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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

IV.—The General Question of Whether Further Relief should be Granted to all the Claimants

IV.—The General Question of Whether Further Relief should be Granted to all the Claimants.

It will be very convenient, inconsidering this part of the subject, to reduce the questions involved to as narrow a compass and as precise terms as possible.

The demand for further general legislation in favour of the land claimants can only proceed from the belief that some injustice has been done which the colonists of the present day are morally bound to repair. It is not sufficient to say that former Governments committed injustice; it must be shown that it is that kind of general injustice by the General Assembly itself for which it ought now to provide redress by repealing the main principles of its own legislation in preceding sessions.

I assume that there are very few pretending to any acquaintance with the subject who will hold that the Acts of 1856 and 1858 were oppressive against the land claimants as a body. The accusation has indeed been made, but wherever I have known it to be made it has rested upon no sufficient ground. I feel called upon to declare as an unquestionable truth that those Acts have operated as a great relief, and have substantially fulfilled the liberal wishes and expectations of the Assembly in passing them. Grants which eighteen years ago pretended to give a title to property, but which were utterly void for any purpose whatever, have been exchanged for title-deeds containing a true definition of the estate granted. Claims which had been disallowed by what Mr. Domett called an "exterminating process" have been admitted, and compensation made for the delay in their settlement. Claimants whose cases had lapsed have been permitted to relieve themselves from the exclusion enforced in real cases of default, and have received awards. Boundary disputes between claimants have been determined, and partitions made where the claims were held by tenants in common. Family arrangements have been validated, and grants issued direct to the children or heirs of the original claimants. Land which had been abandoned by the original purchasers has been surveyed and secured to the public use. A country which six years ago was almost unknown, except to the few people residing there, has been mapped and made available for settlement. Compensation has been granted where land was taken possession of for the Crown upon the strength of the extinction of Native title before 1840.

I deserve no credit, and I sincerely desire to take none, for these results. They have flowed naturally from the spirit which animated the Assembly, and are the product of their legislation. But if there be any persons who still decry the Acts of 1856 and 1858 as illegal and oppressive, I may point to the facts now mentioned with a just confidence that their value will be attested by the great body of the claimants themselves. I dismiss, for my, part, as unworthy of serious consideration by the Government, all question of the necessity of further legislation upon the ground of general injustice; and thus the subject becomes narrowed by one great step.

If injustice, then, has been committed, it is against certain persons and not against a class. Let us begin accordingly by taking out all those against whom it cannot reasonably be alleged that any has been committed at all.

(1.)In the first place, we must take out all those who have received grants for the piece of land they actually bought. If a man has got all he bought from the Natives, he can only have a further claim upon the country under some amiable scheme of universal compensation.
(2.)Secondly, we must take out all those who suffered their claims to lapse by their own default, and who did not avail themselves of the opportunity given to everybody of coming before me and showing that their claims had not so lapsed.
(3.)Thirdly, we must take out all those who voluntarily entered into an agreement with the Government (not being under duress) for the surrender of their claims in exchange for scrip, money, or debentures.
(4.)Fourthly, we must take out any who deny the power of the Assembly to make laws on the subject. It cannot reasonably be alleged by any one who denies the legality of an Act that the Assembly is bound to provide such law as he will admit to be valid. And it would be the most flagrant injustice to those who have obeyed the law if any one who resists it were to get better terms than they got; it would open the door to an undeniable claim on their part for compensation.
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Now when we have got to the end of the exclusions (and unless the Assembly means to stultify itself I do not see any that could have been spared), the cases that can come before it with any reasonable demand for further general legislation, after allowing for the special cases whereof I have already given a few instances, appear to be absolutely limited to the following two classes:—

(1.)Where, by reason of the extent of the claim, a certain amount of land has reverted to the Crown.
(2.)Where the claimant was obliged, under great pressure, to surrender his claim to the Government for less than it was worth, or to accept less land than he had a right to.

It will readily be seen that these two classes naturally divide themselves into Old Land Claims and Pre-emptive Claims; I will therefore take them separately.

First, with respect to the Old Land Claims. The demand that was practically made last session, and which I presume will be renewed this, was that, the claimants being themselves entitled to their surplus land, the Crown had no real right to keep it. I am not going into the "colossal argument" as to whether or no the Queen's subjects who settled here before the establishment of Her Majesty's authority had a right to buy land from the Natives, had a right to all they bought, had a right to require confirmatory grants of it from the Crown, and, failing that confirmation, had a right to the recognition of their titles by the Supreme Court. Still less shall I waste time in discussing the question whether the ordinances of 1840 and 1841 were violations of Magna Charta and the Bill of Rights, or repugnant to the law of England. I do not suppose that the Government or the Assembly feel any interest in these fanciful controversies in the year of grace 1862. But I feel called upon to observe on one or two points, in order that my opinion as the person to whom the Legislature has confided so much power and discretion should not be misunderstood.

Whether the Queen's subjects had or had not the right for which some of the land claimants contend of buying land from the New Zealanders and keeping all they bought, we know at any rate for a fact that the Queen's Government denied it from the first. In May, 1839, when the New Zealand Company sent out their first expedition, the Government made the following declaration: "Lord Normanby wishes it to be further understood that no pledge can be given for the future recognition by Her Majesty of any proprietary titles to land within New Zealand which the Company or any other persons may obtain by grant or by purchase from the Natives."

Afterwards, when the Crown had decided on founding a colony here, one of the earliest instructions issued to Governor Hobson by Lord Normanby in 1839 was this: "You will immediately on your arrival announce, by a Proclamation addressed to all the Queen's subjects in New Zealand, that Her Majesty will not acknowledge any title to land which either has been or shall hereafter be acquired in that country, which is not either derived from or confirmed by a grant to be made in Her Majesty's name." (Despatch.14th August, 1839.)

At the same time Lord Normanby conveyed Her Majesty's gracious promise that, under certain conditions, the title so acquired would be recognized and confirmed by the Queen: "You will, however, at the same time take care to dispel any apprehension which may be created in the minds of the settlers that it is intended to dispossess the owners of any property which has been acquired on equitable conditions, and which is not upon a scale prejudicial to the latent interests of the community."

This was a year before the ordinance introduced by Sir George Gipps into the Legislative Council of New South Wales, and two years before the New Zealand Council's ordinance of 1841. Now it is upon this promise of Lord Normanby's that a few of the land claimants have based a belief in their possession of certain rights. They interpret it to mean an absolute engagement to confirm them in whatever they had actually bought. But, in order to find the true interpretation of that promise, we must seek it in the solemn acts of the Imperial Government itself. When Her Majesty was advised to give the Royal assent to an ordinance which commenced with the formal declaration that "all titles to land in New Zealand which were held or claimed by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, leases or pretended leases, agreements, or other titles, either mediately or immediately from the chiefs or other individuals of the aboriginal tribes, were absolutely null and void:" when in the same ordinance certain conditions were laid down upon which alone confirmatory grants would be made: it is there we must look for the express interpretation of the Royal promise of 1839. To argue that the Land Claims Ordinance did not carry out the real intention of the Queen's Government, at a time when Governors were ruled from Downing Street and official Legislatures obeyed Governors, would be mere folly even if there were no other evidence than the Royal assent to show that the ordinance did carry out that intention. There is, however, plenty of proof that Sir George Gipps's proclamation and ordinance of 1840, and Governor Hobson's ordinance of 1841, really represented the mind of the Imperial Government at the time, and were considered to extend a reasonable liberality to the land claimants. The only wonder is that any student of the Blue Books should for a moment advance the contrary assertion.

But if it were otherwise; if it were possible for the Queen to have broken a solemn promise voluntarily made to her subjects in New Zealand; if the land claimants thought they had been tricked and deceived; they should have refrained from bringing their titles under the ordinance at all. When Mr. Wentworth for instance, after endeavouring without success to obtain better terms from Sir George Gipps, sent in schedules of all his claims, and requested that they might be referred to the Commissioners appointed under the ordinance, he knew the conditions under which they would be referred, and he admitted the validity of the law. He knew that the ordinance declared his titles to be null and void, and that his reservation that they must be referred to the Commission "without prejudice to his right to all he had bought" was of no use or effect whatever. I have never supposed that the claimants deliberately purposed such an act of bad faith as to accept the ordinance for what good it gave them, with a private mental reservation to repudiate it for anything else. I have never supposed that they took advantage of the opportunity to get a favourable investigation and report upon their claims, only to deny afterwards the very foundation of the authority to which they pretended to submit; or that, when the law required them to do a certain thing, they would announce that the law was illegal and void, while, when they required a certain thing to be done, they would plead the same law as their page 635protection and right. No one who has read the records of the Land Claims Commission can doubt for a moment that when the Government came down here in 1840 the great body of the claimants accepted the ordinance in perfect good faith, and that they were content to abide by its limitations, in consideration of the exchange it gave them of an English title for a precarious occupation under the law of the strong arm.

The claimants knew very well when they sent in their claims that they could only obtain in ordinary cases a maximum award of 2,560 acres; but they knew also that the law provided that in special cases the Governor in Council might authorize the extension of that award, and that there was no limit to the exercise of such authority. Many of them accordingly availed themselves of this when Governor FitzRoy came to the country, and got their awards extended. Now, wherever this was done, I hold that in all fairness the claimants were bound by the limit of the Governor's award as to quantity. If they meant that he should grant them the whole of the land they had bought, whatever its quantity might turn out, they should have said so. They should have told Governor FitzRoy when he was awarding 5,000 acres that they meant to keep 10,000, and so forth. They should resolutely have rejected all grants which said that specific quantities were granted within certain boundaries described as being those of the "entire quantity claimed." A few of them fell, in fact, into the common but fatal snare of wishing to eat their cake and have it. They wished to get all the security which a Crown grant gave, and to be subject to none of the limitations which the ordinance imposed. The judgment of the Privy Council, however, repealing the grant issued to Mr. G. Clarke for 4,000 acres, finally disposed of any doubts there might be on the subject; and, had the Quieting Titles Ordinance not passed, every other grant of the same kind would infallibly have been repealed in the same way. Even, then, it is not quite clear what the ordinance did. Take this particular grant as an instance. The grant itself was declared void by the Privy Council. If it afterwards had any force at all, it certainly had none beyond the four corners of the Quieting Titles Ordinance; and the question is, What was the effect of that ordinance upon it? In reference to this a curious incident may be mentioned. An honorable member, who desired that whatever advantage or security was given by the Quieting Titles Ordinance should remain with the claimants when their grants were examined under the Land Claims Settlement Act, obtained the insertion of a few words declaring that the Commissioners should, in deciding upon the validity of a grant, "give effect" to the ordinance. The result was just the reverse of what was expected. Instead of operating so as to give the claimants all land within the exterior boundaries of their claim, it carefully made fast the proviso in section 1 of the ordinance which limited the grantee to one-sixth more than the quantity named in a grant where the "metes and bounds" were undefined, and would have limited the grantee in certain cases to the actual quantity named in the grant, but for repugnance to the Act. But the Quieting Titles Ordinance could not do impossibilities; it could not make that valid which was utterly void in itself; it could not, for instance, by any amount of declaration, create a valid grant out of a document which contained on the very face of it the announcement that the estate conveyed had "no boundaries" whatsoever.

In referring to Mr. Clarke's grant I should say that it is an instance of two things: on the one hand, of there being no right in the claimant to the surplus; and on the other, of the claimant's payment to the Natives being such as would have made it quite fair to give him the whole acreage included in his purchases. I have heard it used as an argument that the surplus ought to be granted in all the cases because excessive quantities were granted in some; as, for instance, Webster's, where Governor FitzRoy issued grants for 41,374 acres to that speculator and his partners. But though I may consider it a great injustice to the other claimants to have granted 41,000 acres in Webster's claims, I do not see that it follows either that it would be right to take that land away now, or that we are therefore obliged to make similar grants to other people. There never was any doubt that the Imperial Government considered the Crown was entitled to the surplus land; and Lord Stanley expressly declared in May, 1843, in answer to a question by Captain FitzRoy before he assumed the Government, that the excess in a claim over the quantity granted would revert to the Crown. (See Parliamentary Papers, 1844, vol. iv., p. 387, Col. Sec. copy.) Lord Stanley, contemplating the extinction of the Native title over all the land comprised in the exterior boundaries of a claim, said, with respect to the excess, "The hypothesis being that it neither belongs to the aboriginal owners nor to the purchasers, it must be considered as demesne of the Crown." This must be conclusive against Governor FitzRoy's contrary opinion.

Still, if the Assembly is disposed to be generous, there is no great difficulty in the way. In the northern claims there will be little further inquiry wanted, and no new surveys. The annexed return shows exactly what has been taken as surplus out of the respective claims, and if the Legislature resolves to grant the land it can be done without much delay or expense. But in that case I beg leave; on my own account, to make one observation. If the surplus land is to be given, let it be done on the only principle which is fair. Make a new declaration that every man shall be entitled to a grant for what he bond fide bought, irrespective of the original restrictions in the ordinance of 1840. Let it be announced that the old land-marks are removed, and give to those who abandoned their claims when they found they could merely get the maximum award a fair chance to come in now and prove them. Remove, with the maximum, the schedule that fixed a scale at the rate of 8s. an acre for worthless hills bought from the Natives in 1839, while in 1862 you may buy finely grassed land from the Crown for 5s. an acre. Give a chance to Mr. Weller, for instance, who surveyed 63,000, acres in Otago more than twenty years ago, and took his survey up to Sydney; let Mr. Green try for his exact quantity of 1,023,000 acres of snowy mountains on the West Coast, and Mr. Jones prove for his principality at Molyneux; risk Akaroa for Mr. Hempelman, and the Pelorus for Mr. Guard, the Aorere Gold Field for Mr. Crawford, and the Napier plains for Mr. Rhodes; and compensate Mr. Graham for not being able to give him his Waipa land handed over to King Matutaera. What right have we (if the question of the maximum be now reopened) to create a new kind of restriction, and say we will give away the surplus in the North as the claims are small, but refuse it in the South because they are large? No: however glad I should personally be to see the northern claimants get the whole of their land as residents and old settlers, I cannot see how it is to be done except on the open reversal of limitations page 636consistently maintained for twenty years, and the inevitable consequent reopening of the largest claims in the country. It is easy to lay down a new and apparently just principle, but people must have waded through all the land claims history to know where its application will reach.

Secondly, with respect to the Pre-emptive Claims, I must make one remark at the outset, and that is, that I do not think it over can be said for certain what the rights of claimants under Governor Fitzroy's Proclamations really were. Lord Stanley took one view of the obligation of the Crown, Lord Grey took anothor; the Supreme Court declared the Proclamations were contrary to law; Governor Fitzroy said the waiver of pre-emption meant one thing, Governor Grey said it meant another. This last point is worth illustrating. Governor Fitzroy said, "The applicant's name being at the head of the pre-emptive certificate does not specify that the Crown's right is waived in his favour only, but that he is the applicant. It is very necessary that there should be a check upon the party first applying. If he does not offer fair terms, is it right that he should have the sole right of pre-emption? I think not. The Crown's right of pre-emption has been waived in respect of a certain tract on the application of——, who has not bought the whole of that tract. Any other person may buy the remainder, and, by sending in copies of his deeds and surveys, and a reference to the letter to——, to show that the Crown's right has been waived in respect of that land, he will in due course obtain a grant." (Fulton, No. 132, 14th February, 1845.) That was Governor Fitzroy's interpretation of his own Penny-an-acre Proclamation. Sir George Grey's interpretation was very different: "The Governor for the time being, upon the application of one individual, waives the Crown's right of pre-emption over these islands, and he does not so waive this right in favour of all the Queen's subjects, but of one individual." (Polack, No. 178, 19th May, 1849.)

Then again the terms of the Proclamation themselves, and the regulations in the Gazette, were Such as to make it, in my opinion, nearly impossible in most cases to comply with them. Governor FitzRoy published a notice condemning those who had made purchases prior to obtaining the waiver, and threatened to reject all applications where this had been done; but granted the waiver notwithstanding in numerous cases after purchase. He said that only "a few hundred acres" were meant, and then granted applications for 1,000, 1,500, 2,000, and 3,000 acres. One thing, however, seems clear; no pre-emptive claimant could justly claim under any circumstances more land than his certificate entitled him to buy. If he had a certificate for 1,000 acres, and bought 5,000 with it, he might have a just right to 1,000 acres, but under no interpretation could he have a just right to the excess. In this respect the pre-emptive claimant differs from the claimant under purchases made prior to the Queen's sovereignty; but if, in the latter class, the principle be admitted that they should have all they bought, in the Pre-emptive Claims it should be admitted so far as that they should have all they bought up to the amount of their certificate; and I hope nothing will be done which shall give any more land to one class and refuse it to the other.

The difficulty is so insuperable of deciding what were the rights really conferred on the pre emptive claimants by the Penny-an-acre Proclamation and regulations, and how far, a literal compliance with their terms being impossible, those terms could be deviated from in one case without doing great injustice in another, that I neither wonder at the resolution of Sir George Grey to close the claims by laying down a scheme of his own, nor at the determination of the Committee of 1856 to adhere to the leading features of that scheme in their own proposals. I need only add that, if the right of pre emptive claimants be now admitted to a grant of the whole of the land they bought, the Province of Auckland would have to refund a large sum of money received from the sale of pre-emptive land, or to pay its equivalent in other land.

It will have been seen from the preceding observations on the subject of Old Land Claims that I think no general measure with respect to the surplus land in those claims should be passed without the simultaneous total abolition of the maximum originally fixed in 1840. In like manner, while I have admitted that in the Pre-emption Claims there were many cases of duress by the imposition of a different kind of maximum, I think no general measure should be passed that did not also abolish that maximum, and, of course, reopen all the settled claims. It is for His Excellency's Government to decide whether that course should be proposed. I do not propose it, because, if on the ground of redressing injustice the General Assembly is ready to repeal the principles of its own legislation as well as of legislation under previous forms of government it must not stop at the land claims; there are other things where equity would demand a more thorough reversal of past policy than any that could be claimed in the history of purchases of land from the Natives.