Auckland Provincial Government Gazette.

2. Letter from Superintendent to Colonial Secretary.

Superintendent’s Office,

Auckland, 19th May, 1875.

SIR,

I have the honour to submit, for your consideration, a proposal for modifying certain arrangements authorised by the Minister for Public Works on the 4th March, 1872.

Mr. Mackay, who had apparently been acting as a private agent, was at that time about to be employed by the Government in the purchase of Native lands, and he, in his letter to the Minister for Public Works of the 24th January, 1872, suggested, in reference to the large blocks of land which he was to purchase from the Natives, that in some cases Europeans had claims to the timber on such blocks, and in other cases had made agreements with Natives regarding lands contained in the blocks, some of which leases or agreements might be valid, having been made subsequent to the issue of certificates of title by the Native Land Court, whilst others were invalid and unlawful, the agreements regarding them having been made previous to the issue of certificates of title for the lands comprised in such agreements.

Mr. Mackay admitted that a majority of the leases and agreements he alluded to were neither legal nor valid, yet many of these, he said, had been made with the assistance of officers of the Native Department.

The Minister for Public Works, in his letter of the 4th of March, 1872, apparently undertook that the Government would respect all such claims, whether they were legal or equitable, or the contrary, because he was fully aware of the influence which the holders of such claims might exercise in opposition to the sale of the lands by the Natives to the Government.

What I would propose is this: That whenever the Provincial Government takes over from the General Government a block of land purchased from the Natives, it should take it over subject to all agreements and leases with which it may be encumbered. In this case it, of course, would only be bound to respect those agreements and leases which were really legal and valid, and which had not been similarly made to appear to be so, whilst those leases and agreements which were not legal or valid could in no way bind the Provincial Government. But I would suggest that every such case should be referred to the Legislature, or to the Committee which represents that body, or to some Court, that it should be fairly and openly heard, and the amount of compensation to which the holder of it might be entitled, if any, should be ascertained, and be liquidated by a money compensation, voted by the General Legislature.

I propose this, because I think all the reasons that have been alleged for requiring the Province to respect the leases and agreements I allude to would be of no force if they were illegal or invalid in themselves.

For instance, in your telegram of the 6th instant, you make it appear that a reason for recognizing such agreements might be that the land included in them is, as the Government believes, swamp, unfit for the location of small settlers, and which would require a large expenditure of capital in draining it before it would be fit for occupation. But the Government can have no knowledge whether one or more of Her Majesty’s subjects really possess capital or not, and lands in which the population of this Province have a direct or contingent interest cannot be lawfully dealt with on any suppositions of this kind. The united capital of a number of small settlers may far exceed that of any one settler, and privileges of this sort ought not to be recognised, and cannot be maintained against the general rights of the public.

Again, if the agreement or lease was originally illegal, the approval of the Agent of the Government, or of the Minister for Public Works, cannot stamp such lease or agreement with legality. They are mere executive officers to carry out the law, not to make new laws to suit their own views. Any attempts to make such invalid leases or agreements legal can only produce a bad impression upon the public mind, as these attempts would possibly constitute a manifest evasion of that law which it was the duty of those authorities who allowed the evasion to have supported.

To make such unlawful leases legal would also be to reward wrong-doers and law-breakers, by recognizing their illegal acts, and this would be done at the expense of the rest of Her Majesty’s subjects, who had faithfully observed the law, and who deserved, in recognition of their conduct, to have been protected in the rights which the law secures to them, rather than to be deprived of those rights in order that privileges of great, possibly of enormous value, may be given to those of their fellow-subjects who had set the law at defiance.

I pass over the statement of the Minister for Public Works that it will be necessary to reward these breakers of the law to prevent them from exercising their influence over the Natives to the detriment of the Government and their fellow-settlers by preventing them from selling lands which the public necessity require should become the property of the community at large. Certainly people who could be guilty of such conduct ought to be punished instead of receiving large rewards.

I think also that, in each instance of the unlawful leases and agreements to which Mr. Mackay alludes, he should be directed forthwith to supply the Superintendent of this Province with the name of the officer of the Native Department who broker the law by negotiating such unlawful lease or agreement, in order that enquiries may be made as to whose authority this was done by, and why such exclusive privileges were given to some of Her Majesty’s subjects, and why—whilst the inhabitants of this country at large were, by carefully framed laws, shut out from dealings with the Natives regarding certain lands—other individuals, who were favoured, were allowed to carry on such dealings, and were even granted the assistance of those officers of the Government whose duty required them to prevent such dealings from being carried on. The more fair and legal any such transaction may have been, the more reason is there that a full enquiry should be made into it, in order that the blamelessness of the parties concerned in it may be openly and fairly established beyond all future question.

Upon the whole, therefore, I think I am doing that which is, in every respect, for the public interest, in recommending that, whilst all legal and valid agreements and leases should be scrupulously observed, all those regarding which any doubt exists should be strictly investigated, and that only such a money compensation should be given to the respective claimants as a full and impartial enquiry may prove them to be entitled to.

My observations apply equally also to all exchanges of land which the General Government propose to carry out without a full and open enquiry. I do not think that the Government will be justified in taking lands from any of the blocks purchased with public money, and giving them in exchange, at the will of the Native Minister, or any other person, to Europeans or Natives, until a full