STREAMS AS SLUDGE CHANNELS.

Otago Witness, Issue 2008, 18 August 1892, Page 14

STREAMS AS SLUDGE CHANNELS.

The case Burton v. the Minister for Public \Yorks, which was recently decided in the Compensation Court by Mr Justice Williams, is a notable instance of the results of departmental incapacity, and it ought to awaken the

Jjegislature/to'the necessity of devising some method of reconciling mining and agricultural interests where they are conflicting. - The history of this particular case — which is typical of many that may yet arise — was revived when in 1890 Mr liorton entered an action against Mr Howe, one of the minors at Maerewhenua, and obtained judgment for L 25 for damages arising from the discharge of tailings into the river, and also an injunction restraining him from similar action in future. The injunction, however, was not to come into operation for six months. This was not the first occasion on which Mr Borton has sought redress by law. In 1875 lie sued Mr Howe, and obtained an injunction after the case had been carried to the Appeal Court ; but the Provincial Government indemnified Mr Howe by pa} ing the costs, and, we believe, also paid Mr Borton's costs, treating the action as a test case to ascertain the law on the subject. In consequence of the decision of the Court of Appeal, Parliament passed legislation enabling the Government to declare any stream to be a channel for the discharge of tailings. But the necessary step was never taken of declaring the Maercwhenua river a stream in which tailings might be deposited, and from this omission the miners were compelled to do an illegal action in order to pursue their lawful occupation. Hence they wore technically liable to riparian owners for damage done by polluting the water and silting up the bed of the river. But the miners had always relied upon the Government standing by them, as the Provincial

Government had previously done, so that when Mr Eorton brought his action in 1890, the local Miners' Association decided that the case should not be defended, and the Government were m'ged to make good their position by declaring the stream a sludge channel. The Government at that time asked that Mr Uor ton's claim damages might be submitted to them, saying that if it was moderate they might entertain it, so that it is evident they recognised some responsibility. But they did not accept the full responsibility until February 1891, when a proclamation was issued declaring the Maerewhenua to be a sludge channel, snch proclamation to come into effect in June following. It must be said 'that the landowners have -behaved with great forbearance during all these years. It may be that the damage done was not then very great, and that a spirit of accommodation existed was apparent from a proposal which emanated from Mr liorton that the river should be unpolluted for a certain time of the year in order that he might wash his sheep. It lias also to be remembered that the injunction granted in 1875 against Mr Ilowe and others has been allowed to lie dormant. But the position of the miners was very precarious all this time, and was ono for which they were not responsible. They carried on their operations on t<he sufferance of the landholders, so that the Government was morally responsible for any damage which might arise, as well as legally so by the decision, of the Court of Appeal. There could be no question that much damage would ultimately be done, and it was of such a nature as to be cumulative, for when once the course of a river has been interfered with no one can foresee the result. The main contention for the defence was that the damage, if any, was done prior to the proclamation, but we do not see that that improved the position of the [Government, since their moral liability was admitted, first by the Provincial Government indemnifying Mr Howe in 1 875, and, second, by their own negotiations with the miners prior to the action of 1890. It was not possible, therefore, for the Government to evade liability, and the question really before the Court was one of assessment of the damage likely to ensue : for the damage already done Mr Borton has no effective recourse. Whether the sum awarded was adequate or nut does not alfect the

general question, which was ■whether it was the duty of the Government to implement the permission to mine by giving the necessary facilities for doing so. It may be that the Maercwhenua goldfield has been purchased too dearly. It is not of great extent, nor is it very rich, and a few such comjJensation awards will more than counterbalance the revenue the colony has received, or can hope to receive, from it. ■Two questions arise out of the action. The first is as to who is responsible for the delay in constituting the river a flood channel. The matter was inherited from the Provincial Government in a very con1 fused state. There was an injunction of the Supreme Court hanging over the exploitation of the field, and perhaps the delay has arisen from the hope of procuring legislation of a retrospective nature, which would have obviated it. AYe quite understand the reluctance of successive Governments to face the difficulties involved ; but they certainly ought to have been faced long ago. The second question is as to the general relation of mining to the use of streams. It was found only very recently at Orcpuki that a stream had been used by the miners for nearly 20 years without having been proclaimed a watercourse under the mining laws, and if agricultural interests had become involved, instead of merely the conflicting claims of miners, there might have arisen a claim for compensation similar to that of Eorton v. the Minister for Public "Works, with, perhaps, even a more serious result to the colony. We find on the one hand the miners grumbling at the alienation of every acre of land which restricts the area of their search for gold, and on the other there are the agriculturists complaining, and with some degree of justice, that the miners, perhaps only of one claim, are permitted not only to destroy the surface of the ground, but to destroy adjacent lands, pollute rivers, and make riparian interests valueless from their preeariousness. The miners clamour for permission to enter private lands, and the landowners demur because the land is destroyed for ever for agricultural or pastoral purposes by the operation of mining, and the goose is killed for the sake of the golden egg. It is fortunate for the colony that most of the land utilised for mining is useless for any other purpose, or is near rivers of

sufficient force to carry the debris away to the sea. 13ut it is a great mistake — that is, from an agrarian point of view — to permit of the use of small watercourses as channels for tailings. The Macrewhenua appears to be very unsuitable for a sludge channel on account of the absence of fall near its mouth. But no provision at all appears to have been made for the deposition of tailings, and without it the field could not have been worked at all. It will be very fortunate if the compensation fund is not further mulcted in a similar manner to that which has just occurred, and it is clearly a duty devolving on the department to ascertain at once the extent of its possible liability and to obtain authority to prevent its increase.