His Honor the Judge and the Native Assessor took their seats at ten o'clock. Mr. Maxwell again acted as Interpreter; and Mr. Mackay, Native Commissioner, was present. Mr. Macassey appeared for the various Native claimants, Mr. Turton appeared for the Crown, and Mr. Haggitt, senior, for the Provincial Government.

The locus standi of Counsel.

The Judge said that the question first to be decided was the right of counsel to appear on behalf of the Crown, and of the Provincial Government. He would hear argument on the point.

Mr. Haggitt was understood to say that there were two special cases in which he appeared for the Provincial Government—the Lighthouse reserve and the Prince's-street reserve. He pleaded a right to appear in these cases. By the 12, 13, 17, and 43 Sections of "The Marine Boad Act," powers were delegated to the Superintendent to define the limits of wharfs, quays, &c., besides having general power under the Act. The 75th Section of "The Native Lands Act," empowered the Governor to lay off roads through Native lands, provided the power ceased within ten years from the issue of the Crown grant, and this power was delegated to the Superintendent. The Provincial Government had paid rent to the Maoris for a portion of the Pilot reserve; and this, he contended, gave him a locus standi. He also alluded to the lands being held in trust, to the Provincial Government deriving revenue from them, and to his having been instructed by the Commissioner of Crown Lands, who was also Chairman of the Waste Land Board, and as such administrative officer of the revenue derived from lands.

Mr.Macassey said that it would be understood that he had no personal objection to counsel appearing for the Provincial Government; but as the matter was put forward as a matter of strict right, he was bound to oppose it. With regard to the general right urged, that of delegation, delegation came from a superior power; but the power that delegated was the only one that had a right to set up a claim. He would grant that, with regard to the Prince's-street reserve, the learned counsel would have a right to appear; but, even then, it could only be for the purpose of ousting the jurisdiction of the Court. With regard to the Lighthouse reserve, the Superintendent possessed only delegated powers, not power inherent or by statute law. In the cases, Robinson v. Reynolds, and Every v. Reynolds, it had been held, upon the question as to whether the defendant, having certain powers delegated, could do certain things, that the power remained in the hands of the superior body —it remained the power of the principal, not the agent. He contended that the Provincial element could have no position so long as the superior body—the Crown—was represented.

Mr.Turton followed up the same argument. He contended that the Commissioner of Crown Lands' duties were defined, and that, under "The Crown Lands Act, 1862," he was a General Government officer. That being the case, be must, if represented at all, be represented by a nominee of the General Government. By "The Marine Board Act," the management and control of reserves for lighthouses were vested in the Governor.

Mr.Haggitt, in reply, pointed but that Sections 31 and 32 of "The Marine Board Act," gave especial powers to the Superintendent to define the limits and boundaries of wharfs, &c.

The Judge said he could well understand that persons using the wharfs paid money to the Provincial Government, but the reason could not apply to lighthouses which were for the benefit of persons who frequently never came near the place. He asked as to the cost of the erection of the lighthouse.

Mr. Turton said he believed the lighthouse had been erected at the cost of the Provincial Government, and had not been purchased by the General Government.

The Judge said that he could not find that the Council for the Province had a locus standi in reference to the Lighthouse reserve; but he would admit him to watch the interests of a body which had expended money on the land. This did not affect the general question; the admission was made as in the case of an individual having spent money on another man's property.

Mr. Turton said that he had just been informed by Mr. Cutten that there was a Crown grant for this very land. Mr. Cutten had gone for it, and for the Crown grant of the Prince's-street reserve.

The Judge: It is very much to be regretted that this information was not given before. It would have saved two hours' argument. There certainly was a want of care in bringing the matters before the Court.

Mr. Haggitt said it was not known that these claims would be made.

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The Judge said that it should have been, and preparation should have been made. The claim had been advertised in the Provincial Government Gazette for weeks.

Mr. Haggitt: In Maori, your Honor.

The Judge: No, in English. There certainly has been carelessness. The representative of the Attorney-General is present, and perhaps he may feel it his duty to take notice of it.

While the Court was waiting for the production of the Crown grants, His Honor retired. Upon resuming his seat, he gave judgment as to the general right of counsel to appear on behalf of the Provincial authorities. He said that by an Act of the General Assembly, the land had, in 1854, been handed over to the several Provinces, and Ordinances passed dealing with those lands. But it was found that the Crown had no intention of assenting to that Act, there was no intention of allowing the lands to pass out of the hands of Her Majesty. "The Waste Lands Act" left in the hands of the Crown the power to fix the price of land, to appoint and remove officers, and to fulfil or perform any contract made on behalf of Her Majesty. The next Act was "The Land Revenue Appropriation Act, 1858," which provides what was to be done with accruing revenue, appoints receivers of that revenue, and enacts that it should be paid over to the respective Provinces, subject to warrant from the Governor. Next came "The Crown Grants Act, 1862," No. 2, which bore much on the present case. It enacted that it should be lawful for the Governor, at any time, to fulfil any contract, promise, or engagement heretofore made with the Natives, with reference to land ceded on the faith of such promise or engagement. "The Crown Lands Act, 1863," gave great powers to Commissioners, but it did not affect the question, as they were Crown servants. By "The Otago Waste Lands Act, 1866," the Superintendent and Local Boards were employed in the administration of "The Land Act;" but the money was still to be paid to the Receiver of Land Revenue, and was the property of Her Majesty, until the Governor had issued certain warrants. The Act had been carefully drawn up, and by it all powers were vested in the Governor. The result was that Her Majesty was, and always had been held the owner of the soil, and he could not see that the Superintendent had a locus standi. The Commissioner of Crown Lands would have, but that the representative of his superior was present. They might, however, act in concert.

The Prince's-street Reserve.

The application of Teoti Kerei Taiaroa and Timoti Karetai, for the investigation of matters relating to this reserve, was considered. Mr. Haggitt pleaded, as an objection to the Court's jurisdiction, that the land in question was under Crown grant.

The Commissioner of Crown Lands produced the Crown grant. The land named in it was defined; and Teoti Kerei Taiaroa admitted that it was the same land, respecting which application had been made.

The Interpreter was then instructed to state that the application was dismissed, and that the applicants would have to go to the Supreme Court.

The Lighthouse Reserve.

The application of Teoti Kerei Taiaroa, Korako, Turumaka, Karetai, and others, to have the matters relating to the Pukekura reserve investigated, came on for hearing.

Mr. Haggitt said he found the Crown grant had been issued to the New Zealand Land Company. He therefore, left the case in the hands of the counsel for the Crown.

Mr.Turton said that the title of the Crown was a Deed of Sale, made in July, 1844, by the chiefs and men of the Ngatihu tribe, by which they sold to William Wakefield, as agent for the New Zealand Land Company, certain lands, reserving to themselves particular portions of it. That deed was lost; but he produced a copy of it, attached to which was a map, by which the boundaries were defined. He proposed to give evidence to obtain the admission of the copy. He called the following witnesses:—

William Henry Cutten: I am Commissioner of Crown Lands for this Province. I do not remember having seen the original of the deed now produced. It belonged to the New Zealand Company, and I think it probable that it is in the office of the principal Agent of the New Zealand Land Company at Wellington. I have searched among my papers, and cannot find it.

Mr.Macassey objected to secondary evidence of the deed being given, until it had been proved that the proper custodian of the deed had lost it. It had never been proved that such a deed had ever existed.

Alexander Mackay: I was at one time connected with a search made for an original deed made in 1844, between J. Symons and others and Karetai and Taiaroa. If there was such a deed, I presume it would be in the hands of the Agent of the New Zealand Company at the time, but that now it should be in the hands of the Colonial Secretary. I produce a copy of the deed, published as a Parliamentary report.

Mr.Macassey again objected, and the objection was sustained. It was arranged that during the adjournment some arrangement should be made, if possible; the questions in dispute being the extent of land reserved for acreage purposes, and the right to a landing place.

After the adjournment, Mr. Turton said that, in the interval, a successful search had been made, and the original deed found in a brown paper parcel, which had been believed to contain documents of no value. He felt some apology to the Court was necessary, and the Commissioner, had instructed him to say that it was only within a few days he had known that his attendance was necessary, and that he would have to produce papers. Mr. Turton also stated that the claim of the Government would only be for about 25 acres.

The original deed was then put in, and was translated by the Interpreter. It was signed by Taiaroa, Karetai, and 25 others, and conveyed to the New Zealand Land Company all their lands, with the exception of certain pieces which were defined at great length.

The following evidence was given:—

W. H. Cutten recalled: I produce a Crown grant to certain lands in Otago to the New Zealand page 231Company. It is dated 18th July, 1846, and is signed by Sir George Grey. It takes in the limits of the Otago block. On referring to the plan at the back, I find that the lighthouse site is within the boundary of the Crown grant, and not within the limits of land marked as reserves. [After looking at the deed carefully, Mr. Cutten said: No; the land is exempted from the grant to the New Zealand Land Company, and retained as Crown land.]

Mr.Macassey: You cannot state that from the deed. You only know that it is exempted from the grant.

The witness, to Mr. Turton: The land reserved for the Natives is marked yellow on the plan, and the Lighthouse Reserve is exempted from that as well as from the grant. There is no plan annexed to the deed, nor has there ever been one, so far as I can see. I do not know the names of the lands. There has been no actual survey of the lands, but the map produced is a record possessed by the Lands Office. I do not personally know the place called Pukekura. I do not know the place called Waiwakaheki. I can simply speak as to the lighthouse being on the point.

By Mr.Macassey: I understand that this land was re-vested in the Crown, and that the Crown has not divested itself of it. I always understood the land to be a reserve. The land was, I believe, about 250 acres. I knew that there was about an acre reserved and marked off by posts. This reserve is not marked in the Provincial maps. There is a record in writing. I cannot state what the boundary was, nor what was the acreage of the block set apart for lighthouse purposes.

By the Judge: The land is a bold headland, very high. I produce a lease for a piece of land at the beach, signed by Korako White, and others. I do know that the piece of land is included in the piece of ground now claimed. I never saw the document before to-day.

Mr.Macassey urged that the production of the lease was evidence against the claim for that portion of the land, and objected to questions put with a view to upset it.

Mr.Turton urged that the Crown was, to all appearance, in perfect ignorance of the lease, and that any arrangement entered into by the Provincial Government could not effect their rights.

Mr. Mackay was re-called, and he gave evidence as to the situation of places named in the definition of boundaries. The word "Pukekura" meant a particular portion of the block, although it was given as the name of the whole block.

Richard Driver: I have been pilot at the Heads for 14 years. There was no boundary or dividing fence when I went on the land. I had one made before I left. It was done for my own convenience, to keep in cattle. I never saw the Purchase Deed, and the fence was not made for the purpose of defining a title. The Maoris made no objection. I always supposed the beach at which the boats landed, to be a Government reserve. There was a piece of land under the tapu, upon which the Maoris would not allow us to build. I do not know if it is the acre marked on the map.

By Mr.Macassey: The fence was erected by me, outside the site of the house. That fence did exclude the landing place. We supposed that about 25 or 26 acres of land belonged to the Native reserve. It was never properly defined, and we never knew anything about it. The land around the houses is good. The land beyond would be of little use to the Government, except as a landing-place.

Walter Mantell: I have had many conversations with the Natives about the reserve. From their conversation, I believe that Pukekura is meant to apply to the summit of the low land. It is too vague to say whether it excludes the landing-place or not. The definition of boundaries would thoroughly exclude the beach from the pilot station, and include it in the Native reserve. Karetai, Taiaroa, and all the old men, always understood this to be their property.

Mr.Maccassey said that he would endeavour to effect an arrangement, by offering the 18 acres referred to, less one acre, which had been specially reserved in the deed, and leaving the question of the landing-place to be afterwards settled.

Mr.Turton said he would rather accept a decision of the Court as to the landing-place.

Hoani Korako.: I know where Pukekura is; it is the place where the flagstaff is—the site of the old pah. I signed the deed. I know the word "Pukekura" was mentioned in that deed. The whole place was called Pukekura, but there were portions with different names. There was no place of that name on the beach. It bad a name of its own. Wai-waka-heke was a place where they used to throw dead bodies into the sea. It is a place cut out—an inlet. It is near the pilot's houses.

By Mr.Maccassey: I saw the fence which had been put up. It was put up to keep Driver's cattle in. The land outside was ours, but the line was not the line agreed upon with Mr. Wakefield. Our agreement was, that after we had had a talk, a request was made for a place to erect a lighthouse on. We asked him where he wanted it, and he said some high place. He said let the Government pay for it. The place where the flagstaff is on belongs to the Natives. There was an acre inside the fence reserved to us.

By Mr.Turton: Wai-waka-heke is correctly marked on the map. The landing-place was agreed upon after the deed was signed.

Mr. M'Leod, surveyor, stated that 18 acres were marked off in the map prepared by him, as the Lighthouse reserve. The 18 acres would comprise the reserve, one acre being deducted, which had been especially set apart. The fence referred to was an ordinarily substantial fence. He had understood from the Maoris, that Pukekura was the site of the old pah. That was where the flagstaff it erected. The Wai-waka-heke is a steep rock. If a straight line was drawn from there through Pukekura until it met the sea, it would not include the landing-place.

The Court was adjourned until Tuesday.