Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  


    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Volume 71

Gisborne Validation Court. — Puhatikotiko Partition and Final Judgment (No. 5.)

page break

Gisborne Validation Court.

Puhatikotiko Partition and Final Judgment (No. 5.).


His Honor Judge Barton delivered the following judgment:—

The validation and partition with Mr Tiffen In this case are at last completed, after an [unclear: Investigation] lasting three months. Under a proper Act three weeks should have more than sufficed, and the fact that the enquiry has occupied so much time will doubtless be used by the opponents of legitimate validation. From my knowledge of business in this district, I have little hesitation in saying that under a proper statute drawn by a practical person acquainted with the class of work to be done, the whole validation required on the East Coast could be completed in little over three years. In making that statement I am presuming that the Act would be confined to validation alone, and that the Judge would be occupied in validation only, leaving the subsequent partitioning to the Native Land Court, whose proper work it is. The Judge of the Validating Court ought not, to be interrupted by being called away to ordinary Native Land Court work, as was my own case so frequently during the Poututu enquiry. That enquiry is reputed to have lasted nearly four years, and to be still unfinished. But the truth is that the validation work of all the Poututu case has long since been completed, the whole time occupied at different intervals in contests in Court under the Poututu Jurisdiction Act being in all only nineteen days. Daring all the remainder of the four years I was occupied in other business and else-where, it, in the extreme North, in the King country, in Wairarapa, in Tolago, in Wairoa, and in other places. The righto of the Poututu litigants are even now hung up by applications for re-hearing made a year ago and still unheard.

In this case of Mr Tiffen's the Native non-sellers have agreed upon a division of these blocks, and all opposition to the giving of statutory title to Mr Tiffen is now withdrawn.

But this agreement, not being signed by all the persons interested in the block, is under our Native land code insufficient to bind the parties. Nevertheless, I shall not hesitate to add this feature to the other illegalities in this case. It is an agreement which if made before the Supreme Court, or any other Court in the civilised world except this Native Land Court, would be binding on the parties to the litigation. Business would be at a standstill in any other Court but the Native Land Court, if the persons representing suitors could not enter into compromises and submit them for the approval of the Court. The settlement now made between Mr Tiffen and the conductors being just such a settlement as this Court would have made had the matter been left in its hands, we shall certify that these lands so agreed to be given and accepted ought, in our judgment, to be granted to Mr Tiffen by the Legislature, independent of any arrangement between them. The remainder of the blocks shall belong to the non-selling Natives, and be divided amongst them in the relative proportions arranged amongst themselves. Formerly in this district I found these "voluntary arrangements" most convenient for the settlement of titles invalid by reason of trivial technicalities or because of pernicious requirements of dead statutes, but now the Court is prohibited from approving such arrangements unless every man, woman, and child in the block signs an agreement—a condition almost always impossible of performance. Thus the useful "voluntary arrangement" clauses are rendered inoperative not by page 2 repeal (that would be too straightforward a course for Native legislation), but by [unclear: an] an insurmountable impediment.

Having, so far as this Court is concerned, settled the rights of the parties, I have now to enter upon another matter which, if left without full explanation, might greatly prejudice Mr Tiffen's interests when they go elsewhere.

When at the beginning of this enquiry I overruled Mr Rees' arguments against the jurisdiction of the Court, I did so in error. I held that the omission from this Act of words applicable to cases like Mr Tiffen's must have been accidental, and being fully impressed with that belief I acted upon it, although in doing so, I was obliged to stretch the rules of statutory construction to their extremest verge, and I urged that even if my decision was erroneous, that error could not inflict harm on any one, inasmuch as Parliament still held the full control over the ultimate fate of the case; while if I dismissed the case without enquiry, my judgment, if erroneous, would be productive of great injury not only to Mr Tiffen, but to the innumerable persons throughout the country who are anxiously awaiting relief.

I have now within the last few days seen for the first time the debates in Parliamenton this statute. I find that not only was I wrong in supposing that the words in the repealed Act of 1889, fitting such cases as Mr Tiffen's, were omitted accidentally, but that the very contrary was the case; and I further find that the Government gave an undertaking in both Houses that if the Bill were allowed to pass it should not be used in the Native Land Court to validate purchases illegal in their inception. The Hon. the Native Minister expressly stated (Hansard, Sept. 29, 1802) in the Lower House that the Court should only deal with purchases by persons who in so purchasing "had broken no law," but had their estates withheld from them by reason of technicalities or irregularities, or through some change in the law intervening between the commencement and the completion of their transactions, and he added, "There is no doubt many have broken the law openly and knowingly, trusting their influence or some change of Government would put the matter right. This Bill proposes to give no relief to this class of people "

Afterwards on October 6, 1892, the Hon. the Attorney-General when introducing the Bill into the Upper House on the day before the prorogation and asking them to pass it notwithstanding the very late stage of the session and the impossibility of considering its provisions, gave the Council a distinct pledge. He said (Hansard, October 6, [unclear: 19] "We propose to repeal all the [unclear: prov] dealing with the Commission under [unclear: the] of 1889, and to enable the Native [unclear: la] Court Judges to be appointed [unclear: specially] the purpose of a Commission to [unclear: enquire] titles in dispute with full power to[unclear: report] all those cases where there has been no[unclear: bra] the law,.... but where [unclear: thr] some irregularity registration has [unclear: be] refused." He then, doubtless with [unclear: the] of assuring the Council that the [unclear: Govern] had no intention to entrust work so [unclear: in] tant as the validation of purchases made spite of statutory prohibition to such Court as the Native Land Court, proceed to disparage that Court and to express disapproval of the whole existing [unclear: Naq] Land System. He said "The condition our Native Land Legislation is simply [unclear: d] graceful, and year after year we [unclear: h] nothing but scenes in our Courts of [unclear: g] fraud. Justice is done to neither Europe nor Maori, and there is no finality. [unclear: B] almost impossible for anyone, however [unclear: cle] he may be, to fully understand the [unclear: Na] Land Laws."

It was in ignorance of these pledges [unclear: th] construed this Act as intended to [unclear: em] jurisdiction over the cases which the [unclear: Gover] ment undertook should not be deal [unclear: with] nor was I aware that the Lower House [unclear: by] carefully eliminated from the Bill [unclear: er] word deemed capable of being [unclear: construed] an authority to the Judges of the [unclear: Nat] Land Court to recommend the validation such cases. I then believed their omission be purely accidental, and I felt_it to be a my duty, for strong public reasons, give the Act" the widest construed possible, and so prevent the [unclear: coll] of this the first case in the [unclear: f] Validation Court under this Act I [unclear: e] that if the miscarriage of the [unclear: Edward] Validation Court under the Act of 1889 as followed by a similar miscarriage in this Court, such second miscarriage world greatly dishearten, if not exasperate, the public, who look only to results and [unclear: sell] make allowance for lack of means to [unclear: prod] results. I therefore acted boldly, and [unclear: held] this enquiry, throwing upon the [unclear: Legiala] the responsibility of settling finally [unclear: we] should be done with such cases as [unclear: theose] which I am now sending up to them for their consideration.

Had Mr Rees disclosed to me in his arge ment the pledges given by the Governments, it would have completely answered my [unclear: sug-] gestion that the omission to re-enact the fitting words of the statute of 1889 [unclear: must] page 3 have been accidental, for they would have shown to me that that omission was of set purpose. Probably Mr Rees abstained from such disclosure because it is a rule of the Courts not to allow their judgments as to the proper construction of statutes to be warped by anything said in debate in Parliament. But this was not matter of debate, sad it would have been perfectly legitimate for Mr Rees to have drawn my attention to what had taken place. Then I should have been that the purchases of Mr Tiffen were not purchases within the pledge given by the hon. the Native Minister, i e., purchases by a person who in purchasing "had broken no [unclear: pe]". Nor were they within the pledge of the Attorney-General, i.e., "cases where there had been no breach of the law, but where through some irregularity registration has been refused." But at this stage I [unclear: cannot], in common justice to Mr Tiffen, stop [unclear: se] proceedings, or hesitate for one [unclear: ment] to send on the case to Parliament for its consideration. Both Mr Tiffen and the non-selling Natives have, through my [unclear: reneons] decision and as a consequence of the passing of this worthless and useless [unclear: ate] been plunged into these proceedings, and it is now too late for them to retrace their steps, abolish the partition, and rescind the settlement, of the rights of all persons interested, and stand again where they stood before any step had been taken. The thing, is impossible, and I think Mr Tiffen has a right to expect that the Legislature will give effect to The agreement made between the [unclear: unetting]. Natives and himself with the improval of this Court. It appears to me that even on the assumption that these litigants have now no better standing before Parliament than the promoters of any private Bill would have, they have at least the same, lights as such prompters, and under all the circumstances have an irresistibia claim to ask the "Legislature to carry out their agreement. The very fact that the great public good done by all this discussion has been obtained at Mr Tiffen's expanse gives him a strong claim. The Hon. Mr Carroll, when present at a deputation to the Premier in Gisborue on the 16th June, stated that my judgments in this case "have revealed the whole thing to daylight, and will be a great instruction to Parliament," and the Hon. the Native Minister has written concerning these judgments: "I have carefully read Judge Barton's letter and also the judgments he has given, and I must say that I feel very pleased at The [unclear: mon] sense, view he has Taken of the cases." These statements show that even though my view of the law was unwittingly erroneous, the course I took was Judicious. My object all along in These judgments, and in the Poututu judgments, has been to "re-veal the whole thing to daylight," and strip from Native land proceedings the veil of mystery in which unscrupulous persons have shrouded them for their own purposes. Many members of Parliament, unable to pierce that veil, look so suspiciously on all Native Bills, and are so convinced that the Native Land Court is a mere tool for improper uses, that they refuse their confidence to every measure introduced, lest some innocent-looking clause should conceal sinister provisions perpetuating instead of preventing the continuance of past evils. It is with regret I admit the justice of their fears and the truth of the words of the Attorney-General when he said that the condition of the Native land code is disgraceful—that there is no finality—that no one, however clever he may be, can understand it, and that our courts are scenes of cross fraud, where justice is done to neither European or Maori. My long judgments in this and the Poututu enquiry were labored by me solely for the purpose of affording practical illustration to Parliament of these very things. Had I not had that object in view a few lines would have sufficiently expressed the decisions of the Court.

When the Attorney-General was informing the Council that "the condition of our Native land legislation was simply disgraceful," he was not aware that the Bill he held in his hand and was pressing on the Council contained provisions quite as "disgraceful" as any in preceding legislation. One of these clauses authorizes the Validation Court to partition the block "forthwith" without any requirement to give notice to the absent non-selling Natives, who, not not being interested in the transactions before the Court, cannot be expected to come there, at all events without a special summons to do so. But this is not all, incredible as it may seem, the Court is not only authorized to cut up and distribute the block "forthwith," without notice to the absent owners, but it is even empowered to abolish a subdivision already made by a former Court and substitute its own—thus depriving people of the holdings given to them by Court orders which by statute were made "final and conclusive"—holdings they may have built upon, or may even have Bold to other persons who accepted these "final and conclusive" Court orders as being indefeasible titles. Such a provision is contrary to natural justice, and is thoroughly page 4 illustrative of the Attorney-General's words "There is no finality."

But bad as this section is, it pales before the 14th section, which openly treats the Native Land Court Judges as mere puppets. It provides that after a Validating Judge has forwarded his certificate to the Chief Judge to be laid before Parliament, together with the reasons on which it is based, and the evidence justifying the giving of the certificate to the successful suitor, the Chief Judge may refer back that certificate "for further enquiry, or for further consideration with such directions as to the taking of evidence or otherwise as he may consider necessary." That is to say, the Chief Judge may "direct" the certifying Judge to sign another and different certificate giving the land to a different person. The section is capable of no other reasonable construction than this. The Chief Judge is empowered to "direct" the certifying Judge to alter his certificate. Only two alterations are possible, one, to alter the land given, and the other, to alter the person to whom it is given.

Now if the statute had provided an appeal to some higher Court, authorizing that Court to re-hear the case, and substitute its responsibility and its certificate for those of the Judge appealed from, such a provision would have been legitimate; but under this Act there is no such appeal. Instead of such open appeal, this proceeding is provided by which the certifying Judge may be compelled in secret to eat his own words and sign a certificate not his own, to be presented to Parliament as his own and ostensibly on his responsibility. The hand would be the hand of Esau, though the voice would be Jacob's voice, and the part of Parliament would be that of the aged and blind Isaac. Can a Court of justice be more deeply degraded than to be required by statute to lend itself to such a fraud as this? Or can any of the legislation referred to by the Attorney-General better fit his descriptive epithet—"Disgraceful."

No one who has not made the endeavor can appreciate how difficult it is for a Native Land Court Judge without status, without even the protection which publicity of the Court proceedings gives to other Judges—to resist the influences brought to bear upon him. He is harassed applications to the Supreme Court; [unclear: per] bitions, mandamuses, even actions [unclear: t] showered upon him by those against; [unclear: w] interests he has given judgment, and [unclear: w] his work is thereby stopped or [unclear: delayed] is accused in Parliament and [unclear: elsewhere] happened to myself regarding [unclear: Poutu] being guilty of these very delays. Court orders in that litigation went structed even in the other [unclear: Govern] departments, and in one instance [unclear: obed] to an order of ray Court had to be [unclear: enf] by a protracted and costly proceeding [unclear: in] Supreme Court.

A Judge subjected to such obstacles [unclear: i] to such influences, not to mention [unclear: others] alluded to here, must at last in sheer [unclear: de] let tilings slide rather than court [unclear: his] destruction by futile resistance to the [unclear: fin] and wrongs of powerful persons.

The Supreme Court judges who [unclear: deal] interests far inferior in value to those [unclear: de] with in the Native Land Court are special statute absolutely protected [unclear: agel] attack from any quarter. The judgea of Native Land Court have no protection [unclear: w] ever, and if any swindling transaction [unclear: is] bare and public indignation demands a [unclear: vi] the very rascal who is decamping [unclear: with] booty, raises the cry of "stop thief!" [unclear: agi] the Judge so that attention may be [unclear: diver] from himself. The warm appreciation my efforts to guide things into a [unclear: bet] channel testified in the encouraging [unclear: w] of the Hon Mr Carroll and the [unclear: Hon.] Native Minister are an assurance to me [unclear: t] I at all events have nothing to fear [unclear: from] calumniator, in my efforts to enforce [unclear: ho] dealing and independence of judgment Native Land Court transactions. It is great relief to feel that this is so, [unclear: espect] when it is remembered how [unclear: easily] Native race can be used for any purpose an attack on a Judge.

In future the operations of this [unclear: Court] be confined to such cases as come within words of the Act of 1892, and [unclear: suitors] therefore understand that no [unclear: purchases] regardless of statutory [unclear: prohibition] henceforth be recommended for [unclear: validat] under this Act.

Printed at the "Poverty Bay Herald" Office, Gisborne—29/6/93.