R
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PUBLIC RECORD OFFICE
Reference :-
TTIC.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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or administering laws or levying taxes within the district, &c., and reserved to the High Commissioner all powers of legislation, administration, and taxation, subject to a specific safeguard on the single point of the Company's power to grant leave to prospect or mine, and to impose conditions in that regard.
That the power to grant trading licences would seem to be a power falling to the High Commissioner under Section 8, but that the question was whether that section, coupled with the control of the Reserve vested in the Government by Sub- section 1 of Section 1, was sufficient to empower him also to make the grant of licences effective by granting or permitting the occupation of land for houses or stores, or both, in the Reserve, without the consent of the Company if such consent was refused. That it would appear from the Resident Commissioner's despatch of 20th March, 1911, to the High Commissioner, that the Government proposal was not to grant land in the Tati Reserve to the holder of a trading licence, but to grant him a licence or permit to occupy land, with conditions limiting any buildings thereon to those of a movable description, and providing for vacation without compensation, at any time
at three months' notice.
That if" the control of the Government" under Section 1 (1) of the Proclama- tion did not extend to granting or permitting the occupation of land by Europeans as mentioned in the preceding paragraph, it was a further question whether there was any valid reason why the High Commissioner should not take the requisite power under the powers of legislation for peace, order, and good government in the Pro- tectorate vested in him by the Order in Council of 9th May, 1891 (Section 4). That you assumed that the High Commissioner could take the power in question under that Order in Council though it was, of course, a question of policy whether he should be instructed to do so.
That Sir H. W. Just was to request us to take the matter into our consideration, and to advise (1) Whether under Proclamation 2, of 1911, and the Order in Council of 4th May, 1911, there was power to grant trading licences to others than natives in the Tati Native Reserve without the consent of the Tati Concessions, Limited, and to make the grant effective by granting or permitting the occupation of land for houses or stores; (2) If not, whether there was anything to debar the High Commis- sioner from taking that power, if it was desired, by Proclamation under the Order in Council of 9th May, 1891.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
1. That in our opinion the effect of Proclamation, No. 2, of 1911, is to vest the ownership of the land in the Tati Native Reserve in the Tati Concessions, Limited, subject only to the provisions made by the Proclamation for the protection of natives therein. Whether the Tati Concessions, Limited, could effectively prevent Govern- ment licensees from entering the Reserve depends on the local law, and on this we offer no opinion, but, in view of the language of the Proclamation, we do not think that the Government could properly grant such licences without fresh powers.
2. In view of the fact that the Proclamation has been confirmed by Order in Council we consider that, if it is desired to alter its terms by taking power to authorize persons other than natives to enter upon or occupy lands in the Native Reserve for the purposes of trading, such power should be taken by Order in Council.
We have, &c.,
RUFUS D. ISAACS. JOHN SIMON.
The Right Honourable
Lewis Harcourt, M.P.,
&c.,
&c..
&c.
6461.
No. 155.
(WESTERN PACIFIC.)
LAW OFFICERS to COLONIAL OFFICE.
[Power of the High Commissioner to make King's Regulations under Clause 108 of the
Pacific Order in Council, 1893.]
SIR,
-
Law Officers' Department,
Royal Courts of Justice.
29th February, 1912.
C'onneil,
1893.
L.0.
WE were honoured with your commands signified in Sir H. W. Just's letter of the Pacifie 9th December last, stating that he was directed by you to request us to favour you with Order in an intimation of our opinion with respect to the power of the High Commissioner for the Western Pacific to make King's Regulations under Clause 108 of the Pacific Order
Reports, in Council, 1893.
That, as would be seen from the preamble to the Order in Council, that Order was 1 March, made by virtue of the powers vested in the Crown by the British Settlements Act, 1887, 1898; the Pacific Islanders Protection Acts, 1872-75, the Foreign Jurisdiction Act, 1890, and 1 April, in virtue of any power otherwise vested in the Crown.
a
1898: 16 May,
1888.
That of the islands which were included within the scope of the Pacific Order 1904. in Council the majority, including those belonging to the Solomons Group and the Gilbert Order in and Ellice Groups, were merely under the protection of His Majesty, and that authority Council, to legislate in respect of them was given by the Foreign Jurisdiction Act, 1890. That 17 May, as that Act provided for the exercise by the Crown of any jurisdiction acquired within L.O.
foreign country in the same manner as if the Crown had acquired that jurisdiction by Reports, the cession or conquest of territory you were advised that no doubt existed as to the 23 Nov., power of the Crown to authorise by Order in Council the High Commissioner to legislate 1905: by King's Regulations for such islands, and that you did not, therefore, consider it 12 Oct., necessary to trouble us with regard to this point. But that there were in the Western Pacific certain islands which were part of His Majesty's dominions, and to which therefore the provisions of the Foreign Jurisdiction Act were not applicable. That among those
were :-
(a) Pitcairn Island, which was acquired by the settlement there of the mutineers of the "Bounty," and which formed the subject of the Reports furnished by our prode. cessors on the 4th March and the 5th April, 1898.*
(b) Ocean Island, which became British territory by being occupied by the Pacific Islands Company in 1900 (a licence being granted by the Crown on October 2nd, 1900), and which was now under lease to the Pacific Phosphate Company for the purpose of working the phosphate deposits for a period of 98 years from the 1st January, 1902, and which formed the subject of the Report furnished by our predecessors on the 16th May, 1901,† and
(c) Fanning Island, which was taken possession of by Captain Sir W. Wiseman, of Her Majesty's Ship “Caroline," on the 15th March, 1888, and which had been occupied since 1857 by a British subject-Mr. Greig,
That there were also a number of less important islands, which had either been formally annexed or in respect of which licences of occupation had been issued and which were therefore parts of His Majesty's Dominions, on the principle laid down by our predecessors in the Report
of the 16th May, 1904, referred to above. That in this connexion Sir H. W. Just was to point out that the preamble to the Pacific Order in Council, 1893, after setting out (Recital 1) the terms of Sections 2 and 6 of the British there are in the Pacific Settlements Act, 1887, proceeded to the recital of the fact that Ocean certain islands and places which are, or may hereafter become, British Settlements within the meaning of the said Act." That, moreover, as would be seen from the Order in Council of 17th May, 1888, British New Guinea (now called Papua), on its annexation in 1888, was treated as a " British Settlement.'
That assuming, therefore, that power to legislate for the Islands mentioned in paragraph 4 of Sir H. W. Just's letter rested upon the provisions of the British Settlements Act, it would appear that the power of the High Commissioner to legislate by King's Regulation in respect of such Islands was included in the Pacific Order in Council on
Nos. 165 and 166 in Vol. V.
(23940-2) Wt. 91-594. 25, 4/12. D&S.
† No. 224 in Vol. VI.
1906.