8511.
PUBLIC RECORD OFFICE
༄། ། ། ། །
CO.
Reference:→→
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
SIB,
No. 202.
(FIJI.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, 27th May 1879.
WE were honoured with your commands, signified in Mr. Bramston's letter of the 29th of April last, stating that he was directed by you to invite our attention to the Report upon the Fiji land question with which we favoured the Earl of Carnarvon upon the 3rd of August 1876, in reply to a letter from the Colonial Department of the 19th of April 1876.
2. That that letter would be found at page 129 of the accompanying printed paper, Australian, No. 57, and our Report at page 189 of the same paper. That the enclosures to the letter of the 19th April were sent therewith and would be found (1) at page 10 of the papers, Australian, No. 45; (2) at page 8 of the papers C.-1337 of 1875, being paragraphs 12-16 of the despatch there printed; (3) at page 61 of the Australia, No. 49a; (4) at page 65 of the same paper; (5) at page 68 of the paper, Parliamentary paper C.-1624.
3. That in pursuance of notices given by the Governor of Fiji, many persons asserting themselves to be owners of land bond fide alienated before the cession had claimed to be recognised as such owners, and every claim contained a request for the issue of a Crown grant to the claimant.
4. That in order to provide for the investigation of these land claims, the Governor of Fiji, under instructions from the Secretary of State, appointed certain gentlemen to be Commissioners to investigate and report upon all claims to land, arising under any contract entered into before the proclamation of the Charter creating the Colony, and an Ordinance (No. 3 of 1875) (copy enclosed) was passed prohibiting the courts, pending the inquiries of the Commission, from entertaining suits relating to land claims arising out of contracts made before the cession; but that Ordinance did not create any substituted or special tribunal for finally disposing of the claims; nor had any Ordinance been passed for compelling persons to submit their claims to the Commis- sioners. That it was, however, believed that every existing claim had been so submitted. 5. That under a late Ordinance (No. 15 of 1875) the Commissioners as a body, and under a subsequent Ordinance (No. 14 of 1877) the Commissioners severally, were given the powers of the Supreme Court for compelling the attendance of witnesses and the production of evidence; and similar matters.
6. That the Commissioners had acted under these Ordinances, and had reported to the Governor in Council upon numerous claims, and the Governor, having considered these Reports in Executive Council, had decided on behalf of the Crown to admit some of the claims as being fully established, had admitted others in part, and had adjusted equitably other claims which were of a conflicting nature. That the Governor also, in pursuance of the decision arrived at by the Executive Council in the respective cases, had in compliance with his instructions issued Crown grants in respect of many of these claims, and had declared his intention of issuing other such grants.
Was
7. That it might, perhaps, be assumed that claimants who accepted grants from the Crown after their claims had been investigated by the Land Commission and the Governor in Executive Council must be taken to have thereby abandoned their native titles, and that they would not be allowed to re-assert such titles in a court of law. But there were persons whose claims had been disallowed by the Governor in Executive Council, and there might be some few who had not submitted their claims to the Land Commissioners though it was believed that no such cases existed, and apprehended that at present the Ordinance (No. 3 of 1875) was the only obstacle to the prosecution of such claims in the courts by process of law; that it was also apprehended that this Ordinance does not affect the validity of any titles which rest upon contracts entered into before the Cession though it prohibited the Courts from entertaining suits in respect of them; and that on the repeal of that Ordinance there would be nothing to prevent any claimants who have not received Crown grants from resorting, if they should see reason, to a court of law for the purpose of establishing their titles at law, if capable of proof.
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PUBLIC RECORD OFFICE
Reference :-
CO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
11 January 1879.
:: Septem- Ter 1876.
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8. That the importance was explained in the letter of the 19th of April 1876 of settling the land question decisively, and it was then represented that it would be a great misfortune if it should be left open for speculators to appeal to the law courts for settlement of their claims against natives who might have been the victims of fraud in the transactions, or have entered into them in completo ignorance of their nature. That there still existed reasons similarly imperative for desiring to secure that all claims to land which were based upon transactions anterior to the Cession should be investigated by a simpler process than that of the law courts, and that that process should be final. Mr. Bramston was therefore to transmit a copy of a letter from Sir Arthur Gordon, the Governor of Fiji, in which he stated with much force the objections to proceeding at law, and submitted the outline of a measure for providing a tribunal for the settlement of that question.
9. Mr. Bramston was at the same time to explain that an Ordinance (No. 34 of 1876) had already been passed in Fiji (in December 1876) introducing the Australian Bystem of registration and transfer of titles, and purporting to make the holder of a Crown grant, or of a registered certificate of title, the possessor of an indefeasible title to the land therein described. That the Ordinance required amendments in its details, which would eventually take effect, including clauses creating indefeasible titles (the Ordinance not being sufficiently explicit in that respect), and it should therefore be brought to our notice in submitting the present question; but it appeared unnecessary to trouble us with the Ordinance itself.
10. That he was also to point out that the questions arising out of conflicting grants from natives, or under such grants as on moral or equitable grounds ought to be wholly or partially disallowed, cannot possibly in their nature be questions of English law, and consequently would not be questions on which the judges would be the fittest persons to decide; but, on the other hand, were such as were likely to involve considerations of great practical importance to the good government of the Colony, and to the future relations between the natives and the European settlers.
11. That he was therefore to observe that you, on these and similar grounds of policy, considered it to be essential that measures should be taken to preclude the possibility of the revival, before the Courts or elsewhere, of claims to land held and occupied by natives which had been disallowed by the Governor in Council, and that you were disposed to approve Sir Arthur Gordon's proposals, with the exception of his suggestion to declare the meaning of the deed of cession, but that you considered that it would be advisable, if within the competence of the Legislature, to fix a date after which no claims would be entertained, and to declare that any claims not presented before that date would be held to have been abandoned.
12. That, having regard also to our Report of the 3rd of August 1876, you would propose that instead of issuing Crown grants to claimants whose titles were admitted by the Governor in Council, and providing that such grants should become indefeasible after the lapse of a certain time, the Governor should grant them a certificate of allowance, and that these documents should be exchanged on application for Crown grants after a reasonable interval to allow for objections or counter claims; such Crown grants to become indefeasible from the date of issue; and to be issued on payment of survey fees, and in the manner prescribed by law for issuing other Crown grants.
13. That it appeared also to you that while the decisions of the Governor and Executive Council upon questions of boundary and of parcels or other matters of fact might properly be allowed to be final, it would probably be advisable to instruct the Governor to be ready, if circumstances required it, to make free use of the power of stating questions of law in the form of a special case for the opinion of the Supreme Court, whose judgment would be subject to review by the Privy Council.
14. That he was also to invite our attention to our subsequent Report of the 29th of November 1976, respecting the legislative powers of the Legislatures of Crown Colonies since the date of the Colonial Laws Validity Act, and to enclose a copy of that Report, and of the letter from the Colonial Department on which it was founded, and to request us to take all these papers into our consideration, and favour you with our opinion--
1. Whether the views expressed in the 7th paragraph of the letter are correct.
2. Whether it is competent to the Legislature of Fiji to bar claims to land arising out of transactions anterior to the Cession, if not presented before a certain date.
3. Whether it is competent to the Legislature of Fiji to enact an Ordinance embodying the principles set forth in the letter of Sir Arthur Gordon of the 14th of January 1879, and whether the accompanying draft Bill is sufficient for the purpose.
3
15. Mr. Bramston was also to state that as Sir Arthur Gordon, who was then in England, would shortly be returning to his Government, you would be glad to receive an answer at our early convenience.
In obedience to your commands we have the honour to
That-
Report
(1.) We do not think the simple acceptance of a Crown grant of land would of itself operate as a waiver by the recipient of any claim he might have possessed as a bond fide owner prior to the Deed of Cession. The circumstances under which, or the conditions on which, the grant was issued and accepted, might, however, show that the recipient of the grant had abandoned his original title, and might debar him from setting up such title.
In our view, persons whose claims have been disallowed by the Governor in Executive Council, or who have not submitted their claims to the Land Commissioners, will (unless some Ordinance is passed to restrain or prevent them from so doing) be entitled, on the repeal of the Ordinance No. 3 of 1875. to assert their claims in the ordinary tribunals of Fiji.
(2.) We think that the Legislature of Fiji has power to bar claims to land arising out of transactions anterior to the cession, if such claims are not presented before a specified date.
(3.) It seems to us that in strictness it is competent to the Legislature of Fiji to enact au Ordinance embodying the principles set forth in the letter of Sir Arthur Gordon of the 14th of January 1879. With reference to the draft Bill submitted to us we beg to remark that a serious objection arises at clause No. 11, whereby the tribunals are prohibited from looking at any document purporting to be a contract relating to land entered into between any native of Fiji and any foreigner before the 10th day of October 1874. We presume by the word "foreigner" is intended any person other than a native of Fiji. We have sotne difficulty in reconciling this section with section 20, unless, what we can hardly suppose, a different rule of law and practice is intended to prevail between native and British subjects and between British subjects themselves. It is, of course, possible that before the natives were British sub- jects they may have had dealings by way of mortgage, encumbrance, or otherwise with British subjects, who may in turn have mortgaged or charged land; and it would be a somewhat startling result of the 11th and 20th sections that a mortgage between two British subjects dated before the 10th of October 1874 would be receivable in evidence, whereas a mortgage from a native to a British subject would not be so receivable. We can hardly think this was the intention of the framers of the Ordinance. Subject to this observation we think the draft Bill is sufficient.
We feel it to be our duty, however, to add that while pronouncing the compotenco of the Legislature of Fiji to enact such an Ordinance as that above referred to, we consider the arrangement proposed such as might be contended to be inconsistent with the pledges made by the Crown in the Deed of Cession. Crown and of the claimants of land, under paragraph 4 of the Deed of Cession, are The interests of the clearly antagonistic, for the land which is not shown by the claimants to have become their bona fide property vests in the Crown.
The claimants to the land (who may be British subjects or subjects of friendly civilised states) will certainly claim, under the terms of the Deed of Cession, a right to have all questions as to the title to land arising between the Crown and them investigated by some independent tribunal. We think they may reasonably object to the representative of the Crown or the Executive Government of the Islands being constituted the tribunal which is ultimately to adjudicate upon their claims.
We have, &c.,
The Right Hon.
(Signed)
Sir Michael Hicks Beach, Bart.,
&c.
&c.
&c.
JOHN HOLKER. HARDINGE S. GIFFARD.