SUPREME COURT.

New Zealand Mail, Issue 61, 23 March 1872, Page 5

SUPREME COURT.

THE QUEEN v. FITZHERBERT AND OTHERS. The following are the issues in this very important case, just decided before his Honor Mr Justice Johnston, and concerning which considerable public interest is felt : 1. Were the letters patent in the declaraion mentioned issued by or on behalf of her Majesty the Queen ?—Yes. 2. Have the said letters patent been entered of record in the office of the Secretary for Ciown Lands ?—Yes. 3. Were the lands in the said letters patent mentioned purchased by the New Zealand Land Company from the aboriginal owners thereof in the year .1839 ?—By admission after certificate of Judge of Land Court, the lands were purchased on bphalf of the New Zealand Company from a portion, but not the whole, of the owners thereof—(that is to say, that the conveying portion to the said deed were some, but not all, of the owners of the said land). 4. Did the deed conveying the said lands to the New Zealand Land Company contain a covenant by Daniel Wakefield, on behalf of the said company, that one-tenth of the land in the said deed comprised should be held in trust for the future benefit of the chiefs signing the same, their families and heirs for ever ?—Yes ; by admission. 5. Did William Mein Smith, in the declation mentioned, on or about the tenth day of August, 1840, on behalf of the New Zealand Land Company, and in pursuance of the said deed of September, 1839, select among other lands the lands in the said letters patent mentioned as reserves for the said chiefs, their families and heirs, and were such lands selected under the said deed or under the general scheme of the Company ? —He did so select in July and August, 1840, in pursuance of both the deed and the general scheme of the company. ' 6. Were the lands so selected by the said William Mein Smith in fact set apart and reserved for the purpose before mentioned ? They were set apart and reserved—that is, they were indicated and treated as lands which were not to be dealt with in a manner derogatory from the rights of the natives. 7. Was the title of the said company altered to that of the New Zealand Company, as in the declaration alleged ?—Yes. 8. Was Edmund Halswell, in the declaration mentioned, appointed by the said company on or about the 10th October, 1840, commissioner for the management of the said reserves ?—Yes. 9. Did the said Edmund Halswell let any of the lands so reserved and receive the rents thereof on behalf of the said chiefs, their families and heirs ?—He made arrangements for leasing some of the reserves on behalf of the natives, and gave notice of terms, but there is no proof of any actual lease except a statement by him that he had leased a portion of one section to a person named Barnett, and with regard to the others he received no offer. 10. Was the notice in the declaration mentioned given by the directors of the New Zealand Company to one of her Majesty's drincipal Secretaries ©f State ?—Yes. 11. Was the purchase of the lands in the declaration mentioned at any time allowed by or on behalf of her Majesty?—The purchase of the land in the declaration mentioned was not at any time directly allowed according to terms of deed of September, 1839, but the transaction between the company and the natives professing to grant the said land under which the company actually took possession thereof was taken as the basis of an arrangement between the Crown and the Company whereby on condition that the company should pay further consideration money, and should pay portions thereof to natives other than those who had joined in the deed. The Crown agreed to give Crown Grants to the company, in respect of a certain amount, (proportionate to the amount of the consideration) of such of the lands as the Crown should be certified by its officers that the company had fairly purchased, but that no part of the lands comprised in the said deed on which pahs or burial grounds of the natives existed, or on which there were cultivations occupied by the natives at the date of the deed should be included, and that in such Crown Grants no title should be given by the Crown to the company in respect of native land already selected and set apart for the natives by the company under their cove' nant in the deed—included in which were the lands included in the Crown Grant sought to be repealed.

12. Were the memorandum and schedule to the said grant annexed signed by W; A. M'Cleverty as in the said replication mentioned?—They were. 13. Was the said W. A. M'Cleverty an officer appointed by her Majesty to act in matters relating to lands reserved by the New Zealand Company for the benefit of aboriginal natives ?—He was appointed to act on behalf of her Majesty to assist the company, and see that the natives were fairly dealt with among other things with respect to reserves. 14. Are any of the native chiefs parties to the said deed of the 27th day of September, 1839, or any of their families or heirs now alive ?—There are some. 15. Did the deed mentioned in the declaration contain a covenant oh the part of the sellers to defend the purchasers against all former gifts and incumbrances whatsoever, and to protect them (the purchasers) in maintaining quiet and undisputed possession of the same lands ?—Yes. 16. Had the natives parties to the said deed an indefeasible title to the land thereby purported to be sold and conveyed, or had they any right to sell the same?—See certificate of Land Court. 17. Has the title of the sellers to the land in the said deed, and particularly to that . portion on which the town of Wellington is situate, been disputed by other aboriginal chiefs and natives and by certain British subjects, and have the claims of any British subjects been recognized, and grants of any of such land been issued to any claimants, and amongst others to " David Scott," "Alexander M'Donald," and "George Young" ?—The title of the sellers was disputed by aboriginals and the claims of the British subjects mentioned in the question were recognized and grants were given them in respect thereof 18. Were the New Zealand Company compelled to purchase the land the title to which was so recognised and grants of which were issued as aforesaid at considerable expense in order to fulfill engagements entered into by them with purchasers from them ?—Yes. 19. Did the sellers, parties to the deed of September, 1839, or any of them, repudiate the sale to the said William Wakefield ? Some of them repudiated some of the terms of sale, especially as to the land, which passed, averring that they never agreed to part with their pahs, burying places, or occupied cultivations. 20. Did her Majesty, prior to the making of the deed mentioned in the said declaration, declare her intention to assume, by treaty with the natives of New Zealand, the sovereignty of the islands of New Zealand, and declare that thenceforth, namely, from the ninth of August, 1839, no land should be ceded either gratuitously or otherwise except to the Crown of Great Britain ?—No such declaration was published in New Zealand till January, 1840. 21. Was there any arrangement made in the month of October, 1840, between certain persons who had purchased lands, part of the lands comprised in the said deed of September, 1839, from the said company and Sir Geo. Gibbs, and did such arrangement contain the following stipulations among others, namely, That the settlers must take their lands in one continuous block of 110,000 acres, measured in a compact manner, and that the mode of admeasurement must besubject to the approval of the Lieutenant-Governor of New Zealand. That of the 110,000 acres so measured, one-tenth part was to be reserved for the use or benefit of the aborigines according to the original plan of sale proposed by the New Zealand Company, and the lands for the aborigines should be selected by lot as provided for by the same plan of sale. That the selections for the aborigines were to be made by a person or persons nominated by the Lieuten-ant-Governor of New Zealand, and approved by him, and all selections then already made should be subject to his approval, the power being reserved to him to declare those selections void, and to make others should he deem proper so to do?—There were negotiations between such persons and Sir George Gibbs on the terms mentioned. 22. Were the lands comprised in the grant, or any of them, set apart for public purposes ? —Not otherwise than according to answer to q. 6; except that a hospital for all the Queen's subjects had been built on a portion of one section mentioned in the grant in the year 184723. Has her Majesty declared any trust of the lands comprised in the grant, or any of them, for the benefit of the natives parties to the said deed of the 27th September, 1839, or their tribes or families ?—Her Majesty never expressly declared any such trust in writing, but officers of the Crown and of the Colonial Government had frequently, before the date of the said grant, in the discharge of their official duties, treated the sections in question as having been, and being reserved, dedicated or available for the natives only ; and no claim or action of the Crown at variance with the right of the natives, to the exclusive benefit of such sections, had been made or done except the erection in 1847, on a portion of one of the sections, of a hospital for the use of all her Majesty's subjects. 24. Was the agreement proposed to be entered into by her Majesty and the New Zealand Company in November, 1840, completed and carried into effect ?—Dischai'ged from giving answer by consent. 25. Did the clause in the proposed agreement of November, 1840, refer to the agreement or covenant in the deed of September, 1839, or to the original scheme of the New Zealand Land Company ?—Discharged. 26. Was the scheme of the New Zealand Land Company carried out? —The original scheme was not carried out in its integrity, but the principal features of it were adopted. 27. Did the protector, or other officer appointed to act in that capacity by the Governor or Lieutenant-Governor of the province of New Munster, transmit to the Registrar of the district, in which the lands in the said

grant were situate, a statement ot the extent (as nearly as it could be ascertained) and ot the locality of the lands comprised within the grant as being . lands claimed by any natives parties to the said deed of September, 1839, their tribes or families, either as tribes or individuals, and either as a proprietary or a possessory title; and were such lands provisionally registered ?—No evidence.^ 28. Was a court constituted for investigating and deciding on the validity of any such registration? —No. 29. Was the right of any aboriginal natives, parties to the said deed of September, 1839, their tribes or families, to the lands comprised in the said grant, acknowledged and ascertained by any act of the Executive Government of the colony, or any court of competant jurisdiction, or did the Executive Government of the colony, or any court of competent jurisdiction adjudicate or decide that they, the natives aforesaid, had actually the occupation of such lands, or had been accustomed to use and enjoy the same either as places of abode, or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life by means of labor expended thereon ? There was no aeknowledgdment or decision that the natives had actual occupation or were accustomed, &c. . . . ; but there was an acknowledgment as stated in the answer to the 23rd issue, of the setting apart or dedication of the se.ctions in the grant for the benefit of the natives only. 30. Did the lands comprised in the said grant become vested in the New Zealand Company under the provisions of the act of the Imperial Government, 1847, intituled An Act to promote the colonization of New Zealand and to authorise a loan to the New Zealand Land Company ?"—Discharged. 31. Was the grant dated 27th January, 1848, in the replication mentioned, issued before or within six months of the passing of the last mentioned act ?—lt was issued four days after the expiration of the six months. 32. Was a hospital, or were any buildings for the benefit of the public erected on the said lands prior to the year 1850 ?—A hospital for the public was erected on one.of the sections in 1847. 33 Did the vendors, parties to the deed give to the Company quiet possession of all the land in the town of Wellington, agreed to be sold and and purported to be conveyed to W. Wakefield ?—They did not by their own acts disturb the quiet enjoyment of the Company, except as to portions which they had not intended to part with, viz, the pahs, &c. They had granted small portions to the Europeans named in issueNo 17, before September, 1839, and the title of these grants was admitted by the Crown. 34. Did tbe Queen appaint a Commissioner to enquire into the purchase by the Company ? —Yes. 35. Were the Company compelled to pay to the natives of the pah at Te An>, £3OO, to the natives of Kumutoto, £7O, to the natives of Pipitea, £7OO, and to the natives at Te Akewai,£2oo, as additional purchase money?— The Company paid to natives at Te Aro £3OO, to natives, Kumutoto, £2OO, to natives at Pipitea, £2OO, and to natives at Te Akiwai, £3O. 36. Were the lands comprised in the grant impeached, ever mediately or immediately ceded to her Majesty by the aboriginal natives of New Zealand who had the title thereto?— The only cession of the said lands or any of them to her Majesty were those, if any, through the cession made to the Company by the deed of September, 1839, and the agreement of the pah Taranaki natives, and the subsequent release, which are as follows ? —(Here copies of two documents signed by the Te Aro natives are given at length.) 37. Were the said lands at the time of the issue of the grant impeached lands in respect of which the rights of the said aboriginal natives had never been extinguished ?—Never, except through the purchase of September, 1839, and the documents set out in the answer to the last preceding issue. 38. Are any of the aboriginal natives mentioned in the 37th issue still alive ?—Yes.