Paki and Others v Attorney-General of New Zealand

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Blanchard,Tipping JJ,William Young J
Judgment Date27 June 2012
Neutral Citation[2012] NZSC 50
Date27 June 2012
Docket NumberSC 7/2010

[2012] NZSC 50

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 7/2010

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
Counsel:

I R Millard QC and M P Armstrong for Appellants

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

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.

The issues were: whether the Waikato River adjourning the Pouakani land was a “navigable river” so that it was vested in the Crown under 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; and whether the phrase “for the purposes of navigation” referred to use as a highway or included slight, intermittent or restricted use.

Held: The “whole of river” interpretation was inappropriate. There were four principal reasons leading to the conclusion that s261 CMA, like s14 CAAA before it, required the question of “navigability” to be assessed in respect of particular stretches of a river:

  • (i) a “whole of river” assessment of navigability was inconsistent with the text of the legislation;

  • (ii) assessment of particular stretches was consistent with the common law context;

  • (iii) the legislative history confirmed the textual indications that the legislation sought to strike a balance between private and public interests which would be seriously disturbed by a “whole of river” assessment; and

  • (iv) an interpretation which required the river as a whole to be classified as navigable or not would be highly inconvenient, suggesting that it could not have been envisaged and ought not to be adopted.

(i) Text of s261: Section 14 CAAA was enacted in response to Mueller v Taupiri Coal-Mines Ltd to rebut the presumption that Crown ownership under the common law could not arise in relation to land held by Maori under their customs and usages, which were guaranteed by the terms of the Treaty of Waitangi.. Parliament at the time was concerned with both the use of rivers as highways and the ownership of minerals. Section 14 CAAA had not been changed in any practical way in subsequent legislative enactments. Section 261 CMA continued as if it had not been repealed, and the Crown's interest in such river beds continued.

Under s261 CMA, use for the “purpose of navigation” was essential to the classification of a river as navigable or not. Use for the “purpose of navigation” was the governing concept for the balance struck between private property and public property. In substance the definition made no distinction between use by residents and use by members of the public — a navigable river was one capable of use for navigation. The definition of navigable river in s261(1) CMA referred to a river of “sufficient width and depth”. Questions as to width and depth could not sensibly be assessed except at particular points and this was consistent with navigability being examined on a segmented, rather than a “whole of river” basis.

In addition the rights of riparian owners in non-navigable rivers and the disclaimer of any intention to affect them contained in s261(3) CMA was a protection that would be significantly eroded by a “whole of river” approach to classification. It was difficult to see any legislative purpose in treating so differently the riparian owners of land adjacent to non-navigable stretches of rivers navigable in lower reaches and those whose lands adjoined rivers not navigable at all.

(ii) Common law context: The English common law presumption of Crown ownership of the bed of “navigable rivers” required both that such lands be within the tidal reaches and that they be beneath waters navigable in fact. The presumption was therefore inevitably only concerned with part of the river bed. The “whole of river” approach was not taken in any NZ authority decided under the common law before 1903 or after the CAAA. No authority was presented to suggest that there was any jurisdiction in which an assessment of navigability was based on the relationship of the proportion of the river in which there had been some documented use for navigation bore to the total length of the river. Whether an interruption disconnected navigation or did not provide any disruption was a question of fact. The common law did not provide any basis for Crown or state ownership of waters not navigable in fact.

(iii) Legislative history: the legislative history indicated a concern to strike a fair balance between the rights of riparian owners and the public interest. There was nothing in the circumstances of enactment of s14 CAAA which suggested that the concern was other than with waters navigable in fact in the particular location or that a “whole of river” assessment was meant. A “whole of river” approach would have the effect that, where rivers were incapable of navigation in fact where they abutted particular lands, riparian owners would be deprived of property in circumstances where no one could benefit from navigation. The contemporary disclaimers of intention to expropriate property in the enactment were inconsistent with the categorical approach to a river as navigable or not for its entire length. Nor was there any discernible public purpose in treating so differently riparian owners according to whether or not their lands abutted a river navigable in lower (or higher) reaches.

(iv) Inconvenience of whole of river approach: An approach which classified a river according to the proportion of its length that was navigable in fact could well undermine the public benefit sought to be obtained by both the common law presumption and the statutory adaptation of it. A river of great importance for navigation in its lower reaches only may be of such length that it could not be classified as navigable on a proportionate basis. That would seem an odd result. Navigability in fact in a particular stretch of the river was a more certain standard in application than a “whole of river” approach, which depended on classification by a court. Navigability in fact could be assessed according to actual use. The underlying justification for public ownership at common law (that such rivers were highways for the purposes of trade and transportation) did not apply where a river was incapable of use for navigation, perhaps because of natural obstructions.

“The purposes of navigation” were the purposes of highway. This sprung from the notion of “trade and travel” and was reflected in the language of “beneficial use” contained in the 1903 definition. Actual use for the purposes of commerce or trade was the best evidence that a river was navigable. The concept of navigability imported connection, which meant it could not be assessed solely by reference of the condition of the river immediately adjoining the riparian lands. River crossings by ferry did not make the river crossed “navigable” (majority view) as navigability related to travel up or down a river. Navigation was not appropriately used to cover “slight, intermittent, and restricted use” such as messing around in boats. It was not appropriate to take a broad interpretation of navigability as this would confound the expectations of riparian ownership affirmed for “non-navigable rivers” by the legislation.

The historic evidence of the river adjoining the Pouakani land did not establish that it was navigable. There was no record of transportation of people or goods. The natural impediments in the river and the development of roads by 1903 meant that there was no realistic susceptibility of the river to be used in those reaches for the purposes of navigation. Slight evidence of sporadic use of boats did not mean that the river was susceptible of use for the purposes of substantial navigation as contemplated by the legislation. The river adjacent to the Pouakani lands was such that it was not navigable within the meaning of the legislation.

The riverbed adjacent to the Pouakani lands had not vested in the Crown by virtue of s14 CAAA (majority decision).

JUDGMENT OF THE COURT
  • 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.

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...

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