FARMING V. MINING

Greymouth Evening Star, 12 April 1932, Page 2

FARMING V. MINING

BARRYTOWN DISPUTE. WARDEN’S DECISION GIVEN. One phase of the dispute existing, as to whether land at Barrytowii, a coastal strip with an average width of 40 chains and a length of approximately six miles, is to be used for farming or gold-mining, was settled in the Warden’s Court at Greymouth, today, when Mr W. Meldrum gave his reserved decision, on the point as to whether the area affected is Crown or private land, holding that it is private land. The point was reserved on March 15, after lengthy argument was submitted by Mr J. W. Hannan (for the settlers) and Mr W. P. McCarthy (for the miners). The decision given to-day, does not affect the main point of interest — farming or mining. That matter has been . referred to the Minister of Mines, an application having been made under the Mining Act, 1926, for the exemption of the area from mining. The Minister’s decision has not yet been announced. Mr Meldrum’s decision reads as follows: The applicant, George Ernest Poole, applies for five prospecting licenses over land at Barrytown, held under renewable lease. Under Section 10 of the Land Laws Amendment Act, 1927, the lessees have the right of acquiring the fee simple, and the land comes within the definition of “private lands” as given in Section 4 of the Mining Act, 1926. The applicant took the course set out in Section 93 (b) (ii) of the Mining Act, to be followed in the case of “private lands,” and obtained the consent of the Warden before entering. Following the prescribed course, he marked out his areas on December 22 and 23, 1931, and duly filed his applications. In the meantime, the lessees, prompted by the notices served on them, and in order to forestall the applicant, marked out the land on December 21, and duly filed applications for ordin ary prospecting licenses over the areas applied foi’ by Poole. If Poole was right in treating the lands as “private lands” then, under Section 93 (b) (iii) his application would be entitled to priority over those of the lessees; otherwise the date of marking out would give priority to the lessees.

Mr Hannan, for the lessees, contends that as Section 19 of the Mining Act declares that lands held under renewable lease are to.be deemed to be Crown lands for the purposes of the Act, they cannot be both “Crown lands” and “private lands,” and the procedure under Section 93 was therefore unnecessary, and he relies on the case of Paterson’s Freehold GoldDredging Company v. Harvey (N.Z.L.R. XXVIII, page 1008), to support this contention.

Mr McCarthy, on the other hand, 'Contends that the procedure under Section 93 (b) was in order, and that the provisions of Section 93 (b) are not in conflict with Sections 18 and 19. To come to a decision in the matter, it will be necessary to consider the definitions of “Crown lands” and “private lands,” as given in Section 4, the effect of Sections 18 and 19, and as to whether Section 93 (b) can be given effect to without over-riding the general provisions of Section 18, and the special provision of Section 19. In Section 4, “Crown lands” means lands vested in His Majesty . . . •’

“whether such lands are unalienated, or are alienated by waycof lease or license for depasturing purposes or jas a small grazing run, etc,” but the /lefinition does not include land held under a renewable lease, or a lease with the right of acquiring the fee simple. 1 “Private lands” means lands owned in fee simple “under title from His Majesty, and includes land held under dicense or lease from His Majesty with the right of acquiring the fee simple thereof.” As mentioned above, Section 10 of the Land Act of 1927, gives lessees un. der renewable leases, the right of acquiring the fee simple, and in so doing brings them within the meaning of the term “private lands,” as used in the Mining Act. Section 18 enacts, “Subject to the limitations and provisions. hereinafter contained, all Crown lands within any mining district are hereby declared to be open for mining under the provisions of this Act.” Section 19 extends the general provisions of Section 18, by enacting that (inter alia) lands held under renewable leases granted undei the Land Acts shall, if situate in a mining district at the time of such grant, be deemed to be Crown Lands within the meaning of this Act, anything in the Land Act, 1924, or any other Act, to the contrary notwithstanding. It is contended for the lessees that the effect of Section 19, is to make land held under renewal leases subject to the limitations and provisions affecting “Crown lands,” but not to those affecting “private lands.” If this had been the intention of the Legislature, the simple way to effect it would have been to include lands held under renewable lease in the definition of “Crown lands.” To include them in Section 19, would then have been unnecessary. Section IS declares all Crown lands within a mining district to be open for mining, “subject to the limitations and provisions hereinafter contained.” Some of the provisions referred to are contained in Section 93 (b), which reads: “In every case where tlie application is for a claim or other mining privilege requiring to be marked out, the following provisions shall ap ,ply: (b) For the purpose of marking put the land etc., he may . . . enter on the land without the consent of the owner or occupier. Provided (ii) “In the case of private land, he shall not enter without the previous consent of the Warden, etc.”

111 eu words “private land” the definition is inserted this pi ovision would read, “In the case of •land owned in fee simple, including land held under lease from His Majesty, with the right, of acquiring the fee simple thereof, he shall not eater without the previous consent of the Warden, etc.” When the words oi a statute have a plain meaning it must be assumed that the Legislature gneant what it says.

I can see nothing in the meaning of ?vi?b ,S Q 9- 0 ’ wortled ’ Hi conflict with Sections 18 and 19. The requirement of the Warden’s consent before entry on land held in fee simple, or with the right of acquiring tae fee simple, is a recognition of the fact that a better class of farmin'* is adopted, and a higher state of i m "

provement exists, on land so held, than where held under the lesser tenures usual in a mining district. The decision in Paterson’s case does not help the objectors. In that case it was decided that lease in perpetuity land was to be deemed to be Crown land, open for mining purposes; but the method to be adopted in marking out, which is the hinge, as it were, upon which the present case turns, was not discussed. I think, therefore, the applicant Poole is in order with his applications and that they must be treated under Sections 98 (b) (iii), as if they had been duly filed at the times of service of the respective notices on lessees, pursuant to a previous marking out.

The Wardeij stated that he had had some difficulty in coming to a decision and perhaps - it would bo better to have the matter settled definitely, by securing the opinion of the Supreme Court.

Mr McCarthy asked that the applications be granted, meantime. Mr Hannan said that the land applied for was in the Barrytown area, for which exemption from mining had been applied. Other applications for land in the same area had been adjourned sine die.

The Warden: Probably by the next sitting, the intention of the Minister will be known

The applications were accordinglv adjourned.