No. 28.
His Honor the Superintendent Of Otago, to His Excellency Sir G. F. Bowen, G.O.M.G.

Sir,—

I have the honour to make the following representations to your Excellency with reference to the claims investigated at the recent sitting of the Native Land Court at Dunedin.

By an Act of the Imperial Parliament, passed in the session held in the third and fourth years of the reign of Her Majesty Queen Victoria, chapter 62, it was enacted that it should be lawful for Her Majesty, by Letters Patent to be from time to time issued under the great seal of the United Kingdom, to erect into a separate Colony or Colonies any Islands which then were or hereafter might be comprised within the dependencies of New South Wales.

By a Charter issued on the 16th November, 1840, Her said Majesty, in pursuance of the before- mentioned Act, erected the Islands of New Zealand, which at the time of the passing of the said Act were comprised within and were dependencies of the said Colony of New South Wales, into a separate Colony, and thereby constituted the Governor and certain other persons thereinafter designated to be a Legislative Council for the said Colony, to make and ordain such laws and ordinances as might be required for the peace, order, and good government of the said Colony of New Zealand, and directed that in making all such laws and ordinances the said Legislative Council should conform to and observe all such instructions as Her said Majesty, with the advice of Her Privy Council, should from time to time make for their guidance therein.

By the same Charter Her Majesty did also authorize and empower the said Governor to summon, as an Executive Council, such persons as might from time to time be named or designated by Her said Majesty by any Instructions under her own Signet and Sign Manual addressed to him in that behalf, and did thereby give and grant to the Governor of the said Colony for the time being full power and authority, in Her Majesty's name and behalf, but subject nevertheless to such provisions in that respect contained in any Instructions which might from time to time be addressed to him by Her Majesty for that purpose, to make and execute, in Her Majesty's name and on Her behalf, under the Public Seal of the Colony, grants of waste land belonging to Her Majesty within the same to private persons, for their own use and benefit, or to any persons, bodies politic or corporate, in trust for the public uses of Her Majesty's subjects there resident, or any of them.

By Instructions under the Signet and Sign Manual of Her Majesty, bearing date the 5th day of December, 1840 (being the Instructions referred to so as aforesaid in the afore-mentioned Act of Parliament), the then Governor of the said Colony of New Zealand was (inter alia) directed to require and authorize the Surveyor-General of the said Colony to report to him what particular lands it might be proper to reserve in each county, hundred, and parish for public roads and other internal communications, whether by land or water, or as the sites of towns, villages, churches, school-houses, or parsonage-houses, or as places for the interment of the dead, or as places for the future extension of any existing towns or villages, or as places fit to be set apart for the recreation and amusement of the inhabitants of any town or village, or for promoting the health of such inhabitants, or as the sites of quays or landing-places which it may at any future time be expedient to erect, form, or establish on the sea-coast or in the neighbourhood of navigable streams, or which it might be desirable to reserve for any other purpose of public convenience, utility, health, or enjoyment; and the said Governor was further enjoined and required not on any account or on any pretence whatsoever to grant, convey, or demise, to any person or persons, any of the lands so specified as fit to be reserved as aforesaid, nor permit or suffer any such lands to be occupied by any private person for any private purposes.

Her Majesty did thereby also reserve to herself, her heirs and successors, full power and authority from time to time to revoke, alter, renew, or explain the said Instructions, or any part thereof.

By an Act of the Imperial Parliament, made in the 9th and 10th years of the reign of Her Majesty Queen Victoria, chapter 108, it is enacted that the hereinbefore mentioned Act of the 4th year of Her Majesty's reign, and all Charters, Letters Patent, Instructions, and Orders in Council, made and issued in pursuance thereof, should be, and the same were thereby repealed, abrogated, and annulled so far, and only so far, as the same were repugnant to or would interfere with or prevent the operation of the now reciting Act, or any Letters Patent, Instructions, Orders in Council, or Royal Instructions which might at any time thereafter be issued under the authority of the said Act, and it is by the said Act further enacted that it shall be lawful for Her Majesty by Letters Patent under the Great Seal of the United Kingdom to execute any of the powers thereby vested in Her Majesty, not by means of such Letters Patent, but by Instructions under Her Majesty's Signet and Sign Manual approved in Her Privy Council, and by any such Instructions to delegate to the Governor in-Chief or to the respective Governors of the Provinces thereof, such of the powers therein mentioned as it might seem meet to Her Majesty so to delegate, and to prescribe the manner and form in which and the conditions subject to which such delegated authority should be so exercised, and that it should also be lawful for Her Majesty from time to time to amend, and for that purpose to add to, or, if necessary, to repeal any such Letters Patent or Instructions as aforesaid.

By Letters Patent dated the 23rd day of December, in the 10th year of Her Majesty's reign (A.D. 1846), Her Majesty did give and grant to the respective Governors of the said Provinces respectively, full power and authority to make and execute in Her Majesty's name, and on her behalf under the Public Seal of the said respective Provinces grants of waste land to Her Majesty belonging, within the same, either to private persons for their own use and benefit, or to any persons, bodies politic or corporate, in trust for the public uses of Her Majesty's subjects there resident, or any of them: Provided that in the exercise of such powers, the respective Governors of the said Provinces respectively should strictly conform to and observe the rules for their guidance prescribed in and by the Instructions given by Her Majesty under her Signet and Sign Manual, and bearing oven date with the said Letters Patent.

In the 18th chapter of the said Royal Instructions, Section 14, it is directed that no land of and belonging to Her Majesty should by Her Majesty, her heirs or successors, or by any such Governor-in-Chief or other person on Her Majesty's behalf and on Her Majesty's authority, be alienated either in perpetuity or for any definite time, either by way of grant, lease, license of occupation, or otherwise gratuitously, or except upon, under, and subject to the regulations therein prescribed: That the Governor or Lieutenant-Governor of any Province, with the advice of the Executive Council thereof, should cause to be marked out and distinguished all such lands situate within and forming the demense of the Crown as might appear best adapted for the site of future towns, and especially seaport towns, within the said islands, or as the lines of internal communication, whether by roads, canals, railways or otherwise, or as places fit to be reserved as quays, landing-places or otherwise, for the general convenience of trade and navigation, or as places of military and naval defence, or as the site of churches, court-houses, markets, hospitals, prisons, or other public edifices, or as cemeteries, or as places fit to be reserved for the embellishment or health of towns, or for the recreation of the inhabitants thereof, or otherwise for any purposes of public utility, convenience or enjoyment, in which either the whole population of the Province or any large number of the inhabitants thereof may have common interest, all of which lands should be called and be known by the name of reserved lands; and that all such reserved lands, with the exception of such as should be reserved as the future sites of towns, might be conveyed by the Governor or Lieutenant-Governor of the Province in which they are situate to any body politic or corporate gratuitously, to be holden by them in trust for the public uses for which the same were so reserved, and for none other.

By additional Instructions under the Royal Sign Manual and Signet Her Majesty declared her will and pleasure that it should be competent to any Governor-in-Chief or other person in her behalf and in her authority, in the execution of any directions which he might receive from Her Majesty through one of Her Majesty's Principal Secretaries of State in that behalf to alienate land or lands, either in perpetuity or in any definite time, either by way of grant, lease, or license of occupation or otherwise, in exchange for other land or lands, or in satisfaction of any equitable claim to land.

By another Act of the Imperial Parliament passed in the 10th and 11th years of the reign of Her Majesty Queen Victoria, chapter 112, it was enacted (inter alia) that the several provisions relating to the settlement of the waste lands of the Crown, contained in the 13th chapter of the said Instructions under Her Majesty's Sign Manual and Signet, should be s[gap — reason: illegible]pended and be of no force and effect within the Province of New Munster (which included the Province of Otago), in the said Colony of New Zealand, until the 5th day of July, 1850, and during such further time as should be directed by Parliament; and that all the demesne lands of the Crown in the said Province of New Munster, and all he estate of Her Majesty therein, or power and authority over the same or any part; thereof, should, from and immediately after the passing of the said Act, and during the suspension of the said Instructions, be absolutely and entirely vested in the New Zealand Company, and that during such period all the rights, powers, and authorities of Her Majesty in reference to the same might be exercised and administered by the said Company in such manner in all respects, subject to the restrictions thereinafter contained, as to the said Company should seem best fitted to promote the efficient colonization of New Zealand, and the welfare of the colonists thereof.

In or about the year 1848, the said Company entered into an agreement with the Association of Lay Members of the Free Church of Scotland, commonly called or known as the Otago Association, for the founding by the latter of a settlement at Otago, in the Middle Island of New Zealand, on the land granted to the Company by a deed under the seal of the territory, bearing date the 13th day of April, 1846. The settlement was to comprise 144,600 acres of land, which, by the terms of purchase, recognized by the law advisers of the Crown to be binding on Her Majesty, was to be divided into page 2562,400 properties, and each property was to consist of 60¼ acres, divided into three allotments, viz., a town allotment of a quarter of an acre, a suburban allotment of ten acres, and a rural allotment of 50 acres. The 2400 properties were to be appropriated as follows, viz:—

2000 properties, or 120,500 acres, for sale to private individuals.

100 properties, or 6025 acres, for the estate to he purchased by the local Municipal Government.

100 properties, or 6025 acres, for the estate to be purchased by the Trustees for Religious and Educational uses; and

200 properties, or 12,050 acres, for the estate to be purchased by the New Zealand Company.

The price of the land so divided was fixed at £120 10s. a property, with a power reserved by the Company to itself of increasing the price above mentioned after the first ballot, and from time to time as might be arranged after consultation with the Association.

The terms of purchase therefore precluded any part of the block of 144,600 acres, of which the settlement of Otago was composed, being disposed of otherwise than by sale at a minimum price of £2 per acre, with the following exceptions:—

That in the said terms of purchase a power was retained by the said Company to exclude lands containing in considerable quantities coal or other minerals from the allotments intended for sale or appropriation, and to reserve them to be disposed of by lease or otherwise in such way as might from lime to time be agreed on between the Company and the Association, with a view to prevent the coalfields from falling into the hands of private individuals, so as to assure to the community a due supply of fuel at the cheapest possible rate; and that reservations were to be made, so far as might be practicable, of the sites of villages and towns, with suburban allotments adjacent; and in laying out the chief town of the settlement to be named Dunedin, due provision was to be made for public purposes, as fortifications, public buildings, sites for places for public worship and instruction, baths, wharfs, quays, cemeteries, squares, a park, and other places for recreation, but that no reserves other than for public uses were sanctioned by the terms of the said contract.

By an Act of the Imperial Parliament of the United Kingdom made in the 15th and 16th years of the reign of Her Majesty, chapter 52 (30th June, 1852), reciting (amongst other things) the terms of purchase before mentioned being in force on the 4th July, 1850, as contracts between the said New Zealand Company and the said Otago Association, and that by the provisions of the herein befors- mentioned Act of the 10th and 11th years of Her Majesty, and of a notice given on the 4th day of July, 1850, in pursuance of such Act, the lands of the said Company in New Zealand reverted to and became vested in Her Majesty as part of the demesne lands of the Crown, subject, nevertheless, to any contract then subsisting in regard to any of the said lands, it was by the 72nd section enacted (amongst other things) that, subject to the provisions therein contained, it should be lawful for the General Assembly of New Zealand (which was by the now reciting Act constituted) to make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown in New Zealand; and by the 78th section of the said Act it was further enacted that it should be lawful for Her Majesty to make provision, by way of regulations to be contained in any charter to be granted to the said Otago Association, for the disposal of the lands to which the said terms of purchase relate, so far as the same were still in force, and for varying from time to time such regulations, with such consent, by or on behalf of the said Association, as in any such Charter or Instructions should be specified, and for enabling the said Association to transfer its powers to the Provincial Council of the Province of Otago, provided (amongst other things) that during the continuance of such Charter it should not be lawful for the General Assembly of New Zealand to repeal or interfere with any, such regulations respecting lands in Otago, except with such consent by or on behalf of the Otago Association as in any such Charter or Instructions might be provided, and that every bill which should repeal or interfere with any such regulations should be reserved for the signification of Her Majesty's pleasure thereon; and that it should be lawful for Her Majesty by any such Letters Patent or Instructions under Her Majesty's Signet and Sign Manual, or signified through one of Her Majesty's principal Secretaries of State, to delegate to the Governor any of the powers thereinbefore reserved to Her Majesty respecting the regulation of the sale, letting, disposal, and occupation of waste lands.

No such Charter or Instructions as authorized by the Act were ever issued; no such consent as in the said Act referred to has ever been given by or on behalf of the Otago Association for the General Assembly to repeal or interfere with the contracts contained in the said term of purchase and pasturage of land in the settlement of Otago in the said Act referred to. In the General Government Gazette of the 4th March, 1853, there appeared a Proclamation of certain Land Regulations for the Province of Otago, dated 4th March, 1853, in which no mention whatever is made of any power in the Governor to make Native reserves or to issue any grants without a money consideration.

Notwithstanding the absence of any authority in the Governor to make reserves, except for public purposes, by an Act of the General Assembly passed in the 20th year of Her Majesty, No. 10 (6th August, 1856), the Governor is authorized to appoint Commissioners by Letters Patent, to be styled Commissioners of Native reserves, with several and distinct limits of jurisdiction, and such Commissioners are empowered (amongst other things) to have and exercise full power of management and disposition, subject to the provisions of the said Act, over any lands within their several jurisdictions which had or should be reserved or set apart for the benefit of aboriginal inhabitants, over which lands the Native Title shall have been extinguished by the said Act or any amendment thereof. No Governor of New Zealand ever had any power given to or vested in him, either by Act of Imperial Parliament, by Royal Charter or Royal Instructions, by Act of the General Assembly of New Zealand, or by any person or body having authority to grant or confer the same, to reserve any lands for the benefit of the aboriginal inhabitants of New Zealand; and in so far as regards the Otago block of 144,600 acres, they were expressly prohibited from doing so, or from issuing any grant of any of the waste lands of the Crown situate and being part of the same, by the before-mentioned Acts and Royal page 257Instructions, as by so doing they would have acted contrary to and in subversion of the contracts entered into in regard to the said Otago block between the New Zealand Company and the settlers brought in by the Otago Association.

That by the 83rd Section of "The Native Lands Act, 1885," after reciting that at various times agreements had been made between the owners of Native land or other persons interested therein on the one part, and officers duly authorized to enter into the same on the other part, for the cession of Native land to Her Majesty, it is enacted that it should be lawful for the Governor to refer any such agreements to the Native Lands Court for investigation; and by the 88th Section of "The Native Lands Act, 1867," it is enacted that such land shall, unless the Governor shall otherwise direct from time to time in respect of any part thereof be excluded from the operation of "The Native Lands Act, 1865," and of "The Native Lands Act, 1867," until the 81st of December, 1808.

I have received no intimation that your Excellency has referred any of the agreements investigated at the late sitting of the Native Lands Court held at Dunedin, to the said Court.

That the said Court decided that I, as Superintendent of the Province of Otago, had no locus standi before it, except in cases where the funds of the Provincial revenue have been expended on lands, but that all other interests of the Province in the waste lands of the Crown could only be represented in Court by the proper law officers of the Crown or their substitutes, notwithstanding the proceeds arising from Crown Lands in the Province form a principal part of the Provincial revenue.

That the General Government appointed a gentleman of the name of Mackay, who is, I am informed, a Commissioner of Native reserves, to represent the interests of the Crown, and that Mr. Mackay instructed counsel to appear in support of the claims made by the Natives at the before- mentioned sitting of the said Court, and, as I am informed, also instructed counsel to act for the Crown, but not to oppose any of the Native claims.

I have therefore to represent to your Excellency that, before taking action upon any certificate or title which may be issued by the Native Laud Court respecting any lands in the Province of Otago, I, as the Superintendent of the said Province, may have an opportunity given to me of inquiring into, and, if necessary, of objecting to, the issue of a grant of land to any of the Natives, or to any person in trust for them.