T�wharetoa M�ori Trust Board v Taup� Waters Collective Limited
[2021] NZHC 1871
•23 July 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-690
[2021] NZHC 1871
UNDER The Declaratory Judgments Act 1908 IN THE MATTER OF
a Deed between the Crown and the
Tūwharetoa Māori Maori Trust Board dated 10 September 2007
BETWEEN
TŪWHARETOA MĀORI TRUST BOARD
Applicant
AND
TAUPŌ WATERS COLLECTIVE LIMITED
Defendant
AND
ATTORNEY-GENERAL
Intervenor
Hearing: 3 and 4 September 2020 Appearances:
A R Galbraith QC, J P Ferguson and C Conroy-Mosdell for the Applicant
G L Melvin and H M Carrad for the Intervener
W L Aldred and S Cathro, Counsel Assisting the CourtJudgment:
23 July 2021
JUDGMENT OF GWYN J
TŪWHARETOA MĀORI TRUST BOARD v TAUPŌ WATERS COLLECTIVE LIMITED [2021] NZHC 1871 [23 July 2021]
TABLE OF CONTENTS
Introduction [1]
The parties [5]
Factual background [14]
Relevant portions of the 2007 Deed relied on by the Trust Board [27]
Declarations sought [36]
Declarations sought by the Trust Board [36]
Declarations sought by the Collective [38]
Approach [41]
Principles of interpretation [41]
Jurisdiction under the Declaratory Judgments Act 1908 [44] Jurisdiction of Māori Land Court under Te Ture Whenua Māori Act 1993 [49] Relevance of Commerce Act 1986 to interpretation of the 2007 Deed [51]
Issues [56]
Issue one: the nature and extent of the Trust Board’s legal title [57]
Issue two: whether a common law right of public navigation exists in respect of Taupō Waters [60]
Submissions [66]
The Collective [66]
The Attorney-General [70]
The Trust Board [78]
Analysis [87]
Conclusion [105]
Issue three: the Crown’s power to license [108]
Issue four: whether an exemption for holders of berthing and launching permits exists
[112]
Submissions [117]
The Collective [117]
The Attorney-General [122]
The Trust Board [124]
Analysis [126]
Conclusion [138]
Issue six: the role of the Management Board, the management plan, and the Reserves Act 1977 [140]
Submissions [144]
The Collective [144]
The Trust Board [150]
The Attorney-General [155]
Analysis [156]
Conclusion [167]
Issue five: recreational use activities that exclude the general public [170]
Submissions [172]
The Collective [172]
The Trust Board [173]
The Attorney-General [177]
Analysis [178]
Conclusion [184]
Orders [186]
Costs [188]
Appendix A [189]
Introduction
[1] This proceeding concerns an application by the Tūwharetoa Māori Trust Board (the Trust Board) for declarations under the Declaratory Judgments Act 1908 (the Act) in relation to the construction of a Deed between the Trust Board and the Crown dated 10 September 2007 (the 2007 Deed).
[2] The 2007 Deed records the agreement between the Trust Board and the Crown regarding the rights and interests of the Trust Board, the Crown, the public and certain other persons in relation to the land comprising the bed of Taupō Moana (Lake Taupō),1 the bed of Te Awa o Waikato (the Waikato River) from Lake Taupō to the Huka Falls,2 and the beds of parts of certain associated waterways flowing into Lake Taupō, collectively referred to as “Taupō Waters”.
[3] The 2007 Deed revoked and replaced an earlier Deed between the Trust Board and the Crown dated 28 August 1992 (the 1992 Deed), under which the Crown agreed that ownership of the land comprising Taupō Waters would be vested in the Trust Board.
[4] The public’s general freedom of entry to and access of Taupō Waters for non-exclusive, non-commercial recreational use is not in dispute.3 It is the rights of the Trust Board in relation to various entities and other persons who presently occupy and/or use parts of Taupō Waters for commercial activities (Commercial Users) that are in dispute. The Trust Board seeks the declarations in the context of negotiations between the Trust Board and Commercial Users of Taupō Waters (including the users represented by the respondent, Taupō Waters Collective Limited (the Collective)), regarding a proposed commercial licensing regime for Taupō Waters. The Trust Board seeks declarations to clarify the nature and extent of its rights under the 2007 Deed, in particular, its rights to:
1 Also known as Lake Taupō-nui-a-Tia.
2 The precise point on the Waikato River is Te Toka a Tia (the rock of Tia).
3 This is preserved by cls 1.7 and 2.2.1 of the 2007 Deed.
(a)grant rights of occupation or use, by way of licence, lease, easement or similar arrangement (licences), in respect of commercial activities and certain private structures in or on Taupō Waters; and
(b)charge for such licences.
The parties
[5] The applicant is a Māori trust board established under s 10 of the Māori Trust Boards Act 1955, and its beneficiaries are the members of Ngāti Tūwharetoa (as defined in that Act). The Trust Board is the fee simple owner of Taupō Waters, which has the status of Māori freehold land under Te Ture Whenua Māori Act 1993.
[6] The respondent is the Collective, which was incorporated on 14 March 2017 to act as a representative body for certain Commercial Users of Taupō Waters.4
[7] The Attorney-General was initially named as the respondent in the proceedings, as the other party to the 2007 Deed. However, with the consent of the Trust Board, the Attorney-General was struck out as respondent on the basis that the Attorney-General broadly agreed with the declarations sought and was unable to fulfil the proper role of a contradictor.5 The Attorney-General was then joined as an intervenor. The Attorney-General has had no involvement in negotiations between the Trust Board and the Collective that have occurred to date. The Attorney-General filed a Statement of Position, recording his agreement with all of the declarations sought by the Trust Board and his disagreement with all of the alternative declarations sought by the Collective.
[8] The Collective subsequently gave notice that it would assume the status of respondent in the proceeding, to oppose the declarations sought by the Trust Board, and Grice J made orders accordingly in a minute dated 22 March 2018.
[9] Subsequently, counsel for the Collective advised the Court that it would take only a limited role at hearing. Accordingly, Ms Aldred was appointed as counsel to
4 The members of the Collective as at 19 October 2017 are attached as Appendix A.
5 Canterbury Regional Council v Attorney-General [2009] NZAR 611 at [43].
assist the Court. In making the appointment, Grice J noted in a minute dated 14 May 2020:
… Because Taupō Waters Collective Ltd is not able to continue its role as contradictor as it had envisaged, Ms Aldred will place before the Court the arguments she considers should be made in contradiction to the position of the applicant and the Attorney-General. This will enable all relevant arguments to be placed before the Court.
[10] Mercury NZ Limited (Mercury) was an interested party in the proceeding. Mercury is the owner and operator of the Waikato hydroelectricity system, including the land and structures comprising the Taupō Control Gates. The Trust Board and Mercury are parties to both: a registered easement number 9880618.1 (the Mercury Easement), which was registered against Record of Title 191117 (South Auckland) on 1 December 2014; and an agreement, which is referred to in the Mercury Easement (the Tūwharetoa-Mercury Agreement).
[11] While the 2007 Deed does not apply to the Taupō Control Gates, Mercury was concerned that declarations made in these proceedings could affect hydroelectric operations on the Waikato River and/or Lake Taupō (collectively, the Mercury activities) directly, indirectly or inadvertently. The scope of the Mercury activities contemplated by the parties is set out in the Mercury Easement and the Tūwharetoa-Mercury Agreement.
[12] The Trust Board does not intend the declarations sought in this proceeding to apply to or affect the Mercury Activities. Accordingly, the Trust Board and Mercury sought an order by consent that to the extent any declaration or judgment resulting from the proceeding relates to the Trust Board’s right to acquire a licence (or other form of permission) and/or charge for occupation or use of Taupō Waters by any person, or otherwise relates to the rights of any person to occupy or use Taupō Waters, such declaration or judgment is not intended to include, and does not include, Mercury insofar as it (or any assignee or successor of Mercury, or any person acting for the benefit of or on behalf of Mercury) undertakes the Mercury Activities.
[13] I granted an order on those terms by way of minute dated 2 September 2020, and Mercury withdrew as a party following the making of the order.
Factual background
[14] I adopt the Trust Board’s overview of the relevant background in this proceeding.
[15] Lake Taupō, its tributaries, and part of the Waikato River are within the rohe (tribal territory) of Ngāti Tūwharetoa and are of significance to Ngāti Tūwharetoa. The recitals to the 2007 Deed record that Lake Taupō is a taonga of Ngāti Tūwharetoa, and embodies the mana and rangatiratanga of Ngāti Tūwharetoa. In He Maunga Rongo: Report on Central North Island Claims (the Tribunal Report), the Waitangi Tribunal made the following findings in respect of Ngāti Tūwharetoa’s relationship with Lake Taupō:6
As a result of the evidence we heard, we find that Lake Taupō waters and fresh water fisheries were taonga, exclusively possessed by Ngāti Tūwharetoa and their whanaunga and over which they exercised tino rangatiratanga as at 1840. Therefore, the Crown did have a duty to actively protect both the taonga, Lake Taupō waters and fisheries, and Ngāti Tūwharetoa’s rangatiratanga over them. That rangatiratanga consisted of:
· possession of the taonga;
· authority over the taonga;
· a cultural and spiritual relationship with the taonga; and
· responsibility to care for the taonga.
All of these things were guaranteed and protected by the Treaty.
[16] Negotiations between Ngāti Tūwharetoa and the Crown led to an agreement in 1926 whereby, among other things, the general public were to be allowed access to the Lake Taupō fishery (the 1926 Agreement). The bed of Lake Taupō and the bed of the Waikato River extending from Lake Taupō to and inclusive of Huka Falls, together with the right to use the respective waters, were subsequently declared to be the property of the Crown under s 14 of the Māori Land Amendment and Māori Land Claims Adjustment Act 1926 (the 1926 Act).7 By proclamation on 7 October 1926 (as amended by further proclamation on 18 February 1927) under s 14(4) of the 1926 Act,
6 Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (Wai 1200, 2008) vol 4 at 1286.
7 Originally titled the Native Land Amendment and Native Land Claims Adjustment Act 1926.
the beds of the rivers and streams flowing into Lake Taupō (as described in the schedule to the proclamation) were declared to be Crown land.
[17] Ngāti Tūwharetoa disputed that the agreement negotiated with the Crown in 1926 included the vesting of title to the bed of Lake Taupō and the Waikato River extending from Lake Taupō to and inclusive of the Huka Falls or the beds of rivers and streams flowing into Lake Taupō, and sought the return of those lands. The Crown and the Trust Board agreed, by the 1992 Deed, that ownership of Taupō Waters should be revested in the Trust Board to be held in trust in accordance with the terms of the 1992 Deed.
[18] By the cumulative effect of orders made by the Māori Land Court on 22 September 1993, 14 December 1999, 27 February 2001, 23 August 2001 and 14 April 2003, Taupō Waters was vested in the Trust Board; and Taupō Waters was declared to be Māori freehold land under the Te Ture Whenua Māori Act 1993. On 7 December 2004, certificates of title as Māori freehold land were issued in the name of the Trust Board for the Taupō-nui-a-Tia Block and the Te Awa o Waikato ki te Toka o Tia Block.
[19] On 10 September 2007, following negotiations regarding the nature and extent of the Trust Board’s rights under the 1992 Deed, the Crown and the Trust Board entered into the 2007 Deed. The 2007 Deed records (among other things) that it is an agreement to clarify legal issues, and that it revokes and replaces the 1992 Deed. Clause 1.3 of the 2007 Deed recites, that, through the 1992 Deed, the Crown agreed that ownership of the Taupō Waters should be vested in the Trust Board to be held in trust (in accordance with the 1992 Deed) for:
(a)in relation to the bed of Lake Taupō, the beneficiaries of the Trust Board;
(b)in relation to the beds of the specified part of the Waikato River and certain rivers or streams flowing into Lake Taupō, the members of the Ngāti Tūwharetoa hapū who adjoin such rivers or streams; and
(c)in relation to all such beds, the common use and benefit of all the peoples of New Zealand to continue to have freedom of entry to, and access upon, such beds as set out in the 1992 Deed.
[20] On 24 March 2009, the Taupō Waters Trust was established by order of the Māori Land Court to, among other things, administer the land comprising Taupō Waters. The Trust Board is the trustee of the Taupō Waters Trust. The Taupō Waters Trust presently operates under an amended trust order dated 20 November 2015.
[21] The Taupō-nui-a-Tia Management Board (the Management Board) was established to manage Taupō Waters in partnership between the Trust Board and the Crown, and the Trust Board appoints four of the eight members of the Management Board. As part of its functions under the 2007 Deed, the Management Board is to determine a management plan for Taupō Waters. The Management Board issued its first management plan in June 2011.
[22] As already noted, Commercial Users, including members of the Collective, presently occupy and/or use parts of Taupō Waters for commercial activities. Some of the commercial activities undertaken on Taupō Waters relate to specific events, others to year-round activities, and some relate to structures. Some Commercial Users have agreed licences with the Trust Board.
[23] The Trust Board wished to take a staged approach to the development and introduction of a licensing regime for commercial activities involving Taupō Waters. It focused initially on major commercial entities and annual events operators. It then moved to engagement with Commercial Users who operate commercial vessels, or occupy structures, on Lake Taupō (Transitory and Structure Users), which included some members of the Collective. As at the date of hearing, it had not commenced substantive engagement with commercial operators on the waterways flowing into Lake Taupō or with commercial fly-fishing guides.
[24] In early 2013, the Trust Board requested various Transitory and Structure Users, including members of the Collective, to register with the Trust Board if they were undertaking commercial activities on Taupō Waters.
[25] Between 2013 and March 2017, there were discussions between the Trust Board and Commercial Users concerning the terms and conditions on which the Trust Board would grant rights by way of written licence to the Transitory and Structure Users, to enable them to occupy and/or use parts of Taupō Waters for commercial purposes.
[26] On 24 August 2017 the Trust Board filed this proceeding. At that time, and as at the date of hearing, the Trust Board and the Collective (and the Commercial Users that it represents) have not agreed the terms and conditions on which the Trust Board (if entitled) may grant licences for the occupation and/or use of Taupō Waters for commercial purposes. While the Trust Board anticipates that the Court’s decision will assist it in its engagement with members of the Collective, and other Commercial Users, any declarations granted in the proceeding will not conclude the terms of any Licences between the Trust Board and commercial operators or the commercial terms of the proposed licensing regime more generally.
Relevant portions of the 2007 Deed relied on by the Trust Board
[27] First, the Trust Board highlights that the public’s general freedom of entry to and access for non-exclusive, non-commercial recreational use of Taupō Waters is not in dispute. This is preserved by clauses 1.7 and 2.2.1 of the 2007 Deed:
1.7This Deed continues the agreement of the parties that:
1.7.1the people of New Zealand’s freedom of entry to and access upon Taupō Waters for non-exclusive, non-commercial recreational use and enjoyment and non-commercial research purposes free of charge is preserved; and
…
2.2Access to Taupō Waters
2.2.1The people of New Zealand shall continue to have freedom of entry to and access upon Taupō Waters for non-exclusive, non-commercial recreational use and enjoyment and non-commercial research free of charge as if Taupō Waters were a reserve for recreation purposes.
[28] The Trust Board says it is clear that it has the right to grant rights of occupation or use for commercial and private structures and other activities, and to charge for these rights. The key provision relied on by the Trust Board is cl 2.5.1:
2.5Board’s right as owner to grant rights of occupation or use for commercial and private structures and other activities
2.5.1The Board, as owner, may grant rights of occupation or use of parts of Taupō Waters for any purpose and charge for the same PROVIDED that no such rights shall conflict with:
a)any enactment affecting navigation or safety over Taupō Waters;
b)any other provision of this Deed; and
c)the provisions of any Management Plan established by the Taupō-nui-a-Tia Management Board.
[29]The relevant exceptions to the Trust Board’s rights under cl 2.5.1 are set out in
cl 2.5.5: 2.5.5
Notwithstanding clause 2.5.1, the following persons shall not
be required to obtain any right of occupation or use from the Board: (a) persons on Taupō Waters pursuant to clause 2.2.1,
including non-commercial anglers and non-commercial boaters from whom the Crown may charge and collect fees; (b) the Crown in respect of existing structures listed in
Schedule 3; (c) the holders of berthing or launching permits issued by
the Harbourmaster, in respect of berths, wharves or ramps or other structures, details of which structures are set out in Schedule 3;8 (d) the owners of the existing private structures listed in
Schedule 5, in respect of such structures, provided they comply with clause 2.5.2; and (e) the holders of mooring permits issued by the
Harbourmaster, in respect of such moorings, details of which moorings are set out in Schedule 6.
8 For the avoidance of doubt holders of permits under this paragraph will require consent from the Board to operate any commercial business on Taupō Waters.
[30]The Trust Board says that notwithstanding the preservation of rights under
2.5.5 of the 2007 Deed, a right of occupation and use is clearly required from the Trust Board for any commercial activities on Taupō Waters beyond the specified berths, wharves, ramps, structures or moorings referred to there.
[31] The Trust Board points to cl 2.5.2, which sets out the basis upon which the Trust Board’s waiver of its right as owner to grant occupation and use rights for private structures will continue:
2.5.2 Notwithstanding clause 2.5.1, the Board waives its rights as owner to grant rights of occupation or use to the owners of existing private structures on or in Taupō Waters as identified in Schedule 5 and is not liable for any loss or damage caused by or arising from those structures. The Board’s waiver shall continue so long as:
…
(c)such structures are used solely for private non-commercial purposes.
[32] The Trust Board also points to cl 3.2 of the 2007 Deed, to support what it says is the clear intention in the 2007 Deed that the Trust Board has the power to require Commercial Users of Taupō Waters to obtain occupation and use rights:
3.2Nothing in this Deed is intended to exclude or limit:
3.2.1The exercise by the Crown of any statutory power to control or manage commercial fishing, provided that no person shall operate any commercial right on Taupō Waters without a licence from the Board; or
3.2.2Any of the provisions of section 14(2) of the Māori Land Amendment and Māori Land Claims Adjustment Act 1926.
[33] The Trust Board also points to cl 3.3 of the 2007 Deed, whereby the Trust Board acknowledges the Crown’s right to control and legislate in respect of water including its use and quality, public safety, public health, navigation and recreation.
[34] Clause 3.5 includes an acknowledgement by the Trust Board of the role of the Harbourmaster appointed by the Minister of Local Government, and that the 2007 Deed and the operations of the Management Board are subject to the Local Government Act 1974 and any other enactment regulating navigation and safety.
[35] Flowing from that, the Trust Board points to the Lake Taupō Navigation Safety Bylaw 2017 (2017 Bylaw), issued under ss 33M and 33W(4) of the Maritime Transport Act 1994. By way of example, the 2017 Bylaw prohibits placing or maintaining moorings on Lake Taupō without a permit from the Harbourmaster;9 places limits on restricted anchorages;10 reserves and places limits within areas for water skiing and towing;11 and reserves and places limits within areas for swimming.12 The Trust Board says that the Notes at the end of the 2017 Bylaw are significant:13
1. Any persons or entity wishing to undertake a commercial activity on Taupō Waters requires approval and a licence to operate from the Tūwharetoa Māori Trust Board. …
Declarations sought
Declarations sought by the Trust Board
[36] The Trust Board seeks declarations to clarify the nature and extent of its rights under the 2007 Deed, in particular, its rights to: grant rights of occupation or use, by way of Licences, in respect of commercial activities and certain private structures in or on Taupō Waters; and charge for such Licences.
[37]The Trust Board seeks the following declarations in respect of the 2007 Deed:
(a)A declaration that the Trust Board has the right under cl 2.5.1 of the 2007 Deed to:
(i)require the Commercial Users to obtain from the Trust Board rights to occupy or use parts of Taupō Waters for commercial activities; and
(ii)charge Commercial Users for the same.
(b)A declaration that in the absence of:
9 Lake Taupō Navigation Safety Bylaw 2017, r 2.4.
10 Rule 2.6.
11 Rules 3.1–3.4.
12 Rules 4.1–4.2.
13 At 24.
(i)an exemption under cl 2.5.5 of the 2007 Deed; or
(ii)an occupation or use right granted by the Trust Board under cl 2.5.1 of the 2007 Deed;
the Commercial Users have no lawful right to occupy or use any part of Taupō Waters for commercial activities.
(c)A declaration that Commercial Users who hold permits under cl 2.5.5(c) of the 2007 Deed are not exempt from obtaining an occupation or use right from the Trust Board under cl 2.5.1 of the 2007 Deed to undertake the commercial activities on Taupō Waters.
(d)A declaration that the provisions of the Reserves Act 1977 do not require the Trust Board to grant an occupation or use right for a term of 33 years or any other specific term.
(e)A declaration that the grant of a resource consent to a Commercial User in relation to a commercial activity on Taupō Waters does not exempt any such Commercial User from obtaining an occupation or use right from the Trust Board as the owner of Taupō Waters.
(f)A declaration that the Trust Board may grant occupation or use rights under cl 2.5.1 of the 2007 Deed notwithstanding the establishment, enforceability and/or validity of any management plan promulgated by the Taupō-nui-a-Tia Management Board.
(g)A declaration that the occupation or use of any part of Taupō Waters for commercial activities:
(i)does not constitute the exercise of any public right of navigation over Taupō Waters; and
(ii)is not incidental to the exercise of any public right of navigation over Taupō Waters.
Declarations sought by the Collective
[38] The Collective opposes the declarations sought. The Collective says that previously the Crown collected fees from Commercial Users of the lake on a cost recovery basis. Commercial Users were not consulted in regard to what is a radical change, whereby the Trust Board wishes to charge commercial fees.
[39] The Collective’s position is, first, that the Trust Board’s rights of use and entry over Lake Taupō are qualified by virtue of a likely common law right of public navigation. Second, the ordinary meaning of the 2007 Deed does not provide for the Trust Board to levy licence fees on Transitory Users, to pursue commercial activities on Taupō Waters. Third, it says that the Trust Board misapprehends the role of the Management Board. The Commercial Users of Taupō Waters who are the owners of fixed moorings (who the Collective accepts are not exempt from the requirement to obtain a licence from the Trust Board), should not be required to do so until the Management Board has prepared a management plan for Taupō Waters in accordance with cl 2.3 of the 2007 Deed.
[40]The Collective seeks alternative declarations, in the following terms:
(a)That the Trust Board may not, in respect of a holder of a berthing or landing permit issued by the Harbourmaster, require the payment of any fee for the occupation or use of Taupō Waters by that permit holder.
(b)That the Deed does not provide for the Trust Board to have the power to require payment for the issuance of a consent to operate a commercial business on Taupō Waters.
(c)That the phrase “recreational use activities that may exclude the general public’s use of parts of Taupō Waters” in the Deed includes activities of a recreational nature even where those activities are undertaken by a commercial operator for commercial gain.
(d)That the obligations on the Management Board to manage Taupō Waters as if a reserve for recreation purposes under s 17 of the Reserves
Act in partnership with the Crown, includes an obligation on that management board to prepare a management plan which provides for the management and regulation of both commercial and non- commercial recreational use.
(e)That, as the administering body, when preparing a management plan, the Taupō-nui-a-Tia Management Board is obliged to do so in accordance with the provisions of s 41 of the Reserves Act.
(f)That the Deed explicitly provides that Taupō Waters does not include the water, and accordingly any charge imposed by the Trust Board pursuant to cl 2.5.1 may only be calculated by reference to any actual infringement of the Trust Board’s bundle of ownership rights over the land referred to as Taupō Waters (as that land is defined in the 1992 Deed) that may be caused by any occupation or use, and not by reference to the use of the water itself.
Approach
Principles of interpretation
[41] The relevant principles of interpretation are broadly agreed by the parties. The Courts take an objective approach to contractual interpretation, which does not limit the background material available to interpret the contract. However the material must be reasonably relevant and objective.14 Once a provisional meaning has been derived from the language of the contract, a “cross-check” should be performed by reference to the context.15 The subjective intention of the parties is not determinative, however it is appropriate to have regard to:16
… evidence derived from the negotiations which shows objectively the meaning the parties intended their words to convey. Such evidence includes the circumstances in which the contract was entered into, and any objectively apparent consensus as to meaning operating between the parties.
14 Malthouse Ltd v Rangatira Ltd [2018] NZCA 621 at [19].
15 At [22].
16 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [27].
[42] The Trust Board also submits that if the Court finds that there is any ambiguity in the meaning or effect of the 2007 Deed, regard should be had to the historical context, purpose and intent of the 2007 Deed and the associated vesting of Taupō Waters in the Trust Board under the 1992 Deed. While neither the 2007 Deed or the 1992 Deed is a deed of settlement between the Crown and Ngāti Tūwharetoa in respect of historical treaty claims, and do not preclude or prejudice any such claims, cl 3.6 of the 2007 Deed records that:
… The agreements within this Deed may, however, be raised in any proceedings as evidence of how the Crown has sought to provide for settlement of issues relating to Taupō Waters (including the settlement of any historical or contemporary claims relating to the annuity payment under section 10 of the Māori Trust Boards Act 1955).
[43] The revesting of freehold title to Taupō Waters in the Trust Board was a significant element in addressing the long-standing grievances of Ngāti Tūwharetoa in relation to Lake Taupō and associated waterways. In the Trust Board’s submission, in those circumstances, where the fundamental intent is the restoration of title to Ngāti Tūwharetoa, in the absence of express words to the contrary, the 2007 Deed should be construed in a way that minimises the limitations that are placed on the Trust Board’s ability to exercise the full legal rights of a landowner, including the power to grant rights of occupation and use.
Jurisdiction under the Declaratory Judgments Act 1908
[44] Under the Act, the Court has jurisdiction to construe and determine the validity of a “statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument”.17 The Court’s jurisdiction under the Act is intended to provide a speedy and inexpensive method of obtaining judicial interpretation where the matter cannot conveniently be brought before the Court in its ordinary jurisdiction, and where a declaratory judgment would be appropriate relief.18 The jurisdiction to make orders under the Act is wholly discretionary.19 The discretion
17 Declaratory Judgments Act 1908, s 3.
18 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85.
19 Declaratory Judgments Act, s 10.
is broad and empowers the Court to refuse to give or make any judgment or order “on any grounds which it deems sufficient”.20
[45] Counsel assisting questioned the jurisdiction of the Court under the Declaratory Judgments Act in this particular proceeding, in two respects:
(a)the case involves mixed questions of law and fact, and the Collective says that a detailed factual inquiry is necessary to determine the pre-1926 status of the lake and the questions as to Ngāti Tūwharetoa tikanga raised by the Trust Board;21 and
(b)not all persons interested in and affected by the questions in issue are represented in the proceeding.
[46] In response to the second issue, the Trust Board notes the Collective was incorporated in 2017 to represent the interests of Commercial Users on Taupō Waters and expressly represents a wide range of those commercial operators. The declarations sought by the Trust Board arise from issues expressly raised in the course of its engagement with Commercial Users, including members of the Collective. The declarations sought do not seek to set the specific terms of licences between the Trust Board and individual Commercial Users. Further, the Trust Board served the proceedings on all known Commercial Users of Taupō Waters (licensed and unlicensed), and public notice of the proceedings was published in the Taupō Times on 10 and 14 November and 1 December 2017.
[47] The question of whether it is necessary for the Court to undertake a detailed factual inquiry is dealt with below.
[48] In these circumstances I am satisfied that it is appropriate for the Court to address the declarations sought by the Trust Board.
20 Section 10.
21 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd, above n 18, at 85;
Pouwhare v Kruger HC Wellington CIV-2009-485-976, 12 June 2009.
Jurisdiction of Māori Land Court under Te Ture Whenua Māori Act 1993
[49] Counsel assisting the Court notes that Taupō Waters has been vested in the Trust Board as Māori freehold land. Under Te Ture Whenua Māori Act, the Māori Land Court has jurisdiction to determine any claim, whether at law or in equity, to any “right, title, estate, or interest” in Māori freehold land.22 The terms of any declarations granted by this Court should therefore be reviewed to take into account the operation of Te Ture Whenua Māori Act, and it may be appropriate for any declarations granted to be made expressly subject to that Act.
[50] In the usual course, a claim concerning rights of occupation and usage of Taupō Waters would be heard by the Māori Land Court. However, Te Ture Whenua Māori Act expressly preserves the jurisdiction of the High Court under the Declaratory Judgments Act.23 As a result, this Court has jurisdiction to determine the application. Any applicable provisions of Te Ture Whenua Māori Act will continue to apply regardless of any declarations made by this Court. I agree with the Trust Board that no declaration, or additional qualification on any declaration, to this effect is necessary.
Relevance of Commerce Act 1986 to interpretation of the 2007 Deed
[51] The Collective suggests that there is evidence of actual and potential anti-competitive conduct by the Trust Board under the Commerce Act 1986 which, it says, is relevant in two respects. First, there is potential for exploitation by the Trust Board of its market power in the absence of any express controls in the Deed, which tends to support the Collective’s interpretation of the Deed (that is, that it does not provide for a right to charge Transitory Users licence fees for their activities on Taupō Waters). Second, the evidence of the Trust Board’s conduct is relevant to the exercise of the Court’s discretion under the Declaratory Judgments Act.
[52] In making that assertion, the Collective relies on the evidence of John Stephenson, economist and partner at Sense Partners Limited, an independent economic consultancy firm, who provides a “preliminary, high-level” assessment of
22 Te Ture Whenua Māori Act 1993, s 18(1)(a).
23 Section 349.
competition issues. Mr Stephenson refers to a risk of anti-competitive behaviour, but does not assert that there have been any breaches of s the Commerce Act. He also acknowledges that “a much more detailed assessment would be required” to determine whether there was any lessening of competition caused by uncertainty of the access regime for Commercial Users or the arrangements in the 2007 Deed, and if such an effect is material.
[53] The Trust Board acknowledges that it is aware of the requirements of the Commerce Act as they apply to the Trust Board and its activities. It notes also its other legal obligations, not only to its beneficiaries, but as the owner of Taupō Waters in terms of other statutory and regulatory frameworks. It says it has a responsibility, as landowner, to ensure that all Commercial Users of Taupō Waters are appropriately licensed.
[54] The Trust Board acknowledges that those Commercial Users who have entered into licences with the Trust Board are at a relative disadvantage to those Commercial Users, including members of the Collective, who have not yet entered into a licence and who are operating free of charge on Taupō Waters.
[55] I agree with the Trust Board and the Attorney-General that the possibility that, at some time in the future, a party may act in breach of the terms of the Commerce Act is not a matter that can affect this Court’s interpretation of the 2007 Deed, in terms of the nature and extent of the legal rights of the Trust Board as the owner of Taupō Waters. As counsel for the Attorney-General notes, the Trust Board has rights as the fee simple owner of Taupō Waters. If the Trust Board were to abuse its market power, the Commerce Act contains the means by which members of the Collective, or other parties, might address that conduct.
Issues
[56] The parties agreed on a statement of the issues which the Court must consider in order to determine whether or not to grant the declarations sought by the Trust Board, or the alternative declarations sought on behalf of the Collective. These issues relate to:
(a)first, the nature and extent of the Trust Board’s legal title;
(b)second, whether a common law right of public navigation exists in respect of Taupō Waters;
(c)third, the Crown’s power to license;
(d)fourth, whether an exemption for holders of berthing and launching permits exists;
(e)fifth, recreational use activities that exclude the general public; and
(f)sixth, the role of the Management Board, the management plan, and the Reserves Act.
Issue one: the nature and extent of the Trust Board’s legal title
[57] The first question posed by the parties is: does the Trust Board’s ownership of Taupō Waters exclude the space occupied by water (water column)?
[58] It appears this issue relates primarily to the following declaration sought by the Collective:
(f)That the Deed explicitly provides that Taupō Waters does not include the water, and accordingly any charge imposed by the Trust Board pursuant to cl 2.5.1 may only be calculated by reference to any actual infringement of the Trust Board’s bundle of ownership rights over the land referred to as Taupō Waters (as that land is defined in the 1992 Deed) that may be caused by any occupation or use, and not by reference to the use of the water itself.
[59] By the time of the hearing this issue was no longer advanced on behalf of the Collective. For completeness, I confirm I therefore decline to make the declaration sought by the Collective at (f).
Issue two: whether a common law right of public navigation exists in respect of Taupō Waters
[60] The second question is: does a common law right of public navigation exist in respect of Taupō Waters?
[61] The Collective says that, notwithstanding the 2007 Deed, a common law right of public navigation applies to Taupō Waters and, as a consequence, the Trust Board cannot charge those operators whose business is conducted on the lake for the exercise of a public right of this kind.
[62] Both the Trust Board and the Attorney-General dispute the existence of a public right of navigation over Lake Taupō.
[63] The arguments raised under this issue relate most closely to the following declarations sought by the Trust Board:
(e)A declaration that the grant of a resource consent to a Commercial User in relation to a commercial activity on Taupō Waters does not exempt any such Commercial User from obtaining an occupation or use right from the Trust Board as the owner of Taupō Waters.
(g)A declaration that the occupation or use of any part of Taupō Waters for commercial activities:
(i)does not constitute the exercise of any public right of navigation over Taupō Waters; and
(ii)is not incidental to the exercise of any public right of navigation over Taupō Waters.
[64] Given the interpretation of the 2007 Deed required to address the arguments raised under this issue, I also consider the more general declarations sought by the Trust Board:
(a)A declaration that the Trust Board has the right under cl 2.5.1 of the 2007 Deed to:
(i)require the Commercial Users to obtain from the Trust Board rights to occupy or use parts of Taupō Waters for commercial activities; and
(ii)charge Commercial Users for the same.
(b)A declaration that in the absence of:
an exemption under cl 2.5.5 of the 2007 Deed; or
(ii)an occupation or use right granted by the Trust Board under cl 2.5.1 of the 2007 Deed;
the Commercial Users have no lawful right to occupy or use any part of Taupō Waters for commercial activities.
And the more general declaration sought by the Collective:
(b)That the Deed does not provide for the Trust Board to have the power to require payment for the issuance of a consent to operate a commercial business on Taupō Waters.
Submissions
The Collective
[66] Counsel assisting submits that a common law right of public navigation can be established in respect of non-tidal waters, such as Lake Taupō, in particular where there has been a long public use for a given purpose.24 Counsel submits the scope of such a right is broad, and can include, for example, recreational activities such as running courses in canoeing.25
[67] The Collective points to a number of factors which, it says, indicate a “reasonable prospect” that the lake has been subject to a common law right of public navigation since before the 1926 Agreement. The factors relied on by counsel assisting are:
(a)With reference to Tamihana Korokai v Solicitor-General, Lake Rotorua was used for many years “as a public highway for purposes of navigation”;26 counsel submits that it seems unlikely that the position was different for Lake Taupō, given its size and location.
24 Paki v Attorney General [2012] NZSC 50, [2012] 3 NZLR 277 at [16] and [159]; Marshall v Ulleswater Steam Navigation Co (1871) LR7QB 166 at 172; Tamihana Korokai v Solicitor- General (1912) 32 NZLR 321.
25 Wills’ Trustees v Cairngorm Canoeing and Sailing School Ltd (1976) SC 30 (HL) at 145, 153 and 169.
26 Tamihana Korokai v Solicitor-General, above n 24, at 324.
(b)The 1992 Deed characterised Lake Taupō as a harbour for the purposes of the Harbours Act 1950 (since repealed).
(c)The 1992 Deed recognised that:
1.4. Public access to Lake Taupō for recreational use and enjoyment of its waters has always been acceptable to Ngāti Tūwharetoa and is in accordance with Ngāti Tūwharetoa custom.
(d)Recreational activities on Taupō Waters have long had the status of “permitted activities” under the Resource Management Act 1991 (the RMA).
[68] The Collective says there has been no statutory extinguishment of such a right, and continuing public use of the lake following its vesting in the Crown in 1926 could support the existence of the common law right contended for. Counsel assisting conceded that if the Court were to find there was no common law right of public navigation before 1926, it is unlikely that a right arose by use during the period of Crown regulation of Taupō Waters.
[69] The Collective says the Trust Board has not negated the possibility that Lake Taupō is subject to a common law right of public navigation, and to do so the Trust Board would need to bring evidence of historical and current use of the area to determine the question. Counsel submits that is not appropriate in a Declaratory Judgments Act proceeding, and the Court is not in possession of sufficient information to determine the existence or extent of such a common law right.
The Attorney-General
[70] Relying on Professor Brookfield’s commentary in Laws of New Zealand, the Attorney-General submits that, unlike a tidal water way, there is no general common law right of public navigation in non-tidal rivers or inland lakes; a navigable, non-tidal river or a navigable lake may become a highway for the purposes of navigation if there has been an express or implied dedication by the owner of the bed (the dedication
principle), or where, together with statutory or other recognition, the bed is vested in the Crown by a long period of public use for that purpose.27
[71] The Attorney-General observes that, although the principles summarised by Professor Brookfield are expressed as extending to lakes, the actual case law applying to lakes is sparse, more commonly applying or discussing the principle in the context of rivers. Establishing common law public rights in rivers or lakes by evidence of usage or dedication may involve detailed tracing of historical land titles and “intricate analysis” of local history.28 The Attorney-General notes that, generally, the approach in New Zealand has been to address the public use of lakes through legislation, thus avoiding the need to analogise with highways or to identify dedications or past grants
– the extent of any rights is to be found statute.
[72] Here, the Attorney-General points to relevant statutory provisions and agreements between the Crown and Ngāti Tūwharetoa. First, the 1926 Agreement between the Crown and Ngāti Tūwharetoa provided for the vesting of the beds of all Taupō Waters in the Crown as a Public Reserve. Clause 10 of the 1926 Agreement said the Minister of Internal Affairs would be empowered “to license at a fee to be prescribed by regulations all boats or launches plying for hire on Taupō Waters.”
[73] The Attorney-General notes the 1926 Act, which vested the bed of Taupō Waters in the Crown, contained no dedication for a highway for public navigation. The Crown included a proviso in s 14 reserving certain access for Ngāti Tūwharetoa and reserved the right to set aside part of the lakebed for their use, and authorised the making of regulations for the licensing of boats and vessels plying for hire over or upon Taupō Waters.
[74] Further, the Attorney-General says both the 1992 Deed and the 2007 Deed proceed on the basis that there has been no dedication of Lake Taupō as a highway. Clause 2.6.1 of the 1992 Deed, cl 2.5.1 of the 2007 Deed (which authorises the Trust Board to grant “rights of occupation or use of parts of Taupō Waters for any
27 F M Brookfield Laws of New Zealand Water (online ed) at [256]; Mueller v Taupiri Coalmines Ltd (1900) 20 NZLR 89 at 98, 112 and 113.
28 Paki v Attorney General, above n 24, at [160].
purpose and charge for the same”), and cl 3.2.1 of the 2007 Deed (which says “no person shall operate any commercial right on Taupō Waters without a licence from the Board”), are inconsistent with a dedication of Taupō Waters.
[75] In response to the Collective’s analogy with Lake Rotorua, the Attorney-General highlights the statement of facts in Tamihana Korokai:29
22. The lake has for many years been used by the public in common with the Natives as a public fishery and place of public recreation, and the Crown has for many years regulated the licensing of launches and vessels plying for hire on the lake, and has received fees and payments for such licenses. …
23. The lake has for many years been used by the public openly and without objection by the Crown or the Natives as a public highway for purposes of navigation, and as a place of public recreation and fishing, but it
is admitted that the mere fact that Natives acquiesce in Europeans using their
properties for purposes of sport or pleasure is not evidence of a cession or
surrender of their rights to the same degree as in the case of a like acquiescence
by Europeans.
(emphasis added)
[76] The Attorney-General says that, even if Ngāti Tūwharetoa has acquiesced in the use of Taupō Waters by members of the public, this should not be interpreted as indicating any diminution of Ngāti Tūwharetoa’s rights as owner.
[77] Finally, the Attorney-General says even if the public had acquired the right to navigate over either Lake Rotorua or Lake Taupō, the Crown’s practice of charging fees to commercial vessels on both lakes means that any right to navigate does not mean the right to do so free of charge.
The Trust Board
[78] The Trust Board says that, contrary to the assertion of the Collective, there is in fact clear evidence that the commercial navigational use of Taupō Waters was not free and unfettered, but rather licensed, controlled and regulated by the Crown.
[79] The Trust Board says that the legal and evidential onus rests on the Collective to show that a common law right of public navigation exists – it is insufficient to “aver”
29 Tamihana Korokai v Solicitor-General, above n 24, at 324.
to factors that, in counsel to assist’s words, “tend to indicate there is a reasonable prospect” that such a right exists. The Trust Board says that it is not credible to suggest that there is an extant common law right of public navigation over Taupō Waters that would avail commercial operators. In response to the four specific points advanced for the Collective,30 the Trust Board says:
(a)No inference can be drawn from the situation in relation to Lake Rotorua: Lake Taupō and Lake Rotorua are within the customary domain of different iwi (Ngāti Tūwharetoa and Te Arawa, respectively). Further, Tamihana Korokai recognises that the acquiescence of Māori to the use of Lake Rotorua for purposes of sport or pleasure is not evidence of a cession or surrender of Māori rights to the same degree as in the case of like acquiescence by Europeans.31
(b)The treatment of Lake Taupō as a harbour for the purposes of the Harbours Act was consistent with the Crown’s exercise of control over navigational authority, not existence of a right of free commercial navigation.32
(c)The reference at cl 1.4 of the 1992 Deed to an “acceptance” by Ngāti Tūwharetoa of the public recreational use of Taupō Waters “in accordance with Ngāti Tūwharetoa custom [tikanga]” indicates an affirmative exercise of customary authority, not an abdication or absence of such authority.
(d)The classification of surface water activities as permitted activities under the RMA means only that such activities do not require a resource consent from the relevant local authority. It does not affect the need to obtain landowner approval to carry out such an activity where the land
30 See above at [67].
31 Tamihana Korokai v Solicitor-General, above n 24, at 324.
32 See also Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA) at [60], [154] and [210], where the Court of Appeal held that the Harbours Act 1950 and its predecessors did not operate to extinguish any Māori customary title.
in question is privately owned, nor does it constitute an exemption from any other legal requirements applicable to such activities.
[80] To the extent that there may have been a common law right of public navigation in favour of the public prior to 1926 that extended to commercial use (which is not accepted by the Trust Board or the Attorney-General), the Trust Board submits any such right was plainly extinguished or overridden by: the statutory declaration in s 14 of the 1926 Act that the beds of Taupō Waters “together with the right to use the respective waters” are the property of the Crown; and the Crown’s subsequent licensing of the operation of commercial vessels on Taupō Waters. The Trust Board submits continuous Crown regulation, through statutory provisions and regulations, is incompatible with the existence of a common law right of public navigation that would enable navigation or use of the waters without authority and/or charge.
[81] The Trust Board says that given the Crown had a statutory power to require a licence or equivalent authorisation for commercial activities (under each of the 1926 Act and related regulations, or, if Taupō Waters had been given the status of a public reserve, under the Land Act 1948, or the Conservation Act 1987, or the Reserves Act), any commercial activity could not have been the subject of an unfettered common law right of public navigation; in contrast, such commercial use was licensed and regulated by the Crown. The Trust Board says the power to license and charge for commercial use now sought to be exercised by the Trust Board as the fee simple owner of Taupō Waters is directly analogous to the power that the Crown had in respect of commercial activities upon Taupō Waters.
[82] The Trust Board also points to other examples of what the Crown says is the general approach in New Zealand, to recognise any rights of navigation and/or commercial activities in lakes. As the Trust Board notes, in each case any such rights have been by express provision or prescription, not implication.33 The Trust Board submits the existence and range of such statutory provisions strongly reflects the
33 See the Ngāi Tahu Claims Settlement Act 1998; the Te Arawa Lakes Settlement Act 2006; the Ngāti Rangi Claims Settlement Act 2019; and the Te Awa Tupua (Whanganui River Claims Settlement Act) 2017.
absence of any assumption or presumption of a pre-existing right (at common law or otherwise) in respect of the navigation of lakes in New Zealand.
[83] The Trust Board highlights there was no such prescription or dedication in relation to commercial navigation of Taupō Waters in the 1926 Act. To the contrary, as already noted, the right to use was declared as part of the property of the Crown, there was an express power to regulate, and regulations were then made. The ability to engage in commercial navigation, subject to paying any charges or fees to the Crown for such activity, does not reflect a public right of navigation at common law.
[84] In terms of the revesting of Taupō Waters in the Trust Board in the 2007 Deed, the Trust Board notes the only dedication of public use is that of non-commercial recreational use by the public free of charge, expressed in cl 2.2.1. There is no right of access for commercial navigation or other commercial purposes protected by the 2007 Deed. To the contrary, the 2007 Deed proceeds on the basis that the Trust Board can license and charge fees for commercial activities and private structures, except where an express exemption is provided in the Deed.
[85] The Trust Board notes there are also express constraints on that limited public right arising from the specific terms of the 2007 Deed, which are inconsistent with any assumed wider public right of navigation, such as:
(a)the ability for areas of Taupō Waters to be excluded from public use through the terms of the management plan;
(b)the ability of the Management Board to make rules regulating commercial use; and
(c)while the Trust Board has agreed under the 2007 Deed that persons using Taupō Waters for non-exclusive, non-commercial recreational use and enjoyment are not required to obtain a right of occupation or use from the Trust Board, cl 2.5.5(a) provides the Crown may nonetheless charge and collect fees from some such persons.
[86] The Trust Board also submits that the dedication principle is displaced by tikanga rights and interests that are recognisable under the common law. The Trust Board does not cite specific authority for this proposition, but rather relies on a body of more general case law to support the propositions that:34 rights and interests sourced in tikanga can be recognised as legal rights by the common law; and more generally, tikanga can modify the general common law. The Trust Board also notes the Tribunal Report concluded that Lake Taupō and its freshwater fisheries were taonga, exclusively possessed by Ngāti Tūwharetoa and over which they exercised control and authority as at 1840.35 The Trust Board submits that the “customary law, practices and tikanga of Māori and, in this case, Ngāti Tūwharetoa in respect of Taupō Waters, have not been extinguished.” The Attorney-General does not support this submission.
Analysis
[87] As already noted, the public’s general freedom of entry to and access of Taupō Waters for non-exclusive, non-commercial recreational use is not in dispute. But that is distinct from the asserted right of commercial use, free of authorisation and charge. I agree with the Attorney-General and the Trust Board that there is no evidence a common law right of public navigation existed pre-1926. I also agree that, had such a right existed, it is highly likely it has since been extinguished.
[88] The 1926 Agreement provided that the beds of all Taupō Waters shall be vested in the King as a Public Reserve.36 The 1926 Agreement also said the Minister of Internal Affairs would be empowered “to license at a fee to be prescribed by regulations all boats or launches plying for hire on Taupō Waters”.37
[89] The 1926 Act gave effect to the 1926 Agreement, and s 14(1) declared the bed of Lake Taupō and the bed of the Waikato River extending from Lake Taupō to and inclusive of the Huka Falls, to be the property of the Crown, “freed and discharged from the Māori customary title (if any) or any other Māori freehold title thereto”. The 1926 Act included a proviso reserving certain access for Ngāti Tūwharetoa, and
34 For example, Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; and Ngāti Whatua o Orakei v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.
35 Waitangi Tribunal, above n 6, vol 4 at 1286.
36 1926 Agreement, cl 4.
37 1926 Agreement, cl 10.
reserved the right to set aside parts of the lakebed for their use. The 1926 Act contained no dedication for a highway for public navigation of the lake, and s 14(9)(d) authorised the making of regulations for the licensing of “boats and vessels plying for hire over or upon” Taupō Waters.
[90] The Taupō Harbour Regulations 1926, promulgated under s 14 of the 1926 Act, required, among other things: a licence from the Department of Internal Affairs for vessels to ply for hire, carry passengers or cargo, or be employed as ferry-boats or tug-boats; and for an annual fee for such licences to be paid to the Department of Internal Affairs.
[91] The Crown points to two further legislative provisions that pose an insuperable difficulty for any argument that there was a grant of a right of way or dedication against the Crown after 1926. The Land Act 1948 provided, at s 172:
(1)No dedication or grant of a right of way shall, by reason only of user, be presumed or allowed to be asserted or established as against the Crown, or as against any person or body holding lands for any public work or in trust for any public purpose or as against any State enterprise referred to in Schedule 2 of the State-Owned Enterprises Act 1986, or as against a mixed ownership model company within the meaning of section 45P of the Public Finance Act 1989, whether such user commenced before or after the coming into force of this Act.
[92]This was in similar terms to the earlier provision in s 13 of the Land Act 1924:
No dedication or grant of a right of way shall, by reason only of user, be presumed or allowed to be asserted or established as against the Crown, or as against any person or body holding lands in trust for any public purpose, whether such user commenced before or after the coming into operation of this Act.
[93] Taupō Waters were actively regulated and managed by the Crown during the period from 1926 to 1992. Continuous Crown regulation of Lake Taupō is incompatible with the existence of a common law right of public navigation that would allow commercial navigation, without authorisation.
[94] Although the 1992 and 2007 Deeds themselves could not have extinguished a common law right, had one existed, nonetheless they appear to be drafted based on the presumption a common law right did not exist.
[95] Even if a common law right of public navigation did exist, the right to navigation is not necessarily a right to navigate for all purposes and without charge when deriving an economic benefit from the activity.
[165] It is less clear whether the Reserves Act provisions require the Management Board to invite, by public notice, written suggestions on a proposed plan before preparing the management plan, and to then give public notice calling for submissions on a draft management plan and to provide an opportunity for submitters to be heard. However, that is not an issue I must decide. The Management Board determined and issued an initial management plan in 2011. The legal status of that management plan
52 2007 Deed, cl 2.5.1(c).
53 2007 Deed, cl 2.3.1.
is not a matter for determination in this proceeding. There is no current judicial review proceeding challenging the status or effect of the 2011 management plan.
[166] I note the Management Board commenced the process for the preparation of a new management plan in October 2018, by public notice calling for initial feedback on key questions relating to the development of a plan. As at the date of the hearing of this proceeding, a new management plan has yet to be determined.
Conclusion
[167] While it is correct that the 2007 Deed requires the Management Board to prepare a management plan for Taupō Waters, I do not accept the Collective’s argument that it is required to do so in accordance with all of the provisions of s 41 of the Reserves Act, where to do so would be inconsistent with the 2007 Deed. I conclude there is nothing before me about the Management Board or the management plan to prevent the declaration sought by the Trust Board.
[168] I also conclude that the Management Board is not required to prepare a management plan that includes conditions and/or restrictions for the management and regulation of the commercial use of Taupō Waters. To do so would be inconsistent with the provisions of the 2007 Deed.
[169] I am therefore satisfied that I am able to make the declarations sought by the Trust Board at (d) and (f), and I decline to make the declarations sought by the Collective at (d) and (e).
Issue five: recreational use activities that exclude the general public
[170] The fifth question posed by the parties is: what is the meaning and effect of cl 2.3.4(d)(ii) of the 2007 Deed? For ease of reference, I repeat cl 2.3.4(d)(ii):
2.3.4 The functions of the Taupō-nui-a-Tia Management Board are to:
…
(d)consider and decide applications in accordance with the Management Plan for use of Taupō Waters for:
…
(ii)recreational use activities that may exclude the general public’s use of parts of Taupō Waters;
[171]This issue relates to the following declaration sought by the Collective:
(c) That the phrase “recreational use activities that may exclude the general public’s use of parts of Taupō Waters” in the Deed includes activities of a recreational nature even where those activities are undertaken by a commercial operator for commercial gain.
Submissions
The Collective
[172] The Collective says that cl 2.3.4(d)(ii) means that it is the Management Board, and not the Trust Board, that must consider and decide applications in accordance with the management plan for any recreational use of Taupō Waters that may exclude the public’s use. The Collective says this requirement extends to Commercial Users who own and operate structures that occupy parts of Taupō Waters. That kind of occupation excludes public access to the relevant areas.
The Trust Board
[173] The Trust Board says that the approval of the Management Board is only required for “recreational use activities” that exclude the public from parts of Taupō Waters, but says that role is distinct from the requirement for approval from the Trust Board, as owner of Taupō Waters. On that basis, even if the words “recreational use activities” in cl 2.3.4(d)(ii) include recreational activities undertaken by a commercial operator, for commercial gain, the commercial operator must also obtain an occupation or use right from the Trust Board for any such commercial recreational use, and the Trust Board is entitled to charge for the right.
[174] The Trust Board acknowledges that any occupation or use right granted by it under cl 2.5.1 must be consistent with the management plan determined by the Management Board.
[175] The Trust Board says cl 2.3.4(d)(ii) is in effect a corollary to the qualifications on the right of the public, under cl 2.2.1, to use Taupō Waters for non-exclusive, non-commercial recreational use. Clause 2.2.2 provides that such public access shall be subject to, amongst other things:
(a)such conditions and restrictions as the Taupō-nui-a-Tia Management Board considers to be necessary for the protection and well-being of Taupō Waters and for the protection and control of the public using them;
…
(c) any right of exclusive use and enjoyment of any part of Taupō Waters.
[176] The Trust Board refers, by analogy, to the provisions of the RMA. It says that activities on Taupō Waters may be viewed in terms of the need for “local authority” (here, Management Board) approval, separately from any occupation or use right required from the landowner (here, the Trust Board).
The Attorney-General
[177] The Attorney-General again submits the Collective’s arguments are inconsistent with both the 2007 Deed and the Reserves Act.
Analysis
[178] The Collective’s arguments misinterpret cl 2.3.4(d)(ii) and conflate the roles and obligations of the Trust Board and the Management Board,54 and again misapprehend the extent to which the Reserves Act governs the Management Board’s activities.
[179] The management functions that rest with the Management Board are plainly different in kind from the Trust Board’s ownership functions, and cl 2.3 must be read in that context. The Management Board does have a role in considering and determining applications for those uses of Taupō Waters set out in cl 2.3.4(d) of the 2007 Deed. But I agree with the Trust Board that the Management Board’s role in this
54 As set out above at [156]-[162].
regard is distinct from, and in addition to, the approval required from the Trust Board as owner of Taupō Waters, where such approval from the owner is required.
[180] To read cl 2.3.4(d)(ii) as including the Commercial Users’ commercial “recreational use activities” would be inconsistent with the 2007 Deed, read as a whole, and specifically with:
(a)cl 2.2.1, which states that the public’s right to access Taupō Waters, free of charge, is for non-exclusive, non-commercial recreational use and enjoyment and non-commercial research; and
(b)cl 2.5.1, which sets out the Trust Board’s right as owner of Taupō Waters to grant occupation or use rights for any purpose and to charge for these (subject to the specified exceptions).
[181] As I have already noted, the recognition of the Trust Board’s right as owner, at cl 2.5.1, would be meaningless if in fact it were the Management Board that was required to decide such matters.
[182] Clause 2.3.4(d)(ii) is, in my view, concerned with temporary closures for specific purposes. As counsel for the Attorney-General notes, the reference in cl 2.3.4(d)(ii) to “recreational use activities that may exclude the general public’s use of parts of Taupō Waters” is analogous to s 53(1)(d) and (e) of the Reserves Act, under which an administering body may set aside all or part of a recreation reserve for particular purposes and grant the exclusive use of that part for particular games, sports, or other activities, or for public recreation or enjoyment. The current management plan interprets cl 2.3.4(d)(ii) in this way, where it explains that the Management Board must provide a process for considering applications for temporary closures.
[183] That interpretation is also consistent with the purpose of “recreation reserves” under s 17 of the Reserves Act, which are:
… for the purpose of providing areas for the recreation and sporting activities and the physical welfare and enjoyment of the public, and for the protection of the natural environment and beauty of the countryside, with emphasis on
the retention of open spaces and on outdoor recreational activities, including recreational tracks in the countryside.
Conclusion
[184] I conclude that the phrase in cl 2.3.4(d)(ii) of the 2007 Deed, “recreational use activities that may exclude the general public’s use of parts of Taupō Waters”, does not include recreational activities that are undertaken by a commercial operator for commercial gain. It is the Trust Board, and not the Management Board, that has the power and responsibility to approve (and charge for) all commercial activities on Taupō Waters, including commercial recreational activities.
[185]I therefore decline to make the declaration sought by the Collective at (c).
Orders
[186]Accordingly, I make declarations in the following terms:
(a)A declaration that the Trust Board has the right under cl 2.5.1 of the 2007 Deed to:
(i)require the Commercial Users to obtain from the Trust Board rights to occupy or use parts of Taupō Waters for commercial activities; and
(ii)charge Commercial Users for the same.
(b)A declaration that in the absence of:
(i)an exemption under cl 2.5.5 of the 2007 Deed; or
(ii)an occupation or use right granted by the Trust Board under cl 2.5.1 of the 2007 Deed;
the Commercial Users have no lawful right to occupy or use any part of Taupō Waters for commercial activities.
(c)A declaration that Commercial Users who hold permits under cl 2.5.5(c) of the 2007 Deed are not exempt from obtaining an occupation or use right from the Trust Board under cl 2.5.1 of the 2007 Deed to undertake the commercial activities on Taupō Waters.
(d)A declaration that the provisions of the Reserves Act 1977 do not require the trust Board to grant an occupation or use right for a term of 33 years or any other specific term.
(e)A declaration that the grant of a resource consent to a Commercial User in relation to a commercial activity on Taupō Waters does not exempt any such Commercial User from obtaining an occupation or use right from the Trust Board as the owner of Taupō Waters.
(f)A declaration that the Trust Board may grant occupation or use rights under cl 2.5.1 of the 2007 Deed notwithstanding the establishment, enforceability and/or validity of any management plan promulgated by the Taupō-nui-a-Tia Management Board.
[187] The declarations sought by the Collective are inconsistent with the findings that are set out above.
Costs
[188] Counsel assisting was appointed to act as contradictor, to assist the Court. Generally, no question of costs would therefore arise in respect of the Collective. If the Trust Board has a different view, it should file a memorandum accordingly, within 14 working days of the date of this judgment.
Gwyn J
Appendix A
Members of the Taupō Waters Collective Limited
[189] On or about 30 March 2017, the Trust Board was notified that the Collective represented the following Commercial Users:
(a)Chris Jolly Outdoors;
(b)Fish Her Charters;
(c)Fish Taupō Limited;
(d)K2 Charters;
(e)Kiwi Charters Taupō;
(f)Lake Fun Taupō;
(g)Lake Taupō Charters Limited;
(h)Sail Fearless;
(i)Taupō Boating and Fishing Charters;
(j)Taupō Hole in One;
(k)Taupō Lake Adventures;
(l)Troutline of NZ Limited;
(m)White Striker Charters;
(n)Fly Fish Taupō;
(o)Taupō Kayaking Adventures;
(p)Tongariro River Rafting Limited;
(q)Ernest Kemp Cruises;
(r)Taupō Bungy NZ (Taupō Tourism Holdings Limited); and
(s)Taupō Floatplane.
[190] On 19 October 2017, Mr Andrew Cameron, legal counsel for the Collective, notified the solicitors for the Trust Board that he was authorised to accept service of the Trust Board’s proceedings on behalf of the following Commercial Users:
(a)Chris Jolly Outdoors;
(b)Fish Her;
(c)Fish Taupō;
(d)Pinnacle Charters (previously K2 Charters);
(e)Kiwi Charters;
(f)Taupō Troutcatcher Limited (Lake Fun Taupō);
(g)Lake Taupō Charters – Sail Barbary;
(h)Sail Fearless;
(i)Taupō Boating and Fishing Charters (Solomaar);
(j)Hole in One Limited;
(k)Taupō Lake Adventures Limited;
(l)White Striker Charter;
(m) Taupō Kayaking Adventures; (n)
Tongariro River Rafting;
(o)
Ernest Kemp Cruises (previous Simon Dickie Adventures);
(p)
Taupō Bungy;
(q)
Taupō’s Floatplane;
(r)
Big Sky Parasail Limited;
(s)
Huka Cruise;
(t)
Canoe and Kayak Taupō;
(u)
Soremi;
(v)
Waimarie;
(w)
Whiskery Mikes Turangi; and
(x)
Fish on a Fly.
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