GENERAL LEGISLATIVE COUNCIL. Thursday, August 14, 1849.

New Zealander, Volume 5, Issue 343, 18 August 1849, Page 2

GENERAL LEGISLATIVE COUNCIL. Thursday, August 14, 1849.

Present: — The Governor-in Chief, the Colonial Secrettry, the Attorney- General, the Colonial Treasurer, Mr. Merriman, Mr. Baratow, Lieut.-Colonel Hulme, Major Matson, and Mr. Kempthorae. The Colonial Ciuplain read prayers. Minutes read and confirmed. Mr. Barttow presented the following petition, from certain settlers in the district of Tamaki, praying that disillation might be allowed in the colony. The hon. member, on moving that it should be printed, expressed himself as fully concurring in the prayer of it. Petition read, received, and ordered to be printed. To His Excellency, the Govbrnor-in-Chie» o£ New Zealand, and the Honourable the Members of the Legislative Council, in Council assembled' The Memorial of the Undersigned, Landholder! re* siding on tlie Tatnaki, Humbly She'weth— That, in the opinion of your Meirorialiits, to allow the distillation of spirits, would be of essential benefit tothe Colony, for the following reasons. Ist. In the opinion of your Memorialists it is the duty of the Government to encourage within the Go-

lony the manufacture of such producti as may be in demand, and that the colony is adapted for producing —as next in importance to an exporU-U our Colony being able to supply itielf. m 2nd. A direct itimulm would be given to the farming interest, by causing a demand for barley and other qf Your Memorialists would humbly add tba* the climato of New Zealand, though admirably adapted for the growth of grain, yet, like the climate of England, it precariou*. and at the supply of labour ii also precarious Miere is therefore very considerable risk of grain being sprouted by wet in harvest, and it it wellknown that wheat sprouted is totally woithlest to the baker, though, comparatively uninjured to the distiller. 3rd. The natives are now b coming extensive producer of wheat and other grain crops— and if -heir civilization and progresi in ind«strial pursuits be of consequence— it surely is of importance that they be able to find a market for their produce. Laitly, in repiy to the arguments of those who advocate the «ot«I disuse of spirits, your Memorialists would humbly urge, that if people will use spirits they may at well use im article that is bona fide the produce of the Colony m an article that is itnpo.ted. Your Memorialists therefore humbly pi ay that you may be pletsed to pass an Ordinance to allow the tlistHlaiionof spirits in New Zealand, and your Memorialists as in duty bound will ever pray.

Crown Titles Bill.— Adjourned Debate on the SecOND Reading. Mr. Merrlman rose to 6ay that he did not think it necessary to move for any further postponement of the debate on thi. bill, although member! had not yet possession of all the information that was necessan to guide them to a proper consideration of it. I" the observations that he wai about to make, he wou'd confine himself as much as possible to the general 1 rinciple of the measure, and point out what he considered to be the defects of i', *iih a view of shewing us far at possible, how theie defects might be remedied. In the first place, he thought that the principle upon wHch the bill set out, namely the quieting c doubti as regards the validity of Crown titles, wa», as any measure which tended to render more certain the title to landed property, a wise one ; but such being his opinion of it, he thought that, instead of confining it to this Province alone, it should have comprehended the whole of New Zealand, extending its provisions lo the titles of the other Province, so that one final settlement of the validity of every grant hitherto issued by the Crown to lands in New Zealand might be made. He was aware that the argument against extending the bill in this way would be, that the Southern Province was not repretentated in Council. But such an argument would only bo a very good one weie the Council aheut to impose taxeg upon the Southern Pro vine. In * matter of cdnferaing the bent fits of this bill upon the colony generally, the appaentir. regularity might easily be got over, and the spirit in in which the Council would act, in extending whatever good was intended for them theirneighbours could hard ly be found fault with. In entering on a review of the bill, he observed that the first clause enacted that all grants made before the passing of it were to be declared valid, and that not only against the Crown, but against all persons whatever. Now this was a sweeping and bold enactment especially in a countiy cir« cuoi'tanced ai this is, where there existed probabilities of adverse claimants arising among the natives. But the Act, in the second clause, goes on to provide for such contingtneirs, and enacts that if it shall be proved to the satisfaction of a Judge of the Supreme Court that the native title to the land hasnotbem fully extinguished, that compensation sliall.be awur.ieil; and tken the 2rd clause provides that such compensa» tion shall be pa) able out of the general revenue c f tl>Piovince. That the claims of advarse natives shoul.l be sa isfied he believed to be just, but the plan that wai proposed to meet such demands was not, in his opinion, the best or ihe fairest tfcat might be adopted, The learned Attorney Gene' al, in his speech on the second reading, had alluded to two plans that suggested themselves for the satisfaction of adverse native claim ants. The first was, that the amount claimed hhuuld be a charge on the land : or, secondly, on the Provinco. As to the first proposal it would be next to impossible to make the amount a charge on the land, and also unfair— as the assessinen*, i istead of reaching the original grantee, would, in neurly all cases fall upon the preient holders, who had paid enough already for their posienions. But it is intended to tax the funds of the Province for the satisfaction of thesa claims. He thought that it would be unequal justice to charge this Province alone with such a tax ; that it should be placed bpon th» general revenue of the colony, as, from what had fal'en from His Excellency the other day in Council, and wha» he had stated in a dispatch, it was evident that this Province was likely to be charged with a very heavy expense on account of the N.Z.Company. But » method occui red to him which be would suggest as one that might be practicable, and appeared to him at equitable, which was, that after the amount to which an adverse claimant might be entitled had been assessed by the Judge to whom the question might be referred, the grantee should have the option of either paying the amount awarded to the claimant, taking advantage of the eighth clsusr, give up his claim to the Crown, and receive compensation in land exchanged for the ralue of his claim thus given up. The Crown would thus lake bis land tnd ta'isfy the demand of the native claimant, and by this means the colony would not be made to pay any money for which no value would be given. There were, however, many practical difficulties which suggested themselves to his mind, which would render the adoption of the plan, although it appeared feasible at firit sight, difficult to be carried out. The matter might be easily arranged with the original grantee if still in possession ; but when they came to deai with three or four tranbfer pu-chasers, who had bought the claim among them, who*e metes and bounds were not understood, then the difficulties would present themselves. But although these difficulties might at first view appear insurmountable, yet he thought they might be got over, to a certain extent, by enacting that the same privilege should be extended to all case* where the parties beneficially interested assented to the arrangement. In the few cases of this kind that would arise, atbi'rators might be called in by the parties, and have power to decide upon the metes and bounds of their several claims. However, his own impression wai that very few adverse native claimants would arise, and that these difficulties, which were all rrfrely now in anticipation, if ever they should arise, would be easily cleared away, fie now came to the eighth clause to which he had referred, and in which provision was mude for the exchange of land ; but according to the following clause it appeared (hat Ihe land to be given up by the claimant to the Crown was to be valued by two appraisers, whilst the land that the Crown was to give in exchange was to be taken by the claimant at the upset price at which it had been offered for salt by public auction. Now this was a most unfair principle, that while the Government would take care that the land they were about to receive of the claimant should be valued by two ap> prasiers, yet that the claimant should be compelled to select land to be taken in exchange at a price that had

been repudiated by the whole community, and stamped at too high. Whatever principle was to be acted upon for the Crown in oases where exchange was necessary, let the same be applied on both sides,— if the Crown preferred to decide the value by appraisers, let the claimant have recourse to the same method of valuation. These were the principle points in the ordinance to which he wished to direct attention. In the principle of the bill he he entirely concurred ; the only fault he found with that was that it did not extend still farther and take in the whole colony, and te'tle the law whereby real property wai held within it, not only with regard to such as had been granted by the Oown, but to extend itself to other grants also. He thought that it would be well to make provision for such per10ns as were not natural born subjects, to whom gran's had been isiued, and through whom title* to land are now derived by persons who held properly in the colony ; he should have been glad, »lso, if if steps had bpen taken for the final settlement of the claims ari ing out of the ten shilling and penny-an-acre proclamation-. Was this que-tion never to be finally set at rest? Surely the doubts and anxieties 'that had been cruelly allowed to bang over the old land claims for the last ten years, and which were now at kit abmt to be set rest, were not 10 be revived and perpetuated by allowing these claims to remain unsettled. It would be well for^ ihe prosperity of this Province were the Council permitted to decide at once upon this question— either one way or the other— rather than that it should be still left in doubtful abeyance. Mr, Barstow said, that unvillin? ai he was to criticise and animadvert too severely on any measure emanating from the Government that had a tendency to allay irritation, and though he felt he. had been anticipated in much of what he might have brought forward in commenting upon this bill by the learned gentleman who had just sat down, yet he could not ; allow the second reading of such an important measure to pasi without expressing what he felt upon it. The learned gentleman who had moved the second reading of the bill, had taken great pains in an eloquent and elaborate ipeech, to comment in terms the most eulogistic upon the benefits to be derived from it; but notwithstanding ail that had been said in its praise, he, for hit own part, would have been much better pleased had the latter part of the first, and the whole of the second and th.rd clauses been omitted, «nd the bill laid upon the table been a simple declaration from the Government — Quod feci feci, si bene bene, si male male, feci tamen — a simy-le guarantee that no more suits of scire facias should be issued, that no appeals should be prosecuted, and that the Crown should recognise all its grant! as against i'self. But as the learned mover had represented the completeness of the bill ai one of its greatest recommendations, he (Mr. Barstow) should hesi ate the leis to adopt thoie clauses perhaps in a modified form, had that essential really existed—but the most lerious fault of the bill was, in bis eyes, its incomp^tenrss. The title given to it is, " An Ordinance for Quieting Titles to Land in the Province of New Ulster." But why not in the whole of Nrw Zealand ? Were the members of that Council, composed entirely of residents in New U tter, after having heard all the blesiings they were about to enjoy under it, and having their mouths made to water by the description of the learned gentleman, were they to be so very selfish as to ke p all thoie good things exclusively to themselves? If this measure has any good in it for this Province, it would also be beneficial to the other ; and why pass a measure now that w^uld on'y have to be ripped up again so as to admit the por ions of the county that are now excluded. He therefore agreed with the lat-t speaker, that the measure was incomplete as regard* its extent, and would only feel satisfied when the title of it was altered so as (o include not one Provirce only, but New Zealand as a whole. So much for the title of the bill. To the peamble he would assent; but to the latter part of ths first clause, as we 1 as to the s-cond and third clauses, he had objection*. Out of the 1870 gran's that the learned mover had informed the Council were i made by the Crown, 370 only were nude in ennse* quence of awards of the land claims commissioners ; 880 were for exchange grants, to which no native claim would likely be prefeired, as the whole of su h knds were once in the possession of the Crown. As regmded the first class of 370 grantees, he thought that it would be a matter of cutiosity tv know how many of them were in possession of the original grants. His own opinion was, that the unfortunate individuals to whom such grants were made were but in few instance! still in possession of them, many having either left the colony in disgust or iv debt, others had died in poverty, or a'ienated for a trifling consideration land, the purchasing and endeavouring to obtain undisputed possession of which had drained away their means, and wasted the best yean of their livrs. To how few then of these sufferers would the measure afford relief. He thought the wisest plan would be to allow the grantees to arrange as beit they could with the native c'aims, for he felt assured that fit less difficulty woul 1 arise by allowing the matter to take its own time and course, then thus to advertize for claims, many of which otherwise would never be preferred. But he thought it by no meani just that the payment of such demands as might arise should b: mide out of the general revenues of the province, for it seemed rather hard that any of <he 640 persons who had pu> chased land from the Government after having paid exorbitant piices for it should in a dition have to pay to make good the titles of perse ni whose land— even supposing the holders to be original claimants-- had not cost one tithe of the price paid for their (the settlers) own. He looked upon the proposal as one that would confer an additional bonns upon them ; and he thought considering the paucity of the clais for which the majority would have to pay in order to keep them in peaceable possession, and the circumstances under which the grants were given and, in some cases, the manner by which the lands cams into the hands of the present pioprietors, that the plan was neither a jmt nor expedient one. He should luve recommended, hud he coincided with the remainder of the bill, a medium course between leaving such amount to be defrayed by the grantee and the charging of it upon the revenue— namely the paying the money by the Province, taking security on the land for repayment, say, in five years, such loans to be made out of the Treasury, not bearing any, or, if any, a very low rate of interest. By this means the holder would not be obliged to sacrifice h s property, and the necessity of having to pay the claim hereafter, would gradually cause the breaking up and bringing into the market large blocks of land now held unprofitably and to the detriment of the colony. His opinion as regards the several provinces was that in whatever province an adverse claim arose agaiust a grantee that there it •hould be settled and the charge of it borne. The measure had been termed a boon, and much flat cry was bestowed upon it ; »c should o ily say that were he an old land claimant (as thank fortune he was not) he would not ask for it nor look upon it as a boon. He thought that for the honor of the Biitish Crown it behoved the government to make good all grants that had been made by the represents ttve in the name oi the Crown; upon that principle the measure was no boon whatever, but stern, rigid, juitice— justice that

wai hardly entitled to the name, after having been so long delayed. Major Matson was very glad that such a measure as the present had at lenrth been brought forward by hit Excellency. He confesied, however, that he fully concurred in what the hon. member (Mr. Merriman) had laid with respect to the ten shilling an acre, and other claims, and he felt equally anxiou* for a settlement of those also. He believed that much of the agricultural prosperity of the district depended upon an entire and speedy letileinent of this question. He had an opportunity of knowing a good deal about those claims while he was engaged in investigating them, and be felt compelled to sty that the claimants looked for nothing more than justice tnd^fair play in the settlement of them. If such were the grounds on which the claimants themselves wished for a final adjustment of their claims, hs wai sure that the G jvemmsnt should be actuated by the same principles, and if such was to be the guiding rule, ihe whole of them might be eauily and satisfactorily set at refit by having recourse to arbitration. He objected to that part of the bill which proposed to saddle the colony with diaries to satisfy native claimants. He thought that those who derived the advantage should bear these expenses, if any &uch arose ; for bis own part he did not expect lhat many of them would c er appear. He could not understand how it happened that the same land had boen granted to several individuals, but in whatever way thii tojU pare, certainly the claimants could not in any fairness be charged with the inegularity. The fault must have been somewhere else. The gallant member concluded with a hope that the land question, in all its branches, would soon be finally and satisfactorily set at rest. The Surveyor-General rose to give his support to the principle of the measure. It was one that contained much good within it. He thought that many of the matteri alluded to by the honourable members might better be attended to in its fa'ure stages ; and as the Council were likely to agree to the principle of it, all its details, and some of them were important, could be carefully adjusted in committee. The Governor re se and said, that perhaps he ought, at the present stage of the proceedings, to notice tome of the remarks made by the honourable members who had taken part in the debate, and he would do so the more readily from noticing the spirit in which they had approached the discusiion of the impoitint measuie under consideration. He was struck with a suggestion of the learned member who had firit addressed the Council ; it was one that appeared to him to be of much importance, and he would revert to it afterwards—confining himself at present to notice some of the great principles that had beeu touched upon by the several speaker*, and which he must say, if introduced into the measure, would compel him to withhold hi s assent from it altogether. It hid been contended that the operation of the bill should be extended to the whole of New Zealand. The ground on which the argument for extending it was based is fallacious The bill, it ii thought, doet not impose taxation. But the fact was, that this Ordinance not only imposes a tar, but it was calculated seriously to embarrais the land fund, for it gives pc sons ihe right to select out of distiicts of the colony, and so locks up for a conj.idera* ble time large tracts of country, rendering them unavailable for the purposes of ihe land fund of the Province. Now to exte' d such an ordinance to the Province of New Munster, in the absence of any member of that Province, would be manifestly unjust and unfair towards the settleis of that part of New Zealnnd ; and besides, it would be vi just towards the New Zealand Company, in which the whole Province is now vested by a solemn Act of Parliament. However, jus i c wou'd compel him net to introduce such a principle into the bill, until the minds of the people at the SO. th Were COniulted Upon it. It is contended that it is the bounden duty of the Crown to make good all the acts that have been done in its name by its representative. The principle, to an extent, is a true one, and may appear plausible enough, but he held that in the case to whii h it would now be applied so generally it is not applicable. He main'ained that justice foibid it; that the guarantee given by the Crown to the Natives of these islands, which was equivalent to a grant, f<ubid3 it; and he would a^k the Council whether they would say that granla ilut vve-e issued to land belonging tj thd native tribes without giv. ing those natives an opjortunity to say whether they had disposed of the lands or not, were to be ratified by the Crown as against those natives. He might give one insiance out of others that appeared on the returns that were before them. He referred to a case in which 1600 acres had been granted. The Commissioner appointed a day on which to hear the claim, but the claimauts did not produce their native witnesses; the case was postponed to enable them to procure these witnesses, and a more convenient place appointed for the hearing— but still the claimants neglected to bring the native witnesses forward, and no award was recommended by the Commissioners,—yet, notwithstanding this, a grant was issued to the claimants. Could any one say that such a grant should be made good ? Honour and justice would say— no ; the honour of the British Crown must be held inviolable as regards ihe native rights, and, in whatever measure may be passed to settle these grants, provision must be made to satisfy the claims of tribes who might not perhaps prefer them until the grantee, under the assurance of such a bill as this, proceeded to take possession of the land. But in the event of such claimants arising, the questton occurs, to whom should the matter be submitted for decision ? If to a jury, doubts might bs entertained of an unbiassed conclusion being arrived at— for the press, as well as pul-lic opinion, had hitherto been nearly universally in favour of the claimants ; all things considered, it was thought the best plan that could be devised to refer the caiei of demand to a Judge of the Supreme Courr, who would decide in tquity upon them, and whose decision would be the most likely to prove satisfactory to all cone rned. In reverting to the suggestion of Mr. Merriman he might say that he felt obliged to him for it, and he shouid give it his considera'ion; lie believed, however, that the charges that might arise in satisfying claimants would ultimately fall upon the land lund— and perhaps he might state that he had had recourse :o that fund, in tome instances already. In asking the Council to admit the charge to be made upon the revenue, he had done so only that funds might be at hand in the event of th* land fund being unavailable. He might now address himself to the objection raised against land beinggiven in exchange to claimants at the upset price. He thought that necessity called for the provision as it now stood. Did not the Council know that an Act of Parliament made it necessary that the Crown 1-inds should be sold at an upset price, either by auction, or, after having been once put up to auction, submitted to priva c sale. Surely that Council could not alter the \ctsof the Imperial Parliament. In offering thissjstem of exchange there was no discreiion left to the Government but to adopt the plan proposed ; but he thought it was polic) as well that the exchange should be made on the terms of the bill. With regard to the desire that was expressed to have other claims iucluded in this me.isure, he might say that the decision of the courts of the country must be taken as the cardiual rule o n the matter- The Conrt has decided on both

classes of claims, and let the Council now deal con - clusively npon that decision. It had been said that another clabs should be settled. His answer to that was that they had already been settled by an Act of Coun - cil. If that Act was not sufficient to finally settle the question of chums referred to, then the present Act would be of no use, and the Council might not go to the trouble of passing it. He thought that when matters were once set at rost by an Act of < ouncil, it was wrong to show a desire to throw doubts upo.i such measures, as such proceeding might have a very bad eliect upon the count y, Mr. Merriman enquired whether his Excellency, in the case of the "grant alluded to by him, had meant that it had been really issued, or merely signed aud. sealed ? The Governor— Oh, merely signed and sealed with the seal of the colony, and ready to be issuedThe Attorney-General said thai-, as only the principle of the Bill was then properly under the consideration of the Council, and as the Council) without a dissenting voice, were in favour of it, it was hardly necessary for him to say anything by way of reply,— more particularly as the Governor had alre.dy and, as he (the Attorney-General) thought, conclusivtly answered tie objections tbad had been r»iged on natters of dctuil. The Bill, as it stood, pioposed to deal only with g-ants of land in the Province of New Ulster ; — so far ns that Province wan concerned, the Government had come before the Council, and had made out a caiQ shewing the necessity for legislative interference. They had shewn the great number of i rants which had been issu-d within the province — the existence of doubts as to ihe validity of a large number of them — and the grounds on which those doubfs were entertaiiied. Before the Council could be expected to entert-un the proposition of the learned member to ir* elude within the provisions of the Bill the Deeds of Giant which had been issued in the Southern Province gome reasonable grounds for qu' stioning their validity should be stated. For himself, hf (the Attorney General) was by no means sure that if he were a grantee of land in that Province he should thank the learnrd member for hinting any doubt upon, the subject. H<* thought, then, that under the circumstances of the caie^t would not be expedient for the Council to legislate on them without the knowledge, and altogether behind the backs, of the people of i he Southern Province. The only point of practical importance on which any difference; of opinion existed as to, the measure before the Council,— and he had taken great paint to ascertain the views of those whot.fi judgment on the subject was most entitled to consideration— wat at to the tource fiom which any compensation that might be awarded was to be paid. Should it be made a charge on the Revenue, or on the land of the grantee, was the only question. There were many ways in which the subject might be de?lt with. The grants might be declared to be vtlid not as against the Crown, but also against all otheri — and the compensation might be made payable out of the general Revenue of the Province as proposed by the Bill. This, after careful consideration, had been decid d upon by the Government as, upon the whole, the best course to take. Or the compensation might be made a charge upon the land of the grantee — but the course appeared to him to be objectionable* for the reasons he had stated in moving the second read-* ing. Another course would be, to declare the grants to be valid only as against the Crown, and then tho comp en ation clause would be unnecessary. Tha suggestion of the leirned member, he thought, could not be onied out without difficulty, and would be too complicated ; and he thought it would scarcely be 1 ressed. But a couise had been suggested which, he thought was worthy of the consideration of the Council, — it had only been made to him a few minutes before the Council mat, and of course he had net been. able to give to it anj great consideration : but at the first blush it appeared to him to be — if not the best — at least the setond best moJe of dealing with the subject. It was, that all the grants which conveyed land which had been acttially iurveyed should be declared to be valid, both as against the Crown, and against all other per-ons whatsoever,— but the giants which comprised land which had never been surveyed, and which contained only a general description, should be declared to be valid only as against the Crown. If the plan he had stated to the Council be adopted, no provision would require to ue made for compensation — because, as a general rule, when land had been at~ lowed to be surveyed and taken visible pos'ession of, it might be saftly assumed thot a valid purchase had been made from the native owner: and making the second class of grants valid only as against the Crown, the subject of compensation would be left to be arranged by the grantee and any native owner who might not have been a party 'o the sale. The objection which had been raised to the 9th clause ot the Bill, providiug that the value of the. land to be given in exchange by the Government klmul 1 be determined by the upset price *t which it m'ght last have been offered for sale by public auction, could not bo maintiuued ; for he muat remind the Council that the whole transaction was by no means obligatory! but was merely mtde optional with the grante?, and intended for his relief and benefit in case he should find that the land for which be held a grant had never in fact been purchased from the true owner; in which case provision was made in the Bill giving to the urantee the op ion ot taking l<ind in the neighbourhood of the settlement, at a value for which it was open to the rent of the public for purchase with money. The reference that had been made to what was called " the Land Claims," he could scarcely understand in connection with the measure then before the Council. That measure had but one object, viz., to remove doubts as to the validity of all Crown gran's which had actwilly been made up to the present date: it did not puport in anyway to deal with claims to land. To mix up tfoat subject with, the measure then before them wculd be to impart into the Bslt what wass entirely foreign to the object ot it. All that could be done with reference to the subject had been dune— because the grants (80 iv number) which had been issued to persons in whose favour the Cro.vu's right of preemption had been waived, weie, in common with other grants, declared to be good and effectual, and all doubt as to their val.dity entirely removed. He might tike that opportunity of staling to the Council that, with a riew to make the Bill as compl'te as possible, a copy of it had been sent to the member* of the legal profession, accompanied by a "Circulai" letter, lequeiting them to give to the Counclt ihe bent fit of any legal or technical suggeitious which might occur to them ca'culuted to give effect to it object-, and to secure its efficiency. He noeu" nut then read to the Council the replies wn: t h had been received, but it was satUfarto y for him la stale, that so far as the opinion ot the piofesst?n rou'd be ascertained, th y were unanimous in giving an unqua'ifnd assent to the principle of the Bill. Upon another point also an umnimous opinion had k>een tx« pressed, viz., in tavour of omiLiut; the l>n,t clause, and of bringing the Bill into immediate operation. The Attorney General then gave a geneial statement of gsv' ral amendments which he would be prepared to propose in Commit co. The Bill was then read a second time(The continuation of Ihe report of this day's pro caedin-gs will be given in our next )