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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Compensation Court. [John Lewthwaite]

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Compensation Court. [John Lewthwaite]

New Plymouth, June, 1866.

F. D. Fenton, Esq., Chief Judge. Henry A. H. Monro, Esq., Judge.

The application of John Lewthwaite, for compensation for loss of his interest in the Waitara Block, taken under The New Zealand Settlements Act, 1863, by Proclamation dated January 31st, 1865.

The claim of this gentleman is as follows:—

"1.That early in the year 1841 I purchased several sections of land from the Plymouth Company of New Zealand, and amongst them there were four sections of land in the Waitara district, numbered respectively on the surveyor's plan 434, 432, 451, and 360, each containing 50 acres, together with two sections situated in the Mangoraka district, also containing 50 acres each.
"2.That in March of the same year I left England for the purpose of selecting and occupying the said sections of land.
"3.That early in 1842 I selected the said sections and held quiet possession of the same until Captain Fitzroy, as Governor, paid a visit to New Plymouth, ignored the award of Mr. Commissioner Spain, and gave notice to all who held lands in the aforesaid districts that they were trespassers upon the said lands.
"4.That not being able to make use of these lands, I left the colony for England in 1845.
"5.That in 1847 the New Zealand Company awarded compensation to the resident and absentee land owners who had been unable to possess their lands to that date.
"6.That on my return to the colony in 1854 the committee appointed to settle this compensation awarded me resident or preferential scrip to the amount of 75 acres for each allotment.
"7.That I still hold this scrip, never having had an opportunity of exercising it upon available land such as it purported to secure.
"8.That the Land Order or Scrip Act, 1858, purporting to deal equitably with these claims, omits to recognise this preferential scrip, and also to provide for claimants repossessing their original sections where no interference is made with any general scheme of land settlement.
"9.That in addition to the several sections to which I am entitled, I beg also to claim 1,000 acres as compensation for non-possession of my original sections to the present time, as the market value of each Waitara section being in 1842 £300, would now amount to £3,000, and that of each Mangoraka section being then value £200, would now amount to £2,000, or altogether £16,000.page 2
"10.That having waited nearly twenty-five years for these lands, in the expectation of settling my family upon them permanently, I have the confidence to hope that I shall be awarded the full amount of my claim.

"Jno. Lewthwaite."

The circumstances of this case, admitted for the purpose of deciding the legal questions, are as follows:—

In 1841, the claimant purchased from the Plymouth Company of New Zealand, orders for, or contracts for, the purchase of sections of land in the settlement of New Plymouth. In 1842 he made his selections at Waitara and Mangoraka, and held quiet possession of his lots until he was ejected by Governor Fitzroy. Subsequently to this ejectment, the Plymouth Company of New Zealand became amalgamated with the New Zealand Company. In 1847, an Act was passed by the Imperial Parliament (x. and xi. Vict., cap. 112) by which the company was authorised upon the terms and in manner therein mentioned to relinquish their undertaking, and surrender to Her Majesty all their claims and title to land in the Colony; and on notice being given by the company of their intention to exercise the power thus conferred, all such lands were to become demesne lands of the Crown, subject, nevertheless, to any contract which should be then subsisting in regard to any of such lands. On the 4th of May, 1849, an agreement was entered into between the New Zealand Company, through Mr. Fox, their principal agent, and the holders of land orders, which contained the following terms, hereinafter called the terms of compromise:—

"To enable resident purchasers to select the land to be given for the compensation hereinafter mentioned, the company will, after providing for the existing claims of purchasers, offer for the purpose the land already at its disposal in this district, as well as such districts as may hereafter be purchased by the Government on its account in the settlement of New Plymouth, or in immediate connexion therewith.

"That resident purchasers shall be declared entitled to receive, as the maximum of compensation, 75 acres of land for every 50 acres of land purchased; the amount of such compensation in each case to be determined on its individual merits with reference to any circumstances which may distinguish it from any other purchases.

"That such of the resident purchasers as received land in exchange under the arrangement of Governor Fitzroy shall likewise be declared entitled to compensation; but, in assessing the amount thereof, regard shall be had to the amount of land already secured to them under that arrangement, and to any other circumstances which may distinguish these cases from those of the other purchasers.

"That for the purposes of this arrangement it is understood that the term 'resident purchaser' shall apply to all parties holders of land in New Plymouth, derivative as well as original, now actually resident in the Colony of New Zealand.

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"That this arrangement shall extend to land purchasers, original and derivative, formerly resident but now absent from the Colony, whenever such purchasers shall return."

Subsequently the company gave notice that they were ready to surrender their charters to Her Majesty; whereupon, by virtue of the before-mentioned Act, all claim and title to the lands of the company ceased and determined; and all such lands became vested in Her Majesty as demesne lands of the Crown, subject, nevertheless, to any contracts which were then subsisting in regard to any of the said lands.

In 1851, an Ordinance was passed by the New Zealand Legislature called The New Zealand Company's Land Claimants Ordinance, which recited that in certain cases possession had not been given by the company of lands sold or contracted to be sold by them to the purchasers thereof, and the right of selection purporting to be conferred by such scrip as aforesaid in many cases still remained unexercised; and that it was essential that means should be taken for ascertaining what were the contracts of the company then subsisting in regard to the said lands, with a view to their satisfactory adjustment. This Ordinance then made provision for an investigation into, and report upon, such contracts, and ordained that the value of the land affected by any contract should be ascertained in manner therein provided, and it authorised the Governor to issue to any person found to have a rightful claim to any land or right therein scrip for the amount so ascertained, such scrip to be available in the acquisition of land in the manner set forth in the Ordinance.

The Constitution Act then followed, empowering the General Assembly to legislate for the Colony of New Zealand.

In 1854, in pursuance of the terms of compromise, there was awarded to the claimant by Commissioners appointed under the authority of the Ordinance, resident preferential scrip to the amount of 75 acres for each allotment of which he had been deprived.

In 1856, an Act was passed by the General Assembly called The Land Orders and Scrip Act, 1856, by which provision was made for defining and settling the right of holders of land orders and land scrip.

By The Land Orders and Scrip Act, 1858, this Act was repealed, and it was enacted that within the Province of New Plymouth every unexercised original land order issued by the Plymouth Company of New Zealand, or by the New Zealand Company, and conferring, or purporting to confer on the owner or holder thereof the right to select according to a fixed and definite order of choice 50 acres of land within the settlement of New Plymouth should entitle such owner or holder in priority to general purchasers, and according to the aforesaid order of choice, to select out of any land over which the native title then was or thereafter should be extinguished, and which should be declared open for purchase (except the Hua village site), one acre of town land or 37½ acres of suburban land or 75 page 4acres of rural land, at the option of such owner or holder, and subject to certain conditions. And the ninth section prescribes the rate at which original land orders issued by the Plymouth Company or by the New Zealand Company, conferring the right to select land within the settlement of New Plymouth according to priority of application, or otherwise than in a fixed and definite order of choice, should be considered as equivalent in the purchase of waste lands of the Crown; and also the rate at which supplementary land order and compensation or land scrip issued by the New Zealand Company should be taken; and concludes by enacting that all such land orders and land scrip, whether original or supplementary, should not be otherwise available or exercisable for the purchase or selection of waste lands of the Crown.

The land orders and scrip in respect of which Mr. Lewthwaite now seeks compensation have not been exercised to the present time.

Upon these facts the claimant argues that either he is entitled to select land, by virtue of his orders, out of the blocks of land which have come into possession of the Crown under the operation of The New Zealand Settlements Acts; or, if such right does not exist, that he is entitled to compensation under the provisions of such Acts for the deprivation thereof.

The agent for the Crown refers to The Land Orders and Scrip Act, 1858, and argues that whatever the claimant's rights previously were, they have been dealt with and definitively provided for in that Act; and that if he has no rights under that Act which would come under the category of a title, interest or claim to any land taken under the New Zealand Settlements Act, 1863, he has no estate in land for the taking of which the Court can grant him compensation.

Mr. Lewthwaite, in reply, quotes an Act of the Imperial Parliament passed in 1865, entitled An Act to Remove Doubts as to Colonial Laws, which provides as follows:—

"Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."

And he argues:—(1.) That if The Land Orders and Scrip Act or The New Zealand Settlements Act interferes with the rights stated to have been secured to him by the before-mentioned Imperial statute, under the operation of which the land of the company became vested in Her Majesty, subject to the contracts which affected them, these Acts are, pro tanto, void for repugnancy. (2.) And further, that it is not lawful to deprive compulsorily any man of his land except by an Act against the passing of which he page 5may have had an opportunity of being heard by himself, his counsel, agents, and witnesses, i.e. by a Private Act

1.As to the question of repugnancy, we are of opinion that this Court is not competent to entertain it. Holding that opinion we must regard The Land Orders and Scrip Act, 1858, and The New Zealand Settlements Act, as containing the law upon which Mr. Lewthwaite's claim to compensation must be decided.
2.As to the question whether The New Zealand Settlements Act, 1863, was rightly passed as a Public Act, we also think that this Court is not competent to give any opinion. Public Bills and Private Bills, when passed into Acts by the Legislature, are of equal validity, and the force of none of them can be questioned in or by this Court. The Court is, moreover, aware that Acts conferring upon the Government power to take lands compulsorily for purposes of great public importance, are constantly passed by the Imperial Parliament as Public Acts, though the same privilege is not allowed to private individuals or corporations. The Battersea Park Act and numerous Ordnance Fortification Acts, might be cited as instances, if means of reference existed in New Plymouth.

The case will then divide itself into three heads: —

1.What is the exact character of Mr. Lewthwaite's rights under The Land Orders and Scrip Act, 1858?
2.Are these rights destroyed or injured by The New Zealand Settlements Acts?
3.Can compensation be ordered to him by this Court for such destruction or injury?

I. It appears to the Court that the consideration of Mr. Lewthwaite's claim may fitly commence with the terms of compromise entered into with him and numerous other persons similarly situated by the New Zealand Company on the 4th May, 1849.

Mr. Lewthwaite did not avail himself of the means of settlement afforded by this arrangement, and his orders remained still unexercised, when the General Assembly passed The Land Orders and Scrip Act, 1858. It is not clear that this Act does not very much enlarge Mr. Lewthwaite's power of selection as based upon the Imperial Statutes and his previous rights, for it might be argued that his power of selection as previously existing was confined to the lands which became demesne lands of the Crown, when the property of the company passed to Her Majesty, although the terms of compromise did extend his power to "districts that might thereafter be purchased "—from whom not being expressed.

The Act of 1858 clearly deals with this class of claims, on the supposition that lands in the several Provinces would from time to time be acquired by the Crown from the natives, free of all liabilities and incumbrances, which would be open for purchase in the manner provided by the ordinary land laws.

Mr. Lewthwaite is the holder of documents which confer upon him an interest over all the lands at the time of the passing of the page 6Act in the hands of the natives, contingent upon the native title therein being extinguished, and their being thrown open for sale in the usual manner. His documents do not invest him with any right, absolute or contingent, over any specific portion of land. His interest, therefore, is simply a power of selecting land under certain conditions from time to time as he shall think fit, and extends over the class of land described in the Act throughout the whole Province; but is not an interest in any particular piece of land, and cannot become such an interest until he has exercised his power, which he cannot do until the contingencies above-noticed have happened; and although one contingency has happened in a manner not contemplated, viz., the extinction of the native title, the other contingency has not happened, viz., the lands being declared open for purchase.

II. Are these rights destroyed or injured by The New Zealand Settlements Acts?

The New Zealand Settlements Act, 1863, provides that after the Governor in Council shall have constituted any portion of the Colony a District under the Act, and shall have reserved and taken any land within such District for the purposes of settlement, and shall have declared that such land is required for the purposes of the Act, and is subject to the provisions thereof, such land shall be deemed to be Crown land, freed and discharged from all title, interest, or claim of any person whomsoever.

The rights, therefore, which this claimant previously held under The Land Orders and Scrip Act, 1858, were perfectly and absolutely extinguished by this provision, so far as concerns the land included in the several Orders in Council, and whatever rights, if any, he now holds over such lands must be derived afresh from The New Zealand Settlements Act, 1863, or the Act of 1865 continuing and amending it. Do any such rights exist, or can they be conferred under either of these Acts?

It will be necessary to ascertain what directions the Acts give for the appropriation of the lands taken. After the taken lands shall have been cleared from all incumbrances created by the rights which loyal owners may. have under sections 9 and 10 of the Amendment Act of 1865, the 16th section of the Act of 1863, and the 17th section of the Act of 1865, empower and direct the Governor to set apart towns, farms, and land for persons subject to certain conditions of military or police service, and after the performance of such conditions to make grants of their several allotments to the persons settled thereupon. The 17th section empowers the Governor in Council, after setting apart land for the above-mentioned military or police services, to cause towns to be surveyed and laid out, and also suburban and rural allotments; and the 18th section then provides that such town, suburban and rural lands, shall be let, sold, or occupied, and disposed of for such prices, in such manner, and for such purposes, upon such terms, and subject to such regulations as the Governor in Council should from time to time prescribe for that purpose; and the 19th section page 7provides that the money to arise from such sales and disposal should be disposed of as the General Assembly might direct, in or towards the repayment of the expenses of suppressing the insurrection, and the formation and colonisation of settlements, including the payment of any compensation which might be payable under the Act.

It appears, therefore, that it was the intention of the Legislature, at the time of the passing of The New Zealand Settlements Act, 1863, that part of the money to arise from the sale or disposal of confiscated lands (using the term "confiscated " in its vulgar sense) should be devoted to the liquidation of the orders of this Court made in favour of persons entitled to compensation in money, and possibly it might have been competent for the Governor in Council in exercise of the power conferred by the 18th section to have made regulations which would have enabled Mr. Lewthwaite to have exercised his land orders upon terms which might have been prescribed in the regulations. However this may be, the regulations which were made in 1865 in exercise of this power contained no provision rendering these land orders available.

The New Zealand Settlements Act Amendment Act, 1865,, repealed the above-quoted 17th, 18th, and 19th clauses of the Act of 1863, and the provision made in lieu of the 17th and 18th sections is contained in the 16th clause of the Amendment Act, and is as follows:—

"The order and manner in which land shall be laid out for sale and sold under the provisions of the said Act shall be in the discretion of the Governor, who shall have power to cause such land or any part thereof to be laid out for sale, and sold from time to time in such manner, for such consideration, and in such allotments, whether town, suburban, or rural, or otherwise, as he shall think fit, and subject to such regulations as he shall, with the advice of his Executive Council from time to time prescribe in that behalf. Provided that no land shall be sold except for cash, nor at a less rate than ten shillings per acre."

We apprehend that the proviso to this clause would now prevent the Governor from making any regulations with reference to the disposal of surplus lands acquired under the Act of 1863, which would let in the exercise of these land orders; but whether such regulations could be made or not is a question of no moment, as it has not been made to appear to the Court that regulations of any sort have been made under this Act. It is, therefore, in the judgment of the Court, quite clear that there exists no provision which Mr. Lewthwaite can avail himself of for the exercise of his orders over any land within the confiscated blocks, and that, therefore, his rights — which were established by The Land Orders and Scrip Act, 1858—are entirely extinguished, and that the fair intention of that Act is completely defeated by the Acts of 1863 and 1865, so far as these blocks are concerned.

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III. We come now to the question, Can compensation be ordered by this Court for such destruction of his rights?

The Act of 1863, section 5, enacts that compensation shall be granted to all persons who have any title, interest, or claim, to any land taken under the Act; and section 7 provides that such compensation shall be granted according to the nature of the title, interest, or claim of the person requiring compensation, and according to the value thereof. The Amendment Act of 1865 is more particular, and enacts that every claim for compensation under the Act of 1863 shall specify the name of the claimant, the interest in respect whereof the claim is made, and as nearly as may be the extent and particulars of land affected thereby, and the amount claimed as compensation; and further provides, in section 12, that every order of the Court shall be made in writing, and shall specify and be accompanied with such plans and particulars as shall be prescribed by regulations to be made by the Governor in Council.

There can, therefore, be no doubt whatever that the Legislature contemplated only the compensation of persons having titles, estates, or claims in land capable of specification and description, and of which plans might be made. Now, as we have already determined that Mr. Lewthwaite's claim does not refer to, and cannot be made to refer to, any specific piece of land, but is simply a power extending over a certain class of land in the whole Province, exercisable on the happening of certain contingencies, we are forced to the conclusion that he does not come within that class of persons to whom the Court is empowered to order compensation. If the whole of the land in the Province of Taranaki, held under the native title, had been taken by the Governor in exercise of the powers conferred upon him by The Settlements Acts, it is very possible that, as all the land over which the claimant's unexercised power extends, would then have been devoted by the Government to purposes which absolutely and for ever excluded the possibility of exercising his land orders, we should have considered ourselves authorised to recognise him as a person legitimately entitled to compensation. But this has not been done. It is true that all the choice lands of the province over which his power ran have been taken, and the rights which remain to him are of little value, extending for the most part over lands which have not yet been trodden by the foot of man: but the legal difficulty still remains, and the Court is reluctantly compelled to the conclusion that although Mr. Lewthwaite has strong equitable claims, he has no legal right, title, or interest, to any land which can be recognised by the Court, and that it has no power to afford him any relief. That Mr. Lewthwaite has suffered a wrong, and has been suffering a wrong, for nearly a quarter of a century, seems unquestionable: but he must resort to the justice of the legislature for a remedy.