THE MINING LAWS.

Otago Witness, Issue 2268, 19 August 1897, Page 20

THE MINING LAWS.

As might have been expected, the inining activity recently renewed on the Molyneux and Kawarau has brought into existence a number of conflicting interests, and these in their turn a crop of legal cases which result in more or less interesting decisions. Though almost annual attempts have recently been made to amend the mining laws, they are still in a chaotic state, and a conference of wardens i* now sitting in Wellington for the purpose of framing a new Mining Act. Somewhat singularly, however, the conference is not enjoying the assistance of a warden whose experience in mining matters is almost unique, and whose ripeness of judgment is beyond question. We refer to Mr Cabew. That gentleman's goldfields experience has been so long and so varied, and the' success of his administration lias been so generally admitted, that no conference of experts in mining law and in knowledge of the wants of the goldfields could possibly be complete without him, and we decidedly think an explanation of his absence is due to the public. It has been freely stated that he was not invited to take part in the conference, and if that is so the omission is as singular as it is unfortunate. It would be difficult, were it even advantageous in this place, to specify the cases in which the Mining Acts are obscure or conflicting, and it is earnestly to be hoped that the measure which emanates from the conference will be a consolidating one, so that it will not be necessary to consult a number of Acts. The slipshod manner in which Acts are added to the Statute Book is productive of much unnecessary litigation and loss. A decision was given by Mr M'Carthy at Cromwell' on July 9, and has since been- confirmed on appeal by District Judge .Warb, at Queenstown, which illustrates the necessity for greater lucidity in : the mining law. The case was one in which Alexander Patrick and the Electric Dredging Company were concerned. The facts ,niay be shortly stated thus : The company hare two special claims, and are applicants for a licensed holding. One special claim has a dredge -working on it. The special claim-sin dispute was granted by the warden in March, 1896, for 21 years. No plant or machinery had been erected on this claim, nor had there been anything in the shape of actual, as distinguished from constructive, work up to the time of the hearing in June. Any work or occupation was thus purely of a constructive character. But the company had been constructing on the land applied for as a licensed holding a dredge for use on the special claim, and this dredge was nearing completion at the time of the • hearing, and would, -when completed, have cost The construction of the dredge had been delayed by circumstances over which the company had no control. The company also maintained on the apecial claim a notice to the effect that a dredge for the purpose of working it was under construction on the licensed holding. As to the licensed holding itself, there had been quite a number of applications, surxenders, and reapplications for it, but

\ these did not affect the question, though the -warden thought they might furnish grounds for the creation of regulations forbidding such tactics, which he- characterised as objectionable. The question to be decided "was •whether the construction of the dredge on the licensed holding was a compliance with section 60 of " The Mining Act, 1891," -which says that " any special claim . . . which shall be un-

occupied, and upon which there is no plant or machinery, and which "has been unworked for a longer period than is allowed by the regulations for the district, or for the part thereof in which such claim is situated, shall be deemed to be abandoned, . . . and may without any adjudication of forfeiture or abandonment be taken up {-for any purpose under this Act, in accordance with the regulations, by any holder of a miner's- right ; and the ' rights of any previous occupant of such ground, notwithstanding the existence of any registration of title thereto, shall be deemed to have expired." It should be said by way of explanation that the licensed holding on which the dredge was being built was a mile down the river from the special claim in dispute, and that the construction of the

dredge was commenced in May, 1596. The warden held that section 71 of the Aot justified him in recognising hona fide constructive working and occupation of special claims, which are also reasonably continuous, as being such work and occupation as would exclude the operation of section 60. He also took into consideration the possibility that there might be no place on a dredging claim which could be made suitable for building a dredge without the expenditure of a large sum of money, whereas some distance away there might be a spot which a comparatively trifling expenditure would render suitable. Mr M'CABTHYheId it proved that there had been a bona fide and reasonably continuous constructive working and occupation by the company of the special claim, and Patrick's application for it was refused, without costs. An appeal was taken to the District Court, and Judge Ward took evidence as to the facts and heard arguments as to the law. The legal contention on behalf of the "jumper" was that section 60 was imperative, and that in terras o£ that section the ground was abandoned ground. It was contended, however, that there could be no abandonment

of a claim if it was shown that the machinery or plant was being constructed for such claim wherever it was. As to this his Honor held it to be proved that the dredge had been built for the special claim,- and that, therefore, the dredge was constructively plant on that claim, and that there fiad .been constructive occupation of that claim. Therefore he could not say it oame under section 60 of the Act, and upheld the decision of the warden, but without costs against appellant, as he had been misled in consequence of there being no dredge on the claim. Assuming that the facts are indisputable, this seems a reasonable interpretation of the Act, though it may lead to the greatest necessity for care in distinguishing bona fide preparation for work from speculative shepherding. Literally interpreted the section leaves no doubt that the claim was abandoned, but a doubt was possible from section 71, and in accordance with rulings in such cases the decisioa went with the holders. The larger public question whether it is desirable that one company or person shall practically monopolise a field was not touched in the cases under notice. But nevertheless it is quite evident that if the law clearly defined occupation, or even definitely placed its interpretation in the discretion of the •warden, much litigation would be avoided. From the fact that neither the warden nor the judge allowed costs, it is evident that each thought the "jumper" self -justified, and the lav should not be so ambiguous as to permit of this^poesibility. As the outcome of the Wardens' Conference, we may see a mining law that can be understood by the exercise of reasonable intelligence.