SUPREME COURT, HOKITIKA.

Hokitika Guardian, 11 October 1917, Page 4

SUPREME COURT, HOKITIKA.

IMPORTANT RESERVED "DE-

CTSION.

DILL MANS aiININ.fi CASE,

! The reserved decision of Mr J usfcice Rim, was read yesterday by the .Registrar, in the ease stated by Mrav,den Hutchison in the application of Thomas McGrath and Julia McGrath to renew water race licenses.

Mr Murdoch appeared for appli cants.

Justice Sim in his decision, says: This is a case stated for the opinion of this Court under section 335 of the Mining Act, 190 Sby the Warden of the Warden’s Court of Kumara

The applicants, Thomas McGrath and Julia McGrath are the owners of two several licences for water races which were granted to one James Holmes under the Mining Act, lSSf>. : One was granted on the second of September, 1.88.7, to be in iorce until the second of September, 19,02, and, the.other, on the 12th of April, 1889, to be in force until the 12th of April, 1904. These licenses were transferred to the applicants on the 3rd of September, 1890. On the 16th of June, 1917, the applicants to the Warden at Ivumara loi a,renewal of these privileges. It was proved that the water races had been used constantly since the grants thereof respectively, and that the applicants had not abandoned or 'neglected them or allowed them to become liable to forfeiture and cancellation on any ground whatever, and that failure to renew the licenses on the proper dates was entirely due to inadvertence. The question submitted by the Warden is this: Whether mining privileges granted nnder the Alining Act, 1886, and not subsisting at the date of the coming into operation of the Alining Act, 1905 can be renewed ? Mr Alurdocb, who appeared on behalf of the applicants relied on the cases of In re Lusick and Alcflroy 24 N.Z.L.R- 763, and Ln re Alaidman and HallidayV • application 31 AT.Z.L.R. 869 in support, of his contention that the Warden bad jurisdiction to grant the application. In the first mentioned case a water race license had been granted under the Mining Act, 1886 to lie in force until the 28th day of February, 1905. On the 22nd day of February, 1905, the owners applied to the Warden for a renewal of this license. The question submitted to the Supreme Court for its opinion was whether the application ought not to have been made within the time limited by subsection 1 of clause 47 of the regulations made under the Alining Act, 1898. Air Justice Cooper held that the regulations did not apply to such tin application, and that the Warden had jurisdiction to grant the application, if satisfied that the right in question had been continuously and bona iide held and used arid that no forfeiture had been incurred otherwise than by failure to renew the license. The learned Judge hold that the license, although granted under the Act of 1886, was to be deemed, by virtue of the provisions of section 9 of the Mining Act, 1891, to be a license granted under the Act of 1891 with the right in the holder, under regulation 97 of the regulations made under that Act, to a renewal foiyTS - years of the term thereof, even though that term had expired provided the holder satisfied the Warden that the right had been continuously and bona fide held and used, and that no forfeiture had been incurred otherwise than by failure to renew the license. He held also that, although this right had been limited apparently by the Afining Act of 1898, yet by virtue of the provisions of section 2 of the Amendment Act of 1900 that right had been restored to the holders as it existed under the Act of 1891. The position, therefore, under the legislation as it stood when this decision was given was that the application for renewal in such a case might be made at. any I time before the expiration of the 15 years for which the renewal might be granted. This decision was given in Alareh, 1905. In the same year; but later, was passed the Mining Act of 1905. which contained in section 123 thereof provisions the same in substance as those contained in section 2 of the Amendment. Act of 1900, but with this modification that to bring-a water race license under the operation of the section it must not only have been subsisting on the Ist of February, 1599, but also on the date of the commencement of the Act of 1905, viz, the 30th of October, 1905. The Act of 1905 was repealed by the Mining Act of 1908, which reproduced in section 122 thereof the provisions contained in section 123 of the Act of 1905. The construction of section 122 of the Act of .1908 was considered in the case of In re Alaidman and Halliday 31 N.Z.H.R. 869, and it was there held that the construction thereof was settled by the decision in Rusick's case, so far at I any' rate as related to water races granted through Crown Hands. For the purposes of the decision in Alaidman’s case section 122 of the Act of 1908 was treated as being the same as section 2 of the Amendment Act'of 1900, and the question of the effect of tlie words in section 122 “if still subsisting at the date of the coming into operation of this Act ” does not appear to have been considered by Air Justice Williams in deciding that case. But these are the words that

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raised the difficulty before the Warden, and made him doubt whether the decision in Lusick’s case, applied to the Act of 1908, It seems to me, however, that any difficulty created bv these words lias been removed by the Amendment Act of 1915. and that the following is now the position of the licenses in question. 13y virtue of section 122 of the Act of 1908 they, if still subsisting when that Act came into force, are to be deemed to have been granted under that Act, the existing priorities and right of renewal being preserved by sub-sections (a) and (bp Section 170 ot the Act of 1 908 applies in terms to all-licenses granted under that Act, and applies, therefore, to all licenses which, by virtue of section 122, are deemed to have been granted under the Act of .1908. The paragraph (1)) added to section 170 by section 2 of the Amendment Act of 1915 makes it clear, I think, that a water race license is to be treated as still subsisting for the. purposes of section 122 if the only default in relation thereto has been a faillire, to renew the license before the expiration thereof. The Amendment Act has thus got rid of any difficulty caused by the words in section 122 to which I have already referred. It has raised, however, another doubt in the present case by reason of the provisions contained in subsections 2 and 4 of section 2 thereof. Subsection 2is as follows :—“ Section one hundred and seventy of the principal Act as amended by this section shall apply to a license which lias expired before the passing of this Act if application for renewal is made within one year after the passing of this Act,” and then follows a proviso which does not affect the present question. Subsection 4 is as follows :—“ The foregoing provisions in so far as they relate £o the renewal of licenses for mining privileges after the expiration oE such licenses shall apply to water race licenses granted under any former Mining Act., anything in paragraph (b) of section one hundred and twenty-two to the contrary notwithstanding.” It may be suggested that the effect of tlrese provisions was to make it necessary in every case, where the term of a water race license had expired before the passing of the Act of 1915, to apply for the renewal thereof within one year after the passing of the Act.

That may have been the intention, possibly, of the draughtsman when he framed these subsections, but that is not the grammatical meaning of the language used. All that subsection 2 purports to do is to make section 170 applicable to expired licenses if the specified condition is complied with. If, however, that condition is not complied with, then apparently the provision of subsection 2 does not take effect in the case of such expired licenses. According to the decision in the two cases already referred to, the application for renewal in a case sncli as the present, might be made at any time before the expiration of the fifteen years for which the renewal might be granted. That right, ought not to lie held to have been taken I away or abridged in any way r unless the intention of the Legislature to do so has been made clear. Subsection 2 of section 2 does not disclose clearly any such intention, and, in my opinion, it ought not to be treated as applying to the licenses in the present case. Nor, in my opinion, ought the limitation contained in paragraph (e) of section J7O to be treated a-s applying to these licenses. That subsection applies, I think, to cases where there was no existing right of renewal, and confers a right in such cases, subject to the specified condition as to the time for applying fbr the renewal. In the present case, however, the right of renewal was conferred by the "Act of 1891, and that right liss been preserved by subsection (b) of section 122, and ought not to be treated as limited by subsection (c) of section 170 The answer, therefore, to the question submitted by the Warden is that the licenses ought to be treated as still subsisting when the Act of 1908 came-into force, and that the Warden has jurisdiction to renew them.