D.—4a

24

existing facts. Then, we have the further words in the clause as to " the several purposes connected therewith or incidental or conducive thereto," regarding which there cannot be, I think, much contention. Now, the submission I have to make in connection with the whole of this subclause (c) of clause 16 is that it is to be read subject to the Mining Act in force at the time of this contract being entered into. I have not referred to the Proclamations as evidencing anything but the obstructive action of the Government —in fact, we challenge the Proclamations. They appear to have been made under the contract. I contend they should have been made under the law as at the time it existed. Sir B. Stout: What law ? Mr. Hutchison : The mining law. Sir B. Stout: The Westland Act might be used. Mr. Hutchison : No; these Proclamations were not made under any Act. We say that they should have been made under the Mining Act. Sir B. Stout: Do not they say, " anything and everything enabling them thereto " ? Mr. Hutchison: They do not purport to be made under the Mining Act. Sir B. Stout: Where do you say it is under the Mining Act ? Mr. Hutchison : The law as to mining at the time in force was contained in the Acts of 1886 and 1887. These give an intelligent meaning to the clause which it would not otherwise have. If the Proclamations were made under the Mining Act, in relation to subclause (c) of clause 16 of the contract, they could only have been made in respect of areas where there were actual gold-workings, and where there were actual gold-workings the company would have been the last to object, inasmuch as nothing is more fruitful of traffic than a goldfield. Our objection comes to this: that these reserves were made where there was no gold-mining of any consequence, and that we were thus prevented from selecting lands along the route of a railway made for the purpose of producing revenue as against the debenture capital of 1889. The effect of these so-called mining reservations was that when the railway was opened for traffic, instead of serving a populous and prosperous district, it might almost as well have been made through a desert, except, of course, in respect of the lands previously settled in the Grey Valley, which, however, were of a very limited character. Now, the Mining Act of 1886 provides under Part I. for mining districts being proclaimed in any part of the colony. The lands on the West Coast that lam now referring to had been all proclaimed mining districts—that is, in the sense of bringing them under the operation of the Act. There were the Beefton, the Westland, the Nelson, and other mining districts proclaimed under the law I have referred to. Sir B. Stout : Tbey were proclaimed before, and this Act continued them. Mr. Hutchison: The important section of the Act is the 25th, which says : " The Governor, in any Proclamation constituting a mining district, and also from time to time by Proclamation subsequently issued, either by general or particular description, may set apart for mining purposes exclusively any portion of Crown lands within a mining district, and in like manner may exempt from occupation for mining purposes, or for water-races, dams, or reservoirs, or for machine, business, or residence sites, any land within the boundaries of such mining district; and from time to time may revoke any such exemption, or may alter the limits and extent of such exempted land as he may think fit." The 26th section provides that " the Minister may from time to time, with the sanction of the Governor, set apart for mining purposes exclusively any of the Crown lands within a mining district or outside thereof; but in the neighbourhood of any place where mining operations are carried on, and upon such reserve being so made, the lands comprised therein shall cease to be Crown lands, and shall not be capable of alienation in any way, save for mining purposes, without the consent of the Minister, and then only by the Governorin Council." The provisions of the 26th section, which I have just read, conferring power on the Minister, seem to be restricted to reservations in the neighbourhood of places where mining operations were already in existence. The previous section, which seems to be more apposite to my present argument, is that the Governor may, by Proclamation subsequent to the proclamation of a mining district, set apart any land that he may think proper for mining purposes; and if that power had been exercised under the limitations of subclause (c) of clause 16 as to bond fide mining purposes, the company would, as I have said, have been the last to object, because it would have had the assurance of the realisation of actual mining settlement along the course of its railway. My contention on that point may be supported by a reference to clause 20 of the contract, which refers to the Mining Acts. The clause reads: "The selection by and grant to the company of any lands within any mining district constituted under ' The Mining Act, 1886,' which may abut on or include any river or watercourse, shall not be deemed to give the company, or any person claiming through or under the company, any right or title to the uninterrupted flow of the water therein, or to give any claim for damage by reason of the interruption of such flow or for the pollution of the water in such river or watercourse by mining operations, or by the deposit of tailings or mining debris therein, or to give any further or better title in respect of any such river or watercourse, or the water therein, than would be acquired by any person purchasing lands from the Crown that are or may be subject to the provisions of section 3 of ' The Mining Act Amendment Act (No. 2), 1887.' " I submit, therefore, that subclause (c) of 16 is to be read in connection with the Act of 1886. The first part of the subclause restricts the power under the Act to the authorised area of selection under the contract, and applies only to lands that could be shown to be required for bond fide mining purposes, which, by the latter part of the clause, could not be more in all than 750,000 acres. These are the contentions I submit as to the interpretation of subclause (c) of clause 16. It may, however, be said, and probably with truth, that this clause is ambiguous; that it contains a latent ambiguity, and, if so, the general rule would apply, that parol evidence of the declarations and acts of the parties is admissible for the purpose of explaining it. Sir B. Stout: Which parties ? ','.•: Mr. Hutchison: The parties to the contract.