Memorandum by Sir William Martin on the Operation of the Native Land Court.

The Acts now in operation for defining the powers and regulating the practice of the Native Land Court are the four following: "The Native Lands Act, 1865," No. 71; "The Native Lands Act, 1867," No. 43; "The Native Lands Act, 1868," No. 55; "The Native Lands Act, 1869," No. 26. It is believed that, unless these Acts be thoroughly and speedily revised and amended, great public mischief will ensue.

In January, 1870, Karaitiana, of Hawke's Bay, visited Auckland for the purpose of laying before the Native Minister the grievances of himself and others arising out of the operation of the above-named Acts. Further inquiry into the subject has shown that his statements were well founded, and that he had discerned the weak points in the existing system, through which the injustice of which he complained had found an entrance. Moreover, it has now become known that many like grievances exist, and that the Court itself has come to be regarded by many of the most intelligent Natives with strong suspicion and dislike. The visible results of the system are naturally imputed to the Court itself, and are bitterly felt as a disappointment and a wrong by intelligent men who have hitherto trusted our law and conformed to it. If we allow these men to be alienated, we shall have small chance of winning over the Native people at large to an acceptance of our law.

The two chief grievances complained of relate to certificates and Crown grants issued under the above Acts.

• 1. They complain that these instruments are so framed as to put it in the power of a few persons named in the instrument to sacrifice the rights of other persons equally interested in the land but not named in the instrument. They assert that in many cases that power has been actually exercised to the great loss of persons who had no means of protecting themselves. This complaint is just and well founded. By the Native Lands Act of 1865, section 23, it is enacted that "The Court shall ascertain the right, title, estate, or interest of the applicant, and of all other claimants; and the Court shall page 34order a certificate of title to be made and issued, which certificate shall specify the names of the persons or of the tribe who, according to Native custom, own or are interested in the land, describing the nature of such estate or interest." By the same Act, the Governor is empowered to cause a grant from the Crown to be issued to the persons named in the certificate.

  The original enactment was so framed as to secure the object of the Act as stated in the preamble, "the ascertainment of the owners," meaning, doubtless, all the owners. But upon that enactment a proviso was grafted, out of which these troubles have arisen—namely, "That no certificate shall be ordered to more than ten persons." This was added, no doubt, for the purpose of avoiding the inconvenience which would, in many cases, lie in the way of a person desiring to rent or buy land, if it were necessary for him to deal directly with all the owners. It was therefore provided that such intending lessee or purchaser should have a limited number of persons to deal with, and that the names of these persons should appear on the face of the document. That was a very reasonable object, and capable of being attained, as we shall see presently, without any unjust or injurious consequences. It could not be intended that the convenience of the purchaser was to be secured by ignoring or sacrificing the rights of any of the owners. The grievance of which we now hear is this: that the proviso and the original enactment have not been reconciled, but that the proviso has been allowed to overrule and defeat the substantive enactment to which it is appended; that, although the land comprised in the certificate may belong to more than ten persons, a certificate is granted which names only ten of the owners, and gives no indication of the existence of other owners; that the ten persons named in the certificate or the grant have not, on the face of the certificate or the grant, been made to appear as only joint owners with others unnamed and trustees or agents for those others, but have appeared on the face of those instruments as the sole and absolute owners; that as such they have, either of their own motion or being induced by other parties, conveyed the land to purchasers; and that in this way many persons have been deprived of their rights. To the sufferers hereby the loss appears to be a direct consequence of an act of the Court itself. They ask why the certificate and the grant were not so framed as to show the true state of facts; why all the owners were not protected by the law.

  As to the future, this mischief is to some extent guarded against by a valuable enactment introduced into the Native Lands Act of 1867, section 17; but the remedy is not completely effective. Under that section, the names of all the persons interested in the land are to be, not indeed shown on the face of the certificate or indorsed thereon, but registered in the Court; and the certificate is to contain merely a reference to this section of the Act. but not any distinct form of words to show that the persons named as owners are at the same time trustees for other owners. This section further provides that no portion of the land is to be alienated except for twenty-one years, until it be actually subdivided among the owners. As to certificates issued before this Act of 1867, there appears to be no check as yet provided against the evils above mentioned.

• 2. Another serious grievance arises from the fact that, in the Crown grant so made to ten persons, under the earlier Native Lands Acts, the interests, even of the several grantees themselves, however diverse and unequal, are not defined.

  By the Native Lands Act of 1869, section 14, it is enacted that for the future every grant shall contain the definition of the estate or interest of each of the grantees, which is required to be set forth in the certificate under the Act of 1867; and also that the estate or interest of each of the several grantees, whether theretofore granted or thereafter to be granted, shall not be deemed to be equal unless it shall be so stated in the grant: provided that the shares or interests already purchased are, for the purpose of that transaction, to be deemed equal. This provision naturally opens many questions. If the purchaser distinctly knew the quantity of the interest which he was purchasing to be not an equal share, but less or greater, is he to take more or less (as the case may be) than he actually contracted for?

• 3. The same Act of 1869, section 15, makes it not lawful for less than a majority in value of the grantees of any land under the said Acts to make any contract, lease, mortgage, or conveyance of their estate or interest in such land: Provided that, if any dispute shall arise as to such value, it shall be lawful for either of such parties to apply to the Court.

  Here, in this question of value, we have an opening for unnecessary litigation. Why not allow each owner to claim a partition (as in the enactment above mentioned), and prohibit the mortgaging or selling of undivided shares? As long as the present system is allowed to continue it will breed more and more of bitterness of spirit and disaffection. When any one of the owners of such undivided property has mortgaged his undefined interest, the other owners become subject to constant pressure from those who have gained a hold on the land and desire to get possession of the whole block. Having secured the interest of some, they begin to work upon the rest, that they may be induced to yield up their interests too. These now find themselves entangled, and that by no act of their own, in a new sort of communism worse to them than their old one, because it is not fenced about by rules and customs known to themselves, but by others of an entirely strange and unknown sort. Sensible and well-disposed men find themselves harassed by claims which they regard as unjust and oppressive, and these claims often backed up by skilfully-written letters, sometimes coaxing, sometimes intimidating. Harassed in this way, the unfortunate man seeks to extricate himself. He has accepted the law, and theoretically and in general is protected by the law; but if in any particular case he seeks to bring that protection into a practical form, he must first obtain advice and guidance from men acquainted with the law. He goes to the nearest town and asks advice, but practitioners may be few, and those few may be already engaged on the opposite side. Such things as these are even now going on under the name of law and of justice. Is it likely that men possessing good common-sense, and keen and shrewd in respect of their own interests, will be easily reconciled to these things? Do we expect them to become good subjects, to obey the law readily, and support it staunchly? It is true the Legislature has now taken measures to remedy and to check frauds and abuses such as are here referred to, by the statute of last session, No. 75; but it is obvious that here, as in other cases, prevention is better than cure, even if cure be possible; and there can be no prevention except by a thorough reform of the system. There are among the Natives, of course, men who are dishonest and reckless enough to page 35abuse, to the detriment of their fellows, the facilities which the present system furnishes. Let such men bear all the consequences of their evil deeds. I am not speaking for men of that sort, but on behalf of quiet, sober men, who have willingly received our law and accepted the Land Court, believing what they were told, that under its operation they would be placed in safe and quiet possession of their lands, free to sell them or deal with them as they might think best, without disturbance or interference from their neighbours. This was held out to them as the substantial benefit the new system was to bring with it; this was promised and was honestly intended by the promoters of the measure. Believing this, the Natives came into the plan readily. Now the result is the reverse of what was promised. There is no lack of disposition on the part of the Natives to sell land. This is an obvious fact. It is desirable for their sakes as well as ours that their superfluous lands should be alienated. The evil is this: that we are making the transfer of the land a cause of disaffection. The people are not only disturbed and unsettled, but exasperated by the present system.

• 4. Formerly the majority could protect itself, and no action was taken until a considerable amount of agreement had taken place. Now the owners feel that they have no rest. Any single Native may give notice in writing that he claims to be interested in a piece of Native land, and thereupon the Court shall ascertain the interest of the applicant, and of all other claimants in the land, and order a certificate to be-issued ("The Native Lands Act, 1865," sections 21-23). Capitalists who desire investments can have no difficulty in finding the single man needed, and the majority are forced to submit to the burden or risk the loss of their property.
• 5. If we are obliged to confess that the protection of the law which we promised these men is in these cases practically null; if we cannot, after all, supply guidance and legal help to those who need it, we can at any rate meet the evil in another way, and that the way most desirable and effectual. We need not retain those parts of the present system which tend to create troubles. We may make the system so plain as to preclude them to a great extent, and we may make the Natives acquainted with it. Let the healing enactments above referred to be made to apply not only to certificates and Crown grants of a date subsequent to the date of these enactments, but to all future dealings or dealings now incomplete under any certificates or Crown grants issued under any Native Land Court Act, whether of earlier or later date. Let all dealings with undivided interests, whether by way of sale or mortgage, be prohibited, as provided in "The Native Lands Act, 1867," section 17, any one of the persons interested being at liberty to require a partition. Let the certificate do what it was intended to do, that is, show all the owners of the land by their names, if possible, or by some sufficient description or reference. Let it also name a certain number of those owners as trustees or agents for the whole body of owners. To prevent such complaints as are now sometimes made, let a certain time, say twenty-four hours, be given by the persons interested for the nomination of these trustees. If, at the end of that time, no nomination be made, then let the Court select fit persons out of the owners to act as trustees or agents, with the powers and subject to the restrictions in "The Native Lands Act, 1867," section 17. Let these trustees or agents receive the rents and be chargeable with the due division and distribution, thereof among the owners, their receipts being valid discharges to the lessees.
• 6. As to the costliness of the Court, which is now bitterly complained of, this grievance may be met by a scale of fees, accompanied by a proper taxation of costs.
• 7. As to the jurisdiction in cases of succession to hereditaments: the present vague rule ("The Native Lands Act, 1865," section 30), "according to law, as nearly as it can be reconciled with Native custom," makes an opening for litigation in every case. The just rule of succession furnished by the Statute of Distributions is likely to be accepted by all without dispute. If now and then a dispute should arise, the question may be well left to a single Judge, or the less costly and more accessible tribunal of the Resident Magistrate. Assuming that rule, let the Natives interested according to that rule have a certain time allowed after the decease of the person last entitled within which to make a division among themselves. If no division be made within that time, then let a surveyor make the division under the direction and control of the Court.
• 8. There is too much reason to apprehend that we are now preparing for the future a store of troubles such as grew out of the proceedings of the Courts of the Commissioners of Native Land Claims. Two safeguards appear to be essential: first, that the Court should always be holden near the land of which the title is to be inquired into; secondly, that a previous survey of the land be in no case dispensed with.
• 9. As a check upon unnecessary or vexatious litigation, let the title of a party in possession for a certain number of years be not called in question except by a party who shall have deposited £—, to be applied, in case of failure, towards payment of the costs of the successful parties.
• 10. Is not the main business simply the collecting and estimating of evidence, requiring not so much legal knowledge as a certain degree of skill or acuteness in the officer collecting it, and honesty in estimating it? Might not much of this business be done by a Judge travelling from spot to spot, taking the evidence directly in Maori, and adjudging in Maori, resorting to the costly intervention of interpreters only when it may be specially called for? The chief business of the Court is in fact the business either of a Commission or of a jury. Let then a certain number of the Judges and Assessors be a jury; if unanimous, let there be no rehearing, except on the ground of evidence since discovered, and which, by full diligence, could not have been discovered before. Why keep up the resort to English counsel in a Court which is not constituted for the administration of English law, but only for the ascertainment of Native custom, and of the facts of occupation and ownership? English counsel will need interpreters. Let agents speaking both languages be the practitioners of the Court under proper regulations.

Sir W. Martin to the Hon. D. McLean.

In reference to the subject of a memorandum submitted by me to the Government in January last; I have the honour to lay before you a draft Bill for consolidating and amending the laws respecting the Native Land Court.

The history of this draft is as follows: It being expected that a Bill for consolidating the Native Lands Acts would be introduced by the Government, I was requested a few months ago to frame some clauses, to be submitted to the Assembly whenever the Bill should come before it. When I consented to do so, the only object in view was to meet certain defects in the existing system. I had no thought of taking upon me the heavy and, as it may seem, the presumptuous task of framing a new Bill. But it soon became obvious that other points must be provided for, and the mutual dependence of the several parts of the subject at last made it necessary to carry the corrections, in a greater or less degree, over the whole field. The labour, which has been considerable, I shall not regret if the result shall be found serviceable to the colony. In this hope I now respectfully request you to bring this draft under the consideration of the Government.

In framing this Bill, I have benefited by the results of further inquiry and of conference with various persons conversant with the subject, including the Chief Judge and another of the Judges of the Court, and have been furnished with the views of persons interested in the subject and regarding it from different points of view. In particular, I have received valuable aid throughout from Dr. Shortland, with whose knowledge and practical experience in these matters you, Sir, are well acquainted. Some explanatory notes are appended, which, though unnecessary for yourself, may be useful to others.

You are aware, Sir, of the dissatisfaction on the part of the Natives with the Native Land Court, as dealing with their interests in a manner which they have no means of understanding, seeing that the law which prescribes the jurisdiction and powers of the Court is not accessible to them in any intelligible translation. The remedy for this will be found, not in an attempt to render into Maori, word for word, the Act which the Assembly may pass, but to frame first an intelligible statement in ordinary language (such as any intelligent man amongst us readily makes to his neighbour) of the substance of each clause, and then to put forth by authority a faithful and idiomatic version of such statement. That this mode may be fully successful, it is desirable that the structure of the Act itself be as simple and clear as possible.

On the subject of the Native Land Court different theories are current. Some think that the object of the Court should be to create a body of wealthy Native proprietors through whom the Government may influence the mass of the people; others think the sooner all alike are brought to the condition of day-labourers the better. The Bill now submitted has not been framed upon any theory whatever, but sol[gap — reason: damage]ly upon a mature consideration, with all attainable aids, of the means most likely to render the action of the Court just, intelligible, and cheap, so that it may command the confidence of both races, and be (what it ought to be) the means of securing peaceful relations between the two races throughout this Island.

The Hon. D. McLean to Sir W. Martin.

I have the honour to acknowledge the receipt of your letter of the 29th July, enclosing the draft of a Bill for the consolidation and amendment of the laws affecting the Native Land Court. It will be with the greatest pleasure that I shall submit your draft to the consideration of my colleagues, and I beg you will accept my best thanks for the arduous labour you have taken. There was no doubt that whenever any work was on hand calculated to secure peaceful relations between the two races your zealous co-operation might be depended on; and in this instance it has taken the form of most valuable suggestions. I entirely concur with you in the necessity for rendering easily intelligible a Bill affecting the interests of a race emerging from barbarism, and in eliminating from it all ideas of theory; and I have no doubt that the draft you forward will be found to answer all necessary requirements. Immediately on receipt the Bill was transmitted to the printer, and it will be shortly in the hands of Ministers for consideration.