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Maori Land Court of New Zealand |
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Maori Land Court of New ZealandLast Updated: 23 March 2010
IN THE MAORI LAND COURT
OF NEW ZEALAND WAIARIKI DISTRICT
128 WHAKATANE MB 54
A20080006263
UNDER Sections 18(1)(h) and 131, Te Ture
Whenua Māori Act 1993
IN THE MATTER OF Te Tawa Kaiti Lands Trust (Ruatoki B23, Ruatoki B32, Ruatoki 33B2C2, Ruatoki B79 and Ruatoki B35B2 Aggregated Blocks)
BETWEEN TE TAWA KAITI LANDS TRUST Applicant
AND TUHOE PUTAIAO TRUST Respondent
AND ATTORNEY-GENERAL Interested Party
Hearing: 2 December 2009 at 349 Rotorua MB 14 (Heard at Rotorua)
Appearances: Mr P Marshall and Mr M Hojabri for the applicant
Mr F Wood for the respondent
Judgment: 21 December 2009
RESERVED JUDGMENT OF JUDGE C T COXHEAD
Introduction
[1] The Te Tawa Kaiti Lands Trust (―the Applicant‖) has applied for orders determining the status and ownership of lands, extending from the Applicant‘s lands
at Ruatoki to the middle of the riverbed of the Whakatane River.
[2] At the core of the application is a dispute between the Applicant and the
Tuhoe Putaiao Trust (―the Respondent‖) over the Respondent‘s extraction of gravel
TE TAWA KAITI V TUHOE PUTAIAO MLC A20080006263 21 December 2009
from a beach area near the river. The Applicant says it owns the beach area, relying
on the ad medium filum aquae principle.
[3] The Respondent has resource consent to extract the gravel from the beach area and says the ad medium filum aquae principle does not apply to this area.
[4] Both parties agree that the land adjacent to the river (including the riverbed)
is Māori freehold land.
[5] On 16 November 2009 I convened a section 67 teleconference, where both parties indicated they were ready to proceed to a hearing on the specific issue of the whether the ad medium filum aquae applied to determine ownership of the riverbed
in this case.
Brief History of Ruatoki blocks
[6] I have taken the following summary from the Court record and the report of
Brent Parker, Senior Historical Researcher for the Crown.
[7] The Applicant‘s lands (Ruatoki B23, Ruatoki B32, Ruatoki 33B2C2, Ruatoki B79 and Ruatoki B35B2) are situated on the western banks of the Whakatane River. All five Ruatoki blocks used to form part of a larger block known as Ruatoki No.1.
[8] The Native Land Court first investigated title to land at Ruatoki in December
1893. In September 1894, the land was partitioned into four blocks, Ruatoki No.1 to No.4. The Native Land Court relied on a sketch plan of the blocks now known as ML 6458. This plan shows Ruatoki No.1 comprising land on both sides of the Whakatane River (apart from a small portion of land that bordered the eastern side of the River, at the southern end of Ruatoki No.1).
[9] In 1896 the Urewera Commission was established to investigate title to Maori land within the Urewera District Native Reserve. This Reserve included Ruatoki No.1 within its boundaries. The establishment of the Urewera Commission
effectively suspended the jurisdiction of the Native Land Court in Ruatoki.
[10] In 1900 the Urewera District Native Reserve Act Amendment Act 1900
declared all Native Land Court decisions concerning the Ruatoki blocks to be void.
[11] In April 1902 the Urewera Commission began new investigations into the ownership of the Ruatoki blocks. Later that year, the Urewera Commission made orders awarding title to Ruatoki No.1 to No.3. These title orders did not alter the boundaries established by the Native Land Court in 1894 (under ML 6458).
[12] In 1907, several appeals were heard against the Urewera Commission‘s orders concerning the Ruatoki blocks. However the boundaries of Ruatoki No.1 remained unchanged.
[13] Under s 3 of the Urewera District Native Reserve Act Amendment Act 1909, the orders made by the Urewera Commissioners in respect of Ruatoki No.1 were retrospectively deemed to have the same effect as a freehold order made by the Native Land Court. Under s 9 of the same Act, such freehold orders were deemed to have the same effect as a Crown grant.
[14] From 1912 onwards, Ruatoki No.1 was partitioned in several stages into smaller blocks on either side of the Whakatane River.
[15] On 7 June 1989 19 Ruatoki blocks, including the five subject blocks of this application, were aggregated and vested in the Applicant.[1]
General law concerning ownership of riverbeds
Ad medium filum aquae
[16] The present case turns on whether the common law rule of ad medium filum aquae applies to determine ownership of the riverbed adjacent to the Applicant‘s
lands. This rule states that where land is bounded by a non-tidal river or stream
(whether navigable or not), there is a rebuttable presumption that the owner of the land owns the bed of the river to the middle line of the stream.[2]
[17] Where the ad medium filum rule applies, the presumption can be rebutted by evidence in the history of the title, such as the terms of the land grant, or by circumstances in the history of the title: In re the Bed of the Wanganui River [1962] NZLR 600, 609. Importantly, it is the exclusion of the riverbed and not its inclusion that must be evidenced by the terms of the land grant.
Tidal vs Non-Tidal
[18] The ad medium filum rule only applies to non-tidal rivers. Under the English common law, tidal rivers were regarded as an extension of the sea and navigable in law to the highest tidal point. The riverbeds of tidal rivers were deemed to belong to the Crown and the presumption of ad medium filum did not apply for the benefit of owners of land adjacent to the river.
Navigable rivers
[19] Since 1903, the general position regarding navigable rivers in New Zealand is that the Crown owns the riverbed and therefore the ad medium filum rule does not apply to navigable rivers.
[20] On 23 November 1903, the Coal-mines Act Amendment Act 1903 (CMAA
1903) came into force. Section 14 of CMAA 1903 stated:
―14. Bed of river deemed vested in Crown
(1) Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to have always been vested in the Crown, and, without limiting in any way the rights of the Crown thereto, all minerals, including coal, within such bed shall be the absolute property of the Crown.
(2) For the purpose of this section –
―Bed‖ means the space of land which the waters of the river cover at
its fullest flow without overflowing its banks:
―Navigable river means a river continuously or periodically of sufficient width and depth to be susceptible of actual or future beneficial use to the residents, actual or future, on its banks, or to the public for the purpose of navigation by boats, barges, punts, or rafts; but nothing herein shall prejudice or affect the rights of riparian owners in respect of the bed of non-navigable rivers.‖
[21] Section 14 was later repealed but its effect was carried on through the various successors to CMAA 1903 with only minor amendments.[3] Today its effect is preserved by s 354(1)(c) of the Resource Management Act, which states:
―354 Crown's existing rights to resources to continue
(1) Without limiting the Acts Interpretation Act 1924 but subject to subsection (2), it is hereby declared that the repeal by this Act or the Crown Minerals Act 1991 of any enactment, including in particular—
(a) section 3 of the Geothermal Energy Act 1953; and
(b) section 21 of the Water and Soil Conservation Act 1967; and
(c) section 261 of the Coal Mines Act 1979,—
shall not affect any right, interest, or title, to any land or water acquired, accrued, established by, or vested in, the Crown before the date on which this Act comes into force, and every such right, interest, and title shall continue after that date as if those enactments had not been repealed.‖
Does the ad medium filum aquae presumption apply to determine ownership of the lands and riverbed in the current case?
Applicant’s submissions
[22] The Applicant submits that the ad medium filum rule applies to the present
case and should be used to determine the eastern boundaries of the Applicant‘s lands
at Ruatoki. The Applicant contends that under the ad medium filum rule, the boundary of its lands extend to the mid-point of the Whakatane River. The Court of Appeal in Re the Bed of the Wanganui River held that:
―Where a block of land fronting a non-tidal river has been held by Māoris under their customs and usages and later the title has been investigated and separate titles issued, the bed of the land adjoining the river becomes ad
medium filum a part of that block and the property of the respective owners of
that block.[4]
[23] The Applicant in oral submissions noted that the titles to its lands, while being silent as to the inclusion of the river within them, do not expressly exclude the river from those titles.
[24] The Applicant argued that the absence of an express reference to the river is not enough to rebut the presumption. The Applicant cited the following sources in support of this argument:
―It is presumed in the case of non-tidal streams that the riparian freeholders with frontage to either bank would hold title to the bed up to the middle thread
of the stream, even though the existence of such limit would not be
apparent from anything stated in the certificate of title or in the deeds or documents forming the chain of title, but only so long as there is nothing
in the history of the title, or the circumstances surrounding its history, that would rebut the presumption.[5] [emphasis added]
―Unless expressly excluded, the conveyance of riparian lands includes the riverbed.[6]
[25] The Applicant submits that it is for the Respondent to rebut the presumption
of the ad medium filum rule. However the Applicant states there are no matters that would rebut the presumption in the present case.
Respondent’s submissions
[26] The Respondent submits that it is arguable that the ad medium filum rule does not apply to the present case, and even if it does, the presumption has been rebutted
by the historical circumstances surrounding the Crown‘s grant of Ruatoki No.1.
[27] The Respondent argued that the presumption may be rebutted. Relying on the evidence filed by Brent Parker, the Respondent submitted that the original
boundaries of Ruatoki No.1 included the area of the Whakatane River now claimed
by the Applicant.
[28] The Respondent submits that any land originally part of Ruatoki No.1 that was not included within the boundaries of the subsequently partitioned blocks (the Applicant‘s lands) remains in the Ruatoki No.1‘s prior ownership.
[29] The Respondent says that there is an evidential argument that the titles did not extend to the river and are fixed at their boundaries, noting that there is no reference in the titles to the river being included.
[30] In other words, the Respondent submits that if the Applicant‘s lands have defined boundaries that end at the eastern-most point before the river, then the riverbed would still be owned by the descendants of the original proprietors of Ruatoki No 1.
[31] However, the Respondent did concede that there is no reference in the evidence of Mr Parker to the river being excluded from the relevant titles.
Crown’s Memorandum of 6 May 2009
[32] The Crown has been involved as an interested party to these proceedings on the basis that the riverbed of the Whakatane River may have been vested in Crown ownership, by virtue of s 14 of Coal-mines Act Amendment Act 1903.
[33] However, by memorandum dated 6 May 2009, the Crown sought the Court‘s permission to withdraw from these proceedings on the basis that it does not own the riverbed.
[34] The Crown submitted that it does not own the riverbed in the relevant area of the Whakatane River because:
a) by virtue of sections 3 and 93 of the Urewera District Native Reserve Act
Amendment Act 1909, the Urewera Commission‘s title orders for Ruatoki
No.1 were deemed to have the same effect as if the land has been granted by the Crown;
b) this ―Crown grant‖ of Ruatoki No.1 took effect from 14 October 1902, prior
to the enactment of the Coal-mines Act Amendment Act 1903;
be included in the grant of Ruatoki No.1;
d) therefore s 14 of the Coal-mines Act Amendment Act 1903 does not vest the
riverbed in the Crown, because the 1902 grant comes within s 14‘s proviso
―save where the bed of a navigable river is or has been granted by the
Crown.
[35] On 27 August 2009 Judge Clark and I granted the Crown‘s request to
withdraw from these proceedings.[7]
Does the ad medium filum rule determine ownership of the riverbed?
[36] It is clear that unless rebutted the ad medium filum rule applies in this situation.
[37] Although the parties dispute the navigability of the Whakatane River, this issue no longer needs to be decided because the Crown has confirmed it does not own the relevant area of the riverbed.
[38] As the Applicant‘s lands are adjacent to a non-tidal river and the river‘s navigability does not affect title to the riverbed in the present case, the ad medium filum rule applies to determine the question of ownership of the riverbed.
[39] It is for the Respondent to show that the presumption of ad medium filum has been rebutted.
[40] The Respondent has suggested that because the river appears to have been included in the original Ruatoki No.1 grant, and the current boundaries of the Applicant‘s lands do not include the river, the riverbed remains in the ownership of the original proprietors of Ruatoki No.1. In essence, the Respondent submits that this rebuts the presumption that the Applicant owns half of the riverbed.
[41] It is true that the titles for the Applicant‘s lands appear to be silent as to whether they include the river. However this ―silence‖ is not detrimental to the Applicant‘s claim.
[42] A grant of land, where that land is described (either in the title or plan) as abutting on or bounded by a river, is presumed to include half the bed of the river, even though the riverbed is not expressly referred to in the grant or title documents.
[43] This presumption also applies to partitions of land, which under Te Ture Whenua Māori Act 1993 have the same effect as a grant of land, to which a legal title may be registered.
[44] The presumption applies even if the specific or scheduled boundary measurements, or delineations or colouring on a plan attached to the grant (in this case a partition order), do not include any part of the river. Tait-Jamieson v G C Smith Metal Contractors Ltd [1984] 2 NZLR 513 and A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599, 621 (PC).
[45] Moreover the presumption applies even if the grantor (i.e. the previous owners of the land) is owner of the whole riverbed at the time of the grant.[8] In cases where the grantor (or previous owners) owned the whole of the riverbed, evidence of continued possession of the riverbed (after grant of the land to new owners) by the previous owners may potentially rebut the presumption. However, the Respondent has not advanced any argument that the descendants of the original owners of Ruatoki No.1 have continued to exercise possessory rights over the whole of the riverbed.
[46] In my view, the Respondent has failed to rebut the presumption of ad medium filum and therefore the Applicant has a common law right of ownership of half the riverbed where the riverbed is adjacent to the Applicant‘s lands.
How is the centre of the riverbed measured?
[47] Given the ad medium filum rule applies, what is its practical application? In
other words, how is the Applicant‘s section of the riverbed to be measured?
[48] At hearing both Counsel agreed that the proper application of the ad medium filum rule is that the Applicant owns the riverbed up to the mid-point between the two riverbanks. It was also agreed by both Counsel that the location of the riverbanks needs to be decided using expert evidence.
[49] The definition of a riverbed contained in section 2(1) of the Resource
Management Act 1991 (RMA 1991) supports the view that the centreline of the river
is to be measured from bank to bank. The definition states:
“bed means,—
a) in relation to any river—
overtopping its banks;‖
[50] On the subject of measurements of the mid-point of rivers, Halsbury’s Laws
of England states[9]:
―It has never been decided by the courts where exactly the medium filum aquae is to be taken in the case of non-tidal rivers, but it has been decided what is the extent of the bed of a river... From this it seems to follow that the medium filum aquae ... is a line running down the middle of the bed of the river, the bed being that portion of the soil of the river which is always covered with water and that portion which is alternately covered or left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain the water at its average and mean stage during the entire
year, without reference to the extraordinary freshets of the winter or spring or the extreme droughts of the summer or autumn. Where a river gradually and imperceptibly changes its course or its width, the boundary of a fishery in the river will follow such alterations, notwithstanding the existence of bounds or marks by which the former boundary can be ascertained...‖
[51] At the hearing of 2 December 2009, I stated that this judgment would not address the issue of where the centreline of the riverbed should be measured from. A decision on this issue, which involves locating the ―space of land which the waters of the river cover at its fullest flow without overtopping its banks‖, requires expert evidence.
[52] I note that the Respondent has already filed submissions on this issue, including an affidavit of Stuart Halliday. The Applicant indicated at the hearing that
it is in the process of obtaining expert evidence on this issue.
[53] As a result, I direct the Applicant and Respondent to file any further submissions/evidence on the sole issue of: where should the centreline of the river be measured from, with regard to the position of the riverbanks, riverflow and accretion/erosion (if applicable).
[54] The Court must receive these submissions within three months of the date of this judgment.
Pronounced in open Court in Wellington at pm, on this day
of 2009
C T Coxhead
JUDGE
[1] 81 Whakatane MB 163-167 (81 WHK 163).
[2] See 9.131(b) ‗Navigable rivers‘, Chapter 9 Title by Registration: 8 The Foreshore and Seabed, Riverbeds and Lakes: in Hinde McMorland & Sim Land Law in New Zealand, LexisNexis Ltd, last updated July 2009
[3] See s 206 of the Coal-mines Act 1925, s 261 of the Coal Mines Act 1979 and s 354(c) of the
Resource Management Act 1991.
[4] In re the
Bed of the Wanganui River [1962] NZLR 600,
609.
[5] Ian
Harold Marshall, ‗Water as Boundary‘ in Ad Medium Filum,
Institution of Surveyors NSW Inc - Young Surveyors Group, September
2006, page 2.
[6] Ben White,
―Inland Waterways‖ Waitangi Tribunal Rangahaua Whanui
Series, National Overview Volume ii, GP Publications, Waitangi
Tribunal, 1997, para 14.2.1, p.349.
[7] 126 Whakatane MB 229 (126 WHK 229).
[8] William Howarth, ―Water and Waterways in Halsbury’s Laws of England, 4th edition, LNUK, 3 January 2001, paragraph 78: Effect of riparian grant. See also Berridge v Ward [1861] EngR 272; (1861) 10 CBNS 400.
[9] Joanne Moss, ―Agriculture and Fisheries‖ in Halsbury’s Laws of England, 5th edition, LNUK, 1 March 2008, paragraph 824: Width in non-tidal waters.
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