I PUBLIC RECORD OFFICE
Reference :-
C.O. 885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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to the Land Sales Act, which prohibited the leasing of waste landa) were illegal and that the executive Government had no power without a fresh Act of the local Parlia- ment to apply their proceeds to the purposes of the alleged trust.
That on the other hand the English Law Officers in the time of Lord Russell, almost the whole of the Legislative Council, a respectable minority of the Assembly, four Colonial Law Officers, Messrs. Plunkett, Manning (now Sir Wm. Manning), Darval), and Wise, and some of the present ministry, conourred in holding that the lands were not waste lands, and were properly administered under the existing law.
That the opinions of the Colonial Law Officers would be found in the Colonial Parlia- mentary Paper of 22nd May 1860.
That it seemed probable that the House of Assembly, being one of the branches of the Legislature constituted under 18 & 19 Vict. c. 54., would pass resolutions declaring those lands to be "waste lands," and directing them to be treated as such.
That under these circumstances your Grace was desirous of obtaining our opinion on the following points :-
(1.) Are the lands which formerly belonged to the church and school corporation, " and on the dissolution of that body vested in the Crown, a portion of the waste lands " of the Crown transferred to the Legislature of New South Wales by the Imperial "Act 18 & 19 Vict. o. 54 ? "
"(2.) What steps could be taken to obtain the judgment of a court of law question ?"
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upon
this
(3.) Supposing these lands to be waste lands, what is the effect on existing leases or alienations heretofore made under the local Act (5 Will. 4. c. 11.).”
That having reference on the one hand to the claims of the Colonial Treasury (if any) on those lands, and on the other to the rights of the existing lessees or grantees, to the nature of the trust (if any) imposed on the Crown by the 36th clause of the charter, to the equitable interests (if any) of the institutions which benefited by that trust, and to the circumstance that by the local Act the management of the lands was conferred on the Governor without the concurrence of his Executive Council (or ministry), your Grace would be further glad to know whether the Governor or those acting under his authority would be liable to any legal consequences if after a resolu- tion of the House of Assembly declaring those lands to be waste lands of the Crown, he proceeded with or without the advice of his Government, either on the one hand to deal with the lands as they were then dealt with, or to treat them as waste lands (paying the proceeds to the proper Colonial department for the use of the Colonial Treasury), or to impound the annual receipts and stay the issue of further leases or grants until the question should be settled by an Act of the Legislature or a decision of a court of law.
And generally what course would we advise the Governor to pursue on the passing of such a resolution.
In obedience to your Grace's commands we have taken this matter into considera- tion, and have the honour to
Report
That we are of opinion that the lands which formerly belonged to the Church and Schools Corporation do not constitute a portion of the waste lands of the Crown, trans- ferred to the Legislature of New South Wales by the Imperial Act 18 & 19 Vict. c. 54.
The waste lands of the Crown, transferred by that Act, are in our opinion the same which are defined by the 23rd section of the prior Act 5 & 6 Vict. c. 36. That definition excludes all lands which, before the 22nd June 1842, had been “dedicated And we conceive the real question in this case to and set apart for some public use." be, whether the lands in question had been, in fact, dedicated and set apart for any public use before that date.
use
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We cannot agree with the suggestion made by Messrs. Martin and Lutwyche, that the words "some public use in this section ought to be construed with reference to the 3rd section of the same Act, so as to exclude all public purposes, not ejusdem generis with those mentioned in that section. The general expression some (or any) "public "does not occur at all in the 3rd section, and there is nothing to limit its generality in the 23rd, where it does occur. The fact that there were already lands of large extent dedicated to the general purposes of religion and education might very possibly be itself a reason for not taking power to make any provision for the same purposes.
The material facts are: by the charter of 1826, the lands in question had been dedi- cated to particular public uses, subject to a power reserved not to the Crown simpliciter,
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but to the King in council, to dissolve the corporation and reveat the lands in the Crown, "to be held, applied, and disposed of in such manner as should appear most conducive to the maintenance and promotion of religion and the education of youth "in the Colony." This power was exercised in 1833, and under various orders of the Crown, signified to successive Governors in the usual manner between that date and the passing of the Act of 1842, the appropriation and dedication of these lands, and their proceeds, to the purposes of religion and education in the Colony, was uniformly recognized and acted upon, and continued so to be when the Act of 1842 passed.
We cannot under these circumstances hesitate to express our entire agreement with the opinions given by the Colonial judges in 1831; by the English Law Officers in 1839; and by all the Colonial Law Officers, except Messrs. Martin and Lutwyche, since 1842; to the effect that these lands were on the 22nd June 1842 already "dedicated and set apart for a public use," and were therefore not within the definition of waste lands of the Crown contained in the section above referred to.
We think it proper to add (with reference to some other points suggested by the report of the Select Committee of the Legislative Assembly of New South Wales, dated the 24th April 1860), that we entertain no doubt of the legal validity of the charter of 1826, and of the Order in Council of 1833, founded thereon; and that we cannot adopt the construction of the 50th section of the New South Wales Govern- ment Act (18 & 19 Vict. c. 54., schedule 1) which is stated in the same report to be That section relates only to "territorial, casual, as contended for by Mr. Plunkett.
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".
revenues of the
and other revenues of the Crown from whatever source arising within the said "Colony."
If the lands in question were held by the Crown upon a public trust, for the purposes of religion and education, it is clear that they were not " Crown" within the meaning of that section. A civil "list" is to be accepted instead of the "revenues of the Crown" referred to, which clearly shows that the "revenues intended are revenues which the Crown but for such arrangement might rightly have taken for its own benefit.
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The only means which occur to us of obtaining the judgment of a court of law upon the question are such as might be afforded by proceedings in ejectment in the name of the Crown, against a lessee of some part of these lands, founded upon a notice to quit, which, if the opinion of Messrs. Martin and Lutwyche were correct, would entitle the Crown to recover; no lease of waste lands of the Crown in the Colony, granted since the 22nd June 1842 (unless by virtue of some prior contract or engagement) being valid in law. Leases made before that date, or afterwards made under prior contracts, as well as all alienations confirmed by the Colonial Act 5 Will. 4. c. 11., are under any circum- stances valid.
We think that it is competent for the Governor without any risk (if authorised by the Home Government so to do) to impound the annual receipts of these lands, and to stay the issue of further leases or grants until the question may be settled by an Act of the Legislature or by a legal decision. We do not think that a mere resolution of the House of Assembly would have any legal effect; and we are of opinion that the Governor would not be liable to any legal consequences if he should, notwithstanding such a resolution, continue to deal with these lands as they are at present dealt with. If, on the other hand, he should treat them as waste lands, and apply their proceeds to general public purposes, it is possible that by information in the Colonial Court of But we do not think that if he Equity such a misappropriation might be corrected. acted under orders from the Crown to that effect he would be subject to any personal responsibility.
In the event of such a resolution being passed, we humbly conceive that it would be very expedient to have the matter settled by legislation, and placed beyond the reach of controversy, without any unnecessary delay, as was done in the parallel case of the Canada Clergy Reserves, and that in the meantime the Governor should either continue to deal with the lands as they have been hitherto dealt with or should (as far as may be without injustice to individuals) impound the proceeds and stay the issue of further leases or grants.
His Grace the Duke of Newcastle, K.G..
&c.
&c. &c.
We have, &c. (Signed) WM. ATHERTON.
ROUNDELL PALMER.