SUPREME COURT. Auckland, Tuesday, March 7th, 1848,

New Zealander, Volume 3, Issue 186, 11 March 1848, Page 3

SUPREME COURT. Auckland, Tuesday, March 7 th, 1848,

Queen r. George Clarke. Scire facias, to set aside Crown Grant; The Attorney General lor the Crown. Mr. Merriman for the Defendant. The Attorney General, in support of the Demurrer, began by obseiving that the object of the prft•ent proceedings wai to try the legality of a certain Grant made by Governor Fitzßoy, in the name of the Crown, purpoitinf? to convey 4000 acres of land to the Defendant, George Clarke, a claimant of land under the Land Claims Ordinance, Session 1, No. 2. The question at isiue being entirely a question of Lnw, he would confine himielf as strictly as possible to the point before the Court. The Grant in question he •would, in the first place, observe, wai not actually a Grant from the Crovrn, but a Gfant made, in the name of the Crown, by th« Governor of the colony for the

time being — an important distinction, but frequently lost sight of. The Governor oi a Colony, it would be admitted, had no power ex-officio to convey the lands of the Crown to a subject : he commonly executed conveyances of Crown Landt it was true : but always by an authority expressly delegated to him either by the Crown, or by Act of Parliament. At the date of the Grant in question (16 May, 1844), he, the Attorney General, contended that the Governor of New Zealand could only execute rated Grants of Crown Land, either under the authority, and pursuant to the provisions of the Imperial Land Salei' Act, 5 & 6 Vie. 3G, or under the authority of the Local Land Claims Ordinance Session 1, No. 2. The Grant before the Court was clearly not made under the authority of the former, but purported to be made under the provisions of the Land Claims Ordinance.— Was it thrn made in conformity with the provisions of that Ordinance ? It was admitted by the Defendant, on the Record, that the Deferdant's claim to Land was duly referred for investigation, pursuant to the provisions of the Ordinance, to two Commissioners (Messrs. Godfrey and Richmond) that these two Commibsioners duly heard and examined the Claim — and that on the 30th oi May, 1843, they reported upon the same, for the information and guidance of the officer for the time being administering the Government of the colony— that in their Report the Commiisioners recommended a Grant of 2560 acres of land, only, to be made to the Di-fendant — that their Report lecommending a Grant of 2560 acres, was confirmed by the acting Governor, for whose information and guidance the Report was made— and that the confirmation of the said Report was published in the Government Gazette of the 2lst June, 1843. Ie was pleaded, however, by the Defendant that nearly a year afterwards, viz. early in May, 1844, a succeeding Governor, Robt. Fitzßoy, Esq., referred this Claim to a single Commissioner, (Mr. Fitzgerald) who, under the authority as it « as alleged of the Land Claims Amendment Ordinance, Session 3, No. 3, recommended that a Grant of 5500 acres of land ihould be made to the Defendant. This Plea was demurred to on the part of the Crown as being insufficient in law. Ist . Because no single commissioner was authorised by the Ordinance, Sess. 3, No. 3, to rehe.»r any cl )im, or to reverse any report already duly made by two Commissioners under the provisions of the Land Claims' Ordinance, Session 1, No. 2. 2nd. Because no CommisEioaer could legally report upon any claim to Land which he had not himself heard and examined in manner prescribed by that Ordinance, And 3rd. Because that in recommending a greater quantity than 2560 acres, viz. 5500 acres, the single Comm'usioner was not authorised thereto by the Governor with the advice of the Executive Council. The point of the case then was this. Was a grant of land for upwards of 25G0 acres valid, if made contrary to the report of two Commissioners who had duly heard and examined the claims according to law, and lesting up. on tin* subsequent recommendation of a single Commissioner who had not heard and examined the claim pursuant to the provisions of the Ordinance, and who had not been specially authorised by the Governor in council to recommend a greater quantity than 2560 acres i The ground relied upon by the Defendant was that a single Commissioner, under the Land Claims' An endment Ordinance, Session 3, No. 3. had recommended the extended Now did that Ordinance constitute a single commissioner, a Court of Appeal— or a Court of Review, as to claimi to Land already heird and reported upon by two Commissioners ? or did it give to a single Commissioner a power of rehearing such claims ? Referring to that Ordinance, it would be found that, after reciting that it is expedient that all the powers and authontiei vested by the original Land Claims' Ordinance in any two Commissioners, should be vested in any single Commissioner, it limply enacts that "all the powers of hearing, examining and reporting on claims to land and all other the powers and authorise* given by the said recited Ordinance to any two Commiisioners may be exercised as fully and effectually by any single Commisiioner as the same have heretofore been exerciied by two Commissioners." But not a word, it would be observed, about re-hearing or reversing claims already heard by two Commissioner!. It might be convenient that tlu power of hearing such claims ab initio should be given to a single commissioner instead of to two ; but would it have been reasonable that one Commissioner should have been invested with the power of reversing reports duly made by two Commisiioneis ? Nay, could it be the intention of the original Ordinance that any claim after having been duly heard, examined, and reported upon, should be reopened and reheard by any number or Commibsioners ? For — was it not the obvious intention of the Land Claims' Ordinance that all claims to land should be disposed of and set at rest ? Was not the mode of proceeding with a view to that object, distinctly prescribed by the Ordinance ? Wai it not reasonable that when this course of proceeding had been strictly followed to the end that such proceeding should be final, and not open to a rehearing ? For if the proceedings prescribed by the ordinance were held to be final at no stage whatever, we might see a claim going on for years as far from being settled as ever, Governor after Governor referring, and re-referring it io all time. But if there was a stage at which these proceedings must be considered as brought to an end, as he, the Attorney General contended there certainly' must be, surely it must be after the claim had been duly heard, examined, reported upon, and confirmed, and particularly when this confirmation had, in the most authoritative manner, been communicated to the public in the Government Gazette Again reverse the cir- i cumstancts of the case. Suppose a claim to land to have been duly heard, examined, and reported upon by two L ommissioi.ers : suppose these too Commissioners to recommend a Grant of 2000 acres ; suppose their recommendation to have been confirmed by ibe G jvernor (or the time being— suppose that confirmation to have been proclaimed to the world by authority in the Government Gazette. Suppose that atter the interval of a year a new Governor arrives ; suppose him to refer this claim, so already formally dispoied or, to a new and single Commissioner, who, instead of 200J acres recommends that a grant of 200 acres only should be nude to the claimant — is ihere, he the Attorney General would ask, a single individual to be found who would maintain that the second report set asida and over- rode the first ? Until such a position was gravely maintained, he would offer no fui ther argument to prove that in this casejbefore the court, the recommendation of the single Commissioner of 5500 acres did not render invalid that already made by two Commissioners recommending 2560 acres. But lie was fur' ther prepared to contend that no Commissioner, nor indeed any number of Commissioners, could make a valid report, under the Land Claims' Ordinance on any claim which he had not hiHuelf heard and examined in the manner provided by that Ordinance — The object of the Ordinance was to respect purchases made on equitable terms from the native chiefs, and to allow Grants of the Land claimed to be made in a certain regulated proportion to the amount expended in the purchase. Atter reciting that it was expedient and n«cessary that "an inquiry be instituted into the mode in which such claims to land have been acquired — the circumstances under which such claims may be and are founded, and also to ascertain the extent and bUuation of the tame," the Ordinance authorises the

appointment of Commissioners, and given them " full power and authority to hear, examine, and report on all cUims to Grants of land," and by the 4th section provides that the claims shall be referred to the Commissioner, " to the end that all snch claims may be heard, examined and reported on for the information and guidance of the said Governor of New Zealand." And further that " the said Commissioners or any two of them shall proceed to hear, examine, and report on snch claims in manner thereinafter mentioned." And, as to the mode of proceeding, the 6th section, after directing that the Commissioners sha'l ascertain the price paid— the time and manner of the payment — the circumstances under which the payment was made— 'he number of acres to which the Claimant would be entitled according to the scale annexed to the Ordinance, &c, lastly enacts that if the said Commissioners or any txeo of them, (surely the Commissioners who he.ird the claim) "shall be satisfied that the claimant is entitled to a Grant," «' they, thesaid Com* missioners," shall report the same to the Governor and the grounds thereof and the situation, boundaries and extent of land to be comprised in such GrantLooking to the express terms of the Ordinance, or to its probable intention, would any one maintain that, one set of Commissioners might hear and examine a claim, and that another set of Commissioners, after the I lapse of a year, (or seven years, for the principle was the same) without examining and hearing could make a valid report upon it consistently with the provisions of the Land Claims' Ordinance ? But he, the Attorney General, was prepared to contest the validity of this Gnnt on grounds, if possible, still more conclusive. The Defendant it would be observed, rested the validity of his Grant on the report of a Commissioner wlw had recommended a Grant ot 5500 acres. Taking the Record as it then stood, it was admitted by the Defendant that the Commissioner was not authorise i by the Governor with the advice of the Executive Council to recommend an extended grant. Now, what was the provision of the ordinance ? Why, the 6 see* tion after providing as te the mode of the investigation and the nature of the Report, concludes with this expi ess proviso : " Provided, however, that no Grant of land shall be recommended by the said Commissioners which shall exceed 25G0 acres unless specially authorised thereto by the Governor wHh the advice of tlie Executive Council." If then, us it appeared, the recommendation ot the Commissioner that 5,500 acres should be granted to ihe Claimant, was not authorised by the Governor in Council, it would seem to follow as of course that|the recommendation was a nullity, and that the Grant before the Court purporting to rest upon that recommendation, could have no legal valiiity. Mr. Merßimak said he appeared for the Defendant, who was unwilling to allow the case to go by default, lest he should be considered as wanting; in respect for the Crown, and the Court, by not obeying the command of the wiit, but that he had been expressly instructed by his client not to argue the case. He wished, however, by the direction of the defendant, to have a written statement of facts by his chenc puc iv and read. The Chief Justice said that the question at issue being a simplj question of law, no new fact could now be leceived. He presumed that all the facts necessary for bringing the case to an issue had already been put upon the record. Mr. Mr.tiRiMAN admitted that such was the case. When he spoke of a statement of facts, he meant some account of the circumstances under which his client had made the purchase, gnd obtained the Crown Grant. The Cui&r Justice said there was nothing on the record calling in question the conduct, or casting imputation on the character of the Defendant. The matter was a dry question of hvv, and he could hear nothing, but strict legal aiguments. Mr. Merßiman was aware that he could not press the point, and was content to leave the case in the hands of the Court.