SUPREME COURT IN BANCO.

New Zealand Times, Volume XXXII, Issue 5174, 22 October 1877, Page 2

SUPREME COURT IN BANCO.

Wednesday, Octobee 17. (Before their Honors the Chief Justice and Mr. Justice Richmond.) WI FAKATA V. THE BISHOP OP WELLINGTON JUDGMENT ON DEMUKBEII. His Honor the Chief Justice delivered the judgment of the Court in this case as follows : - In this case on the conclusion of the original argument for the plaintiff, it appeared to us that his counsel had-failed to answer the main objections raised to the declaration ; and upon the deliberate consideration which we have given to the case, we have seen no reason to alter that opinion. Laying aside, for the present all questions of procedure, the plaintiff,, in order to succeed, must begin by'establishing that the Crown grant to the Bishop of New Zealand and his successors is voidable on the grounds stated in the declaration. Of these the principal is, that the grant was issued by the then Governor without the knowledge or consent of the chiefs and members of the Ngatitoa tribe, and was a violation of the agreement and understanding between the native donors of the land and the Bishop, and a fraud upon the donors. Now the Crown grant, which is set out in the declaration, recites, that the land in ques--tion had, by what is called a deed from the natives, been ceded for the support of the school established by the grant. The declaration does not deny the existence of such a written instrument, and makes no averment respecting its contents. Specific allegations on this subject were, however, indispensable to show a cause of action. The alleged, treaty with the Bishop of New Zealand, if it ever existed, was a legal nullity, the right of extinguishing the native title being exclusively in_ the Crown. Allowing that the Crown might be bound in law by any stipulations made by the native owners respecting the purposes to which the land should be applied, it was clearly not bound by the alleged prior treaty with the Bishop ; and the declaration nowhere avers in specific terms, nor is it even inferable from its averments, that the trustsdeclared in the grant were other than those expressed in the act of cession. But further, we are of opinion that the Court has no jurisdiction to avoid a Crown grant, or anything therein contained, on the pretence that the Crown has not conformed in its grant to the terms on which the aboriginal owners have ceded their rights in the land, or that the native title has not been extinguished —except perhaps in a proceeding by scire facias or otherwise, on the prosecution of the Crown itself.

In giving our reasons for this conclusion, we shall first consider the matter without reference to certain recent colonial enactments which may be thought to affect it. On the foundation of this colony, the aborigines were found without any kind of civil government, or any settled system of law.. There is no doubt that during a series of years the British Government desired and endeavored to recognise the independent nationality of New Zealand. But the thing neither existed nor at that time could be establishedThe Maori tribes were incapable of performing the duties, and therefore of assuming the rights of a civilised community. Lord Normanby,in the often-quoted despatch to Captain Hobson, bearing date the 14th August, 1839, fairly expresses the difficulty in which her - Majesty’s Government found itself. His Lordship writes :—We acknowledge New Zealand as a sovereign and independent State, so far atleast as it is possible to make such acknowledgment in, favor of a people composed of' numerous, dispersed, and petty tribes, who possess few political relations to each other,.' and are incompetent to act, or even to deliberate in concert.” Such a qualification nullifies the proposition to which it is annexed. In, fact, the Crown was compelled to assume in relation to the Maori tribes, and in relation tonative land titles, those rights and duties, which, Jure gentium, vest in and devolve upon the first civilised occupier of a territory thinly peopled by barbarians without any form of law or civil government. Thus , the New South Wales Act 4 Vic., No. 7, after stating that it was expedient and proper to put beyond doubt theinvalidity of all titles to land within the islands of New Zealand, founded upon pretended purchases from the uncivilised tribes or aboriginal inhabitants, declares and enacts, —That all titles to land in New Zealand which were not, or might not thereafter, be allowed by her Majesty; were and should be absolutely null and void. The Land Claims Ordinance of 1841, repealing the New South .Wales Act, and making new provision on the same subject, does not at all recede from the position assumed by the Legislature of New South Wales in relation to the rights of the Crown over New Zealand. On the contrary, by section 2 it is “ declared, enacted, and ordained that all unappropriated lands within the colony of New Zealand—subject, however, to the rightful and necessary oooupa- * tion and use thereof by the aboriginal inhabitants of the said colony—are and remain Crown or domain lands of her Majesty, her heirs, and successors, and that the sole and absolute right of preemption from the said aboriginal inhabitants vests in and can only be exercised by her said Majesty, her heirs, and successors and then the clause goes on to declare void all pretended purchases from the aborigines which should not be allowed by the Crown. These measures were avowedly framed upon the assumption that there existed amongst the natives no regular system of territorial rights nor any definite ideas of property in land. (See the speech of Governor Sir GeorgeGipps on moving the second reading of the New South Wales Act above cited—Parliamentary papers, May, 1841.) They express the well-known legal incidents of a settlement planted by a civilised Power in the midst of uncivilised tribes. It is enough to refer, once for all, to the American jurists, Kent and Story, who, together with Chief Justice Marshall, in the well-known case of “Johnson v. Mclntosh (Wheaton, 543) have, given the most complete exposition of this subject. (3 Kent, Com. part vi., lecture li., p. 878 et seq. Story, Const., U.S., sec. 6, et scq.) Had any body of law or custom, capable of being understood and administered by the Courts of a civilised country, been known to exist, the British Government would surely have provided for its recognition, since nothing could exceed the anxiety displayed to infringe no just right of the aborigines. On the cession of territory by one civilised power to another the rights of private property are invariably respected, and the old law of the country is administered, to such extent as may be necessary, by the Courts of the new sovereign. In this way British tribunals administer the old French law in Lower Canada, the Code Civil in the island of Mauritius, and Roman-Dutch law in Ceylon, in Guinea, and at

the Cape. But in the case of primitive barbarians the supreme executive Government must acquit itself, as beat it may, of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice. Its acts in this particular cannot be examined or called in. question by bunal, because there exist uo known principles whereon a regular adjudication can be based. Here, then, is one sufficient reason why this Court must disclaim the jurisdiction which the plaintiff is asking it to assume. In this country the issue of a Crown grant undoubtedly implies a declaration by the Crown that the native title over the land which it comprises has been extinguished. For _ the reason wo have given, this implied fact is one not to be questioned in any Court of Justice, unless indeed the Crown should itself desire to question it, and should call upon the Court to lend its aid in correcting some admitted mistake. The existence of the pact known as the “ Treaty of Waitangi,” entered into by Captain Hobson on the part of her Majesty with certain natives at the Bay of Islands, and adhered to by some other natives of the Northern Island, is perfectly consistent with what has been stated. So far indeed that instrument purported to cede the sovereignty a matter with which we are not here directly concerned™it must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist. So far as the proprietary rights of the natives are concerned the so-called treaty merely affirms the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case. Our view of this subject is in accordance with previous decisions of this Court. In the case of the Queen v. Symonds (Parliamentary papers, December, 1817), both Judges cite and rely upon the American authorities to which we have referred. Thus it is manifest that in their apprehension the case of the ■Maoris, like that of the Indian tribes of North America, falls within those rules of the law of nations to which we have adverted. At Auckland, in 1858, it was held by Acting Chief Justice Stephen that New Zealand had formed part of the colony of New South Wales from the time of the foundation of the latter, with the result that the English Wills Act of 1835 was not in force here, the statute having been 'passed since the country became a British possession. The decision imports that the title of the Crown to the country was acquired, jure gentium, by discovery, and priority of occupation, as a territory inhabited only by savages. It led to the passing of the English Daws Act, 1858, the purpose of which measure was to fix the date which should be considered in om Courts as the foundation of the colony, g There is a second reason, closely connected with the former one, why the Acts of the Crown in its dealings with the aborigines for the cession of their title are not examinable m any Court of the country. Upon such a settlement as has been made. by our nation upon these islands, the sovereign of the (Settling nation acquiring on the one hand the exclusive rjtrht of extinguishing the native title, assumes on the other band the correlative duty, as supreme protector of the aborigines, of securing them against any infringement of their right of occupancy. (3 Kent, Com. uhi supra.) The obligation thus coupled with the right of preemption, although not to be regarded as properly a treaty obligation, is yet in the nature of a treaty obligation. It is one, therefore, with the discharge of which no other power in the State can pretend to interfere. The exercise of the right and the discharge of' the correlative duty, constitute an extraordinary branch of the prerogative, wherein the sovereign ■represents the entire body-politic, and not, as in the case of ordinary prerogative, merely the Supreme Executive power. (1 Bla. Com. 252 ; Rustonyee v. the Queen, Law Reports 1 Q.B.D. 493, judgment of Blackburn, J.) Quoad this matter, the Maori tribes are, ex necessitate rei, exactly on the footing of foreigners secured by treaty stipulations, to which the entire British nation is pledged in the person of its sovereign representative. Transactions with the natives for the cession of their title to the Crown are thus to be regarded as Acts of State, and therefore are not examinable by any Court. (The Nabob of Arcot v. the East India Co., 4 Brown, C.C. 180 ; Doss v. Secretary of State for India, Law’Keports 19 Eq. 509.) Especially it cannot be questioned, but must be assumed, that the sovereign power has properly discharged its obligation to respect, and causa to be respected" all native proprietary rights. But it may be thought that the Native Bights Act, 1865, has made a difference on this subject, and by giving cognizance to the Supreme Court, in a very peculiar way, of Maori'rights to land, has enabled persons of the native race to call in question any Crown title in this Court. This would bo indeed a most alarming consequence ; but if it be the law, we are bound so to hold. We do not understand what could be the doubt vaguely referred to in the preamble, “ whether her Majesty’s Courts of Law within the colony of New Zealand have jurisdiction in all cases touching the persons and property of the Maori people.” On the one hand, it has always been certain that a Maori could bring trespass or ejectment in respect of land held"by him under, a Crown grant. On the other hand, it has been equally clear that the Court could not take cognizance of mere native rights to land. Whatever doubt may now exist upon the latter point, is solely due to the Act itself. • Leaving the preamble, we pass to the third section; and in our remarks we shall disregard, as insignificant, the fact that the enactment is in form declaratory. Such declarations prove nothing as to the law, either past or present ; though" as enactments, they may make it what it is declared to be. (London and Whitaker’s case, 2 Court of Appeal, Kep. 57, 58, and 59.) The section is as follows: —“The Supreme Court and all other Courts of Law within the colony ought to have, and have, the*same jurisdiction in all cases touching the persons and property, whether real or personal, of the Maori people, and touching the titles to land held under Maori Custom and usage, as they have, or may have, under any law for the time being in force”—(this, we presume. Is meant to include the common law) —“in all cases touching the persons and property of naturalbom subjects of her Majesty.” , Whatever may be meant by the phrase “ the persons or property whether real or personal of the Maori people,” the next following words, « and touching the titles, &c,” can only signify that the Court is enabled and required to entertain and determine questions of native title. The Act speaks further on of the “ Ancient Custom and Usage of the Maori people,” as if some such body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being. As we have shown, the proceedings of the British Government and the legislation of the colony have at all times been practically based on the contrary supposition, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts. Ideas and practices respecting property Ju land, and the power of alienation to Europeans, which have been growing up since the settlement of the country, cannot affect the question. But the framers of the Act, conscious in some degree that the 3rd section would lay upon the"ordinary Courts of the colony an impossible task, have by the 4th section hastened to take off the burden which just before they had seemed to impose. The higher Courts having been mentioned, ns it were for the sake of form, all questions of native title are by the 4th section relegated to a new and peculiar jurisdiction, the Native Lands Court, supposed to be specially qualified for dealing with this subject. To that tribunal the Supremo Court is bound to remit all such questions, and the •verdict or judgment of the Native Lands Court is conclusive. If, therefore, the contention of the plaintiff in the present case be correct, the Native Lands Court, guided only by “the Ancient Custom and Usage of the Maori people, so far as the same can be ascertained,” is constituted the sole and unappealable judge of the validity of every title in the country.

Fortunately wo are not bound to affirm so starting a conclusion. Tho Crown, not being nametUn the statute, is clearly not bound by

it ; as the Act, if it bound the Crown, would deprive it of a prerogative right, that namely of conclusively determining when the native title has been duly extinguished. (Magdalen College, case 11, Kep. 75a.) If this prerogative be left intact, and we hold it is, the issue of a Crown grant must still be conclusive in all Courts against any native person asserting that the land therein comprised was never duly This conclusion is strongly confirmed by re-: markable provisions in the Native Lands Acts of 1867 and 1873. By section 10 of the former Act, a copy of the New ILesXaua Gazette, notifying the extinction of the native title over any land therein comprised, was made conclusive proof of that fact iu the Native Lands Court. This provision is re-enacted by the 105th sestion of the Native Lands Act, 1873, and is extended in its effect to all Courts, If such a notification respecting the lands here in question had ever been issued, it would, we apprehend, be an answer to any claim founded upon a supposed native title. But it does not appear that any such notice has been published. Nevertheless, we cite these provisions as plain intimations on the part of the Colonial Legislature that questions respecting the extinction of the native title are not to be raised either here or iu the Native Lands Court in opposition to the Crown, or to the prejudice of its grantees. In our judgment these enactments introduce no new principle, but merely provide a convenient_ mode of exercising an indubitable prerogative of the Crown. Before we proceed to other points in the case it seems desirable to notice a dictum of a learned Judge, lately a member of this Court, which seems adverse to our own conclusion. In that part of the Commentaries of Mr. Chancellor Kent, to which we have more than once referred, the learned author writes •. — “Even with respect to the Indian reservation lands, of which they still retain the occupany, the validity of a patent has not hitherto been permitted to be drawn in question in a suit between citizens of the State, under the pretext that the Indian right and title, as original lords of the sail, had not been extinguished ” (3 Kent Com., p, 378). Erom this passage Mr. Justice Chapman, in the judgment delivered by him in the case of Queen v. Symonds, appears to infer, that although the American Courts would not allow a graut to be impeached on the ground stated in a suit between their own citizens, “ yet they certainly would not hesitate to do so in a suit by one of the native Indians.” This surely is no legitimate inference from the statement of Mr. Chancellor Kent, and we believe it would be impossible to fiud authority for it. In North America the Crown was formerly accustomed to make grants of territory whilst the Indian title was still unextinguished. The patentee was always understood to take subject to the Indian right of occupancy, and was entitled to treat for its cession. This is quite certain— (Johnson v. Mclntosh, 5 Wheaton (judgment), 579) —and is even mentioned by Mr. Justice Chapman himself in this very judgment. It cannot therefore be true that a Crown grant could be impeached in an American Court on the ground supposed. Who could be plaintiff in such a suit ? The learned Judge appears to speak of an individual Indian. But the Indian title is communistic. Then could the tribe sue ? The very case which he presently cites of the Cherokee Nation versus the State of Georgia, 6 Peters, U.S., Kep. 1, determines that an Indian tribe has no persona standi as a plaintiff in the Courts of the United States. It appears clear that the learned Judge was mistaken in this particular. The fourteenth paragraph of the declaration states a ground for impeaching a grant to the Bishop of New Zealand, on which the plaintiff seems to place his principal reliance. The statement here is “ that the lands of Witireia were, and still, are lands, the native title to which has never been lawfully extinguished, and at the time of the said gift”—(we presume the Crown graut is meant) —“ they formed part of a reserve duly set aside by the Government of New Zealand for the exclusive use and purposesof the said Ngatitoa tribe, and thfe said tribe have never been permitted to sell or dispose of any portion of the said reserve lauds, &o.” The declaration discloses no authority in the Governor to make such a reserve, nor were we on the arguments referred to any law or regulation under which it could be done. Iu Regina v.Maoandrew (1 Court of Appeal), Rep. 172,the Court of Appeal inclined to think that under the Royal Instructions of 1846, the Governor nil'lit have power*, with the advice and consent of his Executive Council, to set apart reserves for the benefit of the natives out of blocks over which the native title had been extinguished. We are not aware of any other authority under which a native reserve could, at the date of these transactions, have been lawfully made. The concluding portion of this fourteenth paragraph is wholly unintelligible. As our opinion is against the plaintiff on the vital question which we have discussed at length, we need say less about the form of his procedure. But as the point is raised by the demurrer of the Attorney-General, it would be improper to pass over the matter in silence. It appears sufficiently clear that a Crown grant, which is voidable only for some defect not apparent on the face of the instrument, cannot be annulled except iu some proceeding in which the Grown is nominal, if not actual, plaintiff. This, we say, is sufficiently clear, though it may not be certain that a writ of scire facias is the only mode in which such a grant can be avoided m this colony. In the case of Queen v. Hughes (L. K. 1 P. C,, 81) the Judicial Committee of the Privy Council were of opinion that the leases there in question might have been impeached either by information in Chancery or by writ of intrusion. In either case the remedy pointed out is a remedy in the power only of the Crown itself. A subject is said to have a right ex dehito justitioe to a writ of scire facias to repeal a grant by which he alleges himself to be injured. But the Attorney-General on the part of the Crown has a discretion to exercise, “ It is matter of right,” according to Lord Campbell in the Queen v. Eastern Archipelago Co., 22 Law Journal Q.B. (judgment) page 213, “to all who are justly entitled to it; but those only are justly entitled to it who suffer prejudice by Letters Patent, and the breach of the condition upon which they have been granted. No mandamus would lie to the Attorney-General to grant hie fat for a scire facias lt is not a matter of course. With this agreed Mr. Barron Parke iu the same case in error, 23 Law Journal Q.B. (judgment) p. 99, although that very learned Judge differed on the main points of the case, both from the Lord Chief Justice in the Court below, and from the rest of the Judges in the Exchequer Chamber. Also the Attorney-General has control over the prosecutor’s proceedings, and may at any time interfere and enter a nolle prosequi. (Hindmarsh Pat. 397.) It is a common experience that in actions brought for the infringement of a patent for an invention, the defendant is allowed to impeach the validity of the patent if he can do so, and thereby to show that he is not guilty of the wrong for which he is sued. But in such an action the validity of the patent is not directly in question, nor conclusively determined ; and it has happened that after being defeated in one action the patentee has succeeded.in another; as in the cases of Arkwright v, Mordauut and Arkwright v. Nightingale, cited Foster on Sci. Fa, p. 243, Hindmarch on Patents, 384. The course of pleading in such actions affords, therefore, no argument for granting the relief here asked for, which, as annulling the grant, would bo a judgment in rem. The recent case of O’Shanassy v. Joachim, (Law. R- ports, Appeal Cases, 82), was also relied as showing that a grant may be declared void iu a suit between subject and subject. There, in several actions of trespass, the ■ invalidity of Crown grants to the infant plaintiffs was set up by way of defence. In this case also, judgment, had it gone for Sir John O’Shanassy, the defendant below, would not have been conclusive against the validity of the grants. Actually, the judgment of the Privy Council was in favor of the plaintiffs, and established the grants. Another point of distinction is, that these grants in O’Shanassy v. Joachim were objected to on the ground that the grantees, as infants, were incapable of taking any estate under them; which contention, had it been

sustained by the Judicial Committee, proved the grants to be not merely voidable, but absolutely void. But even this conclusion would not. have estopped the grantees (the Joachims) in a suit against a different defendant respecting other lands comprised in the grants.^ The case of Alcook v. Cooke, (5 Bingham 340), is a plainer authority to the same purpose. Here in an action of trover for a wrecked bowsprit, the defendant was allowed to impeach a grant from the Crown under the Duchy seal of Lancaster, (which is a record of the Court of'Chancery of the Duchy), upon an objection not appearing upon the face of the grant. Even in this case the validity of the grant came but incidentally in question, and was not conclusively determined. The judgment settled nothing but the right to the bowsprit. On the whole we see no sufficient reason to doubt the general posi- ■ tiou so often laid down, and correctly taken by the demurrer of the Attorney-General, that a Crown grant cannot be avoided for a matter not appearing upon the face of the grant, except upon a writ of scire facias, or by some analagous proceeding taken in the name or on behalf of her Majesty. (Foster on scire facias 246 ; Hindmarch on Patents, 64.) Although the present action is disposed of effectually by our ruliug on the points already noticed, it appears desirable, considering the public importance of the case, briefly to express our opinion on ulterior questions which were argued before us. Suppose, then, that the trusts of the grant had been confined, as on behalf of the plaintiff it is contended they ought to have been confined, to the establishment and maintenance of a school at Witireia for the children of the Ngatitoa, we are still of opinion that the plaintiff could not succeed in his present claim. If it were made out that this supposed object of the grant had become impracticable, there is abundant authority for the application of the rents and profits of the land to some purpose as nearly aspossible similar to the object of the original trust,according to the doctrine of cy pres. Thus, in the. case of AttorneyGeneral v. Glyn (12 Simons, 84), a school was founded for the education of the poor within a certain district ; the district was converted into a dock under a local Act of Parliament, so that the objects of the charity failed. The Court referred it to the Master to approve of a scheme for the application of the funds of the charity cy pres. The case of the Incorporated Society v. Price, before Lord Chancellor Sugden in Ireland (1 Jo. and L. 498), is also a good deal in point. There a grantor, after reciting that a school was intended to be erected in the neighborhood of Cashel, granted to the Incorporated Society a rent charge of £3O, to be applied fur the maintenance and support of the said school “in such manner as in such like schools they should direct.” In consequence of want of funds the Society discontinued the school at Cashel. It was held by the Lord Chancellor that the rent did not cease upon the school being discontinued.

But there are still other obstacles in the way of the plaintiff’s claim. No case can be cited in which, on the failure of the object of charity founded by deed, a resulting trust of land has been established in favor of the heirs of the donor. Any cases in which bequests for charitable purposes may have been held to lapse in consequence of their being uo object of the charity inexistence at the time of the testator’s death, are beside the purpose. Here the gist was by deed, and was not orginally for an impossible purpose. According to Coke, on the dissolution of a corporation its lands revert to the donors or their heirs. (Co. Litt. 13 B.) This appears to be the only instance in which such a right of reverter is admitted by the law. (Burgess v. Wheate, Wm. Black, 165, per Lord Mansfield.) But even in this case the right of the donor’s heirs does not extend to land held by the dissolved corporation upon trust for charitable purposes. Mr. 'Grant, in his work on corporations, states the matter thus “ The rule has been laid down in equity, that where lauds are given to a corporation for charitable uses, which, in the donor’s contemplation, were to last for ever, and it becomes impracticable to execute the charity, the heir-at-law can never have the land, but another charity similar to the former must be substituted by the Court, which the corporation must administer as long as the corporation itself, exists. When the corporation is dissolved, or otherwise becomes extinct, then, though the lands it holds to its own use will go to the heirs of the donors, those it holds to charitable uses will be administered for those uses by the Court of Chancery.” (Grant on Corporations, p. 117.) For this he cites Attorney-General v. Hicks. (Highmore on Mortmain, 336, 354.) Mr. Justice Story almost repeats this passage (Story’s Eq. Jur., § 1177), and cites the same case. Such a case can rarely occur, as there are no gifts of land nowadays in England upon charitable trusts. We find no modern authority upon the subject; but should be prepared, if necessary, to act upon the doctrine stated by Mr. Grant, and to decree the execution of the trust cy pres, rather thau allow a resulting trust in favor of the donors.

Lastly, we are of opinion that in law the Crown is to be regarded as the donor, and not the Ngatitoa tribe. It is wholly unnecessary to develop this objection, as there are so many other answers to the plaintiff's claim. The result is that the defendants must have judgments upon their respective demurrers. We have distinctly upheld the demurrer of the Attorney-General, and also the first part of the second ground of demurrer taken on behalf of his Lordship the Bishop of Wellington. The first ground of the Bishop's demurrer appears to amount to no more thau a verbal criticism upon the declaration, which is certainly exceedingly ill drawn. However, as the general nature of the plaintiff’s claim does appear with sufficient distinctness, and raises questions of great importance, it seemed desirable to base our judgment upon no minute criticism of the allegations made on his behalf. No objection was made to the general terms of the third paragraph of the Bishop’s demurrer, which necessarily raises all the substantial questions in the case. On the question whether a Maori chief can sue on behalf of his tribe, we wish to give no opinion. It is one of the difficult questions raised by the Native Eights Act, 1865. The plaintiff’s motion for an injunction and the appointment of a receiver must fail with his declaration. Demurrers allowed ; motion refused, with costs.