PAPERS RELATING TO THE AUCKLAND ISLANDS.

Appendix to the Journals of the House of Representatives, 1863 Session I, A-05

A.—No. 5.

PAPERS RELATING TO THE AUCKLAND ISLANDS.

PRESENTED TO BOTH HOUSES OP THE GENERAL ASSEMBLY, BY COMMAND OF . HIS EXCELLENCY.

AUCKLAND.

18C3.

A.—Ko. 5,

PAPERS DELATING TO THE AUCKLAND ISLANDS.

No. 133.

copy of DESPATCH fbom govebnob sib geoegk gbey, k.c.b., to his gbace the duke of NEWCASTLE, K.G. Government House, Auckland, 31st December, 18G2. My Lokd Duke, — My Responsible Advisers have requested me to bring under Your Grace's consideration the doubts which they entertain regarding the powers which the Government of this Colony could exercise in relation to the Auckland Islands, which are within the boundaries of New Zealand, as defined in my Commission, but are excluded from the limits of the Colony by the New Zealand Constitution Act. The difficulties connected with this question are fully stated in the enclosed case, which has been prepared in hopes that your Grace would cause it to be submitted for the opinion of the Law Officers in England. I have, &c. G. Grey. His Grace the Duke of Newcastle, K.G.

Enclosure to Despatch No. 133. MEMORANDUM fob his excellency the govebnob. Auckland, 30th December, 1862. Since the passing of the Constitution Act of New Zealand, the political status of the Auckland Islands has been in considerable doubt, having apparently been included in the boundaries of New Zealand, as defined in the commission to Sir George Grey, K.C.B., and being excluded from the boundaries of the Colony specified, for the purposes of the Act, in Section 80of the Constitution Act. The enclosed case has accordingly been prepared for the opinion of the Law Officers in England, and Ministers respectfully request that such Opinion may be obtained thereon. Copies of the documents specified in the ease being more accessible at home than in this Colony, are not enclosed, excepting a printed copy of the Commission of the present Governor, which is transmitted, as more easily referred to in that shape. Alfred Domett. MEMORANDUM as to the Auckland islands. The position of the Auckland Islands is understood to be in about 51° South Latitude, and 166° East Longitude. The limits of the Colony of New Zealand, as affected by the Constitution Act, are precisely defined by that Act, (15 <fc 16 Vic, cap. 72, § 80,) the Southern Limit being 50' South Latitude. But that Act does not absolutely repeal the limits given in the Letters Patent of 1842, which latter differ from those in the Act, by extending to 53° South Latitude.

A.—No. 5,

The limit given in the Constitution Act excludes the Auckland Islands, and the reason for this exclusion is given in Sir John Pakington's Despatch to Governor Sir George Grey when forwarding the Act, in the following words (paragraph 34): — " The provision of Section 80, defining the boundaries of New Zealand, requires a short expla- " nation. " It appears to me that by your Commission the limits of your Government to the South are so " defined as to include the Auckland Islands, on which a separate settlement has lately been " established by British Colonists, and which it would be inconvenient to place within the limits of " New Zealand for the purposes of the present Act. " The boundary is therefore fixed at South Latitude 50°." This deliberate limitation of the boundary does not appear to have been brought under the notice of His Grace the Duke of Newcastle, when the subject of His Grace's Despatch, No. 61, of 10th June, 1861, was under consideration. His Grace writes to His Excellency that "it will rest " with your Ministers and your Legislature to determine what steps can properly be taken to utilise " the Auckland Islands." But I must respectfully submit that the clear limit set by Section 80 (above referred to) will preclude a Legislature, whose authority rests solely on the Constitution Act, and Ministers, in so far as they are responsible to that Legislature, from any interference with the " Auckland Islands," at least until the question be brought more directly under the notice of the Secretary of State, or, if necessary, of the Law Advisers of the Crown in England. Meantime the disposal of Messrs. Young and Ford's renewed application for a lease of these Islands rests entirely with His Excellency Sir George Grey, as the sole representative of the Crown in that locality, if it is held, as it appeal's to be from His Grace's Despatch (No. 61, 10th June, 1861,) that His Excellency's Commission extends beyond the limits of the Colony as defined by the Constitution Act, as far as the former limits prescribed by the Letters Patent of 4th April, 1842. If it shall be thought proper to submit the difficulty, as to the administration of these Islands, to the Law Officers of the Crown, it will be necessary to lay before them copies of the following documents. (1.) Letters Patent defining the Colony, 4th April, 1842. (2.) The Constitution Act, (15 & 16 Vie, cap. 72,) particular attention being drawn to Section 80. (3.) The existing Commission and Instructions to His Excellency the Governor. (4.) The Lease of the Auckland Islands to Messrs. Enderby. And the Queries to which the Law Advisers of the Crown may be asked to furnish replies, are— (1.) Does the existing Commission to His Excellency include the Auckland Islands ? (2.) Does the Authority of the Colonial Government extend to these Islands ? (3.) What steps are necessary to secure the surrender of all interests existing in Messrs. Enderby or their assigns under the Lease referred to 1 Attorney-General's Office, Auckland, 18th December, 1862.

NEW ZEALAND. No. 63.

copy of DESPATCH fbom his grace the duke of Newcastle, e.g., to governor sir geohge GREY, K.C.B. Downing-street. 18th June, 1863. Sir,— I referred for the opinion of the Law Officers of the Crown the Memorandum submitted to you by your Responsible Advisers which accompanied your Despatch No. 133 of the 31st December, upon certain questions which had arisen as to the powers of the Government of New Zealand in relation to the Auckland Islands. I have the honor to enclose for your information a copy of the answer which has been returned to that reference together with a copy of an Act which has been passed by the Imperial Legislature to alter the boundaries of New Zealand so as to include the Auckland Islands within the limits of that Government. You will of course act in the manner pointed out by the Law Officers in the 3rd paragraph of the letter for putting an end to all claim to these Islands, under the lease which was granted to them, on the part of the Messrs. Enderby or their Assigns. I have, <fcc, Newcastle. Governor Sir George Grey, K.C.B.

2

PAPERS RELATING TO

A.—No. 5

Enclosure to Despatch No. 63. THE LAW OFFICERS TO THE DUKE OF NEWCASTLE. Temple, April 9th, 1863. My Lord Duke, — We are honored with your Grace's commands signified in Sir Frederic Rogers' letter of the 31st ultimo, stating that he was directed by your Grace to request that we would favor your Grace with our early opinion on certain questions which have arisen respecting the present position of the Auckland Islands, and which are raised in a Memorandum submitted to the Governor of New Zealand by his Responsible Advisers, and by him transmitted to your Grace. Sir Frederic Rogers was also pleased to state that he enclosed a copy of this Memorandum and copies also of 1. The Letters Patent of 4th April, 1842, defining the limits of the Colony of New Zealand. 2. The New Zealand Government Act (15 and 16 Viet. cap. 72). 3. The Commission of Sir George Grey. 4 and 5. Two Parliamentary Papers (No. 182 of 1853, and No. 369 of 1855) respecting the lease of the Auckland Islands to the Messrs. Euderby. And that from these documents we should perceive that these Islands wen leased to Messrs. Enderby in the year 1847, subject to an obligation of paying £1,000 a-year rent after the first two years, and to a right of re-entry in case of non-payment. (P.P. 122 of 1853, p.p. 22-23.) And that we should also see that the Islands were occupied and abandoned by Messrs. Enderby and a Company to whom Messrs. Enderby were alleged to have assigned their interest, and that in 1853 this Company were prepared to surrender their interest to the Crown, but conceived that they were not legally in a position to do so. (PP. 3G9 of 1853, p.p. 30-31). And that it need hardly be said that if any rent was ever paid to Her Majesty's Government it has long ceased to be paid. And that we should also perceive that the Auckland Islands are within the limits of New Zealand as defined by the Letters Patent of 1842, but not within these limits as defined by the New Zealand Government Act " for the purposes of that Act," that the Commission of Sir George Grey constitutes him Governor of New Zealand, without defiuing the limits of the Colony, and that the Government of New Zealand are desirous to ascertain whether these Islands ai"e within the scope of Sir George Grey's Commission and their own authority, and what steps should be taken to secure the surrender of Messrs. Enderby's interest. Sir Frederic Rogers was also pleased to state that your Grace is of opinion that the Auckland Islands should be incorporated into the Colony of New Zealand, and that your Grace would be prepared to propose to Parliament a Bill (of which a draft was annexed) repealing the Statutory definition of New Zealand (14 and 15 Viet. cap. 72, sec. 80), and substituting a new definition in accordance with the Letters Patent of 1842, and therefore embracing the Auckland Islands. And that your Grace would therefore be glad to learn whether this draft Bill would be proper and sufficient for its purpose, and what other steps if any, would be necessary to place these Islands unequivocally under the authority of the Government and Legislature of New Zealand, and to extinguish the dormant interest of the Messrs. Enderby and their alleged Assignees. In obedience to your Grace's commands, we have taken these papers into consideration, and have the honor to Report—■ 1. That in our opinion the authority of the Colonial Government of New Zealand does not now extend to the Auckland Islands. Upon this point, we think there can be no room for doubt, having regard to the 80th section of the New Zealand Government Act. 2. That we also think the existing Commission to His Excellency Sir George Grey does not include the Auckland Islands. That commission recites the commission of the preceding Governor, Colonel Gore Browne, as having constituted him Governor, &c, " in and over our Islands of New Zealand," and then (without any other description or mention of the Colony,) it proceeds to constitute and appoint Sir George Grey, Governor, &c." in and over " our said Colony of New Zealand and its Dependencies;" commanding him "to do and execute all things in due manner, that shall belong to your said command, and the trust we have reposed in you, according to and in pursuance of an Act, &c." (referring to the New Zealand Government Act) "and according to such reasonable laws as are now in force in our said Colony, or hereafter shall be made by the General Assembly of our said Colony." It appears to us that, according to the true construction and import of these words (with which the whole sequel of the commission agrees) the " Colony of New Zealand and its Dependencies," of which Sir George Grey is constituted Governor, is that defined in the 80th section of the New Zealand Government Act, which does not include the Auckland Islands. And we are further disposed to think that the first section of the New Zealand Government Act had itself the effect of repealing the former definition of the Colony, contained in the Letters Patent of the 4th April, 1842, so far as that definition was at variance with the 80th section of that Act. 3. Nothing more is necessary to put an end to all claim of title on the part of the Messrs. Enderby, or their Assigns, under the Lease of the 1st March, 1847, than that Her Majesty should exercise Her power of re-entry for non-payment of rent ; and this may be done by directing Sir George Grey, on behalf of Her Majesty, to cause possession of the Islands to be retaken ; and to notify such re-entry thereon, and the determination of Messrs. Enderby's lease, in the "New Zealand Government Gazette," after the intended Act to re-incorporate the Auckland Islands with New Zealand shall have been passed.

3

THE AUCKLAND ISLANDS.

A.—No. 5.

4

PAPERS RELATING TO AUCKLAND ISLANDS.

15 and 16, Vie, c, 72

4. The Bill, which your Grace proposes to introduce into Parliament, is, in our judgment, well adapted for the purpose in view ; and if passed, according to the draft as prepared (of which we entirely approve,) it will have the effect of placing these Islands unequivocally under the authority of the Government and Legislature of New Zealand, without any necessity for a further Commission or Instructions from Her Majesty to Governor Sir George Grey. We have, <fec, W. Atherton, Eoundell Palmer. His Grace the Duke of Newcastle, KG.

Colonial Secretary's Office, Auckland, 29th August, 1863. His Excellency the Governor directs the publication of the following Act passed by the Imperial Parliament, entitled " An Act to alter the Boundaries of New Zealand." Alfred Domett

ANNO VICESIMO SEXTO VICTORIA REGIN^E. Cap. xxiii. An Act to alter the Boundaries of New Zealand. [8th June, 1863.] Whereas by the Eightieth Section of an Act of the Fifteenth Year of Her Majesty, Chapter Seventv-two, intituled " An Act to grant a Representative Constitution to the Colony of New Zealand," it was provided, that for the Purposes of that Act the said Colony should be held to include the Ten-itories therein mentioned : And whereas it is expedient to alter the Limits of the said Colony as declared by the said Act : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows : 1. So much of the Eightieth Section of the aforesaid Act of Parliament as declares the Limits of the Colony of New Zealand for the Purposes of the said Act is repealed. 2. The Colony of New Zealand shall for the Purposes of the said Act and for all other Purposes whatever be deemed to comprise all Territories, Islands, and Countries lying between the One hundred and sixty-second Degree of East Longitude and the One hundred and seventy-third Degree of West Longitude, and between the Thirty-third and Fifty-third Parallels of South Latitude.