Tuapeka Times. AND GOLDFIELDS REPORTER AND ADVERTISER. SATURDAY, APRIL 25, 1874. "MEASURES, NOT MEN."

Tuapeka Times, Volume VII, Issue 350, 25 April 1874, Page 2

Tuapeka Times. AND GOLDFIELDS REPORTER AND ADVERTISER. SATURDAY, APRIL 25, 1874. "MEASURES, NOT MEN."

The water race interest has attained an importance in New Zealand so much greater than in the other Australian colonies, that it has become one of those subjects demanding great care and attention in legislation. Whether a right to divert water, and to the use of streams for diversion, will become in New Zealand finally, to some extent, dissociated from the. ownership of the land through which it would otherwise flow, remains yet to be seen ; but in any event the present importance of that dissociation, and the amount of capital now invested on the faith of its continuance, demands earnest and immediate consideration in legislation. The present state of the law exhibits one of those eurioua instances where the want of competent knowledge of terms has effected what was never intended. The water- rights appear to have rested under the Act of 1862, merely upon the security,, of possession, and priority of ownership was the basis of title. A. race was marked out in accordance with the Regulations, and, in order to preserve evidence of thus taking possession, certain formalities were required, and the Warden was constituted the proper officer to certify as to the fulfilment of the necessary conditions ; and upon being satisfied, he issued a document called a certificate, slating that these conditions had been complied with. This certificate was not specially made evidence by law of anything to the exclusion of any other evidence of possession i and it will be seen by a reference to the earlier Regulations in Otago, that the admissibiiity of other evidence of possession was contemplated. In drafting the Act of 1865, it was properly thought that a oiibject, then assuming considerable importance, should no longer be left merely to regulations, but should be embodied in an Act of Parliament. But the draftsman of that Act, unconscious of the possible effect, changed the term "certificate" into " license," and adopting the then existing Regulations, with that alteration only of a simple change of a word; took away

from the miner the right founded simply on priority of possession. And not only waa this mistake made, but the Regulations were inserted with the exception of this change in all their original cniedness, without any attempt to reduce them to consistency, or to express in clear language what was intended. The consequence, is, there is nothing clear in the matter beyond the absolute discretion of the Warden, who oan even suspend the operation of some of the sections for certain periods —a stretch of power to which an analogy can scarcely be found. The provision requiring " the report " of a mining surveyor, or other competent person, to be appointed by the Warden, that the only course by which water can be carried lies through private land, is made a condition precedent to obtaining a right to carry a water race through private land. Tt is scarcely possible to conceive a case in which it might not be found possible to carry water in any particular course desired, provided the requirements of the law of gravitation are complied with, and the words used evidently do not correctly express what was intended by the legislature, namely, to give reasonable facilities for carrying water races through private lands, or rather lands alienated from the Crown. And the determination of this question is to be left to the report of a mining surveyor or other competent person, thus delegating a dangerous arbitrary power to another class of Government officers, and making important rights depend merely upon their without even requiring their evidence to be formally taken in the ordinary course of legal proceedings-, In addition to these defects in the Act, there ai?e two sub-sections, namely, the 9th and the 10th, which have given rise to more disputes and unpleasantness than any other directly .concerning mining property. The first forbids the issue of a license for the use or diversion of any water tha.t is, or may be required, for public purposes, or for the use of the miners generally ; and the second requires that two heads shall, if required, be at all times allowed to flow in the natural course of the stream for general nse. These provisions seem, at first, to be very nearly equivalent to saying^ We will grant the \rafcor- with, the exception of the whole of it. Who can say what public purposes are contemplated by the first sub-section, or that any stream in the country may not be, at some time, required for public purposes, or the use of the miners generally. The second sub-section has been so frequently the subject of litigation, that a good deal of light has Ijeen thrown on its meaning. In Otago, it has been held to mean a right at any time to deprive persons, who had expended labor and capital in cutting water races and diverting water, of the fruits of their industry at the instance of any loafer who might see fit to demand the water from them. As it was very well put by Mr. Shepherd in his address at the Arrow, "Suppose a party of six men bring water ten miles, and earn a pound a day with it ; and supposing one man finds gold in the natural course of the stream that will pay a pouud a week, should he be permitted to take the results of the labor of the six away?" This is putting the matter clearly, but it is really what the supporters of the principle ask. In Westland and Southland, it has been held that the words "general use" do not include gold mining, and thus the meaning of the section is somewhat narrowed. But in any case the effect of the provisions has been to render the right to this class of mining property very insecure of tenure, and tended to some extent to prevent individuals embarking labor and capital in it. Now all this difficulty has, to a great extent, arisen from the change of the one word, "certificate " to *' license," which appears to have led to the abandonment of the primary idea of title arising from priority of possession, instead of from a statutory license granted at the discretion of irresponsible officers. In the Bill introduced last session an attempt was made to revert to the old tenure for the future, and make the right to mining property,' including water races, rest upon priority of possession. There exists everywhere individuals w.ho, strongly objecb to anyone obtaining unimpeachable rights of property, and who desire strongly, as long as they possess nothing themselves, to have all things. in commou. To such individuals any law giving security of tenure to property musiTheQessarily appear objectionable, and it is chiefly this class who have insisted most strongly in retaining the above-mentioned objectionable pro-visions as law. If our information be correct, they were not reproduced- in the Bill of last session as originally drafted, but were inserted on the recommendations made by a small majority of the Select Committee on Goldfielda. If they appeared absurd and unintelligible in the Act of 1866, they are much more so when interpolated into the Bill, the leading principle of which is certainty of tenure based upon possession. It is clear that if that principle be fully carried out no one could be deprived of the use of water of which he was able to prove priority of occupation. In fact one section of the Bill provides, "That no license issued under the authority of I this Act shall confer any right to the use of water as against any other person previously bona fide using such water for mining purposes, whether the same shall have been' previously diverted or otherwise, or against any pei3on requiring the same at any time for his own domestic use." The reservation hereby proposed to be made would seem sufficient to meet all reasonable requirements of the miners as among themselves, and the insertion of those which have been above referred to would be most incongruous, and render the subject wholly unintelligible. With regard to the necessity of reserving water which may be required for mining pureposes, it would not be easy to assign auy.

good reason why mining property should be dealt with in a different way from any other claBS of property. If the State requires a man's cattle or provisions in time of war, it takes the property, but it pays for it ; if land is required for a railway it is taken, but the owner is compensated ; and if the State should require the water after it hs been diverted by the miner, let it be taken and paid for likewise, and this is also the provision proposed in the Bill, which reserved a power to the Governor to resume water rights already granted upon payment of compensation. With regard to the reservation of two heads of water, instances have occurred in wllich owners of races have been compelled to allow two heads of water to flow down streams from which they only derived probably half the quantity, and were thus obliged to make good this most unreasonable claim by water which they had at great expense diverted from other streams, However noisy the advocates for retaining these provisions may be, it is tolerably certain that their number and influence are not by any means in proportion to their clamor, and that only a very insignificant minority of the Otago miners would, if the matter were put to the vote, give it in favor of retaining these absurd reservations.