AN IMPORTANT DECISION

Hokitika Guardian, 22 February 1924, Page 4

AN IMPORTANT DECISION

AFFECTING SAWMILL INDUSTRY. Warden Moldrum gave the following reserved decision on Thursday:— In re application No. 4/1921 —.T. C. Mallroy and Co., Ltd. This is an application for the amendment of Sawmill License No. 4060 by inserting Od in lieu of Is as the rate of royalty per 100 superficial feet payable thereunder in respect of Rimu, .Wire, and Kahikntoa timber. The facts arc as follows :■—Prior to 21st September 1021. the applicants held a Sawmill License (15-13) together with certain certificates ot reservation (Nos. 1489. 16SS and 1089) in respoct or timber lands in the Kani, i-i Survey District near Hokitika. ihi 21 t September 1921. they ex-,-hanged Sawmill License No. lo!3 for a new Sawmill Incense (No. 1060) eomj, i 1 isi ll g a eontiuuotis area of -100 acres out of the lands comprised in their certificates of reservation anil ineluding 33 acres of the area held unde;- the surrendered license. Under Sawmill License No. 15-13 the rate of royalty payable for Rimn, Miro and Kaliikatea timber was Od per 100 superficial feet, this being the rate prescribed by the mining regulations i f 3rd August, 1915. The questions for the Court to dei ide are :- - I.—Whether the rates of realty prescribed in Sawmill License No. 40(50 in rc-speet of Rimu, Miro and Kaliikatea timber wore erroneously inserted therein at Is per TOO .superficial feet instead of at (id as in the former Sawmill License No. 1513, and so, whether the Court has power to amend the license to correct the error. I.—The right to exchange existing Sawmill Licenses for new ones is given by .Mining Regulation No. 11.0 subclause (7) which prescribes the method of exchange; and sub-clause (11) says "Upon the grant of the new license all ■'references herein" (that is in say, in these regulations) contained to the former license shall apply to the new license in lieu of to lie burner license.” One oi such telerences

(clause 108 sub-clause 5) is. "There shall also he payable a royalty at the rate specified in the 4th schedule hereto in respect of all timber cut pursuant to the License.” This subclause is in direct pursuance of Section 392 sub-section 9 of This Alining Act under which the Governor is empowered to make such regulations as lie thinks uecessarv “prescribing in respect of mining privileges the forms, terms and conditions ot the Licenses thereof and of renewal- thereof, the fees, rents and royalties payable in respect thereof'’ and (sub-section 27) "prescribing the mode in which and the terms, cundilioons and restrictions subject to which timber on Grown Lands may lie Idled and removed, fixing the prices to he paid for the various de-cript ions of such timber.” Under the regulations thus far quoted a new sawmill licen-e granted in exchange for a former license should therefore contain the same terms and conditions in all respects, including the rate-" of royalt,\ to lie paid for timber, as were contained in the

im-iiier licc-n-e lor which ii is exchanged. The Licensee* therefore under tie.— regulations of 3rd August. IPIA, obtained a vested interest in the timber comprised in his original license and also in the timber comprised in the reservations altaelicd to it, the timber areas under reservation cooling automatically tinder each successive sawmill license as it comes into being under the provisions ol Regulation III) Mih-clatise (7). On :ird April 1918, however, the Governor amended the regulations of 3rd Angic-t. 1915, and increased the royalties payable in respect of limber: and clause sof the new regulations directed that the increased royalties should apply "to all licenses granted after the dale hereof including licenses granted in pursuance of .sub-clause (7) of clause 110.” There seems to me to he little doubt lhai this clause was intended to apply to new licenses granted thereafter in exchange for all licenses, even for those that were in existence prior to 3rd April, 1018. fini I do not think

it was within tile Governor's power to amend the regulations so as to have this ireLrospceqivo effect. Under the Acts Interpretation Act, 1908 (Section

21 suh-section (f) the power to make regulations include.-, the power from time In time to revoke litem absolutely in whole or in part, “unless the term or the nature and object of the power indicate that it is intended to he exercised only under certain restrictions.” And Section 393 suli-.section (d) of The Alining Act under which the regulations of August. 1915 were made imposes flic billowing restriction on amendments, that is to say. "No right, title or

interest acquired under or created by any regulation under this Act shall he in any manner alFocted hy the

amendment or revocation of such regulation.”

The applicant- having acquired a right, title or interest under regulation 110 sub-clause (11) of 1915 to have, inter alia, the .same rates of royalty inserted in his new sawmill license No. 40G0 as were inserted in the former one for which it was ex-

changed. No. 1513. such right, title or interest cannot have been in any manner affected hy the subsequent amending regulation of April 1918. 11l so far as it attempts to do so the amending regulation (No. 5 of 1918) is ultra vires of the Act and inelfcclual. In my opinion therefore the royalties inserted in License No. 4060 were inserted in error in so far as they differed from those inserted in License No. 1513.

2.—With regard to the question of amendment. Section 170 sub-section (b) of the Act provides that, "the, AYarden may at any “time amend any error misdescription in the License provided that the rights of other parties are not thereby prejudicially affected.”

Tn this ease the only “other party” affected is the Land Board of the Westland Land District and its right to royalty under License No. 4000 is, as pointed out, to royalty at the same rates as were prescribed in License No. 1543. The Board has therefore no right that can he prejudicially affected hy the amendment. T grant the application and make the amendment accordingly. Mr Artirdoeh appeared for the applicant.