5662,
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PUBLIC RECORD OFFICE
Reference :-
C.O.
· 885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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No. 68.
(NEW ZEALAND.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, June 21, 1861. MY LORD DUKE,
We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 5th instant, stating that he was directed by your Grace to submit for our consideration a law passed by the Legislature of New Zealand, intituled “ An "Act to simplify the Law relating to the Transfer of Landed Property in New
Zealand."
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Sir Frederic Rogers added that your Grace was of opinion that the mode of trans- ferring landed property in a Colony possessing representative institutions and a respon- sible Government is prim-1 facie a matter of purely local concern, and that, even if any imperfect or inconvenient law were passed on such a subject, it would be unnecessary and impolitic for the Imperial Government to intervene for the mere purpose of protect- ing the Colonists from the consequences of their own ill-considered legislation.
Legislation, however, which tends to give residents in the Colony an undue advan- tage over persons not resident presents itself under a somewhat different aspect to the Home Government, and it is in this point of view that your Grace brings the present Act under our consideration.
By the 17th and 18th clauses of the Act, any person entitled absolutely to an estate in land in fee simple may claim registration of his interest, and the registrar may enter- tain an application for registration, subject to any specified incumbrance or trust.
The registrar is to require proper notices to be given of the application, is to examine the title deeds to the property, and, if satisfied with the alleged title, is to register the applicant as proprietor of the land (ss. 21–29).
"
It is then provided, section 33, that "the registry, as proprietor of land of any person, shall confer on the person so registered an indefeasible title in fee simple. "subject to the incumbrances, reservations, and other matters, if any, entered on the "register, and hereafter included under the term incumbrances, and subject also to "such charges and interest, if any, as are herein-before (by section 19) declared not to "be incumbrances, but free from all other estates, incumbrances, and interests what- ever, including estates, interests, and claims of Her Majesty, her heirs, and "successors."
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That it appeared to your Grace that to invest a public officer with the power of effecting, upon what might often be in the nature of an ex parte application, a regis- tration having the consequences here set forth, was a very hazardous step, and your Grace felt great doubt whether you could properly advise Her Majesty to leave in operation an Act which, independently of its effect on the resident Colonists, appeared to affect so seriously the security of landed property or encumbrances thereupon held by absentees.
Sir Frederic Rogers was therefore pleased to request that we would favour your Grace with our opinion whether, having especial reference to the interest of persons not resident in the Colony of New Zealand, this Act is, in our opinion, opon to serious objection.
And if it is, the nature of the amendments by which it might be rendered unobjec- tionable, at least as respects persons not resident or domiciled in the Colony.
In obedience to your Grace's commands we have carefully considered the above- mentioned Act, together with your Grace's observations, and have the honour to
Report
That we entirely concur with your Grace in the opinion that in matters of purely local concern it is most advisable not to control or interfere with the legislation of Colonial Representative Assemblies, but this rule ceases to be applicable when a Colonial Act affects to deal with the rights of all persons wheresoever resident, and expressly with the rights and interests of the Crown. Such a measure is in its conse- quences equivalent to an Act of Imperial legislation.
The conditions that ought to be observed previously to the establishment of a regis- try of title, and the entering on that registry of any alleged owner with a consequent statutory title against the whole world, is a subject which has long engaged the atten-
0 16978.-613. 15.-9/86.