ORIGINS AND ROLE OF THE HOROWHENUA LAKE

RESERVE BOARD

Horowhenua Lake Act 1905

This Act was passed to give effect to an agreement with the Maori ownersto make Horowhenua Lake "a place of resort for His Majesty's subjectsof both races, in as far as it is possible to do so without undulyTnterferring with the fishing and other rights of the Native owners."This recreational privilege was given to the public by the Muaupokotribe at the request of the then Prime Minister of New Zealand,Richard John Seddon. The Act made provision as follows -

1. For "Horowhenua Lake, containing nine hundred and fifty-one-acres,to be a public recreation reserve."

2. For a Board to control the reserve, with one third of the membersbeing Maoris.

31, For the native owners to "at all times have the free and unrestricteduse of the Lake and of their fishing rights over the Lake but soas not to interfere with the full and free use of the Lake foraquatic sports and pleasures."

4K •For the-shooting or destruction of birds or game of any kind tobe prohibited.

5. For the Crown to "acquire from the native owners any area notexceeding ten acres adjacent to the Lake as a site for boat shedsand other buildings necessary to more effectually carry out theprovisions of the Act."

This Act was repealed by Section 18 (12)(a) Reserves and Other LandsDisposal Act 1955.

The 1907 Purchase

On 5 September 1907 title to the following pieces of land was transferredto the Crown -

9a1r0Op for the sum of £196 lls and 3p (Part CT 121/121) being PartSubdivision 38 of Horowhenua 118 Block.

3a3r37p for the sum of £84 12s Op (Part CT 121/121) being PartSubdivision 38 of Horowhenua 11B Block.

• 3 roods for the sum of E17 8s Op (Part CT 121/121) being PartSubdivision 39 of Horowhenua 11B Block. (This area is thepresent driveway into the Muaupoko Park entrance gates fromthe end of Queen Street).

The land is now contained in Certificate of Title Volume 165folio 241 in the name of the Crown.

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Reserves and Other Lands Disposal and Public Bodies Empowering Act 1916

Section 97

This legislation amended the 1905 Act in the following manner - RATcm:44401

a) Made new arrangements for the Board structure which became -6 nominees of the Levin Borough Council and "3 members of theNative race." (This Board operated up until 1940).

b) Authorised the Levin Borough Council to spend money on the reserve.

c) Made the Board a "local authority within the meaning of Part IIIof the Land Drainage Act 1908 with respect to the reserve underits control and the Hokio Stream, together with the strip of landone chain in width on each side of the waters of the saidHokio Stream."

This section of the Act also recognised the Maori,fishing rights overthe Hokio Stream and enlarged the recreation reserve to cover the onechain strip (as defined in the Native Land Court Order of19 October 1898). Section 97 was repealed by Section 18 (12)(b)Reserves and Other Lands Disposal Act 1956.

Reserves and Other Lands Disposal and Public Bodies Empowering Act 1917

Section 64

The land purchased in 1907 (CT 165/241) was placed under the control ofthe Board as a recreation reserve.

Local Legislation Act 1926 - Section 53

Empowered the Hokio Drainage Board to carry out land drainage operationsin connection with the Hokio Stream following a rise in the level ofthe Lake. This provision was repea by Section 18 (12)(d) Reservesand Other Lands Disposal Act 1956. 1 ‹LeeclAa.dt

The 1934 Horowhenua Lake Domain Committee of Enquiry,0,

The Committee comprised Judge Harvey of the Maori Land Court and

Mr H C W Mackintosh, Commissioner of Crown Lands. They investigated theeffects of the legislation on Maori ownership and rights over the Lake(as partitioned from Horowhenua 11 Block in 1898) having regard to itsreservation, the Board's responsibilities, and the effects of thelowering of the Lake which resulted from Hokio Drainage Boardstraightening and deepening of the Hokio Stream. (The compromiseproposed by the Committee was not acceptable to the Maori owners; theBoard went into recess in 1940, and a final agreement along modifiedlines was not reached until after the Maori. Land Court, in 1951appointed new Trustees for the Maori Land (those appoinfR-71898having died).

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Reserves and Other Lands Disposal Act 1956

Section 18 of this Act repealed all earlier legislation and gave effectto an agreement made "between the Maori owners and other interestedbodies in respect of the ownership and control of the existing Lake,the one chain strip, the dewatered area (created by the lowering of theLake), the Hokio Stream and the chain strip on a portion of the northbank of that stream and certain ancillary matters." These areas areall defined on SO Plan 15699.

Specifically Section 18 (see copy attached as Appendix I) -

a) Confirmed Maori ownership of "the bed of the Lake, the islandstherein, the dewatered area, and the strip of land one chain inwidth," as well as certain lands in and along the Hokio Stream.

b) Confirmed Crown ownership of Subdivision 38 and part Subdvision39 of Horowhenua 11B Block situated in Block I, Waiopehu SurveyDistrict, containing 13a3r37p (5.6580 hectares) CT 165/241.

c)

Gave a newly constituted Domain Board,c'ontrol of the surfacewaters of the Lake, the 13a3r37p area (now known as MuaupokoPark) and theportion of the one chain strip and dewatered areafrontibb Subdivision 38, Horowhenua 11B Block as a domain underPart III Reserves. and Domains Act 1953. (Ihe Commissioner ofCrown Lands was appointed as ex-officio Chairman under thelegislation as a result of a request by the Maoris at a meetingheld in Wereroa Hall, Levin on 5 July 1953. ((See also NeWZealafld Gazette 1957 page 182 for notice dated 5th February 1957appointing the Board))

d) Qualified the powers of the Trustees and the Board in respect ofthe Domain areas as follows -

(i) The Domain declaration has no affect on "the Maori titleto the bed of the Lake" or the dewatered area or one chainstrip.

(ii) The public have a free right of access over and use andenjoyment of the portion of the dewatered area and one chainstrip fronting Subdivision 38, Horowhenua 11B Block.(These rights were given to the public through thegenerosity of the Muaupoko tribe).57

(iii) The Maori owners have the. free and'unrestricted use of theLake and the dewatered area and one chain 'trip frontingSubdivision 38, Horowhenua 11B Block, and fishing rights overthe Lake and the Hokio Stream "but so as ndt to interferewith the reasonable rights of the 'Public, as may bedetermined'by the Domain Board" to use the lakeshore of

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- 4 -Muaupoko Park and the Lake itself.

p)Required the Manawatu Catchment Board to control and improve the - 1HokioStream (subject to the prior consent of the Domain Board to any works) andmaintain the Lake level "under normal conditions 1 at thirty feet above meanlow water spring tides at Foxton Heads."

The 1958 Agreement

This was a written agreement signed by representatives of the Muaupoko Tribe and membersof the Horowhenua Lake Domain Board during a ceremony at Kawiu Pa on the 10th day of May1958 "indicating their agreement based deMent of the Muaupoko Park"diagram attached tothe document. These development proposals have been modified from time to time by theBoard and the latest scheme plan is dated May 1974.

The 1961 Lease:

This lease is made between the Lake Trustee (as Lessor) and Her Majestythe Queen (asLessee) over 32. perches 00-k') of the Lake bed "for thepurpose of of using it as part of theHorowhenua Lake Domain". There are no other conditions. The lease is in perpetuity at anannual rent of tIJIQ payable on the first day of June annually. The Board agreed to paythe rental on behalf of the Crown/tut the Trustees have generously never charged this andhave treated it as a leasehold gift The piece of land is included in the permit held bythe Horowhenua Boating Club from the Board.

The Reserves Act 197.

The Domain was reclassified as a recreation reserve by a notice in theNew Zealand Gazette of 1981 at page 1920 pursuant to the provisions ofSection 16 of this Act. By virtue of sub-section (7)(b) the DomainBoard became the Horowhenua Lake Reserve Board.

Restrictions on Use of the Reserve

(These include decisions based on legal opinions over a period of years).

1/.The Board may deal with the 5.6580 hectares contained in CT 165/241(ie. that part ofMuaupoko Park excluding the one chain strip and dewatered area on the Lake frontage and the809m lease as an ordinary recreation reserve subject to the Reserves Act 1977,

2/.In the case of the balance of Muaupoko Park (being the dewatered area and one chain stripfronting Subdivision 38, Horowhenua 11B Block) and the Lake,provisions of the Reserves Act1977 must be read subject to the provisions of the 1956 Act, with the following .consequences -

a)These areas cannot be leased under the provisions of Sections 54, 73 or 74 Reserves Act1977. ( Existing permits granted under the Reserves and Domains Act 1953 are,however,valid as would any permits issued under Section 53 Reserves Act 1 9 7 7 ) .

b) In determining the reasonable rights of the public the Boardmust have regard to the Maori owners' conditional fishing anduse rights.

c) The Maori fishing And access rights are not subject to theFisheries /let 1.908 or its regulations but the Maori ownersmust not interfere with the reasonable'rights of the publiconce they are determined by the Board. 47,1>..."

d) Ownership of the body of water in Lake Horowhenua (asopposed to the Lake bed, which is Maori owned) is regardedby common law as,belonging" to the Crown subject to rightsof use given to individuals for different purposes underSection 21 Water and Soil Conservation Act 1967. —

3. Two conditions ofagreement not set out in the 1956 Act wereimposed by the Maori owners (letter from their solicitors of9 July 1953) --

"(1) The Lake is to remain a sanctuary.

(ii) No speed boats are to be permitted on the Lake."

It was decided by the Department of Lands and Survey that the Domainstatus" underthe Reserves and Domains Act 1953 adequately met the firstcondition (memorandum from Director Gener;a1 of Lands toCommissioner of Crown Lands of 5 April 1956). !The owners agreedto the prohibition on speed boats being enforced as a by-law(letter from their solicitors of 26 October 1955),[ and provision forthis has subsequently been made. The Horowhenua Lake Trusteesand the Board have since agreed to game hunting on the greater partof the Lake by permitees (under the Wildlife Act 1953) who can obtainaccess rights other than through Muaupoko Park.

Day to Day Management of the Park

1. At its meeting on 14 October 1965 the Board set up a Works Committeeto assist with the detail and day to day problems of the reserve. Itcomprises "one Board member froni each of the Maori, Borough and CountyCouncil representatives, and the Planning—bfficer."

2. (Leasing the reserve to the Levin Borough Council and HorowhenuaCounty Council for development and day to day operation wasconsidered in 1968 but this was opposed by the Muaupoko Tribe anda lease was not granted) However a maintenance agreement wassubsequently entered into with the Councils on 12 March 1970 (seeAppendix II attached) and was ratified by the Levin Borough Councilon 20 March 1970 and by the Horowhenua County Council on 24 April1970.

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3. At its meeting on 23 April 1981 the Board delegated to the TownClerk or other person deputed by the Levin Borough Council thepower to grant approvals under Clause 12 of the Board by-laws andcertain approvals under Section 53 Reserves Act 1977 (seeAppendix III). This was ratified by the Levin Borough Council

on 27 April 1981.

W T DevineExecutive Officer(Land Management)WELLINGTON

September 1981

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Yow. •efererica:

CROWN LAW OFFICEP.O Box 5012W;:LLINGTON

Telephone (04) 721 719

Fax (04) 733 482

DX 816113 July 1989

The Dir:sctor-Geneal cs.:ConservationDepartmeW.: of Conservation10 Box 10420T:ELLINGTON

ATTENTION: Mrs T IC MansfieldOffice Solicitor

LAKE HOROWHENUA -.OWNERSHIP OF THE WATERS

Thank you for your memorandum of 4th of April 1989 andplease accept our sincere apologies for the delay inreply - due to the continual absence of Crown Counselconcerned with such issues outside this office.

In your memorandum you have asked four questions whichmay be summarised as follows:

A. Who owns the waters Of Lake Horowhenua?

Who has the responsibilityfor administering thewaters in Ithe laRe?

C.Is Section 16 6f the Reserves and Other LandsDisosal Act 1956 subject to or does it overridethe.provisions of the Water and Soil Conservation Actand Reserves Act enacted. in 1967 and 1977 respectively?

D. Who may seeka review action as to the ownership ofthe lake: the. Maori Trustees or the Domains Board?

The problems you'have outlined demonstrate the •confusion the legislature has promulgated in its

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attempts to integrate separate statutory land andwater regimes with Maori issues. (Maori as you willbe aware regard lands, waters and fisheries as acontinuum and customarily to be managed as such.) Theresults of the legislation are somewhat messy -.butmanageable if some care and thought is given to thematter.

Are the waters Of Lake Horowhenua legally owned bymembers of the Muaupoko tribe and if not by whom arethey owned?

1. Statutory Interpretation

Section 16 (7) of the Reserves Act 1977 provides thatdomains under the former Reserves and Domains Act 1953are to be controlled and managed under the Reserves Actprovisions relating to.recreation reserves. Section 16(7) (b).states that all the provisions of the ReservesAct shall apply•accordingly.

This section is to be read subject to Section 5 (2)(a) of the Reserves Act 1977 which states: •

"Except as otherwise specially provided herein, this Actin.its application to any reserve shall beyead subjectto -

(a) Any Act (whether passed before or after the.commencement of this Act) ... making any specialprovision with respect to that reserve ...".

As you properly point out the effect of Section 4 (2)(a) of the Reserves Act would seem to be that thespecific provisions in Section 18 Reserves and. OtherLands Disposal. Act 1956 (ROLD Act) override thegeneral proVisions of the Reserves Act 1977.

Section 18 of the ROLD Act therefore needs verycareful analysis to see what its effects are.

,(a) The Preamble:

The recitals set out some interesting points:

"And whereas the said area [set out in plans held bythe Chief Surveyor] includes the Horowhenua Lake ...And whereas,... the lake was vested in trustees forthe purposes of a fishing easement ... And whereasthe Horowhenua Lake Act 1005 declared the lake to be apublic recreation•reserve under the control of a DomainBoard.... but preserved fishing and other rights of theMaori owners over the lake and Hokio Stream :... Andwhereas as a result of drainage

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operations ... the level of the lake was lowered ...And whereas the lowering of the lake level createdcertain difficulties in respect of the Board'administration and control of the lake, and in view ofthe previous legislation enacted relating to the lake,doubts were raised as to the actual ownership andrights over the lake and the one chain strip and thedewatered area: ... And whereas the Committee [ofInquiry 1934] recommended that title to the landcovered by the waters of the lake together with theone chain strip and the said dewatered area beconfirmed by legislation in ownership of the trusteesappointed in trust•for the Maori owners:... Andwhereas certain other recommeLdations made wereunacceptable to the Maori owners: And whereasagreement has now been reached between the Maoriowners and other interested bodies in respect of theownership and control of the•existing lake, the saidone chain strip, the said dewatered area, the saidHokio Stream and the chain strip on a portion of thenorth bank of that stream, and certain ancillarymatters; and it is desirable and expedient thatprovision be made to give effect to the variousmatters agreed upon:... (Emphasis added)."

The recitals indicate:

That the subsections following the recitals willbe remedial'in resolving the dispute - in otherwords Parliament expects the ownership questionto be resolved by the legislation as this wasclearly in question because of earlierlegislation and Court proceedings (we havelooked at all of these, including the 1934Commission of Inquiry).

That the legislation will affect the LakeHorowhenua Act 1905 which had vested the lake inCrown ownership -- and allowed fishing rights toMuaupoko.

That ownership and control are separate concepts.

That "the lake" is an entity and ownership ofits waters are to be confirmed by vesting thebed of the lake in the Maori owners and that theeffect of this should provide adequate legalprotection for .the Maori owners in respect ofthe lake.

That agreement as to what has happened has beenreached between the parties.

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The Definition Sub-sections Section 18 ROLDAct

Section 18 (1) ROLD Act provides definition of thewords "Lake" and Hokio Stream" and "Dewatered Area"such defihitions also having a part to play in thisopinion:

""Lake" means that area of water known as LakeHorowhenua enclosed within a margin fixed by asurface level of 30 feet above mean low waterring tides at Foxton Heads:

"Dewatered area" means that area of land betweenthe original margin of the lake shown on the, plan numbered S.O. 15699 (lodged in the officeof the Chief Surveyor, at Wellington) and themargin of the lake as defined aforesaid:

"Hokio Stream" means that stream flowing fromthe outlet of the lake adjacent to a point .marked as Waikiekie'on plan numbered S.O. 23584(lodged in the office of the Chief Surveyor, atWellington) to the sea."(Emphasis added).

Section 18 (2) ROLD Act states:

"Notwithstanding anything to the contrary in anyAct.or rule. Of law, the bed of the lake, theislands therein, the dewatered area, and thestrip of land one chain in width around theoriginal margin of the lake ... are herebydeClared to. beand to have always been owned bythe_Maori oWnes'and.the said lake, islands,.dewatered area, and strip of land are herebyvested inthe:trustees apPointed.by Order of theMaoritand:Court 'dated the eighth day of August,mineteen-hUndred and fifty-one, in trust for thesaid Maori owners."

You have said in your opinion the phrase "bed of thelake" is not repeated in the latter part of thesubsection and only .the word "lake" is repeated!'don't think anything turns on this point - thereferences in the latter part of the subsection is tothe first part and just expressed in a shortened form.

A problem lies with the definition. Section 18 (1)defines "lake" as an area of water enclosed within amargin fixed by a surface level of 30 ft above meanlow water.

The question is does ownership of the "said lake"referred to in Section 18 (2) refer to the area ofwater defined in Section 18 (1) when clearly thetrustees are appointed to act on behalf of the Maoriowners who have been vested only with the bed of thelake and not seemingly the area of the water.

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A matter which does not seem to have been taken intoaccount thus far by the Department is the effect ofvesting the bed of the lake in the Maori owners. Thevesting was authorised by the legislature (Section 18(11)) under which the authority the District LandRegistrar issued a certificate of title under'the LandTransfer Act 1952,. (dated 12 October 1959).

Section 2 of the Land Transfer Act defines "land" as:

"Land" includes•messuages, tenements, 'andhereditaments,.corporeal and incorporeal, ofevery kind and description, and every estate orinterest therein, together with all paths,passages, ways, waters, watercourses, liberties,easements, and privileges thereuntoappertaining, plantations, gardens, mines,minerals,.and.guarries, and all. trees and timberthereon or thereunder lying or being unlessspecially excepted. (Emphasis added)."

As you will See a special exception is found inSection 18 (5)'. That provision also assists in theinterpretation of ownership of the lake and is furtherassisted by Section 18 (5) of the ROLD Act.

c) Section 18 (5) ROLD Act

This states:

"Notwithstanding anything to the contrary in anyAct or rule of law, the surface waters of thelake ... are hereby declared to be'a publicdomain subject to the provisions of Part III ofthe Reserves and Domains Act 1953:

"Provided that-such declaration-shall not affectthe Maori title to the bed of the lake...

Provided further that the Maori owners shallat all times have the free and unrestricted useof the lake ... and of their fishing rights overthe lake ..., but so as not to interfere withthe reasonable rights. of the public, as may.bedetermined by the Domain Board constituted underthis,section, to use as a public domain the,lake ." (emphasis added).

Remembering that the Maori.owners are owners of thelake bed, the exception to the definition of landunder the Land Transfer Act 1952 noted above, is thatthe surface waters of the lake are declared.a publicdomain. The second part of paragraph of Section 18(5) however contains the important proviso: that inspite of being declared a'public domain, Maori title.

to the lake' bed is not to be affected. This isanother .indication from context, that the lake bed isowned not necessarily the water. The surface watersare declared a public domain. Such a directionplaces boundaries on what would then have been commonlaw rights to water and Maori customary title and thefact that "the Crown has never been able to obtain anyauthoritative Aecision from the superior Courts inrespect of the precise legal position with regard toownership of navigable lakes in New Zealand (MaoriClaims to Lakes, River Beds" [NZLJ 1966 Vol 2 29].

Clearly, the legislation does not anticipate thatanything that happens in respect of the public domainis to upset or interfere with Maori title to the lakebed which brings with it all the incidents of,

ownership of the lake. I will examine this commentfurther below.

The .'final paragraph to Section 18. (5) provides forthree occurrences to take place (note the word owners)

That the Maori owners shall have at all times,and from time 677EE; the unrestricted use ofthe lake (which demonstrates incidents ofownership).-

That the owners shall have free and unrestricteduse of their fishing rights.

. that these use rights shall be experienced insuch a way so as not to interfere with thereasonable rights of the public as may bedetermined by, the Board.

It appears from the Preamble that the Maori ownersmade an agre-ement.with.the Crown not to exercise _theirown rights ln a way,which would interfere with thereasonable right's of the public.

Meanwhile, the Board has a duty to determine thepublic's rights to' the lake in 'accordance with theinherent principles of reasonableness. Theseprinciples are determinable at law.

d) Ownership of the Surface Waters and LandDescribed in Section 18(13)

Section 18 (5) ROLD Act specifies that the surfaCe.waters of the lake are to be a public domain subjectto. the provisions of Part III of the Reserves andDomains Act 1953.'

That Act specifies for the purposes of this opinion(inter alia)

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"Section 41. This part of this Act shall beread subject to the provisions of any Act(whether pagsed before or after the commencementof this Act) making any special provision withrespect to any specified public domain ordomains or authorising-the setting apart for anyother purpose of lands subject to this Part ofthis Act.

Section 43. All lands forming patt of anypublic domain (other than lands acquired by wayof lease for•the purposes of the domain) arehereby declared to be the property of the Crown."

Section 41.ensures that the'provisions of the s. 18ROLD Act have paramountcy over. the Part III of theReserves and Domains.Act 1953. - Section'43.declaresthat all lands forming part of any public domain aredeclared the property of the Crown. The section saysnothing about waters. Nor is 'land( anywhere definedexcept as Crown land. Thus the land described inSection 18 (13) (Firstly & Fourthly) is in'Crownownership but surface waters are apparently notcovered by the legislation.•

The second question to be asked is whether thedeclaration of the surface waters of the lake as apublic domain affects'Maori title to the lake bed i.e.ownership of the Lake which.is.the,proviso in thesecond paragraph of Section 18 (5). Clearly this is.a grey area. Declaring the surface waters of the laketo be a public domain and assuming them to be vestedin the Crown cuts across the full incidents ofownership envisaged by Muaupoko's title to the lakebed.

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Section X18 (5) carries .with it-a.disolaimer:

"Notwithstanding anything to the contrary in anyAct or-rule 'of- law, the surface waters of thelake together with the land firstly and fourthlydescribed in subsection thirteen of thissection, are hereby declared to be a publicdomain ,subject.to.the.provisions of Part III .ofthe Reserves and Domains Act 1953:"

but then the Section goes on to reiterate that such adeclaration is not to affect Maori title to the lakebed.

Given that under Section 2 of the Horowhenua Lake Act1905 declared the lake to be a recreation reserve (all951 acres) and therefore passing to Crown ownership asa public domain and given that the same 951 acresunder Section 18 (2) specifically vests that land in

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Maori ownership, it is hard to escape the conclusionthat the legislation was designed to take awayownership to the•lajce once it had granted it backagain. This is: reinforCed by the, second, proviso toSection 18 (5) that the declaration of the surfacewaters as a; public domain is not to affect Maoil titleto the bed of the lake. Further the Maori bWners haveat'all times and from time to time, free andunrestricted, use.greater right than thepublic's which is-restricted by the grounds ofreasonableness.The emphasis in the. legislation isfor 'control' by the Domains Board and use by thepublic.

However it is equally hard to escape the conclusionthat the legislature, in an effort to control the'

public's rights to use the lake deliberately allowedCrown ownership of,the surface waters in what can onlybe said to be'a most unusual piece of legislativemanoeuvring. Section 18 (5) ensures that

"Notwithstanding anything to the contrary in anyAct or rule of law'... .

"Who has the Responsibility of Administering theWaters of The Lake?

a)' The effect of the Water and Soil ConservationAct 1967.

One legal commentator (D.A.R. Williams "The WaterResources: Some Current Problems of LawAdministration" ([1980] NZLR 499 at 500) writes thatthe two outstanding features of the Water and SoilConservation Act 1967 are the apparent elimination ofthe common'law rights to the use of water and theestablishment of ,a complex regulatory structure togive effect to,the administration and control of waterresource.

He notes that the precise manner in which the specificcommon law water rights have been transformed by theAct are still somewhat uncertain and cites Stanley vThe 'South Canterbury Catchment Board [1971] 4 NZTPA 63as supporting this view.I am not sure in. the sphere ofMaori rights that this• is a correct view. Clearly thiswhole issue. of Maori water rights has to be examinedmore carefully in the light of the emerging body of lawwhich surrounds'it.The sole right to use natural wateris vested in the Crown subject to the provisions of theAct (emphasis added - Section 21 (1)). The Act saysnothihg about ownership of water and the sectioncontains a caveat:

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"Provided also that it shall be lawful for any person totake or use any natural water that is reasonably requiredfor his . domestic needs and the needs of animals for whichhe has any responsibility".

Clearly the Tribellas a right under this Act to usethe lake and stream as anticipated in the second 'proviso to Section 18 (5) ROLD Act.. That Actcontains the proviso that nothing to the contrary inany Act or rule of law will take away the rights itprovides for. So to the extent the Water & SoilConservation Act is compatible with the provisions ofSection 18 it will apply.

b) Meanwhile, Section 18 (10) of the ROLD Act 1956stipulates that the Manawatu Catchment Board

"shall control and improve the Hokio Stream. and maintain the lake level

Provision is also made for works affecting the lakeand stream to be.undertaken by the Board with prior .consent of the Domain Board. The Catchment Board hasrights of access for improvement and maintenance work.

3.1s Section 18 of the Reserves.& Other Lands' DisposalAct 1956 .subject to or. does it override the Water.&,

Soil Conservation Act 1967 and the Reserves Act 1977?

The practical effect of section 4' (2) (a) 'of theReserves Act 1977 is to enable the specific provisionsin that Act relating to Lake Horowhenua and itsenvirons to override the more general provisionsrelating to lakes and reserves in the Reserves & WaterSoil Conservation Acts where there may be incon-sistency. Section.18 therefore of the ROLD Act hasparamountcy.

Thus the provisions in Section 17 (1) of the Reserves Act1977 would attract the attributes ofreasonableness set out in Section 18 (5) of the ROLDAct. Also the stipulation as to 4 persons to beappointed on the recommendation of Muaupoko under Section18 (6) of that Act would also apply' as well as the Tribe'srights to go fishing under the HorowhenuaBlock Act 1896 as set out in Section •8 (6). Asstated above the Manawatu Catchment Board also hasstatus and duties under Section 18 (9) and (10).

Section 21 (1) of Water and Soil Conservation Act 1967provides:

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Act (whether before or after the passing of thisAct) in respect of any specified natural water thesole right to ..'. use natural water is herebyvested, in the Crown ... ."

As you say in your opinion

'There is nothing in Section 18 of the ROLD Act1956 which expressly authorises the trustees, onbehalf 'of the "Maori owners" to have, the sole righto use" the waters of the lake vested intehem.On the contrary, the surface waters weredeclared to be a public domain'

But use rights are, not ownership.

Who may seek a Review action on the-Ownership of thelake: The Domains Board or the Maori Trustees?

You have asked whether the Domains Board currentlyadministering the lake or the Trustees who act on ,behalf of the Maori owners i.e; the Muaupoko people, maybring an action to resolve the present impasse.According-to Section 4 (1) of the Judicature AmendmentAct 1972 an application for review may be sought inorder for the High Court to grant:

'... in relation to the exercise, refusal toexercise-or proposed or purposed exercise, refusalby any person-of a statute of power, any reliefthat the applicant would be entitled to• • •

In the Act 'person' includes a corporation sole andalso a body of persons (incorporated or not) whoexercise, or refuse to exercise a statutory power ofdecision.

It is clear that the Domains Board in exercising itsfunctions in accordance with the provisions ofinitially the Reserves and Other Lands Disposal Act_1956 and more recently the Reserves Act 1977 are the-obvious respondents to any such application and cannotthemselves bring an action to review what are inessence their own actions.

The Trustees of the Muaupoko people however. in thatcapacity are able to bring review'proceedings againstthe Board notwithstanding their membership of theBoard,(as'would be the other organiSations representedon the-Board).- The.Maori-owners clearly throughtheir Trustees can seek to claim that the Board hasnot acted in accordance with 'its statutory powers.

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COnclusiOn

Given that Section 18 of the ROLD Act is to remedy themischief caused by the other Acts. (i.e. taking thelake out of Maori ownership) it would be much moreprofitable to steer this matter away from "ownership"questions and to look at it from the way Maori heldrightS to their lands.

There are a series of important principles to be keptin mind when looking a tenure in Maori 'society. Anexpert in Pacific land tenure systems, Professor RonCrocombe ("An Approach to the Analysis of Land TenureSystems", In: Land Tenure in Oceania, edited byHenry.P Lundsgaarde, pp 1-17; and R G Crocombe: "LandTenure in the South Pacific". In: G Ward, editor, -Man in the Pacific Islands, 1972: 219-251. WAI-27#S3 DOC. 58) (whose work has been affirmed byProfessor Alan Ward and Dr George"Habib on Maori landand fisheries rights before the Waitangi Tribunal) hasthis to say:

1. The term ownership in relation to property ismisleading. It is in common usage in capital-istic societies; but in fact it is not practicedin any society. The term ownership connotesthe absolute possession of all rights of variouskinds by a single party that relate to aparticular property, but there is no tenuresystem in existence anywhere, where this occurs.

Crocombe considers the term ownershipshould be avoided altogether, in preference forthe term rights. Thus, it is not property thatis owned, but rights in relation to property.

2. Crocombe also challenges the view of some peoplewho speak of rights as being held, and who usethe work ownership to refer to the holding bysomeone of a cluster of the most importantrights. He states that "as rights in land areheld at so many different levels and are sowidely distributed,, particularly in tribalsocieties, use of the word ownership tendd tooversimplify a complex reality and to preventunderstanding the'true 'nature of therelationship involved."

3. Crocombe then goes on to identify six kinds ofrights. These are:

First: Rights of, or claims to, direct use.

Second: Rights of indirect economic gain, suchas those to tribute.

12

Third: Rights of control. Rights of use arealmost invariably limited by rights ofcontrol, which are held by personsother than the user.

Fourth: Rights of transfer, which are theeffective power to transmit rights,either those in the property itself orthose attached to it by will, sale,mortgage, gift, etc.

Fifth: Residual rights. These include thereversionary interest acquired in theevent of death of the former rightholders, without descendants orcollateral heirs; or non-compliancewith specific conditions. •

Sixth: Symbolic rights, or rights ofidentification. ("Maori Chiefs, forexample, often named particular placesafter parts of their bodies, thusforming a.symbolic and sacredrelationship between themselves, orthemselves and their people jointly.")

••••

The fact that some of these rights can be held in onepiece of land by various parties underscores the pointthat it is more appropriate to refer to the exerciseof rights, and by whom, than to ownership. It mustalso be noted that each of the rights outlined isassociated with reciprocal duties.

If we analyse Section 18 (5) ROLD Act with thisapproach. in mind then the legislation makesextraordinarily good sense:

The right,to title of the lake bed and landsaffirms the..Tribe as Tan t w nua and overallaffirms their manawhe ua o "e a e (power,influence, prestige, control, authority0Their,rangatiratanga to the lake is moreimportant than who "owns" the 'surface waters.

The Tribe retains the unrestricted use of thelake including fishing rights. This is inkeeping with title and manawhenua.

3. The Tribe has recorded through the legislationan agreement to transfer some of its use rightsto the public. It has also recorded that itwill 'not exercise its own rights in a way whichwill Interfere with the reasonable rights of thepublic.,

13

4. The reasonable exercise by the public of itsrights demonstrates the Reciprocal duties involvedin the grant by.the Tribe of use rights to thelake.

5. The Domain Board with its representatives of theTribe is an acknowledgment by both.Crown andTribe that to accommodate the public's userights, the lake should be appropriately managed.

I think if one takes this view and the debate is movedaway from ownership then there is less likelihood ofCourt action. Without knowing in more detail of whatproblems have surfaced I am unable to give you betteradvice.Thank you for your.instructions. Please do nothesitate to contact us further should you need to doso. Miss Brenda Heather has helped with this opinionand will assist in my absence.

Yours faithfullyS E KenderdineCrown Counsel

1956,No.53 Reserves and Other Lands Disposal 3:10 .

•

ANALYSIS11. Setting apart certain land for thepurposes of Part 111 of tlai Coal MinesAct 1!;25I2. Special pr:e.4 -.ions relating to theSt. Jame,:1 3 . D e c l a r i n g l a n d s , o h j c e t t o

t h e Fut csis Act 1949 to beCrov• l and sub j ec t t o th e L adAct

31941 4 . V a l i d a t i n g a l o a n b y t h e

S t r a t h Taieri Soldiers' 1.11:rco: ialBoa rd and authorising theregistration c.1 a certain mortgagein favour of the Board t h e t r u i sm e t e r w h i c hpotation of the city of Invercargill

1G. V•t•sting certain !and in the Corpo-ration of the Borough e.f Onehunga a..ta reeve:aim-I rc,erve17.1Werti,:g es.chauges Of certain landin the 're . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,gi. Special provisions re‘atins to LakeI 1 , i r o t t . l i m n ] a

19. Authorising the Cmporation ofthe Borough of Balclu tha to se l lpolt•at of a pitdie cemetery

2 0 . A t : l e n d i n g s e c t i o n 5 ( 3 ) o ft h e Paritat1038 in respect of certain landsadjacent to the I;;:rk

21. Alvdishit :g the Ftecton ILION -

fur hoardposal of the said Beard's endow-ment lands and other assets

- 1956, No. 53An Act to provide for the reservation, and other dis-

po:iiiion of usctain reserves, Crown hinds, cndownIcnts, andother laniis, to validate eutnin transactioris, and to make

prov;sion rcspect. of certain. other matters[25 October 1956

Title1 . Shor t T i t l e2 . Au ti:erisi eg the change of put posc

of certain lancl thc Town ofManna

3 . Arriendiug section IG3 of theReserves and Other Lands Di3-po: :a l and I ' .h ie i t tKi ics Ein-powvei6g, Act 1924

4 . Decha in5 portion of the Has:cluckCommonage to be C1 OWn landSTIb ieCt i0 OW hand Act 1948and adding certain other Crownland to the co:Anion:1v

5 . Special ,ns re lat ing to theTaieti River Trust

u. Vesting certain land in the Corpo-ration of the. Borou;.;lt rf Martel--ton subjert to the MunicipalC:orpotations Act 1954

7. RriCinVir: certain land from theproti•nnus of r.ection 39 of theMdori Land Glainis Adjustmentand Laws Amendment Act 1407and vesting that land in the Cor-poration of the City of Wellingtonfor r•:creation parporc3

8. Rep'Aing SeCti011 fi of the WaterSupply Amendment Act 1.013

9. Declaring certain laud ve.ited in theinangahua :'e and Pas-toral Associatior, to bit Crownlaud

10. Vt:.ting certain land in the Corpor...-Lion of the County f We.ulandand validating certain leitsits

.2•••22.•. • .4 ra. ra.01.440;:4 •47..4.11;...14 •

766,No. 53 Reserves and Mho. Lands Disposal 409

(5) The District Land Registrar for the Land Registra.- ionDistrict of Gisborrie is hereby authorised and directed

make such entries in the register books and to do all such idlerthings as may be necessary to give effect to the proisions of this

section.(6) The lands to which this section relates are particularly lescribed as

follows:All those areas in the Gisborne Land District being--

Firstly, Allotment 222 of Section 1, Town of Opotiki, con-;Lining onerood, more or less, and being part of the land :amprised and

described in certificate of title, Volume 67, 'olio 132, GisborneRegistry.

Secondly, Allosalents 220 and 221 of Section 1, Town of Dpoiiki,containing two roods, more or less, and being. part )1 the land

comprised and described in certi6cate or title, Volume 67, folio 132,Gisborne Registry.

Thirdly, Lot 6, D.P. 40.17, being part of Allotment 357 of Section 2,Town of Opotiki, containing thirty-four perches ;etcl two-tenths of a

perch, more or less, and being all the land comprised .iuid described incertificate of title, Volume 111, folio 188, Gisboine Registry.

Fourthly, Lots 12 and 13' D.P. 9115 (AK), being part of Allotment151 of Sect.ion 2, Town of Opotiki, containing one rood twenty-four

perches and twenty-four onc-hundredths of a perch, more or less., andbeine all the laud comprised and described in certificate of title, Volume

97, folio 219, Cisborne Registry.Whereas wider the authority of the I-lorowhcnua Block Act

Special provisions relating to Lake norowhenua189G, the Maori Appellate Court on. the twentieth clay of September, eighteenhundred and ninety-eight, made an Order determining the owneis an)1 relative

shares to an area of thirteen. thousand one hunched and forty acres and onerood, beinq )art of the Horowhenua Xi Block: And whereas die sae area meuices the Horowlrenua Lake (as shown on the plan lodged in the office of the ChiefSurveyor at 'Wellington under Number 15699), a One chain strip around the lake,

the Hokio Stream from the outlet of the lake to the sea, and surrounding land.:And..whereas certificate of title, Volume 121, folio 121, Wellington Registry, "was

issued in pursuance of the said Order: And whereas by Maori Land Court Parti-tion Order dated the nineteenth day of October, eighteen hundred and ninety-

eight, the lake was vested in trustees for

ii

410 Reserves and Oilier Lands Disposal 195G, i'Zo. 53

the purposes of a fishing casement for all members of theMuaupoko Tribe who might then or thereafter own any partof. the Horowhenua XI Block (in this section referred to asthe Maori owners) : And whereas the in minutes of theMaori Land Court relating to the said Partition Orderrecorded that it was also intended to similarly vest the onechain strip around the lake, the Holzio Stream from the outletof the lake to the sea, and a one: chain strip along a portionof the north bank of the said stream,but this was notformally done and whereas the Horowhcnua Lake Act 1905declared the lake to be a public reseve under the control ofa Domain Board ( in this section referred to as the Board ) butpreserved fishing and other rights of the Maori owners overthe lake and the Hokio Stream: And whereas by sectionninety-seven of the Reserves and Other Lands Disposal andPublic Bodies Empowering Act 1916 the said one chain striparound the lake was made subject to the HorowhenuaLake Act 1905, and control was vested in the Board. Andwhereas subsequent legislation declared certain landadjoining the said one chain strip, and more particularlyfirstly described in subsection gthirteen of this section, to foimpart •of the recreation reserve 'and to be under the control ofthis Board. And whereas as a result of drainage operationsundertaken Male years ago en the said Hokio Stream thelevel of the lake was lowered, and a dewat end area was leftbetween the mai gin of the lake after lowering and theoriginal one chair; strip around the original margin of thelake/And whereas this lowering of the lake level createdcertain difficulties in respect of the board's administration andcontrol of the lake, and.. in view of the previous legislationenacted relating to the lahe,fcloubts were raised as to theactual ownership and rillts over the lake and the one chainstrip and the dewatered area:iAnd wliereas a Committee ofInquiry was appointed in 1964 to insestigkte theseproblemsV And whereas the Committee recommended thatthe title to the land covered by die waters of the laketogether with the one chain strip and the said dewatered areabe confirmed by legislation in ownersbjp of the trustees ap-pcliseitecl in trust for the Maori owners And whereas certainother recommendations made were unacceptable to the Maoriowners, and confirmation of ownership and further appoint-.merit of a Domain Board lapsed pending final settlement Ofthe problems affecting the lake: And whereas•by Mann LandCourt Order dated the eighth 4iy of August, nineteen hun-dred and fifty-one, new trustees were appointed for the part•of Horowhenua XI Block in the place of the original trustecs,

No. 53 Reser:vs and Other Lands Disposal 411 •

2n all deceased, appointed under the said Maori Land mrt Order dated thenineteenth clay of October, eighteen Aldred and ninety-eight: And whereasagreement has now en reached between the Maori ownl-ys and other interesteddies in respect of the ownership and control of the existing

the said one chain strip, the said &watered area, the id Halo Streamancl the chain strip on a portion of the .rth bank of that stream, and certainancillary matters, and is desirable and expedient that provision be made togive 'ect to the various matters agreed upon: 13e it therefore acted asfollows:

(1) For the purposes of the following subsections:"Lake" means that area of water known as Lake Horowhertua enclosed

within a margin fixed by a surface level of 30 feet above mean low NvatcrsprIng tides at Foxton Ileads:

"Dewatered area" means that area of land between the original margin ofthe lake shown on the plan numbered S.O. 15609 (lodged in. 1lie officeOf the Chief Surveyor, at Wellington) and the margin of the lake asdefined aforesaid:

"Hokio Stream" means that stream flowing from the outlet of the lakeadjacent to a point; marked as Waikit.7kie on plan numbered 3.0.2358,1: (lodged in the office of the Chief Surveyor, at Wellington tothe sea.

(2) Notwithstanding anything to the contrary of any Act r rule of law thebed of the lake, the islands therein, the dewatcrcd area, and the strip ofland one chain in width round the original boundary of the lake (as moreparticularly secondly described in suhscction thirteen of this section) are herebydeclared to be and to have always been owned by the and the said lake,islands,dewatered area,•andthe strip of land are hereby vested is the trustees'appointed by Order of theMaori Land Ctourt dated the eighth day of august, nineteen hundred and tifty-one, in trust for the said Maori owners.

(3) Notwithstanding anything to the contrary in any Act r rule of Jaw, the bed of the HokioStream and the strip of Ind one chain in width along a portion of the north bank f the saidstream (being the land more particularly thirdly described in subsection thirteen of this section),excepting hereout such parts of the said bed of the stream as may have at any time been legallyalienated or disposed of by the Maori

. .•

412 Reserves and Other Lands Disposal 1956, No. 53

owners or any of them, arc hereby declared to be and to havealways been owned by the Maori owners, and the said bed

of the stream and the said strip of land are hereby vested in thetrustees appointed by Order of the Maori Land . Court datedthe eighth day of August, nineteen hundred anti fiftyo ne , t n

t r u s t f o r t he sa i d Ma o r i o wne r s '(4) Notwithstanding the declaration of any land as being

in Maori ownership under this section, there is hereby reservedto the public •at all times and from time to time the free rightof access over and the use and enjoyment of the land fourthly

described in subsection thirteen of this section.(5)Notwitlistanding anything to the contrary in any Act or rule oflaw, the surface waters of the lake together with the land firstlyand fourthly described in subsection thirteen of this section, arehereby declared to be. a public don lain subject . to the provisions ofPart Ill of the Reserves and Drainage Act 1953:Provided that such declaration Shall not affect the Maori title tothe bed of thr lake (or talc laud fourthly descrilKA in subsectionthirteot of this section:Provided further that. the Maori owners shall at all times andfrom time: to time have the free and unrestricted use of the lakeand the land fourthly described in subsection thirteen of thissection and of their fishing rights its over the lake and theHokio Stream, but so as not to interfere with die reasonable rights ofthe public, as may be determined by the- Domain Board constitutedunder tins section, to use as a public domain the lake and the said landfourthly described.(6) Nothing. herein contained shall in any way affect the fishingrights granted pursuant to section nine of the Horowhenua BlockAct 1896.Subject to the provisions of this section, the Minister of •and7; shallappoint in accordance \eith the Reserves and Domains Act1953 a Domain Board to .control the said domain.Notwithstanding anything to the contrary in the Reserves and.Domains Act 1953, the Board shall consist of

(a) Four persons appointed by the Minister on the recom-mendation of the Muaupoko Maori Tribe: " 2

(b) One person appointed by the Minister on the recom-mendation of the Horowhenua County Council:

(c) Two persons appointed by the Minister on the recom-mendation of the Ievin Borough. Council:

56, No. 53 Reserves and Oiher Lands Disposal

[D] The Commissioner of Crown Lands for the Land District of Wellington, ex

oflicio, who shall be Chairman.(9) Notwithstanding anything- in the Land Drainage Act 303, the Soil.

Conservation and Rivers Control Act 1911, orany other Act or rule of law, the Hokio Drainage floard Instituted pursuant to the

said Land Drainage Act 1908 is hereby abolished, and all assets and liabilities ofthe said ;oar(' ant a, other rights and obligations of the said Board at the

commencement of this Act shall vest in and be ssurned by the Ad.anawatu CatchmentBoard, and until the said Catchment Board shall have completed pursuant to the lollConservation and Rivers Control Act 19), a classification of the lands previously rated

by the said Drainage Board, the aid Catchutent.Board may continue to levy andcollect rates ri the same manner as they have hitherto been levied and collected by the

said Drainage Board.(10) The Mauawatu Catchment Board shall control and improve the Hain Stream

and maintain the lake level under aormal conditions at thirty feet above mean low waterspring tides at Foxton heads:

Provided that before any work: affecting the lake or the Hokio Stream areundertaken by the said Catchment Board, the prior consent of the Domain Board

constituted under thissection to be obtained: '•

Provided further that the said Catchment Board-shall at all times and from time totime have the right of access along the banks of the Holzio Stream and to the tal:e forthe purpose. of undertaking any improvement or maintenance work on the said Team

and lake. 7 , -(11) The District Land Registrar for the Land Registration District of Wellington is

hereby authorised and 'directed to deposit such plans, to accept-such documents forregistration, to make such entries it' the register books, and to do all such other things as

may be necessary- to give effect to the provisions of this section.

I/(12) The following enactments arc hereby repealed: la) Time Horowhenua Lake Act1935:

(b) Section ninety-seven of the Reserves and Other Lands Disposal and Public Bodiesl'..,mpowering Act 1916:

(c) Section sixty-tour of the Reserves and Other Lands Disposal and PublicBodies :Empowering Act 1917:

(d) Section fifty-three of the Local Legislation Act 1926.

. ,- • • .•• .

. •• •

414 Resirncs and Other Lands Disposal 1956, No. 53

(13) The land to which this section relates is particularlydescribed as follows:

ly, all that area in the Wellington Land District, 1-,;:ingSubdivision 38 and part of Subdivision 39 of Horowhenna 11Is

Block, situated in Block 1, Waiopchu Survey District, contain-ing thirteen acres three roods and thhiy-seven perches, moreor less, and being all the land comprised and described in

certificate of title, Volume 165, folio 241, Wellington Registry:as ShOWn on the plan marked L. and S. 1/220, deposited in the

Head Office, Department of Lands and Survey, atWellington, and thereon edged rcd (S.O. Plan 15589).

X Secondly, all that area in the Wellington Land Districtsituated in Block XIII, Mount Robinson Survey District,Block II, Waitohu Survey District, and Block 1, WaiopelmSurvey District, containing nine hundred and fifty-one acres,

more or less, being part of the land comprised and describedin certificate of title, Volume 1.21, folio 121, Wellington)Registry, and being more particularly the bed of the lake, theislands therein, the dewatered area, and the strip of land one

chain wide around the original margin of the hike: as shown onthe plan marked L. and S. 1/220A, deposited in the HeadOffice, Department. of Lands and Survey, at Wellington, andthereon edged blue, and coloured orange and red respectively

(S.O. Plan 23584).

y Thirdly, all that: area in the Wellington Land District situ-ated in Block IV, Moutere Survey District, and Block IT,Waitohu Survey District, containing forty acres, more or less,

being part of the land comprised and described in certificateof title, Volume 121, folio 121, Wellington Registry, and being

more particularly the bed of the Hokio Stream together witha strip Cr land On e chain wide along a portion of the north

bank of the said stream: as shown on the plait marked L. andS. 1/220A, deposited in the Head Office, Department of Lands

and Survey, at Wellington, and thereon coloured blue andsepia respectively (S.O. Plan (::3584).

Fourthly, all that area in the Wellington Land Districtsituated in Block 1 , Waiopchu Survey District, being thatportion of the &watered area together with so much. of theone chain strip of land herein secondly described as in eachcase fronts Subdivision 38, Horowhenua 11 n Block, hereinfirstly described, and being parts of the land coloured oiangcand reel respectively on the. plan marked L. and S. 1/220A,deposited in the Head Office, Department of Lands and

Survey, at Wellington (S.O. Plan 23584).