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

Native Land Court. [Tiritirimatangi]

page 21

Native Land Court. [Tiritirimatangi]

June, 1867.

F. D. Fenton, Esq., Chief Judge.


This is a claim by Matini Murupaenga and others, aboriginal natives, to have a certificate of title issued in their favour for the Island of Tiritirimatangi, in the Gulf of Hauraki, and is opposed by the Crown. The case was commenced on the 8th of December last, and was adjourned to the 13th of March; was then further adjourned for six weeks to enable the Crown to procure certain documents, and was again further adjourned for one month, these documents, which were alleged to be necessary to the case of the Crown, not having been received by its representatives here. The case has now been concluded, and comes up for judgment.

The proofs for the plaintiff's case rest on the evidence of persons of the Ngatipoataniwha and Ngatitaihawa tribes and their relatives and co-claimants, and consist mainly of ancient occupancy, chiefly before the time of the Ngapuhi incursions into this part of the country—the main facts being, that the ancestors of the claimants lived there and cultivated there, were buried there, and had built a pa there, the remains of which have been seen by the present generation, and may, as was stated by one witness, be discovered at the present day. From the time of the Ngapuhi invasion, the ancient possessors do not appear to have ever held permanent possession of the island, nor indeed to have exercised any dominion over it, beyond acts of a very transitory nature, indicating only temporary occupation, and no intention of permanent domicile. Although the case thus made out is in itself meagre, yet it is of sufficient validity to have justified the Court in ordering a certificate of title, if no counter claimant or objector had appeared.

But there appears as an opponent and counter claimant, the Crown, whose case must be carefully considered. The learned counsel for the Crown places before the Court a copy of a deed of conveyance dated in 1841, executed by chiefs of the Ngatipaoa, purporting to convey to Her Majesty and her successors a large tract of country extending from Takapuna Head to Te Arai, "and all trees, waters, water-courses, ditches, fences, and islands (not before sold), and everything else above and below these lands." In a subsequent part of the deed, which may be called the habendum part, the phrase of description runs thus: "From the entrance of Waitemata to Te Arai, and all the islands of this shore, and all places page 22inside the described boundary not before sold." This deed was followed by others, conveying the same estates and signed by members of other tribes, amongst others by persons who may fitly be admitted to be representatives of the present claimants, and by whose acts they should be bound. Now it appears to the Court very doubtful whether the phrase "all trees, waters, water-courses, ditches, fences, and islands," etc.. apart from any extraneous circumstances, was ever intended by either vendors or purchaser to include the mass of islands out in the Hauraki Gulf, lying at considerable distances from the main land. These words appear to the Court to have little more meaning than is usually attached to similar words in an ordinary English conveyance, known to lawyers as "general words." And although the words which occur subsequently, "and all the islands of this shore," etc., have apparently more force, and might be held to show a specific intention, yet noscitur a sociis, and the words which follow, and which are clearly pure surplusage, force to the conclusion that the several large islands on the far side of the ship channel, of which Tiritirimatangi is one, were never in the contemplation of the drawers or of the signers of the deed. The Court could not fail to be struck with the fact that no attempt was made on the part of the Crown to show by evidence that any other of these islands—some of which are much nearer to the mainland and smaller than Tiritirimatangi—were ever held, or supposed to be held, under titles derived from these transactions. On the contrary, in the case of Rangitoto, the Crown relied entirely on three distinct conveyances, signed, some of them, by the signers of the deeds now produced, which deeds would clearly have been entirely unnecessary if our deeds had the effect which the counsel for the Crown now endeavours to attribute to them, especially as the words "not previously sold" would apply with equal force to Rangitoto as to Tiritirimatangi. The Court cannot believe that if the officers of the Crown, at the time of the completion of this transaction, thought that they had negociated for and purchased large islands, such as Tiritirimatangi and Rangitoto, they would have omitted all mention of them in the conveyance, and relied for their title upon "general words"—"waters, watercourses, hedges, ditches, and islands." If the view taken by the Court is correct, the point for which the subsequent deed releasing the reserves called Waimai and Te Tumu was produced will be of no importance, for the question does not arise as to whether the parties conveying were the proper owners.

The other muniment put in by Mr. Gillies is the judgment of Mr. Bell, Commissioner of Land Claims, in which the ownership of Tiritirimatangi is incidently mentioned. But the Court is unable to see what direct bearing this judgment can have on the case before us. It commences thus:—"This claim is for compensation for land at the North Head of Auckland Harbour, taken by the Crown in 1841, upon the establishment of the Seat of Government on the Waitemata." That was the matter which Mr. Commissioner Bell was trying, and not the title to Tiritirimatangi. In the course of the page 23judgment Mr. Bell says that Mr. Taylor having formerly the right to select land in lieu of the North Head, which had been taken from him by the Government, selected, amongst other lands, Tiritirimatangi, which Mr. Clarke, Protector of Aborigines, had reported to have been purchased from the natives, but for which no grant had been issued to Mr. Taylor by the Crown; and Mr. Bell adds, "It is difficult to ascertain why the grant for Tiritirimatangi was not made by the Crown," and he concludes by ordering that "scrip be issued to John Logan Campbell for the sum of £250, and to Ranulph Dacre for the sum of £250, in commutation of their claim to a grant of the Island of Tiritirimatangi, and in satisfaction of all claims in this case." It occurred to the Court that it was possible that the grant was never issued, because the Government had in the interim discovered that the native title had not been extinguished. In the notorious case of Pukekohe, the grants had even been issued, and the Government was compelled by such a discovery, and the obstinacy of the recusant natives, to call them all in, and compensate the grantees at a great cost. No doubt if the grant for Tiritirimatangi had ever been issued, as contemplated, the Court would have been incompetent to entertain the question of previous extinguishment of native title, for its jurisdiction would have been destroyed; but, in the absence of a grant, although the reason for the non-issue of it may, as Mr. Bell says, be "difficult to ascertain," the Court cannot hold the simple opinion of an officer of the Government, recited by Mr. Bell, to be entitled to much weight. If Mr. Clarke's knowledge is conclusive, why was he not produced as a witness for the Crown in this case? Moreover, as a question of law, it is not clear how this judgment could, in any case, be made to affect the interests of the parties now claiming, for they were no parties to the suit, and were, as the evidence proves, ignorant of it, or of any other proceedings in Mr. Bell's Court regarding the island of Tiritirimatangi. Coke says that "law is the perfection of reason," and, no doubt, a man who has the capacity of thinking correctly, will, in ninety-nine cases out of a hundred, come to the same conclusion to which a rule of law would lead him, and it is surely common sense which says that if A brings an action against B for the recovery of a chattel or a field, the rights, such as they are, of C or D shall in no way be determined or prejudiced by the result unless he is cognizant of and a party to the proceeding. But we do not understand that Mr. Gillies relied upon these proceedings in Mr. Bell's Court to do more than show that in 1844 the Government were in the belief that the native title to Tiritirimatangi had been extinguished, and for that object, no doubt, the record is valuable.

The Court, then, is of opinion that the real origin of the Crown's title has not been shown, and that if the case for the Crown rested simply on the documentary evidence, it would scarcely avail to upset the claimants, although their case is undoubtedly weaker than most cases that come under our consideration. But the facts disclosed on the examination of the plaintiffs' witnesses, and in the direct testimony page 24for the defendant, appear to the Court to be of great force, and in a case of this kind, in fact, to be of such a character as to remove from our minds the hesitation and doubt which the disclosure of the grounds of the Crown's opposition had caused us to entertain.

It appears that Messrs. Taylor, Macmillan and Campbell lived on the island at a very early date, without any forcible interruption or question even from natives; that they were succeeded by Mr. Duder, whose evidence made great impression upon the Court, though we attach no importance to the conversation about the land being the Queen's, for he did not know whether that declaration was made by the present claimants or by others; that Duder lived there without any attempt at eviction being made by the natives, and that he suffered no inconvenience from them except such as a man similarly situated would always be liable to, viz., the destruction of his pigs by the dogs of casual visitors; that from 1861 Duder lived there with the express authority of Government, and that he finally left the place because he could not obtain a license. And then there followed the erection of a lighthouse, gradually rising, and visible to all beholders for miles round, as if challenging claims of title to the place. Yet, during all this period of time, extending over a quarter of a century, the natives made no claim, nor entered any protest. Murupaenga's explanation of this damnatory silence is that they knew that it was of no use appealing to the Government for redress, but as soon as a Court was established, where they could be fairly heard, they asserted their claim. But this explanation of a most singular silence cannot be received. The first Native Lands Act was passed in 1862, and was in force, and in actual operation in the district of country where these persons reside; and although its actual work was, from its cumbersome character, of limited extent, yet there existed no reason why these parties should not have made a claim whilst the lighthouse was rising before their eyes. But they slept on their rights, if they then thought they had any, until the claim was made by Takapuna for Orakei, when this claim appeared almost simultaneously, and certainly of a very similar character.

Although, therefore, the Court is unable to discover the origin of the Crown's title, or by what means the native title has been extinguished, yet we are of opinion that the case made out by the claimants is altogether deficient of those elements of strength which would justify us in disturbing the Crown in its possession. To eject a person from his possession, it is not sufficient to show the weakness of his title, but a better must be displayed, and we think that this has not been done. Judgment must therefore go against the claimants.

It may be well, before concluding, briefly to notice one or two matters which have arisen in the course of this protracted trial.

In the first place, the doctrine set up by the learned counsel for the Crown that the proof of "holding'' or the customary usage under which a native claim must be established must be, as of the year 1865, the date of the passing of our Act, cannot, in the judgment of page 25the Court, be maintained. His own argument, as to the use and power of a preamble, will go a long way to upset this, interpretation. The principal object of the Act is to convert Maori holdings into tenures recognized by the law, and, if Mr. Gillies' doctrine is to prevail, the intention of the Legislature will fail. The law is that a statute must be interpreted "tit res magis valeat quam pereat." The word "held," although, grammatically speaking, a participle indicating time, must be construed rather as a word of description, and not limited to any particular moment. The law of construction in cases of this sort is clearly laid down by Abbott, Chief Justice, in Rex v. Hall, 1 Barn. and Cress. 123: "The meaning of particular words in Acts of Parliament, as well as other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be obtained. Thus, the inhabitants of any county, etc., taking that word in its strict or in its popular sense, are those persons only who have their dwelling therein. But the object of the statute being to raise a fund for the repair of bridges by the taxation of persons, * * * the word inhabitant has been held to include all the occupiers, although actually living in some other county." Thus, the object of The Native Land Act being to determine the native titles to land in New Zealand, and to establish recognised tenures in lieu thereof, we must so construe the Act as to give as much effect as possible to the clear intentions of the legislature; and if the construction contended for were allowed to prevail, the Act would very largely fail of effect. Mr. Gillies' objection to hearsay evidence, as applied to pedigrees, is also untenable. The trite rules of evidence, which during many centuries have been elaborated in England and made to suit the circumstances of a most advanced civilisation, cannot be invariably applied to trials in a Court of this description, where the uncultivated man, without a literature, and without a written history of his nation, or of his property and belongings, is brought into contact with the refinements of a system of law gradually developed by the efforts of a succession of civilised intellects. But the principles on which those rules are based are deduced from the most simple fairness, and may be found in the consciences of all men. And it is to these principles, more than to the rules themselves, that resort will be advantageously had; more than this, we do not think that the objections taken and urged with some force of language are even strictly correct as a matter of bare law. Taylor writes thus:—

"Questions of pedigree form the second exception to the general rule rejecting hearsay evidence. This exception has been recognised on the ground of necessity; for as, in enquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial, and were known but to few persons, it is obvious that the strict enforcement of the ordinary rules of evidence in cases of this nature would frequently occasion a grievous failure of justice. Courts of law have, therefore, so far relaxed these rules in page 26matters of pedigree as to allow parties to have recourse to traditional evidence, often the sole species of proof that can be obtained." Necessitas non habet legem is a legal maxim as well as a popular proverb.

The Court, before concluding, feels that it is in duty called upon to notice the non-production of the deeds for which the trial has been so frequently adjourned. The position of the learned counsel for the Crown has been, if possible, one of greater embarrassment than that of the Court itself, although, of course, his responsibility is less. The copies produced are in no legal sense records, but simply copies of deeds. If they are set up as records, we would say, as the Privy Council said in a recent case touching the repeal of a Crown grant by scire facias, "If they are records, of what Court are they records?"—See Bacon's Ab. Tit. Record. These copies were admitted simply on the ground that they afforded the best evidence that could be obtained, the originals being (if in existence) in the possession of an authority beyond the reach of any power conferred upon the Court. It is not for the Court to conjecture why these deeds have not been forthcoming, and Mr! Gillies was silent on the subject. It is necessary to allude to this question, for the admission of copies in this trial must not be construed into a matter of course precedent. It will always be necessary to show that attempts have been made to obtain the best evidence, before the Court will receive the second best. It must also be apparent that the non-production of the originals may often operate injuriously to the Crown's interest; for a native might, and very likely would, deny his signature when viewing the copy, which he might frankly admit if placed before him in the original instrument. It may be well to add that if the muniments of the Crown estates were deposited in some place where they would be accessible to suitors or claimants, or intending claimants and their legal advisers, we think that many cases of the character of the one just decided would be kept back, and would not be brought into Court. For example, there can be no question that if the counsel for the natives who claimed Rangitoto could have inspected the deed of purchase before appearing in Court, the natives would never have appeared there at all. If this claim to Tiritirimatangi could have been determined at once, we have no doubt that the natives would have received the decision with little regret, certainly without a murmur; but the long protraction of the trial, and the apparent difficulties in the progress of the Crown's defence, have raised and strengthened hopes which, now that they are destroyed, will naturally be succeeded by feelings of disappointment and bitterness.