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The New Zealand Journal, Saturday, November 07 (1840)


Council of New South Wales—Proceedings Relative to New Zealand.

The New South Wales papers have, of late, arrived in very broken files. Last week the Australasian Chronicle of the 28th of May reached us, which, although not of so recent a date as previous arrivals had given us, contains the proceedings on opening the Council relative to New Zealand. These proceedings are as follows:—

Thursday, May 28.

This being the first day of the session, all the Members of the Legislative Council were present except the Bishop. His Excellency the Governor appeared in the full viceregal costume. Sir Maurice O'Connell wore his uniform as Commander-in-Chief of the Forces, with the star of the Hanoverian Guelphic Order on his left breast, and Sir John Jamison appeared decorated with the blue ribbon of the Order of Gustavus Vasa; the assembly, altogether presenting an interesting and respectable appearance.
On opening the Council his Excellency the Governor read an address to the Members, of which the following may be considered as the substance:—He conceived himself bound to congratulate them upon the present happy prospects which were now before the colony, the increasing state of its revenue, and the additions which had been made to its population by the vast influx of immigrants during the past year. The ensuing session would be a busy one, inasmuch as the Council, having been pronounced by the Imperial Parliament of Great Britain as competent for the regulation of all matters relative to the government and administration of justice in New South Wales and its dependencies, would be called upon, in the exercise of those high and responsible powers, to add many laws of great importance to the colonial code. He also begged to congratulate them upon the accession of New Zealand as a dependency of this colony, and, although that accession imposed upon them an additional labour in their office of legislators, yet he trusted they would meet that extra labour with pleasure, and provide amply for the judicial wants of that prospering colony. He should lay before them shortly a bill of the most important nature relative to the affairs of that settlement, viz., a bill for determining the justice of all claims to land, the title to which was derived from the native chiefs. It was clear that claims of this description had no foundation whatever, either in the laws or usages relative to colonization; but as her Majesty's Government had agreed to allow the legality of all such titles as should appear consistent with justice and honesty, it became necessary that some method should be adopted for ascertaining what should be allowed, and what disallowed. The Council would perceive, by various papers, which would be laid before them, that the Government of New South Wales were empowered to make an advance to the authorities of New Zealand out of the crown revenue of the former colony; but such an advance was to be considered only in the light of a loan, to be repaid at a future period to the treasury of New South Wales. He would now revert to the reports and discussion so widely circulated as to the misapplication of the land revenue, and state that, as a preventive of such misapplication, it had been proposed that the expenses of maintaining the police, and the carrying on of public works for each district, should be defrayed by a local assessment. He could not then say whether they would be enabled to dispense with any increased taxation. The land revenue was at present in a prosperous state, and he entertained hopes that they should have no occasion for a loan during the ensuing year. The immense sums of money which were expended by this colony for the purpose of bringing immigrants to its shores must give the Home Government an exalted idea of its wealth; and, on the other hand, it was self-evident that it must be of infinite service to the mother country in carrying off the superabundant population, whose numbers, were it not for the prospects held forth by emigration, would soon become greater than that country, extensive as are its resources, could support. The immense sums of which the land fund was composed, although raised in this colony, was by no means to be considered in the light of a tax upon its inhabitants, being composed of the purchase-money paid by the settlers for the land which they occupied, so that the various amounts so paid were not sunk, but merely invested; and it was also a species of investment which had yielded a more ample return than any other kind in the colony. Not was there indeed any part of the British dominions where less taxation prevailed than in New South Wales. It was the very prosperity of the colony that produced the extra expenses of its government and maintenance; for, as its importance increased, so it became necessary to increase the salaries of its officers, and to incur various other incidental expenses which previous circumstances had not rendered necessary. He should also lay before them a bill for the establishment of municipal corporations, which were at present the greatest want of the colony. The effects produced by institutions of this kind were always good, and, in the present state of affairs, he looked upon their introduction as an imperative duty, inasmuch as, independent of their being so loudly and generally called for, they were likewise rendered necessary in order to enable the colonists to take a leading part in the higher functions of a Legislative Government, by entrusting them first with the management of their own local affairs. The Municipal Corporation Bill which would be introduced was closely modelled after similar acts which had been passed by the joint wisdom of the Imperial Parliament. It was not necessary for him then to say anything with regard to the estimates for the past and ensuing years, more particularly as the financial papers were then in the course of preparation, and would shortly be produced for their inspection.
The above address of his Excellency was then ordered to be reprinted, and placed among the minutes of the Council.
After some discussion on subjects not interesting to our readers,—
"The following bills were successively placed upon the table by his Excellency the Governor; and, having been read, were ordered to undergo their second readings at the dates mentioned:—
"A bill to extend the operations of the laws of New South Wales to that portion of New Zealand where her Majesty's Government has been established; ordered to be read the second time on the 9th of June.
A bill for investigating the validity of all titles to land in New Zealand, derived from the authority of the native chiefs; to be read the second time on Tuesday the 30th of June."
The extension of the "laws of New South Wales," as distinguished from the laws of England, to New Zealand is an especial calamity, incidental to the false position of New Zealand as a dependency of New South Wales. Laws adapted to a population of convicts and their task-masters must ill suit the state of society now happily existing at Port Nicholson. The persons sent thither to administer those laws—accustomed to do so in the necessarily tyrant spirit which gave them birth—will be but ill qualified for their task, and we may expect that justifiable discontent will be speedily excited in the colony. For the population of the Bay or Islands, which was chiefly colonized by people from New South Wales, "the laws of New South Wales" may be better adapted, but even in that part of the island there is a considerable leaven of soundness, and as the sound portion is in rapid course of augmentation, we cannot think these laws will even there be hailed as a boon, or even received with equanimity.
Other inconveniences, arising out of the dependent character of the colony, have already been pointed out in a paper published in our fifteenth number,* to which paper we shall now content ourselves with referring.
Since the above was in type one of the Bills mentioned above has reached us. It relates to the claims to land, and is entitled
A Bill to Empower the Governor of New South Wales to Appoint Commissioners to Examine and Report on Claims to Grants of Land in New Zealand.
Whereas, in various parts of the island of New Zealand comprehended within the limits of the territory and government of New South Wales, tracts or portions of land are claimed to be held by various individuals, by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, or other titles, either immediately or immediately from the chiefs or other individuals of the aboriginal tribes inhabiting the same; and whereas, neither the chiefs nor other individuals of uncivilised people, such as inhabit the islands of New Zealand, have, nor can have, a right so to dispose of the territory occupied by them, as to convey to individuals not forming part of their own tribes, and not being aboriginal inhabitants of such territory, a permanent interest in the lands, or in any portion of the lands which are held by them in common, and for the advantage of the said tribes or aboriginal inhabitants; and whereas, her Majesty hath, by instructions under the hand of one of her Majesty's principal Secretaries of State, dated the fourteenth day of August, one thousand eight hundred and thirty-nine, declared her royal will and pleasure not to recognise any titles to land in New Zealand which do not proceed from, or are not, or shall not, be allowed by her Majesty; and whereas, it is expedient and proper to put beyond doubt the validity of all titles to land within the said islands of New Zealand, founded upon such purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, or other titles from the said uncivilized tribes, or aboriginal inhabitants of New Zealand; be it therefore declared and enacted by his Excellency the Governor of New South Wales, with the advice of the Legislative Council of the said Colony, that all titles to land in New Zealand which are not, or may not hereafter be allowed by her Majesty, are and shall be absolutely null and void.
II. And whereas, her Majesty hath, in the said instructions, been pleased to declare her Majesty's gracious intention to recognise claims to land which may have been obtained on equitable terms from the said chiefs or aboriginal inhabitants of the said islands of New Zealand, and which may not be prejudicial to the present or prospective interests of such of her Majesty's subjects as may resort to or settle in the said islands; and whereas, it is expedient and necessary that, in all cases wherein lands are claimed to be held by virtue of any purchase or conveyance, or any other title whatsoever, from the said chiefs or tribes, or any aboriginal inhabitant whomsoever of the said islands, a strict inquiry be instituted into the mode in which such lands have been acquired, and also into the extent and situation of the same, and also to ascertain all the circumstances upon which such claims maybe founded; be it therefore enacted, that it shall and may be lawful for the said Governor of New South Wales to issue one or more commission or commissions, and thereby to appoint commissioners, who shall have full power and authority to hear, examine, and report on all claims to grants of land in New Zealand; and each of such commissioners shall, before proceeding to act as such, take and subscribe before one of the judges of the Supreme Court of New South Wales the oath set forth in the schedule to this Act annexed, marked A; and the Colonial Secretary of New South Wales shall cause the said oaths, and also the oath to be taken by the secretary to the said commissioners, as hereinafter provided, to be respectively recorded in his office.
III. And be it enacted, that some fit and proper person shall, from time to time, as the same may become necessary, be appointed by the said Governor to perform the duties of secretary to the said commissioners; and the said secretary shall, before exercising any of the duties of his office, take and subscribe before one of the judges of the said Supreme Court the oath set forth in the schedule to this act annexed, marked B.
IV. And be it enacted, that it shall be lawful for the Governor of the said colony, as often as to his Excellency shall seem fit, to refer the claims of all persons to have grants of land within the is said lands of New Zealand executed to them, in due form of law, in fulfilment of her Majesty's gracious intention to the said commissioners, to the end that all such claims may be duly examined and reported upon for the information and guidance of the said Governor; and the said commissioners, or any two of them, shall proceed to hear, examine, and report on such claims in manner hereinafter mentioned: provided always, that nothing herein contained shall authorize the said commissioners to receive or report upon any claims but such as shall be referred to them by the Governor as aforesaid; and provided further, that all claims which shall not be referred in writing to the colonial secretary of New South Wales within six months after the passing of this Act, shall be absolutely null and void.
V. And be it enacted, that in hearing and examining all claims to grants as aforesaid, the said commissioners shall be guided by the real justice and good conscience of the case, without regard to legal forms and solemnities, and shall direct themselves by the best evidence they can procure, or that is laid before them, whether the same be such evidence as the law would require in other cases or not; and that the said commissioners shall, in every case, inquire into and set forth the price or valuable consideration, with the sterling value thereof, paid for the lands claimed, to any of the said chiefs, or tribes, or any aboriginal inhabitant of New Zealand, as well as the time and manner of payment, and the circumstances under which such payment was made, without taking into consideration the price or valuable consideration which may have been given for the said lands by any subsequent purchaser, or to any other person or persons, save such chiefs, or tribes, or aboriginal inhabitants as aforesaid; and if the said commissioners, or any two of them, shall be satisfied that the person or persons claiming such lands, or any part thereof, is or are entitled, according to the declaration of her Gracious Majesty as aforesaid, to hold the said lands, and have a grant thereof made and delivered to such person or persons under the great seal of the said colony, they, the said commissioners, shall report the same, and the grounds thereof, to the said Governor accordingly; and shall set forth the situation, measurement, and boundaries by which the said lands shall and may be described in every such grant; provided, however, that no grant of land shall be recommended by the said commissioners which shall exceed in extent acres, or which shall comprehend any headland, promontory, bay, or island, that may hereafter be required for any purpose of defence, or for the site of any town, nor of any land situate on the sea-shore within yards of high-water mark, nor of any land situate within miles of the mouth of any river navigable for vessels of more than fifty tons burthen, nor of any land which, in point of situation or otherwise, would have been, if situated in New South Wales, not open to the selection of settlers, under the Government regulations which were in force on the first day of July, one thousand eight hundred and thirty-one; provided also, that nothing herein contained shall be held to oblige the said Governor to make and deliver any such grant as aforesaid, unless his Excellency shall deem it proper so to do.
VI. And be it enacted, that the meetings of the said commissioners shall be holden at such place as the said Governor shall from time to time appoint; and the said commissioners shall proceed with all due dispatch to investigate and report upon the claims referred to them.
VII. And be it enacted, that it shall and may be lawful for the said commissioners, upon receiving any such claim as aforesaid, to appoint a day, by notice in the New South Wales Government Gazette, or in any gazette or newspaper published in New Zealand, for inquiring into such claim, and to issue summonses requiring all such persons as shall therein be named to appear before the said commissioners at the day and time therein appointed, to give evidence as to all matters and things known to any such person respecting such claim, and to produce in evidence all deeds, instruments, and writings, in the possession or control of any such persons, which they might by law be required and compelled to give evidence of, or to produce in evidence in any cause respecting the like matters depending in the Supreme Court of New South Wales, in so far as the evidence of such persons, and the production of such deeds, instruments, and writings, shall be necessary for the due investigation of such claim depending before the said Commissioners; and that all such evidence shall be taken down in writing, in presence of the witnesses respectively giving the same, and shall at the time be signed by them, or, in the case of their refusing or being unable to sign, by the secretary to the said commissioners; and that all such evidence shall be given on oath, which oath it shall and may be lawful for the said commissioners to administer to every person appearing before them to give evidence; and that any person taking a false oath in any case where an oath is required to be taken by this Act shall be deemed guilty of wilful and corrupt perjury; and being thereof duly convicted, shall be liable to such pains and penalties as by any law now in force any person convicted of wilful and corrupt perjury is subject and liable to: provided always, that in all cases in which it may be necessary to take the evidence of any aboriginal native who shall not be competent to take an oath, it shall be lawful for the said commissioners to receive in evidence the statement of such aboriginal native, subject to such credit as it may be entitled to from corroborating or other circumstances.
VIII. And be it enacted, that whenever any person who, being duly summoned to give evidence before the said commissioners as aforesaid, his or her reasonable expenses having been paid or tendered, and not having any lawful impediment allowed by the said commissioners, shall fail to appear at the time and place specified in such summons, or after appearing shall refuse to be sworn, or to answer any lawful question, or to produce any deed, instrument, or writing which he or she may lawfully be required to produce, or, without leave obtained from the said commissioners, shall wilfully withdraw from further examination without a satisfactory excuse being given to the said commissioners for such default, or, appearing, shall refuse or decline to be examined or give evidence according to law touching the matter in question, it shall such may be lawful for the said commissioners, and they are hereby authorised and empowered, to issue their warrant for the apprehension of such person, in order that he may be brought before them to give evidence touching such matter as shall be in question for which he shall have been summoned as aforesaid; and it shall further be lawful for the said commissioners, if such person shall not show sufficient cause to the satisfaction of such commissioners for such default, to commit such person to prison, there to remain without bail or mainprise for any time not exceeding days, or in lieu of such imprisonment to pay such fine, not exceeding pounds, as the said commissioners shall impose, which fine shall go towards the expenses incurred in summoning the person so fined.
IX. And be it enacted, that the said commissioners and their secretary shall and may receive for their own use such salaries as the Governor of New South Wales for the time being shall direct and appoint; which salaries respectively it shall and may be lawful for the said Governor to order and direct, by warrant under his hand, to be paid from and out of the public treasury of New South Wales; and the same shall be the whole of the remuneration of the said commissioners and secretary, and every one of them respectively, for and in respect of their said offices.
X. And be it enacted, that there shall be paid to the secretary of the said commissioners, by every person making a claim to a grant of land which shall be referred by the Governor to the said commissioners for examination, as hereinbefore provided, the several fees specified in the schedule to this Act annexed, marked C; and the said secretary shall duly account for all fees so paid to him as aforesaid, and shall pay the same into the hands of the colonial treasurer of New South Wales, or the treasurer of New Zealand, on the first day of every month, to be appropriated to the public uses of the said colony, and in support of the government thereof.
George Gipps, Governor.


Published August 15, 1840

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