CO885-(13-15) — Page 157

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PUBLIC RECORD OFFICE

C.O.8

Reference :-

885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

1

1

MY LORD,

No. 176.

(WESTERN AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

(Received March 19, 1890.)

Royal Courts of Justice, March 1890. We were honoured with your Lordship's commands, signified in Mr. Bramston's letter of the 13th of February 1890, stating that he was directed by your Lordship to transmit to us for consideration the following documents relating to Western Australia:-

(a.) Land Regulations, 1882.

(b.) Land Regulations, 1887.

(c.) Provisional Agreement, 23rd October 1889, between Sir Malcolm Fraser, Colonial Secretary of the Colony, and Mr. Lapagė, a director of the Hampton Lands and Railway Syndicate. Limited.

(d.) Certain correspondence of 1869-70, respecting the waiver of the Crown Rights to

minerals.

2. That the 7th section of the Act 18 & 19 Vict. c. 56. empowered Her Majesty, by instructions under Her Sign Manual and Signet, or through one of Her Principal Secretaries of State, to regulate the sale, letting, disposal, and occupation of the waste lands of the Crown in Western Australia, and the disposal of the proceeds arising therefrom until Parliament should otherwise provide.

3. That the Syndicate was the lessee of certain lands in the Central Eastern District by a lease granted under the Regulations of 1882, and applied to purchase a portion of the land under Regulation 68 (4). That the land was remote from settlement, and the Governor, believing himself to be authorised by Lord Granville's despatch of 16th February 1870, agreed, as an inducement for the purchase, which was a beneficial transaction for the Colony, and calculated to promote settlement, to waive the Crown Right to the gold, silver, and other precious metals under the land, and to issue Crown Grants without the clause reserving such metals, which clause was by the Regulations prescribed for all Crown Grants. (Regulations 8, 108, 109, and form of Grant Schedule, page 41.)

That that arrangement was embodied in the Provisional Agreement (which accompanied Mr. Bramston's letter), which, it would be observed (see 13), required the assent and approval of the Secretary of State.

4. That your Lordship, however, doubted whether, without a further Regulation under section 7 of the Act of 1855, you had the power of assenting to the Provisional Agreement.

That your Lordship also doubted whether Lord Granville's despatch of 16th February 1870 could empower the Governor to waive the rights of the Crown, unless in accordance with some subsequent regulation for giving effect to the principle laid down in that despatch, and in any case it would seem that the approval conveyed by Lord Granville, if sufficient in itself, was superseded by the Regulations of 1882.

an assent

5. That in the event of your Lordship being unable legally to give to the Provisional Agreement, it had been suggested that the Syndicate might, independently of their leases, apply for a special concession "for promoting the settlement of the Colony" under Regulation 115 of 1887, with the special privileges embodied in the Provisional Agreement. But that doubts had been felt whether the Governor in Council could make such a concession except by means of a Crown Grant containing the reservation prescribed by Regulation 16 of 1887, and we were also referred to Regulation 17.

That Mr. Bramston was accordingly to ask us to favour your Lordship with our

opinion.

1. Whether, under the circumstances, and having regard to the Regulations of 1882, your Lordship was legally competent to assent to the Provisional Agreement.

2. If not, whether the Governor in Council could, for the purpose of promoting the settlement of the Colony, lawfully make a special concession under Regulation 115

A 61207-11. 25.-8/90.