A Compendium of Official Documents Relative to Native Affairs in the South Island. Volume Two.
[judgement in claims of Kerei Taiaroa and others]
The Chief Judge gave judgment in the matter of the claims of Kerei Taiaroa and others, to Sections 401, 402, 403, and 404, of the township of Port Chalmers, and an unnumbered piece adjoining, alleged to be portion of the town belt. Mr. Macassey appeared for the Native claimants; Mr. Turton for the Crown; Mr. Haggitt, senior, for the Superintendent; and Mr. Harris for the Presbyterian Church.
The following is the judgment:—
This is a claim to land comprised in the Deed of Cession, signed by the chiefs of the Ngaitahu tribe, commonly called "Symonds's" or the "Otakou Deed," bearing date the 13th July, 1844. The deed purports to cede to William Wakefield, the agent of the New Zealand Company, in London, a large tract of country in the Middle Island; and contains reservations of certain pieces of land described therein to the vendors; but has no covenant or engagement on the part of the purchaser to mark off further reserves, such as is contained in the deed called the "Ngaitahu Deed." By operation of law (Mackintosh v. Symonds), the land so purchased became vested in Her Majesty and by Letters Patent, under the seal of the Colony, dated the 13th day of April, 1846, it was effectually page 238granted to the New Zealand Company, with the exception of the pleces reserved in the original oc[gap — reason: illegible]ssion to Mr. Wakefield.
The New Zealand Company was established by Her Majesty 's Royal Letters Patent, bearing date the 12th day of February, 1840; and obtained further powers by other Royal Letters Patent, dated the 4th August, 1844, and by an Act of the Imperial Parliament, passed in 1846, (9 and 10 Vic., c. 882). Neither of these instrument it before the Court, nor is the Statute printed in the edition of the Statutes at large, in the Supreme Court library here.
By virtue of another Act of Parliament, passed in the same year (1846) 9 and 10 Vic., c. 108), and of Royal Letters Patent, bearing date the 23rd day of December, 1846, and Royal Instructions accompanying the same (which Letters Patent and Royal Instructions purport to have been issued by virtue of the provisions of the last named Act), certain orders and regulations were issued and promulgated in reference (amongst other things) to the dealings with and appropriations of the Demesne Lands of the Crown within the Colony. These Royal instructions contained the following provisions:—
14. "No land of and belonging to ns in New Zealand shall, by us our heirs or successors, or by any such Governor in Chief, or other person on our behalf and on our authority, be alienated, either in perpetuity or for any definite time, either by way of grant, lease, license of occupation, or otherwise, gratuitously, nor except upon, under, and subject to the regulations hereinafter prescribed.
17. "The Governor, or Lieutenant-Governor of any such Province, with the advice of the Executive Council thereof, shall, in such charts as aforesaid, cause to be marked out and distinguished all such lands situate within and forming part of the Demesne of the Crown, as may appear best adapted for the site of future towns, and especially seaport towns, within the said Islands; or as the lines of internal communication, whether by roads, canals, railways, or otherwise; or as places fit to be reserved as quays, landing places, or otherwise, for the general convenience of trade and navigation; or as places of military and naval defence; or as the sites of churches, court houses, markets, hospitals, prisons, or other public edifices; or as cemeteries, or as places fit to be reserved for the embellishment or health of towns, or for the recreation of the inhabitants thereof, or otherwise for any purposes of public utility, convenience, or enjoyment in which either the whole population of the Province, or any large number of the inhabitants thereof may have a common interest, all of which lands shall be called and be known by the name of reserved lands."
By an Act of the Imperial Parliament, passed in the following year (10 and 11 Vic. c. 112), the foregoing provisions were suspended within the Province of New Munster, until the 5th July, 1850, and during such further time as should be directed by Parliament, and that numbered 14 was repealed entirely by Royal Instructions, dated respectively, 22nd December, 1847, 13th March, 1848, and 27th January, 1849. This Act provided that:—
Section 2. "All the Demense Lands of the Crown in the Province of New Munster, and all the estate and right of Her Majesty therein, or power and authority over the same or any part thereof, should, during the suspension of the said instructions, be absolutely and entirely vested in the New Zealand Company, in trust, for the purposes and subject to the provisions thereinafter contained; and during such period all the rights, powers, and authorities of Her Majesty in reference to the same, might be exercised and administered by the said Company, subject to the restrictions thereinafter contained." And it was further provided, that if the New Zealand Company, finding themselves unable to continue their proceedings with profit to themselves, and benefit to the Colony, should "give notice to one of Her Majesty's Principal Secretaries of State, within three calendar months next after the 5th day of April, 1850, by any instrument under the Seal of the Company, that they were ready to surrender the charters of the said Company to Her Majesty, and all claim and title to the lands granted or awarded to them in the Colony, all the powers and privileges of the Company, except such as should be necessary for enabling the Directors to receive certain sume of money, and to distribute the same among the shareholders and other persons entitled thereunto, and for enabling the Directors to adjust and close the affairs of the Company, should cease and determine, and all the lands, tenements, and hereditaments of the said Company, in the said Colony, should thereupon revert to and become vested in Her Majesty, as part of the Demesne Lands of the Crown in New Zealand, subject, nevertheless, to any contracts then subsisting in regard to any of the said lands."
And by Section 3 (relied upon by Mr. Haggitt), it is provided that it should not be lawful for the Company to sell or dispose of any of the lands thereby vested in them (other than and except such lands as might by the said Company be granted or conveyed in trust for, or be dedicated to, public purposes or uses), without consideration, or for any less consideration than the sum of 20s. for each acre.
In or about the year 1845, a number of persons, lay members of the Free Church of Scotland associated themselves, as reported by the General Assembly, of May, 1845, into a society called the Otago Association. This Society entered into a certain contract with the New Zealand Company (not produced before the Court), the object of which appears to have been to enable the Association to colonize a certain part of the Colony, comprising 144,600 acres of land, and including the land now under investigation. The Association issued regulations, or "terms of purchase," as they are called, on the 14th May, and 24th November, 1847, and others on the 13th April, 1848; for all of which other regulations were substituted by the New Zealand Company on 1st August, [gap — reason: illegible]1949, by order of the Court of Directors. By these regulations the prices of land were fixed, and it was provided that these prices should be charged on the estate of the Municipal Government, of the trustees for religous or educational uses, and of the New Zealand Company, in the same manner as on the 2000 properties intended for sale to private individuals. Clause 11 provided that reservations should be made, so far as practicable, of the sites of villages and towns, with suburban allotments adjacent, in the several page 239parishes and hundreds which were to be laid out, in accordance with the Government regulations on this head.
It was stated by Mr. Haggitt ia his argument, and by Mr. Cutten in his evidence—though not in any way satisfactorily proved to the Court—that under this provision, or under some provision contained in the previous terms of purchase, the piece of land which is without a number, included in the claim, was set apart and reserved as a town belt, or public reserve, for the citizens of Port Chalmers and the public generally. As this statement was not disputed by ihe Crown, or by the claimants, the Court will for the present assume this land to have been duly constituted a public reserve, previously to the year 1850, when the New Zealand Company expired.
Parliament made no such farther direction as is referred to in the Act 10 and 11 Vic., c. 112, and therefore the Royal Instructions previously mentioned as having been suspended by that Act in the Province of New Munster, revived and came into force again on the 5th July, 1850.
The Directors of the New Zealand Company, on the 5th day of July, 1858, gave to the Right Honorable Earl Grey, Principal Secretary of State for the Colonies, notice, in pursuance of the above quoted provisions of the Act 10 and 11 Vic., c. 112, that they were unable to continue their undertaking; and consequently all the lands, tenements, and hereditaments of the Company in New Zealand reverted to, and became vested in, Her Majesty, as part of the Demesne Lands of the Crown in New Zealand, subject, nevertheless, as aforesaid, to any contracts which were then subsisting in regard to any of the said lands.
Royal Instructions, dated the 12th August, 1850, after reciting (amongst other things) the existence of these contracts, revoked and determined so much and such part only of the 13th chapter of the said instructions as relates to the lands comprised in, or affected by, the aforesaid contracts between the New Zealand Company and the settlers at Wellington, Nelson, and New Plymouth, and the Associations of Otago and Canterbury, and so far as the same might be inconsistent with the said contracts respectively, or any part thereof. And Her Majesty declared that the said contracts respectively, or any amendments in such contracts which might thereafter be made, by and between Her Majesty, or parties on her behalf, lawfully authorised, and the said bodies respectively, should be in force as regards the lands comprised in or affected by the said contracts.
On the 8th August, 1851, Lord Grey, a Principal Secretary of State, forwarded to Governor Grey a copy of an Act passed by the Imperial Parliament, in consequence of the demise of the New Zealand Company, entituled "an Act to regulate the affairs of certain settlements established by the New Zealand Company in New Zealand," 14 and 15 Vic., cap 86. In this despatch Lord Grey says, "This Act has by no means determined all the questions that may arise with respect to these settlements in so satisfactory a manner as I could have wished. But inasmuch as the terms of purch we were held by the law advisers of the Crown to be binding on Her Majesty as contracts of the New Zealand Company, Her Majesty's Government did not consider it to be competent to them to, get rid, as fully as might perhaps have been desirable for all parties, of the impediments to uniformity of management of the Crown lands of the Colony which these contracts create, without the assent of the other parties to the contracts, namely—the land purchasers, which at this distance it was impossible to secure." We accordingly find that the Act makes no provision whatever for those parts of the New Zealand Company's settlements which are affected by the contracts of the Canterbury or Otago Associations, except that contained in Section 11. "Henceforth, in all cases falling within the provisions of the 51st section of an Act of the ninth and tenth of Victoria, entituled "an Act to grant certain powers to the New Zealand Company," a grant or conveyance by Her Majesty, her successors or assigns, shall have the force and effect in all respects as a conveyance by the New Zealand Company has, or would have had by virtue of the same Act, in case no such notice as aforesaid had been given, and the said Company had continued in the full exercise of their functions; and the powers by the same Act in reference to those cases conferred on a nominee or nominees of the said Company, approved of as therein mentioned, shall henceforth be exercisable by such person or persons as the Governor or Lieutenant-Governor, for the time being, of New Zealand, may from time to time appoint; and also all Acts done in pursuance of any such several powers by the party or parties for the time being entrusted with the execution thereof, shall be binding on Her Majesty, her successors and assigns." Now, this Act, apparently a long and important Act, is the one to which I have previously referred as not being accessible here. It is the 9 and 10 Vic., cap. 382, of which the title only is printed in the statutes at large. It is impossible, therefore, to say what the effect of the above enactment may be.
In the year 1852, the Act 15 and 16 Vic., cap. 72, commonly called "The Constitution Act," was passed. By this Act power was given to Her Majesty to make provision, by way of regulations to be contained in any charter to be granted to the Otago Association, for the disposal of the lands to which the terms of purchase relate so far as the same are still in force, and for varying from time to time such regulations, with such consent of the Association, as in such charter should be signified. And power was given to Her Majesty to delegate this and other powers to the Governor.
By Letters Patent made at Westminster on the 13th day of September, 1852, being a new Commission to Governor Sir G. Grey, his previous Commission, and the previously cited instructions, were revoked, and the instructions of 1846, were set up again, and were to remain vested in and be exercised by him as fully and effectively as if the same were set forth and especially granted to him ia these Letters Patent; provided that none of the powers, instructions, and authorities so renewed and granted should be repugnant to "The Constitution Act."
Instructions from Sir. J. Pakington, to Governor Grey, dated 15th December, 1852, contain the page 240following reference to the Otago Association:—"You will observe that although the terms of purchase of the Otago settlement have now expired, by reason of the Association's inability to sell the stipulated quantity of land; and although the legal control over the land has consequently devolved on Her Majesty, under the provisions of "The Constitution Act" (as to which I refer you to my despatch of even date herewith, respecting the Canterbury Association), it has nevertheless been thought by Her Majesty's Government advisable that the land should continue to be administered in general conformity with the terms hitherto subsisting, until the General Assembly shall otherwise determine."
It has not been suggested that any action was taken by the General Assembly, altering the legal or equitable status of the land claimed, or its legislative position previously to its being set apart, as alleged, for a Native reserve.
I have thus briefly glanced at the legislation, original and under delegated powers, affecting this land, which has been brought under the notice of the Court by the several Counsel, or which I have been able to discover with the limited means of information at the disposal of the Court here. Besides the Act to which I have referred, I can, in the Gazettes and elsewhere, see traces of instructions from Secretaries of State, and correspondence with the New Zealand Company, which would doubtless have important bearings on our case; but not being able to obtain these documents, and being under the necessity of arriving at some decision, the Court must arrive at the best judgment it can on the facts placed before it by the parties.
The whole of the pieces of land comprised in this claim are clearly and indisputedly at the present time vested in Her Majesty. But their position before this Court is at present various, though originally they were all fixed by Mr. Mantell, then Crown Lands Commissioner, as Native reserves, by the direction of Sir G. Grey, then Governor. Section 401 had been sold, but not granted, to a Mr, Williams, and, on Mr. Mantell's recommendation, was purchased by the Government from that gentleman for the purposes of this reserve; and a conveyance to Her Majesty has been taken from him, so that there is no question affecting this section.
Section 402 is alleged by the Presbyterian Church to have been lawfully reserved for them, previously to the reservation for the Natives; and as their case is not yet closed, this section will not be included in this judgment.
Section 403 and Section 404, are sections marked off in the original plan, and in the allotment book, as open for selection. They were never selected, and remained open and without incumbrance to the present day, except, of course, the alleged reservation as a Native reserve.
The other parcel unnumbered, is alleged and admitted to be part of the town belt; but whether it was ever effectually and legally made a public reserve has not been shown to the Court.
The Native Land Court has no jurisdiction over Demesne lands of the Crown, or granted lands, except under the Act of last session ("Native Lands Act, 1867"). The provision governing the whole of these proceedings, and creating our jurisdiction, is contained in the 11th clause, which is as follows (so far as concerns our case):—
1[gap — reason: illegible] In the interpretation and construction of the provisions of this Act, the expressions, "Native reserve" and "Native reserves," shall mean and include any land in the Colony of New Zealand which falls within one or other of the following descriptions:—
(5). Lands appropriated by the Governor for the use or benefit of any aboriginal Natives.
And the Act provides that in any case where, under this Act, the Court would not have had jurisdiction, it shall be competent to the Court to inquire into and determine any question affecting any title to, or interest in, any Native reserve which may be referred to it by the Governor.
As to Section 401, there being no objection on the part of any person to the Native claim, the judgment of the Court is that a Crown grant of Section 401, Port Chalmers, ought to issue to Horomona Pohio, Hoani Wetere Korako, Hori Kerei Taiaroa, and Honi Topi Patuki, and their successors, appointed under "The Native Land Act, 1865," in trust for all the members of their tribe (Ngaitahu) who are now, or may be hereafter, resident south of and including Kaiapoi, in the Province of Canterbury. That the estate granted should be absolutely inalienable for ever, except by lease for a term not exceeding 15 years, or for the purposes of settlement, for the benefit of the persons interested, or their successors appointed as aforesaid.
As to Sections 403 and 404—the Counsel for the Crown assents to the claim, but Mr. Haggitt, on behalf of the Superintendent, objects, and alleges that a stock-yard had been built on the place by him, and that he was in actual possession. There was no proof whatever placed before the Court to substantiate this allegation. The facts of the case are as follows:—The two sections were duly marked on the "Selection" plan, and entered in the "Allotment Book." They remained unselected until 1853, when Mr. Mantell, by direction of the Governor, chose them for part of a Native reserve, and marked them off in the book as such, informed the Natives that he had done so, and made a communication to the Governor, with a plan included, requesting his approval of the selection. On the 15th June, 1855, the following letter was addressed by the Colonial Secretary to the Acting Commissioner of Crown lands, Otago (Mr. Proudfoot):—