Paki v Attorney-General

Case [2012] NZSC 50


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IN THE SUPREME COURT OF NEW ZEALAND
SC 7/2010
[2012] NZSC 50

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

Hearing:         15 and 16 March 2011

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

Counsel:         I R Millard QC and M P Armstrong for Appellants
D B Collins QC, V L Hardy and D A Ward for Respondent

Judgment:      27 June 2012

JUDGMENT OF THE COURT

AThe appellants have standing to bring the proceedings in a representative capacity.

BThe 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.

CCosts 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 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.

    [1]Paki v Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125 (Hammond, Robertson and Arnold JJ).

    [2]        Paki v Attorney-General [2009] 1 NZLR 72 (HC) (Harrison J).

  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…

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Paki v Attorney-General [2012] NZSC 50
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[2012] NZSC 50
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CaseChat Overview and Summary

The appellants, kaumatua of Ngati Wairangi, Ngati Moe, Ngati Korotuohu, Ngati Ha, Ngati Hinekahu and Ngati Rakau, seek a declaration that Crown ownership of the river bed to the middle of the Waikato River is subject to a constructive trust in favour of the Pouakani Maori owners. They claim that the Crown acquisition of the river bed was in breach of fiduciary duties owed to the Maori owners arising out of the circumstances of the alienations and the Treaty of Waitangi. 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. The Court of Appeal held that the bed of the river was deemed always to have been vested in the Crown. The Supreme Court held that the Coal-mines Act Amendment Act 1903, as currently in force, vests the bed of navigable rivers in the Crown. The question of whether the river was navigable, however, had to be assessed with respect to particular stretches of the river. The river adjoining the Pouakani lands was not navigable and therefore the bed did not vest in the Crown under s 14 of the Coal-mines Act Amendment Act 1903.

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