DEPARTMENT OF THE INTERIOR 

UNITED STATES GEOLOGICAL SURVEY

GEORGE OTIS SMITH, DIRECTOR

BULLETIN 505

MINING LAWS OF AUSTRALIA 

AND NEW ZEALAND

BY

ARTHUR C. VEATCH

WITH A PREFACE BY

WALTER L. FISHER

SECRETARY OF THE INTERIOR

WASHINGTON

GOVERNMENT PRINTING OFFICE 

1911

CONTENTS.

Page.

PREFACE by Walter L. Fisher, Secretary of the Interior..................... 7

ORDERS AND ACCOMPANYING PAPERS ...................................... 9

Order from Acting Secretary Woodruff................................. 11

Order from President Roosevelt........................................ 11

Letter of October 26, 1907, to Director Smith re Western Australia........ 11

Letter of November 19,1907, to Director Smith transmitting report on

Western Australia................................................... 12

Letter of December 3, 1907, to President re Western Australia............ 12

Letter of December 3, 1907, to Director Smith re Western Australia and

South Australia...................................................... i6

Letter of December 27, 1907, to President re South Australia,Victoria,

and Tasmania. ..................................................... 18

Letter of December 31, 1907, to President re Tasmania and Victoria........ 19

Letter of January 11,1908, to President re Victoria and grazing............. 20

Extracts from newspapers re grazing..................................... 20

Letter of March 23, 1908, to President re New South Wales, New Zealand,

and Queensland reports............................................. 21

MINING LAWS OF AUSTRALIA AND NEW ZEALAND. ........................... 23

CHAPTER I. The present mining law of Western Australia................ 25

Introduction...................................................... 25

Underlying principles.............................................. 20

Mining tenements.................................................. 28

Claims....................................................... 28

Prospecting areas.............................................. 30

Mining leases................................................. 30

Holdings in connection with mining............................. 33

Water rights.................................................. 34

Miner's homestead leases...................................... 34

Reward areas and leases........................................ 35

Administrative and judicial system................................ 35

Conclusion........................................................ 36

CHAPTER II. Development and practical workings of the mining law of

Western Australia............................................... 37

History of development............................................ 37

Summary of historical development................................. 43

Mining on private property........................................ 44

Terms and conditions of leases...................................... 45

Extent of operations.............................................. 47

Results of test of government mineral leasehold..................... 47

CHAPTER III. Development and practical workings of the mining law of

South Australia.................................................. 53

Introduction...................................................... 53

Government policy in regard to alienation of minerals............... 54

Terms and conditions of leases...................................... 56

Term of years................................................ 59

Renewal...................................................... 60

Area.......................................................... 60

Number of leases held by one person Right of transfer.......... 61

Rental.............................!...."...................... 61

Royalty....................................................... 62

Labor conditions.............................................. 62

Waiver of labor conditions...................................... 63

Forfeiture..................................................... 64

3
4 CONTENTS.

MINING LAWS OF AUSTRALIA AND NEW ZEALAND Continued.

CHAPTER III. Development and practical workings of the mining law of

South Australia Continued.

Claims and prospecting areas....................................... 64

Size of claims and ordinary prospecting areas................... 65

Labor conditions on claims..................................... 66

Special prospecting areas....................................... 66

Mining on private property........................................ 67

Encouragement of mining.......................................... 68

Extent of operations under existing law............................ 69

. Practical result of test of government leasehold..................... 69

CHAPTER IV. Development and practical workings of the mining law of

Tasmania....................................................... 71

Introduction...................................................... 71

Growth of government policy in regard to nonalienation of minerals. . 72

Terms and conditions o leases...................................... 75

Renewal...................................................... 78

Consolidation.................................................. 79

Royalty....................................................... 80

Labor conditions.............................................. 80

Forfeiture..................................................... 82

Miners' rights...................................................... 82

Claims........................................................... 83

Prospecting areas.................................................. 84

Dual tenure Association of minerals................................ 85

'Encouragement of mining.......................................... 86

Extent of operations.............................................. 88

Results of test of government leasehold............................. 89

Conclusion........................................................ 90

CHAPTER V. Development and practical workings of the mining law of

Victoria........................................................ 91

The formative period: A comparison with the United States.......... 91

Ownership of the precious metals.................................. 98

Mining on private property........................................ 101

Development of government policy in regard to alienation of minerals.. 103

Terms and conditions of leases......"................................ 106

Area.......................................................... 108

Labor conditions.............................................. 108

Renewals..................................................... 109

Royalty....................................................... 110

Miners' rights and claims.......................................... 110

Mining boards.................................................... 110

Encouragement of mining.......................................... 112

Extent of operations.............................................. 113

Result of test of government leasehold.............................. 113

CHAPTER VI. Development and practical workings of the mining law of

New South Wales............................................... 115

Introduction...................................................... 115

Development of mining and of government policy regarding alienation of minerals.................................................. 116

Terms and conditions of leases...................................... 122

Area.......................................................... 127

Special leases and amalgamation................................ 128

Renewals..................................................... 129

Labor conditions.............................................. 130

Forfeiture..................................................... 130

Royalty....................................................... 131

Ownership of the precious metals.................................... 132

Mining on private property........................................ 133

Mining a public use................................................ 134

Mining boards................'...................................... 134

Extralateral rights and frontage claims.............................. 135

Alluvial gold mining.............................................. 136

Miners' rights and claims; prospecting areas.*....................... 137

Encouragement of mining.......................................... 137

Extent of operations.............................................. 138

Conclusion........................................................ 139
CONTENTS.

MINING LAWS OF AUSTRALIA AND NEW ZEALAND Continued.

CHAPTER VII. Development and practical workings of the mining law of

New Zealand.................................................... 141

Introduction: A contrast........................................... 141

Development of mining and mining law............................. 144

Right of mineral lessee to purchase freehold of land and minerals covered by lease................................................... 147

Creation of mining reserves and mining districts...................... 148

Reservation of minerals in grants and leases.......................... 149

Resumption of lands for mining purposes. Common-law right to the

precious metals.................................................. 150

Terms and conditions of leases...................................... 151

Area: Consolidation and amalgamation......................... 154

Duration of leases: Renewal.................................... 155

Rent and royalty.............................................. 155

Conditions of application for leases.............................. 155

Development conditions...................................... 156

Forfeiture..................................................... 157

Dual tenure...................................................... 157

Miners' rights and claims.......................................... 158

Prospecting licenses and warrants................................... 158

Encouragement of mining.......................................... 160

Extent of operations.............................................. 160

Results of test of government mineral leasehold..................... 161

CHAPTER VIII. Development and practical workings of the mining law of

Queensland..................................................... 162

Outline of history of mining and mining law......................... 162

Terms and conditions of leases...................................... 164

Area.......................................................... 166

Development conditions............................'............ 166

Renewals...................................................... 168

Royalty....................................................... 168

Forfeiture..................................................... 168

Ownership of the precious metals.................................... 169

Miners' rights and claims.......................................... 170

Prospecting areas.................................................. 171

Extent of operations................................................ 172

Result of test of government mineral leasehold...................... 172

CHAPTER IX. Talk before Conservation Commission...................... 173

West Australia.................................................... 173

South Australia.................................................... 174

Victoria.......................................................... 175

Tasmania......................................................... 175

New South Wales................................................. 175

Summary of government leasing................................... 175

INDEX. ................................................................... 177

PREFACE.

In 1907 and 1908 a special field study was made of the operation 

of the coal-land laws of Australia and New Zealand by Arthur C. 

Veatch, a geologist of the United States Geological Survey, acting 

under direct instructions of President Roosevelt. At that time it 

was expected that the question of the disposition of the public coal 

lands would come before the Sixtieth Congress, and Mr. Veatch 

therefore transmitted his reports as rapidly as he was able to collect 

the data in each of the Commonwealths. The reports, however, were 

not published until April, 1910, when the joint committee of Congress 

to investigate the Department of the Interior and the Bureau of 

Forestry ordered their publication as a part of the proceedings of 

that committee. The demand due to the increasing interest in the 

subject of leasing the public coal lands has exhausted the available 

supply of this congressional document, and the reports are therefore 

now reprinted as a bulletin of the Geological Survey, the bureau 

from which Mr. Veatch was detailed to the office of the President for 

this special commission.

While not to be considered as an exhaustive treatise, this series 

of reports constitutes the best available collection of authoritative 

data bearing on the practical working of mineral-land laws essentially different from those of the United States code. These reports 

not only give in considerable detail the special provisions, terms, 

and conditions of the different laws, as well as statistical information 

regarding the extent of mining operations, but also contain much 

testimony by practical mining men who are operating under these 

laws. On this account, this publication is believed to furnish a 

valuable basis for comparison between the leasehold and freehold 

systems in their effect upon mining development.

WALTEK L. FISHER,

Secretary of the Interior.

7

ORDERS AND ACCOMPANYING PAPERS

ORDERS AND ACCOMPANYING PAPERS.

DEPARTMENT OF THE INTERIOR,

Washington, September 18, 1907. 

Mr. ARTHUR C. VEATCH,

Geological Survey.

SIR: You are hereby detailed to the office of the President, for 

temporary duty, for such time as your services may be required, 

pursuant to the act of Congress of February 26, 1907. (34 Stat., p. 

947.)

Very respectfully, G. W. WOODRUFF,

Acting Secretary.

(Through the Director of the Geological Survey.)

OYSTER BAY, N. Y., September 19, 1907.

SIR: You are hereby designated a special commissioner to visit 

Australia and New Zealand to make a study of the coal-land laws of 

those countries, and particularly the operation of the law for leasing 

coal contained in the public domain, and directed to proceed to 

Australia and New Zealand for this purpose. 

Very truly yours,

THEODORE ROOSEVELT. 

Mr. A. C. VEATCH,

Geological Survey, "Washington, D. 0.

STEAMER OROYA, 

Indian Ocean, October 26, 1907. 

(To be posted at Colombo, Ceylon, October 28, 1907.) 

MY DEAR MR. SMITH: I send you herewith a discussion on the mining laws of Western Australia, which I commenced several days ago 

as a means of assembling the various things I have gathered in reference to this subject in part from the critical study of such publications as I have now at hand, obtained largely in London, and in part 

from my conversation with the Hon. Cornthwaite Hector Rason, now 

agent general, and formerly minister for works, then minister for railways, then colonial treasurer, then premier and minister for justice of 

Western Australia. My initial idea was merely that this getting things 

down on paper was one way of tightening my grip on the matter in 

hand and enabling me to utilize my limited time in Western Australia 

to the best advantage. These tentative notes, with the suggestions 

contained therein, if they prove on further investigation to be well 

founded, were to be used in the preparation of a preliminary report to

11
12 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the President on the situation in Western Australia. As the material began to assume shape, it seemed to me if published at this time 

in some one of the mining journals these data might serve a most useful purpose in the education of the public. I therefore partially 

reworked the notes with this in view and send them to you now to 

be used in such way and with such revision and omissions as you deem 

best. When I reach Western Australia I will submit this article to 

the proper authorities for their criticism and send you an amended 

copy from Perth, which should reach you in about three weeks after 

receipt of this letter. * * *

Very sincerely yours, A. C. VEATCH.

PEETH, WESTERN AUSTRALIA,

November 19, 1907.

MY DEAR MR. SMITH: I have had the article on the mining laws of 

Western Australia copied (the English expression is " typed" a copyist or typewriter is a "typist") since I reached here and turned it over 

to the permanent under secretary for mines for criticism. He did not 

return it to me until last Friday, just as I was leaving for the Kalgoorlie gold field. I send it to you now with numerous footnotes and a few 

changes in text. The footnotes relate largely to the proposed amendment act, which is now being prepared.

I have a large amount of data bearing on a number of points of interest to the United States and am praying that the ocean trip from Freemantle to Adelaide (five days) will be of such a character that I can 

work to the best advantage. These data relate not only to the mining 

laws and conditions, but to 

1. Pastoral leases, including statistics and maps, and the related 

matter of stock driving across these leased areas, which has been made 

the subject of special legislation.

2. Government reservation of water in the semiarid regions and on 

strips along all prominent streams.

3. Surveying methods, including examinations and qualifications of 

licensed land surveyors, duties of surveyors, regulations, restrictions, 

etc.

4. Regarding forests certain explanatory details regarding what is 

meant here by "state forest or reserve," which is very necessary for a 

proper understanding of local conditions; also, data on forestry laws, 

regulations, and statistics on timber grants, concession leases, and the 

like.

Very sincerely yours, A. C. VEATCH.

ADELAIDE, SOUTH AUSTRALIA,

December 3, 1907. 

The PRESIDENT,

The White Hoitse, Washington, D. C.

SIR: In accordance with instructions contained in your letter of 

September 19, 1907, I have proceeded to Australia and commenced 

the investigation of the laws relating to the government leasing 

of minerals, paying special attention to those relating to coaL
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 13

Before I left Washington it was suggested by the Director of the 

Geological Survey, Dr. George Otis Smith, and the then Acting Secretary of the Interior, Mr. George Woodruff, that immediate reports 

on the data gathered in each State were desirable. I therefore transmit herewith reports relating to the mining laws and conditions in 

Western Australia, where I nave just spent a fortnight. In addition, considerable data have been collected concerning the closely 

allied subjects of grazing leases on the public lands, and the survey 

of the public lands, which it is thought will prove of interest and 

value in the consideration of these phases of the public lands question. In all these respects Western Australia is decidedly ahead 

of the United States. Indeed, it was only in connection with the 

Forest Service that the comparison of the laws and administration 

of the public lands resulted favorably to the United States, and here 

the favorable judgment was on administration rather than law, for 

the Western Australian law gives certain powers regarding forests 

on the public lands which are rather broader and, when properly 

administered, more to the public interest than those allowed by the 

United States statutes.

In the matter of the investigation of the practical operations of 

mineral-land laws which provide for government leasing and involve, 

as a natural corollary, the principle that the Government shall 

reserve the minerals in all lands alienated, it is to be regarded as 

particularly fortunate that circumstances forced the commencement 

of this study in Western Australia. Here the development of the 

law has been particularly simple, the attendant circumstances such 

that the laws have been most exhaustively and conclusively tried 

and the results therefore clear and positive.

When minerals were first discovered in Western Australia in 

1842 there was no special law or regulation governing the disposal 

of mineral lands, and these lands were therefore sold under the same 

conditions and at the same upset price, £1 per acre, as ordinary 

agricultural lands. After some years the Government required 

that land known or supposed to contain minerals must be advertised as "mineral land for at least three months before sale at 

public auction at the same upset price as lands not known to contain minerals. In 1865 the price of known mineral lands was fixed 

at £3 per acre, and the would-be developer could either purchase 

at this price or obtain a lease for ten years at 8 shillings per acre per 

year. In 1872-73 it was provided that mineral lands could only 

be sold after the erection of such a plant as the commissioner might 

deem necessary to work the land, and then at a price fixed by the 

Government, but not less than £3 per acre. The lease rent was 

reduced to 5 shillings per acre per year. With this progressive 

trend toward leasehold it was entirely natural when payable gold 

was first found in the colony in 1885 that the laws then promulgated 

relating to the mining for gold should provide only for two forms of 

tenure leasehold and claim. In 1892 the selling of lands known to 

be valuable for minerals other than gold, which had been in abeyance for several years, was legally abandoned, and the principle of 

mineral leasehold made a binding state policy. In 1898, in order 

to absolutely prevent the alienation of any minerals, it was provided 

that thereafter all grants should contain a reservation of all minerals,
14 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Western Australia has thus gradually and surely progressed from 

the alienation of known minerals in fee without any condition of 

development to the reservation of all minerals from sale, and their 

development only under claim and lease with the condition of bona 

fide development. The absolute abandonment of the principle of 

sale between 1886 and 1892 and the substitution of the system of 

leasehold and claim hold came at a particularly fortunate time to fully 

and exhaustively try the principles involved. During the five-year 

period, 1881-1885, the total mineral production was less than £45,000, 

or about £9,000 per year. In 1902 it exceeded £8,000,000. In 1903 

it was almost £9,000,000, and it has exceeded £8,000,000 per year 

since that date. The law has, therefore, been subjected to boom conditions, to great mineral excitements and gold rushes; in short, to 

all the conditions necessary to give both it and the regulations a thorough practical test.

in arriving at a conclusion on related points whether this policy of 

leasing has retarded development, or, expressed more broadly, 

whether in the opinion of the mining men or Western Australia the 

development of a region is promoted more by a freehold or a leasehold 

tenure with the condition of bona fide development, and whether the 

operations of the present Western Australian mining law are as a 

whole satisfactory to mining men, four lines of evidence are available:

(1) The detailed evidence taken by the Western Australia commission on mining in 

1897.

(2) The proposed amendment of the existing mining law prepared by the mines 

department this season, which embodies the government interpretation of the popular 

demands.

(3) The comments on this proposed amending act, prepared by the chamber of 

mines of Western Australia, together with additional comments and suggestions on 

the mining law in general.

(4) The statements of the president and secretary of the chamber of mines and other 

leading mining men in Kalgoorlie, obtained during my recent visit.

The commission on mining, appointed about the close of the great 

boom period, distributed a list of questions very widely around the 

gold fields, and held meetings at five of the most important mining 

centers. Among the questions asked, of peculiar significance to the 

present investigation, were the following:

Do you think gold mining leases should have a better title than at present? If so, 

why? State your'proposed alterations.

What alteration in the gold field act, 1895, and regulations do you think necessary to 

create a greater interest in mining?

The net result of this investigation was an overwhelming verdict in 

favor of leasing with the condition of bona fide development. The 

only important point of criticism developed by the commission in this 

investigation related to the enforcement of the condition of bona fide 

development, and these criticisms have since been to a large degree 

remedied by amending acts. The principal change which the larger 

operators desire is an expression of the development covenant in 

money instead of men, and the amending act prepared by the mines 

department contains this alteration, but with several safeguards 

against the abuses that are possible in the United States. With this 

exception, the changes in the amending act are of minor importance, 

which is equivalent to a statement that with this exception the mining 

law has been found quite satisfactory.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 15

The suggestions and criticisms of the Western Australia chamber of 

mines relate almost wholly to this point of the expression of the development conditions in money instead of men. Their other suggestions 

are of very minor importance.

At Kalgoorlie I found the mining men unanimous and emphatic in 

the indorsement of the statement that the leasing system is a better 

method of promoting mining development than freehold. The views 

of Mr. Richard Hamilton, president of the chamber of mines and 

manager of the Great Boulder Proprietary Company mine, one of the 

richest gold mines of the world, carry great weight as they represent 

the views of a man who is not only a mining engineer, but a lawyer, a 

man with wide experience and one who speaks only after careful consideration, and then with mature judgment. Man after man in the 

field said: "See Hamilton, he knows what we think, he knows the conditions, and what he tells you may be taken as the opinion of the 

mining men of this country." Mr. Hamilton has spent considerable 

time in America in studying our mining conditions, and is emphatic 

in the belief that mining development is promoted more by the Western Australian leasehold system than by the American freehold.

In view of these facts one may confidently assert that the mining 

law of Western Australia is, with minor exceptions, regarded as quite 

satisfactory by the mining interests of the country, and that in the 

opinion of the mining men development is promoted more by a 

leasehold than a freehold tenure.

The point in the American mining law best known to the mining 

men and the one which they condemn most heartily is the extralateral right. All express the decided conviction that the fact that 

we had made a mistake was no reason nor excuse for perpetuating 

that mistake. Several of the larger mining men independently suggested the idea that it would not be unfair to the present holders, and 

would be a great boon to the mining industry in the future, to pass 

a law declaring, first, that after the date of such law no patents would 

be issued carrying any extralateral rights and, second, that after a 

certain period, variously estimated at from ten to twenty-five years, 

all existing extralateral rights would lapse. If combined with a 

general policy of leasing and reservation of minerals in future grants 

it was pointed out that this period would allow present operators to 

in most cases complete the working of their mines, or in case the 

mines had a greater life than the stated period, bona fide development could be protected by the issuance or government leases for the 

areas needed to complete the operations.

In the matter of coal lands the Government has always shown an 

inclination to reserve known coal lands from sale, and when a commercial coal field was first brought to public notice in 1889 the Government at once removed, it from sale. After a period of exploratory 

work, involving the sinking of test bores and shafts lasting until 1896, 

the Government leased the greater part of the area to various individuals and companies. These coal companies held on December 31, 

1906, 22,895 acres in 74 leases. The rental fixed by law, 6 pence per 

acre per year, is one-quarter, and the royalty, 3 pence per ton on all 

coal raised for the first ten years and 6 pence per ton thereafter, is 

one-half that which companies are willing to pay under existing conditions. There is no reason for supposing that the development of
16 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the Collie coal field would have been or would now be promoted in 

any way by a freehold tenure. Indeed there is the same general 

satisfaction with the underlying principle of leasehold that is found 

in the gold fields, and while the coal operations are not of sufficient 

importance the production is but 50,000 to 150,000 tons per year to

f

ive much weight to this conclusion, the underlying principle has 

een so fully and exhaustively tried in connection with the enormous 

gold-mining development of the State that the conclusion may be 

accepted as a fair one.

These several factors have made the Western Australian mining 

law appear of particular interest and importance and have induced 

me to make a special effort to furnish complete data, in the preparation of which I have been specially aided by the four-days' ocean 

trip necessary to reach Adelaide from Perth. The investigation in 

South Australia is yielding some points of special interest, but this is 

an agricultural and pastoral rather than a mining community, and so 

the aata are not of so much importance.

The reports transmitted to you include the following:

(1) The development and practical workings of the mining law of Western Australia 

(herewith). Accompanied by a copy of the Report of the Royal Commission on 

Mining in Western Australia, 1898 (sent under separate cover).

(2) The present mining law of Western Australia (herewith). Accompanied by a 

copy of the mining laws now in force (under separate cover).

(3) The coal-land law of Western Australia (herewith).

Very respectfully yours, A. C. VEATCH,

Special Commissioner.

 ADELAIDE, SOUTH AUSTRALIA,

December 3, 1907. 

Dr. GEORGE OTIS SMITH,

United States Geological Survey,

Washington, D. C.

DEAR DOCTOR SMITH: I have just completed and sent to the 

President reports on Western Australia, and send you for your information a duplicate set of this material. * * *

In the study of the Western Australian mining law I had hoped 

that I would find some local histories giving the historical data 

needed, but could not discover anything of the sort, and the material 

presented in my reports was dug out of the official archives, often 

from the original letters.

It has been a physical impossibility to get the material I have on 

pastoral leasing, survey of the public lands, and forests into reports, 

but I have all this data, and while reports prepared later (should 

they be wanted) will not be as satisfactory as those prepared now 

while everything is fresh, yet the loss will not be great.

The situation here, so far as it has developed, presents several 

very interesting phases. The early crown grants in South Australia contained no reservation of minerals, but in the regulations 

dated March 3, 1846, one-fifteenth of all ores containing metals 

was reserved to the government. In 1849 it was provided that 

grants should not in future be subject to such reservation, and that 

grants issued under the regulations of 1846 should be read as if such 

reservation had not been inserted. Some question having arisen in 

the matter, the legislature in 1877 set all doubts at rest by declaring
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 17

that all lands alienated before that date, or which should be alienated thereafter, should be considered to include and convey to the 

owner of the fee simple of such land the absolute property in all 

mines and minerals, including gold and silver, "nothing whatever 

above or below the surface of the ground being reserved by the 

Crown.." In 1886 the government decided to reserve gold in all 

grants thereafter and in 1888 to reserve all minerals. In all lands 

alienated before 1886 the minerals, therefore, belonged to the surface 

owner, and it therefore happens that mining properties held under 

government leases are now being worked side by side with freehold 

properties, and so affording an excellent test of the practicability of 

government leasehold.

The South Australian government has shown itself particularly 

sensitive to the public demands. Some years ago there was a demand for perpetual leases in the alienation of land. Legislation 

was passed authorizing such leases, but after a time there was a 

demand that these perpetual leases should be converted into freehold. Acts were therefore passed authorizing such transfer, and 

perpetual leaseholders were allowed to convert to freehold. Provisions were made for the repurchase of large estates and their subdivision by the government for closer settlement. In this connection 

it was held that if the government did not retain some control over 

the land that these small holdings would be amalgamated and the 

government would have all to do over again. It was therefore 

decided that blocks in repurchased estates could only be. acquired 

on perpetual lease, which, while giving the holder nearly all the 

advantages of the freehold and some in addition, gave the government power to prevent transfer and consequent amalgamation. 

After a few years there was a demand for freehold, and the legislature 

again permitted the holders of perpetual leases to convert to freehold. Land was formerly sold with conditions of improvement 

and development, but the government has now gone to the other 

extreme of selling without such conditions. These facts have been 

reviewed simply to show that if there had been any demand for the 

freehold of mineral lands the government would have, in all probability, granted it. On the other hand, I find on inquiry that there 

has never, in recent years at any rate, been the least suggestion of 

the government granting freehold to minerals. The mining register 

of the mines department, who is closely in touch with the mining 

situation, tells me that he has never heard such a suggestion. This 

must certainly be considered as a most emphatic indorsement of 

the success of leasehold. 

Very truly yours,

A. C. VEATCH, 

___ Special Commissioner.

MELBOURNE, December 27,1907. 

The PRESIDENT,

The White House, Washington, D. C.,

United States of America.

SIR: I transmit herewith reports on "The practical workings of the 

mining law of South Australia," and on "The coal-land law of South 

Australia." A copy of the acts and regulations now in force in this 

State is forwarded under separate cover.

16014° Bull. 505 11 2
18 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

In South Australia the alienation of the minerals has been carried . 

further than in any other of the Australian States, further, in fact, 

from a theoretical standpoint, than in the United States, and the 

principle of mineral leasehold has therefore developed under different 

circumstances and been tested under different conditions than in 

Western Australia. The result here, as in Western Australia, is a 

strikingly unanimous verdict in favor of government leasehold for 

minerals (but not for lands except for pastoral purposes); indeed, the 

unanimity of this verdict is one of its most surprising features.

In Victoria and Tasmania, where I have met many prominent 

mining men (Melbourne may be regarded as the financial center of 

mining in Australasia), there is the same indorsement of leasehold 

by all the leading mining engineers, promoters, and capitalists. 

There are criticisms and differences of opinion on the desirability of 

certain features of the labor covenant, but on the fundamental question of whether mining development is promoted more by freehold 

or leasehold there is but one opinion. This assertion is based on the 

statements of the following gentlemen:

Mr. Agar Wynne, member of the House of Representatives, a 

prominent mining lawyer and capitalist of Melbourne and member of 

the Victoria chamber of mines; Mr. F. G. Hughes, vice-president of 

the chamber of mines, a gentleman intimately associated with many 

large mining concerns; Mr. A. H. Merrin, former president of the 

chamber of mines, consulting mining engineer, and now chief mining 

inspector of Victoria; Mr. Henry Gore, a prominent mining engineer 

and leading member of the Victorian chamber of mines; Mr. Lindsay 

Tullock, director of many Tasmanian mining companies, including 

the Mount Lyell Company (a famous copper, silver, gold property 

which has for a number of years been paying dividends ranging 

between a million and two million dollars a year, and which is worked 

on government lease), and the statements of the following leaders of 

the different political factions of Australia: Hon. Alfred Deakin, 

present prime minister of the Commonwealth; Hon. Joseph Cook, 

leader or the opposition (Conservatives and Antilabor) in the House 

of Representatives; Hon. John Christian Watson, labor leader in the 

House of Representatives and premier of the Commonwealth, April 

to August, 1904; Hon. William Hill Irvine, former premier of Victoria 

and leader of a section in the House of Representatives which, while 

antilabor, does not entirely agree with the opposition. Many of these 

gentlemen are intimately connected with mining, and all are closely 

in touch with the sentiments of the country in this matter, and they 

affirm that the mining interests of Australia unanimously indorse 

leasehold as better than freehold in the promoting of mining development. Clearly, the matter of government leasehold is not a party 

question; indeed, in Australia it is apparently not a "question" at 

all. Asked if they knew of any prominent mining men who seriously 

advocated freehold tenure, many of the gentlemen above mentioned 

replied they did not. A few referred to Mr. W. J. Loring, a California mining man who has been prominently connected with the 

mining industry in Australia for the past six years, and whom one of 

the gentlemen characterized as a "grabber." I saw Mr. Loring, and 

found him unqualified in his indorsement of freehold; the principal 

reason advanced was that he did not want to be continuously worried 

with conditions; he wanted to work his properties as he pleased. He
MINING LAWS OF AUSTRALIA ANI> NEW ZEALAND. 19

stated that the expenditure conditions on claims were always fulfilled in the United States, and when I expressed some doubt in the 

matter and cited a few cases, he said, "Oh, well, a little palm oil will 

go a long way in the United States." The inference from this and 

other remarks was that he had not found "palm oil" successful here, 

and that this was one of his causes of complaint.

While I was convinced before I left the United States that the 

American nation should adopt a system of leasehold in dealing with its 

unalienated minerals, it did not seem possible that a people so nearly 

akin to our own westerners would so unanimously and emphatically 

indorse government leasehold as the best method of promoting 

mining development.

The situation in South Australia in respect to the survey of the 

public lands, the organization and conduct of the land office, and the 

operations of the pastoral lease system contains, as in Western 

Australia, much of interest to America at the present time, and I 

have, as in Western Australia, collected a large amount of data on 

these subjects which it is believed will prove helpful. 

Very respectfully, yours,

A. C. VEATCH, 

Special Commissioner.

MELBOURNE, December 31, 1907. 

The PRESIDENT,

The White House, Washington.

SIR: There are forwarded herewith reports on "The development 

and practical workings of the mining law of Tasmania," and on 

"The coal-land law of Tasmania," and under separate cover a copy 

of the present Tasmanian mining law and regulations.

The report on Victoria, which I hope to dispatch in a week or 

ten days will deal with the development of a national mining law 

under conditions strikingly like those under which the American mining law was developed, but with very different results. In Victoria, 

as in California, there was, at the time of the discovery of gold, no 

law governing mining on the public lands. In both instances the 

discovery of valuable gold fields resulted in an enormous immediate 

influx of population, but while the United States delayed dealing 

with the situation, in part through negligence and in part because of 

that enormous calamity, the civil war, for almost twenty years, and 

then did nothing but legalize certain customs, some of which have 

resulted in enormous unproductive expenditures in the shape of law 

suits, the Victorians took hold of the situation at once and had evolved 

at the time of the passage of the American act of July 4, 1866, a 

very comprehensive mining law.

I leave for Sydney, New South Wales, this afternoon, and will 

there get data from the large coal interests. New South Wales is 

the most important of the Australian States from the standpoint of 

its coal production.

Very respectfully, yours, A. C. VEATCH,

Special Commissioner.
20 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

SYDNEY, January 11, 1908. 

The PRESIDENT,

The White House, Washington, D. C.

SIR: I transmit herewith reports on "The development and practical workings of the mining law of Victoria," and on "The coal-land 

law of Victoria," and under separate cover a set (in two packages) 

of the mining acts, regulations, and by-laws now in force. The coal 

law report, as heretofore, is composed of but little more than abstracts 

of portions of the general report, but was prepared because of a possible demand for such a separation.

This is probably the last report that I will forward to you before 

returning to Washington, as the present announcement of steamer 

sailings does not seem to guarantee that any succeeding report will 

reach you before my own arrival on the 16th or 17th of March.

I send clippings from local newspapers expressing the views of an 

Australian pastoralist on the condition of the American sheep industry. Such investigations as I have been able to make in connection 

with my regular mission indicate that these statements are correct, 

and that the reason therefor is primarily the system of leasing grazing land in vogue here. Under the security of tenure and guarantee 

of exclusive right which a lease gives 'the pastoralists spend large 

sums in improving their runs. Water is obtained by the lessees by 

boring, or is specially conserved by more or less elaborate and expensive water schemes; the land is fenced and divided up into "paddocks," sometimes of enormous size. In short, the whole industry 

is placed on a practical business basis. In South Australia, New South 

Wales, and Queensland enormous areas are being developed in this 

manner. The early history of grazing in New South Wales and Victoria, like the early history of mining in these States, presents many 

points in common with that in the United States, but while the United 

States in the treatment of its grazing lands has, as in the case of 

its mineral lands, done nothing but perpetuate these early primitive 

conditions, the Australian States have progressively improved them.

The fact that time will not permit an exhaustive investigation 

into the history and practical working details of the grazing system 

is a source of no little regret to me, but I am collecting a large amount 

of fragmentary material on this and other matters relating to the 

land laws and their administration which, it is hoped, will prove of 

value.

Very respectfully, A. C. VEATCH,

Special Commissioner.

[The Morning Telegraph.]

SYDNEY, NEW SOUTH WALES, January 3, 1908. .

"The sheep industry of America is carried on in a most primitive way, and is many 

years behind the times."

This is the verdict of Mr. B. Chaffey, the well-known Australian pastoralist, who 

reached Sydney yesterday from a trip to the United States and Canada. Mr. Chaffey, 

a member of the family whose name is closely associated with the Mildura settlement 

in Victoria, is carrying on sheep breeding on a very extensive scale on the Lower 

Darling, and what he does not know about the business is not worth knowing. Last 

September he went to the United States and Canada for a holiday and incidentally 

to see how the pastoral industry is worked on the great ranches of the western prairies. 

What ne saw convinces him that we have nothing to learn from America in this branch
MINING LAWS OF AUSTBALIA AND NEW ZEALAND. 21

of activity. He comes back more than ever impressed with the value of Australia 

as a land to live in.

"There is apparently," said he, in answer to the question of a representative of 

the Daily Telegraph, "no fixed land legislation in America to give respectable 

tenures or anything of that kind, and outside of a few small instances, the industry 

is carried on in a primitive way. There are under 30,000,000 sheep in the States, 

and they are of exceptionally inferior quality. What breeds? Chiefly merino, but 

as to a comparison, well, it is simply impossible to make one. The industry generally 

is in a much higher state of efficiency in Australia than in any portion of the United 

States that I know of."

[The Sydney Morning Herald.]

SYDNEY, NEW SOUTH WALES, January 4, 1908.

Mr. B. Chaffey, of Tolarna, Moorara, Garnpang, and Tapio stations, on the Lower 

Darling, has returned from the United States by the R. M. S. Aorangi, after a visit 

of a couple of months. He traveled much in the United States and took the opportunity of visiting Canada. Mr. Chaffey found that the sheep industry as pursued 

by the American pastoralists is ages behind the Australian system. He found the 

sheep industry in the States in a very primitive condition, and the methods long 

ago discarded in Australia still in vogue.

"It may seem strange," Mr. Chaffey told the Brisbane Courier, "but it is nevertheless true, that the American pastoraliste have not yet got beyond the conditions which 

prevailed in the earliest days of the industry in Australia. The sheep men on the 

American ranches are still working away on the old lines, following the same old 

methods, and displaying neither sufficient resource nor initiative to strike a new 

system. Merinos are bred mostly, but in some places there are a few crossbreeds, 

too few, however, to count. As for the shearing, except in isolated cases, the machine 

is an unknown appliance. Owners practically depend altogether on casual labor, 

promiscuously picked up."

[Memorandum attached to letter of A. C. Veatch dated Sydney, January 11,1908.]

The total area of New South Wales is but slightly less than the combined areas of 

Montana, Wyoming, and Idaho, but the relative number of sheep and the production 

of wool in 1905 were as follows:

Sheep.

9Q CAC -IRA

12,075,000

Wool.

Pounds.

<)KA 000 701

The differences in the total number of sheep and of the average wool production 

per sheep is a striking testimonial to the statements of Mr. Chaffey.

OFFICE OF UNITED STATES ATTOENEY,

DISTBICT OF WYOMING, 

Cheyenne, Wyo., March 28, 1908, 

The PRESIDENT,

The White House, Washington, D. C.

Sin: I transmit herewith a report on the mining laws of New South 

Wales. A report has also been completed on New Zealand, but it 

has been found impracticable to get it typewritten. The report on 

Queensland, the last of the state reports, is in course of preparation, 

but has advanced very little in the past week because of *ny detail
22 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

to this point in connection with a suit involving the fraudulent 

acquisition of coal lands.

The two most important reports on the Australian investigation 

have not been begun. In one it is intended to briefly and concisely 

summarize the results of the test of Government leasehold in Australasia. The burden of detail which it was thought advisable to 

introduce in the state reports, for the purpose of reference, will be 

omitted in this general summary, and only the important features 

emphasized. In the other report it is intended to apply these principles and practical results to American conditions. Some of the 

devices designed to improve our own situation I have discussed with 

members of the Department of Justice working in this western 

region, and have their hearty indorsement.

Very respectfully, A. C. VEATCH,

Special Commissioner.
MINING LAWS OF AUSTRALIA AND 

NEW ZEALAND

BY ARTHUR C. VEATCH

23

CHAPTER I.

THE PRESENT MINING LAW OF WESTERN AUSTRALIA." 

INTRODUCTION.

The present mining law of Western Australia, with the exception 

of a special clause in the mining or private property act of 1898, 

which still remains unrepealed, the sluicing and dredging for gold 

act of 1899, and certain mines regulation acts, is contained in the 

mining act of 1904 and the regulations thereunder.

The mining act of 1904 is, in effect, the codification and amplification of the preceding mining law and practice and was passed just 

after the boom days of the great Coolgardie and Kalgoorlie finds. 

An amending bill, to be known as the mines amendment act of 1907, 

is now being prepared by the minister of mines. The proposed 

amendment, however, if passed, will not in any way affect the fundamental provisions of the mining act of 1904, which indicates that 

after three years' trial the law here discussed has as a whole been found 

quite satisfactory. Indeed, the leasing principle, which is to Americans the most important feature of this law, receives the hearty 

indorsement of the mining men of Western Australia. During a 

recent visit to the great gold-mining camp of Kalgoorlie the writer 

received from the principal mining men, including the president and 

secretary of the chamber of mines of Western Australia, a most united 

and emphatic opinion that mining development is undoubtedly 

promoted more by a leasehold than by a freehold tenure.

The proposed amending bill is, for the most part, concerned with, 

the incorporation in the body of the law of certain regulations which, 

have been found effective and of making several changes in details 

which are described below.

A new section is added which has for its object the prevention of 

gold stealing by employees in the mines, and further provisions are 

made for preventing mining swindles.

Among the factors which make these laws important for comparison with the statutes of other countries are:

(1) In Western Australia the population is largely made up of those interested in 

mining.

(2) Western Australia is a country of great mineral wealth, having produced in each 

of the last eight years between 1,500,000 and 2,000,000 ounces of fine gold, or several 

times that produced by Alaska, and has for the same period had a greater total annual 

mineral production than any of the other Australian States or New Zealand, except 

New South Wales, which surpassed it in 1906 and 1907.

(3) It contains enormous areas yet undeveloped, the State having an area of almost 

a million square miles, or more than the combined areas of California, Oregon, Washington, Nevada, Idaho, Utah, Colorado, Wyoming, and Montana, and a total population of less than one-twentieth of that of all these States, or less than that of the single 

State of Utah.

aKeport forwarded to Director of Geological Survey from Perth, Western Australia, November 19, 1907.

25
26 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

(4) It is a country in which mineral lands were sold outright and its mineral laws 

have therefore been evolved from a basis similar to that which now is, and for many 

years past has been, commonly accepted as the rule and practice in the United States.

(5) The desire of the government to promote and encourage the development of 

its mineral wealth in every way is emphatically shown by the policy of government 

aid. This policy in the past has involved enormous expenditure in connection with 

water supplies for the mining districts, the Coolgardie water system alone (built to 

pump 5,000,000 gallons a day 351 miles to an elevation 1,200 feet above the supply 

point) involving an expenditure on the part of the government of over $18,000,000.

The policy of the government in this regard is strikingly shown in 

the "mining development act of 1902," which provides for 

a} Government loans at 5 per cent to aid in development work.

6) Government loans to miners to aid in prospecting.

c) The erection of public-crushing, ore-dressing, cyaniding, and smelting works, 

and the subsidizing of persons or companies that will erect such works for testing or 

treating ores for the public.

(d) The conduct of exploratory boring operations for water and minerals either 

entirely at the cost of the government or in connection with individuals.

(e) The direct expenditure or the loan of money for constructing drainage tunnels, 

sinking shafts to great depths, and transporting miners to undeveloped regions.

The provision for government loans to aid miners in prospecting 

is not regarded by the mines department as having yielded entirely 

satisfactory results. Loans are now made to working miners only 

on the security of machinery. The money invested in public batteries and exploratory boring is, however, believed to have been well 

spent.

The mining act of 1904 must, therefore, be regarded not as a 

theoretical attempt of political economists, but as the matured law 

of a State which has bad large practical experience in mining matters, 

in which, in fact, mining is the principal industry, and in which vast 

areas await settlement and development; a State which has, moreover, in many ways conclusively demonstrated its desire to permit 

and encourage the development and settlement of its territory.

UNDERLYING PRINCIPLES.

The Western Australian mining law of 1904 rests on two rather 

closely related and interlocking principles:

(1} That land shall be utilized for that purpose for which it is most valuable; and 

(2) That no man may hold any mineral rights without development, without, in 

fact, so far as can be reasonably demanded, the constant employment of labor and expenditure of capital.

While encouraging and protecting individual development, there 

is no indication of the idea that each person who wants it is entitled 

to a small portion of the public domain, just so much and no more, 

such as is included in the coal-land law of the United States, nor does 

it endeavor to curb monopoly, if indeed such was ever the intent of 

the United States coal-land law in any such clumsy fashion. There is 

no limit, other than that which may be fixed at the discretion of the 

administrating officers, to the amount of land any person or persons 

may hold, provided they develop it the provision that no mineral 

rights can be held without constant development being considered 

a sufficient guarantee that capital will be expended and the country's 

prosperity thereby promoted; and as regards injurious monopoly or 

combination the executive officers' discretionary power to refuse to
MINING LAWS OF AUSTRALIA AND NEW £tiALAND. 27

issue a lease, the requirement of the executive officers' approval to all 

transfers, mortgages, and the like, and the fact that all leases will some 

day expire give sufficient guarantee or protection.

Thislaw in respect to the ownership of minerals by the government 

reasserts the principle that "gold, silver, and other precious metals on 

or below the surface of all land in Western Australia" whether alienated or not, and if alienated, whensoever alienated, are the property 

of the government, and that all other minerals which were not alienated in fee simple before January 1, 1899, are the property of the 

government. These lands in effect belong absolutely to the local 

government, and no revenue derived from them is paid to England 

or to the Crown; and this assertion of the government rights to the 

precious metal is of interest to Americans because of the still legaUy 

undecided point whether the right to all gold and silver mines is not 

vested by common law in the Government in the United States.

In accordance with the doctrine that all land must be utilized for 

that for which it is most valuable, this law provides:

(1) That after January, 1899, all minerals shall be reserved to the government in 

lands alienated in any way.

(2) That where minerals are found in lands where the surface rights have been 

alienated the government may either (a) resume the land, paying the owner its value 

other than for the minerals contained or (6) permit mining, provided the surface owner 

is indemnified for any damage resulting from such operations.

(3) That as regards unreserved minerals in lands that were alienated before January 

1, 1899, the government may permit mining therefor under certain conditions.

In order to secure the entire enforcement of the doctrine that no 

man may hold any mineral rights without development, this law provides, in effect, that none of the minerals to which the government has 

title shall be sold, but the government may authorize the working of 

the mineral deposits by those willing to develop them continuously.

The enforcement of this requirement for continuous development is 

incompatible with the state of freehold. This is but the logical carrying out of the fundamental principle of American mining law tne 

possessory right. In the early history of mining in the United States, 

in the absence of any general law, the local mining customs ana 

regulations recognized the right of a man to a mining claim so long as 

he worked it. If he abandoned his claim, any other person could assert 

his rights thereto. This principle in a considerably distorted form 

has been incorporated in that makeshift composition, the mining law 

of the United States, in which the possessory right, instead of being 

based on continuous development, is allowed to rest on " annual 

assessment work" of the most meager description, necessitating in 

practice only a few days' work a year, though the expenditure is 

supposed to amount to $100 per annum, and requiring this only until 

a total expenditure of $500 has been made when freehold title is given 

on payment of a nominal price per acre.

The Western Australian mining law from some time previous to 

1904 held in respect to minerals on public lands and reserved minerals 

on private land that only those who would continuously develop 

could hold a mining tenement of any description; the law of 1904

§

oes a step further by applying this doctrine to all the lands in the 

tate. It now declares, as regards private lands, where the title to 

certain minerals under some previous grant or law is vested in the 

owner of the surface, that if the owner will not work the minerals the
28 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

government will permit anyone who desires to work them to do so, 

will assess and collect rent or royalty or both and pay the proceeds 

to the owner of the fee simple less 10 per cent for administrative 

expenses.

MINING TENEMENTS.

The various kinds of mining tenements which are now possible in 

Western Australia are:

1. Claims.

2. Prospecting areas.

3. Mining leases, 

a) For gold. 

6) For minerals other than gold or coal.

c) For coal.

d) For minerals on private lands.

4. Holdings in connection with mining. 

a) Residence and building areas. 

6) Machinery, tailings, and washing areas, 

c) Market-garden areas.

5. Water rights.

6. Miner's homestead leases.

7. Reward claims and leases.

Claims. The miner's claim, like the miner's claim under the 

United States law, may be taken up on any public land not otherwise appropriated or reserved. It is essentially the old possessor}7 

right mining claim which may be held only on the condition of continuous development; the government, however, in this case guarantees possession by registering the claim, and goes further in the 

protection of the miner by giving the executive officers power to 

relieve, for limited periods, the holder of a claim from the required 

development work, for any good and sufficient reason. The condition or continuous development, which is interpreted to mean the 

work of one man every working day in the year for each two men's 

ground contained in a lode claim until payable and for each one man's 

ground in all other cases, is a much more exacting requirement than 

the "$100 assessment work "-required each year by the United States 

law. In practice this would mean, if applied to the United States, 

that the continuous work of 8 men (because 8 men's ground is contained therein) would be required to hold a 160-acre placer petroleum 

claim, or an expenditure, estimating labor at only $2 per day (in some 

of the States the value of a day's assessment work has been fixed by 

law .at $4), of between $4,000 and $5,000 per year. A claim can, 

moreover, be held only by the holder of a miner's right, which may 

be obtained at a cost of 5s. and is good for one year, but is indefinitely 

renewable at that same cost per year.

As originally drafted this law contained a specific provision that 

only one claim could be held for each miner's right (any person or 

company can obtain any number of miner's rights), and so involved 

an automatic declaration at the end of each year of the condition of 

each claim. If the miner desired to hold a claim he would take out 

a new miner's right in respect thereto; if not, the claim lapsed and 

the records clearly showed that it had lapsed. This specific provision 

was, however, opposed in Parliament by the labor members and was 

omitted, but the act as passed contains several clauses which would 

permit the enforcement of this sort of a provision by regulations.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 29

The mines department, however, has not availed itself of the powers 

conferred by these clauses. In order to clear the matter up provision 

for only one claim for one miner's right is to be incorporated in the 

amending act now being prepared.

Claims must be rectangular except where existing boundaries 

interfere. The areas considered one man's ground in the different 

kinds of ordinary alluvial claims are: For gold, silver, and platinum, 

25 by 100 yards; for nonmetallic minerals, 125 -by 100 yards; and 

for precious stones, 50 by 50 yards. One man's ground in the case 

of lode claims may be of the following dimensions: Gold, silver, and 

platinum, 20 by 130 yards; all other metallic minerals, 50 by 130 

yards; nonmetallic minerals, 75 by 130 yards; precious stones, 50 

by 130 yards. Provision is made for alluvial claims called " Extended 

alluvial claims," and for "river claims," 2 to 3 tunes the size of 

ordinary alluvial claims, where unusual conditions are encountered. 

Any number of men not exceeding 10 may take up the proportionate 

multiple of one man's ground. By a supplementary regulation 

issued July 25, 1905, ground which has been worked and abandoned, 

or is suitable only for dredging, may, with the consent of the warden, 

be taken up as dredging claims. A single dredging claim may not 

exceed 300 acres, but a union of claims under certain conditions is 

permitted. Claims must ordinarily be not less than 15 chains in 

width, but the only condition as to river claims is that they shall not 

exceed 6 miles in length. In a dredging claim one man must be 

employed for every 100 acres or machinery whose value is not less 

than £1,000 per 100 acres must be kept constantly in operation, and 

in no case shall the total value of the machinery be less than £3,000. 

This provision regarding dredging is to be incorporated in the proposed amending act under a special clause providing for dredging 

leases. The only changes made are that the area allowed is 320 

instead of 300 acres and a rental of 2s. 6d. per acre per year is to be 

charged. The existing dredging enactment (the sluicing and dredging 

act, 1899) referred to below is to be repealed.

Neither claim nor any other form of mineral tenements gives any 

extralateral rights in Australia in the case of lode deposits, and the 

numerous expensive lawsuits which have hindered the development 

of the West have thus been avoided.

There is no provision compelling the holder of a claim to take out 

a lease in case he develops a paying mine, but in practice it is found 

that under such conditions most miners prefer to convert their 

claims into leases. For minerals other than coal the rent is greater 

per acre under a lease than the annual cost of a miner's right per 

acre of claim, even where only one claim is taken out, but the labor 

requirements on a lease are relatively much less than on a claim, 

and hence in case of misfortune it offers a more secure tenure. Moreover, the government may at any time by published notice exempt 

from further occupation by the holder of a miner's right any specified 

portion of the government lands, in which case the holder of the 

claim is entitled to damages only for the values of any substantial 

buildings he may have erected on the claim. Mr.. H. S. King, the 

under secretary for mines, states: "Though this power is given, I 

know no case in which it has been exercised." It is opposed to the 

general tone of the legislation, and it is doubtful if it would ever be
30 MINING LAWS OP AUSTRALIA AND NEW ZEALAND.

enforced. On the whole, the preference for a lease rather than a 

claim seems to be more imaginary than real. The opportunities of 

getting exemption for cause are just as good in a claim as in a lease, 

the rent is much less, and there is no limit to the period of tenure 

so long as the conditions are complied with. While under this legislation it is possible to take out coal claims there is no advantage in 

doing so in projects involving extensive development and in practice 

coal operators will take out either prospecting areas or leases.

Such a system of mining claims largely prevents the staking out 

and holding of large areas, such as is now possible in the United States, 

by one or more local speculators who have no intention of developing, 

but who stake out and hold these claims only for the purpose of 

levying tribute on the bona fide developer. As these speculators 

can in the United States hold the claims for a year without any 

expenditure of capital, the practice must be regarded as permitting 

a serious retardation of development. It certainly is not in line 

with a government policy which has for its object the encouragement 

of actual development and settlement.

Prospecting areas. The prospecting area seems to have been particularly designed to meet the needs of the prospector for coal and 

oil, for which the mining claim is in nowise suited. The holder of a 

miner's right may, with the approval of the warden, acquire exclusive 

right to prospect for coal or oil over an area not exceeding 3,000 acres 

for twelve months from date of registration of his area. This period 

may be extended six months, but no longer. The holder of a prospecting area may not remove any mineral from the area, except 

samples not exceeding 50 pounds, without the consent of the warden 

or mining registrar. On discovery of mineral in paying quantities 

he can obtain, according to circumstances, either an ordinary or a 

reward lease.

As applied to gold and minerals other than coal, the prospecting 

area ofters a tenement intermediate between a claim and a lease. It 

permits an area varying from 18 to 48 acres, according to circumstances, and as a rule somewhat smaller than a lease but very much 

larger than a claim, to be held for no more labor requirements than a 

claim and at very much less cost than a lease, but the holder has no 

right to mine and sell minerals as on a claim or lease and his right 

expires absolutely in eighteen months. As a means of holding a 

piece of land until by careful exploration an operator can determine 

whether he desires a lease, this tenement, however, offers several 

decided advantages and has a very definite place in the scheme of 

mining development.

Mining leases. No miner's right is required in taking out a lease, 

and this form of tenement may therefore be acquired without prospecting, but it is specially provided that no land held as a claim can 

be included in a lease without the claimant's consent. The maximum 

term for mining leases for all substances is twenty-one years, but provision is made for renewals for further periods of the same length, 

"subject to the provisions of the acts and regulations in force at the 

time of such renewal." The area allowed in any lease varies according to the substance and conditions, but the dimensions must be 

such that the length shall not exceed twice the width, except in 

the gold-dredging leases provided for by the dredging act of 1899.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 31

The maximum areas which may be covered by a single lease are as 

follows:

Acres. 

Gold mining lease a ....................................................... 24

Gold mining lease, where ground has already been worked and abandoned or 

where cost of development is likely to be excessive......................... 48

Gold dredging or sluicing lease in swamps, lakes, and lagoons (any part of such 

a lease is, however, open to entry as a claim and subject to lease for ordinary 

mining) b................................................................ 5,000

Lease for minerals other than gold or coal c.................................... 48

Lease for minerals other than gold or coal where ground has already been 

worked and abandoned and where cost of development is likely to be excessive .................................................................... 96

Lease for precious stones................................................... 24

Coal lease ("coal" for the purposes of this act is defined as including "ironstone, shale, and fire clay")«............................................. 320

Coal leases, reward for discovery........................................... 640

Leases, the property of the same lessee, may be amalgamated under 

certain conditions. As to minerals other than coal, the minister may 

in general permit amalgamation up to 96 acres, but in special cases he 

may permit amalgamation to any extent he may deem necessary for 

the proper working of a reef or lode to a depth of 3,000 feet; such 

exceptional amalgamation is, however, subject to any conditions 

which the minister may from time to time impose and is also subject 

to such restrictions of areas as he may decide is advisable if subsequent 

development shows that the separate working of any lease included in 

the amalgamation is desirable. The minister may likewise allow the 

amalgamation of coal leases, provided the aggregate does not exceed 

2,560 acres when the seam is of ordinary depth and 5,120 acres when 

the seam is at a depth of over 1,000 feet. Amalgamation permits the 

satisfaction of the labor conditions for a group of adjacent leases at 

one point, and is hence subject to cancellation on the transfer, surrender, or forfeiture of any lease included in the amalgamation.

The rent and royalty assessed are as follows: In ordinary goldleases, 5s. or £1 per acre per year for the first year, as may be determined by the governor, and £1 per acre per year thereafter; in a golddredging lease, 6d. per acre per year and a royalty of Is. per ounce 

of gold won; in an ordinary mineral lease, 5s. per acre per year, and in

a Under the proposed legislation, silver, platinum, and precious stones are classed 

with gold and dealt with under the provisions which now apply to gold alone.

b This was a special enactment (the slucing and dredging act, 1899) passed under 

the supposition that certain alkali lagoons and swamps on the gold fields would prove 

dredging propositions. There has been no development under this act, and in the 

proposed amendment it is to be repealed and provisions similar to those now in the 

regulation regarding dredging claims enacted therefor. The proposed rental charge 

is 2s. 6d. per acre per annum and the area of a single lease 320 acres.

c The conditions which now apply to all minerals except gold and coal are, under 

the proposed act, made to apply to tin, copper, lead, zinc, mercury, bismuth, arsenic, 

antimony, nickel, cobalt, wolfram, scheelite, chromite, molybdenite, tantalite, 

stibiotantalite, monazite, bauxite, kaolin, asbestos, mica, minerals containing earths 

used in the manufacture of incandescent-light mantles, minerals containing radium, 

phosphorite, gypsum, marble, ornamental stone, roofing slate, infusorial earth, 

graphite, iron pyrites. In this class amalgamation up to 192 acres is to be permitted.

« Under the amending act the following minerals are classed with coal: Carbonaceous shale, oil shale, petroleum, iron and manganese ores, building stone, ironstone, 

clay, fire clay, and common salt. But provision is made for a rent of 2s. 6d. in all 

cases except for coal, and in substances other than coal the maximum amalgamation 

permitted is to be 1,280 acres. Prospecting for minerals of the first two classes in the 

land covered by leases of this class are to be permitted under certain conditions.
32 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

mineral lease of the second character, 2s. to 5s., as may be determined; 

in an ordinary coal lease 6d. per acre per year and a royalty on every 

ton of coal raised of 3d. for the first ten years and 6d. thereafter; in a 

reward coal lease rent at 6d. per acre per year, no royalty for the first 

ten years and then a royalty of Id. per ton. There is no limit expressly 

fixed to the number of leases any person or company can hold, but 

the law provides that the governor may refuse to issue any leases and 

that no lease shall be transferred, sublet, mortgaged, encumbered, or 

otherwise dealt with without the written approval of the warden or 

minister.

Under the conditions of continuous development it is required that 

a lease granted for coal or oil shall be worked every working day by 

not less than one man for every 60 acres or fraction thereof for the first 

twelve nionths, two men for every 60 acres for the second twelve 

months, and three men for every 60 acres thereafter; gold leases and 

mineral leases in which double area is allowed must be worked by not 

less than two men for every 12 acres thereafter. Ordinary gold and 

mineral leases must be worked by one man for every 6 acres after the 

first twelve months. Provision is made, however, for exemption from 

labor conditions if the holder has made reasonable efforts to work and 

develop the mine and is prevented from doing so by conditions beyond 

his control. Exemption may also be demanded as a right for certain

E

eriods by the expenditure of a given amount of capital in a certain 

mgth of time. The executive officers are in this respect given very 

wide discretionary powers and are able fully to protect any bona fide 

developer from loss through forfeiture due to no real fault of his own. 

In some of the earlier Australian enactments in which no provision was 

made for exemption from the development conditions, the labor 

covenant was used by labor organizations as a lever to accomplish 

their ends. Specific provision for exemption in case of general strikes 

is made in the last enactment. It also provides for exemption for six 

months as a right on the expenditure of £1,500, and in the same direction of rendering the tenure more secure, permits the warden in cases 

of breach of labor covenants either to recommend forfeiture or to 

impose a fine not exceeding £500, from which the complainant may 

be compensated for expenses and loss of time. In the proposed 

mining bill a new and very far-reaching cause for exemption is proposed 

in the clause which allows exemption when, "owing to existing conditions, it is impossible to dispose of the product of the leasehold to a 

profit."

The chamber of mines of Western Australia has for several years 

strongly recommended, and in this recommendation they have the 

concurrence of the present minister for mines and the mines department, that the condition of continuous development be expressed in 

money instead of men. They feel that while they have no complaint 

to make on the administration of the law thus far, and that while under 

existing law the executive officers have sufficient discretionary power 

to enable them fully to protect the bona fide developer, there is always 

the danger that the Labor party, which is now greatly in the minority, 

may become more powerful, and of the country having a labor minister 

for mines who might be arbitrary and unreasonable in the granting of 

labor exemption. This change, it is thought, would render the tenure 

more secure without in any way affecting the underlying principle that 

all mining tenure must rest on development.
MINING LAWS OF AUSTKALIA AND NEW ZEALAND. 33

Leases authorizing the removal of any of the reserved minerals on 

or under private lands and mining claims to any portions of such 

lands may be obtained at the discretion of the minister of mines and 

subject to the payment of compensation for damages to the owner 

and occupier or the surface, the amount or amounts to be fixed by 

agreement or, if the parties can not agree, by the warden. The area, 

rent, and royalty of such leases are the same as those on the public 

domain. If the government desires, it may resume any such private 

lands on payment of fair compensation, no allowance to be made for 

the value of the reserved minerals. When land is resumed in this 

manner, the rent and royalty are not subject to the general provisions 

of the law, but may be fixed at will by the governor.

In respect to the unreserved minerals on alienated lands this law, 

carrying out the doctrine that all land should be utilized for that for 

which it is most valuable, and that no one can hold mineral rights to 

the exclusion of another without development, declares that any person may petition that such land be declared open to mineral development. If on investigation the government decides that there is a 

reasonable probability that the land contains minerals in paying quantities, the minister may, in his discretion, by the publication of a formal notice, declare that at the expiration of six months from the date 

of such notice the land specified will be considered mineral land. If 

within this six months' period the owner registers with the department 

a declaration that he desires exclusive right to mine on such land or 

any portion thereof, the area indicated by the owner will be surveyed 

into lease areas of the regulation size, and the owner shall, so far as 

development is concerned, be held to hold the land subject to a mineral lease or leases, and it shall be obligatory for such registered owner 

to work the land in accordance with the requirements of the mineral 

acts and regulations, but no rent or royalty shall be payable. If this 

owner does not within the six months' period register his exclusive 

right to mine on the area, the government proceeds to lease the same 

in the usual manner, but during the currency of the lease pays all rent 

and royalty to the owner less 10 per cent. Thus while giving the 

owner a preference right in respect to mining on his own property, it 

effectually prevents him from nindering the general development of 

the region.

Homings in connection with mining, In a mining region certain 

tenements are required which do not necessiate anything more than 

surface rights. The proper conservation of the interests of all parties 

concerned demands that special provisions be made for such holdings, 

which will at the same time guarantee the occupier thereof against 

damage to his improvements and yet will not allow such holdings to 

interfere with the removal of minerals, on which the prosperity of the 

whole settlement ultimately depends. The holder of a miner's right 

is therefore authorized to take up the following: A residence area not 

exceeding one-fourth acre; a business area, not exceeding 1 acre; a 

market-garden area, not exceeding 5 acres; a machinery area for erecting machinery for extracting gold or minerals, not exceeding 5 acres; 

a washing area, for washing any earth containing gold or minerals, 

not exceeding 5 acres; a tailings area, for stocking and treating tailings, not exceeding 5 acres. For all these, except the market-garden 

area, for which the rent is 5s. per acre per year, a rental of £1 per acre

16014° Bull. 505 11 3
34 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

per year is charged. These areas are registered and may be held so 

long as they are actually used for the purpose for which they are registered. Any portion of such holding may be granted as a lease or 

claim, but only subject to payment of compensation for all damages. 

In the proposed legislation all these holdings are treated as leases for 

a period of twenty-one years instead of registered holdings under a 

miner's right. The rentals range from 2£s. to £5 per acre per year. 

A new form of lease, "the tramway lease," is added.

Water rights. In a semiarid region such as that containing the 

most important of the Western Australian mineral fields the matter 

of water supply largely controls the possibility of development and 

the mineral law and regulations practically provide for government 

control of this subject. In the first place, practically all permanent 

water is reserved by the government. Water may be obtained 

(except from one of tne public or private, systems) only by the holder 

of a water right. Water rights are divided into (1) stream water 

rights; (2) lagoon, lake, spring, or swamp water rights; (3) watershed 

or storm water rights; (4) dam, tank, or reservoir water rights; (5) 

subterranean water rights; (6) race or pipe track water rights. In 

the first two cases the amount of water that can be used is limited. 

Provision is made in all cases for the sale of water by the holder of 

a water right, but the minister reserves the right to fix prices. For 

a stream water right there is no rental; for a watershed water right 

the rental is 6d. per acre per year of the area of the watershed; for a 

dam, tank, or subterranean water right the rental is £1 per acre per 

year; for a lagoon, lake, swamp, or spring water right, the rental is 

6d. per 1,000 gallons.

Miners' homestead leases. The governor, bv proclamation, may 

create gold or mineral fields with such boundaries as he may decide, 

may alter the boundaries of such fields, or may abolish the fields 

entirely. No land in any such gold or mineral field may be disposed 

of under the general land laws except with the consent of the minister 

of mines. The provision in the mining law for miners' homestead 

leases seems to indicate that in a gold or mineral field the ordinary 

homestead laws are generally not operative, for it provides for a kind 

of tenure which is very similar to the conditional homestead purchase, 

and which is evidently intended as a substitute for it. The holder of 

a miners' homestead lease, however, acquires no title to the soil, 

although after paying rent for twenty years he acquires the right to 

hold the same indefinitely at a rental of Is. per year for the whole area, 

if the rental is demanded. This form of tenure is evidently intended 

to provide for the acquisition of larger areas than are authorized for 

the holdings above described.

Any holder of a miner's right (either an individual or a company) 

may take up any number of homestead leases, provided that the 

aggregate area taken up in any gold field shall not exceed 20 acres^ if 

the land is within 2 miles of the nearest boundary of any town site 

and 500 acres if beyond that distance. The rent for the first twenty 

years is 2s. per acre per year if the area is less than 20 acres, and 6d. 

per acre per year if the area exceeds 20 acres. The lessee must, within 

three years from date of the lease, fence the whole of the land and 

within five years make improvements to the value of 10s. per acre. 

Such a homestead is, however, open to mineral lease or claim and is in 

part or whole subject to resumption on six months' notice, but in any
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 35

of these cases the holder of the homestead lease is compensated for 

the improvements affected.

Reward areas and leases. As regards coal, the law provides that the 

discoverer of payable coal more than 16 miles from the nearest known 

payable coal or at a depth exceeding 600 feet, shall be entitled to a 

reward lease of 640 acres free of royalty for ten years, after which the 

royalty shall be but Id. per ton. In regard to the other mineral 

discoveries there is a general provision that the minister may grant 

reward areas by way of lease or otherwise to the discoverer of minerals. 

Under this provision the discoverer is at present allowed by the regulations either to take a reward claim, which varies in area from 1 to 16 

acres according to the minerals found and the distance of the discovery 

from other mines, or to take a reward lease, which is of the same 

size as an ordinary lease, but in which the rent is omitted for a period 

not exceeding five years, the period varying according to the distance 

of discovery from other mines.

ADMINISTRATIVE AND JUDICIAL SYSTEM.

The administration of the provisions of the mineral law is vested in 

a minister, under whom are wardens for each gold or mineral field, 

mining registrars, mining surveyors, inspectors, geologists, and such 

other officers as the governor may deem necessary. The wardens are 

both executive and judicial officers, and command salaries of from 

$2,600 to $4,200 per year and quarters. It is this judicial portion 

of this system that is of the greatest interest to Americans, because 

of the evident expedition which is possible thereunder. The warden's 

court has in effect jurisdiction over all matters relating to mining 

tenements and mining; its proceedings are similar to the local courts 

and its judgments enforced-in a like manner; it may order mines 

or minerals seized by bailiff or other officer until further order of 

court; it may inspect any mine or mining tenement and "may take 

judicial notice of anything observed," or it may order such inspection, 

may issue injunctions, may procure witnesses by means of subpoena, 

may punish for contempt by fine or imprisonment, may order sale 

under writ of execution, etc. Appeals from the decisions of the 

warden's court lie to the supreme court, but no appeal is permitted:

(1) If the parties agree that the warden's decision shall oe final.

(2) If the value of the matter or interest in dispute does not exceed 

£200, except by permission of the supreme court or a judge.

(3) From any decision, order, or recommendation of the warden 

upon any application for a mining tenement, the forfeiture thereof, 

or exemption from labor or other conditions. (Except to the minister 

of mines in case the final decision rests with him, as it usually does.)

This gives ample and effective judicial powers to the officers who

are charged with administration of the law and who are on the ground.

Under the American system a limited amount of judicial power is

vested in the Land Office under the Secretary of the Interior in respect

to lands so long as they remain in the hands of the United States, but

this is very different from the judicial powers here vested in the

officers of the department of mines. The intricate relation of State

and Nation, of state courts and federal courts, of course greatly comlicates the situation in this respect in the United States, but it must

e conceded that the effective and rapid judicial administration of
36 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

any extensive mineral-leasing system in the United States is certainly 

not one of the least matters deserving earnest consideration in connection with any adequate mineral-land legislation.

CONCLUSION.

The Wes*ern Australian mining law is, in short, a wonderfully 

symmetrical and carefully balanced enactment; and while one may 

not regard it as applicable in all its features to American conditions, 

it contains many suggestive provisions, all of which merit careful 

consideration. They can not in any way be considered the idle 

visions of the theorist, but are the mature enactments of a legislature 

whose members are entirely chosen by the voters of a great democratic mining State a State which ranks among the great mining 

states of the world, and which has as recently as 1904 reorganized 

and revised its mining laws to meet the practical workaday conditions 

of that region.
CHAPTER II.

THE DEVELOPMENT AND PRACTICAL WORKINGS OF THE MINING 

LAW OF WESTERN AUSTRALIA.0

The history of the mining law of Western Australia is one of very 

gradual and normal development under peculiarly favorable circumstances. In every stage of the growth of Western Australia, from a 

nonmineral country to the greatest mineral-producing State of 

Australasia, the mining law has ever kept a step ahead of the mineral 

development. There is constant evidence of wise supervision which 

was ever ready to change and amend the law to meet new conditions 

as rapidly as they arose, and which, while endeavoring in every 

reasonable way to encourage the individual to develop, has ever been 

on the alert to safeguard the general interests of the community.

Although Western Australia was first permanently settled in 1829, 

its mineral history does not commence until 1842, and gold was not 

discovered in payable quantities until 1885. The country first settled was for the most part a recent coastal plain containing little or 

no mineral wealth, and, although a circular of information issued by 

the British colonial office on March 1, 1831, contained the statement, 

"The Crown further reserves to itself all mines of precious metals," 

and such a reservation was inserted in all the crown grants with but 

one exception 6 up to 1899, when the reservation was extended to 

cover all minerals, it was not until long after the British Government 

had placed the disposition of minerals and lands entirely in the hands 

of the people of Western Australia that gold was found in payable 

quantities. The first metals discovered were the baser ones, and the 

government policy was developed around these.

The first reference to mineral land was in a proclamation in the 

Government Gazette of March 28, 1839. In this the government 

offered a grant of land of 2,560 acres in fee simple to any person 

"who may discover and point out any considerable bed of coal," the 

land to be selected "in any located district in the vicinity of the 

mine, but not so as to interfere in any way with the working of it."

From this it appears that the government clearly did not intend 

that the discoverer should be permitted to acquire title to any coal 

land. How it would have dealt with such coalland is a matter only 

for fruitless speculation, since, although the offer was again repeated 

on April 6, 1839, and in 1840, 1844, and 1847, no commercial coal 

was found. Whatever may have been the idea of the. government in 

reserving this coal land from selection, when deposits of lead and 

copper were discovered in 1842, the land was sold soon after the

a Australian Mining Law Report No. 1, forwarded to President December 3, 1907.

b This involved about 215,000 acres in the vicinity of Kalgporlie, which was granted 

two years before the discovery of gold at that place. In this grant the right to mine 

gold was specifically given.

37
38 MINING LAWS OF ATJSTBALIA AND NEW ZEALAND.

discovery of these minerals under the regulations covering dispc 

ordinary agricultural land. These required that agricultural la

)osal of 

land be

sold at public auction for not less than £1 per acre and in areas not 

less than 160 acres. Other discoveries followed, and until 1853 

mineral lands were disposed of under exactly the same conditions as 

the other lands of the colony.

In January, 1846, Lieut. Andrew Clarke succeeded John Hutt, 

esq., as governor, and seems to have at once taken up the matter of 

the sale of mineral lands under the ordinary land regulations. On 

July 25, 1846, he wrote to the colonial office requesting information 

as to whether or not copper, lead, and iron were precious metals, 

and caused the following notice to be published in the Government 

Gazette of September 25, 1846:

COLONIAL SECRETARY'S OFFICE,

Perth, September 17,1846.

His excellency the governor, having learned with great satisfaction of the discovery 

of the existence of metalliferous ores in this colony, is pleased to direct it to be notified 

for general information, with a view to prevent any apprehension as to the royalties 

to be reserved to the'Crown in all future grants of land, known or supposed to contain 

such ores, that the amount Of such royalty will not for the present exceed one-fifteenth 

of the proceeds of the mine* and that with the exception of this reservation and the 

conditions necessary for the securing of it, all lands will be put up to sale as heretofore.

Dispatches on this subject are expected from Her Majesty's Government, and full 

regulations for the information and guidance of the public will shortly be promulgated.

The claim of the government to all metalliferous ores suggested 

in this notice was evidently based on a supposition that such 

ores were precious metals. The royalty indicated in this proclamation does not appear to have been collected, and the question raised 

was settled by the British colonial office in the following dispatch 

which was published hi the Western Australian Gazette, December 10, 1847:

COLONIAL OFFICE, DOWNING STREET,

London, December 2S, 1846.

SIR: I have received your dispatch No. 29 of the 25th of July last, in which you 

submit the question whether the terms of reservation hitherto used in deeds of grant 

in W. A. (namely, "all mines of gold, silver, and other precious metals") can be 

legally held to include copper, iron, lead, or other metallic ores than those of gold 

and silver. * * * I have to acquaint you that it was not the intention of per 

Majesty's Government to claim on the part of the Crown, under the name of "precious 

metals," such minerals, as copper, iron, or lead.

Since only mines of copper and lead were then known in the 

colony, the regulations promised in the governor's proclamation of 

1846 were not issued, and all mineral lands continued to be sold 

under the same conditions as agricultural lands.

The lead regulations, proclaimed September 9, 1851, having made 

provisions for pastoral leases under which a lessee had the preemptive 

right to purchase any part of his lease at a fixed "price Without submitting the same to auction as in ordinary cases, a means of securing 

mineral lands without the competition and risk of an auction sale 

was afforded. 'This was evidently due to an oversight in drafting 

the land regulations, and as soon as this possibility was appreciated 

(August 20, 1853) all lands "known to contain minerals or mineral 

indications" were exempted from acquisition under preemptive 

rights, and it was decreed that all such lands should be offered at 

public auction at the ordinary upset price after three months' notice 

in the Government Gazette. This was followed, on March 4, 1854,
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 39

by a notice which reduced the minimum area which could be purchased "of land conjectured to contain valuable minerals" to 80 

acres, and which required that the land must be advertised as "mineral land" three months prior to its sale. This put an end to the 

questionable practice which had been in vogue since the discovery 

of minerals in 1842, of publishing notices of auction sales of mineral 

lands which were simply descriptions of blocks of land without 

anything to indicate, except to those on the inside, that the land 

contained minerals.

In 1865 the leasing principle was first applied to mining. "Mining 

licenses," which permitted the holder to search for minerals, were 

issued for a term of one year at a rate of 2s. per acre. These were renewable for a further period of one year on payment of 4s. per acre. 

No license was to be issued for less than one year nor for a sum of less 

than £8. These mineral licenses gave to the holder an exclusive 

right to prospect, but no right to remove minerals, and hence were 

essentially the same as the modern prospecting area. Mining leases 

were issued for periods of not exceeding ten years at an annual rate 

of 8s. per acre. The sale of mineral lands was continued under the 

following provisions:

Lands known or supposed to contain minerals shall be termed "mineral lands " and 

(except those containing precious metals and coal) shall be sold to the first applicant at 

the fixed price of £3 per acre.

The minimum area allowed was 80 acres and the payment might be 

distributed over three years. These regulations continued in force 

until March 20, 1872.

The royal family in England relinquished its right in respect to the 

precious metals to the state in 1760, and the right to precious metals 

has since that time been exercised by the state as an incident of 

sovereignty, but while all mines of precious metals were reserved to 

the "Crown" that is, the British Government in all grants and 

mineral leases in accordance with the circular of information above 

mentioned, the working of these metals under local supervision was so 

regarded as a matter or course that on July 20, 1869, the Government 

ottered a reward of £5,000 to the discoverer of a payable gold field 

within 300 miles of any declared port of the colony, to be paid after 

5,000 ounces of gold had been shipped to Great Britain.

This proclamation having caused a question to be raised as to the 

right of the local government in the matter of dealing with gold, the 

governor, on October 13, 1869, pointed out to the colonial office

that power should be given to the governor in council to waive the 

right of the Crown to minerals, a right which has been waived in all 

other Australian colonies, and the maintenance of which in Western 

Australia may cause much embarrassment." In reply the Earl 

Granville, then secretary of state for the colonies, conveyed to the 

governor power to waive the right of the Crown to minerals in Western Australia in the event of the discovery of gold in the colony." 

This, in placing the matter entirely in the hands of the governor, is 

regarded in Western Australia as the waiver on the part of the home 

government of its rights to minerals. Whatever question may have 

remained concerning the transfer of these rights to the local government was completely set at rest by the Western Australian constitution act of 1890 (Imp. Stat. 53-54, Vict. C., 26), which provided that
40 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the entire management and control of all royalties, mines, and minerals 

were vested in the legislature of that colony.

Because of the conditional clause, "in the event of the discovery of 

gold in the colony/' leases still contained the reservation of precious 

metals. On the first discovery of gold the local government at once 

availed itself of the privilege thus conferred and issued regulations 

dealing with mining for 'gold. On one occasion, owing to the reported 

discovery of a rich gold-bearing reef on the Blackwood, in the southern 

part of the colony, a draft of regulations dealing with auriferous land 

was prepared in great haste. This reported discovery, however, 

turned out to be a mistake or a hoax, and the governor, Sir William 

Kobinson, to whom the draft had been sent for approval, returned it 

with an indorsement to the effect, "These papers may now be filed, 

but they will be wanted again some day." Later, with the reported 

discovery of gold in 1884, regulations relating to auriferous lands 

were again drawn up, but nothing was ever done under these regulations, and with the confirmation of the discovery of gold the goldfields act of 1886 was passed by the legislative council and proclaimed 

by the governor.

The land regulations of 1872 were in force for twelve months when 

they were replaced, 'as regards mineral land, by the rather more liberal regulations of 1873. The regulations of 1872 provided for 

" licenses to search for minerals," which were granted for terms of 

two years on the payment of 2s. 6d. This is the first indication of 

the modern miner's right. The holder of " a license to search" could, 

on the payment of £1, define a block of not more than 200 acres and 

enjoy exclusive right to prospect thereon for a period of twelve 

months, which period might be extended a further twelve months on 

payment of £1. The holder of such a " miner's right" could only 

remove minerals for testing purposes, and then not exceeding a total 

of 5 tons. Leases for twenty-eight years for all minerals except 

precious metals and coal, for which no provisions were made, could 

be obtained for not more than 200 acres nor less than 20 acres, at the 

following rates:

For the first seven years, 5s. per acre per year. 

For the second seven years, 10s. per acre per year. 

For the third seven years, 15s. per acre per year. 

For the fourth seven years, 20s. per acre per year.

Provision for the sale of mineral land was made only on the termination of a lease, at which time the lessee might purchase at a rate of 

£10 per acre, or renew the lease on such conditions as might be agreed 

upon. The regulations of 1873, while retaining the features regard^ 

ing licenses to search and exclusive prospecting areas, provided for 

leases of seven years a at a rental of 5s. per acre per year, and introduced the new principle of requiring development before sale. Under 

these regulations mineral lands could be sold only after a person or 

company had erected such a plant as the commissioner deemed necessary for the proper working of the mine, or had filed bond with ample 

securities to do such work. Under these conditions land could be 

purchased in areas of not less than 20 acres at £3 per acre. These

a In the body of the regulations provision is made only for the period of seven years, 

but in the schedule referred to, which is a form of lease, provision is made for lease of 

twenty-eight years on the same conditions as the 1872 enactment.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 41

regulations likewise provided that if any lease should remain unworked 

and undeveloped for a period of twelve months such a lease should be 

liable to forfeiture.

These regulations applying to mineral lands other than gold appear 

to have been but little changed until 1892. Under the regulations 

of 1887 the holder of a license to search was permitted to enjoy the 

exclusive right of mining on a selected 20 acres during the term of his 

license. If ne desired to mine on this 20 acres after his first year, he 

was required to take out a lease therefor. The lease period is definitely fixed at seven years, and the reservation is changed to include 

"precious metals, gems, and jewels."

The discovery of gold in payable quantities in 1885 led at once to 

the passing of "An act for the management of gold fields," which came 

into force on October 1, 1886. This act of necessity recognized the 

possessory miner's claim, which had not before been known in Western Australia. Miner's rights which permitted the holder not only 

to search but also to take up claims and mine for gold were procurable 

on payment of £1 per year, and were in force for any term of years 

not exceeding ten. Provisions were made for leases not exceeding 

25 acres, soon afterwards changed to 24, at a rate .of £ 1 per acre per 

annum for periods of twenty-one years, but these could not be obtained until two years after the proclamation of a gold field. This 

restriction was, however, found to be unsatisfactory, and was repealed 

in 1888. In the original enactment no provision was made for the 

renewal of the lease, but in 1894 an aniendment was passed granting 

authority to renew all leases for a further period of twenty-one years 

upon the terms and conditions of the acts and regulations in force at 

the time of such renewal. This provision holds to this day, and is 

believed to give an essentially perpetual title so long as the conditions 

of the lease are fulfilled.

Although provision was made for development work as one of the 

essential conditions of a lease in the mineral-land regulations as early 

as 1872, no such provision was incorporated in the act of 1885, and 

as a result " large numbers of leases were taken up, * * * but very 

little work was done." This defect was remedied in 1892, when it 

was required that all leases issued should be worked continuously 

by not less than one man for every 3 acres. This condition was found 

rather exacting, and the requirement has since been reduced to one 

man for every 6 acres, which is universally regarded in Western 

Australia as entirely fair and reasonable. Although this requirement of continuous development was introduced to prevent speculative holding and to promote bona fide development, it was found 

that in many cases it worked undue hardship on the bona fide 

developer. Amendments were therefore made from time to time 

providing for the granting of exemption from the labor conditions 

for any good and sufficient cause. The early provisions gave the 

warden no discretionary power; on proof of noncompliance with 

labor conditions he had no alternative but to forfeit the lease. This 

excited fear on the part of the large companies that through the 

neglect or incompetence of their local manager they might be guilty 

of a technical breach of the conditions of their lease. In the extensive evidence taken by the Western Australia royal commission 

on mining in 1897 no case was adduced of the forfeiture of a lease so 

long as a genuine desire was shown to work it, but the possibility
42 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

that the power which the law gave might fall in the hands of " undesirable persons" was regarded by all the principal interests as a 

grave danger. Power was therefore given to the warden in the 

gold-fields amendment act of 1898 to impose for the first offense 

a fine or forfeit, as the facts in the case demanded. The act of 1904 

went further and provided for exemption as a right (not at the 

discretion of the minister or warden as above) for six months on the 

expenditure of £1,500 for every 24 acres held under a gold-mining 

lease, or for every 48 acres held under a mineral lease, and twelve 

months' exemption where the sum exceeded £4,000 for the same 

areas, but "no exemption shall be granted for any expenditure 

incurred prior to the date of any expired exemption."

In 1887 new land regulations gave power to the governor, in addition 

to making the usual reservation of all gold, silver, and other precious 

metals, to " direct whether any of the precious metals existing in the 

form of metalliferous deposits or any inferior metals or any gems or 

jewels should be reserved to the Crown, in which case the form of 

the deeds of grant should be modified." The land act of 1898 went 

a step further and directed that all crown grants issued thereafter 

should contain a reservation of all niinerals. This act, however, 

introduced the principle of selling agricultural lands, still with the 

reservation of minerals, to a limited depth. From January 1, 1898, 

to January 1, 1899, grants of land on the gold fields extended only 

to depths of 15 or 20 feet. On and after January 1, 1899, deeds for 

gold-fields lots were issued to a depth of 40 feet, and all other lots 

to a depth of 2,000 feet, until the 1st of March, 1904, when the depth 

was made 200 feet.

In 1890 the first steps were taken to permit the working of all 

reserved minerals on private property. A proclamation was issued 

authorizing the owner of the land to work the reserved minerals on 

payment of royalties "for coal, 6d. per ton; for gold, 2s. per ounce; 

for other minerals, 2£ per cent of value of gross output."

This provision was followed in 1897 by a mining on private property act, which was based almost wholly on the South Australian 

enactment of 1888 as amended in 1895. This provided for the 

resumption of the land on certain conditions involving compensation 

to the owner, together with a portion of the revenues received by 

the government. This act provided that before such mining could 

be permitted an official of the government must in all cases certify 

that the land in question contained precious metals in payable quantities. As no provision was made for prospecting or other means of 

determining the mineral value by the government official the law 

was found unsatisfactory in the only case in which an attempt was 

made to apply it. It was repealed in 1898, when an enactment 

based on the provisions of the Victorian mining law was substituted. 

Under this enactment the government may authorize prospecting on 

private lands for the precious metals, and may grant leases for the 

purpose of mining for such metals, subject to the payment of compensation to the owner for damages. This provision was slightly 

amended in 1899, but its broader features still remain in force.

In the mining act of 1904 Parliament carried to the fullest extent 

the doctrine that "all land should be utilized for that which it is 

most valuable" by declaring that if a private owner would not work 

the unreserved minerals that the government would permit anyone
MINING LAWS OP AUSTRALIA AND NEW ZEALAND. 43

else to do so; would assess a rental or royalty and pay the same to 

the owner less 10 per cent for administrative expenses.

In 1892 the mineral lands act was passed extending the application 

of the general principles which had been applied to gold mining to 

all other minerals. Provision was made for the staking out of claims 

by the holders of mining licenses which bore the same relation to 

minerals other than gold as the miner's right did to gold. These 

mining licenses were issued for a period of twelve months on payment 

of 10s. There was no limit to the number of claims which could be 

taken up under one mining license. Development was made the 

basis of all mineral-land holdings. Mineral leases for not exceeding 

160 acres could be obtamed for a term of twenty-one years at a 

rental of 5s. per acre per year, and were renewable tor a further term 

of twenty-one years on "such conditions as the minister may deem 

equitable." In respect to renewals, mineral leases were in 1904 

placed on the same basis as gold leases, namely:

The lessee shall at the expiration of his lease have a right to renew the lease for a 

further period of twenty-one years, subject to the provisions of the acts and regulations 

relating to mineral leases in force at the time of such renewal.

A special section was inserted dealing with coal, in which a maximum lease area of 640 acres was prescribed with a rental of 6d. per 

acre per annum and a royalty of 3d. per ton for the first ten years 

and 6d. thereafter. This act likewise provided for licenses for 

quarrying and brickrnaking purposes, the fee being such as the 

governor might determine, but not less than 5s. per month for each 

man employed.

So long as the mineral lands were of no particular importance 

they were handled by the lands department, but when the mineral 

development began to assume some importance this portion of the 

land system was placed in charge of the mines department, which 

was created in 1895 for this purpose. The lands department still 

retains the control of quarry, mineral spring, and guano licenses 

and leases.

; SUMMARY OF THE HISTORICAL DEVELOPMENT OF MINING LAW.

I

The mining law of Western Australia has shown the following 

stages of gradual development:

As regards reservation of minerals in deeds of grant:

From foundation of colony to 1887: Reservation of "gold, silver, and other precious 

metals;" in effect a mere formality.

1887-1898: Reservation in addition to the precious metals of such substances as the 

governor might deem wise to reserve in special cases.

1898 to date: Reservation of all minerals.

As regards disposal of mineral lands with reservation of gold and 

silver:

From date of discovery of minerals to 1854: Sale after advertisement at public 

auction under the same conditions as agricultural lands.

1854-1865: Separation from agricultural lands and compulsory disposal at public 

auction after as "mineral land."

1865-1872: Optional sale at fixed price of £3 per acre or lease for ten years at 8s. 

per acre per year, neither sale nor lease involving any conditions of development 

lessee having option of purchase at any time at £3 per acre. This practically marked 

the end of the sale of mineral lands. Only one sale of subsequent date (1873) is 

recorded and this appears to have been under rights existing prior to the regulations 

of March, 1872.
44 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

1872-1873. Sale at £10 per acre only at termination of lease for twenty-eight years.

1873-1892: Sale, after the erection of such a plant as the commissioner might deem 

necessary for the proper working of the land, or after filing of approved bond to do 

such work, at a pnce fixed by the government but not less than £3 per acre; or lease 

for seven years at 5s. per acre per year, lease liable to forfeiture if land was unworked 

for twelve months. Practically no mineral land was sold during this period.

1892 to date: Development entirely under claims and leases, principally the latter, 

with conditions of continuous development.

MINING ON PRIVATE PROPERTY.

Although "gold, silver, and other precious metals" were reserved 

to the government in all deeds of grant no special provisions were 

made by the government for the working of these minerals until 

1890, or a short time after the discovery of gold and after the date 

(1887) when the governor was empowered to reserve minerals other 

than gold and silver. Under the regulations of 1890 the owner of 

the freehold was permitted to work for the reserved minerals on 

payment of the following royalties:

For coal, 6d. per ton; for gold, 2s. per ounce; for other minerals, 2£ per cent of the 

value of the gross output.

These regulations were followed in 1897 by a mining on private 

property act, which act was little more than an exact copy of the South 

Australian mining on private property act of 1888 as amended in 

1895, and was evidently adopted without much consideration, for 

the conditions in South Australia were entirely different from those 

in Western Australia. In South Australia the gold and silver had 

been specifically granted to the freeholder by the government, and 

the South Australian law was thus framed to provide a means for 

mining on private property for minerals which belonged to the 

freeholder.

Among other things this act provided that before such mining 

could be permitted an official of the government must in all cases 

certify that the land in question contained precious metals in payable 

quantities. As no provision was made for prospecting or other 

means of determining the mineral value by the government official, 

the law was found unsatisfactory in the only case in which an attempt 

was made to apply it. This law was repealed in 1898 and an enactment based on the provisions of the Victorian mining law substituted. 

Under this enactment the government may authorize prospecting on 

private lands for the reserved minerals and may grant leases for the 

purpose of mining for such minerals subject to the payment of 

compensation to the owner for damages. This act was slightly 

amended in 1899, but its broader features still remain in force.

In the mining act of 1904 Parliament carried to the fullest extent 

the doctrine that all land should' be utilized for that for which it is 

most valuable by declaring that if a private owner would not work 

the unreserved minerals the government would permit anyone else to 

do so; would assess a rental or royalty and pay the same to the owner 

less 10 per cent for administrative expenses. This last is a theoretical 

enactment entirely original in certain parts, but owing to the fact 

that no important mineral lands have been sold in Western Australia, 

it has never been subjected to actual tests nor is it at all likely ever to 

involve any large interests.

The present law, in addition to providing for the indemnification 

of the freeholder for all damages, provides that the rental charges for
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 45

leases for reserved minerals on private lands shall be the same as the 

charges for leases on government land, and that in the case of unreserved minerals the owner shall have a preference right for six months 

after an application is filed to take out a lease without rent or royalty; 

otherwise the usual rent and royalties will be collected and paid to 

the owner as described above.

TERMS AND CONDITIONS OF LEASES.

The first definite instructions regarding mineral leases issued to 

any of the governors of the Australian colonies were dispatched in 

1845 to the governor of Western Australia. These instructions were 

not prompted by the greater relative importance of Western Australia as a mineral-producing region, because it was in fact then one 

of the least important in Australia, but were due to an application 

from a party in England for a mineral lease in that region. These 

instructions fixed the term of mineral leases at thirty-one years and 

the rent and royalty at one-fifteenth of all metalliferous ores or, at 

the option of the government, an equivalent in money according to a 

rate per ton, which should be ascertained by parties appointed for 

the purpose. This royalty was the same as that suggested the following year to the governor of South Australia and was but an advance announcement of the decision in the South Australian matter. 

When this plan was abandoned because of the strenuous protest of 

the people of South Australia, and the policy of selling known mineral 

lands again adopted, all thought of leasing was for a time abandoned 

in Western Austrab'a.

Provisions for leasing mineral lands were not repeated until 1865. 

Then the developer was permitted to choose between a mineral lease 

and a mineral freehold. The lessee was further given the right to 

purchase the land at any time, and, although this plan was not practically abandoned until 1887, the last sale of known mineral land 

occurred in 1873. The freehold of several lead and copper properties 

was purchased during this early period and production is recorded 

for some of them as late as 1903, but since that time the entire mineral 

reduction of Western Australia has come from government leases, 

n 1906 this production was as follows:

Quantity and value of minerals produced in Western Australia during 1906.

Quantity.

1,495

149,755

7,430

1,794,547

1,280

9,472

2,681

282, 145

15

Value.

£157,644

57,998

50,337

7,622,749

512

1,691

44,460

37,612

2,644

7,975,647

Black tin (raised).................................................statute tons..

Coal (raised)..............................................................do....

Copper ore (raised).......................................................do....

Gold (export and mint)............................................fine ounces..

Ironstone (raised).................................................statute tons..

Limestone (raised).......................................................do....

Pig lead (exported) <».....................................................do....

Silver (exported)...................................................fine ounces..

Tantalite (raised).................................................statute tons..

Total values.

o Contained in bullion from the Fremantle Smelters (Limited).

The terms and conditions on which mining leases have been issued 

at different times in Western Australia are summarized in the table 

following.
46 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Terms and conditions on which mining leases have been issued qt different times in

Western Australia.

Term of years: 

Gold....................................

Minerals other than gold ................

Period for which renewable: 

Gold....................................

Minerals other than gold ................

Maximum area in acres: 

Gold....................................

Minerals other than gold and coal. .......

Coal.....................................

Rent per acre per year: 

Gold....................................

Minerals other than gold or coal .........

Coal.....................................

Royalty on gross output: 

Gold....................................

Minerals other than gold and coal. .......

Coal per ton .............................

Development conditions expressed in men 

per acre per year: 

Gold....................................

Minerals other than gold and coal. .......

Coal. . ...................................

Instructions, 1845.

\ 31

1 31

} («)

I No limit.

None.

Mineral 

land regulations, 

January, 

1865.

{ - a-

{ 00

| ieo

8s.

Land regulations, March, 

1872.

28

628

200

1

5s., 1st 7 yrs. 

10s., 2d 7 yrs.

15s., 3d 7 yrs. 

.20s. thereafter.

Land regulations, 

May, 

1873; March. 

1887.

7

67

200

1 *

1

(«)

Gold 

fields act, 

1886 (regulations, 

1892).

91

91

9*5

 PI

J

Term of years: 

Gold...........................................

Period for which renewable: 

Gold...........................................

Maximum area in acres: 

Gold...........................................

Rent per acre per year: 

Gold...........................................

Royalty on gross output: 

Gold...........................................

Development conditions expressed in men per acre 

per year: 

Gold...........................................

Coal...........................................

Mineral lands 

act, 1892 (regulations, June, 

1892; regulations, May, 

1900).

21

«21

g 50-150

ft 320

5s.

6d.

f 3d. 1st 10 yrs.

A Jn

Gold 

fields act, 

1895 (regulations, 

April, 

1896).

21

<J21

24

f 1

}.........

1$

Sluicing 

and 

dredging 

for gold, 

act, 1899.

21

(«).

5,000

6d.

Is.

(m)

Mining act, 1904 

(regulations, 

July, 1905).

21

21

<m

<»21

/24

/48 <320

5s.

6d.

tls.

f 3d. 1st 10 yrs.

"i«! oj!

"No provisions for renewal. 

6 On such conditions as might be agreed.

cLand liable to forfeiture if "undeveloped and unworked" for one year. 

<J Subject to acts and regulations in force at time of such renewal. 

e On such conditions as the minister may deem equitable.

/May be double this size if land has been worked and abandoned or if development requires unusual 

expenditures. 

g For tin, silver, and antimony not exceeding 50 acres; other minerals not exceeding 150 acres.

* Six hundred and forty acres may be allowed in a reward lease for the discovery of coal. On such a base 

the royalty is Id. per ton instead of 3d.

i Six hundred and forty acres may be allowed as a reward lease. On such a lease royalty is remitted for 

ten years, and thereafter only Id. per ton is charged.

i May be 5s. for first year.

* Charged only when gold is mined in connection with other minerals and in too small quantities to 

justify its separate extraction. If gold can be profitably worked, lessee must either take gold-mining lease 

or pay a royalty of 10s. per ounce.

' Only 2 men required on base during first year.

m Must keep constantly employed "machinery of a value of not less than £3,000 for every 2,000 acres."

n Except leases for double area where only one-half the usual labor per acre is required.

o One man to 60 acres first year, 1 man to 30 acres second year, and l man to 20 acres thereafter.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 47

Under the existing law the maximum areas which can be held 

under one lease are: For gold, except dredging, 48 acres; minerals 

other than gold and coal, 96 acres; and coal, 640 acres. The minister may, however, allow the concentration of labor on a group of 

leases if he deems best, provided the total areas do not exceed the 

following: For coal, if at a depth less than 1,000 feet, not exceeding 

2,560 acres; if at a depth exceeding 1,000 feet, not exceeding 5,120 

acres. For other minerals, except gold, any area necessary to work 

a reef to a depth of 3,000 feet, provided the distance along the outcrop of the reef does not exceed 90 chains; for gold any area necessary 

to work a reef to a depth of 3,000 feet, provided the length along the 

outcrop of the reef does not exceed 66 chains.

EXTENT OF OPERATIONS.

The holdings possible under the mining law include, besides mining leases and claims, various holdings involving the use of the surface only, such as residence areas, business areas, machinery areas, 

water conservation areas, and the like. In the accompanying statistical table only data relating to mining leases, claims, and prospecting areas are presented.

Table giving mining holdings under tha provisions of the Western Australian mining 

laws on December 31,1900-1906, inclusive.

Year.

Number of miners' rights (including mineral licenses prior 

to 1904).......................

Claims .........................

Gold: 

Leases on public lands. . .... 

Area of leases on public 

lands. . ........... .acres. . 

Government leases on priArea of government leases

Minerals other than gold and 

coal: 

Leases on public lands ..... 

Area of leases on public 

lands.............. acres.. 

Government leases on priArea of government leases 

on private lands o. acres. .

Coal: 

Leases on public lands. . .... 

Area of leases on public 

lands. . ........... .acres. .

1900.

8,751

1,049

845

2,546 

35,841 

15

210

233 

5,973

98 

30,743

1901.

7,424

899

891

2,482 

34, 192 

21

306

278 

6,626

96 

29,785

1902.

7,341

822

627

2,406 

32,334

1 Q

236

214 

5,594

94 

29, 145

1903.

7,080

886

561

2,308 

30, 173

OA

242

150 

3,838

94 

29, 145

1904.

7,422

778

509

2,471 

32,362 

17

168

112 

2,614

68 

20,975

1905.

7,853

600

523

2,447 

32,273

152 

3,549 

2

50

74 

22,894

1906.

7,973

533

863

2,181 

29,370

197 

4,227 

2

50

74 

22,894

o No provision for working minerals other than gold on private land prior to mines act of 1904. 

No coal known on private lands.

RESULTS OF TEST OF GOVERNMENT MINERAL LEASEHOLD.

It is under the condition of leasehold, with its accompanying compulsory working of mineral holdings under government supervision, 

that the phenomenal development of mining in Western Australia 

has taken place. During the five-year period, 1881-1885, the total 

mineral production of this colony was £45,000, or approximately
48 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

£9,000 per year, and practically all of this was derived from freehold 

lands. Since 1902 the total production has generally exceeded 

£8,000,000 per year, and for several years every pound of this has 

come from public land held under government lease. While it would 

be illogical in the extreme to deduce from this fact the conclusion that 

the policy of government mineral leasehold has been the cause of 

this phenomenal development, it must be conceded that such legislation clearly does not prevent the development of the country 

whether or not it has in the opinion of mining men retarded it to any 

degree will be considered presently and that this legislation has 

most certainly had a severe practical test.

In arriving at a conclusion on the related points (1) whether this 

policy of leasing has retarded development, or, expressed more broadly, 

whether in the opinion of mining men the development of a region 

is promoted more by a freehold than a leasehold tenure with conditions of a continuous development, and (2) whether the operations 

of the law are as a whole agreeable to mining men, and if not, in what 

particulars they can be improved four lines of evidence are available:

(1) The detailed evidence taken by the Western Australia commission on mining in 1897.

(2) The proposed amendment of the existing mining law, prepared 

by the mines department in 1907, which embodies the government 

interpretation of the popular demands.

(3) The criticism of the above and of the general mining law, prepared by the Chamber of Mines of Western Australia in 1907.

(4) The opinions of the president and secretary of the Chamber of 

Mines of Western Australia and of other leading mining men in Kalgoorlie, obtained during the writer's recent visit.

The commission of mining was appointed after the leasing system 

had been in operation exclusively for twelve years, and to a limited 

degree for thirty-three years, and about at the close of the boom 

period of discovery and intense mining activity, when there had been 

great mineral excitement and gold rushes in fact, all the conditions 

necessary to fully and exhaustively try the law and regulations. 

This commission distributed very widely through the gold fields a 

list of questions bearing on the operations of the mining law and 

then held meetings at five of the most important mining centers. 

Among the 39 questions contained in this list and discussed in these 

meetings were the following, which bear particularly on the present 

discussion:

Do you think gold-mining leases should have a better title than at present? If so, 

why? State your proposed alterations.

What alterations in the gold-field act of 1895 and regulations do you think necessary to create a greater interest in mining?

Are you in favor of leaseholders being permitted to hold ground unworked for a 

portion of the year in consideration of spending during the time the mine is actually 

worked as much cash in wages as would be required for the whole year's labor 

conditions?

The net result of this investigation was an overwhelming verdict 

in favor of leasing with the condition of compulsory development. 

By only five witnesses was freehold definitely recommended, but 

three of these ended by indorsing the system of leasehold with the 

condition of development, and the indorsement of freehold by the
MINING LAWS OF AUSTBALIA AND NEW ZEALAND. 49

other two proves on analysis to be far from an indorsement of the 

American mining law. An abstract of the evidence of these five 

witnesses on this point follows:

A. G. Jenkins, mayor of Coolgardie, a solicitor with mining experience in Victoria 

and Western Australia and legal representative of certain English companies, stated 

that he preferred a system of freehold similar to that given in the United States (5737),° 

but he explains that freehold should only be given after the sum of £5,000 had been 

spent on actual development work, not simply putting machinery on the lease (5799 

and 5800).

Modest Maryanaski, a Polish mining engineer who had spent eleven years in the 

United States, "favored the introduction of the mining law of the United States of 

America with certain alterations and variations." (8777.) He stated that he would 

require an annual expenditure of £100 to £200, and when the expenditure had reached 

the total of £1,000 would give a "proper title," but after this proper title had been 

given he "would tax that property so that it would be impossible to keep it except 

it was being worked." (8779.) "To prevent shepherding (that is the holding of 

mining property without full development), I would impose a nominal tax." (8803.) 

On analysis this proves to be rather more of an indorsement of the principles of 

Western Australian mining law than of American mining law.

John Marshall, president of the Prospectors' Institute of Kalgoorliej with six years 

experience in Western Australia and extensive experience in America, in reply to 

the question (6315) "You consider the present lease tenure in this colony as good as 

can be given?" replied, "No; I do not. You could give the fee simple of the land." 

Later, the same witness in reply to the question (6327) "Would you be in favor of 

companies who have spent large sums of money having some concession granted them; 

it has been suggested that they ought to have an indefeasible title after spending 

£10,000?" replied, "I know in New South Wales those mines which were held in 

fee simple were a curse to the neighborhood in which they were situated. I believe 

that the system of giving a fee simple on account of having spent a certain amount of 

money would not be fair to the country. My experience in the past has been that it 

was a curse to New South Wales."

Henry Clay Callahan, an American, testifies that he does "not agree with the mining 

laws of Australia." He favors those of the United States. Asked if he would prefer 

a freehold or a leasehold he naturally replied "I should prefer a freehold." He, however, states (8048): "I am not a believer in absolute security of tenure unless mines 

are worked by some means or another."

As this is the essence of the principle underlying the matter of leasing leasing is 

but the means of enforcing the requirement of development Mr. Callahan must be 

held to have imbibed something of the principles of Australian mining law.

G. K. Fearsby, a mining engineer with experience in Western Australia, New South 

Wales, Queensland, Borneo, Philippine Islands, China, and British Columbia, propounds a most astonishing version of the American mining law (9784-9792). He at 

first states he favors the American freehold (9783), and later states (9836) he does not 

advdcate the American system.

Several witnesses expressed themselves as in favor of granting, 

after the expenditure of certain large sums, an " indefeasible title/' 

in some cases for the normal term of a lease and in a few cases for all 

time, which certainly suggests a freehold, though this point was not 

fully developed and it is not always possible to determine the full 

point of view of the witness, the testimony being vague or contradictory, thus:

George Webb, the manager of the Kalgoorlie mine and Iron King mine, favored 

granting an indefeasible title for twenty-one years (9289) or lease in perpetuity 

(9230-1) after an expenditure of £500 per acre. (This in the case of an ordinary 

American mining claim, 1,500 by 600 feet, would mean the expenditure of over $100,000 

before patent could issue.)

a The numbers given in parentheses correspond with those used in numbering 

the answers of the witnesses in the report of the Western Australian mining commission.

16014° Bull. 505^11 4
50 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

In the matter of leaseholds, the prospectors and labor men were a 

unit in indorsing it as entirely satisfactory. Among the representatives of large financial interests many of the men in the most responsible positions strongly indorsed leasehold and compulsory development. The following testimony bearing on this point has been 

selected as of special weight because of the character and position of 

the witnesses:

M. W. Judell, a mining engineer and representative of English capitalists, states 

(1129): "I do not advocate an absolutely indefeasible title. I want to have a title 

surrounded by certain reasonable conditions which will insure the exploitation of 

the land."

H. A. M. Morgans, mining manager, with experience in Australian States, United 

States, and Great Britain, in reply to the question "Would you be in favor of amending 

the act so as to give leaseholders an indefeasible title " states that he would not, that 

he would only grant absolute exemption from the labor conditions for a period of two 

years after the company had expended £10,000 (7660-2). He holds that for a man 

to retain possession of a lease he should expend £700 per annum in actual mining 

development (7546).

Edward Skewes, manager of the Bolder Main Reef, one of the large mines at Kalgoorlie, testifies (8457): I think so long as men do the work they should hold the 

ground and you should not allow the ground to remain idle for more than two years, 

no matter what amount of money has been expended on it."

William Dick, manager of the Golden Horseshoe, another of the great Kalgoorlie 

mines, testifies (8973): "Would you favor a company which has spent say £20,000 

on this property haying an indefeasible title for all time to that property?'' " I do not 

think so. I think it is right that the Government should have some control over it." 

"You do not favor the American system?" "No, I do not."

The testimony taken by the commission developed the fact that 

there was a considerable amount of "shepherding" of leases that is, 

the holding of leases without the performance of the required amount 

of development or the obtaining on the part of the lessees of the 

proper legal exemption, and the commission therefore recommended 

the appointment of "rangers whose duty will be to see that the 

labor conditions on leases and so forth will be fulfilled." This 

recommendation has never been carried out by Parliament.

Among the other questions inserted by the commission in the fist 

which had been distributed was "Are you in favor of the government of this colony reserving the undoubted state right to the royal 

metals?" Particular interest attaches to this question as it asserts 

the right to the royal metals as a state right, not as a royal prerogative. The answer to this question was almost unanimously "aye."

The main point of criticism developed by this commission related 

to the enforcement of the condition of continuous development. 

The larger operators, while as a whole favoring the principle that no 

mining tenements should be held without development, felt that 

certain improvements in the existing law and regulations were 

desirable. They advocated:

(1) The substitution of a fine for forfeiture in the first or second 

breach of the labor conditions. This, it was pointed out, would 

protect a large company from loss through incompetence or neglect 

on the part of their local manager;

(2) Exemption as a right for limited periods not exceeding two 

years after the expenditure of certain sums;

(3) The expression of the labor covenant in money instead of 

men, usually estimated at from £400 to £700 per year for an ordinary 

gold lease of 24 acres with exemption from further expenditure for 

the balance of the year on the expenditure of this sum;
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 51

(4) The provision that no lease should be forfeited for any reason 

whatsoever except nonpayment of rent or noncompliance with 

labor conditions. All other breaches of the regulations should be 

punished by fines. This arose from the injudicious threat of one of 

the officers to forfeit certain leases for very trivial breaches of the 

regulations, which proceeding was held to unduly and unjustly 

jeopardize the title; and

(5) The incorporation of the labor conditions in the act instead 

of allowing them to be fixed by the regulations which could be changed 

at will by the minister.

The commission recommended all these changes except exemption 

as a right after the expenditure of a certain sum and the expression 

of the labor conditions in money instead of men. The mining act 

amendment of 1898 provided for a fine in case of the first breach of 

the labor conditions and regulations. The act of 1904 provided for 

exemption as a right for six months on expenditure of £1,500 and 

for twelve months on expenditure of any sum exceeding £4,000, 

providing that " no exemption shall be granted * * * in respect 

. of any expenditure incurred prior to the date of any expired exemption." Exemptions were also allowed as a right which in effect 

required that a lease held by working miners must be worked only 

eight months out of the year, and leases held by companies with a 

capital not exceeding £5,000 only nine months out of the year. 

The amending act prepared by the mines department in 1907 contains an expression of the labor conditions in monev instead of men. 

The other changes in the amending act are of minor importance, 

which is equivalent to a statement that with this exception the law 

has been entirely satisfactory. This change has the hearty indorsement of the Chamber of Mines of Western Australia, and its comments on the proposed amending act and the list of additional 

changes in the existing law which it suggests have to do wholly with 

minor matters of phraseology or of local interest.

In a recent visit to Kalgoorlie special efforts were made to see the 

representatives of the larger interests, and they unanimously and 

unqualifiedly indorsed the leasing system as a better method of promoting mining development than freehold.

The views of Mr. Richard Hamilton, president of the Chamber of 

Mines and manager of the Great Boulder Proprietary Company mine, 

one of the richest gold mines of the world, carry great weight, as they 

represent the conclusions of a man who is not only a mining engineer, 

but a lawyer, a man with wide experience, and one who speaks only 

after careful consideration, and then with mature judgment. Man 

after man in the field said "See Hamilton, he knows what we think; 

he knows the conditions, and what he tells you may be taken as the 

opinion of the mining men of this country." Mr. Hamilton has 

spent considerable time in America in studying our mining conditions and is emphatic in the belief that mining development is better 

promoted by the Western Australian leasehold system than by the 

American freehold. The manager of another big Kalgoorlie mine, 

when he expressed himself in favor of leasehold, was asked, "Well, 

if the Government should offer to give you a freehold title to your 

property would not you take it ?" replied, "Certainly, just as I would 

take £100 in bank notes if you offered them to me, but I would think 

you a fool nevertheless."
52 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

In view of these facts one may confidently assert:

(1) That the mining law of Western Australia has been exhaustively tried.

(2) That it is now, with minor exceptions, regarded as entirely 

satisfactory by the mining interests of the country.

(3) That in the opinion of the mining men development is better 

promoted by leasehold than by freehold tenure.

In short, viewed from the standpoint of present-day knowledge, the 

Western Australian mining law has proved a decided success.
CHAPTER III.

THE DEVELOPMENT AND PRACTICAL WORKINGS OF THE MINING LAW 

OF SOUTH AUSTRALIA. 0

South Australia 6 has a total area of a trifle over 380,000 square 

miles, or but slightly less than the combined area of Colorado, Wyoming, Utah, and Nevada, and a population of about one person to 

each square mile, or slightly less than the combined population of the 

last three States. Although it has always been an agricultural and 

pastoral rather than a mining community, its mining industry has hi 

a quiet way attained considerable size, and the circumstances connected with the development of its mining laws have been such that 

it furnishes important data on the practicability of government 

leasehold as applied to mineral development, and on that particular 

phase of the matter of special interest to Americans the feasibility 

of introducing a system of government leasehold after important 

mining properties have passed into the hands of private owners.

In South Australia not only were no reservations of the precious 

metals inserted in the first Crown grants, as in Western Australia, but 

when the plan of inserting a reservation of one-fifteenth of all metalliferous ores was put in force, in 1846, it met with so much disapproval 

that the home government waived all rights to minerals and the local 

government in 1849 canceled the reservations which had been inserted. Grants were then issued containing no reservations of 

minerals and were generally believed to convey everything to the 

freeholder. When, however, the privy council, in 1877, decided, on 

an appeal from the Victorian courts, that the precious metals do not 

pass to the freeholder, unless the intention that they should so pass 

is specifically stated in the deed of conveyance, the parliament of 

South Australia at once passed an act stating that deeds of grant in 

Southern Australia should be construed to convey all minerals including gold and silver. In this respect South Australia has gone 

further than the United States in the matter of confirming the title 

of the freeholder to the precious metals, for while it has been held as 

to lands alienated by the General Government of the United States 

that the owner of the surface does have title to the precious 

metals, the Government has never, by enactment or in any other 

authoritative manner, waived its common-law right to the precious 

metals.

The present separation of surface and mineral rights in South 

Australia, the reservation of all minerals to the Government, and the 

working of those minerals only on Government leasehold have thus

o Australia Mining Law Report No. 2, forwarded to President December 27,1907.

6 The Northern Territory, an area of 523,620 square miles, extending north from the 

twenty-sixth parallel of south latitude, which was added to South Australia in 1863 

and which has been governed by laws differing in some respects from those of South 

Australia proper, is not included in this discussion. Its mineral wealth has not been 

extensively developed; the total population in this enormous area is less than 5,000, 

and arrangements are just being completed to turn this territory over to the Australian 

Commonwealth.

53
54 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

developed, in a thoroughly" democratic state, from a condition in 

which the title of the surface owner to everything above and below 

the surface was at one period even more fully confirmed than it is in 

the United States to-day.

DEVELOPMENT OF GOVERNMENT POLICY IN REGARD TO ALIENATION

OF MINERALS.

From the settlement of South Australia in 1836 until March 5, 1846, 

deeds of grant contained no reservation of minerals, it being expressly announced in the Government Gazette of November 14, 1840, 

that "The sole condition of purchase shall be the payment of money 

at the rate of £1 sterling per acre and nothing whatever above or 

below the surface will be reserved to the Crown." In 1841 galena 

deposits were discovered a short distance southeast of Adelaide, and 

after the land had been purchased under the system of public tender 

then in vogue, the first mine in the colony was opened. Other discoveries followed, including the Kapunda mine, the first copper mine 

in Australia, and the lands were disposed of in the same way. In 

January, 1843, this system of disposal was changed by the coming 

into force of the imperial waste-lands act of 1842, to sale at public 

auction at a minimum price of £ 1 per acre, and the property containing the Montacute copper mine, discovered in 1843-44, was acquired 

in this manner. The regulations under this new law provided that if 

any person should offer to purchase at private contract 20,000 acres 

or more at £1 per acre, the land could be sold without auction and the 

area so bought would be specially surveyed. This provision was 

utilized in five cases in 1845-46, and the areas so selected and surveyed are referred to by the surveyor-general as '' the special surveys 

of mineral lands." One of these special surveys contains the famous 

Burra Burra copper mine, the discovery and development of which 

is said to have done much to attract attention to this struggling 

colony and assure its future settlement and development. The total 

yield of copper from this mine prior to 1877 amounted to £4,749,000.

These discoveries resulted in a change of policy. The colonial land 

commissioners in recommending this change said that "before there 

was any reason to suppose the existence, to any important extent, of 

valuable minerals in the Australian colonies we did not think it expedient to continue the early practice of inserting in crown grants a 

reservation of all mines," but that now that valuable mines had been 

discovered they did not consider it any longer desirable to sell the lands 

entirely without reservation. They concluded that it was not wise 

to separate the surf ace from the underground rights, but recommended 

that one-fifteenth of all " metals and metalliferous ores," and possibly 

coal, be reserved in each grant. The secretary of state transmitted 

these recommendations to the governor of South Australia, who on 

March 5, 1846, proclaimed regulations in which it was stated that in 

all lands alienated thereafter there would be reserved to the Crown 

" one-fifteenth of all metals and ores containing metals lying upon, in, 

or under such lands, payable in kind."

These regulations further provided that all lands would be sold at 

auction, as had been the custom, but when the lands were known or 

supposed to contain minerals they would be advertised for as long 

a period before sale as the law would p.ermit, generally about three 

months, while ordinary lands would .be advertised only about one
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 55

month. They further provided that lands known or supposed to contain minerals could be obtained on lease. These regulations stopped 

at once the purchase of large 20,000-acre blocks for mineral values.

The imposition of this royalty was regarded as a great hindrance 

to the development of the colony. Its collection was resisted by the 

colonials, and when an attempt was made to collect it by legal process 

the local court decided against the State on the basis that the insertion 

of such a reservation in grants was illegal. So great was the popular 

indignation that one of the first acts of Lieut. Governor Henry Young, 

who succeeded Lieutenant-Governor Kobe on August 2, 1848, was to 

dicontinue such reservations pending further advice from London. In 

1849 the English Government, "conceding to the express wishes of 

the great body of the community of South Australia," entirely yielded 

all royalty or seigniorage, and the governor, with the advice and consent of the legislative council, enacted (No. 7 of 1849) that all grants 

containing reservations of royalty on metalliferous ores should be 

construed as if no reservations were contained therein.

In the waste lands alienation act of 1872 power was given tolihe 

commissioner of public lands for the first time to "decline to accede 

to any application for the selection of any waste land known or 

supposed to contain gold, copper, or other minerals." The commissioner practically had this power before in respect to lands known 

to be mineral before survey, for no lands could be sold without 

survey, and the commissioner could refuse, if he so desired, to survey 

lands known to contain minerals. The introduction of this clause 

into the legislation, therefore, indicates a desire to force the development of known mineral lands by leasehold. The Crown lands consolidation act of 1877 not only contains the same clause but goes a 

step further and empowers the governor to create mineral reserves 

and reserves for gold mining purposes.

Regarding the ownership of the precious metals in private lands 

the legislature set all doubts in this matter at rest by Act No. 88 of 

1877, which reads as follows:

Whereas doubts have arisen whether or not all minerals and metals, more particularly gold and silver, belong to the owner in fee simple of the land heretofore alienated 

from the Crown, and it is desirable to remove such doubts, and to declare as is hereinafter declared: Be it therefore enacted, etc., as follows:

1. The grant in fee simple of any land in South Australia heretofore granted or 

hereafter to be granted shall be construed to include and convey to the owner in fee 

simple for the time being of such land the absolute property in all mines and minerals 

including gold and silver (commonly termed "royal metals"), nothing whatever 

above or below the surface of the land being reserved by the Crown.

This act was repealed by the crown lands act of 1886, which provided that thereafter all grants should be construed as not including 

or conveying " to the owner of fee simple for the time being * * * 

any property in any gold above or below the surface of the land." 

The Crown lands act of 1888 extends this reservation to all minerals.

As regards the sale of mineral lands and the reservation of minerals 

in Crown grants or patents, the history of the mining law of South 

Australia has thus shown the following stages:

From settlement of colony in 1836 to 1846: No minerals reserved; 

and in sale no distinction made between known mineral lands and 

other lands.

1846-1848: Reservation of royalty of one-fifteenth of all metalliferous ores. Mineral lands sold after longer advertisement than 

in ordinary cases, but with the reservation of royalty as aforesaid.
56 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

1848-1886: No minerals reserved, the legislature by two special 

enactments waiving all rights to the precious metals.

(a) 1848-1872: Government had no power to refuse to sell known 

mineral lands under the same conditions as other lands provided 

same had .been surveyed.

(b) 1872-1877: Government had power to refuse to sell known 

mineral lands and this practically ended the sale of such lands.

(c) 1877 to date: Government had power not only to refuse to 

sell known minerals, but to create mineral reserves. 

1886-1888: Gold reserved in all grants. 

1888 to date: All minerals reserved in all grants.

TERMS AND CONDITIONS OF LEASES.

The first provision for leasing minerals in South Australia is found 

in the land regulations of 1846. Prior to that time no distinction 

had been made between mineral and nonmineral lands. All were 

disposed of either by tender or auction at a minimum price of £1 per 

acre and without any reservation of minerals. The land regulations 

of 1846 provided that:

Lands known to contain metals and metalliferous ores may be obtained by lease, 

with, the right of mining, for periods not exceeding twenty-one years, if so desired by 

capitalists. Jn such leases there will be reserved the same royalties [one-fifteenth of 

gross output] as upon lands sold in fee simple; but the price of the lease will be subject 

to competition at public auction.

No leases were taken out under these regulations, the conditions 

being regarded as practically prohibitive.

On December 18, 1851, special regulations for the leasing of mineral lands were issued with the following explanatory statement:

The lieutenant-governor directs it to be notified that as he is not at present authorized, either by the waste-lands acts or the recent orders in council to grant leases, excepting for pastoral purposes, His Excellency can only grant leases of mineral lands 

* * * subject to Her Majesty's confirmation.

These regulations were approved and confirmed by the home government in June, 1853. They provided for leases for all minerals 

other than gold of not exceeding 80 acres, ror not exceeding fourteen 

years® at a rental of 10s. per acre per year, the lessee being entitled 

to the right of search for one year, the lease to date from the commencement of the second year. The regulations further provided 

that on the termination of a lease the land should be put up at public 

auction and sold, and if sold to other than the former lessee he was 

to receive the value of improvements from the purchaser.

The first application for a lease was filed on December 19, 1851, 

but the first lease was not issued until June 20, 1854, the great delay 

being due to the facts that the early applications were, to a large 

extent, abandoned and that the regulations for leasing minerals were 

not finally approved by the home government until 1853. On the 

abandonment of these early applications the lands were sold at public auction. This policy of selling at public auction mineral lands for 

which application for lease had been made but for which the application was not completed within three months continued until 1862.

a The Colonial Office held that under the act 9-10 Vict, C. 104, this period could 

not exceed fourteen years (Dispatch, December 30, 1846), and it was changed 

accordingly.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 57

The waste-lands act of 1857, which was the first lands act passed by 

the local parliament after the granting of constitutional government, 

incorporated the provisions of the Mineral Lands Regulations of 1851, 

but provided for the renewal of leases for a further period of fourteen 

years on payment of a fine of not less than £1 per acre, and for the 

imposition of such working conditions as might be prescribed by 

regulations. This act continued the policy of the sale of all lands at 

public auction at not less than £1 per acre; it abandoned the 20,000 

acres special block option without auction under which mineral lands 

were acquired in 1845-46, but there was still in the administration of 

the law nothing to prevent the acquisition of a mineral discovery by 

purchase in the regular way. Indeed, the surveyor-general in 1859 

expressed some surprise that men should take up leases at a rental of 

10s. per acre per year when "they might have applied for the survey 

of the land and bought it in fee simple for a sum probably little exceeding .£1 per acre." However this might have been, prospectors as a 

rule appear to have preferred mineral leases, and practically all 

new development work was undertaken on this form or tenure. The 

explanation of this lies perhaps in the fact that a lease was granted 

only to the original discoverer or one authorized by him. The lease 

guaranteed possession for a period sufficient to demonstrate the value 

of the land on payment of half the minimum purchase price, and if 

the find amounted to anything a yearly rental of 18s. per acre was 

clearly no great burden. On the other hand, if he applied for the 

survey of the block preparatory to purchasing it (noland was sold 

before survey) such a survey would only be made at such a time as 

the surveyor-general thought fit, and after the survey the discoverer 

had no assurance that he would be the successful bidder.

It was during this period that the famous Wallaroo and Moonta 

copper deposits were discovered and the discoverers, following the 

usual practice, applied for leases. It thus happened that the two 

most valuable mining properties in the State, though discovered and 

worked long before South Australia prohibited the sale of mineral 

lands and introduced a system of leasehold without alternative, are 

held on a government leasehold tenure. The first two 80-acre leases 

at Wallaroo were applied for in the early part of 1860 and were issued 

on April 10 and April 17, 1860, respectively, under regulations which 

provided that the fine for renewal should be not less than £5 per acre, 

but which fixed no maximum fine. These leases proved to be located 

on very rich ground, and when they expired in 1874 they were 

renewed on the payment of fines of £7,000 and £11,000, respectively. 

This, while apparently a large sum for the privilege of renewing a 

lease for fourteen years, was not unreasonable in view of the fact that 

the production of this mine up to 1886 exceeded £4,000,000 and the 

dividends exceeded £400,000.

The other leases at this point were issued under the regulations of 

October 18, 1860, which provided that the fine.for renewal should 

not be less than £1 nor greater than £20 per acre, and the fines on 

the renewals of these leases therefore did not exceed £1,600 in any 

case. The Wallaroo property is now composed of government leases 

aggregating 2,000 acres.

The Moonta mine was discovered in 1861 and the leases were, under 

the regulations of October 18, 1860, and the mineral leases act of 1862, 

subject to renewal at a fine not exceeding £20 per acre. The maximum fine when the first Moonta leases were renewed in 1875, there-
58 LAWS OF AUSTRALIA AND NEW ZEALAND.

fore, did not exceed £1,600 for any lease, but the aggregate paid by 

this company on its first 11 leases was £ 10,320. The total production 

of this mine up to December 31, 1898, was £5,113,252 and the dividends paid amounted to £1,168,000. The property now consists of 

government leases aggregating 2,670 acres.

The mineral-leases act of 1867, passed at a time when the great 

wealth of Wallaroo and Moonta had been demonstrated, raised the 

fine for renewal to £100 per acre and reduced the rental from 10s. to 

2s. 6d. per acre per year. No fines were collected under this 1867 act 

because, before the expiration of the leases issued thereunder, the 

crown lands consolidation act of 1877 was passed, permitting the 

holders of existing mineral leases to surrender their leases and take 

out new ones for ninety-nine years at a rental of Is. per acre per year 

and a royalty of 2^ per cent on the net profits, and all existing mineral 

leases of value were converted into ninety-nine-year leases.

The early development of gold was conducted either on private 

property or on the basis of miners' licenses or rights, and it was not 

until 1866 that provision for leasing gold were made. The gold discoveries were, however, not of sufficient importance to justify the 

payment of the rental of £5 per acre per year charged at this time, 

and no leases were taken out until the rent was reduced to £ 1 per acre 

in 1869. The first gold-mining lease bears the date of July 1, 1869.

Details regarding the changes, in the terms under which leases were 

issued are summarized in the following table:

Terms under which mining leases were granted at different times in South Australia.

Number of years for which 

renewable. 

Area:

For minerals other than 

gold and coal.

Rent per acre per year:

For minerals other than 

gold. 

Royalty.....................

Labor conditions (expressed 

in men per ac. per year): 

Gold....................

Minerals other than gold 

and coal. 

Coal.....................

Labor conditions expressed 

in money expenditure per 

year: 

Minerals other than gold. 

Equivalent of 1 horsepower 

or 1 horse in men in computing labor conditions.

Land 

-regulations, 

1846.o

21.....

None..

[Not 

f fixed.

None..

6|per 

cent. *

Mineral 

regulations, 

1851.

14.....

Nonec.

IsOAc".'. 

(80 Ac..

10s. . . 

None..

[None.. 

None..

Waste land act, 

1857.

Mineral 

regulations, 

1859.

14.....

14d....

'80 Ac".! 

80 Ac..

10s. . . 

None..

None.. 

£3....

Mineral 

regulations. 

1860.

14.....

14«....

"80 Ac".; 

80 Ac..

10s. . . 

None..

3/80... 

£3. . . .

Mineral 

leases 

act, 

1862, 

regulations, 

1866.

14. ....

14/....

'326'Ac! 

320 Ac.

10s. . . 

None..

3/80... 

£3....

Gold 

mining 

regulations, 

1866.6

14.....

None.. 

20 Ac..

£5....

None.. 

U....

Gold 

mining 

regulations, 

1867.&

14.....

None.. 

20 Ac..

£5....

None.. 

4......

"3"!!!!

Gold 

mining 

regulations, 

1868-9.

14.....

None.. 

20 Ac..

£1....

None.. 

2......

5."""!

Mineral 

leases 

acts, 

1867, 

mineral 

regulations, 

1868.

14. 

14.?

640 Ac.

2s. 6d. 

None.

3/80. 

£3.

a No mineral leases were issued under the regulations of 1846.

6 No leases were issued under these regulations because of the very high rental.

c Land sold at public auction at termination of lease.

d On payment of fine not less than £1 per acre.

e On payment of fine of not less than £5 per acre.

/ On payment of fine of not less than £1 nor more than £20 per acre.

g On payment of fine not exceeding £100 per acre.

fc Of output.

< For quartz-reef claims 1 man for every 30 feet along the reef.
MINING LAWS OP AUSTRALIA AND NEW ZEALAND. 59

Terms under which mining leases were granted at different times in South Australia 

Continued.

Term of years. ...... 

Number of years for 

which renewable. 

Area: 

For gold......... 

For minerals 

other than gold 

and coal.

Rent per acre per 

year:

For minerals 

other than gold 

Royalty.............

Labor conditions 

(expressed in men 

per ac. per year): 

Gold............

Minerals other 

than gold and 

coal. 

Coal............. 

Labor conditions expressed in money 

expenditure per 

year: 

Gold............

Minerals other 

than gold. 

E qui valent of 1 horsepower or 1 horse in 

men in computing 

labor conditions.

Gold mining act, 

1870-71.

Special 

coal 

section.

15....... (")

10,000 Ac.

Peppercorn. 

None....

None....

Goldmining 

regulation, 

1871.

14.....

None..

40 Ac..

10s....

None.. 

(<) )......

5......

Murray 

Flat 

special 

gold act, 

1871-72.

5........

(»)

10,000 Ac

Peppercorn.

None....

<*) 

4s.......

Crown 

lands 

act, 

1877.

99..... 

None..

640 Ac

Is.....

2Jper 

cent.*

3/80...

£3....

Gold 

mining 

act, 

1885.

21..... 

21c....

20 Ac..

10s....

None.. 

I/.....

2......

Crown 

lands 

act, 1886.

99o.....

None....

/80Ac.... 

\640/....

Is.......

2$ per cent.ft

3/80.....

£3......

Crown 

lands 

act, 1888.

99....... 

99d.....

80 Ac.... 

640/....

Is ......

2J per cent.fc

1/20.....

£3......

Consolidated 

mining 

act, 

1893.

42..... 

None..

20 Ac..

40 Ac.. 

640 Ac.

Is.....

2$ per 

cent.*

1/5....

ft/10...

\1/40...

(Must \ belabor.

Gold dredging 

act, 

1905.

10. lO.e

200 Ac.

Is.

None. 

1/10.

1£20.

o On public reserves only twenty-one years.

6 On discovery and expenditure of £10,000 has right of purchase at £1 per acre.

c Under the regulations in force at the time of such renewal.

d On payment of a fine to be fixed at time of renewal.

e On such conditions as the minister for mines may think fit, but rent shall not exceed 5 shillings.

/ At such rent and royalty as may be fixed.

a 6d. per acre until payuble in the case of coal.

ft Of the net profits. No royalty fixed on coal before 1900.

» To be determined at times of granting lease on statement of lessee.

j Reduced to 1 man for every 2$ acres by regulation, February 16,1888.

* Must expend not less than £2,000 a year exclusive of machinery.

Term of years. Omitting cases of special legislation, such as the 

Murray flats act of 1871-72, the coal section of the act of 1870-71, 

and the inoperative regulations of 1846, the term for which mineral 

leases (except gold) have been granted has changed from fourteen 

to ninety-nine years and is now fixed at forty-two years. Gold 

leases were first issued for fourteen, then for twenty-one, and now 

for forty-two years. South Australia, under the act of 1893, which 

is still in force, thus gives a longer tenure than is found elsewhere in 

Australasia, except New Zealand, and the act of 1905, in which the 

term of gold dredging leases is fixed at only ten years may perhaps 

be regarded as a suggestion that even in the opinion of the South 

Australians this term is too long.

Renewal of leases. With mineral leases the basis of renewal has 

been almost entirely the payment of a fine to be fixed according to
60 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the value of the property. In gold leases no provision for renewal was 

made until 1885, when it was provided that leases could be renewed 

on such terms and conditions as might be fixed by the regulations 

in force at the time of such renewal. The acts now in force make no 

provision for the renewal of any mining leases, except those for 

gold dredging, which are renewable on such conditions as the 

minister may think fit.

Leases for minerals other than gold have commonly been renewed 

only on the payment of a fine. Whether this policy of assessing a 

fine as a condition of renewal is to be regarded as a good one or not 

depends upon whether the government policy of nonalienation of 

minerals and their development .by leasehold is based on, either (1) the 

commercial instinct to handle this public estate so as to make it 

yield the greatest general revenue, or (2) the belief that the country's welfare can be promoted more by the encouragement of the 

bona fide development of its mineral wealth and that the mineral 

lands should be handled so as to promote and encourage such bona 

fide development to the greatest possible degree.

If the nation is to treat this matter entirely from the standpoint 

of a commercial company in short, if the nation is to assume the 

r6le of the landed proprietor the assessment of a fine as a condition of renewal affords an excellent means of differentiating in the 

collection of dues between a good mine and a poor one. If no royalty 

is provided for in the lease, it affords a means of collecting a lump-sum 

royalty from successful and important mines, and if a royalty is 

provided, it permits the taking of an extra slice from a company 

holding an unusually good mine.

If, however, the mineral leasehold is considered not as a means of 

securing revenue, but as the most effective method of promoting bona 

fide development, of insuring mining under proper supervision, 

of preventing harmful combinations, and the holding of mineral 

properties unworked to the detriment of the common welfare, this 

fine is undesirable. From the standpoint of the company developing 

a mine the uncertainty of the amount of this fine is an unsatisfactory 

feature. The fine may be so excessive as to be prohibitive. There is 

nothing to prevent its being relatively more severe in one case than 

in another.

A much more satisfactory basis is found in the provision now in 

force in Western Australia that leases shall be indefinitely renewable subject to the provisions of the laws and regulations in force 

at the time of renewal. This prevents the individual discrimination 

possible under the fine method and more satisfactorily insures the 

remedying of any errors, for, if the existing laws and regulations 

are unsatisfactory at any time, it will be to the interest of all mining 

men to have them changed. In the one case one man clamors for a 

change which will benefit him alone; in the other many men demand 

a change that benefits them all. In the act of 1893, the practice of 

assessing a fine as a condition of renewal is abandoned, but no other 

provision is made for renewal.

Area. The maximum area of a mineral lease, originally 80 acres, 

was soon raised to 320 acres and then to 640. In 1886 the area for 

minerals other than gold or coal was reduced to 80 acres and in 

1893 to 40 acres. The coal area still remains 640 acres, but there
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 61

are no important coal properties in the State. As it was until 1893 

possible to take out a lease of 10,000 acres with a preemptory right 

of purchase if coal was discovered, this provision is not of much 

practical significance. The area allowed for gold leases, originally 

20 acres, was increased in 1871 to 40 acres, but was reduced in 1885 

to 20 acres. The present area of 20 acres is very nearly that commonly allowed throughout Australasia. In 1870-71 a special act 

permitted the taking out of gold leases for 10,000 acres on the Murray flats with the right of purchase at £ 1 per acre after the discovery 

of gold and the expenditure of a sum not less than £10,000. Only 

one lease was taken out under the provisions of this special act, and 

it was abandoned in a few years.

Under the mineral-leases act of 1867 adjoining leases could be 

surrendered and a new lease obtained therefor, provided the new lease 

did not exceed the usual maximum, and this principle is still in force. 

The regulations of 1893 provide that the minister may permit the 

concentration of labor on one or more of a group of not exceeding four 

adjoining gold leases. This makes the maximum area which can 

be worked under lease as one property 640 acres of coal, 40 acres for 

minerals other than coal or gold, and 80 acres for gold.

Number of leases which may be held ly one person ^RigJit of transfer. 

No provisions regarding the number of leases which one person can 

hold appear to have been made prior to 1888, and judging from the 

large holding at the Moonta and Wallaroo mines no limitation of 

this character was imposed.

The crown-land act of 1888 provided (113) that "it shall be 

lawful for any company * * * to hold any number not being 

more than 12 gold-mining leases or mineral leases." The regulations 

under this act provided further that no person shall hold at one 

time in one locality more than 640 acres of leases for coal, guano, 

petroleum, mineral oil, or other valuable substance not being a metal 

or metalliferous ore. As at this time the act of 1870-71, which provided for the leasing of 10,000 acres of land for the development 

of coal or oil at a peppercorn rent, was unrepealed, these regulations 

were of no practical importance. The mining act of 1893, however, 

provides that any person can hold any number of mining leases, and 

this provision is still in force.

Rental. The rent has shown the same progressive reduction that 

has taken place in the adjoining States of Victoria and New South 

Wales. In gold leases the rent has been progressively reduced from 

£5 per acre per year to Is. and in mineral leases from 10s. to Is. 

During the early gold excitements in the neighboring colony of Victoria large fees and rentals were charged, evidently on the theory 

that the mineral wealth should be made to yield a considerable direct 

revenue to the State, but this policy has undergone a gradual change 

and the rents have been reduced from time to time. South Australia 

first attempted to encourage development without a general reduction of charges by remitting the rents in certain leases when the lessees 

had spent money without returns. Thus in 1866 a bill was introduced and passed (30 Vie., 16) remitting the rents on 46 specified 

leases for two years, on 43 for three years, and on 62 for four years. 

In 1867 the desirability of reducing rentals became so evident that 

a new mineral-leases act was passed providing that the rent should
62 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

be 2s. 6d. instead of 10s. per acre per year, and the rents on 260 

leases issued under the old law were remitted for two years. In 1870 

rents on 101 leases were remitted for the years 1870-71. The still 

further reduction which has since taken place is to some degree due 

to the introduction of a system of royalty on net profits.

Royalty. In 1846 the royalty was fixed at 6§ per cent, and although 

leases were issued at this rate in New Zealand and New South Wales, 

no record could be found of any having been taken out in South 

Australia, where this provision was abandoned within three years. 

Twenty years later a royalty of 2£ per cent on the net profits was 

introduced in leases for minerals other than gold, and in 1893 this 

royalty was made operative with respect to gold. This provision of 

the mining law is not regarded as satisfactory by the officers of the 

mines department, who are now advocating the entire abandonment 

of the royalty system. They regard the practical difficulty of actually ascertaining the net profits as insurmountable, and state that 

this portion of the law has for several years been almost a dead letter. 

They have recently prepared, with the approval of the minister of 

mines, a new mining bill in which the royalty is absolutely abandoned.

This matter of royalty affects only the revenue. It does not involve any of the far-reaching advantages of government leasehold, 

and so far as the broader underlying considerations of public welfare 

are concerned, need be considered only as a possible means, where 

rental merges into royalty, of promoting development or as a method 

more or less objectionable, of more equitably distributing the cost of 

the administration of such a system. In any case a very low rate of 

royalty on the gross output is much more easily administered, though 

not as equitable as a royalty based on the net profits. In coal mining 

the gross output in many cases could be very definitely checked by 

measurement of the workings.

Labor conditions. While the mineral leases regulations of 1851 

contain the provision that a lease might be forfeited if the land was 

not "bonafide applied to mining," no development covenant appears 

to have been actually formulated until the mineral leases regulations 

of 1868. These provided only that the lessee should expend not less 

than £3 per acre per annum in mining operations. The next regulations provided that the lessee might, if he desired, in lieu of the 

stated expenditure, employ not less than 3 men for every 80 acres for 

not less than nine months in the year. With regard to mineral leases, 

this option continued in force until 1893, since which time the development covenant has been expressed in men only. This gradual 

change from an expression of the development covenant in money to its 

expression in men only, the money expenditure other than as wages 

being now entirely disregarded, is criticised as undesirable by all 

the larger mining interests. In Western Australia there is a very 

strong demand for the expression of the development conditions in 

money instead of men, but with the safeguard that for the first six 

months of a lease a stated number of men must be actually employed. 

With this provision the expression of the labor conditions hi money 

offers certain decided advantages, provided that care be taken that the 

money expenditure is for bona fide development. We have had in 

the United States, in connection with the development requirements 

on claims, numerous instances where the sum required by law to be 

spent yearly on development work has been spent in "improvements"
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 63

of a portable character which were made to do duty on many claims; 

in many other cases the expenditure has not tended in any way toward 

the bona fide development of the claim.

The contention that the labor conditions should be expressed in 

men rather than money has, however, points in its favor. The value 

of a mine to a community, its importance in the development of the 

country, lies largely in the number of men to whom it gives employment. The importation of machinery and the purchase of supplies, 

while under certain conditions valuable as an evidence of a bona fide 

intention to develop, does not directly benefit the region involved 

unless men are employed.

In connection with mineral leases the table shows a progressive 

increase in the number of men required for every 80 acres of lease; 

beginning at none in 1851 it rose to 3 in 1860, 4 in 1888, and 8 in 

1893, and as mineral leases are the only ones of importance in South 

Australia this but evidences anew the growth of the principle in this 

State which demands the utilization of the mineral resources as a 

means of developing the country and affording employment.

The growth or-the same idea is shown also in the gradual decrease 

of the number of men considered equivalent to 1 horsepower, and the 

final abandonment of this method of discharging the labor conditions. 

In 1867, 1 horsepower was considered equivalent to 5 men; in 1885 

this was reduced to 2 men, and in the present legislation no provision 

is made for the counting of power as in any way satisfying the labor 

conditions of a lease, although in mineral claims horsepower can be 

still computed on the labor conditions at the rate of 2 men. This 

last is a concession to the prospector.

Waiver of labor conditions. Although provisions were made in 

the early regulations dealing with gold claims for exemption from 

labor conditions for stated periods, no specific provision was made 

for such exemptions in connection with leases prior to 1888. Labor 

was required for only nine months out of the year; in mineral leases 

money expenditure could be made to satisfy the development conditions; the procedure required to effect forfeiture was very cumbersome; the mining developments were comparatively not great, and 

this matter therefore never assumed the importance it did in the 

neighboring States. The gold-mining regulations of 1888 extended 

to the lessee the privilege which had theretofore been enjoyed by 

claim holders of applying to the warden for exemption from work for 

a period of one month, and through the warden to the minister for 

exemption for three months. The latter application was heard in 

open court.

The act of 1893 gives the minister power to 

suspend or wholly or partially suspend all or any of the covenants and conditions contained in any lease for milling purposes in any case where he is satisfied that by reason 

of special circumstances it would be impossible to comply with or would inflict great 

hardship upon a lessee to enforce such covenants or conditions.

This provision is regarded as less satisfactory by the mining 

interests than the more specific provisions of the West Australian 

mining law; and while there are no complaints of the abuse of this 

power it is suggested that if requests of this sort could be heard in 

open court it would to a greater degree safeguard the interests 

involved.
64 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Forfeiture. While violation of any of the covenants rendered a 

lease liable to forfeiture, it was not until 1862 that the machinery for 

such forfeiture was made evident. The regulations then provided 

that a lease might be declared forfeited by order of the Supreme 

Court. This method proving rather cumbersome, the acts of Parliament from time to time contained lists of leases which were thereby 

declared forfeited and canceled.

In 1893 this difficulty was removed by the provision that in cases 

of noncompliance with labor conditions or nonpayment of rent, and 

in cases of noncompliance with any other covenants after due notice, 

the publication of a notice in the Government Gazette would conclusively cancel and forfeit any lease. This has immensely simplified 

the procedure in this respect, but the details have not been perfected 

to the degree found in the more important mining community of 

Western Australia.

CLAIMS AND PROSPECTING AREAS.

While the claim in Western Australia is a form of tenure in no way 

intimately related to a lease, in South Australia it is merely the 

first step toward a lease. In Western Australia the holder of a 

claim may retain his right thereto so long as he has a miner's right 

and complies with the regulations. There is no way by which he 

may be forced to take out a lease. In South Australia, however, in 

all cases except an alluvial claim the minister may, on the discovery 

of minerals, require the owner of the claim to take out a lease. The 

opportunity of obtaining relief from labor conditions is rather 

better in a leasehold than a claim hold and the claim holder therefore 

naturally desires to take out a lease when he has made a find. The 

present law holds, in fact, that a miner's right is necessary to initiate 

any mining holding; without a miner's right the individual has no 

right to go on the public lands and peg out the area which he desires 

for a claim or lease. Therefore no lease can be issued to anyone who 

is not a holder of a miner's right. No person can at the same time 

hold more than one claim by virtue of the same miner's right. The 

South Australian law has reached this point by a very gradual 

evolution from the original status in which the mineral lease was the 

first and only thing. As regards minerals other than gold, the first 

regulations in 1851 provided that any person could acquire a lease 

for 80 acres at 10s. per acre per year. On payment of the first 

year's rent a person could search for one year on the property and 

could then determine whether the lease should actually be issued.

In connection with gold, particularly alluvial gold mining, leases 

did not seem at first to be feasible, and aosystem of licensed claim was 

introduced. The fee first charged for such licensed claims was 30s. 

per month per man. This was reduced in 1866 to a quarterly fee of 

2s. 6d. In the same year a concession was granted to the prospector 

for minerals other than gold, which allowed the holding of a definite 

prospecting area of 80 acres with preference right to lease for three 

months on payment of £2, which term could be extended for three 

months three separate times on payment of £1 for each such extension. In 1868 provisions were made for the issuing of mineral 

licenses for one year for specified areas not exceeding 640 acres at Is. 

per acre, and in the same year the cost of gold licenses was reduced
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 65

to Is. per quarter. In 1869 the gold digger's license was renamed 

a "miner's right" and issued at 10s. per year. This miner's right 

was effective only on a proclaimed gold field, and gave the holder the 

right of searching for gold on lands held under mineral license or 

lease. Only one claim appears to have been allowed for one miner's 

right. Annual prospecting licenses were issued conferring the right 

of searching for gold over all waste lands not within a gold field on 

payment of 5s. In 1877 the cost of a prospecting license for minerals 

other than gold, still restricted to a specified area, not exceeding 640 

acres, was reduced to £1 per year. In the lands act of 1886 provisions were made for the first time for the issuing of general mineral 

licenses on the payment of 20s. per year. These gave the holders the 

right to prospect anywhere on the public lands and the preemptive 

right to a lease of any lands on which he found minerals, but not 

exceeding the maximum area allowed for one lease.

In 1893 it was appreciated that there was no essential difference 

between prospecting for gold and other minerals, that forcing a prospector to take out two or three licenses was an unnecessary burden, 

and that the prospector should be encouraged, not taxed, except so 

far as it was necessary to protect him and the general mining interests, and a miner's right was provided for at the rate of 5s. per annum 

covering all minerals. It was further provided that 

No person shall at the same time own more than one claim by virtue of the same 

miner's right; but any person may hold any number of miner's rights, and for each 

miner's right so held by him he may own one claim; provided that no person shall 

hold more than one alluvial gold claim.

The desirability of issuing a miner's right for each claim lies in the 

fact that it affords an efficient method of automatically cleaning the 

records each year of all abandoned claims. If only one claim can be 

held at one time by virtue of the same miner's right, the prospector 

must declare one claim abandoned before he takes out another with 

the same right. It further means that if at the end of the year a 

miner does not think a claim worth the cost of a new miner's right, 

the claim will lapse, and the records will automatically show that 

it has lapsed. The present cost of a miner's right is not to be considered as a general revenue tax such as the original rate of 30s. per 

month undoubtedly was, but as a reasonable assessment toward the 

cost of keeping the records, from which none will benefit more than 

the bona fide prospector. Whether a miner's right is clearly a necessary prerequisite in taking out a lease, as is asserted in South Australia, may be regarded as somewhat open to doubt. In most cases 

some prospecting work would be undertaken before a man took out 

a lease, and in such a case he must of necessity have a miner's right, 

but if a man without prospecting knows that he wants a lease to a 

certain piece of ground, there would certainly be no good reason for 

recmiring him first to take out a miner's right.

Size of claims and ordinary prospecting areas. The holder of a 

miner's right is authorized by law to peg out a claim on any land 

whereon any metal, mineral, coal, or oil "may be or be supposed to 

be." The ordinary areas are for alluvial gold, 30 by 30 feet; for reef 

gold, 100 feet along the reef by a width of 600 feet; for minerals 

other than gold or coal, 40 acres; for coal and oil, 640 acres. In wet 

alluvial ground, twice the usual area is allowed.

16014° Bull. 505 11 5
66 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

The miners seeking for alluvial gold may peg out protection areas 

of the following size:

Yards. 

If between £ and 1 mile from nearest gold workings...................... 100 x 100

If between 1 and 2 miles from nearest gold workings....................... 150 x 150

If between 2 and 3 miles from nearest gold workings....................... 250 x 250

If over 3 miles from nearest gold workings............................... 500 x 500

On the discovery of payable gold the holder of an alluvial prospecting area is entitled to the following multiple of ordinary claims:

Multiple of one man's

ground allowed. 

If between £ and 1 mile from nearest gold workings............................ 3

If between 1 and 2 miles from nearest gold workings........................... 4

If between 2 and 3 miles from nearest gold workings........................... 6

If over 3 miles from nearest gold workings..................................... 10

The miner seeking for reef gold may peg out a reef protection area 

of the same width but of twice the length of a reef prospecting claim. 

On discovery of payable gold, the holder of a reef protection area is 

entitled to a reef prospecting area of the following size:

Feet. 

If between 1 and 5 miles from nearest occupied claim..................... 200 x 600

If between 5 and 10 miles from nearest occupied claim.................... 300 x 600

If over 10 miles from nearest occupied claim.............................. 400 x 600

Labor conditions on claims. The essential condition connected 

with the tenure of all claims has always been the one of continuous 

development. A claim rests on a possessory right tenure. Under 

the last regulations one man must be kept constantly employed for 

each one man's ground held as a gold claim; two men are required on 

each mineral claim of 40 acres, and 8 men on each coal or oil claim 

of 640 acres. Provision is now made for the amalgamation of any 

number of gold claims, of not exceeding four mineral claims and of 

not exceeding two coal or oil claims. The labor requirements on 

such amalgamated claims are reduced one-half until the claims 

become payable, when they must be manned in full. Power is given 

to the warden to grant suspension of labor for not exceeding three 

months after three months' work has been performed. After such a 

suspension no further suspension can be granted until six months' 

work with the full complement of men. There is no provision for 

the expression of development conditions in money; men must be 

employed, except that in a mineral claim each horsepower shall be 

counted as two men.

Special prospecting areas. In order to encourage prospecting for 

"precious stones, mineral phosphates, oil, rare metals, minerals, and 

earths, the mining for which, in the opinion of the minister, has not 

proved payable in any instance in any portion of the colony," the 

mining act amendment act, 1900, provided for special licenses for 

one year, giving the right to search for any of the above minerals 

over any specified area not exceeding 5 square miles at a rental of £ 1 

per square mile. The licensee must keep at least one man constantly 

employed on the land for each 640 acres thereof. On discovery, the 

holder of the license has a preferential right to lease not exceeding 40 

acres for minerals other than phosphate and oil, 100 acres for mineral 

phosphates, and 640 acres for oil?
MINING LAWS OF AUSTBALIA AND NEW ZEALAND. 67 

MINING ON PRIVATE PROPERTY.

In Western Australia and Victoria the first mining on private property acts had for their object only the providing of a legal method 

of mining on freehold lands for the minerals which belonged to the 

government. Before the passage of these laws the government made 

no protest when the freeholder undertook to mine for the precious 

metals and protected agreements made between the freeholder and 

any miner, but there was no provision whereby the government could 

authorize any person to mine for the reserved minerals without the 

consent of the freeholder. In both these colonies the precious metals 

belong to the government; in Western Australia by specific reservation, and in Victoria in the absence of such reservation, by the common 

law; but in South Australia all minerals, including the precious metals, 

had by special enactment been conveyed to the freeholder in all lands 

alienated prior to 1886. The South Australian mining on private 

property act of 1888 therefore deals primarily with mining on private 

property for the minerals which belong to the surface owner, thus 

asserting in principle, as was finally and more effectually done in 

Western Australia, that the development of minerals is a public use. 

While this suggests that South Australia had at one step gone from 

the extreme of giving to the freeholder all minerals, to the other 

extreme of declaring the mining for minerals a public utility, and providing that the minerals on any property whensoever alienated, 

should be developed, the law is far from having this practical effect. 

While appearing to affirm a principle the provisions of the law are 

such as to make the attainment of the end sought almost as distant 

as if the law has not been passed. The "vested interests" opposed 

to the general principle of mining on private property could well congratulate themselves on the passage of this law, for, while appeasing 

the popular demand by passing a mining on private property act, 

they in fact yielded practically nothing. The provisions of the law 

which defeat the end sought are:

(1) The requirement that before any land either could be resumed or a compulsory 

lease issued, an official must certify that "payable" mineral exists thereon.

(2) The provision that if the freeholder within from two to six months after the date 

on which any other person applies for mining rights with respect to the property 

involved works the land himself with the same number of men as required by the 

regulations for mining leases of that area, he shall have exclusive right to the minerals.

(3) The fact that a compulsory lease can be issued only by the master of the supreme 

court; in which connection it is stated that the procedure required is almost prohibitive.

The requirement that a government official must certify that the 

land contains payable minerals is perhaps the most serious of these 

obstacles. If development is to be promoted the point involved is 

not, as this law asserts, "Does this land contain payable mineral as a 

positive fact ?" (such an assertion prior to the development work could 

seldom if ever be made), but " Is it possible or probable that such a 

deposit will be found is there any evident justification for the desire 

to develop indicated by the application for a permit to mine." The 

mere application is, in the absence of malice, proof that the applicant 

is ready to invest his money, being convinced that there is a reasonable possibility of developing a payable mine. If the land is so very 

rich that the government official c$n certify from common knowledge
68 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

that it contains payable mineral the land will have been developed, 

and there is no need of such a law to promote and permit development. If, on the other hand, an examination is necessary, as it 

would be in practically all cases, the government official has under the 

law no right to enter the property to make such an examination; he 

would be liable to prosecution as a trespasser. In the first place the 

government official is required to make a positive statement as to the 

payable character of the deposit which few capable and conscientious 

men would care to make previous to some development, and in the 

second place the official has no right to make an examination. The 

net result is that the law has been practically inoperative, and the 

officers of the mines department have repeatedly recommended that 

a new law, based on the principles of the Victorian law, be adopted. 

Such a law was, in fact, prepared this year, but the pressure of other 

business did not permit its being introduced into Parliament.

As originally passed in 1888 this law was restricted to mining for 

gold, but its operations were by the amendment of 1895 extended to 

all minerals if under the resumption clause, and by the amendment 

of 1899 to all metals if under the compulsory lease clause. The 1888 

act provided that in case the freeholder disagreed with the report of 

the government officer as to the mineral value, he could require the 

appointment of a mining expert. This provision was repealed in 

1895, but its repeal, though a concession, did not materially affect 

the situation. The freeholder receives under this law compensation 

for all damages and all the royalties received by the government less 

2£ per cent for administrative expenses.

Mining for the reserved minerals on private property, which is the 

principal point involved in the mining on private property acts in 

the other Australian States, is of very little importance in South 

Australia to-day, and it is considered by the mines department officials to be covered by the crown lands acts and the general mines 

acts rather than by the mining on private property acts. These 

provide on the one hand for the reservation of all minerals and for 

the working of the same by persons authorized by the government 

on payment of damages, and on the other hand by the proclamation 

that freehold land out of which minerals have been reserved are 

"mineral lands" within the meaning of the mines act of 1893.

Western Australia adopted this law bodily in 1897, apparently 

without very mature consideration, since ownership of the precious 

metals in the majority of the freeholds is, as has been pointed out, 

entirely different in the two States. After a trial of one year this 

law was repealed by Western Australia and the Victorian law adopted, 

which, with certain amendments, is still in force and is working 

satisfactorily.

ENCOURAGEMENT OF MINING.

South Australia, like the other Australian States, has, throughout 

its history, endeavored to promote mining development by means of 

rewards, subsidies, and assistance in many ways. It is a matter of 

no little significance that these States which have shown the greatest 

desire to assist mining should have abandoned freehold and taken 

up leasehold as a better method of dealing with minerals. This 

change was not based on a demand for the "nationalization of the 

land" (the demand for perpetual leases as a form of land disposal
MINING LAWS OF AUSTEALIA AND NEW ZEALAND. 69

did not come until many years after the adoption of this policy in 

regard to minerals and was practically repudiated in a few years), 

but on the belief that the end sought, the proper development of the 

mineral wealth of the country, could be attained more by a leasehold 

than a freehold tenure.

A reward of £1,000 was offered for the discovery of a payable gold 

field on January 1, 1851, and a reward of £10,000 was offered some 

years later for the discovery of a payable coal field. The gold mining act of 1885 authorized the governor to pay a sum not exceeding 

£ 1,000 to the discoverer of a payable gold field and provided for the 

subsidizing of gold mining companies to an amount not exceeding 

£500 in any one case either by the loan of money or by the loan of 

diamond drills, the subsidy to be repaid out of the profits at the 

rate of 50 per cent on any dividends paid to the stockholders. The 

acts now in force provide for rewards of not exceeding £1,000 for 

the discovery of new mineral districts or deposits, for the subsidizing 

of companies to amounts not exceeding £1,000 per company, and 

for the loan of diamond drills. The government has also voted 

appropriations for the payment of one-third of the freight on the 

first 50 tons of ore produced from any mine, for the purchase of diamond drills, and the conduct of very extensive drilling operations, 

and for the erection of government batteries and cyaniding works.

EXTENT OF OPERATIONS.

The extent of the operations under the South Australian mining 

law for the past few years, so far as they relate to purely mining 

holdings, are summarized in the following table:

Table giving mineral holdings under the provisions of the South Australian mining law 

from 1908 to 1907, inclusive.

[Compiled from reports of mines department.]

Total area of claims (acres) ..........................

Number of special prospecting areas (not exceeding

Number of mineral leases (other than gold and salt) . . 

Total area of mineral leases (other than gold ana salt). 

Number of miscellaneous leases (for salt, gypsum,

Year ending 

Dec.31, 

1903.

1,740 

538 

18,830

466 

(?) 

237 

4,320

538 

18,830

29 

6,436

June 30, 

1904.

'(?) 

571 

19,985

220 

279,040 

216 

3,900

404 

8,210

31 

7,212

June 30, 

1905.

1,336 

493 

17,255

90 

106,240 

118 

2,006

293 

10,255

30 

6,813

June 30, 

1906.

1,642 

848 

33,920

77 

142,720 

127 

2,338 

41 

6,934 

286 

15,629

32 

7,168

June 30, 

1907.

2,350 

908 

29,600

107 

134,400 

120 

2,040 

40 

5,944 

362 

11,946

35 

7,227

PRACTICAL RESULT OF TEST OF GOVERNMENT LEASEHOLD.

Government leasehold as applied to mineral development has 

thus been under trial in South Australia for over fifty years. It was 

first introduced before the government had any power to refuse to 

sell lands known to be mineral provided they had been surveyed,
70 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

0

and after important mineral properties had been alienated. It continued in operation while laws were passed giving to the freeholder 

the ownership of all minerals, and it was not until 1888 that the 

government decided to reserve all minerals in future grants and thus 

effectually prevented their further alienation. The fact that after 

this long trial leasehold is the accepted government method of 

dealing with minerals in itself indicates that the system has been 

found satisfactory, and were any corroboration necessary it is found 

in the fact that the officers of the mines department assert that there 

is no demand for a freehold tenure in connection with mining. Had 

there been any demand for freehold it undoubtedly would have been 

granted by the legislature, which has in connection with the land 

laws repeatedly shown that it is merely the servant of the people. 

The secretary for lands and mines states that some years ago there 

was a demand for perpetual leases in the alienation of land. Legislation was passed authorizing such leases, but after a time there was 

a demand that the holders of such perpetual leases should be permitted to convert to freehold. Acts were therefore passed allowing perpetual leaseholders to convert to freehold. Provisions were 

made for the repurchase of large estates and their subdivision by 

the government for closer settlement.

In this connection it was held that if the government did not 

retain some control over the land these small holdings would 

be amalgamated and the government would have it all to do over 

again. It was therefore decided that blocks in repurchased estates 

could be acquired only on perpetual lease, which, while giving the 

holder nearly all the advantages of the freehold and some in addition, gave the government power to prevent transfer and consequent 

amalgamation. After a few years there was a demand for freehold 

in connection with these repurchased estate lands, and the legislature 

again permitted the holders of perpetual leases to convert to freehold. 

Land was formerly sold with conditions of improvement and development, but the government has now gone to the other extreme of 

selling without such conditions. The secretary cited this as evidence 

that had there been any demand for freehold in connection with 

mining, freehold would undoubtedly have been granted. This is 

clearly a most emphatic indorsement of the success of leasehold, 

indicating, as it does, the approval of the whole of the people of 

South Australia.

Capt. Bodham Whitham, aid-de-camp to the governor of South 

Australia, a gentleman who has been interested in mining operations 

in several of the States, says that all the mining men in Australia 

indorse leasehold as the proper form of tenure for mining purposes; 

that the only people who at times suggest that freehold is better are 

a few of the prospectors, who, when they have worked two or three 

months, go to town and spend their earnings in drink and think it 

"jolly hard" that another man should be permitted to take up the 

claim or lease that they have abandoned for the purpose of this 

spree. Captain Whitham adds that the majority of these men, 

when pinned down to it, agree that it is quite right that they should 

lose their claim or lease under these circumstances.
CHAPTER IV.

THE DEVELOPMENT AND PRACTICAL WORKINGS OF THE MINING

LAW OF TASMANIA.0

INTRODUCTION.

 The mining law of Tasmania has several claims to special consideration. It has been repeatedly commended by the Australian Mining Standard and Financial Review, the most important mining 

publication in Australasia, as the model among the Australian laws 

from the standpoint of the capitalist. Tasmania was the first among 

the Australian States to insert in all mining leases a provision that 

no lease should be forfeited for noncompliance with the development 

conditions during strikes. The development requirements in this 

State have generally been more in accord with the demands of capitalists than in the other States. In the last mining acts these features 

have been incorporated with other provisions, and as a result the 

laws grant the principal points which are demanded by the larger 

mining interests: (1) Expression of the development covenant hi 

money instead of men; (2) exemption from development conditions 

as a 'right" during strikes; (3) exemption from development conditions as a "right" on account of previous expenditure in excess of 

that required, provided the aggregate exemption does not exceed 

three years; (4) the assessment of a fine, in certain cases, in lieu of 

forfeiture for a breach of labor conditions.

The Tasmanians pride themselves on their conservatism. They 

consider it a point for extreme congratulation that the labor party 

has never been of any importance in their community. One prominent official, expressing the general sentiment, said that Tasmania 

had not embraced any of the socialistic or "laboristic" doctrines 

which had found expression in continental Australia. In the face of 

this assertion, it is a bit astonishing to find in the last lands act a 

provision which is in effect far more extreme than is found in the 

legislation of any of the adjoining States. Until 1903 there was no 

special provision in Tasmania for reserving any minerals; some grants 

contained a reservation of the precious metals and others did not, but 

the lands act of 1903 provides that any land can be " resumed" by the 

Government for mining purposes on payment of its value exclusive 

of all minerals. This is a piece of retroactive legislation without any 

very evident justification other than the claim that all minerals are 

"treasure trove," and as such are the property of the government. 

The Tasmanians have objected strenuously to any mining on 

private property act, but the claim asserted in this legislation that 

as between the government and the freeholder, the freeholder has no 

right to claim compensation for any minerals is certainly much more

0 Australian Mining Law Report No. 3, forwarded to President December 31, 1907.

71
72 MINING LAWS OP AUSTRALIA AND NEW ZEALAND.

extreme than the provision of the South Australia and Western Australia mining on private property acts, which, while providing for 

mining for minerals on private property which does not belong to the 

government, pays to the owner not only compensation for damages 

and, if the land is resumed, the agricultural value of the land, but also 

all the rental and royalty received by the government from mining 

leases on the property after deducting a percentage for administrative 

expenses.

The fact that conservative Tasmania, where there are but 5 labor 

members out of a total of 35 in the house of assembly and where the 

upper house is wholly a "house of (land) lords" has in this particular 

adopted a more radical policy than any of the other Australian States, 

and the fact that it, like the other States, early adopted the system 

of government leasehold clearly demonstrates that there is no basis 

for the cry that there is any political aspect in the adoption of the 

companion policies of nonalienation of minerals and government 

leasehold. The Australian States differ widely in political complexion, ranging from South Australia, where the labor party is overwhelmingly in power, and New Zealand, where the Progressive party 

is fairly in control, to Tasmania, which considers itself the stronghold 

of conservatism and where the labor party is of practically no importance. Yet all of these States have, after experiment, adopted the 

same policy. Whether government leasehold or freehold is the better 

method of dealing with mineral lands never was a political question, 

and is now, so far as Australia is concerned, not a question" at all.

Although in Tasmania mining does not have the preeminent and 

overshadowing importance that it does in Westem Australia, yet 

Tasmania is essentially a mining State. During the past six years 

the total mineral exports have amounted to from 41 to 58 per cent 

of the total exports of the country that is to say, the mineral exports 

were equal to all other exports. Tasmania, while the smallest of the 

Australian States, having an area only one-fourteenth of South Australia, exclusive of the northern territory, has a mineral production 

of from three to four times that of the latter State. Its mineral production in 1905 was approximately that of the State of Nevada, and 

though its area is but one-fourth, its population is four times as great. 

The total mineral production in 1906 was £2,257,147. This was 

composed almost wholly of copper, tin, silver-lead, and gold copper, 

£934,924; tin, £557,266; silver-lead, £462,443; gold, £254,963.

GROWTH OF THE GOVERNMENT POLICY IN REGARD TO THE NONALIENATION OF MINERALS.

The first mineral to be worked commercially in Tasmania was coal, 

which was discovered in the forties in several parts of the colony. 

No other minerals were found until 1852, when gold was discovered 

in north Tasmania. Prior to 1837 no reservation of any mineral was 

contained in any grant. In that year the reservation of gold and 

silver was inserted in all grants of country lands, but omitted in 

all town grants, and this appears to have continued until the lands 

act of 1903. Land was alienated under the lands regulations then in 

force without any thought of mineral value, and thus some of the 

first discovered coal-bearing land passed into private hands. On 

the discovery of gold in 1852 the governor at once issued a proclama-
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 73

tion in practically the same words as that issued by the governor of 

Victoria in the preceding year, in which he declared that all mines 

of gold and all gold in its natural place of deposit, whether on alienated or unalienated lands, belonged to the government, and warned 

all persons that any attempt to mine such gold without license would 

result in both civil and criminal prosecution. In 1858 an attempt 

was made to purchase gold-bearing land under the provisions of section 19 of the waste-lands act of 1858, which permitted the purchase 

of lands at private contract at £1 per acre. This resulted in a petition to the nouse of assembly against the sale of the land, in which 

the 

petitioners beg to represent the great injustice which would be inflicted on the people 

at large by permitting private parties to select land where gold was known to exist. 

Your petitioners pray that your honorable house will take such steps as will except 

lands where gold is known to exist from the operations of the waste-land act.

This petition resulted in the executive withdrawal of the land and 

its "reservation for mining purposes," and culminated in the passage 

of the first gold-fields act in 1859. This empowered the governor to 

"except denned areas of the crown lands from the operation of section 19 of the waste-lands act" and also to decline to accede to any 

applications for the purchase of lands if same were known or supposed 

to oe auriferous. In 1862 this provision was extended to include all 

minerals, and such a provision has been included in all lands acts 

since that time. Provision was, however, made in the regulations of 

1863 for the purchase of mineral land outright by a mineral lessee 

after his lease had been in operation for a period of three years at a 

valuation to be fixed by arbitration. This plan was abandoned in 

1870, and as no important mineral discoveries were made in the 

interim, no leases were taken out, and thus no mineral lands were 

alienated in this manner.

Although no act providing for the reservation of minerals in grants 

was passed until 1903, and the question whether any mineral land 

should be sold or not was entirely one of executive discretion (and, 

it should be added, of the correctness and completeness of the knowledge of the lands department officials), yet so faithfully have these 

officers discharged the trust thus imposed on them regarding the 

nonalienation of minerals that not only are all the important mineral properties in the State still owned by the government, but, 

except for the small areas of coal lands alienated in the early history 

of the colony, no mineral deposits of importance have passed into 

the hands of private owners. So insignificant are the coal areas 

that the only coal mines in this country which are now being worked 

are operated on government lease. Indeed, the total mineral production of Tasmania to-day, and in 1905 it equaled that of Nevada, 

comes from government leasehold.

These results contrast very markedly with those obtained in the 

United States. Here, while the law of July 4, 1866, expressly forbids the alienation of mineral lands under the agricultural-land laws, 

enormous areas of such lands have been acquired in this way.

So far did the Tasmanian officials deem it advisable to carry this 

policy of reservation from sale of lands known or supposed to contain minerals that it became necessary to provide some form of 

surface holding within the mining areas. The waste-lands amendment act of 1881, therefore, provided for the sale of lands in mining
74 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

settlements subject to the right to mine on payment of damages. 

The act of 1885 gives to the holders of business and residence areas 

the right to purchase the same after an expenditure of a certain 

sum on improvements, but in all cases with the reservation of the 

right to mine at depths of not less than 50 feet. The act of 1889 

went a step further and declared all lands in mining areas open to 

selection, but with the reservation of the right to search for gold 

and the right to mine at depths of not less than 50 feet. In 1891 

the depth was reduced to 20 feet, and in 1900 the reservation included the right to search and mine for gold and other minerals. 

The crown-lands act of 1903 marks the natural conclusion of these 

several steps by providing that thereafter all grants should contain 

a reservation of the right to mine for all minerals at a depth of not 

less than 50 feet, on payment of damages. The lands-act amendment of 1905 waived all question of depth and provided for the 

reservation of all minerals in all grants.

To guard against the possible harmful result of some pieces of 

valuable mineral land escaping the vigilance of the officials, a clause 

was introduced in the lands act of 1870 providing that lands alienated 

under that act should be subject to resumption for mining purposes 

on payment of value other than auriferous, but providing that no 

such land should.be liable to resumption after a period of five years 

from date of alienation. The lands act of 1890 included this section, 

with the same five-year proviso, but with the addition that the compensation should be the value exclusive of gold and other minerals. 

The lands act of 1905 provided that 

All land alienated under the provisions of this act or any former act relating to the 

sale of crown lands may be resumed for mining purposes * * * on paying full 

compensation * * * other than that of gold or other minerals contained in such 

land.

The omission of the restrictive five-year proviso makes this a retroactive clause, which in effect appropriates to the government all 

minerals whensoever alienated. In this respect it is perhaps the 

most radical enactment which has seen light m Australasia, for it in 

effect takes back that which has been given without any very evident 

excuse other than the argument of some English lawyers that all 

minerals are in fact ''treasure trove," and as such are the property of 

the government. It is in this particular to be distinguished from the 

suggestion recently made that the Government of the United States 

might with considerable justice claim all minerals in all lands alienated 

under the agricultural land laws since the development of the government policy in the fifties and sixties, which required the reservation of all mines and mineral 1 ands to the government. Prior to 1866 

the uniform reservation of mineral lands from survey, from sale, from preemption, and 

from all grants, whether for railroads, public buildings, or other purposes, fixed and 

settled the policy of the government in relation to such lands 

and helps to fix and explain the reservation which was inserted in the 

act of July 4, 1866, which remains in force to this day. On account 

of this provision agricultural claimants have been required to make 

affidavits that the land is not valuable for minerals and that they in 

effect want it only for agricultural purposes. A legislative assertion 

on the part of the government of its right to all minerals in agricultural alienations since that time would give to every man exactly
MINING LAWS OF AUSTRALIA AND NEW ZEALAND, 75

what he swore he was getting, but no more. It would further have 

the effect of automatically cleaning the record of all land frauds 

involving mineral values.

Even under the administration of the present Tasmanian law under 

which all minerals are reserved, the policy of not alienating mineral 

lands is continued. All applications for the final patent of lands are 

referred by the lands department to the mines department for an 

indorsement as to whether the land will or will not probably be needed 

for mining. These departments, while they have generally been 

under the same ministerial head in Tasmania, have been entirely 

separate organizations since 1882, or soon after the mineral development of the colony became of importance. Before that time all 

matters relating to mineral lands were administered by the department of lands and surveys.

The development of the government policy in Tasmania in regard 

to the alienation of minerals has thus shown the following progressive 

stages:

From settlement of colony in 1803 to 1859: Lands sold under general land laws 

 \vithout regard to mineral value. Some grants contained reservations of gold and 

silver, others contained no such reservations.

1859 to 1863: Lands sold as before, but governor had power to exempt lands from 

sale and to refuse to sell lands supposed to contain gold.

1863 to 1870: Lands sold as before, but governor had power to exempt from sale and 

to refuse to sell lands supposed to contain any minerals. In case of mineral leases 

the lessee had a right, after three years, to purchase the property on valuation to be 

fixed by arbitration; this provision was not utilized, as no mineral leases were issued 

during these years. < 

1870 to 1890: Lands sold as before, but governor had power not only to exempt 

lands from sale and to refuse to sell land supposed to contain minerals, but to resume 

freehold lands for mining purposes on payment of a value other than auriferous, provided such resumption should take place within five years of the date of alienation.

1890 to 1903: Lands sold as in preceding period, but with the addition that the land 

commissioner might resume on payment or value other than for gold and other minerals, provided such resumption took place within five years of the date of alienation.

1904 to 1905: Lands sold with reservation of right to mine for all minerals below 50 

feet. Government empowered to resume any lands whensoever alienated on payment of value other than mineral; this in effect asserts the right of the government 

to all minerals in all lands whensoever alienated.

1905 to date: Lands sold with reservation of all minerals. Right of resumption as 

in preceding period.

TERMS AND CONDITIONS OF LEASES.

The first government mineral lease in Tasmania was issued in 1849 

for the purpose of mining coal on Shouten Island. The period was 

seven years, and the royalty was fixed at 2d. per ton. At this time 

the operations of the land sales act of 1842 (5-6 Vict., c. 36) were 

suspended in Tasmania and the governor was empowered to frame 

land regulations. Negotiations were conducted with other companies about this time for leases on the same terms, but whether or not leases were issued is not known. In 1852 an application was 

made to mine for coal under the orphan-school estate at Newtown 

by certain persons who had, previous to that time, been mining for 

coal on adjoining freehold land under agreement with the owner. 

A government lease was finally issued on September 1, 1853, for a 

period of seven years at a royalty of 6d. per ton on all slack, and 6d. 

per ton for the first year, 9d. per ton for the second year, and Is. 

per ton thereafter on all other coal. Operations were continued for
76 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the full term of the lease, which was then evidently extended, as coal 

royalty continued to be paid until 1863. These leases are to be regarded as special arrangements rather than as the initiation of any 

general policy. No minerals were known in the colony at that time 

except coal, and lands containing coal were sold under the same conditions as other lands.

The protest of certain citizens in 1859 against the alienation of 

auriferous lands near Fingal, where gold was discovered in 1852, and 

the attempt to work reef deposits in that locality resulted in the 

passage of the first gold fields regulation act in 1859. It provided 

for development by means of leases which were not to exceed a term 

of ten years at such rental and royalty as might be fixed. The act 

was approved on September 23, 1859, and the Government Gazette 

of December 12 contains a notice of the intention of the government 

to issue to the -Fingal Quartz Crushing Company a gold lease of 320 

acres at a rental of £ 1 per acre per year. The reason for the unusually large area of this gold lease does not appear, for in the first 

regulations issued in 1860 the area of leases for alluvial ground was 

fixed at not less than 5 nor more than 50 acres, and for quartz ground 

at not exceeding a length of 900 yards along the reef by a width of 

300 yards (about 56 acres). The rental was fixed at £1 per acre for 

alluvial land and £1 for every 100 yards of reef, or about £1£ per 

acre.

In 1862 a mineral-leases act was passed, which in like manner 

provided for the leasing of minerals other than gold, and in the following year the provisions of this act were incorporated in the wastelands act. Very little development was done under these laws, as 

the early gold finds did not prove important, and the great discoveries in Victoria and New Zealand proved more effective lodestones. 

With the dying down of the Victorian excitement attention was 

again turned to Tasmania, and about 1869 discoveries were made 

which mark the beginning of the present period of mineral development. In this year £2,500 was paid into the treasury under the 

provisions of the mining acts, while in 1868 there had been no payment, and in 1867 the payments had amounted to but £5. In 1871 

the future of Tasmania as a mining country was assured and a great 

vista of promise opened up by the discovery of the now famous 

Mount Bischoff tin mine, which up to the close of 1906 had paid in 

dividends £2,088,000. In 1882 rich silver deposits were found at 

the now important mining center of Zeehan, and in 1886 the Mount 

Lyell mine was discovered. This mine, first worked as a gold mine, 

has proved on development to be one of the most valuable auriferous and argentiferous copper deposits in the world. This mine paid 

for the single year 1904 dividends to the amount of £150,000; for 

the year 1905, £175,000; and for the year 1906, £420,000.

All these properties are held under government lease; Mount Lyell 

under special act of parliament, and all others under the ordinary 

provisions of the mining law. All these important mines were discovered before there was any law forbidding the alienation of mineral 

lands; whether the lands.were sold or leased was under the law 

entirely a matter of administrative discretion. It has already been 

pointed out that, with the exercise of the same sort of executive 

discretion and with a similar interpretation and administration of 

the laws in the way most favorable to the government, much of the
MINING LAWS OP AUSTRALIA AND NEW ZEALAND. 77

regrettable portion of the administration of our own land system 

might have been avoided.

The provisions of the acts and regulations of Tasmania relating to 

mining leasehold are summarized in the following table. In this 

table there are many evidences of the conservatism on which the 

Tasmanians pride themselves. The rental has not changed during 

the productive period of the colony, neither has the maximum area 

allowed for minerals other than gold. The expenditure required has 

varied only between £2 and £4 per acre per year, and the labor on 

mineral leases has changed only from 3 men for 80 acres to 4 men 

for 80 acres.

Terms under which government mining leases have been granted at different times in

Tasmania.

Term of years: 

Gold......................

Minerals other than gold . . 

Number of years for which reMaximum area in acres: 

For goldAlluvial. .............

Reef

For minerals other than

Rent per acre per year:

For minerals other than

Royalty ............ .per ton. . 

Development conditions expressed in men per acre per 

year: 

Gold......................

Minerals other than gold

Development conditions expressed in money expenditure per acre per year: 

Gold......................

Minerals other than gold

Equivalent of 1 horsepower or 

1 horse in men in computing

Special coal 

lease, 1853.

7 

(")

14

10s. 

6d.-12d.

(°)

Gold fields act, 1859.

Regulations, 1860.

10

(*)

50 

/56

gh£l

None. 

(')

(»

Regulations, 1867.

a 15

(*)

40 

25

£1

None. 

*2

None.

Mineral 

leases act, 

1862; waste 

lands act, 

1863 (regulations, 

1863: regulations, 

18G7).

21 

c!4

80 

320

<5s. 

<2s. 6d.

None.

«3/80

«3/320

£2 

£2

Gold fields 

act, 1870 

(regulations, 1878).

10

<*10

5 

10

£1

None. 

11; '»4

None.

1

Mineral 

leases act, 

1870 (regulations, 

1870, 1874, 

1875, 1877).

21

«14

80 

320

<5s. 

<2s. Cd. 

None.

"3/80 

«3/80

£3 

£3

a The act under which these regulations were made provides for a term not exceeding ten years. 

b No provision for renewal.

c On payment of fine. Lessee had right to purchase fee simple after three years, 

d Subject to such rent as may be determined. 

« On payment of fine. 

/ Lease for 320 acres granted under this act before adoption of regulations of 1860. 

g For alluvial gold.

ft £1 for every 100 yards of reef in the case of reef gold. 

 Or such higher rental as may be fixed.

i Regulations required that machinery of the following horsepower must be erected within twelve 

months: Two horsepower for every 5 acres alluvial and 3 horsepower for every 100 yards of reef. 

k For every 100 yards of reef.

' For quartz after six months; first six months, 1 man to every 2 acres. 

m For alluvial after six months; first six months only 1 man per acre, 

n For nine months out of the year, 

o If not worked for one year to be forfeited.
78 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Terms under which government mining leases have been granted at different times in

Tasmania Continued.

Term of years: 

Gold...............

Minerals other than 

gold..............

Number of years for 

which renewable. .... 

Maximum area in acres: 

For goldAlluvial........

Keef.. .........

or minerals other 

than gold andcoal.

Rent per acre per year:

For minerals other 

than gold and coal.

Royalty. ..... .per ton . . 

Development conditions expressed in 

men per acre per year: 

Gold...............

Minerals other than 

gold and coal.....

Development conditions expressed in 

money expenditure 

per acre per year: 

Gold...............

Minerals other than 

gold and coal ..... 

Coal................

Equivalent of 1 horsepower or 1 horse in 

men in computing laMineral 

leases act, 

1877 (regulations, 

1878, 1882).

21

[ 614

80 

320

a 5s. 

a 2s. 6d.

None.

tl/20 

*1/20

£3 

. £3

Gold fields 

act, 1880; amendment, 1881 

(regulations, 1883).

olO

clO

20 

10

£1

None. 

»1

None.

1

Mineral 

leases act, 

1884 (regulations, 

1884).

21 

d21

80 

320

05s. 

g 2s. 6d. 

None.

* 1/20 

* 1/20

£3 

£3

1

Mining act, 

1893 (regulations, 

1894).

10

21 

/ «10 

i 21

> 10

80 

320

g£l

g5s. 

a 2s. 6d. 

None.

(«

ft 1/20 

ft 1/20

None.

£3 

. £3

Mining act, 1900.

General.

} "

I «21

/20

/80 

/320

£1

5s. 

2s. Od. 

None.

*!

ft 1/20 

ft 1/20

£20

£4 

£4

Dredging.

10

20

25

None, 

ft 1/20

£4

Mining 

act, 1905.

21 

«21

40

80 

320

£1

5s. 

2s. Od. 

(*)

£10

£2 

£2

. o The regulation of 1883 provides for twenty-one-year gold leases under certain conditions. 

6 Subject to such rent as may be determined, 

c At such rent, not exceeding 3 times original rent, as may be fixed. 

d At not exceeding 7 times original rent. 

e At not exceeding 5 times original rent. 

/ Except in special cases. 

g Or such higher rental as may be fixed.

ft Such as may be fixed by regulation. No royalty has been charged up to this time and none is likely 

to be.

i Only 1 man for every 2 acres for first six months. 

i Apparently determined in each case, 

ft For nine months out of the year.

Renewal of leases. The first acts made no provision regarding the 

renewal of leases. In 1862 a plan, similar to that which had Ipeen 

initiated in South Australia in 1859, was adopted, which provided 

for renewal, but for a shorter period than the original lease, on payment of such a fine as might be assessed. In 1870 as to gold, and 

1877 as to other minerals, the plan was adopted, and has since been 

continued, of allowing renewal on payment of such additional rent 

as might be determined, thus in effect spreading the payment of the 

fine over the full term of the renewal and providing for its payment 

only so long as the mine proved payable. In 1880 as to gold, and in 

1884 as to other minerals, it was provided that the rent on renewal 

should not exceed seven times the original rent and that the term of 

the renewed lease should be equal to that of the original lease. In
MINING LAWS OP AUSTRALIA AND NEW ZEALAND. 79

1893 the maximum rent chargeable on renewal was reduced to five 

times the original rent.

If the original lessee failed to renew, it was first provided that the 

right to the lease must be sold at public auction. Now auction is 

resorted to only as a means of deciding between several applicants; 

if there is but one applicant for an expired lease, or if one applicant 

has a preference right, the lease is awarded to him.

Consolidation of Leases. No restrictions seem ever to have been 

imposed on the number of leases of the regulation size which any 

person or company might hold. The fact that, under certain conditions, leases larger than those usually provided for might be desirable was early recognized, and the first regulations under the gold 

fields regulation act of 1859 empowered the governor to issue special 

leases of any size on such terms as he might think fit. This policy 

of allowing gold leases of-any size or the consolidation of any number 

of gold leases, provided that it was shown that such a union was 

necessary for the more efficient working of the land continued, until 

1880.

The gold-fields act of 1880 provided that no consolidated lease for 

gold should exceed 60 acres or six times the normal maximum amount 

for reef claims. This was reduced in 1893 (mining act 1893, S. 41) 

to 30 acres or three times the usual amount, and in 1900 increased 

to 40 acres, at which figure it remained until the mining act of 1905.

As to leases for minerals other than gold, the first provision for 

consolidation is found in the act of 1870, which provided that no 

consolidated lease should exceed 320 acres. This was reduced to 

160 acres in 1893 (which was half the normal amount allowed for 

coal, and thus the law did not permit the amalgamation of small 

coal leases up to even the maximum area), and remained at that 

figure until the act of 1905. This act, which applies to all minerals, 

including gold, provides for both the consolidation and amalgamation 

of leases. It provides for the issuance of a consolidated lease including any number of adjoining, leases when the minister is convinced 

that such consolidation would facilitate the working of the property. 

This consolidated lease must be for a period not exceeding the term 

of the surrendered leases. An "amalgamation of leases" under this 

law is only a means of meeting an emergency, such an amalgamation 

is in force only for a stated period, generally twelve months, and the 

total area involved must not exceed 100 acres for gold and 300 acres 

for other minerals. In amalgamation the leases do not lose their 

identity; amalgamation merely permits the concentration of labor. 

The provisions for consolidation in effect mean that there is absolutely no limit to the size of a mining lease in Tasmania except 

what may be imposed by the discretion of the minister, but, judging 

from the past history of Tasmania, there is no great danger of abuse 

of this power by the mines department.

With such a liberal provision it is interesting to note that at the 

present time the largest consolidated gold mining lease in Tasmania 

is for 75 acres, and that there are only 7 mineral leases out of a total 

of 1,600 with an area exceeding 320 acres: The Mount Bischoff 

lease of 880 acres, the Mount Lyell Mining and Railroad Company's 

lease of 546£ acres (the Mount Lyell Company also holds consoliolated leases for 278, 226, and 131 acres, giving them 1 ; 181 acres in 4
80 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

leases), the Tasmanian Copper Company's lease of 454 acres, the 

Silver King Prospectors' Association lease of 386 acres, the Tasmanian Smelting Company's lease of 366 acres (the Tasmanian Smelting 

Company also holds consolidated leases for 291, 240, and 159 acres), 

the Arba Tin Mining Company's lease of 365 acres, and the Pioneer 

Mining Company's lease for 333 acres. The holdings of the Briseis 

Tin Mining Company, which undertook the development of a stream 

tin deposit deeply buried by a basalt flow, and which encountered 

unusual difficulties, consists of 3 consolidated leases of 139, 120, and 

93f acres, respectively. Other consolidated leases allowed companies for unusual undertakings are of a similar small size.

Royalty. The early coal leases of 1849 and 1853 appear to have 

been the only leases under which royalty has been collected on minerals in Tasmania. The early acts provided that the rent and royalty 

should be fixed by regulation, but in no case was royalty assessed, 

and after a time the acts provided only for rental. The insertion of a 

clause in the mining act of 1905 which permits the collection of 

royalty is probably to be regarded as a saving claused designed to 

permit the exercise of this right in special cases if found desirable, 

rather than an intimation that royalty is to be generally collected. 

All companies in Tasmania now pay 5 per cent on their declared 

dividends, but this is to be regarded as a general tax rather than as a 

special mining royalty, since it is not, as in South Australia, collected 

from mining companies alone.

Labor conditions. One of the essential conditions of a mining lease 

hi Tasmania has always been that of development. In gold leases 

this development covenant was always expressed in men until the 

mining act of 1900, but provision was made for an indefinite amount 

of exemption at the discretion of the local warden or commissioner 

of mines, and the lease further provided that a suspension of labor 

for at least six months was necessary to constitute a breach of the 

labor covenant. In connection with leases for minerals other than 

gold no provision for exemption from development conditions was 

made until 1893, but because of the option which permitted a fixed 

money expenditure per year a lease could not be declared forfeit 

until the expiration of that year. The 1893 act provided that at 

least six months noncompliance with the labor conditions was necessary to render any lease liable to forfeiture, and permitted the local 

commissioner to grant an indefinite amount of exemption. The 

labor conditions on leases during this period are therefore not to be 

considered as very severe. The act of 1900 first provided for exemption as a "right" during "general strikes" and for excess expenditure 

at the rate of three months' exemption for every excess expenditure 

amounting to that required for one year, providing the total exemption thus acquired should not exceed three years. The action of 

Parliament in this respect had been foreshadowed to some degree by 

the passage in 1893 and 1895 of acts granting special leases to the 

Mount Lyell Company, on the guaranteeof an expenditure of £200,000 

within five years, at a rental of £ 1 5s. per acre, or the combined rental 

on a gold and mineral lease under trie general mining act then in 

force.

The mining act of 1905 appears to have gone a step further by 

providing (1) for exemption during "a strike" where before it was 

a "general strike in the district;" (2) for exemption for six months
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 81

for each excess of expenditure equal to that required for twelve 

months, provided the total of such exemption should not exceed 

three years; and (3) by permitting the assessment of a fine not exceeding £500 as an alternative for forfeiture on breach of labor 

conditions.

All these are changes which have been repeatedly urged in connection 

with the "security of tenure agitation." The exemption-as-a-right 

clause for excess expenditure, though it provides for a longer period 

of exemption for the same expenditure, is, however, in some respects not as satisfactory as the provision in the act of 1900, because 

in the 1905 act the lessee is entitled to exemption for such expenditure as a "right" only after he has satisfied the warden "that there 

are reasonable grounds for applying for exemption." This in effect 

places the matter entirely in the hands of the warden, and can not 

be considered as much better than the provision of the Western 

Australian law, which in essence empowers the minister to grant 

exemption for any good cause.

In the matter of fine in lieu of forfeiture, it should be pointed out 

that forfeiture has been effected, as a rule, not on the initiative of the 

mines department but of prospectors who have a preference right 

to the lease forfeited, and that when this compensation is removed 

there is little to induce men to take the time and trouble to apply 

for forfeiture, particularly in view of the fact that the applicant 

must make a deposit of either £5 or £10. Although this deposit is 

designed to protect a bona fide developer from meddlesome and 

inconsequent allegations, the provision of the Western Australian 

law that the warden or registrar, if he is satisfied that such an application is made bona fide, may permit the applicant to proceed without making such a deposit, has very evident advantages if properly 

administered. In case forfeiture for noncompliance with the labor 

conditions is punished by fine only, some provision must be made 

for compensating the applicant for his time and trouble. If the 

lessee is adjudged guilty of a breach of the labor conditions and the 

lease is not forfeited, the fine should be sufficient to compensate the 

applicant for "any reasonable expenses incurred by him in relation 

to the application for forfeiture. In this particular the provision 

of the Tasmanian law that the applicant snail not be entitled to 

compensation for expenses in any case exceeding the amount of his 

original deposit, £5 or £10, as the case may be, seems entirely 

inadequate. After considering the "shepherding" of leases (holding 

without bona fide development), it was suggested by the Western 

Australian royal commission on mining in 1898 that government 

mining rangers should be appointed to see that the labor conditions 

were being fulfilled.

Tasmania has taken a step in the direction of assisting the government officers to enforce trie labor conditions by requiring in the 

last mining act that each lessee furnish a yearly declaration, under 

oath, giving full particulars of the work done. In the administration of this and other matters connected with mining leases, the 

mines officials in all the Australian States are assisted by the local 

police officers, who in some degree take the place of rangers; The 

conditions of administration in this respect are somewhat different 

in the Australian States than in the United States. In Australia

16014° Bull. 505 11 6
82 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the lands are being handled by the same government which is in 

charge of the local peace officers which service, by the way; is 

immensely more efficient than in the western United States and 

the. two services work together. The same efficiency may not be 

attainable in this matter with our dual system of government, 

where the State controls the local peace officers and the nation the 

public land, but the desired results can -doubtless be obtained in 

other ways, if cooperation in this respect is not, with proper administration, indeed possible.

The simple expression of the labor conditions in money per year, 

as in this Tasmanian law, makes it possible to hold a property almost 

a full year without doing any work. While designed to assist development, such a provision permits speculation to an undesirable 

extent, and a modification in which, the labor covenant is expressed 

in men for the first six months of the lease period with .the usual 

privilege of exemption from labor at the discretion of the officials, 

would make it possible to assist the bona fide developer in cases where 

cause for leniency was shown, and at the same time, to a more satisfactory degree, to prevent speculation.

Forfeiture. The early acts required that leases could be declared 

forfeit by the supreme court. After a time forfeiture could be 

effected by the publication of -a notice in the Government Gazette 

by the commissioner of crown lands. About 1880 the governor in 

council, which in practice means the minister for mines, was empowered to forfeit leases, and such forfeiture was usually effected on 

the recommendation of a commissioner of mines or warden after a 

hearing in open court. This made the minister a court of appeals hi 

such cases. In 1900 this responsibility was shifted from the snoulders 

of the minister for mines to a mining board composed of six members, 

the minister for mines, the secretary for mines, and the commissioners 

of the four districts. In 1905 the number of members in the board 

was reduced to three, and it was provided they should be appointed 

by the governor. A similar change is considered desirable in Western 

Australia, only there it is proposed that the board of appeals or 

mines board should be composed of the minister for mines, the secretary for mines, and the magistrate at Perth. The lack of definiteness in the last Tasmanian enactment regarding the composition of 

this board and the fact that -provisions are made for salary and expenses suggests that it has been thought wise to make it possible to 

have a board composed of other than the departmental officers.

MINERS' RIGHTS.

The first gold-mining regulations, while defining the size of claims 

and stating that they should be subject to such royalty and rent as 

might be fixed, made no provision for miners' rights or other form 

of authorized prospecting. The public -lands were in theory open 

to any who cared to search. This has been true for minerals other 

than gold for the greater part of the history of the mining development in Tasmania, and in this respect there is a momentary parallel 

with American mining practice. The gold fields regulation act of 

1859 provides for miners' rights for periods of twelve months at a 

fee not exceeding £1. In 1880 the period of a miner's right, still 

restricted to gold mining, was extended to ten years at an annual
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 83

rent of 5 shillings, and miners' rights were issued under the same 

terms till 1900, when -the practice of issuing miners' rights was 

abandoned and the American plan of allowing prospecting and the 

holding of a claim without any government license initiated.

But so .firmly had ,the custom of having a miner's right fixed itself 

on the mining community that this provision raised a storm of protest. Deputation after deputation waited on the secretary for mines 

demanding the restitution of the miners' right. On the explanation 

of the secretary that they had all the privileges conferred by a 

miner's right without having to pay the fee which had been charged for 

such a document, they replied that they wanted the miner's right nevertheless. Provision was therefore made for the "miner's right" in 

 the mining act of 1905. All such miners' rights expire on I)ecember 31 of each year,,and are issued on payment of 5s. if applied for 

before June 30 and 2s. 6d. if applied for after that date. Miners' 

rights under this act of 1905 cover all minerals instead of only gold 

as theretofore. Although between 1900 and 1905 the Government 

abandoned miners' rights, it still required .fees for prospecting areas 

(under the provisions of the .mining laws of other Australian States 

prospecting areas are allowed under miners' rights) and the innovation was therefore not of .such far->reaching importance as it appears 

at first sight.

CLAIMS.

With regard ; to the number of claims or miners' rights which one 

person comd hold, the practice in Tasmania seems to have been generally not to allow more 'than .one miner's right to any person. The 

present act provides ,that only one miner's right shall be issued to any 

person and that only one claim can be held thereunder. In this 

respect Tasmania has perhaps unknowingly kept more closely to the 

original idea of a claim than .the other States. A claim in the beginning represented the natural manner of permitting a man to hold 

certain ground on condition that he worked it. It was a possessory 

right only and the claim to hold the ground lapsed automatically 

when the claimant ceased to work it. In this initial stage it was in 

all countries so clear that a man could not work two claims at once 

that the fact that a man should only hold one claim needed no 

demonstration. It was only after the introduction of the capitalist, 

who might employ men to work for,him on several claims and so 

fulfill the conditions of occupation, and after the relaxation of the 

first and natural requirement of continuous development and the 

initiation of some such entirely inadequate provision as the SI00 a 

year assessment work required in the United States that one man 

could speculatively hold more than one claim.

The early change in the expression of the development condition 

in America from the original condition o,f the labor of one man for 

each one man's ground with exemption for cause, which is still in force 

in Tasmania and throughout Australia, to the expression of the development condition in money, coupled with the provision that one man 

may hold any number of claims, opened the door to wholesale speculative holdings of claims, for as the development condition is 

expressed in money per year, and as this expenditure can be made 

the last day in the year, any number of claims may be held for purely 

speculative purposes by one man for twelve months without devel-
84 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

opment. In the first instance no registration was required. Each 

man was on the ground he claimed and his presence was the only 

recognized evidence of his right. Later, in order to provide for the 

granting of exemption from labor conditions for cause, it became 

necessary to register claims. A survival of this original condition is 

evident in the Tasmanian law, but the unregistered claim has in 

most other countries ceased to exist.

On taking possession of a claim every miner in Tasmania must 

notify a registrar of mines that he has taken up such ground, but 

such a notification is not considered a registration. Such an unregistered claim is forfeited if not worked for a period of forty-eight hours; 

no exemption is allowed. If the miner desires to register the claim, 

he applies for registration, the claim is surveyed, a notice published, 

objections are heard, and the claim, if there are no valid objections, 

registered. After such registration, exemption may be obtained at 

the discretion of the warden. The area now allowed for all claims in 

Tasmania is one-half acre per man. Provisions are made for not 

exceeding 10 men, each holding a miner's right, jointly taking possession of land, and the 5 acres thus acquired is regarded as the 

largest possible claim under existing law. There is, however, in the 

law a provision that a company or combination of persons may take 

out a consolidated mining right on payment of a sum equal that 

charged for a single miner's right, multiplied by the number of 

miners' rights the consolidated miner's right is to represent. Under 

this there is absolutely no limit to the area a company might acquire 

as a single claim, but as there has never been any request in Tasmania for a consolidated miner's right this point has never arisen. 

Under the Tasmanian law, because of exemption as a right under 

certain conditions, a lease is a more satisfactory form of tenure than a 

claim, when important development is to be undertaken, and the 

claim and miner's right have both practically ceased to be of importance in this country.

PROSPECTING ABE AS.

The prospecting area and prospecting license in Tasmania have 

included privileges which in other States were sooner or later included 

under a miner's right. -As regards minerals other than gold, this 

appears to have been the favorite form of holding prior to lease, and 

although mineral licenses which permitted the taking out of mineral 

claims, comparable to the miner's right gold claims, were, provided 

for in the act of 1870, this provision was abandoned in 1877 and has 

now been revived only in connection with the revival of the miner's 

right. The claim allowed under a miner's right is so absurdly small 

that there is no inducement to take out such a holding except in 

connection with gold, and even then it is of doubtful value.

The desirability of prospecting before taking out a lease was recognized in the first regulations dealing with mineral lands in 1863, where 

it was provided that a commissioner of mines might issue an " authority to select," good for one year. This was changed in 1867 to'a 

provision which required the applicant to pay a full year's rent for 

the privilege of prospecting. In 1870 the mineral lands act provided 

for licenses to search for and remove minerals other than gold, 

good for twelve months, on payment of a fee of £1, and this provision 

continued in force until 1877, when this form of holding, except for
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 85

gold, was abandoned. The gold field regulations of 1878 provided 

that any miner wishing to prospect at a distance of more than 10 

miles from the nearest known gold discovery should be entitled to 

the exclusive right to prospect on an area of 50 acres for six months, 

which term might be extended for a further six months. This provision was slightly amended and incorporated in the gold fields 

regulation act of 1880. Special gold prospecting claims up to an area 

of 640 acres continued to be allowed under miners' rights, the area 

varying with the distance from proven discoveries and, without 

regard to distance, with the depth of the proposed sinking.

In 1884 provisions were made for prospecting licenses for minerals 

other than gold at a rate of 10s. per year. This did not, like the 

miner's right, permit the removal of minerals, and the prospecting 

areas allowed were much smaller than those allowed for a lease, being 

only 20 acres for minerals other than gold and coal and 100 acres 

for coal except where deep prospecting was undertaken, where an 

area up to 640 acres might be allowed.

The act of 1893 provided for miners' rights for gold only, but for 

prospectors' licenses for all minerals, including gold, at a rate of 10s. 

per year. The prospecting areas allowed under such rights remained 

entirely inadequate for the purpose for which they were granted, 

since being less than a lease they did not afford adequate protection. 

They did not prevent persons from acquiring adjoining claims and 

preventing the holder of the prospecting; area from obtaining the 

maximum lease area to which he was entitled under the law. This 

plan of special prospectors' licenses is continued in the existing law 

and the areas allowed are 20 acres for gold, 40 acres for minerals other 

than gold and coal, and 100 acres for coal, except that under special 

circumstances 320 acres may be allowed. It is perhaps in respect to 

the inadequate size of the exclusive prospecting areas allowed that 

the Tasmanian law most nearly fails to attain its evident aim of promoting development.

DUAL TENURE ASSOCIATION OF MINERALS.

The theory that as rich alluvial gold was preeminently the field of 

the small man special rights should be granted in respect thereto, 

found expression in Tasmania as in other states in special provisions. 

Regulations under the gold fields act of 1870 provided that the 

owners of alluvial lands should be entitled to all reefs, but that the 

owners of reefs should not be entitled to the alluvial. About 1880 

the practice of leasing alluvial ground seems to have been abandoned, 

since the regulations under the 1880 act provided that every lease 

should contain a condition exempting from its operations all alluvial 

gold within 75 feet of the surface, and providing that such gold could 

be taken by the holder of a miner's right, " provided such mining shall 

not interfere with or obstruct the bona fide operations of the lessee." 

The mineral lands amendment act of 1880 likewise provided that the 

holder of a gold miner's right could mine for gold on any mineral 

lease on paying compensation for damages. These regulations continued in force for some years and produced the inevitable conflict 

between the alluvial digger and the lessee. In the act of 1893 power 

was given to the minister to exempt any lease from such a condition 

and to reduce the minimum depth of 75 feet at will. In 1898 the
86 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Kalgoorlie riot, in Western Australia, was produced by a dispute on 

this point, and in the act of 1900 all difference between alluvial and 

reef gold was abandoned and every lease was held to give the lessee 

"the right to all gold within the perpendicular of his pegs."

The somewhat allied matter or the mining for associated minerals 

was attacked by Tasmania in 1881. The mining amendment act of 

that year contained a provision that any lands held under mining 

lease might be leased for mining for gold- or any other metal or 

mineral than that intended to be mined for under such lease, provided no such occupation should interfere with or obstruct the first 

lessee in conducting mining operations under his lease. Under this 

provision the two leases are essentially for parts of the same ground 

and more or less in conflict. The act of 1893 slightly restricts the 

operation of this provision by providing that the holders of gold 

leases shall be entitled to all minerals, and takes a step toward separating the two overlapping leases by providing that the rent payable 

by the first lessee as to the lands occupied by the second lessee shall 

be remitted. Provision is, however, made in the regulations under 

this act only for the mining of associated minerals by the original 

lessee. The act of 1900 provides for prospecting for, as well as mining 

for, associated minerals, and adds that the holder of a lease for minerals other than gold shall be entitled to all minerals other than gold. 

The regulations under this act provide for leases for the associated 

minerals of not less than three nor more than five years, on payment 

of specially assessed rents. The act of 1905 practically abolished 

this dual tenure by providing that the only lands held under mineral 

lease which may be subject to lease to any person for another mineral 

are those held under coal lease, where any portion of the land not 

necessary for the mining of the coal on which any other minerals may 

be found shall be considered Crown lands arid leased. This, in effect, 

involves nothing more than the resumption of the land not needed 

by the lessee, without compensation, and its subsequent leasing, and 

so is entirely distinct from the original provision regarding mining 

for associated minerals, which was little better than the alluvial 

question. Regarding gold, this act provides that the holder of a 

lease for minerals other than gold must on penalty of forfeiture report 

the discovery of any gold, and if the value of the gold exceeds that 

of all other metallic products he must take out a gold-mining lease. 

It gives no rights to any person other than the original lessee.

ENCOURAGEMENT OF MINING.

Tasmania has endeavored to encourage development (1) by special 

concessions and rewards to- the discoverers of minerals, (2) by subsidies to assist development, (3) by government exploration and 

diamond-drill borings, and (4) by the passage of a mining law which, 

while maintaining the fundamental principle of government leasehold which all Australian mining men indorse, endeavors to give a 

tenure satisfactory to large companies.

In the first period of development the law provided that a discoverer should have a preference right to a lease, and this soon led to 

the announcement that no application for a lease " would be entertained except that of the original discoverer." This is a very natural 

first-hand conclusion. "Why indeed should anyone but the original
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 8*7

discoverer have any initial right to a mining tenement?" and it is 

the basis which was adopted in the United States about the same 

time that this provision was adopted in Tasmania, and has perhaps 

been one of the factors which has assisted in the production of the 

feeling in the West that the laws are impossible so why try to live 

up to them ?

Suppose that a prospector discovers a payable lode at some new 

point this man is in fact a discoverer, and, under the American law, 

is entitled to a claim. Other men wish to expend their means on the 

ground round about this find, hoping that they may also discover 

something good; but before they spend any time or money they naturally want some sort of an exclusive right to the ground, and as, 

under the American law, they have no right until they make a discovery,, they at once stake a claim and post a notice declaring that 

they have made a "discovery." This is a very natural proceeding, 

in fact, it is the only one possible under such a law, if the land is to be 

developed, but the statement that a real discovery has been made is 

essentially false.

The question what is properly "a mineral discovery" is a very 

broad one, but it may be truly said that the percentage of American 

claims based on finds which would justify a government in granting a 

reward or other special compensation is extremely small. The absolute folly of such a requirement is in no way more clearly demonstrated than in connection with petroleum claims, where the nature of 

the deposit is such that a valuable discovery can practically be made 

only by drilling, and yet thousands and thousands of acres of the 

public lands in the western United States on which no drilling has 

been done are held as " placer petroleum claims," and on each is the 

declaration that on a specified day John Smith or some associated 

gentleman discovered a valuable petroleum deposit. The provisions 

of this portion of the American law, as well as certain other provisions 

connected with the public-land laws, might well have been specially 

designed by an evil power to make liars of honest men.

The first attempts at mining law in Tasmania and the neighboring 

States in many ways suggest the early history of the mining law in 

the United States, but, while America has accepted the early attempts 

and rested there, the Australian States have endeavored to remedy 

the defects and inconsistencies of their mining laws. The fallacy of 

this ''discovery doctrine" soon became evident in Tasmania, and in 

1877 the wise step was taken of providing that a lease should be 

granted to the first applicant unless it could be shown that there was 

an actual discoverer, and of rewarding the actual discoverer, in case 

the find was more than 10 miles away from any place where a mineral 

of like kind had been found and profitably mined, with a lease at a 

peppercorn rental for twenty-one years. This policy has been followed to this day. The present act provides for reward leases for 

twenty-one years at a peppercorn rental of the following areas: For 

gold, if the discovery is more than 2 miles from a "spot where gold in 

similar deposit is at the time of the discovery known to exist," 20 

acres; if more than 5 miles, 30 acres; if more than 10 miles, 40 acres. 

As to coal, if the discovery is over 2 miles, 80 acres; if over 5 miles, 160 

acres; if over 10 miles, 240 acres. As to minerals other than gold 

and coal, if over 2 miles, 20 acres; if over 5 miles, 40 acres, and if over 

10 miles, 80 acres.
88 MINING LAWS OF AUSTBALIA AND NEW ZEALAND.

In 1864 a reward of £5,000 was offered by the government for the 

discovery of a payable gold field, and the last mining act contains 

provisions if or rewards to the discoverers of "new mineral fields" and 

of "new and valuable deposits." In case of the discovery of a new 

mineral field, reward is paid if the discovery results in the establishment of a town within ten years in which a population of at least 

500 persons is settled and maintained for a continuous period of 

twenty-four consecutive months. The reward is at the rate of £500 

for every 500 inhabitants, but the reward shall in no case exceed 

£10,000. In the case of the discovery of a new and valuable deposit 

of mineral, reward is paid if as a result of such discovery 100 acres of 

gold leases, 640 acres of mineral leases, and 1,280 acres of coal leases 

are taken up and one year's rent paid thereon. In such cases the discoverer is entitled, in addition to a reward claim at a peppercorn 

rental, to half the rent paid for the first two years, provided that the 

total sum shall not exceed £100.

In 1886 the plan of aiding mining companies engaged in deep .sinking by subsidies on a pound for pound basis was initiated with the 

appropriation of £2,000. This practice was continued for several 

years.

Diamond drill work was commenced by the government in connection with development in 1882 and continued until 1902, during 

which period 32,683 feet were drilled.

The government is now engaged in opening up "tracks" and roads 

in mining districts, which it is expected will materially assist in the 

mineral development of the densely covered southwest portion of the 

island. The expenditure in 1906 for this purpose was £823.

EXTENT OF OPERATIONS.

The fact that claims are not required to be registered makes it 

impossible to obtain data on the extent of such holdings, but, as has 

been pointed out, this form of tenure is not of importance in this State; 

neither does the mines department publish any data regarding the 

number of miners' rights and prospectors' licenses issued, nor the 

areas held under such licenses. The extent of mineral leasehold is 

shown in the following table:

Table showing extent of government mining leasehold under the Tasmanian mining Law.

Leases In force on 

June 30, 1896........

June 30, 1897........

June 30, 1898........

June 30, 1900........

July 1,1901.........

June 30, 1902........

June 30, 1903........

December 31, 1903...

December 31, 1904. . .

December 31, 1905. . .

December 31, 1906...

Leases for minerals other than 

gold, coal, etc.

Number.

738

1,150

1,290

1,207

1,487

1,388

1,063

950

826

868

944

1,307

Area

(acres).

33,077

56, 493

66,981

64,339

70,500

60,865

45,399

40,068

33, 325

33,824

34, 825

43,036

Gold leases.

Number.

602

615

702

652

647

566

425

310

243

222

195

167

Area

(acres).

5,712

5,789

7,190

6,725

6,623

6,091

4,166

3,117

2,505

2,268

2,087

1,836

Dredging leases.

Number.

15

29

51

91

Area

(acres).

124

469

1,196

2,027

Leases for coal, 

slate, shale, etc.

Number.

37

38

41

39

. 52

55

52

66

54

47

45

. 35

Area

(acres).

5,946

6,105

5,943

6,002

7,258

7,566

7,819

10,767

9,119

7,546

7,185

6,025

Total.

Num-

.ber.

1,377

1,803

2,033

1,898

2,186

2,009

1,540

1,326

1,138

1,164

1,235

1,600

Area

(acres).'

34,635

68,387

70, 114

77,066

84,381

74,522

57, 384

53, 952

45,073

44, 107

44, 793

52,924
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 89 

RESULTS OF TEST OF GOVERNMENT LEASEHOLD.

"While Tasmania does not afford within itself an opportunity for 

comparing the relative operations of leasehold and freehold tenure 

in the development of minerals, since, for reasons already pointed 

out, no important mining properties are held in freehold in this 

State, the mining operations are conducted largely with capital from 

other regions, and the men interested in these ventures are in a position to speak of the relative merits of the two systems and to agitate 

a change in the form of tenure if they thought such a change 

desirable.

The Tasmanians regard the policy of government leasehold not as 

primarily a method of obtaining revenue, but as the best way of 

assuring the development of the mineral wealth and resulting increase 

in the population of the State. There is no theoretical consideration 

that the State should control all things, there is only the practical 

consideration that certain things should be done because the best 

results can be attained in that way. If freehold were shown to be 

the best way of promoting the attainment of the desired result it 

would be adopted, but there is among mining men in Tasmania the 

same abiding feeling of satisfaction with the general principle of 

mineral leasehold found in other parts of Australia. In response to 

the question, "What are the defects in the present law from the 

standpoint of the prospector and capitalist?" the secretary for mines 

replies, "No complaints from either prospectors or capitalists have 

been received, and I presume they are satisfied.'' In reply to the question "Does the policy of leasehold retard mineral development, as 

compared with freehold?" the secretary replies with the unqualified 

monosyllable "No." Mr. Lindsay Tulloch, a director of the Mount 

Lyell mine, the richest mine in Tasmania, states most positively that 

he considers leasehold a better'method of promoting development 

than freehold. Col. F. G. Hughes, vice-president of the Victorian 

Chamber of Mines, and a mining man interested in properties all over 

Australia, including several in Tasmania, states that the mining men 

of Australia, with practical unanimity, indorse leasehold as a better 

method of promoting mining development than freehold, and in his 

wide acquaintance among mining men he knows of but one, an 

American, who seriously advocates freehold.

Colonel Hughes expressed the opinion that after a company had 

expended large sums of money in development work they should be 

entitled to exemption from the labor conditions as a right for certain 

periods. Asked if he thought that a company which had spent say 

£250,000 should be entitled to freehold, he stated that he did not, 

but that such a company should be entitled to exemption for a stated 

period as a right, not at the discretion of the minister or secretary 

for mines. Asked what was the maximum period of exemption 

a company that had spent £250,000 should be allowed as a right, he 

first replied five years, but later stated that after further consideration he believed that three years was the maximum a company 

should be allowed as a right, even if their expenditure was many 

times £250,000; that with three years as a maximum, lesser periods 

should be allowed for smaller expenditures. It should be noted that 

the three years maximum period is the one adopted in the Tasmanian 

law.
90 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

CONCLUSION.

The present Tasmanian mining law is in many respects not a very 

well rounded or matured enactment. Many provisions have been 

taken from the laws of other states and bodily incorporated in this 

enactment without due digestion, and appear a bit incongruous in 

their new settings. This act, as first pointed out, is noteworthy because of the very strong effort which has been made to encourage 

capital by meeting the various demands which have developed in the 

"insecurity of tenure" discussion. The provision for exejnption 

from labor conditions in case of " a strike " is probably the most liberal 

provision in this respect in Australia. The provision for exemption 

as a right for excess expenditure is, owing to the qualifying clause 

added in 1905, not much of a concession. The provision for a fine, 

in lieu of forfeiture for noncompliance with the labor conditions, 

while good in some respects, is objectionable from a genera!standpoint 

because no adequate provision is now made for the payment of reasonable expenses incurred by the applicant; the prospecting areas are 

entirely too small as compared with the areas allowed under a lease; 

and the dual system of miners' rights and prospectors' licenses seems 

without adequate excuse. This last provision yields revenue, but 

the desideratum is not revenue but bona fide development under 

government control, as the Tasmanian officials have emphasized by 

the attempted abolition of the miner's right fee.

The point which deserves the greatest attention in the Tasmanian 

situation is the fact that although no provisions were made for 

preventing the alienation of minerals until 1903, and although such 

alienation was absolutely at the discretion of the lands and mines 

department officials, these officials have so faithfully discharged their 

trust that in no case has the. fee simple of any important mineral 

property passed into the hands of private parties. This record for 

over thirty years of important mineral development is one of which 

the country may well be proud, and shows that an efficient and 

patriotic administration of the land affairs of a nation is not a human 

impossibility.
CHAPTER V.

THE DEVELOPMENT AND PRACTICAL WORKINGS OF THE MINING LAW

OF VICTORIA. 0

THE FORMATIVE PERIOD: A COMPARISON WITH THE UNITED STATES.

The discovery of workable alluvial gold in California in 1848 marks 

the beginning of the present American mining law, and in like manner 

a similar discovery in Victoria and New South Wales in 1851 marks 

the beginning of Australian mining law. To link these countries 

even more closely, it may be noted that the opening of the Australian 

gold fields was due to the return of persons who had been attracted 

by the California rush, and their application to the Australian fields 

of the knowledge gained in California. Victoria, furthermore, with 

only three-fifths the area of California, has to-day very nearly the 

same population, and between 1851 and 1905 produced gold to the 

value of $1,365,000,000, while California produced between 1848 and 

1905 $1,400,000,000. The Victorian gold production in 1905 was 

about $16,000,000, while that of California was almost $19,000,000.

Previous to these discoveries in both America and Australia, several more or less abortive attempts had been made at mining legislation. In each case some of the' early grants contained reservations 

of certain minerals, others did not. In America an attempt had been 

made at leasing lead and copper bearing lands, and in 1845 President 

Polk recommended the abolition of this system and the selling of the 

lands outright. This recommendation was adopted and was made 

effective by the acts of July 11, 1846, as regards the lead of the Mississippi Valley, of March 1, 1847, as regards the mineral lands of the 

Lake Superior land district in Michigan, and of March 3, 1847, as 

regards the mineral lands in the Chippewa district of Wisconsin. 

The minimum price fixed for these lands was $5 per acre.

In 1840, in like manner, the British secretary of state, Lord John 

Russell, announced his opinion in a letter to the governor in chief of 

New South Wales, Van Diemen's Land, and their dependencies, as 

follows:

All deeds of grant throughout the whole of. the colony should henceforth convey to 

the purchaser everything below and every thing'above the surface. Neither would I 

reserve lands merely because supposed, or even certainly known, to contain useful 

mineral substances. The small amount of profit derived from mines throughout 

the great extent of the British Colonial Empire would appear to us sufficient reason 

why such reservations would, as a general rule, be as unnecessary as they would be 

inconvenient to the progress of the settlement.

And the land regulations of the colony dated March 1, 1843, contained the statement that "deeds of grant from the Crown will be 

issued * * * conveying * * * all that is above and all that

o Australian Mining Law Report No. 4, forwarded to President January 11, 1908.

91
92 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

is beneath the surface," except that in certain areas coal will be reserved until 1862, and that "precious minerals or metals may also be 

reserved if it be known that they greatly abound, but not otherwise." 

In 1846 an attempt was made in South Australia and Western Australia to reserve to the government one-fifteenth of all metals and 

ores containing metals and to issue mining leases at this royalty of 

6§ per cent. This was of particular importance in South Australia 

because of the copper mines which were then being developed there, 

and here again a close parallel is found in American history in the 

copper leases issued in the Superior district between 1843 and 1846 

at a royalty of 6 per cent. In 1849 this plan was abolished and an 

act was passed in South Australia waiving the reservation contained 

in all grants previous to that date. In February, 1850, the governor 

of New South Wales issued a proclamation declaring that the reservations of coal contained in certain grants before that date were forever abandoned. Mineral lands were sold throughout Australia in 

much the same way as other lands and at a minimum price of £1 

per acre.

It thus happened that in both the United States and Australia at 

the time of the discovery of gold the Governments had abandoned 

both the plan of reserving minerals in deeds of grant and of collecting 

a royalty thereon, and were selling th,e freehold of such mineral areas 

as were found under much the same conditions as other lands. In 

America the abolition of any system of mineral leasing or reservation 

was recommended by President Polk, because of the difficulty of collecting rents, the cost of administering the system, and the irritation 

of the people. In Australia the matter was placed on the rather 

broader grounds that the development of the country would be promoted by such a change.

Had only small amounts of gold been found there is little doubt 

that such auriferous lands would have been sold in the same way as 

other lands, as had been done in South Australia some years before, 

and that in time a system of mineral-land law would have been gradually evolved which would have had little in common with the present 

American law, and which might or might not have resembled the 

Australian law. But in both America and Australia the discoveries 

were not small; they were of such enormous magnitude that they 

made the whole world pause, and resulted in two of the most stupendous gold rushes ever Known. Both California and that portion of 

southeastern Australia where gold was found, including portions of 

New South Wales and Victoria, were very thinly settled regions, and 

the influx of an enormous population, gold mad, at once produced a 

crisis. The new population many times exceeded the old, and as 

many of the older residents holding positions under the Government 

resigned their offices and joined the gold seekers, the preservation of 

law and order became a very serious matter.

In California the discovery of gold followed on the heels of the 

Mexican war. The district where the gold was found was under military government, and it continued to be so governed until the admission of California into the Union in September, 1850. The region 

was far from the seat of government, communication was slow and 

uncertain, and the whole future course of the mineral law for many 

years, as it is proved, depended upon the action of the man on the 

spot. This man, Colonel Mason, proclaimed on February 12, 1848,
MINING LAWS OF AUSTEALIA AND NEW ZEALAND. 98

that "from and after this date the Mexican laws and customs now 

prevailing in California relative to the denouncement of mines are 

hereby abolished." This proclamation, so far as this region was concerned, did away with whatever vestiges of mining law then existed, 

and left Colonel Mason free either to promulgate and enforce adequate 

provisions, having for their object the safeguarding of the future 

interests of the community, or to allow the miners to "fight it out 

among themselves." Colonel Mason visited the fields, and was so 

appalled by the magnitude of the task before him that he announced:

It was a matter of serious reflection with me how I could secure to the Government 

certain rents or fees for the privilege of procuring this gold; but upon considering the 

large extent of country, the character of the people engaged, and the small scattered 

force at my command I resolved not to interfere, but to permit all to work freely.

Thus did Colonel Mason fail utterly to meet the great emergency 

with which he was confronted, and there followed a period of excess, 

crime, and lawlessness which forms a disgraceful epoch in our 

national history. Left to themselves, the miners were forced to 

form local organizations and vigilance committees for the administration of a rude justice, and for the partial preservation of order. 

Each locality promulgated certain evident regulations regarding the 

right of a discoverer to a claim, and the essential condition of development as the necessary requisite for the retention of title. These 

primitive and fundamental mining law conceptions, which spontaneously assert themselves in all regions when the demand arises, were 

soon followed by other, regulations of a more local or special application. The most important of these special regulations, and the one 

which has exerted the most far-reaching effect on the mining industry 

of the United States, is that relating to extralateral rights, whereby the 

holder of .the apex of a reef is considered to be entitled to all the underlay of the reef within the extension of his end lilies. This is a distortion of the right of the discoverer, and originated under much the 

same conditions as that other impossibility of American mining law, 

the assertion that only a discovery can initiate the right to a mining 

holding.

Both these doctrines naturally found expression in Australian 

mining law, but Australia after giving both a careful test abandoned 

them, and herein is illustrated the basic difference between America 

and Australia in the matter of mining legislation. Starting from the 

same point and based on the same fundamental principles, developing along the same lines and under much the same conditions, the 

American law is essentially where it was over fifty years ago, while 

the Australian laws have been progressively improved. After fair 

trial the Australians have rejected what was bad and have produced 

enactments which much more fully protect the rights of all concerned 

than those which are to-day found on American statute books.

Whatever may have been the original utility of the discovery and 

extralateral right provisions the need of such pro visions have long since 

passed. The discovery doctrine has been responsible for more essentially false declarations than probably any other enactment on the 

American statute books. The extralateral right doctrine has resulted 

in an endless amount of litigation, involving the absolutely unproductive expenditure of millions upon millions, and unless nrm and 

decided action is taken at this late day the end is not yet. Fully 

realizing the difficulties which beset any endeavor to undo the harm
94 MINING LAW'S OF AUSTRALIA AND NEW ZEALAND.

which has been done, it is confidently believed that an entirely equitable solution of this problem can be propounded. All the leading 

mining men in Australia with whom the matter has been discussed 

regard the matter as being susceptible of such a solution.

The Federal Government followed the policy of Colonel Mason 

and did nothing. The matters which led up to the civil war were 

then of overshadowing importance, and the affairs of the distant 

State of California seemed of small moment in comparison. The war 

followed, and it was thus almost twenty years before any action was 

taken by the National Government relative to mineral land laws.

The enactment of 1866 did little more than legalize the customs 

which had grown up and to legalize whatever customs or regulations 

might be found locally agreeable after that date, provided they did 

not change the more fundamental of those which had been established and had been incorporated in the law. The majority of the 

western Congressmen were at this time strong, able men, interested 

in and benefited by the existing state of affairs, and unwilling or 

unable to look at the matter in any way than from the standpoint 

of their own selfish ends. Such is the origin and essentially the 

present condition of the mining law in the United States, for the 

mining act of 1872 did not materially affect the underlying principles 

enunciated in the act of 1866.

At the time of the discovery of gold, New South Wales and Victoria were, measured in the time required for the journey, but little 

farther from the seat of government in London than California was 

from Washington. In New South Wales and Victoria there were 

partially elective legislatures, but the governor was all-powerful) and 

the conditions of autocratic administration found in California 

paralleled. In New South Wales the existing order of affairs had 

been established for over half a century, and there was in existence 

machinery for the administration of justice based on the English law. 

In the Victorian portion of the colony this had been true for only 

fifteen years, but, while this gave an advantage not found in the 

Californian situation, the presence on the gold fields of large numbers 

of convicts who had been transported to Tasmania and New South 

Wales gave rise to a state of affairs which, so far as the preservation 

of order was concerned, certainly equaled, if it did not exceed in 

lawlessness, that in California.

The matter here, as in California, resolved itself into a question of 

the power of the man on the spot, and in Australia the man .for the 

task was not wanting. While recognizing that the existing force 

was entirely inadequate to cope with the emergency, Governor 

Fitzroy of New South Wales, which then included victoria, did not 

follow Colonel Mason's example and let the men fight it out among 

themselves, but said in effect: "Order must be preserved, and if the 

preservation of order requires a larger force and a greatly increased 

expenditure it is but right that those who will be most protected 

and benefited (the miners) should pay for it." This reasoning led 

to the first two acts.of gold-field law in Australia, the issuing by Governor Fitzroy of a proclamation on May 22, 1851, and of regulations 

covering gold-digging licenses on the following day.

This proclamation asserted the common-law right of the Crown 

or Government to " all mines of gold and all gold in its natural place 

of deposit * * * whether on the lands of Her Majesty or or Her
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 95

Majesty's subjects," and warned all persons that anyone removing 

any gold, or digging for or disturbing the soil in search of such gold, 

without being duly authorized, would be prosecuted both criminally 

and civilly, and notified all persons that such regulations * * * 

as may be found expedient will be speedily prepared and published, 

setting forth the terms on which licenses will be issued for this purpose." This .assertion of the common-law right of the Government 

to all precious metals, while correct in law, was clearly an emergency 

proceeding, as it was in direct violation of the principles which had 

teen announced in Lord Russell's dispatch of 1840 and in the land 

regulations of New South Wales of 1840 and 1843. It might be 

pointed out that a similar proclamation was possible in California 

without evoking the common-law right of the Government if Colonel 

Mason had desired to avoid it, because practically all the gold was 

obtained from ;public lands, and the remainder was entirely from 

Spanish grants in which the precious metals had not passed to the 

freeholder. There was in the ^United States at that time no law providing for free search on public lands, and the "diggers" were, as in 

Australia, legally trespassers. The matter thus lay even more fully 

in the hands of Colonel Mason than it did in the hands of the governor of New South Wales.

On July 1, 1851, Victoria was formally separated from New South 

Wales, and on August 15 and 18 Lieutenant-Governor Latrobe 

repeated the proclamations and regulations issued by Governor Fitzroy the preceding May. Other regulations followed, but they differed in detail in the two States. Those in New South Wales seem 

to have been rather better suited to the needs of the 'case than those 

of Victoria, and were received with much more general satisfaction by 

the ''diggers." In April, 1852, Governor Fitzroy visited the diggings, 

and everywhere he was thanked .by the miners for the tranquil and 

prosperous state of the extensive gold-bearing districts, which was 

due, in their opinion, to the wise gold-field regulations, to the police 

force established, and to the care evidenced by the government in 

maintaining order. New South Wales was at this time producing 

several million dollars more gold per year than is now being obtained 

from Alaska, and the situation affords a striking contrast to the early 

days in California, and one which does not redound to the credit of 

the United States.

In Victoria, which was the center of the excitement, the early 

period was not passed so successfully. While this may have been 

due in part to the greater magnitude of the operations (Victoria was 

then producing over £200,000 of gold per week), it seems to have 

been due more to certain ill-advised .regulations, to opportunities 

which these regulations opened up for blackmailing and grafting on 

the part of .some of the petty officials, and to the misconduct and 

misjudgment of some of these officers. The regulations of August 18, 

1851, which became effective on September 1, and which fixed the 

license fee at the considerable figure of 30 shillings per month, was 

followed on December 1 by new regulations increasing this fee to £3 

permonth, and requiring that every person on the gold fields, including cooks and teamsters, should pay the -fee. This raised a storm 

of protest, and seems to have marked the beginning of the feeling of 

discontent, which, fed by one official act or another, culminated in 

the Ballarat riot of 1854.
96 MINING LAWS OP AUSTRALIA AND NEW ZEALAND.

Following the proclamation of the regulations of December 1, 1851, 

thousands of men assembled, and with decency and order passed resolutions which led to the immediate revocation of these regulations.

During the following summer the partially elective legislative 

council passed an act to restrain by summary proceedings unauthorized mining on the waste lands of the crown. In this act there 

is the first evidence of special tribunals for the decision of mining 

disputes; provision is made for the appointment of certain officers 

called "gold commissioners," who were empowered to inquire into 

disputes between miners, and determine them in a summary way. 

This act provided that any person found mining or digging for gold 

should be liable to a fine, but expressly stated that nothing in the act 

should be construed to extend to any preliminary search or inquiry 

for the purpose merely of discovering any ore or minerals. This 

provision was undoubtedly intended to relieve the unsuccessful prospector from the payment of the license fee, but the police did not so 

interpret it, and demanded that every person found on the gold fields 

should have a license. As the police received half the fines, there commenced the practice of "digger hunting/' which was carried to such 

an extreme, with so many evidences of rank injustice and of collusion between police officers and magistrates, that the matter became 

one of very serious import to the miners. Another fertile source 

of discontent lay in the fact that the gold commissioners appointed 

were mere youngsters of good families, with entirely erroneous ideas 

of their duties and prerogatives, and, while some of them afterwards 

made good wardens because of the experience gained, their conduct 

during this critical period was often far from commendable.

The license fee not yielding the protection of their rights, for which 

it was in theory assessed, was regarded by the miners as an odious tax. 

This feeling of discontent was intensified, in the fall of 1853, by the 

reduction of the license fee to 10s. per month in New South Wales, 

when it was found that the receipts more than met the expenses, 

and judging from the fact that the fees from gold-diggers' licenses 

are reported to have amounted to as much as £700,000 per year at 

this time, it would seem that Victoria might have done likewise. 

Public opinion was crystallized in the fall of 1854 by the discharge 

by a local magistrate of a notorious personage who had been guilty 

of many crimes, and who had boasted that the magistrate would not 

convict him, and the imprisonment of three innocent miners in connection with the case on the perjured evidence of the police officers. 

A mass meeting was held, at which resolutions were passed demanding the release of the miners. Governor Hotham, who had succeeded Lieutenant-Governor Latrobe, was a, high-strung navy 

officer, accustomed to implicit obedience, and not only refused the 

"demand," but sent soldiers to the spot to enforce order. This led 

to the inevitable conflict, and resulted in the death of 25 miners and 

5 soldiers.

This Eureka stockade affair led to the immediate appointment of 

a royal commission to investigate the matters at issue. The report 

of this commission on March 29, 1855, resulted in the passage, the 

following June, of a new gold-fields act, which marks the beginning 

"of practical legislation, having for its object -the advancement of 

mining, the improvement of the position of the men, and the collection, by methods least likely to be burdensome, of reasonable fees
MINING LAWS OP AUSTRALIA AND NEW ZEALAND. 97

for the privilege of mining on crown lands." This 1855 act abolished 

the license fee of 30s. per month, and substituted for it a document 

happily called a "miners' right," which was issued on payment of 

20s. per year. The act also provided for local courts, composed 

of a chairman appointed by the governor, and 9 holders of miners'" 

rights, elected by the miners of the district. These local courts 

were empowered to frame regulations in the nature of b}^-laws to 

regulate the taking up and working of claims and the settlement 

of disputes between miners. Five mining districts were created in 

this year, each of which had its own local court. The gold commissioners were replaced by officials called " wardens," who, with 

the abolition of the judicial feature of the local courts in 1865 and 

their reorganization under the name of "mining boards," became 

very important officers in the administration of the mining law.

This act marks the end of the disturbances on the gold fields. These 

troubles were primarily conflicts between the miners and the officers 

of the law, not through the lawlessness of the miners, but through the 

indiscretions and injustices of the officers of the law, and are to be 

viewed in a very different light from the disturbances in California. 

One is quite ready to agree with the statements contained in the dispatches of Governor Latrobe to the colonial office in London, that the 

conduct of the greater number of miners was deserving of all praise, 

and that life on the gold fields was far more orderly than the precedent 

of California might have led him to expect, and to indorse the following summary of the matter made in 1869 by a leading Victorian mining 

man: "But for the prompt action of the governor * * * it is 

certain that a repetition of the atrocities which disgraced California 

would have been seen in GUI colony." Changes were made from 

time to time as new needs arose, and with the passing of the shallow 

alluvial gold period the need of a further fundamental change in 

the law became evident. Another royal commission made an extensive study of the matter, and the mining statute of 1865 resulted. 

This is by many regarded as the mother mining act of Australia.

The enormous developments in Victoria between 1851 and 1865 

were certainly, under wise supervision, calculated to develop and 

fully test a practical mining law, and the Victorian mining act of 1865 

has therefore taken a foremost place among Australian mining enactments, because it was based on the most experience. Victoria continued its premier position as the principal mineral producing district 

in Australia for many years, and during these years the chief judge of 

the court of mines, Robert Molesworth, a man of very strong and forceful character, laid in his decisions the broad foundations of Australian 

mining law and practice as it exists to-day. Speaking in 1897, Sir 

Samuel Griffith, then chief justice of the supreme court of Queensland, and now chief judge of the high court of the Australian Commonwealth, said: "It is a well-known fact that the mining law of 

Australia was practically made by the decisions of Mr. Justice Molesworth and the supreme court of Victoria."

One of the first recognized and fundamental principles of both the 

American and Australian mining laws was that no claim could be 

held without development. It was considered but fair that if one 

man did not work the ground another should be permitted to do so. 

This was not due to any abstract theorizing in the realms of political 

economy; it was a doctrine which appealed to all men as fair, and

16014° Bull. 505 11 7
98 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

one which was not more firmly held in Australia than in America. 

In America, however, this fundamental idea was soon lost sight of 

and became obscured by other considerations. The conclusion, so 

evident in the early days of the gold rushes, that a man could con- 

"stantly work only one claim was obscured by the introduction of 

capital, whereby the labor condition on many claims could be fulfilled by hired workmen. This led to the provision that any person 

could hold any number of claims, and when, after the subsidence of 

the first excitement, the remaining holders agreed among themselves 

regarding a modification of the condition of continuous development, there resulted an expression of the development condition in 

money per year, which made it possible for a speculator to hold any 

number of claims, the result was but little short of the absolute 

abandonment of the original idea. The final step in the absolute 

negation of this fundamental principle was taken when it was provided that at the expiration of five years a holder could purchase the 

fee simple. A freehold, as applied to mining, means the waiving of 

the fundamental condition or development for all time. Starting 

from a common-sense basis which spontaneously appeals to all, the 

American mining law developed amid scenes of the wildest description, and was so distorted to meet entirely selfish ends that when the 

Government finally concluded to do nothing more than recognize 

this product it had practically repudiated the principles from which 

it had sprung.

Australia, on the other hand, has logically followed out the principle thus forced upon it by the necessities of the gold rush of the 

fifties. It has continued to hold bona fide development that is, 

the reasonably continuous labor of one man for each one man's 

ground contained in a claim as the essential condition for the retention of title. It has not reduced this condition, as has been done 

in America, to such a point that a man can even fully comply with 

the letter of the law and yet hold a claim without real development. 

When the growth of the mining industry showed the necessity of 

some form of tenure other than a claim, the lease followed as a logical 

result. Only under leasehold tenure is it possible to enforce the condition that "if one man will not work the ground, another should be 

permitted to dp so." This is not government ownership in the 

abstract sense; it is only the Government guaranteeing the exercise 

of a right which miners have asserted in all free countries. Starting 

at the same point, and from the same basic conception as the American law, the Australian law developed under conditions of order, and 

the result represents the combined efforts of miners, business men, 

and statesmen to frame a law which to the greatest possible degree 

would conserve the rights of the miner, the prospector, and the 

developer, and yet would fully protect the interests of the country 

at large.

OWNEKSHIP OF THE PRECIOUS METALS.

As has been shown, at the time of the discovery of gold in Australia, the government had abandoned any idea of reserving either mineral lands or the minerals contained in such lands. In 1840 and 

again in 1843 the government announced that every grant would 

convey all minerals. Had deposits of minerals of only small consequence been found, and requests been pushed for the waiver of all
MINING LAWS OF ATJSTBALIA AND NEW ZEALAND. 99

f

overnmental rights, such requests, under the conditions existing 

efore the discovery of gold, would doubtless have been granted. In 

South Australia, the only colony then known to contain metalliferous 

deposits of consequence, and where a gold mine had been worked as 

early as 1846, such a request was indeed made and granted by the 

home Government in 1849, and the legislative council promptly passed 

an act waiving all reservations in previous grants. In New South 

Wales, of which Victoria then formed a part, coal was the only mineral which had proved of commercial importance, and reservations of 

coal had from time to time been inserted in grants. In 1850 Governor Fitzroy, evidently in reply to a general request, proclaimed that 

"her present Majesty being desirous of promoting the welfare of her 

subjects has been graciously pleased to direct that all such reservations, and the rights incident thereto, shall be abandoned." But no 

definite legislative action was taken in any part of the Australian 

States confirming the ownership of the gold to the freeholder who held 

land under a deed of grant without reservations. This lack of action 

was apparently due to the fact that outside of South Australia the 

question of mineral reservations was of little importance and because 

the freeholders holding deeds of grant without reservations very 

naturally thought they owned the gold. The feeling in this respect 

found ample support in the statements in the dispatches from the 

colonial land board to the secretary of state, Lord Russell, in 1840,° 

in Lord Russell's dispatch to the governor of New South Wales in 

1840, b in the provisions in the land regulations of South Australia 

and New South Wales of 1840, c in the New South Wales land regulations of 1843, d and in the dispatch from the secretary of state to the 

governor of South Australia in 1845; e in all of which the opinion is 

expressed that grants without reservations convey everything.

Under the circumstances the assertion of the common-law right of 

the government to the precious metals "whether in the lands of Her 

Majesty or of Her Majesty's subjects," which was made in New South 

Wales in May, 1851, and repeated in Victoria in August, 1851, following the separation of the latter from the former, did not pass unchallenged. There were bitter denunciations of this "invasion of vested 

rights," and the battle was largely fought out in Victoria. In this 

State the point was of more importance than in any other States because of the great value of the gold finds and the fact that here none of 

the early grants contained reservations of the precious metals; indeed, 

no such reservation was inserted until after May, 1873. In the first 

case involving this point (Lane v. Hannah) it was decided in Februuary, 1861, that "gold in land alienated from the Crown still belongs 

to the Crown, and does not pass to the grantee." In 1863 (Miller v. 

Wildish) it was again held " all gold mines belong to the Crown, and 

though the Crown may have granted the lands containing them to a 

subject without reservation, the gold under the grantee's land is not 

his, and neither he nor anyone else has a right as against the Crown 

to take it." This matter repeatedly presented itself in the courts for

o English Parliamentary Papers, Sess. 1840, vol. 33, No. 613, p. 11. 

& English Parliamentary Papers, Sess. 1840, vol. 33, p. 395.

c South Australian Government Gazette of November 14, 1840. New South Wales 

Government Gazette, December 9, 1840, p. 1327. 

d New South "Wales Government Gazette, March 1, 1843, p. 342. 

« English Parliamentary Papers, Sess. 1846, vol. 24, No. 706, p. 50.
100 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the next few years, and was always decided by the Victorian courts 

in the same way, though the New South Wales courts rendered decisions adverse to the Government. In 1876 an appeal (Woolley v. 

Attorney-General of Victoria) was taken to the court of last resort 

under the English law, the privy council, where the decisions of the 

Victorian courts were sustained in 1877: "A crown grant does not 

pass to the grantee royal mines (that is, gold and silver) that may 

be found under the land included in the grant, unless the intention 

that such minerals should pass is expressly stated in the grant in 

apt and precise words;" and the matter was thus finally settled.0 

The court here held, in substance, that the expression of opinion in 

the several dispatches of the British secretaries of state, and their 

instructions to the colonial governors were, in the absence of any 

specific granting clause in the conveyance, not conclusive, neither 

were the provisions in this respect in the Land Regulations of 1840 

and 1843.

In this connection it may be pointed out that no conclusive action 

has ever been taken in the United States conveying the precious 

metals to the freeholder. Chief Justice Field, in 1861, in the case of 

Moore v. Smaw (17 Cal., 199), in which this doctrine was not 

directly involved, for the issue could only be clearly defined by the 

Government becoming a party to the suit, expressed the opinion that 

the doctrine was inapplicable to American institutions because the 

right to the precious metals was "the personal prerogative of the British ruler, and not an incident of sovereignty." This conclusion was, 

however, questioned in 1873 (Gold Hill Quartz Mining Company v. 

Ish, 5 Oreg., 194) where the court referred to the principle as conceded that "mines of precious metals belong to the eminent domain 

of the political sovereign." Some time before the American war of 

independence the English royal family definitely relinquished to the 

state all public lands and royal mines, and any question which may 

have remained regarding the exercise by the state (the de facto sovereign under constitutional government) of those functions, which 

before the existence of constitutional government were vested solely 

in the King, was forever settled. The right to the precious metals is 

in Australia to-day clearly exercised as an incident of sovereignty.

One should bear in mind in reading Australian law that the term 

"Crown" is here but a synonym for "Government" and that the 

phrases "crown lands," "crown lands acts," and "crown grants" 

mean exactly the same in every way as the American expressions 

"public lands," "public land laws," and "government patents." 

The disposal of the crown or public lands and the revenues derived 

therefrom are absolutely under the control of the elective legislature 

or parliament of the country or colony in question. The ownership 

of all the "crown lands" in Australia is as much a personal prerogative of the English King as the ownership of the minerals, and it is 

quite as logical to deny the sovereign right of the United States to 

its public lands on the basis that such lands are in the English colonies called "crown lands" as it is to deny its sovereign right to the 

precious metals.

o- It was doubtless this decision of the privy council which led to the passage of Act 

No. 88 of 1877 in South Australia, wherein that State reaffirmed its decision that 

"Grants in fee simple shall be construed to convey to the owner of the fee simple 

the absolute property in all mines and minerals, including gold and silver, * * * 

nothing whatever above or below."
MINING LAWS OF AUSTRALIA AND NEW1 ZEALAND. 101

Furthermore, the doctrine has long been accepted by the American 

courts that in civil proceedings the English common law is, in the 

absence of any specific legislative modification, binding in the United 

States. On this principle, as well as on the one that the United States 

singly and collectively is and are the successors in interest to the 

rights and privileges of the British Government, the precious metals 

are in the United States the property of the Government. This 

means that in all States where the Federal Government has never 

owned the land, and there are 19 such States, the ownership of the 

precious metals lies with the state government (in several of the older 

States this has long been recognized), and that in States where the 

ownership of the land has been vested in the Federal Government 

the ownership of the precious metals in like manner lies with the 

nation, and that as against the Government no person has a right to 

gold and silver in any lands in the United States unless this right has 

been specifically granted to him in the deed of conveyance.

The enforcement of this right in the United States, if ever undertaken, will doubtless be carried out in much the same way as in 

Australia, where it is utilized, not as a means of hoarding these minerals «and mines for the exclusive use of the Government, but as a 

means of promoting and permitting development. This prerogative 

enables the Government to insist on the doctrine as regards all 

precious metals, that if the owner of the freehold will not work them 

properly or permit some one else to do so, the Government will exercise its right to promote the welfare of the country by permitting the 

development of these deposits; always, however, providing for the 

indemnification of the freeholders for loss or damage caused by mining operations.

MINING ON PRIVATE PROPERTY.

The assertion of the right of the Government to all precious metals, 

made on the discovery of gold in Victoria, was not intended to open 

freehold land to general prospecting. Although .the Government 

owned the minerals, it did not have a right to the land, and it could 

not, without specific legislation, authorize anyone to enter upon such 

freehold property without the consent of the owner. The first regulations issued in New South Wales on May 23, and in Victoria on 

August 18, 1851, clearly define the attitude of the Government on 

this point in the following words:

With reference to lands alienated in fee simple, the commissioners will not be authorized for the present to issue licenses under these regulations to any persons but the 

proprietors or persons authorized by them in writing.

The intention of the Crown to insist on license fees for all gold 

digging on private property, which was suggested in these early 

regulations, was not carried out in Victoria as it was in New South 

Wales, and the practice speedily grew of tacitly allowing the freeholder to make such arrangements as he chose, and of protecting 

those arrangements, the government making no claim to any of the 

profits. In Ballarat. and other of the gold fields, much difficulty 

was caused by private holdings. The law previous to the discovery 

of gold gave to the holders of pastoral leases a preemptive right to 

select 640 acres anywhere on their leases, and these lessees at once 

proceeded to select and purchase auriferous ground. Although 

this practice was prohibited after a short time it was not till very
102 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

extensive areas of mineral lands had passed into private hands. 

Large tracts were thus locked up and unworked as mines, and often 

not even prospected, and while miners could generally obtain licenses 

from the freeholders to enter, it was only on payment of unduly 

heavy compensation. Attempts were made at once to have these 

lands opened up to development, but, although one or more bills were 

introduced at almost every session of Parliament from its first meeting 

under responsible government in 1856-57, no mining on private property act was passed until 1884. In the interim, the privy council 

had not only sustained the contention of the government, that all

f

old in lands, whensoever alienated, belonged to the government, 

ut had also included silver. In the mining on private property 

act of 1884 "gold" is therefore defined as including not only gold 

and ores of gold, but silver and ores of silver. Private land is defined 

as land alienated before December 29, 1884, and this date is insisted 

upon as a division point in subsequent acts, apparently on the supposition that before that date the power to enter and mine for gold 

on freehold land was not reserved to the government. From this 

point of view it would seem that there would have been more reason 

to have selected May 8, 1873, after which date, according to the 

grant-form book of the lands department, all conveyances contained 

a reservation of the right to search and mine for gold on payment 

of compensation.

No specific provisions were made in the lands act of 1869, under 

which these grants were issued, for such a reservation, but section 

110 of this act, which empowers the governor to determine the form 

of grants, and to provide for the execution of "other matters and 

things arising under and consistent with this act and not herein 

expressly provided for/' might be held to have furnished, together 

with the decisions of the courts of this time regarding the ownership of the precious metals, the necessary authority for such an 

insertion. The next lands act, 1884, contained a provision which 

was identical with that contained in all grants after 1873.

This act was slightly amended several times between 1884 and 

1890. and was then incorporated in the mines act of that date. It 

has now, with several amendments, been embodied in the mines 

act of 1897, the provisions of which are still in force. The act of 

1897 includes in the definition of private lands: (a) Lands alienated 

prior to December 29, 1884; (6) lands alienated on or after that date, 

or leased or licensed before or after with the right of acquiring the 

fee simple; (c) lands leased under the Mallee or Wattle act, and (d) 

lands vested in the trustees of the agricultural colleges.

Either leases or miner's right claims can be acquired on these 

lands on payment of compensation for damages, the compensation 

to be fixed by agreement, or, failing agreement, to be assessed by 

the local mines department officer, the warder. For gold leases a 

rental of 6d. per acre per year is collected by the government in 

the case of lands alienated prior to 1884, and 2s. 6d. for lands alienated since that date. In leases for minerals other than gold, which 

can be granted only to lands alienated since March 1, 1892, the rental 

is not exceeding £1 per acre. The reason for the difference in the 

rental on gold leases as to lands alienated prior to 1884 and subsequent to that date is apparently to be found in the lesser amount 

of compensation which can be assessed in the latter case.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 103

The provisions for miners' right claims are rather more advanced 

in this enactment than in the former ones, and a new provision is 

made which permits prospecting areas for gold on private property. 

This act, while solemnly proclaiming the ownership of the govern- 

.ment to all gold and silver in lands whensoever alienated, makes 

no provision for mining for silver on lands alienated prior to December 29, 1884. This is clearly due to a clerical error. In the original 

enactment "gold" was denned as including both gold and silver, 

and when the section was bodily transposed to the new act and separated from this special definition, it lost some of its original force. 

This is, however, not a point of much moment in Victoria, because 

no silver mines of importance have yet been found. Leases on 

private property are like leases on crown lands voidable for nonfulfilment of development and other covenants.

In private arrangements between miner and owner the compensation for surface damages frequently takes the form of royalty, and 

there has thus developed in the administration of this law the anomaly 

of the miner paying an acreage rental to the Government, which has 

no surface rights, and a royalty to the freeholder, who has no claim 

to the minerals on which the royalty is paid. This unique royalty 

system in connection with mining on private property was severely 

criticised by many witnesses before the last Victorian Royal Commission on Gold Mining. In New South Wales the logical course has 

been followed in the new mines act of 1906 of abolishing the old clause, 

which permitted the freeholder to collect royalty on that which he did 

not own, and making such an -agreement illegal. The New South 

Wales act now provides for a rental to the surface owner and a 

royalty to the Government.

"Whatever difficulties may have been experienced in the administration of the mining on private property acts, these have undoubtedly 

promoted development. The provision that if the owner will not 

make reasonable terms the warden will do so for him undoubtedly 

restrains the too-exacting owner, and the officers of the mines department affirm that the majority of leases which are now issued contain 

greater or less areas of private lands. In its practical workings this 

law, like the condemnation of land for a public use in the United 

States, has undoubtedly protected the freeholder by yielding him 

more than market price, and yet has opened up to development land 

which could not otherwise have been worked.

DEVELOPMENT OF GOVERNMENT POLICY IN REGARD TO ALIENATION OF

MINERALS.

Areas of private lands on the gold fields proved such a hindrance 

to development that a demand was at once made that tracts supposed 

to be mineral bearing should not be alienated. In Victoria the first 

lands act (24 Victoria No. 117, 1860) passed after the discovery of 

gold contained the prohibitive statement: "No lands known to be 

auriferous or mineral shall be alienated." In the lands act passed two 

years later this was changed to the statement: "The governor in 

council may withdraw from sale as being auriferous or mineral 

* * * any lands about to be selected, rented, or purchased," and 

in 1865 this was changed to the rather more effective provision, under 

efficient administration: "The governor in council, if he shall think
104 MINING LAWS OP AUSTRALIA AND NEW ZEALAND.

fit, may withhold or may withdraw from sale, selection, or leasing 

any land or allotment." Under these provisions the practice began 

of referring all land papers to the officers administering the mines side 

of the land affairs for indorsement as to whether or not the lands 

might be needed for muring purposes, the Government refusing to part 

with lands which the mines officers thought it advisable to hold. 

This plan has proved successful in Victoria and other Australian 

States to a degree astonishing to Americans.

Recognizing that, however efficient a corps might be, it could not 

be omniscient, the lands act of 1869, while continuing these provisions, 

added another providing for the resumption by the Government for 

mining purposes of any lands on payment of value, other than 

auriferous. This appears to have been designed, not only as a means 

of remedying the injurious effect of any alienation of mineral land 

which might have inadvertently occurred since the passage of the first 

land law, but also, and this was the main object, to remedy that which 

had been done under regulations passed before such a need was 

appreciated.

As the practical difficulty of entering private property for the purpose of searching or mining for precious metals became more evident, 

the government took the step, in 1872, of reserving in grants of 

lands sold at the mining town of Buningyong the right to mine at a 

depth of not less than 180 feet, and to occupy the surface on payment of damages. On May 8, 1873, a new form of grant was approved which contained the reservation of the right to search and 

mine for gold on payment of damages. Such a reservation has in 

one form or another continued to this day. The provisions of this 

new grant form were included in the next lands act, which was 

approved December 12, 1884. During this period areas covered by 

leases and licenses for pastoral purposes were considered as essentially private lands, and in order to obviate the delays and difficulties 

which were encountered under the provisions of the mining on private property acts, it was provided in the 1890 lands act that there 

should be "inserted in every lease of a pastoral allotment, and in 

every lease of a grazing area, the covenant that the lands are demised 

* * * under the condition that the holder of a miners' right or 

of a mining lease shall have the right to enter on such areas and 

search and mine for gold without payment of compensation for surface or other damages."

The question of the advisability of selling lands containing minerals 

was gone into at length by the last Royal Commission on Gold Mining, 

and they reported in 1891, as follows:

The great bulk of the evidence throughout the whole course of the inquiry bears out 

the opinion that no greater mistake can be made by the state than that of alienating 

mining lands. There is no necessity whatever for disposing of such areas in fee simple. 

No use to which the land can be applied requires that it should be sold. On the other 

hand, experience proves that when land is once alienated it is extremely difficult to 

enter in and mine upon it. The mining on private property law does not adequately 

meet the case. Its operation is cumbersome, expensive, and slow, and the only safe 

course, as it seems to us, is to reserve all mining areas from sale.

As a means to this end the commission recommended that the 

"geological survey of the colony be completed with all possible expedition, and the survey of the lands yet remaining in the -hands of the 

Crown should be proceeded with first."
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 105

One of the immediate results of the recommendations of this commission was the redoubling of the administrative efforts to prevent the 

alienation of lands supposed to contain minerals, and the incorporation in the lands act of 1891, and the mines act of the same year, of a 

provision that grants of land would, after March 1, 1892, convey only 

surface values, that all minerals would be reserved to the Government. The practice is still continued of referring all land applications to the mines department for endorsement of recommendations.

One of the most impressive features of the Victorian mining enactments is the large number of things left to the good judgment of the 

officers administering them. The mining law, as originally enacted, 

rested very largely on executive discretion, and in the half century 

during which it has been in operation there has been no essential 

change in this respect, although mines acts and mines amendment 

acts have been very numerous. Among mining men there is a general 

feeling of satisfaction with the administration of the department. In 

one or two instances there is a suggestion of a weak minister of mines 

yielding to the importunities of workmen during a strike, and there is 

some complaint that certain mineral lands were alienated when they 

should not have been, but the net result is wonderfully good. One 

American, who had been engaged in mining in Australia for several 

years, complained that he had not found "palm oil" effective in 

Australia, a result which his experience in America had not led him 

to expect. The Australian mining man's comment on this statement 

was emphatic:

"Palm salve" will not work here. There may be occasionally an official who is 

elightly offcolor, but he and the persons treating with him will always take a cropper 

in very short order.

Perhaps it might be suggested from this, in connection with the 

Tasmaman case, that a law which leaves things to executive discretion 

appeals strongly and potently to the Anglo-Saxon's honor. Such 

a law clearly says, "It's up to you," and may have points of efficiency from a human standpoint which a law lacks that is framed 

on the supposition that, as no man sufficiently honest can be found 

to administer it, nothing can be left to executive discretion.

The development of the government policy in regard to the disposal of mineral lands has thus shown the following progressive stages:

From settlement of colony in 1835 to 1873: Lands sold without any reservation of 

minerals (held by Privy Council in 1877 that gold and silver belong to the government 

by the common law).

(a) 1835 to 1851: The general policy was to sell known mineral lands under the same 

conditions as other lands.

(6) 1851 to 1860: Attempt made to prevent alienation of mineral lands, but ineffectual because of existing preemptive rights.

(c) 1860 to 1862: Alienation of known mineral lands forbidden.

(a) 1862 to 1873: Alineation of known mineral lands discretionary with the officials. 

Policy of not selling such lands, in the main, consistently followed.

1873 to 1884: 'Lands sold with reservation of right to mine gold (held by Privy Council that both gold and silver belong to the government by the common law). Policy 

of not alienating areas.known or supposed to contain minerals continued.

1884 to 1892: Lands sold with reservation of rights to mine for gold and silver. 

Lands known or supposed to contain minerals not sold.

1892 to date: Lands sold with reservation of all minerals; policy of not alienating 

areas known or supposed to contain minerals continued in the administration of the 

land affairs.
106 MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 

TERMS AND CONDITIONS OF LEASES.

The first mineral leases in Victoria were issued in connection with 

quarries on public reservations. These were for a period of one 

year, and at rents of not less than £10 per quarry. In 1843-44 application was made to Governor Latrobe for concessions which would 

permit the working of coal discovered at Cape Patterson. The governor stated that owing to the exclusive provisions of the charter of 

the Newcastle Coal Company (Australian Agricultural Company) he 

was unable at that time to grant anything more than annual "quarry 

licenses/' which he would do at the rate of a half-penny a ton royalty, 

and would further personally guarantee a renewal of the "licenses" 

at this rate for seven years. Nothing was, however, done in this 

matter until some years later, when this area was divided into sections 

and annual licenses sold at public auction at a minimum price of £10 

per section of from 188 to 482 acres. Several such licenses were 

acquired, and operations continued under them until the lands act of 

1860 came into force, and the general practice of leasing mineral lands 

was initiated.

In connection with gold mining, provisions were first made for 

leasing auriferous lands in October, 1852. The rather excessive 

demand of the government of that date, which had been exemplified 

in the attempt to increase the license fee, was again shown here in the 

offer of annual leases at a rental of £720 per acre. This rate was 

determined in this way: At this time one man's ground was fixed at 

the absurdly small area of 12 by 12 feet, and 20 men might take up 

half an acre. Each of these men paid 30s. per month, therefore it 

was argued that the correct lease fee for an acre was 2 times 12 

times 20 times 30s. It is needless to say that no leases were applied 

for under such conditions. Subsequent regulations provided for 

leases at a royalty of 5 per cent, but none were applied for until after 

the passage of the 1857 act and the proclamation of regulations fixing 

the rent at £5 per acre per year. Mining leases were at once applied 

for from air over the gold fields, and the first of these were issued in 

1859.

As to minerals other than gold, the first definite legislative authorization of leases is found in the lands act of 1860. The first lease 

issued under the provisions of this act was for antimony, and bears the 

date of November 13, 1861. A coal lease was issued in 1862, but was 

antedated May 22,1861. Several coal leases were issued at this time 

in widely separated parts of the country.

Particulars concerning the terms, except as regards labor, fixed 

at different times for leases are presented in the table following.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 107

Terms under which government mining leases have been granted at different times in

Victoria.

Term of years:

For minerals other than

Maximum area in acres:

Maximum length in yards

Renr per acre per yeat :

Royalty on gross output: 

Gold....................

Regulations, October, 1852.0

1

10

/£720

None.

a

S3

00

p. <J

a 

'£o

0)

aV

QJ

21

160

880

r>%

Term of years: 

For gold ....... ..........

For minerals other than g 

Maximum area in acres: 

For gold

old........

For other minerals .................. 

Maximum length in ya'rds along reef in

Rent per aore per year:

Royaltv on gross output: 

Gold................................

Other minerals. .....................

Goldfields regulations, act,1853; 

December, 1853.0

(«)

CO

1,760

<5%

Sep- Lands regulations, act,1860; tember, 1862. 1861; August, 

30

tioo

(140

*50

'2s 

2s

1°7

Special leases, November, coal 

1854.6

1.

«188-482

«5d.-1M.

None.

Goldfields regulations, act, 1862;

October, 1862.

15

130

COO 

£2J 

}.....

(0

Goldfields regulations, act, 1855; 

June, 1855.0

(«)

"40

220 

9 £10

5%

Mining act,regulations, 1865; 

January, 1870.

15 

30

<J30 

fclOO 

040 

1 50

600

£1 

ro3d.-2s.

None. 

2%

Ooldfields act. 1S57.

Ballarat regulations, December, 1858.

10

<*50

800 

ft £5

(»

Mining act,1872.

15

10s.

Castlemaine 

regulations

January, 1859.

10

d20

COO 

£5

(i)

Mining act,1885.

15

5s.

February, I860.

10

d20

440 

ft £5

(0

Mines act, '1890; regulations, 

July, 1890.

15 

30

d30 tioo

640 

*50

600

5s. 

3d .-£5

None.\ 

nNone.f

Sandhurst 

regulations.

January, 1859.

10

<J20

440 

ft£5

d)

Mines 1891; regulations, act,

July, 1896.

15 

15

d30 

*100 

640 

*50

600

5s. 

3d.-£5

None.

>I

a 

S

10

020

220 

ft. £5

(i)

Regulations, September, 

1861.

10

<*30

(WO 

£2J

d)

Mines act, regulations, 1897; 

August, 1905.

15 

15

No limit, 

i 640

No limit.

2s. 6d. 

ls.-£l

None.

oNo leases appear to have been taken out under the provisions of these acts and regulations.

6 Temporary, pending advices from London.

cTo be fixed by governor.

<*No limit fixed by statute and leases were occasionally larger than this figure, which is given as the 

maximum in the regulations.

'In sections ranging from 188 to 482 acres, at £10 per year per section.

f Minimum; actual price to be determined by auction.

3 In reef leases, £1 per yard of reef.

ft In reef leases, £5 per 100 yards of reel.

i Not less than 5 per cent.

JFrom April 20, 1855, until May, 1862, a duty of 2s. 6d. per ounce was collected on all gold exported. 

This duty was then reduced to 2s., then to Is. 6d., and finally abolished January 1,186,'i.

*The statute fixes 640 as the maximum; these lower values were fixed by regulations. 

' For one mineral; Is. additional for each additional mineral.

 » For one mineral; for each additional mineral not exceeding Is.

"All royalties In existing mineral leases were remitted on November 25,1890.
108 MINING LAWS OF' AtrSTEALlA AND NEW

Area. One of the noteworthy features of the mining acts of 

Victoria is the greater liberality of the laws in respect to the working 

of the only mineral, gold, which has yet proved or much importance. 

The royalty on gold was abandoned in 1863, but the royalty on other 

minerals continued until 1890. The acts have never limited the area 

of a gold lease, but always fixed the maximum of a mineral lease at 

640 acres. In general, the regulations have fixed the area of a gold 

lease at not more than 20 or 30 acres, and usually leases are not issued 

of a greater size for reef mining. In recent years several very large 

projects have been undertaken, involving the working of alluvial 

deposits carrying enormous quantities of water, and deeply buried 

by basalt. The water problem has proved to be of great magnitude, 

and to encourage development specially large tracts have been 

included in one lease. Several leases comprise 2,000 to 4,000 acres, 

and one 10,000-acre lease is mentioned. Prior to 1897 there was no 

way of obtaining a mineral lease either initially or by consolidation 

with an area exceeding 640 acres. The act of 1897 (S. 29) provides 

for consolidation to any extent found desirable by the governor in 

council, but no action regarding minerals other than gold has apparently been taken under these provisions, as the chief clerk of the mines 

department states with great positiveness that it is impossible to 

procure by consolidation or otherwise government leases for minerals 

other than gold for more than 640 acres. From this it would appear 

that none of the coal operators in Victoria have thought it essential 

to obtain more than 640 acres in any one lease.

Labor conditions. These have been left entirely to the discretion 

of the administering officers, except in one early act, which was entirely inoperative, and the plan was early adopted of requiring each 

applicant to state, among other things:

(1) Minimum number of men to be employed when commencing 

operations, and subsequently when in full work.

(2) Amount of money proposed to be invested, and in what manner the land is to be worked.

Although the first applicant had a preference right to a lease, an 

application could be refused if the number of men and proposed 

development expenditure were considered inadequate. In the last 

regulation the absolutely discretionary force of this provision is made 

evident in the following words:

Leases shall be granted according to priority of application, unless there be reasons 

for a different course, of which the governor in council shall be the sole judge.

From the statements in the applications, the labor conditions and 

expenditure covenant inserted in the lease are determined. Thus 

every lessee is made responsible to some degree for the character of 

the conditions in his lease. This plan has also the practical advantage 

of enabling the development condition to be graduated during the 

early development period of the lease and when the mine is in full 

operation. Some idea of the usual requirements may be gained from 

the following examples:

Castkmaine district. September 5, 1859: Gold lease for ten years; area, 11 acres; 

sum to be expended, £500 in the first six months and £500 in the second six months; 

labor of 10 men constantly. April 28, 1860: Gold lease for ten years; area, 5 acres; 

sum to be expended, £500 in the first six months, £500 in second six months, and labor 

of 17 men constantly.

Ballarat district. September 28, 1859: Gold lease for ten years; area, 300 by 100 

yards; expenditure, £250 in first three months; £250 in nine months thereafter; 

machinery to the value of £2,000; labor, 10 men for nine months yearly.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 109

Sandhurst district. February 6, 1860: Gold lease for ten years; area, 1 acre; sum to 

be expended, £200 in first six months; £500 in twelve months thereafter; labor, 2 men 

for six months yearly.

Cape Patterson. May 22, 1861: Coal lease for thirty years; area, 320 acres; labor 

first two months 15 men, for remainder of period 50 men. June 22, 1862: Coal lease 

for thirty years; area, 640 acres; labor first three months 20 men, remainder of term 

100 men.

Lal Lal. June 26, 1863: Lignite lease for ten years; area, 79 acres; labor first six 

months 10 men, thereafter 25 men; expenditure £1,000.

Although the number of men to be required in any lease lies entirely 

within the discretion of the department, which does not consider its 

demands sufficiently fixed to ne published in the regulations, the 

tentative schedules on which it is now operating have not been 

changed for several years. The present minimum requirements in 

these unpublished schedules are as follows: In gold leases, for areas 

less than 24 acres, it averages one man for every 2 acres; for areas 

of 60 acres, one man for every 3 acres; for 150 acres, one man for 

about every 4 acres; for 300 acres, one man for every 5 acres; above 

which area it increases at the rate of 10 men for every additional 

100 acres. In mineral leases it ranges from one man for 2£ acres in 

leases of less than 10 acres to one man for every 16 acres in leases 

of 640 acres.

Prior to 1897, although the condition of development was always 

expressed in the lease in men, it was so expressed at the discretion 

of the governor. The act of 1897 made this practice binding by 

providing that the lessee must keep actually employed a certain 

number of men unless prevented by "unavoidable accident or during 

the execution of repairs." The act does not clearly define the powers 

of the minister or governor as to granting exemptions for any causes 

other than those just mentioned. It was under this enactment that 

the titles of several large companies, which had expended large 

sums in development, were placed in jeopardy by strikers. The 

injustice of this was so evident that it led to the passage in other 

Australian States of saving clauses in the case of strikes, and raised 

a storm of protest throughout Victoria. The act of 1904 therefore 

provided for the expression of the development condition in money 

per year, if the minister deemed it desirable, and for the imposition 

of a fine in lieu of forfeiture, but, as in Tasmania, made no provision 

for the reimbursement of the "reasonable expenses of the applicant 

for forfeiture." In leases where the development condition is expressed in money the act provides for exemption as a right at the 

rate of one-half year for every full year's excess of expenditure, pro^- 

vided that the total of such exemptions during the term of the lease 

shall not exceed two years.

This 1904 act also adds a clause in respect to forfeiture which 

touches a new idea. This clause provides that leases shall be forfeited only when the warden is convinced that the "applicant and 

persons associated with him (if any) will be able to provide the labor 

and capital necessary for the efficient working of the land;" the idea 

being that there is no use taking a piece of land away from one man 

and giving it to another if there is no prospect of the new holder being 

able to work it.

Renewals. No special provisions have ever been made in any of 

the Victorian acts regarding the renewal of leases such as are found 

in the acts of other States, but under the administration of the law 

such renewals have been granted as a matter of course.
110 ' MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Royalty. No royalty has ever been collected on gold except indirectly in the shape of an export duty between 1855 and 1863, which 

varied between Is. 6d. and 2s. 6d. per ounce. A royalty of 2 per 

cent on the gross value of the output was collected from all other 

minerals until 1890, apparently for no other reason than that there 

were not enough people interested in the development of such minerals 

to insist on its abolition, as had been done in the case of the gold. 

Victoria on the whole appears to have grudgingly yielded only that 

which was positively demanded.

MINER'S RIGHTS AND CLAIMS.

The principle that no one could acquire any legal claim to any 

portion of public lands without special authorization, which was first 

proposed as a means of assisting in the preservation of order, resulted 

in a document which was called a " license to mine." Such a license 

restricted to gold mining was issued on payment of 30s. per month. 

In 1855 this was renamed a "miner's right" and was issued for 

twelve months on payment of £1. In the act of 1865 the period 

was extended to not exceeding fifteen years, and the rate fixed at 5s. 

per year. In 1897 it was finally appreciated that the distinction 

which had before that time been made between gold and other 

minerals, whereby the operation of a miner's right was restricted to 

gold mining, was quite artificial, and it was provided that a miner's 

right should cover all minerals, and the fee was reduced to 2s. 6d. per 

year.

The size of claims, prospecting areas, and other holdings which 

could be taken up under a miner's right, the number of claims which 

could be taken up under one miner's right, the number of miners' 

rights which one person could hold, the conditions of amalgamation, 

the labor conditions, and the conditions of forfeiture were left entirely 

in the hands of the local mining boards, and differing practices in 

regard to these details have been effective in different portions of 

Victoria. There is no provision in Victoria requiring the holder of a 

claim to take out a lease, but the conditions of forfeiture and the 

labor conditions are usually less severe in the leasehold, and companies 

generally prefer that form of tenure. A great amount of development has, however, been done in Victoria on claims by individuals. 

In 1891, the last date on which the mines department published statistics of this sort, 42,162 acres were held as claims and only 36,982 

as gold leases. Since that time the area held as claims has greatly 

decreased, while that held under lease has increased. Prior to 1897, 

as to minerals other than gold, such prospecting as was deemed desirable prior to making application for lease was done under "mineral 

licenses," which were issued for specified areas not exceeding 640 

acres at from £1 to £10 per area per year.

MINING BOARDS.

One of the things demanded by the rapidity of the gold development in California and Australia, and by the absolute want of any 

comprehensive mining laws, was the formation of local bodies to 

deal, and deal at once, with the many questions of procedure which 

were constantly arising with the progress of mining. In California 

such bodies, in the absence of any law, arose automatically, and
MINING LAWS OP AUSTEALIA AND NEW ZEALAND. Ill

it was from the by-laws and regulations that these self-constituted 

bodies made that the present American law has been derived. In 

both Victoria and New South Wales such bodies were created by 

law.

As first constituted in Victoria in 1855, these local bodies had 

judicial powers and were called local courts. Each local court was 

composed of a chairman appointed by the governor and nine holders 

of miners' rights elected by the miners of the district. In 1857 the 

judicial powers of these local bodies were turned over to the wardens 

and the newly established courts of mines, and the bodies were 

reorganized under the n.ame of mining boards. Under this reorganization they were each composed of 10 members, elected yearly by the 

miners of the district holding miners' rights. They were empowered 

to frame by-laws and regulations governing all the details of holdings 

under miners' rights. In 1865 it was provided that only 4 members of the board should retire each year, and 7 districts were proclaimed, each having a mining board of its own.

In the early formative period, when the industry was developing 

with great rapidity, and when there was neither law nor precedent, 

there can be no question of the necessity of such local boards, but after 

this period there ceased to be any real reason for such organizations, 

and they became a superfluity which in some cases amounted to a 

hindrance. In Victoria the mining boards still exist, although they 

have clearly long outlived their usefulness. Many attempts have been 

made to abolish them and to codify the separate by-laws, but the 

political influence exercised by the boards has thus far prevented any 

effective action. The royal commission on gold mining recommended, in 1891, "that mining and prospecting ooards as at present 

constituted be abolished, and that bodies to be called 'mining councils' be established."

In New South Wales similar boards were created under the same 

conditions, but they have now been abolished, and in most of the 

other States the conditions never existed which required such local 

bodies. The first local mining boards in Victoria were organized 

under a general mining law, and while they created certain minor 

details of the law they did not create the law to the same degree 

as in the United States. Such provisions as they made were of 

local application only, and while special provisions were made in 

some cases, these special provisions were abandoned as soon as litigation ensued, and did not become incorporated in the very body 

of the mining law as did the special provisions of such local bodies 

in America regarding "extralateral rights."

The extralateral right doctrine which was in force in New South 

Wales between 1858 and 1866 does not seem to have been adopted 

in Victoria. Victoria, however, developed another special feature 

of mining law which in some ways parallels the extralateral right. 

This "frontage claim system" was originated in Ballarat to solve, 

in a measure, certain local difficulties which presented themselves. 

As the auriferous bearing channels deepened and passed beneath 

flows of basalt great difficulty was experienced in following them, 

and to save useless expenditure the plan was devised of authorizing 

claims of a definite length along the supposed course of the "gutter," 

but of indefinite width. Beginning at the last known point of discovery on the "gutter" arcs of circles were described, so as to include 

any possible course of the "lead," and with such radii as would give
112 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

to each portion between two adjacent arcs a width equal to that 

allowed for a claim. These rainbow-shaped claims were designated 

frontage claims, and were held without the usual development 

requirement until the course of the ''lead " was determined. As soon 

as this was fixed the claims were limited laterally between the bounding arcs. This plan resulted in a stimulating of development for a 

time, but as work progressed the system became so complicated (for 

the leads branched, cross leads were encountered, and one set of 

frontage claims overlapped another) that it led to apparently interminable litigation. The system was therefore abandoned in Ballarat 

on September 7, 1866. R. Brough Smyth, in 3umming up the results 

of this system in 1869, says:

The rights acquired under this system remain, but the mining companies are 

striving earnestly to procure large areas under lease from the Crown; and it is not 

too much to say that, wealthy as Ballarat is, it would have been immensely more 

prosperous if, instead of the frontage claims, the local bodies had in the first instance 

granted sufficiently large areas, with well-defined boundaries, to persons willing to 

incur and able to fulfill reasonable obligations as to the employment of labor and 

the investment of capital.

ENCOURAGEMENT OF MINING.

Large rewards were offered and paid by Victoria for the discoveries 

of payable gold fields. A reward of £1,000 was offered for the discovery of a coal field, and was awarded by a parliamentary committee 

to the first man to prove the coal deposits at Cape Patterson. Special 

gold prospecting claims of 1 mile square were allowed at distances 

over 5 miles from the nearest payable ground, and a reward lease of 

not exceeding 100 acres granted to the discoverer of gold in such 

areas.

The Government early initiated the plan of assisting development 

by drilling on the public lands, and while only fragmentary data is 

at hand showing the magnitude of this work, something of its scope 

may be gained from the fact that in 1860 tenders were asked for drilling for coal in several widely separated parts of the colony. In the 

year 1890, a total of 38,138 feet, of which 7,978 was for coal, was 

drilled at a cost of £27,716, and in 1891, 41,856 feet, of which 14,371 

was for coal, at a cost of £23,057. It is the opinion of mining men 

throughout this country that this drilling has done a great deal to 

promote development, and in the tracing out of auriferous leads, 

buried by several hundred feet of basalt, has yielded results which 

have paid the country many times over.

In 1896 the proceeds of the sale of £140,000 of treasury bonds was 

voted to be used in "promoting mining enterprise," and the miningdevelopment act of this year outlines the following ways in which 

this money was to be spent:

(1) Advances to companies.

(2) Construction of roads and trails.

(3) Establishment of government testing works and batteries.

(4) Construction of dams and races.

(5) Advances to miners for prospecting.

(6) Boring for gold and coal.

Additional sums have been voted from time to time, and, without 

including funds which have been expended out of the regular appropriations of the department, the sum of £298,489 was spent on these 

lines between 1S97 and 1906.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 113

EXTENT OF OPERATIONS UNDER MINING LAW.

It is not possible to obtain recent data regarding the extent of the, 

operations under the Victorian mining law. The mines department 

has not published since 1891 any data regarding the total area covered by leases in force at any given time or regarding the number 

of miners' rights in force or the areas held under such miners' 

rights. On December 31,1891, there had been issued since the commencement of gold mining in the colony 17,639 gold leases, covering 

an area of 345,473 acres; 42,162 acres were held as claims; 36,982 

acres of gold leases on crown lands were in force, and 36,036 acres 

of mineral leases, of which 15,899 acres were for coal.

Some idea of the extent of the operations in recent years may be 

gained from the following table giving the number and area of leases 

issued during each of the past four years:

Table showing area and number of government mining leases issued in Victoria, 1903 to

1906, inclusive.

Gold mining leases: 

Number. ..........................................

Mineral leases:

1903.

659

41,882

16

4,674

46, 556

1904.

620

31,873

29

6,312

38, 185

1905.

656

43,043

14

2,710

45, 753

1906.

680

81,367

35

3,179

84,546

THE RESULT OF TEST OF GOVERNMENT LEASEHOLD.

Government leasehold, as a method of dealing with minerals, has 

thus been tried in Victoria for over fifty years, and mining men are a 

unit in indorsing it as a better method of promoting mining development than freehold. This assertion is based on the statements of the 

following gentlemen: Mr. Ager Wynne, member of the House of 

Representatives, a prominent mining lawyer and capitalist of Melbourne, and member of the Victorian Chamber of Mines; Mr. F. G. 

Hughes, vice-president of the chamber of mines, a gentleman intimately associated with many large mining concerns; Mr. A. H. 

Merrin, former president of the chamber of mines, consulting mining 

engineer, and now chief mining inspector of Victoria; Mr. Henry 

Gore, a prominent mining engineer, and a leading member of the 

Victorian Chamber of Mines; and on the statements of the following 

leaders of the different political factions of Australia: Hon. Alfred 

Deakin, present prime minister of the Commonwealth; Hon. Joseph 

Cook, leader of the opposition (conservatives and antilabor) in tne 

House of Representatives; Hon. John Christian Watson, labor leader 

in the House of Representatives, and premier of the Commonwealth 

from April to August, 1904; Hon. William Hill Irvine, former 

premier of Victoria, and leader of a section in the House of Representatives, which, while antilabor, does not sntirely agree with the 

opposition. Many of these gentlemen are intimately connected with 

mining, and all are closely in touch with the sentiment of the country 

in this matter, and they affirm that the mining interests of Australia 

unanimously indorse leasehold as a better method of promoting

16014° Bull. 505 11 8
114 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

mining development than freehold. Clearly, the matter of government leasehold is not a party question; indeed, in Australia it is 

..apparently not a "question" at all.

The royal commission on gold mining, appointed in 1899 to inquire, 

among other things, into the best methods of promoting mining development in Victoria, examined about 500 witnesses and found no man 

who recommended freehold. This commission, including prominent 

mining men, capitalists, and members of Parliament, instead of recommending freehold as a means to this end, states:

The great bulk of evidence throughout the whole course of the inquiry bears out the 

opinion that no greater mistake can be made by the State than that of alienating 

mining lands. There is no necessity whatever for disposing of such areas in fee simple. 

No use to which the land can be applied requires that it should be sold.

This recommendation is made in a country which has entirely 

repudiated the doctrine of the nationalization of the land in an agricultural sense, and by some of the very men who have been prominent 

in this repudiation. The attempt has been made in several of the 

Australian States to initiate a system of not alienating agricultural 

lands. In some States this has assumed the form of a perpetual lease, 

but in all the States, including New Zealand, this doctrine, after trial, 

has been abandoned. The policy of the nonalienation of mineral 

lands, the practice of reserving to the government all minerals, and 

of working minerals on state leasehold, which is now binding on all 

Australian States, and is heartily indorsed, is thus not a socialistic 

dogma or abstract doctrine of political economy, but an institution 

founded on actual trial.
CHAPTER VI.

THE DEVELOPMENT AND PRACTICAL WORKINGS OF THE MINING 

LAW OF NEW SOUTH WALES.a

INTRODUCTION.

New South Wales, with but slightly less than the combined areas 

of Montana, Wyoming, and Idaho, and a population three times 

that of all these States, produced in 1905 approximately 50 per cent 

more lead, about the same amount of gold and coal, one-half the 

amount of silver, and one-fifteenth the quantity of copper. In 

addition it produced a million and a quarter dollars worth of tin 

and a million and a half of zinc.

To the student of the development of mining and mining law in 

Australia, New South Wales is of interest as the first State in which 

commercial mines were opened, as the first to export minerals, as 

the State in which the discovery was made which resulted in the 

great Victoria and New South Wales gold excitement, which episode, 

as has been pointed out in a previous report, marks the beginning 

of present Australian mining law and practice. It was, furthermore, 

the first to provide by law lor the reservation of all minerals in certain grants, but it was the last to fully prevent the alienation of 

minerals. As the first Australian State in which commercial mines 

were opened, it was naturally the leader in total mineral production. 

In this premiership it was replaced about 1844 by South Australia 

through the opening of the Kapunda and Burra Burra copper mines. 

On the discovery of gold in 1851 it surpassed South Australia, but 

was second to Victoria. Regaining the lead in the eighties through 

the decline of the gold production in Victoria, it was replaced in the 

early nineties by Western Australia, but in 1906 again became first 

and has to-day the largest mineral production in Australasia. The 

most important contributing factors in this result have been the 

yields of coal and silver-lead.

To the student comparing and contrasting the mining laws of the 

several Australian States with that of the United States, New South 

Wales is of interest because it affords a greater number of points of 

resemblance. These include not only certain details of the laws 

whose origins are similar, but sordid and unwelcome resemblances 

in the administration involving transactions which if not of criminal 

intent were certainly not for the general good of the country. These 

similarities include the following points:

(1) In both Australia and America the essential features of the 

present mining law had their origin in large discoveries of gold.

(2) These discoveries found each region without any fixed mineralland policy and without any mining law.

a Australian Mining Law Report No. 5, forwarded to President March 23, 1908.

115
116 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

(3) Laws were then developed based on the fundamental principle 

which spontaneously asserted itself in each region, that if one man 

did not develop a mineral property another should be permitted to 

do so, which is but another way of saying that bona fide development is the essential condition for the retention of right to minerals.

(4) Soon after the opening of the fields the doctrine that the owner 

of the apex of a reef had a "right" to the reef throughout its extent 

was adopted both in the United States and New South Wales. This 

doctrine was promulgated in the New South Wales regulations of 

1858, and thus New South Wales was the first country to incorporate 

the extralateral right doctrine in its national mining law; the United 

States did not officially recognize it till eight years later, or in the 

very year and month that New South Wales abandoned it, because 

it had been found to lead to litigation.

(5) Both New South Wales and the United States provided for 

the sale of mineral lands after a certain amount of development work. 

This development work in New South Wales might extend over 

three years under the original law, and over five years as amended, 

and must amount to £2 per acre; in the United States it might 

extend over five years and must amount to approximately $25 per 

acre for lode claims and $3 for placer claims. The price in New 

South Wales was £2 per acre, or twice that of ordinary land; in the 

United States it was $2.50 to $5 per acre, or, generally, from two to 

four times that of ordinary, land. In New South Wales the law provided that ordinary agricultural purchases should contain a reservation of all minerals; in the United States the provision was that 

"all lands valuable for minerals shall be reserved from sale except 

under the mineral-land laws."

(6) The administration of this law in the United States has been 

such that large tracts of valuable mineral lands have been sold under 

other than the mineral-land laws. In New South Wales, where all 

gold-bearing lands were to be reserved from sale, such lands were in 

many cases sold by the Land Office after it had been proved that 

they contained payable gold, and although it was afterwards sustained at law that the right to the gold did not pass to the purchaser, 

the gold was at that time considered, in actual practice, as so belonging.

(7) A last point of resemblance lies in the fact that New South 

Wales has never waived its right to the precious metals, neither has 

the Government of the United States.

DEVELOPMENT OF MINING AND OF THE GOVERNMENT POLICY IN 

REGARD TO THE ALIENATION OF MINERALS.

The establishment of a convict colony in January, 1788, marks the 

beginning of the settlement of New South Wales. As early as September of that year the governor reported that it was supposed that 

the country contained iron, tin, and silver, but that ne gave no 

encouragement to search for these minerals, as he believed their discovery and development would prove a curse under the then existing 

conditions. The transportation of convicts to this colony was 

abandoned in 1840, but the policy of not encouraging the development of metallic minerals was continued, and though small gold 

discoveries were reported in 1839 and in the early forties, the gov-
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 117

ernment in each case requested the suppression of the information 

because of possible "serious consequences, which, considering the 

condition and population of the colony, were to be apprehended." 

While this policy in a measure retarded development, it did not have 

the overshadowing importance in this respect that is often attributed 

to it. In Western Australia, where there was no such attempt at 

suppression, there was a similar slow development, and the principal 

cause seems to have been the small population and, especially, the 

lack of persons skilled in mining operations. With the return of 

miners from California in 1851 and the application to the Australian 

deposits of the knowledge gained there, gold fields equal in magnitude 

to those in California were at once discovered and another world-wide 

gold rush initiated.

On the other hand, the government favored and encouraged the 

development of coal. Coal had been discovered in 1797 in both the 

Newcastle and Illawarra districts, and these are to-day the most 

important coal-producing regions in Australasia. The Newcastle 

region offering the best harbor facilities and, being nearer Sydney, 

was at once selected by the government for a branch penal establishment, and experienced men, who had been coal miners in England, being found among the convicts, mines were opened. Coal was 

first exported in 1801, and the mines continued to be worked by the 

government with convict labor until 1830.

During this period more than 3,000,000 acres of land was disposed 

of in the region within the boundaries of the present State of New 

South Wales. Some of these lands were sold at a low price per acre, 

but the larger part was given as compensation for the maintenance 

of prisoners free of expense to the government. As the prisoners 

were in effect bond servants, this provided an attractive form of grant. 

Indeed, a company was formed in England in the early twenties under 

the name of the Australian Agricultural Company to take advantage 

of this provision. This company was incorporated by the act of 

Parliament of June 21, 1824, and was promised a grant of 1,000,000 

acres, which was issued the following year.

In 1825 the Colonial Office at London made a tentative arrangement 

with the Australian Agricultural Company to grant a lease of the government coal mines at Newcastle for thirty-one years on payment of 

a portion of the output, to be fixed at not less than one-twentieth or 

more than one-fifteenth, at the option of the government. On investigation it was found that the charter of this company did not permit 

its entering into such a lease, and on July 31, 1828, the British Government agreed to give to the company a free grant of 2,000 acres 

of coal land, including the Newcastle coal mines, together with the 

exclusive right to mine coal in New South Wales, for a period of 

thirty-one years; all this on the sole condition that the company 

supply the government with coal at cost. After various delays the 

mines were turned over to the company in 1830 and the conditions 

outlined in the letter of the governor dated June 25, 1830, included 

the statements that the government would render all possible assistance in the way of convict labor, and that no land would be granted 

by the government for thirty-one years without a reservation of all 

coal and coal mines. The lands regulations of July 1, 1831, therefore 

contained the statement that in all grants the Crown would reserve 

to itself "all mines of gold, silver, and coals."
118 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

The practice in regard to mineral reservation in deeds of grant 

was very irregular in the early_ history of New South Wales. In 

general no reservations were inserted and while Governor Macquarie (1810-1821) is reported to have caused the insertion of a 

reservation of all minerals in some grants, in many of his grants 

there are no reservations. The intention of the government to reserve gold and silver was first announced in the regulations of August 

21, 1828. No data are at hand showing what prompted the making 

of the announcement at this time, though it is suggested that the 

finding of gold by one of the government land surveyors several years 

before might have been a contributory factor. On the other hand, 

it may have been but the foreword of the policy which was then 

growing in favor in the colonial office in London, and which led to 

the general insistence in 1831 that all deeds of grant should thereafter contain a reservation of all gold and silver. In the early part 

of that year instructions were issued on this point to the governor of 

British North America and the governors of all the colonies then in 

Australasia New South Wales, Van Diemen's Land (Tasmania), and 

Western Australia.

During the next few years a growing tendency was evidenced to 

change this policy, and when the colony of South Australia was 

established, in 1836, no attempt was made to enforce this doctrine. 

This matter was more or less before the colonial office in the next few 

years, and one of the first questions propounded to the colonial land 

and emigration commissioners by the secretary of state in 1840 concerned this point of mineral lands. In reply the commissioners 

announced the doctrine "that deeds of grant should convey to the 

purchaser every thing above and everything below the surface." 

Neither did they favor any change in the ordinary price merely 

because lands were "known or supposed to contain valuable minerals," but suggested that the governor might, "if some very remarkable case occurred of decidedly rich mines for which competent 

parties were willing to offer high terms, deal with the case or such 

mines specially, and not part with them to the first offer at the ordinary price of common land. The proper course in such instance 

would be to afford a sufficient opportunity for competition and then 

dispose of the mines." Lord John Russell therefore announced this 

doctrine in a dispatch to the governor of New South Wales, dealing 

with the Port Philip district, which was afterwards made the separate 

colony of Victoria. This provision thus became applicable at once 

only to the Port Philip district, but it was made general for the whole 

colony, which at that time included Queensland as well as Victoria, 

by the regulations of March 1, 1843.

These regulations, which were the first issued under the imperial 

waste lands act of 1842, provided that 

Deeds of grant from the Crown will be issued to the purchasers conveying to them 

all that is above and all that is beneath the surface, except that coal will be reserved 

until the year 1862 in the districts to which the privileges of the Australian Agricultural Company extend, but not elsewhere; precious minerals or metals may be also 

reserved if it be known that they greatly abound in any district but not otherwise. 

In town allotments coal will always be reserved.

When, on the discovery of valuable mines in South Australia, the 

colonial office concluded it was desirable to reserve one-fifteenth of 

all metals and metalliferous ores in all deeds of grant, they referred 

the matter to the governors of the several colonies. In Western
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 119

Australia and South Australia this plan was adopted with the result 

that it proved immensely unpopular and was abandoned in 1848. 

The governor and council of New South Wales replied that no mines 

of metal had been discovered in that colony and that if any should 

be found to exist the existing regulations would suffice to enable the 

government to reserve minerals. In 1846, in reporting this result 

the colonial land commissioners add: "The lands therefore in New 

South Wales where no valuable minerals have hitherto been discovered continue to be sold with all above and all beneath the surface, in like manner as they were sold in South Australia up to the 

time that such minerals were found to exist in great abundance."

About this time several attempts were made to work coal in New 

South Wales by parties other than the Australian Agricultural Company, and when these operations were stopped by the application of 

this company the matter was at once taken up by the legislative 

council. In the midst of the investigation of this monopoly in 1847 

a dispatch was received from the secretary of state announcing that 

an arrangement had been entered into between the colonial office and 

the Australian Agricultural Company, whereby "all existing privileges on the part of the company and the government are to be given 

up without entailing any charge upon the colonial funds." The 

existing privileges were interpreted as including, on the part of the 

company, the exclusive privilege to mine coal until 1862, and, on the 

part of the government, the right to coal at cost. .This left the company with 2,000 acres of the pick of the coal land of the colony for 

the development of which they had been supplied by the government 

between 1830 and 1841 with 1,012 convict laborers.

With the abolition of this monopoly numerous coal mines were 

opened, and applications were soon made for the waiver of the reservation of coal contained in grants after 1830. This request was 

promptly acceded to, and in 1850 the governor announced:

Her Majesty, being desirous of promoting the welfare of her subjects, had been graciously pleased to direct that all such reservations and the rights incident thereto 

shall be abandoned * * * with the exception alone of such land as may be comprised within any city, township, or village.

Had an application been made at this time for the waiver of all 

rights to precious metals it would doubtless have been granted in 

much the same way that it had been in South Australia two years 

before, but at this time only coal was of importance in New South 

Wales. The following year gold was discovered, and as a necessary 

expedient for the preservation of law and order Governor Fitzroy 

on May 22, 1851, asserted by proclamation the common-law right of 

the government to the gold in all lands, whether alienated or not, and, 

if alienated, whensoever alienated, and provided for the working of 

the gold only on payment of a license fee.a

. This was the first act of gold-field law in Australia, and the present 

mining law may be said to date from this time. Governor Fitzroy's 

proclamation and the accompanying regulations were repeated by

o The wisdom of this provision has been already pointed out in the report on Victoria. 

The local attitude on this point of the license fee is shown by the following extract 

from the report of the select committee on the gold-fields management bill in 1853: 

"All, however, agree that the licensing system, as a mere measure of police, must 

be kept up to some extent in order to maintain due supervision over the bad characters at the gold fields and for the safety and protection of the diggers themselves."
120 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the governor of Victoria on August 15, 1851, and the proclamation 

with somewhat amended regulations by the governor of Tasmania 

on August 5, 1852. But while New South Wales thus took the lead 

in the beginning, the much larger and more rapid developments hi 

Victoria soon made its mining law of more importance because based 

on greater experience; and, although the early acts and regulations 

of New South Wales differed from those in Victoria and the more 

rational administration avoided the disturbances that marked the 

first few years in the latter State, the New South Wales mining act 

of 1857 was to a very large degree but a copy of the Victorian enactment of 1855.

Under the land laws existing at the time of the discovery of gold 

the government had no power to exempt auriferous lands from sale; 

the governor's power of reservation was restricted to lands for 

"puolic purposes/' and mining was not then defined as a public purpose. The government could, however, partially accomplish the 

same result by refusing to survey the land in question and by refusing 

to offer it for sale. In this way all alienation except by means of 

preemptive selections could be prevented. The preemptive right 

enjoyed by the pastoralists usually amounted to 640 acres for each 

"run," and on the discovery of gold these preemptive rights were utilized to procure auriferous lands, though not so extensively as in 

Victoria.

The power to proclaim gold fields and to subject the land therein 

to special provisions was not provided for until 1861. The gold 

fields act of that date empowered the governor to proclaim gold 

fields, and the lands alienation act, which was the first lands act 

to be passed after the establishment of responsible government in 

1851, further provided that nothing in the act "shall be held to 

require the sale of any land that may contain auriferous deposits." 

It further provided for conditional purchases on gold fields, but 

with the reservation of the right of free search for gold by persons 

properly authorized and of the right of resumption if the land was 

found to be auriferous. This provision was the forerunner of the 

mining on private property acts which followed many years later.

In practice, however, the delay of the land officials in proclaiming 

gold fields permitted considerable areas of auriferous lands to be 

taken up imder preemptive rights and free selection. This feature 

called forth the following comment from the gold fields royal commission of inquiry, appointed in 1870:

Great complaints have been made to your commissioners during the various stages 

of their investigation upon the subject of the delay which takes place in proclaiming 

gold fields even after they have been established beyond question as being payably 

auriferous. The evidence we have received upon this point clearly makes out that 

not infrequently prospectors have been watched by knowing and designing persons 

who intended to profit by the discoveries of others, and to invoke the assistance of 

the free-selection clauses of the lands act in furtherance of their purpose. When, 

then, the prospectors have succeeded in finding payable gold in a new field, these 

watchers have at once free-selected the land and have been enabled, in consequence 

of the delay of the lands office in acting upon the prospector's report, to become 

possessed of a private gold field. That these selections have not been for bona fide 

agricultural purposes is only too manifest; indeed, in some instances the selectors 

have not hesitated to avouch that the gold and not agriculture was their object. So 

that where the land has really been rich, these easily constituted private proprietors 

of gold fields have reaped a fine harvest, not of wheat or of any other grain, but of 

money paid for licenses to mine on their land; while, on the other hand, where the 

gold yield has soon run out, the deposit has been forfeited and the selection abandoned without the slightest pretense at agriculture.
MINING LAWS OF AUSTBALIA AND NEW ZEALAND. 121

The suggestion that the lands department would grant lands in a 

known gold field before it would proclaim the same a gold field finds 

a parallel in certain transactions of officers of the American Land 

Office, wherein when a man offered to buy land as coal land at $20 

per acre and another offered to buy it as agricultural land at $2.50 

per acre, the land officials accepted the application of the agricultural 

claimant. Truly the administration of the lands office in New South 

Wales has approached the American rather than the Tasmanian 

standard of public efficiency.

The mining act of 1874, which was to a large degree based on the 

report of this commission, partially remedied this by providing that 

a free selection" made not more than three months before the proclamation of a gold field should be subject to the same reservations 

as if it were a conditional selection on a gold field. The mining 

amendment act of 1884 finally defined "mining purposes generally" 

and "mining for any mineral" a "public purpose," and thus empowered the governor to make absolute reservations of such lands. This 

provision was incorporated in the lands act of 1884 (s. 101) and is 

still in force.

As to lands containing minerals other than gold, they were, until 

1861, generally sold in much the same way as other lands. By the 

imperial order in council of March 9, 1847, the governor was empowered to have land assessed by valuers if it "possesses peculiar acfvantages * * * which would make it fit that a higher price should 

be paid," but this provision does not appear to have been utilized 

to any great extent in connection with minerals. The crown lands 

alienation act of 1861 provided for the sale of land for the "purpose 

of mining other than gold mining" at £2 per acre on condition that 

a like amount be expended in mining development. Ordinary conditional purchases carried with them conditions of residence and 

development; the price charged was only £1 per acre, but such 

grants contained a reservation of all minerals. While the intent of 

the American laws of this period was clearly the same, the wording 

under the rulings and administration of the land office, opened the 

door to the acquisition of large areas of valuable mineral land under 

the agricultural land laws. The wording of the New South Wales 

law avoided a possibility of this sort of mineral land fraud, but the 

lands department at once undertook the "liberalization" of the law. 

The first regulations provided for the conversion of a mineral lease 

into a mineral conditional purchase, and the regulations of October 

13, 1865, for the conversion of an ordinary conditional purchase into 

a mineral conditional purchase.

In 1884 the people finally recognized that there was no essential 

difference between gold mining and other mining, so far as the 

interests of the State were concerned, and concluded that, if the 

interests of the people could be better protected by the state control 

of gold mining, which had been demonstrated by over thirty years' 

trial, they would be conserved to a greater degree by the control of 

all minerals. The lands act of 1884, therefore, contained the provision: "All grants of land issued under the authority of this act shall 

contain a reservation of all minerals in such lands." This simple 

regulation was, however, curtailed by the addition of a proviso, whose 

origin is evident, to the effect that the "right'' of any holder of an 

ordinary conditional purchase under the act of 1861, which was
122 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

repealed by the act of 1884, to convert the same into a mineral conditional purchase should not be affected. No such right ever existed 

at law, and when this became evident, as it did in the next few years, 

there resulted the crown lands titles and reservations validation act 

of 1886 and the conversion into mining conditional purchases validation act of 1888. These acts gave those holding land acquired by 

conditional purchase prior to 1884 the right, for an indefinite period, 

to convert to mineral holdings and to relieve the situation of this 

time-uncertainty it was provided in the mining act of 1906 that as to 

minerals other than coal this right of conversion should absolutely 

lapse on December 31, 1909, and as to coal on December 31, 1913. 

The "right" of a mineral lessee to convert his holding into a mineral 

.conditional purchase received no consideration in this connection 

and there is no good reason why one should have fared better than 

the other. It looks very much as if the legislators said, in effect: 

"This principle of reserving minerals is excellent; it is just what is 

needed for the good of the country; but we and our friends own 

certain lands and we will therefore pass a law which, while asserting 

the desired principle, will enable us to make good on this point."

There have thus been shown in the development of the government 

policy in regard to the alienation of minerals the following stages:

From settlement of colony in 1788 to 1861. In sale of lands, no distinction made 

between mineral and nonmineral lands, except that after 1847 the government had 

power to have lands specially assessed if possessed of "peculiar advantages."

From 1788 to 1828. Generally no reservations. Governor Macquarie (1810-1821) 

is reported to have inserted a reservation of all minerals in some grants, but in many 

of his grants there are no reservations.

From 1828 to 1880. Reservation of gold and silver.

From 1830 to 1843. Reservation of gold, silver, and coal.

From 1843 to 1847. Reservation of coal only; grants with this exception held to 

convey everything above and below the surface.

In 1850. All former reservations of coal abrogated.

In 1851. Government asserts ownership of gold in all lands, whether alienated or 

not.

From 1861 to 1884. Lands containing minerals other than gold sold for £2 per 

acre with conditions of development. Ordinary conditional purchase grants contained a reservation of all minerals, but by regulations of 1865 a conversion to mineral purchase was permitted. Mineral lessees could in like manner for a time convert their holdings to mineral purchases.

From 1884 to date. All new grants contain a reservation of all minerals; but the 

conversion of C9nditional purchases made prior to 1884 to mineral conditional purchases is permitted until December 31, 1909, as to minerals other than coal, and 

until December 31, 1913, as to coal.

TERMS AND CONDITIONS OF LEASES.

In New South Wales the gold digger's license and miner's claim 

were initially regarded as, at most, but a make-shift arrangement to 

cover the necessities of alluvial gold digging, where persons without 

expensive tools or equipment could recover the gold, where it was 

impossible to supervise the work, and where one person could often 

work to as much advantage by himself or with a few chosen mates 

as in conjunction with others. The first gold claims in the American fields were based on much the same idea, and traces of this origin 

are visible in the present American mining law. Rock or quartz 

mining, however, was held to be an entirely different thing, since it 

involved the formation of companies with sufficient capital to purchase the necessary machinery for mining and reduction and hence
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 123

required larger areas. The regulations of August 5 and October 7, 

1851, which were the first comprehensive mining regulations promulgated in Australia, therefore provided that gold-digging licenses 

and the claims thereunder should be restricted to alluvial mining, 

and, while fixing the area of alluvial claims at not exceeding 20 by 

20 feet for one man, provided for holdings of slightly over 18 acres 

for reef mining. Those undertaking to work reef deposits were 

required to file bond for £2,000 to guarantee the payment of the 

royalty, which was fixed at 10 per cent if the area involved was 

government land, and 5 per cent if private land. The area 

allowed was increased in November, 1851, to 160 acres and the royalty was reduced in 1853 to 3 per cent. The influence of these enactments are shown in the Victorian Regulations of 1853 in which the 

area allowed is 160 acres and the royalty is fixed at 5 per cent. In 

1857 New South Wales fixed the rental on gold leases at £5 per acre 

per year and in December, 1858, Victoria followed this lead. After 

this time New South Wales ceased for many years to be a leader in 

mineral land legislation and borrowed from the acts and regulations 

of other states. Indeed, the mining policy of the Government between 1857 and the establishment of the Mines Department in 1874 

was without very much stability. The drafting of the regulations 

and the administration of mining matters in general appear to have 

fallen into the hands of people in no way competent to deal with the 

matters involved. The Gold Fields Royal Commission of Inquiry 

reported as follows on this point in 1871:

With regard to the regulations in existence at the time your commissioners were 

engaged in taking evidence, it is a fact deduced in evidence before us that not one 

of the officials, either in the office in Sydney or on the gold fields, knew at all from 

what source those regulations emanatea. The three gold commissioners themselves 

not only declined to be in any way responsible for them, but have expressed their 

disapproval of them; while Mr. Rich, whom we examined as being the gentleman in 

the Sydney office who had had most to do with gold-mining departmental affairs for 

some years, also stated that he knew nothing whatever of the origin of the regulations. 

It is not to be wondered at that a code of regulations framed under such auspices 

without a parent bold enough to acknowledge his offspring should fail to meet the 

adequate requirements of an interest such as gold mining. Nominally and theoretically, no doubt, the minister for lands is the framer of the regulations; but it is not 

to be supposed that, under a system such as ours, a minister for lands should possess 

the technical knowledge required.

As to minerals other than gold, the first leasing provisions were 

issued in May, 1855, and dealt with coal leases in the region of Newcastle. These were almost immediately replaced by an imperial 

order in council based on the South Australian mineral regulations 

of 1851. These, originally prepared by the executive council of 

South Australia without authority at law, had been submitted to the 

Home Government for approval. The Home Government after 

approving them for South Australia considered them so satisfactory 

that it passed them on to the neighboring colony in the form of an 

order in council. What leases were issued under these regulations 

and under the gold-field regulations of the same period is not known, 

but the record of leases granted under the 1861 acts, which were 

framed on the same lines, and the leases granted during the same 

period in South Australia and Victoria under the same conditions 

indicate that a number of leases were probably issued.

Under the gold-fields act of 1861, 102 gold leases were issued within 

the first year after the act became operative; the first lease-bearing
124 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

the date January 4, 1862. Under the mineral-leases section of the 

crown-lands occupation act of 1861, 54 leases were taken out in the 

first year, and of these 38 were for coal covering a total area of 10,308 

acres. Much coal land was purchased, but the fact that persons took 

out mineral leases when they could have purchased the freehold at a 

nominal price suggests the similar demonstration in South Australia. 

This is a significant feature of the mineral-land history of Australia, 

clearly demonstrating, as it does, a demand among mining interests 

for mineral leasehold, and finds an analogy in the United States in 

the large percentage of development that is undertaken on leases 

granted by private interests. In New South Wales it was for a time 

provided that the holder of a mineral lease could convert his holding 

into a mineral purchase, but while after a time this privilege was 

withdrawn the change in no way affected the demand for mineral 

leases, even though it was until 1884 possible to purchase the freehold initially.

The official records show that there are now in force 4 coal leases, 

for 320 acres each, under the crown-lands occupation act of 1861. 

This means that these lands have been held all this time at a rental 

of 5s. per acre per year and with a fine on renewal of not less than 

£2 10s. per acre every fourteen years, and must be considered as a 

very extreme indorsement of government leasehold, since the freehold could have been purchased at the time these leases were first 

-issued at £2 per acre. A still more striking example is found in the 

famous Broken Hill mines which have distributed in dividends over 

£14,000,000. These properties are held under government lease and 

are now paying to the Government from 1 to 1£ per cent on their net 

profits in addition to the nominal annual rental of 5s. per acre. 

These leases were procured at a time when the freehold of the property could have been purchased for £2 per acre. Certainly this does 

not lend weight to the suggestion that government mineral leasehold 

retards development or that mining interests necessarily demand 

freehold.

The terms and conditions under which mining leases have been 

granted at different times in New South Wales are summarized in 

the following table:
MINING LAWS OF AUSTEALIA AND NEW ZEALAND. 125

Terms under which government mining leases have been granted at different times in New

South Wales.

Term of years: 

Gold......................

Period for which renewable:

Maximum area in acres: GoldAlluvial............... 

Reef.................. 

River bed. ............

and coal.

Rent per acre per year: 

Gold......................

and coal. 

Coal.......................

Royalty on gross output: 

Gold......................

and coal.

Development conditions expressed in men per acre per 

year: 

Gold......................

and coal.

Development conditions expressed in money per acre 

per year. 

Gold......................

and coal.

power or 1 horse in computing labor conditions.

1851; Regulations Aug.4,

Oct. 1851. 7, 

3......

None. . 

18..... 

None..

None..

10 per

cent.*

1......

None. .

1851. Regulations Nov. 25, 

3......

None.. 

160.... 

None..

None. .

10 per

cent.

W

None..

7......

fields act, 1852. Gold 

21.....

None. . 

160.... 

None..

None..

10 per

cent.d

(O

None..

Gold fields act, 1853.

21 ....

None.. 

160.... 

None..

None. .

3 per

cent.*

(f)

None..

coal Newcstle lease regulations May. 1855.

21.......

(6)

5s.......

than Cd. 

per ton./

(0

council Orders in1855 

(mineral leases).

14.......

\ bygov-

\ than 

[ 10s.

None....

Gold fieldsact, 1857;regulations Aug. 1858. 5, 

2.......

8 acres. 

400yds. 

500yds.

£5c.... }"""

(A)

fh\

$0sJU- 

-3S

li'S

W

21.

JNo limit.

None.

Not less

than 1 

perct.«

"(ft)

* One-half this royalty on private property.

o Land sold at public auction at termination of lease.

J> Upset price fixed by government before offering at auction.

c Per acre and per 100 yards.

d 5 per cent on private property and 20 per cent if lessee be an alien.

« After Feb. 12,1857, a duty of 2s. 6d. (about 4 per cent) was levied on each ounce of gold exported and 

a duty of 2s. 3d. on each ounce of gold received at the Sydney mint. This was reduced in 1862 to Is. 6d. 

for export and Is. 3d. for mint, and was finally abandoned in 1879 (43 Vict., No. 5).

/ Fixed by auction, subject to increase of 50 per cent at end of 7 years and of 100 per cent at end of 14 

years.

g Fixed by local gold commissioner.

ft Fixed in each case on applicant's statement.

i Amount of coal raised must not be less than 10,000 tons every 2 years.
126 MINING LAWS OP AUSTRALIA AND NEW ZEALAND.

Terms under which government mining leases have been granted at different times in New

South Wales Continued.

Term of years: 

Gold...... ................ ..

Period for which renewable: 

Gold.........................

Maximum area in acres: GoldAlluvial.................

Reef. ....................

Minerals other than gold and 

coal.

Rent per acre per year: 

Gold.........................

Minerals other than gold and 

coal. 

Coal.........................

Royalty on gross output: 

Gold.........................

Minerals other than gold and 

coal. 

Coal.........................

Development conditions expressed in men per acre per 

year: 

Gold.........................

Minerals other than gold and 

coal.

Development conditions expressed in money per acre per 

year: 

Gold.........................

Minerals other than gold and 

coal. 

Coal.........................

Equivalent in value of 1 horsepower or 1 horse in computing 

labor conditions.

i^-i

o

14......

146....

80......

320.

5s......

5s......

5 per 

cent.? 

None...

None...

None...

£1 2s.3dJ

Gold fields acts, 1861, 1866.

Feb. 9, Regulations 

1862.

5.......

8 acres. 

500 yds* 

500yds.

£5/

(A)

U)

(1)

July 31,Regulations 1869. 24, Sept. 1866,

1 1;

50 acres... 

50 acres . . 

1,000yds.

£27......

w

2* .. ....

£100.....

4.........

Feb. 17, Regulations 

1870.

5.........

2 5 acres c. 

25 acres c. 

1,000yds.

£ >/

m

2.........

£100.....

2.........

Mar. Regulations 21,

1872.

15........

25 acres . . 

25 acres . . 

1,000yds.

£!/... ...

None.....

i.........

None.....

Mining act, 1874.

regulations Mineral June 22, gold1874; regulations July

31, 1874.

15......

20. .....

20 6 ....

1

80......

640. ....

£1.....

5s......

5s......

None...

(A

d)

£12s.3d* 

£12s.3d*

regulation Mineral 

Feb. 27, 1883.

20. 

20.&

80. 

640.

5s. 

5s. 

None. 

None.

6d. per 

ton.*

(0

£12s.3d*

£12s.3dJ 

None.

a Under the regulations in force at the time of such renewal.

6 On payment of a fine of not less than £2 10s. per acre.

c Only for old or abandoned ground. New ground granted only under exceptional conditions, and then 

only for not exceeding 10 acres.

^Including extralateral right.

e In quartz veins shall not exceed 600 by 200 yards.

/ Per acre and per 100 yards.

g For gold found in connection with minerals worked on a mineral lease.

ft After Feb. 12, 1857, a duty of 2s. 6d. (about 4 per cent) was levied on each ounce of gold exported and 

a duty of 2s. 3d. on each ounce of gold received at the Sydney mint. This was reduced in 1862 to Is. 6d. 

for export and Is. 3d. for mint, and was finally abandoned in 1879 (43 Vict., No. 5).

< This royalty was imposed by crown lands act, 1884, sec. 91. In 1886 the royalty on small coal was fixed 

at 3d. by ministerial authority.

/ Fixed in each case on applicant's statement.

* Four men for first acre or less.

i For 3 years. Labor conditions must also be fulfilled.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 127

Terms under which government mining leases have been granted at different times in New

South Wales Continued.

Term of years: 

Gold......................

Minerals other than gold . . 

Period for which renewable: 

Gold......................

Minerals other than gold. . Maximum area in acres: 

GoldReef..................

Minerals other than gold 

and coal. 

Coal.......................

Rent per acre per year: 

Gold...... ..I............

Minerals other than gold 

and coal.

Coal.......................

Royalty on gross output: 

Gold......................

Minerals other than gold 

and coal.

Development conditions expressed in men per acre per 

year: 

Gold......................

Minerals other than gold 

and coal.

Development conditions expressed in money per acre 

per year: 

Gold...................... 

Minerals other than gold 

and coal.

Equivalent in value of 1 horsepower or 1 horse in computing labor conditions.

amended act, 1884 Mining 

public reserves.

20.......

20....... 

20o.....

20 a. .... 

100......

Nolimit.

£1......

{

<;<]

2s. 6d... 

Is. 6d...

{

Oq

Is. Cd...

Is.......

None....

None....

6d. per 

ton.

( e ) 

(«)

(0

£'l2s.3d>

£12s.3d.A 

None....

Crown landact, 1884,re- pri- minerals served on 

lands. vate 

Indefinite.

Nolimit. 

Nolimit.

None.... 

None....

None....

2J per 

cent. 

2J per 

cent. 

6d. per 

ton.

None. . . . 

None....

None.... 

None....

None....

o. 

2 . &8 

«2 g^-

> C a> oo

P. .

C f o§

M.&

a >-, a" 

§

20.....

20.....

/20..... 

\40.....

(80.....

'£!<*... 

£ld...

None. . 

None..

1/5.... 

1/20...

None..

1899. Dredging act, 

15.....

15.....

}l5&

jioo....

100....

£1.... 

5s.....

None.. 

None..

1/10... 

1/10...

None..

1902. Dredging act,

15......

15......

15 6....

100.....

100. ....

2s. 6d.. 

2s. 6d..

1 per 

cent. 

1 p e r 

cent.

1/10.... 

1/10....

None...

Mining act, 1906.

lands. Public 

20.......

20. ......

20c......

25.......

80....... 

640......

5s....... 

5s.......

Is.......

None.... 

None.... 

3d.-6d.

per ton.

1/2/..... 

1/100....

1/160.... 

None....

None....

minerals Reserved 

lands. private on 

20.....

20.....

20c....

25.....

80.....

£1.... 

£1....

1 per cent.* 

1 per 

cent.*

1/2/... 

1/10 a..

1/160 . . 

None..

None..

Dredging.

20. 

20.

20.c

100. 

100.

2s. 6d. 

2s. 6d.

1 p er cent.* 

1 p er 

cent*

7/100. 

7/100.

£10.t 

£10.f

None.

* Less amount paid by way of rent.

t Labor conditions must also be fulfilled.

o At such rent and royalty, not exceeding 50 per cent increase, as may be determined.

6 On payment of fine.

c Under the regulations in force at the time of such renewal.

<J Paid to owner of land.

« Fixed in each case on applicant's statement.

/ First year only 1 man for every 5 acres.

g First year only 1 man for every 20 acres.

ft For 3 years. Labor conditions must also be fulfilled.

Area. The maximum area allowed under ordinary conditions in 

any lease is, as shown by the foregoing table, about that adopted by 

other Australian States. Indeed the New South Wales mining act, 

1906, may be regarded as in many ways the conservative summing up 

of the past experience of Australasia in mining legislation. The adequacy of the areas provided by this law is shown m a striking way by
128 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

information that may be gleaned from the list published by the mines 

department showing the leases in force during the half year ending 

June 30, 1907. The 1,070 regular gold leases in force during this 

period under the 1874 act are here shown to be composed of the following areas:

Areas of gold leases under the mining act, 1874, in force half year ending June 30, 1907.

No. of 

leases.

Not more than 1 acre...................................................... 117

More than 1 acre and not more than 5....................................... 656

More than 5 acres and not more than 10..................................... 226

More than 10 acres and not more than 15.................................... 39

More than 15 acres and not more than 20.................................... 17

More than 20 acres and not more than 25.................................... 15

Total..............................................................; 1,070

Only 2 leases out of this total of 1,070 were for the maximum of 

25 acres; that is to say, in only one-fifth of 1 per cent of all the cases 

did the area amount to the maximum allowed by law. On the other 

hand, 61 per cent of the leases were for areas varying from onetwenty-fifth to one-fifth of the maximum allowed and 93 per cent 

were for less than one-half the maximum area.

As to minerals other than gold it is not possible to present perfectly 

accurate figures, because in the list of mineral leases it is not possible 

to separate the coal and shale leases, in which the maximum is 640 

acres, from the leases for minerals other than gold and coal, in which 

the maximum is 80 acres, but taking in the list of mineral leases all 

leases of 80 acres or less the following results are obtained:

Areas of mineral leases of 80 acres or less in force under the mining act, 1874, for half

year ending June SO, 1907.

No. of 

leases.

Not more than 10 acres...................................................... 89

More than 10 acres and not more than 20...................................... 235

More than 20 acres and not more than 40...................................... 460

More than 40 acres and not more than 60...................................... 41

More than 60 acres and not more than 80...................................... 83

Total................................................................. 908

Here, again, the great bulk of the leases are well below the maximum. Only 7 per cent of the total are for the maximum of 80 acres, 

while over 87 per cent are for areas of not more than one-half the 

maximum.

While even approximate figures are not available as to coal leases 

because of the difficulty above outlined, it may be pointed out that 

there are many coal leases for less than the maximum area and that 

the average area of the 218 coal leases in force in 1906 was 331 acres, 

or less than one-half of the maximum. None of the coal operators 

interviewed expressed any dissatisfaction with the maximum area 

prescribed. One operator stated that he had no criticism to make of 

the limitation of the area, but that he believed the term of leases 

should be increased.

Special leases and amalgamation of leases. From the foregoing 

data it would seem that the maximum areas fixed by law were more 

than adequate to meet ordinary demands, but to provide for any
MINING LAWS OF AUSTBALIA AND NEW ZEALAND. 129

emergencies which might arise the mining acts since 1884 have authorized special leases of any area except as to coal and shale where the 

usual maximum of 640 acres is insisted upon. The conservative way 

in which this provision has been administered is shown by the fact 

that out of the 1,076 gold leases under the mining act of 1874 that were 

in force on June 30, 1907, only 6 exceed the maximum of 25 acres. 

The areas involved are 33, 36, 40, 40, 40, and 156 acres, and these unusually large holdings originated, not in the clauses authorizing special 

leases, but under the provisions which state that on the discovery of 

gold on leases for other minerals the holder must, at the option of the 

minister, either pay a royalty of 5 per cent on all gold recovered or take 

out a gold lease for the area involved. There are no mineral leases 

other than gold for more than the maximum, and out of 365 leases 

under the mining on private property acts only 6 exceed the usual 

limit. Three of these, involving areas of 120, 1,160, and 600 acres, 

were issued under the clause which protected arrangements between 

the freeholders and mining companies existing at the time the act 

became effective. The remaining three, involving areas of 880, 281, 

and 102 acres, have been issued under the special-lease provisions.

The necessity and desirability of temporarily combining properties 

and of satisfying the labor conditions on one of a group of adjoining 

leases during the development stages is recognized in the provisions 

for amalgamation. Such an amalgamation means not a consolidation of leases and the issuance of a new lease for the whole area, but 

merely permission from the mines department to concentrate the 

development conditions on one of a group of adjoining leases or 

claims. Provision for such an amalgamation of gold claims was made 

in the regulations as early as 1869. This privilege was extended to 

leases for minerals other than gold in 1874 and to leases for gold in 

1884. The mining act of 1906 provides for the amalgamation of any 

number of leases of any sort on the minister " being satisfied that the 

lands comprised in such leases can be more effectively worked," and 

for the cancellation of such amalgamation on report from the warden. 

It was because of this provision that it was not deemed necessary to 

allow an area of more than 640 acres for coal leases. By this arrangement a much closer check can be kept on speculation than by 

permitting consolidation, and yet the interests of the bona fide developer can generally be fully protected.

No provision is made in the New South Wales law for the consolidation of leases, but any necessity of this sort could be met, except in the 

case of a coal or shale lease, under the provisions for special leases. 

Victoria provides only for consolidation, Western Australia only for 

amalgamation, while Tasmania recognizes both amalgamation and 

consolidation. It would seem that there might be a need for both 

provisions.

Renewals. The early regulations made no specific provisions for the 

.renewal of leases. In the regulations of 1861, regarding mineral lands, 

there is incorporated the South Australian policy of charging a fine 

on renewal. The regulations under the mining act of 1874 adopted 

for gold leases the Victorian custom of allowing renewal under the 

terms fixed by the acts and regulations in force at the time of such 

renewal, but applied to other leases the South Australian practice of 

charging a fine on renewal. Victoria was at this time the principal

16014° Bull. 505 11 9
130 MINING LAWS OF AUSTEALIA AND NEW ZEALAND.

gold-producing colony and South Australia was perhaps the most 

important as to minerals other than gold, but the combination of the 

two plans in one law is rather illogical and somewhat surprising. In 

1884 the Tasmanian policy of providing that the rental on renewal 

should not exceed a definite multiple of the original rental was 

adopted as to leases on public reserves which had before that time 

been exempt from mining. The mining act of 1906 provides in all 

cases for indefinite renewal under the regulations in force at the time 

of such renewal.

The fine for the renewal of mineral leases between 1861 and 1902 

was fixed at not less than £2 10s. per acre. The leases of the very 

rich ground at Broken Hill were issued in 1883 for a period of twenty 

years. When the end of this term approached, the companies fearing 

exorbitant fines, agitated a change, and the mining laws amendment 

act of 1901 resulted. In this act the renewal of mineral leases other 

than leases for coal and shale is provided for subject "to the annual 

rent prescribed by the acts and regulations then in force in respect 

to such lease, and to a further annual payment * * * amounting to one per centum upon the net annual profits of working the 

mine or mines on the land comprised in such lease, and, in addition 

thereto, one-half per centum upon the amount of such profits exceeding £200,000 * * *. Provided that no such payment shall 

be required in respect of any mine the net annual profits of which do 

not exceed £500. Under this act the Broken Hill companies and 

several others throughout the state are paying the Government very 

considerable sums every year.

Labor conditions. New South Wales early adopted the Victorian 

plan of fixing the labor and development conditions in leases from 

the statements of the applicants. In 1894 under the mining on 

private property act it first showed a desire to fix definitely by regulation the number of men required, and this plan is adopted in the 

regulations under the 1906 act. The labor conditions thus lie wholly 

at the discretion of the minister. Under the existing regulations the 

necessity of lighter labor conditions when commencing work is 

officially recognized by the fixing of the number of men required for 

the first year at one-half that required in succeeding years. The 

usual exemption at the discretion of the minister after hearing in 

open court (warden's court) is allowed, but exemption as a right 

is provided for only at the rate of one month tor each six months' 

excess of labor, and then not for a cumulative period exceeding six 

months at one time. There is no provision for exemption during 

strikes or on account of money expenditure, and both these omissions 

must be considered among the most serious defects of the law. It 

was reported that during the recent coal strike at Newcastle the labor 

conditions in the leases were used by the premier to force the coal 

companies to agree to his proposals, a procedure which was resented 

by some of the coal operators at that place.

Forfeiture. Forfeiture is effected by the publication of a notice in 

the Government Gazette and is generally based on a report from the 

Warden. According to the plan at present in vogue in the mines 

department, the officers of this service make no special efforts to see 

that the labor conditions are fulfilled. Anyone may report the nonfulfilhnent of labor conditions at any mine, and if on investigation 

this report is substantiated the lease may be canceled. If cancel-
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 131

lation is determined upon the complainant receives "beforehand" 

notice of the day and hour upon which such cancellation will take 

effect. He is thus enabled to become the first applicant for a new 

lease. It is held by the department that "if no person reports a 

breach of labor conditions it is evidence that no one is desirous of 

obtaining the mine, and as the lessees pay rent, even though they may 

not be fulfilling their labor covenants, the revenue benefits to that 

extent and nothing would be gained by cancellation."

This doctrine resembles that 'announced in the Victorian mining 

act of 1904, which provides that leases shall be forfeited only when 

the warden is satisfied that the persons applying for forfeiture can 

command the labor and capital necessary to develop the lease. The 

desirability of this policy depends somewhat on the importance attached to the item of revenue. An unworked lease undoubtedly is a 

hindrance to development for the reason that if it were unoccupied 

the chances are greater that it would be taken up as a claim or lease 

by a prospector. Many prospectors not only object to turning 

"informer/' but can not afford to go to the expense and trouble of 

applying for forfeiture. It is, after all, this poor prospector who 

generally discovers minerals, and he is the person who should receive 

the greatest encouragement. He is the very person for whom the 

land should be open, if it is not already being actually developed. 

From this standpoint it would seem that more weighty reasons for 

not forfeiting a lease would be required' than the simple fact that 

rent was being paid and that no informer reported noncompliance 

with conditions.

Royalty. The royalty method of collecting a revenue or rent from 

mining leases was the one first adopted in New South Wales. The 

early regulations regarding gold leases fixed the royalty at 10 per 

cent, which was reduced to 3 per cent- in 1853 and to 1 per cent in 

1857. The special coal lease regulations of May, 1855, imposed both 

a ground rental of 5s. per acre and a royalty or not less than 6d. per 

ton. This provision, almost immediately abandoned, bears a striking 

resemblance to that which has been in force since 1885.

In 1855 an imperial order in council fixed only an acreage rent for 

mineral leases, and in 1857 gold leases for small areas and short terms 

were provided for at an annual- rental. From this time royalty 

entirely disappears until 1884, except in connection with the recovery 

of gold in mineral leases, where a royalty of 5 per cent was require^ or 

the holder forced to take out a gold lease for the area involved. 

Since 1884 royalty has been introduced at many points. Following 

the example of New Zealand, the crown lands act of 1884 provided 

for a royalty of 6 pence per ton on all coal, the rent to be a credit on 

the royalty, and empowered the governor to grant permits to freeholders to work the reserved minerals in their lands on payment of 

such royalty as might be required. This royalty was fixed at 2^ 

per cent. Very few permits were issued, and this provision was 

practically suspended by the extension of the mining on private 

property acts to include practically all minerals.

In 1886 the royalty on "small coal" (i. e., coal which will pass 

through a screen the bars of which are riot more than three-quarters 

of an inch apart) was reduced to 3d. by "ministerial authority," and 

in a like manner, for the purpose of calculating the royalty, threefourths of the total output was fixed as consisting of large coal.
132 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

The authority at law for this provision is not evident, but as the mining act 1906 legalizes this dictum it may be passed by as ancient 

history.

The dredging act of 1902 provided for a royalty of 1 per cent, and 

the mining act of 1906, in addition to the royalty on coal, has imposed 

a royalty of 1 per cent in leases for reserved minerals on private lands 

and in dredging leases. In all these cases the rental is a credit on 

the royalty.

This gradual development seems 'to suggest the final introduction 

of a system of royalty in all cases. Indeed, the mines department 

officials are as heartily in favor of a royalty system as the South 

Australian officials are opposed to it.

OWNERSHIP OF THE PRECIOUS METALS.

The proclamation of Governor Fitzroy in 1851, asserting the 

common-law right of the government to the gold in all lands whether 

alienated or not, was in direct contradiction to the principle announced 

in the lands regulations several years before that grants should be 

held to convey everything above and below the surface and naturally 

did not pass without a legal trial of the matters involved. The question was first brought before the courts of Victoria because of the 

greater importance of the developments there and these decisions 

naturally affected the thought in New South Wales. Many lawyers, 

however, held, as they do in the United States to-day, that the precious metals for all practical purposes belonged to the freeholder, 

and in 1874 the Supreme Court of New South Wales held (Reg. v. 

Wilson) that "by giving the owners of private lands the power to 

authorize persons to mine or search for gold, and by confining the 

operations of the 'miner's right' to crown lands the legislature, in the 

gold fields act of 1852, clearly waived the crown right to the gold 

that might .be found in private land." The Privy Council decision of 

1877, which has been alluded to in the Victorian report, that the 

right to the precious metals did not pass unless specifically named in 

the deed of conveyance put an end to all this discussion, and the 

several mining on private property acts passed in recent years are 

based on the doctrine that all the gold in New South Wales belongs to 

the government.

Silver is in the same manner the property of the government, but 

the fact that mineral conditional purchases included all minerals 

except gold,a has led to the provision in the last mining act that silver is to be treated as so belonging only when it is specifically reserved. 

The rights of the government and of the public at large would perhaps be more fully conserved by the provision that the silver belongs 

to the government in all lands except those acquired by mineral 

conditional purchase.

The ownership of the gold in a mineral conditional purchase was 

hi 1900 the subject of litigation between the state and the Great 

Cobar Copper Company. In 1877 the property involved was purchased from the government as a mineral conditional purchase

oGold is defined in the Victorian Mining on Private Property Act of 1884 as including gold and silver and all ores and minerals containing the same, and a similar definition is found in the New Zealand mining acts since 1886.
MINING LAWS OF AUSTKALIA AND NEW ZEALAND. 133

because of its value for copper. After development, it was found 

that the copper contained a percentage of gold which could be economically recovered. The government contention was that it had 

a right to all the gold won, out was content to sue for a royalty of 

10s. per ounce. The company held that the gold was a small byproduct and that under act 1 William and Mary, c. 30, and act 5 

William and Mary, c. 6, it was not within the meaning of the reservation in their grant. The court decided in favor of the state and 

awarded royalty at the rate of 2s. per ounce, the amount of the award 

being based on the fact that the regulations under the lands act 1884 

fixed the royalty payable by an owner with respect to the minerals 

of which the ownership was vested in the government at 2£ per cent. 

As a result of this suit the company at once took out a mining on private property lease which at that time was granted without the payment of any royalty or rent to the government. This fact may have 

been responsible for provision in the mining act of 1906 that all leases 

of the reserved minerals on private property should contain a reservation to the government of a royalty of 1 per cent.

MINING ON PEIVATE PROPEETY.

That the assertion of the right of the government to gold in 1851 

was not intended to open private lands to indiscriminate prosecting 

is shown by the statement in the first regulations that "with reference to lands alienated in fee simple the commissioners will not be 

authorized for the present to issue licenses * * * to any persons 

but the proprietors or persons authorized by them in writing." As 

to reef gold the regulations of August 4, 1851, provided that "no 

person will be allowed to work matrix gold on private lands except 

the proprietors or persons they may authorize in that behalf." The 

succeeding regulations fixed the royalty chargeable on permits or 

leases to work gold on private lands at one-half that charged in other 

cases, and continued the policy of only issuing such documents on 

authorization from the owner.

The right of the government to gold in private lands continued 

to be enforced during the period when any considerable amount 

of revenue was derived from a direct charge on the miners, but was 

practically abandoned in 1853 or 1854. There then grew up the 

policy of allowing the freeholder to do as he liked with the gold, 

and there resulted a system of private gold leasing and licensing 

which made the acquisition of the freehold title to auriferous lands 

desirable and led to the transactions above outlined.

This matter was naturally considered by the Gold Fields Royal 

Commission of Inquiry in 1870, and resulted in a division of the 

commission on the point of the desirability of the government 

asserting its right in this respect. The majority, three members, 

favored mining on private property with full compensation for 

damages; the other two members were absolutely opposed to such 

a policy, as they considered it an invasion of vested rights.

In respect to lands on proclaimed gold fields, the policy was 

early adopted (25 Vict., No. 1, s. 14-1861) of providing that all 

alienations should be subject to a reservation of the right to search 

by duly authorized persons and for resumption on payment of
134 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

compensation for all values other than gold. The lands act of 1884 

provided for the reservation of all minerals and for their working 

by the owner of the freehold on payment of a royalty of 2£ per 

cent. No other persons had any right to work the reserved minerals until 1889, when an amending act provided that as to lands 

alienated after that time the governor could authorize prospecting 

on payment of compensation for damages, and that on discovery of 

minerals the land could be resumed by the government on payment 

of value other than mineral.

It was, however, not until 1894 that real effect was given to the 

claim of the government to the gold in all lands. This act empowered the wardens to grant prospecting permits for gold on private 

Eroperty, and empowered the governor to grant leases to any person 

}r the purpose of mining for gold on such land, due provisions 

being made for compensation for damages. This act is noteworthy 

because it avoided certain difficulties which beset similar legislation 

in adjoining states. While protecting agreements made by the 

owners prior to that time, it allowed them to take out leases only 

on the same conditions as any one else; and it specifically provided 

that they should have no preference rights after a period of two 

months from the passage of the act. The act further provided not 

only for compensation for damages, but arranged for a yearly rental 

to be paid to the owner of the freehold. This rent was fixed at a 

sum more than that on the Crown lands, and therefore placed a 

premium on the development of government lands. In Victoria an 

opposite policy prevails, and the rent is payable to the government, 

not the owner. Under the 1894 act nothing was paid to the government, but in the mining act of 1906 it was provided that a royalty of 

1 per cent should be paid to the government, and that all sums paid 

by way of rent to the owner should be deducted from the sum payable 

as royalty. This act followed the matter out to its logical conclusion by making the payment of any royalty to the freeholder illegal.

MINING A PUBLIC USE.

The whole tendency of legislation in Australia has been to declare 

mining a public use. In New South Wales this found expression in 

the early acts in the power of resumption in certain cases. In 1884 

it was finally declared that mining was a public purpose and the governor was therefore authorized to create mining reserves. The doctrine next found expression in the mining on private property acts, 

and the acts now in force provide for the resumption of any and all 

lands for mining purposes and for the mining for minerals belonging 

to the government on alienated lands.

MINING BOARDS.

The local bodies which were found necessary to frame regulations 

in Victoria and California were never really needed in New South 

Wales. Borrowing from Victoria, the mining act of 1857, provided 

for the creation of local courts on the application of 100 persons holding miners' rights. The local courts were composed of 10 members, 

a chairman appointed by the governor, and 9 members chosen by the 

holders of miners' rights in that district. Only two gold fields adopted
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 135

local courts Araleun and Adelong. These made regulations in 

1859 and 1860. In the act of 1861 local courts were again provided 

for, but their judicial feature was abolished and the chairman was 

elected by the members of the court. The power of securing local 

legislation by the formation of local courts was embraced under this 

act by but three places Kiandra, Burrangong, and Lachlan.

The mining act of 1874 abolished local courts but provided for a 

general mining board to be called together at such times as the governor might think fit, and consisting of 11 members, 2 appointed by 

the governor and 9 elected by the holders of miners' rights 3 from 

each of the districts defined under this act. This board seems to have 

met only a few times in 1874 and 1875, and to have promulgated two 

sets of regulations. No need for such a body having developed in the 

thirty years between this time and the passage or the act of 1906, 

there was naturally no provision made for such a body. Mining 

boards now exist only in Victoria, where their day of usefulness has 

long since passed.

EXTRALATERAL RIGHTS AND FRONTAGE CLAIMS.

In the early years of the gold discoveries the amount of lode or reef 

to be allowed to each miner was naturally thought to be best determined by measurement along the outcrop. As such a holding had 

length without any width it was necessary to determine how far the 

right to this lode should extend and, as it was not evident that such 

a doctrine could lead to the infringement of anyone else's right, it was 

natural to assert that the holder should have the right to follow the 

lode indefinitely. The regulations of August 5, 1858, under the gold 

fields act of 1857, which were the first to allow quartz or matrix 

claims, therefore provided that:

Miners occupying any portion of a quartz reef or vein shall be entitled to follow and 

work it in any direction that such reef or vein may take: * * * Provided * * * 

that when any reef, vein, or bed of quartz shall lie nearly horizontally, or at a less angle 

with the horizon than 20 degrees, the holder of any claim shall be only entitled to follow 

such reef, vein, or bed of quartz in the direction of the dip, for a distance not exceeding 

50 yards from the point where they commenced to sink in search of any such reef, vein, 

or bed of quartz.

Whether this provision and the accompanying ones, to be discussed 

presently, were of local origin, or whether they were borrowed from 

Californian local customs, does not appear. However this may be, 

the official promulgation of this doctrine in New South Wales antedates by eight years its incorporation in the United States mining law.

Other paragraphs in the regulations of the same date suggest other 

points either in the American law or in the legal contests thereunder. 

Thus a forerunner of the American tunnel rights is found in the provision that "when any miner shall make a drive or adit into any 

unoccupied hill or range in search of any quartz reef or vein he may 

take up and hold any reef or vein that he may select." Provisions 

were also made for the determination of ownership when two veins 

were found to coalesce in descending and where a vein was found to 

divide in descending. The boundaries of such claims were fixed in 

the following manner:

When, in order to determine any dispute, it shall be found necessary to lay down 

the boundary of a quartz reef claim, the general plane of which reef descends at an 

angle with the horizon of less than 90 degrees, or when the plane of the reef is not per-
136 MINING LAWS OP AUSTBALIA AND NEW ZEALAND.

pendicular, the boundary line shall, in all cases, be a line laid off at right angles with 

another line passing through the surface peg, marking the boundary of the claim at 

the end in dispute, and another point visible, and as distant as possible on the known 

line of the reef; and, in all cases where the general direction of the reef is not known 

with certainty, it shall be competent for the commissioner, previously to any measurement made below, to fix upon some distant point which shall be taken, to mark 

the direction of the reef for the purpose of deciding the particular dispute then 

before him.

These regulations were replaced in 1862 by a new set, in which it 

was provided that instead of the line of the reef being the measure of 

the surface claim that it should have a width of 100 yards, and instead 

of owning only one reef that the holder should "be entitled to work 

all reefs or veins within that width, and also to follow beyond his 

boundary into unoccupied ground the dip of any reef on which he 

may be actually at work." This again finds a parallel in America in 

the stage in which the theoretical line of reef was abandoned and the 

theory of surface claims with "end lines" became prominent. This 

doctrine was finally abandoned in New South Wales on July 31, 1866, 

or five days after the United States officially recognized it, and the 

principle of claims bounded by vertical planes initiated.

Referring to this matter in 1871, the royal commission said:

At one time the regulations allowed the quartz claim holder to follow the reef down 

the dip, wherever that might strike, but as this was found to lead to disputes it was 

altered to a fixed width.

It has truly been "found to lead to disputes" in the United States, 

where it ranks with the most harmful and economically indefensible 

provisions to be found in the American statutes.

In 1862 New South Wales adopted in a modified form the frontage 

system, which had originated in Victoria a few years before. It was, 

like the extralateral right, a variation which led to litigation. In 

New South Wales the regulations were repeatedly amended, and the 

system became operative only when deemed desirable by the resident 

gold commissioner. In practice it was not utilized to any great degree 

and has now been abandoned.

ALLUVIAL GOLD MINING.

While New South Wales has not gone to the extent of providing 

that no lands in a gold field should be leased until after a stated 

period from its proclamation, and has not, except for a very limited 

period permitted the alluvial miner to work on land held as a quartz 

claim or lease, it has always recognized ordinary alluvial deposits as 

preeminently the field of the individual miner. During the first few 

years of the gold excitement no leases of alluvial ground were granted, 

and while such leases were authorized in the regulations of 1858 they 

were in 1870 restricted to old or abandoned ground, and the mining 

act of 1874 provided that all alluvial ground should be exempted from 

lease "except such as, in the opinion of the secretary for mines, may 

have been worked and abandoned, or such as he may deem suitable 

to be leased by reason of its great depth or wetness, or on account 

of the costly appliances required for its development." This clause 

has been repeated in substance in the act of 1906.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 137

MINERS' RIGHTS AND CLAIMS^PROSPECTING AREAS.

The gold-digger's license was first issued at a charge of 30s. per 

month; this was reduced in 1853 to 10s. per month, and in 1857 to 

10s. per year, when the document was renamed a "miner's right." 

Under the act of 1861 all miner's rights terminated on December 31 

of each year.. In 1874 the term was extended to not exceeding fifteen 

years. In 1896 the fee was reduced to 5s. and the term to one year.

Mineral licenses which gave the holder the same rights as to minerals other than gold that a miner's right did for gold, were first provided for in the act of 1874 for twelve months at a fee of 20s. This 

was reduced to 5s. in 1896, when it was also provided that a miner's 

right should cover all minerals. In the last act the miner's right 

covers all minerals, is good for not exceeding twenty years, and the 

fee charged is at the rate of 5s. per year. Under this act any person 

can hold any number of miner's rights, and "for the purpose of 

taking possession of more than one tenement of any specific class, 

the person so taking possession must hold an additional miner's right 

for each additional tenement after the first of the same class."

The prospecting and protection areas allowed have always been 

with relation to claims only. The need for prospecting areas to determine whether or not a piece of country is desirable ground to lease 

has never found expression in the New South Wales enactments. 

The maximum amount of land allowed as a mineral prospecting area 

is 40 acres, which is but half that allowed under lease for minerals 

other than gold and coal and the allowance is clearly of use only to the 

man who wants to determine where to peg out a claim or a very 

small lease. If a man wants to test a large piece of ground he must 

perforce take out a lease, and while the law provides that the lease may 

be surrendered with the consent of the governor, if such consent were 

refused the lease is a binding contract and the same revenue policy 

which was exhibited in the suit against the Great Cobar Copper Company (at a time when no royalty was being charged by the government 

in leases involving the precious minerals on private property) might 

induce a government to hold the lessee to the rental for the term of the 

lease. If an exclusive prospecting area is allowed to the prospective 

claim holder, it might be argued that an exclusive prospecting area 

several times the size of a lease should be allowed a prospective lessee.

The present policy in regard to the survey and registration of claims 

and other holdings under miners' rights is somewhat irregular. Registration is required in all cases except prospecting areas, mineral 

claims and tunnel sites. Survey is required for gold claims, business 

areas, and machinery areas. Some opal claims are more valuable 

than gold claims and why registration and survey should be made 

optional in one case and mandatory in another is not very evident.

ENCOURAGEMENT OF MINING.

New South Wales, in common with the other States, has offered and 

paid at various times considerable sums for the discovery of valuable 

mineral deposits. As early as 1858 the plan was adopted of allowing 

an extra large area or "reward claim" to the discoverer of new gold 

deposits. This policy is still continued, but, as has been pointed out,
138 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

no attempt has ever been made to encourage development by means 

of special prospecting areas. Much has been done in the way of prospecting at government expense, including diamond drilling, and this 

phase of the subject is summarized in the Yearbook for 1905-6 as 

follows:

The government has for many years past devoted a sum annually to encouraging 

prospecting for gold, and in 1889 the conditions of the vote were so amended as to embrace all minerals. The amount set apart each year was originally £20,000. For the 

year 1892, however, it was fixed at twice that sum; and during each of the subsequent 

years up to 1901-2 the sum of £25,000 has been available. For the year 1902-3 the 

amount voted was reduced to £20,000, and this was further decreased to £15,000 for 

each of the following years. During the last few years it has been noticed that, with 

the exception of the Cobar district, where operations were most active, prospecting has 

not been so vigorously followed as previously. This is accounted for by the demand 

for competent miners at the established mines and to the steady employment offering 

in connection with the agricultural and pastoral industries. It can not be claimed that 

the discovery of a large payable field has so far been made by means of the prospecting 

vote, but at the same time it may be said that some rich mines have been opened 

up with the aid granted, notably the Mount Boppy mine, which is now the premier 

gold mine of the state, having produced gold to the value of £456,571 during the last 

six years. The Queen Bee copper mine owes its present successful position to the aid 

granted, and the Growl Creel mine at Shuttleton was opened up indirectly as the result of assistance from the same source. In addition to the employment of labor, the 

proving of a lode or reef to be payable invariably leads to the taking up of large areas 

of adjoining lands under the mining act, from which increased revenue is derived by 

the state. From the year 1888 to the end of December, 1906, the amount expended in 

prospecting work was £372,738.

Miners desiring a grant from the vote have to satisfy the prospecting board that the 

locality proposed to be prospected is one likely to yield the minerals sought for and that 

the mode of operations is suitable for discovery. Aid is given in deserving cases up to 

50 per cent of the value of the work done and of the necessary implements and materials. The granting of assistance for sinking from the surface is not favored and applicants are generally required to prove their bona fides by carrying out a certain amount 

of work unassisted. Miners who have been assisted from the vote are not entitled to 

claim any reward that may be offered for the discovery of any hew gold or mineral 

field.

A new clause in the prospecting regulations provides that the amount advanced from 

the vote shall be refunded in the event of the discovery of payable mineral by means 

of the aid granted.

The use of the diamond drill in searching for minerals dates only from 1881, and 

boring by the department of mines commenced much later. The drills now in use 

belong for the most part to the state, and are lent to private persons on terms fixed by 

egulations.

EXTENT OF OPERATIONS.

The following table showing extent of area held under the mining 

acts has been prepared in part from data furnished by the mines 

department and in part from that department's annual reports. 

The totals obtained by this combination differ slightly from those 

given in the annuals, the difference in no case being greater than 300 

acres. The areas held under the mining board regulations (gold 

claims and associated tenements) and the mineral license regulations 

(mineral claims and associated tenements) are not derived from actual 

record, but are based on the estimates of the mining registrars; it is 

not compulsory in some instances for the holders of such areas to register them, hence the necessity of estimate.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 139

Table showing areas held under the mining acts in New South Wales, 1902 to 1906,

inclusive.

[Areas are given in acres.]

Government lands. 

For gold:

Claims; area held under mining board regulations (approximate) ...................................................

For minerals other than gold and coal:

Claims; area held under mining license regulations (apForcoal:

For dredging (principally gold and tin):

Reserves. 

Area covered by authority to mine on (gold and other ininerPrivate lands (reserved minerals'). 

Area covered by authority to freeholders to mine (gold and

Area covered by authority to search on land alienated since

Area covered by agreements made by owners and protected by 

government (gold and other minerals) ....................... 

Area covered by government leases (gold and other minerals) . . .

Applications pending.

1902.

1,094

6,471

9,519

621

21,546

6,165

159

62,334

10,166

41,052

3,414

5,643

5,673 

16,024

7,926

195,933

1903.

1,115

6,448

11,935

474

16,288

7,371

167

65, 737

7,232

38,959

75

7,841

6,610 

15,802

11,477

195,755

1904.

1,132

6,311

9,432

424

14,679

5,857

180

70,599

8,045

33, 144

16,301

75

6,224

5,461 

10,202

66,591

252,921

1905.

1,046

5,753

11,968

442

15, 435

26,473

222

93,700

8,218

33,219

14,511

75

7,810

6,330 

8,502

36,387

268,381

1906.

1,128

5,963

17,242

722

93 SQ"i

24, 130

218

72,408

8,991

32, 223

12,621

75

13,015

31,912 

8,004

92,908

343,387

a Largely coal. 

CONCLUSION.

New South Wales, after fifty years of indiscriminate disposal of 

minerals and thirty years of a system in which mineral alienation 

and government leasehold were tried side by side, and in which, mining men showed a marked desire for a leasehold tenure, adopted government leasehold as the most satisfactory method of dealing with 

minerals. This last policy has been tried exclusively for almost 

twenty-five years and has been found to be so satisfactory that there 

is not even a remote possibility of the plan being changed.

Men who are opposed to "government ownership" because they 

regard it as an invasion of the legitimate domain of private enterprise, 

and because they hold that large businesses can be conducted more 

economically and efficiently by private interests, heartily indorse the 

policy of government leasehold of minerals. They point out that 

this is not "government ownership" in the sense that is objectionable 

to them; that in this case the government does not come into competition with legitimate private enterprise; that this policy does not 

involve the working of the mines by the government; the government 

merely guarantees to the country and to the investor that no man 

can have a shadow of title to minerals without reasonably continuous 

development, and that if a deposit is not already being worked it will
140 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

be open, on reasonable terms, to any private concern with the necessary enterprise. Such a guarantee is not possible under private 

ownership of minerals.

In New South Wales a greater proportion of the mineral values 

are held by private interests than in any other Australian State. 

There was until 1884 absolutely no restriction on the alienation of 

minerals except gold, and yet, omitting gold from the calculation, in 

1906 approximately 64 per cent of the total mineral production was 

derived from properties held under lease from the government, and 

it is estimated that in 1907 the amount will be at least 70 per cent. 

Including gold the percentages become 68 and 74. The premier position of New South W ales as a mineral-producing State is thus not due 

to the development of minerals on freehold property. Indeed, it is 

stated that far from government leasehold retarding development 

it has in fact promoted it, not only directly but indirectly, since in 

many cases the development on government land has stimulated the 

development of adjoining freeholds.
CHAPTER VII.

THE DEVELOPMENT AND PRACTICAL WORKINGS or THE MINING 

LAW OF NEW ZEALAND. 0

INTRODUCTION: A CONTRAST.

The United States in dealing with its national domain early endeavored to separate mineral from nonmineral lands. At first this 

was accomplished by the automatic means of reserving in all grants 

and patents the minerals which were then considered of importance. 

Under this practice it was impossible for any deposit of gold, silver, 

copper, or lead to be wholly alienated. This plan was soon abandoned for one in which the separation rested wholly with the officials. 

They had the power to absolutely reserve from sale under the ordinary land laws any lands which were known or supposed to contain 

minerals and to lease the same, but such reserved mineral lands could 

be sold only by special act of Congress. If land was not specifically 

reserved in this way it could be acquired under the ordinary land laws 

and the grants or patent in such cases contained no reservations.

This plan was practically abandoned in the forties and there developed the present more drastic one which absolutely prohibits the 

sale of any mineral lands except under specific acts. These mineral 

laws provide for the sale of mineral lands under certain special conditions and at a higher price than that charged for nonmineral lands. 

No provision was made for leasing or for the insertion of mineral 

reservations in grants. In the administration of the laws in this 

third period the government officials no longer took the initiative of 

making definite mineral-land reserves analogous to the lead and copper 

reserves of the preceding period.

The policy of the land office during this third period was essentially 

a passive one. In the beginning of the period the difficulty of determining by field examination and classification what were and what 

were not ^mineral lands resulted in the initiation of a plan which 

endeavore'd to throw on the purchaser the responsibility of making 

this determination, and which has persisted more or less unchanged 

to this day. Under this plan the land office has required the agricultural claimant to assert under oath that the land was not mineral 

land and that he was acquiring it not for its mineral value, but only 

for the purposes of settlement and cultivation. Until recently^ the 

land office as a general rule has accepted such a declaration as entirely 

conclusive, and the administration, decisions, and rulings of the land 

office during the earlier period did much to make this declaration 

a mere form and to afford plausible excuses to persons desiring such 

conscience salves. As a result large areas containing valuable minerals are claimed at present under agricultural patents.

a Australian Mining Law Report No. 6, not formally transmitted to the President.

141
142 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

In this plan of shifting the responsibility from the land office to the 

purchaser, and in the fact that a higher price was charged for mineral 

than nonmineral land is found a most hopeful possibility of remedial 

action, a possibility of recovering to the nation all mineral values 

except those disposed of under the mineral-land laws.

.If Congress should enact at this time that in every case, both in the 

past and future, where the purchaser of land from the Government 

made a nonmineral affidavit, that all minerals belong to the Government, it would leave each man with exactly what he swore he was 

getting and exactly what he paid for. Such an act would be eminently just. In individual cases it would be less severe than the 

attempt that is now being made in the Western States to recover 

to the Government by lawsuits mineral lands acquired under the 

agricultural-land laws. In these cases the Government seeks not 

only the mineral values but the surface values as well. It endeavors 

to take from the patentee everything; it asserts that the patentee 

has been a perjurer and has defrauded the Government.

Under the plan here suggested all such points of difference and all 

such charges vanish. The oath is regarded not as a perjured statement, but as an honest indication of intent and desire. The claimant's statement that he was acquiring the land only for agricultural 

purposes is made binding on him. The charge of fraud likewise falls; 

the Government has under this solution not been defrauded; it has 

sold the agricultural values and received the usual price therefor. 

The patentee retains what he bought; the Government what it did 

not sell. This is a solution of the matter of western "mineral-land 

frauds," which can but appeal to all men as entirely fair.

On the point of legality of such enactment the question, if any, to 

be decided is not, Would a court of law sustain such a contention if 

made under existing practice and ruling without specific enactment ? 

but, Has Congress the power to pass a law which but confirms to the 

Government the ownership of certain things which it has never sold 

and which at the same time leaves to every patentee from the Government exactly what he swore he was getting and exactly what he 

paid for; no less, no more? Eminent lawyers have stated that they 

believe the Supreme Court would view the matter from a very broad 

standpoint of public good, and hold such an act constitutional.

New Zealand from almost the very beginning has shown a like 

desire to separate mineral from nonmineral lands; its laws have 

always authorized the sale of known mineral lands and do to-day; 

there has been no general enforcement of the common law right of 

the government to the precious minerals. They are to-day, as in 

the United States, controlled by the owner of the freehold. There 

are no mining-on-private-property acts, and while some lands are 

under certain conditions subject to resumption without payment for 

gold or silver values, it may be said that for most purposes deeds, as 

in the United States, are now held to convey all minerals. In some 

respects the New Zealand laws may be regarded as more liberal than 

those of the United States. New Zealand has never declared that 

"in all cases land valuable for minerals shall be reserved from sale 

except as otherwise expressly directed by law." The lands department has never required of any purchaser a declaration that he is 

not acquiring the land for its mineral value, and thus by his own 

declaration practically estopping him in equity, though not in present
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 143

practice, from claiming the mineral values which may be in the 

lands purchased.

The New Zealand land laws have, however, incorporated several 

discretionary features not found in the American laws; they have 

empowered their officials to grant mining leases; to make reserves for 

public purposes; to refuse to sell any land, and to fix the sale price 

of all lands. These discretionary features have made possible a 

degree of efficient and intelligent business administration which is 

surprising to an American.

The result is that while the United States has disposed of its mineral 

lands without let or hindrance, New Zealand has disposed of practically no mineral lands as such. A search through the old government 

and provincial gazettes during the early period when the provisions for 

sale were most explicit, and when notifications of such sales were 

required in the gazettes, failed to reveal a single notice of this kind. 

The mines department reports that no known mineral lands have ever 

been sold by the government. Among mining men not one knew of 

the government sale of a single piece of land as mineral land, and several stated quite positively that such a sale would not only not be 

tolerated but would be illegal, which certainly indicates that the custom of not selling mineral lands has been followed so consistently that 

it has generally come to have the force of law. Some lands containing minerals have been sold, but the freehold lands which are now 

known to contain commercial minerals are restricted almost wholly 

to areas containing lignite or brown coal, which were disposed of veryearly in the history of the colony. It is estimated that in 1906 the 

coal derived from private property in New Zealand did not exceed 30 

per cent of the total tonnage, and represented a much smaller percentage of the total value. The value of all minerals, including coal, 

derived from freehold land did not in that year exceed 10 per cent of 

the total; indeed, Mr. Charles Rhodes, secretary of the Waihi gold 

mine, and one of the leading mining men of New Zealand, estimates 

the amount at a much less figure.

The net result of the administration of the minerals contained in the 

public domain of the United States and New Zealand for the past 

sixty years is that, while both have provided for the sale of mineral 

lands and neither has reserved minerals in patents or grants, in the 

United States all the mineral production is either derived from freehold land or land that is in process of becoming freehold, while in 

New Zealand 90 per cent or the whole mineral production comes 

from areas held under lease from the government. Truly, this result 

but corroborates the statement called forth by the investigation in 

Tasmania that the patriotic and efficient administration of the land 

affairs of a country is not a human impossibility.

The country in which these results have been attained is one of no 

mean mineral wealth and is one in which the mining industry is in a 

very healthy and progressive condition. It contains, in the Waihi 

gold mine, the most productive gold mine in Australasia and the third 

or fourth in the world. It has the third most productive colliery 

company in Australasia and is second only to New South Wales in its 

total coal production. It has been the center of several gold rushes, 

which, following those in California and Victoria, to some degree 

depopulated the Victorian fields and attracted many from California. 

It has produced in a little over fifty years more than $350,000,000
144 MINING LAWS OF AUSTEALIA AND NEW ZEALAND.

worth of gold, and, with but little over one-sixth the area of Alaska, 

produced in 1905 three-fourths as much gold, five times as much 

silver, and many times as much coal. It has one-third more area and 

about three times the population of Utah, and in 1905 produced onequarter more coal, about twice the amount of gold, and one-eleventh 

the quantity of silver.

DEVELOPMENT OF MINING AND MINING LAW:

New Zealand was formally made a portion of the British Empire in 

1840, and in the same year the settlements at Wellington and Auckland were established. This colony was thus founded at a time when 

those in control of the colonial office in London were not in favor of 

reserving in deeds of grant any minerals, and this policy has been 

followed to this day.

While it was separated in 1841 from New South Wales, of which 

it was initially made a dependency, the land laws and regulations 

in force in that State, including the imperial lands sale act of 1842, 

continued in force until 1846, when a new charter was issued. In the 

instructions under the first charter it was provided that (1) lands 

should be separated into "such as are supposed and such as are not 

supposed to contain valuable minerals;" (2) that mineral lands might 

be sold at auction, after due notice, at any price exceeding the minimum fixed for ordinary lands; and (3) that any land supposed to contain minerals might be leased for any term of years not exceeding 

twenty-one at a royalty of 15 per cent. This sounded the keynote 

of the mineral-land policy which has been followed by New Zealand 

to this day. The administration has always endeavored to separate 

mineral from nonmineral lands, and the laws have always authorized 

the sale and leasing of such lands. The royalty was reduced in 1848 

to one-fifteenth, and "in 1850 the first separate mineral lease regulations 

were issued in the New Ulster Gazette, November 15, 1850, page 141. 

New Zealand was under the charter of 1846 divided into two provinces each with its own lieutenant-governor and assembly, composed 

of legislative council and a house of representatives. All the North 

Island, except a small area about Wellington, was included in the 

province of New Ulster, and all the remainder in the province of New 

Munster; the two cities, Auckland and Wellington, were naturally 

the seats of government of the two provinces; in addition there was 

a general assembly for the whole colony. The mineral regulations of 

1850, although appearing in the New Ulster Gazette, were apparently 

applicable to the whole colony, and while a waste lands occupation 

act was passed in 1849 for the province of New Ulster, the lanct regulations were generally the same for the whole colony.

At this time coal and copper were known in several parts of the 

colony. A copper mine had been opened on Kawau Island on freehold land, acquired in the period previous to 1847, when no distinction 

was made between mineral and nonmineral lands, and a coal mine, 

which, like the Kawau mine, never proved of any value, had been 

opened at Nelson as early as 1842. How soon government leases 

were issued under the instructions and regulations can not be determined, as most of the early government records were lost when the 

capitol was transferred from Auckland to Wellington. It appears, 

however, that leases were issued in 1852 for coal and copper in the 

vicinity of Nelson, presumably under the 1850 regulations.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 145

In the same year alluvial gold was discovered near Coromandel 

Harbor, and provisional regulations were at once issued. These, 

like the first Victorian and New South Wales regulations, related 

only to the digging of alluvial gold, and fixed the same fee of 30s. 

per month. The lands involved were native lands and were entered 

under special agreement with the natives; the government, in addition to paying a fixed sum to the natives, based on the number of 

miners, agreed to give to the natives 2s. from the amount received 

for each miner's license. This gold field did not prove of much importance and was for a time abandoned; the necessity for special 

S)ld mining laws, therefore, did not arise until some years later, 

old was found in Nelson in 1857 in sufficient quantities to cause 

some excitement, and as the field showed some evidence of permanency there resulted the gold-field act of 1858. This was largely 

based, as were succeeding gold-field enactments, on the Victorian 

statutes. However, it was not until 1861 that finds of sufficient 

importance to attract more, than local attention were made. In 

that year large discoveries were made in Otago, and the first gold 

rush which affected people beyond the colony begun. In 1861 

$3,750,000 worth of gold was produced in the field, and this rose to 

$7,500,000 the succeeding year, and to almost $12,000,000 in 1863. 

The excitement here had hardly begun to subside when considerable 

finds were made in Marlborough, and in 1865 the famous West 

Coast gold fields were discovered. About this time rich lodes were 

found in the Coromandel fields and the importance of New Zealand 

as a gold-producing region firmly established. At first the work 

was conducted wholly on the basis of miners' rights and claims, but 

in October, 1859, an application was made for a gold mining lease 

in Nelson, and in 1860 numerous applications were filed. As the early 

period of alluvial digging passed, more and more developments 

were undertaken on leases and the miners' right claim was gradually 

restricted until to-day only alluvial ground can be held under this 

form of tenure; all reef or lode development must be undertaken 

under license or lease.

In 1859 the coal field near the Clutha River, in Otago, was reserved 

and mining leases issued. In 1862 reserves were made in Nelson 

covering the high-grade bituminous coals of that region. Coal leases 

were at once issued and the development of this, the most important 

coal field in the colony, was begun. Coal was not exported in any 

quantities until 1867. Mines have been opened gradually in many 

parts of the State, but except in the West Coast coal field the coal is of 

a subbituminous or lignitic character.

The developments of minerals other than gold and coal have thus 

far not proved of much importance, with the exception of the fossil 

resin, Kauri gum. This substance was first dug in quantities in 1853, 

and the total production to December 31, 1906, had a value of 

£13,443,017.

The mining law for coal and minerals other than gold was for many 

years interwoven with the land regulations of the provinces. Under 

the constitution act of 1852 New Zealand was in 1853 divided into 

six provinces; the two old provinces of New Munster and New Ulster 

were abolished and the new provinces were named Auckland, New 

Plymouth, Wellington, Nelson, Canterbury, and Otago. This num16014° Bull. 505 11 10
146 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

ber was afterwards increased to 10 by the formation of the provinces 

of Hawkes Bay, Marlborough, Southland, and Westland, and the 

province of New Plymouth was reorganized and renamed Taranaki. 

Each of these provinces had a superintendent and a provincial council, 

and there was a governor and general assembly for the whole colony. 

Each province had its own land laws, and the administration of these 

laws rested wholly with the local officials. Although these provinces 

were abolished in 1875 and a central land office created in 1877, the 

local administration by land boards has continued to this day, and 

until 1892 separate provisions were made under the lands act for 

several of the old provincial areas which had been renamed land districts. In 1892 the lands acts were made uniform for the whole colony. The local land boards are still, for the most part, charged with 

the classification of the lands; in this they are assisted by a trained 

permanent corps of land surveyors, appointed only after rigid examinations. This force is under one surveyor-general, who is a highly 

trained officer, comparable to the head of the Coast and Geodetic 

Survey of the United States. The New Zealand land office is strong 

just where the American land office is weakest.

It may be noted in passing that the striking retention of the mineral lands, which was touched upon in the introduction, has been 

effected not by a single department but (for almost twenty-five years, 

or during the time of the provincial administration) by 10 entirely 

independent bodies. That they all adopted the same policy but adds 

to the impressive character of the results and clearly indicates a 

strong and general public feeling. All this happened long before any 

Labor or Progressive party was even thought of in New Zealand, 

and the matter is to be regarded not as a socialistic propaganda but 

as a simple business judgment. There was throughout this period 

always the provision for sale, and that practically no known mineral 

land was sold is clearly a most convincing indorsement of the success 

and practicability of government mineral leasehold. Had it been 

found desirable or necessary to sell the freehold of mines in order to 

promote mining industry and the general welfare of the region there 

can be no question but that the minerals would have been sold.

In some cases these provincial regulations also touched gold mining. 

In several of the early gold-fields acts no rental was fixed, and this rental 

was determined in each province. The Nelson waste-lands act of 

1863 provided that gold leases should be issued at a rental of 10 per 

cent of the value of the land involved, but that no land should be 

valued at less than £10 per acre. It further provided that "before 

a lease is granted the land may be offered for sale at public auction 

at the upset price on which the rent is charged." This is the only 

specific provision which has ever been made in Australasia for the 

sale of known auriferous lands.

Although a general mining act was passed in 1877, provisions regarding mineral leases continued to be incorporated in the lands acts for 

several years. Special acts were from time to time passed with 

reference to certain coal fields, and in 1886 the coal-mining law was 

entirely separated from the other mining law. Scarcely a session of 

parliament has passed without the enactment of an amending mining 

bill, so that taken all in all the number of acts which have been 

passed in New Zealand containing provisions regarding mining is 

very large. The existing law as to minerals other than coal and
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 147

Kauri gum is found in the mining act of 1905. This is a compilation 

of the acts in force at that time and is in many respects the most 

ill-organized, inexplicit, incomprehensible mining law to be found in 

Australasia. It is simply a patch work of the different acts without 

any attempt at elucidation or coordination. A New Zealand mining 

man explained this result in this way:

We are very well satisfied with the working of certain features of the old laws; no 

one knows what they meant and we would certainly not have gained anything by a 

discussion of the points involved; the law, therefore, is nothing more than a haphazard pasting together of the then existing acts.

RIGHT OF A MINERAL LESSEE TO PURCHASE FREEHOLD OF LAND AND 

MINERALS COVERED BY HIS LEASE.

The first mineral land regulations of 1850, in addition to stating 

that leases of "so much land as may be necessary for the efficient 

conduct of mining operations" would be granted for a period of 

twenty-one years on payment of a royalty of one-fifteenth, gave to 

the mineral lessee the right to demand, after he had worked the 

property three years, that it be put up at public auction and sold at 

an upset price of not less than 21s. per acre. The minimum price for 

ordinary land was then 20s. per acre. This provision, which gave to 

the mineral lessee the right to acquire the freehold of mineral lands 

on the fairest basis to the government that has yet been devised, 

continued in force until the creation of the provinces in 1853, when it 

was incorporated in the regulations of the provinces of Auckland, 

Nelson, and Otago, which were then the only provinces known to 

contain mineral of value. In Auckland and Nelson the lessee could 

demand that the land be put up at auction, but in Otago it was left 

with the officials, the law providing that "the land comprised in any 

mineral lease may, at the request of the lessee, * * * be put 

up for sale at public auction." Nelson withdrew this privilege 

in 1861, Auckland in 1867, and Otago in 1872. A provision similar 

to that in Otago was adopted for Southland in 1867 and abandoned 

in 1877, and for Westland in 1877 and abandoned in 1892. For 

seventeen years in the most important mineral-producing region of 

the state a mineral lessee thus had the right to demand the sale of 

mineral land at public auction after three years' development work at 

an upset price varying from 10s. to 21s. per acre, and such a sale of 

land held was authorized in one part of the colony or another for 

forty-two years; yet a record could be found of the sale of only 150 

acres in this way.a

The conclusion that forces itself is that a leasehold under fair conditions is more satisfactory than the expenditure of capital in purchasing the property at its true value. Tasmania, between 1863 and

a The mines department reports that no land was ever sold in this way, and the government geologist, Alexander McKay, who perhaps knows more of the mining history 

of the colony than any other man, reports that he knew of no such sale, although he 

did know of land which had been sold when it should not, which may account for a 

part of the 10 per cent of the mineral production which comes from freehold lands. 

The case here cited is of a lease issued in 1875 to the Graymouth Coal Company for 

1,000 acres, which gave the lessees the option of purchasing the freehold of the land, 

and 150 acres of the lease was finally sold at £5 per acre. (Report royal commission on 

workings of coal mines of New Zealand, Parliamentary Paper C-4,1901, p. 17.) From 

the statement of Mr. McKay and other mining men, this is to be regarded as the exception that proves the rule.
148 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

1870, adopted this general plan, but with the exception that the price 

to be paid was fixed by arbitration instead of by public auction; and in 

the report on that State, in explaining why no lands were sold in this 

way, it was suggested that it was due to the fact that no mineral leases 

were issued during this period; but this is clearly not the explanation 

in the New Zealand case. It but shows the operation of the same 

tendency which was noticed in South Australia and New South 

Wales, where mineral leases were taken out when the freehold could 

have been purchased at a very low price, and conclusively proves a 

distinct natural economic demand for leasehold tenure in the development of minerals.

Although this plan was generally tried without government intervention, the "canny Scotch" of Otago Province as early as 1859 

decided it was not a good business policy to let the lessee buy the freehold of the mineral land, even if he so desired. The select committee 

of the provincial council (New Zealand was then divided into six 

provinces, each with a local government of its own comparable to our 

own state governments), which was appointed in this year to report 

on an application for a lease in the Clutha coal field, pointed out that 

the land regulations provided that lands held under mineral lease 

might be put up at public auction and that a lease was "therefore an 

implied promise to sell the mine." The committee concluded that 

it was not advisable to part with the freehold and therefore no 

lease should be granted. In order to permit the development of 

the land and at the same time to prevent its alienation, the committee recommended that an area of 7,000 acres be purchased by 

the provincial government. Such a provincial estate, they pointed 

out, would not be subject to the general land regulations, and leases 

could therefore be issued without any implied promise to sell the 

land. The land was therefore purchased by the provincial government, money was advanced for the construction of a tramway, 

and a lease issued at a rental sufficient to cover the interest on the 

money advanced.

CEEATION OF MINING RESERVES AND MINING DISTRICTS.

Lands have at different times, to a greater or less degree, been specifically reserved from the operations of the ordinary land laws oy 

the following means:

(1) By the creation of special mineral reserves;

(2) By the proclamation of gold fields; and

(3) By the formation of mining districts.

Although the early land laws and regulations gave the governor 

power to make reserves for public purposes, they did not define mining 

as a public purpose, but when mining reserves were desired there was 

apparently little hesitation in deciding that mining was a public purpose. To Governor Gray's decision on this point New Zealand owes 

the present Buller, Nelson-Gray, and Westend-Gray coal field reserves, 

which were created in 1862 for "mining and other public purposes." 

These include some of the most valuable bituminous coal fields in the 

colony, and the whole area covered by these reserves has been the 

subject of considerable legislation under the designation of the Westland and Nelson coal fields.

The proclamation of gold fields was authorized by the mining act 

of 1858, and the act of 1860 declared that gold fields should not be
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 149

subject to the waste lands acts or the lands regulations. In 1863, however, Otago declared that lands in gold fields might be bought under 

the provisions of the waste lands act and Southland in the same year 

declared all gold fields subject to the land laws. This robbed gold 

fields to some extent of any significance, and in 1871, without the 

repeal of the existing gold fields law, -a gold mining districts act was 

passed, which authorized under this name the reservation of specified 

areas for gold mining purposes. The 1877 mining act authorized the 

creation of mining districts for all minerals, declared all gold fields 

to be mining districts, and exempted such areas from the operations of 

the lands acts. This is essentially the condition to-day. All areas 

containing minerals of importance are included in mining districts. 

In such areas land is disposed of only by means of leases. Leases for 

purposes other than mining are subject to cancellation at any time 

upon payment of compensation for improvements. As to areas outside or mining districts, mining leases may be granted by the commissioners of crown lands in the same way as leases for other purposes. 

For a short period, about 1898, only the wardens were authorized to 

grant mining leases, but as this led to some delay and trouble outside 

of the mining districts, the old plan of giving the land commissioners 

power to issue such leases was readopted.

RESERVATION OF MINERALS IN GRANTS AND LEASES.

In considering a request for the sale of the surface of a small area 

in the Clutha coal field a select committee of the Otago provincial 

council in 1859 reported that "the proposition as to the sale of the 

surface can not be complied with, as every sale of land must be 

absolute and entire." This principle has been the guiding one in 

New Zealand to this day; no deeds of grant in fee simple contain any 

reservation of minerals, although such a reservation is in part suggested by the provision in the resumption for mining purposes act 

of 1873, that land alienated thereafter should be subject to resumption on payment of value other than auriferous.

In 1870 a select committee of the Nelson provincial council recommended that "in all future sales of lands all mines and minerals 

should be reserved, together with the right to search for and mine the 

same," but the land board opposed this recommendation and nothing 

further was done. In the same year it was provided in the Westland 

waste lands act that in all grants the right to search for gold should 

be reserved for fourteen years after date of grant on payment of compensation for damages, but this plan was abandoned in 1877. The 

Otago waste lands act of 1872 likewise provided for the sale of lands 

on gold fields with the reservation of the right to search for gold, but 

this plan was abandoned in 1877.

While no deeds in fee simple contain a reservation of any minerals, 

all leases except for minerals contain a reservation of all minerals and 

are subject to cancellation on discovery of minerals and reimbursement of lessee for improvements. This plan was first adopted by the 

province of Nelson in 1854. It is the form of tenure which has been 

adopted in all mining districts, because it does not involve the alienation of mineral values.

Although the plan of not reserving any minerals in any grant in 

fee simple has worked very well in New Zealand because of the great
150 MINING LAWS OF AUSTRALIA AND NEW

efficiency of the public service, and because of the very active and 

personal interest which the New Zealanders take in the administration of their national affairs, the conditions existing in the United 

States are such that a reservation of all mineral in agricultural patents would be a much wiser plan. This plan has been adopted in all 

the Australian States, with the -exception of Queensland, and here a 

similar law will probably be passed the coming session of parliament, 

as such a change has been incorporated in bills which have been 

before parliament for three years and have not been passed, not because of any objection to this provision, but because or the opposition 

of the Labor party to clauses allowing more liberal development 

covenants.

RESUMPTION OF LAND FOR MINING PURPOSES: COMMON-LAW RIGHT 

TO THE PRECIOUS METALS.

In addition to the resumption of lands by the cancellation of agricultural and pastoral leases, freehold land may be resumed for mining 

purposes without the consent of the owner in the following cases:

(a) For mining other than coal mining: (1) All lands alienated from 

the government since September 29, 1873; (2) all lands alienated 

from native owners since August 30, 1888; and (3) all government 

lands alienated prior to September 29, 1873, or native lands prior to 

August 30, 1888, which were included in a mining district on October 

17, 1896.

(5) For coal mining: (1) All lands alienated from the government 

since September 25, 1891, and (2) all lands alienated from the native 

owners since October 30, 1888.

Lands which are being actively developed are, however, not liable 

to resumption in any case, and if the owner of a freehold signifies to 

the department that he is willing that the land be deemed open for 

mining he is allowed to retain possession of the same and receives all 

rents and royalties collected. In all cases where the land is taken by 

the government full compensation is paid for the value of the land 

resumed other than auriferous and argentiferous.

The exception of gold and silver values from the compensation rests 

for the most part not on the common-law right of the government to 

these metals, but on the specific provision in the resumption of land 

for mining purposes act, approved September 29, 1873, that land 

alienated after that date should be subject to resumption under such 

conditions. It is in this respect a partial reservation of the precious 

metals. The common-law right is involved only in the justification 

of the assertion in the mining act of 1896, that all freehold lands which 

were then within a mining district, no matter when alienated, should be 

subject to resumption without payment for any gold or silver that 

might be on or under the land if the freeholder could not establish a 

right to such minerals. This; however, differs very markedly from the 

all-embracing declaration of the other Australian States that the gold 

in all lands, whensoever alienated, is the property of the government. 

The reason that New Zealand has never asserted this common-law 

right lies in the fact that practically no payable auriferous land has 

been sold, and hence there has been no economic demand for such an 

assertion. This is likewise the reason, as in Tasmania, why no mining 

on private property acts have been passed.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 151 

TERMS AND CONDITIONS OF LEASES.

The first mining leases in New Zealand were probably those issued 

in 1852 for coal and copper in the vicinity of Nelson. The first 

act or regulation specifically providing for gold leases appeared in 

1862, and numerous leases were at once issued thereunder. Applications were made for gold leases some time before this date, and 

while some leases may have been issued by special authorization of 

the governor, the number was very small.

Mining leases are provided for under several different designations in the present New Zealand acts and regulations. The first 

innovation in this respect is found in the mining act of 1886, in which 

the term "mining lease" is abandoned as applied to holdings in mining 

districts, and the terms "licensed holding and "licensed claim" substituted. An amending act the following year provided for mineral 

leases outside of mining districts, but if such a leased area was afterwards included in a mining district the lease must be canceled and a 

license issued in lieu thereof. In the mining act of 1891, and the 

regulations thereunder, a gold mining lease within a mining district 

for less than 5 acres is called a "licensed claim;" a gold mining lease 

within a mining district for minerals other than gold is called a 

"special claim" or "mineral license" according to the clause under 

which it is taken out. Areas outside of mining districts may, as in 

1886, be held under mining lease, but if incorporated in a mining 

district licenses are required in lieu of leases. The mining act of 1898 

went a step farther and abandoned the use of the term lease altogether 

as applied to mining holding. Under this act there are "licensed 

holdings" including "claims," "extended claims," "special claims," 

and " mineral licenses." Claims are restricted to mining districts and 

,to gold mining, and no provisions is made for a holding of any kind 

;for the purpose of gold mining outside of mining districts. Amendments were passed in 1902 affecting the Nelson land district, and in 

.1904 regarding prospecting warrants and these reintroduced the term 

'"mineral lease." When all these acts and amendments were incorporated in the mining act of 1905 there resulted the following forms 

vof mining leases for substances other than coal:

"Licensed claim" or "extended claim." A. lease for gold for not exceeding forty-two 

 years for not exceeding 5 acres, within a mining district.

'' Special claim.'' A lease for gold for not exceeding forty-two years for not exceeding 

100 acres within a mining district.

"Mineral license." A lease for one specified mineral other than gold or coal for not 

exceeding forty-two years for not exceeding 320 acres either within or without a mining 

district; subject to cancellation if land is found to be auriferous.

"Mineral lease." A lease for a specified mineral other than gold or coal for not 

exceeding sixty-three years for not exceeding 1,000 acres; selected from an area covered 

by a prospecting warrant; not subject to cancellation if found auriferous but subject 

to different conditions of exemption from labor than a mineral license.

" Mineral lease," Nelson land district. A lease for one specified mineral other than 

gold or coal for not exceeding forty-two years for not exceeding 1,000 acres in a specified 

area in the Nelson land district; not subject to cancellation if land is found to be 

auriferous.

In the mineral license the rent is in all cases a credit on the royalty, 

but in a mineral lease the rental does not become a credit on the 

royalty unless and until the royalty exceeds the rental.
152 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Terms under which leases have been issued at different times in New Zealand.

Instructions of 1846. . .................

Instructions of 1847. ..................

New Plymouth regulations, 1855. .....

Nelson land regulations, 1856. .........

Auckland land regulations, 1858. ......

Nelson waste lands regulations amendGold fields act, 1862 ...................

Gold fields act, 1866 ...................

Bullercoal field reserves act (Nelson), 

1863*. ..............................

Buller coal fields reserves amendment 

act, 1866............................

Otago waste lands act, 1866. ..........

Southland waste lands act, 1867. ......

Auckland mineral leases act, 1871 .....

Westland waste lands amendment 

act, 1873............................

Mining act, 1877. ......................

Regulations, 1877 .....................

Westland and Nelson coal fields act, 

1877.................................

Mining act, 1886. ......................

Mining act, 1891.......................

Mining act, 1898. ......................

Coal mines amendment act, 1901 ...... 

Mining act, 1905. ......................

Coal mines act, 1905. . .................

Maximum term of years.

Gold.

\ 00

15

\

'

\

21

21 

15

1 " 

1 21

Minerals 

other 

than gold 

and coal.

Coal.

21 

21

21 

21 

21 

21 

21

21

2 

2

2 

2 

2

1 

1

99

L 

1

1

21

3

21

21 

42 

42-63

)

99 

30-90

66 

66 

GC

Maximum area in acres.

Gold.

00 

00

10

No limit.

No limit. 

dlO

No limit.

No limit.

100 

100 

100

Minerals 

other 

than gold 

and coal.

Coal.

fb\ 

fb\

80 

1.280 ico

80 

1,280

1,2 

1,2

8 

/!( 

80

<

200

320

640 

320 

320-1,000

80 

80

5,000 

) 

)0 

640

>

(7640

No limit. 

C40

2,000 

2,000 

2,000

a Gold not specifically included, but gold-mining lease could probably have been issued, 

b To be fixed.

cSo much as may be necessary for the efficient conduct of mining operations. 

d400 by 200 yards for quartz.

e In 1863 six leases covering 6,400 acres were issued for twenty-one years at a rental of 5s. per acre per year 

and a royalty of 6d. per ton on coal and 5 per cent on all other minerals. 

/ Increased to 40 acres in 1874. 

a In the body of the act the maximum is given as 640 acres.
MINING LAWS OF AUSTRALIA AN1> NEW ZEALAND. 153 

Terms under which leases have been issued at different times in New Zealand Continued.

New Plymouth regulations, 1855. . . .

Auckland land regulations, 1856. ....

Auckland land regulations, 1858.

Nelson waste lands regulations

Gold fields act, 1862. ................

Gold fields act, 1866. ................

Buller coal fields reserves act (NelBuller coal fields reserves amendOtago waste lands act, 1866. ........

Southland waste lands act, 1867.

Auckland mineral leases act, 1871. ..

Westland waste lands amendment

Gold mining districts act, 1873 ......

Mining act, 1877. ....................

Westland and Nelson coal fields act, 

1877. ..............................

Mining act, 1886. ....................

Mining act, 1891. ....................

Coal mines act, 1891 .................

Mining act, 1898. ....................

Coal mines amendment act, 1901 ....

Rent per acre per year.

Gold.

(«) 

[ («)

} (") 

(')

}.........

}.........

}.........

}.........

»£25

I """

>£l-£2.5 

£2.

\ £1.

J£l.

* 10s. 

(n) 

7s. 6d. 

('») 

7s. 6d.

Minerals 

other 

than gold 

and coal.

Coal.

None. 

None.

XT(6)

None. 

None. 

None. 

None.

<J2s.

/Is.

a Is. to 5s. 

ffls. to 5s.

(') 

(") 

(»)

(<>)

Is.

2s. 6.

2s. 6d. 

] 2s. 6d. 

) 2s. 6d.

6d. -5s.

( b) 

ls.-5s.

ls.-5s. 

ls.-5s. 

ls.-5s.

Royalty on gross output.

Gold.

(«) 

(°)

2s. 6d.

2s. Od.

2s. 6d.

2s. 

2s.

2s.

7T.2S.

m2s. 

"»2s. 

m2s.

Minerals 

other 

than gold 

and coal.

G§ per cent.

/2-10 per 

\ cent. 

p-10 per 

\ cent.

None. 

(") 

None.

None.

fl-2 per 

\ cent.*

f2-4 per 

\ cent.*

/2-4 per 

\ cent.* 

|l-4 per 

1 cent.0 

11-4 per 

\ cent.

Coal per 

ton.

15 per cent. 

G§ per cent.

6j} per cent. 

Nominal.c 

63 per cent. 

O'i per cent. 

6§ per cent. 

2 to 4 per 

cent.d

2 to 4 per 

cent.0

J3d. to 12d. 

J3d. to 12d.ff

Is. per 

ton.*

(&) 

\3d.tols.ft

\3d. to Is.*

J2d. to Is.o 

/2d. to Is.o 

\ (JO

a Gold not specifically included, but gold-mining lease could probably have been issued.

6 To be fixed.

cln 1862 and 1864 leases were issued at a royalty of 4d. per ton for first two years and 8d. per ton thereafter.

<JIn gray-coal district such higher rental and royalty as may be fixed.

e 10 per cent of capital value.

/6d. first two years.

a All rent a credit on royalty.

ft In 1863 six leases covering 6,400 acres were issued for twenty-one years at a rental of 5s. per acre per 

year and a royalty of 6d. per ton on coal and 5 per cent on all other minerals.

»At the rate of £1 for every 1,500 square feet.

/£l'per acre without a mining district and £1 for every 15,000 square feet within.

* If royalty exceeds rent, rent charge ceases.

1 10s. first three years, 15s. next two years, and £1 thereafter in a mining district; 10s. throughout term 

outside of mining district.

m Export duty on gold abolished for South Island on March 31,1891.

»2s. 6d. first year, 5s. second year, and 7s. 6d. thereafter.

o No royalty payable on unsalable waste coal or rubbish.

pin practice 6d. per ton for bituminous coal and 6d. and 3d. for brown coal.
154 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Area of leases Amalgamation and consolidation. As shown by the 

foregoing table the general tendency of the New Zealand mining 

acts has been to allow larger areas and the maximum now permitted 

in ordinary cases is rather more liberal than in the Australian states. 

'The early gold enactments, based on the Victorian statutes, placed 

.no definite limit on the size of a gold lease, but the maximum area 

was usually fixed at 10 acres in the general and provincial regulations. 

As to minerals other that gold large areas were allowed in some of the 

 early Nelson regulations and waste lands acts, but these were based 

. almost wholly on the needs of coal lessees. In connection with the 

Buller coal field reserve areas of as much as 5,000 acres were authorized in 1866, the law providing that in addition to the usual maximum of 1,280 acres the area might be increased at the rate of not 

exceeding 1 acre for every pound expended up to a limit of 5,000 

acres. This law was repealed in 1877 and no lease of the maximum 

size was ever issued.

There is under the present law no limit to the area which may be 

worked as one property for any substance except coal, as the law provides that "in every case where two or more claims or other mining 

privileges contiguous to one another, or worked in conjunction with 

one another, are held by the same person, or by copartners in mining, 

it shall be a sufficient compliance with the labor conditions if the 

total number of workmen employed on any one or more of such 

claims, or other mining privileges taken collectively, is not less than 

the total number prescribed for all such claims taken separately." 

No application is required and no check is now possible in this matter. This privilege has been very extensively abused in New Zealand, 

and the following remarks of Mr. John McCombie, mine manager of 

the Talisman consolidated mine, Karangahaki, are decidedly to the 

point:

Exemption from work is very often granted to companies over extensive areas of 

auriferous country because they happen to have a large staff of hands employed in 

one very small corner of the same. There is nothing objectionable about this system, 

provided the ground covered by such protection is within reasonable distance of the 

section upon which work is centered, and that there is a chance of its being exploited 

sooner or later from the same base of mining operations. On the other hand, however, 

it is very detrimental to the general welfare to grant mining companies protection year 

after year for ground that is located a long distance off their main workings, and upon, 

which they have no intention whatever of doing any development. There are innumerable instances of this all over the gold fields of the colony, and the law in this respect undoubtedly requires some alteration. There should be a limit to the area over' 

which protection could be legally claimed, and in no case should protection be extended to cover any ground that is not contiguous to the principal workings.

The clause "or worked in conjunction with" makes it possible to 

speculatively hold large areas. A company could easily claim in 

respect to a large reduction plant that that plant was designed to 

handle all the ore from claims scattered for several miles around.

In coal leases areas exceeding the maximum are permitted only 

after the matter has been submitted to parliament, it being provided, 

that if parliament does not take definite negative action that the 

consolidation takes effect at the close of the session. The Westport Coal Company, the largest coal company in New Zealand, holds 

leases for the following areas: 359,478,1,745, and 2,951 acres; the first 

three are worked practically as one property.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 155

Duration of leases Renewal. The tendency in New Zealand legislation has been to lengthen the term of mineral leases. This was first 

increased from twenty-one to forty-two years, and in 1904 a further 

increase to sixty-three years was made in certain cases. Ninety-nineyear leases have been issued for coal mining, but the period now 

adopted is sixty-six years.

The Auckland waste lands act of 1871 provided for the renewal on 

such terms as might be fixed and the Nelson waste lands act of 1874 

for renewal at double rental and royalty. Under the present acts 

all lessees have a right to indefinite renewal, subject to the acts and 

regulations in force at the time of such renewal.

Rental and royalty. The first mineral regulation provided for a 

royalty but no rental. A ground rental was then charged and in 1863 

the waste-lands act initiated the plan, which is now in force, for all 

minerals except gold, of a rental merging into royalty. Two plans 

have been tried and, strange to say, both are in vogue under the existing law. Under one, all rent is a credit on the royalty and under the 

other both rent and royalty are paid unless the royalty in any one 

year exceeds the rental when the rental for that year ceases. The 

first plan is followed in all mineral licenses and in mineral leases in the 

Nelson district, and the second in all other mineral leases and in coal 

mining leases. To avoid dispute as to the value of minerals on which 

royalty is charged the value per unit for purposes of royalty is fixed 

before a lease is issued. The present practice is to charge 4 per cent 

on minerals other than gold and coal, 6d. per ton on bituminous and 

subbituminous coal, and 3d. to 6d. on brown coal. In addition, all 

coal companies pay a tax of one-half penny per ton into the coal 

miner's accident relief fund and the public trustee administers this 

fund on behalf of miners maimed or killed. In case of accident 2s. Id. 

per day is paid to the miner up to a total of £50. In case of death 

payment is £50.

Conditions of application for leases. All applicants are required to 

deposit one-half year's rent with such survey and other fees as may 

be required. Applicants for coal or mineral leases must show that 

they are bona fide investors, financially able to develop the property, and willing to expend a certain amount of capital within a 

given time. In gold-mining leases no such conditions are required 

and the door is thus left open for an endless amount of "promotion" 

and speculation.

The manager of the Karangahaki mine, one of the larger New Zealand gold mines, who has already been quoted, reports:

The present system of granting gold-mining leases indiscriminately has a most injurious effect on legitimate gold mining. * * * During the gold-mining boom, 

which commenced some time in the year 1895, nearly the whole of the Hauraki Peninsula from Cape Colville to Te Aroha was marked off in leases for gold mining, and it took 

an army of surveyors nearly two years to define the boundaries. At that time I again 

and again heard unscrupulous men boast of their ability to float anything from a bowlder 

bank to a flax swamp. * * * Since then I have visited and examined several blocks 

covering a surface of many square miles that were marked off in separate areas averaging 100 acres each, and floated into companies in Auckland and elsewhere during the 

boom era. Now, there is not a reef nor the semblance of a reef, or a bit of country favorable to the existence of a reef in the whole of the territory referred to.

Mr. McCombie suggests that this might be remedied if the warden 

had power to refuse to grant a lease to any man or party of men who 

could not prove that the ground they are applying for is marked
156 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

off on the line of a known reef system, or that they have a reef exposed 

to view within their boundaries. It is not apparent that this would 

cure all the evils referred to; the United States has for many years 

required that an actual "discovery" was necessary to initiate a right 

to a mining claim, but then what is an actual discovery, and again, 

for practical purposes, what is a reef? With wise administration, 

Mr. McCombie's suggestion would certainly yield good in that it 

would tend to eliminate some absolute impossibilities; on the other 

hand, what would be the objection to granting a lease to a company 

that would demonstrate its financial ability and bona fide intention 

to undertake the development of a piece of land, even if it did not 

contain a known reef. Certainly some check on the floatation of wildcat schemes is desirable throughout the world in the interest of the 

investing public, and a step toward this end might be accomplished 

by requiring in all cases some guarantee of the prospective lessees' 

bona fides before granting a lease.

Development conditions. As to gold mining, the acts and regulations 

have generally required the employment of a specified number of men 

per unit area; as to other minerals, the laws generally required such 

covenants as would insure "regular, proper, and efficient mining," 

and the expression of this covenant in coal mining frequently took 

the form of requiring a minimum yearly output.

The labor required under existing law is'

For gold claims and leases:

For first year, one man for every 6 acres.

For second year, one man for every 4 acres

For third year, one man for every 3 acres. 

For mineral licenses and leases other than gold and coal.

For first and second years, one man for every 50 acres.

For each succeeding year, one man for every 25 acres.

Exemption to the extent of one-half the required labor is allowed 

for expenditure at the rate of one man for every £1,000 expended 

on plant or permanent work; otherwise, exemption rests wholly in 

the discretion of the warden, and this, as in the Australian States, is 

the main point in the mining law criticised by capitalists. Mr. 

Charles Rhodes, secretary of the great Waihi Gold Mining Company 

and one of the leading mining men of New Zealand, in response to 

an inquiry regarding the maximum amount of exemption which 

should be allowed as a right for any expenditure, however large, fixed 

the period at five years. This on a forty-two-year lease granted in 

New Zealand is about the same ratio as the three-year period allowed 

in Tasmania on a twenty-one year lease.

While New Zealand has, in respect to gold and minerals other than 

coal, taken no steps to satisfy the demands of the advocates of a 

greater security of tenure, except to increase the term of leases from 

twenty-one to forty-two years, and to provide for a fine in lieu of 

forfeiture, its coal-mining law meets all these demands and the coalmining leases of the country are perhaps the most liberal in Australasia. In the coal-mining leases the development conditions are 

expressed in money expenditure per year and total coal yield; no 

coal lease is liable to forfeiture unless the lessee fails after three 

months' notice to remedy the breach complained of. In 1891 New 

Zealand provided that no coal lease should be forfeited owing to
MINING LAWS OF AUSTRALIA AND NEW ZEALAND.0 157

failure to comply with labor conditions during strikes, and this provision, therefore, antedates the Tasmania enactment in this respect 

by fourteen years, although Tasmania still remains the first State to 

provide for such an exemption in all mining leases.

Why New Zealand should thus differentiate between mining for 

coal and other minerals is not very evident, and it would seem that 

those holding gold and mineral leases other than coal have just cause 

for complaint against this discrimination.

Forfeiture. The New Zealand law does not recognize any form of 

automatic forfeiture. No mining privilege is open to reentry until 

declared forfeited by a court of competent jurisdiction. In recent 

years such forfeiture has been effected through the warden's court 

oy a suit for a decree of forfeiture, and this is one of the methods 

still in vogue; the other method is explained in Gilkinson's Law of 

Gold Mining in New Zealand, as follows:

The bringing of a suit in all cases having in experience proved a somewhat expensive 

and cumbrous procedure, an endeavor was made to remove the necessity of same in 

certain events. A new system, by which unoccupied claims on which there was no 

plant should be deemed abandoned and might be taken up as new claims without a 

suit, was introduced by section 108 of the mining act, 1886. That section was followed 

by sections 60 and 149 of the mining act, 1891. An entirely new procedure, however, 

was introduced by sections 151, 152, 153, and 154 of the mining act, 1898. These 

sections enumerate certain acts and defaults on the happening of which the mining 

privilege so affected shall be deemed to be abandoned.

A privilege is to be deemed abandoned by operation of law in the cases which may 

be summarized as under:

(1) Tf intentionally abandoned.

(2) If unoccupied, etc., for one month; or if machinery, etc., exists upon it, if unused 

for three months.

(3) If in case of a race or a dam for nonmining purposes it is unused, etc., for twelve 

months.

(4) If in case of a business or residence site it is unused, etc., for six months.

(5) If default has been made for twelve months in payment of rent, royalty, or 

license fee (sec. 151).

(6) If in case of an ordinary mining race 

(a) It is unused for three months, or if water does not flow continuously therein for 

seven days.

(6) If a "dry" or "branch" race, if not used for six months.

(c) If race out of repair for two months without steps being taken to repair (sec. 152).

These acts and defaults differ in degree rather than in kind from those for which a 

suit for forfeiture may be brought.

Instead of a decree of forfeiture by the warden's court, a certificate of abandonment 

by the warden is granted. The procedure laid down by the act of 1898 can not be said 

to be any simpler than that pursued in bringing a suit.

DUAL TENURE.

In all mining leases in New Zealand a right to mine only a specified 

mineral is granted. The right to mine other minerals may be granted 

to a person other than the original lessee if operations can be conducted without interfering with those already under way. The 

provision in this respect appears to give to the government officers 

discretionary power sufficient to prevent any conflict in this matter, 

but some of the mining men feel that there is a danger and favor a 

system in which the leases cover all minerals. To restrict leases to 

only one substance seems to be one extreme and to provide that in 

all cases they should include all substances is quite as much the other 

extreme.
158 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

MINERS' RIGHTS AND CLAIMS.

Miners' rights and miners' right claims were originated in Australia 

as a police and administrative measure for alluvial gold mining, and 

they first appear in New Zealand law in this form; gradually in both 

New Zealand and Australia the miner's right claim was extended to 

cover all sorts of gold deposits, and in Victoria many large mines were 

opened and developed solely on a claim-hold title. In many Australian States miners' right claims are now allowed for all minerals, 

but New Zealand has returned to the original idea and permits a 

miner's right claim only for alluvial ground of an area of 1 acre or 

less. All other gold claims are held, not under miners' rights, but 

under licenses, which are in all particulars except name merely leases.

Considered from the standpoint that the period of shallow gold 

digging, when one man could develop a gold claim and make it pay, 

has to a great extent passed, and that gold mining now involves the 

expenditure of considerable capital and the erection of extensive 

plants, and that for such work a lease is much preferable for all 

parties concerned, this action in New Zealand is perhaps more logical 

than that in Australia. But in this change the doctrine that no 

mining privilege could be obtained without a miner's right was 

retained. This makes the miner's right, except to ordinary alluvial 

claims, nothing more than a tax on mining; there is nothing left of 

the quid pro quo which was originally involved. The Western Australian plan, which admits the issuance of a lease without the preliminary requirements of a miner's right, is certainly much more just.

The miner's right under the 1858 act was issued for a period of one 

year at a charge of £1.' In 1877, following the Victorian practice, 

this period was increased to fifteen years, but in 1886 it was again 

reduced to one year, and the charge was fixed at 5s. for a miner's right 

covering public lands and 20s. for a right covering native land, and 

provisions to this effect are still in force.

PROSPECTING LICENSES AND WARRANTS.

The desirability of prospecting areas was early recognized in New 

Zealand. In the Nelson waste-lands act of 1863 provision was made 

for prospecting areas of not exceeding 6 square miles for all minerals, 

except gold. The fee charged was Id. per acre, and the license was 

good for one year. This plan was adopted in the mining act of 1877 

and the regulations thereunder. In addition, in the 1877 regulations, 

provision was made for prospecting areas in connection with gold 

mining several times the size of ordinary claims. These were held 

under miner's right. In the mining act of 1886 the maximum area 

for prospecting for mineral other than gold was reduced to 3 square 

miles, and the privilege was restricted to one specified mineral or 

metal. Under trie 1891 act the area was further restricted to 2 square 

miles within a mining district, but a prospecting license which was 

effective only outside of a mining district could be obtained for a 

specified area of any size on payment of £1 per year. The prospecting 

license outside of mining districts was apparently of a nonexclusive 

character and conveyed a right similar to that conveyed by a miner's 

rjght.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 159)

In 1895 the need of larger areas to promote prospecting for gold' 

found expression in the provision for extended prospecting licenses; 

and tunnbl-prospecting licenses; each gave an exclusive right for not 

exceeding 640 acres in the case of an extended prospecting license and1 

not exceeding 150 yards on each side of the mineral line of the tunnel, 

throughout its proposed length. These licenses included all the minerals which might be found in the land, except coal. In the mining; 

act of 1898 the old style prospecting license, which gave a right to° 

prospect for a specified mineral on not exceeding 2 square miles at Id.. 

per acre per year, was abandoned and provision was made for prospecting warrants and prospecting licenses. The former gave the< 

same nonexclusive right as a miner's right to search for one specified', 

mineral on a specified area on payment of £1 per year; the latter,, 

divided into ordinary and tunnel prospecting licenses, gave exclusive1 

right to an area not exceeding 100 acres in an ordinary license and: 

150 yards on each side of the tunnel in the case of a tunnel license om 

payment of Id. per acre per year.

In 1904 the matter was further complicated by the authorization; 

of another sort of prospecting warrant, which gave an exclusive right 

to prospect for a specified mineral over an area not exceeding 10,000' 

acres. This act did not repeal the 1898 act, and there was, therefore,, 

under the law a prospecting warrant, which "gave a nonexclusive right 

on payment of £1, whatever the area, and a prospecting warrantwhich gave an exclusive right on payment of Is. per acre per year.. 

When all these enactments were combined in the mining act of 1905,, 

there resulted another mixture of terms and ideas similar to that, 

discussed under leases. The beginning of this confusion is in both 

cases found just after the Progressive or Labor party came into power 

in New Zealand. This party has with respect to the mining law done 

little but to continue the principles already established, and the mining 

legislation as a whole certainly suggests a great lack of thoughtful 

consideration of new enactments and of careful legislative drafting.

The present law provides for the following forms of prospecting 

licenses:

A miner's right. This gives to the holder the nonexclusive right for one year to 

prospect for all minerals on all crown lands in the State open to prospecting on payment 

of a fee of 5s.

A prospecting warrant. This gives to the holder the nonexclusive right to prospect 

for all minerals over a specified area for one year on payment of a fee of £1. Such a 

warrant may be granted not only for crown lands, but for native lands, and as to gold 

to private lands alienated since September 29, 1873. Practically its usefulness would 

eeem to be restricted to the last class of land, for as to crown lands the miner's right 

seems to be more satisfactory and cheaper than a prospecting warrant.

A mineral prospecting warrant. Thid is the prospecting warrant of the 1904 act with 

the word "mineral" added for the sake of separating it from the preceding. It gives 

to the holder the exclusive right to prospect for not exceeding five years lor any one 

specified mineral over any crown lands specified in the warrant not exceeding an area 

of 10,000 acres. The rental on such a warrant is 1 penny per acre per annum for the 

first two years, 2 pence per acre for the third year, 3 pence for the fourth year, and 6 

pence for the fifth year. The applicant must deposit £50 for the first 1,000 acres and 

£25 for each additional 1,000 acres or part thereof, the deposit to be refunded at the 

rate of £50 for every £100 spent on actual development. The holder of such a warrant 

has the right to a lease for not exceeding 1,000 acres for not exceeding sixty-three years 

at such rent as may be decided. Labor must be employed on such a prospecting area 

at the rate of one man for every 250 acres.

An ordinary prospecting license. Gives the exclusive right to prospect for all minerals 

for one year over a specified area of l^,nd not exceeding 100 acres on payment of a rent 

of IB. per acre.
160 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

A tunnel prospecting license. Gives the exclusive right to prospect for all minerals 

for two years over a specified area not exceeding 150 yards on each side of the proposed 

line of a tunnel on payment of a rent of Is. per acre per year.

ENCOURAGEMENT OF MINING.

Exact figures regarding the total amount spent by the general and 

local government throughout New Zealand for the purpose of " opening up mineral belts * * * and for the development of mining 

industry" are not available. The mines department presents the 

following statement of the amounts contributed by the general 

government:

Summary of mining works subsidized by the Government of New Zealand, 1852-1906.

Nature of works.

SUMMAKY.

Compensation for proclamation of rivers as channels of discharge

Total.....................................................

Total cost of construction, or 

amount authorized 

.to be expended.

£ *. d. 

617,691 8 6

175,502 1 5

6,146 9 10

325 8 1

92,433 16 4

57,955 1 8

115, 563 2 1

25, 197 1 8

46,283 5 9

39,781 7 7

500 0 0

800 0 0

435 15 9

39,776 4 1

5,170 11 4

3,661 18 0

60 0 0

1,230,395 19 1

Expenditure by 

way of subsidy or 

otherwise, by 

mines department.

£ s. d.

584,619 8 5

103,283 12 2

4,759 6 2

325 8 1

36,740 0 7

32,455 1 8

111,855 17 3

25,197 1 8

31,265 0 5

39,781 7 7

500 0 0

800 0 0

285 15 9

39,776 4 1

3,428 11 4

3,011 18 0

50 0 0

1,021,247 0 2

In addition to the total of £1,021,247 here given as contributed by 

the general government, considerable sums have been granted by 

local bodies for the discovery of valuable minerals and in prospecting 

and other mining subsidies. In 1897 the government purchased the 

patent right to the cyanide process of gold extracting for £10,000, and 

allowed it to be used for a nominal royalty. Returns from this royalty up to October, 1905, entirely recouped the principal and since 

that time all persons in the colony have been free to utilize this process 

in connection with mining operations.

EXTENT OF OPERATIONS.

The department of mines in New Zealand does not prepare a comprehensive statement of the operations under the mining acts, but 

the following data has been supplied by the department:

Total areas held under mining acts in New Zealand on December 31,1906.

Acres.

Gold licenses and leases(1906)........................................... 76,087

Coal leases............................................................ 83,610

Prospecting warrants or licenses, extended prospecting warrants or licenses, 

and mineral licenses......................................:........... 77, 646

Total........................................................... 237.343
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 161 

RESULT OF TEST OF GOVERNMENT MINERAL LEASEHOLD.

The result of the test of government mineral leasehold in New 

Zealand affords a most conclusive demonstration of the soundness, 

practicability, and economic value of this form of tenure. For sixty 

years this State has provided for the sale and leasing of mineral lands, 

and yet practically no known mineral lands have been sold all have 

been leased. For forty-two years in one part of the State or another 

the lands comprised in mineral leases could be put up for sale at public 

auction at the request of the lessee after three years' development 

work, and for seventeen years the lessee could demand such a sale as 

a right, and yet an entirely negligible quantity of land was sold in this 

way.

This result has been attained not by arbitrary or despotic means 

but in a freedom-loving English-speaking country, a country which 

within the past year has conclusively demonstrated that it cared not 

for abstract doctrines but only for results. It can not be considered 

as the result of any socialistic or labor agitation, for during the first 

forty-four years the dominant political party was the Conservative; 

only in 1891 did the Progressive and Labor Party become of importance and it has done little more in connection with the mining law 

than continue the principles already established.

Had the policy of mineral leasehold not proved entirely satisfactory, the sale of mineral lands would undoubtedly have resulted, as 

is conclusively shown by the action of the State in regard to perpetual agricultural leases. One of the early acts of the Progressive 

or Labor Party was to provide for a 999-year lease for agricultural 

holdings. This was in response to the cry for the nonalienation of 

land but in providing for this form of tenure the settler was allowed 

to select between it and freehold. Under these conditions more 

land was taken up under perpetual lease than under forms of disposal leading to freehold and the advocates of this plan rejoiced. 

However, after a time the holders of perpetual leases desired the 

freehold and as a result of their demands a law was passed the last 

session of Parliament abolishing 999-year leases and permitting the 

holders of such leases to convert to freehold.

Not only is there now no demand for the freehold of minerals, but 

the mining men are practically a unit in regard to government leasehold as better for mining industry than freehold. They point out 

that this policy prevents persons from indefinitely preventing the 

development of the mineral wealth of the nation; that it guarantees 

if a property is not being worked that it will be opened at reasonable 

rental to any bona fide developer; that the government charge as to 

rental and royalty must of necessity be more reasonable than that 

which an individual would charge and that this tends to prevent the 

charges of private owners of land alienated before the policy of 

leasehold was adopted from being exorbitant and that the fact that 

no money is required to purchase the freehold leaves a larger sum to 

be expended in development.

16014° Bull. 505 11 11
CHAPTER VIII.

THE DEVELOPMENT AND PRACTICAL WORKINGS OF THE MINING 

LAW OF QUEENSLAND.0

OUTLINE OF HISTORY OF MINING AND MINING LAW.

The settlement of Queensland began with the establishment of a 

branch penal colony near the present town of Brisbane in 1824. The 

transportation of convicts was abandoned in 1840, and in 1842 the 

district was declared open to settlement, and the first sale of country 

lands occurred in the following year. Queensland was at this time a 

portion of the colony of New South Wales, under the designation of 

the Moreton Bay district, and while it was created a separate colony 

in 1859 its mineral land laws continued for many years to be based 

upon those of New South Wales.

The land regulations of New South Wales in 1843 announced that 

all deeds would convey to the purchaser everything above and below 

the surface, except that in some cases " precious minerals or metals 

might be reserved if they were known to greatly abound, but not otherwise." The reservation of coal which was enforced in New South 

Wales until 1847 because of the agreement with the Australian Agricultural Company was never enforced in Queensland, and this State 

began its public lands history by freely selling all mineral values. 

Under these conditions the coal-bearing lands in the vicinity of 

Brisbane were sold, and the first coal mine was opened at Ipswich in 

1843.

The assertion by the governor of New South Wales of the right of 

the government to all gold in lands, whether alienated or not, which 

followed the discovery of gold in 1851, did not prove of much practical 

moment in Queensland. Gold was not discovered here in paying 

quantities until 1858, and by this time the right of the government 

to gold in private lands was no longer enforced. Since 1885 a reservation of gold has been inserted in all deeds, but no steps have been 

taken to enforce the common-law right.

The discovery of gold in 1858 was followed by the discovery of 

copper in 1861, and with the passage of a law authorizing the sale of 

mineral lands at 20s. per acre, after development work of equal 

amount, considerable areas of copper-bearing lands were sold. In the 

late sixties and early seventies many important mining fields were 

discovered, including the Gympie, Ravenswood, Charters Towers, and 

Palmers Creek gold fields, the Stanthorpe tin field, and the Mount Perry 

and Cloncurry copper fields. With these gold discoveries the need of

o Australian Mining Law Report No. 7. Not formally transmitted to President. 

162
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 163

a revision of the New South Wales gold fields law of 1857, which had 

been in force in Queensland up to that time, became evident, and there 

resulted the Queensland gold fields act of 1874. New and amending 

mining acts followed from time to time, and the country is just now 

endeavoring to codify and revise its mining law as was done by Western Australia in 1904, by Tasmania in 1905, and by New South Wales 

in 1906.

The history of the policy of the government of Queensland with 

regard to the alienation of minerals shows the following stages:

From settlement of colony in 1843 to 1885: No reservation of minerals in deeds.

1843 to 1860: Lands sold without regard to mineral values until discovery of gold 

in 1858, when government instituted policy of refusing to sell any lands "when there 

was any reason to suppose that they contained gold." Under the gold fields act the 

governor could declare specified areas gold fields and practically exempt the lands 

therein from sale.

1860 to 1872: Mineral lands other than gold sold in areas not exceeding 640 acres at £ I 

per acre after an expenditure in development of a like amount. Coal lands were not 

sold between 1860 and 1865. After 1860 all leases contained a reservation of all minerals with the right to mine on payment of damages.

1872 to 1882: Mineral lands sold in areas not exceeding 320 acres at 30s. per acre 

after an expenditure of £1 per acre in development work.

1882 to date: Sale of known mineral lands practically abandoned and policy of 

leasing such lands enforced in all cases. Governor empowered to constitute, by proclamation, any portion of the public land a mining district. The effect of this was 

generally to reserve the land from sale, but even in a mining district lands not known 

to contain minerals were sold.

1885 to 1892: Gold reserved in all deeds.

1892 to 1898: Gold reserved in all deeds. Silver as well as gold reserved in all deeds 

for lands sold within a mining district or gold field.

1898 to 1899: Silver and gold reserved in all deeds.

1899 to date: Silver and gold reserved in all deeds. In gold fields and mining districts copper, tin, opal, and antimony are also reserved, in addition to silver and gold. 

The total area of all gold field and mineral fields was, in 1905, 12 per cent of the total 

area of the State or 51,011,433 acres. Since 1901 coal has been reserved in deeds for 

certain areas. An act is pending reserving all minerals in all deeds.

As a result of the free sale of mineral land prior to 1882 there are 

many freehold mining properties in the important mining camps. 

The leases issued since that time often cover areas adjacent to freehold properties, but the leaseholders do not appear to suffer any 

disadvantages from this condition.

Notwithstanding the free sale of mineral lands prior to 1882, the 

fact that, as to land sold prior to 1885, the government has never 

enforced its common-law right to the gold and the fact that the most 

important mineral discoveries were made prior to these dates, the 

bulk of the mineral production now comes from government leasehold. In 1906, 91 per cent of the total mineral production other 

than gold came from government leasehold, and including gold over 

95 per cent came from this form of tenure. The country in which 

this result has been attained has an area slightly less than the combined areas of Arizona, Nevada, Utah, New Mexico, and Texas, and 

in 1905 produced approximately as much gold as all these States, 

one-eighth as much coal, one-eighteenth as much copper, and onethirty-sixth as much silver.
164 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

TEEMS AND CONDITIONS OF LEASES.

About the time of the exhaustion of the rich alluvial deposits which 

caused the Gympie gold field rush in 1867 payable reefs were discovered at this point, and in a short time gold leases were issued under the 

New South Wales gold fields act of 1857. Before this time gold had 

been developed in Queensland wholly on miners' right claims or on 

freehold land. Mining for minerals other than gold was conducted on 

a sjstem of development and final purchase very similar to that 

which has prevailed in the United States for many years. The first 

lease for mineral other than gold was issued in 1871 for the purpose of 

mining for copper on Island No. 6 of the Percy group. The period 

was ten years and the rent £5 for the first year, £15 for the second 

year, £25 for the third year, and increased at the same rate up to £55 

for the sixth year at which amount it remained for the balance of the 

lease. No Queensland law at this time provided for mining leases i 

other than for gold mining unless one considers the order in council of 

1855, which was issued to the governor of New South Wales while 

Queensland was still a portion of that Province and which had not 

been specifically repealed in Queensland. In the following year j 

specific provisions regarding leasing were incorporated in the mineral ' 

lands act of 1872. This act still allowed the sale of the mineral freehold on very liberal terms, and yet a number of miners elected to 

take leases at 5 shillings per acre per year instead of buying the 

freehold at 30 shillings per acre. The first application for a lease 

under this act bears the date of August 27, 1872. In the mineral 

lands act of 1882 no provision was made for the sale of mineral lands, 

and since that time the leasing of minerals has been the binding 

policy of the Government.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 165

The terms and conditions on which mining leases have been issued 

at different times in Queensland are shown in the following table:

Terms and conditions under which mining leases have been issued at different times in

Queensland.

Term of years: 

Gold.....................

Period for which renewable: 

Gold.....................

Maximum area in acres: 

GoldAlluvial. ..... .acres. . 

River bed .... yards. . 

Reef. ..........do.... 

Minerals other than gold 

and coal... .............

Rent per acre per year: 

Gold.....................

Minerals other than gold 

and coal ...............

Royalty on gross output: 

Gold.....................

Minerals other than gold 

and coal................

Coal.....................

Development conditions expressed hi men per acre per 

year: 

Gold.....................

Minerals other than gold 

and coal................

Development conditions expressed in money per acre 

per year: 

Gold.....................

Minerals other than gold 

and coal ...............

Coal.....................

Gold-fields act, 1857.

leases, Ordinary regulations 1858, 

1866. 1863, 

2

8 

500 

400

/£5

(0

(o)

0

Special leases, regulations 1858, 

1863.

21

1"

None.

«

«

(°)

Special leases, regulations 1866; 

Jan., 1874.

21

«

(0

(o

C)

(0)

&"« 

Mineral-lands aOct. regulations 

99

} 320

} *

} (P)

(P)

Gold-fields 

act, 1874.

Sept. Regulations ,

1874.

21

21

25

£1

None.

<,

CO

Oct, Regulations. 

1880.

21

21

25

£1

None.

1

(9) 

(9) 

(9)

Mineral-lands act, 1882;

regulations Jan.,1883

21

21

40-160

10s. 

None.

1/5

(9)' 

(9)

(9)

Coal-mining act,1886; 

amendment 1891.

21

21

{'«320"

r

{: ;;;::

{"1/5"

(9) 

(9)

I

} «

o21 

b21

50

160 

320

£1

1.0s. 

Gd.

None.

i

1/10 

1/10

(9) 

(9)

(9)

Proposed mining act.

21 

} o21

1 25-100

160-320 

1,280

10s. 

6d.

00

1

1/10 

1/50

£20 

£2J

5s.

o Under acts and regulations in force at time of such renewal.

6 On such terms as minister deems equitable.

c No limit.

d Ordinary maximum. 25 acres; may be made 100 on account of special difficulties. A lease of 300 acres 

may be issued for gold dredging.

e 040 acres may be granted as a reward for a discovery.

/ Per acre or per 100 yards.

g Such rent and royalty as may be agreed upon.

A In a dredging lease. 2s. 6d.

< On all gold exported a duty of 2s. 6d. per ounce was paid until 1862, when the charge was reduced to 2s. 

The duty was further reduced on July 1,1872, to Is., and on June 30,1873, to 6d., and was finally abolished 

Jan. 1,1874.

i Not less than 1 per cent.

k For gold found in association with minerals mined under a lease for minerals other than gold.

i No royalty is charged on gold leases covering public lands, but a royalty of Is. per ounce is charged on 

gold from land in which that mineral is reserved in the deed. If gold is mined in connection with some 

other mineral on an ordinary mineral lease, a royalty of 1 per cent is charged.

TO No royalty on gold leases covering public lands; 5s.per ounce is charged on gold obtained from a mineral lease and Is. per ounce on gold from private lands.

»3d. per ton first ten years; 6d. per ton thereafter.

o Fixed in each case on applicant's statement.

p Fixed in each case.

« Only labor accepted in fulfillment of development conditions.
166 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Area. The tendency of mining legislation in Queensland, as in 

other parts of Australasia, has been to increase the maximum size of 

mining leases. While in the early history of gold mining no limit 

was fixed by law for the size of a gold-mining lease, it was in practice 

smaller than allowed to-day. Under the mining act of 1898 the 

maximum area was increased from 25 to 50 acres, and in the proposed 

mining act an increase to 100 acres for reef deposits is suggested. 

Notwithstanding this suggested increase in the maximum size the 

proposed bill emphasizes the fact that for all ordinary cases 25 acres 

is a fair maximum for a gold lease. Such statistics as are available show a practical result similar to that found in New South Wales, 

where 90 per cent of the leases are for less than half the maximum 

area. In Queensland, where the maximum area is 50 acres, the average size of the gold leases now in force is only 19 acres, and with a 

maximum of 160 acres for minerals other than gold and coal the 

average size of 1,334 leases is only 22 acres.

Under existing mining law no area can be worked as one property 

under a mining Tease, or mining leases, which exceeds the maximum 

fixed for a single lease. The union of leases up to the usual maximum 

is allowed, but no provision is made for larger areas, and the working 

of any larger area as one property requires a special act of parliament.

A slight evasion of this principle is found in provision for "dredging 

claims" in the regulations. The need, for dredging purposes, of 

larger areas than 50 acres was not fully appreciated when the 1898 

mining act was passed, and this demand has been met by providing 

for "dredging claims." The law permits the minister of mines to fix 

the size of claims and to determine the conditions under which the 

same may be held, but when the maximum of a dredging claim was 

fixed at 300 acres, the labor conditions prescribed, and a rental of 

2s. 6d. per acre per year assessed, the distinction between a claim and 

a lease became only a difference in name. The proposed mining bill 

only recognizes this condition when it provides for dredging leases 

on the same terms that are now fixed for dredging claims.

Special leases have on several occasions been authorized in connection with the construction of railroads, and these are discussed 

under the heading of "Development conditions." In 1902 the union 

of four leases of 50 acres each at Gympie was specially authorized by 

act of Parliament for the purpose of encouraging deep sinking. Under this act the new 200-acre lease was to be free from labor conditions for the first eighteen months, but thereafter the usual conditions should apply. The lessee was required to sink a shaft to a 

depth of not less than 4,000 feet within four years, and to deposit the 

sum of £5,000 as surety for compliance with this condition; the 

money to be repaid at the rate of £500 for every like amount spent 

on the shaft, and the balance, if any, to be forfeited if the company 

failed to fulfill its agreement.

Development conditions. The condition that a mining holding other 

than a freehold should be actually developed has always been sine 

qua non in Queensland. In the early days this condition of development was naturally expressed as the continuous labor of a specified 

number of men. As larger work was undertaken the capitalists 

claimed, with some show of justice, that the amount of money expended was under certain conditions a fairer gauge of a company's
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 167

bona fides than the mere employment of a given number of men, 

and demanded the expression of the development conditions in money 

per acre per year instead of men per acre per year. This change has 

been consistently opposed by the Labor party, because it sees in the 

requirement that men should be employed a better guarantee that 

those living in the neighborhood of the property wifl find employment. This policy is perhaps shortsighted, but is one that has had 

to be fought throughout Australia. In the proposed mining bill 

such a change has been made, and it is the incorporation of the 

innovation that has delayed the passage of the bill.

Queensland has, however, on several occasions recognized by 

special enactments the principle that the capitalist could show his 

honest intention of developing a property without actually employing 

men on the ground leased. In 1897 Parliament passed the Chillagoe 

railroad act, which authorized the issuance to a company of three 

men of leases for fifty years for the lead, copper, and tin in areas not 

exceeding in the aggregate, 2,000 acres in the vicinity of Chillagoe at 

an annual rent of £1 per acre, or double that usually charged, on condition that it construct within four years a railroad 100 miles long, 

which would be subject to government control, and might be purchased by the Government at the end of the fifty years. In return 

for this proof of the company's sincerity and of the additional rental 

charge the Government agreed to waive the usual development conditions on the areas leased.

In 1900 an act was passed empowering the Government to grant 

to the Callide Coal Company fifty-year leases to an area aggregating 

2,560 acres, which was already held under lease by that company, on 

condition that it construct within four years a railroad 75 miles long, 

which road was to be subject to government control, and might be 

purchased by the Government after fifty years. In this case the 

one concession to the company was that it would be relieved of the 

development conditions on the areas leased until the completion of 

the railroad, but no longer. In all other respects the leases should be 

subject to the usual covenants of rent, royalty, and labor conditions. 

In this case the company was required to deposit with the Government a sum of £2,500, to be forfeited, together with all rights to the 

leases, if it did not complete the railroad in a specified time.

In the same year the Albert River, Burketown, and Lilydale tramway act was passed which empowered the government to grant to the 

Queensland Silver Lead Company leases to all the minerals in not 

exceeding 2,000 acres of land for not exceeding fifty years at a rental of 

£ 1 per acre, free from all conditions of development if the company constructed within six years a railroad 120 miles long, subject to the same 

conditions of control and purchase. In this case the deposit of a forfeit of 5 per cent of the estimated cost of construction was required, 

this sum and the leases to be forfeited if the railroad was not constructed in the time named.

The Glassford Creek tramway act, passed the same year, authorized 

the granting of leases for fifty years for all the minerals except gold 

and silver in not exceeding 2,560 acres at the usual rent and royalty 

fixed by the mining act, which leases were to be forfeited if within three 

years the company did not construct a railroad 33 miles long. Until 

the railroad was completed no development was required on the land
168 MINING LAWS OF AUSTBALIA AND NEW ZEALAND.

leased, and after the completion of the railroad "the labor covenants 

shall be deemed to be sufficiently performed if the total number of 

men prescribed hi respect of all leases is employed in or upon any 

part of the mineral lands or on or about the tramway." In this case 

the company was required to deposit £2,500, this sum to be forfeited 

with the leases if the railroad was not constructed in the time named.

A similar act was pased in 1901 involving a railroad 260 miles long 

and leases of areas not exceeding in the aggregate' 5,000 acres in the 

vicinity of Cloncurry for all minerals except gold at twice the usual 

rental. The deposit required in this case was £10,000.

These enactments are the nearest approach, in Queensland, to the 

railroad land grants made by the United States in the same stage of 

its development.

Renewals. The present laws provide for the renewal of leases for 

gold on such terms as are fixed by the acts and regulations in force at 

the time of such renewal and for minerals other than gold on such 

conditions as the minister may deem equitable. In the pending 

mining bill the policy is adopted of allowing renewal in all cases on 

such terms as are then fixed by the acts and regulations then in force.

Royalty. In the public lands the general government policy, 

except with regard to coal, is not to charge a royalty on minerals. 

This would seem to indicate a feeling that while the development of 

all other minerals should be encouraged the development of coal may, 

to this slight degree, be retarded to the advantage of the country. 

While this attitude is by no means logical it is common to several of 

the Australian.States.

While royalty on gold is not collected in connection with leases 

covering public lands, a charge of 1 shilling per ounce is made for 

gold obtained from land in which that substance has been specifically 

reserved in the deed that is to say, all land sold, or for which a new 

deed has been issued, since 1885 and is in lieu of a ground rental. 

If gold is mined in connection with some other mineral on ordinary 

mineral leases a royalty of 1 per cent is charged, but in this case the 

government may require or the lessee may elect to take out a gold' 

mining lease on which no royalty is charged.

Forfeiture. For the first two breaches of the covenants of any lease 

the minister may inflict a fine of not exceeding £100. If the fine is 

unpaid or the lessee is guilty of a third breach the lease may be 

forfeited. Forfeiture for noncompliance with labor conditions is 

effected by an action before a warden. The warden in this respect 

acts as an inspector and is instructed to report any serious breaches. 

But, according to the under-secretary for mines, "the onus of giving 

information is largely left to the mining community who may, if they 

wish, apply for the forfeiture of a holding on which labor conditions 

are not fulfilled." Under this lax system "shepherding" that is, 

the holding of claims or leases without development has become 

somewhat prevalent in Queensland. The general situation is, however, somewhat better than that for the United States, where enormous 

areas are openly held either as claims or freeholds for purely speculative purposes without any intention on the part of the holder to 

develop the same. Companies who have the means to develop must 

buy out these speculators before they can begin the development of 

the region involved.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 169 

OWNERSHIP OF THE PRECIOUS METALS.

The early deeds of grant in Queensland contain no reservation of 

the royal metals, and although this region was a portion of New South 

Wales at the time that the common-law right of the government to the 

gold in all lands was proclaimed by Governor Fitzroy in 1851, this 

doctrine has never been enforced in this state. The decision of the 

privy council in 1877 that under the common law a grant in Australia 

does not pass to the grantee the gold and silver that may be found 

under the land described in the grant, unless the intention that such 

minerals should pass is expressly stated in apt and precise words 

(Woolley v. Attorney-General Victoria), has never been enforced in 

Queensland, though it has led to several provisions at law and transactions which would otherwise be unintelligible.

The property on which there has since been developed the famous 

Mount Morgan mine was purchased in 1864 as low-grade agricultural 

land, and the deed of grant conveying the freehold of this property 

contained no reservation of mineral. Gold 'was discovered on this 

property by the Morgan Brothers in 1882, and they purchased it from 

the original patentee at £1 per acre. When the magnitude of the find 

was shown by development several attempts were made to attack the 

title on the basis that under the common law the freeholder had no 

right to the gold. These suits were all instituted by private parties 

and were successively dismissed on the -ground that as the claimants 

could not show a better title than the company in possession there was 

no justice in transferring the title, and that whatever mayor may not 

have been the right of the freeholder to mine the gold the contestants 

clearly had no claim at all. Had the government, through the 

attorney-general, instituted suit the common-law right of the go¥ernment would clearly have been involved and the result would have been 

different, but the government remained quiescent and the company 

continued to develop the gold.

Up to the close of 1893 this mine produced £4,725,386 worth of gold 

and paid dividends amounting to £3,350,000. Recognizing the 

enormous value and long life of the property, the company began to 

fear that if a radical government came into power it might enforce 

the common-law right of the state, claim all the gold in the land, and 

demand an accounting from the company for the gold already 

extracted. There therefore appeared in the mineral lands act 

amendment act of 1894 clauses introduced at the request of the Mount 

Morgan Company, which gave to any freeholder the right to surrender 

his land to the government, and upon such surrender to receive in lieu 

thereof a grant specifically reserving to the government all gold and 

silver. The owner of such surrendered land was given the preference 

right to make, within thirty days after such surrender, an application 

for a gold-mining lease covering the land involved. On such leases 

the government charged a royalty of Is. per ounce of gold produced. 

The Mount Morgan Company immediately surrendered the 75 acres 

of its freehold which contained the deposits they were then working, 

received therefor three government leases of 25 acres each, and has 

since paid a royalty of 1 shilling per ounce.

In other words, a strong and powerful mining company with a title 

as completely conveying the gold as any title in the United States,
170 MINING LAWS OF AUSTBALIA AND NEW ZEALAND.

except certain patents under the mineral land laws, voluntarily surrenders its grant, receives in lieu thereof one in which the gold and 

silver are specifically reserved, and takes out government leases 

covering the surrendered area, thus voluntarily imposing on itself a 

tax of Is. per ounce of the gold produced. The royalty now paid by 

this company under this arrangement exceeds $30,000 per year.

No attempt is now made by the government to enforce its right to the 

gold on freehold property. Owners may either follow the example 

of the Mount Morgan Company or mine the gold on their own responsibility as in the United States. It is, however, more than probable 

that within the next few years the government will assert its right in 

this respect and provide for mining on private property along the 

lines followed by the Western Australian law. Such provisions are 

made in the new mining bill and meet the approval of the great 

majority of people in Queensland.

MINER'S RIGHTS AND CLAIMS.

Under the New South Wales gold fields act of 1857, which was in 

force in Queensland until 1874, miner's rights were issued for a period 

of one year on payment of 10s. These miner's rights gave to the 

holders the right to search and mine for gold only. Those mining for 

gold on a proclaimed gold field without such a license were liable to 

fine. The holder of'a miner's right could stake out any number of 

gold claims of the size prescribed by the regulations. In 1874 the 

period for which a miner's right could be issued was increased to ten 

years, but the fee per year remained the same.

The mineral lands act of 1872 provided for "mining licenses," 

which were issued for one year on payment of 10s. and gave to the 

holders the same rights as to minerals other than gold, over such 

areas as were proclaimed mineral districts, that miners' rights conveyed as to gold. The operation of mining licenses was extended in 

1882 to all public lands. In 1898 the mining license was abandoned 

and the miner's right was extended to cover all minerals. The fee 

now charged for a miner's right is 5s. per acre per year and the term is 

fixed at not exceeding ten years. In the new bill it is proposed to 

reduce this period to one year and better results can-undoubtedly be 

obtained with this change.

Under the present law there is no limit to the number of claims 

that may be Held under one miner's right. It is also held that after 

a person takes possession of a claim he may hold that claim indefinitely without renewing his miner's right, provided that he does the 

required amount of development work. This feature of the system 

in Queensland gives rise to the same difficulty that is found in the 

United States; it is impossible for the government to tell what land 

is and what land is not covered with valid mining claims. In Queensland, however, development conditions are more rigid and forfeiture 

can be effected more readily.

The areas which may now be held as mining claims and the labor 

required are as follows:

Ordinary reef claims. For gold: One holder of a miner's right is entitled to 50 feet 

along supposed line of the reef by a width of 400 feet. The whole or any part of this 

width may, at the option of the miner, be marked off on either side of the reef. No 

more than ten such claims may be taken up conjointly but concentration of labor on 

one of a group of contiguous claims, not exceeding a total of 1,000 feet along the reef,
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 171

(

may be allowed. On such claims one man must be employed continuously for every 

100 feet along the line of reef included in the claim until the claim is payable; then 

one man for every 50 feet.

/ For minerals other than gold: One man's ground is 200 by 350 feet. No more than 

ten such claims can be taken up conjointly but concentration of labor on one of a group 

of contiguous claims not exceeding a total length of 4,000 feet along the supposed line

, of the reef may be allowed. Such claims must be continuously worked by one man

i for every 200 feet along the line of the reef included in the claim.

, Alluvial claims. For gold: Ordinarily one holder of a miner's right is entitled to 

100 by 50 feet, but in wet ground 100 by 100 feet is allowed. Not exceeding ten holders 

of miner's right may combine to take up 10 men's ground as one claim.

< For minerals other than gold: One man's ground 300 by 300 feet. Not exceeding ten

' claims may be taken up conjointly.

All alluvial claims must be worked continuously by one man for each man's ground 

contained therein.

Dredging claims. Not exceeding 300 acres; length along river or shore of ocean not 

to exceed 6 miles. One man must be continuously employed for every mile, or fraction of a mile contained in the claim, or the holder must keep continuously employed

; and fully manned machinery to the value of £1,000 for each hundred acres in the claim, 

but the value of such machinery shall in no case be less than £3,000. On a dredging 

claim a rental of 2s. 6d. per acre per year is charged.

All claims except ordinary alluvial claims must be registered.

| PEOSPECTING AREAS.

/

, As to minerals other than coal prospecting areas may be staked 

out on the basis of a miner's right; in coal a special prospecting license

| must be obtained.

j Any holder of a miner's right may, subject to the approval of the 

warden, and only with such approval, mark out and hold the following 

areas:

For reef or alluvial gold: 

Within a gold field 

' Between 400 yards and 1 mile from nearest mine which is in opera- Yards.

tion or has been operating within a period of 6 months......... 150 x 150

Between 1 and 3 miles from nearest mine, etc................... 200 x 200

More than 3 miles, etc.......................................... 300 x 300

Outside a gold field................................................ 400 x 400

For minerals other than gold or coal:

Within a mineral field AcfesBetween 1 and 5 miles from nearest mine, etc................... 10

Between 5 and 10 miles, etc..................................... 20

More than 10 miles, etc...........;............................ 40

Outside a mineral field............................................. 160

Prospecting areas must be continuously worked by at least one man, 

must be registered, and this registration must be renewed monthly. 

This monthly renewal of registration is designed to prevent the sort 

of shepherding that has been found objectionable in claims. The 

prospector must report the discovery of minerals and on such report 

is entitled to a prospecting or a reward claim in addition to the ordinary claim to which he is entitled. The prospecting or reward claim 

in case of minerals other than gold and coal is of the same size as the 

prospecting area. In the case of gold it varied as follows:

Along line of reef.

Beef gold: FeetIf distant not more than 1 mile from reef that is being worked............ 0 150

If distant between 1 and 2 miles......................................... 200

If distant between 2 and 10 miles........................................ 300

If distant over 10 miles.................................................. 500

6 In all cases the width is 400 feet.
172 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

Number of ordinary claims. 

Alluvial gold:

Between 400 yards and half a mile....................................... 2

Between half a mile and 1 mile........................................... 3

Between 1 and 2 miles................................................... 4

Between 2 and 3 miles................................................... 5

Over 3 miles........................................................... 6

Every prospecting claim is attached to an ordinary claim of not 

less than one man's ground, and the whole is deemed one tenement.

These provisions for prospecting definitely lead only to claims. 

Provisions for exclusive prospecting privileges over large areas preliminary to taking up leases have notbeen deemed necessary in Queensland. A special prospecting license is issued in connection with coal 

mining covering the same area as a reward lease, or twice the area 

of an ordinary lease, but in this case the same rent is charged for 

the license that is charged for the lease.

EXTENT OF OPERATIONS.

The mines department does not prepare any statistics giving the 

total acreage held as claims and prospecting areas, but it is stated 

that while tracts of considerable size are held under these forms of 

tenure as soon as important finds are made these holdings are usually 

converted into leases. The number of miner's rights issued during 

the past five years and the areas held under lease on the 31st day of 

December of each year are shown in the following table:

Table showing number of miner's rights issued during each year and areas held under lease 

on December 81, from 1902 to 1906, inclusive.

Gold mining leases:

Total area in acres. ..............................

Leases for minerals other than gold or coal:

Leases for coal mining: 

Number. ........................................

Total area in acres. ..............................

1902.

9,351

743

13,883

652

15, 159

27

4,387

1903.

10,879

770

14,540

695

19,898

26

4,415

1904.

11,371

569

10,499

461

11,598

30

5,479

1905.

12,075

537

10,093

814

16,424

35

8,275

1906.

11,533

543

10,067

1,302

20,916

32

7,891

The relatively small area under lease for coal is due to the fact that 

the most favorably situated coal fields are in the regions first settled 

and so passed into private hands during the period when no attempt 

was made to reserve mineral lands. These areas are of stich size and 

are so favorably situated that the demand for other sources of coal 

supply has arisen only in the last few years. This demand is growing, 

and the total area held under government coal lease may be expected to 

rapidly increase in the future.

RESULT OF TEST OF GOVERNMENT MINERAL LEASEHOLD.

There is in Queensland the same general satisfaction with the policy 

of government leasehold of minerals that is found throughout Australia. The royal commission on mining appointed in 1897 to, among 

other things, "inquire into and report as to the best mode in which 

assistance can be rendered to develop the mineral resources of the 

colonies" did not deem the absolute sale of minerals worthy of even 

passing notice as a means toward this end. This was only thirteen 

years after the abandonment of the policy of selling mineral lands, 

and the feeling in this respect has not changed.
CHAPTER IX. 

AUSTRALASIAN MINERAL LEASING.®

The recent mining enactments of all the Australasian States, 

regardless of political complexion, are based on the policy of mineral 

leasehold. Not only do all the political parties of Australia to-day 

heartily indorse this policy, but it represents a gradual evolution 

from the principle of freehold, through stages varying somewhat in 

different states.

The mining laws of all these States require continuous development, 

the enforcement of which is incompatible with the state of freehold. 

Development as a condition of possession was early recognized in 

mining practice in the United States; but the annual assessment 

work required by the present mining law fails to accomplish the continuous development which is requisite to a proper utilization of the 

mineral resources of the country. On this account the consideration 

of the extent to which the leasing policy succeeds in securing such 

development becomes of vital interest.

WESTERN AUSTRALIA.

In Western Australia the development of the mineral land laws 

has been particularly simple. At the time of the first mineral discoveries in 1842, mineral lands were sold under the same conditions 

as agricultural lands. Later the purchase price was fixed and the 

option of lease provided. In 1872-73 the erection of a satisfactory 

mining plant was made a prerequisite to purchase of the land and the 

rate or lease rent was reduced. Then, after the gold finds of 1885, 

the abandonment of the principle of sale became a state policy, and 

in 1898 provision was made that land grants should contain a reservation of all minerals. Thus, in Western Australia the system of 

leasehold and claim hold on the condition of bona fide development 

came at a time most opportune for the test of practice. For the five 

years comprising 1881-1885 the average annual mineral production 

was less than £9,000, while for the past five years the annual output 

has exceeded £8,000,000. Not only was the law subjected to this 

practical test of great expansion in the mining industry, but an investigation by a commission on mining showed that throughout the gold 

fields the verdict was overwhelmingly in favor of leasing.

The same general satisfaction with the leasing system is found in 

the Collie coal fields, although the coal operations are not comparable with the gold mining. The coal-land law has promoted the 

development of the industry in this field, which is not so favored 

by natural conditions as most of the American coal lands. The

a An address delivered before the Conservation Commission, December 3, 1908.

173
174 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

provisions of this law encourage prospectors by granting exclusive 

prospecting rights over a considerable area for a limited period, followed by either reward or ordinary leases when discovery has been 

made. Continuous development is secured by the terms of the 

lease. The decision was reached in Western Australia that 2,560 

acres is a sufficient maximum for a single holding, except where the 

the coal seam is at a depth of over 1,000 feet, in which case 5,120 

acres is allowed, a decision which is in striking accord with the opu> 

ion independently reached in this country and embodied in one of 

the coal-land bills recently presented in Congress.

The Western Australian mining law is, in short, a wonderfully 

symmetrical and carefully balanced enactment, and while it may 

not be, as a whole, applicable to American conditions, it contains 

many suggestive provisions which merit careful consideration, as 

they are not the idle vision of some theorist, but the mature enactment of a legislature whose members are chosen entirely by the voters 

of a great democratic mining State, a State which ranks among the

G

reatest mining countries of the world and which as recently as 1904 

as reorganized and revised its mining laws to meet the 'practical 

workaday conditions of a mining region.

The mining law of Western Australia is that of a State in which the 

mining industry is of preeminent importance. The mineral exports 

of the country are from five to six times the total value of all other 

exports. It is, moreover, a mining community in which the capital 

employed in development is almost wholly of foreign origin. On 

these accounts the evidence furnished by the development of mining 

laws in South Australia is to a large degree supplementary to that 

afforded by Western Australia.

SOUTH AUSTRALIA.

South Australia is a country in which mining occupies the subordinate position, the mineral exports amounting to less than onetenth the value of the other exports, so that the mining law is that 

of the agricultural holder and local capitalist.

In South Australia the alienation of minerals has been carried 

further even than in the United States, yet here, too, the principle of 

leasehold has developed and been fully tested. The history of the 

mining law of this country becomes of especial interest to Americans, 

as it shows the practicability of introducing a system of government 

leasehold after important mining properties had passed into private 

ownership.

There has resulted a surprising unanimity of opinion in favor of 

government leaseholds for all minerals. Mining engineers, operators, and capitalists unite in asserting that mining development is 

promoted more by leasehold than by freehold. The leaders of the 

several political parties agree that the matter of government leasehold is not a party question. It is important to note that the mining 

laws of both Western Australia and South Australia were developed 

under Conservative or Tory governments, and while a Labor government has been in power for some years in South Australia, these mining 

laws can not be characterized as "radical labor legislation." They 

are, in fact, nonpartisan enactments which antedate the present 

supremacy of the Labor party.
MINING LAWS OF AUSTRALIA AND NEW ZEALAND. 175 

VICTORIA.

In Victoria the national mining law has been enacted under conditions strikingly like those under which the American mining law 

developed, but with very different results. Here, as in California, 

there was, at the time of the discovery of gold, no law governing 

mining on the public lands. In both countries the discovery of valuable gold fields resulted in an enormous immediate influx of population, and while the United States delayed dealing with the situation 

the Victorian government attacked the problem at once, and by the 

time of the passage of the American act of 1866 had evolved a very 

comprehensive mining law. In Victoria the development of the coal 

resources has been practically all under government leases, notwithstanding the fact that considerable areas of coal land are in private 

ownership.

TASMANIA.

The mining law of Tasmania has been commended in the Australian 

mining press as the model among the Australian laws from the standpoint of the capitalist. This State was the first to provide that no 

lease should be forfeited for noncompliance with the development 

conditions during suspensions of work due to strikes. The last mining act also meets the demands of investors for more secure tenure, 

by providing for the expression of the development covenant in 

money instead of men and by allowing, under certain restrictions, the 

excess of development expenditure in one year as a credit on the 

requirements of the next. In Tasmania, at the time of the early 

discovery of coal under the existing policy of alienation of lands, the 

coal lands passed into private ownership. Yet, to-day all the working 

coal mines are reported as operating under government leasehold, 

showing that the terms of leasing must have proved satisfactory. 

The present act permits consolidation of leases to any extent in the 

discretion of the minister of mining.

NEW SOUTH WALES.

New South Wales is the most important of the Australian States 

from the standpoint of its coal production. In this State there is 

the same general indorsement of mineral leasehold; indeed it may be 

said that there is absolutely no demand for private ownership of 

minerals.

SUMMARY OF GOVERNMENT LEASING.

The history of government leasing in Australasia and the tenure 

and conditions under which leases are to-day issued in the various 

States are summarized in the tables following:
176 MINING LAWS OF AUSTRALIA AND NEW ZEALAND.

" Terms and conditions under which minerals are to-day leased in Australasia.

Term of years:

For coal ................

Maximum area in acres:

Rent per acre per year:

For other minerals. . ....

Royalty: 

For gold (per ounce) . . .

For dredging........... 

Development conditions, 

expressed in men per 

acre per year:

For coal ................

Development conditions, 

expressed in money per 

acre per year :

For other minerals. .....

Western 

Australia.

21.........

21.........

24.........

48.........

320........

5,000......

£1. .......

5s.........

6d

None.

3d. first 10 

years,6d. thereafter.

Is. peroz.. 

£..........

A ......

[Must be 

I labor.

30s........

South Australia.

42.....

10.....

20. ....

40. ....

640....

200....

Is.....

Is..... 

Is.....

Is.....

Wo... 

None.. 

£......

fc::::

f Must 

{ b e 

1 labor 

£20...

Tasmania.

21.....

40. ....

80.....

320. . . .

£1

5s..... 

2s.6d..

[ None .

|£10... 

l£2~. ".".".

Victoria.

15.........

No limit. .

640. .......

640. .......

2s. 6d.....

ls.to£l... 

Is. to£l...

None......

/Fixed by 

I minister.

[Fixed by 

r minister.

New South 

Wales.

20.........

25.........

80. ........

640........

100........

5s.........

5s......... 

Is.........

2s. 6d .....

("None, .... 

JNone...... 

|3d. to 6d. 

[ per ton.

1%.. ......

&::::::::

Must be 

labor.

£10

Queensland.

21..... ...

50.........

160........

320........

£1........

10s........

None...... 

None...... 

3d. first 10 

years,6d. thereafter. 6

£::::::::

Must be 

labor.

New 

Zealand.

f 42- 

^ 42-62.

166.

100. 

320-1,000. 

2,000.

7s. 6d. 

2s. 6d. 

Is. to 5s.

2s. c 

Wo2d. to Is.

ttoj. 

A to Ao Such as may be fixed by regulation. None has been charged up to this time. 

& Rent a credit on royalty. 

c Only in North Island.

Summary of history of government mineral leasing in Australasia.

Western Australia....

Soutb Australia. .....

Tasmania............

Victoria .............

New South Wales. . . .

Queensland ..........

New Zealand ........

Year of first government

leases for 

Gold.

1886

1869

1860

1857

1851

1868?

1858

Minerals 

other 

than 

coal

and

gold.

1865

1854

61862

1861

1856

1872

1852

Coal.

1896

1874

/ d853 

\ &1862

jc 1853-54 

\ 1862

1861

1891

1852

Year in

which

sale of 

known 

mineral 

land was practically

abandoned.

1886

1872

] 1859

[ 1860

1884

1882

«1875

Year of 

first reservation 

of all 

minerals.

1898

1888

1903

1892

1884

(')

(/)

Total 

area held 

under 

mineral 

lease in 

1905.Q

Acres.

56,541

27, 157

52,924

84,546

173,342

38, 874

149, 697

Total 

value of 

mineral 

production in 

1905.

£

8,555,841

568,796

1,729,129

3,361,455

7,017,940

3,726,275

3,622,786

Percentage of 

total production 

from government 

leasehold.

96

±90

100

93

68

91

±90

oA considerable area is also held unde"r mining claims, or as prospecting areas.

6 Date of act; date of first lease unknown, but soon after date given.

c Special leases.

d No reservations except in gold and mineral fields.

'Isolated case; practically no known mineral land has been sold in New Zealand since 1850.

/No reservations.
INDEX.

B. Page.

Ballarat, riot at.; ........................... 95

Broken Hill mines, leasing of .............. 124, 130

Burra Burra copper mine, yield of. .......... 54

C.

California, abolition of Mexican gold law in. . 92-93 

gold law in, comparison of, with Victorian 91-98 

government in .......................... 94

miner's law in. .......................... 93

Callahan, H. C., on leasing system. .......... 49

Chaffy, B., on American sheep industry . .... 20-21

Claims. See Mining claims; Coal claims.

Coal, minerals included in laws for. ......... 31, 43

 prospecting for, areal rights in ........... 30

government aid in. .................. 26

reservation of ............... 92, 99, 117, 119, 150

royalty on. ................... 75-76, 80, 131-132

See also particular states. 

Coal claims, conditions of. ................ C5, 72-73

See also Mining claims, particular states. 

Coal lands, development of .......... 32, 44, 117, 119

discoverer's rewards in .................. 35, 37

disposal of......... ............ 143-148,162,167

laws controlling, investigation of ........ 11

leases of ................................ 15-16,

26-27, 30, 43, 60-61, 75-76, 79,

109, 123-124, 154-157, 162, 167

Sec also Mineral lands, particular states.

Coal-land law in United States, restrictions of. 26

Cook, Joseph, on mining leases ............. 18, 113

"Crown," definition of. ..................... 100

D.

Deakin, Alfred, on mining leases. .......... 18, 113

Development, requirements of .............. 26, 27,

28, 41-42, 49, 54, 62-63, 71, 80-82, 97-98, 

108-109, 110, 125-127, 156-157, 166, 173

See also particular states. 

Dick, William, on leasing system ............ 50

Discovery, doctrine.of, impossibility of. . . 87, 93-94

rewards for. 35, 39, 69, 86-87, 137-138, 160, 171-172

See also particular states. 

Dredging, laws concerning. 25, 30, 31, 59, 132, 166, 171

See also particular states.

Extralateral right, condemnation of. 15,29,93-94,136 

nature of................... 93, 111, 116,135-136

F.

Fearsby, G. R., on leasing system........... 49

Fitzroy, Gov., action of, in New South

Wales gold rush............. 94-95,119

Forest Service in Western Australia, comparison of, with United States....... 13

Forfeiture, conditions of.................... 41-42,

51,64,71,81-82,90,109,130-131,157,168 

initiative in............................. 81

See also particular slates. 

Frontage claims, nature of............ 111-112,136

16014° Bull. 505 11 12

G. Page.

Gold. See Minerals.

Gold claims, conditions of.......... 29,64-66,84-85

See also Mining claims, particular states. 

Gold leases, conditions of.............. 58-61,85-86

See also Mineral leases, particular states. 

Gold stealing, prevention of................. 25

Gore, Henry, on mining leases.............. 18,113

Grazing leases, investigation of.............. 13

workings of............................. 20

H.

Hamilton, Richard, on mining law.......... 15,51

Homesteads, miner's, provisions for......... 34-35

Horsepower, equivalent of, in men. 58,63,77,125-127 

Hotham, Gov., action of, in Victoria riots.... 96

Hughes, F. G., on mining leases......... 18,89.113

I. 

Irvine, W. H., on mining leases............ 18,113

J.

Jenkins, A. G., on leasing system............ 49

Judell, M. W., on leasing system............ 50

K. 

Kalgoorlie, public opinion at............. 15,25,51

L.

Labor covenants, provisions of.............. 32,

41-42,50-51,62-63,66,71,80,82, 

90,108-109,130,156-157,166-168 

See also particular states. 

Land laws. See particular states. 

Lands, private, mining on.................. 27-28,

33,42-45,67-68,71-72,101-103,132-134 

See also particular states. 

Latrobe, Lt. Gov., action of, in Victoria gold

rush............................ 95

Leases. See Mineral leases; Grazing leases. 

Loring, W. J., on mining leases............. 19

M.

McCombie, John, on mining laws.......... 154-156

Marshall, John, on leasing system........... 49

Maryanaski, Modest, on leasing system...... 49

Mason, Col., action of, In California gold

rush.......................... 92-93,95

Merin, A. H., on mining leases ............. 18,113

Mineral lands, development of. See Development, 

disposal of........................... 13-16,26,

38-44,72-75,91-92,103,119-120,142-148,162 

leasing of. See Mineral leases, 

resumption of....................... 71,74,150

See aho particular states. 

Mineral leases, combination of............... 31,

61,79-80,128-129,154 

conditions of................ 29-33,40-41,45-47,

56-64,75-82,106-110,124-132,151,157,164-169

177
178 INDEX.

Page.

Mineral leases, conversion of, to freehold .... 40,

44,45,57,124,147-148,164 

forfeiture of............................. 41-42,

51,64,71,81-82,90,109,130-131,157,168 

popularity of..................... 15,17-19,25,

48-51,70,89,113-114,124,139-140,161,169-170 

renewals of.............................. 43,

57-58,60,76-79,109,129-130,155,168 

summary of........................... 173-176

See also particular states. 

Minerals, alienation of ...................... 17,

53-55, 72-77, 90-92, 98-99, 

103-105,114,116-122,139-140 

development of. See Development, 

different kind of, superimposed leases

for.............................. 85-86,157

discovery of, rewards for................. 35,39

list of, included in law................... 31

ownership of............................ 27,

50,53,55,67,72-74,94-95,98-

101,116,132-134,163,169-170

reservation of........................... 13-16,

18,37-38,42,53-56,68,72- 

75, 116-122, 149-150, 162 

See also particular states^. 

Miner's homesteads, provisions for........... 34-35

Miner's right, collateral rights under......... 33-34

conditions of............................ 28-29,

40,64-65,82-83,85-86,90, 95-97,102- 

103,110,119,122,137,145,158,159,170 

See also particular states.

Mining, extent of.. 47,69,77,80,113,138-139,160,172 

government encouragement of........... 26,

68-69,85-89,112,116-117,137-138,160,172 

public use In ......................... 134,148

See also particular states. 

Mining claims, conditions of................. 28-

30,64-66,83-84,110-112,122-123, 

135-137,145,151,158,164,170-171 

See also particular states. 

' Mining commission, investigation by........ 14

Mining law. See particular states.

Mining men, opinions of, on leasing system.. 15,

17,18,25,48-51,89,113-114,

124, 139-140, 161, 169-170

Mining swindles, prevention of.............. 25

Mining tenements, description of............ 28-35

See also Claims; Prospecting areas; Mining leases; Miner's homesteads; Miner's 

right; Water rights. 

Molesworth, Robert, law interpreted by..... 97

Monopoly, curbing of........................ 26-27

Moonta mine, discovery of.................. 57-58

Morgans, H. A. M., on leasing system....... 50

Mount Bischoff tin mine, production of...... 76

Mount Lyell mine, production of............ 76

Mount Morgan mine, history of............ 169-170

New South wales, agricultural land in, disposition of....................... 117,120

alluvial mining in....................... 136

claims in.................. 122-123,135-136,137

coal in, development of................ 117,119

reservation of................... 99,117,119

royalties on....................... 131-132

coal lands in, leasing of................ 123,124

development in, requirements of... 116,125-127 

discovery rewards in.................. 137-138

dredging in.............................. 132

extralateral right in........... 111,116,135-136

forfeiture in........................... 130-131

frontage claims in....................... 136

government in........................ 94,95

horsepower equivalent in.............. 125-127

labor covenant in........................ 130

mineral lands in, alienation of......... 119-120

mineral leases in....................... 122-132

area of......................... 125-128,166

combination of.................... 128-129

conditions of....................... 124-132

conversion of, to freehold.......... 124,148

forfeiture in........................ 130-131

popularity of.............. 124,139-140,175

renewals of........................ 129-130

results of.......................... 139-140

summary of......................... 176

minerals in, alienation of....... 116-122,139-140

ownership of................... 116,132-134

reservation of.................. 116,117-122

Page. 

New South Wales, mineral wealth of........ 115

miner's right in.................... 119,122,137

mining boards in.................. Ill, 134-135

mining commission on laws of......... 123,133

mining in, extent of................... 138-139

government encouragement in....... 116-

117,137-138 

public use in......................... 134

mining law of.......................... 115-140

administration of.................... 115

development of.................... 115-122

results of........................... 139-140

See also mineral leases in. 

private lands in, mining on............ 132-134

prospecting areas in...................... 137

prospecting in, government aid in....... 138

' rentals in.................. 103,124,125-127,134

royalties in........ 103.123,125-127,131-134,137

silver in................................. 132

NewZealand, agricultural land in, disposal of. 161 

claims in.......................... 145,151,158

coal-land laws of, investigation of........ 11

coal lands, disposal of.............. 143-146,148

leases on................... 154,155,156-157

resumption of........................ 150

discoverer's rewards in.................. 160

development in, requirements of....... 156-157

dual tenure in........................... 157

forfeiture in.............................. 157

government of..................... 144,145-146

labor covenant in...................... 156-157

land laws of................... 142-143,146-147

mineral lands of, disposal of.............. 142,

143,144,146-148 

resumption of........................ 150

See also mineral leases in. 

mineral leases in............... 143-146,151-157

application for..................... 155-156

area of............................... 154

combination of...................... 154

conditions of....................... 151-157

conversion of, to freehold.......... 147-148

forfeiture in.......................... 157

popularity of........................ 161

renewals of.......................... 155

reservation of...................... 149-150

results of............................ 161

summary of......................... 176

mineral wealth of...................... 143-144

miner's right in................... 145,158,159

mining districts in, creation of......... 148-149

mining in, extent of..................... 160

government aid to................... 160

public use in........................ 148

mining law of......................... 144-160

comparison of, with United States. 141-144 

development of.................... 144-147

results of............................ 161

See also mineral leases in. 

prospecting in......................... 158-160

rentals in.......................... 151,153,155

royalties in.................... 144,151,153,155

strikes in, labor exemption during....... 157

waste-lands law in..................... 149-155

Northern Territory, note on................. 53

P.

Petroleum claims, discovery of............ 87

Private lands. See Lands, private.

Prospecting, government aid in.............. 26,

138,158-160,171-172

Prospecting areas, holding of, conditions of.. 30, 

64-66,83-86,90,137 

Q.

Queenland, claims in.................. 164,170-171

coal land in, disposal of................ 162,167

development in, requirements of........ 166

discovery, rewards in.................. 171-172

dredging in............................ 166,171

forfeiture in............................. 168

government of........................... 162

labor covenant in...................... 166-168

mineral lands in, disposal of............. 162

mineral leases in....................... 164-169

area of............................. 165-166

conditions oi...................... 164-169

cost of............................: 164-165
INDEX. 179

Page. 

Queenland, mineral leases in, forfeiture of.... 168

mineral leases in, popularity of........ 169-170

renewals of.......................... 168

results of............................ 172

summary of......................... 176

minerals in, ownership of......... 163,169-170

reservation of...................... 150,162

resumption of..................... 169-170

miner's right in......................... 170

mining in, extent of..................... 172

mining law of......................... 162-172

development of...................... 162

results of............................ 172

See also mineral leases in. 

prospecting in......................... 170-172

railroads in, encouragement of......... 167-168

rentals in.............................. 164-165

royalties in............................ 165,168

shepherding in.......................... 168

R.

Railroads, encouragement of............... 167-168

Rason, C. H., acknowledgments to.......... 11

Rentals, exaction of........... 61-62,78-79,84,103,

107,124-127,134,151,153, 155, 164-165 

See also particular states. 

Reservation. See Minerals, reservation of. 

Rhodes, Charles, on mining leases........... 156

Royalties, exaction of...................... 53-55,

58, 62, 80, 92,103,107,109,110,123,125- 

127,131-134,137,144,151,153,155,165,168 

See also particular states.

S.

Sheep, in Australia and United States, comparison of....................... 21

Shepherding leases, prevention of.......... 50,168

Skewes, Edward, on leasing system......... 50

South Australia, area and population of..... 53

claims in................................ 64-66

abandonment of..................... 65

cost of............................... 64

labor on............................. 66

coal claims in........................... 65

coal leases in........................... 60-61

development in, requirement of...... 54,62-63

discoverer's rewards in.................. 69

dredging leases in....................... 59

gold claims in........................... 64-66

gold leases in...................... 58,59,60-61

horsepower in, equivalency of, in computing labor..................... 58,63

labor cpvenant In.................... 62-63,66

waiving of........................... 63

lands in, disposition of......... 17,53-54,61,70

mineral leases in, area of........... 58-59,60-61

combination of...................... 61

conditions of........................ 56-64

conversion of, to freehold........... 57,148

enforced taking out of............... 64

forfeiture of......................... 64

history of........................... 45,56

popularity of.............. 17-19,57,70,174

renewals of.......................... 57-60

results of............................ 69-70

summary of......................... 176

term of.............................. 59

minerals in, alienation of...... 17,53-55,99,100

ownership of..................... 53,55,67

reservation of............ 16-17,18,53-56,68

royalties on...................... 53-55,58

miner's right in......................... 64-65

mining in, encouragement of............ 68-69

extent of holdings for............... 69

mining law of........................... 56-70

development of...................... 53-68

summary of......................... 174

workings of......................... 69-70

See also mineral leases in. 

private lands In. mineral development

on........................ 44,67-68,72

preference right of owner............ 45

prospecting In........................... 64-66

areas for............................. 65-66

rentals in.......................... 58-59,61-62

royalties in........................... 58-59,62

surface rights In, separation of mineral

rights from...................... 53-54

Page. 

South Australia, waste-lands act In ......... 54-57

Strikes, exemption from labor covenant during................. 32,71,80-81,90,157

Surface rights, relation of mineral rights and.. 27,

53-54 

T. 

Tasmania, claims in......................... 83-84

coal in.................................. 72

alienation of......................... 72,73

leases of...................... 75-76,79,175

royalty on....................... 75-76,80

development in, requirements of........ 80-82

requirements of, exemption from.... 71,80

discoverer's rewards in.................. 86-87

dual tenure in .................. .. .... 85-86

gold claims in........................... 84-85

gold leases in, reef and alluvial.......... 85-86

gold-mining act in.................... 72-73,76

government in..............'............ 94

horsepower in, equivalency of, in computing labor........................ 77

labor covenant in................. 71,80-82,90

labor in, status of....................... 71-72

mineral lands of, disposition of.......... 72-75

resumption of.................... 71-72,74

mineral leases in........................ 72

area of.............................. 77-80

combination of...................... 79-80

conditions of........................ 75-82

conversion of, to freehold.......... 147-148

forfeiture of................... 71,81-82,90

popularity of........................ 89

renewals of.......................... 76-79

results of............................ 89-90

summary of......................... 176

minerals in, alienation of............. 72-77,90

different kinds of, leases for.......... 85-86

ownership of..................... 72-73,74

reservation of....................... 72-75

resumption of................. 71-72,74,75

miner's right in................ 82-83,85-86,90

mining in, extent of..................... 77,88

government aid to.................. 86-88

mining law of........................... 71-90

approval of, by capital.......... 71,90,175

summary of......................... 175

workings of......................... 89-90

See also mineral leases In. 

private lands in, mining on.............. 71-72

prospecting areas in............... 83,84-86,90

rentals in............................. 77-79,84

royalties in........................... 77-78,80

strikes in, mining requirements waived

during.................... 71,80-81,90

waste-lands act in....................... 73-74

Tullock, Lindsay, on mining leases.......... 18,89

U.

United States, claims in..................... 98

coal lands in, sale of..................... 121

development in...................... 27,91-98

evasion of.................... 62-63,98,173

extralateral rights in....... 15,29,93-94,116,135

land laws of, comparison of, with Australian .......................... 13

comparison of, with New Zealand . 141-144 

comparison of, with Victorian....... 91-98

evolution of....................... 141-142

mineral lands in, leasing of.............. 91-92

minerals in, alienation of..... 53,73,91,100,116

ownership of.............. 101,116,141-142

reservation of............. 73,74-75,141-142

mining laws of, history of................ 92-98

sheep industry in........................ 20-21

V.

Veatch, A. C., designation of, as commissioner ........................... 11

letter from, transmitting preliminary discussion of mining laws........... 11-12

letters transmitting preliminary reports of 12-22

Victoria, agricultural lands in, disposition of. 114 

claims in.............................. 110-112

coal in, reservation of.................... 92,99

coal lands in, leases of................. 109,175

development in, requirements of. 97-98,108-109 

frontage claims in................. 111-112,136

gold in. See minerals in.
180 INDEX.

Page. 

Victoria, government in.................. 94,95-96

labor covenant in...................... 108-109

mineral lands in, alienation of.... 91-92,103-105

mineral leases in, area of............... 107,108

conditions of...................... 106-110

forfeiture of.......................... 109

popularity of...................... 113-114

renewals of........................ 107,109

summary of......................... 176

minerals in, alienation of............... 91-92,

98-99,103-105,114 

ownership of.............. 67,94-95,98-101

reservation of....................... 99,102

miner's right in............. 95-97,102-103,110

mining boards in...................... 110-112

mining in, extent of..................... 113

government encouragement of....... 112

mining law of........................... 91-114

administration of.................... 105

comparison with United States law.. 91-98 

development of............... 19,93-98,105

results of.......................... 113-114

summary of......................... 175

See also mineral leases in. 

mining commission in, on leasing........ 114

private property in, mining on........ 101-103

owner's preference right in......... 101-102

rentals in........................... 61,103,107

royalties in............. 92,103,107,109,110,123

silver in................................. 132

W.

Waihi mine, richness of...................... 143

Wallaroo mine, discovery of................. 57

Waste-lands act, terms of...... 54-57,73-74,149,155 Water rights, regulation of................... 34

Water supply, government aid1 in securing of. 26 

Watson, J. C., on mining leases..............18,113

Webb, George, on leasing system............ 49

Western Australia, area and population of... 25 

claims in............................. 28-30,43

coal lands in, development of............ 32

leasing of.................... 15-16,173-174

development in, requirements of......... 26,

27,28,41-42,49 

discoverer's rewards in.................. 35,39

dredging in, act of 1899................ 25,30,31

proposed repeal of................... 31

gold regulations in....................... 40

See also minerals in. 

labor covenant in............ 32,41-42,50-51,62

amendments to................ 41-42,50-51

land laws of, comparison of, with United

States........................... 13

Page.

Western Australia, mineral lands in, development of............... 26,27,28, 41-42,49

mineral lands in, disposition of......... 13-16,

25-26,37-44 

mineral leases in, amalgamation of........ 31

area of............................... 46

conditions of.......... 29-33,40-41,43,45-47

conversion of, to freehold......... 40,44,45

forfeiture of....................... 41-42,51

history of............................ 39-45

opinions on ......... 15,17,18,25,48-51,174

results of............................ 47-52

renewals of.......................... 43

summary of......................... 176

minerals in, ownership of....... 27,39-40,50,67

reservation of............ 13-16,37-38,42,6&

mineral wealth of.......'............. 25,45,174

miner's homesteads in................... 34-35

miner's right in, collateral rights under.. 33-34 

conditions of...................... 28-29,4f>

cost of............................ 28,39,40

mining commission of, investigation by.. 14,

48-51 

mining in, extent of holdings for......... 47

government aid in................... 26

history of............................ 37-45

mining law of............................ 25-52

administration of................. 35-36,43

amendment of................. 14,25,50-51

details of............................ 28-35

development of...................... 37-45

exemptions from........ 32,41-42,50-51

principles of......................... 26-28

preliminary reports on......... 12-16.18-19

summary of....................... 173-174

workings of.......................... 45-52

See also mineral leases in. 

mining tenements in..................... 28-35

private lands in, mining on.............. 27-28

33,42-43,44-45,72 

prospecting areas in...................... 30

prospecting in, government aid in....... 30

rentals in............................. 31-32,46

reward areas in.......................... 35

royalties in........................... 31-32,46

sluicing law of........................... 25

strikes in, effect on mining leases........ 32

surface rights, relation of mineral rights

and.............................. 27

wardens in, powers of.................... 35

water rights in........................... 34

Whitham, Bodham, on leasing system....... 17,70 Wool production, Australian. and United

States, comparison of............ 21

Wynne, Agar, on mining leases............. 18,113

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