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The Pamphlet Collection of Sir Robert Stout: Volume 77
Other Privy Council Judgments
Other Privy Council Judgments.
Unfortunately this is not the only judgment of the [unclear: Pri] Council that has been pronounced under a misapprehension or ignorance of our local laws. I may briefly refer to three in which personally I was not in any way concerned.
"It is not necessary to follow minutely the legal title the land. It is sufficient to say that, under [unclear: what] form, it has been continuously vested in Government for public purposes, that the use made of [unclear: it] Plimmer was consistent with these purposes, and [unclear: ti] Plimmer 'might by contract with the Government have acquired a perpetual interest in it for such [unclear: pe]poses.' "(See 9 A.C., pp. 705-706).
The Privy Council did not refer to, and were [unclear: appare] ignorant of the fact, that the Superintendent, in whom the [unclear: reser] was vested, could neither sell, nor mortgage, nor lease the [unclear: res]
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for more than three years unless an Act or Ordinance of the Provincial Council authorised him to do so. (See the Public Reserves Act 1854, sections 5, 6, and 7.) The reserve was granted under this Act. Section 7 says:—" No lands so ... granted ... shall be alienated by way of sale or mortgage or by lease for any longer term than three years, except by the authority of some Act or Ordinance of the Provincial Council of such province to be pissed in that behalf, nor except by deed signed and sealed with the proper seal of the province," etc.
No such Act or Ordinance was passed, and it was therefore inaccurate to say that Plimmer could have acquired by contract a perpetual interest in the reserve. All he could have got was a lease for a term not exceeding three years. Had the Privy Council been acquainted with the Public Reserves Act of 1854, there is, I think, no doubt the judgment of the New Zealand Appeal Court would not have been reversed.
In Eccles v. Mills (L.R., 1898, App. cases, 360), it was plain that the Privy Council did not understand the system of conveyancing in New Zealand, for their Lordships did not know what was meant by the usual declaration in New Zealand transfers, conveyances, and leases, regarding "implied covenants." If they had understood what "implied covenants" meant in New Zealand, I believe their judgment would have been different.
And in Tamaki v. Baker (L.R., 1901, A.C., 561), the Council was ignorant of the date when we became a self-gcveming colony, and of the Ordinances, Acts, and Charters regarding native lands." If the dicta in that case were given effect to, no land title in the colony would be safe.