MINING APPEAL.

Otago Witness, Issue 2894, 25 August 1909, Page 28

MINING APPEAL.

PATERSOK'S FREEHOLD v. HARVEY. His Honor Mr Justice Williams delivered judgment in the appeal case Paterson's Freehold Gold Dredging Company v. Andrew Rodger Harvey. The judgment v, as as follows: — The question to be decided in the present case is whether the land included in a perpetual lease belonging to the respondent is deemed to be Crown lands within the meaning of the Mining Act, 1908. and so open for mining under the provisions of that act. Prior to the passing- of the Land Act, 1892, the respondent was the holdei- of a perpetual lease in a. mining district. The 150 th section of the Land Act, 1892, gave any deferred-payment licensee or any lessee of perpetual-lease lands held under any Land Act in force prior to that act a right with the consent of the board to surrender his license or lease and obtain a lease in perpetuity under tha\ act of the same land. Then came section 7 of the Mining Act Amendment Act (No. 2), 1893, wHich is as follows : — Every lease in perpetuity or other lease or license granted, after the commencement of this act, under " Th£ Land Act, 1892," of land within a mining district, whether as an original lease, or in exchange for a pastoral or other lease or license of any kind, or for a grazing run. shall, notwithstanding anything contained in any act other than this act, be subject to the provisions of any act for the time being in force relating to mines and mining, and to all regulations made under anj such act. After the passing; of tho act of 1393 the i'e e pondent exeicised the right given him by the 150 th seeiton of the act of 1392 and obtained a lease in perpetuity. The first question is whether that lease was subject to section 7 of the Alining Act of 1893. I think there can be no doubt that it was so tubjeet notwithstanding the rather vague 'wording: of section 7. So far ps I can ascertain the only interest which at the time of the passing of the act of 1893 could be exchanged for leases in perpetuity were deferred-payment licenses and perpetual leases under section 150 of the act of 1892, and leases of rural lands under section 160. Leases in perpetuity could not be granted in exchange for a pastoral lease or license or for a grazing run. Some effect must be given to the language of the tection so far o« it relates to lea:-es in perpetuity granted in exchange. The only effect that can be given to it ie by construing the section to extend to leases jn perpetuity which were granted in exchange for the only interests for -which by law they could be exchanged. The words '"pastoral or other Jease or license of any kind " are not, in my opinion, confined to leases or

licenses ejusdem generis with pastoral leases or licenses. The words "of any kind " are comprehensive and the effect of inserting them is to exclude the limitation to leases and licenses ejusdem generis. The effect of similar words in a contract was discussed in the House of Lords in Larsen v. Sylvester (1908 A.C. page 295). The lease in the present case is by its terms expressly made subject to section 7. The Mining Act Amendment Act of 1893 was repealed by the Mining Act of 1898, and section 19 of that act took the place of section 7 of the act of 1893. The Mining Aot of 1905, section 18, re-enacted section 19 of the act of 1898. Section 18 is as follows :—" (1) The land comprised in any lease in perpetuity, or other lease or license, granted on or at any time after the sixth day of October, 1893, under ' The Land Act, 1892,' whether as an original lease or license, or in exchange for a pastoral or other lease or license of any kind, or for a small grazing run, shall, if such land is situate in a mining district at the time of such grant, be deemed to be Crown lands within the meaning of this act, anything in ' The Land Aot, 1892/ or any other act to the contrary notwithstanding." All through the mining acts, however, the term' "private lands" has been, and still is, defined in the same way. "Private lands " means " lands- owned in fee simple under title from. His Majesty, and includes ianid hsid under license or lease from his Majesty with the right- of acquiring the fee simple thereof." In 1905, therefore, evem arm! from the express provisions -of section "18 of "The Mining Act, 1905," that land comiprised in these leases was U> be dwemed to be Orown krid, such .land would not come -within the definition of private . lands. In 1907, however, by the twentieth section of the Land Laws Amendment Act of that year, every owner of a lease in perpetuity was given a rigiht x at any time thereafter, during the existence of the lease, to purchase the fee simple at a price equal to the capital value of the land comprised in it at the 'time of the purchase. The giving the right to purchase the fee simple clearly brought land comprise^ ia a lease in perpetuity within the definition of " private lands " in the mining acts. Did then the giving of this Tight operate as an implied' repeal of section 18 -of the Mining Aot of 1905 in so far as that section declared that larad comprised' in leases in perpetuity' should be deemed to be Orown land? The concluidinig words of subsection 1 of section 18 " anything in ' Tbs Land Act, 1892,' or any other act to the contrary notwithstanding " can only refer to existing acts. They cannot be construed so as to ]Sreol;*de the Legislature from enacting Borne-thing to the contray; in the future. There is a great deal to be said in favour of the view that tihe right of puirdhase gi^en to the holders of leases in perpetuity by the act of 1907 made the land included in these leases cease to be deemed to be Crown land, and 'hrougfht it wibhin the category of private lands. Firs*, there is the cinactment that the land included in these leases is to be dseined to be Crown krod. Side by side with this enactment is fche definition of private lands, which includes all lands leased fjom the Crowm with the right oi purchasing the fee simple. Then la-ter on tfhere is the right given to every holder of a lease in perpetuity, including, .of course, the holders of these particular leases, to purchase the fee simple. The existnee of that right was, and always bad been, recognised by the mining acts as being inconsistent with the land over which it could be exercised remaining Grown land, or baing deemed to be Crown land and open for mining pnirposes. Unless thc-re was something in the aot which guve this right which expressly declared that, notwithiEitan-dinig the right so given, land included in leases in perpetuity in a mining district should be deemed to be Crown land, thea-e would be a very strong argument in favour of the view that it was no longer to be dieemed Orown, land and open for mining. However that might have been, the 17bh section of tihe Mining Act of 1908 now makes such an argument of no avail. The aot of 1908 is a consolidating' aot. Section 17 is as follows: — " (1) TIM lamd comprised in any lease in perpetuity, or ©their lease or license, granted on or at amy time after the 6th aay of October, 1893, under ' The Land Act, 1892/ or any aot passed in amendment thereof, or in substitution therefor, whether as on original lease or license, or in exchange for a pastoral or other lease or license of any kind, or for a small girasMng run, and also the la-nd' comprised in any renewable lease granted or deemed to be granted under ' The Lajid Act, 1908," shell, if such land is situate in a mining district at the time of such grant, be deemed to be Crown lands within the meaning of this act, a«ny^ thing in 'The Land' 'Act, 1908,' or any other act to rhe contrary notwithstanding." It will be observed that the language of the section, so far as relates to these leases, is word for word the same as the 18th section of the act of 1905, except that the ■words "The Land Act,yl9oß," are substitued for "The Land Act, 1892." Now " The Land Act, 1908," re-enacted the clause of the act of 1907, which gives the right of purchase to every holder of a lease in perpetuity. The effect, therefore, of section 17 is not only to re-enaot section 18 of the act of 1905, but ako to declare that, notwithstanding the right of purchase given to every holder of a lease in perpetuity by the Land Acts of 1907 and 1908, the land included in the leases penpeituity mentioned in section 17 is to be deemed to be Orown land. Section 17 is not merely the reproduction of a section in a previously existing act, but it contains a new enactment. Section 18 of the act of 1905 declared that notwithstanding anything in the Land Act, 1892. or in any other then existing act the land included in these leases fhould be deemed to be Crown land. Section 17 of the Mining Act of 1908 enacts that notwithstanding anything in the Land Act, 1908, or any other then existing act, the land is to be deemed to be Crown land. If. therefore, between the Mining Act of 1905 and the Mining Act of 1908 any act had been passed which would prevent the land from being deemed to be Crown land, the 17th section of the Mining Act of 1908 enacts that notwithstanding any euoh act the land is nevertheless to be deemed to bo Crown land. Section 17 of the Mining Act of 1908 is clear and unambiguous, and it is impossible, in view of the provisions of that act, -now to contend that the land included in the respondent's lease is not to be deemed to be Crown land and open for mining. The Mining Act of 1898 i« a consolidating act, and if ihere ie any doubt as to the interpretation of the sec- i

tions in such an act it is legitimate tO refer to the previous state of the law for the purpose of ascertaining the intention, of the Legislature (per Ohittv J., in ro Budgett, 1894, 2 Ch., at p. 561). ThiV, however, is only when the construction is doubtful (in R. v. Abrahams, 1904, 2 X.8.., at page 863). Lord Alverston?, speaking of "The Merchant Shipping Act, 1894," which was a consolidation 6tatute, says: "If the language of section 219 in! the act of 1894- had been quite clean- it is not suggested that we can put a different constructions upon it merely because tt« act is a consolidation act, but the contention is, and to fchat extent I think it is well founded, that in a consolidation act where there are ambiguous regaird may be had to tin© previous act of Parliament in (puri naateria fox the purpose of interpreting these ambiguous expressions." That is illustrated by tih« case of Williams v. the Permanent Trustee Company of New South Wales (1906, A.C. 249). In New South Wales there were two distinct ways in which the Crown could! resume land, under two separate statutes,. One way was by notification in the Gazette, the other was -by notice to the parties. I» the. latter case, if part of -a tenement- was taken the Crown was bound to. ta&e -the whole. In the former it could take part of the tenement oury. Then there was at consolidation act, which .repealed ail previous legislation -on the subject. Part of a tenement was taken by notification. in tn« Gazette, and it was contended that the Crown was not bound to take the -whole, and that as the act was a consolidation! act and was not intended to alter the -law, it should have the same effect given to it as was given to the acts for which it was substituted. In the act, however, the eections of the prior acts were so arransed that the act on its face did alter the law and made it comnulscwy for the Crown to take the whole of a tenement in whichever way the land was resumed. It was held? that the court had no authority to take the aot to pieces and to rearrange the sections so as to produoa an effect which, on the face of the act as it stood, did not seem) to have been intended. Difficulties as to the question of implied repeals are no doubt litoaly to arise where a number of prior acts of different dates are consolidated into one act.' I think the true rule is that it tho court can see that, prior to the consolidation act, there has been an implied? rqpeal by a later act of some provision cf an earlier act, the court ought to read the consolidation act so as to give effect to such implied repeal, unless the fraur.ework or the language of the consolidation act clearly manifests a contrary intention. No doubt the object o£ a consolidation act » to put together in a compact form the law as it previously existed. If, however, tfatf Legislature adopts and passes a consolidation act, w"hioh not only .consolidates but amends or alters in some particulars tho previously existing law, the court cannot say that because the act is a consolidation act such amendment or alteration cannot be given effect to. A consolidation act, use any other act, is a legislative enactment, and if the will of the Legislature is expressed in it in clear terms the court is bound by such expression. If the language of the act is clear, flic court cannot go outside the four corners of the act to speculate on the intention of the Legislature. There is nothing in the " Reprint of Statutes Act, 1895," under which the work of consolidation was commenced or in the 'Coneokdated Statutes Enactment Aot, 1908, which enacted the consolLdatod statutes to lead to a different conclusion. I have gone into the question of spiled repeal at length because, although the case was argued on other ground., -ij seemed to me that there was strong B™™** for the contention that, apart from the act of 1908 there would have been an implied repeal so far as perpetual leases were concerned of the section which enacted that, they were to be deemed to be gw^tands. If that were feo;- there arises *he most important question of the effeofc of a consolidating statute on implied ™peals, and in viow of ite importance I have thought it well to discuss it at length It was obiected by the respondent that the procedure by appeal in the Present , case was wrong and that the remedy of the appellant was by mandamus, and not by appeal. The appellant company had a£ plied for a license for a claim. The^ respondent had put in objections. Where the case oame on for hearing before tto warden counsel for the obiector, before going into the grounds of the objections, contended that, the warden had no jurisdiction to grant a mining claim « ve f J* 9 land included vi the respondent's lease. The decision ot the warden was tjiat ne had nO jurisdiction. The warden «mly. had jurisdiction to enterta-m an application for or to grant a. mining claim X the land was Crown land. The *™*™ k therefore, as to whether the land was Crown ?and was one which the .warden had to determine preliminary to the exeicise of his jurisdiction. If he determined ft wrongly and decided th*t he had no urSTctton when, in fact, he had jurisdiction, he ha* refused to exercise his jurisdiction, and mandamus and not apB& t , I "«%.EHS. W*£T *i to entertain an application for a minrngr claim, the proper remedy is by prohibition and not by appeal. That was decided by the Court of Appeal in M'Kenzia v ObSon (17 N.Z.L.R , 228). The decision of the warden on the preliminary point as to whether he has or has not jurisdiction must be challenged by mandamus or prohibition — by mandamus if ha has wrongly decided that he baa no juris-

•idiction, by prohibition if he has wrongly decided that he has jurisdiction. The •case on appeal was agreed to by the solicitor on behalf of the respondent. This, however, does not prevent the respondent from calling the attention of the court to the wrong procedure. It is the duty •of the court to apply the proper remedy and not to allow en appeal where the appellant's remedy is by mandamus. The objection to the procedure is fatal to the appellant's case, but as the legal merits ~ot the case were discussed a£t length it would have been unreasonable to have dismissed the appeal on this ground only without giving an opinion on the merits. The judgment will be a sufficient guide to the warden without the necessity for any further proceedings. Th© appeal will be -dismissed, without costs