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Maori Deeds of Old Private Land Purchases in New Zealand, From the Year 1815 to 1840, with Pre-Emptive and Other Claims

(2.) Pre-emption Claims

(2.) Pre-emption Claims.

The cases which I shall take for illustration out of the Pre-emptive series are those of the late Mr. Forbes and Mr. Ormsby: though 1 should not have thought it right to recall attention to them after the decision of the Legislature in 1858, if it had not been understood last session that I was to bring forward again any instances in which I might myself consider relief ought to be granted.

These cases have been so often before the Assembly and the public that it seems unnecessary to refer to them in much detail. The principal points are as follows:—

Both claims were situated at Onehunga, within the site that was afterwards reserved for the township there. During the session held in the year 1847 Sir George Grey addressed a minute to the Legislative Council containing a proposal for the settlement of the Pre-emptive Claims generally. Part of this minute was as follows: "In those cases in which lands claimed under my predecessor's Proclamations are retained by Government for sites of towns and villages, any expenses which the claimants may have been justly put to shall be returned to them, and some compensation in the form of land in the village or town shall be made to them." Appended to the minute was a "list of claims reported on by the Commissioner, the title-deeds for which are now in course of preparation:" and the two claims in question were in the list.

Commissioner Matson had reported on them in May, 1847, recommending a grant of 30 acres to Ormsby, and of 7a. 3r. 30p. to Forbes. In the following October the Government took possession of Onehunga as a location for the pensioners, and it was then found that "the greater portion of the land recommended to be granted by the Commissioner had been required for the pensioner village;" so the reports (with others in the same list) were referred back to the Commissioner, to state the amount to be awarded as compensation for the land taken, and the quantity of land remaining which should be granted to the claimants. Eventually a grant was issued to Ormsby for 5 acres (25th October, 1848), and to Forbes for la. 1r. 5p. (26th May, 1849); and compensation offered to Forbes of £12 19s. 4d., and to Ormsby of £35 7s. 3d. An inquiry into all the Onehunga claims afterwards took place under the following circumstances: The Governor, finding that the "cases had been dealt with by the Surveyor-General each upon its individual merits and not upon any general principle, thought it possible that unintentionally some inequality might have crept into the compensation awarded to the different claimants;" and in October, 1849, he directed a Board, consisting of members of the Executive Council, to inquire into the subject and report, among other things, "what additional compensation should be awarded in any case where the amount of compensation already given might appear either insufficient or not fairly proportioned to what had been allowed to other claimants." The Board made their report, proposing a scheme of settlement which was approved by the Governor and ordered to be carried into effect: but it did not alter what had been done in the two claims under notice.

Mrs. Forbes (her husband being then dead) accepted the compensation offered, after fruitless endeavours to get her case reconsidered; and she was therefore excluded by the Act of 1856. Mr. Ormsby steadily refused the compensation, and brought this claim before me.

The 32nd section of the Act of 1856 limited the estimate of compensation to be given in cases where the land had been taken by the Government to an amount equal to £1 an acre; but as some of Ormsby's land had sold for £50 an acre I applied to Governor Browne for authority to hear the case under section 33, known as the "special clause." This section had been originally drawn in accordance with the following recommendation of the Select Committee of the House of Representatives: "It is proposed, as has been stated, to give a special power to the Commissioners, notwithstanding anything to the contrary elsewhere enacted, to hear and decide upon any case where special injustice may be proved to have been inflicted."

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The grounds upon which I proposed to hear the case specially were reported, as the Act required, to the Governor. The principal ground was that, "while the Government must he held always justified in making reserves for public objects (of which the Onehunga settlement was a legitimate instance), they had no right to impose ex post facto regulations on those claimants whose cases had been heard and determined before the Governor's Minute of 1847, nor to attach conditions that were not known when the claims were heard; and that the claimants whose names appeared in the list above mentioned had an equitable right either to the land they were reported for, or to equivalent compensation for it if reserved."

The Governor authorized the special hearing of Ormsby's case; but, when I was about to apply the 33rd section of the Act in an award, I was stopped by certain words in the section the significance whereof had at first escaped me.

In the Land Claims Bill as originally introduced the clause ran thus: "Provided always and not-withstanding anything in this Act contained, in any case in which under special circumstances, in the judgment of the Commissioners, manifest injustice shall have been done to the claimants, they may recommend," &c. In the Act as finally passed the section ran thus: "Provided always and notwithstanding anything in the Act contained, in any case not hereinbefore provided for, in which under special circumstances," &c. The words I have marked in italics destroyed, as will be readily seen, all the effect of the section as originally introduced, and practically made it a dead-letter. The several classes of claims had been carefully provided for in the ordinary sections, and exact limits to my authority prescribed. There really was no "case not hereinbefore provided for," except a few which could easily be dealt with under the general power given to me by section 50: of course I could not apply that general power in evasion of the restriction in section 33; and thus, when I found I was precluded from using section 33 in the cases where the ordinary sections were in my opinion insufficient to do justice, I refrained from using it at all.

In proposing the Amending Bill of 1858 I introduced the following provision: "In any case falling under the provisions of the 32nd section of the Act of 1856, where the land alienated by the Government may have formed part of any reserve for a town, the Commissioners may estimate the compensation to be given by the actual value of the land at the time of the reserve, as nearly as they may be able to ascertain the same." This provision was however rejected by the Legislature, and the excluding clause of 1856 with respect to persons who had accepted compensation renewed in stringent terms.

Mr. Ormsby has died since then, and his case remains unsettled. There are of course many other cases in which the excluding or restricting clauses are held by the claimants interested to be a great injustice; but, as these depend on the consideration of a general principle, they will be referred to presently, in the next section of this report.