In a recent judgment, Tūwharetoa Māori Trust Board v Taupō Waters Collective Limited and Attorney-General,[1] the High Court clarified Ngāti Tūwharetoa’s property rights in the Taupō waters.

What you need to know:

• The Court declared that commercial operators on the Taupō waters require occupation or use rights to be granted to them by the Tūwharetoa Māori Trust Board (the Trust Board).
• The Court also decided the Trust Board could charge for granting these rights. Taupō waters includes the beds of Lake Taupō, of parts of the Waikato river, of Huka falls and of other tributaries. The judgment has financial implications for Taupō operators and may set a precedent for other iwi authorities to charge commercial operators who use iwi property.
• The judgment also adds to a growing precedent that customary authority and rights survive other parties’ use of land and waterways.

Case background

Ngāti Tūwharetoa disputed a 1926 Agreement in which the Crown obtained title to Taupō Waters and in 1992 the Crown vested ownership of the Taupō Waters land, and the right to use the waters, in the Trust Board through a deed.

From 1993-2004, the Māori Land Court declared Taupō Waters to be Māori freehold land under Te Ture Whenua Maori Act 1993. A 2007 deed (the Deed) then reaffirmed the vesting. The Deed also established Taupō-nui-a-Tia Management Board (the Management Board) to manage Taupō Waters in partnership with the Crown and create a Management Plan (the Plan).

The Deed reserved the right for public recreational use of Taupō Waters. However, it stated that the Trust Board could grant, and charge for granting, occupation/use rights for commercial structures and activities. The Trust Board negotiated licences with commercial operators and reached agreement with several operators. However, they were unable to agree with others, many of whom formed the Taupō Waters Collective Limited (the Collective). Consequently, the Trust Board applied to the High Court in 2017 for declarations to clarify its property rights and the ability to charge for licensing commercial operators.

Key issues

There were three key issues in the judgment:

• whether a common law right of public navigation existed for Taupō Waters;
• whether exemptions existed for holders of berthing and launching permits; and
• what the role of the Management Board, the management plan, and the Reserves Act 1977 was in licensing.

High Court decision

The High Court held that:

• Under the 2007 Deed, the Trust Board can require commercial operators to get a licence to occupy or use parts of Taupō Waters for commercial activities and to charge for a licence;

• without a licence or an exemption in the Deed, “Commercial Users have no lawful right to occupy or use any part of Taupo Waters for commercial activities”;

• there was no evidence of a right of public navigation;

• the Trust Board’s allowance of recreational use was “an affirmative exercise of customary authority”, not an acquiescence of authority creating a general right of public navigation;

• allowance of recreational uses for the public did not include recreational uses undertaken for commercial gain;

• commercial operators are not exempt because they hold resource consents or because activities are permitted under regional or local plans;

• commercial operators are not exempt from requiring a licence because they hold a berthing or launching permit;

• while Taupō waters was required to be managed as if it were a reserve under the Reserves Act 1977, this was subject to the Deed;

• there was nothing in the Reserves Act 1977 to allow for licensing in this context, so the Deed prevailed and licensing was allowed;

• the right to license lay with the Trust Board as owners, not the Management Board;

• the Trust Board is not required to grant rights for any specific length of time; and

• the right to license commercial operations is not affected by the Plan.

Implications from this ruling

Anticipating the judgment, the Trust Board is now looking to finalise a licensing system and meanwhile has established a registration system for registering commercial operations, filming and photography, and events, which can be accessed here.

The judgment may have significant financial and legal implications for commercial operators, who will now be required to obtain licences for rights to use and occupy the Taupō waters. This will be a new cost for most commercial operators, who may wish to consider engaging with the Trust Board to have input into the licensing system. If you would like assistance with this, please contact one of our experts.

Precedent for Iwi authorities to charge commercial operators

Additionally, while this judgment concerned a specific deed, the judgment may more broadly set a precedent for iwi authorities to charge commercial operators who operate on iwi property. Any ability to charge commercial operators would vary based on the specific property rights of particular iwi authorities. Whether this will become an increasing trend, remains to be seen.

Also of note are the findings that it is an “affirmative exercise of customary authority” for the Trust Board to allow recreational use and that resource consents do not exempt operators from requiring a licence. These findings align with the recent Re Edwards (Te Whakatōhea (No 2)) decision where the Court found that the use of the foreshore and seabed by other parties, including the granting of resource consents, did not extinguish customary rights under Marine and Coastal Areas (Takutai Moana) Act 2011.[2] This may signal a general trend in the Courts to better recognise how customary authority/rights can grant use rights to others, while remaining intact.

Special thanks to Madeline Ash for her assistance in drafting this article.