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The Pamphlet Collection of Sir Robert Stout: Volume 70


page 27


The following is the judgment delivered by Chief Judge H. Seth Smith, in connection with the Mangaohane rehearing application:—

In this case applications have been made for a re-bearing of the investigation of the title to a block of native land known as Mangaohane, which was adjudicated upon at a meeting of the Native Land Court, held at Hastings in 1885, before Judges O'Brien, and Williams. Hoani Meihana being the Native Assessor. The Court, in exercise of the power conferred by the Native Land Court Act, 1880, sections 24 and 26, declined to give any judgment as to a portion of the land at the southern extremity of the block, and as to the residue made two orders directing that the names of certain natives should be entered on the register as the owners according to native custom of the two parts of the block which were named in the register orders Mangaohane and Mangaohane No. 1. These orders bear date the 10th of March, 1885. Several applications tor re hearing were made within the statutory period, all of which were dismissed by the late Chief Judge by an order under his hand bearing date the 28th of May, 1886. Upon proceedings recently taken in the Supreme Court, and removed to the Court of Appeal for a certiorari to quote the certificates of the Native Land Court which had issued in pursuance of the orders of the 10th of March, 1885, it was held that two of the applications for rehearing, viz., the application of Terina Mete, dated the 13th of April, 1885, and that of Ema Retimana dated the 14th of April, 1885, had been improperly dismissed, no inquiry having been held at which the several applicants could be heard in support of their claims. These two applications are the subject of the present inquiry. Upon the original investigation the land adjudicated upon was divided into two parts, the boundary line between them being the Mangaohane stream from its mouth on the Rangitikei river to its source at Otupae, and thence in a straight line to the Taruarau stream. The land to the north of this line, called in the judgment and in the order of the 10th of March, 1885, Mangaohane No. 1, was in effect awarded to descendants of the ancestors Wharepurakau and Honomokai, who could show such occupation as would, in accordance with native custom, establish a right of ownership. The portion of the land adjudicated on lying to the south of the dividing line last mentioned, and called Mangaohane or Mangaohane No. 2, was awarded to descendants of Honomokai alone. As to the part lying at the southern extremity of the block, and not adjudicated upon, the Court said "We contine ourselves to the remark that, in our opinion, the evidence as to the part south of Te Papa a Tarinuku is not sufficiently clear to justify us in coming to a judgment upon it." After carefully considering the arguments that have been addressed us upon this inquiry we are of opinion that no sufficient reason has been shown for disturbing the judgment as to Mangaohane No. 2. Of the two applications for re-hearing which are now under inquiry, the former, that of Terina Mete complains of "the causeless exclusion [of the applicant] from the list of names of descendants of Te Honomokai." Her descent from that ancestor apneas to be undisputed, but she failed to satisfy the Court as to occupation. Upon the evidence before the Court we are unable to say that the finding was wrong, or that there is any reasonable ground for expecting that another Court ought to come to a different conclusion. This renders it unnecessary to express any opinion as to the effect of the withdrawal contained in Terina Mete's letter which has been placed on the file of the Court. The application will be dismissed. The application of Ema Retimana and others, whether in its original form or in the amended form which has been put in by Rena Maikuku, in substance alleges that the true ancestral right ("take tupuna") to this land is derived from Ohuake by other lines of descent than these through Honomokai and Wharepurakau. So far as the land north of the Mangaohane stream is concerned, we have already intimated our opinion that the judgment ought not to be disturbed. We are also of opinion that the evidence before the Court was sufficient to justify the finding that the descendants of Honomokai were owners of the portion south of that stream, In fact it has not been contested that they have some right, and the suggestions that the Otupae range was the boundary of their territory is not supported by the evidence called before us. There was, however, evidence before the Court of acts of ownership exercised by others besides the descendants of Honomokai in certain localities, especially in the neighborhood of Pokopoko, which upon survey appear to be to the north of the line laid down on the southern boundary of the land adjudicated. The exact position of these places with relation to that line not having been determined by survey when the case was heard, their locality could only be estimated by the necessarily inaccurate opinion of witnesses. The inference that we draw from the action of the Court in excluding a part of the land from adjudication is that the Court considered there was not sufficient evidence on either side to justify a decision as to the debatable portion, and intended to fix a boundary which should exclude it. We are strengthened in this view by the fact that Judge O'Brien in his report states that they drew the line at Pokopoko, the place about which there seems to have been a strong conflict of evidence. The intention has not been carried out, either because Pokopoko lies farther north, or the line laid down runs farther south, than was anticipated, and this land, which the Court intended to exclude, has in fact been included in the judgment If this inference is correct, it shows that a decision partially erroneous has been arrived at which it seems cannot be satisfactorily rectified tinder the powers of amendment or upon the inquiry which is required to be held under sections 28-31 of the Native Land Court Act, 1880. A partial re-hearing will therefore be ordered for the purpose of determining whether Rena Maikuku has by virtue of her ancestry and occupation a right according to native custom to be included as an owner in the title to that part of the Mangaohane block which has been named Mangaohane No. 2 or Mangaohane, i.e., the land south of the page 28 Mangaohane stream extending to Te Papa a Tarinuku and the line drawn thence in accordance with the order of the Court in that behalf. With Rena Maikuku will also be included any other persons who, claiming under the same ancestral and occupational rights as she does, may be found entitled.

The re-hearing will be ordered on the following conditions:—That the applicant shall deposit with the Registrar of the Court in Wellington the sum of £50 as security for costs on or before the 1st June next, and shall forward particulars of claim, giving the grounds and the Dames of all persons by whom or on whose behalf the claim is made on or before the same date.

The costs of this inquiry will be at the discretion of the Court upon the rehearing.