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

Enclosure in No. 50. — Opinion of the Hon. the Attorney-General in the matter of the Princes Street Reserves

Enclosure in No. 50.
Opinion of the Hon. the Attorney-General in the matter of the Princes Street Reserves.

I have again considered the question but see no reason to alter my former opinion, viz., that the land in question was duly reserved as a Native Reserve, and is under the operation of "The Native Reserves Act, 1856," nor do I see any ground upon which either the Provincial Government of Otago, or any municipal body constituted in Dunedin, or any private individual, can impugn such appropriation of the land.

It is clear that in 1852-53 the land was set apart as a Native Reserve with the direct sanction of the Governor, and I can see no sufficient ground for disputing the Governor's legal right so to appropriate page 135the land at that time. The rights of the New Zealand Company had devolved on the Crown by the surrender of the Company's charter in July, 1850. The right of the General Assembly had not come into existence under the Constitution Act.* Meantime the Governor was invested with all the rights and powers vested in the Crown or the Company, amongst others the power of setting apart reserves. I must add that it appears to have been distinctly in the contemplation of the founders of the settlement to make reserves for the Natives in like manner as for public purposes (see the 6th paragraph of the original Prospectus of Settlement of 1845). There is, it is true, evidence of an intention on the part of the New Zealand Company to set apart the land in question, forming part of the water frontage at Dunedin, as a public wharf or quay, which might be placed under the control of a municipal body, if and when such a body might be created. In pursuance of that intention, the Company's Surveyor was instructed, in laying out the town, not to lay off the water frontages in allotments for purchasers. But in my opinion nothing done by the Company operated so as to limit their discretion as to the appropriation of the land for any other than such intended purpose. The intention, however clear and express, so far as I can judge, never passed into the form of a contract binding the Company to appropriate this particular space of water frontage for the specific purposes of a wharf or quay. On the contrary, the general course of the Company's operations in founding the settlement shows that an almost unlimited discretion in such matters was left to and exercised by them. No individual purchaser under the Company had in my opinion a claim for specific relief in this matter under any contract, express or implied. Nor could the aggregate body of settlers represented by the Otago Association have asserted any claim against the Company, for, as between them and the Company, the only engagement which the Company entered into was of a general kind, viz., that reserves should be made for public purposes.

There being therefore no equitable condition binding the discretion of the Company in this matter when the Company surrendered its charters, the land devolved to the Crown unencumbered with any such condition. Nor can it be said that the Province has any right in the matter; the Province was not in existence at the time the reserve was set apart; nor could it be said that it succeeded in any way to the equities, real or supposed, of the original settlers. It is a new and distinct political organization.

For these reasons, I am of opinion that the validity of the reservation of the land in question made for the Natives by Governor Grey in 1852-53 cannot now be impugned, and that the land is subject to the operation of "The Native Reserves Act, 1856."

I recommend, however, that nothing be done to preclude the Provincial Government of Otago from submitting any case on the other side they may have, or believe they have, to the judgment of the General Assembly which is on the point of meeting.

29th June, 1865.

Henry Sewell.

* I may note that a variety of transactions which it would be highly inexpedient to disturb rest upon the same foundation.—H. S.