Object #1013720 from MS-Papers-0032-0038
From: Native Minister - Native Reserves Act, Reference Number MS-Papers-0032-0038 (47 digitised items). No Item Description
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28th. June 1873.
My dear Sir William,
I have received your note and Memo. of suggestions in reference to my draft, Native Reserves Act; and I now venture to offer a few remarks upon those suggestions, taking them in the order in which they come in the Memorandum.
1. My reasons for leaving it to the Governor to fix the date at which the existing laws should be repealed within any District, was, that as it will be necessary to create machinery within each district for the purposes of the new law, it is not expedient that existing laws should be abolished, until the machinery for working the new one is ready.
2. The proposed alteration in section 6 is an improvement.
3. Section 13 appeara to be misunderstood. It may be that, in the case of some of the Trust estates, there is an outside power (if I may use the term), of altering or varying existing trusts; and I thought it better that a power should, for the future, be exercised by the Assembly only. The clause does not reserve, in the ordinary sense of such a reservation, a power of alteration to the Assembly, but declares that no alteration shall be made except by the Assembly. If, with this explanation, the clause is still considered objectionable, it can be struck out without injuring the Act.
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4. The combination of sections 17 and 18 can easily be effected if desirable.
The nature of the Regulations proposed to be made under Section 20 seems to be misapprehended. It will be observed that the power to regulate, applies :-
(a) To the management and administration of the trust estates (qua"estates"), subject to the special provisions of the Act.
(b) To the mode of application and expenditure of the reserves, arising from the trust estates (qua"revenues"), but not inconsistently with any declared trusts or purposes.
Now under this power, the Governor could, if desirable, from such trust estates as are mentioned in the 13th. Section of the Bill submitted to me, devote the revenues derivable, to any of the purposes indicated in that section, or to any other purpose which might, from time to time, appear desirable; whilst in the case of estates, in respect of which trusts have been actually declared, the power of regulating cannot be exercised in a manner inconsistent with, or repugnant to such trusts. It may be as well to amend the 20th. Section, by introducing the words "if any" after the words "trusts of purposes" in the 8th. line, and adding the following proviso. "And provided also that no part of any reserve (Native) or of the revenues arising from the same, shall in or by such regulations be made applicable otherwise than for the benefit of the person or persons for the time being beneficially interested therein respectively."
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I have assumed that in dealing with the power of making regulations, the Governor in Council would consult, as far as could properly be done, the feelings (rather than the wishes) of the cestius que trust, and I have also assumed that it would be quite safe to intrust him with its exercise. Indeed (except as regards the special purposes indicated) the power given to the Governor by the 13th. Section of the Bill submitted to me, is quite as unfettered as that in the 20th. Section of my Bill.
It has puzzled me a good deal to learn how the 14th. Section on of the former can be satisfactorily acted upon. Is the Governor to exercise any discretion as to his approval of any proposal submitted to him? If not, why consult him? If he is to exercise a discretion, and happens to disapprove, what then? How are the wishes of the cestius que trust generally to be ascertained? How, in the cases of infants, married women, and others unders any disability? Must the suggestions be the result of an unanimous wish? If not, how is the trustee to be freed from his obligations to those whose wishes are not consulted? The Act, moreover, is silent as to what is to take place on approval; but I presume it was intended in such case that the trustee should act accordingly. But all this may be effected under the power of regulating given by the 20th. Section of my Bill, so far as it may be wise or legitimate to follow such a course.
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I assumed, moreover, that the Regulations would be well considered and would result from conference with, and the recommendations of the trustees themselves, and would be promulgated in Maori
as well as in English. My intention was to supply a simple machinery, which could be applied to all the varying classes of trusts.
6. Section 24 will be amended as suggested.
7. Section 29 same.
8. Sections 34 to 40. There has been much expensive litigation in consequence of the system of referring to Acts and declaring them to apply "so far as the circumstances of case will permit". No later than the last sitting of the Court of Appeal, a case was argued as to the applicability of the Protective Clauses of "the Justices of the Peace Protection Act 1866" to the case of a breach of Contract by a Superintendent; and the Judges deprecated the system of incorporating parts of Acts by reference. It appeared to me better to introduce into this Act clauses similar to those in the Justices Protection Act, altering the language so as to suit the circumstances, than to incorporate the latter by reference. I think it would not be well to exclude the jurisdiction of the District Court altogether, but it will be observed that I left this to the option of the trustee by Section 37. I assure you that the plainer the language in which criticisms on my work, is put, the better I like it; and I am quite sure that
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my own observations above, require much more indulgence than anything either in your letter or in the memo. accompanying it. I should indeed feel much obliged for any further observations which you could kindly make or offer, after reading this letter.
I remain, etc. (Signed)
Wm. Thos. Locke Travers.
To:- Sir Wm. Martin. Auckland.
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