complied with the requirement of the law, and, I may state here, that in all the subsequent Native Lands Acts there is a similar provision like the one from which I have quoted, namely that of 1865. The very first requirement if they were to take action against the Government granting the right to remove kauri timber for mining purposes, would be this, to produce their legal title, and this I feel assured they could not do.48
The Mining Warden then referred the matter to the Under Secretary for Mines.
[The Deed of Cession of goldmining rights] excepts land leased to James Smart and Alexander Hogg. It may turn out that the cutting of timber now claimed by these parties was formerly vested in Smart and Hogg.
The agreement is not at all clear, and it does not seem to me to be quite such an easy matter for the Warden to step in and stop this timber removing as Mr Sheridan appears to think, however before any action is taken, I deem it my duty to lay the correspondence before you in order that you may instruct me in the matter, as I cannot receive instructions from the Commissioner of Crown Lands or the Native Land Purchase Department. ...
The parties removing the timber may have no lease at all, but only a right to cut and remove timber from the natives.
This matter wants carefully looking into, as it seems to me the agreement upon which the Crown's rights are founded are very vague. You will note Messrs Russell and Campbell speak of a 'lease', but they may mean a 'licence to cut and remove timber'.
The parties may have no valid agreement as suggested by the Commissioner of Crown Lands, but could that alter the vagueness of the agreement with Crown and Natives?49
The Under Secretary referred the case to the Chief Land Purchase Officer, with the comment that
Having regard to the exception in favour of James Smart and Alexander Hogg in the deed of cession of the block dated 13th May 1868 , I do not see how the Warden can interfere with the cutting of timber on the portions of the block stated to be leased to the persons named.50
The Chief Land Purchase Officer replied that
Any alleged lease subsisting at the time of the cession to the Governor was clearly invalid, as the lands had not passed through the Native Land Court. In any case it would have long since expired. I think the removal of the timber by those people should be stopped at all risks. If they had any legal instrument of possession or right, they would have registered it long ago.51
But the Under Secretary for Mines was still concerned about the leases referred to in the deed of cession. He referred the matter again to the Chief Land Purchase Officer.
I attach plan showing the two pieces of [leased] land referred to, the area of which is not stated. It seems to me that it is not so much a question of the validity of the leases to James Smart and Alexander Hogg, as the excepting of these pieces of land from the agreement of r3th May 1868 for the opening of the land for mining. In fact those two pieces of land are not open for mining and the Warden has no jurisdiction in respect to them.52
48 Commissioner of Crown Lands Auckland to Mining Warden Thames, 5 May 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 57–59.
49 Mining Warden Thames to Under Secretary for Mines, 23 May 1898. Maori Affairs Head Office file MLP 1899/48. Supporting Papers #13128.55–69.
50 Under Secretary for Mines to Chief Land Purchase Officer, 30 May 1898, on cover sheet to file Mines 98/811. Maori Affairs Head Office file MLP 1899/48. Supporting Papers #B128.70–72.
51 Chief Land Purchase Officer to Under Secretary for Mines, 30May 1898, on cover sheet to file Mines 98/811. Maori Affairs Head Office file MLP 1899/48. Supporting Papers #B128.70–72.
52 Under Secretary for Mines to Chief Land Purchase Officer, 31 May 1898, on cover sheet to file Mines 98/811. Maori Affairs Head Office file MLP 1899/48. Supporting Papers C3128.70–72.
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