PUBLIC RECORD OFFICE
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C.O.
Reference :-
885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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7th. To make rules as to the apportionment of such charges, or the investiment of the purchase money (if paid at once) for the benefit of the sellers, or for other native purposes of a more general kind. And with reference to the above questions Sir Frederic Rogers drew our attention to the Colonial Acts. Those Acts were passed under the general power of legislation con- ferred upon the General Assembly by section 53 of the Constitutional Aot, and left to their operation by Her Majesty.
That it was assumed, but on this point your Grace is pleased to request our opinion, that neither Her Majesty nor the Governor acting under Her authority could make or authorise the natives to make any regulations which would be binding on Europeaus resident in the districts set apart under the 71st section of the Act, and that Her Majesty and the Governor would be equally incompetent, without the 'sanction of the General Assembly, to authorise the alienation or leasing of native lands to any European.
That in case we should be of opinion that Her Majesty could not directly empower " on which the surrenders of native the Governor "to prescribe or regulate the terms lands should be made, Sir Frederic Rogers requested our opinion whether the same object could not be accomplished by leaving to the Governor the absolute discretion which he at present possesses with respect to the acceptance or non-acceptance of such surrender, and instructing him, with or without the advice of his native council, to frame and promulgate rules respecting the conditions by which he may intend to be guided in exercising that discretion.
Sir Frederic Rogers added that, in submitting for our consideration the above description of powers with which it was desirable to invest the Governor, your Grace would be glad to learn from us if, on perusing the Act of 15 & 16 Vict., we are of opinion that any other and greater powers could legally and properly be conferred on
that officer.
In obedience to your Grace's commands we have carefully considered the above- mentioned questions, together with the accompanying papers, and have the honour to
Report
1st. It would not, in our opinion, be consistent with the spirit of the Constitutional Act 15 & 16 Vict. c. 72, to appoint a council for the purpose of advising the Governor of New Zealand in the conduct of native affairs.
The power of the Crown to maintain native laws and usages, in districts to be set apart, is a power expressly conferred by section 71 of the Act, and section 79 expressly enacts that such power may, through Letters Patent, be delegated to the Governor. No mention is made of a council of advice or assistance to the Governor, and we think that no such council was in contemplation.
2nd. We think that it would be competent for Her Majesty to empower the Governor to set apart districts within which native law and usage should prevail, as between natives. The power of setting apart districts is conferred by section 71 on the Crown; and we think that whatever the Crown may do with reference to native law and usage under that section may be delegated to the Governor under section 79.
3rd. We are of opinion that the Governor may be empowered to declare, but cannot be empowered to amend, the native law in the districts set apart. The authority con- ferred by the statute (section 71) is for "maintaining" the native law for the present, subject to certain restrictions, and not for its amendment.
Such
The various amendments above suggested, if they are to take place, ought to be hrought about by enactment of the Colonial Legislature, acting under the general authority conferred on that body by the 53rd section of the Constitutional Act. amendments would, in effect, be new laws, based more or less on native laws, deriving, however, no force from that circumstance, but owing their operation entirely to legisla- tive enactment.
If greater power is to be conferred on the Governor, such increase of authority ought, in our opinion, to be provided for by Act of the Imperial Legislature.
Neither Her Majesty, nor the Governor acting under Her authority, could make or authorise the natives to make any regulations which would be binding on Europeans resident in the districte set apart under the 71st section of the Act, and Her Majesty and the Governor would be equally incompetent, without the sanction of the General Assembly, to authorise the alienation or leasing of native lands to any European.
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We see no objection to the terms on which the surrenders of native lands should be made being regulated in the manner suggested, that is, by instructions to the Governor to frame and promulgate rules respecting the conditions by which he may intend to be guided in the exercise of his discretion with respect to the acceptance or non-acceptance of surrenders of such lands.
His Grace the Duke of Newcastle, K.G.
We have, &c. (Signed)
RICHARD BETHELL. WM. ATHERTON.
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