CONCESSION DISPUTE

concession Dispute

The West Australian Land Company and
the Great Southern Railway

ALBANY AND THE WA LAND COMPANY
LETTER FROM MR. T. W. POWELL.

West Australian
11 August, 1891

(By telegraph from our correspondent.)
Albany, August 10

Mr. T. W. Powell, of London, has written to the Albany Advertiser refuting the statement by that paper some time ago to the effect that Mr. Hordern, if he had lived would not have made a claim to select commonage lands within the municipality. He asserted that if Mr. Hordern had not expressly stated that the Company had that power his land grant railway scheme would not have been floated.

Mr. Powell also attacked, the West Australian for its threat that if the action of the Company, in respect of selection within Albany, goes against the Government, Parliament should be called together to pass a special Act depriving them of the right of such favourable judgment.

He regrets that he was not made aware of the candour of the West Australian years ago.

THE W.A. LAND COMPANY AND THEIR SELECTIONS

West Australian
13 August, 1891

The following is the letter which, as already mentioned in our columns, Mr. T. W. Powell, late Chairman of the W.A. Land Company, has forwarded to the Editor at the Albany Advertiser:

Sir, I have seen in a recent number of your journal an article discussing the Land Company’s claims to include Albany lands in its Selection. Legal points we may petition as pendente lite but you have raised as literal case, you say that Mr. Hordern would not have made such a claim. This is an entirely an gratuitous assumption.

I testify on the contrary, (and others can testify the same) that when Mr. Hordern was procuring associates in his enterprise, and setting forth the inducements thereto, he gave great prominence to his right to select land right down to the sea coast, including the municipal district of Albany but explained, at the same time, that the government had sold already a good deal of the most valuable land. This he expressly told me and I know from others that he told the same. This disposé of your conjecture.

So important was this element amongst the inducement understood to be offered by the Government to get the railway built, that I feel sure a frank exception of those lands would have stopped Mr. Hordern’s syndicate negotiations.

It seems to me a most curious circumstance that if the Government thought, when the contract was in course of negotiation, that a certain class of area should be excepted from the one big area defined in the contract, that they did not frankly and honourably say so, instead of misleading Mr. Hordern and his associates, instead of hurting the materials of future litigation.

Why did they promise, and conform to the promise, not to sell any land in Albany for seven years, if Albany lands were not liable to selection by the company? Such is my pa contre on the point of morality.

I have also read a remarkable and very frank suggestion in the West Australian. The editor, recognising that possibly the legal question may ultimately go against the Government, points out that such a result will be a signal to call Parliament together to reverse the judgement. I have no occasion to complain of want of candour on the part of the West Australian. I wish I had such a warning years ago.

I am &c,
J. W. Powell
London, July 8,1891.

THE W.A. LAND COMPANY AND THEIR LAST CLAIM.

Western Mail
15 August 1891

(FROM THE WEST AUSTRALIAN),

THE West Australian Land Company is again listening to its evil genius. It might be supposed that the interests of both colony and company were really “one and undivided,” that in their prospects and future both were inextricably united, that theirs was a joint labour and theirs a common end.

The letter we published yesterday from Mr. T. W. Powell, the late Chairman of the Company, comes with a painful opportuneness to prove, once more that all such ideas are delusions. No one will be found to deny that the West Australian Land Company has conferred undoubted benefits upon this colony.

The Railway, which they have constructed, has connected the metropolis and the principal settled districts with the mail port which is at present the chief gate of the colony to Europe and the East. It has opened up a large area of country which before was practically closed and has provided it with the facilities of steam communication.

Albany Railway Station c 1895

But it cannot be denied also that the colony has paid most handsomely for the accommodation. We have got 243 miles of line and a useful jetty. In return the colony has allowed the Company to select about three million acres of land out of an area covering something like four times as much. What the worth of this vast concession may be it is quite impossible as yet to determine, but judging by what has occurred already, the average which it is likely to realise will probably not be much short of ten shillings an acre. Sorely no land grant company on the globe has received in the circumstance such a subsidy.

The railway appears already, we are happy to say, to be paying its expenses, and leaving some to the good. And yet, for some unexplained reason, the Company has turned its attention almost from its inception from the task of developing this magnificent estate to the business of fighting the colony and its people. Strong as the expression is, it is for the public to say whether it is justified.

The quarrel over the removal of the railway gates, where the people of Albany were refused access to their own foreshore, and where the same convenience was denied them which the present Engineer-in-Chief has accorded the citizens of Perth, and over far more dangerous crossings, is fresh in the recollection of all.

So strange and unconstitutional did their action become that the Government of the day, while we were still a Crown colony, brought in a most stringent, indeed too stringent, enactment restraining the Company, in the interests of the people, But hardly was this battle over when the wholly monstrous demand was put forward to which Mr Powell more particularly alludes.

Last year the Company commenced an action against the Crown to establish their claim to select lands for the purpose of their subsidy in the commonages and town sites within their reserved area. This action the Company managed ingeniously to get out of the hands of the tribunal fixed by the contract, whose decision it was agreed should be final, and to carry it into the Supreme Court.

This slip on the part of the Government can only be explained on the ground that it was in the days of a late law officer who is now no longer connected with the colony. Neither the arbitrators nor the Supreme Court entertained a doubt that the claim of the company was wholly illegal, but the company are still resolved to try their luck before the Judicial Committee of the Privy Council.

It is well to restate the magnitude of the company’s claim. If they succeed in proving that this extraordinary flaw really does exist in the contract, the extent to which they will add to the value of their property can hardly be imagined. A decree in their favour will enable the company to take, in the first place, any commonage and reserve which has been devoted to the recreation or use of the people in all the townships from Beverley to Albany.

But the decision will carry consequences far beyond this. All the sites on which public buildings stand, or which are dedicated to public purposes, may be seized by the Company. Take Albany for example. The argument of the Company is that they may take any land whose fee is still in the Crown. This would give them the Town Hall, and of course the building on it, the Post Office and the Police Court, the Residency, the Fortifications, the Cemeteries; the Recreation grounds and public reserves in the town and on Mounts Melville and Clarence.

Nor would it stop here. The churches would become theirs by so simple a process as the mere asking for them. We question if the very roads of the Municipality would not become their property. Of course, the alternative to selection would be that the Company would offer to forego their claims for an immense sum of money in compensation.

It is this state of things that the ‘West Australian’ has taken it upon itself to declare that the colony will resist to the uttermost. We are satisfied that we speak the voice of Western Australia, when we repeat that its people are determined to leave no effort untried, of expedient unexhausted to combat this iniquity.

It is to be remembered that there can be no question whatever that when this colony accepted the contract it was satisfied that these lands would never be in dispute. It is not too much to say that had there been the least suspicion that the Company could have claimed such a right the contract would never have been signed.

Until the too ingenious solicitor of the Company made the demand nobody suspected on this side of the line that such a claim would be advanced. Even now no one here assuredly believes that it can be maintained. Nay, in spite of letter of Mr. Powell, we will go so far as to say that unless evidence which will admit of no other interpretation be brought forward, we shall decline to believe that Mr. Hordern was guilty of such dishonourable conduct as to allow this colony to imagine that he was engaging for one set of things, while he informed his English audiences that the contract might really be construed to mean another.

We will not do so much discredit to the intelligence of Mr. Powell as to suppose that he believes that our Legislative Council would have passed the Contract it imagined that it would have admitted of the interpretation which he now desires to put upon it. All the speeches made in connection with this transaction at the time, all the negotiations, if investigated will show that the Council were influenced by two representations of Mr. Hordern and two only; first that his railway would connect Albany with the Central districts, and next that he intended to settle a large population on the lands granted him.

Indeed, this latter was his perpetual theme. He was never tired of dilating on the townships, the dairy farms, the bacon factories, the university, which he would bring into being, and which he contended it would be necessary to call into existence by the aid of imported capital in order to make his railway pay.

A thousand pities it is that the company in these latter days has forgotten the more essential elements of Mr. Hordern’s scheme, and has endeavoured to make its default good by working on what it is difficult to avoid calling an illegitimate use of the defects in the language of the contract. It was certainly not in this way it was expected, when the agreement was signed, that the company would make its profit out of the colony.

The lands included in the WA Land Company’s land concession

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