Introductory
As much as anything the Queen’s Chain as a principle – an expression of intent – is popularly extracted from the instructions from the Queen to Governor Hobson dated 5 December 1840.
Clause 43 of the instructions said5:
"And it is our pleasure and we do further direct you … to report … what particular lands it may be proper to reserve … as places fit to be set apart for the recreation and amusement of the inhabitants … or which it may be desirable to reserve for any other purpose of public convenience, utility, health or enjoyment … and it is our will and pleasure, and we do strictly enjoin and require you, that you do not on any account, or on any pretence whatsoever grant, convey, or demise to any person … any of the lands specified … nor permit or suffer any such lands to be occupied by any private person for any private purpose."
The instructions do not refer to a strip of water margin land. However, clause 56 required that no land shall be sold "… which the Surveyor-General may report to you as proper to be reserved". There is no evidence that the Surveyor-General opted to reserve all water margin land, i.e., the coast, rivers and streams and lakes. Observed practice throughout New Zealand confirms from early times, that there was partial rather than complete reservation along water boundaries. The early situation concerning reserved land along water is made complex by colonial instructions, which were given to the Governor of New South Wales at a time when New Zealand was a territory of that colony.6 These instructions pre-dated the instructions to Hobson.
Whilst the Colonial Office was preparing the instructions which ultimately formed the Queen’s Instructions of 5 December 1840, a New Zealand Land Bill was drawn up and enacted in New South Wales, in accordance with earlier instructions from the Colonial Office, London. Clause 5 of the bill said:
"… no grant of land is to be recommended which exceeds 2560 acres, unless specially authorised …; or which shall comprehend any headland, promontory, bay, or island, that may hereafter be required for any purpose of defence or for the site of any town or for any other purpose of public utility; nor of any land situated on the sea shore within 100 feet of high water …"
Captain Hobson, who had accepted the position of New Zealand Consul in February 1839, received on his embarkation for New Zealand a letter from Lord Normanby, the then Secretary for the Colonies, which read in part:
"Her Majesty is not unaware of the great natural resources by which that country (NZ) is distinguished … On the other hand the Ministers of the Crown have deferred to the advice of the Committee appointed by the House of Commons in 1836 … in thinking that the increase of national wealth and power promised by the acquisition of NZ would be inadequate compensation for the injury which must be inflicted on a numerous and inoffensive people whose title to the soil in indisputable …"
"The Governor of NSW will, with the advice of the legislative council, be instructed to appoint a Legislative Commission to investigate and ascertain what are the lands in NZ held by British subjects under grants from the Natives ... and it will then be decided by him how far the claimants ... may be entitled to confirmatory grants from the Crown and in what conditions."7
On 16 April 19418 the new Secretary for the Colonies, Lord John Russell wrote to Hobson informing him that, as New Zealand had become an independent colony prior to the passing of the New South Wales New Zealand Land Act, that Act had been disallowed by Her Majesty the Queen. Subject to meeting exigencies the experience of Hobson may have brought to light the New South Wales Act was to be followed as "a safe and proper guide." Her Majesty directed that Hobson postpone the notification of her disallowance of the New South Wales Act and Lord Russell directed that until Hobson received further instructions, the Act would continue in force in New Zealand "… although subject of course to any amendments which may in the interval have been made by yourself with the advice of the legislative council of New Zealand". In June 1841, Hobson repealed the New South Wales Act and the new New Zealand ordinance authorised the Governor for the time being of the New Zealand Colony, to appoint Land Commissioners who were to hear and to validate claims of direct purchase made prior to the Treaty of Waitangi.9 The Ordinance enacted as No 2 on 9 June 1841 (NZ Legislative Council Ordinances 1841-1853 at p5) following in part and substantially re-enacting the New South Wales Act, required by the proviso to section 6 in respect of purchases validated by the Commissioners, that
"… no grant of land shall be recommended by the said Commissioners which shall exceed in extent two thousand five hundred and sixty acres, unless specially authorised thereto by the Governor with the advice of the Executive Council, or which shall comprehend any headland promontory bay or island that may hereafter be required for any purpose of defence or for the site of any town or village reserve or for any other purpose of public utility, nor of any land situate on the sea-shore within one hundred feet of high water mark: Provided also that nothing herein contained shall be held to oblige the said Governor to make and deliver any such grants as aforesaid unless His Excellency shall deem it proper so to do".
In addition to being the first New Zealand enactment to provide for a marginal strip along water, this Ordinance in following Article 2 of the Treaty of Waitangi, provided that all land is exclusively derived from the Crown and thus establishes one of the fundamental principles of New Zealand land law. The preamble to the Ordinance and sections 1 and 2 are reproduced as Appendix 4.
The stance of the Governor and Legislative Council on the requirement for reserving a strip along the seashore was soon to weaken. The following year, Ordinance No 14 was enacted on 21 February 1842 (NZ Legislative Council Ordinances 1841-1853 p112), to amend Ordinance No 2 principally by removing the limitation of area, and prescribing a new formula for describing land adjoining rivers and the sea. Section 5 said:
5. The land to be granted at the recommendation of the Commissioner may be selected by the person entitled to such grant out of the land claimed by him: Provided that the land so to be selected shall be in one block, to be as nearly as possible a rectangular figure the breadth of which shall not be more than half its length: Provided also that when the block so to be granted shall be bounded by the sea or a river, the rectangle aforesaid shall be so placed that the narrow side or breadth shall be bounded by the sea or any such river, and that the length of the rectangle shall run back from the sea or river as near as possible at right angles to their general direction.
There was no area restriction and no requirement to create a 100 foot wide strip along the high water mark. Ordinance No 14 was disallowed by Her Majesty on 6 September 1843. 10 By royal decree the original legislation requiring a coastal reservation was reinstated. Undaunted, the Governor and Legislative Council in session 3 of the Council, in 1844, by Ordinance No 3 amended Ordinance No 2 of 1841, to make formal provision again for the area restriction of 2,560 acres, and also provide for the 100 foot strip along the coast as required by the Queen. The New South Wales Ordinance and the New Zealand Ordinances of 1841 and 1844 were not, however, legislation of general application. They were enacted to apply to land previously purchased directly from Maori by private deeds, and provided a means whereby claims could either be rejected or approved of by the Crown and if accepted as valid, could be perfected by a Crown grant. The NSW Act and the New Zealand Ordinances were therefore of a narrow compass applying to land claims which were reviewed by the Land Claims Commissioners. Except for a handful of claims, the work of the Commissioners was completed by 1862. The concept of a coastal reserved strip (but not for rivers, streams and lakes) had been preserved in New Zealand from the early purchases from Maori by the action of the Crown – the first Queens Chain.
Notwithstanding the occasional purchase of land to low water mark from Maori, the Commissioners nevertheless reserved the full 100 foot strip from high water mark, indicating a strict compliance with the ordinance, the ordinance being preferred over the terms of the deed. A copy of a deed of purchase which was approved as the basis of a Crown grant to Bishop Pompallier excluding 100 feet from high water mark notwithstanding that the boundary in terms of the deed ran "… along the Beach at low water mark …" is included a Appendix 6. A Crown grant when issued is not a confirmation of the terms of the prior deed for a Crown grant is not a deed inter partes. Rather "the statements in it are the statements of the Crown" – Willis v Solicitor General (New Zealand Privy Council Cases 1840-1932) 23 at 31. The boundary along the sea is determined by the terms of the grant.12 The application of a doctrine of coastal reservation dates back to the beginning of New Zealand land law.
The Royal intention to reserve a margin along the coast for the use of the public was made clear. The general expression of an intention as couched in instructions 43 and 56 (supra) in relation to water boundary reservation is not explicit. What is significant today is the fact that following action of the Crown in 1843, over the period 1843-1892 water margins were extensively though not comprehensively reserved by the early administrators of the land law. The importance of these early reservations cannot be over-stressed, for the inclusion of a large proportion of our waterways and the coast in the scheme of marginal reservation kept at bay the English law of private ownership of waterways which would otherwise have applied. 13 The reservations created the ethos so very much a part of New Zealand life that the general public has access to our rivers, lakes and the sea. Many other laws and practices now serve as well, but the law-based origin of the reservation along water boundaries lies in the action of the Crown in 1843.
Pre 1840
Purchases of land from Maori date as far back as 1815, but most were made in 1837 - 1939 when the intention of the Government of England to claim sovereignty encouraged speculators to obtain bargains. These purchases were on a grand scale, and 20 years elapsed before all claims were settled by the Land Claims Commissioners. In his report to the General Assembly dated 8 July 1862 "The Report of the Land Claims Commissioner" Francis Dillon Bell the Chief Commissioner noted at p636 that "The whole extent claimed by all classes (classes of claimants) was 10, 322, 454 acres" and went on to say, however, that "The total quantity of land awarded or granted is 292, 475 acres. He said that the total number of claims numbered 1,376. To these private claims there must be added the 20,000,000 acres claimed by the New Zealand Company. This acreage was reduced by the Commissioner separately hearing this claim, to 283,000 acres. 14 Certified copies of the deeds are published with the report of the Land Claims Commissioner. In some instances the report of the Commissioners on an individual deed is annexed to the copy of the deed. Invariably when the Commissioners approved a grant of the land by the Crown of land fronting the sea, a reservation of 100 feet was made by the Commissioners along the shore of the sea. Most of the early purchases from Maori were bounded by rivers, streams, natural features and the sea. There is no evidence in the deeds or reports of the Commissioners of a reservation of a strip along rivers or streams.
Post 1840 – Including the Period of Provincial Government 1854-1876
The reservation of a coastal marginal strip in Crown grants issued for early private purchases from Maori, was effected by a direction from the Queen. However, neither the colonial administrators in London, nor the early New Zealand administrators in passing the ordinances and statutes of central government, and later, the ordinances of the provincial governments, legislated for marginal reservations along water frontages when land was authorised to be sold by the Crown to settlers. It would be tedious in the context of public access along water margins, to follow the changes and vicissitudes of the New Zealand land laws over the first 35 years of colonial history except in summary form. The law of New Zealand has its origin in the laws of England and the record is not complete without a description of the legal basis for the subdivision and sale of Crown land under powers granted by the Crown.
The most succinct summary available of the historical land law of New Zealand is that given by A E Currie at p96 of "Crown and Subject", Legal Publications, Wellington (1953). Whilst he states the law up to 1953, unfortunately there are some omissions in his text; these have been supplied as indicated in bold type below.
Authority to the Governor to make grants of waste land in the name of the Sovereign and under the public seal of the colony was conferred by the Charter of 1840, the enabling authority for which was the United Kingdom Act of 17th August, 1840, 3 & 4 Vict. C.62. The accompanying Royal Instructions of December 1840 made detailed provision for the sale of land and the issue of grants to purchasers: clauses 37 to 56. Cf. R. v. Symonds, (1847), N.Z. P.C.C. 387 at p.389. By the Australian Waste Lands Act of 1842 (U.K.), 5 & 6 Vict. C.36, s.5, the Governor was directed to convey lands in the name and on behalf of Her Majesty in such form and with such solemnities as might be prescribed by Her Majesty. In 1846, by 9 & 10 Vict. C.104, s.11, passed on the same day as the Constitution Act of 1846, it was declared that the Australian Waste Lands Act of 1842 should no longer apply to land in New Zealand. By clause 14 of the Letters Patent or Charter of 23rd December 1946, issued under the authority of the Constitution Act of 1846, 9 & 10 Vict. C.103, the authorities authorised to issue grants were the Governors of the Provinces of New Ulster and New Munster, using the public seals of their provinces. The 1846 legislation was opposed in New Zealand by the Governor and not put in place and repealed in 1848. The Constitution Act 1852 (UK) in substitution for the Act of 1846 was preceded by the English laws Act 1854 later replaced by the English laws Act 1858 (UK) and subsequently by the English Laws Act 1908 (NZ). The authority of the Governor to make grants of land was conferred by the Letters Patent creating his office. However, subsequent exercise and delegation by the General Assembly of the powers conferred by the Constitution Act appear from the Waste Lands Act 1854, the preambles to that Act, the Provincial Waste Lands Act 1854, and a chain of subsequent legislation – principally the Lands Acts – down to the present day."
The ordinances and statutes of the colonial central government of New Zealand relating to land alienation after 1843, up until and including the introduction of provincial government, are Ordinance No 20, 17 July 1844 Land Claimants Estates; Ordinance No 4, 25 August 1849 Crown Titles; Ordinance No 15, 2 August 1851 New Zealand Company’s Land Claimants; Regulations for the Sale and Disposal of the Waste Lands of the Crown in New Zealand 1853, Waste Lands Act 1854; Public Reserves Act 1854; Provincial Waste Lands Act 1856; Land Claims Settlement Act 1856, Waste Lands Act 1858.
In neither the Imperial legislation nor the ordinances and statutes of the New Zealand Government, with the exception of NZ Ordinance No 2, 1841 (p8 supra) reinstated by Her Majesty Queen Victoria 6 September 1843 and NZ Ordinance No 3, 1844 (p8 supra) (Appendix 7), were there any references to a requirement to lay off reservations along water boundaries. Nor for that matter, was there any truly large scale Crown granting of rural land in the period 1840-1953. In New Zealand in the Making (refer footnote 19, p18) J B Condliffe said:
The first sales in New Zealand were of town sections, for which speculative prices were paid. The revenue derived from land sales in 1841, indeed, though relatively small (£28,540), was more than the total received from sales for the eight years following. After 1842, sales were negligible until they began slowly to pick up in 1848. At the lowest depth of the economic difficulties of the first decade, in 1845, the revenue from this source was only £155. It is to be remembered that land was obtainable also from the Company in its various settlements, but even so, the areas taken up must have been small. In 1852 the total area fenced was only 40,625 acres and the area under crop 29,140 acres…
As far as land sales were concerned, therefore, in this period before self-government, the areas disposed of were small. Both in the Company lands and the Crown lands outside the Company areas, the principle was adhered to of sale at a price not below £1 per acre. No statistics exist which make possible any accurate estimate of the area so alienated.
The example of the decision by Her Majesty to preserve a margin along the coast was no doubt binding on the collective conscience of the Governors, and, later, the land-law administrators in central and provincial government. The extensive, although incomplete, pattern of water margin reservation by employing the device of public roads along water, is a remarkable phenomenon given the absence of statutory backing for the concept. Decisions made subsequently to extend the principle from the coast only to water boundaries along rivers and around lakes, were in keeping with the spirit, if not the letter, of the original instructions by the Queen. Today the only matter of significance is the factual position. The roads legally exist as public roads.
5 This is the instruction to the Governor which may be construed to authorise a reservation of a strip along water boundaries. Clauses 37 to 56 of the Instructions are set out as Appendix 2
6The constitutional basis for an enactment of the New South Wales legislation to apply in New Zealand is set out in Appendix 3 being an extract from the New Zealand Book of Events, Reed Methuen p275.
7 Governor Gipps of New South Wales was given a discretion to impose conditions to apply to Crown grants in New Zealand for land previously purchased from Maori. The area restriction of 2,560 acres (4 square miles) along with the 100 foot (1 chain) coastal reservation originate in the Act he passed.
8 Copies of the letters Lord Russell wrote to Hobson and also to Governor Gipps of New South Wales are included in Appendix 5
9 Claims had in fact been lodged under the NSW Act. These were subsumed into the work of the Commissioners appointed under the New Zealand ordinance.
10 Extracts from Titles of Ordinances (1841-1853). Session 1 1841, 4 Victoria, and Titles of Statutes Session 2, 1841-2, 5 Victoria record the enactment of Ordinance No 2, 1841 and of Ordinance No 14, 1842 and show that the latter Ordinance was disallowed. Ordinance No 3, 1844 is also included. These extracts are included as Appendix 7
11 In about three out of every one hundred deeds considered by the Commissioners (estimated by a reading of the deeds) the seaward boundary is stated to extend to low water-mark. There is extensive use of the sea or the shore of the sea as a boundary not specifying either high or low water.
12 Early legislation also recognised this principle. Take, for example, s48 of the Native Lands Act 1865:
Such grants … shall vest in the persons therein named such estate or interest in the lands therein described as shall be expressed therein subject nevertheless to such restrictions limitations and conditions (if any) as shall be contained therein in manner aforesaid and shall be conclusive as to the particulars limits and extent of such land and as to the proprietors thereof and shall in all other respects have the legal effect and consequences of an ordinary grant from the Crown.
13 The English Laws Act 1858 (UK) provided that the laws of
England as they existed on 14 January 1840 should, so far as applicable to the
circumstances of New Zealand, be deemed to have been in force here on and from
that date.
14 New Zealand in Evolution, G H Scholefield 1909 at
p175.
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
Pastoral House
25 The Terrace
PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
