7. For the time the question dropped, and the Secretary of State for the Colonies issued the circular of the 9th June, 1890, which was taken verbatim from the report of the Committee already referred to. (Appendix B, Nos. 8 and 9, and enclosures.)
8. The Colonial Office no longer draws a distinction between the properties (a) and (b), but maintains that as the military authorities have only a right of user in Colonial military Crown lands, the value of that right should alone be valued and held available towards the provision of other similar properties. War Office still adheres to its opinion that the saleable value of the properties is the value that should be recorded and held available for the provision of other similar properties required for Colonial defence. (Appendix B, Nos. 10 to 21.)
9. The question in dispute, therefore, was, and is, as follows:—On what principle should Colonial military Crown lands, no longer required for Colonial defence, be valued on their surrender to the Civil Government, with a view to the provision of other properties required for the defence of a Colony. This is a general question applicable to many Colonies.
10. In the case drafted by the Colonial Office for submission to the Law Officers, the above general question, which is the sole question for reference, is not directly submitted for opinion at all, though submissions 2 and 3 might be held indirectly to involve it. The questions submitted in the Colonial Office case are:
(1.) "Whether the Hong Kong lands, and Colombo reserves referred to in Eastern No. 61, or either of them, are military properties within the meaning of the memorandum enclosed in the circular despatch of 9th June, 1890?
(2.) "How much of the market value of the site of the Murray Battery at Hong Kong, or of the reserves at Colombo, is the Colonial Government, according to the legal meaning of that memorandum, bound to pay (or record for future payment), in order to obtain possession?
(3.) "If the effect of the memorandum would be to make the Colonial Government liable for the entire market value of the freehold, would such an arrangement, as between private persons having joint interests of the nature possessed by the War Office and the Colonial Government, be legally enforceable against the freeholder who had not intended that the documents should have that meaning?
(4.) "Under existing circumstances is the Colonial Government legally bound by the assent of the Secretary of State to this memorandum?
(5.) "As the question is one between public departments, I am to ask you to favour Lord Ripon with any suggestions that may occur to you for the settlement of the difficulty.
(6.) "A somewhat similar question has arisen in Natal, where 324 acres are held by the Secretary of State for War, under a deed of which a copy is enclosed (together with an opinion of the acting Colonial Attorney-General). Some part of this land is not used or required for the service of the Ordnance Department (nor the service of the Secretary of State for War), and is urgently required for civil purposes. I am to ask whether under the terms of this deed, the military authorities are legally entitled to retain land which is not required for military purposes?" (Paragraphs 4, 5, 6, Colonial Office draft case.)
11. No. 1 apparently relates to a totally different question than that which formed the subject of the annexed correspondence, viz., whether certain Colonial military Crown reserves are held on the same terms as the Colonial military Crown lands dealt with by the Committee already quoted. This question has not yet been before the Secretary of State, and until it has been fully discussed by the departments concerned, it would be premature to refer it to the Law Officers.
12. No. 2 seems to ask what the financial result of the application of the principle in dispute would be in Hong Kong and Ceylon in regard to two special properties, a question which the Law Officers obviously could not answer, without possession of data which are not before them.
13. No. 3 involves a fallacy. There is no analogy between the settlement of the conflicting and antagonistic interests of private persons, and the equitable administration of Colonial military Crown lands with a view to the defensive interests of Colonies. In the latter case, it is clearly understood that the money involved can only be spent in and upon the Colony itself. The valuation does not involve expenditure, it merely earmarks and provides the funds that may be made available, should expenditure become necessary, without adding to the taxation of the Colony or touching its current revenues, thus enabling effect to be given, to some extent, to the principle, laid down by the Colonial Office, that Colonies should provide for their own land defence as far as their means permit.
14. No. 4. This opens a very wide question, and one that is not involved in the present discussion, viz., how far a decision of the Secretary of State legally binds the Colonies it relates to?
15. No. 5 is too vague to draw forth any specific answer.
16. No. 6. This submission refers to a Natal question which has not been fully discussed by the departments concerned, and which is not therefore ripe for submission to the Law Officers, a course which may prove unnecessary. With regard to the last sentence of No. 6, it has always heretofore been held that the Secretary of State for War is the proper authority to decide whether particular Colonial military properties are still required for defence, or whether they can be surrendered. His authority in this matter has never been disputed, or discussed, and any present reference upon it to the Law Officers of the Crown seems unnecessary and undesirable.
17. It is obvious that the foregoing questions would not, even if the Law Officers were in a position to answer them, dispose of the discussion which has arisen as to whether the saleable fee-simple value of surrendered Colonial military properties should be recorded for future defence expenditure, or whether a lesser value, and, if so, what value should be recorded.
18. Under these circumstances the Secretary of State regrets that he is unable to concur in the "case" prepared in the Colonial Department. That case submits several matters which have not been fully discussed, and one which has not been discussed at all, while it does not directly submit the one question that calls for immediate settlement.
19. Should their Lordships still think it desirable to ask for the opinion of the Law Officers on a matter which involves no point of law, and which is simply a question of the equitable administration of Colonial military Crown lands for the purposes of Colonial defence, then Mr. Campbell-Bannerman would suggest that the accompanying case, which is strictly confined to the question in dispute, supported by the whole of the correspondence bearing upon it, should be submitted to the Law Officers for their consideration and opinion.
20. Before finally deciding to submit to the Law Officers a question which seems more properly to call for the decision of the Government, it may be as well to point out as briefly as possible the points from and to which the Colonial Office view of this matter has drifted between 1889 and 1892, and the position that the Government would prepare for itself if the present views of the Colonial Office were adopted.
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