AUCKLAND. GENERAL LEGISLATIVE COUNCIL. Saturday, August 4th, 1849.

New Zealand Spectator and Cook's Strait Guardian, Volume V, Issue 431, 19 September 1849, Page 3

AUCKLAND. GENERAL LEGISLATIVE COUNCIL. Saturday, August 4th, 1849.

Present: — TbeGovernor-in-Chief, the CoJonial Secretary, the Attorney-General, the Colonial Treasurer, Mr. Merriraan,* Mr. Barstow, Lieut.- Colonel Hulme, Major Matson, and Me. Kempthorne. The Attorney-General, on moving the second reading of the Crown Titles Bill, after alluding to the lengthened period during which the public had experienced t\\e evils of the insecurity o/ .their titles to laudj proceeded in the following manner to explain to the Council the leading provisions of the measure; — "From t:he returns which have been laid upon the table, it will appeajr that, out of the 1800 Crown Grants which have been made since New Zealand was erected into a British colony, about 540 only have been made of lands purchased with cash at Government land sales — that 370 have been made, or purport to have been made, under the provisions of lie Land Claims Ordinance — that 880 grants have betfn made of land purchased by the old land claimants with scrip — rand that 80 deeds of grant have been made to claimants of land, in whosje favour the Crown's light of pre-emption was waived by Governor Fitzroy. With reference to the first of these classes, it is unnecessary for me to occupy the time of the Cotfncil, as I have no reason to believe that they are otherwise than good and valid, As to the 370 grants which purport to be made under the provisions of the Land Claims Ordinance, I need not weary the Council by going into the detail of the defects and irregularities which affect so large a number of them, as this is information which it is in the power of the Council to obtain for themselves by consulting the Returns which have been ordered to be printed. But to give some idea of the extent and character of some of these defects, I may observe that two of these grants actually contain no description whatever of the land intended to be granted. That five of these grants convey to the grantee a greater quantity of land than they originally claimed to have purchased from the native owners. That seventeen of these grants convey to seventeen different grantees, land described by the same boundaries ; and that in a large number of the remainder of them, the land of -which the grantee is recited to be entitled to a grant, forms a part only of the whole quantity claimed to have been purchased, and is not particularly described, and for want of a description, are not only technically, but practically, void for uncertainty. Wiih reference to the 880 grants of land, purchased with scr ip — a nd the 80 grants made to those in whose favour the right of pre-emption was waived — I may state to the Council that it is the opinion of some lawyers that the Governor of a polony has no power, by virtue of his office, to make a valid grant to a subject of the lands of the Crown ; and that this power must be expressly conferred upon the Gp ernor by the Crown, by some formal instrument; and, further, that it is competent for the Crown to give this power, subject to such limitations and restrictions as the Crown may be pleased to prescribe ; and that, too, either by the instrument conferring the power, or by reference to, and by an instrument of inferior solemnity. lam bound, however, to inform the Council that upon some of these points a different opinion "has been entertained by one of the Judges of the Supreme Court : a difference of opinion is, at all events, evident

upon the subject. Now the practical expediency of some legislative declaration on the ! subject will be obvious to the Council when i it is remembered that from the foundation of the colony to the present time, the power conferred upon the Governor for the time being by Royal Charter and Instructions has, speaking in general terms, been made subject by such Instructions, to the condition of a money payment by the grantee — for the most part not less than a Pound an acre — and, generally, to sale by public auction. And as in the case of the 880 scrip grants, there was no money payment whatever — and in the case of the 80 pre-emption grants the payment was less than a pound an acre, the necessity for some enactment on the subject will be sufficiently apparent. Such, then, is the state of the case with which the Council has to deal. When the time for legislating on this subject arrived, the question for the decision of the Government was, on what principle it should be founded ? Should all the grants be declared to be Valid ? Or, if not all, then which of them ? And where was the line to be drawn ? The difficulty of making a just discrimination on the one hand — and the fact that the Supreme Court had decided that two of these Grants containing within themselves a combination of most of the principal defects which pervade the rest, decided the Government in favour of adopting a general and comprehensive measure. And as the Supreme Court had decided in the case of the Queen v.Clarke that a grant could not be set aside, as invalid, though contrary to the Report of the Commissioner duly authorised to hear it ; and as the Court had decided in the recent case of the Queen v. Taylor that a grant could not be set aside as invalid, though made at direct variance with the Report of the Commissioner duly authorised to hear, examine, and report upon it — 'though it contained a false recital — though it cqnvpyed land which the Commissioner reported had not been purchased from the natives until after the Proclamation, prohibiting all such purchases — and although it conveyed nearly twice the quantjty of land to which the grantee is recited to be entitled, the Government Jecided upon comprising within the provisions of this Rill the whole of the | drown Grants which have been made since I the foundation of tbe colony — without any exception, to the extent at least of curing any defects which may be found in them arising from the fact of their being made pontrary to the regulations for the time bejng in force respecting the disposal of the lands of the Crpwn.-— or arising fron? the want of strict competent ajjthorityon the parf of the .Governor by whom any such Grant may have been made, Accordingly the first clause of the bill enacts and declares, that "Every grant of land ! within the Province of New JJister, sealed with the public seal of the colony or Province, and made before the passing of this Ordinance, in the name and on the behalf of the Crown by the Governor, &c,, for the time 'being, shall be deemed and taken to be a good, valid, and effectual conveyance of the land purported to be conveyed by such Grant, and of the estate and interest purported to be conveyed thereby as against her Majesty, her heirs and successors." Al"'A 1 "' here, Sir, I purposely pause, in order to call the attention of the Council ro tbe next six words which follow and which constitute a provision in the Bill, the value and importance of which has probably not yet been fully understood and appreciated. The Council generally may not be aware that the enactment of the Land Claims Ordinances did not require that the Commissioners should ascertain that the land claimed had been purchased from the true native owners. And fuither, the Council are perhaps not aware that, in their reports, the Commissioners in no one instance report the lands to have been purchased from tbe owners but only that tbe claimants had mad,e a bond fide purchase irom certain native chiefs named in the report. And further, the Council generally are probably not aware that a Crown grant does not convey to the grantee an absolute title, as against all the world, but only as against the Crown itself, of laud which the Crown had tbe right to dispose of. Supposing therefore, a grant of land claimed under the Ordinance made by the Governor — regular in point of form — and with all due Authority from the Crown, yet, if it should subsequently be found that the natives from whom the land was purchased had not the right to sell it, the true owner would be entitled to tbe aid of the Crown for the purpose of recovering the land which the Crown, having no title to it, had wrongfully disposed of. While legislating with a view to the final settlement of this important subject, it was felt that it would be a great point gained to settleconclusively the ownership of the laud comprised in these grants. And it has accordingly been determined to make use of the present opportunity to do so : and the first clause contains this further enactment, that, besides being deemed a good and valid conveyance, any graut shall confer upon the grantee a good title, not only as against her Majesty, her

heirs and successors, but " a-jainst all other persons whatever." In the great majority of cases, the land comprised in these grants has probably been purchased from the true owner ; but having made this sweeping enactment, giving in every case to the European grantee a perfect tile to the land, although it may happen that in some cases the original native owner was not a party to the sale of it, it is necessary that provision should be made to prevent the infliction of a gross injustice. A clause has therefore been introduced into the Bill authorising the payment of compensation. < To decide in what cases such compensation should lie made, and what should be the amount to be awarded, it was necessary to constitute some tribunal to whom the cjuestion should be referred ; it is aiso necessary that any such tribunal should be indepen lent and impartial, and such as will pommand the confidence of both races of her Majesty's subjects. Haying regard to these objepts the Government have not been able to devise any more satisfactory tribunal than the one already in existence, viz., the Supreme Court ; and, accordingly, it is provided, that if at any time before a period to be limited by the Bill it should be proved to the satisfaction of a Judge of the Supreme Court that the native title to the land comprised in any such grant hath not been fully extinguished, it shall be lawful for such Judge to award to the native ; claimant proving title to the same such compensation as shall appear to stand with equity aijd good conscience. The next question is, [ by whom, or out of what fund, shall this compensation, if any be awarded, be paid. Two courses presented themselves — either to make the compensation chargeable on the land in ' respect of which it may be awarded,- and payable by the owner of the land — or payable out of the general revenue of the Province,. On some grounds it may seem to be fair to make the compensation a charge upon the land jtself; but to adopt such a course would have the effect of rendering the measure, so far as it is intended to settle the question, of little more value than so much waste paper ; because, although it might still have given to the grantee a perfect title to the land itself, it would have saddled it with the possibility of an unknown and uncertain charge whirb, for years to come, would have materially impaired its intrinsic marketable value,. And, seeing that the subject is not one of mere private and individual interest, but that if affects in a greater or less degree every class of the community, who are all interested in the settlement of the question, it has been deemed expedient to make the compensation payable out of the general revenue of the Province. A large class of cases still remains to be provided for. On referring to the returns, it will be seen that there are a considerable number of grants wherein the land to which the grantee is recited to be entitled, forms a part only of the whole quantity claimed, and is not particularly described in the grant. In legal phraseology these grants are strictly void for uncertainty, and the provisions of the Bill already referred to do nothing towards curing the defect. But all that can, in such a case, be done by legislative enactment has been attempted by the cliuse which follows, by which it is enacted that in every such case the grantee, his heirs or successors, shall be deemed to have for a limited period, the right of selecting out of the whole quantity comprised within the boundaries set out in the deed of grant the particular quantity to which he may be recited to be entitled. In the carrying out of this provision it has been foreseen that when the right of selection shall be exercised, and yisible possession, for the first tinge, perhaps, taken of the land, that difficulties may hi some cases be made on the part of the natives to the peaceable occupation of the land. In case, then, the grantee shall find that quiet possession cannot be taken, and the Governor for the time being shall also be satisfied tha.t to attempt to give forcible possession would endanger \he public peace, the Bill gives to the Governor, in such cases, the power of grapting to the person entitled to the right of selection cpnferred by this Bill, other land, not °f l " c same extent, but, of equal value, in the neighbourhood of this settlement, which shall have been offered for public sale but remain unsold. Sweeping and comprehensive as these several enactments appear to be, they still do not provide for all the defects and irregularities to be found in a number of these grants. According to a popular notion, an Act of Parliament is omnipotent, but it may well be doubted, as observed on a former occasion by an hon. member on the left, (Mr, Barstow), whether it is within the power of a Colonial Ordinance to confer on two different people a valid title to the same piece of land. It must be obvious then, to the Council, that to meet these, and several other cases, if the case be provided for at all by legislative enactments, (and the whole of these grams it must be obvious cannot be so amended) that further and additional provisions must be inserted in the Bill. It only remains for me now to notice the last clause, deferring the opera- j

tion of the measure, until it shall have received the Royal assent. This clause has been, inserted wjth N no intention, or the slightest wish, ou the part of the Government, to delay, for a single moment the operation of the Bill, but, on the contrary, simply and solely from an anxious desire to secure for it, as far as possible, the favourable consideration of her Majesty's advisers. But dealing so largely with the prerogatives of the Crown, it has been thought that the insertion in the Bill of J such a clause would be best calculated to secure tor it the {loyal confirmation, But should this opinion be unfounded, then, the clause, should of course, be omitted, this, however, is a question for the Council to dfternijnej but looking at the main object in vjew, it will well deserve tjjeir serious consideration, whether the bringing of such an Ordinance into imrne? diate operation, trenching, as it does, so closely on the Royal prerogative, may not endanger its ultimate allowance by the Crown, Such, then, are some of the principal defects which are sough.* fo be remedied by the Bill before the Council ; and when the variety, the number, and the character of the defects and ii regularities which affect so large a number of the grants, as appear from the returns upon the table, are carefully considered, it will at once, I think, be admitted by the Council that the subject has been attended by no inconsiderable difficulties : and when at the same time, it is remembered, that it takes many years to bar the rights of the Crown — that, ' for many years to come, it would be competent for the Crown, in the absence of any such measure, to institute proceedings for setting aside any of those grafts which might be proved to have been issued contrary to law, or without competent authority, then, Sir, I think it must also be conceded that it would have been neither a wise, nor a far-sighted policy to leave so much that is defective, irregular, and uncertaiu at the very root .of so many titles to land in this part of the colony without so much as attempting a remedy. For is it not a wise policy in the body politic, as in the natural body, instead of leaving the seeds of latent disease to endanger the constitution by slow and imperceptible degrees, rather to draw them to a head, for the purpose of being pro* bed and thoroughly expelled, as a necessary preliminary to the applications of any truly sound and healing measure. It may be, sir, that in this probing process, some pain and angry feeling have been naturally, almost necessarily excited ; but I think, sir, that in after times, when these proceedings shall become matter o"f history — when they shall be reviewed in a calm and imparttal spirit-^-they will be found to present a not unfavourable illustration, in these the very remotest dominions of Great Britain, of the genius of her constitution, the character of her people, and the spirit of her laws — they will present the picture without a parallel in any other nation — of the highest ministers, of the most powerful sovereign in the world, whatever may be their individual opinion as to the legality of the acts of that sovereign's representative, compelled to resort, for an interpretation of the law to the courts of a distant dependency, presided over by Judges of their own appointment. And, it will present the still more glorious picture, Sir, of these Judges, so appointed and holding office but at the pleasure of the Crown, in a matter relating to the interests of the Crown, in the spirit of their oath, conscientiously, without fear or favour, openly delivering a judgment at variance with the known opinions of her Majesty's responsible advisers. And it will further present the picture of the Local Executive Government,- under the same circumstances, at once taking upon themselves the responsibility, believing it to be conducive to the welfare of the colony, the honour of the Crown, and the interests of her Majesty's colonial subjects, so to do, of adopting the judgments of the colonial courts, as a rule for their guidance, in the prepa r ation of a comprehensive and conclusive measure for the settlement of a much agitated and difficult question of all important interest." — After expressing his. belief that this measure would above all others most favourably distinguish the Governor-in-Chief's administration of the affairs of New Zealand, the hon. and learned member concluded by moving that the Bill be now read a second time.