A Few Short Views of the Native Land Laws, As they Principally Affect the Native Race, Being the Subject of a Letter
Printed at the "Herald" Office Gisborne Gladstone Road1889
James Carroll, Esq., M.H.R..
July 10th, 1889.
Parliament being now in session, I propose addressing some remarks to you on the subject of the statutes affecting Native Lands. To criticise at any length the results of the legislation of the past on this subject is not altogether my object. That object rather is to review the laws as they at present stand, and offer such suggestions as appear to me desirable to make them more efficient and workable.
Let me here quote a fable by which the Duchess of Orleans illustrated the character of her son, the Regent:—"All the fairies save one had been bidden to his cradle. All the gossips had been profuse with their gifts; one had bestowed nobility, another genius, a third beauty. The malignant elf who had been uninvited came last, and, unable to reverse what her sisters had done for their favourite, had mixed up a curse with every blessing."
This fable, to some extent, can be applied to Native Land legislation. Nowhere else do we find such startling contrasts; nowhere else do we find measures adopted which are fatal to the object intended; no where else do we find the intended cure accelerate the progress of the disease sought to be cured. The influence of the malignant elf is apparent through it all. That influence appears to control the whole course of Native Land legislation. Nor does the Legislature appear to be able to rise to the exigency of the situation. That it learns little from the efforts of the last twenty-four years is apparent from the legislation of last session, which intensifies the evils sought to be guarded against. No more striking instance of this can be given than the ame ndments making provisions for dealings with Native Lands. I refer to Section 12 of "The Native Land Court Act, 1886, Amendment Act, 1888," and Section 5 of "The Native Lands Frauds Prevention Act, 1881, Amendment Act, 1888," which, in their effect, prohibit dealings in any degree with Native Land if held in blocks owned by more than twenty owners.
Of land still in the hands of the Natives, whether "Native Land" or otherwise, the proportion of first-class land bears relatively a small proportion to land of fair average quality; that, again, bears a still smaller proportion to the area of poor land. To insist on these lands being cut up into parcels with twenty owners would, in many instances, be to make the surveyors the owners. There are blocks of land which no surveyor would accept in payment for his services if he had to cut them up as required by the Act.page 4
If the object to be arrived at is to make provision for ascertaining who are the owners of Native Land, and also to provide a measure whereby Natives will derive a benefit from these lands, that object will not be attained by imposing conditions which are prohibitory to all dealings, and consequently tend to lessen, instead of increase, the value of the estate.
Considering the matter from the point of what is the best course to adopt in the interests of the Native owners—which really is the question involved—the desired end is not to be attained by an attempt at one-sided legislation, whether looked at from an European or Native point of view; nor will the object be attained by the imposing of conditions which involve an outlay altogether out of proportion to the value of the benefits to be derived. "Ko te whenua, ko te ora" (Yes, the land is "the life" if utilised). Land which is an encumbrance is not "life," nor has "life" that pregnancy of meaning to us which it had to our ancestors. With no cereals, quadrupeds represented by one species of rat and the domestic dog, having only the kumara, tare, and uwhi to cultivate, as the most common vegetables of the present day wore unknown, to them, indeed, the land was life, and if it is to mean life to us, those means will not be attained by a protection which amounts to prohibition, and which by the imposition of expensive conditions, tends to depreciate the value of the land to the Natives, so that the price received for the land sold bears a very small proportion relatively to the total cost, and which also affects the rental for lands to be leased. If Natives are to receive a fair benefit from their lands, greater freedom will have to be allowed in land dealing. First of all, secure to them land restricted from sale for their own occupation and for leasing, and facilitate free and unrestricted dealings in the residue.
For the Natives to get rid of a portion of their lands will be to increase the value of that retained. Nor would it follow that if greater freedom in land dealing were permitted the Natives would part with all their lands. Individuals might do so, but not the whole bulk of the people, and in considering the question of greater freedom in Native Land dealing, we should not shut our eyes blindly to the incidence of taxation.
From some figures supplied to me I find that in Cook County alone Native land within five miles of a track amounts to 293,000 acres, of the rateable value of £250,000, the Native rates on which now total £7000.
|Survey of block of 6000 acres||212||0||0|
|Hapu subdivisions into five parcels||94||0||0|
|Further subdivision to cut out for non-sellers and minors||70||0||0|
|Amount paid to owners at 5s. per acre||1292||0||0|
|Cost in acquiring the same||325||0||0|
|Native duty, assesed at 14s. 5d. per acre||358||0||0|
|Incidental expenses and interest on outlay for six years to date of order of freehold tenure||400||0||0|
These figures are instructive as showing the comparatively small sum the Natives receive in proportion to the purchaser's outlay. To obtain five shillings, an outlay of one shilling and five pence is incurred for surveys, and if it had been necessary to subdivide the land into parcels of twenty owners, an additional fourpence per acre would have been added to the cost of survey. I shall have something to say on the question of the Native duty further on. It is, however, owing to this Native duty, to unnecessary and stringent enactments, which increase difficulties in obtaining partition of purchasers' interests, that Natives do not obtain a fair price for their lands. Let me here add that if it is desirable to limit the area of land purchased by an individual or company, greater freedom should be allowed as to areas to be taken up under lease.
Applications for Re-Hearing
Whilst I freely admit the justice of the principle embodied in the legislation of last session, which directs that these applications shall be determined in open Court, it must be admitted that they already occupy a very considerable portion of the time of the Chief Judge, and of the various Registrars. The right to appeal is being abused, and some means will have to be devised to act as a check on the same. We are between the Charybdis of the old system and the Scylla of the present one. Without some salutory check, the evil will grow beyond the power of a single Judge to remedy, besides adding heavily to the expenses of the department. Many of these applications are only sent in as pure speculations—"heads I page 6 win, tails I lose nothing." Some are sent solely from a desire that the senders may see their names in the Kahiti, and air their eloquence in Court; others out of "pure cussedness." To insist that each application should be accompanied by a deposit of £3, to be forfeited if the re-hearing be not persisted in or refused by the Court, would have more effect in checking speculative or bogus applications than would be expected from the smallness of the sum named. Power should also be given permitting the withdrawal of an application at any time before the date of hearing, such permission to be notified in the usual way Although it may, as a general rule, be desirable that those applications should be determined by the Chief Judge in person, it seems to me that circumstances may arise which would render it advisable to make provision for delegating the duty to other Judges, to prevent unnecessary delay in completing the titles. If the work is limited to the Chief Judge only, it could well happen that the title to blocks of laud might be hung up for a year or two, to the great inconvenience and serious loss of persons interested.
The defect in the law in not providing for the withdrawal of these applications, or for the abandonment of the re-hearing except in open Court, is causing serious loss by hanging up the titles to land.
From the passing of "The Native Land Act, 1865," until last session, the definition of "Native" meant an aboriginal Native of New Zealand, and included half-castes and their descendants by Natives. The legislation of last session, with a view, as it was hoped, of improving the position of descendants of mixed marriages between half-castes and Europeans, struck out the words "by Natives" in Section 3 of "The Native Land Act, 1886." Not to mince matters, the effect of the definition of the word "Native" as it stood was to legalise immorality and encourage robbery. Cases in support of this statement are within your knowledge, and have, I believe, been discussed in Parliament.
"In determining the right to succession in respect of either Native land, hereditaments, or personal estate, the child of a half-caste shall be deemed to be a Native.
"Native Land" means land in the Colony owned by Natives under their customs or usages, but of which the ownership has not been determined by the Court." Succession hero is a veritable "Chateau de Espagne," about as valuable as the honor of nobility conferred on the ancestors for three generations of the British Ambassador, on the occasion of the recent marriage of the Emperor of China, more sound than reality, the amendment of last session practically loaves the question as it was before as regards the matter of succession.page 7
"Hereditaments" means land granted by the Crown to and held by Natives. Here at least there may be a substantial benefit to the child of a half-caste, but to "land" which moans any land in the colony owned by Natives, except "Native Land," and as "land" in this sense means land to which the title is under Memorial of Ownership, Certificate of Title, Land Transfer Title, or Crown Grant, other than hereditaments, the child of a European and half-caste is no better off than he was before last session, and the child of a half-caste and a Native is actually placed in a worse position.
To increase the absurdity of the position, the succession is only barred to the child of a half-caste—his child comes in again as a full-blooded Maori.
"Are things what they seem,
Or is visions about?
Is our civilization a failure?
Or is the Caucasian played out?"
I would suggest that the Section be amended by adding the word "land" after the words "Native land" in the second line; or, better still, to repeal the whole clause.
Under Section 3 of "The Native Lands Frauds Prevention Act, 1881, Amendment Act, 1888," a half-caste who understands the English language, if that knowledge is certified to by a Justice of Peace, can execute a deed of conveyance or lease with the like formalities as required by Europeans. This concession is only as to the execution. To validate the transaction the Trust Commissioner must satisfy himself that the formalities required by the above Act have been complied with, and grants his certificate accordingly. I have already argued that the powers of the Native Land Court should be limited to settlement of questions affecting orders for titles issued by that Court, and I see no reason why the Trust Commissioner's duties should not be restricted to dealing in land with Native Land Court titles. I admit it is desirable, in the interests of both Natives and Europeans, that this inquisition should to some extent be held, but think a distinction should be made in the case of an English-speaking half-caste, more especially when that half-caste possesses land under Certificate of Land Transfer or Crown Grant in his individual right, He can purchase from Europeans or the Crown without being troubled by the law as to whether "the transaction relating thereto is contrary to equity and good conscience" or otherwise; but he cannot sell this same land again without being put under the harrow of the Trust Commissioner's enquiries. The result of these enquiries is to depreciate the value of the price to be paid to the half-caste, besides saddling him with extra legal and Court expenses. The remedy for this would be to extend the exemption as to "execution" by including therein enquiries by the Trust Commissioner when the dealings is with land other than land under Native Land Court title.
Native Lands Frauds Prevention Act, 1881, Amendment Act, 1886.
I have already referred to Section 5 of this Act. A very serious defect exists in Section 3, which has reference to the execution of deeds. The section very properly provides that a statement in the Maori language, certified as correct by a Licensed Interpreter, of the effect of a conveyance or lease shall, before the document is signed, form part of that document, and (Subsection b) "the effect of such statement shall be explained to each Native before signing." There is a very important omission here. It is not imperative that the statement shall be explained by a Licensed Interpreter. This, as already stated, is a very serious defect, and requires amending. The words "by a Licensed Interpreter" after the word "explained" would meet the case.
Section 3 is only mandatory as to the statement in the Maori language to a deed of conveyance or lease. From this it follows that deeds and documents such as powers of attorney, declarations of trust, wills, settlements, bills of sale, stock mortgages, or wool liens require no such statement to be endorsed or form part thereof. It is singular that the law is quiescent as to "statements" forming part of the above deeds or documents, and yet insists that promissory notes and bills of exchange shall bear a written interpretation on the back, and a certificate from the Licensed Interpreter that the maker or endorser understood the obligation imposed before he signed the same.
Section 43 of "The Native Land Court Act, 1886," is repealed by Section 23 of "The Native Land Court Act, 1886, Amendment Act, 1888." In determining the right of succession to land held under Memorial of Ownership or Certificate of Title, the Court is to be guided by "Native custom or usage." "In respect of other land, the Court should decide according to the law of New Zealand as nearly as it can be reconciled with Native custom." "Native custom or usage" is as the sign x in algebra—an unknown quantity, potent or otherwise, according to the circumstances of each case. When the question of title to land is being first "ascertained," the Court should give the widest latitude to the meaning of "Native custom and usage," as it forms the essence of all Native title.
The title having changed from parole to written, to admit a like latitude in successions would not be so desirable. "Native custom and usage" could well recognise the rights of foster or adopted children, and as both husband and wife have their separate landed estate, independent of each other (in the absence of children), should recognise the right of the nearest of kin of the husband and wife to succeed to their respective estates. To give effect to "kupu oha" or "poroaki" ("dying words or wishes") would be wide of the question, and encourage conspiracies to defraud the natural heirs, The experience of the Native Land Courts in the page 9 matter of written wills or dispositions where Natives only are the witnesses, is not to place implicit confidence in Native evidence on the question of the validity of such documents. Where the deceased hold land under Crown Grant or Land Transfer title, the succession should be governed by the ordinary law of the country, irrespective of "Native custom or usage." Section 46 of "The Native Land Court Act, 1886," provides only for orders of succession to hereditaments being registered under the Land Transfer and Deeds Registration Acts. It seems singular that power is not given to register orders of succession to land held under Crown Grant other than "hereditaments" and Land Transfer titles. This clearly requires remedying, and I would suggest that after the word "hereditaments" in the fourth line of Section 46, the words "or land under Land Transfer title or Crown Grant" be added.
The Native Land Acts, I take it, were called into existence to afford a means of changing the ancient Native title to that of a Crown title. Whether this may be so or otherwise, the right of succession to lands other than Native Land Court title should be left to the ordinary law of the land to determine. How this question of succession affects half-castes and their descendants, I have referred to elsewhere.
It seems to me that further provision is necessary in the direction of enabling survey liens to be registered.
Until the District Land Registrar has been furnished by the Native Land Court with the order of freehold tenure, no registration can take place, nor can the Court forward these orders until all costs of Court are paid. The surveyor should be allowed to pay these costs in order to give full effect to his security, the amount paid to be added to the security. Power should also be given to the Court to cut off a sufficiency of the land so secured to cover the security and the cost of obtaining and giving effect to the same. Native owners should also be permitted to pay off their proportions of the cost of survey; nor should particular owners be personally liable for the costs of any survey when they hold the land with others. To make the land liable would facilitate this important branch of Native Land Court work, without lessening the value of the security. Additional power is also necessary to enable the Court to order subdivision surveys on terms and conditions. If I understand aright the meaning of Section 81 of "The Native Land Court Act, 1886," the surveyor's mortgage only affects the interests of the Natives who employ him, and if such is the case, the section should be amended so that the security shall cover the whole estate and interest of all the Natives owning the land. Section 82 gives the Court power to secure the cost of a survey made by Natives, who, on the subsequent investigation of the title, are found not to be the owners; but, singular to say, the statute apparently makes no provision for securing to a Native owner the cost of a survey paid for by him. It is sufficient for my purpose to draw your attention to the above facts; the need of a remedy is patent.
I venture the opinion that very few are aware that Native duties were originally imposed for the support and maintenance of the Native Land Courts. This Native duty is a special first charge of £ 10 per annum on the consideration money, and of £10 per centum per annum on the yearly rental of Native lands.
"The Native Land Act, 1865" which called those Courts into existence, is also responsible for the imposition of this tax. It hardly seems creditable that a tax which so severely affects the weaker section of Her Majesty's subjects should have thus existed for twenty-four years. For such a lengthened period, however, this act of injustice has been permitted to disgrace the Statute Book. I am glad to see that Mr Fitzherbert has tabled a motion for the repeal of this tax, and I trust he will be ably supported.
On this question Sir Robert "Stout when Premier did not have the courage of his opinions. That courage led him to the fierce denunciation of the iniquity of the tax, but failed him when it came to a question of tabling a motion for its repeal.
"Oh it is excellent
To have a giant's strength but it is tyrannical
To use it like a giant."
To give some idea of the amount that Native duty contributes to the revenue, I will refer to the return asked for by you last session for the period from 1880 to 1887, and from which we learn that it amounted to £121,407 5s., being an average for the eight years, in round numbers, of £15,550 per annum. The Court fees for the same period totalled £19,182 7s. 10d. the surplus over expenditure must have been at least £46,000, and we can fairly assume that the Government has more than recouped its expenses for maintenance of the Court since 1865.
The Native duty on leases was payable yearly up to 1882, since when, the duty is calculated on the capitalised value of the whole term and made payable in advance. This was heaping injustice on injustice. The having to pay these large sums in advance necessarily lessened the amount of the rental. It is also a loss to the Treasury as I will now proceed to show. Taking a lease for twenty-one years at a rental for the first term of seven years at £50 per annum, £100 per annum for the second term of seven years, and £150 per annum for the last term of seven years; the Native duty if collected annually would produce £210, capitalised it produces £11.3 18s., shewing a loss of £96 2s. If the rental is £150 per annum for the first term, £184 for the second term, and £220 for the remaining term the duty, collected annually, would amount to £387 16s., capitalised to £226 15s. 6d., or a loss of £161 0s. 6d. If the calculation is made on a rental of £100 a year for seven years the loss will be £12 2s 6d. The reason assigned for the departure from annual collection to capitalisation, seems to have been the difficulty of collection. A simple remedy would be to make the duty payable at a Money Order Post Office, page 11 to inflict graduated fines for length of time unpaid, and declaring the lease void if the duty is twelve months in arrear. No Treasurer, however, could be found with the courage to propose such a measure, affecting as it would the "superior race." My treatment of this portion of my subject may seem irrevalent to the general issue, it, however, bears on the question of the depreciation of rental, which is more affected by the one mode of collection than it is by the other.
The Native Land Court.
The Crown having so to speak made a bargain (although in the nature of an enforced one) with the Natives, it ought to follow that the benefits to be derived from the Native Land Court department should be of a substantial and lasting nature in return for the money paid. This, however, is not the case, and until the Judges of these Courts are placed on the same footing as Supreme Court Judges, and the Chief Judge made responsible for the working of his department, the maximum 'of efficiency will not be attained. The present status of these gentlemen cannot be justified on the ground that the law they have to administer is only temporary. That law has been in existence now for twenty-four years, and so far as appearance go will last another decade or two. To assign the Judges certain permanent districts, and make them resident therein, would materially tend to the better performance of their duties. They would become better acquainted with the nature of the titles to the land, its natural features and position, both important factors in subdivisions, and, what more essentially should impress the Treasurer, this system would effect a considerable saving in the expense of the Department especially in the matter of travelling allowance. The position of Assessor to the Court is also one which does not receive that consideration which the importance of the office entitles it to. Really able Assessors can be counted on the fingers. The present roll requires purging, and to secure the services of really good able men the present wretched pay should be increased at least fifty per cent. Another feature that tells against the efficiency of the Court, is the not having permanent Clerks attached to the Courts. To some extent it is owing to the present system, that the records of the Court are so unreliable, more particularly the minutes of evidence. The Clerk should possess some knowledge of the Maori language and have received a modicum of training for his work. To read over to a witness the evidence he has given and obtain his signature thereto, in the same manner as depositions are treated in other Courts of law is also desirable. This course would tend to make the witnesses more careful, and their evidence more reliable. The Court fees could also be well reduced.
On this important question I see very little to take exception to. The Act gives full powers to the Court on partition. I confess, however, to not understanding why there should be a difference in the mode of page 12 obtaining a title when the purchaser has only acquired a portion of a block of land and not the whole. I refer to land dealt with under the title of Memorial of Ownership or Certificate of Title. In the former case, any Judge can make the Order for freehold tenure; in the latter, it is only the Chief Judge who can do so; and as the Chief Judge's visits to districts are few and far between compared to visits of other Judges, unnecessary delay in completing the title arises.
I would suggest that Section 4 of "The Native Land Court Act, 1886, Amendment Act 1888," be amended by striking out the words "the Chief" in the third line, and substituting the word "a." There really seems no good reason why this duty should be cast upon the Chief Judge alone. As regards Native owners, the Act appears to me to afford ample protection. No doubt Natives are dissatisfied at the decision of the Courts in partition cases, more especially where the interests of purchasers are being defined. For this we can hardly blame the law, although we may blame the method by which that law is administered. The peculiar nature of Native custom also has its effect, protecting as it does individual rights to plots of land, besides the general right to the lands held in common by the sub-tribe or "people." I admit that these individual rights should where possible be recognised. But to make any hard and fast rule would be contrary to the wholesome dictum that private rights must sometimes give way to the public good.
The Maori Real Estate Management Act, 1888.
Provision is required under this Act to empower Trustees, with the consent of a Judge of the Native Land Court, to pay the just debts and funeral expenses of deceased owners out of the estate—that is, the estate of the deceased owner held in trust for the benefit of his heirs. This power should include the right to sell land for that purpose. Trustees should also have the power to exchange land where the Court sees that it will benefit the estate.
Trustees can sell or lease, subject to the approval of a Judge of the Supreme Court. This approval is a necessary safeguard, and could well be exorcised by a "Judge." It would, at least, have the merit of giving more publicity to Natives, and be a saving of expense to all concerned. To omit the words "of the Supreme Court" after the word "Judge" would meet the case.
Section 5 of "The Native Land Act, 1888," vests in the Governor-in-Council the power to remove or declare void existing restrictions on alienation. Section 6 of "The Native Land Court Act, 1886, Amendment Act, 1888," whilst making provision for the removal of restrictions on alienation which may hereafter be ordered, directs that they shall only be annulled or varied on public enquiry by the Court after due notice being gazetted.page 13
Uniformity of procedure seems desirable, to obtain which Section 5 should be repealed, and there should be added after the word "alienation" in the first line of Section 6 the words "heretofore made or."
Native Equitable Owners Act, 1886.
Under this Act, when the Court has made its order for additional owners, and where the land has been leased, the lessee must pay the rent to the Public Trustee. Here we have another instance of multiplying restrictions. Surely the provisions of the Native Land Court Act relating to rent are sufficient. For my part, as far as this Act is concerned, I shall be sorry to see the lands subdivided, because, as a rule, they are, as to situation, admirably adapted as a means of support for the people. The restrictions on these lands are against the sale, and do not prevent leasing.
To determine the value of the relative interests of the parties so as to regulate the rental to be paid, is all that I hope will be done.
And yet a few words before concluding my subject. I cannot too strongly impress upon you the necessity of having a law which secures to the Natives a good and valid title to their lands, and at the same time afford them a means of dealing with those lands to the best of their advantage. Let me again reiterate, that those means are not to be attained by enacting that blocks of land shall be partitioned into parcels, owned by not more than twenty owners, and that to restrict any dealings with the land, if the same is hold by more than twenty owners, is oppressive to the Natives.
If to this is to be added a multitude of arbitrary and harrassing conditions, necessary to validate such dealings, you increase considerably the cost of acquisition, and lessen the value of the land to the Natives.
" Has smaller fleas, that on him prey,
"And these have smaller still to bite 'em,
"And so, ad injinitem."
I have endeavoured to treat my subject in an impartial manner, certainly from a standpoint tending to the interests of our people. The Native Land Court does not give that satisfaction to the people that it should do. This has not arisen altogether from the action of the individual Judges, but has been partly caused from defects in the law they have had to administer. Much of this dissatisfaction would be remedied by amending the existing law, defining the interest of each individual owner, and lessening the fees payable to the Court. From these causes may be partially traced the desire of the Natives to frame their own land laws, and for Parliament to give effect thereto. Laws so framed, however, would be a sight for "gods and men,"—a change from King Log to King Stork. I still hope to see a law page 14 which will be workable. If, however, that hope is ever to be realised, it will not be effected by such legislation as that of last session—a return to some of the worst features of the old repealed statutes. If it is true that it requires a sledge hammer to drive a joke into the head of Scotchmen, how much the more would it require a Nasmith's hammer to flatten out the moaning of some of these enactments. He who attempted to master their intricacies often only succeeded in finding that the more he read the less he knew.
With the experience of the last twenty-five years there should be little difficulty in framing a measure which would secure to the Native the highest benefit attainable from his lands, and at the same time afford ample security at a minimum cost to the European when dealing with those lands.
I have taken upon myself to draw your attention to this question, one, indeed, of vital importance to that race with which we as half-castes are so closely allied, and whose interests are identical with our own.
Although you may not be prepared to accept in their entirety the suggestions which are hero offered to you by me, it suffices me to know that you are fully alive to the responsibility which devolves upon you, to devise or support any measures which will render more effecient the present statutes relating to Native affairs. For my part I am content if my usefulness in that direction is as the "guide-post which points the way itself cannot follow."
E. F. Harris.