Elements of the law on movable water boundaries

B E Hayes

Published March 2007

The law relating to water boundaries in New Zealand has not been cohesively developed. Errors, conflicts, and misconceptions abound. This paper highlights unsatisfactory elements in our waterside law that detract from a stable legal environment where the landowner and recreational user may have a mutual understanding. It also shows that we need legislation to protect landowners and the recreational users from inadequacies in such law as we now have.

This document is available in PDF format as a full document (452 KB) or in sections (please use the links below).

To read PDF files you will require Adobe Acrobat Reader, which is free software available from Adobe.

To request a printed copy of this publication please email info@walkingaccess.org.nz.

Contents

Preliminary pages (PDF, 100 KB)

Executive summary (PDF, 44 KB)

Introduction (PDF, 59 KB)

Waterside margins (PDF, 122 KB)
Roads
Publicly owned margins other than roads

Crown ownership of riverbeds (PDF, 172 KB)
Navigable rivers: a commentary on statute and case law
The Canadian precedent
The New Zealand solution
Riverbed status by Crown declaration
Statutory navigability
Riverbeds bounded on both sides by road

Fencing of watercourses (PDF, 38 KB)

Prescription (PDF, 55 KB)
Prescription over private land
Prescription over public lands
Crown Land which may be adversely occupied

Trespass to land (PDF, 51 KB)
Trespass at common law
Under the Trespass Act 1980

Trespass clarified (PDF, 52 KB)
Section 3: Trespass after warning to leave
Section 4: Trespass after warning to stay off

Some reflections on muddy waters (PDF, 64 KB)

Conclusion (PDF, 56 KB)

Appendices (PDF, 152 KB)
Appendix A: Explanation of terms used
Appendix B: Maori land – a category of its own
Appendix C: Boundaries excluded from analysis
Appendix D: The Beds of Navigable Waters Act 1911 (Ontario)
Appendix E: The Water-power Act 1903
Appendix F: Section 20 of the Foreshore and Seabed Act 2004