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A Compendium of Official Documents Relative to Native Affairs in the South Island. Volume Two.

Friday,May 22

Friday,May 22.

The Court sat at 11 o'clock.

Te Kararu.

Certificates of title were ordered to be issued to claimants of this reserve on production of proper map.

Port Chalmers Reserve.

The consideration of this case had been postponed to allow Mr. Haggitt, senior, to adduce arguments against the grant of the sections named being made to the Natives, they having formed portion of the Port Chalmers Town Belt, and been reserved for that purpose in the New Zealand Land Company's Deeds.

At the previous hearing, the following evidence had been given:—

Walter Baldock Mantell: I bought from Mr. Williams, Section 401 at Port Chalmers, for the Natives, and added Sections 402, 403, 404, and piece of the town belt adjoining. This was a reserve for Ngaitahu Katoa. It was by the direction of the Governor I did so. Section 402 has, I think, been taken away since I made it part of the reserve. I took a conveyance from Williams to Her Majesty. The title to other sections is in the Queen. I sent up plans of these reserves to the Government in 1853, with a view of their being granted to trustees for the tribe. There is no other place in Port Chalmers that pretends to be a Native reserve. I was a member of the Executive Council when the order was made.

Mr. Cutten: I produce a book of plans and a letter, which have been in my possession since I took office. There is a minute in Mr. Proudfoot's handwriting, stating that they were received July 26th, 1855. One of the sections now claimed, has been disposed of. Section 401 was sold to Mr. Robert Williams, and was subsequently conveyed to the Crown. 402 is claimed by the Presbyterian Church. The Provincial Government has a stockyard there. They undertook to pay rent for it to Mr. Strode.

Mr. Macassey said that it was not his intention to call other witnesses, and urged that if the Crown did not object, the Court would not inquire into the authority for Government Acts. There could be no doubt that the Governor did all he could to make it a reserve, and it had been so treated since by the Colonial Secretary, the Governor, the Commissioner of Crown Lands, and the Surveyor-General. He had put in a Gazette containing order of Council delegating management of Native reserves to A. R. C. Strode, Esq.; the Order of Reference signed by Colonel Haultain; and the map and letter of the Surveyor-General, with the memorandum made by Mr. Proudfoot. He submitted that there was a prima facie case, and that the onus of proof to the contrary rested with the opponents.

Mr.Haggitt urged that in 1846 the New Zealand Land Company became possessors of all the lands of the Crown, and retained them till 1850, when the Colonial Government took them over. "The Constitution Act, 1852," gave power to the Governor to regulate the sale of Waste Lands under regulations made by the Government; but in those regulations there was nothing said about the power of making Native reserves. The instructions were to bear the signature and sign manual of the Queen, and he contended that they should be produced. Then the power of the Governor over Waste Lands in Otago ceased from 1846 to 1850. It had not been shown that that power was resumed, or that he had a right to make the reserves.

The Court held that a prima facie case had been made out.

Mr. Haggitt then contended, that the evidence for the Natives was defective. The New Zealand Land Company had, while in possession of Otago, had it surveyed and made reserves, one of which was for a township at Port Chalmers. Round this township there was a town belt, and the purchasers of allotments had a right to it; an easement having been conferred in them. The reserve had been legally made by the New Zealand Land Company and could not be diverted by the Government.

The following evidence was given:—

W. H. Cutten: I know the land applied for in the claim. It consists of three original surveyed sections, besides two pieces of the town belt. The uumbers are, as I think, 403, 404, and a piece of the town belt, and 401. Or the map received with title, it is stated that Section 402 is for a Church reserve. The land was selected in Great Britain, in 1847. There was a ballot in May or June, 1848. There was a number of sales, and where selections have been made, the township has been surveyed. The ballot took place, and the money was paid in England. I produce a plan of selection. The Town Bolt reserve was made before the settlers arrived here.

By Mr. Macassey: Section 402 is not granted. I see by the selection map of the Waste Land Office, that it was originally intended as a Church reserve. Sections 401 is marked as purchased by Robert Williams, the date of land order being April 28, 1848. No. 402 is written "Part of Native Reserve" in handwriting of Mr. Mantell. 402, 403, And 404 are the same; but the words are crossed page 236out after No. 402, and there is the following memorandum:—"This is a mistake, Section No. 402 forms part of a reserve for a church. See parchment sketch accompanying Colonial Secretary's letter to Commissioner, 3rd January, 1855, No. 156. P. Proudfoot, Commissioner." Although the error was discovered 15 years ago, it is still uncorrected.

By Mr. Haggitt: I observe the words "Church reserve" are written over 402 in the map. The book produced is the New Zealand Land Company's Allotment Book. There had been no attempt to disturb the possession by the Natives of Section 401, 403, 404. I had heard comments that the Presbyterians ought not to have Section 402, but no action had been taken. I did not know before the sittings of the Court, that the Natives claimed it. I would have reported the circumstances if asked to make out a Crown grant for any of these sections, but the question would not arise as it was the practice of the Secretary of Crown Lands to make out the grants himself. The town belt was laid out at the original survey. I think the correction in the plan was made by Mr. Proudfoot. On the selection map there is a memorandum. The reserves are tinted pink, and the numbers are the order of choice. The reserves made in Port Chalmers for objects not affecting the public generally, are the Maori reserve, the reserve for a Presbyterian Church, and the Municipality reserve. The book before referred to is one which was always kept in the office of the Commissioner of Crown Lands. No person other than the Commissioner had any right to write in that book. Looking at the map I should say that Sections 8 and 9 were originally the Church reserve, as the word Church is written on them: and that 402 must have been added after, because the word reserve is written on it in a different coloured ink.

Mr. Haggitt put in the instructions of 1846, alluding to the portion having reference to the former contracts of the New Zealand Land Company. He contended that the earliest contract should have preference—that the purchasers under the New Zealand Land Company's Deed were entitled to the reserves, and that the Governor had no power to divert them.

Mr. Macassey, in reply, said that the case made for the Superintendent was now limited to the piece of land taken from the town belt, and made part of the Native reserve. No claim was made by the Superintendent to the remainder of the reserve. The Presbyterian Church claim to Section 402 would have to be determined on its own merits, and after counsel for the Church had been heard. The Superintendent, claiming in the interests of the inhabitants of Port Chalmers, asserted that when the town was surveyed by Mr. Kettle, the principal Surveyor of the New Zealand Company, the town belt was marked off as one of the reserves for recreative purposes, under the terms of the Otago purchase. Mr. Kettle's maps, no doubt, showed the existence of such a reserve, and it was entirely on the faith of this map that the assertion was made that the inhabitants of Port Chalmers had acquired an easement in the belt. But an easement could only be conferred by grant, and the exhibition of a plan had been frequently determined to confer no right whatever, except where it was incorporated with the conditions or agreement for sale. (Sugden's Vendors, 25, Rendall v. Hall; 4De G and S, 343; and Glave v. Harding, 27 L. J. (ex.), N. S., 286.) Mr. Cutten had admitted that the Crown grants at Port Chalmers were ordinary Grants, and it was not pretended that any easement in the belt had been conferred upon the purchasers by tbe grants. The position then was this: that the New Zealand Company had never divested itself of the fee simple in the belt; it had never granted any easement in it; it had simply exhibited a plan which, as already shown amounted to nothing, and the lands of the Company therefore reverted to the Crown, free of any encumbrances. That being so, the Crown was enabled to make the reserve for Native purposes. The Court has already decided that the Natives had established a prima facie case, and that the legality of the Governor's acts could not be called in question except upon direct evidence that he had gone beyond his instructions. The Superintendent's case had not gone to this, but simply to show that the New Zealand Company had conferred an easement in the belt. This case, he submitted, he had abundantly met.

The Chief Judge said that it was only right that an opportunity should be given to the representatives of the Presbyterian Church to support their claim. He would, therefore, adjourn the case.