A Compendium of Official Documents Relative to Native Affairs in the South Island. Volume Two.
The Governor in Council recognized and acted upon this engagement; for, in 1865, we find an Order in Council, made under the Native Reserves Acts, appointing Mr. Strode a Commissioner to administer the Port Chalmers reserve, and the evidence is clear that there was, at the time, no other Native reserve at Port Chalmers, except the one now before the Court. And it was proved in evidence by Mr. Cutten, that the Provincial Government, a local branch of the Government of the Colony, had undertaken to pay rent to Mr. Strode, as tenants of the place, though it was not shown that they had ever paid any. These facts constitute a very strong case; and in the judgment of the Court, no grounds whatever have been shown to justify the Court in saying that the Governor was not justified in doing what he has done. It is not necessary to enter minutely into the question of authority, especially when the acts done are done by the Government, until the prima facie case has been upset, for the rule is omnia bene et ritê acta prœsumuntur donec probetur in contrarium. Moreover, in my judgment, the power given to the Governor by the 11th clause of "The Waste Lands Act, 1858," was expressly conferred, to enable him to protect the honour of the Crown in cases of this sort. That provision is in tha following words:—"And whereas it is proper and expedient that power should be given to the Governor to fulfil engagements heretofore made on behalf of Her Majesty, and also to make reserves for certain public purposes within the Colony; Be it therefore further enacted, that it shall be lawful for the Governor at any time to fulfil and perform any contract, promise or engagement heretofore made by or on behalf of Her Majesty, and whereof there is evidence in writing, with respect to any allotment or parcel of land within the Colony, and any Crown grant made in pursuance of any such contract, promise or engagement shall be valid."
Even if grave doubts had been created by the opponents as to the authority of the Governor to set apart this land for the Natives, the Court would still have felt itself compelled to say that this reservation is a contract, promise, or engagement coming completely within the terms of "The Waste Lands Act, 1858," which the Crown is bound to fulfil.
The judgment of the Court, therefore, is that a Crown grant of Sections 403 and 404, of the Town of Port Chalmers ought to issue to Horomona Pohio, Hoani Wetere Korako, Hori Kerei Taiaroa, Honi Topi Patuki, and their successors, appointed under "The Native Lands Act, 1865," in trust for all those members of the 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 purpose of settlement for the benefit of the persons interested, or their successors appointed as aforesaid.
As to the unnumbered piece, parcel of the town belt, the Superintendent is the possible grantee of this piece of land under "The Public Reserves Act;" that is to say, that will be his position if the town belt of Port Chalmers has been legally and validly reserved. But, as before stated, no sufficient proof has been given to the Court that this has been done. But assuming, for the purpose of this case, that the power of making this reserve has been well executed by the proper authority, in the judgment of the Court, the prima facie case established by the claimants has been upset. The argument of Mr. Macassey as to the effect upon the Crown of the terms of purchase of the Otago Association, and of the other contracts to which it succeeded as inheritor of the lands and obligations of the New Zealand Company, was very able, but is one that the Court cannot sanction. The dedication of the town belt would (if validly done) undoubtedly form part of the contract with the purchasers of land in Port Chalmers, and Mr. Macassey has not shown, and the Court has failed to discover any power in the Governor to alter a reserve once validly made, or to change its objects and purposes. All the statutes and Royal Instructions which have been quoted appear to be clear on these particulars, viz, that the Governor, New Zealand Company, or Otago Association (subject or not to approval by higher authority), might make reserves for public purposes; that the lands sold were sold on the faith of these reserves having been or having to be made; and that no power existed afterwards to divert them from such purposes. This would appear to be a principle of simple fairness, and very clear provisions would be required to constrain a Court of Justice to refuse to recognize and interpret it. There is no doubt that the Governor, and the Governor in Council, and the Commissioner of Crown Lands, subsequently did all they could to make this land a Native reserve, but it was, on the above asumption, too late. Qui prior tempore potior est jure, is the maxim. And this clear principle of justice was strongly, though almost unnecessarily, affirmed in the legislation of the General Assembly on the subject of Native reserves.
"The Native Reserve Act, 1856," says:—
"Nothing in this Act contained shall have the effect of removing any invalidity or curing any defect in any grant or other conveyance made or issued before the passing of this Act, under which any lands may have been granted or issued to any person or persons for religious, charitable, or educational purposes, for the benefit of the aboriginal inhabitants: Provided also that nothing in this Act contained shall extend or be implied to extend, to give validity to any appropriation or setting apart of page 242any lands for such purposes as aforesaid, which have been heretofore so appropriated, or set apart in contravention of any terms of purchase, or contracts affecting such land."
Nor would the fact that the Governor was made aware at the time, that this land was part of the town belt, alter the legal position of the question, for the Governor has, and legally exercises, only such powers as are conferred upon him by the Acts of the local Parliament, or Acts of the Imparial Parliament, or Letters Patent, or Instructions issued to him under the authority of Imperial Acts. He has no original authority, (Hill v. Bigge, Moore, Priv: C Rep.), nor is it competent to him to make grants ex certâ scientiâ et mero motu, in the ancient signification of that phrase, as might have been done at one time by the Crown in England. The lands of the Colony can be dealt with by the Governor, as by all inferior officers, in manner provided by the law, and in no other manner.
Nor do I think that the before quoted clause of "The Waste Lands Act, 1858," ought to apply to a case of this character. The provision or engagement made by the Governor was not in my judgment, one within the contemplation of the framers of that provision; and if a grant were issued, and the proceeding of sci. fa. were taken to repeal it, I think that it could not be maintained, but would fail as being, in the technical phrase, "in deceit of the Crown," prior and paramount equities and interests existing, supposing, as I have assumed, that the land has been legally dedicated. The Court is, therefore, of opinion that it cannot order a grant to the claimants of such part of this Native reserve as is comprised within the town belt of Port Chalmers. It is scarcely necessary to repeat that this decision is given on the assumption that the town belt was well and effectually set apart. As before remarked, this legal dedication has not been proved to the Court; but in all probability it is capable of proof. The Court, therefore will, for the present, refrain from making any final decision, but will leave it open for the opponents or claimants respectively, after three days' notice to the other side, to move the Court, at a future sitting, to dismiss the case, on production of deficient evidence, or to order a grant in default of such evidence being produced.