Hauraki Plains District: Te Awaiti

The strength of the prayer of the petitioners is that they be included.55

This time the Chief Judge (a different individual) felt that an Order in Council authorising

the Court to determine who should be the beneficial owners of Awaiti z should be issued.56 The Minister approved, and in February 1907 the Order in Council, under Section I4(10)

Native Land Act 1894, was issued.57

When the Court came to consider the matter in July 1907, it decided that the Order in Council was ultra vires and it had no jurisdiction."

After the Court hearing, an Auckland solicitor explained it had been thrown out because

Section 14 Subsection io only applies to land "heretofore" (prior to Native Land Court Act 1894) dealt with by the Court.

He therefore asked for the issue of an Order in Council under Section 15 Native Land Act 1894 to enable the Court to determine the beneficial ownership of Awaiti 2.59 The Chief Judge recommended this, adding that

It was held over in anticipation of legislation being passed last session enabling me to amend errors of the Appellate Court. Such legislation was not passed.°

The Under Secretary in the Native Department noted that

I am informed that, besides being the owner of No 2A (izoo acres), the Crown has since acquired No 2B (zoo acres) from Paora Tiunga. It would therefore appear that the only portion not sold is No zC (moo acres), which was awarded to Epiha Taha. Would you recommend the issue of an Order in Council in respect of this latter area only?61

The ChiefJudge agreed.

However, solicitors for those seeking to have the beneficial ownership determined did not agree.

Our Mr Blomfield understood from His Honour the ChiefJudge some time ago that the further Order in Council was made to apply to the whole block, notwithstanding the fact that the Crown had purchased a portion of it, so that if the Court found a trust, the beneficial owners might be able to claim from the Trustees a refund of any purchase money received by them from the sale to the Crown. We are afraid that if the contemplated Order in Council issues only for the moo acres, we will be barred from claiming a refund as to the portions sold to the Crown, as the Native Land Court would be without jurisdiction to deal with the matter.62

Hataraka Manuhuia Poihipi, Russell, to Native Minister, 24 November 1906. Maori Affairs Head Office file 1907/23. Suppoting Papers #C6.5-9.

56 ChiefJudge Native Land Court to Under Secretary Native Department, 14 January 2907, on cover sheet to file N 1907/23. Maori Affairs Head Office file 1907/23. Supporting Papers #c6.1o.

57 New Zealand Gazette 1907 page 564.

58 Hauraki Minute Book 55 pages 297 and 211-213. Supporting Papers #62.2 and 3-5.

59 EC Blomfield, Auckland, to ChiefJudge Native Land Court, 22 July 1907. Maori Affairs Head Office file 2907/23. Supporting Papers #05.21-24.

60 ChiefJudge Native Land Court to Under Secretary Native Department, 7 December 1907. Maori Affairs Head Office file 1907/23. Supporting Papers #c6.25-26.

61 Under Secretary Native Department to ChiefJudge Native Land Court, 13 December 2907. Maori Affairs Head Office file 1907/23. Supporting Papers #06.15-16.

62 Parr and Blomfield, Barristers and Solicitors, Auckland, to Under Secretary Native Department, 6 January 2908. Maori Affairs Head Office file 2907/23. Supporting Papers #C6.17-18.