MEETING OF THE BOARD OF COMMISSIONERS FOR THE MANAGEMENT OF THE PUBLIC LANDS IN DUNEDIN.

Otago Witness, Issue 154, 29 April 1854, Page 3

MEETING OF THE BOARD OF COMMISSIONERS FOR THE MANAGEMENT OF THE PUBLIC LANDS IN DUNEDIN.

The first meeting of this Board was held in the Hall of the Mechanics' Institution on Saturday, the 22nd instant. Present— Dr. Purdie ; Messrs. Hill, Reynolds, Chapman, Proudfoot, Adam, Rennie, j. Anderson, A. J. Burns, Harris, and E. M'Glashan. Mr. Reynolds having been voted to the Chair, preposed that Mr. Robert Chapman be appointed Clerk to the Board, which was seconded by Mr. Burns, and agreed to. The Chairman then read from the " Otago Witness" the notice calling the Board together, and stated that ' he had been intrusted with a message to the Board from his Honor the Superintendent bearing upon certain correspondence which had been received from the Commissioner of Crown Lands, together with tha Legal Adviser's opinions on the same. With the leave of the Board, he. would read these documents :—: — Dunedin, 22nd April, 1854. To the Board of Commissioners \ for the Management of the | Public Lands in Dunedin. ) Gentlemf.K, — At your first meeting, to be held to-day, and after having elected a Chairman, I would request your attention to communications that will be laid before you from the Commissioner of Crown Lands, who objects, on the ground of his own opinion, unsupported by the production of law advice, to the validity of the Otago Ordinance, Session I. No. 5, under which your Board is constituted. The opinion of the Provincial Solicitor upon this subject will also be submitted for your satisfaction. The Ordinance was sent up by me on the 15th ult., not indeed as a deferred Ordinance, waiting the assent of his Excellency the officer administering the Government, but because of a petition from the members of the Otago Council against the alienation of Moray Place, which was referred to me for my observations ; and in making these observations I enclosed the Ordinance, calling attention to its preamble and the" loth Section. You will observe that in the enumeiation of purposes for which sites in Dunedin were to have been reserved, and for which, so far as reserved, they could be claimed, is that of " fortifications.'" Xo such site is likely to be wanted, and if it were, has certainly not been provided for. To have done so in fact would have been absurd. Nevertheless as the word '• fortification 1 ' occurs, and is a concernment of the Crown alone, I should think it unadvisable absolutely to close any arrangement, by lease or otherwise, until his Excellency should hate seen the Ordiimnce, and had an opportunity to take or decline, as he sees fit. The islands at Port Chalmers and the heads of the harbour are reserved for fortiiieiuions, but the introduction of such within the town of Dunedin is simply meaningless. 1 would recommend you to loss no time in the passing of bye-laws, and also in receiving applications, because,, before any decision, upoii them could be arrived at, the Governor will have had time to act in the matter above refeired to. I would earnestly urge upon your "Board thp necessity of immediate aclion, as Conservators of all the properties narrated in the Ordinance, and in which you will have every support fiain the Provincial Government. I have the honor to be, Gentlemen, Your most obedient Servant, W. Cakqim., SuperintendentCrown Land Office, Otago, March 18, 1851. To His Honor the Superintendent ) of the Province of Otago. j Sifi, — As Commissioner of Crown Lands for this Province, I feel it my duty to caution you against taking any steps toward enforcing an Ordinance intituled the " Dunedin Public Lands Ordinance," 17 Viet. Session I. No. 5 (printed in the Otago Government Gazette of the 11th instant), as that Ordinance affects lands of the Ciown, and is therefore one which the Provincial Council is not competent to enact, nor yourself to sanction by your assent. I must also warn you — 1, of the serious responsibility, personal as well as public, which \ou will incur, should you persist in endeavouring to mislead persons into availing themselves of the provisions of an Ordinance bo unquestionably illegal, and in thereby exposing ihem to the infliction of the severe penalties imposed .by the Ciown Land Ordinances; and, % of the possible consequence* to yotir llouor iiioald

you venture to carry out your proposed appropriation of the revenue from Crown property. When the General Assembly shall have so decreed, I shall gladly resign to your or any hands the management of the Dunedin public lands. Until then, I have no power to divest myself of responsibility to that body for the faithful administration of those lands. No legislation on Crown lands by the Provincial Council can relieve me from that responsibility, — even your Honor is impotent to remove that responsibility. I therefore again • request that you will not, by the assumption of unconstitutional powers, compel me to take steps which may in any degree shake the confidence of the public in the wisdom of your Honor, or the ability of your advisers. „ I have the honor to be, Your Honor's most obedient and humble servant, Walter Mantell, Commissioner of Crown Lands. OPINION OF THE PROVINCIAL SOLICITOR. Dunedin, 20th March 1854. To His Honor the Superintendent. I have carefully read the letter of ISth instant regarding the Dunedin Public Lands j Ordinance, addressed to your Honor by the Commissioner of Crown Lands. It humbly appears to me that he has not adverted to the | real circumstances or state of the case. They are these : The New Zealand Company and the Otago Association entered into a contract, whereby, [ inter alia, it was agreed that the former would j sell land with rights of pasturage, and other ■ rights over lands within the Otago Block, to purchasers to be brought forward by the Association, and that the latter would bring forward those purchasers. One of the rights stipulated for, as a condition of the Association so doing, and expressly arranged and settled before they would, or did, bring forward a single purchaser, was, that due provision should be made of land , for certain 'specified purposes peculiarly beneficial to the v settlers in Otago. A. public right was thereby established in > favour of, and proper to, the community. Every individual purchaser acquired with the absolute right to his own land, a title along with the other members of the community to enforce, preserve, and regulate such public I right. The Ordinance in question does no \ more. > At the retirement of the Company, the lands in question, over which this public right extends, did not belong to the Company. They belonged equitably to the people of Otago. If the.Company had any right in them at all, it was a right in trust only ; and consequently j the Crown, to which the lands of the Company reverted, subject to any contract then subsisting, acquired no greater right than the Company then held. At the most, the Company were merely Trustees for the Otago settlers. The substantial interest in these lands belonged to the latter ; for whose proper and peculiar benefit and advantage they had been, for oner- j ous considerations, by contract of sale, reserv- i ed and destined. The powers specially given to the General Assembly over the waste lands of the Crown, indisputably, in my humble opinion, do not extend to the lands in question. These powers relate, I think, to waste lands to which the Crown possesses "an absolute right of property — and not to those subject to existing contracts. For the powers given are "to make laws for regulating the sale, letting, disposal, and occupation" of the land; which unquestionably could not have been given with relation to land already appropriated to specific uses under contract. Upon the whole, I am- unable to discover any want of power in the Provincial Council of this Province, with consent of Government, to regulate the occupation of lands which-equitably belong to their constituents as a community. The Provincial Council have passed the Bill ;

your Honor, in the exercise of your discretion, I has assented to it; and, in pursuance of one of I its provisions, a public meeting has been called i to appoint Commissioners for carrying it into execution. I presume, however, when that is done, it is your intention to delay further action under the Ordinance, until it be submitted to the officer administering the Government. J. M'Glashan, * Provincial Solicitor. Crown Land Office, Otago, 15th April 1854. I To His Honor the Superintendent. j Sir, — I have now the honor, in reply to your j Honor's letter of 21st March ult, to inform you, that having carefully perused the opinion 1 of the Provincial Solicitor then forwarded to 1 me, I have failed to perceive in it any proof of I the legality of the " Dunedin Public Lands j Ordinance." Not having, as your Honor is J aware, the benefit of legal advice, I have trans- ! mitted my remarks on this Ordinance and on j the opinion of the Provincial Solicitor for submittal to the Attorney-General of New Zealand. I however fully concur in the Provincial Solicitor's closing suggestion, and sincerely hope that your Honor will see fit, by acting in accordance with it, to abstain from the immediate enforcement of an Ordinance, of the legality of which your legal adviser does not seem confident: and I respectfully submit that no good result can follow from an opposite course. • If, however, your Honor has determined to ; attempt to carry out the Ordinance in question, \ I would suggest that, to save loss to desirous ! . settler^ some member of the Executive Coun- | cil, who may have advocated the measure, j should be the first to take possession under its ' ■ provisions. I , The case can then be dealt with in such a ' manner as may confine the loss to that indivi- ' , dual, and deter others from violating the law. I I have the honor to be, j Your Honor's | Most obedient humble Servant, j Walter Mantell, Commissioner.