OTEKAIKE ESTATE.

Dominion, Volume 1, Issue 172, 14 April 1908, Page 9

OTEKAIKE ESTATE.

PREFERENCE TO EMPLOYEES. , IMPORTANT LEGAL QUESTION. INTERESTING ■ CORRESPONDENCE, It is doubtful whether a case of grcator importance;from a land- settlement, point,: qf Tiow than that of Messrs. Mitchell' and M'Kellarv, the Otago Land: Board —which engaged tho attention of thp Court of Appeal for : three days last weok—has been heard Dominion for n considerable period. By t(io Land Laws Amendment Act, 1907, the renewable loaso systom was, it will bo • remembered, • substituted , for tho leaso-in-perpetuity systom. Among tho more important provisions in tho now Act was Section 80; which roads as follows i ' r," Before any land'required under tho .. • principal Act' is open for public selection; tlia Board with tho approval of the-Minister, grant a renewable lease of'any allotment thereof without competition to any. person who has been epiployed by the Into owner thereof for at least' firo years immediately preceding its , acquisition, and . who, by such apquisition; is deprived of bis employment, at a . rental- to bo determined by tho Board, being' £4' 10s. per,centum of .the capital > valuo'of tho land ao fixed by :the Minister ■ in accordance with Section 51 of the principal Act. .. - "Providec}: That' such person shall jnako• the . necessary declaration 'and othorwis6 comply:ivitli the. conditions re-; quiredr-to bo performed by an.applicant for Grown lands.!'-■ .-. r,r

Prior to tlio' Otokaiko'. Estate, which is . situated in-North, Qtago,.being: opened . fox selection, :plamtiffs, -Tvlio had been in tho employ iQf. tho ..Into vproprietors,.. Messrs, R. Campbell and : Sons,: applied totho, : Otago Land Board for the grant to theni of renewable. leases without competition of-allotments containing 3913: acres and 2367 acres,respectively,-- When it became known that-tho applications had ; been granted by tho Board; and'.that: itho .Minister for Lands had signified.his'approval,numbers of.intending applicants for sections considered that a grave injustice had; been done, seeing that Messrs. Mitchell andM'Kollai'had not been employed by tho late -proprietors for tho period . required ; ly tho -Act; on tho particular cstato acquired. ■ As'a matter of fact,-M'Kollar was; employed on the Otekaiko Estato for several short periods,' aggrogatmg only about: ono year; whilst Mitchell:had not hoen employed on the'estato. m question at all. Both, .however, claimed' that;, tliey camo within Section 80- • .Subsequently,. thp - Minuter; withdrew his sanctioiij and tho Laud Board'cancelled tho' grants;,'h'encf the proceedings in . the Court 7of Appeal, tho questions at issue-de-pending upon tho ; mtorpretation to be placed on the section m question. Tho judgment of. the Court is being -awaited .with great interest. !■ - ; " f

Tho following letters arid telegrams, which appeared- in a pamphlet accompanyingtlio printed • statement of the case, make, interesting reading, in view-of the fact'that tho Attorney-General?; (Dr;-. ; Fmdla-Jy KiC.), arguedi intended to so completely /widen : the: provisionsma': to embraco- any--personj ■ no matter, how or where employed by the, late, owner of estate;'! that: .the ■ Minister,-,for • Lands (Honi'-'R;-''M'Nab) holds that the law docs not require employment to be on tho. property purchased." ■- - '

-.-,» (Tetter.) ■ ■ • ■ December, 1907..: tlr. Maopherson, M.F. . ,i \ I beg to acknowledge receipt ofyour letter 3ated'l9th.' mst;;. in reference to the coniolaint 'as to.-'the' administration- of the new. Land . Act. The duplicator of a -letter sent oyyoiito the Commissioner of Crown: Lands at.Dunedin. shews',that those :who.are taking. ez<»JtiWfei'^hatr:»heyi'cdnsidor-is -a J :gravp. and not 'in keeping with .'the -provisions"of the:new- L.lnd Act, are:-riot them-' selves; awaro. whati the jirovisioijs of the . nbiv Actjare:;; The cases; of Mitchell and' McKqllar aro -taken' exception' to because' they- had; not boen f 'employed at Otekaiko during the lastfive . years. Section ",80/ of: : the-. Land-.' Acti (Amendment Bill' gives' power to : grarit ; leases without competition'to any person '.'.who has been > employed , by ; the lato ■oivnei' ' -thereof lor at least'/ive/years - immediately preceding its acqtiisitio'n, "and Vho'by-such acquisition is. deprived of hio employment." The-law;.does not ;require..employment to be oil ; tlie 'pro: perty>< purchased.'.' It'may ; be anywhere so loiig..;M '-.employment.. ceaseß on account of! purchase, ivrhis:- was : deliberately put into the .Act for this purpose. To require employinent . to ( have, been"; on the - estate, woukj Laye-jbeen. farcical, as 'men . in' these .large employments are liable-to, be changed from plMo; to >placo. That'was recognised, and 'it was ;:cndeavoured to . meet -.the <•'position by the clause in- question, and personally 1 am very;-■strongly,,'. of-. opinion ';thatthese, ' per-, manent>empl6yees on a .property/'should, re-; ceivo-. special, consideration, arid I/cannot see ray . way' to recodo from tho position'taken up I am satisfied with the action of tho Otago -Land Board; in- recommending : the names they did./yCertainly-the grounds stated as those of ithfe objoctors aro not'; based on a knoivledgo of ..the statute. . . ;^X': • -" , ROBERT McNAB. , iv,- - (Letter.) / "'-'-V 93/2860. .3rd. January,: 1908. J. A. Macphorson, Esq;, M.P., i ••• Creag-Dhu, Borton's. ■" - , RE OTEKAIKE; . - Your letter of tho 19th. ult. reached the. office .during my absence from t-own, hence tho delay'in replying. •I have to stato for your 'information that each-of ;the -cases, mentiotfec! by. you was duly considered by. the Land Board," whose recomniendatibng.wero: submitted in due course to, the ' , Htiii..rtho ..Mmiator.. of Lands, /who endorsed th'em,' 'and, approved; the. applications, as required;by tho Act'.- The conclusion come to was, of. course, that the provisions of tho Land: Laws /Amendment Act covered each '»f the cases' in question. ■ ' '■■'■ ~ (Sgd.) J). BARRON, , I Commissioner of Crown Lands. i . . ■ ■ . . (Telegram.) < ,' Government Buildings, 1 sth February, 1908. : David Barron. ; ; - ' Commissioner. Crown, Lands, Onmaru (or forward). • , Re OteKaike.—Crown Law Offices adviso that McKellar and'Mitcheil arc not entitled under- Section eignty and Minister can with-draw-.his-: approval. Under theso circumstances would suggest that; Board hold meeting .and' rcscirfd .former-'recommendation so that Minister , may . not bo~compcllcd to take action and refuse his approval which ho gave by wire informally. . .....-■ , (Sgd.) WILLIAM.KENSINGTON, V-.,...'Under-Secretary. , -.- (Telegram.) -Wellington, sth February. David Barron, '' • Commissioner'ofx Crown Lands, Oamaru. Re Otekaike.--Applications by Mitchell Mid McKellar clearly contrary to provisions of Section eighty of Amendment Act, 1907,

as neither employee fulfilled prescribed conditions as shown m your mbmo,. of fifth December. Crown Law Officers' opinion now being obtained as to whethor resolution of Laud Board referring to their cases should not bo quashed will advise yoii later on unloss Hoard preler holding special mooting and reviewing cases mentioned themselves. ■ . : WM. C. KENSINGTON, .' Undor-Secrotary. (Telegram.) Oamarn, sth February, 1908. Lands, Wellington. : Both -Mitchell and l\lcKellar proved to tho satisfaction of the Land Board that they had been employed by tho, owner of tho estate for the poriod required' bytho Act, and had lost their employment through tho salo of tho Otokaiko Estato. 'Board proposes to hold special meeting' arid further examine, Mitchell and McKellar as to tho truth of their former statomonts' and . also Campbell''who certifiedthat applicants had .been five years in tho omploy of the firm and ' had been deprived of their employment through tho salo • of Otekaikc. ■ ■ • ' (Sgd.) D. BARRON, •'■' .Commissioner.

: (Telegram.) Government Buildings, . i , ■ 6th February, 1908. David Barron, . Commissioner Crown Lands, i • Oamaru. ; Ro Otekaikc.—Pleaso understand that Minister has obtained Law Officers' .opinion that approval has not been legally, given and wishes same to have; full weight with Board as your incmorandum of fifth December makes it jporfectly clear that neither McKellar nor .'Mitchell have ; sufficiently complied with provisions of Act. Am glad ypu aro bringing'.matter jibeforo' special meeting 'in order that Boardi may have opportunity of further o'onsidoring 'riiatter with full knowledgo of facts of caso and legal position as Minister is reluctant to disallow Board's recommenda'unless compelled 'by knowledgo that according to legal authority tho applicants aro notientitled to benefits of Section eighty as you havo been advised. WILLIAM KENSINGTON, ■ Under-Secretary. (Telegram/) ■ • ■ Governnicnt Buildings, . : j•' 11th • February, ISQB. D. Barron, . •, i ; Commissioner Crown Lands, Dnncdin. - Re Otokaike. —Do nQt see. any necessity for omploymcrit of Crown Solicitor nor for applicants' solicitors to appear before; Board it being purely mattor for Board's decision. "Sou liare- already been advised that on evi-dence-supplied by you ill memorandum fifth December which was not - seen by • Minister until after , despatch of his tplegram in re- ; sponso ,■ to , yours.. of' -same'-'. date and. which consequently', gavo ' him no ■ ' opportunity, of knowing facts of. case that Crown.'Law Officers'' opinion is that McKellar and Mitchell aro .riot entitled under Section 80 arid Minister can' withdraw his approval. ' In any case -'Board should' require 'sworn''.'declaration - before Justice both from applicants , and their lato< employers as to employment and mere .statement is insufficient.' WILLIAM KENSINGTON, V.; • : -i'[ \ ,;.;V ■■ Under-Secretary. • - -. • (Telegram.) ,' • • •:-Dunedin,'. 13th Fobruary,; IOOS. ' OPS.O . ; Under-Secretary Lands, Wellington:

"Re Otokaike. —Applicants ; McKellar and Mitchell reheard yesterday also Mr.'R.' 0. Campbell whoso sworn ovidenco fully substantiated; statements nuido by them on fifth' December that applicants had lost or were Josmg their employment through . Uovernment's acquisition of Otekaiko and ..that, such employment had feen,.contiiiuQiis»ori tlio; company's properties for five '■years*'"immediately preceding'j2!tyh> Board,' quoiico decided that 'it miist adhdro tb'recom-" mediation previously made.by it in favour of Messrs. McKellar and Mitchell. Copy of sworn and signed oVidenco wilbbo' posted. D.8., Commissioner.

1 ■ ' (Letter.)'.,' " 13th February, _190 S. The Under-Secretary for' Lands ,; '• • Wellington. .. .- . . ' , 11E OTEKA IKE-^APPLICANTS, McKELLAR AND MITCHELL. ■ Following up my wiro of : this morning I now, : f or ward for the information of .the 'Honv •' tl\o •.•Minister copy of 1 the signed 'notes of the -evidence taken yesterday' on , oath of Messrs. 'McKellar and Mitchell tho two applicants. to. whom'exception.has' been.taken, Mr.' R. 0. Campbell and Mr. James Roberts (on behalf, of.: -Messrs;. Mnrr'ay, .Roberts -arid Co. as representing R. Campbell' and; Sons Limited): •• : ■' . ..'

M'also enclosG,.extracts, from the "Otago Daily Times" and "Evening/Star" newspapers; containing reports or the 'proceedings 'at. the inquiry/ and from thes9 you will see : that the; applicants, and, : Mr. Campbell elcctcd; to -be-. represented 'by.' counsel. , You will .also notice the: remarks .of VMjV J. H. Hosking ; K.C.,in r reference to;tho applicants' rights arid the Solicitor-General's' opinion! . .. .The evidence cloarly - substantiates -the; former. ■ statements 'of tho applicant's that they have been in 1 continuous employment •on • the 1 properties of Messrs. R. Campbell and Sons for five years immediately preceding tbb acquisition by tho Government of Otekaiko Estate and that they' have lost or aro losing such; employment by such acquisistion./'; - : '.. .'. -

; This evidence, is ;niade tho more emphatic '.by :having ,been'taken on oath and having been further supported by the production of the company's books showing continuous employment by. tho employees'concerned! •• - . In'- view-' of these facts the Land Board as , stated in my wire had- iio alteniativo, i but to adliere to its' recommendation in favour of Messrs. McKellar and .'Mitchell.-, as , forwarded to -you on sth December last.- : ; Tlio following is .the Board's; resolution:— ''■After, hearing the .evidence'., of, Messrs.. McKellar and 'Mitchell- (tho applicants) a|so Mr.; Campbell (the managing ; director ..of Robortv Campbell and . SonS Ltd.) and Mr. James Roberts (of Messrs.. Murray, Roberts and Co.' agents for tho company) tho Board, is of opinion that , such evidence substantiates the statements made by the applicants on sth December last and resolves that tho Hon. tho Minister of Lands he informed.that it cannot alter tho recommendation j>reviously. made by it in.favour of Messrs. McKollar and Mitcheli.

■ COMMISSIONER OF CROWN LANDS, i (Telegram.) / Government Buildings, ■ 19th February, 1908. Land 3, Dunedin. , Ro Otekaiko.—Minister has submitted: all ovidenco you''forwarded to Solicitor-General. His opinion, just given is to tho effect that the Land Board's decision is against both tho legal position as set forth ! in; Section 80 and also clearly against tho spirit and manifest intention of tho statute. ■ As tho Hon. J) r. McNab is away at Hokitika ,lam keeping -tho-lhatter-for his own decision. . ' WILLIAM KENSINGTON, ■ . Under-Secretary. . .(Telegram.) 1 Government Buildings,'s6. 21st February, 1908. D. Barron, - ' Commissioner Crown Lands, - . Dunedin. , Re Otekaiko of course you distinctly understand that tho . .Minister's telegraphed approval of the two cases under review is withdrawn it having been given without tho ovidenco having been put before him.' The matter will bo considered by the .Minister do novo oil his return from Wostlaml. , WILLIAM KENSINGTON, : . ■ ' . Under-Secretary. ' , . 0.1'.5.0. : Dunedin, Ulth February, 1908. Under-Secretary Lands, ;'. Wellington. ' / .Be Otekaiko.—Following your telegram nf 21st it is your desire that 1 should intimate to the applicants the withdrawal of

Minister's approval. You understand l presume they lodged applications and deposits in due form and wero advised of said approval. ' D.U., Commissioner. (Copy Telegram.) i. \ .' . ■ Government Buildings— ii-lth February, 14)08; Lands, Dunedin. \ Re Otekaikc.—As 1 intended to convey in my last two telegrams let the matter stand over until 1 inform you of (ho Minister 5; decision upon his return from the West Coast about Saturday or Monday next. ' ' \ ... WILLIAM''. KENSINGTON, ;. . , Under-Secretary. (Letter —I'JaOH.) • Department of Lands, • Wellington, ; 2nd -»aroh,' IUOB. Tho Commissioner of Crown Lands, , i Dunedin. Preference' to Applicants—Otekaiko Estate. : With reference to tho • resolution of tho Otago. Land Board recommending that preference bo given under 'Section 80 of '"I 110 Land Laws Amendment Act 11)07 " to Messrs. McKollar arid Mitchell 1 hereby formally give you notico that 1, withdraw my. provisional consent -to sections in tho Otokaike Estate being aljptted to tho above'applicants as such approval was ; based upon deficient evidence supplied to mo and' 1 do riot approvo of preference being granted to Messrs. McKellar and Mitchell under Section.Bo abovci quoted. ROBERT JMcNAB,. ' , Minister of Lands. ■ (Letter.) . " , : ! . 10368.". : Department of Lands, ■ Wellington, 3rd March, 11)08. The Commissioner of Crown Lands, ; Dunedin. ■ ' < PRKFEIIiiiNCIS TO Al'l'LlCAiNTS— O'I'EKAIKE ESTATE. ■ V With reference to the correspondence that haa taken place on the subject of the application by Messrs. McKellar and'Mitchell X' liavo now to inform ; you that the most careful consideration has been given hy the Government to the representations of the applicants and the Land Board as conveyed in your memorandum of the 13th. ultimo. (i\o. 101/2860). and.provious letters and legal advico has been obtained on the "whole lriattcr'with the result that'.it'has'<been' decided by tho Hon: Minister of Lands to decline to approvo of tho applications in question under' Section 80 of " The' Land Laws .Ameildment Act '1907.",;' : ...,. : I have theroforo to request'you to -nt once , takenstops '.to- havo. tho allotmentß which the Board proposed- to lease, to . them rp-ppoued for. publio application and-selection in the usual manner. ,WM. IUiiNSINGTON, . , ■ . Under-Secrclary.. "... . " ■ '