CO129-587-10 Governor's power to make and execute grants of Crown lands 20-5-1940 - 17-10-1940 — Page 8

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the British Guiana Crown Grants (Governor's

Signature) Ordinance, 1930. Section 8 of

the Nyasaland Ordinance provides that the

Lands Officer may execute on behalf of the

Governor conveyances and other documents.

Under the proviso he may not exercise the

powers conferred upon the Governor by Section

5 which is the section which enables the

Governor to "grant lease or otherwise alienate

land".

Presumably the proviso means only that

the Lands Officer may execute the document but

may not exercise the power to agree to a grant.

Section 4 and the Schedule to the Fiji Ordinance

provide that the Commissioner of Lands may

execute leases on behalf of the Crown. In the

case of British Guiana, Ordinance No.42 of 1930 oppiars

me to have recognised that grants must be

formally executed by the Governor, though if

ful

this is so it would seem doubful whether a stamp

of his signature with counter signature by another

officer is sufficient.

4. My Legal Advisers feel some doubt, however,

whether anything but amending Letters Patent will

suffice if the present proposal is to be pursued.

The literal meaning of Article XIII of the Hong

Kong Letters Patent is apparently that the Governor

(only the himself is to execute grants and that procedure is

-

not

to be regulated by local law or instructions

that the latter can amend the express terms of the

Letters Patent by empowering someone else to execute

grants. It may be argued that there is nothing

in the Letters Patent to prevent an Ordinance being

passed making provision entirely independent of

the

Page

950-150) Wt. 46262-29 30,000 3/39 T.S. 695 4940-150) Wt. 25498-38 10,000 9/39 T.S. 695

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Page

C. O.

Mr.

Mr.

Mr.

Mr. A. J. Dawe.

Sir H. Moore.

Sir G. Tomlinson.

Sir J. Shuckburgh.

Permt. U.S. of S.

Parly. U.S. of S.

Secretary of State.

DRAFT.

FURTHER ACTION.

the Letters Patent for the disposal of

Crown lands; but it is also arguable

that such an Ordinance would be repugnant

to Article XIII of the Letters Patent,

and Section 4 of the Colonial Laws Validity

Act, 1865, clearly implies that a Colonial

law is void if it is repugnant to

instructions in Letters Patent which

authorise the Governor to assent to laws.

5. This question has in fact been

considered in relation to Article XI

of the East Africa Order in Council,1906,

the terms of which are similar to those

of Article XIII of Hong Kong Letters

Patent. In 1926 the Governor of Kenya

wished to introduce legislation delegating

his power to execute dispositions and

grants of land in the Kenya Protectorate,

but was advised that such an enactment

would be ultra vires because under

Article X of the East Africa Order in

Souneil such grants could be made only

by the Governor. The then Secretary of State

informed the Governor that he was advised

that amendment of the Order in Council

was unnecessary because the provision

contained in Article XI was an enabling

in

and not a respective provision; that the

legislative powers conferred on the

Legislative Council included the power to

deal with land; and that the Governor's

power under Article XI must be regarded as

additional to and not restrictive of any

general provision as to grants. The