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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

Enclosures. — (No. 1.) — Attorney-General's Report

Enclosures.
(No. 1.)
Attorney-General's Report.

On the course to be pursued under the terms of Lord Grey's despatch on the subject of claims to land under Governor Fitzroy's Proclamation, I have the honour to report as follows:—

The result appears to be this: that Governor Fitzroy's Proclamations are declared to have been issued by him without authority, and so to be null and void; but that the acts done under them are to be recognized so far as they were done in strict pursuance of them. That, in order to entitle any claim (whether under the first or the second Proclamation) to be entertained, two things must be proved: page 20(1.) That Governor Pitzroy, in waiving the right of pre-emption, did so in manner, within the extent, and according to the terms of his own Proclamation. (2.) That the claimant, on his part, complied strictly with the requisitions of the Proclamation: in other words, that the proceedings were throughout "in strict pursuance of" and "under the authority of the Proclamation." The Proclamations declared that the right of pre-emption would he waived over "limited portions of land," and in the notice of the 7th December, 1844, Governor Fitzroy declared that by the term "limited portion" was meant" a few hundred acres."

In cases where the right was waived over a greater quantity than a few hundred acres, the Act not being in strict pursuance of the Proclamation, the claim would, by a rigid construction of Lord Grey's despatch, be out of Court. But an interpretation more favourable to the claimant might, I think, be adopted, without a violation of the fair spirit of the despatch, viz., that the mere fact of the waiver being excessive shall not invalidate the claim, but that, if in other respects valid, the claimant may receive a grant not exceeding a few hundred acres (say 500 acres). In no case whatever can the claimant, according to Lord Grey's despatch, receive an absolute Crown grant in the usual form, but simply a deed, releasing in favour of the claimant any right which the Crown may have in the laud. The course to be pursued in the investigation of a claim preferred under the despatch would be this: (1.) It would be examined in order to ascertain whether Governor Fitzroy's Act in waiving the right was in "strict pursuance" of the Proclamation. If it should be found that the right had been waived over land reserved by the provisions of the Proclamation, then the claim would at once fall to the ground. If it should be found to be correct so far as Governor Fitzroy's acts were concerned, then the inquiry would be, Has the claimant, on his part, complied strictly with the requisitions of the Proclamation? If it should be found that the claimant has purchased the land from the Natives before obtaining the waiver of the right of pre-emption, or wilfully understated the quantity of land, &c., then the claim must fall to the ground by reason of the claimant having on his part failed to comply strictly with the requisitions of the Proclamation.

But, assuming a claim to have passed the first two stages of inquiry, then would arise the question, of title. Was the land purchased from the true Native owner or owners, according to Native law or custom ? The necessary evidence on this point is to be produced at the expense of the claimant, and, failing to be satisfactory, the claim would, after all the expense and delay incurred in the course of the investigation, fall to the ground.

But assuming, the evidence to prove satisfactory, then the claimant would be entitled to receive a decd releasing the Crown's right only, and in no case for a greater quantity of land than 500 acres, the remainder, if any, falling to the Crown as part of the Royal demesne.

Apart from its small intrinsic value, such a title, differing so widely from the ordinary absolute Crown grant, would always be looked upon with suspicion in the market. The claimant under it would be liable at any time, within a certain number of years, to actions and claims by Native claimants, and would frequently, for the sake of quiet possession, have to buy off or satisfy Native claims which had not been considered when the purchase was originally made.

W. Swainson,
Attorney-General.