The Pamphlet Collection of Sir Robert Stout: Volume 30
10th June, 1879."
I do myself the honor to forward to you, herewith enclosed, a copy of certain new Rules, which it is proposed to make under the authority of the 'Native Land Act, 1873,' for regulating the times and places for the sittings of the Courts, and for fixing the rates to be charged for surveys made for the purposes of the same.
"I have to request that you will peruse them, together with the schedules, respectively marked A and B, appended, and return them to me, signed by yourself, unless you shall see reason to dissent from any particular therein.
I have the honor to be, Sir, "
Your very obedient servant, "
F. D. Fenton, "Chief Judge.
His Honor Judge Wilson, "Native Land Court Office, Tauranga."
Whereas it is enacted by the "Native Land Act, 1873," that the Judges of the Native Land Court, with the Assessors, should, as soon as conveniently might be after the passing theroef, make such General Rules touching the sitting of the Court, and the practice and procedure thereof in all matters as they might deem advisable: Provided always that all rules to be made under the authority of the said Act, should be submitted to the Governor in Council for his approval; and upon being so approved should be forthwith published in the "New Zealand Gazette;" and should, from and after a date to be fixed by the Governor in Council in that behalf, have the force of law, until altered or repealed by other rules to be similarly made and approved:
And whereas, on the twenty-fourth day of June, one thousand eight hundred and seventy-four, rules were made by us under the above-recited authority; and it is now expedient to make further rules for the purposes aforesaid:
|A.—||No claim or application shall be heard, unless the Land shall have been advertised in a Kahiti, bearing date and published at least twenty days before the first day of sitting of the Court; beside being published otherwise, as at present.|
|B.—||Henceforth Courts shall be held in each year at the places and on the dates mentioned in the Schedule hereto annexed, marked A.|
|C.—||The Chief Judge shall cause the business to be brought before each Court to be duly advertised.|
|D.—||The rates to be charged for surveys shall be thus set forth in the Schedule hereto annexed, marked B.|
|E.—||Whenever two or more adjoining blocks of land are surveyed together, at the same time and by the same surveyor, the boundaries of which are common for more than one-fourth part of the total perimeter of the larger block, then one-fourth of the above rates shall be deducted from the charges on each block for all areas above one hundred acres. And when ever also more than one half of the lengths of the boundary lines shall run through vegetation less than six feet high, one-fourth of the Shedule rates shall be deducted.page 72|
|F.—||When a survey is made of land, one or more of the boundaries of which has been previously surveyed, then only the actual cost of completing the boundaries shall be charged; unless it shall be known that the former surveys are erroneous, so that it be necessary to re-survey the whole; in which case the full charge shall be made.|
Natite Land Court.
|Upon blocks not exceeding 30 acres||£5||0||0|
|Upon blocks over 30 and not over 50 acres, 3s per acre, but not less than||5||0||0|
|Upon blocks over 50 and not over 100 acres, 2s 6d per acre, but not less than||7||10||0|
|Upon blocks over 100 and not over 200 acres, 2s per acre, but not less than||12||10||0|
|Upon blocks over 200 and not over 300 acres, 1s 8d per acre, but not less than||20||0||0|
|Upon blocks over 300 and not over 500 acres, 1s 3d per acre, but not less than||25||0||0|
|Upon blocks over 500 and not over 1000 acres, 1s per acre, but not less than||31||10||0|
|Upon blocks over 1,000 and not over 5,000 acres, 8d per acre, but not less than||50||0||0|
|Upon blocks over 5,000 and not over 10,000 acres, 6d per acre, but not less than||100||0||0|
|Upon blocks over 10,000 and not over 25,000 acres, 4d per acre, but not less than||250||0||0|
|Upon blocks over 25,000 and not over 50,000 acres, 3d per acre, but not less than||425||0||0|
Upon blocks above 50,000 acres the rates charged shall be by special arrangements.
Schedule A.—Native Land Court.
|Place and Day of Sitting.||Place and Day of Sitting.||Place and Day of Sitting.||Place and Day of Sitting.|
|Shortland—Wednesday before 1st November||Tauranga—Wednesday before 1st November||Taupo West—Wednesday before 1st November||Otaki—Wednesday before 1st November|
|Kapanga—Wednesday before 29th November||Taupo East—Wednesday before 29th November|
|Whitianga—Wednesday before 13th December||Galatea—Wednesday before 6th December|
|Ohaeawai—Wednesday after 7th January||Rotorua—Wednesday after 7th January||Uawa—Wednesday after 7th January||Cambridge—Wednesday after 7th January|
|Whangaroa—Wednesday before 1st April||Maketu—Wednesday before 1st April||Waiomatatini—Wednesday before 1st April||Wellington—Wednesday before 1st April|
|Mangonui—Wednesday before 15th April||Masterton—Wednesday before 15th April|
|Hokianga—Wednesday before 29th April||Rangitikei—Wednesday before 13th May|
|Makaraka—Wednesday before 6th May||Whanganui—Wednesday before 3rd June|
|Ohinemuri—Wednesday before 3rd June||Matata—Wednesday before 10th June||Wairoa—Wednesday before 3rd June||Patea—Wednesday before 8th July|
|Helensville—Wednesday before 15th July||Whatatane—Wednesday before 29th July||Napier—Wednesday before 1st July||New Plymouth—Wednesday before 29th July|
|Kaihu—Wednesday before 5th August||Raglan—Wednesday before 12th August|
|Whangarei—Wednesday before 19th August||Opotiki—Wednesday before 19th August||Waipawa—Wednesday before 5th August|
20th June, 1879."
I have the honor to acknowledge the receipt of your letter of the 10th inst. covering six draft-rules, which you propose should be made further rules of the Court under the 'Native Land Act, 1873,' and requesting me to sign the same unless I shall see reason to dissent from any particular therein.
"In reply I would say that, as regarding the proposed rule standing first on the list, 30 days, all circumstances considered, as from the native point of view, is, to my mind, a very short notice for a first notice. The case would seem, however, to be sufficiently provided for by Rule I., of the 24th June, 1874, and by the Act itself.
"Respecting the second rule with Schedule A. In this instance no reason has been shewn on behalf of the change sought. For my part I think the present condition, notwithstanding its imperfections, better for the public than the course proposed. If any rule is desired re an important matter of this kind I would venture to suggest the advisableness of a meeting of Judges and Assessors as heretofore, for the purpose of discussing and determining the same.
"Rule 3. This has reference merely to the previous rule.
"Rule 4, with Schedule B. attached, and following rules. These seem to contemplate an invasion of the natural right of employer and employed to make their own bargains. This right is postulated and fully recognised in clauses 72 and 73 of the 'Native Land Act, 1873,' the parties named being the 'Native Claimants' and 'Native Owners' on the one hand, and the 'Inspector of Surveys' on the other. Moreover, by clauses 74 of same Act, and 7 of the Act of 1878, No. 2, the latter party, that is to say the party surveying, may, subject to conditions therein named, be any surveyor duly authorised according to the Act, and in the event of the same coming before the Court, then the Court, by the clause last mentioned, is required to 'take cognisance of any proper and reasonable agreement entered into between a duly authorised surveyor and the persons employing him to perform any survey of native lands.' I do not know where we are clothed with the power to take this right from those parties and to invest ourselves with it, nor have I heard any reason why we should seek to do so. My own feeling is that the native is as competent to employ his surveyor as is a European.page 75
"Again, apart from the foregoing, prices in New Zealand vary with the locality and fluctuate with the times, and a rigid system would not accord with these conditions. Again, the Court would necessarily be very much in the hands of surveyors themselves in fixing charges, and surveyors have an interest in fixing them at a maximum.
As regards Schedule B., I think the smaller lines are so very high that I should be afraid they would militate against the individulization of native title.
I have the honor to be, Sir, "
Your obedient servant, "
J. A. Wilson, "Judge. "F. D. Fenton, Esq., "Chief Judge, Native Land Court, Auckland."
26th June, 1879.
"Judge Wilson, Tauranga,
"Re proposed new rules of Court pray forward approval at once, giving authority by telegraph to affix signature; alteration cannot be settled without a meeting, which is impossible.
F. D. Fenton, "Chief Judge."
27th June, 1879.
"Chief Judge Fenton, Auckland,—
"I agree with you in the last two lines of your letter of the 10th inst. I should have acted on the alternative myself, believing it to be the only proper course under the circumstances. I "see reason to dissent;" nothing has occurred to change my views; not an iota of reason has been adduced in support of the changes sought to be introduced important changes upon which I have no opportunity to interchange views with the Judges and Assessors. My reasons, but partially mentioned, it would seem unnecessary to mention further. Hence, if the affixing of my name is looked upon as a mere form, I beg you will be good enough to dispense with that form in this case; if otherwise, then I am unable to permit my mind to be influenced by aught but considerations which appear to be reasonable.
J. A. Wilson, Judge." page 76 "Auckland,
27th June, 1879."Judge Wilson, Esq., "Judge Native Land Court, Tauranga. "Telegram unintelligible. Please repeat; also state your objection to Rule.
F. D. Fenton, "Chief Judge Native Land Court. "Tauranga,
28th June, 1879.
"Chief Judge Fenton, Auckland.
"I have asked the telegraph office to repeat the message for you. Before proceeding further, I would request you to be good enough to state re Schedule A. what reasons induce you to desire to depart from or alter your present practice. 2nd. "What grounds have you to assume that the scheme proposed would answer sufficiently well to justify us in stereotyping it a rule without trial. Re Schedule B., what reasons have induced you to ask for this rule? What statutory power do you rely upon to warrant our prescribing rates to be paid for surveys to be performed.
J. A. Wilson, Judge."
June 28, 1879."
Referring to your letter of the 20th Instant, and of your telegram of yesterday's date, I have the honor to state that a little reflection would have shewn you that a meeting of all the Judges and Assessors would be most expensive and inconvenient (some being at the Chatham Islands). In fact, a strict compliance with the Act is impossible, and was found so, when rules were previously made.
"The cause which you have thought it your duty to take, compels me to abandon all further attempts to make the proposed amendments, the chief object of which was to divest myself of powers which subjected me to constant solicitation and embarrassment. I must now do the best I can with my own powers.
I have the honour to be sir, "
Your most obedient servant, "
F. D. Fenton, "Chief Judge. "J. A Wilson, Esq., "Judge Native Land Court, Tauranga."
5th July, 1879."
I hare the honour to acknowledge the receipt of your letter of the 28th June.
"In reply I beg to state that when I ventured to suggest the advisability of a meeting as heretofore in important cases of the kind under reference, I simply pointed out the ordinary course by which business, both public and private, is continually transacted under similar circumstances. I did not ask for a meeting. I did not say a meeting was necessary, or that it would be proper or even desirable. The business being in your hands, I merely suggested whether a meeting would be advisable, and I stated some objections to the proposed rules.
"Tour reply that 'a meeting is impossible' was at once accepted by me as conclusive from a practical—that is to say, from an administrative point of view—and so far were you from being influenced to withdraw your proposed rules by any suggestion I had made, that in the self-same telegram notifying the impossibility of a meeting you desire me to forward my approval of the rules 'at once.'
"I turn now to another phase of the subject. When you informed me that a meeting was impossible, it seemed no longer premature to ask the reasons that had induced you to propose these rules, such reasons being necessary, as I had hoped, to enable me to consider the rules aright. I therefore telegraphed an inquiry to you two days after receipt of your telegram stating a meeting to be 'impossible' and desiring me to sign the rules 'at once.'
|'I.||Re Schedule A. What reasons induce you to desire to depart from or alter your present practice? What grounds have you to assume that the scheme proposed would answer sufficiently well to justify us in stereotyping it a rule of the Court without trial?page 78|
|'II.||Re schedule B. What reasons have induced you to ask for this rule? What statutory power do you rely upon to warrant our prescribing rates for surveys to be performed?'|
"Such were the simple, and in this case necessary, questions, to the first of which alone did your letter in any way reply
"I have narrated circumstances as they occurred thus to place on record, in so far as I am aware, how the rules you proposed became abortive, and to combat the erroneous impression, unstated, indeed, in your letter of the 28th ult., but conveyed notwithstanding, that the rules had miscarried because I had required a meeting of Judges and all the Assessors.
"Whereas I should have been willing and happy to approve the rules had you but been able to return satisfactory replies to the proper questions put to you concerning them.
"Here I would remark that it is but scant justice to a set of rules such as these, and speaks little for the confidence of its author, to withdraw it thus hastily from view the moment questions are asked about it, and I regret that propositions so feebly supported should be seriously placed before me.
"I have affirmed that these questions were necessary in this case, and as I do not desire to put forth aught of this kind in respect to which I would be unable or unwilling to give a reason, I will shortly indicate here how I conceived them to be necessary.
|Acres.||Charges under legal scale.||Charges under Schedule B.||Percentage of Schedule B. above legal scale.|
It is not possible to do more than approximate roughly to an estimate of the aggregate weight of the additional burdens you would permanently impose upon the native community by this schedule. It may, however, be placed at not less probably than £50,000—and might be very much more than that sum—and this I feared when I made my inquiry that the increased cost of surveys would defeat a chief object of the Legislature and of the author of the Act.
"Again. The legal scale rests in a separate department, connected indeed with the Court to a certain extent, but independent of it. Over this department the Inspector of Surveys presides. He is required by the Act to make his own rules or regulations under its 70th clause, something in the same way that we are empowered to frame our own rules by the 17th clause. I apprehend the Inspector can request the Governor in Council to alter this scale if necessary, raising it or lowering it to suit the times, but we cannot touch it. At any rate it had not been shewn when I wrote how or why we should attempt to inferfere. It is beyond the boundaries of our province, nor do our functions extend to it.
"Again. The Judges in their memorandum entitled 'Remarks by Judges of the Native Land Court upon the Native Land Act, 1873," submitted to His Excellency the Governor in Council, at a date not named, in speaking to the circumstance, that they were unable to require from the Inspector of Surveys a plan even or tracing, for the Court Rolls say—' The Judges cannot deal with this matter by page 80 rules, as they have no power to regulate the conduct of independent departments connected with the Court.' Such, therefore, being the unanimous opinion of the Judges deliberately expressed at that time, I was unable to reconcile the said opinion with the principle of the Schedule, the latter being, to my mind, a flagrant attempt to 'regulate the conduct of an independent department,' and as I have an objection to the Judges, or any of them, being asked to stultify themselves I challenged the rule.
"Again. I am not aware that we have the power to act for the Inspector of Surveys, should we wish it even, nor do I think that he is authorised to delegate his functions to us.
"I turn now to Schedule A. and the rule covering it. After the receipt of your answer to my first question, re this Schedule I should have requested a meeting had the rules not been withdrawn, and here I may note parenthetically, that I should have equally required a meeting to consider the Survey question and Schedule B., believing as I do, that a meeting would have been necessary in this instance, and being necessary, should be convened, and that all necessary expenses connected therewith, and inconvenience if such is to be considered, should be cheerfully incurred; hence, as I have said, I should have requested a meeting on receipt of your reason in the letter of the 28th ult., because the proposal and the reason raised a series of considerations which seem to be of much importance to the administrative success of the Act, considerations based upon the Act itself, upon its past, its present, and future usefulness, and how the embarrassments you complain of, which doubtless increase as business increases, should be met and provided for in an intelligent way in each case; for these difficulties cannot be ignored or set aside in any district I am acquainted with. They are an element demanding personal supervision on the part of the administration, and no automatic scheme, or time-table set up among the stifling and evanescent conditions which surround a Native Land Court, would be likely to secure a successful issue.
"The whole matter is, however, a question for careful deliberation, and I trust that sooner or later its importance may be deemed sufficicent to justifiy a meeting.
I have the honor to be, sir, "
Your obedient servant, "
J. A. Wilson, Judge. "F. D. Fenton, Esq., Chief Judge, N.L.C."
July 11th, 1879."
I have the honor to acknowledge the receipt of your letter of the 5th inst., commenting on the new Rules.
I have the honor to be Sir, "
Your most obedient servant, "
F. D. Fenton, "Chief Judge. "J. A. "Wilson, Esq., "Judge Native Land Court, Tauranga."