[i roto i te reo Māori]

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Omahu.

Judgment of Seth Smith, Esq., C.J., Hastings, 15th Dec., 1891.

As I have decided to order a rehearing in this matter I shall not express any opinion as to what the final determination of the case ought to be.

I shall confine myself in the few remarks I intend to make to a general statement of the points upon which further enquire seems desirable.

In the first place it now appears that much of the evidence that was laid before the Court on the first hearing was untrue and has been admitted to be untrue by the witnesses who gave it.

I shall not at this stage attempt to determine on whose shoulders the responsibility for this state of things ought to rest. It argues a disregard for truth on the part of the witnesses which, on moral grounds, is much to be regretted; although I do not suppose that an appeal made to them on moral grounds would be of much avail. The belief is daily gaining strength that the great bulk of the testimony given in the Native Land Court by natives is altogether untrustworthy, and the disclosures that have been made in the course of this enquiry will not change that belief. If those natives who so readily adapt their testimony to what they believe to be advantageous to themselves or to the parties on whose behalf they are called could realize the injury they are doing to their own interests by the distrust they give rise to, I believe we should soon cease to hear the complaints now so frequently made of perjury in this Court. I shall say no more on this point at present. There is another matter on which I must say a few words. The Court has been asked to lay down certain rules with regard to the principles by which the Court ought to be guided in its investigations on native titles. There is in my opinion no reason why the principles which guide other Courts should be disregarded in this. On any investigation of title like that now before us, the first question that naturally arises is, Who are the person in possession at the present time? Where there are persons actually residing on the block they are undoubtedly in possession of those portions of the land on which their houses and other buildings are standing, and presumably in possession also of all such other portions as have been fenced in by them or over which their sheep or cattle are running. Now possession is always prima facie evidence of ownership (see Pollock and Wright, 'Possession in the common law' pp 25.) If it is shown that the" present possession is recent in its origin the presumption arising from it is only a slight one and may be rebutted by comparatively slender evidence of ownership in other persons, but the presumption gathers strength as the evidence discloses a continuance of uninterrupted enjoyment. If it is shown to have commenced before the year 1840, the presumption that the persons who have enjoyed such possession are the owners according to native custom, is of so cogent a nature that nothing will be sufficient to rebut it short of the clearest proof that the possession began under circumstances such that occupation for any length of time would not be regarded, in accordance with native custom, as vesting any right of ownership in the occupier. Apart from such exceptional cases as those just referred to the principle that should guide the Court is in my opinion this:—The persons now in possession are prima facie the owners. Possession of recent origin raises only a slight presumption, while possession extending continuously over a considerable period raises a strong presumption in favor of ownership. Possession commenced before 1840, and continued without interruption to the present time, raises a presumption of so strong a character that it will require the clearest evidence to rebut it. So far the scope of the enquiry is capable of definition with a considerable degree of accuracy and extensive excursions into the myths and traditions of so-called Maori history are unnecessary. It does not, however, necessarily follow as a matter of course that the persons entitled by virtue of their possession, or to speak more accurately, whose title is evidenced by their possession, are exclusively entitled. The Court has also to enquire whether there are any persons who though not occupying" the land at the present time have formerly lived on it or exercised other rights of ownership over it which rights have not become extinguished by lapse of time, but are, as it were, lying dormant. In such enquiry some account page 2 must be taken of the action of ancestors of the present owners or claimants, and the Court must receive and weigh evidence of the traditional reports that have been orally transmitted from one generation to another. Such evidence is from its nature necessarily unsatisfactory. It affords scope for the play of imagination, which is too frequently taken advantage of and cannot be submitted to those tests by which the value of the evidence of alleged eye witnesses may be ascertained. A tradition generally accepted and acted on, and of which the several accounts do not materially differ from one another, may, with considerable confidence, be regarded as an authentic record of actual fact. A disputed tradition on the other hand will, in the majority of cases, be entitled to very slight authority. It would not be advisable, even if it were possible, which is open to question, to attempt to lay down rules of rigid definition as to what will not be regarded as sufficient evidence of truth of an alleged traditionary event. Each case must be determined by its own circumstances, and by the weight of evidence which as Lord Blackburn has pointed out, "depends on the rules of common sense." It seems to me, however, that one unequivocal act of ownership and a fortiorari a series of such acts, is of far more importance in determining on which side the balance of testimony lies, than any amount of traditionary lore that may be brought forward for the purpose of leading the Court to a different conclusion. It is to a largo extent, because it seems to me that the Court in its judgment has not given sufficient weight to the possession of this land by Ngai Te Upokoiri and those persons who have been called in application of Noa Huke "the allied hapus" a possession which has been practically continuous and uninterrupted since the year 1857, and for the origin of which a reasonable explanation has been offered notwithstanding its commencement since 1840, and on the other hand that while rightly rejecting much of the evidence of tradition that was adduced, the Court has apparently attached too much weight to the evidence, that I feel compelled to allow a rehearing.

A re-hearing will therefore be ordered on all the applications, except those of Matenga Pekapeka and Hamana Tiaakiwai.

The order will be made subject to the following conditions, viz., 1. That the several parties who intend to claim a share in the land must deposit in the office of the Registrar in Wellington on or before Monday, 1st February next, a statement in writing giving particulars of the grounds upon which the claim is based, the portion of the block over which the claims extends, and the names of all the persons on whose behalf the claim is made and 2. That the minutes of evidence given on the first hearing shall bo read as evidence on the re-hearing, each party being at liberty to adduce such further evidence as he thinks fit to explain or add to that already given.

On the application of Mr Rees, assented to by Mr Lewis, it was ordered that the notes of evidence taken on the application for re-hearing should also be taken as evidence at the re-hearing.