Maori Deeds of Old Private Land Purchases in New Zealand, From the Year 1815 to 1840, with Pre-Emptive and Other Claims
(1.) Old Land Claims
(1.) Old Land Claims.
The first instance I propose to take is the Ngunguru claim of Mr. Busby, because a Committee of the House of Representatives, which investigated it last session, reported that "the case, being one of hardship, should be considered among the cases which the Government have agreed to consider during the recess with a view to legislation thereon in the next session of the General Assembly." As the Committee did not state the grounds of their opinion that the case was one of hardship, I refrain from any observation except on one point. So far as I can understand the complaint of injustice which Mr. Busby makes against me in connection with this claim, the chief objection to the course I had taken which he appeared to have was that I had refused to allow the amount of payment given by him to the Natives to be multiplied by three, as the basis of computation for an award. Now, apart from the point of law decided by the Chief Justice, I adopted a far less stringent rule than the former Commissioners. Upon the principles which guided them the whole claim would have been absolutely rejected. Under the instructions they had received from the Governors of New South Wales and New Zealand it was their practice to reject altogether payments made after the 14th January, 1840. I take one case, which is to the point:—
"I appears, on the showing of the memorialist," said Commissioners Godfrey and Richmond in their report of the 27th July, 1842, "that there was only a promise made in the year 1839 of certain goods for a tract of land, which goods were not brought to New Zealand until a year and a half after Sir George Gipps's Proclamation forbidding all purchases of land from the Natives. We find it necessary to be very rigid in the rejection of all claims in which the larger part of the consideration for the land has been given to the Natives after the Proclamation, although an earnest may have been paid a long time previously, it having been apparent to us that contracts of such a nature have been made only with the intention of fulfilling them in the event of the Islands being taken possession of by the Crown."page 630
Whereupon the Governor decided as follows: "Let this answer, which I hold to be conclusive, be communicated to the claimant." And the claim was disallowed accordingly.
Now the rule may or may not have been a fair rule to lay down, but at any rate it is not easy to see on what grounds a claimant should not only have a different rule laid down for him, but obtain, under a less stringent practice, better terms than were granted to others.
I should mention that, in deference to the opinion expressed by the Committee of last year that the case was one which should be reserved for legislation this session, I have, as a matter of course, refrained from making any decision of my own since that time. The fact is that, when the Chief Justice confirmed my interpretation of the law, Mr. Busby appealed to the Governor. When the Governor refused to interfere, he appealed to the Secretary of State. When the Secretary of State refused to interfere, he appealed to the House of Representatives. And, lastly, he appealed to the Executive Government again to make him a grant under section 11 of "The Waste Lands Act, 1858." I hope that some tribunal will be found whose decision will be satisfactory to him at last.
However, on a question of "fair-play," or of "hard measure," there may exist two opinions; and what I propose in this case, therefore, is, either that the Assembly should settle it themselves, or that they should authorize it to be referred to a Judge of the Supreme Court, or that they should authorize certain issues to be made up for the decision of a jury. Under the existing Acts the Judges can only interfere either to decide appeals or to settle points of law; but a slight alteration (the points of law having already been stated and decided) would enable Mr. Busby to have the points of "equity and good conscience" in difference between us settled by the Chief Justice, or would authorize specific issues to be determined by an impartial jury impanelled for that purpose.
The second case which I take out of the Old Land Claims is also one of Mr. Busby's excluded by the present law.
Happening to read, as they were going through the press last year, the Land Purchase Commissioners' reports (printed in the Appendix to the Journals of last session, C.-No. 1), I was struck by a remark in one of Mr. Johnson's reports respecting the claims of Mr. Busby to land at Whangarei. These claims were partially heard by Commissioners Godfrey and Richmond in 1841, but on their calling upon Mr. Busby to produce Native witnesses he refused on the ground that "he would not, by producing them, give even an indirect sanction to the principle advanced by the Governor and Legislative Council that lands sold by the Natives to private persons were vested in the Queen." The Government thereupon informed Mr. Busby that the claims had been withdrawn from the Commissioners, and would not again be submitted for adjudication; and, the matter being referred to the Secretary of State on a memorial from Mr. Busby, Lord Stanley decided on the 21st April, 1843, that as Mr. Busby had taken his own course he must abide the consequences.
In the Land Claims Act of 1858 a clause was introduced enabling me, where possession had been taken for the Crown of land bought before the 14th January, 1840, by a claimant excluded under the Act of 1856, to estimate the claimant's outlay and direct a grant at the rate of one acre for every 5s. of expenditure. This clause was not applicable to Mr. Busby's Waipu claims; but it appeared to me that, if the Crown had gained any substantial advantage in the purchase of the Ruakaka and Waipu Blocks from the payments originally made by Mr. Busby, so that it might fairly appear that part of those blocks had come into our possession through a partial transfer to him of the Native title, he might properly obtain the reimbursement of his outlay. I therefore communicated, in August 1861, with Mr. Johnson (formerly District Land Purchase Commissioner at Whangarei), who informed me, in reply, that in a political point of view the transactions between Mr. Busby and the Natives had been of considerable advantage to the Government, and in a pecuniary point of view they had saved a sum of £400 to the public; that, although Mr. Johnson had suffered much trouble and anxiety from the opposition of Mr. Busby and the Land League, the original purchase made by. Mr. Busby was a fact which could not be evaded; and that, though no specific portion of land could be pointed out as having been obtained through the purchase, Mr. Johnson and the Natives had agreed that, as some of the latter had sold the Waipu to Mr. Busby, the outstanding Native claims should be acquired, leaving the Government to settle matters with Mr. Busby afterwards.
Under these circumstances it appears to me that section 12 of the Act of 1858 should be altered so as to allow compensation to be made: and Commissioners Godfrey and Richmond having found that the actual value of money and goods (multiplied by three) given to the Natives by Mr. Busby was £831 9s. 3d., that sum would, at the rate of compensation fixed by section 12, give him 3,325 acres. If this quantity were added to the quantity to which Mr. Busby is entitled at the Bay of Islands under the old grants which he has refused to surrender, and double survey allowance (to the extent of about 1,000 acres under section 42 of the Act of 1856) were also added for the land which is of a worthless character, I should be enabled to make him a grant of the whole of his land at the Bay in one block.
The third case I shall take from the series of Old Land Claims is that of John Jones, of Otago. The circumstances of the case may be briefly stated. The Investigating Commissioners found that the value of his payments to the Natives amounted to the sum of £3,957 15s., which according to the Schedule of the Land Claims Ordinance would have computed to 13,192 acres. They however recommended the maximum grant of 2,560 acres. In February, 1844, Mr. Jones appealed to the Governor for redress. On the 24th December, 1844, the Governor in Council referred the case to Commissioner Fitzgerald, with authority to recommend an extension of the award, and Mr. Fitzgerald recommended grants to be issued to the amout of 10,000 acres. The Governor immediately afterwards awarded 8,560 acres, and ordered a grant to be issued for that quantity, to be selected by the claimant. In October, 1845, the claimant sent up a plan of his selections accordingly, which were approved by Governor FitzRoy, and a grant ordered to be prepared for the 8,560 acres, as shown on the plan; the grant was, after a long delay, prepared by the Surveyor-General, signed by him, and sent in for Governor Grey's signature on the 12th September, 1846. But on the 19th December, 1846, the claimant was informed that the grant for 8,560 acres could not be issued, as the Governor did not feel justified in making a grant to any extent beyond the original maximum award of 2,560 page 631acres. A grant to that extent was accordingly issued to Mr. Jones. The claimant's plan reached Auckland on the 28th October, 1845; and if the grant had been made out at once, according to Governor FitzRoy's order, it would have been signed by him and have become one of those validated by the Quieting Titles Ordinance. The accident which enabled Governor FitzRoy's promise to be reversed thus cost the claimant 6,000 acres.
When I went to Otago in 1858 the claimant represented to me that his acceptance of the grant of 2,560 acres had been given in consequence of a promise by Sir George Grey that, in the event of the other land claimants who had obtained extended awards from Governor FitzRoy being confirmed in their grants, His Excellency would place Mr. Jones in the same position by the issue of grants for the residue of his 8,560 acres. I accordingly addressed Sir George Grey, then Governor of the Cape of Good Hope, asking him to be pleased to inform me what his recollection of the circumstance was; and I received a letter in reply stating that, though His Excellency could not, after so long an interval of time, precisely state what had passed at the interviews between himself and Mr. Jones, he knew that his intention was to convey to Mr. Jones that, while all he felt himself legally empowered to do was to issue a grant for 2,560 acres, the claimant's acceptance of that grant would in no respect injure any rights he might have if, upon a different system, larger grants were subsequently made to the land claimants. Sir George Grey added that Mr. Jones had a peculiar call on His Excellency to make this statement, as he had always preferred his claims with moderation, and shown a willingness to acquiesce in the decisions of the Government which ought not to prejudice any rights he might have. It may be mentioned that in the case of Mr. Fairburn, where a maximum grant of 2,560 acres was recommended by the Commissioners, Sir George Grey issued grants to the extent of 8,055 acres in 1849.
Upon Mr. Jones memorializing the Executive Government, he received a promise on the 30th September, 1861, that his case would be included in one of the classes of claims to be submitted for the consideration of the Assembly this session. It appears to me manifest that in cases like this relief should be granted. The question of amount would of course depend upon various circumstances: here, for instance, Mr. Mantel, whom I requested to afford any information in his power as the former Commissioner of Crown Lands for Otago, states (in his minute of the 6th September, 1861) that "Mr. Jones's selections were, by consent of the New Zealand Company's agent, allowed to be taken in such shapes as to give him the command of the land not granted to him."