Grant or Land Transfer title, the succession should be governed by the ordinary law of the country, irrespective of "Native custom or usage." Section 46 of "The Native Land Court Act, 1886," provides only for orders of succession to hereditaments being registered under the Land Transfer and Deeds Registration Acts. It seems singular that power is not given to register orders of succession to land held under Crown Grant other than "hereditaments" and Land Transfer titles. This clearly requires remedying, and I would suggest that after the word "hereditaments" in the fourth line of Section 46, the words "or land under Land Transfer title or Crown Grant" be added.

The Native Land Acts, I take it, were called into existence to afford a means of changing the ancient Native title to that of a Crown title. Whether this may be so or otherwise, the right of succession to lands other than Native Land Court title should be left to the ordinary law of the land to determine. How this question of succession affects half-castes and their descendants, I have referred to elsewhere.