The Warden then wrote to the timber millers, who were named Smythe, Preece and Johnson.
My attention having been drawn to the fact that you are cutting and removing kauri timber from the Harataunga West Block Nos 1 to 7,this is to give you notice that you have no right to interfere with the timber on those blocks, which were ceded to the Crown for mining purposes by the native owners previous to the same being adjudicated on by the Native Land Court. Further, there is nothing registered in your favour at the Deeds Registry Office at Auckland. Should you personally or through your employees be found interfering with these lands after the receipt of this notice, you will be treated as trespassers.46
The solicitors for the timber millers replied.
Our client [John Smythe] has been in actual legal possession of these lands for a period of five years under an assignment of leases from the native owners made in 1879. He has constructed at an expense of several thousand pounds a tramway to enable him to get the timber from these blocks, and it is his intention to resist to the utmost any attempt to deprive him of the fruits of his expenditure.
We altogether deny that the agreement between the native owners and the Governor to allow goldmining on these lands includes or implies a grant of the kauri trees. On the contrary the kauri is expressly reserved to the natives, with a further provision that the natives are to be paid for any trees used for mining purposes. The natives have been receiving royalty for every tree cut down, and any attempt to interfere with the natives in receipt of these royalties would we are sure cause trouble.
Please take notice that our clients Messrs Smyth Brothers claim, as assignees of certain leases from the native owners, the right to cut and remove the kauri timber on Harataunga West and Harataunga East.47
This response was forwarded to the Commissioner of Crown Lands, who replied that
I have carefully examined the agreement referred to, and find that your surmise that the agreement is not very explicit is perfectly correct. In one section it provides that timber licences can be issued by the Governor for £5 per annum, and that the money derived from such timber licences and sales of such kauri timber should be paid over to the natives, and in the next section it is stated that Li instead of L5 should be charged for cutting timber.
The whole agreement is full of apparent contradictions, and exceedingly vague in many of the conditions, but it is very clear in this, that the Government has the right to dispose of timber required for goldmining purposes, and I therefore think that you are fully justified in disposing of whatever timber is applied for goldmining purposes.
Now as regards the right Messrs Smythe, Preece and Johnson claim to have over the Harataunga Blocks, I have to say this, that a careful search at the District Land Registrar's Office disclosed the fact that no transfer or agreement have ever been registered over that block, and that they can therefore have no legal claim to the timber. Section 58 of the Native Land Court Act 1865 applies to this land and this states "that no transfer, conveyance, lease, or other instrument etc shall be valid or have any effect at law or in equity until a receipt by the Treasurer or Sub-Treasurer for the duty payable shall have been endorsed thereon". The parties Smythe, Preece and Johnson, or others before them, may have entered into some arrangement with the natives as to the cutting of timber at Harataunga Blocks, but they never did it in such a way as to give them legal possession. For the purpose of evading the payment of the taxes or duty thereon, they never
46 Mining Warden Thames to Messrs Smythe, Preece and Johnson, 4 April 1898, attached to Mining Warden Thames to Under Secretary for Mines, 23 May 1898. Maori Affairs Head Office file MLP 1899/48. Supporting Papers #B128.55-69 at 69.
47 Russell and Campbell, Solicitors, Auckland, to Mining Warden Thames, at April 1898, attached to Mining Warden Thames to Under Secretary for Mines, 23 May 1898. Maori Affairs Head Office file MLP 1899/48. Supporting Papers #B128.55–69 at 60–61.
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