No. 29.
Memorandum by the Secretary For Crown Lands on Mr. Macandrew's letter of July 17th, 1868.

The argument in the foregoing document seems to be that no Governor of New Zealand has power to make reserves within the original Otago block, alluding, of course, especially to those lately made on recommendation of the Native Land Court, because

1. No Charter or Royal Instructions have ever given a Governor power to make Native reserves at all.

Assuming it to be a fact that no such power is expressly given by these documents, it is, nevertheless, undeniable that the Crown has this power, and is by necessary implication authorized to exercise it.

The Treaty of Waitangi gives Her Majesty the exclusive right of preemption over lands the Natives might choose to alienate. This surely implies in the Crown a right of acquiring Native lands on any terms and conditions upon which the Native owners might be willing to sell it. Now, one of the conditions invariably insisted upon by them is, and always has been, that certain portions of the lauds about to be sold should be kept for them, made "tapu," which can only be explained and construed as "reserved from sale." This is a short, but, I think, perfectly legitimate argument, in favour of the necessarily existing power in the Crown of making Native reserves.

By the Royal Instructions accompanying the Charter of 1846, all conveyances and agreement for the conveyance of Native lands are declared void "unles made to Her Majesty, her heirs and successors." This, again, of course, is tantamount to a declaration that each conveyance to Her Majesty is valid, and, as there is no declaration or limitations whatever, as to the terms or conditions on which such conveyances are to be made, the conditions of making reserves when required by the Natives, must be held to be allowable under this provision, and, therefore, a valid one.

The 73rd section of "The New Zealand Constitution Act" re-enacts the foregoing provision, and the same consequence, viz., the power of the Crown to make Native reserves, follows from it also.

That the various Governors have always been authorized to exercise this power, would probably be maintainable from the general terms of their commissions, or of the Charters and Instructions in force during their respective governments. Thus, the Royal Instructions of 1840 (section 61), declare it to be "our further will and pleasure that you * * * take care to protect them (the Natives) in the free enjoyment of their possessions, and that you * * * take such measures as may appear to you to be necessary for * * * their advancement in civilization." Now, the reservation of portions of their lands, in such manner as to prevent their future alienation by themselves might reasonably appear to any Governor "such a measure" as their advancement in page 258civilization might require. And it is only necessary that it should appear so to a Governor in order that the power should be immediately conveyed to him by those Instructions. But whereas "The New Zealand Constitution Act," expressly declares that it shall be lawful for Her Majesty to delegate his power of accepting conveyances from the Natives (which conveyances are designated as either absolute or conditional), to the Governor,—the Instructions to Sir George Grey accompanying his Commission (August 2. 1861), expressly delegate to him this power of accepting conveyances with any conditions from the Natives,—therefore it is undeniable that from that time at least, the Governor had a quite literal and express and direct power of making Native reserves as a condition attached to conveyances of their lands.

The above considerations show, I think sufficiently clearly that the Crown and the Governors, directly or indirectly, have always had the power of contracting with the Natives in the purchase of their lands that certain portions should be reserved for themselves, But even if this is not the case, "The Waste Lands Act of 1858," Section XI, gives the Governor power to fulfil and perform any contract promise or engagement theretofore made on behalf of Her Majesty, and whereof there was evidence in writing with respect to any allotment or parcel of land within the Colony, and "The Crown Grants Act, No. 2, 1862." gives the same power in Native cases whether there was exidence in writing or not of such contracts. In this later Act certainly, in both probably, it was never intended to limit the power to fulfil, to contracts or promises made under authority of law. The power extends to all promises of course, including promises to reserve Native Lands from Sale.

2. This is perhaps enough for the general denial in the above letter, of the reserving powers–which denial, however, I daresay might be met and overthrown, on even higher and more general principles. But the writer has special reasons why the power should not be held to exist with respect to the original settlement of Otago—or rather, he assorts that whereas the Governors had no power or authority to make Native reserves in New Zealand at all, in Otago they were expressly prohibited from so doing. This argument is that the New Zealand Company entered into a contract with the Otago Association, relating to a block of land of 144,600 acres. That by the terms of that contract (Regulations, August, 1849), all this land was to be sold at £2 per acre, except certain portions for specified public reserves, and that among these specified reserves, no Native reserves are mentioned, consequently, all the rest of the block being to be sold at £2 an acre, none of it could be set apart for Native reserves. He then says:—this contract devolved upon the Crown when the New Zealand Company gave up the Charter; that "The New Zealand Constitution Act" next gave Her Majesty power to grant a Charter to the Otago Association, and in such Charter to make regulations for the sale of the lands in the block aforesaid, which regulations should not be altered or repealed by the General Assembly without the consent of the Association. Then he tells us that no such Charter or Instructions were ever issued, and starting altogether from the line of his argument and the point at issue, that the Otago Association never gave its consent, not to an alteration of the regulations in the Charter, which indeed never existed, but to an alteration of the contract with the New Zealand Company by the General Assembly, and that the taking of Native reserves out of the block is a violation of the contract.

Now, it is hardly necessary to say that of course the contracts of the Company devolved upon the Crown when the Company's operations ceased. But it is difficult to understand how the Otago regulations of 1st August, 1849, could be still considered contracts binding on the Crown after the 1st of April, 1856, when new regulations were made by the Governor on the recommendation of the Superintendent and the Provincial Council which expressly included the original block and made the land disposable in an entirely different manner. The original contract must then have ceased, and the land unsold in the block was in the position of ordinary waste land of the Crown over which the Native Title had been extinguished, subject to the new regulations of 1856, which it is true gave the Governor no power of making Native reserves; but subject also to any contracts entered into by the Crown with the Native sellers, which, moreover, the regulations did not impede the fulfilment of, though they made no special provision for. The contract with the Natives under which the reserves complained of purport to have been made, is the Ngaitahu Deed, executed the 12th June, 1848, more than a year before even the original contract of the New Zealand Company with, the Otago Association. This contract required that reserves should be made and "The Waste Lands Act, 1858," and that of 1868, both empower the Governor to fulfil the contract.

I presume the provisions of "The Native Lands Act," were complied with and the claims regularly referred to the Native Lands Court, of course then the grants should not be detained.