The order to issue a Crown grant in favour of Penetaka Tuaia was then declared by the Solicitor General to be ‘ultra vires’ (that is, beyond the legal power or authority of the court).36 The Solicitor General argued that section 11 of the Native Land Amendment Act 1912 only empowered the court to report on the owners of the land to the Governor, and did not give the judge the power to make an order.37 Although Wilson argued that he did in fact have the power to make an order, the Chief Judge of the Native Land Court agreed with the Solicitor General that Wilson had gone beyond his powers. Both the Chief Judge and the Solicitor General were concerned about the legal procedure, and were not challenging the correctness of Wilson’s decision that the land should be granted to Penetaka. This was explained by the Chief Judge:
The Solicitor General does not say that a title should not yet issue, he says, “It may be as a matter of fact in this individual case the land in question was at some previous period lawfully set aside for Penetake”, but if so that should have been proved before your Court.38
The matter was resolved by Tudhope petitioning the Minister of Lands to pass special legislation for the case.39 A draft clause was prepared by Tudhope for inclusion in the Native Land Amendment Bill of 1918. It was common practice at that time for unusual cases to be included in what was referred to as the ‘washing up’ Act. The Minister of Maori Affairs, Herries, agreed to the clause, and it was accordingly passed through the Native Affairs Committee and Parliament, to become section 10 of the Native Land Amendment and Native Land Claims Adjustment Act 1918:
Whereas the records of the Native Land Court, Waiariki District, show the following five aboriginal Natives of New Zealand - namely, Mita Hamiora, Rikihana, Taukiwaho Ihaka, Te Tauawhi, and Hamiora Rahipere - to be the owners of the block of land called Allotment No. 210, Parish of Te Puna, containing fifty acres one rood sixteen perches, more or less, as successors to Penetaka Tuaia, deceased, the original sole owner, the title to the said land being shown on the said records as “Crown Grant”: And whereas the said first-mentioned five owners, relying on their title as shown in the Native Land Court, agreed to sell the said land to Thomas Plummer, of Tauranga, farmer, a conveyance to whom was on the fifteenth day of February, nineteen hundred and sixteen, duly confirmed by the Waiariki District Maori Land Board, subject to payment of purchase-money: And whereas after the said conveyance was signed it was ascertained that no trace of the issue of the Crown grant to Penetaka Tuaia could be found: And whereas on the nineteenth day of October, nineteen hundred and sixteen, application was made by the Minister of Lands, under section 11 of the Native Land Amendment Act, 1912, to the Native Land Court, to inquire and ascertain what persons should be included in the certificate of title to the said land and determine the relative interests so ascertained: And whereas on the second day of May, nineteen hundred and seventeen, Judge Wilson, after duly hearing the said application, made an order recommending the issue of a Crown grant to the said Penetaka Tuaia antevesting to the first day of January, eighteen hundred and seventy: And whereas doubts have arisen as to the powers of Judge Wilson to make such an order: And whereas it is equitable that effect should be given to the aforesaid conveyance to
36 Sharp and Tudhope to Native Owners of Te Puna 210, 17 December 1918, BCAC A187 Box 214 744 Lot 210 Te Puna, NA Auckland
37 Chief Judge to Judge Wilson, 18 July 1918, BCAC A187 Box 214 744 Lot 210 Te Puna, NA Auckland
38 Ibid
39 Sharp and Tudhope to Native Owners of Te Puna 210, 17 December 1918, BCAC A187 Box 214 744 Lot 210 Te Puna, NA Auckland
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