New Zealand: Acts affecting Native Lands, 1886, 1888-91 and 1894-95

New Zealand. 1894, No. 42. An Act to consolidate and amend the Laws relating to Public Works

New Zealand. 1894, No. 42. An Act to consolidate and amend the Laws relating to Public Works.

[24th October, 1894.

Be It Enacted by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:—

1.	The Short Title of this Act is "The Public Works Act, 1894."

Part I.
Preliminary.

In this Act, if not inconsistent with the context,—

"Government work" means a work constructed or intended to be constructed by or under the control of Her Majesty, or the Governor, or the Government of the colony, or any Minister of the Crown:
"Local authority" means and includes any Borough Council, County Council, Town Board, Road Board, River Board, Harbour Board, Education Board, and other Board, Commissioners, Trustees, or other persons or body however designated, having authority, under any Act of the General Assembly or Provincial Ordinance, to undertake the construction of any public work:
"Local work" means a work constructed or intended to be constructed by or under the control of a local authority:
"Minister" means the Minister for Public Works appointed under this Act:
"Native" means an aboriginal native of New Zealand, and includes half-castes and their descendants by Natives:page 2
"Native land" means land held by Natives under their customs or usages, whether the ownership thereof has been determined by the Native Land Court or not:

"Public work" and "work" mean and include—

(1.)	Every work which Her Majesty, or the Governor, or the Government of the colony, or any Minister of the Crown, or any local authority, is authorised to undertake under this or any other Act of the General Assembly or Provincial Ordinance; and in particular—
(2.)	Any survey, railway, tramway, road, street, gravel-pit, quarry, bridge, drain, harbour, dock, canal, river-work, water-work, and mining-work (including therein the deposit of tailings, or the construction of sludge-channels or tailings-channels in connection with mining operations);
(3.)	Any lunatic asylum, including lands that may be necessary for the use, convenience, or enjoyment of any such asylum, or for any work or purpose in connection therewith;
(4.)	Any public school within the meaning of "The Education Act, 1877," including lands that may be necessary for playgrounds or teachers' residences, or for any other purpose in connection with such school;
(5.)	Any electric telegraph, fortification, rifle-range, artillery-range, lighthouse, or any building or structure required for any public purpose or use, including lands that may be necessary for the use, convenience, or enjoyment of the same:

39.

A claim for compensation for lands taken out of any Native reserve may be made by the Public Trustee on behalf of those interested in such reserve.

Part IV.
Native Lands.

Taking for Public Works.

87.

Notwithstanding anything contained in any law in force to the contrary, any Native land and any land owned by Natives under title derived from the Crown may be taken for any public work in manner hereinafter provided.

88.

Whenever it may be necessary to take any such land for any public work other than a railway or than for defence purposes,—

(1.)

Where the title to such land is not derived from the Crown,—

(a.)	A map shall be prepared in duplicate, showing accurately the position and extent thereof, and shall be signed by the Surveyor-General, or some authorised surveyor appointed by him to certify plans for the purpose page 3of any Act relating to the conveyance or transfer of land, as evidence of the accuracy thereof.
(b.)	At any time thereafter the Governor in Council may, by Order in Council, to be gazetted for at least one month after the making thereof, declare that the lands shown upon such map shall be deemed to be taken for the purposes of such public work, and thereupon such land shall vest in Her Majesty or the local authority, as the case may require, as from a date to be named in such Order in Council, not being less than one month from the date of the first gazetting thereof, unless in the meantime revoked.
(c.)	The Minister shall, as soon as may be after the date so named in such Order in Council, cause a copy of the same, if unrevoked, to be lodged in the office of the Surveyor-General, who shall cause the land included therein to be shown upon the proper maps and records of the district in which it is situated in such manner as to prevent such land being disposed of in any manner at variance with such Order in Council.

(2.)

Where the title to such land is derived from the Crown, the land may be taken in the manner set forth in Part II. of this Act.

89.

Whenever it may be necessary to take any such land for any railway authorised to be constructed under the provisions of any special Act, or for defence purposes, whether the land to be taken be Native land, or the title thereto be derived from the Crown, such land may be taken for any such railway in the manner prescribed in Part VII. of this Act, and, for defence purposes, in the manner prescribed in Part IX. of this Act.

Compensation.

90.

For the purpose of ascertaining the amount of compensation to be paid to the Natives interested in any Native land, or to the Native owners of any land held or owned under title derived from the Crown,—

(1.)	The Minister, in the case of a Government work, may at any time, and the local authority, in the case of a local work, shall, not later than six months after the date of the first gazetting of the Order in Council or Proclamation taking the land, cause application to be made to the Native Land Court to ascertain what amount of compensation ought to be paid to the owners of or other persons interested in such land, and who are the persons entitled to be paid such compensation; and, after hearing such evidence as may be produced before it, or may be thought necessary, such Court may make such order or orders as to it shall seem fit:
(2.)	Provided always that, if any person, whether a Native or European, shall have any estate of leasehold or other particular estate in, or any mortgage or charge upon, such land, the Native Land Court shall in and by the same page 4order or orders ascertain and determine what part of the whole compensation shall be paid to such person, and no Court constituted under Part III. of this Act shall have jurisdiction to entertain the claim of any such person for compensation; and every sitting of the said Court to be held for the purpose of dealing with such land shall be duly notified in the Gazette and Kahiti.
(3.)	The Native Land Court shall have all such authority and jurisdiction in respect of any such application as it would have in any matter within its ordinary jurisdiction, and, in addition thereto, shall have all the powers and authority of a Compensation Court under Part III. of this Act.
(4.)	The compensation ascertained by the Court to be payable to the owners or occupiers of the land taken, or other persons having particular estates, mortgages, or charges, shall be paid to them as soon as practicable after the making of the order of Court, and interest shall be payable on the sum awarded at a rate not exceeding five per centum per annum from one month after the date of such order.

Roads.

91.

Notwithstanding anything in the foregoing provisions of this Part of this Act,—

(1.)

A road may be taken and laid off under the provisions of the next following section in the manner heretofore in use for the taking and laying-off of roads under the like provisions contained in "The Native Land Court Act, 1886."

(2.)

No compensation shall be payable in respect of any land taken for a road under the provisions of the three next following sections, or in respect of any land taken for a railway over which there is at the time of the taking thereof an existing right in the Governor, under the provisions of the three next following sections, to take the same or a greater quantity of land for a road or roads, or in respect of any Native land taken for a road or railway, of which the ownership had not, at the time of the taking thereof, been determined by the Native Land Court, where the area taken does not, in the opinion of the Native Land Court, exceed the quantity which the Governor would have had a right to take under the next following section out of the land of which it forms a part, had the ownership thereof been so determined.

92.

(1).

From and out of any land which has been or may be granted under the provisions of any Act repealed by "The Native Land Act, 1873," or by "The Native Land Court Act, 1886," or which has been or shall be granted, or has or shall become the subject of Land Transfer certificate under the provisions of "The Native Laud Court Act, 1886," or any Act passed in amendment thereof or substitution therefor, or which is owned by Natives under Native Land Court certificate of title, or under memorial of ownership, it shall be lawful for the Governor, at any time hereafter, to take and page 5

lay off for public purposes one or more line or lines of road through the said land: Provided that the total quantity of land which may be taken, inclusive of any already taken, for such line or lines of road shall not exceed one-twentieth part of the whole.

(2.)

The Governor may at any time, by indorsement on the Grown grant, or on a subsequent or other instrument of title, or by deed, release the land the subject of such right therefrom, or from any part thereof.

93.

But there shall not be taken under the authority of the last-preceding section any land occupied by any pa, village, or cultivation, or any buildings, gardens, orchards, plantations, or any burial or ornamental grounds, without the previous consent of the Governor in Council.

94.

The powers given by section ninety-two as to public roads shall cease,—

(a.)	As to land the subject of a grant or certificate issued under "The Native Land Court Act, 1886," or any Act passed in amendment thereof or substitution therefor, at the end of fifteen years from the date of such grant or certificate;
(b.)	As to grants issued under any Act repealed by "The Native Land Court Act, 1886," at the time when such power would have ceased under such repealed Act.

95.

(1.)	Whenever any lines of road are surveyed and laid off on or over any Native land, under the direction of the Surveyor-General, the site of such road shall be deemed to be a road dedicated to the public, and shall vest in Her Majesty.
(2.)	When any road is laid off along the boundary between land owned by Natives and land owned by Europeans, such road shall be taken equally from both such lands where practicable.

Part V.
Surveys.

96.

(1.)

For all the purposes of this Act the Minister for Public Works, the Minister of Lands, the Surveyor-General or his deputy, or any local authority, or any person authorised either specially or generally by any such person or authority—

(a.)	May enter and re-enter from time to time during the daytime upon any land, with such assistants as he thinks fit, for the purpose of making any survey which he is authorised to make:
(b.)	May affix or set up thereon trigonometrical stations, survey pegs, marks, or poles, and the same from time to time alter, remove, inspect, and repair:
(c.)	May dig and bore into the land so as to ascertain the nature of the soil, and set out the lines of any works thereon:
(d.)	May do all things necessary for such survey in accordance with existing regulations, or for any inspection, repair, or alteration thereof.

page 6

(2.)

When practicable, reasonable notice shall be given to the owner or occupier of the land of the intention to enter thereon, and the authority under which the person entering claims to enter or has entered on such land shall, if required by such owner or occupier, be produced and shown.

97.

Every person who, without due authority, destroys, mutilates, defaces, takes away, or alters the position of any trigonometrical station, survey peg, mark, or pole fixed or set up by any surveyor, or other person under the authority of the last-preceding section, shall be liable, on summary conviction, to imprisonment with or without hard labour for any term not exceeding two years; and every person who wilfully obstructs any such surveyor or other person or his assistants in carrying on such survey shall for every such offence be liable to a penalty not exceeding fifty pounds.

98.

Nothing herein contained shall authorise any surveyor to enter upon any Native cultivation for the purpose of taking a road under the authority of this Act without the previous consent of the Governor in Council.

A "Native cultivation," wherever the term is used in this Act, means any land regularly used by Natives for the growth of foodcrops for their own consumption.

Part VI.
Roads and Rivers.
Construction and Maintenance of Roads.

99.

Either the Minister of Lands appointed under "The Land Act, 1892," or the Minister for Public Works appointed under this Act, may administer this Part of this Act; and the word "Minister," wherever it occurs throughout this Part of the Act, means either the Minister of Lands or the Minister for Public Works.

100.

Throughout this Act, the word "road" means a public highway, whether carriage-way, bridle-path, or footpath, and includes the soil of—

(1.)	Crown lands over which a road is laid out and marked on the record maps:
(2.)	Lands over which right of way has in any manner been granted or dedicated to the public by any person entitled to make such grant or dedication:
(3.)	Lands taken for roads under the provisions of this Act or any other Act or Provincial Ordinance formerly in force:
(4.)	Lands over which a road has been or is in use by the public which has been formed or improved out of the public funds, or out of the funds of any former province, or out of the District Fund of any local authority, for the width formed, used, agreed upon, or fenced, not being more than fifty links on either side of the middle line thereof, and a sufficient plan whereof, approved by the Chief Surveyor of the land district wherein such road is situate, has been or shall be registered by the District Land Registrar or the Registrar of Deeds of the district against the pro-page 7perties affected by it; and the said Registrars, or either of them, are hereby authorised and required to register any such plans accordingly, anything contained in any other Act notwithstanding, when presented for registration by or on behalf of such Chief Surveyor, together with a certificate under the hand of such Chief Surveyor to the effect that such road has been so used and formed as aforesaid:
(5.)	Lands over which any road, notwithstanding any legal or technical informality in the taking or construction thereof, has been taken, constructed, or used under the authority of the Government of any former province, or of any local authority, and a sufficient plan whereof is registered in manner provided in the last-preceding subsection: and, unless repugnant to the context, includes all roads which have been or may hereafter be set apart, defined, proclaimed, or declared roads under any law or authority for the time being in force, and all bridges, culverts, drains, ferries, fords, gates, buildings, and other things thereto belonging, upon the line and within the limits of the road.

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New Zealand: Acts affecting Native Lands, 1886, 1888-91 and 1894-95

New Zealand. 1894, No. 42. An Act to consolidate and amend the Laws relating to Public Works

Part I.
Preliminary.