PAKI & ORS AS TRUSTEES OF THE POUAKANI CLAIMS TRUST AS THE MANDATED REPRESENTATIVES OF THE POUAKANI PEOPLE V ATTORNEY-GENERAL HC HAM CIV 2004-419-17

PAKI & ORS AS TRUSTEES OF THE POUAKANI CLAIMS TRUST AS THE MANDATED REPRESENTATIVES OF THE POUAKANI PEOPLE V ATTORNEY-GENERAL HC HAM CIV 2004-419- 17 30 July 2008IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2004-419-17BETWEEN JOHN HANITA PAKI, TORIWAI ROTARANGI, TAUHOPA TE WANO HEPI, MATUI MAMAE PITIROI AND GEORGE MONGAMONGA RAWHITI AS TRUSTEES OF THE POUAKANI CLAIMS TRUST AS THE MANDATED REPRESENTATIVES OF THE POUAKANI PEOPLE Plaintiffs AND ATTORNEY-GENERAL OF NEW ZEALAND FOR AND ON BEHALF OF THE CROWN Defendant Hearing: 5, 6, 7, 12 and 13 May 2008 Appearances: Ian Millard QC and Miharo Armstrong for Plaintiffs Helen Aikman QC, Andrew Beck and Damen Ward for Defendant Judgment: 30 July 2008JUDGMENT OF HARRISON JIn accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of 4:30 pm on 30 July 2008_________________________________________________________________________________ SOLICITORS Rangitauira & Co (Rotorua) for Plaintiffs Crown Law (Wellington) for Defendant COUNSEL Ian Millard QC; Helen Aikman QC; Andrew BeckTable of Contents Paragraph No. Introduction [1]Waikato River [8]History [11](a) Pouakani No 1 [16](b) Pouakani B6 and B6A [18](c) Pouakani C3, B8 and B10 [20](d) Pouakani B6E [22](e) Pouakani No 2 [23]Pouakani People's Claim [25]Jurisdiction(1) Justiciability : PCSA (a) Introduction [32](b) Settlement of Fiduciary Duty Claims [36](c) Settlement of Waitangi Tribunal Claims [37](d) River Claims Exception [42](2) Standing [49](3) Navigable River (a) CMAAA [59](b) Ad Medium Filum [63](c) Pouakani Case [70](i) Divisibility Test [71](ii) Segmented Test [80](d) Factual Inquiry [88](e) Conclusion [103]Fiduciary Relationship [108](1) Treaty of Waitangi (a) Pouakani Case [109](b) Principles [111](c) Relationship (i) Statutory Framework [116](ii) Self-Dealing [121](iii) Postscript [127](d) Disadvantage, Vulnerability and Unequal Bargaining Power [129](e) Canadian Authorities [135](2) Extinguishment of Customary Title [142]Breach [156]Relief [157]Limitation Act 1950 [167]Laches and Acquiescence [175]Decision [178]Introduction[1] The history of this proceeding and the commitment of those responsible for it reflect the spiritual importance of the underlying issue to a significant group of Mäori. [2] The descendants of the hapu who collectively constitute what are known as the Pouakani people have long held grievances about the alienation of their lands abutting the upper reaches of the Waikato River and of the adjoining riverbed. That land, which runs continuously for about 20 miles, was acquired progressively by the Crown between 1887 and 1892. Nearly a century later the Pouakani people sought redress through the Waitangi Tribunal, the Mäori Land Court and this Court, culminating in the Crown's agreement to settle land and riverbed claims on terms embodied in a deed of settlement and in the Pouakani Claims Settlement Act 2000 (the PCSA). Included within those terms were an apology from the Crown, payment of monetary compensation, return of lands and an acknowledgement that the Crown was released and discharged from liability for any Pouakani claims. [3] Nevertheless, despite the settlement, representatives of the Pouakani people have since issued this proceeding, claiming a beneficial interest in the length of the riverbed adjoining their former land. The representatives allege that the Crown was in a fiduciary relationship with the original Mäori owners; that the Crown owed an incidental obligation to advise those owners before acquiring their land of the principle of usque ad medium filum aquae – that is, the legal title to the land ran to the riverbed's mid point – and to obtain their informed consent to the transactions; and that the duty was breached. The representatives seek a declaration that the Crown holds the relevant area of the riverbed on a constructive trust subject to specific terms. [4] The Crown denies the existence of a fiduciary relationship or of a breach of an obligation to advise. It also raises affirmative defences of limitation, laches and acquiescence and its subsequent alienation of part of the bed to third parties. However, three jurisdictional issues require determination before the Crown'ssubstantive defences are considered: (1) whether or not the representatives' claim is itself justiciable given the terms of the PCSA; (2) whether the current plaintiffs have status to pursue the claim; and (3) whether the Waikato River was navigable in 1903. If that final touchstone seems obscure, it is because a little known statute was enacted then – the Coal Mines Act Amendment Act 1903 (the CMAAA) – which provided that the beds of all navigable rivers 'shall be deemed to have always been vested in the Crown': s 14. Mr Ian Millard QC accepts the Pouakani people's claim must fail if the Waikato was then 'a navigable river'. [5] The factual difficulties faced by a Court in 2008 in attempting to determine whether the Waikato River was a navigable river over a century ago or whether a party owed or more particularly breached a fiduciary duty even earlier do not require emphasis. In the absence of direct evidence from witnesses involved in the relevant transactions, both sides have relied on the less perfect process of drawing inferences from contemporaneous documents. Each called experts and a large volume of documentary material was also produced. [6] One important witness was absent. Mr John Paki was the driving force behind this litigation. He died last year. It is appropriate to acknowledge his commitment to the Pouakani people's cause. [7] It is necessary first to set the historical context for this claim and to summarise its nature before considering the jurisdictional issues, the substantive allegation of breach of fiduciary duty and the affirmative defences.Waikato River[8] The Waikato River is central to this proceeding. It is one of New Zealand's major waterways. Its true source is said by some to be on the northern slopes of Mt Ruapehu in the central North Island from where it feeds as the Tongariro River into the southern end of Lake Taupö. The water intermingles with waters from a number of other sources before exiting the lake at its northern end some 30 miles away. Its outlet at that point is generally regarded as the start of the Waikato River which runs 204 miles to the sea at Port Waikato (all references to distances in thisjudgment will be in miles rather than kilometres as that was the form of measurement used in all relevant documents and by witnesses). [9] The Waikato River is and always has been of great spiritual and cultural importance to Mäori. It is the taonga or treasure of the Tainui and Ngati Tuwharetoa iwi. Its significance in Mäori mythology was summarised as follows by Sir Apirana Ngata following his visit to the Waikato district in 1900: Waitangi Tribunal Report, the Pouakani Report, Wai 33 1993 at 291-292:There the Waikato River wends its way often splitting the very sources of the earth to be disgorged into the West Coast. Te Heuheu at Tongariro has the source, where legend has it a taniwha smote the rock and out of it gushed forth the river Waikato to make for itself a path through the lake of Taupo. Eschewing the Arawa domain, it wends its way, gathering strength from its many tributaries until at Ngaruawahia it is joined by the Waipa which in its turn has gathered in all the Maniapoto tributaries, and thus reinforced, it flows by Taupiri and makes for the Tamaki River – Tamaki Makaurau. Alas it is diverted by the land formation and disgorges through the sandy wastes of the West Coast into the ocean[10] The river has also had great social and economic importance to Mäori. It was a highway for the traditional form of travel by waka or canoe. People and goods were transported by this means. It was also a rich food source or gathering place. The fish included native trout, eels and freshwater crayfish, and birds inhabited banks and swamps.History[11] This case involves five distinct blocks of land. All were part of the original Pouakani block and are located near the town of Mangakino adjoining the Waikato River on its true left bank; that is, on the left bank looking downstream. The land runs between the river's confluences with the Waipapa Stream, the downstream boundary of Pouakani B6E, and the Waipapa River. (A crude map depicting the river and its physical relationship to the land is annexed.) The strip starts 60.4 miles downstream from the control gates at the outlet of Lake Taupö and runs to 82.2 miles from that point.[12] The Native Land Court was established in 1864 for the purpose of ascertaining legal ownership of Mäori land held according to customary title. Members of the interested hapu first approached the Court relating to the Pouakani block in December 1883 as part of a wider application to mark external boundaries by survey of large areas north of Lake Taupö. This step followed an application by the owners of the nearby Maraetai block to the Court for ascertainment of title in 1881. By 1884 all the lands to the east and north of the Pouakani block had been dealt with by the Court. [13] The original Pouakani block totalling 122,350 acres was created by the Native Land Court in 1886 as part of its hearings into the Tauponuitia block, initiated by Te Heu Heu Tukino and others on behalf of Tuwharetoa. The block was subdivided into five parcels in September 1887, namely the Pouakani No 1, Pouakani No 2, Pouakani, Kaiwha and Hapotea blocks. But the Native Land Court Acts Amendment Act 1889 nullified those subdivision orders except for that creating the Pouakani No 1 block. [14] The Native Land Court reinvestigated and reheard claims to the whole Pouakani block (except for Pouakani No 1) in 1891. The block was subdivided into 25 parcels in August 1891. Several were further subdivided in 1899. For the purposes of this proceeding the relevant post 1891 blocks are Pouakani No 1, B6 (and its later subdivision B6A), C3, B8 and B10 and Pouakani No 2. [15] The history of these blocks is as follows:(a) Pouakani No 1[16] On 19 September 1887 the Native Land Court ordered that Pouakani No 1, adjoining the river in the Mangakino/Whakamaru locality and totalling 20,000 acres, vest in the Crown in a state of freehold for payment of survey and other costs which amounted to £1,650. On 24 September 1887 the Court declared Pouakani No 1 to be the property of the Crown. The block contained 20,000 acres and for sale purposes was valued at 2 shillings per acre, giving a total value of £2,000. The Crown land purchase officer paid the £350 difference between the value of the block (£2,000)and the cost of the survey (£1,650) to 17 Mäori some time on or before 20 September 1887. [17] The Court had recognised claims from three tribes but rejected those made by two others. It also allowed claims by individuals linked by descent to those hapu, provided they could prove occupation. While the Court did not award Pouakani No 1 to any individual Mäori because it was instead vested directly in the Crown, it nevertheless recognised 192 owners. A notice later declared that the Crown had acquired this block pursuant to the North Island Main Trunk Railway Loan Application Act 1886: New Zealand Gazette (1892) p1304.(b) Pouakani B6 and B6A[18] Pouakani B6 was created in 1891 with 242 owners. The Crown purchased the interests of 162 of the owners (amounting to interests equivalent to 16,916 acres) under Auckland Deed 3246 and subsequently sought to partition out the interests it had acquired. The total purchase price was paid over a six year period. The Native Land Court confirmed the purchase by issuing an order for Pouakani B6A on 25 July 1899. [19] This block contained the majority of the land adjacent to the Waikato River in the former Pouakani Block (the exception being Pouakani B6E, which was not sold). A notice later declared Pouakani B6A to be Crown land: New Zealand Gazette (1900) p105.(c) Pouakani C3, B8 and B10[20] The Pouakani C3, B8 and B10 blocks were purchased by the Crown under Auckland Deed 1809 dated 12 March 1892. The titles to C3, B8 and B10 were awarded to one, six, and 20 individuals respectively. On 13 September 1893 these blocks were included within certificate of title SA67/267 that was issued to the Crown. A notice later declared that the Crown had acquired these blocks pursuant tothe North Island Main Trunk Railway Loan Application Act 1886: New Zealand Gazette (1894) p170. [21] None of the plaintiffs, or their ancestors, has owned any part of Pouakani 1, B6A, C3, B8 or B10 since 1892. These blocks became part of a Crown land bank to provide security for the costs of constructing the Main Trunk Railway but were never used for that purpose.(d) Pouakani B6E[22] A 100 acre portion of land in the north west of Pouakani B6 and fronting the river known as Pouakani B6E was not included in the 1899 sale to the Crown. This block remained in the hands of descendants of its original owners until its river frontage was exchanged for adjacent Crown land in 1952. The riverside land was declared Crown land in 1969: New Zealand Gazette (1969) p1786.(e) Pouakani No 2[23] In 1915 the river frontage strip of Pouakani C3, Pouakani B8, and part of Pouakani No 1 was vested in Wairarapa Mäori in satisfaction of the Crown's promises in the Wairarapa Lakes Agreement of 1896. The area exchanged became known as Pouakani No 2. Part of it was taken in 1949 under the Public Works Act 1928 for the development of waterpower: New Zealand Gazette (1949) p2491. [24] The remaining Pouakani No 2 river frontage was taken in 1963 under the Public Works Act 1928 for the development of waterpower: New Zealand Gazette(1963) pp1071-1072. Part Lot 1 DPS 89539 was transferred to Mighty River Power Ltd (a wholly Crown owned enterprise) in 2003, and section 23 Block XI Whakamaru Survey District is vested in Taupo County. Otherwise the Crown holds the balance of the land.Pouakani People's Claim[25] The representatives of the Pouakani people plead that the Crown owed the original owners a fiduciary duty emanating from a combination of: (1) the provisions of the Treaty of Waitangi; (2) the relationship between the Crown and indigenous people at the times of acquisition and sale; (3) the Crown's pre-emptive right vested by statute to purchase an area including the Pouakani lands, preventing sale to other parties and the Pouakani people from testing the market and resulting in a less than fair price (I might interpolate, though, that this is not a claim for compensation for underpayments); and (4) the disability of the Mäori owners of the lands by virtue of their use of Te Reo Mäori as their primary language, their lack of education except in tikanga and other matters Mäori, and the absence of the benefit of legal advice. [26] The representatives plead that, as a result of these four factors, the Crown as a party to the Treaty had a duty to act reasonably and in good faith towards Mäori (with a reciprocal obligation on Mäori); and had fiduciary obligations or at least obligations akin to fiduciary obligations to the Mäori owners of the Pouakani lands in its dealings with them. [27] These obligations included the duty to deal fairly and equitably and further to (1) only extinguish native rights (including to the beds of the rivers) on fair terms; (2) ensure that free and informed consent was obtained before extinguishing native rights (including to the beds of rivers); (3) explain the exact nature of the dealing when dealing with native rights, particularly rights to the riverbed when such rights are based on legal concepts alien to Mäori (including that the purchase of dry and visible land includes land under water and the concept that a river can be divided into two based on the ad medium filum rule (itself an arcane term unlikely to be known to Mäori at the time)); (4) to obtain the specific and informed agreement of the Pouakani people to take the bed of the Waikato River to the extent that it adjoins the river land; and (5) ensure that proper compensation is paid for loss of native rights (including to the beds of rivers).[28] The representatives say that the Crown breached its obligations because with full knowledge of the ad medium filum principle its representatives (1) failed to explain to the original owners the significance of the principle and its effect on their ownership and/or rights of use of the Waikato River and its bed from Atiamuri to the Waipapa Stream when presenting material to the Native Land Court in 1887 when Pouakani 1 was vested in the Crown; (2) acquiring Pouakani blocks B10, C3 and B8 by purchase and then confirming such acquisitions in the Gazette; and (3) failing to obtain the owners' informed consent to the transactions. [29] As a result, the representatives say the original owners 'failed to retain the land under the river adjoining the Pouakani land'. I construe this enigmatic pleading as an allegation that, but for the Crown's failures, the original owners would not have entered into the transactions of sale. [30] The representatives seek the remedy of a declaration that, to the extent the Crown has claimed ownership of the bed of the Waikato River adjacent to the five blocks of land under the principle of ad medium filum, it holds the riverbed as constructive trustee for the Pouakani people on terms that the Pouakani people: (1) have access to and use of the riverbed adjoining the land; (2) be consulted on all uses of the river in that area; (3) receive any benefits whether by payment or otherwise that the Crown or anyone claiming through it directly or indirectly obtains or has obtained from using the rights to the bed; and (4) be entitled to call for the lands' return. [31] I shall now address each of the three jurisdictional issues.Jurisdiction(1) Justiciability : PCSA (a) Introduction[32] First, Ms Helen Aikman QC for the Crown submits that the representatives' claim predicates a relationship of an imbalance of power between Mäori and the Crown arising from the economic and social consequences of colonisation and the passage of laws without Mäori consent. The evidence given for the Pouakani people at trial, she observes, relates to grievances which are familiar to the Waitangi Tribunal whose jurisdiction and processes are specifically designed to deal with historical complaints that would otherwise be time barred. In substance, Ms Aikman says, this claim seeks a remedy for a breach of the Treaty of Waitangi and is suitable for resolution as a Treaty claim but the issues are consequently non-justiciable when pursued in this jurisdiction. [33] In my judgment there is a more fundamental objection to the justiciability of the representatives' claim. The PCSA expressly records that the settlement is final and releases and discharges the Crown 'from any obligations, liabilities and duties in respect of [the Pouakani boundary claims and the Pouakani historical claims] ': s 12(1). The Act also bars a Court or judicial body from inquiring into or making a finding in relation to any of 'Pouakani historical claims': s 12(3). That term is expressly defined as follows: s 10:(1) In this Act, Pouakani historical claims means— (a) all claims (whether or not researched, registered, or notified) made at any time by a Pouakani claimant and— (i) founded on rights arising from the Treaty of Waitangi, the principles of the Treaty of Waitangi, statute, common law (including customary law and aboriginal title), fiduciary duty, or otherwise; and (ii) arising from or relating to acts or omissions before 21 September 1992— (A) by or on behalf of the Crown; or (B) by or under legislation; and (b) all of the claims referred to in the Wai 33 and Wai 405 claims to the Waitangi Tribunal, including— (i) the claims of 27 March 1987; and (ii) the amended statement of claim of 23 October 1987 referred to in Appendix 2 of the Waitangi Tribunal Report 1993 (The Pouakani Report 1993 (Wai 33)); and (iii) the addendum to the amended statement of claim dated 27 April 1989 and referred to in Appendix 2 of the Waitangi Tribunal Report 1993; and(iv) the claims of 21 October 1993.(2) In this Act, Pouakani historical claims does not include any claim by a Pouakani claimant to the Waikato River.[Emphasis added][34] A 'Pouakani claimant' is defined as: s 9:(a) the Pouakani people: (b) 1 or more individuals, whanau, marae, or hapu of the Pouakani people: (c) the Pouakani governance entity: (d) the Pouakani Claims Trust: (e) a trustee of the Pouakani Claims Trust: (f) a person acting on behalf of any 1 or more persons or groups referred to in paragraphs (a) to (e): (g) a person acting on behalf of any 1 or more persons who comprise a part of, are beneficiaries of, or are members of, any 1 or more persons or groups referred to in paragraphs (a) to (e)[35] The 'Pouakani people' are defined as: s 9: all of the individuals who are the descendants, as determined by the Maori Land Court, of the original owners of the Pouakani Block, being— (a) the owners included in Schedule 1 of the deed of settlement, as identified by that Court in a judgment dated 4 August 1891 and recorded in Waikato Minute Book, Volume 27, Folio 177 to 184 inclusive, Volume 28, Folio 2 to 27 and 32 to 34 inclusive; and (b) the descendants included in Schedule 2 of the deed of settlement, as identified by that Court in an order dated 11 May 1959; and (c) any other person accepted by that Court as being a descendant of the original owners of the Pouakani block.(b) Settlement of Fiduciary Duty Claims[36] The representatives' claim in this proceeding falls squarely, in my judgment, within the scope of both alternative limbs of s 10(1). That provision, by use of the phrase 'at any time', extends to future claims. In terms of the first or general statutory limb, this claim is founded solely upon breaches of a fiduciary duty allegedly relating to and attaching at the time of the Crown's dealing with theoriginal owners and acquisition of the Pouakani land between 1887 and 1892: s 10(1)(a)(i). And the Crown's alleged omissions occurred about a century before 21 September 1992: s 10(1)(a)(ii). The representatives' claim is expressly barred by s 10(1)(a).(c) Settlement of Waitangi Tribunal Claims[37] Alternatively, in terms of the second or specific limb, in August 1989 the Waitangi Tribunal heard a wide-ranging substantive application by Mr Paki on behalf of the Pouakani people arising from the Crown's acquisition of their land: s 10(1)(b). That claim, Wai 33, was brought under the Treaty of Waitangi Act 1975 and was referred to in the preamble to the PCSA and in s 10(1)(b). The Pouakani people's amended statement of claim before the Tribunal included what is described as an addendum which relevantly pleaded:2. THE Pouakani Block as originally decreed contained land adjacent to the Waikato River. The loss of this land is prejudicial to the Claimants in that their valued taonga, the riverbank lands, has been taken and destroyed, and has further caused the Claimants to lose possible rights to the bed of the river as riparian landowners. 4. SECTION 261 of the Coal Mines Act 1979 [the successor to s 14 CMAAA] vests the bed of any navigable river in the Crown. This section and its antecedents are a breach of the principles of the Treaty of Waitangi, and, to the extent that it deprives the Claimants of their rightful interests in the bed of the Waikato River, is prejudicial to the Claimants.[38] The addendum sought this relief:(b) Recognition of the Claimant's interests in ownership and management of the river. (c) Compensation for the Crowns' [sic] acquisition of the bed of the river. (d) Repeal of Section 261 of the Coal Mines Act 1979.[39] The Pouakani people's claim to the riverbed is the addendum referred to in Appendix 2 of the Tribunal report and is expressly identified as a Pouakani historical claim: s 10(1)(b)(iii). While the riverbed claim brought in Wai 33 was not based upon an allegation of breach of fiduciary duty as pleaded here, the nature of thecause of action is immaterial to the meaning of the term 'the claims' where used in s 10(1)(b): a claim is an assertion of a right or a demand for a remedy or relief: seeWest Wake Price & Co v Ching [1956] 3 All ER 821 at 829-830, Devlin J. [40] The assertions or demands made in Wai 33 and this proceeding are materially the same. Wai 33 sought recognition of 'interests in ownership and management of the river'. That is a less sophisticated but nevertheless legally identical demand to the relief sought in this Court, namely a declaration that the Crown holds the riverbed as constructive trustee for the Pouakani people on terms including rights of access, of consultation and to call for return of ownership. [41] Furthermore, both claims share the same ultimate objective of financial compensation. In Wai 33 the Pouakani people demanded compensation for the Crown's acquisition of the riverbed (which was in fact paid pursuant to the PCSA). In this proceeding the representatives seek as terms of the constructive trust, among other things, 'any benefit whether by way of payments or otherwise that the Crown has obtained from using the rights to the bed'. That is in essence a demand for an account for profits. I am in no doubt that this claim is materially the same as the Pouakani historical claim in Wai 33, referred to in Appendix 2 of the Tribunal report, which was settled by the PCSA. As a result this proceeding is statutorily barred.(d) River Claims Exception[42] Mr Millard seeks to avoid this consequence by relying on s 10(2), the provision reserving to the Pouakani people the right to pursue 'any claim to the Waikato River'. The term 'Waikato River' is not defined in the PCSA or the deed of settlement. Some support for Mr Millard's argument might be found in Cooke P's adoption in Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 27 of descriptions in two previous Tribunal reports of the concept of a river as being taonga – 'a whole and indivisible entity, not separated into bed, banks and waters'. But determination of this question is one of statutory interpretation, requiring s 10(2) to be read consistently with and subject to the express exclusion found in s 10(1)(b)(iii). The two provisions are not necessarilyinconsistent and can sensibly be read together: Stewart v Grey County Council[1978] 2 NZLR 577 (CA) per Richardson J at 583. [43] Parliament's intention is clear. The PCSA was to constitute a final settlement of all claims then notified and considered by the Tribunal in its 1993 report and of all future claims relating to that subject matter. Expressly included within the settlement was the Pouakani people's claim for legal recognition of an interest in the riverbed and compensation for its loss. The same remedy is sought here, and its pursuit is contrary to the spirit and purpose of the PCSA. [44] The effect of s 10(2) is, in my judgment, to preserve a right to the Pouakani people to bring a claim within the unique jurisdiction of the Tribunal for relief relating to the river other than for a compensatory or proprietary right for loss of the bed, providing that such a claim does not seek to raise questions settled by the PCSA: s 13. A claim of that nature was apparently contemplated by s 8(2)(a) Waikato Raupatu Claims Settlement Act 1995, which gave effect to provisions in a deed of settlement between the Crown and the Tainui people. A subsequent agreement in principle to settle historical claims by Tainui relating to the Waikato River focused on rectifying damage done to the river through pollution, lack of consultation afforded to the Tainui people and recognising and rectifying their separation from the river. [45] Similarly, s 10(2) recognises the Pouakani people's right to pursue a spiritual or non-proprietary claim against the Crown. To hold otherwise and allow this claim to proceed would neutralise or negate the Crown's express release and discharge 'from any obligations, liabilities, and duties in respect of [the Pouakani historical] claims': s 12(1). I am satisfied that the Pouakani people's claim is not justiciable by virtue of ss 10 and 12 PCSA. [46] A contrary interpretation of s 10(2) would lead to an incongruous result. The pleaded basis of the representatives' claim is that the Waikato River including the adjoining Pouakani land and the riverbed have deep spiritual and cultural meaning for them. The representatives broadly allege, on the applicable 'but for' test of causation, that the original owners would not have proceeded with the transactions ifthe Crown had discharged its fiduciary obligations. The sales did proceed, however, and the representatives do not pursue the remedy of rescission (although among the proposed terms of the constructive trust are a prayer for return of the land). Mr Millard confirms that the Pouakani people's representatives do not attack what he calls 'the primary bargain' : the sale of the 'visible land' between 1887 and 1892. He accepts that the PCSA precludes this right. The Native Land Court's orders, in particular vesting Pouakani No 1 in the Crown, independently have that effect. [47] Mr Millard's submission that the representatives' right remains to claim for loss of the riverbed appears misconceived. Any fiduciary duty owed by the Crown would attach to each block of the subject land as a whole. The consequences of its breach are indivisible. Either a sale of a block or blocks of land, which on Mr Millard's argument included part of the riverbed based on the presumption of ad medium filum, can be rescinded or set aside for breach of a fiduciary duty; or, if not, the legal representatives of the original owners retain a right to damages for the loss of value and possibly an account for profits. [48] The PCSA prohibits the Pouakani people from now asserting that the blocks of land were sold at an undervalue. It is thus artificial to argue that the statutory prohibition on further monetary claims is restricted to visible land when on Mr Millard's argument the titles included part of the riverbed. I cannot follow how in these circumstances a fiduciary duty or more importantly a loss giving rise to a remedy following its breach attaches to a divisible part of an unchallenged or unchallengeable transaction. These conceptual difficulties suggest an attempt by the representatives to define the relationship by using the remedy of a constructive trust, and employing the fiduciary label to justify the result: LAC Minerals v International Corona Resources Ltd [1989] 2 SCR 574 per La Forest J at 652.(2) Standing[49] Second, Ms Aikman submits that the nominated plaintiffs have no right or standing to pursue this claim. She submits that they are not the legal representatives of the original owners of the land because they have failed to show that any or all of them have a legal right which has been infringed by the Crown.[50] The four surviving plaintiffs are drawn from a group of eight appointed by the kaumatua representing the potential beneficiaries of the settlement of Pouakani claims. A formal deed of mandate dated 14 October 1997, which the Crown recognised for the purpose of entering into the deed of settlement on 19 November 1999, records their appointment. The deed of mandate identified the claims for which the Pouakani people sought a remedy, including:2 Waikato RiverThe Waikato River forms part of the boundary of the Pouakani block. This section of river was non navigable prior to construction of hydro electricity dams. The boundary of Pouakani is and was the centre of the river. Our share of the riverbed has not been acquired by the Crown and still belongs to the Pouakani people. Our people were not consulted prior to the construction of four hydro dams that now flood areas of spiritual significance to our people. 5 Associated DisputesIt is our wish to achieve settlement of all grievances and disputes relating to the Pouakani land.[51] The Pouakani Claims Trust was formed on 10 March 1998: to administer the funds and the costs associated with the negotiations to settle the claim and to distribute the proceeds of any final settlement amongst the appropriate beneficiaries.[52] The surviving plaintiffs together with three others including Mr Paki were appointed as trustees. The same seven signed the deed of settlement with the Crown 'as trustees of the Pouakani Claims Trust as the mandated representatives of the Pouakani people'. Two of those trustees as well as Mr Paki have since died. The four surviving plaintiffs are nominated in this proceeding as the mandated representatives of the Pouakani people recognised under the PCSA's provisions. [53] Mr Millard relies on both the deed of mandate and a representation order made in this Court on 2 April 2007 under R78 High Court Rules. He says either or both establish standing to bring this claim. The order permitted the current plaintiffsto sue 'on behalf of all persons who claim an interest as descendants of the owners of the [relevant] blocks'. Mr Millard says:As this is a right to property and is based on the conscience of the trustee, this right should pass down to the descendants of the vendors – ie the persons in respect of whom the representation order was made.[54] I disagree with Mr Millard. The earlier summary of the history of the ascertainment of title to the Pouakani blocks shows that the Native Land Court heard claims by individual Mäori to various blocks. It recognised a number of different owners: 192 owners in Pouakani No 1, 242 owners for Pouakani B6, one owner for C3, six for B8 and 20 for B10. [55] While some or all of the four surviving plaintiffs may have been related to some of those owners, there is no general right in descendants to bring a claim. On the death of any person all causes of action vested in him or her survive for the benefit of the estate; proceedings to enforce this surviving right can only be brought by the dead person's legal representatives: s 3(1) Law Reform Act 1936; s 2 Administration Act 1969; s 2(1) Trustee Act 1956; R77 High Court Rules. The plaintiffs may be the nominated representatives of the Pouakani people. But they have not attempted to prove that they are the legal representatives of the original owners. [56] The deed of mandate does not confer an independent legal right to bring this claim. At best it is, as Ms Aikman submits, an appointment by the Pouakani people of representatives to negotiate a settlement of their claims against the Crown. The grantors of the mandate are the descendants but not the legal representatives of the original owners. [57] And a representation order under R78 cannot confer status to bring a claim where a right does not exist independently. A representation order is designed to facilitate efficiency and minimise duplication of litigation among plaintiffs who already enjoy a right to bring a claim; it is a 'flexible tool of convenience in the administration of justice': John v Rees [1970] 1 Ch 345. The order recognises a representative right to claim for a common interest and common grievance where the relief sought will be of itself beneficial to all whom the representative plaintiffproposes to represent: Bedford v Ellis [1901] AC 1, and presumes but does not confer a lawful entitlement to bring a claim. [58] I think the proceeding must fail on this basis also. I might add, though, that any injustice or unfairness thought to arise from this conclusion is mitigated by the wider jurisdiction assumed by the Waitangi Tribunal, provided that the claim is not otherwise statute or time barred.(3) Navigable River (a) CMAAA[59] Third, the Crown contends that the Pouakani people have failed to establish that the Waikato River was not 'a navigable river' in 1903. [60] Section 14 CMAAA materially provides:(1) Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to have always been vested in the Crown, and, without limiting in any way the rights of the Crown thereto, all minerals, including coal, within such bed shall be the absolute property of the Crown. (2) For the purpose of this section – 'bed' means the space of land which waters of the river cover at its fullest flow without overflowing its banks; 'navigable river' means a river continuously or periodically of sufficient width and depth to be susceptible of actual or future beneficial use to the residents, actual or future, on its banks, or for the public for the purposes of navigation by boats, barges, punts or rafts.[61] Section 206 Coal Mines Act 1925 amended the definition of 'navigable river' to read: a river of sufficient width and depth (whether at or at all times so or not) to be used for the purpose of navigation by boats, barges, punts or rafts.The same definition was re-enacted as s 261 Coal Mines Act 1979, and its effect is preserved by s 351 Resource Management Act 1991.[62] Counsel are agreed that the meaning of the phrase is to be determined by reference to the 1903 Act. That was the statute by which the bed of the Waikato River was 'deemed to have always been vested in the Crown'. This deeming provision applied absolutely and retrospectively to and at the time of the Crown's acquisition of the Pouakani land between 1887 and 1892. The 1925 amendment of the 1903 Act did not affect the river's pre-existing status: s 17(1) Interpretation Act 1999.(b) Ad Medium Filum[63] The claim by the Pouakani people's representatives is centred on the application of the principle of usque ad medium filum aquae; that is, the presumption of English common law, rebuttable by evidence of ownership to the contrary, that the boundaries of land on either side of a non-tidal river extended to its mid point. The representatives say that, by virtue of this presumption, the original owners had title to the medium point of the riverbed for its length abutting their land at the time of the sales. The Crown counters that, by virtue of s 14, it owns and has always owned the riverbed regardless of any question of legal or customary title: seeAttorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) per Keith and Anderson JJ at [161]. [64] The English common law treated a navigable tidal river as an extension or arm of the sea to its highest tidal point. A tidal river was in law navigable and the presumption of ad medium filum did not apply to the benefit of riparian owners, at least in the area of tidal ebb and flow. The riverbed was deemed to belong to the monarch and was available for all of his or her subjects to fish. But, where the presumption did apply, those who used the river would trespass on the land of the riparian owner. This was the state of the common law of New Zealand when the Court of Appeal delivered its decision in Mueller v Taupiri Coal-mines Ltd (1900) 20 NZLR 89 (CA) on 2 December 1900: see R v Joyce (1906) 25 NZLR 78 (CA) per Williams J at 89-92. [65] In Mueller the Crown had earlier granted land to Taupiri Coal-mines at Huntly adjacent to and on both sides of the Waikato River. The terms of the grantdescribed the riverbank as the boundary and nominated an acreage which was confined to the land area. The company removed large quantities of coal by tunnelling under the riverbed. The Crown sought a declaration that the bed was vested in it together with an injunction and an account. The company relied on the principle of ad medium filum to argue its right to the land forming the riverbed and the minerals below. [66] The Court of Appeal found for the Crown by a majority, Sir Robert Stout CJ delivering a strong dissent. All members of the majority considered the navigability of the Waikato as critical to determining the Crown's intention when entering into the grants. The extrinsic evidence satisfied them that the Crown had rebutted the presumption that it intended to part with ownership of the riverbed: see Williams J at 109. [67] Policy considerations clearly influenced the majority in Mueller. The river had been a busy public highway to Cambridge when the grants were made to the company (the subsequent construction of a railway in 1886 had destroyed most of the traffic but steamers still plied that part of the river): see Williams J at 107-112; Edwards J at 117-122; Martin J at 125-126. If the Court found that the principle ofad medium filum applied, the company may have been entitled to interfere with or obstruct public access: see Edwards J at 117. As Mr Damen Ward, who argued this part of the Crown's case, submitted, the majority's approach reflected New Zealand's geographical character and the importance of river transport to the colony's infrastructure and economic development: see also Joyce per Williams J at 89-90. [68] The Parliamentary Debates are silent about the 1903 enactment, but it can be properly inferred that it was driven by two factors arising from the decision inMueller. One was to secure beyond argument public rights of navigation of New Zealand rivers, which still served a function analogous to a public highway. The other was to preserve for the Crown ownership of and the entitlement to any minerals found in riverbeds: see Attorney-General ex rel Hutt River Board v Leighton [1955] NZLR 750 (CA) per Fair J at 771-772.[69] As Mr Ward notes, the Water-Power Act 1903, giving the Crown powers over the use of water for electricity generation, came into force contemporaneously with the CMAAA. The Waitangi Tribunal in 'He Maunga Rongo: Report on Central North Island Claims – Stage One' Wai 1200: Part V 2007 at 104 summarised the Crown's hydroelectricity plans at that time. Within a year of enacting s 14 CMAAA, the Crown had commissioned an expert's report 'examining some of the most likely sources of power': at 104. The expert's survey identified the Waikato River as a key source. Dams were mooted in the river's upper reaches, not far from the Lake Taupö outlet. It can be inferred that s 14 CMAAA and the Water- Power Act were introduced as the twin components of a legislative package designed to secure ownership for the Crown of resources critical to the colony's economic development.(c) Pouakani Case[70] Mr Millard advances two alternative but related arguments for determining whether in 1903 the Waikato River was a navigable river within the meaning of s 14 CMAAA. Both are variants on the same theme – that the question is to be approached by considering divisible parts or a part of the river in isolation. Mr Ward submits, to the contrary, that the character of the river as a whole is decisive.(i) Divisibility Test[71] Mr Millard's primary proposition is that the test of navigability requires a progressive assessment of the river from its mouth, moving upstream to the point where continuous navigability ceases and with it the operation of s 14. He draws the line of navigability at Cambridge, emphasising the evidence of physical obstacles upstream and the absence of evidence of any public use in that region in or before 1903. [72] I do not accept Mr Millard's proposition of divisibility. In my judgment the reference in s 14(2) to 'a navigable river' describes its status or characteristics as a whole. This is reinforced by the earlier reference in s 14(1) to 'the bed of suchriver'. Similarly the reference to 'the bed' in s 14(2). A river is either navigable or not, and its bed either belongs to the Crown or not. It is not defined as 'a navigable river in whole or in part' or 'a navigable river to the point where it meets an obstacle to navigation'. [73] The legislature's apparent intention in 1903 was that a river's navigability would be determined as a unit or thing, not by its component parts. And as a matter of policy it seems unlikely that Parliament intended to allow later contested factual inquiries about whether part and, if so, what part of a river was not navigable. I agree with Mr Ward that a construction which allowed for a patchwork of private ad medium filum and public ownership along the Waikato River would defeat the purpose and policy of s 14. [74] Mr Ward cites the Canadian decision in R v Nikal [1996] 1 SCR 1013 as authority that navigability is a characteristic of a river as a whole. At issue was the common law meaning of a navigable river in the context of determining whether or not native Indians were entitled to fish in a river without a licence. The river was punctuated by various falls and rapids, necessitating frequent portages between stretches. The Supreme Court approved authority at lower appellate level that a natural interruption of navigation in a river which is in general character navigable does not change that characteristic at the point of interruption or elsewhere: at 1050- 1051. Mr Millard says the decision in Nikal was delivered in a different geographical, demographic and commercial context. However, in my judgment the Supreme Court's approach to the concept of navigability remains compelling and instructive in determining the meaning of a navigable river under s 14 CMAAA. [75] It should not be forgotten that s 14 is directed towards ownership of the bed, not of the river itself. The bed is defined as ' the space of land which waters of the river cover at its fullest flow without overflowing its banks'. Again this phrase suggests a focus on the river as an indivisible entity and not on its divided or component parts. [76] Mr Millard separately submits that the words 'continuously or periodically' in s 14(2) support his divisibility test. He submits that they describe only the riseand fall of tidal rivers, and do not permit interruptions to continuous navigation from a river's mouth to its source. [77] I do not think this statutory construction is tenable. The adverbs 'continuously or periodically' convey a temporal meaning. I agree with Mr Ward that the words refer to the volume of water in the river at a particular time. The phrase seems designed to accommodate the observations by Williams and Martin JJ in Mueller, at 107 and 125 respectively, that parts of the river between Tuakau and Huntly which were otherwise navigable were temporarily rendered unnavigable either by shifting the sand banks or by hot weather. The phrase would also accommodate the effect of periodical tidal changes within a short span of the lower reaches of the Waikato River. [78] Furthermore, the words 'continuously or periodically' relate to the river's susceptibility of use 'to the residents, actual or future' on its banks – or for the public. The provision identifies two distinct categories of user. The residents are expressly singled out from the public of which they arguably form a part. I think this identification is deliberate and consistent with New Zealand's demographic structure and the rural nature of its society and economy when s 14 CMAAA was enacted. [79] By 1903, cities, towns and villages had grown up along the banks of the major North Island rivers : the Waikato, Wanganui and Rangitikei. Many Päkehä farmers and Mäori lived on or near the banks in rural or semi-rural areas. The river was a principal means of transport for them, both personally and for moving goods from one point to another but not necessarily of the whole river. Their use was sporadic or intermittent, and often confined to localised areas. But that factor whether actual or future appears sufficient to constitute as navigable the river on the banks of which they resided. It was immaterial to the susceptibility of their actual or future beneficial use that the river was not continuously navigable from end to end.(ii) Segmented Test[80] Mr Millard's second and related proposition is that navigability needs to be examined on a segmented basis (noting that that was how the Crown had pleaded itsdefence as recently as one week before trial), focusing on the section of the river abutting the Pouakani land. He submits that this approach would be consistent with the pre-1903 law which looked only at the navigable point. He says the type of use has to be significant in volume and type over a significant distance of the relevant stretch (that is, abutting the Pouakani land), and in the manner of use of a public highway. The concept of a particular segment of the river being used as a public highway is consistent, he says, with the purpose of the amendment and with the concepts of 'beneficial use' and 'use for the purposes of navigation'. [81] Mr Millard relies for this proposition on St Francis Hydro Electric Co Ltd v King [1937] 2 All ER 541. The Privy Council dismissed an appeal from an appellate Court in Quebec on the grounds that the two Courts below made concurrent factual findings that the hydro company did not own the bed of a river opposite their property. While factual findings were apparently based upon whether the St Francis River was navigable at that particular point, the Privy Council's decision does not stand for any statement of principle. [82] Mr Millard also cites Earl of Ilchester v Raishleigh (1889) 61 LT 477. In that case, in a judgment which with respect is not easy to follow, Kekewich J referred to a distinction between the popular meaning of the word 'navigable' and its technical meaning of the ebb and flow of the tide before finding, as a matter of fact, that the Fleet River was not navigable because there was no diurnal ebb and flow. The decision does not assist here. [83] I reject Mr Millard's segmented proposition, largely for the reasons already given. It is essentially a variant of his primary argument, which I have rejected, that navigability is a characteristic of a section of the river, whether continuously from the mouth to a particular point or within a section. Mr Millard's submission that the common law looked only at the navigable point of a river before s 14 CMAAA was enacted misconstrues the decision in Mueller. And while the concept of a public highway was relevant at common law, it does not determine the construction arising on the plain words of s 14.[84] I acknowledge Mr Millard's argument that s 14 CMAAA, to the extent that it might exclude the ad medium filum presumption, is confiscatory and should be given a narrow or restrictive interpretation: Leighton per Fair J at 768-771. He emphasises that its effect was to take away Mäori customary rights which by definition must have pre-dated any Crown grant in circumstances where s 14 CMAAA provides for no compensation. Also, he says, the section is contrary to Article 2 of the Treaty of Waitangi and its guarantees of continued Mäori ownership of their lands; and that, since the Treaty was designed to have general application, its terms must colour interpretation of all statutes to which it has relevance: Barton-Prescott v Director- General of Social Welfare [1997] 3 NZLR 179 at 184, approved in New Zealand Mäori Council v Attorney-General [2008] 1 NZLR 318 (CA) at [74]. [85] These factors may have been relevant if s 14 gave rise to an ambiguity in interpretation. I am satisfied, though, that its terms are unequivocal in displacing Mr Millard's construction. Although found in an obscure statutory enactment unaccompanied by any record of parliamentary debate, I think that s 14 was designed to have a radical effect on property rights in the national interest. Subsequent enactments have varied the wording but not the purpose or intent of s 14. [86] In summary, I am satisfied that determination of the meaning of the phrase 'navigable river' in s 14 CMAAA requires a factual inquiry into whether the river as a whole is navigable. Its general characteristic is decisive and does not allow for Mr Millard's piecemeal approach: navigability is not to be assessed either according to a moving scale from the mouth of the river to the point where continuous navigability actually ceases or by reference above that point to a segment defined by its abutment to the riparian land in question. [87] The terms of the statutory definition found in s 14 CMAAA are unique to New Zealand, and do not attempt to replicate existing common law. The word 'navigation' in this context means, in my judgment, the carriage by water transport of people or goods from one point to another. A 'navigable river' is one capable of navigation. While its common law meaning of a public highway is preserved by the express reference to public use, the meaning of 'navigable river' is significantly extended relevantly to this case.(d) Factual Inquiry[88] The question whether or not a river is navigable within the meaning of s 14 CMAAA is one of mixed law and fact: Leighton at 769. The factual inquiry in this case is uniquely retrospective and its inherent problems are compounded by the changes to the riverbed gradient, boundaries, and flow of the river's upper reaches caused by the Crown's construction of a series of hydro electricity dams since 1949. [89] In summary, the river divides physically into two distinct parts. The upper reaches from the outlet down to Cambridge comprise the greater part of 124 miles. In profile this section drops sharply but gradually to a point near sea level. Navigation in this area has always been problematic and sporadic. The lower part below Cambridge, the lesser area of about 80 miles, is relatively flat and easily navigated whether by motor, steam or small craft. Mr Millard accepts on the authority of Mueller that this section of the river was continuously navigable from its mouth. [90] However, Mr Millard says that the Court in Mueller implicitly acknowledged that the river was not navigable beyond Cambridge. I do not read the judgments in that way. All the Judges noted that the stretch from the mouth to Cambridge had been used by conventional forms of European or Päkehä water transport including larger vessels like steamers before 1900. The river's profile explains why conventional craft did not go continuously further. [91] I accept, though, that the fact of navigability to Cambridge or for 40% of the river's length is not decisive of whether the river as a whole was legally navigable. A factual inquiry into the navigability of the upper reaches is necessary. [92] Counsel relied principally on contemporaneous documents supplemented by expert evidence. The Pouakani people called Mr Bruce Stirling, a historian with expertise in archival research at the Mäori Land Court, Mr Mark Dyer, a surveyor, and Mr Tamati Cairns, a highly qualified and respected kaumatua of the Pouakani people. The Crown called Mr James Parker, a historical researcher employed by the Crown Law Office with expertise in archival research, and Dr Donald Loveridge, ahistorian. Their evidence relating to the physical state and use of the river above Cambridge was detailed and comprehensive. [93] Messrs Stirling and Parker subjected discrete areas of the Waikato River above Cambridge to detailed analysis. The areas were segmented largely by reference to boundaries imposed by physical obstructions presented by major rapids, gorges, and junctions with tributaries. Mr Parker, in a 73-page brief, subdivided 14 continuous areas within the 124 mile stretch from Lake Taupö outlet down to Cambridge. Mr Stirling focused more on the segment directly abutting the Pouakani lands. Both reviewed evidence of actual use. [94] On this evidence Mr Millard advances three propositions: (1) The river section from Taupö downstream to Cambridge was simply not used in 1903 for transport or voyages as a unit, even with portage. It is against common usage and common sense to say that the whole river is navigable if it is not used for continuous navigation (in the sense of connected trips) and is instead the subject of sporadic and totally unconnected usage; (2) There were 10 major obstructions from Taupö to Maraetai occurring at regular intervals. From Maraetai to Awapuni there would have been a gorge, then the rapids at Horahora and below the Maungatautari bridge there were at least another three obstacles. Some of the distances between these obstructions are significant; (3) While there was occasional use of parts of the river between these many obstructions, it was for the most part spasmodic and minor. Viewed objectively, the river was not navigable upstream from Cambridge. [95] It would extend what must be a regrettably lengthy judgment to unreadable lengths by replicating or dissecting evidence about details of each relevant area. And that course is unnecessary in any event because Mr Millard's argument, assummarised above, is based upon acceptance and adoption of Mr Parker's careful identification of major points of obstruction. Mr Millard's thesis, based upon that evidence, is that the existence of the obstructions, principally rapids and gorges, illustrates that the river as a whole was not susceptible of use for continuous navigation. [96] Mr Parker's findings of use in 1903 based on the available evidence are as follows: (1) The river was used for water transport for much of the section between Lake Taupö and the Mihi Bridge, 31.2 miles downstream. The two major rapids in that section, the Huka Falls and Aratiatia, would require portage to successfully continue passage beyond them, which was factually possible. Parts of this area above the Huka Falls were used regularly by Päkehä for recreational fishing from canoes or boats. Also Mäori and Päkehä used the section below Aratiatia both for fishing and to transport goods. One account by a Päkehä in 1885 refers to 40 Mäori in a single canoe paddling up a stretch of rapids; (2) The river was used for water transport from the Mihi Bridge down to the vicinity of what is now the Whakamaru Power Station, 69 miles downstream from Lake Taupö, at the upstream end of the Pouakani land. A number of major rapids were located in this area. As early as 1839 a Päkehä travelled parts of this water by canoe, and encountered Mäori who were using it for traditional purposes of catching fish and birds; (3) The river was little used in the next section including most of the Whakamaru gorge and all of the Maraetai gorge, 82.4 miles downstream from Lake Taupö, at the downstream end of the Pouakani land. It would have been difficult but not necessarily impossible to portage between each of the small stretches of river within this section which could be used for water transport;(4) The river was also little used between its junction with the Waipapa River, 82.2 miles down from Lake Taupö, and the Muku junction, another 6.2 miles downstream. This section is now part of Lake Arapuni. Similarly the Arapuni gorge down to the Horahora rapids was little used for water transport, although portage might have been available, down to an area about 109 miles from the outlet; (5) The river was used for water transport for the section from Maungatautari Bridge for the final 11 miles down to Cambridge. [97] Mr Parker also gave evidence about use of the river after 1903. The definition in s 14 CMAAA expressly refers to a river's susceptibility 'of actual or future beneficial use'. Events subsequent to 1903 are therefore relevant evidence of the river's capability or potential for future use. [98] A relevant summary of Mr Parker's evidence is as follows: (1) The 1929 New Zealand Fishing and Game Shooting Gazette contained a report from a local correspondent that 'powerboats still troll up and down this sporting stretch of river', that is the three miles between Huka Falls and the Aratiatia rapids. There are reports between 1931 and 1938 of a Mr Hunt who had a motorboat available for trolling and picnic excursions in the same area. A tourist launch also operated there around 1919; (2) In March 1936 a party including Government officials made a voyage by launch for eight or nine miles down the river between Ngaawapurua rapids and the Mihi Bridge, an area between 11.7 and 31.2 miles from Lake Taupö. The following year, in 1937, another group of Government officials went on a boat trip for almost the entire distance of 20 odd miles, although there was a question about whether they actually reached the Mihi Bridge. The starting point for these voyages was a fishing camp run by a Mr Fulljames below the Ngaawapurua rapids. Some 74 years earlier Mr Thomas Grace andhis companions made the same trip in a Mäori canoe. In 1948, in support of a compensation claim against the Ministry of Public Works, Mr Fulljames identified a rowing boat, an outboard motorboat, a launch and three floating pontoons which he used for fishing purposes. And in 1967 a local newspaper published the reminiscences of the sole remaining Mäori occupant of a little village who was 73 years old at the time. She remembered barges on the river taking flax to a mill operating just above the Mihi Bridge; (3) The next section from Mihi Bridge to Atiamuri encompasses some 23 miles from 31.2 miles to 54.6 miles. It has a number of substantial rapids. In 1939 a surveyor called Harold Jenks sailed upstream in a dingy for about five-and-a-half miles. In 1950 three men travelled in a nine-foot rubber dingy for a good part of this section, as did another expedition in 1953 which had two canoes and three rubber rafts; (4) In a lower portion of the river between the Waipapa Stream to the Maraemanuka Stream, between 59.4 and 67 miles from Lake Taupö, the river ran relatively smoothly apart from the Ongaroto rapids. The Cox family farmed here in the 1930s and 1940s. The family used a 12 foot row boat for transport in this area, both upstream and downstream although taking care to avoid the rapids. [99] As Mr Parker noted, the advent of shallow draft jet boats now makes many stretches of the river's upper reaches accessible to large numbers of people. He described the current characteristics of the river as 'virtually a continuous sequence of hydro-storage lakes separated by a number of dams'. He referred to tourist operators who transport large numbers of people through the Ngaawapurua rapids, and also to canoeists who have descended both the Huka Falls and the Aratiatia rapids since 1981. [100] Mr Stirling covered the same territory but from a different perspective. He cited publications dating back to 1841 which recorded that canoe travel was possible in the reaches above Cambridge but was often dangerous. His evidence is of a wild,continuous stretch of water, punctuated by large rapids and substantial falls at frequent intervals. He recorded intermittent journeys by early Päkehä travellers, transported in canoes by Mäori for short and often dangerous distances. [101] Mr Stirling cited publications by travellers through the upper reaches whose general consensus was that the river was not navigable above Cambridge. A useful summary is found in a letter from Mr Fisher, the assistant electrical engineer in the Public Works Department's District Office at Hamilton, to a member of the public in 1937. He wrote about the risks of attempting to canoe down the river before its course and characteristics were changed forever by construction of hydroelectric dams. He advised:As for attempting to undertake a canoe trip down the Waikato River from Lake Taupö to Cambridge, this is an impossibility in any craft. There are certain sections of the river, usually through uninhabited native land and forestry plantations, where a canoe could be used mostly for crossing the river and not for travelling The river is a succession of deep gorges and heavy rapids absolutely impassable in a boat and must be missed even when walking. The idea of such a trip, after the experience of two years walking and surveying to cover the length of the river between Cambridge and Taupö, is foolhardy to say the least, and would only result in disaster over this section of about 100 miles.[102] Mr Stirling cited extensively from Mr Fisher's reports on the river in the 1930s. He was of course inspecting the area for hydroelectricity purposes, to assess its power potential and potential dam sites. Nevertheless, his report is illuminating, and paints a picture of a long stretch of water punctuated by substantial gorges, rapids and other obstructions. His findings are corroborated by Dr Marshall, a geologist who was engaged in similar work.(e) Conclusion[103] The issue then is whether the presence of the physical obstructions between Taupö and Cambridge identified by Messrs Parker and Stirling deprived the Waikato River of navigable status in 1903. Mr Millard is correct that the entire river was not continuously navigable from outlet to mouth or vice versa. The cessation of steamer traffic in both directions at Cambridge marked the point where the rapids below what is now the Maungatautari Bridge physically obstructed any further continuousmovement by commercial vessels such as steamers. Above that point, as Mr Millard submits, the river was navigable in intermittent or sporadic stretches, but by different craft from those which plied the lower reaches. [104] I am satisfied that the Waikato River as a whole or a unit in 1903 was a navigable river. Mr Parker's table shows that about 156 miles or 76.8% of the river was actually used or navigated then (representing about 75 miles or 60% of the 120 mile stretch above Cambridge). His table was based on documented travel (no doubt other journeys were taken but not recorded) and does not take into account the river's susceptibility for future use. [105] The decisive factors in establishing that the river was navigable in 1903 are that: (1) the river was navigable continuously for two-fifths of its length (from its mouth to Cambridge); (2) most parts of well defined sections above Cambridge were used before 1903; and, (3) there was greater use in those same areas after 1903, proving the river's susceptibility of future beneficial use for navigation. [106] The existence of 10 or 12 substantial physical obstructions in the river's upper reaches does not derogate from this conclusion, given that the statutory definition does not require proof of a continuous access channel throughout the length of the river. Both Messrs Parker and Stirling opined on whether or not it was possible to circumvent these obstacles by portage. They were apparently working against the contingency of a Court requiring evidence that physical obstacles or impediments could be circumvented even if proof of continuous or uninterrupted passage was not necessary. I do not think, however, that the existence of occasional natural physical interruptions to an otherwise navigable river changes its navigable status: see Nikal at 1050-1051. [107] In view of my conclusions on both justiciability and standing and my satisfaction that the Waikato was a navigable river in 1903 it is strictly unnecessary for me to determine the Pouakani people's principal allegation of breach of fiduciary duty and the affirmative defences raised by the Crown. However, I acknowledge that my threshold conclusions are either of a legal nature or based upon the evaluative interpretation of historical evidence within the framework of myinterpretation of s 14 CMAAA. An assessment of the reliability or credibility of conflicting accounts from witnesses from either side has not been required. I am conscious, therefore, that others might take a different view. For those reasons, and in deference to the careful and thoughtful arguments advanced by Mr Millard on behalf of the representatives, I will address their substantive allegations even though from this point my judgment is strictly obiter.Fiduciary Relationship[108] In closing Mr Millard narrowed the focus of his case for the existence of a fiduciary relationship into two streams of authority : one generic, based upon the recent Treaty of Waitangi jurisprudence, and the other specific to related authority on the Crown's duty on extinguishment of customary rights. I will address them in that order.(1) Treaty of Waitangi (a) Pouakani Case[109] Mr Millard's primary argument relies on the landmark decisions of the New Zealand Court of Appeal, influenced by Canadian jurisprudence, to the effect that the relationship between the Treaty partners creates reciprocal responsibilities analogous to fiduciary duties: New Zealand Mäori Council v Attorney-General[1987] 1 NZLR 641 (CA) per Cooke P at 664; New Zealand Mäori Council v Attorney-General [1989] 2 NZLR 142 (CA) at 152; and Ngäi Tahu Mäori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA) at 560-563 (collectively the Mäori Council cases). Mr Millard argues that a fiduciary obligation could be derived from the Crown's relationship with its indigenous people, citing in support many authorities in the Supreme Court in Canada starting with Guerin v The Queen [1984] 2 SCR 335. He submits rhetorically that, given the existence of the Treaty, New Zealand law could hardly offer less protection to its indigenous people than is recognised in North American jurisdictions.[110] In addition to the Treaty and its associated jurisprudence, Mr Millard identifies a number of indicia pointing to a fiduciary relationship, principally: (1) the imbalance of power between the Crown and Mäori at the time of the sales, illustrated by the Crown's right of pre-emption; (2) the Pouakani people's vulnerability or disability by reason of their illiteracy, unfamiliarity with European concepts of title and the processes of the Native Land Court, and their lack of legal advice; and (3) the Pouakani people's general state of disadvantage.(b) Principles[111] It is insufficient, in my judgment, to establish the existence of a fiduciary relationship in a novel situation by relying on broad statements of principle, however authoritative they may be, taken from appellate decisions given in very different contexts. A closer analysis is required. And as Ms Aikman emphasises, the Mäori Council Cases were considering statutes which either directly imported the Treaty principles or required decision-makers within the Executive to have regard to or take into account the Treaty principles. The members of the Full Court of the Court of Appeal in the first Mäori Council Case spoke within this discrete setting of the relationship between Treaty partners creating responsibilities of good faith in dealing with their Treaty obligations: see [1987] 1 NZLR 641 per Cooke P at 664, Richardson J at 682, Somers J at 693 and Casey J at 703. [112] The later two Mäori Council Cases simply reaffirmed but did not develop these statements. With respect, they conform with settled principles of partnership law embodying the fiduciary obligations of good faith, reasonableness, trust and consultation. Consequently the law of fiduciaries informs by analogy but not directly the characteristics of the duty arising under the Treaty relationship: seeNew Zealand Mäori Council v Attorney-General (the Te Arawa Settlement Case) [2008] 1 NZLR 318 (CA) per O'Regan J at [81]. [113] The joint judgment of Blanchard and Tipping JJ in Chirnside v Fay [2007] 1 NZLR 433 (SC) provides the appropriate reference point for this inquiry:[72] When we speak in these reasons of a relationship of a fiduciary kind, or a fiduciary relationship, we are speaking of a relationship which gives rise to fiduciary obligations, irrespective of what may be the principal nature of the relationship or what other obligations may also arise from it. For example, a relationship which is of a contractual nature may involve fiduciary as well as contractual obligations. A relationship of an inherently fiduciary kind may involve duties which have no fiduciary element. Relationships which do not generally give rise to fiduciary obligations may nevertheless have a fiduciary dimension. [73] Many cases, textbooks and articles in learned journals have considered when and against what criteria the Courts will find that a relationship gives rise to fiduciary duties. In essence, there are two situations in which that will be so. In the first, the relationship is of a kind which, by its very nature, is recognised as being inherently fiduciary. Most cases involving a breach of fiduciary duty are of this kind. They fall into one of the recognised categories of relationships which are inherently fiduciary. These include the relationships of solicitor and client, trustee and beneficiary, principal and agent, and doctor and patient. [74] There is a strong case for saying that most joint venture relationships can properly be regarded as being inherently fiduciary because of the analogy with partnership. The relationship between partners is one which has traditionally been regarded as a classic example of a fiduciary relationship in that the parties owe to each other duties of loyalty and good faith; and they must, in all matters relevant to the activities of the partnership, put the interests of the partnership ahead of their own personal interests. [75] The second situation in which a relationship will be classed as fiduciary depends not on the inherent nature of the relationship but upon an examination of whether its particular aspects justify it being so classified. No single formula or test has received universal acceptance in deciding whether a relationship outside the recognised categories is such that the parties owe each other obligations of a fiduciary kind. The literature in this field is voluminous. No useful purpose would be served by an attempt at a general survey. [footnotes excluded][114] Millett LJ authoritatively described the essential elements common to both categories of fiduciary relationships in Bristol and West Building Society v Mothew[1998] Ch 1 at 16 (approved in Bank of New Zealand Ltd v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 (CA); Arklow Investments Ltd v Maclean [2000] 2 NZLR 1 (PC)) as follows:This leaves those duties which are special to fiduciaries and which attract those remedies which are peculiar to the equitable jurisdiction and are primarily restitutionary or restorative rather than compensatory. A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is theobligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal (In this survey I have left out of account the situation where the fiduciary deals with his principal. In such a case he must prove affirmatively that the transaction is fair and that in the course of the negotiations he made full disclosure of all facts material to the transaction. Even inadvertent failure to disclose will entitle the principal to rescind the transaction. The rule is the same whether the fiduciary is acting on his own behalf or on behalf of another) The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity[115] Mr Millard's argument in principle must be that the fiduciary relationship allegedly existing in this case fell within the second category identified in Chirnsideat [75]; that is, one imposed by law or inherent in the circumstances. The leading authorities affirm the one distinguishing feature common to both categories : it is the requirement to act for and on behalf of another party in relation to a specific interest with the single-minded degree of loyalty necessary to protect that other party's interest: see Chirnside at [81] and Mothew at 16. The prohibition on the principal's self-dealing or gaining a profit from the relationship, manifesting an actual or potential conflict of interests, reflects its foundation on the concepts of mutual trust and confidence.(c) Relationship (i) Statutory Framework[116] The Canadian authorities, which I shall consider later, confirm that the Crown does not owe a fiduciary duty at large to its indigenous people or a group of them. An express undertaking assumed or implied from a particular instrument to represent or protect a specific interest is critical. This case is very different from theMäori Council Cases. Mr Millard acknowledges both that the Treaty cannot of itselfbe the source of a fiduciary relationship forming the basis of a private action and that the instrument does not create rights which are directly enforceable in New Zealand Courts: Hoani Te Heuheu Tukino v Aotea District Mäori Land Board [1941] NZLR 590 (PC). While the Treaty is of course relevant and may have a direct impact in some cases, its interpretation or application are not in issue here: the Te Arawa Settlement Case at [71]-[74]. The representatives of the Pouakani people retain the burden of establishing a principled foundation for the existence of a fiduciary relationship. [117] The only instruments governing the direct relationship between the Crown and the Pouakani people were statutory. The Native Land Court Act 1886 was the source. As noted, that Court had been established in 1864 as a judicial body independent of the Crown, responsible for the process of converting customary Mäori ownership of land into a Päkehä system of title based on the English concept of freehold tenure. The Native Land Court Act 1886 recited that the Court's constitution was ' for the investigation and determination of titles to Native land and for several other purposes hereinafter set forth ': s 5. 'Native land' was defined as 'land in the colony owned by Natives under their customs or usages': s 3. Jurisdiction arose when Mäori claiming to be the owners of or interested in native land ' make application to the Court to have the title thereto investigated ': s 17. [118] The Court's power after hearing evidence was 'to ascertain and decide what Natives are, according to native custom or usage, entitled to such native land or to any parts thereof': s 19. Having reached this determination, the Court was bound to make an order in the form of a declaration about ownership or of its parts: s 20. The Chief Judge was obliged to send a copy of the order to the Minister of Lands once the Court had ascertained title according to a certified plan of the land. The named Mäori owners were entitled to have a certificate of title issued under the Land Transfer Act 1885: s 22. The Court was also empowered to determine individual interests: s 42. [119] Once title was issued, the title holders were sui juris and free either to alienate or retain their lands. The original owners were bound to offer the land first to the Crown if they decided to sell. A series of statutes had re-imposed the Crown'sright of pre-emption provided by the Treaty of Waitangi. Among them were the Native Land Alienation Restriction Act 1884 followed by s 15 Native Land Court Act 1886 Amendment Act 1888. Article 2 of the Treaty guaranteed to Mäori ' the full exclusive and undisturbed possession ' of their lands but: yield[ing] to Her Majesty the exclusive right of Pre-emption over such lands as the Proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.[120] It is appropriate to record, as Ms Aikman observes, that pre-emption was originally seen as protecting Mäori from exploitation by land speculators. It also benefited the Crown by providing the means for acquiring land to develop the colony. The requirement of pre-emption was one arising from the Treaty itself and by statute. (A similar requirement, reflecting the same colonial heritage and purpose, existed in Canada. Critically, though, it was not the right of pre-emption per se that gave rise to a fiduciary duty in Guerin and later cases but the specific terms of the discretionary power vested by statute in the Crown when dealing with surrendered land: see Dickson J at 383-385.)(ii) Self-Dealing[121] The representatives' case for a fiduciary relationship must fail for a number of alternative but interrelated reasons. First, Mr Millard has failed to identify the source of a fiduciary relationship within this statutory process leading to the Crown's acquisition of the Pouakani blocks. The Pouakani people were entitled to apply to the Native Land Court (not to the Crown) for an order ascertaining title. The Court, in exercising a judicial function, was obliged to declare details of ownership, embodied in a certified plan. The named owners of the blocks were granted a certificate of freehold title. The statutory structure vested rights in Mäori land owners and recognised their legal autonomy. The Crown could not be subject to a paternalistic duty to advise the original owners about whether or not to exercise their autonomous power of sale and if so on what terms: see Blueberry River Indian Band v The Queen [1995] 4 SCR 344 per McLachlin J at 370-372.[122] Second, given the Crown's freedom to deal with the original owners, it was entitled to act in its own interests. The absence of an obligation of absolute or single-minded loyalty to the vendor is fatal. The Crown is the representative of all its citizens and trustee for the public: see Mueller per Williams and Martin JJ at 106 and 126 respectively. Its duty is 'to the population as a whole': the Te Arawa Settlement Case at [81]; Williams v Attorney-General of New South Wales (1913) 16 CLR 404 per Isaacs J at 434. The Crown's principal is collectively its citizens and it must act in their best interests, not singularly for the Pouakani people or any other group of Mäori, unless there is a legislative direction to the contrary. [123] The Crown is required to balance many interests, often conflicting, when exercising its powers; 'it wears many hats and represents many interests':Wewaykum Indian Band v Canada [2002] 4 SCR 245 per Binnie J at 293-294. For that reason public law duties, especially where the performance requires the exercise of a discretion, do not typically give rise to a fiduciary relationship: Guerin per Dickson J at 385. Identification of a duty owed by the Crown relating to a particular interest, normally proprietary, is essential if the Crown is to be subject to a duty of absolute loyalty to one group of citizens when exercising a statutory power: seeWewaykum at 286. Such a duty could not arise when the Crown was exercising unfettered powers, vested for the public good pursuant to the North Island Main Trunk Railway Loan Application Act 1886 and its 1889 amendment, to buy the Pouakani people's land : Pouakani C3, B8 and B10 were purchased with funds which were raised with Parliament's authority to meet the costs of acquisition and construction of the railway. [124] Third, the parties were necessarily in a position of conflict. The Crown and the Pouakani people were at arm's length; the transactions were agreements for sale and purchase for value. The Crown dealt on its own behalf – that is, as representative of the people as a whole – and benefited accordingly. The interests of vendor and purchaser were, if anything, inherently antagonistic or adversarial. The resulting conflict, whether actual or potential, negates an obligation of loyalty: seeGladstone v Attorney-General [2005] 1 SCR 325 per Major J at 334-345. Acceptance of Mr Millard's argument would mean that, contrary to its constitutionalfunction and duties, the Crown was always bound to prefer the Pouakani people's interests when acquiring their land. [125] Fourth, acceptance of the Crown's freedom to act in its own interests when buying land from the original owners negates any assumption of a duty to advise them about the presumption of ad medium filum. Mr Millard's argument confuses two discrete concepts – whether there was in law a fiduciary relationship and, if so, the particular terms. A duty to advise and obtain informed consent is an incident of the underlying fiduciary relationship. It is inherently contradictory to acknowledge the Crown's right of self-dealing while asserting an obligation to advise. The solicitor's duty, for example, to obtain a client's informed consent to the terms of a transaction between them arises as a consequence of the fiduciary nature of their relationship and its defining feature of absolute loyalty. Once one party is free to pursue its own best interests when transacting with another, there cannot be a concurrent duty to inform the other on any aspect of the transaction. [126] Mr Millard says the Crown's self-interest in the relevant transactions does not necessarily rule out a fiduciary duty. Otherwise, he says, such a duty could never arise in commercial transactions. While Mr Millard did not identify the type of transactions on which he relies, I assume he is referring to joint ventures and similar cases where a duty has been found: see Chirnside. But joint venture and partnership arrangements fall into the fiduciary category precisely because the obligation is to act in the interest of the composite entity, as distinct from its constituents who may be driven by self-interest. In each, the party is both fiduciary and principal, and accordingly surrenders the autonomy it would otherwise enjoy.(iii) Postscript[127] I should add that Mr Millard raises an argument by way of postscript based upon the Native Lands Frauds Protection Act 1881 and its 1888 amendment. The former declared that a purported alienation of Mäori land would be invalid if the transaction was 'contrary to equity and good conscience' or the consideration provided was alcohol; the latter declared that deeds executed by Mäori purporting to convey land were invalid without the vendor's informed consent. Mr Millardacknowledges that the statutes did not bind the Crown. But he says, nevertheless, that they set a standard of good practice by which the Crown was honourably bound when dealing with Mäori in property transactions. [128] I do not mean any disrespect to Mr Millard by simply recording my inability to follow how standards of conduct said to emanate from statutory provisions which did not bind the Crown might be relevant in determining whether or not a fiduciary relationship, from which standards derive, actually existed in this case.(d) Disadvantage, Vulnerability and Unequal Bargaining Power[129] Mr Millard identifies Mäori disadvantage, vulnerability and unequal bargaining powers as critical factors in deciding whether a fiduciary relationship came into being. He says the presence of one or all of them caused Mäori to place reliance on the Crown. He cites the test formulated by Wilson J in Frame v Smith[1987] 2 SCR 99 at 137 (adopted in DHL International (NZ) Ltd v Richmond Ltd[1993] 3 NZLR 10 (CA) at 22) as follows:(1) the fiduciary had scope for the exercise of some discretion or power; (2) the fiduciary could unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and (3) the beneficiary was peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.[130] The Treaty is relevant in this context, Mr Millard says, because it illustrates that Mäori placed their confidence and trust in the Crown and reliance on its honour, especially in relation to their lands, even when exercising a right of pre-emption. He says that the native land legislation, and the right of pre-emption in itself, placed the Crown in a privileged position and the affected Mäori in a position of dependency. He says Mäori could not test the market by seeking competitive offers and were dependent on the Crown both as to price and timing of sales. He says the dependency was magnified by the circumstances in which Mäori land came to be alienated, placing the Crown in a position of monopsony (where there is only one buyer for a particular asset) which it proceeded to use to its advantage.[131] A good deal of the Pouakani people's evidence, in particular from Mr Stirling, and of Mr Millard's argument for imposing a fiduciary duty, was based upon the factual premise of an imbalance or vulnerability or even unfairness. I do not need to consider that proposition because the PCSA acknowledges the Tribunal's findings as follows:(c) in reaching the conclusion that there was nothing illegal or unacceptable in contemporary practice in the transactions on the Maraeroa and Pouakani blocks in the 1880s and 1890s, the Tribunal was still left with a strong sense of Maori grievance and frustration: (d) Maori paid a disproportionate cost for Pakeha settlement, but little provision was made for Maori participation in the suggested benefits of the introduction of capital and settlers. The system of Native Land Court investigation of title and individualisation of interests in land, which could be sold piecemeal, contributed largely to social disruption, dissension over issues of mana and territory, massive debts, costly mistakes in survey boundaries in some cases, and failure to survey in others, and costly litigation:[132] The PCSA and the deed of settlement also record the Crown's acknowledgement of that sense of grievance; of the operation and impact of the native land laws leading to significant losses suffered by the Pouakani people; and of the Crown's failure to protect the Pouakani people's interests in land they wished to retain in breach of the principles of the Treaty. The Crown has apologised unequivocally. Those findings and admissions rule out any further inquiry. In any event, the existence or otherwise of a fiduciary duty derives from principle and the legal nature of the relationship itself. [133] However, even if one or more of the factors of power imbalance, vulnerability and disability were present, that does not answer the question of whether, within the second category identified in Chirnside, the discrete relationship of vendor and purchaser created by the relevant statutory framework imposed mutual obligations of a fiduciary nature or, alternatively, survived that framework. I refer again to the absence of the defining requirement of absolute loyalty. Furthermore, any obligations which might arise out of vulnerability and dependency are subject to laws validly made for the Government of the colony: Bennett v Commonwealth of Australia (2007) 235 ALR at 15-17. And Mr Millard omitted to mention that, while Richardson J observed in DHL at 22 that the three general characteristics identifiedby Wilson J in Frame v Smith may cumulatively attract fiduciary obligations, he expressly added the decisive requirement that 'the fiduciary must act solely and selflessly in the interests of the beneficiary': at 23. [134] The final word on the relevance of imbalance, vulnerability and disability within the fiduciary inquiry and their subordination to the overriding requirement of loyalty belongs appropriately to Professor Finn. In his work 'The Fiduciary Principle' at 64 (cited by La Forest J in LAC at 648 and in terms very similar to the principle of an entitlement or a legitimate expectation held by one party in placing trust and confidence in the other: see Chirnside at [80]), Professor Finn says this:What must be shown, in the writer's view, is that the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out. But they will be important only to the extent that they evidence a relationship suggesting that entitlement. The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other's affairs or so align him with the protection or advancement of that other's interests that foundation exists for the 'fiduciary expectation'. [My emphasis](e) Canadian Authorities[135] Mr Millard relies most on Guerin and subsequent Canadian decisions to support his general thesis of an underlying or general fiduciary relationship between the Crown and the indigenous people. He adopts analogies drawn in some North American jurisprudence between the guardianship of the government and wardship of various Indian tribes. However, in my judgment the Canadian decisions can be read as authority to the contrary. [136] Guerin recognised the existence of a fiduciary relationship where an Indian band had surrendered land to the Crown on condition that it was to be leased for the band's benefit. The Crown, however, leased the land to a golf club on terms less favourable than the band had approved on surrender. The Supreme Court restoredthe trial Judge's finding of the existence of a fiduciary duty, its breach and liability for substantial damages. [137] Dickson J, for the majority, found in Guerin that s 18(1) Indian Act 1952 conferred upon the Crown a discretionary power to represent the Indian people generally when title was surrendered. The Crown held the underlying or radical title to the land subject to the personal or customary rights vested in the Indian owners. (The same principle applied to Mäori land in New Zealand until customary title was extinguished upon ascertainment of a fee simple title by the Native Land Court:Ngati Apa per Elias CJ at [28]-[40] and Gault P at [99]; by contrast, Canada does not have an equivalent legislative and judicial process for freeholding customary title.) The Indian Act reinforced the Crown's historic responsibility on cession of customary title 'to act on behalf of the Indians so as to protect their interests in transactions with third parties' [my emphasis]: Dickson J at 383. Parliament had conferred on the Crown a statutory discretion to decide what was in the Indians' best interests. The express statutory obligation coupled with a discretionary power gave rise to the fiduciary relationship: Dickson J at 380-385. [138] Moreover, in Guerin there was no possibility of the Crown facing a conflict of interests. It was representing the tribe's interests in dealing with third parties. The relationship bore similarities to trust and agency obligations (but it was not a trust, express or implied). The Crown was thus bound to exercise its discretionary power, when land was ceded or surrendered (or in New Zealand terms when customary rights of title were extinguished), solely for the tribe's benefit: Dickson J at 385-387. [139] Subsequent decisions are to the same effect. Mr Millard discussed a number but I do not intend to refer to them all. Mr Millard relies most upon McLachlin J's summary of fiduciary principles in her concurring judgment in Blueberry River Indian Board at 371-372 where an Indian band had ceded its mineral rights in a reserve to the Crown. Gas reserves were later found there. The Supreme Court divided in its reasoning but held unanimously that the Crown was in breach of a fiduciary obligation to reserve the mineral rights on sale of the surface rights. The band was entitled to damages for sale at an undervalue. However, on review,McLachlin J's statement is, with respect, to the same effect as Dickson J's summary in Guerin, emphasising the requirement to exercise a statutory discretion affecting a vulnerable person's interest 'solely for the benefit of the vulnerable person'. [140] Later decisions have affirmed that the Crown's fiduciary duty must relate to specific interests; there is no 'plenary Crown liability covering all aspects of the Crown-[indigenous people's] relationship': see Wewaykum per Binnie J at 286;Haida Nation v British Columbia (Ministries of Forests) [2004] 3 SCR 511 per McLachlin CJ at 523. The Supreme Court has rejected the wider paternalistic notion of a fiduciary duty which Mr Millard advances. In Gladstone the Court found that the relevant statutory structure dispelled any suggestion that Parliament intended to create a trust relationship between the Crown and an Indian band. In delivering the Court's judgment, Major J said this: at 335-336:The concept of fiduciary duty is not an invitation to engage in 'results oriented' reasoning. It is a principled analysis. At its core is the obligation of one party to act for the benefit of another. This obligation may derive from various sources such as statute, agreement, or unilateral undertaking.[141] The Canadian authorities are settled. The Crown does not owe a fiduciary duty at large to its indigenous people or a group of them. An express undertaking assumed or implied from a particular instrument to represent or protect a specific interest is required. Mr Millard's argument must fail for its generality and inability to identify a principled foundation within the statutes or another instrument. This conclusion is, I think, decisive against the representatives' claim of a fiduciary obligation by the Crown when acquiring the Pouakani people's lands between 1887 and 1892. Nevertheless, I shall consider Mr Millard's alternative argument.(2) Extinguishment of Customary Title[142] Mr Millard's second or alternative ground for the existence of a fiduciary relationship is drawn from decisions relating to the extinguishment of customary or native rights or title to land: see Te Runanga o Muriwhenua Inc v Attorney-General[1990] 2 NZLR 641 (CA) per Cooke P at 655; Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) per Cooke P at 306;Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20(CA) at 24. Its source, Mr Millard submits, is Chapman J's decision in R (On the Prosecution of C H McIntosh) v Symonds (1847) NZPCC 387, approved in Nireaha Tamaki v Baker (1901) NZPCC 371 at 384 and discussed in Ngati Apa per Elias CJ at [16]-[21]; per Keith and Anderson JJ at [136], [141] and [142]. He also draws again on the Canadian authorities. [143] Mr Millard submits that this line of authority is the start of a continuum which influenced Treaty jurisprudence; and that the Courts are concerned primarily with substantive fairness where extinguishment of a right by less than fair conduct or on less than fair terms is likely to constitute a breach of a duty. However, Mr Millard's substantive argument does not require consideration unless he can establish: (1) the existence of a discrete customary right to the riverbed severable from similar rights relating to the adjoining land and vested in the Pouakani people at the time of the Crown's acquisition; and (2) the Crown's extinguishment of that right by the acts of acquisition. [144] I agree with Ms Aikman that the first pre-condition of Mr Millard's argument – that the Pouakani people enjoyed a discrete customary right to the riverbed between 1887 and 1892 – is contrary to In re the Bed of the Wanganui River [1962] NZLR 600 (CA). The question at issue in that case, arising from an earlier decision of a differently constituted Court (reported at [1955] NZLR 419), was whether, if part of the bed of the Wanganui River had been held by Mäori under customary title prior to the enactment of s 14 CMAAA, the bed adjoining a riparian block for which a title was later issued (and acquired by the Crown) became ad medium filum a part of the block itself. [145] In In re the Bed of the Wanganui River the Court of Appeal unanimously answered this question in the affirmative, upholding factual findings by the Mäori Appellate Court that there was no evidence of a Mäori custom or usage that those who owned the banks were different from those who owned the bed of a river: per Gresson P at 608-609. Cleary J adopted a statement by Judge Browne in the Mäori Land Court, approved by the Mäori Appellate Court, as follows: at 612:In the Court's opinion, so far as the Maoris are concerned, these rights, in the case of this river, follow as a matter of course and are incidental to theownership of the bed of the river and cannot in any way be separated from that ownership. The Court in all its experience of Native land and the investigation of titles thereto, never once heard it asserted by any Maori claimant that the ownership of the bed of a stream or river running through or along the boundaries of the land the subject of investigation, whether that stream or river was navigated or not, was in any way different from the ownership of the land on its banks.[146] Later, when discussing the conversion of native collective or communal rights into individual freehold ownership, Cleary J said this: at 618:It is obvious that this process of the transformation of Maori customary rights into freehold titles involved conferring on the ascertained owners rights of a nature which had never been present to the Maori mind. It was stressed in argument that the presumption of a conveyance carrying title ad medium filum could not be made to apply to the grant of freehold titles based on Maori custom, when neither the idea of conveyance nor the notion of ownership ad medium filum had any place in Maori conceptions. To my mind this argument loses force when it is borne in mind that the whole notion of a fee simple estate owned by a limited group of ascertained persons was foreign to the Maori mind, and I do not see why the transformation of customary rights into freehold titles should result in the exclusion of the ad medium filum rule [147] Turner J, the third member of the Court, was to the same effect, observing: at 624: whatever was originally the nature of the customary title to lands which have come before the Maori Land Court for investigation [since 1865], the incidents of the titles which the same Court has issued and certified are and always have been the incidents of English freehold title Now it is, and at all material times has been, an incident of an English freehold riparian title to land on the bank of a non-tidal river that the title shall extend usque ad medium filum aquae This is a doctrine of the common law, and as such a doctrine it became applicable to titles granted and issued in New Zealand upon and after the establishment of British sovereignty in this country In the absence, then, of countervailing factual considerations, the presumption of law will be applicable to the riparian titles issued in respect of the land bounded by the Wanganui River.[148] The question of whether the Pouakani people enjoyed a right vested by custom to half of the riverbed to its medium line, divisible from rights attaching to the riparian land itself, is one of fact: see Te Ika Whenua per Cooke P at 24; Ngati Apa per Tipping J at [186]. But the findings made by the Mäori Appellate Court and upheld by the Court of Appeal in In re the Bed of the Wanganui River are stated to be of general application to Mäori custom, and Mr Millard does not suggestotherwise. He also accepts that Cooke P's obiter criticisms in Te Ika Whenua of the argument advanced for the tribe in the Wanganui River case, implying a disagreement with the result, do not assist the representatives' claim. [149] Additionally, even if Mr Millard was correct that Mäori enjoyed a discrete customary right to the riverbed, that right was extinguished by order of the Native Land Court when issuing title, and not by the subsequent act of acquisition: Ngati Apa per Elias CJ at [40] and Gault P at [99]. While the act of alienation to the Crown extinguished customary rights at the time Symonds was decided in 1847, the subsequent passage of the Native Land Act 1862 (and its successors) and the creation of the Native Land Court introduced fundamental constitutional changes. [150] At best, as Mr Millard concedes, any customary right existing before ascertainment of title was possessory, vested collectively or communally in the hapu as a whole and enforceable by physical coercion (accepting for the purpose of argument Mr Millard's thesis of a separate or divisible right). 'Native land' was defined by the Native Land Court Act 1886 as land 'owned by Natives under their customs or usages': s 3; and title to land was deemed to be ascertained when ' after the adjudication whereon it ceased to be Native land ': s 4(a). The legal character of the subject land was converted by the Court's issue of title into a formally recognised right, vested in nominated individuals, amenable to disposition for value, and enforceable in accordance with New Zealand law. As Ms Aikman submits, its customary character was extinguished as the result of the Court's decision, which necessarily preceded the Crown's purchase. The second precondition for Mr Millard's argument is also absent. [151] In order to circumvent this conclusion, Mr Millard says that the conversion of the status of the right to the riverbed from customary to legal title was of a theoretical nature. He says it was simply an incident of the Court's primary function of ascertaining individual ownership and granting title. He says it would be wrong to subvert the substantive protection to be given to customary rights by focusing on an intermediate, incidental or artificial step. It is enough to observe in answer that this argument is contrary to the terms of the Native Land Court Act 1886 and the authority discussed above.[152] Mr Millard places much emphasis on Chapman J's judgment in R v Symonds. It is unnecessary for me to subject it to discussion. Chapman J's reference to the practice of extinguishing native titles by fair purchases was made in a very different context where Governor Fitzroy by proclamations purported to waive the Crown's absolute pre-emptive right under the Treaty. The Supreme Court found that the Governor had no authority to waive this right with the effect that a settler who purchased directly from Mäori fairly and in good faith did not acquire valid title against the Crown. [153] As I have explained, the Native Land Court subsequently assumed the power to extinguish customary rights. However, in Te Ika Whenua (reinforcing earlier comments to the same effect in Muriwhenua and Wharekauri at 655 and 306 respectively) Cooke P observed at 24:Chapman J [in Symonds] also spoke of the practice of extinguishing native titles by fair purchase. An extinguishment by less than fair conduct or on less than fair terms would be likely to be a breach of the fiduciary duty widely and increasingly recognised as falling on the colonising power.[154] I am conscious of the authority of this dictum. I doubt, though, whether it was intended to apply generally. Its scope appears limited to the discrete subject of a duty assumed by the Crown when it extinguished customary title by purchase before the advent of the native land legislation. [155] In my judgment the Crown did not owe the original owners of the Pouakani land a fiduciary duty when acquiring their land between 1887 and 1892.Breach[156] It is unnecessary for me to determine the representatives' allegations of breach of duty. However, if Mr Millard is correct that the Crown owed the original owners a fiduciary duty of the type alleged, then the Crown carries the burden of proving that it explained the principle of ad medium filum to the owners and obtained their informed consent before the transactions proceeded: Mothew at 16. The Crown has not attempted to discharge that strict evidential burden. The passage of more than a century since the transactions renders it impossible to satisfy. That iswhy the affirmative defences of inability to grant relief, limitation and laches assume such importance.Relief[157] If I am wrong in my previous findings I must consider the question of whether or not the Pouakani people are entitled to the remedy of a declaration that to the extent that the Crown has claimed ownership of the Waikato River adjacent to the five blocks of land under the principle of ad medium filum it holds the riverbed as constructive trustee for the Pouakani people on terms previously discussed. [158] Mr Beck, who argued this part of the case for the Crown, does not dissent from Mr Millard's proposition that where a fiduciary acquires property in breach of its duty it is constituted a constructive trustee of that property in the absence of other factors, such as competing or countervailing equities: Official Assignee of Collier v Creighton [1993] 2 NZLR 534 (CA) at 540-541. The battleground is over the existence of competing or countervailing equities. In this regard, Mr Beck points to the alienation of some of the riparian land to others. [159] By 1892 the Crown had acquired the entire river frontage of the Pouakani land but has since disposed of parts as follows: (1) In 1915 the Crown alienated the area known as Pouakani No 2, the western portion of Pouakani No 1 and the riparian or river frontage of C3 and B8, to Wairarapa Mäori. The river frontage of the western portion of Pouakani No 1, technically part of No 2, was taken by the Crown from Wairarapa Mäori in 1949 under the Public Works Act 1928 for the development of water power (1,258 acres); (2) In 1969 a riparian strip on B10 was set aside and vested in trust in the Taupö County, known as Section 23, Block XI Whakamaru Survey District. It is reserved for recreational purposes. A new certificate of title has not been issued;(3) In 2002 the Crown obtained certificate of title CIR26177 for a piece of land within C3 (and Pouakani No 2) for an area formerly known as part section 1SO61851. It covers the section of the riverbed on which the Maraetai dam site is located. It was set apart in 2001 for water power development pursuant to the Public Works Act but remained vested in the Crown – the area contains part of the riverbed upstream of the dam, part of the dam itself and a section of the riverbed below. A new block, Lot 1 DPS89539, was created in 2003 incorporating this land and the Pouakani No 2 land and was transferred to Mighty River Power Ltd. That company, in which the Crown is the sole beneficial shareholder, now owns Lot 1 DPS89539 under Certificate of Title SA70D/710. [160] In my judgment these dispositions stand in the way of declaring the Crown a constructive trustee of the relevant lands for two reasons. [161] First, I agree with Mr Beck that the chain of the trust which the Pouakani people say was impressed on the Crown from the time of acquisition was broken by the transfer of Pouakani No 2 to the Wairarapa Mäori in 1915. While the Crown has since reacquired that substantial portion of river frontage under the Public Works Act, s 40 provides a right of pre-emption in favour of the Wairarapa owners. Those parties retain a residual or contingent right or interest in the land vested by statute. Also Mighty River Power is a separate legal entity even though the Crown is its sole beneficial shareholder. And Taupö County cannot be forced to surrender ownership or control of land which it holds under and for the purposes provided by the Reserves Act 1977. [162] Second or alternatively, the characteristics of the relevant property – the 20 mile strip of riverbed – have altered permanently since 1892. The Crown has constructed three large power stations on the riverbed since 1956 – Maraetai, Whakamaru and Waipapa. These developments have changed forever the contour of the riverbed, the shape and flow of the river and its general topography. The river serves different economic and social purposes as a result of structural changes implemented by the Crown at a time when it had no notice of this claim. The Crownnow holds much of the bed in accordance with an express statutory regime for the operation of hydroelectricity stations. [163] As Mr Beck submits, the terms of the constructive trust proposed by Mr Millard underline its unworkability. On his argument the Crown would be required to consult with and obtain approval from the representatives, on behalf of those beneficially interested, before it exercises its statutory rights and powers relating to the use of the three power stations. Their purpose is to enable the Crown to make decisions of national importance relating to hydroelectricity generation. Analogous difficulties were discussed by Cooke P in Te Ika Whenua at 25 and 27. On Mr Millard's argument the Crown would also be bound logically to transfer the relevant land to a sui juris beneficiary and account for all profits to date. [164] In my judgment a declaration of a constructive trust would not be appropriate. The interim alienation of part of the relevant land to Taupö County and Mighty River Power Ltd and the construction of three substantial hydroelectricity dams since acquisition of the riverbed eliminate the utility of that remedy. [165] There is a further problem in declaring a constructive trust for part of the land at least. The Native Land Court vested title to Pouakani No 1 in the Crown to discharge survey and related costs. The Court's order was affirmed by the Native Land Court Acts Amendment Act 1889. The order is binding unless and until annulled by another act of Parliament. The circumstances of the transaction are res judicata and this Court has no jurisdiction to grant a remedy which requires a finding of a misuse of a power by the Crown when its actions were ratified by the legislature. [166] This conclusion is not fatal to the representatives' claim. But it limits any rights of relief to compensatory remedies, compounding their exposure to a limitation defence.Limitation Act 1950[167] The Crown's alleged breaches of fiduciary duty occurred before 1892. The representatives of the Pouakani people did not issue this proceeding until 2004 – a gap of at least 112 years. A claim is normally barred if it is brought more than six years after the cause of action arose: s 4 Limitation Act 1950. [168] However, Mr Millard relies on s 21(1) which provides:Limitation of actions in respect of trust property (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action - (a) In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) To recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.[169] The representatives of the Pouakani people do not suggest fraud or fraudulent breach of trust by the Crown. Instead, Mr Millard says, the words 'trust' or 'trust property' include trusts arising from breach of a fiduciary duty: s 2 Limitation Act 1950; s 2 Trustee Act 1956. In answer Mr Beck submits that s 21(1)(b) does not apply because this is not an action 'to recover from the trustee trust property or the proceeds thereof'. [170] I agree with Mr Beck that the representatives' claim is not to 'trust property' within the meaning of s 21(1)(b): see Taylor v Davies [1920] AC 636 (PC) at 652:The expressions 'trust property' and 'retained by the trustee' properly apply, not to a case where a person having taken possession of property on his own behalf, is liable to be declared a trustee by the Court, but rather to a case where he originally took possession on trust for or on behalf of others. In other words, they refer to cases where a trust arose before the occurrence of the transaction.[171] This statement refers to the distinction between an institutional constructive trust, on the one hand, which falls within the protection of s 21(1)(b), and a remedialconstructive trust, on the other, which does not. Millett LJ explained the distinction in Paragon Finance v DB Thakerar [1999] 1 All ER 400 (CA) at 414. He also pointed out that the English equivalent of s 21(1)(b) preserves the right to bring a delayed claim for this reason: at 408-409:The explanation for the rule [developed by Courts of Chancery that an express trustee was always accountable without limit of time] was that the possession of an express trustee is never in virtue of any right of his own but is taken from the first for and on behalf of the beneficiaries. His possession was consequently treated as the possession of the beneficiaries, with the result that time did not run in his favour against them The rule did not depend upon the nature of the trustee's appointment, and it was applied to trustees de son tort and to directors and other fiduciaries who, though not strictly trustees, were in an analogous position and who abused the trust and confidence reposed in them to obtain their principal's property for themselves. Such persons are properly described as constructive trustees. Regrettably, however, the expressions 'constructive trust' and 'constructive trustee' have been used by equity lawyers to describe two entirely different situations. The first covers those cases already mentioned, where the defendant, though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the plaintiff. The second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff. A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust[172] Mr Millard seeks to bring the Pouakani people within the first category of an institutional trust. He says there was a relationship of trustee and beneficiary in existence before and independently of these transactions. He does not point to any factor or factors to justify this argument. Dickson J in Guerin is directly to the contrary. He held that, while the fiduciary relationship found to exist between the Crown and the tribe had analogies with trust law, the relationship was not that of trustee and beneficiary. Furthermore, the interest which crystallised a fiduciary obligation upon the Crown in Guerin did not arise until surrender of the land: at 385.[173] Mr Millard's argument also contradicts the representatives' statement of claim and evidence. They allege, consistently with Guerin, that the fiduciary duty arose out of the transactions. What they seek in reality is a remedial constructive trust which, as Millett LJ points out in Paragon, is not really a trust at all but 'merely a remedial mechanism by which equity gave relief for fraud': at 409. [174] Alternatively, Mr Millard submits that the limitation period does not apply because the Crown is in breach of its ongoing fiduciary obligations: see FAI (NZ) General Insurance v Blundell and Brown Ltd [1994] 1 NZLR 11 (CA) at 16. He says that the Crown is under a continuing duty to rectify. I agree with Mr Beck. All other things apart, rectification is now impossible given the Crown's alienation of some of the lands and the duties imposed by the Public Works Act; in any event, the representatives of the Pouakani people do not seek to rectify the breach by setting aside the transactions. This claim is time barred.Laches and Acquiescence[175] The Crown's final line of defence is that the representatives of the Pouakani people are guilty of acquiescence or laches. It relies on much of the same ground as its defences to impositions of a remedial constructive trust and limitation. Even if the limitation defence does not apply, the Crown argues that the doctrine of laches applies to bar an equitable claim not brought within a reasonable time where it would be unreasonable or unconscionable to permit a plaintiff to enforce its rights: Eastern Services Ltd v No 68 Ltd [2006] 3 NZLR 335 (SC). [176] I agree with Mr Beck. The representatives' delay in bringing this proceeding is extreme and renders the claim unconscionable. As already noted, if Mr Millard is correct that a fiduciary relationship existed, the Crown carries the burden of proving informed consent to the relevant transactions. I repeat that it would be self-evidently impossible for the Crown to discharge this burden over 100 years after the limitation period had expired. The Crown has lost access to all relevant witnesses and possibly to material documents.[177] I am satisfied that the representatives of the Pouakani people can be said to have acquiesced in the extraordinary period of delay, and the doctrine of laches applies to them.Decision[178] The claim brought by the representatives of the Pouakani people fails on each of these grounds: (1) The claim is not justiciable by virtue of the PCSA; (2) The representatives lack standing to bring this claim; (3) The Waikato River was a navigable river in 1903 within the meaning of s 14 CMAAA; (4) The Crown did not owe the Pouakani people a fiduciary duty when acquiring the land between 1887 and 1892; (5) Relief by way of a declaration of a constructive trust is now unavailable to the Pouakani people; (6) The representatives' claim is time-barred. [179] Judgment is entered for the Crown against the plaintiffs. Costs normally follow the event. I trust, though, in this case the parties are able to agree. If not, the Crown is to file a memorandum (of no more than 10 pages in length) in support of an application by 20 August 2008. The representatives are to respond in the same manner by 10 September 2008.[180] I wish to conclude by expressing my gratitude to all counsel for the quality of their argument, both written and oral. This case raised difficult and novel legal issues which were argued with great skill and insight by both sides. ______________________________________ Rhys Harrison J