1860 - Busby J. Illustrations of the System called Responsible Government - Appendix, p i-vi

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  1860 - Busby J. Illustrations of the System called Responsible Government - Appendix, p i-vi
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Mr. Busby to His Excellency Governor Gore Browne.

Auckland, 4th April, 1860.

SIR, --

I am constrained to appeal to Your Excellency against the treatment I have received from Mr. Dillon Bell, the Commissioner of Land Claims, who, in the exercise of the discretion claimed by him, and allowed by the Chief Justice to belong to him, under the provisions of the Waste Lands Acts of 1856 and 1858, has, in a manner which appears to me to be arbitrary and unjust, refused to give a decision upon my claim referred to him in June, 1859, and lias postponed indefinitely giving a decision thereon.

I appeal direct to Your Excellency, because to you alone it appertains to vindicate the public faith--which was pledged to me and to others in like circumstances in Her Majesty's name by Her Majesty's Principal Secretaries of State for the Colonies; and because there is power reserved to Your Excellency under the 11th clause of the "Waste Lands Act, 1858," to make good all engagements entered into in Her Majesty's name, in relation to claims to land.

The proceedings before the Commissioner of Waste Lands, which are certified under his name, will prove to Your Excellency that Her Majesty's engagement, above alluded to, was violated in my case; and though it is not in the power of the Commissioner under the provisions of the Land Claims Settlement Acts of 1856 and 1858 to award me an amount of compensation more than equal to one-ninth part of my loss, the Commissioner refuses to make that award, and has indefinitively postponed to give his decision, to my great injury and loss.

I respectfully submit to Your Excellency that, in so doing, the Commissioner of Waste Lands has exercised the discretion vested in him in a way which is not reconcileable with the provisions of the Act of 1856 that all proceedings under that Act are to be conducted according to equity and good conscience.

I have, &c.,
His Excellency
Colonel Gore Browne,
Governor-in-Chief., &c.

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His Excellency Governor Gore Browne to Mr. Busby.

Auckland, April 9th.


I have looked over the case as you desire, but I do not see what I can do or say on the subject. The opinion of the Chief Justice is distinct, viz., that the "Commissioner may exercise or not (his powers) in his discretion after examination of the claim on its merits."

Now as the Commissioner (like other judicial officers) is entirely independent of me and my Executive Council, it is clear that neither I or they can interfere with his proceedings.

I have sent your letter on to the Attorney-General and have not received his reply.

Believe me,
My dear Mr. Busby,
Yours very truly,

Mr. Busby to His Excellency Governor Gore Browne.

Auckland, 10th April, 1860.


Your kind letter, for which I thank you, would be a rebuke to my impatience, in pressing my little matter upon your attention, at a time when you are so much occupied with matters of public importance, were it not that I find it an excuse for myself--whatever others may do for me--in the reflection that I have been struggling against oppression for twenty years, and that I am under obligations to others, which will not allow me to slumber over the short time that may be left to me to do them justice.

I at once perceive that you have misunderstood my representation to you, nor could I have hoped in so short a conversation to make you master of my case. It is precisely because the Chief Justice has decided that the "Commissioner may exercise or not (his powers) in his discretion after examination of the claim on its merits," that I have appealed to you. I do not wish you to interfere with the Commissioner or his proceedings, but to take the case into your own hands and deal with it yourself, --and this, after full examination, I have no doubt whatever you have full authority to do.

The annexed extracts from Lord Normanby's instructions to Captain Hobson will prove to you that Her Majesty, while she would not acknowledge as valid any title to land acquired from the aborigines, unless it should either be derived from, or confirmed by a grant from Her Majesty, pledged herself to cause an investigation to be made into the nature and equity of titles so acquired, in order that,

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if proved to have been equitably acquired, the owners of such property should be confirmed in their possessions by a grant from Her Majesty, unless "upon a scale which must be prejudicial to the latent interests of the community."

The case stated by the Commissioner, which I only refer to as a resume of the whole, recites the proof that in my case the pledge here given was not kept. In pursuance of these instructions, a Legislative Commission was appointed, and a proclamation issued calling upon all parties who were prepared to prove their titles to state the particulars of their claims to the proper authorities. The particulars required in my case were duly provided. But the claim was never referred to the Commissioners for investigation, and no opportunity was afforded me of proving my title.

The case also refers to my endeavours, which will more fully appear by the record of my letters to the Local Government, to obtain the protection of the Government for my property, which was being deprived of the timber which constituted its chief value; --and to my solemn protest against the conduct of the Government in refusing me that protection, and in conniving at and permitting the robbery of my property, which the "Native Lands Purchase Ordinance" made it impossible for me to prevent.

The third clause of the "Land Claims Extension Act, 1858," first opened to me an opportunity of obtaining some compensation for a small part of my loss. It was in the power of the Commissioner by the third clause of that Act to have awarded to me land of the value of about one-ninth part of my loss. But the Commissioner, acting in the spirit which the Government has from the beginning manifested towards the first settlers in the Province of Auckland "in their attempts to settle or stifle their claims" (I quote the words of the report of the Select Committee of the House of Representatives), appears to have considered that he would best fulfil his commission by awarding the minimum which the law would allow him to award, and by indefinitely postponing to give me any award, without regard to the claims of justice or of the words of the Act, which require that all proceedings under it should be according to equity and good conscience.

The extracts from Lord Normanby's instructions will shew that an engagement was entered into towards me on behalf of Her Majesty which has never been fulfilled. I shall now beg your reference to the clause of the "Waste Lands Act, 1858," which, after providing for the disposal of the Waste Lands of the Crown, reserves to the Governor the power to make good such engagements.

I am prepared to hear that you are advised that before you can exercise this power you must have a judicial decision. I would ask, if this should be the case, of what use can this clause be or what is its purport? All the modes of disposing of land or settling claims of an ordinary character are defined by the enactments of the

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General Assembly or of the Provincial Councils; but here is a reserve to the Governor to enable him to save the honor of the Queen and to keep the public faith. I pray and entreat Your Excellency to exercise upon this question your own judgment.

That you not only have this power independently of any judicial decision, but have acted upon it, or have been pledged by the Members of your Government to act upon it I am prepared to shew. In the case of the parties who obtained grants in the Queen's name of land at Pukekohe, which subsequent investigation proved to belong to the Natives, compensation was made by arbitration without a judicial decision. Here was a case in which the engagement of the Queen testified by a grant under the Seal of the Colony was broken through the default of a subordinate agent of the Government employed to survey the land. My case is that of an engagement made by the Queen and testified under the hand of one of Her Majesty's Principal Secretaries of State, which was broken through the default of the head of the Local Government. Can it be maintained that the one being a national record, is not as good evidence of an engagement as the other which is a local record, or that it is not as much in the power of the Governor to give compensation in the one case, as it was in the other cases. I have in vain looked for any proof of this power being contingent upon a previous judicial decision.

I have, &c.,

Extract from the Parliamentary Papers of April, 1840, p. p. 38, 39

"You will therefore immediately on your arrival announce by a Proclamation addressed to all the Queen's subjects in New Zealand that Her Majesty will not acknowledge as valid 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 and on her behalf. You will however at the same time take care to dispel any apprehensions 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 which must be prejudicial to the latent interests of the community * * * * * * * The Governor of New South Wales will with the advice of his Legislative Council be instructed to appoint a Legislative Commission to investigate and ascertain what are the lands in New Zealand held by British subjects under grants from the Natives, how far such grants were lawfully acquired and ought to be respected, and what may have been the price or other valuable consideration given for them. The Commissioners will make their report to the Governor, and it will then be decided by him how far the claimants or any of them may be entitled to confirmatory grants from the Crown, and on what conditions such grants should be made.

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Extract from the "Waste Lands Act, 1858," Clause III.

"And whereas it is proper and expedient that power should he given to the Governor to fulfil any engagement heretofore made on behalf of Her Majesty, and also to make reserves for certain public purposes within the Colony: Be it therefore enacted that it shall be competent to the Governor at any time to fulfil and perform any contract, promise or engagement heretofore made by or on behalf of Her Majesty, and whereof there is evidence in writing, with respect to any allotment or parcel of land within the Colony, and any Crown grant made in pursuance of any such contract, promise, or engagement shall be valid."

Mr. Busby to Governor Gore Browne.

Victoria, 14th May, 1860.


Will you do me the favour to give me an answer to the letter which I addressed to your Excellency before I left Auckland, under date the 18th April.

I remain, &c.,

Governor Gore Browne to Mr. Busby.


In your letter of 18th April you desire that I should, without reference to the decision of the Commissioner, take your case into my own hands and deal with it myself. The ground you urge for making this request is that the promises contained in Lord Normanby's instructions to Captain Hobson (which you quote) have not been fulfilled.

I do not however see that I have any power to overrule the decision of the Land Claims Commissioner or to take the case out of his hands into my own. I am advised that the section of the Waste Lands Act to which you refer has no application to Land Claims for the settlement of which specific Acts have been passed, and of which your claim is one.

Believe me, &c.,

May 19th, 1860.

I should have replied earlier, but that until I received your last note I assumed you had accepted my verbal reply in answer to your letter.

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Publications by the same Author, which may be procured from Mr. Leighton, Shortland-street, or Mr. Wayte, Queen-street.

1. "A Picture of Misgovernment and Oppression in the British Colony of New Zealand," 1853.

2. "The First Settlers in New Zealand, and their treatment by the Government," 1856.

3. "Responsible Government," and the Governmental Institutions of New Zealand, 1857.

4. "Colonies and Colonization," a Lecture with especial reference to New Zealand, 1857.

5. "The Federation of Colonies and the system called 'Responsible Government,'" 1858.

6. "The Preemptive Land Claims," 1859.

7. "The Right of a British Colonist to the Protection of the Queen and Parliament of England," 1860.

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