LUNDON AND WHITAKER CLAIMS.

17

G.—No. 6,

and this brings us to the one important point which yet remains to be noticed. During the course of Mr. Whitaker's ingenious and elaborate argument, he urged upon us the terms of "The Native Lands Act, 1869," as implying that, in the opinion of the Legislature, the construction of " The Crown Grants Act, 1867," section 7, is not what this Court has now pronounced it to be. Undoubtedly the provisions of the Act of 1869, and of section 8 in particular, imply that where the certificate bears a date subsequent to that of the order of Court in pursuance of which it is issued, the date for the vesting of the legal estate was, as the law then stood, in the opinion of the framers of the Act, the date of the certificate, and not the date of the order. In accordance with this view, the concluding proviso of the section seems to assume that transactions before the date of the certificate would be void, as contrary to section 75 of " The Native Lands Act, 1865." All this may be granted to Mr. Whitaker's argument. Or, let us suppose that the case was even stronger in his favour than it is. Let us suppose that the Act of 1869 had contained a recital that the leases to De Hirsch and Graham, and others in the same predicament, were void, but ought to be made good. The question is, whether such an indication of a bare opinion of the Legislature respecting the construction of previous Statutes is binding upon the Courts of the Colony. No doubt it would have been competent to the General Assembly to enact that the leases in question should be deemed to have been void. That would have been an expression of legislative will, to which the Courts would be bound to give effect; but here there was no intention to make void these leases, but, on the contrary, an intent to make them good. Are we, then, bound by the expression, not of will, that the leases should be void, but of opinion that they were void ? On general principle, this is, to say the least of it, very doubtful. The Imperial Parliament is not only the supreme legislative power within the Empire, but is also the supreme interpreter of the laws ; —judicially supreme. On principle, it would seem that the Parliament of a Dependency cannot, even within the limits of the Dependency, occupy an analogous position. Passing by the general question, we are at all events of opinion that the very terms of the Act of 1871, under which this case is stated, plainly require this Court to determine how the rights of the parties would have stood if the Act of 1869 had never been passed. The legal questions involved are to be looked upon as unprejudiced by any view of the matter which the Legislature itself may be supposed to have taken when it was passing the Act of 1869. That enactment bears, indeed, upon its face the stamp of ex post facto legislation. The Legislature, at the time, doubtless conceived it to be such. Were that opinion binding upon us, this case need not have been stated. The Act tacitly assumes that De Hirsch and Graham, without its provisions, had no title. The only real question for us has been, whether that assumption was, or was not, well-founded. The General Assembly itself calls upon us, by the Act of 1871, to express our opinion upon that point. Clearly, therefore, notwithstanding the Act of 1869, we are free to declare that the leases to De Hirsch and Graham were valid aborigine. That being so, it follows that John Lundon and Frederick A. Whitaker possessed no rights, at law or in equity, which have been taken away or affected by the passing of " The Native Lands Act, 1869," or by the proceedings taken in the Native Lands Court in pursuance of that Act.