G—6a

Such are gurgites, weares, fishing-places, &c., which are the very soil itself." In the case of the Abbot of St. Benedict, Hulm, it was held that a subject may have a separate right of fishing exclusive of the King, and of the common right of the subject, and that the right of the Abbot to have a several fishing was not a bare right of liberty or profit a prendre, but the right of the very water and soil itself, for he made weares in it " (Id.) And these rights may be in gross or appurtenant to a manor, as in the case of Blundell v. Cotterall. The grantee in Scratton v. Broivn, with title derived from Lord of a Manor, had only as his own freehold the sea-grounds and a piece of adjacent land for a boat-house. Blundell was held to own the fishery, and the shore to the exclusion of persons wishing to bathe, and he was Lord of the Manor. Lord Talbot De Malahide has oyster-beds at Malahide, near Dublin, which he periodically lets out to persons for money rents. And accepting the principle that all properties, rights, privileges, or easements of this character are held to be derived from the King, for prima facie they are all his, yet immemorial several use having been proved, the Courts will presume the grant. And in our case the title is older, for the ownership was before the King, and the King confirmed and promised to maintain it. I am therefore unable to see any conflict in the terms of this compact, but a clear and very intelligible description of rights, which were to be reciprocally ceded, acknowledged, and confirmed. Returning then to the point, whether the right which is the subject of our inquiry comes under the word " land," which will warrant an order for the soil, or under the word " fishery " which must limit the Court to a privilege or easement —it is remarkable that the use to which this land has been immemorially put by the natives is exactly the same as that to which the shore at Great Crosby was put by Blundell, the plaintiff in Blundell v. Cotterall, who had " the exclusive rights of fishing thereon with stake-nets, and of driving those stakes into the soil that they might support the nets." Still lam of opinion, though I do not hold the opinion without doubt, that, if the word " fishery " were not present in the Treaty, the word " land " would not suffice to support a claim in the natives to the foreshore of sufficient value to be turned into an absolute freehold interest in the soil, for a " fishery " will mean an interest of no higher character than a privilege or easement. Bayly, J., said in Scratton v. Brown : " I have already said that the grantee might have had either the soil or the fishery, or the mere privilege of laying and taking oysters ; or he might have taken the soil from the Crown by one grant, and the fishery by another." And I think that the Court, in deciding this, the first case of the kind that has occurred in the colony, is justified in allowing some weight to the consideration of the great public interests involved. I cannot contemplate, without uneasiness, the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the colony will be vested absolutely in the natives, if they can prove certain acts of ownership, especially when I consider how readily they may prove such, and how impossible it is to contradict them if they only agree amongst themselves. And lam not without precedent in allowing my mind to be influenced by such considerations. Best, J., dissented from the rest of the Court in BlundelVs case on the ground chiefly of the great public injury which would be inflicted. ••' lam fearful," said that learned Judge, "of the consequences of such a decision " [that the public are precluded from passing except at particular places over the beach to the sea without the consent of some lord of a manor] " and, much as I dislike differing from the rest of the Court, I cannot assent to it." The fact that the Government has been negotiating for the purchase of their rights is not needed to strengthen the case of the claimants, for it has not appeared what rights the Government recognised, and they may be the same that the Court awards. I have made no allusions to the Goldfields Act, 1868, for the provision contained therein was limited to " the purposes of that Act," and the Shortland Beach Act, 1859, simply kept things as they were, evidently to give time for Parliament to settle the question by legislation, which it has not done. I do not wish to encumber the judgment, which is already too long,_by referring to the questions that were raised before the Supreme Court in the case of Crawford v. Secren, for the sovereignty of the other islands would probably be found to rest on different acts of State ; and moreover, our case can be decided on other grounds. And, I must again express my hope that a case of so much importance will not be allowed to rest on the opinion of any Court except that of the highest in the land. Lyttelton's maxim that " the honour of the King is to be preferred to his profit " has not been forgotten, but it appears to me that there can be no failure of justice if the natives have secured to them the full, exclusive, and undisturbed possession of all the rights and privileges over the locus in quo which they or their ancestors have ever exercised ; and the Court so determines, declining to make an order for the absolute propriety of the soil, at least below the surface. 154. On the 23rd May, 1871, it was ordered that a certificate of title " of Nikorima Poutotara and Pineha Marutuahu to the exclusive right of fishing upon and of using for the purposes of fishing whether with stake-nets or otherwise the surface of the soil of all that portion of the foreshore or parcel of land between high water mark and low water mark at Grahamstown in the district aforesaid (Hauraki) containing fourteen acres and twenty five perches and known by the name of Kauaeranga No. 28a be made and issued to the Governor."

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