The Evening Star WEDNESDAY, JULY 5, 1871.

Evening Star, Volume IX, Issue 2615, 5 July 1871, Page 2

The Evening Star WEDNESDAY, JULY 5, 1871.

Resuming our consideration of the Report of the Mining Commission, we have in the first place to express our regret that the portion of it which we

may considei* preliminary and exponent of the principles to be borne in view in future legislation, was not better arranged. No doubt, in dealing with some ninety resolutions, the Commissioners had a natural difficulty in resolving their various elements and arranging the conclusions arrived at in anything like a logical sequence; the result is inconvenient for the purposes of analysis ’ } for instance, having dealt with the question of the tenure of mining property, they go on to say, without even the formality of a new paragraph — In fact they considered that the provisions of Sections 3 to 23 inclusive, of the Victorian Mining Statute of 1865, should be adopted with certain additional provisions rendered necessary by the different mode of mining pursued in Otago, from that usual m Victoria—namely, “ground sluicing.” The additional provisions referred to are—l. lo give the miners a right to use, to a reasonable extent, unoccupied Waste Lands of the Crown for the discharge of the debris arising ■from sluicing operations, and a provision for exonerating them from liability from necessarily fouling streams and rivers, in following that mode of mining. Your Commissioners do not pretend to say that such a liability does or does not arise under the existing law; but assuming that it does, it is evident that the Colony, or some large part of it, might be suddenly paralyzed by some individual setting the law in motion to stop one of its leading industries.

A question it will be seen is here raised of a most serious and important character; one which at once brings the mining interest face to face with the agriculturist and the pastoral tenant. We cannot say how far the recommendrtion is practicable ; certainly, if carried out, it would necessitate the setting aside by statute the “common law” of England under which these matters are regulated ; and we hardly think the General Assembly would see their way to this upon the premises adduced. We should certainly liave expected upon this head, if noticed at all, some more practical suggestions than the « exonerating ” miners by statute from all consequences arising from their method of work ; however such method may display utter want of scientific knowledge and carelessness of every other interest but their own. This branch of their Report is concluded by attention being called to the necessity of providing some convenient mode for the registration and transfer of mining property. The present law they observe is cumbrous and costly, and they recommend that the “ mode, “ effect, and form of transfer of mining u property, whether absolutely or by “ way of mortgage,” should be fixed by statute ; and they further suggest with regard to securities, that legislation analogous to the “Agricultural Pro- “ duce Liens Act,” witii local registry officer’s and defined districts, might suit the requirements of the case. These ideas are in a very valuable direction, and further prove that the Commissioners have thoughtfully considered the question of rendering mining investment by the capitalists more easy of arrangement, and less liable to risk. As we have observed before, this is one of the most important things we have to look to; in Otago our goldfields have languished from the want of foreign capital, and nothing will tend so much to their development in the fullest sense of the word tfiap its healthy introduction. Up to this time piining indeed has been undertaken in a very hap-hazard way; in most cases with utter disregai’d of system and science ; works have been undertaken with a minimum of money and labor, with the result of unsatisfactory returns or abandonment when half complete. The famous Caledonian claim, had it been in the Province, would probably have shared the fate of the Skippers and Shotover Reefs—been abandoned for want of funds, and left to enrich a future generation. L 20,000 was sunk before the golden quartz was reached. Our goldfields are only “ scratched over “at present; they present a field of re- “ muuerative labor for years to a large “ population ; but the one thing needful “ is capital, and to secure capital, it is “ essential there should be security of “ title,”

Having disposed of the consideration of general principles, and fljojse questions which seemed to them naturally connected therewith, the Commissioners proceed to set forth the decisions they have arrived at upon matters of detail in connection with the existing law, and the desirable amendments ; and first they take up the vexata questio of “ water rights,” In the Conference, upon the first resolution discussed —“ That the reservation of “ two sluice heads, to be allowed to “ flow down the natural channel of “ each stream, for general use should 11 be annulled ” —we understand that much division of opinion was expressed, and that indeed it was only carried by a very narrow m ajoriiy. 11 was, however, adopted, and embodied in the Report. The action of the Commissioners upon this point has been very keenly criticised by the up-country papers. We give the text of their recommendation WATBK EIGHTS, This important branch of mining law has

received the gravest consideration from your Commissioners, and has been the subject of much debate, particularly as regards one point. In the existing statute and regulations a reservation is made of two sluice heads of water to be allowed to flow down each stream when required for general use. The Courts have decided, in the few cases brought before them, that this is of the nature of an exception operative on the demand of any person who might be able to say he required the two sluice heads to fl iw down. Your Commissioners by a majority have decided that such an exception ere ites an element of insecurity in the tenure, which operates very unfairly as regards these who hav j invested their capital or labor in constructing water races. That there is no object of public policy to be served by taking the water from those who have expended capital in diverting it with the view of carrying on mining, to give it to others who may have expended little or no capital, and who do not propose to use it in a way more beneficial to the State than the parties from whom it is taken. Your Commissioners are therefore of opinion that no such exception should be made in licenses henceforth to be granted; but they are most anxious to guard themselves from recommending any interference with existing rights or the decisions of the Courts. They believe that the gravest injustice might be perpetrated by an enactment having a retrospective effect; and would desire that in all cases where their recommendations may seem to affect existing interests, the attention of the law or other persons having the duty of drafting the new statutes should he carefully directed to the necessity of avoiding giving any retrospective effect to them ; but at the same tiine, where existing water rights have not

been affected by the exception, or when the temporary use for which the exception has been brought into operation shall cease, they desire to recommend that the owners _of water races may be afforded an opportunity of bringing their tenure under the operation of the new law. This matter has engaged the particular attention of your Commissioners, because it has been the subject of litigation.

Tim Commissioners have clone well in calling serious attention to this subject. It never could have been the intention of the framers of the Act of 1866 to set aside the very first principles of all mining tenure—“first come first served,” legally “ priority of right.” The Courts have however ruled that “ general “ purposes” include mining; and that therefore any party demanding water for mining, in the bed or on thn banks of a stream can, under cover of the law oblige the raceholder, who may have diverted the water years before at the cost of thousands of pounds, to let it run down : thus rendering his property valueless. “ General purposes” was evidently intended to include purposes other than mining, and the provision was introduced into the Act in order to provide that the drainage, say of a whole watershed, should not be diverted for mining purposes by large races or channels, leaving towns, villages, and agricultural settlements to perish of drought. However a blunder has been unwittingly made, and attention having been thus prominently called to its possible effects, wifi no doubt be set right by the Legislature. Upon the goldfields there are no doubt certain parties who are quite agreeable to leave the matter as it is; who call the race proprietors “ water squatters,” and monopolists who have an eye to the easy working of creek beds with other peoples’ water, We do not think their arguments, so far as we have read them, worthy of much attention, and feel sure they will be frustrated in their attempts at legal spoliation.