Outdoor Walking Access Report to the Minister for Rural Affairs

Appendix J: Summary of Elements of the Law on Movable Water Boundaries

Hayes, BE (2007b) Elements of the Law on Movable Water Boundaries, Ministry of Agriculture and Forestry, Wellington.

Introduction

Public rights of access along water in New Zealand have accrued under statute law authorising public ownership of waterside margins in many different forms of title. Access over publicly owned water margins is popularly believed to be a right, but given the varied legal status of its components, true unfettered rights of public access apply only to waterside roads. Access over other publicly owned land or Crown land is authorised only by the appropriate statute or permitted on sufferance.

Waterside law and practice designed to free New Zealand from the rules of English law and provide public access to water was optimistically put in place in the 19th century by the colony’s administrators, legislators and judges. They employed the most durable means then known: roads along water. Roads which the legislators declared could never be legally stopped if along rivers; roads which when placed on either side of a river preserved a right of passage and public access to the bed and recreational waters.

In 1903 the Coal Mines Amendment Act vested the beds of navigable rivers in the Crown, so that riverbeds not previously retained by the Crown should return to public ownership. Now, more than 100 years later, there is still judicial contention over the scope of that legislation. However, this legislation may be demonstrated to be of more plain and extensive effect than judicial opinion in the past may have indicated.

Marginal public land along watercourses, along the coast and around lakes in addition to roads includes:

  • Crown land;
  • land reserved from sale under s58 of the Land Act 1948 and earlier Land Acts;
  • all reserves under the Reserves Act 1977 and earlier Reserves Acts;
  • all land subject to part IVA of the Conservation Act 1987;
  • all local purpose reserves for esplanade purposes vested under the Resource Management Act 1991 and earlier Acts relating to the subdivision of land;
  • all esplanade strips or access strips under the Resource Management Act 1991;
  • all reservations over Māori land whether under the authority of the Māori Affairs Act 1953, the Resource Management Act 1991 or earlier Acts relating to the subdivision of land or Te Ture Whenua Māori Act 1993.

Despite there being a variety of legal waterside margins, a general rule on boundaries may be formulated. The inland boundary of waterside reserved land is pegged to stay in a fixed position in relation to the land which it adjoins. The water boundary of the reserved land is a movable boundary, so that the rights which attach to the parent parcel or strip, including land reserved from sale, attach also to accreted lands. In respect of the inland boundary there is a strong analogy with the modern survey definition of roads, for the same survey techniques in demarcating inland and water boundaries are in practice applied to roads, land reserved from sale, waterside reserves for public purposes, and esplanade reserves.

The right or facility to be alongside the water is based in a strict legal sense on title: title to public land touching the water, banks or foreshore, separated by a surveyed line from title to the adjoining land. The concept of a fixed landward boundary was carried into effect on survey plans prepared for sale by the Crown and on subsequent titles, even though the riverine or coastal boundary of the publicly owned margins generally has been a movable boundary.

The general principles to attach to all publicly owned waterside reservations are that:

  • the landward boundary of the parcel is fixed;
  • accretion may attach to any of class of reservation along water taking the same status as the parent land;
  • erosion may not necessarily affect legal title to reserved land which may retain its reserved status although under water, but may create a physical gap in public access.

Waterside margins

Roads

Up until the enactment of the Land Act 1892, general waterside reservations were shown as roads on the plans prepared for the sale of Crown land. From 11 October 1892 the Land Act provided for a strip of Crown land to be reserved along water on the sale of land by the Crown. Public reserves of various kinds were also established along rivers and the coast in the early days, but roads form by far the bulk of early public land.

The practice of showing reservations as road continued inconsistently until 1913 (in some provinces the depiction of a road was thought to be a compliance with the Land Act 1892). Then the practice of setting aside a margin of Crown land, rather than a road, along water was introduced on a national basis.

In Attorney-General and Southland County Council v Miller (1906) 26 NZLR 348 the Supreme Court held that where a public road runs along the edge of a river, the owner of land abutting such road is under no obligation, if the land on which the road is constructed is destroyed or washed away, to give up to public use any part of his or her land to take the place of that road. If there is a public need for a replacement road and it cannot be obtained without encroaching on private property, then the new line of road must be taken under the Public Works Acts, and the owner of the land compensated.

This decision was based on an extensive discussion of the common law of England (rather than any consideration of conditions in New Zealand). It establishes in general the concept of a fixed position for roads, negating any right of road along the altered course of the river. However, the decision makes no attempt to reconcile the common law with s129 of the Public Works Act 1905 then in force, which is designed to preserve in perpetuity the law-based existence of roads along the banks of rivers.

Whether this case was rightly decided obviously may be argued. However, even though the decision grievously damaged the concept of continuous water margin access, the principle that it established has stuck. Erosion of a water margin road may create a physical gap in the road. The case also established by implication a second principle that the inner limit of the road or marginal reservation is not ambulatory. When there is a road alongside, no matter where the river may change its course the boundaries of the Crown-granted land will always remain the same.

Cooper J in Miller’s case noted that it used to be the law in England that where the road was out of repair the traveller could deviate on to the adjoining land, doing as little damage and returning as soon as possible to the road, but this is not the law now where the land is fenced off from the road, consequently anyone who deviates from the road, in such a case, is a trespasser, and is liable to the owner of the land for damages. It is doubtful if any person has the legal right in New Zealand to go even temporarily upon private land adjoining a highway in order to pass a temporary obstruction.

On this explanation of the law, a trespass at common law or within the scope of the Trespass Act 1980 takes place whenever an eroded gap in a waterside road or any other form of public land along water is traversed without permission.

Publicly owned margins other than roads

Waterside reservations may be subject to the Reserves Act 1977 when land has been set aside for a public purpose, or as strip-like parcels when taken as esplanade reserves on subdivision. Road-like strips may have been reserved from sale under s58 of the Land Act 1948 and earlier Land Acts.

An accretion to a publicly owned margin along a river or stream, around a lake or along the coast will take the same character as the land to which the new land attaches so that the access rights of the public remain as before.

Apart from any question of title which may determine control by the council or the Crown, erosion may create a physical gap in a marginal strip or a reserve. In this respect, erosion of a marginal strip or esplanade reserve may be similar to erosion of a road i.e. the legal status of the strip or reserve may be preserved but continuous access may be lost.

Erosion is the most subtle of all boundary adjustments, for the law gradually and imperceptibly takes title away. Neither the land owner nor the recreational user should be exposed to civil or criminal liability as a result of erosion. Trespass as a result of erosion may readily be addressed, but it is part of a wider issue.

Crown ownership of riverbeds

This is a summary of statute law and is indicative of a past too often shaped by judicial and administrative interpretations based on the circumstances of the day, rather than the cohesive approach intended by the statute law. It is intended to reflect on the law as it is today and to show how public access to riverbeds is compromised by law made uncertain by inconsistent interpretation.

The inconsistencies of the past are easily illustrated and show how the law is at present open to a more certain explanation of the statutory provisions first enacted in 1903. The time may have arrived, with the benefit of a broadly based reflection on the origin of the statute law and the vagaries of inconsistent interpretation, to consider again the literal meaning of s14 of the Coal Mines Amendment Act 1903, noting the words of Hay J in The King v Morrison (1950) NZLR 247 at 267 “The language … is to my mind, plain and unambiguous …”. Hay J in these words represents one end of the interpretative continuum. Most of the other case law provides various levels of complexity in interpretation. At the other end of the continuum some of the judges prefer a meaning so restricted as to make the section virtually meaningless: Attorney-General ex rel Hutt River Board v Leighton (1955) NZLR 750 (SC and CA).

Section 14 and succeeding sections in the various Coal Mines Acts form the basis of this opinion. It is clear that the legislators had in mind a powerful expression of Crown ownership of navigable rivers, based on an extended definition of “navigable” to encompass all navigable rivers great and small regardless of width, to ensure that the beds of all such rivers were nationalised for the benefit of the nation.

The nationalisation of water for the generation of electricity took place at the same time; the Coal Mines Amendment Act 1903 and the Water-power Act 1903 were to come into force on the same day. The vesting of navigable riverbeds in the Crown although achieved in general terms rather than for any specific purpose, when viewed in the context in which the legislation was enacted, was clearly not intended to be an inchoate vesting. The Water-power Act specifically identified hydroelectric power generation as its subject matter; on the other hand section 14 of the Coal Mines Amendment Act provided the certainty of Crown ownership of riverbeds for a broad range of purposes. However a dominant objective, of s14 ascertained by a reading of the Water-power Act, and an understanding of the context in which that Act was enacted, is for sites for hydroelectric power stations. While it is relatively easy to point to the interpretative difficulties which have afflicted s14 for much of its statutory life, on a literal view, the scope of the section may now be seen to be quite plain. Section 14 was enacted to confirm Crown ownership of navigable riverbeds when title to the bed had never been alienated by the Crown. Also, it was intended to achieve an unambiguous return to the Crown of navigable riverbed alongside alienated lands, when that riverbed had not previously been included by area and measurement in a Crown grant i.e. had not been purchased by the adjoining grantee by a payment to the Crown.

In effect s14 may have:

  • Confirmed by declaration the ownership by the Crown of riverbeds:
  • When riverbed formed part of the demesne lands of the Crown (i.e. land which has never been alienated by the Crown); and
  • When ownership had previously been preserved for the Crown by the laying out of road or marginal strips reserved from sale along river boundaries;
  • Had the effect of returning navigable riverbed to the Crown in circumstances where at common law prior to 23 November 1903 the adjoining owner may previously have claimed ownership to the centre line;
  • Confirmed Crown ownership in special circumstances, whereas, in respect of the Waikato River, the river is a highway retained by the Crown.

In 1901 a case on navigability on non-tidal rivers was reported in England (Attorney-General v Simpson (1901) 2Ch 671) and there seems no doubt that the draftsman of s14 (as first enacted) drew on that case. The relevant issues decided by the English case are:

  • proof of a public right of navigation in a non-tidal river depends on proof of historical use;
  • it is not enough to show that it is a large river which could have been used for navigation.

Both of these elements of the common law are overturned by s14. In New Zealand after the enactment of s14 a non-tidal river to be navigable merely had to be susceptible:

  • of sufficient width and depth to be of actual or future use;
  • need not when flow is diminished be always available for the use of craft.

Also, a further departure was made from common law to widen the class of traffic. The specified craft (boats, barges, punts or rafts) cover all craft available in 1903 – in other words, any craft which then floated, and arguably may cover any craft which is capable of navigation today.

The three principles set out above may be directly extracted from the statute and clearly stand when considered in the light of Attorney-General v Simpson. However, with few exceptions, the judges have not accepted the simplicity of the tripartite proposition. Instead they have preferred to be guided by the complexity of English common law, omitting, however, reference to Attorney-General v Simpson which is demonstrably the key to s14.

The judges have held varying interpretations of s14 and succeeding sections so that uncertainty of the effect of the section proceeds from two perspectives:

  • rivers may not be authoritatively identified as having Crown-owned riverbeds except by action in the High or Superior Courts (this is inherent in s14);
  • the outcome of court action is uncertain.

From early settlement, the ad medium filum rule of English common law – ownership to the centre line – was excluded in its application to rivers, lakes and the coast, when roads were reserved alongside the water, ensuring Crown ownership of the bed and shore. However, the rule applied extensively when roads were not reserved. Given the opinions of the judges, the extent to which s261 of the Coal Mines Act 1979 ( the latest version of the original section 14) supersedes the operation of the rule is not clear. Section 261 in fact may establish Crown ownership of the beds of most watercourses large enough to be rivers. Clearly, that was the original intention of the legislature.

However, given the unsettled state of the law we too often do not know in practice which of our rivers flow on Crown-owned riverbeds. This gives rise to a conflict between adjoining land owners, who may think their title extends to the centre of the water, and those who assert that the Crown owns the riverbed. Even when a riverbed dispute is placed before the court, there may be surprises. The 1984 High Court ruling that the Manawatu, a large river, was owned to the centre line illustrates the surprise aspect. Uncertainty multiplies, for expert opinion does not generally provide support for the Manawatu decision which is in conflict with an earlier decision on the Wanganui River.

The laying out of roads and reserves along water boundaries in a fixed position on the landward side and providing for a movable boundary on the water side makes public land vulnerable to alterations effected by nature. It may even, when erosion is severe, have the effect of obliterating public access along a stretch which previously carried a publicly owned margin.

Trespass clarified

If nothing else, it is often hard to know who owns the gravel in the old riverbed. The sources of potential uncertainty on private land may be summarised under four heads:

  • the effect of erosion and accretion on reserved land along water boundaries – gaps and alterations created by nature in the publicly owned water margins;
  • the difficulty of applying either the presumption of title to the centre line of water, or Crown ownership of the bed;
  • the administrative uncertainty of the effects of erosion – maps and official records may not show erosion;
  • the intense statutory protection from trespass which is given the Crown contrasts with uncertain rights applying to natural boundaries on private land.

Trespass along water boundaries may take place: where there is no reserved land along the water boundary; where there is a gap in a reservation; when the bed of a river or stream is privately owned to the legal centre line of the water; or where a person indiscriminately accesses private land in the vicinity of or away from water. Trespass may either be at common law, where the fact of trespass is the dominant aspect of the offence, or within the scope of the Trespass Act 1980.

Trespass over Crown land may take place in terms of s176 of the Land Act 1948 (above). Although trespass extends to any lands of the Crown and so includes Crown-owned riverbeds, the Commissioners of Crown Lands have always been generous in allowing access over Crown land.

In one sense natural boundaries along water are the most certain of all boundaries, for they are always observed on the ground in the position seen on the day of the observation. Uncertainty exists where there is erosion of public land along water, and also in the ever-present conflict between the presumption of ownership to the centre of the water, and Crown ownership of the bed under the Coal Mines Act.

Amendments to the Trespass Act 1980 may serve to clarify aspects of the law on trespass in relation to these two areas of uncertainty. Extending the limited defences offered by sections 3 and 4 of the Trespass Act provides a suggested solution.

Trespass – a reform of the law

The application of the law on trespass is uncertain where natural boundaries which are inherently subject to change through erosion create gaps in roads and waterside reservations. Doubts over the ownership of riverbeds also create uncertainties in trespass law. The Trespass Act 1980 which applies criminal sanctions should not apply in circumstances where a person has a reasonable belief that public margin exists along a water boundary or that a river is navigable and owned by the Crown.

The law change proposed would be in the nature of a defence statutorily made available to any person who may be charged with an offence under the Trespass Act – an extension of the defences provided by sections 3 and 4 of that Act.

Conclusion

A driving force at the beginning of colonial settlement – that the old English law protecting landed privileges should not apply in New Zealand – was extensively but far from completely applied. Inconsistent administrative practices in provincial (1854–1876) and post-provincial times22 put paid to the ideal of universal public access to waterways, lakes and the coast. Reservations for public access were sometimes inexplicably omitted when Crown land was sold. However, waterside reserve allowances in the form of roads were nevertheless extensively applied as settlement proceeded. Other forms of waterside reservations were to apply after the provinces were abolished. In the post-provincial era these early roads were to receive special statutory protection at least up until 1952. Today, many forms of statutory restraint protect public access along water.

The robust development of indigenous riverine common law in New Zealand is best exemplified in Mueller v The Taupiri Coal Mines Limited (1900) 20 NZLR 89 case in 1900 when the Court of Appeal held that the Waikato river was a public though non-tidal navigable highway, the bed of which was owned by the Crown. The Court did not follow English common law which would have provided for private ownership to the centre-line of such a river. Section 14 of the Coal Mines Amendment Act 1903 then altered the English common law and provided for new statutory rules in New Zealand.

The bed of a navigable river, except where it has been granted by the Crown, remains, and is deemed to have always been, vested in the Crown by statutory declaration under various Coal Mines Acts. Whilst the theory may be easily stated, applying the concept to waterways is another and vastly more difficult matter. The adjoining landowner may consider that they own to the centre line whereas under the statute law, dating from 1903, the bed may have vested in the Crown; the recreational user may not be sure if they are on privately owned land or Crown land.

A solution to the practical problems of identification of public land on the ground whether the land is along water, or the bed over which water flows, may be based on the law of trespass if suitably adjusted.

The language used in s14 of the Coal Mines Amendment Act was clearly intended to vest the bed of navigable rivers and streams in the Crown for a broad range of purposes. The old Department of Lands and Survey, under the superintendence of the Minister of Lands on behalf of the Crown, administered “title” to Crown riverbeds in a neutral setting. Given the competition that now exists for riverbed use, whether for recreation, conservation, flood protection, and uses authorised under the Resource Management Act 1991, the Crown agency which supervises the title of the Crown should have a neutral role. The Crown and the public will not be well served if riverbeds are “captured” by sectional management.

Land Information New Zealand, the successor to the Department of Lands and Survey, is the neutral agency under the Minister of Lands which should undertake this role.

22 National practice was not settled until s110 of the Land Act 1892 was enacted.