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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Port Chalmers Reserve

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Port Chalmers Reserve.

Dunedin, May 26th, 1868.

F. D. Fenton, Esq., Chief Judge; and Henare Pukuatua, Arawa Chief Native Assessor.

This is a claim to land comprised in the deed of cession, signed by the chiefs of the Ngaitahu tribe, commonly called "Symond'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 granted to the New Zealand Company, with the exception of the pieces reserved in the original cession 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 Letters Patent, dated the 4th August, 1844, and by an Act of the Imperial Parliament, passed in 1846 (9 and 10 Vic., c. 382). Neither of these instruments is 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 103), 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 us 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.

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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 land situate within and forming part of the lands of the Crown, as may appear best adapted for the sites 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 demesne 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, 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 sums 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 reg="company">com-page 45pany 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 colonise 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, 1849, 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 religious or educational uses, and of the New Zealand Company, in the same manner as on the 2,000 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 parishes and hundreds, which were to be laid out in accordance with the Government regulations on this head.

It was stated by Mr. Haggitt in 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 the Crown, nor by the claimants, the Court will for the present' assume this land to have been duly constituted a public reserve up to the year 1850, when the New Zealand Company expired.

Parliament made no such further 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, 1850, gave to the Right Honourable Earl Grey, Principal Secretary of State for the Colonies, notice, in pursuance of the above-page 46quoted 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 thirteenth 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 purchase 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 fifty-first section of an Act of the ninth and tenth Victoria, entitled '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 page 47Company 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 recited 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 specially granted to him in 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 following 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 Constitutional 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.

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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 indisputably 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. Sec. 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.

Sec. 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.

Sec. 403 and Sec. 404 are sections marked off on the original plan, and in the allotment book, as open for selection. They were never selected, and remained open and without encumbrance 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 Lands 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):—

"11. 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 cases 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.

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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 Hone 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 purpose of settlement, for the benefit of the persons interested, or their successors appointed as aforesaid.

As to secs. 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 stockyard 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 his selection. On the 15th June, 1855, the following letter was addressed by the Colonial Secretary to Acting Commissioner of Crown Lands, Otago (Mr. Proudfoot):—

Colonial Secretary's Office,

Auckland, June 5th, 1855.


—In accordance with the request contained in Mr. Commissioner Mantell's letter of the 4th December last, I have the honour to enclose herewith certified plans of Native Reserves at Dunedin and Port Chalmers, as enclosed in his letter of the 18th April, 1853, to the Civil Secretary, in order that they may be duly recorded, as approved by His Excellency.

I have, etc.,

(Signed) Andrew Sinclair,

Colonial Secretary.

The Acting Commissioner of Crown Lands, Otago.

The Governor in Council recognised 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 page 50justify 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 primâ facie case has been upset, for the rule is omnia bene et ritê acta præsumuntur 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 the 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 secs. 403 and 404 of the, Town of Port Chalmers ought to issue to Horomona Pohio, Hoani Wetere Koraka, Hori Kerei Taiaroa, Hone Topi Patuki, and their successors, appointed under the Native Land 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 purposes 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 primâ 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 us inheritor of the lands and obligations of the New Zealand com-page 51pany, 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 in these particulars—viz., that the Governor, New Zealand Company, or Otago Association (subject or not to approval of 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 provision would be required to constrain a Court of Justice to refuse to recognise 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 assumption, 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 Reserves 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 assured 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 any lands for such puposes 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 Imperial 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 written 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 page 52within 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 permanent 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 the deficient evidence, or to order a grant in default of such evidence being produced.