CO129-318 - Governor Sir Blake - 1903 [7-10] — Page 552

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.