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The Pamphlet Collection of Sir Robert Stout: Volume 77
The Privy Council Judgment
The Privy Council Judgment.
I propose now to show that many of the statements of fact and of law in the judgment of the Privy Council have been made without a knowledge of our legislation.
1. "As the law then stood" (that is, in 1848), "under the Treaty of Waitangi the chiefs and tribes of New Zealand, and the respective families and individuals thereof, were guaranteed in the exclusive and undisturbed possession of their lands so long as they desired to possess them, and they were also entitled to dispose of their lands as they pleased, subject only to a right of pre-emption in the Crown."
It is an incorrect phrase to use to speak of the treaty as a law. The terms of the treaty were no doubt binding on the conscience of the Crown. The Courts of the colony, however, had no jurisdiction or power to give effect to any treaty obligations. These must be fulfilled by the Crown. All lands of the colony belonged to the Crown, and it was for the Crown under letters patent to grant to the parties to the treaty such lands as the Crown had agreed to grant. The root of title being in the Crown, the Court could not cognise native title. This has been ever held to be the law in New Zealand. (See Regina v. Symond, decided by their Honours Sir v. the Bishop of Wellington, decided by their Honours Sir J. PrenWilliam Martin, C.J., and Mr. Justice Chapman, in 1847; Wi Parata
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dergast and Mr. Justice Richmond in 1877, and other cases). Nor did the Privy Council in Tamaki v. Baker (1901) entirely overrule this view, though it did not approve of all the dicta of the Judges in Wi Parata's case. There are three ordinances of the New Zealand Parliament dealing with the subject. These enactments are in accordance with the judgments in the New Zealand cases referred to.
"That all unappropriated lands within the colony of New Zealand, subject, however, to the rightful and necessary occupation and use thereof by the aboriginal inhabitants of the said colony, arc, and remain Crown and domain lands of Her Majesty, her heirs and successor and that the sole and absolute right of pre-emption from the said aboriginal inhabitants vests in, and can only be exercised by Her said Majesty, her heirs, and successors."
"All lands within the colony which have been validly sold by the aboriginal natives thereof are vested in Her Majesty, her heirs, and successors, as part of the demesne lands of the Crown."
"If any person shall after the passing of this Ordinance, purchase, or by writing or otherwise agree to purchase any estate or interest in land from any person of the native race, or shall by writing or otherwise agree with any such person for the purchase of the right of cutting timber or other trees, or the right of mining, or of the right of pasturing, or for the use or occupation of land; and also if any person who shall not hold a license from the Government for that purpose shall after the passing of this Ordinance, be found using or occupying any land not comprised within a grant from the Crown, either by depasturing any sheep or cattle thereon, or by residing thereon or by erecting any house or building thereon, or by clearing, enclosing, or cultivating any part thereof, or who shall be found without such license as aforesaid to have cut timber or other tress thereon, or to have gotten any mineral therefrom every such person shall upon conviction of any of the offences hereinbefore mentioned forfeit and pay any sum not less than £5 nor more than £100, to be recovered in a summary way," etc.
There were further provisions for a second penalty if the person remained in possession after conviction, and that nothing in the Ordinance was to be construed to take away or to affect any other proceeding that might be taken against persons purchasing or using land not granted by the Crown. The Royal Charter of 1846 and the Instructions issued therewith, which were both authorised by the Imperial Statute, 9 and 10, Vict., Chap. 103, contained provisions similar to these New Zealand Native Lands Ordinances. See section 14 of the Charter, and Section 11, of Chapter 13 of the Instructions.
If their Lordships had known of these New Zealand statutes and Instructions, they would not, I believe, have stated what I have just quoted from their judgment. They would, on the contrary, have said that the natives were not entitled to dispose of lands that had not been granted to them by Crown Grant or Letters Patent.
"It was not until 1852 that it was made unlawful for any person other than Her Majesty to acquire or accept land from the natives; 15 and 16 Vict., 72, s. 72."
This also has been penned without knowledge of the statutes and instructions already quoted. The wrong section of the Constitution Act is referred to. It was not 15 and 16 Vict. c. 72 s. 72 that prohibited dealings in what wore called Maori lands, but sec. 73.
"The founders of the charity therefore were the native donors. All that was of value came from them. The transfer to the Bishop was their doing."
No doubt the Crown had agreed to reserve Witireia for the Ngatitoa tribe, and the letter quoted was a consent of the tribe to give up the occupancy of this reserve. In that sense, and in that sense only, was it the tribe's gift. The fee-simple was in the Crown, and the Crown gave that to the Bishop. The legal title came from the Crown, and in that sense the Crown was the donor.
"When the Government had once sanctioned their gift, nothing remained to be done but to demarcate the land and place on record the fact that the Crown had waived its right of pre-emption. That might have been effected in various ways. The course adopted was to issue a Crown grant. That perhaps was the simplest way, though the Crown had no beneficial interest to pass. After all, it was simply a question of conveyancing as to which the native owners were possibly not consulted."
Here, again, their Lordships are not aware of our statutes dealing with the natives' occupancy of lands. The title, being in the Crown, could not have been conveyed to the Bishop save by the Crown.