HARBOUR ENDOWMENTS.

Daily Southern Cross, Volume XII, Issue 827, 1 June 1855, Page 3

HARBOUR ENDOWMENTS.

From the Provincial Govei nment Gazette, May 29. Superintendent's Orfice, Auckland, 12th May, 1555. Tho opinion of the Provincial Liw Officer, on the subject of the Harbour EudovTincnts is published for general information. Wm. Browv, Supwmtcndent.

1 To His Honour the Superintendent of the Provi»ce of Auckland. Piinces-street, Auckland, May 28, 1855. Sir, — I have the honour to transmit the following Report, relative to the application of the Committee of the Auckland Haibour Commissioners, under the Auckland Harbour Land Act, for the" consent of your Honour and the Executive Council of the Piovince to the sale of a portion of certain lands forming part of the sea shore in the harbour of this town, with the view of applying the proceeds to rendering the same more sec ore for shipping by the construction of a breakwater. It appears that the Commissioners were in-corporated by an Act of the Local Legislature of the Province, and that those lands were conveyed to them as a body politic, in the month of Jan. last, under certain provisions contained in the Public Reserves Act of tie General Assembly. At Common Law, the Sovereign might, in general, during his reign, dispose of the demesne lands of the the Crown as he pleased, and of the proceeds, rents, and profits thence arising, which, at one time, formed the most important branch of the ordinary revenue. Such power has been from time to time exercised in nearly all the colonies, and chiefly through the medium of Royal Instructions. Several codes of Regulations for the disposal of such lands in these islands have at various times been in force ; but it does not appear that lands dedicated and set apart for public purposes could, under any of them, be sold to private persons for their own use and benefit. The first of them" was that introduced by Captain Hobson, immediately after the Treaty of Waitangi, and which then obtained in New South Wales, of which colony these island* formed an integral part for some 16 months. It seems that none of its provisions allowed the alienating of public reserved lands to the use of private persons. The second is contained in the Royal Instructions accompanying the Charter of Nov. 16th, 1840. The 43id section of these Instructions required the Surveyor-Gen-eral to reserve, previous to selling the Crown lands in any district, such parts thereof as might be suitable for public purposes, inter alia, as the " sites" of quays and I landing places ; and then strictly inhibited the GovcrI nor from disposing of the same for the uses of private parsons. " And it is our will and pleasure, *and we do strictly enjoin and require you, that you do not on any account, or on any pretence whatever, grant, convey, or demise, to any person or persons, any of the lauds so specified as fit to be reserved as aforesaid, nor permit nor suffer any such lands to be occupied by any private persons for any private purposes." According to the 62nd section, these instructions are to be understood as addressed to the Governor or acting Governor of the Colony, for the time being, although addressed in terms to Captain Hobson. The thud is to be found in the Australian Waste Lands Act, the 5 & 6 Vie. c, 36, which was repealed, so far as applic^)le to this Colony, by the 9 & 10 Vie. c, 104. It dicraot apply to the lands previously reserved for public purposes, nor did it restrict the power of making such reserves for the future. It author ized the reserves of waste lands for (inter alia) the sites of public quays and landing places. The fourth is contained in the Royal Instructions accompanying the Charter of December 23, 1846. Under these (chapter 13 & 17), certain reserves were to be made for public purposes, and amongst others, for quays and landing places ; which lands, the Governor of the Province was empowered by the 14th section of the Charter and the 18th section of the chapter just mentioned, to convey gratuitously to any persons or bodies corporatei n trust " for the public uses for which the same were to be reserved and for none other. This power (but no other) of alienating the lands reserved for public purposes, is now vested in the acting Governor, under certain provisions contained in the Queen's Lstters Patent of September 13, 1852. His

Excellency ha- no authority whatever to convoy Mich land:, to an) pj. -,o ■-. or nulihe bj.hes for '.he purpose of havi ig tlu saiu^ -,üb,j j u.idy 1 >\d to private individuals, cu«i thon; 1 ilu j!,j _l '1-I1 -I if shnil'l bs, as 111 the prose it casj, to apply the jjioco.do to i.he construction ot public vvoiks. Th'j tiansfei of the Ros.'ivul lanJ> i.i question to the Harbjur CommisMo.ieis, psupo ts to bj m^da under an Act 0, tic G moral Av^.ubly ; but it docs not appear, that that body has any power over land-, of thai description. By tho 72nd -section ot tho Constitution Act, it is authonzed to reflate the sale, &c, of the iwwte lands ot the Ciown in Uns Colony, teims which cbnot, as used in law, include lands lesi'ived Lr specific purposes, whet her of a public or pi n ate nature;— and it does not appear that they have any bat their oidinary or primary significatio lin this Act. Thus the provincial legislatures are rn'iibi el by 1, 19, from making laws "aflecting the lawh of the Crown," while the Assembly is empowered to make laws fur regulating the sale, &c. of the Waste Lands of the Crown, that is of a portion of those first named— ami by 1, 74, it is authorized to reserve portions of the Waste Lands for public purposjs, inter alia " as the sites of public quays or landing places on the sea coast, or shoies of navigable streams." The Waste Lands Act already mentioned the 5 k 6 Vie., c. 36, which was in force in this Colony for several years, and in the Australian Colonies at the time of the passing of our Constitution Act, contains a definition of the words " Waste Lands" in its 23id section :— "And that by the words "Waste Lands" of the Ciown ns used in the present Act, are intended and described any lands situate therein, and which now are, or hereafter shall be, vested in her Majesty, her heirs, and successors, and which have not been already granted or lawfully contracted to be granted to any person or persons in fee simple, or for an estate of freehold, or for a term of years, and which have not been dedicated and set apart for some public use." It is quite evident from 1, 74 of the Constitution Act, that the clear intent of tho Imperial Parliament was, as respects the Waste Lands of the Crown in this Colony, that none of them, except by way of reserves for public uses, and, perhaps, by way of license for pastoral purpobes, should be sold, or in any othtr way alienated, but for a money consideration, and that the fourth part of all sums of money so realised should ba remitted to the New Zealand Company. Whatever obscurity may pervade other parts of the Act, none is to be found in this section. 1. — I am of opinion that the General Assembly is not empowered to make laws regulating tke alienation of lands of the Crown reserved for public uses, and that no conveyance of any portion of such lands, under any of its Acts, can be valid. 2.— His Excellency the Acting Governor may, under the Queen's letters patent of September 13, 1852, already mentioned, convey such lands gratuitously to any persons or bodies politic, in tnist ; but only for the purposes for which the same were so reserved. 3.— lf the lands claimed by the Harbour Commissioners formed a part of the Waste Lands of the Crown, it was a breach of the Constitution Act to have alienated them without a money consideration — and the conveyance is, in consequence, invalid. 4.— 1 am of opinion that tho Harbour Commissioners are not a legally constituted Corporation, and that they are, as such, incapable in law of taking lands by a corporate namp, and that they can give no -valid title to the lands in question, even though the Superintendent «nd the Executive Council of the Province should assent to the sale or alienation thereof. I have the honrr to bo, Sir, Your Honor's obedient servant, SiNoLirox Room our, Law Officer of the Province of Auckland. To His Honor The Superintendent of the Province of Auckland.