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• Preface
• Assumptions – Maori Land
• Historical Perspective – Margins Set Out on Crown Land
• Introductory
• Pre 1840
• Post 1840 – Including the Period of Provincial Government 1854-1876

The Law on Public Access Along Water Margins

Preface

Public access to the coast, lakes, rivers and streams for all citizens of New Zealand has been a feature of New Zealand land law and practice from the earliest colonial times. The ideal has proved to be the vital thing rather than some of the imperfect attempts which have been made to express it in practice and in law. The foresight of many of the early administrators and the genuine efforts of their successors have kept the ideal alive – indeed it may have become larger in life than it is at law.

Much has been written on the popularly named "Queens Chain", a concept which never has had a universal legal basis and as a consequence, is popularly misunderstood. Whether the term originates from the instructions given by Her Majesty Queen Victoria to Governor Hobson may be debated but today however, the only matter of significance is the factual position¹. It is clear as a matter of law and of record that the first reservation of a chain along water boundaries was by the direct intervention of Her Majesty the Queen who in 1843 disallowed an ordinance of the Governor and Legislative Council for New Zealand which sought to remove from the law a requirement to lay out a chain strip along the coast². Since then a variety of means have been used to provide public ownership and access along water margins. This paper is designed to illustrate the historical development of the law relating to marginal strips along water, by reference to the statutory enactments which authorised the original retention, or later the vesting on subdivision of marginal strips along the sea coast, rivers and streams and around lakes. Each statutory or quasi-statutory provision is included in the text, or as an appendix together with an explanation of its relevance. All of the definitive statutory provisions which have at any time authorised or impacted upon marginal strips along water are included in full with the aim of achieving an unambiguous statement of the law. As indicated, where appropriate in the text, all of the relevant early ordinances and statutes of the central government of New Zealand have been examined, as have a selection of the relevant ordinances of the provincial governments. One feature is common to all of the early legislation relating to Crown land after 1843 – there were no statutory requirements to reserve marginal strips along water boundaries. What followed in the next fifty years is a unique phenomenon in our land law. The factual reality is that in the period 1840-1892, when most of the "good" land was alienated by the Crown, a chain reservation generally in the form of a public road was laid off along the bulk of the coast and major rivers. This was achieved as land, for which the customary title of the Maori had been extinguished, was granted by the Crown to the settlers. The intended legacy of public access is unfortunately not complete, for there are physical gaps in the reservations in some places and other anomalies such as unexplained omissions which have led to practical problems today. Some difficulties may be explained in an historical context, but are curious nevertheless. For example, as early as 1860 land on the very large Wairarapa coastline was alienated without coastal roads or reserved land³, whereas in the 1870s roads were reserved along sloping cliff-tops on Banks Peninsula. The first example would have produced practical access if reserved land had been taken, whereas in the second, access has been reserved notwithstanding that in practice it cannot be used. The complete ideal of a "Queens Chain" was not realised but in principle it was substantially achieved, providing all of the people of New Zealand with legal access to much of the sea and many major rivers.

The early decades of settlement in New Zealand were troubled times. Tensions between the Governor, and many if not most of the settlers, over land claims, uncertain relations with Maori, procrastination on the part of the New Zealand Company - which failed to provide titles to purchasers - (ultimately the Company failed and in 1851 company lands were returned to the Crown for granting to purchasers), the setting up and abolition of the provinces of New Ulster and New Munster, and the transfer in 1854 of general powers from the Governor to the provinces (including the power to make Crown grants of land), effectively making multiple Crown grant authorities, all contributed to an environment in which uniform practices in relation to water boundaries in Crown grants were not totally achieved.

Assumptions – Maori Land

As a general rule the law and practice relating to reservations of public land along water boundaries do not apply to Maori land⁴. That position is assumed in this paper, based on observed practice and a perusal of statutory law. This observation is made at the outset and the matter is discussed in greater depth in "Maori Land - A Category o its Own". Some statutory exceptions of a relatively minor nature are listed.

Historical Perspective – Margins Set Out on Crown Land

There was no uniform policy expressed in a statute in relation to reservation of public land along water boundaries, until the enactment of s110 of the Land Act 1892. There are four periods in which the concept of provision of a reserved strip along water should be considered prior to 1892.

• pre 1840;
• post 1840, i.e., post the Treaty of Waitangi;
• the period of Provincial Government which ended in 1876; and
• 1876-1892.