The Treaty of Waitangi; or, how New Zealand became a British Colony

by Thomas Lindsay Buick

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 Title 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 trespass or other injury thereto, or of recovering damages for any such trespass 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 trespass, or injury to such land." Sections 90 and 91 show that the customary titles are recognised: section 90 reads: "The Native Land Court shall have exclusive jurisdiction to investigate the title to customary land, and to determine the relative interests of the owners thereof." Section 91 is as follows: "Every title 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 title. At one time His Excellency the Governor had to sign a Crown grant and at another time a certificate of title.

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

(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 title 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 titles—the Native Land Court. At common law there may be an ownership 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 title 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 title of the Natives, or, thirdly that there is a Crown title 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 titles ascertained by the Native Land Court, and a title 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 title, 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 passed 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 titles 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 entitled 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 passing of the statute can disregard the rights so created, and exercise its pre-existing rights as if the statute had not been passed.