1856 - Busby, J. The First Settlers in New Zealand and their Treatment by the Government - [Appendices] p 50-54

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  1856 - Busby, J. The First Settlers in New Zealand and their Treatment by the Government - [Appendices] p 50-54
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"THE LAND CLAIMS SETTLEMENT ACT, 1856," is considerably modified from the first draft of the bill laid before the House of Representatives; and it is still further modified from the bill as reported and sent to the Legislative Council.

These modifications are principally in the provisions affecting the purchases made from the Aboriginal proprietors before the establishment of the British Government.

The demand of one shilling an acre for the issue of each grant, and one shilling and sixpence an acre for surveys, as recommended by the Report of the Select Committee, and adopted in the first draft of the bill, are expunged from the Schedule; and in lieu thereof the moderate fees of £1 on the issue of a grant, and 10s. for each 100 acres contained therein are substituted. Provision is also made that a certain quantity of land shall, under the name of "Compensation," be granted to parties who have their lands surveyed at their own expense. The provision that the Judges of the Supreme Court should be ex officio Commissioners is also expunged--an alteration pregnant with significance. Nominally, also, there is an appeal from the judgment of the Commissioner to one of the Judges of the Supreme Court of the Colony. But the appeal is only nominal.

In the marginal note to clause 13, we read "Appeal in cases of parties aggrieved;" but the body of the clause nullifies the hope held out in the marginal note, by enacting that the party "may, within one calendar month after such decision, appeal to any Judge of the Supreme Court, upon a case in writing to be stated or settled by the Commissioners." Why are the words in Italics introduced? The object is transparent. Were the appellant to be allowed to state his own case, the whole act, as well as the proceedings under it, might be declared illegal. Could anything but a consciousness of this have suggested so unusual and inconsistent a provision? Is it not a mockery and an insult to common sense to call such a provision an appeal?

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The clauses dealing with pre-emptive claims do not differ in any material point from the recommendations in the Report of the Select Committee; and they are as much a breach of the public faith as the proceedings of Sir George Grey, for the injustice of which they profess to afford compensation.

The Government was positively pledged to issue Crown Grants for land purchased from the natives under the authority of a certificate of pre-emption. Sir George Grey chose to disregard this pledge; but two successive Secretaries of State, Lords Stanley and Grey, instructed him in the most express terms that "the public faith must be kept inviolate" (to the holders of pre-emption certificates) "be the consequent inconvenience what it may." Sir George Grey disregarded this instruction; but proposed various plans of compromise, under conditions, some of which were impossible, and all of them unjust, inasmuch as there was no mention of such conditions when the pre-emption certificates were issued.

To say that such lands as were purchased under pre-emption certificates, and with respect to which all the original conditions were complied with, shall not be granted to the purchaser unless upon a payment of one-fourth of its value, as enacted by clause 29, is as much a breach of public faith as to say that they shall not have them at all. A similar remark is applicable to the limitation to 500 acres, or to any other extent not provided for in the original certificate. The universal laws of moral obligation can no more be abrogated by the enactment of a Legislative body, than by the arbitrary fiat of a Governor.

Sir George Grey's excuse was, that these transactions did "injustice to the public" meaning that the individuals who received pre-emption certificates were allowed to reap too great an advantage at the expense of the public. And the select Committee in their report give a similar reason for their recommendation, namely, that "these purchases were only permitted on a most erroneous principle, and one clearly detrimental to the general interests." But it is a new doctrine that a bargain may be annulled because it has turned out more profitably to one party than was anticipated when it was made. If indeed, fraud had existed on either side, if the party claiming a grant had made a false representation, or if there had been a fraudulent collusion between Governor Fitzroy and any of the claimants--justly then might the claims of such claimants have been abrogated. But as no one ever dreamt of imputing fraud to Governor Fitzroy--every claimant who can shew that that he has been guilty of no misrepresentation, and has complied with

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the original conditions of the pre-emption certificate, has a perfect right to a grant of the land purchased under those conditions without any further payment than those conditions required.

The Report of the Select Committee states (page 11,) that, "as in many of these penny-an-acre cases, including most of those affecting the most valuable lands, the lands, as your Committee is informed, have been resumed and resold by the Government, whenever such claims are found to be good it will be necessary to compensate the claimants."

They then proceed to make certain recommendations with respect to the mode in which what they call "compensation" should be granted. And in conformity with these recommendations, clause 32 of the Act provides, that "in estimating the quantity of compensation land to be given as last aforesaid, the Commissioners shall estimate the same by the amount realized upon such alienation of the land comprised in the original claim, but in no case shall the original land be estimated as having realized more than one pound per acre; surely there could be no greater abuse of language than to call this compensation. In the case of Mrs, Forbes of Onehunga, for instance, which has been so often referred to, for eight and a half acres of her land which was sold by the Government, she would only be entitled under the provisions of this clause to land valued at £8 10s., while what was sold by the Government owing to its proximity to the harbour of Manukau now opened to navigation, is stated on the best authority to be worth £100 an acre. That is she would receive £8 10s. as compensation, which in ordinary language means an equivalent for from £800 to £850. But even this mockery of compensation is refused to Mrs. Forbes under clause 33, because under a threat of being deprived of the whole of her property she accepted a grant of 1 acre, 1 rood, 5 perches, in lieu of 9 acres, 3 roods and 25 perches, to which not only Governor Fitzroy but Governor Grey himself in the public Gazette certified her to be entitled. To say that so flagrant an act of oppression as that committed upon this person, a widow who had seven children to provide for, and who in order to obtain the small piece of land which was to be a provision for her children, states that she was obliged to sell her watch and her trinkets, should be allowed to continue unredressed; that it should be taken for granted that, in the language of the Report, "finality or conclusiveness has been arrived at"; because a Committee of the House of Representatives in virtue of its being so enacted by the Legislature consider it "a verdict hacked by all the authority

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and weight of a body representing the opinions of the whole community," is as much as to say that there is not one honest man in the Legislature, or not one private individual in the Colony with sufficient public spirit to remind the Legislature of its duty.


In page 18 a confident persuasion is expressed, that no claim acknowledged and maintained by the Natives was of such extent as to justify the Government in disallowing it, on the grounds of its extent or value making its recognition "prejudicial to the latent interests of the community."

A cursory examination of the Return of Land Claims printed by order of Sir George Grey, and laid before his Council on proposing the enactment of the Ordinance, Session 10, No. 4, would seem to reveal to a person unacquainted with the details of the subject, a state of things which required a measure of a most stringent character; but an analysis of that return will prove that the claims sent in to the Government of proprietary rights to extensive territories, of which so much has been made, had no foundation in justice or truth. For instance, it will appear

1. That the whole number of claimants was 459, and the number of tracts of land claimed, 1020.

2. That five persons preferred claims to 26 tracts of land estimated in the aggregate at 7,950,000 acres; but that of these five persons, four never made any attempt to substantiate their claims, and that the fifth does not appear to have made good his claim to a single acre.

3. That 25 of the claimants preferred 34 claims extending in the aggregate to 741,410 acres, none of whom ever attempted to substantiate their claims.

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4. That 11 persons made claims to 125,000 acres but withdrew their claims.

5. That 8 persons claimed 105,000 acres, but had so little confidence in their titles that they refused to pay the fees to the Commissioners for their examination.

6. That, on the whole, 143 claimants never attempted to make good their claims; that 27 withdrew their claims after having made them; that 12 did not consider their claims worth the fees; and that in 208 cases the claims are so vague, that the extent of land claimed is not even estimated. On the other hand it is officially reported that out of 750 claims which had been examined, by the Commissioners, only 4 or 5 had been disputed. Had the printed Return before referred to, set forth the prices or consideration proved to have been given for the lands claimed, it would not only have appeared at a glance what claims were genuine and valid; but (and this is the most probable reason why so essential a piece of information was withheld) it would have excited astonishment, that any constituted authority should have sought to invalidate contracts of such a character as those admitted by the Natives.

It is shewn by these Returns, that while in every instance Sir George Grey endeavoured to deprive the large families of the Missionaries, most of them born in New Zealand and settled on their lands, of all the lands their parents had purchased for them exceeding 2560 acres--grants extending to 24,269 acres were made to one individual (or to his assigns) who never settled, and probably never intended to settle, in the country.


In consequence of the haste with which the manuscript of the foregoing statement was prepared for publication, in a different shape, and the writer's distance from the printer, several inaccuracies have crept in, of which the most considerable are the following:--

In page v. of preface, line 23, for providing read proving.
In page 1, line 19, for effected read affected.
In page 32, line 22, for Admirable read Admiral.
In page 34, line 26, for it was such precedents read it was to such precedents.
In page 35, line 29, omit the word that.

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