A MINING CASE

Otago Daily Times, Issue 22025, 7 August 1933, Page 5

A MINING CASE

APPLICATION FOR PROSPECTING LICENSE JUDGMENT BY WARDEN The following is a copy of a judgment given in the Warden’s Court at Cromwell by the warden (Mr H. J. Dixon, S.M.) in respect to an application for a prospecting license: This -was an application by R. E. Harding (Mr J. C. Parcell) for an ordinary prospecting license on land held by Messrs F. J. and W, Samuel (represented by Mr F. J. Green) as a small grazing run. The applicant was the holder of a miner’s right. There were several applications for ordinary prospecting licenses over other parts of the run. One application was taken, and the decision in this case is to apply to the other applications. . , There were three grounds of objection: — . . A ' 1. That the land is private land. 2. That the land was not properly marked out and notices posted. 3. That some of the land is m permanent pasture, and prospecting wpuld be likely to cause great loss and hardship to the objectors. The second objection was withdrawn, and the third objection would be met by compensation under section 75. , The real objection was that the land was private land and that no application had been made to the warden for leave to enter and mark out. The lease of this land as a small grazing run was first granted in 1910. The objectors took it over in 1926, and their lease was renewed in March, 1931. There is no evidence that they have given notice of their intention to acquire the freehold as required by the Land Act, 1924 Since the lease was first granted in 1910 the holder of a small grazing run has been given the right to acquire the freehold (section 31 Land Laws Amendment Act, 1913). This clause is repeated m section 243, the Land Act, 1924. The definitions of Crown land and private lands in the Mining Act, 1926, are the same as in the Mining Act, 1908. The definition of Crown land in section 4, as far as is material here, is _ All lands, whatsoever the title whereto in . • . fee simple is vested in his Majesty, whether by virtue of his prerogative or by operation of law, or by any deed or instrument, whether such lands are unalienated or are alienated by way of lease or license for depasturing purposes, or as a small grazing run under any Act providing for the disposition of lands of the Crown, and private lands are defined as Lands owned in fee simple under title from his Majesty, and include land held' under license or lease from his Majesty with the right ot acquiring the fee simple thereof. Section 16 of the Mining Act, 1908 (now section 18 of the Mining Act, 1926) provided that, “ 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,” and section 17 provides that “ The land comprised in any lease in perpetuity or other lease or license, granted on or at any time after October 6, 1893, under the Land Act, 1892, or any Act passed in amendment thereof or in substitution therefor whether as an original lease or license, or in exchange for a pastoral or other lease or license of any kind, or for a small grazing run, and also the land comprised in and renewable lease granted or deemed to be granted under the Land Act, 1908, or any former Act relating to Crown lands, shall, if such land is situate in a mining district at the time of such grant, he deemed to he Crown lauds within the meaning of this Act, anything in the Land Act, 1908, or any other Act, to the contrary notwithstanding.” Section 19 of the Mining Act, 1926, is the same except that the Land Act, 1924, is referred to Instead of the Land Act, 1908.

The granting of the right to acquire the freehold, it is contended, brings this land within the definition of private lands. This would refer to nearly all land held under any lease from the Crown. This question lias been decided in Paterson’s Freehold Gold Dredging Company v. Harvey (N.Z.L.R., 1909, page 1008). The judge there states: “The existence of that right to purchase the fee simple has been recognised by the Mining Acts as being inconsistent with the land over which it could be exercised remaining Crown land or being deemed to bo Crown land and open for mining purposes. Unless there was something in the Act which gave this right, which expressly declared that notwithstanding the right so given land included in leases in perpetuity in mining districts should be deemed to be Crown lands, there would be a strong argument in favour of the view that it was no longer to be deemed to be Crown lands and open for mining. However that might have been, the seventeenth section of the Mining Act, of 1908, now makes such an argument of no avail.” The Act of 1926 is a consolidating Act, but it also contains a new enactment — namely, “ notwithstanding anything in the Land Act, 1924, or in any other Act to the contrary.” The judgment of Mr Justice Williams in Paterson’s case was: “ If the Legislature adopts and passes a consolidation Act which not only consolidates but amends or a|ters in some particulars the previously-existing law, the court cannot say vliat because the Act is a consolidation Act such amendment or alterations cannot be given effect to.” If, therefore, anything between the Mining Act of 1908 and the Mining Act of 1926 had been nassed which would pre-

vent the land from being deemed to be Crown land section 19 of the Mining Act, 1926, enacts that notwithstanding any such Act the land is nevertheless to be deemed to be Crown land. Section 19 of the Mining Act, 1926, is clear and unambiguous, and it is wide enough to cover the land in the objectors’ lease. (Also bearing on this is the judgment of Mr Justice Kennedy in Hall v. Knowler, delivered on June 7, 1933.) If section 4 and section 19 are read tpgether the intention of the Legislature is clearly that small grazing runs should still he considered Crown lands. In Colquhoun v. Brooks (14 Appeal Cases, .493) Lord Henschell said: “It is beyond dispute that we are entitled and," indeed, bound, when construing the terms of any provision found in the statute to consider any other parts of the Act which throw light on the intention of the Legislature and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act.” To hold otherwise would mean that_ land comprised in a lease in perpetuity is to be deemed Crown land, which lands held under lease for depasturing purposes o'nly would be private lands. In Raterson’s case Mr Justice Williams said: "There is a good deal in the view that the right of purchase given . . . made the land cease to be deemed to bo Crown land and brought it within the category of private land.” He goes on to say: “ The seventeenth section of the Mining Act, 1908, now makes such an argument of no avail.” The land could not be deemed to be both Crown land and private land. If the land is deemed to be Crown land, then it is not private land, and there is no need for application under section 93. _ . Counsel for the objectors cited Clifton v. Wieblitz (1916, N.Z.L.R., 948), and quoted the remarks of the Chief Justice on section 91, now section 93. The Chief Justice referred to clause C 111 as to the consent of the occupier, but 1 think he meant such cases as those under section 50, and this is the view taken by Mr Justice Stringer in his judgment. In my opinion, therefore, the land i» deemed to be Crown land by section 19 of the Mining Act, 1926, and is not private land. This has always been the course followed in the Otago mining district. It was admitted that the land was in a mining district when taken up. Counsel for the applicant contended that the objectors had only a qualified right to acquire the freehold, and that by section 230 (c) of the Land Act, 1924, this land is subject to the mining laws in force at the date of the lease. It is not necessary to consider these contentions in view of my decision. No one has been misled by the failure properly to post the notices on the property. lam satisfied it was not wilful, and I waive this requirement. The application is recommended for the consent of the Minister of Mines. _ As the objectors withdrew the objection as to posting application at request of applicant 1 do not allow any costs.