MINING ON PRIVATE PROPERTY.

Otago Witness, Issue 2253, 6 May 1897, Page 18

MINING ON PRIVATE PROPERTY.

The judgment of Mr Warden M'Cabthy m the Island Block case (which appears in our issue elsewhere) is one o£ considerable interest and of sonic importance to the mining community. We use these somewhat modified expressions with deliberation, because we think it would be a mistake to regard it as raising or deciding a question of crucial importance either to miners or landowners. This issue between the miner and the landowner as to mining for gold on freehold property was settled by legislation in 1896, and the Mining Act of that year probably contains ample machinery for ensuring that land containing gold may be thrown open for mining purposes for the benefit of the State without violating the proprietary rights of the landowner. It is important to notice that in the Island Block case the main issue was not between intending miners and a landowner, but between intending | miners and a mining company in actual possession and in full swing, working the ground for which the miners applied ; and our only reason for thinking that perhaps the case is not one of first importance is that in this -district at least cases of the kind must be rare. Incidentally we should say that it is only a presumption that the other contestants were miners, as the actual applicant was a Dunedin resident in another line of business, who may, however, represent a mining partnership. The position of matters, shortly stated, stands thus: Many years ago Mr Joseph Clabke, a" member of a well-known squatting family, acquired- by inheritance from' his father the Moa Mat estate, of which the Island Block forms a part. This block consists in the main of a basin of rich land suitable for farming in such a position as to lead to the supposition that it once was the actual bed of the Molyneux, which now runs in a different course about parallel ■with the Island Block. It was a natural inference from the fact that the present bed is auriferous thattheoldbedin the Island Block contained similar deposits. To work these deposits a company was formed originally in Victoria and subsequently in England. This company has under lease from Mr Clabkb, or his representative, an area of 950 acres or more. We do not know whether this is supposed to be all auriferous, but apparently the applicant sought to prospect over this area and ultimately to have it thrown open for mining, while leaving the company in possession of the ground, to the extent of 100 acres or more, on which it is at present actually working. The Act of 1896 for the first time "asserts the authority of the State to interfere with a private owner whose land happens to be -auriferous. It -assumes, as apparently niost constitutional lawyers assume, that the gold itself actually belongs to the Crown, and gives with considerable elaboration a method of getting at it. Though the Act assumes . that the gold belongs 'to "the Crown it does not seek to appropriate it to the Crown, ;but only to throw it open in common- • with all the gold in Crown lands to anyone who has sufficient enterprise to devise measures for extracting it. The Act is careful to

provide that there shall be no interference with existing mining on private ■ land. As Mr M'Ca.rthy points out, the colonial Parliaments, while they have never relinquished the right of the Crown to the gold in freehold lands, have never stamped as illegal the action of the subject in taking it. j The same policy appears in this Act. ' "Wherever the subject is actually working the Parliament of New Zealand has sought to preserve his rights, j It accordingly provides that no land ' shall bo resumed " which is being . mined for gold or silver by the owner or occupier thereof, or some other person duly authorised by him, in j claims that in no case exceed the \ maximum area prescribed by the principal Act for a special claim." Now, it is evident that this provision must receive an interpretation o£ some sort, and the warden accordingly , addresses himself to the question: What is the meaning of the expression "in claims," &c, - "when for obvious reasons it has never been contemplated that the party mining should have either marked out or otherwise defined his t; claim." It is pointed out that though the maximum area of a " special claim " is 100 acres, there is nothing to prevent any person or company acquiring several such claims."' In point of fact, a miner never can be working 100 acres all at once ; he works a part seldom exceeding an acre at a time. When several claims of whatever area are held under one company it is never expected of that company that it shall work each one ; they are invariably treated as one mine, and it is for the adv-antage o£ the State that they should be worked in the I manner which the applicant finds the most economical method. In this case the claim or claims acquired by the Island Block Company were worked afc one point ; if the company had worked in a disjointed way at various points the results would have been less satisfactory to all parties, but apparently there would have been no ground for the application. The real issue then is' this : Has the State supplied machinery by. which, at the cost of the community, a mining company acquiring and working a large area is to be deprived of the greater part of it in order that other miners may scramble for it ? Mr Warden M'Cabthy thinks not. He apparently thinks that while setting aside the power of the freeholder to obstruct the development of the mining industry even on his own land the Parliament has raised no new question between miner and miner. The very terms of Mr Wells's application seem really to agree with Mr M'Caethy's view. He does not apply for leave to prospect an area equal to a special claim, but covers an area equal to nine such claims in order apparently that he may pick the spot which suits him best. This is most natural from his point of view, and he certainly cannot be i blamed for trying to enforce the view of the situation which suits him best ; but we cannot help thinking that however sound the policy may be which treats the landowner almost as a negligeable quantity, i it would not have been very sound policy to shake mining titles, however acquired, by legislation bearing the suggested, interpretation. The case of this company illustrates the point. The warden states that the company has won gold to the value of £40,000 at a cost in wages of £34.000. As the getting of gold and the employment of labour are the primary objects which the Legislature seeks to ensure, it can hardly be said that this company has been so slugglish in its operation that State policy requires that it should give way to something more distinctly active. While dealing with this topic it is as well to notice some peculiarities of the new legislation. In the first place it assumes that there may still be a question as to whether by virtue of existing legislation the Crown has not already renounced its right to the gold in favour of the freeholder. This is carefully left open. If it should turn , out that it has done so, the compensation payable to the freeholder on re-

suming the land would be enormous'y increased. The compensation in this case for 950 acres of high-class farming land would in any case be considerable. It would be payable by Government out of public funds with a right to get it back from the mining revenues of the district. Government has the power to forgo the recovery of onehalf, and it would certainly be asked by the local bodies in the district to do so. The other half would be borne by counties in no way interested unless the Minister decided that it should be borne by Tuapeka County alone. ' As the goldfields revenues even of that important county have a limit, the burden would practically fall upon the ratepayers, many of whom in remote parts of the district have scarcely heard of the Island Block, and all this apparently in order that* the fortunate applicant might pick a claim out; of another miner's property for which he would have to contribute t £so a year to the coffers of the county as long as it paid him. to do so. We doubt whether this is what Parliament intended in passing this undoubtedly beneficial Act.