Amendment Act 1912, for the court to ascertain which person should be included in the list of owners for the land. Section 11 read as follows:
Where any Crown land has been set aside or reserved for the use or benefit of Natives, or where it is proposed to so set aside or reserve any such land, the Court shall have jurisdiction, on the application of the Minister of Lands, to inquire and ascertain what persons shall be included in the certificate of title or other instrument of title of that land, and to determine the relative interests of the persons so ascertained, and the Court shall report its findings to the Governor.32
The application was heard before Judge Wilson on 2 May 1917.33 At the hearing Tudhope explained that the successors to the land, according to the Native Land Court records, had sold lot 210 to Thomas Plummer, but now it had been revealed that the original Crown grant had never been issued. Tudhope asked the court to declare Mita Hamiora, Rikihana, Taukiwaho Ihaka, Te Tauawhi, and Hamiora Rahipere as the owners of the land.
This was objected to by Te Potaua Tangitu, who argued that those persons listed as successors in the 1893 succession order were those who had been living on the land at the time. He said that they should be present at the hearing to argue their claim to the land. This raises the question of the intended purpose of the Crown grant to Penetaka. It may be that it was intended to grant him the land in trust for the hapu, or other grouping, occupying the area. In contrast, the 1896 succession order was granted in favour of Penetaka’s legal heirs, and may not have taken into account the claims of other beneficial owners in an implied trust.
Judge Wilson made the following judgment:
Notes on the file show that Penetaka Tuaia is the sole owner of the land and two succession orders have been drawn up in favour of different people but the first in date (19th October 1893) was apparently cancelled and has never been signed nor completed. The second succession order is dated the 2nd June 1896 and it has been sealed and signed and succession orders have since been made to three of the persons named in the order of 2nd June 1896. Further the Board believing in the good faith of these persons; and as their successors have confirmed a sale of the Block and as the order of 2nd June 1896 comes within the provisions of Section 38/1909 we see no reason for setting aside the names produced by Mr Tudhope. Apparently the original Title should have been issued to Penetaka Tuaia and we are of opinion that is the proper course to pursue in this case.
Ordered therefore that a Crown Grant be issued in favour of Penetaka Tuaia antevesting from 1st January 1870.34
The judge’s reference to ‘notes on file’ that showed Penetaka to be the owner of the land was to notes written in Native Land Court title searches at the time the applications for succession were being made. These notes, apparently written by a clerk of the court, said that Penetaka was ‘Sole owner. Title not issued yet’, and ‘Sole owner. Previous Order Cancelled.’35
32 Section 11 of the Native Land Amendment Act 1912
33 Extract from Tauranga Minute Book, vol 10, fol 6, 2 May 1917, BCAC A187 Box 214 744 Lot 210 Te Puna, NA Auckland
34 Ibid
35 Judge Wilson to Chief Judge, 27 May 1918, BCAC A187 Box 214 744 Lot 210 Te Puna, NA Auckland
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