Thursday, August 18th, 1849.

New Zealand Spectator and Cook's Strait Guardian, Volume VI, Issue 439, 17 October 1849, Page 3

Thursday, August 18th, 1849.

Present — The Governor-in-Chief, the Colonial Secretary, the Attorney-General, the Colonial Treasurer, Mr. Merrirnan, Mr. Barstow, Lieut.-Colonel Hulme, Major Matson, and Mr. Kempthorne. The Colonial Chaplain read prayers. Minutes read and confirmed. Mr. Barstow presented a petition from certain settlers in the district of Tamaki, praying that distillation might be allowed in the colony. Petition read, received, and ordered to be printed.

i Crown Titles Bill — Adjourned Debate on the Second Reading. Mr. Merriman said, in the observations he was about to make, he would confine himself as much as possible to the general principle of the measure, and point out what he considered to be the defects of it, with a view of showing as far as possible how these defects might be remedied. The hon. member considered that instead of confining the measure to this Province alone it should have comprehended the whole of New Zealand, so that one final settlement of the validity of every grant hitherto issued by the Crown to lands in New Zealand might be made. 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 country circumstanced as this is, where there existed probabilities of adverse claimants arising among the natives. But the act, in the second clause, provides for such contingencies, 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 has not been fully extinguished, that compensation shall be awarded , and then the third clause provides that such compensation shall be payable out of the general revenue of the Province. That the claims of adverse natives should be satisfied he believed to be just, but the plan that was proposed to meet such demands was not, in his opinion, the best or the fairest that might be adopted. The learned AttorneyGeneral, in his speech on the second reading, had alluded to two plans that suggested themselves for the satisfaction of adverse native claimants. The first was, that the amount claimed should be a charge on the land; or, secondly, on the Province. As to the first proposal it would be next to impossible to make the amount a charge on the land, and the assessment, instead of reaching the original grantee, would, in nearly all cases fall upon the present holders, who had paid enough already for their possessions. He also thought that it would be unequal justice to charge this Province alone with such a tax ; that it should be placed upon the general revenue of the colony, as, from what had fallen from his Excellency the ether day in Council, and what he had stated in a despatch, it was evident that this Province was likely to be charged with a very heavy expense on account of the New Zealand Company. He would suggest

as an equitable measure, 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 ardount awarded to the claimant, or taking advantage of the eighth clause, give up his claim to the Crown, and receive compensation in land exchanged for the value of his claim thus given up. The Crown would thus take bis land and satisfy 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 connected with the adoption of this plan. The matter might be easily arranged with the original grantee if still in possession, but when they •came to deal with three or four transfer purchasers who had bought the claim among them and whose bounds were not defined difficulties would present themselves ; these he thought might be got over by enacting that the same privilege should be extended to all cases where the parties beneficially interested assented to the arrangement, and in the few cases of this kind, arbitrators might be called in by the parties and have power to decide the bounds of their several claims. He now came to the eighth clause to which he had referred, and in which provision was made for the exchange of land ; but according to the following clause it appeared that the 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 sale 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 appraisers, 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 as too high. Whatever principle was to be acted upon for the Crown in cases where exchange was necessary, let the sair.e be applied on both sides. These w,ere the principal points in the ordinance to which he wished to direct attention. In the principle of the bill he entirely concurred ; the only fault he found was that it did not extend still further and take in the whole colony, and settle the law whereby real property was held within it, not only with regard to such as had been granted by the Crown, but to extend itself to other grants also. Mr. Barstow said he would have been much better pleased had the latter part of the first, and the whole of the second and third clauses been omitted, and the bill laid upon the table been a simple guarantee from tbe Government that no more suits of scire facias should be issued, that no appeals should be prosecuted, and that the Crown should recognise all its grants as against itself. He agreed with the last speaker, that the measure was incomplete as regards its extent, and would only feel satisfied when the title of it was altered so as to include not one Province only, but New Zealand as a whole. So much for the title of the bill. To the preamble he would assent ; but to the latter part of the first clause, as well as to the second and third clauses, he had objections. Out of the 1870 grants that the learned mover had informed the Council were made by the Crown, 370 only were made in consequence of awards of the land glaims commissioners : 880 were for exchange grants, to which no native claim would likely be preferred, as the whole of such lands were once in the possession of the Crown. As regarded the first class of 370 grantees, he thought that it would be a matter of curiosity to 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 instances still in possession of them, many having either left the colony in disgust or in debt, others had died in poverty, or alienated for a trifling consideration land, the purchasing and endeavouring to obtain undisputed possession of which had drained away their means, and wasted the best years of their lives. He thought the wisest plan would be to allow the grantees to arrange as they best could with the native claims, for he felt assured that far less difficulty would arise by allowing the matter to take its own time and course, than thus to advertize for claims, many of which otherwise would never be preferred. He thought it by no means just that the payment of such demands as might arise should be made out of the general revenues of the province : considering the paucity of the class for which the majority would have to pay in order to keep them in peaceable possession, tbe circumstances under which the grants were given and in some cases, the manner in which the lands came into tbe hands of the present proprietors, such a plan was neither just nor expedient. He should have recommended, had 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 his property, and the necessity of having to pay the claim hereafter, would gradually cause the breaking up and bringing into the market of large blocks of land now held unprofiiably and to the detriment of the colony. As regards the several provinces, in whatever province an adverse claim arose against a grantee, he was of opinion, that there it should be settled and the charge of it borne. He thought that for the honour of the British Crown, it behoved the Government to make good all grants that had been made by its representative in the name of the Crown ; upon that principle the measure was no boon, but justice that was hardly entitled to the name after having been so long delayed. Major Matson believed that much of the agricultural prosperity of the district depended upon an entire and speedy settlement of the question. He had an opportunity of knowing a good deal about those claims while | he was engaged in investigating them, and he felt compelled to say that the claimants looked for nothing more than justice and lair play in the settlement of them. If such were the grounds ou which the claimants themselves wished for a final adjustment of their claims, he was sure that the Government should be actuated by the same principles, and if such was to be the guiding rule, the whole of them might easily and satisfactorily be set at rest by arbitration. He objected to that part of the bill which proposed to saddle the colony with charges to satisfy native claimants, and thought those who derived the advantage should bear the expenses if any such arose. The gallant member concluded by hoping that the land question, in all its branches would soon be finally and satisfactorily set at rest. The Surveyor-General supported the principle of the measuVe and thought that many of the matters alluded to by the honorable membeis might better be attended to in the future stages of the measure ; as the Council were likely to agree to the principle, the details, and some of them were important, could be carefully adjusted in committee. The Governor said, that perhaps he ought, at the present stage of the proceedings, to notice some of the remarks made by the honorable 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 discussion of the important measure under consideration. He was struck with a suggestion of the learned member who had first addressed the Council ; it was one that appeared 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 been touched upon by the several speakers, and which he must say, if introduced into the measure, would compel him to withhold his assent from it altogether. It had been contended that the operation of the hill 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 is thought, does not impose taxation. Bat the fact was, that this Ordinance not only imposes a tax, but was calculated seriously to embarrass the land fund, for it gives persons the right to select out of districts of the colony, and so locks up for a considerable time large tracts of country, rendering them unavailable for the purposes of the land fund of the Province. Now to extend 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 settlers of that part of New Zealand ; and besides, it would be unjust towards the New Zealand Company, in which the whole Province is now vested by a solemn Act of Parliament. However, justice would compel him to introduce such a principle into the bill, until the minds of the people at the South were consulted 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 which it would now be applied so generally it is not applicable. He maintained that justice forbids it ; that the guarantee given by the Crown to the Natives of these islands, which was equivalent to a grant, forbids it; and he would ask the Council whether they would say that grants that were issued to land belonging to the native tribes without giving those natives an opportunity 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 instance out of others that appeared on the returns that were before them. He referred to a case in which 1(500 acres had been

granted. The Commissioner appointed a day on which to hear the claim, but the claimants 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 B r itish Crown must be held inviolable as regards the native rights, and, whatever i 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 question occurs, to whom should the matter be submitted for decision ? If to a jury, doubts might be entertained of an unbiassed conclusion being arrived at — for the press, as well as public opinion, had hitherto been nearly universally in favour of the claimants ; all things considered, it was thought the best plan that could be devised was to refer the ca<-es of demand to a Judge of the Supreme Court, who would decide in equity upon them, and whose decision would be the most likely to prove satisfactory to all concerned. In reverting to the suggestion of Mr. Merriman he might say that he felt obliged to him for it, and he should give it his consideration ; he believed, however, that the charges that might arise in satisfying claimants would ultimately fall upon the land fund — and perhaps he might state that he had had recourse to that fund, in some 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 the land fund being unavailable. He might now address himself to the objection raised against land being given 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 lands should be sold at an upset price, either by auction, or, after having been once put up to auction, submitted to private sale. Surely that Council could not alter the Acts of the Imperial Parliament. In offering this system of exchange there was no discretion left to the Government but to adopt the plan proposed ; bnt he thought it was policy 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 included in this measure, he might say that the decision of the courts of the country must be taken as the cardinal rule on the matter. The Court has decided on both classes of claims, and let the Council now deal conclusively upon that decision. It had been said that another class should be settled. His answer to that was that they had already been settled by an Act of Council. If that Act was not sufficient to finally settle the question of claims 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 rest by an Act of Council, it was wrong to show a desire to throw doubts upon such measures, as such proceedings might have a very bad effect upon the country. 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 and sealed ? The Governor — Oh, merely signed and sealed with the seal of the colony, and ready to be issued. The Attorney-General said that, as only the principle of the bill was then properly under consideration of the Council, and as the Council, without a dissenting voice, were in favour of it, it was hardly necessary for bim to say anything by way of reply, — more particularly as the Governor had already and, as he (the Attorney- General) thought conclusively answered the objections that had been raised on matters of detail. The bill, as it stood, proposed to deal only with grants of land in the Province of New Ulster ; — so far as that Province was concerned, the Government had come before the Council, and had made out a case shewing the necessity for legislative interference. They had shewn the great number of grants which had been issued within the Province — the existence of doubts as to the validity of a large number of them — and the grounds on which those doubts were entertained. Before the Council could be expected to entertain the proposition of the learned member to include within the provision of the bill the deeds of grant which had been issued in the Southern Province some reasonable grounds for questioning their validity should be stated. 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 pains to ascertain

the views of those whose judgment on the subject was most entitled to consideration — was as to the source from which any compensation that might be awarded was to be paid. There were many ways in which the subject might be dealt with. The grants might be declared to be valid not only againstjthe Crown, but also against all others — 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 decided upon by the Government as, upon the whole, the best course to take. Another course would be, to declare the grants to be valid only as against the Crown, and then the compensation clause would be unnecessary. The suggestion of the learned member, he thought, could not be carried out without difficulty, and would be too complicated ; and he thought it would scarcely be pressed. But a course 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 met, and of course he had not been able to give it any consideration ; but at the first blush it appeared to him to be — if not the best — at least the second best mode of dealing with the subject. It was, that all the grants which conveyed land which ha 1 been actually surveyed should be declared to be valid, both as against the Crown, and against all other persons whatsoever, — but the grants 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 bad stated to the Council be adopted, no provision would require to be made for compensation — because, as a general rule, when land had been allowed to be surveyed and taken visible possession of, it might be safely .assumed that a valid 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 to the sale. The objection which had been raised to the 9th clause of the bill, providing that the value of the land be given in exchange by the Government should be determined by the upset price at which it might last have been offered for sale by public auction, could not be maintained ; for* he must remind the Council that the whole transaction was merely made optional with the grantee, and intended for his relief and benefit in case he should find that the land for which he 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 grantee the option of taking land in the neighbourhood of the settlement, at a value for which it was open to the rest 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, vi 2., to remove doubts as to the validity of all Crown grants which had actually been made up to the present daw : it did not purport in any way to deal with claims to land. To mix up that subject with the measure then before them would be to impart into the Bill what was entirely foreign to the object of it. All that could be done with reference to the subject had been done — because the grants (80 in number) which had been issued to persons in whose favour the Crown's right of pre-emption had been waived, were, in common with other grants, declared to be good and effectual, and all doubt as to their validity entirely removed. He might take that opportunity of stating to the Council that, with a view to make the Bill as complete as possible, a copy of it had been sent to the members of the legal profession, accompanied by a " Circular" letter, requesting them to give to the Council the benefit of any legal or technical suggestions which might occur to them calculated to give effect to its objects and to secure its efficiency. It was satisfactory for him to state, that so far as the opinion of the profession could be ascertained, they were unanimous in giving an unqualified assent to the principle of the Bill. Upon another point also an unanimous opinion had been expressed, viz. in favour of omitting the last clause, and of bringing the Bill into immediate operation. The Attorney- General then gave a general statement of several amendments which he would be prepared to propose in Committee. The Bill was then read a second time . (To be continued.)