Paki and Others v Attorney-General of New Zealand

• Jurisdiction: New Zealand
• Court: Supreme Court
• Judge: Elias CJ,Blanchard,Tipping JJ,William Young J
• Judgment Date: 27 June 2012
• Neutral Citation: [2012] NZSC 50
• Docket Number: SC 7/2010
• Date: 27 June 2012

BETWEEN

John Hanita Paki, Toriwai Rotarangi, Taihopa Te Wano Hepi, Matiu Mamae Pitiroi and George Mongamonga Rawhiti

Appellants

and

Attorney-General of New Zealand for and on Behalf of the Crown (“The Crown”)

Respondent

[2012] NZSC 50

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 7/2010

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against determination that Waikato River “as a whole” was navigable river — kaumatua sought declarations river bed was held by Crown under constructive trust — lower courts had rejected contention that vesting in the Crown under the Coal-mines Act Amendment Act 1903 (“CAAA”) took place only in places where the river was in fact navigable — s14 CAAA (bed of river vested in Crown) declared beds of navigable rivers “shall remain and shall be deemed to have always been vested in the Crown” — s261 Coal Mines Act 1979 substantially re-enacted s14 CAAA — whether in assessing the navigability of the river, a “whole of river approach” should be taken or whether it should be assessed according to stretches of the river — whether the phrase “for the purposes of navigation” referred to use as a highway or included slight, intermittent or restricted use.

Counsel:

I R Millard QC and M P Armstrong for Appellants

D B Collins QC, V L Hardy and D A Ward for Respondent

• A The appellants have standing to bring the proceedings in a representative capacity.

• B The riverbed adjoining the Pouakani lands is not vested in the Crown under s 261 of the Coal Mines Act 1979 and s 354 of the Resource Management Act 1991.

• C Costs are reserved.

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ, Blanchard and Tipping JJ	[1]
McGrath J	[90]
William Young J	[119]

Elias CJ, Blanchard AND Tipping JJ

(Given by Elias CJ)

1 Was the Waikato River adjoining land at Pouakani, near Mangakino, a “navigable river” so that it was vested in the Crown under s 14 of the Coal-mines Act Amendment Act 1903? If so, the plaintiffs acknowledge that they cannot succeed in their proceedings in the High Court for declarations that the river bed is held by the Crown under a constructive trust for those they represent. The appeal is brought against a decision of the Court of Appeal 1 upholding a determination in the High Court 2 that the Waikato River “as a whole” was a navigable river and rejecting the contention of the plaintiffs that vesting under the Act takes place only in places where the river is in fact navigable (as they say the river adjoining the Pouakani lands is not). The plaintiffs appeal to this Court.

2 For the reasons that follow, the vesting accomplished by s 14 of the Coal-mines Act Amendment Act 1903 attached only to those stretches of a river that were navigable in fact. We therefore disagree with the views expressed in the High Court and accepted in the Court of Appeal that a river which is navigable in substantial part has that status throughout. The basis on which the matter was disposed of in the Courts below made it unnecessary for those Courts to determine whether the river in the stretches adjoining the Pouakani lands was navigable (because they considered the question of navigability of the river as a whole). It is therefore necessary for this Court to consider whether the river adjoining the blocks was navigable in 1903 (the date at which such assessment must be made). 3 The answer turns on the meaning of “for the purposes of navigation”, but is ultimately a question of fact. For the reasons to be developed, we conclude that the river adjoining the Pouakani lands was not navigable, with the result that the bed did not vest in the Crown under s 14 of the Coal-mines Act Amendment Act 1903.

The appeal

3 The plaintiffs are kaumatua of Ngati Wairangi, Ngati Moe, Ngati Korotuohu, Ngati Ha, Ngati Hinekahu and Ngati Rakau. They claim, under a representation order made in the High Court, as representatives of the descendants of owners of five blocks of land along the left bank of the Waikato River at Pouakani, near Mangakino, which were transferred to Crown ownership between 1887 and 1899. The blocks of land were Pouakani 1, Pouakani B8, Pouakani C3, Pouakani B10 and Pouakani B6A, all of which were derived from the original Pouakani Block created in 1886 by the Native Land Court on investigation of the much larger Tauponuitia Block initiated by Te Heuheu Tukino and others on behalf of Tuwharetoa. Before 1886, the Native Land Court had granted titles to the land on the right hand bank of the river, which was then sold to private individuals.

4 In the case of Pouakani No 1, the freehold of 20,000 acres was ordered by the Native Land Court to be vested in the Crown and was declared to be the property of the Crown in September 1887 for payment of survey and other costs amounting to £1,650. (The Crown paid to the owners the £350 difference between the value of the block and the survey costs.) The four other blocks (amounting to some 45,000 acres in total) subdivided out of the remaining Pouakani Block in 1891 (after initial subdivision orders were set aside by legislation) were purchased by the Crown from the Maori owners in 1892 and 1899. Pouakani C3, B8, and B10, purchased in 1892, were contained within a certificate of title issued to the Crown in 1893. Pouakani B6A, purchased in 1899, was vested in that year in the Crown by order of the Native Land Court. 4 Blocks C3, B8 and B10 were declared by notices in the New Zealand Gazette to have been acquired under the North Island Main Trunk Railway Loan Application Act 1886. 5 The parties are in agreement that the Crown obtained with the riparian lands title to the adjacent stretch of river to the middle of the flow, in accordance with a presumption of the common law.

5 In proceedings issued in the High Court, the plaintiffs sue the Attorney-General on behalf of the Crown, seeking a declaration that Crown ownership of the river bed to the middle of the river is subject to a constructive trust in favour of the Pouakani Maori owners. The constructive trust sought is described as “either remedial or institutional”. It said to arise because the river bed was obtained by the Crown in breach of fiduciary duties owed to the Maori owners arising out of the circumstances of the alienations and the Treaty of Waitangi. It is claimed that the Crown acquisition of the river bed under the common law presumption was not explained to the Maori owners and occurred without their free and informed consent, in breach of the Crown's duties to them.

6 The Attorney-General contends that the river is navigable and that therefore the bed of the river became the property of the Crown by s 14 of the Coal-mines Act Amendment Act 1903. Section 14 declared that the beds of such rivers “shall remain and shall be deemed to have always been vested in the Crown”. The plaintiffs say that the river adjoining the Pouakani lands is not navigable and that s 14 has no application. They accept however that, if the river bed vested in the Crown under s 14, their claim cannot succeed.

7 If the river is non-navigable, so that s 14 does not apply, the Attorney-General says that the Crown's acquisition of it (under the common law presumption that the transfer of the riparian lands carried the bed of the river to the middle of the flow) was not in breach of any duty which could justify the imposition of a constructive trust. In addition he said in the pleadings that the plaintiffs lack standing and that their claims are barred by the terms of the Pouakani Claims Settlement Act 2000 (which resolved grievances reported on by the Waitangi Tribunal in a report in 1993). 6 The Attorney-General also raises defences based on the lapse of time, invoking the Limitation Act 1950 and the doctrine of laches, and asserting acquiescence by the Maori vendors.

8 Some portions of the Pouakani riparian lands were sold or transferred by the Crown to others. Some of this land has since returned to Crown ownership by compulsory acquisition under the Public Works Act 1928 for hydroelectricity

generation purposes. The implications of these changes in ownership have not been addressed in the present appeal. Nor can it resolve a Crown contention that no trust as claimed can apply to Pouakani 1 where the fee simple title was issued directly to the Crown and never vested in any Maori owner. (Whether Native Land Court title is a necessary pre-condition to the imposition of a trust or whether the preceding investigation and direct vesting of the land in the Crown is sufficient are matters we are not called upon to consider.)

9 The Crown succeeded comprehensively in the High Court. 7 Harrison J held that the claim was precluded by the terms of the Pouakani Claims Settlement Act and that the plaintiffs lacked standing to bring it in any event. 8 He held, also, that the terms of s 14 of the Coal-mines Act Amendment Act 1903 meant that navigability was to be assessed of the river as a whole and not simply of the portion of the river adjoining the Pouakani lands. 9 Since he found the river as a whole was navigable (on assessment of the overall proportions in which it was navigable), it was “deemed to have been always vested in the Crown” by s 14. 10 The claim based on the original acquisition of the river bed (through application of the presumption that it was transferred with the riparian land) was accordingly overtaken. In any event, the Judge considered that no duty of a fiduciary character was owed by the Crown to the Pouakani people in respect of the land acquisitions between 1887 and 1892 11 and that the claimed relief (declaration of constructive trust) was not available. 12 Finally, the Judge considered that the claim would have been barred by defences based on lapse of time. 13

10 The Court of Appeal held that the terms of the Pouakani Claims Settlement Act did not exclude the claim, reversing the High...