whatever, grant, convey, or demise, to any person or persons, any of the lands so specified as fit to be reserved as aforesaid, nor permit or suffer any such lands to be occupied by any private person for any private purposes.”

According to the 62nd section, these instructions are to be understood as addressed to the Governor or acting Governor of the Colony, for the time being, although addressed in terms to Captain Hobson.

The Third is to be found in the Australian Waste Lands Act, the 5 & 6 Vict. c. 36, which was repealed, so far as applicable to this Colony, by the 9 & 10 Vict. c. 104. It did not apply to the lands previously reserved for public purposes, nor did it restrict the power of making such reserves for the future. It authorised the reserves of waste lands for inter alia the “sites” of public quays and landing places.

The Fourth is contained in the Royal Instructions accompanying the Charter of December 23, 1846. Under these (Chapter 13, S. 17), certain reserves were to be made for public purposes, and amongst others, for quays and landing places; which lands the Governor of the Province was empowered by the 14th section of the Charter and the 18th section of the Chapter just mentioned, to convey gratuitously to any persons or bodies corporate in trust “for the public uses for which the same were so reserved, and for none other.”

This power (but no other) of alienating the lands reserved for public purposes, is now vested in the acting Governor, under certain provisions contained in the Queen’s Letters patent of September 13, 1852. His Excellency has no authority whatever to convey such lands to any persons or public bodies for the purpose of having the same subsequently sold to private individuals, even though the object thereof should be, as in the present case, to apply the proceeds to the construction of public works.

The transfer of the Reserved lands in question to the Harbour Commissioners, purports to be made under an Act of the General Assembly; but it does not appear that that body has any power over lands of that description. By the 72nd Section of the Constitution Act, it is authorized to regulate the Sale, &c., of the waste lands of the Crown in this Colony;—terms which do not, as used in law, include lands reserved for specific purposes, whether of a public or private nature;—and it does not appear that they have any but their ordinary or primary signification in this Act. Thus the provincial legislatures are inhibited by S. 19, from making laws “affecting the lands of the Crown,” while the Assembly is empowered to make laws for regulating the sale, &c., of the Waste Lands of the Crown, that is, of a portion of those first named—and by S. 74, it is authorised to reserve portions of the Waste Lands for public purposes, inter alia “as the sites of public quays or landing places on the sea coast, or shores of navigable streams.”

The Waste Lands Act already mentioned, the 5 & 6 Vict. c. 36, which was in force in this Colony for several years, and in the Australian Colonies, at the time of the passing of our Constitution Act, contains a definition of the words “Waste Lands” in its 23rd section:—

“And that by the words ‘Waste Lands of the Crown’ as used in the present Act, are intended and described any lands situate therein, and which now are, or hereafter shall be, vested in her Majesty, her heirs, and successors, and which have not been already granted or lawfully contracted to be granted to any person or persons in fee simple, or for an estate of freehold, or for a term of years, and which have not been dedicated and set apart for some public use.”

It is quite evident from S. 74 of the Constitution Act, that the clear intent of the Imperial Parliament was, as respects the Waste Lands of the Crown in this Colony, that none of them, except by way of reserves for public uses, and, perhaps, by way of licenses for pastoral purposes, should be sold or in any other way alienated, but for a money consideration, and that the fourth part of all sums of money so realised should be remitted to the New Zealand Company. Whatever obscurity may pervade other parts of the Act, none is to be found in this section.

1. — I am of opinion that the General Assembly is not empowered to make laws regulating the alienation of lands of the Crown reserved for public uses, and that no conveyance of any portion of such lands, under any of its Acts, can be valid.

2. — His Excellency the Acting Governor may, under the Queen’s letters patent of September 13, 1852, already mentioned, convey such lands gratuitously to any persons or bodies politic, in trust; but only for the purposes for which the same were so reserved.

3. — If the lands claimed by the Harbour Commissioners formed a part of the Waste Lands of the Crown, it was a breach of the Constitution Act to have alienated them without a money consideration; and the conveyance is, in consequence, invalid.

4. — I am of opinion that the Harbour Commissioners are not a legally constituted Corporation, and that they are, as such, incapable in law of taking lands by a corporate name, and that they can give no valid title to the lands in question, even though the Superintendent and the Executive Council of the Province should assent to the sale or other alienation thereof.

I have the honor to be,

Sir,

Your Honor’s obedient servant,

SINGLETON ROCHFORT,

Law Officer of the Province of Auckland.

To His Honor

The Superintendent

of the Province of Auckland.