Land rights implications of Taramakau decision

Press, 11 February 1983, Page 21

Land rights implications of Taramakau decision

By

OLIVER RIDDELL

The implications of the Court of Appeal decision last year on plans to dredge the West Coast's Taramakau River are now being evaluated ' and digested by all involved in water and soil matters.

A writ had been issued in the High Court by a Kumara farmer. Mr Passmore Stewart, against the Kaniere Gold Dredging Co.. Ltd. and the Westland Regional Water Board claiming damages on the grounds that the company’s dredging operations were without lawful authority in that they required a water right ot divert the Taramakau.

This resulted in a case stated being taken to the Court of Appeal.

Kaniere obtained a mining licence in 1977 to dredge for gold in the bed of the river, and on land belong to Mr Stewart. However, the mining licence stipulated that the licensee obtain “any necessary water rights,” and this led the company to consult the Water Board on what rights would be required. The board required only

that rights be granted for the taking and discharge of water used in washing the tailings but it did not require any right to divert the river, in line with board policy. This is that anyone wanting to realign the river within the actual bed. or where a realignment of the river is within the true river bed. where the river has flowed at some time in the past, then no water right is needed.

Mr Stewart appealed unsuccessfully against the granting of rights to take and discharge. In its decision, the Planning Tribunal said — if the work involved was a “diversion” under the legislation, then such activities would be illegal and could be terminated unless a water .right had been -obtained. This led Mr Stewart to issue a writ to the High Court, asking it to decided whether the river work was a “diversion” for which a water right was required. The High Court decision

was that the sole issue lay in whether the work proposed amounted to a "diversion" of the river or a "realignment.” This question revolved around whether the work was being carried out within the river bed. or whether it involved a re-routing of the river bed. It was found that: ‘The work to be undertaken by the dredging company is to be carried ou within the bed of the river, or at least its flood channel, with the result that there is no ‘diversion’ of the river which would require a grant of water rights.” The Court of Appeal agreed with the High Court that the “banks” of a river are “the banks to which it extends when in flood,” but disagreed that this was the correct test to apply when considering whether or not a “diversion” had occurred under section 21 (1) of the Water and Soil Conservation Act, 1967. The Court of Appeal considered that the crucial words in the Act were “to dam any river or stream, or to divert or take natural water”. The question was not whether a river or stream had been “diverted” but whether “natural water” had been “diverted.” The Court of Appeal also pointed out that the short and long titles of the Act were concerned with the conservation of soil as well as water, - and specifically included among its objects “promoting soil conservation and preventing damage by flood and erosion.” In conclusion, the Court of Appeal considered that if the effect of “re-aligning” the normal course of a river would be to flood continuously and permanently, or at least for years, a considerable tract of land previously used for farming, then this was an example of the kind of “diversion” that required a water right. Whereas a minimal change in course of a normal channel of “natural water” could no doubt be regarded as outside the purview of the Act, this case was one where there was a change of course that could only be treated as “signficant.” One of the Judges also concluded that any interference, of a “measurable or significant kind” with rivers, streams or “natural water,” would require a water right. This decision implies that if water is being interfered with in a “significant” manner or if anyone is being “significantly” affected by the “diversion,” then a water right is required. This has important implications for all river protection and flood control works, including irrigation schemes, and implies that at least some of these works will require water rights in the future. Mr Stewart owned three blocks of land along the Taramakau River. He claimed all would be affected by the dredging company’s proposals. He has established rights for landowners along river banks that had not been clearly recognised before.