LUNDON AND WHITAKER CLAIM.

Thames Guardian and Mining Record, Volume I, Issue 40, 22 November 1871, Page 3

LUNDON AND WHITAKER CLAIM.

Opinion of the Attorney-general on questions raised, by the lion Native Jhiniskr in relation to the claim of Messrs Whitaker and London. (1.) I think that the provisions of the 73rd section of the Constitution Act did not apply to the land in question after the issue of the certificate of title. These provisions apply only to the land owned or used by the Natives as tribes or communities. The certificate of title in this case had been issued certifying that certain individual Natives, four or five in number, were ownors of the land as tenants in common according to Native custom. Tin's is the usual form of certificate where the certificate is to be followed by a Grown grant of the fee-simple to the individuals named in the certificate. The certificate that a tribe is entitled would so state. The 23rd section of “ The Native Lands Act, 1865,” provides that any individual Native may make his claim, and for bringing it before the Court for investigation lie is to state what tribe or what persons arc interested with him. The Court is then to investigate and certify the names of tho persons or of the tribe who, according to Native custom are interested in the land. I have not seen the application in this case ; but the certificate did not find that any tribe or community was interested in the land, but, on the contrary, that certain persons named owned the land as tenants in common. The Court tlierforc did not find that the land was tribal. That finding is dccisivo as to the operation of the 73rd section of the Constitution Act. But even if the land had been tribal land, if the Court granted a certificate in the names of the individual Natives interested, I think that the provisions of the Native Lands Acts are such as to convert tribal title into title in the individuals as joint tenants, or, if the Court so found, as tenants in common, and to enable the individuals to deal with the land before Crown grant. It is to be remembered that the Native Lands Acts being later than the Constitution Act, and the General Assembly having the power to repeal, and therefore to alter the 73rd section, the 73rd section must be read subject to the Native Lands Act; and that- so far as the Native Lauds Acts are inconsistent with the 73rd section of the Constitution Act, the 73rd section must yield. In this case the Court certified that the Natives named were owners as tenants in common. I think it is clear that the operation of the Natives Lands Acts is to enable Natives who aro certified to be the owners of land according to Native custom to deal with the land before Crown grant. This was so under the Act of 18G2, and I think the 47th, 55th, 58th, and 75th sections of tho Act of 18G5, and the 17th section of the Act of 1867, shows that it is so under those Acts. It is true that the 74th section requiiing interpretation mentions only conveyance of lands “ granted” under the Act; but that cannot be held to limit tho interpretation and effect of the express provisions contained in the sections above refered to.

(2.) Mr Do Hirsch admits in his pamphlet that Messrs Whitaker and Lundon had the law on their side. That was so ; and it is certain that the decision of the Native Land Court under the Act of 18G9 deprived Messrs Whitaker and Lundon of the position which the law gave them under the Act of 1865. For Mr De Hirsclrs contract having been made before the issue of the certificate, was void under the 75th section of "The Native Lands Act, 1863.” If, as appears to be the case, Messrs Whitaker and Lundon’s contract was the first after the issue of the certificate, that contract was the first one binding on the Natives, and the negotiations or contracts of Mr De Hirsch prior to the issue of the certificate, though confirmed after the issue of the certificate, hut subsequently totlie contract with Whitaker and Lundon, did not affect Whitaker • and Lnndon’s contract; it was quite immaterial whether Messrs Whitaker and Lundon knew of the prior contract or not. The Bth section of the Act of 18G9 enabled Mr Dg Hirsch to obtain an order of the Court, the effect of which was to validate the contract of Mr Dc Hirsch, and consequently to render ineffective the contract of Messrs Whitaker and Lundon. James Prendergast.