In the Supreme Court of New Zealand, Wellington Disrict.

Seymour V. Macdonald.

Judgmest of Richmond, J. (Delivered 14th April, 1887.)

In this case the plaintiff claims to be the purchaser of the shares and interests of some of the native owners of a block of land at Poverty Buy, known as "Whangara." The block is held under a certificate of title issued under section 17 of "The Nativo Lands Act, 1867." The order for a certificate bears date 2nd December, 1870; and on the same day the presiding Judge was ordered to report, and must be taken to have reported, the opinion of the Native Land Court that it was proper that the block should be inalienable by sale or mortgage or by lease for a longer period than twenty-one years from the date thereof, The plaintiff claims under a memorandum of transfer alleged to have been executed in accordance with the provisions of "The Native Land Act, 1873." The Commissioner appointed under "The Native Lands Frauds Prevention Act, 1881," has certified the trans-action as not invalid under that Act; but the certificate and declaration of Judge of the Native Land Court required by sections 61 and 93 of "The Native Land Act, 1873," have not been obtained. The conditions of a valid alienation under the latter Act cannot, it is obvious, have been complied with; for it is not pretended either that all the owners have signed the memorandum of transfer, or that there has been a subdivision under section 97 of the Act. The plaintiff has now made application to the Chief Judge of the Native Land Court for a certificate under section 24 of "The Native Land Administration Act, 1886;" and, upon the refusal of the Chief Judge to grant a certificate, comes to this Court for a writ of mandamus.

The 24th section expressly excepts cases where the title to the land in which a share or interest [unclear: i c ai ed] was at the time of the purchase or lease—which must mean at the time of the pretended purchase or lease—subject to any restriction precluding such purchase or lease. The plaintiff is therefore driven to contend that this Whangara Block was not at the date of this purchase subject to any such restriction. Accordingly he argues that either the recommendation of the Native Land Court respecting the imposition of such a restriction was ultra vires and void or that It ought now to be disregarded by the Chief Judge.

In my opinion this contention cannot be sustained. Section 20 of the act of 1867 requires the Native Land Court to append to every certificate issued either under the Act of 1865 or under the Act of 1867, a report, stating the opinion of the Court on the question whether It is or is not proper to restrain alienation; and of proper, then to what extent. It is argued that such a report must be inoperative as regards certificates under the 17th section, because under that section no Crown grant can issue; so that a recommendation to the Governor respecting conditions to be imposed by the grant is an absurdity. But it is consistent with the provisions of the 17th section that, after partition of a block comprised in a certificate issue I under that section. Crown grants may be issued of the portions alloted in severalty to the different Native owners Partition, under the name of subdivision, is contemplated by the section, and reference is made to the provisions for that purpose contained in the Act of 1865. The reference to the 15th section of the Act of 1865 is an evident misprint. The mistake is so plain that I have no hesitation in saying that for "15th" the Court must read "50th." Now the 50th section of the Act of 1865 makes provision for the issue of Crown grants of the allotted shares in a block, and these provisions are easily applicable to the case of holders under a certificate issued under section 17 of the Act of 1873. There is therefore no difficulty in supposing that the restraint on alienation, if adopted by the Governor, is to be inserted in the grants of the several allotments after partition. Meantime, it appears to me impossible to contend that the report can be treated as a nullity by the very Court which issued it. True, it is as yet only a recommendation, which the Governor may ultimately decline to act upon; but the Court having once made such a recommendation is functus officio in the matter. It would be clearly ultra vires in any Judge of the Court to pretend to anticipate the action of the Governor, and take the matter out of His Excellency's hands by allowing alienation. The land therefore must be considered as subject to a restriction precluding alienation within the meaning of section 24.

But even setting aside the special restraint on alienation which existed in this case, and supposing the block to have been held under certificate without any such special restriction, I am of opinion that the plaintiff must fail. The alienation has never been approved by the Native Land Court under section 61 of "The Native Lands Act. 1873," nor could it properly have been so approved for the reason already stated. It has been decided over and over again that a memorandum of transfer under the Act of 1873 does not proprio vigore pass an estate to the pur chaser The certificate and declaration mentioned insection 61 are essential parts of the conveyance, and nothing vests till they are obtained.

The Act of 1886 can have made no difference In this respect. Section 24 speaks of "a person who may claim to have heretofore purchased or leased the share or interest of some out of several owners of land and by the interpretation clause "owner" Includes persons registered under section 17. Relying on this language, I underhand counsel for the plaintiff to suggest that section 24 recognises transactions such as the plaintiff's alleged purchase, and does away with the necessity for the approval of the Native Land page 28 Court. It Is, however, quite possible to give effect to the language of section 24 without resorting to such a supposition. As regards leases the section may, no doubt, apply to lands held under certificate or memorial of ownership: but as regards absolute alienation the section does not in my opinion apply to lands so held, but only to purchases of shares held by natives in joint tenancies, or as tenants in common under Crown grants, land so held is not within the exception from the definition of "land" contained in section 3, that is to say, it is not "land purchased by a native from the Crown or from Europeans, and held under Crown grant or conveyance to such owner individually." "Individually" must here mean the same thing as "solely;" for it appears from section 21 that land held under grants to more natives than one comes within the general prohibitory enactment of section 32. Therefore, in regard to purchases of shares so held which had been made, but not completed by conveyance, prior to the Act, some special provision was fair and proper; and I take it that to such purchasers, and to such purchasers only, sections 24 and 25 apply. Effect is thus allowed to those provisions without resorting to the supposition put forward on the part of the plaintiff. But in any case it cannot have been intended by those provisions to do away with the existing restrictions upon the acquisition by Europeans of partial interests held under certificates and memorials of ownership. The policy of the Act, as pointed out by Mr. Bell, is not to enable but to restrain the direct alienation of their lands by Natives to Europeans; and it cannot have been intended to give validity to transactions which, under the statutory provisions in force at the time of the passing of the new Act, would have been inoperative. Therefore, on this independent ground, my Opinion is against the present application.

The motion for the issue of a writ must be refused with costs.

As regards the above judgment in the Whangara case, it may be noted that section 61 of "The Native Land Act, 1873," applies to a complete purchase, where all the persons had signed the deed of conveyance, and the purchaser has applied for an order for freehold tenure. Now the case submitted to the Court arose out of section 24 of "The Native Land Administration Act, 1886," the part referring to the case being as follows:—

Section 24. "A person who may claim to have purchased or leased the share or interest of some out of several owners of land (the title whereto was not at the time of such purchase or lease, subject to any restriction precluding such purchase or lease), may notify, etc, and thereupon it shall be the duty of a Judge thereof, and if he is satisfied that there has been a purchase or lease, as alleged, and that the transaction was bona fide, and that a fair value or rent was given or received, may give his certificate to that effect to the person alleging himself to be such purchaser or lessee, who shall transmit the same to the Commissioner. By subsection (b) the purchaser may, within one month after the date of the certificate, give notice to the Commissioner that he is desirous of purchasing the shares or interests which he has not already acquired, and in such case he may, on obtaining such certificate from a Judge, that such Judge is satisfied that he had before the 1st day of July, 1886, obtained the signature of one or more owner or owners to a writing purporting or agreeing to convey the share or interests of the persons signing at any time within twelve months from the said 1st day of July, 1886, but not afterwards, purchase all or any of such shares or interest." The case of Mr. Seymour is simply this: He leased the Whangara block for a term of years, and during the currency of his lease some of the owners sold and conveyed their interests to him. He applied to the Chief Judge of the Native Lands Court for a certificate under the 24th section above quoted. It appears that the land was held by a certificate of title made under the seventeenth section of "The Native Land Act, 1867," whereby the land was rendered inalienable except by lease for 21 years, unless it was subdivided, when, if so subdivided, a purchase could be made. The Chief Judge refused the application, on the ground that the land, the subject of it, came under the proviso of section 24 of being subject to a restriction precluding such purchase or lease. This was the issue tried by Mr. Justice Richmond. He decided that the land was subject to a restriction at the time Mr. Seymour purchased the interests. It may be urged, with all deference to the opinion of the most able authority on native land questions, who occupies the judicial bench in New Zealand, that there was nothing is any law in force within the colony preventing Mr. Seymour from entering into agreements with the owners of land held by certificate of title under the seventeenth section of the Act of 1867, but on the contrary, he might assert that he was proceeding to procure the assent of all the owners to such sale, until he was stopped is his negotiations by the passing of "The Native Land Administration Act, 1886;" that if he had been allowed to go on for another two or three years he might, although not being able to get all the owners to sign a conveyance to him, have procured the assent of the whole of them to a sale, when he would then have been is a position to have applied to the Court to give him an order for freehold tenure for the interests he had acquired, or the partition of the interest of the dissentients from, those the subject of the proposed sale to him. Assuming that the sale was not good in law, then at least the documents would be evidence of a proposed sale or lease, and would come under the meaning of section 65 of the Act of 1873. Now, turning to section 98, referred to by the learned Judge, it is provided therein that "All lands comprised in any such certifícate (the certificate alluded to is one under the seventeenth section of the Act of 1867) issued as last aforesaid respecting which as conveyance, lease, mortgage or contract has been made, may be dealt with in the like manner as laud held under memorial of ownership under this Act. Provided that land comprised in any such certificate respecting which any dealings may have heretofore been had may be dealt with in like manner as land held under memorial of ownership under this Act, but only in the case that in every dealing for such land the parties to such transactions shall satisfy the Court that they have the assert of all the persons (not the signatures) of all the persons to a conveyance, whose names are indorsed on the certificate, as well as the assent of those named on the face of the certificate to any such transaction." "The Native Land Court Act of 1886," it is true repealed "The Native Land Act, 1873," but it left very ample provision in section 117 for carrying out anything that had been commenced under any of the repealed Acts Mr. Seymour might therefore have argued page 29 thus with the Chief Judge of the Native Land Court at the time his application came before that officer. "I have not come before you for the purpose of asking for an order of freehold tenure for the interests alleged to have been acquired by me in the Whangara block; I only wish you to give me a certificate which will enable me to proceed in procuring the assent of all the owners to the sale of the interests of those who are willing to convey to me, or to procure the signatures of all of the owners to a conveyance. There is nothing prohibiting me from doing so; in fact, I am complying with the Act of 1873 in trying to obtain the assent of all to a sale, or the signatures of all to a conveyance; and at some future time I would have come before yon, either with a complete conveyance, or a complete assent to a conveyance, and would have then applied to you in the one case for an order in freehold tenure under lection 59, or in the other for a partition under sections 65 and 69 of the Act of 1873." section 24 of "The Native Land Administration Act, 1886," refers to incomplete transactions only, and not to those that have been conducted to a conclusion with the native owners holding under a memorial of ownership. The judgment, however, sets forth "that the certificate and declaration of a Judge of the Native Land Court required by sections 61 and 98 of "The Native Land Act, 1873," have not been obtained. The condition of a valid alienation under the latter Act cannot, it is obvious, have been complied with, for it is not pretended either that all the owners have signed the memorandum of transfer, or there has been a subdivision under section 97 of the Act."

The question before the Supreme Court was whether the Chief Judge of the Native Land Court was not bound in law to issue a certificate to enable Mr. Seymour to proceed with an incomplete transaction, which in itself was not illegal, but only inchoate and incomplete, and had not arrived at the stage when it would require to receive the certificate and declaration of a Judge of the Native Land Court It was not forbidden by law to obtain the assent or signatures of any of the native owners to a deed of conveyance, but to validate that conveyance and procure the certificate and declaration of a Judge of the Native Land Court, it required the signatures of all the owners either to the conveyance or to an assent to the conveyance, that is, the non-sellers agreeing to the tale by the others but retaining their own shares. Mr. Seymour intended to procure these and was proceeding to do so when he was stopped by the present law, and he merely asks for a certificate to enable him to complete what he had commenced. The Court was not asked to give its opinion as to the validity of Mr. Seymour's purchase, but whether Mr. Seymour had "obtained the signature of one or more owners to a writing purporting or agreeing to convey the share or interests of the persons signing it, the title whereto was not at the time of such purchase subject to any restriction precluding such purchase." The word "purchase' is in the commencement of section 24 somewhat at variance with the provisions of subsection (b) above quoted. The one alludes to an absolute sale, and the other relates to a document purporting to agree to convey—not a conveyance. The question is whether Mr. Seymour's document, which he submitted to the Chief Judge of the Native Land Court, could not have been looked on in the light of an agreement to convey, which there was nothing in law to prevent him from completing, and which he could set up as being a proper conveyance whenever he either procured the signatures of all the owners thereto or the assent of all to the sale being made by the vendors. Section 48 of the Act of 1873 contained a provision providing for the following restriction on alienation:—"To every such memorial there shall be annexed the following condition: That the owners of the piece of land referred to in such memorial have not power to sell or make any other disposition of the said land, except that they may lease the same for any term not exceeding twenty-one years." The next section (49) provides that: "Nothing, however, in the foregoing conditions annexed shall be deemed to preclude any sale of the land comprised in such memorial where all the owners of such land agree to the sale thereof, or to prevent any partition of such land in manner hereinafter provided, if required." The only difference between this restriction and that contained in section 17 of the Act of 1867 is, that in the latter case, the land could not be dealt with otherwise than by lease not exceeding twenty-one years until subdivided. Now, by the Act of 1873, sections 97 and 98, it was clearly provided for that lands under such certificates could be dealt with the same as lands under memorial of ownership, consequently, the restrictions in such certificates were waived in so far as they differed from those imposed by section 48 above quoted; and by the next section (49) in despite of the restriction, it was enacted that a sale of the land comprised in such memorial where all the owners agree to the sale thereof was to be recognised. The words are not where all the owners have executed a conveyance thereof, Mr. Seymour might allege, "I am in the course of getting such agreement to a sale," and is there anything in the law which provides that he cannot endeavour to do so? The above appears to refer to all cases where a Crown grant of land under memorial of ownership has not been issued. It is true that the Act of 1867 provides for the insertion by the Governor of restrictions on alienation in any grant if the same shall have been recommended by a Judge of the Native Land Court, but a recommendation of a Judge is one thing, and the placing it in a grant is another matter. It seems to have been so in the Whangara case. In the certificate of title the Judge had recommended a restriction to be inserted in the grant, but it is well known that except in one or two instances where the grants were issued by an oversight (as In Grice and Benn's case), none were prepared for lands held under a certificate of title issued in accordance with the seventeenth section of the Native Land Act, 1867, consequently if the Crown grant never issued for the Whangara block, it was impossible for page 30 it to contain a restriction on alienation, and the recommendation on the face of the certificate could not be considered as a restriction on alienation. If this is so, the only restrictions, therefore, which had any force or effect were the statutory restrictions imposed by the Acts of 1867 and 1873 in Certificates of Title and Memorials of Ownership, which could be set aside by complying with the provisions of section 49 of the Act of 1873" Further, with reference to Mr. Justice Richmond's remarks that section 50 of the Act of 1865 makes "provision for the issue of Crown grants of the allotted shares in a block, and these provisions are easily applicable to the case of holders under a certificate issued under section 17 of the Act of 1873. There is, therefore, no difficulty in supposing that the restraint on alienation, if adopted by the Governor, is to be inserted in the grants of the several allotments after partition." It may be urged that in the case of land held by Memorial of Ownership a grant could not be issued on the commutation of Native Title to more than ten persons (section 80, Act of 1873), and this may be taken to also apply to any case of lands held by certificate of title under section 17 of the Act of 1867, if not before, at anyrate subsequent to the passing of the Act of 1873, therefore, it was impossible to issue a Crown grant for the Whangara block after that date, as there were more than ten certificated and registered owners in the certificate for the block, and the recommendation to impose a restriction on alienation would then be null and void. It is doubtless correct that a restriction on alienation could be inserted in the new certificates granted on a subdivision, but the Whangara block had never arrived at that stage, and it may therefore be justifiable to assume that the only bar to alienation was the statutory restriction imposed by section 17 of the Act of 1867, and section 48 of the Act of 1873. The judgment throughout appears to deal with what was not required from the Supreme Court, namely, as to the validity of the documents submitted by Mr. Seymour, whereas it would appear that all that was required to be determined was whether Mr. Seymour had obtained a writing purporting to agree to convey certain interests, and is he entitled to receive a certificate to enable him to complete his conveyance? The answer might have been Yes; he may go on with his arrangements; but when he completes his conveyance he must, to make it valid, if he does not purchase all the shares, either apply for a subdivision, as contemplated by the Act of 1873 and the Act of 1886, or shall in accordance with the Act of 1873, satisfy the Court that all the owners of such land either sold their interests, or that the non sellers agreed to the sale by the others, but required a sub-division of their portion of the block.

The Judge and Mr. Bell agree that "the policy of the Act of 1886 is not to enable, but to restrain the direct alienation of their lands by natives to Europeans;" and the Judge adds, "and it cannot have been intended to give validity to transactions which under the statutory provisions in force at the time of the passing of the new Act would have been inoperative. Therefore, on this independent ground, my opinion is against the present application." Doubtless "The Native Land Administration Act, 1886," was enacted with the above object; but it must be remembered that the Act of 1873 sets forth in the preamble thereto: That whereat it is highly desirable to establish a system by which natives shall be enabled at a less cost to have their surplus land surveyed, their titles thereto ascertained, and the transfer and dealings thereto facilitated, be it enacted, &c. The Judge had therefore to look at the position of the case as it stood under the Acts of 1865, 1867, and 1873, not through the light of the Act of 1886. It appears to have been entirely overlooked is the case that the Native Land Court never entirely complied with the provisions of the Act of 1873; that it made subdivisions of land under memorial of ownership when a majority of the owners had not applied for them. That Europeans purchased and obtained orders for freehold tenure when all the persons owning the land had not assented to the sale or executed the conveyance, and although the purchase of such interests was not strictly legal, that successive subsequent Acts allowed the subdivision of shares or interests so acquired, and that by inference the so doing, if it did not create the right to purchase them, facilitated the right to obtain a supposed legal title to them when so purchased.

Having so far endeavoured to place "our dealings with Maori lands," and the defects of our legislation thereon before the public, the author will be satisfied if what has been herein written in any way conduces to amended legislation, and the introduction of a better system of dealing with Native lands which will be beneficial to both races of Her Majesty's subjects in New Zealand, and assist in the progress of civilisation and settlement therein. With these objects he has drafted an Act proposing to deal with this important question, not under the impression that it will provide complete remedies for the evils now existing, but that it may be used as a part of the framework on which to construct a sound and satisfactory law, by which future transactions will be fairly and easily conducted, and those of the past may be brought to a satisfactory and honourable arrangement and conclusion, not overlooking the fact that these have been entered into under laws which could not be understood or entirely complied with. The writer, after submitting the draft of the proposed Act for the consideration of his readers, will make a few remarks on several of the new features contained in it. He, however, craves the indulgence of the legal profession, and hopes that they will not too severely criticise the opinions on points of law herein expressed, as they are those of a layman, and will not be too hard on any of the language of the draft Act now submitted for consideration, but that they will give the question that calm consideration which its importance demands, and suggest such alterations and amendments as may occur to them. He trusts that nothing herein contained will give offence to any person who has been engaged either in legislating on the native page 31 land question, or in administering the several conflicting laws relating thereto, but that everything herein will be taken in the same spirit in which it is given and with the same object—namely, to promote discussion, and cause valuable suggestions to be made tending to the settlement of a question which is hardly second in importance to any other affecting the welfare of this colony. He would not have ventured to write at all on the subject, but no other person seemed to have the inclination or leisure to ventilate it, and he therefore gave his views of the matters which had come under his notice during an experience of twenty-nine years in native land purchase transactions, in the expectation that others, also acquainted with "our dealings with Maori lands," would contribute their quota of information for the public weal.

page break