Attorney General's Report.

New Zealander, Volume 3, Issue 125, 11 August 1847, Page 3

Attorney General's Report.

On the course to be pursued under the terms of LordGrej's despatch on the suf-jeot of Claims to Land, under Governor Fitzioy's Proclamation j 1 have the honor to repot i, as follows : — The result appears to be this. That Governor Fitzroy's Proclamations are declared to have been issued by him without authority, and to Ibe null and void ; but that the acts done under them are to be lecognised so far as they were done in sti ict 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. Ist. That Governor Fitzroy in waiving the right of pre-emption, did so, in manner, within the extent, and according to the terms of his own proclamation, — and 2udly. 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 u under the authority of the Proclamation.'* The Proclamations declared that the right of preemption would be waived over '• limitedjwrtions of land," and in the notice of the 7ih Dec, 1844, Governor Fitzroy declared that by the terra ••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 Tact 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," (§ay 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 land. The course to be pursued in the investigation of a claim preferred under the Despatch would be this :— Ist. It would be examined in order to ascertain whether Governor Filzroy's act in waiving the right was in "strict pursuance" of the

Pioclamation. If it should be found that the right bad been waived over laud reserved by the provisions of the Proclamation, or in any other manner at variance with the terms of the Proclamation, then, the claim would at once full to the ground. If it should be found to he con ect, so far as Governor Filzroy's acts were concerned, then the inquiry would be:— lias the claimant on his part complied strictly with the requisitions of the Proclamation ? if it should be found that the claimant had purchased the land from the natives before obtaining the wuiver ofthe light of pre-emption, or wilfully nndeistated the quantity ofland, &c, &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 the enquiry, then would arise the question of title. Was the land purchased from the true native owner, or owneis, according to native law and custom f The necessary evidence on tlm 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 incurted in the couise of the investigation, fall to the ground. But assuming the evidence to prove satisfactory, then the claimant would be entitled to receive a Deed releasing the Crown's right only j and in no case for a greater quantity of land than 500 acres; the temainder, if any, falling to the Crown, as part of the Royal demesne. Apart from its small intrinsic vaJue, such a title, differing so widely from the ordinary absolute Crown Grant, would always be looked upon with suspicion in the mat ket. The claimant under it would be liable at any time within a certain number of yeais, 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. \V. SWAINSON, Attorney-General August 7, 1847.