Appendix 15 - Extract from Introduction to the Native Land Act, 1909, by Sir John Salmond
NOTES ON THE HISTORY OF NATIVE-LAND LEGISLATION
TRANSFORMATION OF CUSTOMARY INTO FREEHOLD LAND
The customary Native title to the land of New Zealand has now for the most part been extinguished, and this has been effected in two chief ways:-
(1) By the voluntary cession to the Crown of lands purchased from the Native customary owners. Such a cession extinguishes the Native title, and leaves the land vested absolutely in the Crown as ordinary Crown lands, free to be disposed of by lease or Crown grant in accordance with the Land Acts.
(2) By the operation of the Native Land Court in ascertaining the title to customary land, whereupon a Crown grant or a certificate of title under the Land Transfer Act is issued to the Native owners. The land so dealt with, though it continues to be owned by the Native proprietors, ceases to be held under the Native title, and becomes freehold land held under English tenure in fee-simple from the Crown.
The earlier Native Land Acts are devoted chiefly to this process of ascertaining Native customary title and transforming it into freehold title. The Native Land Court was established in 1862 by the Native Lands Act of that year. This Court was empowered to inquire into the title to the customary lands of Natives, and to issue to the tribe, community, or individuals found to be entitled a certificate of title, which was to be conclusive proof of ownership. If any such certificate of title is issued to not more than twenty persons, it may be sealed with the Public Seal of the Colony, and shall then operate as a Crown grant, so as to transform that customary land into freehold land and extinguish the Native title.
In 1865 this Act was repealed in favour of the Native Lands Act, 1865. By this Act certificates of title are not to be issued by the Native Land Court to more than ten persons, and on the issue of such a certificate the Governor may seal a Crown grant in favour of the Natives entitled.
By the Native Land Act, 1873, a "memorial of ownership" was substituted for a certificate of title, presumably to avoid a possible confusion with certificates of title under the Land Transfer Act, 1870. By the Native Land Court Act, 1880, however, the older term "certificate of title" was restored.
In 1886 the Native Equitable Owners Act was passed, to enable the Native Land Court to make inquiries as to whether the persons named as owners in former certificates of title and memorials of ownership were entitled beneficially or were merely trustees for a larger number of Native owners, and to include in the title the persons so found to be entitled. The limitation imposed by the earlier Acts on the number of names that could be inserted in a certificate of title had led to the practice of inserting a small number of nominal owners on behalf of the rest, instead of the full number beneficially entitled. The jurisdiction conferred by this Act upon the Native Land Court in 1886 has not even yet been completely exercised.
By the Native Land Court Act, 1886, it is provided that, instead of issuing a certificate of title or memorial of ownership, the Native Land Court shall simply make an order determining the title, and on this order being sent to the Minister of Lands a certificate of title under the Land Transfer Act should be issued to the Natives so declared to be entitled. The result of this change is to abolish the intermediate class of title which had existed under the earlier Acts - namely, a title which was no longer purely customary (because it had been ascertained by the Court and an instrument of title was held in respect of it) and, nevertheless, had not become freehold because no Crown grant had been issued in respect of it. Under this Act the title passed at once from customary to freehold by the immediate registration of the owners as proprietors under the Land Transfer Act.
By the Native Land Court Act, 1894, the same principle was maintained, and in addition it was provided that all land which at the passing of that Act was held under certificate of title or memorial of ownership issued by the Court should forthwith on the passing of that Act become subject to the Land Transfer .Act, and that the owners should acquire in consequence an estate in fee-simple. That is to say, in 1894 all customary land, the title to which had already been ascertained by the Court, was transformed automatically into freehold land subject to the Land Transfer Act.
Since 1894 no material alteration has been made in the process of ascertaining customary title and transforming it into freehold, save that by the Maori Lands Administration Act, 1900, the powers of the Native Land Court in this behalf were vested concurrently in the Maori Land Boards.
ALIENATION OF NATIVE LANDS
In considering the history of the law as to the alienation of Native land it is necessary to distinguish between three classes of land-viz., (1) Customary land the title to which has not been ascertained by the
Native Land Court; (2) customary land the title to which has been so ascertained; and (3) freehold land.
1. As to the first of these kinds, alienation is and always has been absolutely prohibited except in favour of the Crown. By the Treaty of Waitangi the exclusive right to purchase such lands was reserved to the Crown. By the Native Land Purchase Ordinance, 1846, it was made a criminal offence for a European to purchase such land or to be found in occupation of it. By section 73 of the Constitution Act, in 1852, the same prohibition was repeated; so also in section 75 of the Native Lands Act, 1865, section 87 of the Native Land Act, 1873, and section 117 of the Native Land Court Act, 1894.
2. As to the second class of Native lands-viz., customary land of which the title has 'been ascertained-special statutory powers of alienation have been from time to time conferred upon the Native owners. By the Native Lands Act, 1862, section 17, it was provided that any person holding a certificate of title issued by the Native Land Court could freely alienate the land by way of sale, lease, or exchange, and any such alienation was given effect to by the issue of a Crown grant or other instrument of title by the Crown. So also in the Native Lands Act, 1865, section 47, save that certain formalities of execution are required. So also in the Native Land Act, 1873, sections 48 and 49. The Native Land Act Amendment Act, 1878 (No.2), section 4, prohibited alienation by way of mortgage. By the Native Land Court Act, 1880, the Court, in issuing certificates of title, was empowered to impose such restrictions on alienation as were thought desirable. By the Native Land Laws Amendment Act, 1883, all negotiations for the alienation of Native land were prohibited for forty days after the ascertainment of title by the Native Land Court. By the Native Land Administration Act, 1886, all alienation was absolutely prohibited; but this Act. was repealed in 1888~ By the Native Land Court Act, 1894, this class of land was abolished by being brought automatically under the provisions of the Land Transfer Act, and so transformed into freehold.
3. Alienation of freehold land: Originally a Native holding land by freehold title had exactly the same powers of alienation as a European. By a long and very complicated course of legislation, however, this liberty has been restricted, the restrictions varying greatly in degree and nature at different times, and occasionally amounting to a general prohibition.
By the Native Lands Act, 1862, the Governor was empowered, on the ascertainment of title, to impose restrictions on the alienation of any of the land so Crown-granted. By the Native Lands Act, 1865, the Court, in issuing a certificate of title, might recommend restrictions on alienation, and the restrictions so recommended were embodied in any Crown grant issued for that land. By the Native Lands Act, 1867, Native reserves were made inalienable by sale or mortgage, or by lease for more than twenty-one years, without the consent of the Governor.
In 1870 the first Native Lands Frauds Prevention Act was passed. This invalidated all alienations of Native land if (a) contrary to equity and good conscience; or (b) made in consideration of the supply of liquor, arms, or ammunition; or (c) such that sufficient land was not left for the support of the Native. Trust Commissioners were appointed, and no instrument of alienation was to be valid unless endorsed by a Commissioner with a certificate that the alienation was in accordance with this Act.
By the Native Land Act, 1873, Native reserves were to be set apart and to be inalienable without the consent of the Governor. By the same Act every instrument of alienation had to be explained to the Native by an interpreter, and to have endorsed a statement of its contents in the Maori language.
The Native Lands Frauds Prevention Act, 1881, repealed the Act of 1870, but re-enacted it with minor modifications. This Act remained in force until the passing of the Native Land Court Act, 1894.
By the short-lived Native Land Administration Act, 1886, the alienation of land by the Native owners was absolutely prohibited. Commissioners were appointed, who, with the consent of a committee of the Native owners, had power to dispose of the land under the provisions of the Land Act, 1885, in the same manner as if it was Crown land.
This Act was repealed by the Native Land Act, 1888, section 4 of which provided that "subject to the provisions of the Native Lands Frauds Prevention Act, 1881, and of the Native Lands Frauds Prevention Act 1881 Amendment Act, 1888, Natives may alienate and dispose of land or of any share or interest therein as they think fit." By the same Act the Governor in Council was empowered, on the application of a majority of the Native owners, to remove any restriction contained in any Crown grant or other instrument of title.
Until the passing of the Native Land Court Act, 1894, therefore, the law as to the alienation of freehold land held by Natives was as follows:-
(1) Certain specific lands were subject to restrictions imposed by the Crown grants under which they were held, but these restrictions could be removed by the Governor in Council on the application of the owners.
(2) Certain lands were set apart as Native reserves, subject to special restrictions on alienation.
(3) All other freehold land was freely alienable, subject only to the approval of the Trust Commissioners under the Native Lands Frauds Prevention Act, 1881.
By the Native Land Court Act, 1894, the following alterations were made:-
(1) Power to remove restrictions imposed since 30th August, 1888, was conferred upon the Court, while the Governor was empowered, on the recommendation of the Court, to remove restrictions imposed prior to that date, (Section 52).
(2) The power of confirming alienations was taken away from the Trust Commissioners under the Native Lands Frauds Prevention Act, 1881, and conferred upon the Native Land Court. The last-mentioned Act was repealed, but the provisions contained in it as to the conditions to be fulfilled before confirmation can be obtained are substantially re-enacted.
(3) By section 117 the alienation of land owned by Natives is absolutely prohibited except in the following cases:-
(a) Land in the South Island may be alienated by way of lease.
(b) Land may be alienated to the Crown.
(c) Land acquired by a Native "by way of purchase, gift, or testamentary disposition from any person other than the Crown, or by purchase from the Crown" is freely alienable.
(4) Instead of alienation by the individual Native owners, the Act provides for alienation by an incorporated body of owners, and also for alienation by the Land Board in the same manner as Crown lands, with the consent of a majority of the owners.
Within a year after the passing of the Native Land Court, Act, 1894, section 117 was amended by making further important exceptions to the prohibition of alienation. Sections 3 and 4 of the Native Land Laws Amendment Act, 1895, allow alienation (subject only to confirmation by the Court) in the following cases:-
(1) Land situated in a borough or town district:
(2) Blocks not exceeding 500 acres, the title to which was ascertained before the passing of this Act:
(3) Any land exempted from section 117 by the Governor.
By the same Act the principle was for the first time adopted that a purchaser or lessee of Native land must make a declaration that he does not already hold more than a certain area of land.
The Maori Lands Administration Act, 1900, established Maori Land Councils (now Maori Land Boards), and conferred upon them certain extensive powers in connection with the alienation and administration of Native lands. These Councils were in certain matters given the same jurisdiction that up to that time the Court alone has exercised, but it was not made clear what relation existed between the provisions of that Act and the different provisions in pari materia of the Native Land Court Act, 1894. Consequently the law contained two sets of different and inconsistent provisions dealing with the same matters, and also recognized two different bodies -namely, the Native Land Court and the Maori Land Board having concurrent and discordant powers and duties in respect of the same matters. Section 22 of this Act, as amended by section 4: of the Maori Lands Administration Act, 1901, makes the following provisions as to alienation:-
(1) Leases of land owned by more than two owners must be consented to by the Council.
(2) Sales of land owned by more than two owners must be consented to by the Governor in Council.
(3) Alienation of land owned by one or two Maoris remains subject to the same law as if this Act had not been passed-that is to say, such land remains subject to section 117 of the Native Land Court Act, 1894.
In 1905, by section 16 of the Maori Land Settlement Act, 1905, all restrictions on the leasing of Native land were abolished, whether those restrictions were imposed by the Crown grant or by any former statute. But no lease was to be valid unless the approval of the Maori Land Board was endorsed on it. The Board was not to approve a lease unless-
(a) The rent was adequate;
(b) The Native lessor had sufficient 1and or income for his support;
(c) The lease did not exceed fifty years;
(d) The lease took effect in possession and not in reversion.
By the Maori Land Laws Amendment Act, 1908, section 7, the Native Land Court is deprived (except as to the South Island) of the power of confirming alienations, and this power is transferred to the Maori Land Boards.
Trusts – From time to time more or less successful attempts have been made to deal with Native land by transferring the administration of it to trustees or other authorities on behalf of the Native owners. The chief instances of this are the following:-
1. Considerable areas of land are vested by statute in the Public Trustee as Native reserves in trust for the Native owners.
2. Under the Native Land Court Act, 1894, the owners of a block of Native land could be incorporated by an order of the Native Land Court, and the land could then be dealt with and alienated by an elected committee on the terms and in the manner prescribed by Order in Council. A similar provision for incorporation by order of a Maori Land Board was contained in the Maori Lands Administration Act, 1900.
3. Under various statutory provisions blocks of Native land became vested in Maori Land Boards on trust for the Native owners, with extensive powers of administration and alienation; e.g.,-
(a) By section 28 of the Maori Lands Administration Act, 1900, as amended by section 6 of the amending Act of 1901, and by section 20 of the Maori Land Laws Amendment Act, 1903, the owners of Native land might, in pursuance of a resolution passed at a meeting or them, transfer their land to the Maori Land Board, and the Board had power to lease or mortgage the land so vested in it.
(b) By section 8 of the Native and Maori Land Laws Amendment Act, 1902, the Governor might by Proclamation vest any Native land in the Maori Land Board as a site for a Native township, and the land was then to be held, administered, and disposed of accordingly in trust for the Native owners.
(c) By section 8 of the Maori Land Settlement Act, 1905, the Governor in Council might vest in the Maori Land Board any Native land situated in certain districts if, in the opinion of the Native Minister, those lands were not suitable for Native occupation. Lands so vested in the Board could be leased or mortgaged by it on behalf of the Native owners. By section 3 of the Maori Land Settlement Act Amendment Act, 1906, these provisions were extended to any land which in the opinion of the Native Minister had not been properly cleared of noxious weeds.
(d) By sections 8 and 9 of the Native Land Rating Act, 1904, it was provided that Native lands in respect of which judgment had been obtained against the owners for unpaid rates might be similarly administered by the Board.
(e) Under Part I of the Native Land Settlement Act, 1907, the Governor in Council may vest in the Maori Land Board any area of Native land which has been reported as not required for Maori occupation by the Commission referred to in the Preamble to that Act. Every area so vested in a Board shall be disposed of on behalf of the Native owners-one-half by way of sale on deferred payments, and the other half by way of lease for any term not exceeding fifty years, with compensation to the lessee for improvements.
(f) Under Part II of the same Act of 1907 the Governor might by Order in Council transfer to a Maori Land Board the exclusive management and control of any area reserved for Maori use and occupation by the aforesaid Commission. Thereupon that area became wholly inalienable by the Native owners, and the Board must dispose of the land by way of lease to Maoris only.
SUCCESSION TO NATIVE LAND
The first Act dealing with the succession to the property of Natives is apparently the Intestate Natives Succession Act, 1861. This is limited to intestacy and to freehold land. In such cases the land is to descend according to Native custom, instead of in accordance with the English law of primogeniture, which was at that time still in force. The successor obtains the land by means of the issue of a new Crown grant or by means of a conveyance executed by the Colonial Secretary.
In 1865 these provisions were repealed by the Native Lands Act, 1865, and the Native Land Court was given power to issue "testamentary orders" determining the succession according to Native custom of a Native dying intestate possessed of freehold lands. Every such order had the same effect as a will devising the land to the successors.
In 1873 these provisions were extended by the Native Land Act, 1873, to include not merely freehold land, but also customary land of which the title had been ascertained by certificate of title or memorial of ownership issued by the Court.
In 1876 was passed the Intestate Native Succession Act, 1876. This dealt for the first time with succession to the personal estate of intestate Natives, and gave power to the Native Land Court to determine who were entitled to succeed to such property according to Native custom, and who was best entitled to have the administration of the estate. The certificate so granted by the Native Land Court was made a sufficient authority to the Supreme Court to grant letters of administration of the estate in favour of the successors and administrators so nominated. Until the passing of this Act the succession of Natives to personal property was governed by the ordinary law.
In 1881this Act was repealed by the Native Succession Act, 1881. The power of the Native Land Court to appoint a successor to real or personal estate was extended to cases where the deceased left a will, whether formal or informal. Customary land of which the title had been ascertained is to descend according to Native custom; freehold land is to descend according to English law, except that marriages according to Native custom are to be recognized as valid. In 1882, however, Native custom was again substituted for English law in the succession to freehold land.
The Act of 1881 was repealed by the Native Land Court Act, 1886, but its provisions were re-enacted without substantial alteration.
In 1889, by the Native Land Court Act Amendment Act, 1889, the Native Land Court was empowered for the first time to grant administration of the personal estate of a Native, if the estate did not exceed £200. Till this date administration was granted by the Supreme Court on the certificate of the Native Land Court as to the succession.
In 1890, by the Native Land Laws Amendment Act, 1890, this principle was extended, and the Native Land Court was given the same powers as the Supreme Court of granting probate of wills and letters of administration of the estates of Natives.
In 1894, by the Native Land Court Act, 1894, the following provisions were made as to succession:-
(1) All successions to be according to Native custom (if any), and if not, then according to English law.
(2) The jurisdiction of the Native Land Court to grant probate and letters of administration is made exclusive.
(3) Notwithstanding any will, the Court may award sufficient land to any person who would have been entitled on an intestacy.
.In 1895, by the Native Land Laws Amendment Act, 1895, it was provided that the land of a deceased Native is not to vest in his administrator – that is to say, it is to pass directly to his successor by virtue of a succession order. It was also provided that no probate could be granted more than two years after the death of the deceased. Unwritten wills were abolished.
In 1901, by the Maori Lands Administration Act, 1901, the Court was empowered to award to the widow of a deceased Native a life interest in the real or personal estate of the deceased. No adoption was to be recognized for the purposes of succession unless the adoption had been registered in the prescribed manner by the Native Land Court.
MAORI MARRIAGE LAW
By Maori custom the contract of marriage was created by consent merely, without any formality of celebration, and polygamous marriage was allowed. Such customary marriages were recognized by law as sufficient for the purposes of succession to the estates of Maoris and half-castes, whether the estate consisted of land or personal property, and whether the land was customary or freehold. No such marriage, however, was valid for any other purpose.
On the other hand, marriages between Maoris were not subject to the requirements imposed by the Marriage Act, 1908. Maoris might, if they pleased, marry in accordance with that Act, but they were not obliged to do so. They were entitled, instead, to marry in accordance with the English common law, and by that law the only requirement is that the marriage must be celebrated before an episcopally ordained clergyman – that is to say, a clergyman of the English or Roman Catholic Church. By the Marriage Ordinance of 1842, indeed, it was provided that "all marriages solemnized by any minister of any Christian denomination who shall not have received episcopal ordination shall be as valid as if the said minister had received such ordination". This Ordinance, however, was repealed in 1891, apparently in forgetfulness of the fact that, though no longer required in respect of European marriages, it was still an operative enactment with respect to Maori marriages. Since 1891 Maoris must, in order to marry validly for any purpose other than succession to property, marry either in accordance with the full requirements of the Marriage Act or else in the presence of a clergyman of the English or Roman Catholic Church. It is doubtful whether a half-caste was not bound in all cases to marry in accordance with the Marriage Act: Matiu v. Monika (26 NZLR 642).
By the Native Land Act, 1909, all marriages between Natives are required to be celebrated either (1) in the same manner as a marriage between Europeans, or (2) in the presence of an Officiating Minister under the Marriage Act, but without the other conditions and formalities required by that Act. Marriages in accordance with Native custom, however, are still recognized as sufficient for the purposes of succession to Native land.
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