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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

Copy of a Despatch from Governor Geey to the Right Hon. Earl Grey

Copy of a Despatch from Governor Geey to the Right Hon. Earl Grey.

Report of Proceedings for Settlement of Claims under the Fitzroy Proclamation. Government House, Auckland, 4th December, 1847.

My Lord,—

I had the honour, upon the 1st instant, of receiving your Lordship's Despatch No. 76a, of the 25th June last, from which I learned that the intelligence which had reached England upon the subject of the land claims, since the date of your Lordship's Despatch No. 41, of the 10th February last, had not led your Lordship to make any alterations in the instructions contained in that despatch. I am thus able to consider the instructions your Lordship intends to issue upon these subjects as conclusively settled, and no change is therefore requisite in the line of proceeding I immediately adopted upon the receipt of your Lordship's despatch of the 10th February. Under these circumstances, it will now be proper for me to report in detail what these proceedings were, and in how far they have, up to this time, effected a settlement of claims under the ten-shillings-an-acre and the penny-an-acre Proclamations.

I shall probably best acquaint your Lordship with the nature of the proceedings I adopted upon the receipt of your Despatch No. 41, of the 10th February last, by enclosing for your perusal the opinion of the Attorney-General on the course which, in conformity with the terms of that despatch, would have to be pursued for the adjustment of the land claims; and a copy of the minute, which I read in the Legislative Council, explanatory of the arrangements I proposed to adopt, and of the arguments upon which I justified that arrangement, and then by adding the following explanatory remarks:—

In your Lordship's despatch of the 10th February I found that a point peculiarly relied upon, and the force of which was evident, was that to whatever extent the faith of the Crown had been pledged to the purchasers under my predecessor's Proclamations it must be maintained inviolate. I conceived, therefore, that this was to be the rule of proceeding which was, in as far as practicable, to regulate my conduct.

I was at once, however, met by serious difficulties. In the first place I thought it clear that this rule ought in strictness to be interpreted solely with reference to the rights of the Crown, and that, as the Crown upon the issue of my predecessor's Proclamations was pledged to respect the rights of all the Queen's subjects, it could not bo regarded as being pledged, by the act of any executive officer, to perform acts in favour of some individuals which would be in direct violation of the rights of others of Her Majesty's subjects of both races. Upon the other hand, I felt it to be my duty to aid, as much as lay in my power, those of Her Majesty's subjects who had in any degree been led by the acts of the Executive Government to become involved in purchases and speculations in land; but yet only to carry this aid to such an extent as would not irretrievably injure or destroy the future prospects of the colony.

Another difficulty presented itself of a serious kind, which was that, under the terms of your Lordship's despatch as read by the Attorney-General, each claim would require a long and minute investigation, which might by the claimant be lengthened out for many months, perhaps even for years; and, in the meantime, as the whole of the land in the vicinity of Auckland was claimed by purchasers, or pretended purchasers, the progress of the colony would have been greatly retarded, and a continued expense for military protection would have beeu entailed upon Great Britain. It appeared, therefore, desirable that any arrangement I made should embrace, as a leading principle, the immediate and final adjustment of these claims.

Another difficulty which I foresaw would arise from my giving effect strictly to the terms of your Lordship's despatch was that, from the nature of the grants I was required to issue, landed property in the vicinity of Auckland would be held under tenure of two different kinds, which appeared, for many reasons, objectionable. Secondly, the Crown would, in the instance of these confirmatory page 19grants, have virtually recognized that there was some efficacy in a title derived by direct purchase from the Natives, and I feared that the recognition of so unusual a principle might ultimately give rise to serious inconveniences, and to most embarrassing questions in our Courts, and establish a precedent which I was anxious, if possible, to see avoided.

Another very serious difficulty in the way of the settlement of these land claims was that the Crown's right of pre-emption was waived over a country which had never been surveyed, and the Survey or-General was not, I believe in any instance, consulted whether or not the land was required for roads, public purposes, or the sites of towns. The public convenience and the future welfare of the colony therefore appeared imperatively to require that, the Surveyor- General should examine the country, lay out and reserve lines of roads, as well as lands required for public purposes or the sites of towns, before a grant of any description should be issued.

I felt, therefore, upon a full consideration of all these circumstances, that, under the terms of your Lordship's instructions I should be justified in varying from the direct terms of your despatch of the 10th February, if I could devise an arrangement which would secure- (1) To the colony at large the advantage of the land required for roads, public purposes, or sites of towns; (2) to the claimants such consideration as would secure to them such claims upon the good faith of the Crown as they might be able validly to urge, without any violent or absolutely unjust violation of the rights of the rest of Her Majesty's subjects; (3) an immediate and final adjustment of these claims upon a basis which would not inflict a lasting injury to the colony; (4) a title to the claimants of the ordinary kind, and so complete a survey that no future litigation could arise regarding boundaries between adverse claimants, either Native or European; (5) that the public should be put to no expense in the adjustment of these claims.

I trust that your Lordship may find that the terms of the arrangements which I proposed for the adoption of the claimants, and which are detailed in my minute, in a great degree attained all these objects.

I now proceed to report upon the progress which has been made in carrying out the arrangements I have made.

About sixty of these land claims have already been disposed of—in fact, all those of the most pressing kind in the immediate vicinity of Auckland. Roads have been laid out in all the districts where the claims have been examined, and these roads have been reserved, as well as all places required for public purposes or for town sites, as also the excess found in the claim over the quantity of land named in the pre-emption certificate, and the tenths in the case of all claims exceeding 200 acres. In every instance the claim has been carefully surveyed, and laid down in its true position and in all cases of disputed boundaries the Commissioner has adjusted these disputes by arbitration. Finally, the claimants have received a Crown title of the usual kind, so that every precaution has been taken to prevent future litigation. Generally the Government have found the claimants glad to accept the terms offered; and some of them, in order to obtain them, have abandoned claims to very large tracts of land.

Although by the arrangements proposed no claimant obtains a greater extent than 500 acres of land, I cannot deny that much injury has been inflicted upon the colony by these grants of land having been given to people who in many instances cannot and in other instances never intend to use them, as also by the public having lost a large extent of land, which those who have obtained it could now sell from £7 to £10 an acre, whilst the means of emigration and making roads have been lost to the colony yet, after bestowing every care and attention upon the subject. I was unable to devise a better arrangement than I concluded, and, having once made this arrangement, I thought it right to dismiss wholly from my mind all remembrance of the mode in which these claims had originated, and of their unjust nature, and to do my utmost to modify the evils they had entailed upon the colony, by employing the Natives to make roads through the country given to the claimants, thus putting the colony in the state it would have been in had the land been sold in the usual manner; whilst the arrangements your Lordship has made for sending out pensioners will, in a great measure, compensate for the loss of the emigration fund. I hope, therefore, that, these causes will greatly modify the evils of the system I was compelled to sanction, and that this part of thecolony will now advance rapidly in prosperity.

It only remains for me to state my hope that your Lordship will, upon considering all the difficulties with which the question was embarrassed, approve of the course which I have pursued; and, in the event of your Lordship doing so, I would venture to request; as the whole proceeding from the issue of the first Proclamation by my predecessor appears to have been illegal, that your Lordship would advise Her Majesty to sanction the issue of the Crown titles in the usual form, which I have given to the claimants. I think that, the Australian Land Sales Act having been repealed in New Zealand, this act upon behalf of Her Majesty would, if formally done, quiet all doubts regarding these-titles, and effectually set at rest all further question regarding these unfortunate claims.

I have, &c.,

G. Grey.

The Right Hon Earl Grey.