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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Compensation Court. [Waitara South]

page 13

Compensation Court. [Waitara South]

New Plymouth, June, 1866.

F. D. Fenton, Esq., senior Judge; and Henry A. H. Monro, Esq., Judge.

The claims in the Waitara South Block of Absentee Natives.

In the argument of the Crown Agent in opposition to these claims, three points were mainly relied upon:—

I.That the appointment of Mr. McLean, the Land Purchase Commissioner, has not been proved.
II.That Mr. McLean's conduct and decisions should not bind the Court.
III.That the Government is not bound by the acts or premises of its predecessors.

With reference to the first objection, that Mr. McLean's appointment has not been proved, nor has it been shown that his proceedings were authorised by the Government, the Court is of opinion that that officer's appointment must be held to be valid, and his acts duly authorised, no evidence having been furnished to the contrary. The maxim of law is, that all acts are presumed to have been rightly and regularly done. It is a maxim of the law to give effect to anything which appears to have been established for a considerable time, and to presume that what has been done has been done of right and not of wrong. Where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is, "Omnia præsumuntur rite et solenniter esse acta, donec probetur in contrarium." Thus, a man acting in a public capacity will be presumed to have been properly appointed and duly authorised; and, as the Agent of the Crown, Mr. McLean's acts must be held to have been the acts of the Crown.

Nor do we see any force in the objection raised by the Crown Agent that what Mr. McLean did should form no precedent for the Court, inasmuch as he may have recognised this class of owners, not because they were legally or equitably entitled, but because the state of the country was such that he could not have effected a purchase if he had not recognised them. If our doctrine is correct that the true foundation of all Maori title is force, we see in the conduct of Mr. McLean simply an application of that principle. It was his duty to purchase from natives land to be thereafter used for page 14settlement and colonisation. It was necessary, therefore, that the Government should be able to give and guarantee peaceable possession and quiet enjoyment of the lands so purchased and sold to settlers, and, to enable that to be done, Mr. McLean found it necessary to satisfy the claims of these absentee proprietors. And there is no doubt that if the war had not taken place and the relations of parties had not changed, and Mr. McLean were now purchasing the block of land under investigation, he would feel himself compelled to extinguish the titles of these absentees, as he had done in previous cases. In fact it appears that this recognition actually occurred in the case of Ropoama Te One.

The other objection raised by the Crown Agent—that one Government is not bound by the acts of its predecessors—appears to the Court to be fallacious. This Court is not the Government, and in no way represents the Government, and is in fact constituted to decide between the Crown and a portion of its subjects. The previous acts of the Crown may now very fairly be used as evidence by adverse claimants. Moreover we doubt very much whether the doctrine expressed is a good doctrine, even in politics. Certainly in courts of law, as concerns matters of right affecting the Crown, it must be held to be a bad doctrine.

The Court, therefore, sees no reason for departing from the rule which was acted upon in the case of the Oakura block. We exclude from compensation all persons who, having been expelled by force from this block of land previously to the year 1840, have never re-occupied, excepting. such of them as have been recognised as owners by the Government or its officers.

We find the block called Waitara South divided into two distinct portions, the Puketapu and the Waitara. The Puketapu portion of this block is part of a larger estate, comprising originally in addition the Bell Block, and all the land as far as the Waiwakaiho river, owned by a clearly defined set of people called the Puketapu. When the Bell Block and other portions of this estate were sold, absentee claimants were recognised by the Government as owners, and received portions of the purchase-money. We feel ourselves bound, then, co recognise the rights of these persons over the remaining portions of this estate now taken under the Settlements Acts.

Rawiri Watino will also be admitted, he haying produced an undertaking, signed by Mr. McLean, that his claims at Waiongana should be recognised whenever that land was purchased; also, Riwai Te Ahu, for the reason stated below.

The only absentee person whom we find to have been distinctly recognised by the Government in the Waitara portion is Ropoama Te One. But, in addition, we sanction the claim of Riwai Te Ahu and Pin Kawau over this block, although they have never actually re-possessed themselves of any portion of the land since the expulsion of the tribe by the Waikatos. We think this exception may justly be made, because their absence from Maori kaingas was caused by page 15their adoption of civilized employments—one in the Church and one in the Government—which absolutely prevented their retaining to their tribes and re-occupying their land in Maori fashion.

A considerable number of claimants now absentee have also maintained their right by having returned and cultivated the soil between 1840 and the present time. These persons will be admitted as resident owners, and will appear amongst that class.

The claims disallowed for non-appearance and other similar causes amount to 149.

The claims disallowed for non-possession, or occupation for an insufficient time to warrant the belief in a domiciliary intention, are 238.