I now come to the third part of the subject—that is to say, the unsettled cases, in which I shall propose that some further provision be made—before proceeding to consider the question of a general measure.

Strictly speaking, there are only twelve unsettled claims arising out of purchases made by Europeans from the Natives. This statement, however, requires some explanation. I exclude in the first place from the class of unsettled claims those cases in which persons holding grants which have been duly called in by the Attorney-General have either failed to produce their grants for examination, or have not made any claim, or have not made any survey of their claims as the Act requires. I also exclude cases in which all that is wanted before the issue of the grant is the completion of surveys now in progress, or in which certain specified conditions have yet to be and will be fulfilled. I also exclude the Poverty Bay claims, which are unsettled not by reason of the default of either the claimants or myself, but which it is simply impossible to settle yet owing to the Natives' repudiation of their contracts under circumstances detailed in my report to the Governor dated the 24th February, 1860, printed at page 5 of this year's Sessional Papers, E.-No. 1, section 1 (Despatches). And, of course, I exclude claims which were, excluded by the Legislature and could not be investigated at all. Yet it is in this last class that the cases are to be found where, I believe, justice most requires some relief to be given. They are and will be to the end of time "unsettled claims" unless this be done; no Act which excludes them will ever lay their ghosts.

It would prolong this report to an unnecessary length if I were to state every case in which I think special provision should be made, or in which Committees of the Legislature have suggested relief. I propose, therefore, to take for illustration a few cases out of the three classes of Old Land Claims, Pre-emptive Claims, and claims not belonging to those series. And if (as I suppose will be done) it should be determined to refer the question generally to Committees of the Assembly, I shall be able to offer whatever further information in detail may be required.

(1.) Old Land Claims.

The first instance I propose to take is the Ngunguru claim of Mr. Busby, because a Committee of the House of Representatives, which investigated it last session, reported that "the case, being one of hardship, should be considered among the cases which the Government have agreed to consider during the recess with a view to legislation thereon in the next session of the General Assembly." As the Committee did not state the grounds of their opinion that the case was one of hardship, I refrain from any observation except on one point. So far as I can understand the complaint of injustice which Mr. Busby makes against me in connection with this claim, the chief objection to the course I had taken which he appeared to have was that I had refused to allow the amount of payment given by him to the Natives to be multiplied by three, as the basis of computation for an award. Now, apart from the point of law decided by the Chief Justice, I adopted a far less stringent rule than the former Commissioners. Upon the principles which guided them the whole claim would have been absolutely rejected. Under the instructions they had received from the Governors of New South Wales and New Zealand it was their practice to reject altogether payments made after the 14th January, 1840. I take one case, which is to the point:—

"I appears, on the showing of the memorialist," said Commissioners Godfrey and Richmond in their report of the 27th July, 1842, "that there was only a promise made in the year 1839 of certain goods for a tract of land, which goods were not brought to New Zealand until a year and a half after Sir George Gipps's Proclamation forbidding all purchases of land from the Natives. We find it necessary to be very rigid in the rejection of all claims in which the larger part of the consideration for the land has been given to the Natives after the Proclamation, although an earnest may have been paid a long time previously, it having been apparent to us that contracts of such a nature have been made only with the intention of fulfilling them in the event of the Islands being taken possession of by the Crown."

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Whereupon the Governor decided as follows: "Let this answer, which I hold to be conclusive, be communicated to the claimant." And the claim was disallowed accordingly.

Now the rule may or may not have been a fair rule to lay down, but at any rate it is not easy to see on what grounds a claimant should not only have a different rule laid down for him, but obtain, under a less stringent practice, better terms than were granted to others.

I should mention that, in deference to the opinion expressed by the Committee of last year that the case was one which should be reserved for legislation this session, I have, as a matter of course, refrained from making any decision of my own since that time. The fact is that, when the Chief Justice confirmed my interpretation of the law, Mr. Busby appealed to the Governor. When the Governor refused to interfere, he appealed to the Secretary of State. When the Secretary of State refused to interfere, he appealed to the House of Representatives. And, lastly, he appealed to the Executive Government again to make him a grant under section 11 of "The Waste Lands Act, 1858." I hope that some tribunal will be found whose decision will be satisfactory to him at last.

However, on a question of "fair-play," or of "hard measure," there may exist two opinions; and what I propose in this case, therefore, is, either that the Assembly should settle it themselves, or that they should authorize it to be referred to a Judge of the Supreme Court, or that they should authorize certain issues to be made up for the decision of a jury. Under the existing Acts the Judges can only interfere either to decide appeals or to settle points of law; but a slight alteration (the points of law having already been stated and decided) would enable Mr. Busby to have the points of "equity and good conscience" in difference between us settled by the Chief Justice, or would authorize specific issues to be determined by an impartial jury impanelled for that purpose.

The second case which I take out of the Old Land Claims is also one of Mr. Busby's excluded by the present law.

Happening to read, as they were going through the press last year, the Land Purchase Commissioners' reports (printed in the Appendix to the Journals of last session, C.-No. 1), I was struck by a remark in one of Mr. Johnson's reports respecting the claims of Mr. Busby to land at Whangarei. These claims were partially heard by Commissioners Godfrey and Richmond in 1841, but on their calling upon Mr. Busby to produce Native witnesses he refused on the ground that "he would not, by producing them, give even an indirect sanction to the principle advanced by the Governor and Legislative Council that lands sold by the Natives to private persons were vested in the Queen." The Government thereupon informed Mr. Busby that the claims had been withdrawn from the Commissioners, and would not again be submitted for adjudication; and, the matter being referred to the Secretary of State on a memorial from Mr. Busby, Lord Stanley decided on the 21st April, 1843, that as Mr. Busby had taken his own course he must abide the consequences.

In the Land Claims Act of 1858 a clause was introduced enabling me, where possession had been taken for the Crown of land bought before the 14th January, 1840, by a claimant excluded under the Act of 1856, to estimate the claimant's outlay and direct a grant at the rate of one acre for every 5s. of expenditure. This clause was not applicable to Mr. Busby's Waipu claims; but it appeared to me that, if the Crown had gained any substantial advantage in the purchase of the Ruakaka and Waipu Blocks from the payments originally made by Mr. Busby, so that it might fairly appear that part of those blocks had come into our possession through a partial transfer to him of the Native title, he might properly obtain the reimbursement of his outlay. I therefore communicated, in August 1861, with Mr. Johnson (formerly District Land Purchase Commissioner at Whangarei), who informed me, in reply, that in a political point of view the transactions between Mr. Busby and the Natives had been of considerable advantage to the Government, and in a pecuniary point of view they had saved a sum of £400 to the public; that, although Mr. Johnson had suffered much trouble and anxiety from the opposition of Mr. Busby and the Land League, the original purchase made by. Mr. Busby was a fact which could not be evaded; and that, though no specific portion of land could be pointed out as having been obtained through the purchase, Mr. Johnson and the Natives had agreed that, as some of the latter had sold the Waipu to Mr. Busby, the outstanding Native claims should be acquired, leaving the Government to settle matters with Mr. Busby afterwards.

Under these circumstances it appears to me that section 12 of the Act of 1858 should be altered so as to allow compensation to be made: and Commissioners Godfrey and Richmond having found that the actual value of money and goods (multiplied by three) given to the Natives by Mr. Busby was £831 9s. 3d., that sum would, at the rate of compensation fixed by section 12, give him 3,325 acres. If this quantity were added to the quantity to which Mr. Busby is entitled at the Bay of Islands under the old grants which he has refused to surrender, and double survey allowance (to the extent of about 1,000 acres under section 42 of the Act of 1856) were also added for the land which is of a worthless character, I should be enabled to make him a grant of the whole of his land at the Bay in one block.

The third case I shall take from the series of Old Land Claims is that of John Jones, of Otago. The circumstances of the case may be briefly stated. The Investigating Commissioners found that the value of his payments to the Natives amounted to the sum of £3,957 15s., which according to the Schedule of the Land Claims Ordinance would have computed to 13,192 acres. They however recommended the maximum grant of 2,560 acres. In February, 1844, Mr. Jones appealed to the Governor for redress. On the 24th December, 1844, the Governor in Council referred the case to Commissioner Fitzgerald, with authority to recommend an extension of the award, and Mr. Fitzgerald recommended grants to be issued to the amout of 10,000 acres. The Governor immediately afterwards awarded 8,560 acres, and ordered a grant to be issued for that quantity, to be selected by the claimant. In October, 1845, the claimant sent up a plan of his selections accordingly, which were approved by Governor FitzRoy, and a grant ordered to be prepared for the 8,560 acres, as shown on the plan; the grant was, after a long delay, prepared by the Surveyor-General, signed by him, and sent in for Governor Grey's signature on the 12th September, 1846. But on the 19th December, 1846, the claimant was informed that the grant for 8,560 acres could not be issued, as the Governor did not feel justified in making a grant to any extent beyond the original maximum award of 2,560 page 631acres. A grant to that extent was accordingly issued to Mr. Jones. The claimant's plan reached Auckland on the 28th October, 1845; and if the grant had been made out at once, according to Governor FitzRoy's order, it would have been signed by him and have become one of those validated by the Quieting Titles Ordinance. The accident which enabled Governor FitzRoy's promise to be reversed thus cost the claimant 6,000 acres.

When I went to Otago in 1858 the claimant represented to me that his acceptance of the grant of 2,560 acres had been given in consequence of a promise by Sir George Grey that, in the event of the other land claimants who had obtained extended awards from Governor FitzRoy being confirmed in their grants, His Excellency would place Mr. Jones in the same position by the issue of grants for the residue of his 8,560 acres. I accordingly addressed Sir George Grey, then Governor of the Cape of Good Hope, asking him to be pleased to inform me what his recollection of the circumstance was; and I received a letter in reply stating that, though His Excellency could not, after so long an interval of time, precisely state what had passed at the interviews between himself and Mr. Jones, he knew that his intention was to convey to Mr. Jones that, while all he felt himself legally empowered to do was to issue a grant for 2,560 acres, the claimant's acceptance of that grant would in no respect injure any rights he might have if, upon a different system, larger grants were subsequently made to the land claimants. Sir George Grey added that Mr. Jones had a peculiar call on His Excellency to make this statement, as he had always preferred his claims with moderation, and shown a willingness to acquiesce in the decisions of the Government which ought not to prejudice any rights he might have. It may be mentioned that in the case of Mr. Fairburn, where a maximum grant of 2,560 acres was recommended by the Commissioners, Sir George Grey issued grants to the extent of 8,055 acres in 1849.

Upon Mr. Jones memorializing the Executive Government, he received a promise on the 30th September, 1861, that his case would be included in one of the classes of claims to be submitted for the consideration of the Assembly this session. It appears to me manifest that in cases like this relief should be granted. The question of amount would of course depend upon various circumstances: here, for instance, Mr. Mantel, whom I requested to afford any information in his power as the former Commissioner of Crown Lands for Otago, states (in his minute of the 6th September, 1861) that "Mr. Jones's selections were, by consent of the New Zealand Company's agent, allowed to be taken in such shapes as to give him the command of the land not granted to him."

(2.) Pre-emption Claims.

The cases which I shall take for illustration out of the Pre-emptive series are those of the late Mr. Forbes and Mr. Ormsby: though 1 should not have thought it right to recall attention to them after the decision of the Legislature in 1858, if it had not been understood last session that I was to bring forward again any instances in which I might myself consider relief ought to be granted.

These cases have been so often before the Assembly and the public that it seems unnecessary to refer to them in much detail. The principal points are as follows:—

Both claims were situated at Onehunga, within the site that was afterwards reserved for the township there. During the session held in the year 1847 Sir George Grey addressed a minute to the Legislative Council containing a proposal for the settlement of the Pre-emptive Claims generally. Part of this minute was as follows: "In those cases in which lands claimed under my predecessor's Proclamations are retained by Government for sites of towns and villages, any expenses which the claimants may have been justly put to shall be returned to them, and some compensation in the form of land in the village or town shall be made to them." Appended to the minute was a "list of claims reported on by the Commissioner, the title-deeds for which are now in course of preparation:" and the two claims in question were in the list.

Commissioner Matson had reported on them in May, 1847, recommending a grant of 30 acres to Ormsby, and of 7a. 3r. 30p. to Forbes. In the following October the Government took possession of Onehunga as a location for the pensioners, and it was then found that "the greater portion of the land recommended to be granted by the Commissioner had been required for the pensioner village;" so the reports (with others in the same list) were referred back to the Commissioner, to state the amount to be awarded as compensation for the land taken, and the quantity of land remaining which should be granted to the claimants. Eventually a grant was issued to Ormsby for 5 acres (25th October, 1848), and to Forbes for la. 1r. 5p. (26th May, 1849); and compensation offered to Forbes of £12 19s. 4d., and to Ormsby of £35 7s. 3d. An inquiry into all the Onehunga claims afterwards took place under the following circumstances: The Governor, finding that the "cases had been dealt with by the Surveyor-General each upon its individual merits and not upon any general principle, thought it possible that unintentionally some inequality might have crept into the compensation awarded to the different claimants;" and in October, 1849, he directed a Board, consisting of members of the Executive Council, to inquire into the subject and report, among other things, "what additional compensation should be awarded in any case where the amount of compensation already given might appear either insufficient or not fairly proportioned to what had been allowed to other claimants." The Board made their report, proposing a scheme of settlement which was approved by the Governor and ordered to be carried into effect: but it did not alter what had been done in the two claims under notice.

Mrs. Forbes (her husband being then dead) accepted the compensation offered, after fruitless endeavours to get her case reconsidered; and she was therefore excluded by the Act of 1856. Mr. Ormsby steadily refused the compensation, and brought this claim before me.

The 32nd section of the Act of 1856 limited the estimate of compensation to be given in cases where the land had been taken by the Government to an amount equal to £1 an acre; but as some of Ormsby's land had sold for £50 an acre I applied to Governor Browne for authority to hear the case under section 33, known as the "special clause." This section had been originally drawn in accordance with the following recommendation of the Select Committee of the House of Representatives: "It is proposed, as has been stated, to give a special power to the Commissioners, notwithstanding anything to the contrary elsewhere enacted, to hear and decide upon any case where special injustice may be proved to have been inflicted."

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The grounds upon which I proposed to hear the case specially were reported, as the Act required, to the Governor. The principal ground was that, "while the Government must he held always justified in making reserves for public objects (of which the Onehunga settlement was a legitimate instance), they had no right to impose ex post facto regulations on those claimants whose cases had been heard and determined before the Governor's Minute of 1847, nor to attach conditions that were not known when the claims were heard; and that the claimants whose names appeared in the list above mentioned had an equitable right either to the land they were reported for, or to equivalent compensation for it if reserved."

The Governor authorized the special hearing of Ormsby's case; but, when I was about to apply the 33rd section of the Act in an award, I was stopped by certain words in the section the significance whereof had at first escaped me.

In the Land Claims Bill as originally introduced the clause ran thus: "Provided always and not-withstanding anything in this Act contained, in any case in which under special circumstances, in the judgment of the Commissioners, manifest injustice shall have been done to the claimants, they may recommend," &c. In the Act as finally passed the section ran thus: "Provided always and notwithstanding anything in the Act contained, in any case not hereinbefore provided for, in which under special circumstances," &c. The words I have marked in italics destroyed, as will be readily seen, all the effect of the section as originally introduced, and practically made it a dead-letter. The several classes of claims had been carefully provided for in the ordinary sections, and exact limits to my authority prescribed. There really was no "case not hereinbefore provided for," except a few which could easily be dealt with under the general power given to me by section 50: of course I could not apply that general power in evasion of the restriction in section 33; and thus, when I found I was precluded from using section 33 in the cases where the ordinary sections were in my opinion insufficient to do justice, I refrained from using it at all.

In proposing the Amending Bill of 1858 I introduced the following provision: "In any case falling under the provisions of the 32nd section of the Act of 1856, where the land alienated by the Government may have formed part of any reserve for a town, the Commissioners may estimate the compensation to be given by the actual value of the land at the time of the reserve, as nearly as they may be able to ascertain the same." This provision was however rejected by the Legislature, and the excluding clause of 1856 with respect to persons who had accepted compensation renewed in stringent terms.

Mr. Ormsby has died since then, and his case remains unsettled. There are of course many other cases in which the excluding or restricting clauses are held by the claimants interested to be a great injustice; but, as these depend on the consideration of a general principle, they will be referred to presently, in the next section of this report.

(3.) Land Claims not belonging to the Old Series, or Pre-emption Series.

The only case I shall take in this class is that of Messrs. Henderson and Macfarlane, to which I referred particularly in addressing the House on Mr. Carleton's Bill of last session. The circumstances were these:—

The claimants had a schooner, which the Natives wanted, and for which they offered a block of land at the Whau (one of the estuaries of Waitemata Harbour). Governor Fitzroy made the following Minute sanctioning the transaction: "In consideration of the various circumstances connected with Mr. Henderson's exchange of his schooner for land, I will consider his a special case and give him a Crown title to one-half the quantity claimed, upon his furnishing a sufficient description of the boundaries.—R. F.—October 8, 1844." The claimants thereupon concluded the arrangement with the Natives, gave them the vessel, had the land surveyed, sent in the survey to the Government, and claimed their grant. The plan was referred to the Surveyor-General on the 2nd March, 1846, with directions, if he was satisfied with its correctness, to prepare a grant in compliance with Governor Fitzroy's minute. The Surveyor-General required certain things to be done, lines cut, and so forth; this was obeyed and the plan sent in again, the contents as finally shown being 17,784 acres. The Surveyor-General pronounced the survey a very good one; and as to the extinguishment of the Native title it has never been disputed to this day.

But the grant, nevertheless, was not issued. In 1853 the claimants—apparently getting tired of waiting—asked that the claim might be settled by repaying them their mere outlay. The Government agreed to have the outlay ascertained, but in the meanwhile took possession of the land and proceeded to sell nearly 7,000 acres of it at 10s. an acre; the claimants having themselves to buy upwards of 5,000 acres to secure large property they had placed on the land. Some months afterwards the Surveyor General sent in his estimate of their outlay, amounting to £970; but the money was never paid.

When the claim came before me I tried various ways to settle it, but I gave it up at last. The claimants were always willing to accede to anything I might decide, and to submit to an award whatever it might be. But I could not satisfy myself that the Act would enable a fair award to be made. Although it did not in strictness belong to the "Pre-emptive Claims " (no actual certificate of waiver having been issued under Governor Fitzroy's Proclamations of 1844), and might therefore have been heard under section 33 without coming within the letter of the restrictive words above mentioned, in reality such a course would have been a mere evasion of the restriction, the claim being virtually one arising out of the waiver of the Crown's right of pre-emption, though under a special agreement with the Governor instead of under his Proclamations. The Governor in fact enters into a specific agreement with private persons eighteen years ago, that if they extinguish the Native title to a certain piece of land and survey the boundaries, they shall have a grant for half of it. The conditions are fulfilled by one party, but instead of the Government fulfilling its part it seizes the-land and sells all the best of it. It appears to me clear that this transaction cannot be fairly settled by the provisions now in force relating to either Old Claims or Pre-emptive Claims.

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I have thus given illustrations of the cases in which further provision may properly be made, and it remains only to say how I would make it.

If the Government intend to introduce a Bill at all this session, I propose,—

(1.)	That this report be referred to a Select Committee;
(2.)	That, with the assistance of the personal knowledge of the claims possessed by many members, of the information afforded in detail by the annexed returns, and of evidence to be given by me, such Committee make a list of the cases which appear to deserve special consideration;
(3.)	That any claimant in the list should then have the option of three courses: either to have his case decided by the Commissioner, or to have a jury of six impanelled from the special jury lists, to assess the amount of land or compensation in scrip that ought to be granted to him, or to have any differences as to the fair interpretation of the law, where no jury is demanded, decided by the opinion of a Judge of the Supreme Court upon a case stated, not (as at present) by the Commissioner, but if he pleased by the claimant himself—in which he might draw all the inferences while the Commissioner should only take care of the facts;
(4.)	That either the surplus land be kept for satisfying any special awards, of (if the Provincial authorities prefer the surplus being immediately handed over) such awards run over Waste Lands;
(5.)	That any claimant coming in under the new Act should sign a declaration that he accepted it as a conclusive settlement;
(6.)	And, above all, that, if it be by any means possible, some understanding should be come to that at length an end will have been made of legislation on the subject.