Unauthorised Occupation requires explanation
The Sydney Gazette and New South Wales Advertiser
8 October 1836
The Official Gazette of the 5th instant, contains the Regulations adopted by the Governor and Executive Council, for the occupancy of vacant Crown Lands, both within and without the limits of the Colony, according to the late Act, entitled "An Act to restrain the unauthorised occupation of Crown Lands."
Before the appearance of these Regulations we had an article in progress on the subject, which we consider to be the more necessary now that these rules have been published - for several circumstances had struck us as requiring explanation, whilst there was time to afford it before the Act came into operation, on 1st of January next.
In the first place, we consider that an oversight has occurred in stating in the Act, that the Government Order of 14th October, 1829, which specifies the limits allotted for location at that time, is to determine the fact of a trespass under the recent law; that Order, which also contains a provisional division of the Colony into Counties, was merely a temporary one to meet present purposes, for at that time neither the general nor the County boundaries had been surveyed in many parts.
Since then this work has been accomplished, and the Colony divided and legally erected into Counties, excepting that portion which lies north of the Manning.
The accurate determination of the County boundaries would inevitably render incorrect the mere sketch of the limits of the Colony, as set forth in the Order of 1829, and it will be found by the Proclamation of 27th November, 1835, and by Major Mitchell's Map, that the general boundary is in some places far in advance, and in others greatly within the outline of the Colony, as described in the Order above-mentioned.
The consequence of this variance between the nominal and real limits of the Colony, owing to the reference made to an obsolete rule, will be great perplexity when applications for the temporary occupancy of the Waste Lands of the Crown come to be decided upon according to law - because in some parts Lands which are open to purchase by the Regulations of August 1831, and are within the Limits of location according to the Proclamation of 27th November, 1835, and to the Chart of the Surveyor General, will, in law, be without the bounds of the Order of 1829, and as such obtainable by a Ten Pound License only.
In other parts of the Territory, the, land applied for will be within those bounds, but nevertheless beyond the limits within which purchases may be effected, and leases obtained according to present regulations, and therefore must be rented of the Crown at the rate of 20s. per section.
With this uncertainty, no conviction could ever take place under the Act to restrain the unauthorised occupation of Crown Lands, for alleged possession contrary to that law, and its subsequent regulations.
The same clause which contains the oversight we have pointed out, exhibits another also, in so far as it states, that "any persons who shall be found occupying any Crown Lands lying waste in New South Wales within the limits allotted for location by the Government Order of 14th October, 1829," shall be subject to a fine.
Now, no mode of lawful occupancy of such land appears at all in the Act, the occupancy under any circumstances being declared an offence, consequently these lands are prohibited for temporary use to everyone.
To our view of the matter there appears to be an omission in the first clause, of the identical passage included in the opening section of the Regulations: the passage is as follows: - "without holding a lease under the Regulations of 1st August, 1831."
Had these words followed those we have given above as an extract, the lawful possession of the lands alluded to would have been, as we consider, duly declared; as it is the vacant Crown Lands within the limits of the Order of 1829 are withheld from everybody, for we cannot suppose the appearance of the missing essentials in the Regulations are sufficient to render their incorporation in the Act unnecessary, or their absence unimportant.
The country from the Manning River to the South bank of the M'Leay, commonly called the District of Macquarie, has at present no determined boundaries, although purchases are permitted on the banks of each of those streams, and temporary possession allowed under lease as elsewhere, but westerly the limits of location are unknown as totally by the Government as by the public, and in some cases this uncertainty we know has been the cause of disappointment to parties desirous of purchasing land in the neutral ground.
Before we leave this part of the subject we would recommend that this District or County of Macquarie be defined, so far at least as may save the public from the vexation which has been experienced for want of an understood boundary.
We "happen to know" that an application for a particular spot on the M'Leay River was refused because it lay without the bounds, yet it has since been sold, with adjoining portions, notwithstanding. The alleged boundary line of the district was at one time the dividing range south of the river, now it appears to be extended to the stream, but by what authority first one and then another limit is decided nobody knows.
The public suffer however, and injustice is committed, for one applicant meets a refusal, whilst another is permitted to select and put up the very spot the first was informed was without the boundaries.
The survey of the County of Macquarie is not yet sufficiently advanced to declare it legally a County, but such limits could be decided upon, as would obviate trouble and vexation to the public.
The Order of October 1829 temporarily sets out the boundaries of the Colony, and the Counties therein, "with a particular view to the convenience which it would afford to the public in describing their selections" - and no possible objection can exist we consider to the laying out of this particular County in the same way. Under the Act 7 Gul. IV. No. 4. the whole of the country North of the Manning, although open to purchase and lease at present, will have to be depastured under a license.
Returning to our observations respecting the insertion of the Order of 1829 in the recent Act of Council, we have only to remark, that as the erection of the Counties by the Proclamation of 27th November, 1835, made a nullity of the boundaries of the Colony as set forth by that Order, it is altogether useless for the purposes for which it has been inserted.
There is another portion of the Act which we think would have been improved had the power of information and complaint been vested in all parties aggrieved.
By the law as it now stands, illegal squatters can only be proceeded against upon the information of any Commissioner of Crown Lands. Clause 8 of the Regulations of the 1st instant provides that these officers are to visit their several districts annually, or oftener if necessary to carry the Regulations into effect.
An information arising from an annual visit will subject the offender to a fine of ten pounds; but before he can be caught again and mulcted in double that amount, he can hold the land in defiance of lease or license for twelve months, or if the station be very desirable, and the party peculiarly obstinate, the maximum rate of fine involving £50 a year can be paid without any inconvenience, and he continue to annoy his neighbour, and harass and steal his sheep and cattle in the same manner some squatters do at present.
We are at a loss to know in what way frequent visits during a year, are to be regulated; not by the judgment of the Commissioners we hope, unless it be influenced by complaint made to them by individuals who are suffering from the too close proximity of illegal Squatters; if it be so it is a most roundabout way, and far less effective than if the parties aggrieved could have disburdened themselves to the nearest Bench. The officers hitherto appointed Commissioners of Crown Lands, have been generally the Surveyors employed in the several districts of the Colony. Now, if these gentlemen are to be the bailiffs of the Act 7 Gul. IV., No. 4, we look upon it as certain that they must either neglect that duty, or else defer the measurement of the lands applied for to purchase, in their respective districts. In either case His Majesty's lieges go to the wall.
We consider this Act far too mild in its treatment of offences, a pecuniary penalty is a mere trifle to such as steal to pay it - illegal squatters should be subject to the severest and most lasting consequences, and we think that it would be better to appoint itinerary Police Magistrates for the express purpose of visiting, at frequent and uncertain periods, the squatters stations, both within and beyond the limits of the Colony, with power on the detection of an illegal squatter, or on failure of production of Lease or License, to arrest him as an individual incompetent to give a good account of himself, to seize the whole of the live stock and other property, and to destroy the house; restitution of property, in any case, becoming an act of clemency of the Executive Government, This may be considered by some persons a little too summary a way of dealing with the liberty of the subject, but if the magnitude of the evil it is intended to repress, be taken into account, as well as the powers conferred by the Vagrant Act, and the Bushranging Act, we think our suggestions will not be found to be oppressive - at all events honest people will have nothing to fear.
The names of all Lessees of Crown Lands, and of those who may have obtained Licenses to occupy stations beyond the limits of the Colony, should be published, and lists, containing also the extent of land so occupied by each, should be sent to the several Benches for general information. With such a document duly corrected from time to time, the magistrate charged with the duty would have no difficulty in discovering illegal squatters - and with respect to the expense of an itinerary police, we think that the fines and fees prescribed by the Act would ensure ample means for the purpose.
We shall be told, no doubt, by the Australian, that we do not possess a legal comprehension of the subject - that paper is perfectly welcome to say so, but we shall think nevertheless, that the Act to restrain unauthorised occupation of Crown Lands, is informal and defective, owing to the causes we have stated.
If, however, we are wrong on that subject, we shall not regret it, because it is better that our opinions should be erroneous, than that an Act of the Local Legislature should be wanting in any simple essentials.
Our object in making the foregoing remarks, is not a captious one, but has been induced by a wish to prevent the public and the Government from embarrassment, at a time when the difficulty could not be so well got rid of as at present.
We, therefore, suggest that the Act in question be amended by the insertion of the passage required to declare what is a lawful possession of Waste Lands within the limits - and by the substitution of an Order of Government, declaring the boundaries of the Colony according to the Proclamation of November last. If to this be added the limits, temporarily fixed, of the Country North of the Manning - the whole of the Territory now open to lease and purchase by the Regulations of August 1831, would receive a uniform administration of the law for the repression of squatting.
These matters appear to us indispensable, for without them the Act is inoperative the other suggestions which could be attended to, however, with the first, are not so strictly necessary to the correctness of the law, although we consider them improvements.
For our own security we annex a literal copy of the first section of the Act 7 Gul. IV, No. 4. as it appears in the Official Gazette, and we honestly hope that it may be found that the missing passage "withholding a lease under "the Regulations of 1st August, 1831, is an oversight of the printer, and not of the Legislature.
An Act to restrain the authorised ccupation of Crown Lands. Whereas the unauthorised occupation of the un- alienated Crown Lands of New South Wales is derogatory to the rights of His Majesty and His Successors, and conducive to many illegal and dishonest practices; and whereas the Laws now in force are insufficient for the speedy and effectual removal of intruders upon such Land: be it therefore enacted by His Excellency the Governor of New South Wales with the advice of the Legislative Council thereof that from and after the First day of January next any Person who shall be found occupying any crown lands lying waste in New South Wales, within the limits allotted for location by the Government Order of the fourteenth day of October.
One thousand eight hundred aid twenty-nine, either by residing or by erecting any tent, hut, or building thereon or by clearing, enclosing, or cultivating any part thereof, shall on conviction thereof, forfeit and pay the following penalties: that is to say, for the first offence any sum not exceeding ten pounds at the discretion of the Justice or Justices before whom the complaint shall be heard; for the second offence twenty pound; and for the third, and any subsequent offence, Fifty pounds, to be recovered in a summary way before any one or more Justice or Justices of the Peace, upon the information and complaint on oath of any Commissioner of' Crown Lands; provided always that no information shall be for any second or subsequent offence, until one month after a conviction for a former offence.