Crown Lands Occupation Act of 1861 No 27a (NSW)
No. II.
An Act for regulat ing the Occupation of Crown
Lands. [18th October, 1861.]
WH E R E A S it is expedient t o m a k e pat ion of t h e Crown L a n d s Be it enacted by the Queen 's Mos t Exce l len t Majesty by and wi th t h e advice and consent of t h e Legislat ive Council and Legis la t ive Assembly of N e w South Wales in P a r l i a m e n t assembled and by t h e au thor i ty of t h e same as follows :—
1. The following t e rms wi th in inver ted commas whenever used here in shall unless t h e contex t otherwise indica te bear t h e mean ings
set agains t t h e m respectively—
be t te r provision for t he occu
" Crown L a n d s " — A l l lands vested in H e r Majesty which have no t been dedicated to any publ ic purpose or which have no t been g ran ted or lawfully cont rac ted to be g ran ted to any person in fee simple.
" First Class Set t led Dis t r ic ts " — T h e lands declared to be of t he Set t led Class unde r t h e Orders in Council .
" Second Class Sett led Dis t r ic ts " — T h e lands converted in to the
Set t led Class by the Ac t twen ty - th i rd Vic tor ia n u m b e r four
or t h a t may be hereafter so converted u n d e r th i s Act .
" Unse t t l ed Dis t r ic ts " — A l l other Crown Lands .
" O r d e r s in C o u n c i l " — T h e Orders in Counci l a n d Regu la t ions
from t ime to t ime issued unde r the Impe r i a l A c t n i n t h and
t e n t h Victor ia chapter one h u n d r e d and four.
" Old R u n " — A n y por t ion of Crown Lands wi th in the Second
Class Sett led or t h e Unse t t l ed Dis t r ic t s comprised in any unexp i red lease or license g ran ted or lawfully cont rac ted to be gran ted before t h e twenty-second day of Februa ry
one t housand eight h u n d r e d and fifty-eight.
" R u n "
" R u n " — A n y por t ion of Crown Lands comprised in any lease or license gran ted or lawfully contracted to be g ran ted on or after t he twenty-second day of F e b r u a r y one thousand
eight h u n d r e d and fifty-eight.
" M i n i s t e r " — T h e Minis te r for t h e t ime being charged wi th the
adminis t ra t ion of t h e Crown Lands .
" L a n d A g e n t " — A n y person duly appointed to sell Crown Lands .
" Appra i s emen t "—Se t t l emen t of ren t or va lue by appraisers appointed in m a n n e r prescribed by th is Act .
" Arb i t r a t i on"—Se t t l emen t of boundar ies b y a rb i t ra tors ap pointed in m a n n e r prescribed by th is Act .
2. On and after the passing of th is Ac t t h e Ac t s of Council e leventh Victor ia n u m b e r sixty-one a n d s ix teenth Vic tor ia n u m b e r twenty-n ine and t h e Orders in Council shall be repealed Provided t h a t n o t h i n g here in shall prejudice or affect a n y t h i n g already lawfully done or commenced or cont rac ted to be done t he r eunde r respectively or p reven t t h e several provisions of the said Orders in Counci l from b e i n g carr ied in to effect wi th respect to lands u n d e r lease or promise of lease made previously to t he twenty-second day of F e b r u a r y one thousand e ight h u n d r e d and fifty-eight du r ing the cu r rency of such leases as fully as if t h e same had no t been hereby repealed.
3 . The Governor w i th t he advice of t h e Execu t ive Counci l m a y
by proc lamat ion in t h e Gazette declare any Unse t t l ed Dis t r ic t or por t ion of such distr ict to be of the class of Second Class Set t led Dis t r ic ts and such distr ict or por t ion of district shall on such procla m a t i o n become and be of t he Second Class Sett led Dis t r i c t s unde r th i s Ac t Provided t h a t such proc lamat ion shall in no case affect exis t ing leases.
4. Ex i s t i ng leases of Crown Lands shall no t be renewed except
| u n d e r | t h e provisions | of th i s | Act . |
5. The Governor wi th t he advice of t h e Execu t ive Counci l may by notice in the Gazette w i thd raw from any old r u n or r u n any lands which m a y be requ i red for the site of any city town or vil lage or for any roadway for genera l traffic or for passage of stock or for access to back r u n s or for sale as con ta in ing improvemen t s be longing to any person other t h a n t h e lessee of such r u n or otherwise for sale or for t empora ry commonage for t h e use of any such city town or vil lage or for t h e work ing of any mines of gold or o ther minera ls or for any publ ic purpose whatsoever .
| 6. I n cases in which two or more persons en t i t l ed to leases unde r t h e Orders in Council or unde r th i s A c t m a y claim the same |
land the lease shall be g ran ted to t h e person whose r igh t the re to may have been or m a y be established after due inqu i ry to t h e satisfaction of t h e Governor or t he Minis ter and in any such case in which the r igh t of e i ther c la imant to a lease of t he land in d ispute shall not have been so established i t shall be lawful for t he Min i s te r to requi re such
| r igh t to be inqui red in to and de te rmined by a rb i t ra t ion | and | the | lease |
m a y be g ran ted in accordance wi th t h e award of such arbi t ra t ion .
| 7. I n any case in which t h e ren t of a n old r u n or any o ther m a t t e r requ i red by t h e Orders in Counci l to be | de termined by valuers |
| appoin ted in t h e | m a n n e r | there in prescr ibed | shal l no t have been | so |
| determined it shal l be lawful for t he Min is te r to direct t h a t such | ren t |
or other m a t t e r shall be de termined by appra i sement unde r t h e provi sions of th is A c t and the va lua t ion t h u s arr ived a t shall be as effectual as if made under t he provisions of t h e Orders in Council .
8. I t shall no t be lawful for any holder of any old r u n or r u n to obs t ruct any Governmen t Surveyor or o ther author ized officer in en te r ing on such r u n whenever such officer may requi re to do so nor to obs t ruc t or p reven t any person au thor ized by t h e Minis te r or by
such
such officer as he m a y empower in t ha t behalf from en te r ing upon such r u n searching for and removing gold and other minera l s or cu t t i ng and removing therefrom indigenous t imber or d igging and removing
gravel stone br ick ear th or o ther mater ia l . 9. I t shal l be lawful for any officer duly author ized by the Minis te r to m a r k on t h e g round the boundar ies whether und i spu ted or de te rmined after d ispute by decision of t he Governor or otherwise by competent au thor i ty of any old r u n or r u n of which no lease from the Crown shall be in force a n d the boundar ies so m a r k e d shall be and be held to be t h e boundar ies of such old r u n or r u n .
10. A n y Crown L a n d s n o t be ing comprised wi th in an old r u n
m a y be demised or let u p o n lease unde r and subject to t he provisions of th is Ac t or u n d e r t h e provisions of t he Gold fields Ac t twent ie th
Victor ia n u m b e r twenty-n ine or any o ther Ac t which m a y be passed
for t h e m a n a g e m e n t of t h e Gold fields b u t no t otherwise A n d t h e Governor wi th t he advice of t he Execu t i ve Counci l is he reby au tho rized in t he n a m e a n d on behalf of H e r Majesty to demise or lease any such Crown Lands as hereinafter enacted.
1 1 . Crown Lands m a y be demised by lease for any t e rms no t
exceeding t h e fol lowing—
for pas tora l purposes in t he f i rs t Class Set t led Dis t r ic t s one year
for pas tora l purposes in t he Second Class Set t led Dis t r i c t s or
t h e U n s e t t l e d Dis t r ic t s five years
for ferries br idges wharves quarr ies and for t he erect ion of
mach ine ry for saw mil ls b r i c k m a k i n g and o ther objects of
a l ike n a t u r e five years
For minera l purposes o the r t h a n gold m i n i n g four teen years
Provided t h a t l ands w ithin areas bounded by l ines bear ing n o r t h east sou th a n d west and d is tant ten miles from t h e outs ide bounda ry of any city or town con ta in ing according to t he t h e n last Census t en t housand inhab i t an t s or five miles from t h e outs ide boundary of any
town conta in ing according to t he t h e n last Census five t h o u s a n d inhab i t an t s or two mi les from the outside bounda ry of any town or vil lage hav ing according to t h e last Census for t h e t ime be ing one h u n d r e d inhab i t an t s or l ands set apar t for sites of towns or vil lages or for sale for ag r i cu l tu ra l purposes or otherwise for t he use or accommo dat ion of t h e publ ic shal l no t be open for lease for pas tora l purposes .
12. Leases of r u n s wi th in the f irst Class Sett led Dis t r ic ts m a y
be g ran t ed subject to t h e n e x t following condit ions a n d to t h e general
provisions of th i s A c t —
(1.) L a n d s shall n o t be le t in por t ions of less t h a n six h u n dred a n d forty acres or one square mi le except in special
cases hereinafter provided for.
(2.) Eve ry such lease shall be for t h e t hen cu r r en t year a n d
shall expire on t h e thir ty-f i rs t day of December .
(3.) Leases m a y be renewed annua l ly b y p a y m e n t between t h e first a n d the th i r t i e th day of September to t h e L a n d A g e n t of t h e district or to t he Colonial Treasurer of r en t for t he ensu ing year a t t h e ra te of two pounds per square mi le or such h igher r a t e as t he lessee m a y pay for t h e c u r r e n t year unless t h e lands be requi red for sale or for any publ ic purpose or for t he satisfaction of any pre-empt ive lease claims in r i gh t of new purchases and leases not so renewed
m a y be b r o u g h t to sale by publ ic auct ion.
(4.) Leases u n d e r the r egu la t ions of twen ty -n in th M a r c h one
t housand eight h u n d r e d a n d forty-eight shal l no t be
renewed u n d e r those regula t ions b u t may be conver ted in to
leases unde r th i s Ac t by p a y m e n t to t h e Colonial Treasurer
in
in Sydney or to t he L a n d A g e n t of the dis t r ic t no t la ter t h a n two m o n t h s from the publ ica t ion in t he Gazette of a notice to t h a t effect of r en t for t h e ensuing year at t h e r a t e of two pounds per square mile or such h igher r a t e as t h e lessee may now pay unless t h e land be required for sale or for any publ ic purpose or for t h e satisfaction of any pre
emptive lease claims which m a y arise u n d e r th is Ac t .
(5.) The holders in fee s imple of any lands m a y be allowed leases of Crown Lands adjoining to the i r respective proper ties wi thou t competi t ion a t t he r a t e of two pounds per section of six h u n d r e d and forty acres and to t h e extent of th ree t imes the i r own purchased or g ran ted lands if t he re be so m u c h vacant Crown Lands available Provided t h a t such Crown Lands shall be t a k e n in a block of r ec tangu la r form in which the ex te rna l lines shall be directed to the cardinal po in ts a n d if t h e coun t ry has been divided in to sections of square miles t h e n according to t he general sub divisions of t h e land as del ineated upon the publ ic maps in t he Surveyor General ' s Office and subject also to t he exclu sion of water necessary to t he beneficial occupat ion of adjoining lands Provided fur ther t h a t t he r en t to be charged for land so leased to par t ies not hav ing t h e r igh t to t ake six h u n d r e d and forty acres shall in no case be less t h a n one pound.
(6.)
I f t he re be two or more c la imants unde r t he last preceding condit ion of t h e same land t h e division of t h e l and amongst t h e m may be sett led by arbi t ra t ion Provided t h a t if such land be of less ex ten t t h a n six hund red and forty acres it m a y on an award be ing made be fo r thwi th occupied in accordance the rewi th and wi thout fur ther formal appor t ionmen t Provided also t h a t if a t t he expi ra t ion of th ree
m o n t h s from the date of a not ice in t he Gazette announc ing
to t h e several c la imants of por t ions no t less t h a n six h u n d r e d and forty acres t h e names of the i r compet i tors an award shal l no t have been ar r ived at and duly communi cated to the proper officer t he leases of t he lands so c i rcum stanced may be offered for sale by auct ion.
(7.)
Al l leases g ran ted unde r pre-empt ive r igh t shal l be notified in t he Gazette and if w i th in two m o n t h s from the date of
such notification t h e ren t for t he same shall no t have been paid to t he Colonial Treasurer or to the L a n d A g e n t of t he distr ict leases of t h e land shall be submi t t ed for sale by
auct ion.(8.) Crown L a n d s n o t previously u n d e r lease over which no pre-empt ive r igh t of lease shall have been exercised wi th in one year from the pass ing of th i s A c t m a y be p u t u p to lease at auct ion a t the L a n d Office of the district e i ther on applicat ion or otherwise b u t no such sale of leases shall t ake place wi thou t one mon th ' s not ice thereof having been
given in the Gazette.
(9.) The upset price of each lot shall be at the ra te of one pound per section of six h u n d r e d and forty acres or of t en shil l ings if half of t h e cu r ren t year shall have expired before t he day of sale and t h e full pr ice bid for each lot shall be paid a t t he t ime of sale.
(10.) A n y lease bid for bu t t he price of which may not be forth wi th paid shall t he r eupon be aga in offered for sale a t auct ion.
(11.)
(11.) The lease of any land which m a y have been offered for
sale at auc t ion and no t bid for may be obta ined on pay
m e n t of t he upse t pr ice to t h e L a n d A g e n t of t he district . (12.) The sale condit ional or otherwise of any por t ion of land unde r lease shall cancel so m u c h of t h e lease as relates to t he land so sold and to t h r ee t imes t h e area thereof adjoining the re to Leases m a y also be cancelled by t h e Min is te r for o ther sufficient reason and t h e ba lance of ren t from the da te of such cancel la t ion shall in e i ther case be re tu rned to t he lessee Provided t h a t t h e lessee of t he lands from which such sale shall be made shall be a t l iber ty ei ther to re ta in the r emain ing por t ion thereof pay ing however t he same a m o u n t of r en t as for t h e whole section or sur render t he same.
13 . The Governor wi th the advice of t h e Execu t ive Council
may g r a n t leases of Crown L a n d s in t he Second Class Sett led Dis t r ic ts
or in the Unse t t l ed Distr ic ts subject t o t h e following condit ions and
to t he general provisions of th i s A c t —
(1.) Leases of r u n s shall be conver ted in to leases for five years unde r th i s A c t by p a y m e n t to
t h e Colonial
Treasurer
n o t
la ter t h a n two m o n t h s from the date of a not ice in t h e
Gazette to t h a t effect of r en t to be de te rmined by appraise
m e n t of t h e fair a n n u a l value for pas tora l purposes of t h e
lands comprised in such runs Provided t h a t in es t imat ing such va lue ne i ther t h e cons t ruc t ion of dams or reservoirs nor t he lay ing down of grass nor t he m a k i n g of any other improvement by t he occupier shall be t aken in to account Provided also t h a t t h e ren t shall in no case be less t h a n t e n pounds per a n n u m Provided also t h a t u p o n such conversion as aforesaid such r u n s shall cease to be l iable to assessment
unde r t h e A c t twenty-second Victor ia n u m b e r seventeen. (2.) Leases of old r u n s m a y on the i r expi ra t ion be in l ike manne r converted in to leases for t h e t e r m of five years unde r th i s Act . (3.) The ren t shal l be payable to t h e Colonial Treasurer in Sydney for each year after t he first year on or before t h e thirty-first day of December of t h e year preceding Provided t h a t a fine shall be payable for t h e whole t ime du r ing which any r en t due shall r emain unpa id after t h a t da te at t he r a t e of e ight pe r c e n t u m on t h e a m o u n t if no t more
t h a n t h r ee m o n t h s in a r rea r and of t en pe r c e n t u m if more
t h a n th ree m o n t h s A n d if t h e r en t be no t paid a t or before t h e end of six m o n t h s after such da te together wi th such
fine t h e lease shall t h e n become forfeited. (4.) Leases shall not confer any r i g h t t o purchase by pre
emption.
(5.) Crown L a n d s may be resumed from lease for t h e site of any city town or vi l lage or for commonage for t h e same or for any publ ic purpose wha teve r a n d no compensat ion shal l be payable to t he holder of such lease for any such resumpt ion except ing re -payment of r e n t to a n ex ten t pro
por t ionate to t he area w i t h d r a w n a n d the period unexp i red
Provided also t h a t in any case of par t ia l w i thd rawa l t h e
holder m a y if he t h i n k fit s u r r e n d e r his lease and have t h e
full ba lance of r e n t refunded for t h e unexp i red portion, of t h e t ime for which i t was paid.
14. The Governor with t h e advice of t he Execut ive Council may procla im Pas to ra l Dis t r ic t s in t h e Second Class Sett led or Unse t t l ed Dis t r ic ts to be open for t h e formation of r u n s and may from t ime to t ime alter t he boundar ies of such Pas tora l Distr ic ts or of any such
district
| district now exis t ing a n d leases of such runs may be g ran ted | subject |
| to t h e n e x t following condit ions | Provided t h a t no district no t so |
procla imed shall be open for t he formation of such r u n s —
(1.) H u n s shal l in ordinary cases consist of not more t h a n twenty-five square miles b u t should t h a t area in t he opinion of t h e proper officer of t h e Government be insufficient in average seasons for t he pas tu rage of four t housand sheep or e ight hund red head of cat t le a r u n may be enlarged to whatever area not exceeding one h u n d r e d square miles
may be necessary for t h a t purpose .
(2.) Tenders for r u n s may be deposited in a box to be kep t for t ha t purpose at t he Office of t he Min i s te r which shall be opened periodically by a Board of Officers to be appointed for t h a t purpose by the Governor w i t h t h e advice afore
said and t h e person m a k i n g the earliest t ender for any r u n shall be ent i t led to a lease thereof Provided t h a t should two or more t enders for any r u n be opened a t t h e same t ime the lease shall be g ran ted to the person whose tender shall conta in t he offer of the highest p r e m i u m Provided also t h a t should two or more tenders embrace a por t ion of t h e same land the common bounda ry m a y be determined by arb i t ra t ion Provided also t h a t should such boundary
not be so determined within t h r ee m o n t h s of t h e date of a notice in t he Gazette informing the par t ies of t h e conflict by the i r t enders t h e whole of t he lands tendered for may be leased by auct ion sale Provided also t h a t should a r u n no t be occupied and stocked wi th not less t h a n two hundred head of ca t t le or one thousand sheep wi th in six mon ths or in t h e event of i ts be ing necessary to provide water by artificial means wi th in eighteen m o n t h s of t h e notification of t h e acceptance of t he t ende r t h e r u n shall be forfeited and may be leased by auct ion sale.
(3.) The Min i s te r may cause to be modified t he boundar ies proposed in any t ender so as to m a k e t h e r u n a compact block of r ec tangu la r form in which t h e ex te rna l l ines shall r u n east and west a n d n o r t h and south subject however to such deviations as t h e genera l features of t he count ry and t h e adopt ion of n a t u r a l boundar ies m a y requi re and subject also to the exclusion of wa te r nceessary to t he beneficial occupat ion of adjoining lands .
(4.) Tenders shall be in a form to be prescribed by t h e Governor wi th t h e advice of t he Execu t ive Council and shall contain (dear descriptions of t he boundar ies of t he runs applied for and the m a r k s or n a t u r a l features by which such boundar ies are indicated and also est imates of t he areas and pas tora l capabili t ies of such runs . (5.) Every tender m u s t be accompanied by a receipt shewing t h a t a sum of money equivalent to twenty-five per cen tum of t h e ren t offered in such t ender has been deposited in the Colonial Treasury and in t h e event of the u l t imate acceptance of t he t ender t h e tenderer shall receive credit for t he a m o u n t of t h e deposit in t he first year ' s r en t and
in t he event of t he tender being rejected the a m o u n t shall be re tu rned to t h e tenderer .
(6.) R u n s may be held from year to year subject to a r e n t of t en pounds per a n n u m payable in accordance wi th con dit ion n u m b e r th ree unde r section th i r t een of th i s Act and to assessment a t t he same ra t e and subject to t he same condit ions as t h e r u n s unde r the Act twenty-second Victoria
number
n u m b e r seventeen u n t i l a n appra isement shall be made of t he fair a n n u a l va lue thereof for pas tora l purposes where upon t h e holdings shall be conver ted in to leases u n d e r section t h i r t een of th i s A c t and the r u n s shall cease to be l iable to such assessment as aforesaid.
15. I f in any case it shall appear t h a t a t t h e t ime of t he
appra isement any r u n in i ts n a t u r a l s ta te was incapable of sus ta in ing four t housand sheep or e ight h u n d r e d head of catt le in all seasons of t he year t he lessee thereof may du r ing t h e first qua r t e r of t he last year of h is lease apply for a re-appra isement thereof and if i t shall then appear t h a t such r u n has by t h e adopt ion of artificial means been rendered capable of pe rmanen t ly depas tur ing the said n u m b e r of sheep or cat t le or if it shall appear upon a l ike appl icat ion in respect of any r u n of whatever capaci ty t h a t such r u n has by adopt ion of artificial means been rendered capable of pe rmanen t ly depas tur ing an addi t ional n u m b e r by one half or more beyond the n u m b e r of sheep or cat t le which the r u n in i ts na tu r a l s ta te was capable of depas tur ing t h e
dura t ion of t he lease shall be ex tended to t en years a t t h e same ren t and on t h e same t e rms and condit ions as the original lease.
16. The holders of l and in fee simple wi th in t h e Unse t t l ed and
Second Class Set t led Dis t r ic ts shall be allowed pre-empt ive leases of Crown Lands adjoining to the i r respective propert ies to the ex ten t a n d in l ike m a n n e r and subject to t h e l ike condit ions as hereinbefore provided in respect of holders of l ands in fee simple in t he Firs t Class
Set t led Dis t r ic ts .
17. Forfeited or vacated old runs or runs may be submi t ted tosale by auct ion in leases for t he t e r m of five years a t t he m i n i m u m upset r en t of one pound pe r a n n u m for every square mile of est imated area and t h e whole r en ta l for t h e first year shall be paid in advance a t the t ime of sale and any such r u n if unsold m a y be aga in p u t u p for sale in l ike m a n n e r a t a reduced upset ren ta l no t be ing less t h a n t en pounds and any such r u n if still unsold m a y thereaf ter be leased a t t h e upset ren ta l last men t ioned to any person who may apply for t he same or may be again submi t ted to sale by auct ion.
18 . The sale condit ional or otherwise of any land wi th in any lease g ran ted under th i s Ac t in t h e Second Class Set t led Dis t r ic ts or in. the Unse t t l ed Distr ic ts for pas tora l purposes shall cancel so m u c h of the lease as relates to t h e land so sold and to t h r ee t imes the area thereof adjoining there to which las t -ment ioned area m a y be held by t h e new purchaser under pre-empt ive lease to which all condit ions and
liabilities a t t ached to pre-empt ive leases in t he F i r s t Class Set t led Districts shall apply.
19. A n y person dr iv ing horses cat t le or sheep along any t rack
used or required for t h e purpose of t rave l l ing may depas ture t h e same on any Crown Lands w i th in the dis tance of one half mile of such t r ack no twi th s t and ing any lease of any such lands for pastoral pu r poses Provided t h a t unless prevented by ra in or flood such horses or cat t le shall be moved at least seven miles and such sheep a t least four miles in one and t h e same direction wi th in every successive period of twenty-four hours .
20. Lessees of Crown Lands for pas tora l purposes ei ther in to cu t a n d use such t imber and
t h e Set t led Dis t r ic ts or in t h e Unse t t l ed Dis t r ic ts shall be pe rmi t t ed
mater ia l for bu i ld ing and other pur
poses as m a y be requi red by t h e m as t enan t s of the i r several lands .
2 1 . Lessees of Crown Lands for pas tora l purposes e i ther in t he
Set t led Dis t r ic ts or in t he Unse t t l ed Districts shall not have power to restr ict o ther persons duly author ized in t h a t behalf ei ther from cut t ing or r emoving t imber or mater ia l for bu i ld ing or o ther purposes or from searching for any meta l or minera l wi th in t he land leased.
22. The Governor w i th t he advice aforesaid m a y g ran t leases
| for purposes of m i n i n g for any m e t a l or mine ra l except ing gold to | any |
| person of any Crown Lands no t exceeding th ree h u n d r e d and | twenty |
acres for coal m i n i n g lots a n d no t exceeding e ighty acres for other mine ra l lots for any period not exceeding fourteen years and wi th a r i g h t of r enewa l for a fur ther period not exceeding fourteen years upon t h e n e x t following condit ions on the breach of any of which by any lessee t h e lease m a y be cancelled by the Governor w i th t he advice of
| t h e | E x e c u t i v e | Counci l— |
(1.) Pe r sons may on appl icat ion to t h e Minis te r obta in au tho r i t y in wr i t ing to select on Crown Lands wi th in twelve m o n t h s from t h e da te thereof coal or other mine ra l lots and m a y t ake possession of such lots and hold t h e m for the period ment ioned in such au tho r i t y bu t t he r i g h t shall be reserved to de termine t he boundar ies of any such lots and to m a k e provision for reservat ion of water supply P r o vided t h a t appl icat ions made pr ior to t h e pass ing of th i s A c t m a y be accepted unde r i t and shall t ake precedence in
t h e order of the i r date . (2.) The ren t shall be five shil l ings per acre payable annua l ly in advance at t he Colonial Treasury t h e first p a y m e n t to be made on applicat ion for au thor i ty to select and there after wi th in t he m o n t h of September for each ensuing year and leases shall in all cases end on t h e thir ty-f irs t day
of December .
(3.) Lessees shall expend a t t he r a t e of five pounds s ter l ing per acre on the i r lots wi th in t h e first th ree years of t he lease.
(4.)
Lessees m a y de te rmine the i r leases by giving to t h e Minis ter th ree m o n t h s ' not ice of thei r desire to do so b u t no rent shal l in any such case be refunded.
(5.) Lessees m a y on applicat ion to t h e Min i s te r in wr i t ing d u r i n g the t h i r t een th year of the i r leases obtain a renewal of t h e same for a fur ther period not exceeding fourteen years a n d t h e fine to be paid on such renewal no t being less t h a n two pounds t en shi l l ings per acre shal l be deter mined by appra i sement and full informat ion of the work ing a n d r e t u r n s of t he mine shall be afforded to t he appraisers by t he lessees on pa in of forfeiting the i r c laim to renewal .
(6.) I f any lease be forfeited or no t renewed t h e lessee shall be a t l iberty wi th in six m o n t h s
from
t h e
t e rmina t ion
of
bis
lease to remove or otherwise dispose of all mach inery and
improvement s and the minera l s b rough t to t he surfacedu r ing the t e r m of his lease.
23 . Whenever i t shall become necessary or desirable to fix or ascer ta in any r e n t pr ice value or s u m of money which by th is A c t it is provided m a y be fixed or ascer tained by appra i sement and in case of d ispute as to t he a m o u n t of any compensat ion to be made u n d e r t h e
| provisions of th i s A c t and in case of any m a t t e r which by | th is A c t | is |
| au thor ized or directed to be set t led | by a rb i t ra t ion | t h e appraiser | or |
| appraisers a rb i t ra tor or a rb i t ra tors and umpire shall be appointed | and |
| the | appra isement or a rb i t ra t ion | shall be conducted in m a n n e r | herein |
after men t ioned t h a t is to say—
(1.) The Minis te r or a n officer author ized by h i m in t h a t behalf and t h e c la imant in m a t t e r s hereinbefore directed or au tho rized to be sett led by appra i sement or the par t ies interested in any dispute which by t h e provisions of th is Ac t may be sett led by a rb i t ra t ion m a y concur in t h e appo in tmen t of a single appra iser or a rb i t r a to r or failing such appo in tmen t each pa r ty on the reques t of t h e o ther shall appoin t an
5 z — V O L . 4. appra iser
appra iser or a rb i t r a to r as t h e case m a y requ i re by w h o m
t h e m a t t e r shall be de te rmined A n d every such appoin t
men t shall be m a d e by t h e Min i s te r or officer and t h e c la imant or by t he par t i es to t h e m a t t e r in d ispute unde r the i r h a n d s in wr i t i ng or if such p a r t y be a corporat ion aggrega te unde r i ts common seal and such appo in tmen t shall be delivered to t he appra isers or a rb i t r a to r s a n d
a t t ached to t h e award w h e n made a n d shall be deemed a
submission to appra i sement or t o a rb i t ra t ion as t h e case
m a y be by t h e par t ies m a k i n g the same.
(2.) After t h e m a k i n g of any such appo in tmen t the same shal l no t be revoked wi thou t t h e consent of bo th par t ies nor shall t h e death of e i ther pa r ty opera te as a revocat ion. (3.) I f after any such dispute or m a t t e r shall have been referred to a rb i t r a t ion a n d a not ice in wr i t ing shall have been given by one pa r ty who has himself duly appoin ted a n appra iser or a rb i t r a to r to t h e o ther p a r t y s ta t ing t h e
d ispute or m a t t e r t o be de te rmined and accompanied by a
copy of such a p p o i n t m e n t t he pa r ty to w h o m notice is given fail to appoin t an appraiser or a rb i t ra to r w i th in t h e space of s ix ty days after such not ice t h e appraiser or a rb i t ra to r appoin ted by the p a r t y g iving t h e not ice shall be deemed to be appointed by a n d shall act on behalf of bo th par t ies A n d if for t he space of t h r e e calendar
m o n t h s after a notice publ ished in t h e Gazette by t he
Chief Commissioner of Crown L a n d s bo th par t ies shall
fail or neglect t o appoin t a rb i t r a to r s t h e Min i s te r may
appoin t an a rb i t ra to r who shall i n l ike m a n n e r ac t on behalf of bo th par t ies .
(4.) The award of any appraiser or appra isers a rb i t r a to r or
a rb i t ra to rs appointed in pu r suance of th i s Ac t shall be
b ind ing final and conclusive u p o n all par t ies to t h e
appra i sement or a rb i t ra t ion for all i n t en t s and purposes whatsoever .
(5.)
I f before t h e de te rmina t ion of any m a t t e r so referred any appraiser or a rb i t ra tor die or refuse or become incapable to act t he pa r ty by w h o m such a rb i t ra tor was appoin ted m a y appoin t in wr i t ing ano the r person in his stead and if he fail so to do for t h e space of t h i r t y days after not ice in wr i t ing from t h e o ther pa r ty in t h a t behalf t h e r ema in ing
appra iser or a rb i t ra to r m a y proceed ex parte and every appraiser or a rb i t ra tor so appointed shall have t h e same powers a n d author i t ies as were vested in t h e appra iser or
a rb i t r a to r in whose s tead t he appo in tmen t is made . (6.) I n case a single a rb i t ra to r die or become incapable to act before the m a k i n g of his award or fail to m a k e his award wi th in s ixty days after his appo in tmen t or w i th in such ex tended t ime if any no t exceeding t h i r t y days as shal l have been duly appoin ted by h i m for t h a t purpose t h e m a t t e r s referred to h i m shall be aga in referred to appraise m e n t or a rb i t r a t ion u n d e r t h e provisions of th i s A c t as if no former reference had been made .
(7.) I n case the re be more t h a n one appra iser or a rb i t ra tor
t h e appraisers or a rb i t r a to r s shall before t hey en te r upon t h e reference appo in t by wr i t i ng u n d e r the i r hands an umpi re and if t h e person appoin ted to be ump i r e die or become incapable to act t h e appraisers or arbi t r a to r s shal l for thwith appoint another person in his stead and in case t h e appraiser's or a rb i t ra tors neglect or refuse
to
t o appoin t an ump i r e for t h i r ty days after be ing requested so to do by any p a r t y to t h e appra i sement or a rb i t ra t ion
t h e Minis te r m a y appoin t a n u m p i r e and he is hereby
empowered so to do and the award of t he u m p i r e shal l be b ind ing final and conclusive u p o n all par t ies concerned for all i n t en t s and purposes whatsoever .
(8.) In case appraisers or a rb i t r a to r s fail to m a k e the i r award
wi th in s ixty days after t h e day on which t h e las t of t h e m was appoin ted or wi th in such ex tended t i m e n o t exceeding t h i r t y days if any as shall have been duly appointed by t h e m for t h a t purpose t he m a t t e r s referred shal l be deter
mined by t h e ump i r e and t h e provisions of th i s Ac t wi th respect to t he t ime for m a k i n g an appra i sement or award and wi th respect to ex tend ing t h e same in t he ease of a
single a rb i t r a to r shall apply to any umpi rage .
(9.) A n y appraiser a rb i t r a to r or u m p i r e appoin ted by v i r tue of
this Ac t m a y requi re t he p roduc t ion of such documents
in t h e possession or power of c i ther pa r ty as h e m a y t h i n k
necessary for de te rmin ing the m a t t e r s referred and m a y examine t h e par t ies as witnesses on oath.
(10.) Al l costs of and consequent upon t h e reference shall be in t h e discret ion of t he appra iser
or
appraisers
a rb i t r a to r
or a rb i t ra tors or of t h e u m p i r e in case t h e m a t t e r s referred are de te rmined by an umpi re .
(11.) A n y submission to a rb i t ra t ion unde r the provisions of th i s
Ac t m a y be m a d e a ru le of t he Supreme Cour t of t h e said
Colony on t h e appl ica t ion of any p a r t y there to . (12.)
Before any appraiser a rb i t ra to r or ump i r e shal l enter upon
t h e considerat ion of any m a t t e r referred to h i m as afore
said he shall m a k e out a n d subscr ibe a declara t ion in the
form following before a J u s t i c e of t h e Peace t h a t is say— I A. B . do solemnly a n d sincerely declare t h a t I a m not direct ly or indi rect ly in teres ted in t he m a t t e r referred to me and t h a t I will faithfully honest ly and to t h e best of m y skill and abil i ty hear and de te rmine t he same unde r t h e Crown L a n d s Occupat ion Ac t of 1861 .
(13.) A n d such declarat ion shal l be annexed to t h e appraise m e n t or award when made and if any appra iser
a rb i t ra to r
or u m p i r e
shall wilfully act con t ra ry to such declarat ion
he shal l be gu i l ty of a misdemeanor .
(14.) N o appo in tmen t or award shall be set aside for i r regular i ty or er ror in m a t t e r of form.
(15.) E v e r y appra i sement or award shall be in wr i t ing and shal l be t r ansmi t t ed by t h e appraiser a rb i t ra tor or u m p i r e to t h e Chief Commissioner of Crown L a n d s and deposited in his office.
24. I t shall be lawful for a rb i t ra tors or t h e ump i r e w ho may
| de te rmine u n d e r | th i s Ac t | t h e boundar ies or any | boundary of an old |
| r u n or r u n to m a r k on t h e g round such boundary | a n d such bounda ry |
| so m a r k e d shall be held to | be t h e b o u n d a r y of | such old r u n or r u n | so |
long as no lease thereof from t h e Crown shall be in force.
25. I t shall be lawful for any author ized officer u m p i r e or a rb i t ra to rs who may have m a r k e d on t h e g round t h e boundar ies or any boundary of any old r u n or r u n to certify by his or the i r s ignatures duly a t t ached to any p lan represen t ing such bounda ry t h e accuracy of such representa t ion and such p lan shal l thenceforth, become and be legal evidence of such bounda ry or boundar ies .
26. I f any person shall wilfully obli terate remove or deface any bounda ry m a r k wh ich m a y have been m a d e or erected by or u n d e r t he direct ion of any author ized officer a rb i t r a to r s or u m p i r e as afore said he shall be gu i l ty of a misdemeanor .
27. I n any lease or o the r i n s t r u m e n t g ran ted unde r t h e Orders in
Counci l or unde r t h e provisions of th i s A c t i t shall be sufficient if t he land the reby conveyed be defined by a genera l description of such land and of t he boundar ies thereof a n d no such lease or other ins t ru m e n t shal l be held to be void by reason of t he imperfect ion of any such descript ion so long as t h e land shall thereby be defined wi th
reasonable cer ta in ty . 28. I n any action or suit b r o u g h t to recover possession or to recover damages for t respass upon or otherwise in re la t ion to any Crown L a n d s of which no lease from t h e Crown shal l be in force i t shal l be lawful for any p a r t y t he re to to p lead and p u t in evidence any promise engagemen t or contract from or w i th t h e Crown or i t s agents lawfully author ized for t h e g r a n t i n g u n d e r t h e Orders in Council or
u n d e r th i s Ac t for any t e r m unexp i r ed of a lease of such lands and such promise e n g a g e m e n t or cont rac t shall as between t h e par t ies in such act ion or suit have t h e same effect as if a lease from the Crown of such lands h a d been duly issued in pu r suance of such promise engage
m e n t or con t rac t t o t he pa r ty ent i t led t he r eunde r to such lease. 29. The Governor wi th t h e advice aforesaid m a y procla im and set apa r t t empora r i ly any Crown Lands for commonage purposes for t h e use and benefit of t h e landholders in any ci ty town or vi l lage or o ther specified locali ty a n d may m a k e and proc la im regula t ions for
t h e m a n a g e m e n t of such commonage .
30. The Governor w i th t he advice aforesaid may g r a n t by
auct ion or otherwise leases of any por t ion of Crown L a n d s for wharves br idges p u n t houses ferries a n d for t h e erect ion of mach ine ry for saw mil ls b r i ckmak ing and other objects of a l ike n a t u r e and m a y de te rmine t h e upse t price thereof if to be let a t auc t ion or t h e fixed r en t if to be let otherwise a n d m a y a n n e x such condit ions to t h e occupat ion thereof as shal l seem fit Prov ided t h a t an abs t rac t of al l such licenses or leases where no t sold by auc t ion shall be from t i m e to t ime publ ished
in t he Gazette. 3 1 . The Governor wi th t he aforesaid advice m a y subject t o
a n y regula t ions to be m a d e as hereinaf ter enacted au thor ize t h e issue of licenses for any t e r m no t exceeding one year to en te r any Crown L a n d s whe the r u n d e r lease or l icense or n o t a n d to cu t a n d t a k e therefrom any t imber or to dig for and remove any gravel s tone br ick ea r t h shells or o ther mate r ia l Prov ided t h a t t h e fee which t h e Governor wi th t h e advice aforesaid m a y fix for such license shall be paid in advance.
32. On informat ion in wr i t ing preferred by any Commissioner of Crown Lands or o ther person duly author ized to any J u s t i c e of t h e Peace se t t ing forth t h a t any person is in t h e unlawful occupat ion of any Crown L a n d or in t he occupat ion of any Crown L a n d in v i r tue or u n d e r colour of any lease or license a l t hough such lease or license shall have been forfeited or a l t hough t h e condi t ions thereof shall have been b roken or unfulfilled or a l t h o u g h such lease or l icense shall have expired or a l t hough t h e t e r m for which t h e same shal l have been g ran ted or made shall have come to an end such Jus t i ce shall issue his s u m m o n s for t h e appearance before any two or more Jus t i ces of the Peace a t a place a n d t ime the re in specified of the person so informed against A n d at such t ime and place such Jus t i ces on t h e appearance
of
of such person or on due proof of the service of such s u m m o n s on h i m or a t h i s usual or last place of abode or business shall hear a n d inqu i re in to t h e subject m a t t e r of such informat ion A n d on be ing satisfied of
| t he t r u t h thereof ei ther by t he admission of t h e person | informed |
aga ins t or on other sufficient evidence such Jus t i ces shal l issue the i r wa r r an t addressed to the Commissioner of Crown Lands or to any Chief or Dis t r ic t Constable or o ther proper officer r equ i r ing h i m forthwith to dispossess and remove such person from such l and and to t ake possession of t h e same on behalf of H e r Majesty and the person to w h o m such warrant is addressed shall for thwith carry t he same in to execut ion.
33 . Any person unless lawfully c la iming under any subsis t ing
| lease or l icense or otherwise unde r t h e Orders in Counci l or u n d e r | th i s |
| Ac t | or u n d e r t he Ac t | twen t i e th | Victor ia n u m b e r | twen ty -n ine | or | any |
o ther A c t which m a y be passed for t he m a n a g e m e n t of t h e Gold F ie lds who shall be found occupying any Crown L a n d or l and g ran ted reserved or dedicated for publ ic purposes e i ther by res iding or by erec t ing any h u t or bu i ld ing the reon or by clear ing digging u p enclosing or cu l t iva t ing any p a r t thereof or cu t t i ng t imber other t h a n firewood not for sale the reon shall be liable on convict ion to a penal ty not exceeding five pounds for t he first offence and not exceeding t e n pounds for the second offence and no t exceeding t w e n t y pounds for the th i rd or any subsequent offence which penal t ies shall be recovered before any two or more Jus t i ces of t he Peace upon t h e information or complaint on
| oath of any person author ized by the Minis te r in t h a t behalf | Provided |
t h a t no informat ion shal l be laid for any second or subsequent offence un t i l t h i r t y clear days shall have elapsed from the date of t he previous convict ion.
34. Al l actions or other proceedings against any Commis
sioner of Crown Lands or other officer acting under the provisions of this Ac t for anything wrongfully done under or against the provisions of this A c t shall be commenced within twelve months after the matter complained of was committed and not otherwise A n d notice in
writing of any such action and of the cause thereof shall be given to
the defendant one month at least before the commencement of the proceeding A n d in every such proceeding the defendant may plead the general issue and give this Ac t and the special matter in evidence at any trial to be had thereupon A n d no plaintiff shall recover in any such proceeding if tender of sufficient amends shall have been
made before the same was commenced or if a sufficient sum of money
| behalf of the defendant together with costs incurred up to that time | shall have been paid into Court after such commencement by or on |
| A n d if a verdict shall pass for the defendant or the plaintiff shall | |
| become nonsuit or discontinue such proceeding or if upon demurrer or otherwise judgment shall be given against the plaintiff the defendant shall recover his full costs as between attorney and client and have the like remedy for the same as any defendant has by law in other cases. |
35 . A n y lease or other instrument issued under this Act may
be proved in all legal proceedings by the production of a certified copy thereof signed by the officer to be authorized for that purpose under any regulation made as hereinafter enacted.
36. The Governor with the advice of the Executive Council
may make and proclaim regulations for carrying this Ac t into full effect so as to provide for all proceedings—forms of leases and other instruments—and all other matters and things arising under and consistent with the provisions of this A c t and not herein expressly provided for A n d all such regulations shall upon publication in the
Gazette
Gazette be val id in law Provided t h a t a copy of every such regu la t ion
sha l l be la id before bo th Houses of P a r l i a m e n t wi th in one m o n t h from
t h e issue thereof if P a r l i a m e n t he t hen in Session or otherwise wi th in
one m o n t h after t he commencemen t of t he t hen n e x t ensu ing Session.
37. This A c t m a y be s tyled and cited as t h e " Crown Lands
Occupa t ion Ac t of 1 8 6 1 . "
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