Mr James Mackay has already given evidence in a Court at Coromandel in 1893 or 94 showing that these survey claims are wrong and he then stated that Government had undertaken to perform the surveys at their own cost.
Mr Mackay, when the reserves were to be laid off, or were being laid off, recognised the obligation of the Government to survey at its own cost.46
The Court determined that the stipulation in the goldfields agreement had to be upheld, and dismissed the Chief Surveyor's applications with respect to the subdivisions of Moehau I and Moehau 3.
The Court's ruling was appealed by the Chief Surveyor. The appeal was heard in July 1901.47 In evidence for the Chief Surveyor, Mr Kensington argued that
The dismissal was a mistake, because the lands for which liens were asked are lands excepted from the Crown purchases made in 1873 and up till present time.
Gazette 1879 page 1023 shows that these lands were purchased under the Immigration Acts. These lands are not excepted from the mining agreement. The exceptions in those agreement are coloured green in map attached to Mr J Mackay's report of 1869. The lands coloured green in this report I admit the Crown is bound to survey without cost. ...
All the cultivation reserves were surveyed by Government at its own cost, i.e. the external boundaries and the reserves. Most of them between 1869 and 1872. In no case do I claim the cost of the survey of the external boundary. But for the cost of divisional survey made since at the request of the native owners.
Since the mining agreement, the Crown began to buy, and such parts as the natives did not wish to sell were cut off, they being charged with their proportion of the cost.
These claims of ours have been brought on before, and adjourned here at request of natives. As long ago as 1895 these cases were before the Court.
The objection as to the G.F. agreement was not raised till cases came on before Judge Wilson.48
But Haora Tareranui stated again that
the lands were surveyed so as to define the lands awarded to the Crown by the Court on partition. The L.P. Officers promised that the Government would pay all costs of survey. Not in writing. We considered that promise equal to the stipulation in the G.F. agreement. All the lands in this piece are Crown lands.
The Government officers who made this promise were Mr Mackay and Mr Preece. Mr Mackay did appear once, and objected to some of these survey charges.49
Kensington countered that
We have always objected to the statement that Mr Mackay agreed to pay all surveys. It must be shown that Mr Mackay had authority to make such a promise. ... The deeds of purchase have been produced to the Court on a former occasion. There is nothing in those deeds to the effect that Government is to pay for the surveys.50
The Court decided that
The appellants have shown that section 5 has been strictly observed. The appeal therefore must succeed, as regards the point upon which the former Court refused the order.
46 Coromandel Minute Book 6 pages 39–40. Supporting Papers #J6.10–11.
47 Coromandel Minute Book 8 pages 368–372. Supporting Papers #J7.6–10.
48 Coromandel Minute Book 8 pages 368–369. Supporting Papers #J7.6–7.
49 Coromandel Minute Book 8 page 370. Supporting Papers #J7.8.
47