the first
"ultra viso"
lease.
RES
6111
Mhe Johnson
lu: Cox
No doubt it was convenient for the out to Grant the Sicourd
lease to the Grantees of the ultra-vives lease of "Marine hot 2" in order to stall off their claim for compensation, Cert I certainly, think that such
have a par
вот прити
Wdro
Daulli ulutuse it was
The Custory of the case
inaquitable and
bgal.
is Greefly, as follows
The have of has two tearme hot a was granted
Asar
Gy
the sorro
I
In
October
5899.
right to cather shall in a certain area when the local fisturmer claimed a similes right
immsmond worge. The "shell case" (brought by the lessors against a local (isherman) was dresdent by the casting vote of the C.J. on 29 June 1900. This decision upheld the customary right of the community to gather
against the exclusis recht of the bosies under the Crown base (see 21762/61).
-shell
It seems probable that the C.J.5 dicasion
(ace. 4-6-5 minute of 13 July, 1900 on
Wroney
2176301) ht
that decision
whether richt.
right or wrong,
listos good
1
unle
and until it is wither reversed on
appeal
or overruled or counteracted by beziolation.
The decision was not apprated.
The Foreshous and brabed ofthe 21
and Arabed order 21 of 1 gor
。 passid
on the 5thack igos and we have to consider what is the true construction of the
section of this orde
proviss to the scared
If the beqiolature head sen fit to ours. Tule the decision
is the ""Shell case", it could have done so in the most by validating the lease of marine hot on together with the other Crown leaves validated C,
Sec 2 of the orde
But it did not do so
Duct maume
·
*
in the Full Court
Per contra, it retained in sec z of the arda
*E
ccluding this leave from validation-
Whether the motion
wae
(
548.
proviso
a mustaken feeling of delicaces" (!),
Max
mirati
On
21763/00
as suggested by Sir H. Berkeley, I cannot say, but as I
ત
pointed out ui "informed why the proviso to
tech
But the affect of its retention was,
lot whu ntou
retained.
clearly
I submit, clearh, to
Exclude the lease of Marime hotz from validation, and
consse, wathy to recognize
un the Shell. Case"
all the results of the decisions
1.9. that the lease
ས་་ ན་ L
thra
virio and that the community lead a customary thes shells (Ser, in this connection,
right to gather shells (sis.
11: Coxs tuinuti as 21763/01)
If such was the effect, I do not see how it
to defend the action of the Zoo! -
possible
C under the proviso to sec 2 it inferentially recognized
that a have of is certain area
for a certain purpose
was (as had ben Rclared by the "Full Court) mivated owing to the rights of the public therein;
C of expressly recognized this position by cancelling
the have in questions;
It then calmly proceeded under of the order to
grant a less of park of the same area for the Samme
purpose in devrezation of the puttic valets which "it and recognized, in its begislation capacity, in
of the ride, and
1
the proviso to Sec 2
, in its extention capacity, by cancelling the former leave. Such a construction of the powers conferred upon the Gost
ada ziofigos is, I subunit, byssed of had bad un aquest, if not in law. The Gout cannot exercus those pervers so as
514 304
let's
the ric, bts of the public
นา
Crew of the
to override established (regully or wormerly
it matters not which - ) by the decision in the "Shell-case" so long as that decision stands - as it does at presunt.