Attorney General's Report.

New Zealand Spectator and Cook's Strait Guardian, Volume IV, Issue 229, 9 October 1847, Page 3

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 to be null and void ; but that the acts done under them are to be recognised so far as they were done in strict puisuance of them. Thai 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 preemption, did so, in manner, within the extent, aud according to the terms of his twn Proclamation, — and 2ndly. 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 be waived over '* limited portions of land," and in the notice of the 7th Dec M 1844, Governor Fitzroy declared that by the term " limited portion" was meant " a jew hundred acres," In cases where the right was waived over a greater quantity than &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 Croirn 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 exaraiued in order to ascertain whether Governor Fitzroy's act in waiving the right was in " strict pursuance " of the Proclamation. If it should bg found that the right had been waived over land 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 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 had purchased the land from the natives before x>btaining the waiver of the right of pre-emption, or wilfully understated the quantity of land, &c, &c, then the claim must fall to the ground, by reason of the claimant having on his part failed to comply, stiictly with the requisitions of the Proclamation. But assuming a claim to have passed the first two stages of the inquiry, then would arise the question of title. Was the, land purchased from the true native owner, or own- j ers, according to native law and 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 1 receive a Deed releasing the Crown's right only ; and in no case for a greater quantity 1 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. ' August 7, 1847.