The Pamphlet Collection of Sir Robert Stout: Volume 30
Chapter I. Early History of the Victorian Land System
Chapter I. Early History of the Victorian Land System.
The history of the tenure of land in the Colony of Victoria has passed through four distinct and successive stages; each of which is rendered remarkable by peculiar features, the result of the period of national growth to which it belongs. The first stage of this process of the development of oar land laws and customs was that which preceded government control in Australia; when land was selected and taken possession of by the first comer on the old principle of Roman Law, quod nullius est occupanti conceditur, which, according to some political philosophers, marks the origin of what is now known as absolute private property in land. The second period was that in which the rudely and crudely organised administration representing the British Government in Australia interfered with and prevented the unlicensed occupation of waste lands, and proceeded to impose upon the occupants payment of a nominal rent, reserved upon a yearly license. The third epoch marked the transition from executive to legislative regulation, and the inauguration of an administrative scheme constructed by the Imperial Parliament, and promulgated in the Act 5 and 6 Victoria, chapter 36, for the guidance of the local Government. Finally the Imperial Parliament gave to the Australian Colonies local self-government, and the control of waste lands of the Crown a.
a See House of Commons Papers, 12th June, 1846
b See speech of Mr. A. Michle, Victorian June, Hansard, old series, vol. 1, p. 155.
From these facts it appears that the practice of squatting was of an earlier date than any executive regulation or legislative enactment. It was the spontaneous growth of private adventure, and became recognised as a part of the pastoral system c. In 1835 the expediency of this unauthorised occupation of waste lands was first questioned. It then began to be feared that if the squatters were allowed to remain in possession, they would hereafter contend—as they really did d—that this permissive occupancy was a recognition of their rights to demand titles of absolute proprietorship. Then the local executive imposed a nominal rent upon occupation, which was subsequently commuted into a nominal fee, payable annually, for an occupation license. This license fee was not intended to be a payment of rent for the use of the land, but merely "as a certificate of the character, and a recognition of the precarious nature of the title of the occupant "e.
a See House of Commons Papers 1st May, 1845, p. 4
b New South Wales Gazette, 22nd May, 1839.
c Report of Crown Land Commissioners, Victoria, 1854-5.
d Victorian Hansard, vol. 1, p. 1216, Mr. McCombie's speech.
e See House of Commons Papers 12th June, 1846, p. 15.
The squatters regarded the Land Commissioners as intolerable despots, and agitated for fixity of tenure and pre-emption, as a security for permanent improvements. Headed by Mr. Benjamin Boyd (who held 1300 square miles of country), they applied for concession of the rights and privileges they claimed from the Home Government. "They managed their business nicely in Downing-street," said an orator, who once took an active part in land reform legislation in Victoria, "and in 1847, on the shortest possible notice, came these famous Orders in Council, and then the squatter assumed a vastly different bearing. The humility was gone, and he strutted in a surprising manner. The colonists were astonished at the new state of things. They found that the squatters had got more than they asked for, and, having got it, they kept it" a. It will be necessary, in order to throw light on the merits of the subsequent struggles, to present the main provisions of the Statute and the Order of the Queen in Council.
The first section of the Act gave Her Majesty in Council power to demise for any term of years, not exceeding fourteen, to any person, any waste lands of the Crown in the colonies of New South Wales, South Australia, and Western Australia, or to grant to any person a license for the occupation for any term of years, not exceeding fourteen, of any such waste lands, and to reserve upon such demise or license any such rent or service, and to insert therein certain conditions and clauses of forfeiture. Section 7 authorised Her Majesty to make rules and regulations for the purposes of the Act, to have the force and effect of law in the colonies.
a Speech of A. Michie, on Captain Clarke's Land Resolution. Victorian Hansard, Vol. 1, p. 155.
Sect. 9.—"That nothing in these regulations or in any lease to be granted shall prevent the Governor from making grants or sales of any lands within the limits of the run or lands comprised in such lease, for public purposes, or disposing of in such other manner as for the public interest may seem best, such lands as may be required for the sites of churches, schools or parsonages, or for the construction of the high roads or railways and railway stations, or other internal communications, whether by land or water, or for the use or benefit of the aboriginal inhabitants of the country, or for public buildings, or as places for the interment of the dead, or places for the recreation and amusement of the inhabitants of any town or village, or as the sites of public quays, or landing places on the sea coast or shores of navigable streams, or for the purpose of sinking shafts and digging for coals, iron, copper, lead, or other minerals, and effectually working coal, or iron, or copper, lead or other minerals, or for any other purpose of public defence, safety, utility, convenience or enjoyment or for otherwise facilitating the improvement and settlement of the colony; but so that the quantity of land which may be granted or sold to any railway company shall not exceed in all the rate of one hundred acres for every mile thereof in length."
Sect. 10.—"That if at any future period a railroad be made through or near to the districts comprising unsettled lands, all lands within the distance of two miles from that railroad shall, notwithstanding any lease of the run within which such lands shall be situated, be liable to be sold at the end of each successive year from the date of the said lease: Provided that at least sixty days' previous notice shall have been given to the lessee, and so that page 8 such lessee shall be entitled to all the same conditions, reserving to the previous lessee the right of pre-emption and the value of improvements as are hereinafter mentioned, with reference to the case of a sale at the expiration of the full term of such lease."
"First—The previous lessee shall have the option of purchasing the land for its fair value in an unimproved state, which shall never be estimated at less than £1 per acre.
"Second—If declined by the previous lessee, the value of any improvement on the land offered for sale shall be ascertained by valuers appointed under the provisions contained in section three of the second chapter of this Order in Council: Provided, nevertheless, that the sum so to be estimated and allowed for is in no case to exceed the amount of the actual outlay made by the lessee.
"Third—The upset price shall then consist of the joint value of the land and the improvements, and, if the land be sold, the amount of the improvements shall be paid over to the previous page 9 lessee, and only the balance he retained by the Government."
In the intermediate districts the Governor was authorised to grant leases not exceeding eight years in duration. In the settled districts the Governor could grant leases of land exclusively for pastoral purposes, not exceeding one year in duration. He was empowered to make rules under which owners of purchased lands within the settled districts could be permitted to depasture on adjacent Crown lands free of charge. This was the beginning of the principle of free commonage, very strongly advocated by liberal land reformers when it was proposed to leave it out of the Victorian Land Bill.
Although the Orders in Council arrived in the colony in 1847, they could not be enforced for several years afterwards. The claimants under the 11th section promptly sent in their applications for leases, but after the lapse of a considerable time they were exasperated to find that there was no immediate prospect of their getting their leases before the year 1851. The explanation of this delay, which was a fortunate circumstance for Victoria, was very simple. There were practical and physical difficulties opposed to the issue of the leases. A proclamation, issued 7th October, 1847, stated that it would be impossible to issue leases on demand. The districts had to be grouped into settled, intermediate and unsettled districts. Boundaries of districts and runs had to be surveyed, and surveys were expensive and difficult. Before these matters were settled, an event occurred in Victoria—in the meantime separated from New South Wales—which changed the destinies of the country, and gave an entirely new aspect to the land problem. Gold was discovered, and an eager population began to pour to these shores from all parts of the world. The squatting party in Melbourne became alarmed, and moved the Nominee Council to present an address to the Lieutenant-Governor (Mr. Latrobe) on the subject, which was clone on 20th August, 1852. In reply, His Excellency stated that no leases could be issued for the present, fend, under the circumstances, he expressed his intention to refer the whole question to the Home Government, and declined to pledge the faith of the local Administration. This was undoubtedly a most prudent policy, for which the Lieutenant-Governor deserves every commendation. Unfortunately, however, his determination not to issue leases to the pastoral tenants was coupled with another, which proved disastrous to the infant colony—that was to suspend the sale of town lands. This caused landed property already purchased to rise to an enormous value. Old holders sold out at big prices. Then began the cry: "Unlock the lands." The sale of town lands was resumed, and next came a collapse. Those who had bought alienated land at high premium were ruined, and demanded the recall of the Lieutenant-Governor. It page 10 was alleged that his policy was to favor the old land-owners of Melbourne. His friends, on the other hand, asserted that he had prevented the squatters from grasping the public land.
Meanwhile the squatters continued their agitation. On 2nd September, 1852, a meeting of licensed occupants of Crown lands was held at the Prince of Wales Hotel. The report of the proceedings, which appeared in the squatting organs of the day, described it as a large and influential meeting. J. Cane Riddell, Esq., occupied the chair. It was proposed by Mr. John Goodman, J.P., seconded by Mr. Alexander Cunningham, J.P., and carried unanimously—" That the pastoral tenants of the Crown having been assured of the possession of leases for eight or fourteen years respectively, in the settled, intermediate and unsettled districts, by Her Majesty's Orders in Council, dated 8th May, 1847, provided in an Act of the Imperial Parliament, have a just claim to have those orders, which came into operation on 7th October, 1847, carried out according to their spirit and real intention, as more fully explained in Lord Grey's despatches of 20th November, 1846, and 20th March, 1847." It was then proposed by Mr. W. Campbell, M.L.C., and seconded by Mr. W. F. Splatt, M.L.C., and carried—"That claims to leases, with the privilege of purchasing at a valuation, became marketable through the sanction of the Government, by the proclamation of 1st January, 1848, and that a very large proportion of the present holders have purchased their claims at a higher value, so that property to a large extent has changed hands, under such pledges of public faith, and in the fullest confidence that the law affecting so great an interest, would be held sacred by the British Parliament." The third resolution was proposed by Mr. Wm. Forelonge, and seconded by Mr. A. Campbell, and carried—"That the demand for land is fully provided for by many millions of acres within the settled and intermediate districts, which, under the Orders in Council, may be made available for agricultural purposes." Mr. Colin Campbell moved, and Mr. Horace Wills seconded—"That the squatters of this colony, while they admit that the agricultural wants of the community should be amply provided for, are also of opinion that the maintenance of the pastoral interest is of still greater importance, as they supply a large extent of wool required at home for manufacturing purposes, and at the same time provide a sufficient supply of animal food, which cannot be imported for the use of a rapidly increasing population, and that a system of long leases for pastoral purposes is calculated greatly to develope the resources of the colony, by justifying the expenditure of capital on valuable improvements" a.
a Campbell's Crown Lands of Australia, No. 51, p. 135.
On 29th November, 1846, Earl Grey sent a despatch to the Governor of New South Wales, containing a draft of certain Orders in Council, which it was proposed to pass under the Imperial Act. This despatch contained the following expression:—"Land in the unsettled districts, according to these regulations, would be put absolutely out of the power of the Crown, and be rendered unavailable for settlement for the long period of 14 years." On the strength of this despatch it was contended that it was the intention of the Imperial Government that the maximum terms of 14 years' leases in unsettled districts, and 8 years' leases in intermediate districts, should in every case be granted. It was, however, overlooked by the advocates of this doctrine that the words of the draft orders, "for term of 14 years duration" in unsettled districts, were not incorporated in the Orders in Council, as finally passed on the 9th March, 1847, which state that leases might be granted for terms not exceeding 14 years in unsettled districts, and not exceeding 8 years in intermediate districts. Besides Lord Grey's own construction of the order was clearly and unmistakably given in a despatch to the Governor (Sir Charles Fitzroy), dated 6th August, 1849, in which this passage occurs:—"But inasmuch as the order of 9th March leaves the term of years to be granted entirely at your discretion, you will be able and justly entitled to refuse to such persons any lease for more than a year, unless they are willing to accede to the insertion of such conditions as you may require." A report of a Select Committee of the Legislative Council of N.S.W., dated September, 1847, stated:—"That the period of the lease both in the unsettled and intermediate lands appears to be left entirely to the discretion of the Governor." The Crown Law Officers of New South Wales gave a similar opinion. The Crown Lands Commission of Victoria, 1854-5, supported the same view.
We now come to the result of Governor Latrobe's reference to the Home Government of the legal definition of the squatters' rights. In a despatch to the Lieutenant-Governor, the Duke of Newcastle, the then Secretary of State for the Colonies, stated:—" That Her Majesty's Government were perfectly satisfied with the reasons adduced why the portion of the Orders in Council, which declares that actual leases shall be granted on demand, has hitherto remained a dead letter, and most probably will remain so, unless some equitable adjustment intervenes. They are satisfied that the circumstances of the colony have rendered the surveys, which page 12 are considered essential perliminaries, to the execution of the leases impracticable, and that such extensive surveys will long be impracticable. This is an obstacle which no one fully appreciated before hand, and for which no one is justly responsible. But the occupants have, in addition, no grounds to complain of this delay, because the burden, in fact, lay on them, and not on the local Government, to furnish such descriptions of their runs as might render it possible to grant a lease, and the assistance of survey was a benefit offered them by the local Government, and no part of their rights, and still more because, in the absence of leases, they seem to have engaged up to this time the full practical benefit of leases."
In the course of the same despatch the Duke of Newcastle explained the position which, in the opinion of the Home Government, the squatters occupied. It was intended to give them adequate use of the land, and adequate protection against disturbance in it; but not any advantages over any other member of the community in becoming purchasers of it, except to the very limited extent required for their actual accommodation; still less was it intended that they should become speculators in land purchasing, on terms peculiar to themselves, in order to sell again in the general market, and least of all was it intended that their pastoral occupation should stand in the way of the development of general population and industry. "If," said the Duke, "the occupants insist in the extreme view of their right as controlling the obvious meaning of the concessions made to them, it becomes incumbent on the Government to protect the public, by insisting on the rigorous interpretation of the Orders in Council when its provisions seem to clash with the public interests. They are entitled to the exclusive right to purchase when the Government thinks fit to sell them land during the currency of their lease."
"It will now, we believe, be admitted that the system constructed by the Waste Lands Occupation Act and the Orders in Council does not satisfy the conditions of this question, or effect a proper balance of the various interests involved. A strict adherence to the provisions of the existing law, while it might not prove beneficial to the occupants themselves, would be most embarrassing to the community at large. At the same time, those strict rights, of whatever extent, as well as those claims to general consideration which the pastoral class confessedly possesses, must be recognised and respected. This object will, we submit, be best attained by that commutation of the present tenure of the squatters which we are about to recommend. Sound policy, in truth, dictates an entire and radical re-adjustment, upon the basis of compromise, of a question surrounded by so much complexity of interest, and points, first, to the extinction of all rights and pretensions opposed to the paramount claims of permanent settlement; and, secondly, to the expediency of conceding to the pastoral class—which adds to its indeterminate rights, under the existing law, the claims arising from actual possession and invested capital—such security as the nature of the case may admit, and upon terms of payment which may at once secure some equivalent for the benefit conferred, and may discourage unproductive occupation.
"We therefore recommend:—
"1. That the survey and sale of the Crown lands of the Colony should proceed continuously, with reference to the requirements of all classes of purchasers, and in quantities sufficient to prevent the price from greatly exceeding at any time the present upset price, as prescribed by law. "2. That yearly licenses, renewable from year to year, should be given to the present occupants for pastoral purposes only, which should hold good against any other licensee. "3. That the rent to be paid should be regulated by the grazing capability of each run, subject to a mode of decision to be proposed, and should be at the rate of 6d. for every sheep, 4s. for every head of cattle, and 10s. for every horse which the run should be estimated as capable of carrying. "4. That the above general rate per head of stock should be open to periodical re-adjustment at the expiration of each period of five years from the date of occupation under the proposed system; to be effected by competent authority, and to be applicable in common to all occupants. "5. That a minimum limit, based on extent, should be im- page 14 posed of 1d. per acre. "6. That a legal tribunal, in the nature of a court of appeal from valuation, should be constituted, to which either the Government or the occupant should be at liberty to appeal against the existing estimate of grazing capability. "7. That the proposed regulations should take effect indifferently upon all waste lands of the Crown throughout the colony, the present territorial classification, and the regulations dependent upon it, being abandoned."
It was the Governor's intention to have submitted to the Council a bill containing provisions for the final adjustment of the question during the current session, but, owing to the late period of the session at which the report was received, he was precluded from doing so.
a Votes and proceedings Sydney Council, 1849.
a Victorian Hansard, vol. 1, p. 1214.
b Idem supra.