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A compendium of official documents relative to native affairs in the South Island, Volume One.

Thursday, 10th September, 1868

Thursday, 10th September, 1868.

The Committee met pursuant to notice.

Present:—Major Atkinson, Mr. Cargill, Mr. Carleton, Mr. Haughton, Mr. Rolleston, and Mr. Tancred.

Minutes of previous meeting read and confirmed.

On the motion of Mr. Carleton, Resolved, That the Attorney-General's opinion of 30th August, 1866, and also that of 24th July, 1867, be appended to the evidence.

These opinions are as follows:—

1."As to the general question, I can only refer to my general opinion given on 17th January, 1866, which is with the papers. I may add, that the opinion was given before the grant was issued. I have conversed with Mr. Domett on the subject, and have referred him to his minute on Mr. Mantell's letter dated 24th November, 1852. In this minute he says, 'The Otago scheme was to end on the 22nd of November last.' If no charter has been given to the Association, the Governor can grant the land, I suppose.

"The Governor's note ordering the reserve to be made is on a letter of Mr. Mantell's, date April 1853; the note is dated June (and was, I presume, made in the same year): this was three or four months after the commencement of the Constitution Act here. That Act in section 78 recites the fact that certain terms of purchase, &c., had been issued by New Zealand Company, in Settlement of Otago, and such terms were in force, as contracts, on 4th July, 1850. The same section then recites the 10 and 11 Vict., and the notice given thereunder, by which the Company's land was transferred to Crown subject to contracts, and recites that provision should be made to enable Her Majesty to perform such contracts. The section then enacts that the Queen may make regulations for disposal of waste lands to be contained in a charter to be granted to Association of Lay Ministers of the Free Church. No charter was granted nor regulations made.

"Sir George Grey, under delegation, did make land regulations as to all Provinces but Canterbury and Otago. The Proclamation says, 'These regulations shall come into force in relation to all demesne lands in New Zealand not reserved to Canterbury Association or Otago Association, fifteen days after receipt of a copy.'

"It appears to have been thought, and I am disposed to think (so far as I can learn) properly so, that the Crown could not delegate to Governor power to make regulations. If this be so, under what power did the Governor act? I cannot learn. But assuming, as I think must be assumed, that on 4th. July, 1850, the land was set aside from sale, with intention of keeping it open for quay and other purposes, I think the Governor, even if he had the power to make reserves, was bound, I am disposed to think, in law, as a matter of contract; and if not bound in law, he ought certainly not to have been advised to affect this land by ordering it to be reserved for Native purposes.

2."As to second point, the Crown can take legal proceedings, by writ of scire facias, to set aside its patent when granted unadvisedly. If any private interest is affected, the Crown is bound of right to permit the use of the Royal name in repealing the patent. If the Crown alleges that this grant ought not to have been made, it may proceed to set it aside. If the Natives interested, or any other person for them, conceive that it ought not to have been, then such persons may, on petition, be permitted to proceed in the name of the Crown; but such persons must proceed on a legal claim—not a mere equitable claim, for the Crown cannot be compelled to execute a trust. I think, however, that the claim of the Natives is a legal claim, or nothing.
3."The grant itself has no such retrospective effect. I think, however, that the money ought to be paid to those who are now deemed entitled to the land. Clearly the Crown ought not to retain it as part of its revenue. I am disposed to think, as the Commissioner of Crown Lands has received it, and paid it into the Treasury, the money ought not to be taken out of the Treasury without the Governor's warrant, and that his warrant should not be given without the sanction of the Legislature.

"I do not think that the mere separation and name of the account under which the money has been paid makes any difference. This is not a case where a statute permits money to be kept at a separate account, and to be dealt with without specific appropriation.—J. Prendergast, 30th August, 1866."

"The land in Princes Street, commonly known as the Princes Street Reserve, is now vested by Crown Grant in the Superintendent of Otago (ex-officio), in trust for quays or other public buildings or public purposes. Certain moneys, as rent of the land received by the Commissioner of Crown Lands before the execution of the grant, but subsequent to date at which the right of the present holders of the grant accrued (if such right ever, accrued), are now in the Treasury. I am asked whether these moneys can be legally claimed by or be paid to the Superintendent or the Corporation of Dunedin.

"I am of opinion that if the reserve for quays, &c., was sufficiently made; if, in fact, that right which the Governor recognized by executing the grant existed prior to the execution of the grant, and at the time of the receipts of the rents, these rents ought to follow the grant of the land.

"However, there are doubts whether the present holders were entitled to the grant, and that doubt affects their title to these rents. Proceedings are threatened by certain Natives, with a view to obtaining cancellation of the grant. Under the circumstances, I think the Treasurer would not be justified in paying over these rents to the Superintendent of Otago, the present holder of the property, unless he, with the advice and consent of his responsible advisers, will undertake, on the part of the Province, to refund the moneys paid to the Colonial Treasurer, if and upon the invalidity of the grant being declared by a court of law.

"The Corporation of Dunedin has no claim whatever to these rents; the money can be paid only to the Province.—James Prendergast, 24th July, 1867."

page 172

On motion of Mr. Carleton, Resolved, That the Committee, having taken further evidence, including that of the Attorney-General, on the Report referred back to them by the House, are unable to see reason for departing from the conclusion at which they had previously arrived.

On motion of Mr. Carleton, Resolved, That the Chairman be directed to report accordingly.

On motion of Mr. Carleton, Resolved, That the Chairman be directed to lay the evidence on the Table of the House.

On motion of Major Atkinson, Resolved, That the Committee adjourn sine die.