SUPREME COURT. Monday, July 16, 1849.

New Zealander, Volume 5, Issue 330, 19 July 1849, Page 3

SUPREME COURT. Monday, July 16, 1849.

His Honor the Chief Justice took his seat at halfpast ten o'clock, and proceeded to deliver Judgment in a suit of Scue Facias,

THE QUEEN Y. TAYLOR. ThU is a suit of sctre fncias to set aside n grant, dated 15ili July, 184"1, made in the name and -m behalf of the Crown by Governor FitzFtoy ; and which purports to convey to James Forbes Beat'ie nnd his heirs the Island of Kawau, in the Gulf of Hauraki. The island was claimed by Beattie, as having been purchased from certain persons of the native race of this cowtry before the proclamation of the Qusen'n sovereignty over these islands. The claim was referred, according to the provisions of the Coluiiial Ordnnnres (Ses ion 1, No. 2, and Session 3, No 3) to Mr. Commissioner GoJfrey, who reported, on the Jst July, 1843, that no grant could be recommended for the ilaimant. This repoit was confirmed by the offictr administering the Government; and the confirmation was publibhi'd in the Ntw Zealand Government Gazette of the 25ili of October, 1843. Subsequently, on the 15th July, 1844, the present grant was nude. By the operation of three deeds mentioned in the dedication, all the into est of Beattte under the Crosvn grant has become vested in the defendant, John Taylor. It if alleged by the Attorney-General, and admitted by the defendant, that no commissioner appointed to examine aud repoit upon claims to land ever reported that Beattie was entitled to receive a grant of 2560 acr s, or any giant vrha'soever, in respect of (he afoie said claim. Tue At orney General says that this grant ought to be declared void, and set aßidp, for three reasons ; of vrhich the first and second aie as follows : — Ist, because the grant was made contrary to the Commissioner's repoit bo made and confirmed as nforefaid, and to the provisions of the aforesaid Ordinances; 2ndly, because at the date of the grant, Governor Fnzltoy hnd no power or authority to make a valid giant of the said is'and to the saii Jacneb Forbes Beattie and his heir*, in manner and for the considerations in the said grant set forth aud described. These two reasons mny he conveniently taken together ;as the same questions are involved, in a greater or less degree, in the consideration of each. The third, to which vre shall recur hereafter, is in its nature quite distinct from the two which piecede it. I purpose, therefore, to combine, for the purpose of discussion, the former objections, omi-ting for t|je present all further reference to the la^t. The subject which presentu itself for inquiry in the fint place, has on a former oicasion been brought under the consideration of tlm court ; but it presents itself now under a somewhat different form. What were the powers of the commissioners of land claims ? Did they tuke awa^ anything from the authority of the governor? If so, how far did they interfere with that authority ? It order to answer these questions, it will be necessary to examine the provi&ijuu of the Land Claims Ordinance (Sees. 1, No. 2). This Ordinance sets out by copying in the preamb'e, certain recitals of an Act which had been pus»ed for the like purpc s s by the governor and council of New South Wa'es, namely, "that in various parts of the Ulands of New Z a'and tiacts ot hind were claimed to bo held by vaiious individual by viitueof purchases fiom the chiefs of the aboii^inal tnb s— that no such m-Jivulua' could acquire a legal title to, or pmnanuit interest in, any such trans by virtue of such puicha=e-> — that her Majesty hod, lu-d r the hand of one of her Mtjssty's L J nncip.il S;cretavies of State, declared her royal will and pleasure not to recognise any titles to land uhich did not proceed f-om, or should not be allowed by her Majesty— -<nd that it wn^ expedient to put beyond doubt the invalidity of all titles founded upin such purchases." The Ordinance then lecites that it w.s by the said Act declaied and enacted, " That all title* to land in New Zealand, which were not, or might no' thereaf er be, al'oweJ. by her Majesty, were and should be absolutely null anil void." Tneiii after mentioning the appointment of certain Land Cliims Commistionerß by the Governor of New South Wal°s, and the subsequent separation of New Zealand from the Government ot New South Wales, the pi eamble concludes by reci'ing ''that it is exped ent lhat a local oidiuance tor ihe same general purposes intended to be provided for by the said Act ot New South Wale?, together with other enactments applicable to the altered circumstances of the colony of New Zealand, should be enacted by the governor and legislative couDC.l of ihe samr." The first section repeals the Act of New South Wales, und determines the commission issued by the Governor of Ntw South Wales. The second then proceeds to declare and enacc that " All titles to land in the colouy of New Zealand which are held or claimed by virtue of purchases oi other titles from the chiefs or other individuals of the. aboriginal tribes, and which are not, or may not hereafter be allowed by her Majesty, her heirs aud successors, are, and the same shall bo, absolutely null and void." From this enactment, taken in connection with the preamble, it would appear that the first and principal object of this Ordinance was to enforce, by the highest authority, the rule, that all titles to hnd acquired by settle' s in a British colony, must be dciived from, or allowed by, the Crown. The third section recites that, "her Majesty hath, in the said infractions, been pleased to declare her Majesty's gracious intention to recognise claims to land, which may have been obtained on equitable terms from the said chiefs or aboriginal inhabitants, and which may not be prejudicial to the present or prospective interests of such of her Maji sty's subjects who have already retorted, or who may hereafter resort to and settle in the colony ;" and that "it is necessary that an inquiry be instituted into (he mode in which such claims have been acquired, the circumstances under which such cluims may in- and are founded, and also to ascertain the extent and situation of the same." The objects of the inquiry, as they are here stated, evidently correspond with the conditions annexed to her Majesty's declaration. The mode of acquisition and the circumstance* were to be inquired into, to the end that it might be known whether the land had been obtained on equitable terms : the extent and situation of the land were to be ascertained, to the end lhat it might be known whether a grant of that particular land to the claimant would be prejudicial to the inteiests of the general body of coloniiti. It is plain that an inquiry ot ibis kind was rendered necessary by the terms of her Majeity's declaration, ai d that, in order to a .faithful execution of her Maje iy's purpose, §uch an inquiry must have been made, e.cn if this Ordinance had not been passed. It may make this question clearer, if we bear in mind how the matter would have stood in the case just now suggested. The Governor alone had power to gr nt landi on behalf of the Crown ; and, if we suppose no person to have been inttrpofied betwern him and the claimants, it would lmv« rested with him alone to determine in what cases he would exercise the power which he possessed, or (in ot'.cr words) to decide in

what eves claimants were entitled to the benefit of her Majesty's declaration. To enable him to decide correctly, he would have had, either himself to make this enquiry, or to causeit to be made by others for him but, ultimately, the Governor would have to satisfy hrs own mind and to decide for himself, whether a Crown Grant should issue or not. Now, how far did the Land Claims Ordinance re« move the »espon»ibiiity for a due fulfilment of her Majesty's intention from the Governor to olber permni ? How fur did it limit his power ? I proceed to consider the lesiduo of the Ordinance with a view to these points. The third section enacts, "Thitit shall be lawful for the Governor, and he is hereby authotised and em. powered to isutie one or more commission or com missions and thereby to app hit commissioners, who shall hnve full power and nuthoii'y under the s»me to liw examine, and report on all claims." Tn the next s ction (4), it is enacted tb.it certain claims shall be referred to the commissioners to be appointed under the Oidimnce. "to the end that a'l such claims may be heard, examined, and icported upon for the information and puidaice of the Baid Governor of New Zealand." There is nothing in the^e words to give the con mis^ioners any power of deciding on (he claims referred to them. \t any rnto, thero is nothing to give them the power of deciding iinnlly. Had it been intended that a commi^ioner'a report should be n final and conclusive dec'sion on the claim to which it i elated, it might luve been expected that the claimants would have been directed (as in the ordinary case of any claims lying within the jurisdiction of acomt of law) to apply at onre to the commiFsioners court, so that the commissioners might lake cognizance of all claims, and dispose of all on one piinciple and i.i one way. But, on the contrary, with one exception, it was left to the discretion of the Governor to refer claims to the commissioners or not. as he pleased. Tbe exception is in Section 4. which provides that ceitain claims which had actually been referred by the Governor of New South "Wales to the former comTnissioners, should be referred again by the Governor of New Zca and to the new commision. But in all cases where no discre ion had as yet been exercised by the Governor of New South Wales, the Governor of New Zealand is left free. lie is not bound or required by the Ordinance to rdfer nny other claims than thoie. The conoroigsioners are authorised to deal with all claims which may be referred to them ; but it is expressly provided (in section 5) " that nothing herein contained shall authori«e the said commissioners to receive or report upon claims, except such as sh-ill be referred to them under, and by virtue of the provisions of thia Ordinance." In Section 6, it is enacted that " if the said commisliouers hhall be mtisfied that the person cl liming such lands is entitled, according to the declaration of her gracious Majesty, to hold the said lands or any part thereof, they shall report the »arne, and the grounds thereof, to the said Governor accrrdingly-" The natural inference from this is, that the grounds were to he stated in order that the Governor might judge of their lufticieucy, before he proceeded to act on the Report. Jn section 7, the act of the Commissioner in making a Report is described as a proposal. It says " the Commissioner slnll not propose to grant to any claimant whatsoever any l.md" of the kinds (L'nctibed in that S ction. But, us if to remove ail doubt, it is, at the end of S ction G, provided, " that nothing beiein contained shall be held to oblige the- (aid Governor to make and deliver any such grants hs a f ore!>4id, unless his Excel'ency shall deem it proper so to do." II then the Report of the Commissioner waa not to have the effect of a binding and final judgment in favour ot the subjsct, could it be intended that such a Report should have that effect aojahut the subJ3Cfc ? Could thrj Crown rigidly uphold and enforce the opinion of its own officers whenever that opiniou would lead to the appropriation by the Crown of the lands comprised iv the chitn, and yet repudiate their opinion, "Uienever it tended to support the title of the original claimant ? As I have said on a formci occa Mon, I cannot conceive this to have been the mind of the Legislature : first, because of the manifest unfairness of such a rule ; and, secondly, because of the terms of thf last section of the O dinance, " Pi ovule I always, and be it declared and orddined, that nothing in this Ordinance contained shall be deemed in any way to affect any tight or pierogutive of Her Majjgty, her heirs, or successors." The conclusion to which I oontie, up™ a re. view of the whole of this Ordinance is, that the functions of the Commissioners were not judicial, but ministerial; that it was their business to collect information for the use of the Governor, and to submit proposals tor his comideration, — not to take away hit discretion, but to enable him to cxc ei3e his discretion safely ; the power of ultimately decid.ng what were the cases that came within the benefit of the Queen's declaration, still rested (as I conceive) with the Governor. I sec no indication of any purpose to transfer that responsibility from the Governor, the Queen's own agent, to the agents whom the Governor might appoint. E\ery thing in the Ordinance appears to me to point the contrary way. Next, as to the quantity of land which the Governor might grant to a claimant. The only restriction imposed by the Ordinance is upon the Commissioners : they are forbidden to recommend a grant of more than 2560 acres without a special authority enabling them to do so. But, supposing the authority given, there is no limit set to the number of acres which they might recommend to be granted. Now such a recominendition would be nugatory, unleii the Govorner had power (if he taw fit) to issue a grant to the extent of the re commendation. It appears therefore to bate been understood that the power to grant land to the claimants would not be subject to any arbitrary nutneiical limit. But though the legislature did not attempt to ix, by a general enactment, any definite number of acres which no grant in any case should exceed, sti 1 they might so frame the Ordinance as to limit and define, in each particular case, the number to be granted. In other words, instead of imposing bef >rehand one limit upon the whole body of claimants,they mi^ht deem it preferable to limit the claimants one by one, by means of a calculation to be peiformed afterwaid-. by the Commissioners or the Governor. Was ttiii latter pUn in fact adopted by the legislature? I" particular was the schedule B. framed with this view ? In order to answer this (uistion. vve must lcokto the words of the Ordinance," and chiefly of the 6lb sec. which alone contains any refeience to that shedule. It is thereby enacted that the Commissioners " shull also inquire into and *>et foith the number of acres which such payment (namely, the payment lo the natives for the land) would have been equivalent to according to the rateifixed in a schedule marked 11. annexed to this Oidinance." Now here we find, just as in the greater pait of the enactments of this sectiuii, a direction lo the Commissioners and nothing more. They are told to apply the schedule and to state the lesult. Whatever might be the utility of that result, as one of many mutters desirable for the infoimation of the Governor end for the quid. ance of his judgment, there are no words in the UrdU nanre attaching to that result any legal effect, much less

any binding and conclusive effect ai against the grantee* And that do such effect can legally belong to it, is to be inferred by the same course of argument as was applied, in the case of " the Queen against Clarke," to the other directions given in thisHection to the Commissioners. I conclude therefore that, so far as this Oidinancc ig concerned, each grant was to be restricted within those limits alone, which were prescribed by the nature of the case and by the gc\eial i.iw. So much of the land comprised in any clai.n ai had in fact, been validly purchased from the natives, might be lawfully granted by the Gover.ior in the name of the Crown. The Governor did uot derive that power of granting from the Ordinance, but the Ordinnnre implied and assumed that he possessed it. If the Governor thought that in any particular case, the spirit of her Majesty's declaration rr quired him t) depart from the schedule, I do not see anything in the Ordinance to make such a departure unlawful or fatal to the validity of the grant. Upon the whole, then, the objects of the Ordinance were twofold : Fir^t, to promulgate on the highest authority the principle, that all titles aud claims to land in New Zealand, founded on purchase from the natives, wouM bs legally invalid and void, un'ess al* lowed by the Crown : and, aftur that, to furnish to the Governor of fie colony, means of determining what claims ou a ht to be ullovtcd, and to what extent. All that ha* been just now said ns to the extent of the Governor's authority to giant hind to any claimant, pre-supposes the Governor to be otherwise; at liberty to exercise his own judgment upon the merits of the claim. But it i* contended that in the case of this particular cluioo, G>vemor Fitz Roy was not at liberty to do so. It is maintained that Beattit's case had been settled and finally disposed of before Governor Fitz Hoy came into the colony, md thnt Governor Fitz Roy had no ldwlul authority to re-open the question. It is alleged in the declaration that Mr. Commissioner Godfrey's report, before mentioned, wib corlfirmed by the officer administeiin* the Government, for whoso in'ormaiion aud nuisance tint report was made, and that the confirmatnn Wjs published in tha New Z^lind Government G,z c ite of the 25th October, 1843. This is admitted, although (probably from, an error of the press,), the number of the chim, as st ited in the Gazette, differs from that which is twice given in the Rtpor\ The former is 245 ; the latter* 445. It is therefore contended th.t this grant is void, because it was made contrary to tha said Commissioner's Report, so made and confirmed, at aforesaid, and to the provisions of the Ordinances, session 1 , No. 2, and sse&ion 3, No. 3. As to the point that the grant was " contrary to the Commibsioner'a Report," my opinion has been indicated in what has been said as to die construction of the Land Claims Ordinance. I have stated my reaaons for thinking that a mere contrariety between the grant and the Report does not render the former in* valid. Also in the case of "the Queen against Clarke,'' much was said which will be found to beat* on tliis poi.it; both as to the distinct chaiactcrs of a ComuQissionei'* repoit and a Crown grant, and, genet ally, as to the mode in which the Couit is hound to construe this Oalinance. In that case also a confirmation by the Acting Governor was insisted on ; but it became unnecessary to consider the question of its legal effect, inasmuch as tho confiimatiun appeared to have lost any cfiect whion might have belonged to it, and to have fallen to the grounl, together with the Report itself, by the disallowance of the second Land Claims Oidhunce. The present case differs from the former ; for, here, nothing has occurred to displaie or affect the confirmation. We have, therefore, to enquue, Whether that confirmation by the A cuing- Governor Shortland took awoy from Governor Fiiz Roy tho power of making th • grant ? Does the Ordinance, then, contain any enactment fo this effect ? So fai fiom there being nny express en iclment tesueclii.g the effect of a confirmation, the Ordinance dies not requ re— do s not even mention— any confirmation at all. Doubtless a public notification of this sort might be highly convenient, for obvious reasons; but the O.dinance siys nothing a*'out it. It ia tiue that by the 4th Sec'ion of the second L".nd Claims Ordinance (Session 2. No 14,) a confirmation by the Governor is (in somewhat indirect terms) required in certain cases. •• Whenever it shall be reported by ' any Comnrssioner or Commissioners of Lmd Claim.* that any person is entitled, under the provisions of the said Ordinance, to a Giant of Lund in respect of his alleged purohaue, such person shall, on the report being confirmed by His Excellency the Governor, be entitled to a Grant from tho Crown out of the land validly sold to such pe i son, &c." It was, probably, out of this enactment that the practice of publishing confirmations in the " Government Gizjtte" took its rise. Bat however that may be, it is to be obseived that, in this O.dinance, confirmation is required, not ia reipect of every report, but of such reports on'y as were made in favour of the claimants,— that nothing is said as to the form in which the confirmation should be made, or as to the effect of the confirmation when made— and that this Ordinance itself had been disallowed, »nd the disallowance notified in the " Government G zette" before the confirmation, which we are now considering 1 , was publ shed. The public confirmation therefore, in this case, was a purely voluntary Act of the offiser administering the Government. If so, it seems iiupossiMe to maintain | that an act, which the Legislature had not deemed it necessary to require at all, could have a greater effect in barring the Crown and prejudicing the subject, than belonged to any of the acts which the Legislature had required in express terms. These lemarks apply to the cage of any giantee. But, in respect of the grantee ia the present case, there ia a further point to be noticed. He is described in the grant and on the record as " James Forbes Seattle, of Sydney, Now South. Wales ;" and this is all lhar is shown to the Court respecting him. For all that appears, he may never have been within this colony. Tha purchase would appear to have been effected through an agent ; for though it is admitted that Beattie purchased the island from the natives, the Commissioner's report says tha " Henry Taylor, on the 11th of January, 1840, made a bttrgain with the native chielp, but did not complete the purchase until the 3rd Maich, 1811." Now it is plain that Bealtie, as. a claimant of land wilhin this colony, was bound to take notice of the Oiditiancc by which the mode of disposing of the Land Claims wus prescribed. But u merely voluntary notification in the "Government Gazette" of New Zualuml, (whatever effect ii Ibight have here), could not of itself affect ,i person resident in another colony. 1 conclude then that Governor Fitz Roy might lawluUy enter upon llm consideration ot Beattio's case, notwithstanding all that had pa-srd. And having regard U> t!i j facts stated on the face of the report that the l>u^<nu wa-» madu with the native cvi fs on die IKb Januay, — tbal the Proclamation ibsued by tbc Governor of New South Y\ a'C3 at S)dney was dated 14 b ot tha s.ime month — that the purchase was sul.siquuitly complied ; seeing, also, that the report curtains no charge t-f f.aud, and bearing in mind the rules wbioU are oonsta itly &Qte<A [Continued in Supplement.]