LEGISLATIVE COUNCIL.

New Zealander, Volume 2, Issue 76, 14 November 1846, Page 3

LEGISLATIVE COUNCIL.

Saturday, November 7, 1846. Present : His Excellency the Governor, Colonial Secretary, Attorney General, Colonial Treasuker, and W. Donnelly, A. Domett, and A. Kennedy, Esqrs. On the motion of the Attorney General, the Cattle Trespass Bill was considered in Committee ; and ordered for further consideration on Monday. On the motion of the Attorney General, the Police Magistrates' and Native Exemption Repeal Ordinance was read a third time and passed. The Colonial Secretary moved the first reading of the Land Claims' Bill, which was read a first time accordingly, and ordered to be read a second time on Monday. On the motion of Mr. Domett, the Resident Magistrates Courts' Ordinance was read a third time and passed. Council adjourned till Monday.

Monday, November 9. Present :— His Excellency and all the members, Cattle Trespass Bill. On the motion of the Attorney General, the Cattle Trespass Bill was considered in Committee, amended, and report brought up. Land Claims Bill. The Colonial Secretary, on moving the second reading of the Land Claims Bill, said that the object of the bill was to enable the Government to arrive at a speedy settlement of those claims to land which had arisen out of the Proclamation issued by Captain Fitzßoy in October, 1 844. By that proclamation it appeared that the Australian Land Sales' Act had been set aside, for it gave people the power of becoming possessors of large tracts of land, for a smaller consideration than £1 per acre. The present government had come to the conclusion that the Australian Land Sales' Act extended to New Zealand; and those who had come to the country and purchased under that recognised system, had been most unjustly dealt by, through the permission given to the natives to sell to whom, and for what they pleased. But at the same time that the Government looked upon the system that has thus been in practice, as one that is contrary to the said Act ; they come forward with a measure that will be calculated to prevent the greatest possible amount of inconvenience to those who hold land under the Proclamation. The hon. Colonial Secretary went on to comment upon I the principle of the bill, and having given a brief history of its intentions, he concluded by moving the second reading. j Mr. Donnelly thought that the bill was not of a compulsory character. It did not compel the claimants to give up their lands, but if they wished to do so, it afforded them facilities for making composition with the Government. Therefore he looked upon the Bill as one that could do no harm, but, on the contrary, much good. The bill provided for means being instituted whereby it could be ascertained whether property had been properly acquired, then, to give compensation to parties desirous to abandon their bona fide claims ; and it also made just provision for those who wisnedto continue in occupation of their lands. He was sorry that a very improper view had been taken of the bill. The 12th clause seemed to be misunderstood. It provided that "All such lands should be put up for sale at the upset price of £{ per acre, together with the amount which had been awarded to any such claimant on respect of the outlay incurred by him &c." Now he could see very plainly the intention of His Excellency in this clause. The object appeared to him to be, that the claimant who got the debenture should purchase his land back, with very little additional outlay beyond the debenture, and thus another who would be obliged to pay cash, was precluded from enteiing into competition ; and thus the land was secured to its improving owner, and that security made more certain by a Crown Grant. The bill did not

propose to interfere with the claimants if they did not wish to take advantage of the terms it placed in their power. The learned member made several other remarks in support of the bill, and concluded by Observing that while the measure was one that might produce many good results, it could by no possibility do any harm. Mr; Kennedy said, that he perfectly understood th& nature of the bill, it proposed to make compensation: to those persons who had become; purchasers of land under the proclamation of Captain Fitzßoy, and he/ Mr. Kennedy, would be very glad to give such compensation ; but if he did so, he would be anxious that full value should he given. He did not look upon the debentures which were proposed, as full value ; and he would suggest that if such documents were to be given, that they should be charged, not upon the revenue, but upon the land fund. The claimants had done one good thing; they had shown what great quantity of land might be surveyed in a short space of time. According to the returns lately laid on the table respecting surveys, ,it appeared that very little had been done, and that in some instances so high as sst had been paid by the government for what had been surveyed. The claimants he contended should be treated with great consideration. They should not suffer for the evil deeds of the Government. The present class of claimants had arisen solely by act of the Government, and the demands that they now made, however extensive^ had been encouraged by the late Government. Captain Fitzßoy had not been more than an hour sworn in when he promised to allow the natives to sell their land, saying he had instructions from home to that effect* That statement of course, created an excitement that was quite natural, and persons could scarcely walk the streets without being accosted by natives offering their lands for sale. But then the people had no expectation of anything being proposed like the penny an acre system— and when that proclamation was issued the inhabitants were taken by surprise. Indeed there was so little anticipation of such terms being allowed, that people were buying under the 10s. an acre proclamation until a day or two before the penny system was proclaimed, and the Colonial Treasurer he , believed could state that monies were paid into the Treasury on account of purchases made under the 10s. system, only the day or so before the penny proclamation was issued. Although these claims were in many cases objectionable, yet the Home Government seemed inclined to acknowledge them. The hon. member read an extract from a despatch of Lord Stanley's to the present Governor in which the words of his Lordship were " The sales already effected must of course be recognised." Capt. Fitzßoy had even urged the peopld to buy ; and he, Mr. Kennedy considered that it was very unprincipled on the part of the Government to act as that Governor did, if he expected that their acts were likely to be cancelled* Mr. Donnelly amongst other things said he wtfs sorry that his honorable friend Mr. Kennedy had not confined himself to the principle of the bill ; he thought that all unpleasant allusions should be avoided. Mr. Domett had very little to say on the bill before the Council : he quite agreed with the principle of it, and he knew that it would give satisfaction to the settlers at the southern part of the island. He would object hdwever, on their part, to the debentures being made chargeable on the general revenue of the colony, for as the colonists at the south had nothing whatever to do with the transaction, for the remedy of which the bill was framed, the Government had no right to call upon them to share in the expenses to be incurred in the settlement of these claims. Tht Governor said that upon a bill of such importance perhaps it would be necessary to offer some observation* to the Council. He agreed in principle with all that had fallen fiom honorable members, but as regarded the historical statements which had been made, it was not to be expected that he knew any thing of them. He had come into the colony with a perfectly unbiassed mind on the subject, and after having given the matter very great consideration, he was irresistibly led to a conclusion, which might however, be an erroneous one, thai the whole of the claims existing under the proclamation of his predecessor were unjust in principle, and so ma-.' nifestly illegal that he was confident of their disallowance by the Home Government, indeed he could not see % how any Government, acting upon the principles of % strict equity which actuated Great Britain in procuring possession of these islands, could recognize or allow such claims as had already arisen. The honorable member Mr. Kennedy had referred to Lord Stanley* Despatch ; but what terms did that Despatch convey? His Lordship instructed the Governor to recognise all purchases which had been made in strict accordance with the proclamation of his predecessor; but he would ask, had the terms of that proclamation been adhered to? There was provision made for the publication in. the Government »nd native Gazettes of all claims to land said to be purchased, but that provision had not been carried out, Now this itself proved that the whole affair had been coudncted illegally. In point of law his predecessor had no power to waive the Crown's right of pre-emption. In the first place the Australian Land Sale's Act as regards New Zealand had been revoked by this proclamation ; and the tieaty of Waitangi. was violated by waiving that right which the natives had ceded to Her Majesty alone. The treaty had insured m right of pre-emption to the crown, but had given no power for the waiving of that pre-emption in favor of others. Such was the natural intention of the treaty, for the principles of equity required that a people like the New Zealanders should rely in the. honesty and uprightness of the crown, instead of being left to the mercy of individuals guided by various motives. He therefore contended that the whole proceeding wa* illegal ab initio, and essentially unjust to both races ; in fact, so much so that it was likely to retard the peacefuland prosperous occupation of the country. Injury had been inflicted on individuals who had purchased under' the government regulations for the sale of lands ; and who had bought under the assurance of sales only being allowed in conformity with the Land Sale's Act ; but by the penny an acre system their lands had become depreciated in value, and faith to a certain extent had been broken with them. The Queen had acquired great colonial possessions, but her Majesty, had relinquished' her prerogative, over them in order to allow those who had come to the Colonies an opportunity of buying..} lands on fair and equal terms when offered by public . Auction, but the waiver granted by the proclamation had destroyed the impartial working of this system altogether in this Colony. It might be contended that there had been a similar waiver allowed by the Government over lands in the south but the law had been 1 fully observed in the case, and a commissioner appointed to watch over the interests of the original owners. When he came to frame the bill now under consideration, it was his first desire to save the bona fide claimants from as much inconvenience as possible, and to- give them 1 proper possession of their lands, without delay; for he could not help thinking with Mr. Kennedy that some of the claimants deserved sympathy ; but, on looking down the list, he could point out many who, from circumstances that came under his own notice, deserved no consideration, for he believed that they had come by their land unfairly. With regard' to the Debentures being chargeable upon the general revenue, he could see' no better method of arrangement. He could have taken the whole responsibility of the measure upon himself, except that part of it which related to the Debentures, and that was the peculiar business of the Council, who could fix the pay ment of these Debentures upon what-

branch of the colonial funds they chose ; but his great object was to give the greatest possible value to the Debentures by Act of Council. Mr. Domett contended that as all funds arising from lands in this district would be expended for the benefit of the district, he could see no objection to the debenares being made chargeable on the land fund. The Colonial Secretary remarked, upon what had fallen from Mr. Kennedy, that the natives had been led to believe that some arrangement would be adopted whereby they would be enabled to sell their land. Several persons had used their influence with the natives, to urge the government to permit unrestricted sale of lands, but for his own part he never knew any of the present claimants to have taken part in such proceedings. For his own part he could never see how grants could be issued without considerable expense and difficulty, and he was therefore the more glad that His Excellency had brought in the present measure, and he was also glad to find that the council sympathised with the jpright claimants. The Council then went into committee on the bill. On the third clause being read, the Governor remarked hat some obscurity was involved in its construction; ie should be sorry to open the question so as to include hose who had neglected to send in their claims within ■he specified time ; he wished to £,ive compensation to bonafide claimants, who had done their best to establish their claims. The Colonial Secretary thought that time should be allowed to some who were unavoidably prevented from complying with the Government legulations; he knew of several cases that were deserving of consideration. His Excellency said, that he wished to avoid above all things that which the Colonial Secretary wished to introduce j he had strong objections to open up the question again ; he had been calculating the extent of land claimed by parties eligible for compensati , at 54,260 acres, but if the Colonial Secretary's suggestion were adopted, he should have to compensate for 90,000 acres, and issue, a fresh proclamation. The Colonial Secretary only had reference to about five or six claimants who had no opportunity to have their lands surveyed be.bre the time expired ; and he wished that some regulation was made whereby claimants so situated could have the advantage of appeal to His Excellency for his personal investigation. The Governor would rather that the hearing of such claims should be left in the hands of the Commissioner; his time would be very fully occupied in othermatters, and if he was to hear those it would entail very great additional labour upon him. On the 9th clause being read, the Colonial Treasurer moved that 5 per cent should be the interest payable on the debentures. Mr. Donnelly said as the debentures were transferable, he would second the Colonial Treasurer's motion. The Attorney- General s?id that according to the bill, the debentures were not transferable. ' Mr. Donnelly said that altered his position altogether, as he thought they were transferable. The Governor said that it would be better to make the debentures transferable, in order to give them value. Mr. Donnelly certainly agreed with Ills Excellency, and said that unless the debentures were made transferable, the meaning and intention of the bill would be lost altogether, for poor claimants would not at all be benefittetU Mr. Kennedy thought the interest should be higher than 5 per cent, in order to make the debentures negotiable. The Governor said that these debentures would have a better chance of negotiation than even those he had issued after he came to the colony ; there was then no circulating mediutn,and he had to fix the rateof interest at what would have been under other circumstances, a very high rate. He had no doubt but that the debentures would be readily negotiated. In South Australia government debentures were bought up by the Savings Bank, the Odd Fellows, and other benevolent institutions, and they were looked upon as veluable se curity. Mr. Domett proposed that the interest should be charged upon the land fund of the district of Auckland. Mr. Donnelly objected to the debentures being made chargeable upon the land fund; if such course was taken, there would be no chance of negotiating the debentures, or of turning them into money. The Governor proposed that the interest should be paid out of the Customs revenue of Auckland, and he would write to the Home Government and recommend that a moiety of the land fund should be set apart to defray the principal. Mr. Kennedy objected to the interest being paid from the revenue of AucHand. The Governor said that the Government would have to pay for much of the land for the sake of the peace of the country— much of the land for which they would pay debentures, would never come into their possession. His object was to give the debentures the greatest possible value, so that the benefit would be derived by those he wished to serve, namely, the bonafide claimants, and if the debentures were not made valuable and easily negotiable documents, then the whole benefit of them would be derived by speculators. Mr. Donn°lly was very well satisfied to have the interest of the Debentures paid from the revenue of Auckland ; and he hoped that such good security would induce the claimants to take advantage of the bill, and bring their claims to a settlement. He could say with great sincerity that he considered ir-e^ular claims to land had been a scourge to the Colony from its commencement, and the sooner the present claims were set at rest the better would it be for the interests of all. These irregular claims had torn in pieces the land fund, and left nothing for emigration. For his own part he felt such repugnance to the system that had been lately fashionable of acquiring land, that he never made an attempt to procure any by such mode ; he hoped the land claimants would divest themselves of their dreamy delusions about large estates, and that they would direct their energies into a more beneficial channel, by which means the real interests of the Colony would be advanced. The bill before the Council was most strangely misunderstood. It had been called a Confiscation bill, but if all the lands claimed were granted, it would amount to a general confiscation of the whole settled landed inteiests of the Colony. Mr. Domett quite agreed with his learned friend Mr. Donnelly, and he was glad to have the assistance of such a talented advocate on his side in deprecating the land claims systc n. The Council adjourned.

Tuesday, November 10. Present — All the Members. The Cattle Trespass Ordinance Was read a third time, and passed. Land Claims Bill. The Attorney- General proposed that the words •• not transferable," be lefr out of clause 9, an improvement suggested on the preceding day by Mr. Donnelly ; and that instead of making the principal of the debenture chargeable on the Lind fund, as recommended by Mr. Kennedy, the plan suggested by His Excellency the Governor and Air. Donnelly should be adopted, namely,' that of making it chargeable upon stich fund or funds raised irrthe Northern district, as Her Majesty may appoint.

On the motion of the Governor, the interest was made chargeable on the Customs' duties of the District of Auckland, and not on the land fund, as suggested by Mj\ Kennedy. A lengthened discussion arose upon clauses 12 and 1 3. His Excelleucy the Governor and Mr. Donnelly contending that clause 12 was absolutely necessary for the protection of the occupying claimant, and that clause 13, should be so framed that the claimant should in no case pay more than £1 per acre for his land, and that the payment should be made with his debenture. Some difficulties connected with the native reserves having presented themselves during the discussion, the further consideration of these clauses was postponed to Wednesday, the 11th November. The Council adjourned.

Wednesday, November 11. Present— All the Members. The consideration of the Land Claims' Bill was again resumed in Committee. The Governor proposed, that in order to give greater facilities to parties who held occupation of their lands, of procuring Crown titles, that the difference between their outlay and £1 per acre should be paid to the Government, and they would then get a title to their land at once, without any sale by auction. This system he conceived would restrict large claims, which he wished to discourege, as he would not run the risk of granting titles to extensive tracts of land that might never have been pure" sed fro in the native owners; and he would never consent to call upon British troops to spill their blood, and that of the natives in defence of claims that he believed were unjustly obtained. It was desirable that persons around Auckland who had commenced to improve on the land acquired by the pennyan -acre system, should have their titles at once, so as to be in legal position to take advantage of the Cattle Trespass Act, &c. ; and the plan he now proposed would give them the power of retaining their land without running the risk of being outbid at auction. Mr. Kennedy thought that £1 per acre was too high in all cases, and he proposed a graduating scale to be proportioned by distance from the town. The Colonial Secretary was opposed to the suggestion of Mr. Kennedy, as he considered it incompatible with the Land Sales Ac' Mr. Kennedy said there were several cases that he could mention where parties had expended largely in improvements, yet as their lands were at such long distance T.om the town, they would not be worth any tiling like £1 an acre. He could mention Mr. Williamson, who had bought an island, and laid out about £500 in laying down grass for pasturage, but he had done very little by way of cultivation, and he could not be reasonably required to pay £l an acre for this claim. The Governor said it appeared the bill met all cases except those of claimants who resided at a distance from Auckland, and to such the bill said—" Keep your land, j if you choose, as you have it ; but if you want the Crown to interfere, you must go through the terms of this provision." He offered to give them compensation for the expenses they had incurred, but he would not undertake to put people in possession of lands, while he considered that by so doing he might involve Great Britain in a sanguinary and expensive contest with the natives of this country. He had said before, and he now repeated that he believed these claims to be illegal, and that they would be disallowed by Her Majesty, and therefore he did not wish to incur the certain expenditure of British blood and money in the support of claims that he believed to be unjust. In answer to a question from Mr. Kennedy, The Governor said, he had been considering for some time of the best arrangements that could be made for the introduction of a depasturing system, similar to that in use in Australia, and he hoped to be able to do something whereby flockholders would be accommodated with pasturage in the Colony. His Excellency made several other observations about the manner in which Captain Fitzßoy's proclamation had been evaded. After which the further consideration of the bill was postponed. Sessions of the Peace Bill. On the motion of Mr. Donnelly, the council went into committee on this biil. On the question of the mode of appointing the manMr. Domett observed, that he wished to see the power given to magistrates to elect their own chairman. In all the other bills the government had everything their own way, and made what appointments they pleased ; but if the same system was to be followed out in this case, and the chairman be an appointed and paid officer of the Government, the object of placing unpaid magistrates on the bench would be completely destroyed. What magistrate would wish to sit upon the bench to be overruled by a chairman who would, feel bound to please his masters ? If the desire of the Government was to make such appointments, they had better revert to the Police Magistrate system, and give up the intention of the present bill. It was decided that neither Resident nor Police Magistrates should be eligible for Chairman of the Sessions Courts; and the Committee then adjourned. The Governor laid on the table a bill to provide for the safe custody of Lunatics ; and also a bill to prevent unauthorised purchases of land from the natives. His Excellency said that he was defiirous of introducing a squatting system into New Zealand, under ceraiu regulations, which he thought were indispensible to its safe and beneficial operation. His idea was that land to be leased, which belonged to the natives, should be procured through the Government, who should pay the natives their part of the rent, and retain the remainder to be applied to other purposes. He had not been able to prepare such measure, as he found it would be next to impossible to digest such a permanent measure as would satisfy both races. However, he found it necessary for the peace of the country to introduce this bill, in order to put a stop to the practice of buying land from the aborigines. He had received a communication from the Commissioner now at the southward, requesting him to put a stop to illegal sales of land j and he had therefore found it necessary to bring that bill before the Council. It was only preparatory to a regulation which would enable him to give squatting licenses, which in a great measure, would prevent future illegal purchases of land in the colony. Council adjourned. [We are unable to continue our report up till Friday, in consequence of press of other matter. The council for the last two days were chiefly occupied in the further consideration of the Land Claims' Bill, which has been materially altered from its original shape. The report of the bill has not yet been brought up, but in our next we will publish the ordinance as amended and passed, with the further debates in committee as it advanced. The council will meet atone o'clock this day, (Saturday), when the second reading of the Bill for preventing unauthorised Purchases of Land from the Natives, will be read a second time.]