WARDEN'S COURT.

Thames Advertiser, Volume XXIX, Issue 8641, 22 January 1897, Page 1

WARDEN'S COURT.

(Before H, Eyre Ktim, Esq:, In opening the Court the Wardeustated that priority would be given totbtf hta'ritfg of those' cases in which couiisel'coming from a distance engaged*;, , f HB would take the'defendedcases firsfbecause if.he proceeded with the ordinary application's he would probably not get:through the business in less than two days, v>i- >-•• -J*/'

Witness continued : — Pakirariha block was situated within the boundaries defined in the agreement.. Witness was allowed to stand down, Mr McCormick not wishing to crossexatnino. Jas, Mackay deposed that he was Civil Commissioner to the colony of NowZaab-nd in 1865, Continued in that position till 1869, when witness resigned. A year or two afterwards took a contract from the Crown for concluding land purposes for goldmining on behalf of the Crown, lasting till 1876. Witness was working inconjunc tion with Dr. Pollen. The agreement

(produced) of 1867 wasinwitness'hand writing, and lie was personally acquainted with the signatures of all the native signatories. Witness was present at the signing and paid the money expressed in the agreement, which was signed at Shortland. Witness knew the Pakirarahi Block. Witness had no doubt that the chiefs who signed were commissioned by the tribes. There was at that time no Native Land Court in the district, the natives being " Kingites." The custom was to call a meeting of the tribes, rnd when all consented, the agreement was signed by the chiefs rnd completed. Many of the raining blocks were worked in the fcarly days on a verbal agreement. Mr /Palmer produced the Gazette of April Btli, 1875. with the proclamation including Pakirarahi No 1.

Witness, continuing, stated that he drew up the agreement. Before drawing up the agreement, the chiefs assented to the inclusion of Pakirarahi, Taparahi, and other blocks. Witness had nothing to do with the division of miner's right money after leaving the Government service in 1869. The Government had made a road through Pakirarahi, and granted a subsidy to mining to Finlay McLiver. He learned that frtct from McLiver,

After a brief cross-examination oy Mr McCorinick as to native custom in land cession, witness stood down. Wiropa Hoterene Taipati deposed that he remembered the agreement of 1867 being made, and also the payment of the money! (£100),

Jas. Jordan, Clerk of the Warden's Court, produced a plan from the records of the Court showing about 20 or 40 claims which had beep granted at Taioua. One of these was the Decide, which was originally granted as the Ajux, on June 29th, 1875. The Ajax was surrendered and granted as tho Decide licensed holding, and the Decide was sunendered on June 13th, 1889, and granted as the Bonnie Scotland. Tho Bonnie Scotland was surrendered in August, IS&S, and granted as the Golden Belt. Thesn surrenders were something more than exchanges of title, and new areas had been thus tatcen up. The money accruing from the mining operations had been distributed among the grantees to the company. Finlay McLiver had been connected with the property from the commencement, and was now licensee of the Golden Belt,,

Cross-examined by Mr McCoroiick —Had no conversation with Finlay McLiver re this case, and did not draw his information from MoLiver's documonts, or from any documents outside the Court records.

Frederick Herbert Whalley, surveyor, submitted a plan (nut into evidence) prepared by himself, and show, ing Pakirarahi and tho position of all tho original and present claims. The uow claims were shown in blue on, {on

if the old ones. The validation lino 1 vas also shown! ' Mr Palmer contended that accord-' ng to thn ogrepraent of 1867 the natives ceded the right to mine, and in dealing with the land afterwards they did not alienate from the Crown the mineral right?, He quoted from the agreement concluded in 1884 with the Union Sash and Door Company, la) ing emphasis on the feet that all fercs from mining operations were to be conveyed to the natives. Mr McCorinick, said the case was one simply of legal argument, and he would call in evidence, The ground of the Company's objection was tliat the land applied for was not Crown land within the meaning of the Mining Act of 1891. He would not refer to the laud transfer of title certificate. The agreement of 1867 was not sufficient to constitute the land Crown

land within the.meaning of the Act. In the first place the agreement was signed by five natives only, one of whom alleged in a very general way that they were authorised by the* tribes. N one of the grantees of the I I land who appeared in the agreement with the Union Sash and Door Company in 1884 was a party to that agreement. The grantees had not signed it, and it was not proved that they personally authorised the other persons to signi*-. The grantees became possessed of their tiile through the Native Land Court. The Native Lr-nd Court decisions upon investigation of title were founded upon native custom and usage, according to Mr Mackay's evidence, Th« five

names in thfc grant—none of; whom signed the agreement of '67—were found by the Land Court to be sole owners according to native custom and usage; No persons other than those named in the grant had any. power to deal with the land, and if Mr Mackay or any other persons dealt with other persons than the grantees, they did so at their own risk. It would be monstrous to " chuck but" the i rightful owners, from whom the com* j pany had acquired the land on a valuj able consideration, without notice of agreement, valid or invalid. There was no notice of the agreement of '67 in the Native Land Court, .or at the Land Transfer Office. •,

The Warden stated that the agreement had been registered in Auckland in 1876. pMr' McCormick further" submitted that the agreement was not valid,"but —assuming that it was valid—he contended that the persons who signed it were not the persons entitled to deal with the land. ' ' The Warden said the point for Mr Palmer to, answer was that the five grantees did not sign the agreement of 1867. Mr Jackson Palmer, in- reply, referred to the evidence of. Ngakata and Mr Mackay, the effect of which 'was that the five chiefs who signed the agreement were agents to the, tribes.' It was native custom—outside European law—to hold a meeting of the tribes and.appoint the cbiefeas agents. The grantees were those who had received the money from the miner's rights,; arid by this act they ratified r a!l that had been

done before. Mr Palmer quoted from

Native Land Court judgments," in which the Coutt could not ■recpgiuM individual ownership of native land, Before the British Government came I on the scene, the strength of the whole tribe was needed to maintain their title, and the land belonged to the tribe. The Maori, custom was ,thafc the individual must, as regards'his land, be bound by his tribe in. ecrternal relations, The making of, the'agreement of 1867 was a case dealt with according to native custom ! as demanded by time and circumstance. ; The Warden stated that it was very doubtful whether the granting of the Ajax, which was a licensed holding, could be construed as'a.grant by the Grown because it was granted ; by a Warden on his sole responsibility. He

was not sure whether the granting of

a special claim, signed by the Minister of the Crown, might not be held to be an act of the Crown. The Warden drew a line between actsdone on behalf of the Crown as against acts of the Crowni There was a great difference between an officer when acting judici« ally and when acting ministerially; if he acted in the former capacity, it was an act of the Crown, if he acted miaisterially, it was merely official, "•'

Mr Palmer thought the action of the I Warden was both ministerial and judi. I cial, • ■ - "■-' ■, " '■' ■' \ The Warden replied that in the granting of a licensed holding the act; of the Warden was in an administra« tivecapacity. ; .'■; Mr Palmer, in conclusion, dwelt on the'fact that no attempt had been made to- infringe the continuously existing mining rights until of lata. The Warden reserved judgment pending the Supreme Court decision fa , the Mt Morgan case, in. which tha. same question was involved. He stated that the Mt Morgan case confainedf elements of strength which were jacking in the present case, as ;theMti. Morgan applicants had proved their land within the »alidatlon boundary, V Judgment was therefore reaarvedt' sine die. ;■ ,'... Granted,: ■ J The following' applications wart ; granted:— "■'■'.'" Finlay McLiver, Golden Beltlicensed holding, Tairua-the applicant having' surrendered his existing titles; Crown Royal G.M. Co.,.permissionto;work Square and Compass licensed holdiag with 2 men instead of .4 men for four months; Comet G.M. C»., permission to work Comet special claim with! of 15 mentor 4 months;

V.. Oriou G.M.,C0,,, permission.to work /'-' Oripnrnna Orion: Extended special claims., villi 2 inch, instead of 31 man \ v ;iaf\ iroiitlis; 0. A. Harm, pfinnis. ''Vision to work Karaka Mines special , V olaim with 4 instead of 28 men for 4 ■.'months j Eolit. Worth, 6 months* pro.tcfjtion for Why Not licensed holding, ; 0. A. Harris, permission to '■■':'_ Mahara .special claim with 3 men I vv instead of 33 men'' for' 4 months; B. H, Bishop, permission. to work "Mikado special claim, with 2 men * "instead of ,28 men for 4 months; V Wairoa G.M.Co, permission to work -■'Xfaion specinl claim with 2 meninstead '.•'of 18 lien for 4 months,'; Donald Mc- ; permis'sion.to work Malua special claim with 2 men instead of 33 ninrfor 4 months; James; Bapgott and S, Montgomery, 6months' proteifcon for Virgin and Kolvin special claims; Robert Inglis, permission to work ' Harbor Light special claim with 2 men instead of 33 men for 4-months; ft. Barber and T. Milloit, permission to -'work Daphne special claim with 2 men i, instead of 33 men for 4 months;' Day ,Dawn G.M.Co., permission to work Day Dawn'licensed holding with 2 ; irien instead, of 6 men for 4 months; ' James'H. I'lfiuiiug, G months' protfic tion for Oraahu special claim ; Wairoa G.M.Co., 6 months';protection for water race So. 9242; Bell Hock G.M.Co., 2 months' protection for Bell (i Rock special claim; James Mays, p?r- ------"' mission to work Trojan special claim with 2 men instead of 31 men for 4 . months; Kaiser G.M.Co., permission to work Kaiser special claim with 2 instead of 10 men for 4 months jTnirua Proprietary G.M.Co., permission to .; work Matura Extended licensed holding with 2 men instead of 5 men for 4

~-. months] S. C. Mackay, permission to , ; work Thames 'special claim with 2 men ' instead of 17 mon for 4 months; ( >; Tairua Proprietary Goldmining Company., permission to work Matura 'Ispe'cial claim with'.4'jnen instead of 23 mea for 4 months j.Clunes Goldmining Company/ Craohlhs' protection 'for Chines licensed holding, Moanataiari; , 'Mclsaao's Goldmining Company, -six , months' protection for water race and machine site, Karaka; D; Sampson, permission to work Good Hopespecial claim ■ with 2 men for 4 months j 1.1. Cannell,

permission to work Pikau special claim with ' two men' for four months; 0. B« Thorno, 6 months' protection for water race, Tairua; J. H. Bond, 6 months' protection for Queen of Omahu .special claim; Kuranui Goldmining Company, permission to work Kuranui No. 3 licensed holding with 3 men of 5 men for.4 months; John Childerhou.se, permission to work Mascotte and Limerick special claims with two 1 men for 4 month's.—The full complement, for the Mascotte is 19 men,and for the Limerick 16 men; Chas. Grosvenor, Morion Extended

"licensed holding,' Taravu; G. B. Hutton, Orizaba Extended licensed holding, Taravu; Darwin Goldmining Company, Darwin licensed holding, Punga Hat. ..•■" Eecoxlmended. The following applications wove recommended to be granted :--Jnm'eß i' Corbett, .Endeavour. speoial claim, 1 'Wnduganiata; R. 'D. Swoetnpple, Hero special claim, Whangamata; R. D. Swoetnpple, Northcoto special claim, Whangamata; E. D. Swootapple, J.D.O. special claim, 'Whangamata; Lindsay Cooke, Albert special claim, Whangamata; P. Claffy, Torrid special claim, Whangamata; P. Claify, Pvigid special .claim, .Whangaraata; I P. Claffy, Temperate special claim,

Whangamata; Geo Crosby, Coolroagh special claim, Tairua—Objected to by the Kauri Timber Company— Recommended subject ,to this company's floatage rights as specified in the'Tairua Land Act; J. J, Oahill, Lavonia special claim, Puru;G. M. -McMahon, Golden Keefs special claim, Tapu; It, P. Gibbons, Clematis special '' claim, Mata; Witt. Shaw, Kent special ' ulniro; Thames; J. J. Macky, Murray

special claim, Tapu; Renata Ngata and "W. Clark, Emerald Mountain special claim, Tair.ua; Avtlxur Wright, Banao special .claim, Puru; J. J. Macky, Taihoa.speeial claim, Tapu; E. Smith, King of Tairua special claim, Oluii; T. I). O'Toole, Tairua Big Reef special claim, Tairua; J. J, Macky, Waharoa special claim, Tapu; R. P. Gibbons, Muto Queon special claim, Mata;' J. B. Blackie, Mayflower special claim, Puvu; John Ward, Band special claim, Tapu; Patrick Qumlnn, Waikawau King spocial claim, Waikawau. ,"•

';■ ADJOUBNEb Cases. Ihe following cases were adjourned to February 4th :—C. J. Sandorson, 6 months' protection for Queenie special claim; E. 0. Martin, 6 months' protection for Queen Eva special claim j Reubens Kerry, permission to work with 2 men instead x>i 12 men for 4 'months; Charles Kingswell, permission ,to work Sybil Extended Bpecial claim with 2 men instead of 25 men for 4 months; (% harles Kingswell, permission » ,% work Ruahine ppecial claim with 2mpn for 4 montls; John P. Ward and Annie Ward applied for' permission to work each of the following licei.stfl holding with 2 men for 4 months: , Egntont, Manaia, Mount d'Or, Nil Desperandum, Eaglehawk, BsriP-a'da, Maoriland, CJintarf, My Dmhy, Ngatipa. Nil Desperandum No. % Golden Hill Extended, and Golden Hill No, 2; Harp of Tara G.M.Cp., permission to work Harp of Tara and $ybilline special claims with 2 men.foi 4 months; James Whiting, pei mission to work Wakamarino special cluini with 2 icen instead of 31 men for 1 months; J. Murdock, permission to work Digger's Dream special claim with 2 men for 4 months; T. S. Morpath, permissi n to wk the Pakeha special claim with I men instead of 14 pyi for i months; European fyllCo,,

permission to work European special claim with 3 men instead of 16 for 4 months;. Mta G.M. (V, permia-ion to work Moa special claim with 4 men instead of 25 men for 4 months; It. Stevenson, 3 months'protection for Crib licensed holding; My Sweetheart Goldmining Company, permission to work Telegraph and My Sweetheart special claims each with 3 men for 4 months; E. C. Beale, permission to work Windsor Castle No, 3 licensed holding with 1 man instead of 33 men for 4 months; Caspian Goldmiuing Company, permission to work Caspian licensed holding with 2 men instead of 6 men for 4 months; 0. Manuel, permission to work Starof England Extended licensedholding with one man instoad of five men for 4 months.—Adjourned sine die ; R. D, Sweetapple, Ringdove special claim, Whangamata; John M. Moran, Royal Standard special claim, Tail ua; W. R, Blooniticld. Waiomo special claim, vTaiomo,—Objected to by P. E. Ryan. Costs allowed Ryan £2 2s; Geo. Lorain, Rotomahana United No. 2 special claim, Tairua; A. Wright and J. Blackie, Puru Success special claim, Puru j A. S. Thorburn, Streak of Luck licensed holding, Puriri.—Objected to b) A, McLoughlin; J. G. Wobstcr, Carnival special claim, Puriri.—Objected, to by G, Bedford; H. Culpan, United Gold' Reefs special claim, Tairua ; J. Murdoch, Khalif special claim. —Objected to by Kauri Timber Company, and adjourned for. amendment of plan; J. A. Young, Lionel special claim, Oniahu j R. J. Dunn, Collegian special claim, Oinaliu; E. Mansfield, Julius Caesar special claim, Omahu; G. B; Wither, Blount Nessing special claim, Tairuaj.G. B. Wither, Bella Vista special claim, Tairua; ,1. J. Odium, Marshal Ney special claim, Tairua; J. J. Odium, Akarana special claim, Tairua; J. J. Odium, Moana special claim, Tairua; J. E. McKouney, Matangi special claim, Tairua; R.J, Mcßae,' Eureka speoial claim, Tairua; Reubens Ken y, Way's Freehold special olaim, Tararu-Objected to by George Way; Reubens Kerry, Taylor's Freehold special claim, Tararu—Objected to by A. W; Taylor; Charles Hudsonj Mistletoe special claim, Tararu; John Braiy, Sheet Anchor special claim Waiomo: J. JohnsoD, Black Douglas special claim, Puru—An objection by James B. Fairs was withdrawn; Chas. Manuel, JAlameda special claim, Puru —Encroaches on Puru reserve j R. S. Aickon, Wenona Extended special claim, Puru; Herbert Gentles, Eng- - lish Consols, Tairua—Objected to by Kauri Timber Company; J. M. Moran, American Consols special claim, Tairua —Objected to by Kauri Timber Coj; R,O. Long,. New Olive special claim, Pui'ii; J. G. Wobstor, Lady Wilmor special claim, Tararu—Objected to by Simon Eraser—Adjourned to Fob ruary 18th, costs alWod objector £2 2s. Applicant was allowed £1 Is 3osts against E. 0. Beale, who withIrew an objection. A largo number of applications woro ldjournod until Fobruary 18th.

Withdrawals. . Tho following applications wovo withdrawn:—R. Mqoro, Tairua Pyramids spocial claim, Tairua; J. Ansonno, Arrow liconsed holding, Whangamata; Joseph Varnoy, Huia special claim, Whangamata—Objocted to by P. E, Eyan, £2 2s cost allowed to objector.

•• - d&bhiing ill mining dild H miillljg j i*±9P4Wtei',ratid; ; could not bo excused on the {\~ : ground of ignorance of law. George Hodgette White deposed that wit« neas got permission from tho Warden to work tho Dixon's with 2 men in October. He. would have put on the meD, but an application was lodged just after for an amalgamated special olaim, including tho Dixon's and other ground. Tho Dixon's

, , couldnot bo conveniently worked by itself, > '\ , and | : witness thought tho amalgamated '*~. r application would carry protection with it. -,- 1 *■- Would have surrendered his title- at once, but witness thought this was not necessary till tho amalgamated special olaini was granted. Was not holding tho Dixon's r > speculatively. It had been under option. . Under the circumstances witness asked for ■. - a fine in lieu of forfeiture, His ignorance of the law was the reason why ho did not . ' surrender tho title, ,' ,/:.: v ,Crosß'examined by Mr Baumo—Had 'boen.prbvidußly.finod for, breach of the in connection with tho Dixon's. ,:,., .Work had* been dono on tho ground, Millor contended tnat the'ground was protecced on tho strength of tho • amalgamating application, and quoted from the rules (9 and 211) in support of his con- ■ tantion, ■ The Warden said tho Legislature never contemplated that people could evade tho ' labor laws by simply putting in an application for another kind of holding. Tho ground according to rulo 9 was not open to (xicupation, but could bo pegged. After further argument on this point, Mr Miller urged that Mr White's excuso was very feasible. Ho lodged an application for the amalgamated special olaim a day or two after tho permission order, and was under tho impression that this carried protection. Tho period of non-working was not a lengthy one. Mr Baumo, aftor devoting some attention \ I to the ; legal point raised on rule 217 as to • whothor tho pendonoy of an application involved protection, and arguing against Mr / Miller's contention, referred, to the fine previously inflicted on defendant in connection with tho Dixon's. Ono plaint was laid against defendant and was withdrawn; another was laid subsequently arid a fino of £3 uflictcdin Ootober in lieu of forfeiture on the understanding that two men would bo employed. Defendant in making that promiso mustlmvo ■ intended to deceivo the Court, because a day or ' :,two afterwards he brought down an application by which he aimed at absolute protection. Mr, ; Baiinie went on to say, that if protection could bo obtained by simply lodging an.application for tho ground involved, then tho labor clauses could bo evaded and there would be no occasion at all for peoplo to come to tho Court for protection. Tho question was whether tho Warden should "' --allow a man to continuo having plaints laid against him, and meoting thorn by securing a withdrawal or substitution of fino.

Mr Miller, in reply, rovorted to rulo 217 and hold that any application in conneo ■ tion with any ground, properly posted uj thereon ahd notified, earned protection tc that ground. Tho Warden decided to resorvo judg- .;, mpnt/v ' ■ A TAIRUA CASE. .0. S. Budge, Gctn of Tairua special claim, Tairua—Objected to by the Kauri Timboi Company on the ground of encroachment on their freehold blook, Pakirarahi No. 1. Messrs Jackson i Palmer and Clendon ap« peared for applicant, and Mr MoCormick foi the Company. The ordinary, details of. compliance with ... J thejjregulations, wero admitted, and Mr * '["' McCormTck said thooaso was entirely a ques- :}, jjtjo'n of- title.' He submitted that the area ap- '■''' plied for encroached on the freehold property {:, • *'of; the Kauri Timber Company. Pakirarahi , 1. was the Company's freehold by transfer £ :'■}?< Me/dated Soptembor 9th, 1875, with areTernog olauso September 14th, 1875. -' Tho Company f s certificate was put in evidenoe, and Mr Palmer, on behalf of applicant, formally admitted that the ground ■ . applied for was on Pakirarahi No. 1. V 'After disposing of this preliminary work, the Court adjourned till 2 o'clock. On tho Court resuming, Mr JacksonPalmer addressed the Court upon the history of Pakirarahi No. 1 and the adjoin, which has been detailed in our ■ cblomhs'oh previous'occasions. The agreo- '■ wnts November 9th, 1867, by which the natives coded Pakirarahi for mining pur- ' poses, and which (although not validated) was put in evidonce; tho agreemonfc of 1868, and the proclamation by Mr James Mackay.of April Bth, 1875,' including . Pakirarahi within the goldfield, woro tho chief points enlarged upon, and Mr Palmer stated that from 1875 till the present day ~ .the.Government had continuously held ' ; ' mining rights in the block, and the flo- ', jernment tenants had.been continuously '•' mining thereon. •..' ", ,; ~The Wardon stated that "included on the '; goldfield " meant nothing. :.-Mr Palmer admitted that within a goldfield {hero might be land which is not Crown lafid; but it was different when a particular block was proclaimed as part of tho goldfield. With'regard to thoUnion SashandDoor Co., thatywas incomplete in 1882 and was completed'in 1881. In responso to notico tho other- side had failed to produce that portion '•of their title. The Warden pointed out that tho Company could not possibly do so, as tho sur- ,'. render of that portion of the title to the Registrar was compulsory. .Mr McCormick concim'ed in this, and after, further argument tho Warden said ho would'not give judgment in tho present caso till tho. Slipromo Coui't had given judginont in tho appeal in the Jit. Morgan case.'* I '''

, George: Symons Budgo, sworn, stated that he'.was applicant for the Gem of 'iTairua special claim, which was Crown land and open to mining. Ngakap'a. ''Hori Whnnanga, native chief, was next, called, and after the agreement of 1867 was read by tho Inspector, witness certified to it and stated that he had rigned it. That agreement was mado at a meeting held ; at.' Shortland, at which Mr Mackay, the agent,' -was present. It was made in consequent of somo gold being sent from.Cdroraandel sorao time previously. The Warden oxprcsscd surprise that Mr McCormick had not objected to tho questions put to witness as to how tho agreement was made,

Witness: Tho agreement was signed by all the signatories together. Witness saw it signed'. Witness and tho other signatories were authorised by the tribo to sign. Tho Warden at this stago read the agreement, and said it was apparently nn agreement ceding tho right to mine. Witness: Tho signatories were chiefs, not ordinary people. Thoy were chiefs of tho tribes Nga to Whanaungn, Nga to Tora, and Nga to Maru. _ s • (Oonikued on Fagg 3.)