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G.-No. 1

10

PETITION.

There was also passed in the same year by the Imperial Parliament an Act empowering the General Assembly to alter or repeal the 73rd section of the " Constitution Act", which had by the " Constitution Amendment Act", 20, 21 Vie, chap. 33, been declared to be unalterable by the General Assembly. This Act_was assented to on the 29th July, and the " Native Lands Act" of that year was reserved for Her Majesty's pleasure on the 25th of September; but was read a first time on the 18th of August, so that at the time it was introduced into the Assembly the passing of the Imperial Statute could not have been known here. The legislation of 1865, affecting the territorial and other rights of the Natives, was very important. The " Native Commission Act" of that year contemplated the conferring upon the Natives the electoral franchise in right of "their customary titles to lands", a right which the Law Officers of the Crown in England had held that their Native ownership did not confer upon them, as it is not a " tenement" in the technical sense of the " Constitution Act." This year is also remarkable as inaugurating a new and more expressive phrase for the definition of the Native interest in land. Thus, in the above Act, the words used are "their customary titles to land". In the "Native Rights Act, 1865, the phrase is, "land held under Maori custom or usage." In the " Native Lands Act, 1865," Native land is defined to be "lands in the Colony which are owned by aboriginal Natives under their custom or usages;" and the "East Coast Act, 1868," uses the phrase " land owned according to Native custom." This cursory review of the legislation affecting Native lands must demonstrate absolutely the truth of the position that, with the exception of the temporary proviso contained in the royal instructions of 1846, no difference has ever existed in contemplation of law between land owned by aborigines according to their customs as communities, or as individuals ; and I apprehend that the real reason for this remarkable consistency is the fact that no Native land is, according to Maori usage, owned by any individual. Judgments have been repeatedly given by this Court affirming the doctrine that individual ownership of land amongst the Natives is unknown to Maori usage, and, in truth, reflection upon the mode by which the Maoris were compelled to assert and maintain their title to land, must convince us that such a thing as an individual or sole possession would be contrary to the character of Native ownership ; and would, in fact, have been in former days, when their common law was in process of formation, impossible. The title deeds of aboriginal tribes to their lands were, as Chateaubriand says, "the bones of their ancestors," and present possession; and the only law for enforcing this title was force. The strength of a tribe was, therefore, necessary to maintain the possession of the lands of the tribe, and even the life of each individual composing it. It is true that the right of an individual to use a particular piece of land solely, and after the fashion of property, was recognised by the tribe as against the other members of the tribe, but the collective individual holdings with the uncultivated or wild lands formed the tribal estate, and only one estate as against all outsiders. Many authorities could be quoted in support of this doctrine. I will content myself simply %vith the testimony of the Hon. D. M'Lean, who for many years filled the office of Chief Commissioner for the Extinguishment of Native Titles (printed in Parliamentary Papers, 1860, page 303). He says, " I do not think it practicable to give Crown grants to natives by defining the boundaries of individual rights to land ; it would be productive of quarrels and disputes, as there is really no such thing as individual title that is not entangled with the general interests of the tribe, and often with the claims of other tribes, who may have migrated from the locality. " I have tried this system at the suggestion of the Bishop at Taranaki. It gave me considerable insight into the state of Native tenure ; but, in endeavoring to carry it out, I found it took about thirty days to define the boundaries of the claims of forty individuals over an extent of forty acres ; and even then they regarded the arrangement as altogether imaginary, and it did not appear to affect, in the estimation of the Natives, the general or tribal right. When I considered the title settled, of some individuals on this basis, I found the Natives quarrelled amongst themselves about the boundaries, and prevented any definite arrangement being carried out, until I afterwards purchased the whole of the tribal claim, in order to secure a clear title. I wish every Native could get a Crown grant; it would be the means of dissipating many jealousies, and breaking up their confederacies. It is absolutely necessary that the tribal claim to such land should first be perfectly obliterated by previous sale to the Government." The decisions of this Court have, as far as my knowledge extends, never swerved from the maintenance of this doctrine. Numerous precedents could be quoted, but I will content myself with one which was delivered in a very important case—Heremia Moutai v. Regina—at Christchurch, in the year 1867. " The Court cannot recognise individual ownership of Native land. The strength of the tribe, before the arrival of the British Government, was required to maintain the title of a tribe, and the land belonged to the tribe. The contrary doctrine was endeavoured to be set up by the Government in the celebrated Waitara case, but all aboriginal New Zealand protested against it, and a long and expensive war ensued. We cannot allow Heremia to set up a doctrine because now it suits his interest, against which all his fellow countrymen have so energetically protested. Qui sentit commodum sentire debet et onus is the maxim—and the Maori custom is, that the individual must (as regards Native land) be bound by his tribe, in their external relations." The sum, then, of the preceding investigation is that the statute law, the common law, and the decisions of this Court, all concur in the doctrine that Native land is Native land, whether possessed by tribe or individual; and that the thing remains the same, although the words used to describe it may greatly vary. " Land over which the Native title is not extinguished," " land owned by Natives according to their custom or usages," and " land belonging to, or used or occupied by, aboriginal Natives in common, as tribes or communities," are several phrases which all mean the same thing, viz., Native land as defined in the "Native Lands Court Act, 1865." Our encpiiry will, therefore, be much narrower, and will simply be: Does the issue of a certificate of