HISTORICAL.

Otago Witness, Issue 2027, 29 December 1892, Page 33

HISTORICAL.

THE OTAKOU NATIVE LAND CLAIMS : THEIR ORIGIN, HISTORY, AND DEVELOPMENT.

(Written Specially fob the Otago Daily Times,) On the 24th September 1867 the accrued tents bo deposited amounted to L6O3L 18s 9d. which sum was paid to the Superintendent of Otaga, on his giving an undertaking in his official capacity and on behalf of the province that in the event of, the grant of the reserves, as to the whole or any part of the land, being declared invalid in any court of competent jurisdiction, or by the Legislature, he would pay such amount as was decided to be payable to the Colonial Treasurer." His letter further guaranteed the Government against all claims which may be made againsb the Crown or Government of New Zealand in consequence of the rents being paid over to the province. A select committee of the House of Representatives, to whom the validity of this payment was referred for investigation, reported on 26th August 1868, that they had not been able to satisfy themselves that this undertaking would be a good security in the absence of an appropriation by the Provincial Council of Otago. In November, 1869, the dispute was argued in the Court of Appeal under the name of " the Queen, plaintiff, in error, and James Macandrew, defendant, in error." A decision was given, not on the merits of the case, but on a technical point, as will be gathered from the following deliverances given by the judges on appeal. Chief Judge Arney : " Assuming that there was power in the Governor to make reserves of this description for the use of the aboriginal inhabitants, and that this particular reservation comes within the powers that he possesses, and presuming that these powers are referable to the 17th clause of the 13th chapter of the Eoyal instructions of 1846, it is my opinion that the declaration ought to show that the Governor was acting legally, and that the reservation was made within the law. It merely sets out certain facts which t are to be treated as assisting the allegation that these lands had a trust fixed upon them, and showing that the Governor had authority for making reserves.' I think the declaration is defective in regard to the making of the reserves, and that defect is not aided by the general allegation that the reserve was 'duly' made, nor does ib show that it was impressed with a trust. These are mere allegations in law, and no more. Then it is said that the defect is cured by the pleading over. That might be the case if in the plea there was any express averment that supplied the defects, but I fail to find any such averment. The averment in the 11th paragraph of the plea amounts simply to this: that the recommendations of Mr Mantell were made in ignorance. I cannot see how such an averment can be said to supplement the defective allegations in the declaration and make the averment of duly' made equivalent to an averment of the reserve having been made in accordance with the requirements of the law." Judge Johnston : "As far as I can understand the case, the only two grounds on which it has been suggested that the reservation could be made valid are (1) that the making of the reserves might come under the 17th section of the 13th chapter of the ftoyal Instructions 1846 ; and (2) if not, that inasmuch as other statutes bearing on the subject have spoken of •reserves ' as reserves made by the Governor, it must be assumed he had power to make them. I need hardly refer to the argument of tho learned counsel for the plaintiff in error as to the construction to bo put upon the recital in the Constitution Act, that therefore the power must be taken to exist ; but I may say that even if the learned counsel had shown that the Governor had such power, it cannot for a moment be contended that the Governor had unlimited license to do what he liked with the waste lands of the Crown. Tho learned counsel being a*ked to support Jhe declaration, does so by saying that tho allegation of reservation is supportable under the 17th section of the 13th chapter of the Royal Instructions, 1846 ; and I, for one, should bo very sorry to say that such a grant could not be supported. I can very well understand that the granting of land to Natives at European towns, possibly to Natives resident iv the neighbourhood, who necessarily would have business in the town, might be not only for their advantage but for the advantage •of the community generally. Therefore Ido nob for a momeub doubt that it would bo posbible to make a grant to a body of Natives— not mere particular Natives, bub a body of Natives inhabiting the district— for some such purposes as those alleged, and that; such a grant might come within the spirib and language of the 17th section ; bub in order to bring it within that ECction it must be shown that the title -was conveyed by those who had a right to convey it. The power to do so is not given to the Governor alone, but it is to the Governor (or Lieutenant-governor) 'of the province, with the advice and content of the 'Executive Council. Therefore, should it be allfged in pleading that there was a title, it certiinly would be necessary to show that the making of the reserves was by the Governor w!th the advice of the Executive Council. Now there is no allegation that it was so done, and it is only contended that ib is nob inconsistent with the reserve having been made with the advice of the Executive Council. The declaration does nob say thab this was submitted to tho Council, and that they approved of it. It is merely stated in the letter of Mr Domett, which is set forth, that his Excellency the Governor approved of the reserve being made. That I consider to be a substantial omission, showing a defect in the title under the 17th section. That is to say, supposing that it might have been done by deed or otherwise, if it was de facto done by the Governor without the consent of tha Executive Council, the deed would be void. Therefore there ought to have been an allegation that such conscut had been obtained. It is then contended that there are some allegations in plea which would help to cure the omis&ion. I am not prepared to say that this is a kind of omission which could be cured by plea, although it might be by verdict ; bub granting for a moment that ib is, I am clearly of opinion thab this is uofc merely a formal omission as nob stating a good title, but it is a substantial defect in setbicg up a title which has not been proved to be good, alien, giving the failed effect to the few authorities that can be cited on ihs subject, and which all relate to old times, a plea or any of its allegations can only be appealed to if there is an express allegatbn, as, for example, in this case, that the thing was done by the Governor with the advice of bis Executive Council. No such allegation exists, and it is very doubtful whether there is any ground for the contention iv tho declaration that the reserve waa made. Again, looking at the terms of the 17th section of the 13th chapter of the Royal Instructions 1646, I see that the made of making the reservation is

indicated. That, probably, ought to have been set out in the pleading, although it may be that the doctrine of pleading over would be a good answer, to some extent, at all evenbs. Ib may be said also bhab ib was nob so essential a matter as to make it absolutely necessary ,to state ib in the title. The subject having arisen in the early part of the argument, I put a question to the learned counsel on the matter, but- have failed to receive an answer. I find it now answered bo a considerable extenb in the 17th section, for that shows what making a reserve is. It shows that the act of reservation is the particular mode of setting apart for t g* benefit of the public: " The Governor or Lieutenantgovernor of any such province, with the advice and consent of the Executive Council thereof, shall in such chart as aforesaid cause to bo marked out and distinguished all such lands situated within and torming part of the demesne of the Crown as may appear best adapted for the site of future towns, &c, &c, or otherwise for any purpose 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 a common interest, all of which lands 6hall he called and known by the name of reserve lands." We have, therefore, the act of reservation necessary under the Becbion-r-namely, the marking and distinguishing in bhe sbatutory charbs. Now, it may be that if the objection taken to the declaration had been that this mode of statutory reservatibn ought to have been set out and was not, then, I think it might I have been fairly argued within tho scope of the ' authorities cited by the learned counsel for the j plaintiff in error that the allegation in the plea that the reserves wore made dc facto might have been sufficient to show that they were made according to law. However, it is not 1 necessary to decide that point. Under the cir- ! cumstances the court has no opbion bub to hold [ that bho declaration is bad. I do not thiuk j that it follows that the result pointed out by j the learned counsel is likely to take place — namely, that by holding this declaration to be bad, we should be affirming that the Governor had no power to make such reserves, or that there were no reserves made by law such as were contemplated by the recital of the Constitution Act, by the Public Reserves Act, and by the Native Reserves Act." The other judges concurred. Mr Allan, for the plaintiff in error, applied for leave to amend the declaration. The court reserved leave for him to apply before the close of the sittings. Plainly the case got into court on a false, or at least a defective issue, and was thrown out lon a technical objection. To" the unsophistii cated European mind a contingency of this kind is always perplexing and hard to realise. How much more so must it appear inexplicable to the minds of my people, to whom European laws and institutions were an innovabion on their own customs, springing up out of a sbate of things to which they were entire strangers. Ib made a strong, and I may add an abiding, impression on their minds, and down to the present day about the last thing they can be got to rely upon is the majesty of the law. 1 I contend, as I have incidentally done in the foregoing, that my people's claims were based on transactions of which no notice was taken in bhe proceedings before the Appeal Court, All thab is therein relied on is the action of Governor Grey in 1853, and no reference is made to the proclamation issued by Governor Fitzroy in 1844. That, I contend, was a fatal omission on the part of those entrusted with the case. Had the proclamation of 1844 been set forth, the court would have been confronted with the fact that this proclamation was an express condi-tion-precedent of the original purchase, and with that evidence before it its decision must have been widely different. It would have completely altered the aspect of the case. Ib would have gone to show that the pre-emptive righbß of the Crown were never removed from this particular piece of land, inasmuch as thab ib was land in the •• presenb use of the aboriginals." Consequently the Crown retained possession on behalf of and in trust for the Natives. I cannot impress this point too strongly on your attention, I have no desire to impute sinister designs, but I say emphatically the omission of all reference to the proclamation was a fatal mistake, on account whereof the Natives have suffered grievous wrong. Even the amendment of the declaration as put before tho court was never made, so that as a legal decision, although adverse to my people, ib can in no sense be regarded as a deliverance on the merits of the case. . That, in the entire transaction from first to last, a policy of Bhift, quirk, and expedient" has been resorted bo by the province for tho purpose of gtt'.ing, and afterwards retaining, possession of this land, must, I think, be evident. The way in which the Crown grant was obtained justifies me in using the word ••mendacious." We have Native Minister Richmond* memorandum, and Sir George Grey's, the then Governor, evideupe on the poinb. A clearer case of fraud and wilful imposition could not be conceived. Sir George Grey's evidence is most explicit. - He tells us the Crown grant was signed by him as Governor "in mistake," and that bhe error waa discovered the same day. Efforts were, then made to recall the grant, but it was found that ib had been shipped off to Oiago. Wherefore all bhis haste ? In the year 1865, when the grant was signed, communication between Otago and Wellington was not by any means a thing of constant occurrence. Even - now, after the lapse of a quarter of a canbury, we do not find ships waiting to take their departure with tho promptitude which seems to have characterifed this despatch, I contend, subject to your opinion, that we have here evidence of a deep-laid plot on the part of the provincial authorities to carry their point ab all lmard. I ask you, Sir, is the weaker, the less sophisticated race to suffer on account of such ''craft and cunaing ? JLre they and their children, like their ancestors in bhe last generation, who are now passed away, to be kept in poverty and distress simply because the race who undertook to succour and protect them, as they were strictly eujoined to do by the Government of their own country, chose to violate — nay, outrage—tho trust reposed in them? Pending your decision on their claims, now humbly submitted for your consideration, my people instruct me to say they will not allow their minds to be influenced by tuch an idea. I have only a word more to add in conclusion, and before doing so permit me to apologise for having trespassed so far on your time, which I am aware, during a session of Parliament, is otherwise heavily taxed. My people, although located at a distance from the seat of Government, are nob by any means indifferent to current events. The information they have received leads them to conclude thai in 3'oui 1 Native policy and proceedings there has been more l-ual practical administration fchau in those of your predecessors. They are, thereforo, encouraged to believe you will give their claims consideration, with a view to bringing them to a final adjustment, instead of, as heretofore, merely staviDg them off for an indefinite period.

Jehu SoulLfc3, of the Hult,- who arrived at Welling Jon 50 years ago, died on the 21st, aged 95.