2.
7. The Joint Opinion itself concedes that the Crown, in performing a Treaty, is exercising sovereign power and its acts cannot be examined in
the courts.
8.
The only point of any substance is whether, when assenting to the Crown Land Resumption Ordinance and other Ordinances in 1900, the Governor
acted contrary to the Royal Instructions.
9.
We have been unable to ascertain whether the Governor first obtained
instructions from the S. of S. before assenting to the Bills; however, even if it is shown that prior instructions were not received, it does not, in our view for the following reasons, render the Ordinances null and void:-
(a) There is no provision in the 1898 Order in Council
requiring the Governor to obtain prior instructions on any Bill relating to the New Territories. On the contrary, the Order in Council states that the N.T. are to be part and parcel of the Colony "for all intents and purposes" and that the Governor may make laws for the N.T. as part of the Colony.
10.
(b)
In giving his assent the Governor was acting on behalf
of the queen and was therefore performing an act of
state which cannot be challenged in the courts. Even
if he assented wrongly, the Governor was responsible
only to the ueen for the performance of her instructions,
and not to her subjects.
(c) The Queen through the S. for S. could, pursuant to the
Royal Instructions, have refused final approval of and
disallowed the Ordinances, but she did not do so. In
our view such approval was an act of state which cannot be challenged; also, that act "cured" any defect that there may have been in the performance of the Royal
Instructions.
The above is merely an outline of our views on the Joint Opinion. A more comprehensive Cpinion will be provided, if requested.
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