PETITION.

7

G—N«. I

There are three distinct periods, representing three several stages through which land brought into the Native Land Court passes. 1. The period between the application and the order made in Court. 2. The period between the order of the Court and the issue of the certificate. And, 3. The period between the issue of the certificate and the issue of the Crown grant, which is the final proceeding. All transactions during the first two of these periods have been already declared to be invalid, save as excepted by the Act of 1867, and the question for consideration now is whether the issue of the certificate makes any such change in the legal character of the land and the capacity of the persons who are certified therein to be the owners, as would exclude it from the operation of the 73rd clause of the Constitution Act. And here I must state that there is not, in my judgment, any public or political grounds which should render the making of simple contracts respecting land during the second period less reasonable and proper than during the third period, although it is clear that the same principle cannot be applied to leases, conveyances, or any final instrument; because, notwithstanding that the owners are as distinctly ascertained iv one case as the other, yet, from the imperfections of plans, and frequent alterations of boundaries ordered by the Court, it would generally not be possible to make an instrument which would be final between the parties, and not have to be followed by another until the issue of the certificate. In order to understand the 73rd section of the Constitution Act, it will be necessary briefly to glance at the common law regulating the acquisition of lands from aboriginal natives. " The general law of England," says Chief Justice Martin (in the Queen v. iSymonds) "or rather of the British Colonial Empire, in resjsect of the acquisition of lands has from time to time stood as follows : —Whenever in any country to which, as between England and the other European nations, England had acquired a prior title, by discovery or otherwise, there were found lands lying waste and unoccupied, and the same came to be occupied and appropriated by subjects of the British Crown, it was holden that subjects did not, and could not, thereby acquire any legal right to the soil as against the Crown. And this rule was understood to apply equally, whether the country was partially peopled or unpeopled, and whether the settlers entered and obtained possession with or without the consent of the aboriginal inhabitants. Accordingly, Colonial titles uniformly rested upon grants from the Crown. This was the case with the oldest British Colonies in America, and it is notorious that the same rule has been acted upon without deviation or exception in the more recent colonisation of Australia." And to such a length was this doctrine carried in Canada that according to the evidence of the Hon. Mr. Edward Ellice, given before the Committee on the Hudson's Bay Company, the Crown in. that colony has not been in the habit of giving the Indians any compensation for the loss of their estate in the lands granted. Nor is this the rale and practice of England only, but (by derivation from England) •of the United States of America. Chancellor Kent (vol. 111., page 379) says in his commentaries on. American Law : —"The European nations which established Colonies in America assumed the ultimate dominion to be in themselves, and claimed the exclusive right to grant a title to the soil, subject only to the Indian right of occupancy. The natives were admitted to be the rightful occupants of the soil with a legal as well as just possession of it, and they were allowed to use it according to their own discretion, though not to dispose of the soil at their own will, except to the Government claiming the right of pre-emption." Again (in p. 385), after speaking of the several local Governments both before and after the American Revolution, he says : —" Those Governments asserted and enforced the exclusive right to extinguish Indian titles to land by fair purchase under sanction of treaties, and they held all individual purchases from the Indians whether made with them individually or collectively as tribes, to be absolutely null and void." The statute law of New Zealand has throughout been framed in accordance with this doctrine. The rights of the Crown in the territory of the Colony have been uniformly maintained until 1862, when the Colonial authorities, having accepted the management of Native affairs, made a very considerable relaxation of the rule, but up to that time the statute law was simply in affirmance of the •common law, and the rights of the Crown in the waste land of New Zealand, as between itself and its subjects of European birth and origin remained the same, although the views of the Imperial Parliament and of the Crown appear to have constantly varied with respect to the nature and extent of the territorial rights and interests possessed by the aborigines. At first the Maories were regarded by the Crown as an independent and organised State, capable of forming a treaty; and a treaty was formed with them on the 16th of February, 1840, by which they obtained "all the rights and privileges of British subjects," and a confirmation and guarantee of " the full, exclusive, and undisturbed possession of the lands and estates, forests, fisheries, and other properties which they collectively possessed, so long as they wished and desired to retain the same in possession," and they yielded to the Crown right of pre-emption " over such lands as they might be disposed to alienate," and ceded as well "all rights and powers of sovereignty possessed by themselves over their respective territories as sole sovereigns thereof." The Charter of 1840, erecting the Colony of New Zealand, empowers the Governor to make and execute in Her Majesty's name and on her behalf, under the public seal of the Colony, grants of waste lands to her belonging within the same, " and provides that those letters patent should not effect the rights of any aboriginal Natives of the Colony, to the actual occupation or enjoyment in their ownpersons of the lands now actually occupied or enjoyed by such Natives." The idea here seems to have been that the Governor might grant all lands except those actually occupied by Natives, and in accordance with this view he was instructed by the Crown in the same year "to cause a survey to be made of all the land within the Colony, and to divide and apportion the whole of the said Colony into counties." And Her Majesty declared "itto be Her will and pleasure that all the waste and unclaimed lands within the Colony belonging to and vested in Her Majesty, which should remain (after making certain reserves) should be sold and disposed of." At this time, then, all the waste lands were held to be in the Crown, with the exception of such land as might be reserved for the uses and in manner specified, and such lands as were actually used by natives. A statute of 1841, passed by the Governor and Legislative Council, called "Land Claims Ordinance, No. 1," goes on the same principle. The second section says, "It is declared, enacted, and ordained that all unappropriated lands within the said Colony of New Zealand, subject,'however, to the rightful and