The Treaty of Waitangi Part 37

1912.

July 23, 24, 25.

Oct. 7.

C.A.

Coram.

Stout, C.-J.

Williams, J.

Edwards, J.

Cooper, J.

Chapman, J.

Skerrett, K.C., Morison and Fell for the plaintiffs.

Solicitor-General (Salmond) and Ostler for the defendant.

STOUT, C.-J.--This is a special case stated pursuant to Rule 245 of our Code of Civil Procedure. Neither party, however, asks that all the questions framed in the case should be answered. Indeed both ask that some of the questions should not be answered. The point in dispute between the parties is a narrow one. The plaintiff contends that he has a statutory right to go to the Native Land Court claiming under the Native Land Act a freehold t.i.tle. The Solicitor-General contends that if he, as Solicitor-General, says the land, that is the bed of Lake Rotorua, is Crown land that concludes the matter, and the Native Land Court cannot proceed to make any inquiries as to whether the land is native customary land. That is the matter in contention, and it appears to me that it is the only question that this Court has at present to decide.

It may be necessary to refer very shortly as to how the question has arisen. In 1835 there were many English people settled in the most northerly part of New Zealand. English Church Missionaries had been there for some years, they landed first in 1814; and there were traders and whalers and others that had made New Zealand their home.

One called Charles Baron de Thierry, in Marquesas, claimed that he was sovereign chief of New Zealand. He so informed Mr. James Busby, who had been appointed British Resident in New Zealand, and Mr. Busby thereupon took steps to deny any such sovereignty. He and other English residents saw the Native chiefs and they formed what was called a Confederation. The thirty-five head chiefs or heads of tribes in the most northern parts of New Zealand, that is all the country lying north of the Firth of Thames, joined in a declaration that New Zealand was an independent state under the name of the "United Tribes of New Zealand." Mr. Busby sent a copy of this declaration to the Under-Secretary of State in London, and Lord Glenelg, the Secretary of State for the Colonies, wrote to the Governor of New South Wales regarding the declaration. The Governor was directed to inform the chiefs "With reference to the desire which the chiefs have expressed on this occasion to maintain a good understanding with His Majesty's subjects, it will be proper that they should be a.s.sured in His Majesty's name that he will not fail to avail himself of every opportunity of showing his goodwill and of affording to those chiefs such support and protection as may be consistent with a due regard to the just rights of others, and to the interests of His Majesty's subjects."

Meantime the eligibility of New Zealand as a colony was being discussed both in New South Wales and in England, and ultimately in 1840 Captain Hobson, R.N., was despatched to New Zealand with two commissions, one as British Consul, and the other as Lieutenant-Governor.

He reached the Bay of Islands on the 29th of January 1840, and on the 5th and 6th of February the Treaty of Waitangi was signed by many chiefs, then a.s.sembled at Waitangi in the Bay of Islands. The treaty states, _inter alia_: "Her Majesty, therefore, being desirous to establish a settled form of civil government with a view to avert the evil consequences which must result from the absence of the necessary laws and inst.i.tutions alike to the native population and to her subjects, has been graciously pleased to empower and authorise me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul and Lieutenant-Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent chiefs of New Zealand to concur in the following articles and conditions."

Then follow three articles. The first article deals with the cession.

It is as follows: "The chiefs of the Confederation of the United Tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of sovereignty which the said confederation or individual chiefs respectively exercise or possess or may be supposed to exercise or possess over their respective territories as the sole sovereigns thereof."

The second and the third articles are as follows: "Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession: but the chiefs of the united tribes and the individual chiefs yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf." The third is as follows: "(3) In consideration thereof, Her Majesty the Queen of England extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects."

Copies of the treaty were taken to various parts of both islands, and the chiefs throughout New Zealand signed it, and to the present day the treaty is regarded as their Magna Charta. The Lieutenant-Governor on the 21st May 1840 issued a proclamation, proclaiming and declaring that after the date of the treaty the full sovereignty of the North Island of New Zealand vested in Her Majesty, Queen Victoria, her heirs and successors for ever.

A further proclamation was issued on the same day proclaiming and declaring that all the Islands of New Zealand vested in Her Majesty, that is, including all country between 34 30' north to 47 10' south lat.i.tude and between 166 5' to 179 east longitude. A mistake was made in this proclamation in that it proclaimed from 34 30' north instead of as was intended 34 30' south. The ground of the proclamation over the South Island was that of discovery. Since then it has been recognised that the lands in the islands not sold by the natives belonged to the natives. All the old authorities are agreed that for every part of land there was a native owner. Two authorities may be cited. Bishop Selwyn said as follows: "Three points then seem to be clear on this subject: (1) That there was originally a distinct owner for every habitable spot in the Northern Island: (2) That these claims have been complicated by the obvious causes of inheritance and marriage without forms of conveyance or bequest: (3) That the rights of owners.h.i.+p whether in one or many joint proprietors were not alienable without the consent of the tribe."

The late Sir William Martin, formerly Chief-Justice of New Zealand, said: "So far as yet appears the whole surface of the islands, or as much of it as is of any value to man, has been appropriated by the natives, and, with the exception of the part they have sold, is held by them as property. Nowhere was any piece of land discovered or heard of (by the commissioners) which was not owned by some person or set of persons.... There might be several conflicting claimants of the same land: but however the natives might be divided amongst themselves as to the validity of any one of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants. In this Northern Island at least it may now be regarded as absolutely certain that, with the exception of lands already purchased from the Natives, there is not an acre of land available for purposes of colonisation, but has an owner amongst the Natives according to their own customs."

The Governor and the Legislature of New Zealand accepted this position, and numerous ordinances and acts of Parliament have been pa.s.sed to enable the Maoris to trans.m.u.te their customary t.i.tle into freehold. The position all along a.s.sumed has been that the lands are vested in the Crown, and until the Crown issues a freehold t.i.tle the customary t.i.tles cannot be recognised; but that the Crown will give to all who prove that the land was theirs a freehold t.i.tle. The Crown has not a.s.sumed that land could be taken or kept by the Crown from the Natives, unless the natives ceded their rights to the Crown. Thousands of purchases in both islands have been made by the Crown, and thousands of deeds of cession are in existence. The reason why the Crown did not recognise any t.i.tle in the land till a grant from the Crown had issued is dealt with in the cla.s.sic judgment of the late Mr.

Justice H. S. Chapman, delivered in 1847 in the case of Reg. _v._ Symonds, and in the judgment of the then Chief-Justice Sir William Martin, who agreed with the judgment of Mr. Justice Chapman. After their judgments, the Imperial Parliament in the New Zealand Const.i.tution Act (15 and 16 Vict. c. 72, sec. 73) recognised the native t.i.tle. Section 73 of that Act is as follows: "It shall not be lawful for any person other than Her Majesty, her heirs and successors, to purchase or in any wise acquire or accept from the aboriginal Natives land of or belonging to, or used or occupied by them in common as tribes or communities, or to accept any release or extinguishment of the rights of such aboriginal Natives in any such land as aforesaid: and no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity or for any term or period, either absolutely or conditionally, and either in property or by way of lease or occupancy, and no such release or extinguishment as aforesaid, shall be of any validity or effect, unless the same be made to, or entered into with and accepted by Her Majesty, her heirs or successors. Provided always that it shall be lawful for Her Majesty, her heirs and successors, by instructions under the signet and royal sign manual, or signified through one of Her Majesty's Princ.i.p.al Secretaries of State to delegate her powers of accepting such conveyances or agreements, releases, or relinquishments, to the Governor of New Zealand, or the superintendent of any province within the limits of such colony, and to prescribe or regulate the terms of such conveyances or agreements, releases or extinguishments shall be accepted."

That the Crown in New Zealand recognised that it could not treat the Native land--that is, the land over which the Natives had not given up their rights of cession--as Crown in the fullest sense is plain from various things done: (1) In 1862 the first Act to provide for the ascertainment of the owners.h.i.+p of Native lands, and for granting certificates of t.i.tle therein, and for regulating the disposal of Native lands was pa.s.sed. The preamble is as follows: "Whereas by the Treaty of Waitangi entered into by and between Her Majesty and the chiefs of New Zealand, it was among other things declared that Her Majesty confirmed and guaranteed to the chiefs and tribes of New Zealand and the respective families and individuals thereof the full, exclusive, and undisturbed possession of their lands and estates, which they collectively or individually held so long as it should be their desire to retain the same: And it was further declared that the chiefs yielded to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof might be disposed to alienate: And whereas it would greatly promote the peaceful settlement of the colony and the advancement and the civilisation of the Natives if their rights to land were ascertained, defined, and declared, and if the owners.h.i.+p of such lands when so ascertained, defined, and declared were a.s.similated as nearly as possible to the owners.h.i.+p of land according to British law: And whereas with a view to the foregoing objects, Her Majesty may be pleased to waive in favour of the Natives so much of the said Treaty of Waitangi as reserves to Her Majesty the right of pre-emption of their lands, and to establish Courts and to make other provision for ascertaining and defining the rights of the Natives to their lands, and for otherwise giving effect to the provisions of the Act: And it is expedient that the General a.s.sembly of New Zealand should facilitate the said objects by enacting such provisions as are hereinafter contained."

(2) When the natives committed rebellion or were guilty of insurrection, a special Act was pa.s.sed allowing the Governor in Council to take their lands. See _inter alia_ the New Zealand Settlements Act, 1863. A few of the sections may be cited: "2.

Whenever the Governor in Council shall be satisfied that any Native tribe or section of a tribe or any considerable number thereof has since the first day of January 1863 been engaged in rebellion against Her Majesty's authority, it shall be lawful for the Governor in Council to declare that the district within which any land being the property or being in the possession of such tribe or section or considerable number thereof shall be situate, shall be a district within the provisions of this Act, and the boundaries of such district in like manner to define and vary as he shall think fit."

"3. It shall be lawful for the Governor in Council from time to time to set apart within any such district eligible sites for settlements for colonisation, and the boundaries of such settlements to define and vary."

"4. For the purposes of such settlements the Governor in Council may from time to time reserve or take any land within such district, and such land shall be deemed to be Crown land, freed and discharged from all t.i.tle interest, or claim of any person whomsoever as soon as the Governor in Council shall have declared that such land is required for the purposes of this Act, and is subject to the provisions thereof."

Section 5 provided for compensation to persons whose land has been taken, provided that they had not been in rebellion.

(3) Before Native land was treated as Crown land, open for sale and settlement, proclamations were generally made so declaring the land open. See, for example, section 6 of the Immigration and Public Works Act, 1873, and section 247 of the Land Act, 1885.

It is not necessary to point out that if the Crown in New Zealand had not conserved the Native rights and carried out the treaty a gross wrong would have been perpetrated. Since the recognition of the Native rights so often made, there may have been interference by legislation with Native land, both before and after the ascertainment of t.i.tle.

If, however, there were such interferences, they have been based on the theory of eminent domain. There have been statutes pa.s.sed providing how Native lands may be leased, but a similar kind of interference has been witnessed in the United Kingdom in the case of the Irish Land Acts and the Scottish Crofters' Statutes. Such interferences did not destroy the t.i.tle of Natives. Native lands and freehold lands belonging to persons of the white race have also been taken under such a theory when it appeared it was for the interest of the State to do so. In such cases compensation has been awarded. To interfere with Native lands, merely because they are Native lands, and without compensation, would of course be such an act of spoliation and tyranny that this Court ought not to a.s.sume it to be possible in any civilised community.

The decision of _Wi Parata v. Bishop of Wellington_, 3 J.R., N.S., S.C. 72, does not derogate from that position. It only emphasised the decision in _Reg. v. Symonds_, that the Supreme Court could take no cognisance of treaty rights not embodied in a statute, and that Native Customary t.i.tle was a kind of tenure that the Court could not deal with. In the case of _Tamaki v. Baker_ (1901), A.C. 561, the Judicial Committee of the Privy Council recognised, however, that the Natives had rights under our statute law to their customary lands.

The Native Land Act, 1909, has various sections dealing with the customary land of the Maoris (sections 84, 85, 86, and 87). What was the need of such sections if a declaration by a law officer of the Crown was all that was necessary to say that the land claimed as Customary Native Land was Crown Land? Section 88 is significant in this connection. It states "(1) for the purpose of recovering possession of customary land from any person in wrongful occupation thereof, and for the purpose of preventing any trespa.s.s or other injury thereto, or of recovering damages for any such trespa.s.s or injury, all such land shall be deemed to be Crown Lands within the meaning of the Land Act, 1908. (2) No action or other proceeding, other than a proceeding by or on behalf of the Crown under the last preceding subsection, shall be brought in any Court by any person for the recovery of the possession of customary land, or for damages or an injunction in respect of any trespa.s.s, or injury to such land."

Sections 90 and 91 show that the customary t.i.tles are recognised: section 90 reads: "The Native Land Court shall have exclusive jurisdiction to investigate the t.i.tle to customary land, and to determine the relative interests of the owners thereof." Section 91 is as follows: "Every t.i.tle to and interest in customary land shall be determined according to the ancient custom and usage of the Maori people, so far as the same can be ascertained." Section 92 shows the jurisdiction of the Native Land Court. Formerly there was something more required than an order of a Native Land Court to make an effective t.i.tle. At one time His Excellency the Governor had to sign a Crown grant and at another time a certificate of t.i.tle.

I am of opinion that the Native Land Act recognises that the Natives have a right to their customary t.i.tles. There are in my opinion only three things that can prevent the Native Land Court entering on an enquiry as to such customary t.i.tle.

(1) A proclamation of the Governor under a statute, such as has been provided in many Acts, and is so provided in section 85 of the Native Land Act, 1909.

(2) A prohibition by the Governor under section 100 of the Native Land Act, 1909.

(3) Proof that the land has been ceded by the true owners or that a Crown grant has been issued.

I know of no statutory authority that the Attorney-General as Attorney-General or the Solicitor-General as Solicitor-General has to declare that the land is Crown land. The Attorney-General and the Solicitor-General are both high officers of State. They are legal officers, and they can appear as solicitors or counsel for the Crown, but there their functions and powers end. Their statement as to what is Crown property unless made in accordance with some statutory power, is of no avail. If in an action they put in a plea to that effect, it would have to be proved like any other pleading of a party to the action. The Solicitor-General has failed to cite any authority that the mere statement of the legal adviser of the Crown, or the Crown's Attorney or Solicitor-General, was to be taken as a true averment without proof.

What the customary t.i.tle to the bed of Lake Rotorua may be must be considered and determined by the only Court in New Zealand that has jurisdiction to deal with Native t.i.tles--the Native Land Court. At common law there may be an owners.h.i.+p of the bed of navigable rivers or lakes that are non-tidal. See Kent's _Commentaries_, vol. iii. p.

427, note (_d_). The case of _Mueller v. Taupiri Coal Mines, Ltd._, 20 N.Z.L.R. 89, turned on the effect of a grant under the Land Acts.

I am of opinion that it is not necessary specifically to answer the questions put, but only to say that the plaintiff and his people have a right to go to the Native Land Court to have their t.i.tle investigated, and that the Native Land Court can only be prevented from performing its statutory duty, first, under the Native Land Act, secondly, on proof in that Court that the lands are Crown Lands freed from the customary t.i.tle of the Natives, or, thirdly that there is a Crown t.i.tle to the bed of the lake.

WILLIAMS, J.--The contention of the Solicitor-General is that in all cases where land is claimed by natives to be held by them under their customs and usages, and they seek to have their t.i.tles ascertained by the Native Land Court, and a t.i.tle in fee simple granted to them, the Solicitor-General, by virtue of the prerogative right of the Crown, and apart from any statutory authority, could at any time step in and prevent proceedings being taken or continued. The arguments in support of this contention are that when New Zealand was annexed to Great Britain all the land in New Zealand became vested in the Crown, by virtue of its prerogative; that the Treaty of Waitangi is binding only upon the honour of the Crown, and can be disregarded at the discretion of the Crown; and that, although there may be a statutory recognition of the Native t.i.tle, there is no such statutory recognition as would operate as against the Crown. Even if these arguments were sound it by no means follows that the contention of the Solicitor-General can be supported.... There is nothing in the Governor's commission or in the Royal instructions which expressly authorises him to interfere on behalf of the Crown to prevent the exercise of rights given to natives by the statute law of the Dominion. Has he then, by virtue of his commission, an implied power so to interfere?... There is a special reason why the power now claimed should not be implied. The power now claimed is by an act of state to disregard rights given by statutes which have been pa.s.sed to carry out treaty obligations binding upon the honour of the Crown. If the Crown has this power, it is exercised on the advice of the responsible Minister of the Crown. Whether it should be so exercised or not is a matter affecting the honour of the Crown, not merely as the Sovereign of this Dominion, but as the Sovereign of the British Empire. It was with the Sovereign of the British Empire that the Treaty of Waitangi was entered into. Whether Imperial obligations should or should not be observed is a matter of Imperial concern for the responsible advisers of the Crown in Great Britain to decide upon and not for the advisers of the Governor here, unless the power of deciding has been expressly delegated to the Governor. Even if the power had been so delegated the Court would properly require some evidence beyond the mere statement of the Attorney- or Solicitor-General that the authority of the Crown was being exercised.... I agree with the conclusion arrived at by His Honour, that rights given to natives by statute to have their customary t.i.tles determined can only be divested in the manner prescribed by statute. The rights given to natives by sections 90 to 93 inclusive of "The Native Land Act, 1909," to have a legal estate in fee simple in possession vested in the persons found to be ent.i.tled are rights expressly given against the Crown. If these sections do not bind the Crown they are meaningless and inoperative. The Crown is a party to the statute. It is difficult to see how, when rights which expressly affect pre-existing rights of the Crown are created by statute, the Crown upon the pa.s.sing of the statute can disregard the rights so created, and exercise its pre-existing rights as if the statute had not been pa.s.sed.

EDWARDS, J.--In support of his contention that the bed of the lake cannot be the subject of a Native t.i.tle under Maori customs and usages, the Solicitor-General relies upon the inherent improbability that there was any intention, either by the Treaty of Waitangi or by the statutes relating to native lands, to recognise any such right. To hold that there is such a right would be, the Solicitor-General contends, to destroy the right of navigation in all non-tidal waters to the great detriment of the public. Such considerations might well have induced those responsible for the Treaty of Waitangi to have so framed that doc.u.ment as to preclude any claim by natives to the exclusive possession of land covered by navigable non-tidal waters. It may even be suggested that the words of the treaty, which guarantee to the Maoris "the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties," were intended to reserve to the natives merely the right to fish in non-tidal waters, without recognising in them any property in the land covered by such waters. It is quite possible--indeed not improbable--that there never was any Maori custom or usage which recognised any greater right in land covered by navigable non-tidal waters than this. That is a question which neither the Supreme Court nor this Court can determine. If there never was any such custom or usage prior to the Treaty of Waitangi, then the Crown will get the advantage of that when that question has been determined by the Native Land Court, or in the last resort by the Judicial Committee of the Privy Council. But if there was such a custom or usage, the treaty, so far as it is effective, is sufficient to preserve it. The treaty, like every other instrument, must be construed in accordance with the plain legal significance of the words used, and the Courts cannot speculate as to whether or not those words were used in another sense not apparent upon the face of the instrument, or necessarily to be inferred from the subject with reference to which they are used. A lake, in contemplation of the English law, is merely land covered by water, and will pa.s.s by the description of land. _Bristow v. Cormican_ (3 A.C. 641); _Johnston v. O'Neill_ (1911, A.C. 552). Whatever rights were conserved to the Maoris by the Treaty of Waitangi were fully recognised by "The Native Lands Act, 1862," which recited the treaty, and was enacted with the declared object of giving effect to it.... In my opinion it is clear that if the Crown desires to set up its t.i.tle, as a bar to the investigation by the Native Land Court in its ordinary jurisdiction of claims by natives, it must either be prepared to prove its t.i.tle, or it must be able to rely upon a proclamation in accordance with the terms of the 85th section of "The Native Land Act, 1909."

COOPER, J.--I have had the advantage of reading and considering the judgment of His Honour, the Chief Justice, and, upon substantially the same grounds as are expressed by His Honour in that judgment, I have arrived at the same conclusion.

I have very little to add.

"The Land Act, 1908," contains the statutory provisions regulating the administration of Crown lands in New Zealand. In respect of Native lands, section 2 brings within the category of Crown lands only those "Native lands which have been ceded to His Majesty by the Natives on behalf of His Majesty, or otherwise acquired in freehold from the Natives on behalf of His Majesty, or have become vested in His Majesty by right of his prerogative."

Customary lands owned by natives, which have not been ceded to His Majesty or acquired from the native owners on behalf of His Majesty, cannot in my opinion be said to be land vested in His Majesty by right of his prerogative. It is true that, technically, the legal estate is in His Majesty, but this legal estate is held subject to the right of the natives, recognised by the Crown to the possession and owners.h.i.+p of the customary lands, which they have not ceded to the King, and which His Majesty has not acquired from them.

Section 338 of the Act draws a clear distinction between Native lands and Crown lands. Under subsection (1) of that section, where the Governor is satisfied that Native lands have been acquired by the Crown, he shall by proclamation declare such lands to be Crown lands, and under subsection (2), when such lands have been so acquired, he may give effect to any stipulation in the instrument of sale or transfer to His Majesty for the reservation to the natives of any part of such lands, and may reserve or grant such portions in manner required by the natives.

Section 88 of "The Native Land Act, 1909," which has been referred to by His Honour also, recognises that these lands are not "Crown lands."

They are only deemed to be Crown lands for the one purpose, namely, that if any person is in possession of or trespa.s.sing upon, or injuring the lands against the interest of the Native owners, then, for the purpose of protecting the Native owners the Crown may under the Land Act take proceedings against such wrongdoers. Even this provision is a guarded one, for subsection (3) of that section expressly provides that nothing in it contained shall take away or affect any jurisdiction conferred upon the Native Land Court.

CHAPMAN, J.--I agree with the judgments which have been read. It has been argued that the Treaty of Waitangi was an international treaty entered into with chiefs having the sovereignty. The contrary opinion was p.r.o.nounced by the Supreme Court in _Wi Parata v. The Bishop of Wellington_ (3 N.Z. Jur. N.S. 72). The terms employed and the mode of execution of the treaty leave it at least an open question whether it was so regarded at the time. It professes to be made with certain federated chiefs and certain chiefs who are not federated, but it does not state over what territories they exercised authority, though the text of the treaty seems to suggest that it was contemplated that it should be made with several chiefs who might possibly be regarded, and were provisionally and hypothetically treated as sovereigns of their respective territories. Later it became a matter of general knowledge, derived, I presume, from maps prepared pursuant to section 21 of "The Native Land Act, 1873," that there are eighteen or twenty tribes in New Zealand. If that be so the numerous signatories of the Treaty of Waitangi can hardly be described as sovereign chiefs. I agree that if they had been explicitly so declared by Her Majesty's government, or had been so treated in a course of political transactions that would have been sufficient to make them so, and that their numbers and their individual unimportance would not have rendered this impossible, provided that in each case there was a sovereign to a territory.

_Hemchand Devchand v. Azam Sakaral Chhotamlal_ (1906, A.C. 212).

The whole current of authorities shows, however, that the question of the origin of the sovereignty is immaterial in connection with the rights of private persons professing to claim under the provisions of the treaty of cession. _Cook v. Sprigg_ (1899, A.C. 572). Such a treaty only becomes enforceable as part of the munic.i.p.al law if and when it is made so by legislative authority. That has not been done.

The sense in which the treaty has received legislative recognition I will refer to later.... From the earliest period of our history, the rights of the natives have been conserved by numerous legislative enactments. Section 10 of 9 and 10 Vict. cap. 103, called an Act to make further provision for the Government of the New Zealand Islands (Imperial, 1846), recognises the laws, customs, and usages of the natives which necessarily include their customs respecting the holding of land. Section 1 of 10 and 11 Vict. cap. 112, called an Act to promote colonisation in New Zealand and to authorise a loan to the New Zealand Company (Imperial, 1847), recognises the claims of the aboriginal inhabitants to the land. To the same effect is the whole body of colonial legislation. The expressions "land over which the Native t.i.tle has not been extinguished" and "land over which the Native t.i.tle has been extinguished" (familiar expressions in colonial legislation), are both pregnant with the same declaration. In the judgment of the Privy Council in _Nireaha Tamaki v. Baker_ (1901, A.C.

561), importance is attached to these and similar declarations in considering the effect of colonial legislation. There the whole of the legislation from the date of the const.i.tution is summarised. This summary includes the princ.i.p.al colonial Acts. Referring to section 5 of "The Native Rights Act, 1865," their Lords.h.i.+ps say: "The Legislation, both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction of 'The Native Rights Act,' and one is rather at a loss to know what is meant by such expressions as 'Native t.i.tle,' 'Native lands,' 'owners,' and 'proprietors,' or the careful provision against sale of Crown lands until the Native t.i.tle has been extinguished, if there be no such t.i.tle cognizable by the law, and no t.i.tle therefore to be extinguished." I might refer further to less precise but equally important expressions, such as "tribal lands," in "The Native Land Act, 1873," section 21. The various statutory recognitions of the Treaty of Waitangi mean no more, but they certainly mean no less than these recognitions of native rights.

[195] Tawhaki, the G.o.d-man, whose name frequently occurs in all the ancient mythology of the Maori race.

[196] Rain and wind--figurative expressions denoting wars and tumults.