9351.
PUBLIC RECORD OFFICE
CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
MY LORD,
No. 104.
(FIJI.)
LAW OFFICERS to COLONIAL OFFICE.
Cession, pagel 8,P.P.,
We were honoured with your Lordship's commands, signified in Mr. Malcolm's
Temple, 3rd August 1876. letter of the 19th of April last, stating that he was directed by your Lordship to 1. Deed of transmit to us the under-mentioned documents :-
(1.) A copy of the Instrument of Cession of the islands of Fiji by King Thakombau 6 Feb. 1875.
to Her Majesty ; (2.) An extract of so much of a despatch addressed by your Lordship to Sir to 16 inclu-
A. Gordon before his departure from this country as relates to the land question;
(3 and 4.) A copy of a despatch from Sir A. Gordon, and of the reply from the
Colonial Office; and
(5.) A copy of a further despatch from Sir A. Gordon on the same subject.
2. Pars. 12
sivo of de-
spatch of
+ Mar. 1875.
3 & 4. Sir A. Gordon's despatch, No. 43 of
No. 5. Sır
2. That we would observe that the Instrument of Cession, after conveying the 21 Aug., and possession of and full sovereignty and dominion over the Fiji Islands to Her Majesty Lord Car- (clause 1), declared in the 4th clause that the absolute proprietorship of all such lands narvon's (inter alia) as were not shown to have been at the time of the cession alienated so as to have become bond fide the property of Europeans or other foreigners should be A. Gordon's
reply. vested in Her Majesty, Her heirs and successors, while the 7th clause undertook, on further de behalf of Her Majesty, that all claims to titles of land, &c., should in due course be spatel. fully investigated and equitably adjusted.
That it was the opinion of your Lordship that all Europeans or other foreigners holding land in the Colony of Fiji should derive their titles from a grant by the Crown, while, at the same time, your Lordship deemed it necessary that all claims to any interest in land, whether advanced by a native tribe or chief or by a settler, should be inquired into in order that if they were of a bond fide character they might be recognised, but not otherwise. That the claims of European or foreign settlers ought not, in your Lordship's opinion, to be recognised if the lands had been obtained from the natives by force, fraud, or unfair means; and your Lordship therefore proposed that (in the language of the Deed of Cession) they should be "fully investigated and equitably adjusted," part of such equitable adjustment being a refusal to recognise proprietorship in lands, the alleged property of Europeans or other foreigners, unless they are shown to have been acquired "bond fide," or, as your Lordship would interpret the words, "fairly, and at a fair price," or unless such price as might be ascertained to be fair was now paid for them.
4. That it was further your Lordship's view that it might be necessary to call in aid the legislative powers of the Colony, and to enact laws regulating the course of the investigation promised in the Deed of Cession, and declaring what should be the terms of the equitable adjustment likewise promised therein, and as one of such terms it was clearly your Lordship's opinion that it should be provided that no claim obtained by force or fraud should be entertained, but those only which in the opinion of a competent authority had been obtained “bond fide” or “fairly, and at a fair price."
5. That it would, however, be observed that the position of the Crown in this matter, as defined by your Lordship in the 13th paragraph of your Lordship's despatch of the 4th of March 1875, had been disputed in Fiji, and it would appear to be contended there-
(1.) That the Crown cannot require persons claiming to be possessed of land to take grants from the Crown or refuse to recognise tities founded upon transactions anterior to the Cession;
(2.) That the bond fides of the acquisition of property cannot be made a subject of inquiry or a condition of the grant of a Crown title, nor could the right of possession of land be made dependent thereon in the manner contemplated by your Lordship; and
(3.) That the power of the Legislature does not extend so far as to enable it to declare the terms of the equitable adjustment of claims in manner above mentioned.
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6. That it was of incalculable importance to the Colony that the land question should be settled speedily and decisively, and your Lordship would regard it as a deep misfortune if it should be left open for speculators to appeal to the Law Courts and the Executive as the proprietors of land in Fiji, founding themselves upon and shadowy rights of natives, obtained it might be by fraud, or in complete ignorance the vague on the part of the natives of the nature of the transactions to which they might have been parties; and your Lordship would therefore be obliged if, as soon as we conveniently could, we would advise your Lordship—
(1.) Whether the views your Lordship had hitherto taken with respect to the rights and power of the Crown in relation to the land of Fiji, as set forth in the letter from the Colonial Department and in your Lordship's despatches, are correct, or whether, on the other hand, the views herein-before mentioned of those who differ from your Lordship were correct;
(2.) Whether it was competent for the Legislature of Fiji to enact that no right or title to land, or any interest therein, should be recognised in any Court of the Colony unless it was founded upon a grant made by the Crown; and (3.) Whether it was competent for the Legislature of Fiji, having regard to the terms of the Deed of Cession, to make provision for the course of investigation into clairns of titles to land, and for the terms of the equitable adjustment of such claims, and to exclude all claims founded on force or fraud, or which have not been obtained “fairly, and at a fair price."
In obedience to your Lordship's commands we have the honour to
Report
That your Lordship's views as to the rights and power of the Crown, as expressed in Mr. Malcolm's letter, are not, in our opinion, to a great extent incorrect.
In two respects, however, they appear open to exception. The interpretation put on the words " alienated so as to become bond fide the property of Europeans," is rather a wide one. As we understand your Lordship you assume these words to mean "obtained fairly, and at a fair price." Now in (speaking generally) bond file where it is acquired without fraud or force.
our view an estate is acquired fairness in the price (if price is paid) is an element in determining the existence or The non-existence of fraud, but standing by itself it is not to be taken as determining the bona fides of the transaction.
Again we do not think your Lordship is right in concluding that the owners of land bona fide alienated before the cession to Her Majesty of the Fiji Islands can be called upon to accept grants of those lands from the Crown.
2. As we have already intimated we think the meaning of the Instrument of Cession is not that the owners of bona fide alienated lands should be obliged to hold of the Crown, and this being so we think it is not competent for the Legislature of Fiji to enact that no right or title to land, or any interest therein, shall be recognised in any Court of the Colony unless it is founded on a grant made by the Crown.
3. In our opinion it is competent for the Legislature of Fiji, having regard to the terms of the Deed of Cession, to make provision for the course or mode of the investigations into the claims of titles to land which is to take place; such provision should, however, deal with procedure alone. The claims should be adjusted upon the principles laid down in the Deed of Cession, and upon those only.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
We have, &c.,
(Signed) JOHN HOLKER.
HARDINGE S. GIFFARD.
9880.
MY LORD,
No. 105.
(NEWFOUNDLAND.)
LAW OFFICERS to FOREIGN OFFICE.
We are honoured with your Lordship's commands, signified in Lord Tenterden's
Temple, 10th August 1876. letter of the 26th ultimo, stating that the Law Officers of the Crown had from time to time had referred to them from the Foreign Office certain questions arising out of some long outstanding matters of dispute between this country and France in regard to French rights of fishing on certain given points of the coast of Newfoundland, by virtue of formal engagements entered into between the two countries; and, as we were no doubt aware, negotiations had from time to time been entered upon at Paris, with a view to a settlement of these outstanding questions, but hitherto without any satisfac- tory result; and renewed negotiations of a more or less informal character, which were conducted at Paris during last year and the early part of the present year, Captain Miller, as British Commissioner, and Captain de Boissoudy, as the Commis- between sioner for France, were broken off in the month of March last, under the circumstances stated in the Colonial Office letter thereto annexed.
That that letter, as we should see, enclosed some draft articles which Lord Carnarvon, in communication with Captain Miller, and with Mr. Carter, the Premier of Newfound- land, were desirous should be submitted to the French Commissioner, as containing the basis of the arrangements to which the Imperial Government and that of Newfoundland were ready to consent, with a view to a settlement of the matters in dispute, though, as we should see by the correspondence, they were not to be put forward as being textually agreed to.
That before, indeed, they could be so submitted formally to the French Commissioner, your Lordship was desirous of being favoured with any observations we might desire to offer in regard to any amendments in form, or any alterations which it might appear to us desirable to introduce into those articles, without, however, affecting their substance; and since the principles involved in them had, as Lord Tenterden had said, been already agreed to by the Imperial and Colonial Governments (or rather by the Premier of Newfoundland on behalf of the latter) it was unnecessary that he (Lord Tenterden) should call our attention generally to those principles.
That there was one point, however, to which it might be desirable that he should advert, as it came prominently forward in Article I. of the draft Articles, and involved, perhaps, the most serious point of contention between the fishermen of the two countries, namely, how far French fishermen can claim, at those points of the coast where they have fishery rights, exceptional privileges of fishing over British or Colonial fishermen.
That the point at issue arose out of the wording of the British Declaration, signed at Versailles on the 3rd of September, 1783, which stated that "to this end (viz., to "prevent all foundation of dispute for the future '), and in order that the fishermen of "the two nations may not give cause for daily quarrels, His Britannic Majesty will "take the most positive measures for preventing his subjects from interrupting in any manner, by their competition, the fishery of the French, during the temporary exercise of it which is granted to them, upon the coast of the island of Newfoundland; and he will for this purpose cause the fixed settlements which shall be found there to be " removed."
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46
**
That out of that declaration had arisen the claim of the French Government on behalf of their fishermen to the exclusive right of fishing on the parts of the coast iu question during the fishing season, to the entire exclusion of British fishermen, a pre- tension which had never been admitted by this country, though it had formed the subject of much discussion, not only with the French Government, but amongst lega! and other authorities in this country, who, at various times, had taken very opposite views of the exact privileges intended to be accorded to the French (or which could, in fairness, be claimed by them) under the declaration in question.
That, in Article I. of the draft Articles then enclosed, it was proposed to insert the words, "that the French fisherman shall be deemed, so long as this Convention is in
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