MINING CASES IN COURT.

Otago Witness, Issue 2299, 24 March 1898, Page 20

MINING CASES IN COURT.

Our issue of- the 10th inst. contained no fewer than five decisions on the interpretation of mining laws — naoaely, four of the Supreme Court and one of Mr Warden Hawkins in the Warden's Court at Waikaia. The decision given by Mr Hawkxjts is of special importance, not merely because of the particular interests involved but because of , the lucid and exhaustive reasons hennas ; given for his decision, which has an important bearing on the industry in Otago. The facts of the case are fully stated m the judgment. About four years' ago the defendants, Sew Hoy and Kxrat Pox (members of the same firm and father and son), each obtained a grant of a special claim at Kokomai. The area granted amounted' to 128 acres. More than 25 years ago attempts were made to work the same ground by the methods then in vogue. One or more shafts •were started, the ground being from 60ft to 80ft in depth. It was found that the underground water and the friable nature of the ground made ■working by any then known method impossible, and the attempt was given up as hopeless. The defendants look up the land with the view of working by hydraulic elevating. For this a ! large water-power is required, and this could only be obtained by the construction of costly water races, involving the expenditure of many thousands of pounds. It is not saying too much that at the time no private individuals ether than the defendants could have been found in JSew Zealand adventurous enough to invest a sum of £15,000 in this undertaking, and this amount is now found not to be sufficient. The ground cannot be effectively worked without the expenditure of several thousands more in the construction of ■water races and plant, the estimate of the water supply at first made having turned out, as such estimates ttsually do, far above what the result justifies. It is just such an undertaking as should meet with encouragement, employing as it does, directly and indirectly, many persons, and being in all respects a boiia fide undertaking. A law which compels a, magistrate to inflict even a fine for not doing the impossible is outrageous to ; common sense. Mr Hawkins ably , points out the treacherous cinder thinly . covering the molten flood on which the ' law compels the mining investor to , stand. He says : " There is a vague idea that the wardens could, by pro-,* tection or fines, avoid this forfeiture. That is not so. They may give temporary relief under certain conditions, but no warden is justified in as3Jsting to evade a plain law ; his duty is to i enforce the law, it lie is appealed to. , The responsibility of any disaster to the indnstry from enforcing the law does not lie with them, but with those who have made and who have pe'-ver to amend it. 1 do not think thufc rjreat an industry shculd live continirtlly under such a sword oL' DA:,rocr,j:s. The fact that it h-ns never jot Lc<_ii enforced is no guarantee ag:,in,-M, its etifV lvem^nb in future.*' The cunjrros oi' \wu<l<»in »hich met at "V\ elhi rrLun last year co:, uit< d in a resolution that the stress of tha labour regulations should be removed from, the

sluicing and dredging industries, but ! no action was taken in the matter be- j cause this recommendation was not considered by the Alining Committee of the House. Perhaps now thai the matter haa been so forcibly brought under their notice the Government may be induced to make such amendment ut the law as lies within their power. But any such amendment, whatever relief it may afford, must fall greatly short of the reform which is necessary -in mining law. The New Zealand mining law has throughout been based upon a disregard of every principle which should guide the lawmakers. Borrowed in its chief and most objectionable features from the laws of the other Australian colonies, no regard has been paid either to making it conformable to the tenets "of jurisprudence or political economy, and little consideration has been given to the difference in the conditions jur- ' rounding mining in New Zealand and Australia. In Australia dredging and hydraulic sluicing are practically out of the question. The conditions necessary to their operation there hardly exist. So far as the law is concerned Australia presents nothing which can safely be taken as a guide ; and yet New Zealand mining legislation has carefully followed it, even in ils most patent absurdities. New Zealand in this department has nofc yet produced a law reformer strong enough to carry out necessary reforms in mining legislation ; and she has therefore been content to borrow her legislation from her neighbours, and she has borrowed the worst that could be got. Had she gone to California she would have got it free from the labour conditions and meddlesome restrictions to be found in the Australian codes. Had she gone to British Columbia she would have got a code which makes a miner's tenure equai to a freehold. Had she even gone to the Transvaal she would have obtained from the Boers a code giving far greater security to mining enterprise than what she has obtained from Australia. The alterations of the borrowed code which have been made in New Zealand have tended to make it 1 worse instead of better than the original. That its defects have not been disastrous is due in no small measure to the strong common senae and sentiment of right of the officers who have been entrusted with its administration. Mostly laymen, they have probably done better in this respect than trained lawyers would have done, for they have striven to do right in despite of the written law. As to^ the labour conditions ib is hardly possible to find any grounds on which it can be contended that the conclusion of Mr Hawiuss is controvertible. He says : " I think that experience shows that labour conditions are quite unnecessary and must be allowed to settle themselves, and that it would be inconvenient, as it would also be difficult, for the wardens to settle any scale of labour employment in view of the infinite variety of conditions, and in experience it ia found that in every hona fide worked claim as many « men will be employed as it is possible ,to employ.'"' Assuredly self-interest is . an all-potent agency in making men do what is most profitable to themselves. , " If it is desirable v to prevent any improper locking-up of land or nursing of rights for speculation or other purposes, to the exclusion of other persons, " the wardens have abundant powers to effect this without any labour conditions whatsoever." Section 1-18 certainly gives sufficient power. f to the wardens. It contains no cast-iron rule, and if it stood alone would be a reasonable and workable provision. But it by no mean 3 stands alone. The Act bristles with other provisions regarding forfeiture. The GOth, 67th, 71st, 77th, Mlsl, 143 rd, 149 th, and several other sections of the Act of JS9J, and many sections of the amending Acts, deal with the same subject, and the effect is to leave the law in such a slate that il becomes impossible for anyone to know in any particular case whi'th"V he has or has not incurred a forfeiture.

However desirable mining law reform may be, there is little present hope of its bfting carried oufc at an early date. The Bill introduced last session, although far more intelligible and consistent than the Mining Act of IS9I. goes toward reform merely in Bill drafting. It does not propose to change the policy of the law or make more secure the tenure of mining property in any other respect than in removing doubts as to the meaning of the existing law. The principal defects of the present law, and the meddlesome interference •with the business of mining, the power reserved to Ministers of granting or refusing applications, and every other objectionable feature other than the mere language of the old Acts, are carefully reproduced and intended to be re-enacted. I f there is any improvement we must be thankful for small mercies, but it may prove a choice between a bad law of uncertain meaning and a bad law the meaning of which is beyond doubt. Ifc is singular that for an industry so uncertain in result, so multifarious in its conditions, and offering such small inducements for the investment of the capital which is now essential to its progress — an industry which is such a powerful agent in the development of a new country, — legislation should be directed to hampering it with restrictions calculated to preclude the investment of capital. Ifc would be just ts reasonable to impose hampering labour conditions when leasing Crown lands for pastoral or agricultural purposes as it is in the case of mining leases. Assuredly labour conditions do not bring about the employment of labour, but rather restrict tha means of its employment.