TŪWHARETOA MĀORI TRUST BOARD v TAUPŌ WATERS COLLECTIVE LIMITED [2021] NZHC 1871

TŪWHARETOA MĀORI TRUST BOARD v TAUPŌ WATERS COLLECTIVE LIMITED [2021] NZHC 1871[23 July 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-690[2021] NZHC 1871UNDER The Declaratory Judgments Act 1908IN THE MATTER OF a Deed between the Crown and theTūwharetoa Māori Maori Trust Board dated10 September 2007BETWEEN TŪWHARETOA MĀORI TRUST BOARDApplicantAND TAUPŌ WATERS COLLECTIVELIMITEDDefendantAND ATTORNEY-GENERALIntervenorHearing: 3 and 4 September 2020Appearances: A R Galbraith QC, J P Ferguson and C Conroy-Mosdell for theApplicantG L Melvin and H M Carrad for the IntervenerW L Aldred and S Cathro, Counsel Assisting the CourtJudgment: 23 July 2021JUDGMENT OF GWYN JTABLE OF CONTENTSIntroduction [1]The parties [5]Factual background [14]Relevant portions of the 2007 Deed relied on by the Trust Board [27]Declarations sought [36]Declarations sought by the Trust Board [36]Declarations sought by the Collective [38]Approach [41]Principles of interpretation [41]Jurisdiction under the Declaratory Judgments Act 1908 [44]Jurisdiction of Māori Land Court under Te Ture Whenua Māori Act 1993 [49]Relevance of Commerce Act 1986 to interpretation of the 2007 Deed [51]Issues [56]Issue one: the nature and extent of the Trust Board's legal title [57]Issue two: whether a common law right of public navigation exists in respect of TaupōWaters [60]Submissions [66]The Collective [66]The Attorney-General [70]The Trust Board [78]Analysis [87]Conclusion [105]Issue three: the Crown's power to license [108]Issue four: whether an exemption for holders of berthing and launching permits exists[112]Submissions [117]The Collective [117]The Attorney-General [122]The Trust Board [124]Analysis [126]Conclusion [138]Issue six: the role of the Management Board, the management plan, and the ReservesAct 1977 [140]Submissions [144]The Collective [144]The Trust Board [150]The Attorney-General [155]Analysis [156]Conclusion [167]Issue five: recreational use activities that exclude the general public [170]Submissions [172]The Collective [172]The Trust Board [173]The Attorney-General [177]Analysis [178]Conclusion [184]Orders [186]Costs [188]Appendix A [189]Introduction[1] This proceeding concerns an application by the Tūwharetoa Māori Trust Board(the Trust Board) for declarations under the Declaratory Judgments Act 1908 (the Act)in relation to the construction of a Deed between the Trust Board and the Crown dated10 September 2007 (the 2007 Deed).[2] The 2007 Deed records the agreement between the Trust Board and the Crownregarding the rights and interests of the Trust Board, the Crown, the public and certainother persons in relation to the land comprising the bed of Taupō Moana(Lake Taupō),1 the bed of Te Awa o Waikato (the Waikato River) from Lake Taupō tothe Huka Falls,2 and the beds of parts of certain associated waterways flowing intoLake Taupō, collectively referred to as "Taupō Waters".[3] The 2007 Deed revoked and replaced an earlier Deed between the Trust Boardand the Crown dated 28 August 1992 (the 1992 Deed), under which the Crown agreedthat ownership of the land comprising Taupō Waters would be vested in the TrustBoard.[4] The public's general freedom of entry to and access of Taupō Waters fornon-exclusive, non-commercial recreational use is not in dispute.3 It is the rights ofthe Trust Board in relation to various entities and other persons who presently occupyand/or use parts of Taupō Waters for commercial activities (Commercial Users) thatare in dispute. The Trust Board seeks the declarations in the context of negotiationsbetween the Trust Board and Commercial Users of Taupō Waters (including the usersrepresented by the respondent, Taupō Waters Collective Limited (the Collective)),regarding a proposed commercial licensing regime for Taupō Waters. The Trust Boardseeks declarations to clarify the nature and extent of its rights under the 2007 Deed, inparticular, its rights to:1 Also known as Lake Taupō-nui-a-Tia.2 The precise point on the Waikato River is Te Toka a Tia (the rock of Tia).3 This is preserved by cls 1.7 and 2.2.1 of the 2007 Deed.(a) grant rights of occupation or use, by way of licence, lease, easement orsimilar arrangement (licences), in respect of commercial activities andcertain private structures in or on Taupō Waters; and(b) charge for such licences.The parties[5] The applicant is a Māori trust board established under s 10 of the Māori TrustBoards Act 1955, and its beneficiaries are the members of Ngāti Tūwharetoa (asdefined in that Act). The Trust Board is the fee simple owner of Taupō Waters, whichhas the status of Māori freehold land under Te Ture Whenua Māori Act 1993.[6] The respondent is the Collective, which was incorporated on 14 March 2017to act as a representative body for certain Commercial Users of Taupō Waters.4[7] The Attorney-General was initially named as the respondent in theproceedings, as the other party to the 2007 Deed. However, with the consent of theTrust Board, the Attorney-General was struck out as respondent on the basis that theAttorney-General broadly agreed with the declarations sought and was unable to fulfilthe proper role of a contradictor.5 The Attorney-General was then joined as anintervenor. The Attorney-General has had no involvement in negotiations between theTrust Board and the Collective that have occurred to date. The Attorney-General fileda Statement of Position, recording his agreement with all of the declarations sought bythe Trust Board and his disagreement with all of the alternative declarations sought bythe Collective.[8] The Collective subsequently gave notice that it would assume the status ofrespondent in the proceeding, to oppose the declarations sought by the Trust Board,and Grice J made orders accordingly in a minute dated 22 March 2018.[9] Subsequently, counsel for the Collective advised the Court that it would takeonly a limited role at hearing. Accordingly, Ms Aldred was appointed as counsel to4 The members of the Collective as at 19 October 2017 are attached as Appendix A.5 Canterbury Regional Council v Attorney-General [2009] NZAR 611 at [43].assist the Court. In making the appointment, Grice J noted in a minute dated14 May 2020: Because Taupō Waters Collective Ltd is not able to continue its role ascontradictor as it had envisaged, Ms Aldred will place before the Court thearguments she considers should be made in contradiction to the position of theapplicant and the Attorney-General. This will enable all relevant argumentsto be placed before the Court.[10] Mercury NZ Limited (Mercury) was an interested party in the proceeding.Mercury is the owner and operator of the Waikato hydroelectricity system, includingthe land and structures comprising the Taupō Control Gates. The Trust Board andMercury are parties to both: a registered easement number 9880618.1 (the MercuryEasement), which was registered against Record of Title 191117 (South Auckland) on1 December 2014; and an agreement, which is referred to in the Mercury Easement(the Tūwharetoa-Mercury Agreement).[11] While the 2007 Deed does not apply to the Taupō Control Gates, Mercury wasconcerned that declarations made in these proceedings could affect hydroelectricoperations on the Waikato River and/or Lake Taupō (collectively, the Mercuryactivities) directly, indirectly or inadvertently. The scope of the Mercury activitiescontemplated by the parties is set out in the Mercury Easement and theTūwharetoa-Mercury Agreement.[12] The Trust Board does not intend the declarations sought in this proceeding toapply to or affect the Mercury Activities. Accordingly, the Trust Board and Mercurysought an order by consent that to the extent any declaration or judgment resultingfrom the proceeding relates to the Trust Board's right to acquire a licence (or otherform of permission) and/or charge for occupation or use of Taupō Waters by anyperson, or otherwise relates to the rights of any person to occupy or use Taupō Waters,such declaration or judgment is not intended to include, and does not include, Mercuryinsofar as it (or any assignee or successor of Mercury, or any person acting for thebenefit of or on behalf of Mercury) undertakes the Mercury Activities.[13] I granted an order on those terms by way of minute dated 2 September 2020,and Mercury withdrew as a party following the making of the order.Factual background[14] I adopt the Trust Board's overview of the relevant background in thisproceeding.[15] Lake Taupō, its tributaries, and part of the Waikato River are within the rohe(tribal territory) of Ngāti Tūwharetoa and are of significance to Ngāti Tūwharetoa.The recitals to the 2007 Deed record that Lake Taupō is a taonga of Ngāti Tūwharetoa,and embodies the mana and rangatiratanga of Ngāti Tūwharetoa. In He MaungaRongo: Report on Central North Island Claims (the Tribunal Report), theWaitangi Tribunal made the following findings in respect of Ngāti Tūwharetoa'srelationship with Lake Taupō:6As a result of the evidence we heard, we find that Lake Taupō waters and freshwater fisheries were taonga, exclusively possessed by Ngāti Tūwharetoa andtheir whanaunga and over which they exercised tino rangatiratanga as at 1840.Therefore, the Crown did have a duty to actively protect both the taonga,Lake Taupō waters and fisheries, and Ngāti Tūwharetoa's rangatiratanga overthem. That rangatiratanga consisted of:• possession of the taonga;• authority over the taonga;• a cultural and spiritual relationship with the taonga; and• responsibility to care for the taonga.All of these things were guaranteed and protected by the Treaty.[16] Negotiations between Ngāti Tūwharetoa and the Crown led to an agreement in1926 whereby, among other things, the general public were to be allowed access to theLake Taupō fishery (the 1926 Agreement). The bed of Lake Taupō and the bed of theWaikato River extending from Lake Taupō to and inclusive of Huka Falls, togetherwith the right to use the respective waters, were subsequently declared to be theproperty of the Crown under s 14 of the Māori Land Amendment and Māori LandClaims Adjustment Act 1926 (the 1926 Act).7 By proclamation on 7 October 1926 (asamended by further proclamation on 18 February 1927) under s 14(4) of the 1926 Act,6 Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (Wai 1200, 2008)vol 4 at 1286.7 Originally titled the Native Land Amendment and Native Land Claims Adjustment Act 1926.the beds of the rivers and streams flowing into Lake Taupō (as described in theschedule to the proclamation) were declared to be Crown land.[17] Ngāti Tūwharetoa disputed that the agreement negotiated with the Crown in1926 included the vesting of title to the bed of Lake Taupō and the Waikato Riverextending from Lake Taupō to and inclusive of the Huka Falls or the beds of riversand streams flowing into Lake Taupō, and sought the return of those lands. The Crownand the Trust Board agreed, by the 1992 Deed, that ownership of Taupō Waters shouldbe revested in the Trust Board to be held in trust in accordance with the terms of the1992 Deed.[18] By the cumulative effect of orders made by the Māori Land Court on22 September 1993, 14 December 1999, 27 February 2001, 23 August 2001 and14 April 2003, Taupō Waters was vested in the Trust Board; and Taupō Waters wasdeclared to be Māori freehold land under the Te Ture Whenua Māori Act 1993. On7 December 2004, certificates of title as Māori freehold land were issued in the nameof the Trust Board for the Taupō-nui-a-Tia Block and the Te Awa o Waikato ki te Tokao Tia Block.[19] On 10 September 2007, following negotiations regarding the nature and extentof the Trust Board's rights under the 1992 Deed, the Crown and the Trust Boardentered into the 2007 Deed. The 2007 Deed records (among other things) that it is anagreement to clarify legal issues, and that it revokes and replaces the 1992 Deed.Clause 1.3 of the 2007 Deed recites, that, through the 1992 Deed, the Crown agreedthat ownership of the Taupō Waters should be vested in the Trust Board to be held intrust (in accordance with the 1992 Deed) for:(a) in relation to the bed of Lake Taupō, the beneficiaries of the TrustBoard;(b) in relation to the beds of the specified part of the Waikato River andcertain rivers or streams flowing into Lake Taupō, the members of theNgāti Tūwharetoa hapū who adjoin such rivers or streams; and(c) in relation to all such beds, the common use and benefit of all thepeoples of New Zealand to continue to have freedom of entry to, andaccess upon, such beds as set out in the 1992 Deed.[20] On 24 March 2009, the Taupō Waters Trust was established by order of theMāori Land Court to, among other things, administer the land comprising TaupōWaters. The Trust Board is the trustee of the Taupō Waters Trust. The Taupō WatersTrust presently operates under an amended trust order dated 20 November 2015.[21] The Taupō-nui-a-Tia Management Board (the Management Board) wasestablished to manage Taupō Waters in partnership between the Trust Board and theCrown, and the Trust Board appoints four of the eight members of the ManagementBoard. As part of its functions under the 2007 Deed, the Management Board is todetermine a management plan for Taupō Waters. The Management Board issued itsfirst management plan in June 2011.[22] As already noted, Commercial Users, including members of the Collective,presently occupy and/or use parts of Taupō Waters for commercial activities. Some ofthe commercial activities undertaken on Taupō Waters relate to specific events, othersto year-round activities, and some relate to structures. Some Commercial Users haveagreed licences with the Trust Board.[23] The Trust Board wished to take a staged approach to the development andintroduction of a licensing regime for commercial activities involving Taupō Waters.It focused initially on major commercial entities and annual events operators. It thenmoved to engagement with Commercial Users who operate commercial vessels, oroccupy structures, on Lake Taupō (Transitory and Structure Users), which includedsome members of the Collective. As at the date of hearing, it had not commencedsubstantive engagement with commercial operators on the waterways flowing intoLake Taupō or with commercial fly-fishing guides.[24] In early 2013, the Trust Board requested various Transitory and StructureUsers, including members of the Collective, to register with the Trust Board if theywere undertaking commercial activities on Taupō Waters.[25] Between 2013 and March 2017, there were discussions between the TrustBoard and Commercial Users concerning the terms and conditions on which the TrustBoard would grant rights by way of written licence to the Transitory and StructureUsers, to enable them to occupy and/or use parts of Taupō Waters for commercialpurposes.[26] On 24 August 2017 the Trust Board filed this proceeding. At that time, and asat the date of hearing, the Trust Board and the Collective (and the Commercial Usersthat it represents) have not agreed the terms and conditions on which the Trust Board(if entitled) may grant licences for the occupation and/or use of Taupō Waters forcommercial purposes. While the Trust Board anticipates that the Court's decision willassist it in its engagement with members of the Collective, and other CommercialUsers, any declarations granted in the proceeding will not conclude the terms of anyLicences between the Trust Board and commercial operators or the commercial termsof the proposed licensing regime more generally.Relevant portions of the 2007 Deed relied on by the Trust Board[27] First, the Trust Board highlights that the public's general freedom of entry toand access for non-exclusive, non-commercial recreational use of Taupō Waters is notin dispute. This is preserved by clauses 1.7 and 2.2.1 of the 2007 Deed:1.7 This Deed continues the agreement of the parties that:1.7.1 the people of New Zealand's freedom of entry to and accessupon Taupō Waters for non-exclusive, non-commercialrecreational use and enjoyment and non-commercial researchpurposes free of charge is preserved; and2.2 Access to Taupō Waters2.2.1 The people of New Zealand shall continue to have freedom ofentry to and access upon Taupō Waters for non-exclusive,non-commercial recreational use and enjoyment andnon-commercial research free of charge as if Taupō Waterswere a reserve for recreation purposes.[28] The Trust Board says it is clear that it has the right to grant rights of occupationor use for commercial and private structures and other activities, and to charge forthese rights. The key provision relied on by the Trust Board is cl 2.5.1:2.5 Board's right as owner to grant rights of occupation or use forcommercial and private structures and other activities2.5.1 The Board, as owner, may grant rights of occupation or use ofparts of Taupō Waters for any purpose and charge for the samePROVIDED that no such rights shall conflict with:a) any enactment affecting navigation or safety overTaupō Waters;b) any other provision of this Deed; andc) the provisions of any Management Plan establishedby the Taupō-nui-a-Tia Management Board.[29] The relevant exceptions to the Trust Board's rights under cl 2.5.1 are set out incl 2.5.5:2.5.5 Notwithstanding clause 2.5.1, the following persons shall notbe required to obtain any right of occupation or use from theBoard:(a) persons on Taupō Waters pursuant to clause 2.2.1,including non-commercial anglers andnon-commercial boaters from whom the Crown maycharge and collect fees;(b) the Crown in respect of existing structures listed inSchedule 3;(c) the holders of berthing or launching permits issued bythe Harbourmaster, in respect of berths, wharves orramps or other structures, details of which structuresare set out in Schedule 3;8(d) the owners of the existing private structures listed inSchedule 5, in respect of such structures, provided theycomply with clause 2.5.2; and(e) the holders of mooring permits issued by theHarbourmaster, in respect of such moorings, details ofwhich moorings are set out in Schedule 6.8 For the avoidance of doubt holders of permits under this paragraph will require consent from theBoard to operate any commercial business on Taupō Waters.[30] The Trust Board says that notwithstanding the preservation of rights under2.5.5 of the 2007 Deed, a right of occupation and use is clearly required from the TrustBoard for any commercial activities on Taupō Waters beyond the specified berths,wharves, ramps, structures or moorings referred to there.[31] The Trust Board points to cl 2.5.2, which sets out the basis upon which theTrust Board's waiver of its right as owner to grant occupation and use rights for privatestructures will continue:2.5.2 Notwithstanding clause 2.5.1, the Board waives its rights asowner to grant rights of occupation or use to the owners ofexisting private structures on or in Taupō Waters as identifiedin Schedule 5 and is not liable for any loss or damage causedby or arising from those structures. The Board's waiver shallcontinue so long as:(c) such structures are used solely for privatenon-commercial purposes.[32] The Trust Board also points to cl 3.2 of the 2007 Deed, to support what it saysis the clear intention in the 2007 Deed that the Trust Board has the power to requireCommercial Users of Taupō Waters to obtain occupation and use rights:3.2 Nothing in this Deed is intended to exclude or limit:3.2.1 The exercise by the Crown of any statutory power to controlor manage commercial fishing, provided that no person shalloperate any commercial right on Taupō Waters without alicence from the Board; or3.2.2 Any of the provisions of section 14(2) of the Māori LandAmendment and Māori Land Claims Adjustment Act 1926.[33] The Trust Board also points to cl 3.3 of the 2007 Deed, whereby the TrustBoard acknowledges the Crown's right to control and legislate in respect of waterincluding its use and quality, public safety, public health, navigation and recreation.[34] Clause 3.5 includes an acknowledgement by the Trust Board of the role of theHarbourmaster appointed by the Minister of Local Government, and that the2007 Deed and the operations of the Management Board are subject to theLocal Government Act 1974 and any other enactment regulating navigation and safety.[35] Flowing from that, the Trust Board points to the Lake Taupō Navigation SafetyBylaw 2017 (2017 Bylaw), issued under ss 33M and 33W(4) of theMaritime Transport Act 1994. By way of example, the 2017 Bylaw prohibits placingor maintaining moorings on Lake Taupō without a permit from the Harbourmaster;9places limits on restricted anchorages;10 reserves and places limits within areas forwater skiing and towing;11 and reserves and places limits within areas for swimming.12The Trust Board says that the Notes at the end of the 2017 Bylaw are significant:131. Any persons or entity wishing to undertake a commercial activity onTaupō Waters requires approval and a licence to operate from theTūwharetoa Māori Trust Board. Declarations soughtDeclarations sought by the Trust Board[36] The Trust Board seeks declarations to clarify the nature and extent of its rightsunder the 2007 Deed, in particular, its rights to: grant rights of occupation or use, byway of Licences, in respect of commercial activities and certain private structures inor on Taupō Waters; and charge for such Licences.[37] The Trust Board seeks the following declarations in respect of the 2007 Deed:(a) A declaration that the Trust Board has the right under cl 2.5.1 of the2007 Deed to:(i) require the Commercial Users to obtain from the Trust Boardrights to occupy or use parts of Taupō Waters for commercialactivities; and(ii) charge Commercial Users for the same.(b) A declaration that in the absence of:9 Lake Taupō Navigation Safety Bylaw 2017, r 2.4.10 Rule 2.6.11 Rules 3.1–3.4.12 Rules 4.1–4.2.13 At 24.(i) an exemption under cl 2.5.5 of the 2007 Deed; or(ii) an occupation or use right granted by the Trust Board undercl 2.5.1 of the 2007 Deed;the Commercial Users have no lawful right to occupy or use any partof Taupō Waters for commercial activities.(c) A declaration that Commercial Users who hold permits undercl 2.5.5(c) of the 2007 Deed are not exempt from obtaining anoccupation or use right from the Trust Board under cl 2.5.1 of the 2007Deed to undertake the commercial activities on Taupō Waters.(d) A declaration that the provisions of the Reserves Act 1977 do notrequire the Trust Board to grant an occupation or use right for a term of33 years or any other specific term.(e) A declaration that the grant of a resource consent to a Commercial Userin relation to a commercial activity on Taupō Waters does not exemptany such Commercial User from obtaining an occupation or use rightfrom the Trust Board as the owner of Taupō Waters.(f) A declaration that the Trust Board may grant occupation or use rightsunder cl 2.5.1 of the 2007 Deed notwithstanding the establishment,enforceability and/or validity of any management plan promulgated bythe Taupō-nui-a-Tia Management Board.(g) A declaration that the occupation or use of any part of Taupō Waters forcommercial activities:(i) does not constitute the exercise of any public right of navigationover Taupō Waters; and(ii) is not incidental to the exercise of any public right of navigationover Taupō Waters.Declarations sought by the Collective[38] The Collective opposes the declarations sought. The Collective says thatpreviously the Crown collected fees from Commercial Users of the lake on a costrecovery basis. Commercial Users were not consulted in regard to what is a radicalchange, whereby the Trust Board wishes to charge commercial fees.[39] The Collective's position is, first, that the Trust Board's rights of use and entryover Lake Taupō are qualified by virtue of a likely common law right of publicnavigation. Second, the ordinary meaning of the 2007 Deed does not provide for theTrust Board to levy licence fees on Transitory Users, to pursue commercial activitieson Taupō Waters. Third, it says that the Trust Board misapprehends the role of theManagement Board. The Commercial Users of Taupō Waters who are the owners offixed moorings (who the Collective accepts are not exempt from the requirement toobtain a licence from the Trust Board), should not be required to do so until theManagement Board has prepared a management plan for Taupō Waters in accordancewith cl 2.3 of the 2007 Deed.[40] The Collective seeks alternative declarations, in the following terms:(a) That the Trust Board may not, in respect of a holder of a berthing orlanding permit issued by the Harbourmaster, require the payment of anyfee for the occupation or use of Taupō Waters by that permit holder.(b) That the Deed does not provide for the Trust Board to have the powerto require payment for the issuance of a consent to operate acommercial business on Taupō Waters.(c) That the phrase "recreational use activities that may exclude the generalpublic's use of parts of Taupō Waters" in the Deed includes activitiesof a recreational nature even where those activities are undertaken by acommercial operator for commercial gain.(d) That the obligations on the Management Board to manage TaupōWaters as if a reserve for recreation purposes under s 17 of the ReservesAct in partnership with the Crown, includes an obligation on thatmanagement board to prepare a management plan which provides forthe management and regulation of both commercial and non-commercial recreational use.(e) That, as the administering body, when preparing a management plan,the Taupō-nui-a-Tia Management Board is obliged to do so inaccordance with the provisions of s 41 of the Reserves Act.(f) That the Deed explicitly provides that Taupō Waters does not includethe water, and accordingly any charge imposed by the Trust Boardpursuant to cl 2.5.1 may only be calculated by reference to any actualinfringement of the Trust Board's bundle of ownership rights over theland referred to as Taupō Waters (as that land is defined in the1992 Deed) that may be caused by any occupation or use, and not byreference to the use of the water itself.ApproachPrinciples of interpretation[41] The relevant principles of interpretation are broadly agreed by the parties. TheCourts take an objective approach to contractual interpretation, which does not limitthe background material available to interpret the contract. However the material mustbe reasonably relevant and objective.14 Once a provisional meaning has been derivedfrom the language of the contract, a "cross-check" should be performed by referenceto the context.15 The subjective intention of the parties is not determinative, howeverit is appropriate to have regard to:16 evidence derived from the negotiations which shows objectively themeaning the parties intended their words to convey. Such evidence includesthe circumstances in which the contract was entered into, and any objectivelyapparent consensus as to meaning operating between the parties.14 Malthouse Ltd v Rangatira Ltd [2018] NZCA 621 at [19].15 At [22].16 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [27].[42] The Trust Board also submits that if the Court finds that there is any ambiguityin the meaning or effect of the 2007 Deed, regard should be had to the historicalcontext, purpose and intent of the 2007 Deed and the associated vesting ofTaupō Waters in the Trust Board under the 1992 Deed. While neither the 2007 Deedor the 1992 Deed is a deed of settlement between the Crown and Ngāti Tūwharetoa inrespect of historical treaty claims, and do not preclude or prejudice any such claims,cl 3.6 of the 2007 Deed records that: The agreements within this Deed may, however, be raised in anyproceedings as evidence of how the Crown has sought to provide forsettlement of issues relating to Taupō Waters (including the settlement of anyhistorical or contemporary claims relating to the annuity payment undersection 10 of the Māori Trust Boards Act 1955).[43] The revesting of freehold title to Taupō Waters in the Trust Board was asignificant element in addressing the long-standing grievances of Ngāti Tūwharetoain relation to Lake Taupō and associated waterways. In the Trust Board's submission,in those circumstances, where the fundamental intent is the restoration of title toNgāti Tūwharetoa, in the absence of express words to the contrary, the 2007 Deedshould be construed in a way that minimises the limitations that are placed on theTrust Board's ability to exercise the full legal rights of a landowner, including thepower to grant rights of occupation and use.Jurisdiction under the Declaratory Judgments Act 1908[44] Under the Act, the Court has jurisdiction to construe and determine the validityof a "statute, regulation, bylaw, deed, will, document of title, agreement,memorandum, articles, or instrument".17 The Court's jurisdiction under the Act isintended to provide a speedy and inexpensive method of obtaining judicialinterpretation where the matter cannot conveniently be brought before the Court in itsordinary jurisdiction, and where a declaratory judgment would be appropriate relief.18The jurisdiction to make orders under the Act is wholly discretionary.19 The discretion17 Declaratory Judgments Act 1908, s 3.18 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85.19 Declaratory Judgments Act, s 10.is broad and empowers the Court to refuse to give or make any judgment or order "onany grounds which it deems sufficient".20[45] Counsel assisting questioned the jurisdiction of the Court under theDeclaratory Judgments Act in this particular proceeding, in two respects:(a) the case involves mixed questions of law and fact, and the Collectivesays that a detailed factual inquiry is necessary to determine thepre-1926 status of the lake and the questions as to Ngāti Tūwharetoatikanga raised by the Trust Board;21 and(b) not all persons interested in and affected by the questions in issue arerepresented in the proceeding.[46] In response to the second issue, the Trust Board notes the Collective wasincorporated in 2017 to represent the interests of Commercial Users on Taupō Watersand expressly represents a wide range of those commercial operators. The declarationssought by the Trust Board arise from issues expressly raised in the course of itsengagement with Commercial Users, including members of the Collective. Thedeclarations sought do not seek to set the specific terms of licences between the TrustBoard and individual Commercial Users. Further, the Trust Board served theproceedings on all known Commercial Users of Taupō Waters (licensed andunlicensed), and public notice of the proceedings was published in the Taupō Timeson 10 and 14 November and 1 December 2017.[47] The question of whether it is necessary for the Court to undertake a detailedfactual inquiry is dealt with below.[48] In these circumstances I am satisfied that it is appropriate for the Court toaddress the declarations sought by the Trust Board.20 Section 10.21 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd, above n 18, at 85;Pouwhare v Kruger HC Wellington CIV-2009-485-976, 12 June 2009.Jurisdiction of Māori Land Court under Te Ture Whenua Māori Act 1993[49] Counsel assisting the Court notes that Taupō Waters has been vested in theTrust Board as Māori freehold land. Under Te Ture Whenua Māori Act, theMāori Land Court has jurisdiction to determine any claim, whether at law or in equity,to any "right, title, estate, or interest" in Māori freehold land.22 The terms of anydeclarations granted by this Court should therefore be reviewed to take into accountthe operation of Te Ture Whenua Māori Act, and it may be appropriate for anydeclarations granted to be made expressly subject to that Act.[50] In the usual course, a claim concerning rights of occupation and usage of TaupōWaters would be heard by the Māori Land Court. However, Te Ture Whenua MāoriAct expressly preserves the jurisdiction of the High Court under the DeclaratoryJudgments Act.23 As a result, this Court has jurisdiction to determine the application.Any applicable provisions of Te Ture Whenua Māori Act will continue to applyregardless of any declarations made by this Court. I agree with the Trust Board thatno declaration, or additional qualification on any declaration, to this effect isnecessary.Relevance of Commerce Act 1986 to interpretation of the 2007 Deed[51] The Collective suggests that there is evidence of actual and potentialanti-competitive conduct by the Trust Board under the Commerce Act 1986 which, itsays, is relevant in two respects. First, there is potential for exploitation by the TrustBoard of its market power in the absence of any express controls in the Deed, whichtends to support the Collective's interpretation of the Deed (that is, that it does notprovide for a right to charge Transitory Users licence fees for their activities on TaupōWaters). Second, the evidence of the Trust Board's conduct is relevant to the exerciseof the Court's discretion under the Declaratory Judgments Act.[52] In making that assertion, the Collective relies on the evidence ofJohn Stephenson, economist and partner at Sense Partners Limited, an independenteconomic consultancy firm, who provides a "preliminary, high-level" assessment of22 Te Ture Whenua Māori Act 1993, s 18(1)(a).23 Section 349.competition issues. Mr Stephenson refers to a risk of anti-competitive behaviour, butdoes not assert that there have been any breaches of s the Commerce Act. He alsoacknowledges that "a much more detailed assessment would be required" to determinewhether there was any lessening of competition caused by uncertainty of the accessregime for Commercial Users or the arrangements in the 2007 Deed, and if such aneffect is material.[53] The Trust Board acknowledges that it is aware of the requirements of theCommerce Act as they apply to the Trust Board and its activities. It notes also its otherlegal obligations, not only to its beneficiaries, but as the owner of Taupō Waters interms of other statutory and regulatory frameworks. It says it has a responsibility, aslandowner, to ensure that all Commercial Users of Taupō Waters are appropriatelylicensed.[54] The Trust Board acknowledges that those Commercial Users who have enteredinto licences with the Trust Board are at a relative disadvantage to those CommercialUsers, including members of the Collective, who have not yet entered into a licenceand who are operating free of charge on Taupō Waters.[55] I agree with the Trust Board and the Attorney-General that the possibility that,at some time in the future, a party may act in breach of the terms of the Commerce Actis not a matter that can affect this Court's interpretation of the 2007 Deed, in terms ofthe nature and extent of the legal rights of the Trust Board as the owner of TaupōWaters. As counsel for the Attorney-General notes, the Trust Board has rights as thefee simple owner of Taupō Waters. If the Trust Board were to abuse its market power,the Commerce Act contains the means by which members of the Collective, or otherparties, might address that conduct.Issues[56] The parties agreed on a statement of the issues which the Court must considerin order to determine whether or not to grant the declarations sought by theTrust Board, or the alternative declarations sought on behalf of the Collective. Theseissues relate to:(a) first, the nature and extent of the Trust Board's legal title;(b) second, whether a common law right of public navigation exists inrespect of Taupō Waters;(c) third, the Crown's power to license;(d) fourth, whether an exemption for holders of berthing and launchingpermits exists;(e) fifth, recreational use activities that exclude the general public; and(f) sixth, the role of the Management Board, the management plan, and theReserves Act.Issue one: the nature and extent of the Trust Board's legal title[57] The first question posed by the parties is: does the Trust Board's ownership ofTaupō Waters exclude the space occupied by water (water column)?[58] It appears this issue relates primarily to the following declaration sought by theCollective:(f) That the Deed explicitly provides that Taupō Waters does not includethe water, and accordingly any charge imposed by the Trust Boardpursuant to cl 2.5.1 may only be calculated by reference to any actualinfringement of the Trust Board's bundle of ownership rights over theland referred to as Taupō Waters (as that land is defined in the 1992Deed) that may be caused by any occupation or use, and not byreference to the use of the water itself.[59] By the time of the hearing this issue was no longer advanced on behalf of theCollective. For completeness, I confirm I therefore decline to make the declarationsought by the Collective at (f).Issue two: whether a common law right of public navigation exists in respect ofTaupō Waters[60] The second question is: does a common law right of public navigation exist inrespect of Taupō Waters?[61] The Collective says that, notwithstanding the 2007 Deed, a common law rightof public navigation applies to Taupō Waters and, as a consequence, the Trust Boardcannot charge those operators whose business is conducted on the lake for the exerciseof a public right of this kind.[62] Both the Trust Board and the Attorney-General dispute the existence of apublic right of navigation over Lake Taupō.[63] The arguments raised under this issue relate most closely to the followingdeclarations sought by the Trust Board:(e) A declaration that the grant of a resource consent to a CommercialUser in relation to a commercial activity on Taupō Waters does notexempt any such Commercial User from obtaining an occupation oruse right from the Trust Board as the owner of Taupō Waters.(g) A declaration that the occupation or use of any part of Taupō Watersfor commercial activities:(i) does not constitute the exercise of any public right ofnavigation over Taupō Waters; and(ii) is not incidental to the exercise of any public right ofnavigation over Taupō Waters.[64] Given the interpretation of the 2007 Deed required to address the argumentsraised under this issue, I also consider the more general declarations sought by theTrust Board:(a) A declaration that the Trust Board has the right under cl 2.5.1 of the2007 Deed to:(i) require the Commercial Users to obtain from the Trust Boardrights to occupy or use parts of Taupō Waters for commercialactivities; and(ii) charge Commercial Users for the same.(b) A declaration that in the absence of:(i) an exemption under cl 2.5.5 of the 2007 Deed; or(ii) an occupation or use right granted by the Trust Board undercl 2.5.1 of the 2007 Deed;the Commercial Users have no lawful right to occupy or use any partof Taupō Waters for commercial activities.[65] And the more general declaration sought by the Collective:(b) That the Deed does not provide for the Trust Board to have the powerto require payment for the issuance of a consent to operate acommercial business on Taupō Waters.SubmissionsThe Collective[66] Counsel assisting submits that a common law right of public navigation can beestablished in respect of non-tidal waters, such as Lake Taupō, in particular wherethere has been a long public use for a given purpose.24 Counsel submits the scope ofsuch a right is broad, and can include, for example, recreational activities such asrunning courses in canoeing.25[67] The Collective points to a number of factors which, it says, indicate a"reasonable prospect" that the lake has been subject to a common law right of publicnavigation since before the 1926 Agreement. The factors relied on by counselassisting are:(a) With reference to Tamihana Korokai v Solicitor-General, Lake Rotoruawas used for many years "as a public highway for purposes ofnavigation";26 counsel submits that it seems unlikely that the positionwas different for Lake Taupō, given its size and location.24 Paki v Attorney General [2012] NZSC 50, [2012] 3 NZLR 277 at [16] and [159]; Marshall vUlleswater Steam Navigation Co (1871) LR7QB 166 at 172; Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321.25 Wills' Trustees v Cairngorm Canoeing and Sailing School Ltd (1976) SC 30 (HL) at 145, 153 and169.26 Tamihana Korokai v Solicitor-General, above n 24, at 324.(b) The 1992 Deed characterised Lake Taupō as a harbour for the purposesof the Harbours Act 1950 (since repealed).(c) The 1992 Deed recognised that:1.4. Public access to Lake Taupō for recreational use andenjoyment of its waters has always been acceptable to NgātiTūwharetoa and is in accordance with Ngāti Tūwharetoacustom.(d) Recreational activities on Taupō Waters have long had the status of"permitted activities" under the Resource Management Act 1991 (theRMA).[68] The Collective says there has been no statutory extinguishment of such a right,and continuing public use of the lake following its vesting in the Crown in 1926 couldsupport the existence of the common law right contended for. Counsel assistingconceded that if the Court were to find there was no common law right of publicnavigation before 1926, it is unlikely that a right arose by use during the period ofCrown regulation of Taupō Waters.[69] The Collective says the Trust Board has not negated the possibility thatLake Taupō is subject to a common law right of public navigation, and to do so theTrust Board would need to bring evidence of historical and current use of the area todetermine the question. Counsel submits that is not appropriate in aDeclaratory Judgments Act proceeding, and the Court is not in possession of sufficientinformation to determine the existence or extent of such a common law right.The Attorney-General[70] Relying on Professor Brookfield's commentary in Laws of New Zealand, theAttorney-General submits that, unlike a tidal water way, there is no general commonlaw right of public navigation in non-tidal rivers or inland lakes; a navigable, non-tidalriver or a navigable lake may become a highway for the purposes of navigation if therehas been an express or implied dedication by the owner of the bed (the dedicationprinciple), or where, together with statutory or other recognition, the bed is vested inthe Crown by a long period of public use for that purpose.27[71] The Attorney-General observes that, although the principles summarised byProfessor Brookfield are expressed as extending to lakes, the actual case law applyingto lakes is sparse, more commonly applying or discussing the principle in the contextof rivers. Establishing common law public rights in rivers or lakes by evidence ofusage or dedication may involve detailed tracing of historical land titles and "intricateanalysis" of local history.28 The Attorney-General notes that, generally, the approachin New Zealand has been to address the public use of lakes through legislation, thusavoiding the need to analogise with highways or to identify dedications or past grants– the extent of any rights is to be found statute.[72] Here, the Attorney-General points to relevant statutory provisions andagreements between the Crown and Ngāti Tūwharetoa. First, the 1926 Agreementbetween the Crown and Ngāti Tūwharetoa provided for the vesting of the beds of allTaupō Waters in the Crown as a Public Reserve. Clause 10 of the 1926 Agreementsaid the Minister of Internal Affairs would be empowered "to license at a fee to beprescribed by regulations all boats or launches plying for hire on Taupō Waters."[73] The Attorney-General notes the 1926 Act, which vested the bed of TaupōWaters in the Crown, contained no dedication for a highway for public navigation.The Crown included a proviso in s 14 reserving certain access for Ngāti Tūwharetoaand reserved the right to set aside part of the lakebed for their use, and authorised themaking of regulations for the licensing of boats and vessels plying for hire over orupon Taupō Waters.[74] Further, the Attorney-General says both the 1992 Deed and the 2007 Deedproceed on the basis that there has been no dedication of Lake Taupō as a highway.Clause 2.6.1 of the 1992 Deed, cl 2.5.1 of the 2007 Deed (which authorises theTrust Board to grant "rights of occupation or use of parts of Taupō Waters for any27 F M Brookfield Laws of New Zealand Water (online ed) at [256]; Mueller v Taupiri CoalminesLtd (1900) 20 NZLR 89 at 98, 112 and 113.28 Paki v Attorney General, above n 24, at [160].purpose and charge for the same"), and cl 3.2.1 of the 2007 Deed (which says "noperson shall operate any commercial right on Taupō Waters without a licence from theBoard"), are inconsistent with a dedication of Taupō Waters.[75] In response to the Collective's analogy with Lake Rotorua, theAttorney-General highlights the statement of facts in Tamihana Korokai:2922. The lake has for many years been used by the public in common withthe Natives as a public fishery and place of public recreation, and the Crownhas for many years regulated the licensing of launches and vessels plying forhire on the lake, and has received fees and payments for such licenses. 23. The lake has for many years been used by the public openly andwithout objection by the Crown or the Natives as a public highway forpurposes of navigation, and as a place of public recreation and fishing, but itis admitted that the mere fact that Natives acquiesce in Europeans using theirproperties for purposes of sport or pleasure is not evidence of a cession orsurrender of their rights to the same degree as in the case of a like acquiescenceby Europeans.(emphasis added)[76] The Attorney-General says that, even if Ngāti Tūwharetoa has acquiesced inthe use of Taupō Waters by members of the public, this should not be interpreted asindicating any diminution of Ngāti Tūwharetoa's rights as owner.[77] Finally, the Attorney-General says even if the public had acquired the right tonavigate over either Lake Rotorua or Lake Taupō, the Crown's practice of chargingfees to commercial vessels on both lakes means that any right to navigate does notmean the right to do so free of charge.The Trust Board[78] The Trust Board says that, contrary to the assertion of the Collective, there isin fact clear evidence that the commercial navigational use of Taupō Waters was notfree and unfettered, but rather licensed, controlled and regulated by the Crown.[79] The Trust Board says that the legal and evidential onus rests on the Collectiveto show that a common law right of public navigation exists – it is insufficient to "aver"29 Tamihana Korokai v Solicitor-General, above n 24, at 324.to factors that, in counsel to assist's words, "tend to indicate there is a reasonableprospect" that such a right exists. The Trust Board says that it is not credible to suggestthat there is an extant common law right of public navigation over Taupō Waters thatwould avail commercial operators. In response to the four specific points advancedfor the Collective,30 the Trust Board says:(a) No inference can be drawn from the situation in relation toLake Rotorua: Lake Taupō and Lake Rotorua are within the customarydomain of different iwi (Ngāti Tūwharetoa and Te Arawa, respectively).Further, Tamihana Korokai recognises that the acquiescence of Māorito the use of Lake Rotorua for purposes of sport or pleasure is notevidence of a cession or surrender of Māori rights to the same degreeas in the case of like acquiescence by Europeans.31(b) The treatment of Lake Taupō as a harbour for the purposes of theHarbours Act was consistent with the Crown's exercise of control overnavigational authority, not existence of a right of free commercialnavigation.32(c) The reference at cl 1.4 of the 1992 Deed to an "acceptance" byNgāti Tūwharetoa of the public recreational use of Taupō Waters "inaccordance with Ngāti Tūwharetoa custom [tikanga]" indicates anaffirmative exercise of customary authority, not an abdication orabsence of such authority.(d) The classification of surface water activities as permitted activitiesunder the RMA means only that such activities do not require a resourceconsent from the relevant local authority. It does not affect the need toobtain landowner approval to carry out such an activity where the land30 See above at [67].31 Tamihana Korokai v Solicitor-General, above n 24, at 324.32 See also Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA) at [60], [154] and [210], wherethe Court of Appeal held that the Harbours Act 1950 and its predecessors did not operate toextinguish any Māori customary title.in question is privately owned, nor does it constitute an exemption fromany other legal requirements applicable to such activities.[80] To the extent that there may have been a common law right of public navigationin favour of the public prior to 1926 that extended to commercial use (which is notaccepted by the Trust Board or the Attorney-General), the Trust Board submits anysuch right was plainly extinguished or overridden by: the statutory declaration ins 14 of the 1926 Act that the beds of Taupō Waters "together with the right to use therespective waters" are the property of the Crown; and the Crown's subsequentlicensing of the operation of commercial vessels on Taupō Waters. The Trust Boardsubmits continuous Crown regulation, through statutory provisions and regulations, isincompatible with the existence of a common law right of public navigation that wouldenable navigation or use of the waters without authority and/or charge.[81] The Trust Board says that given the Crown had a statutory power to require alicence or equivalent authorisation for commercial activities (under each of the1926 Act and related regulations, or, if Taupō Waters had been given the status of apublic reserve, under the Land Act 1948, or the Conservation Act 1987, or theReserves Act), any commercial activity could not have been the subject of anunfettered common law right of public navigation; in contrast, such commercial usewas licensed and regulated by the Crown. The Trust Board says the power to licenseand charge for commercial use now sought to be exercised by the Trust Board as thefee simple owner of Taupō Waters is directly analogous to the power that the Crownhad in respect of commercial activities upon Taupō Waters.[82] The Trust Board also points to other examples of what the Crown says is thegeneral approach in New Zealand, to recognise any rights of navigation and/orcommercial activities in lakes. As the Trust Board notes, in each case any such rightshave been by express provision or prescription, not implication.33 The Trust Boardsubmits the existence and range of such statutory provisions strongly reflects the33 See the Ngāi Tahu Claims Settlement Act 1998; the Te Arawa Lakes Settlement Act 2006; theNgāti Rangi Claims Settlement Act 2019; and the Te Awa Tupua (Whanganui River ClaimsSettlement Act) 2017.absence of any assumption or presumption of a pre-existing right (at common law orotherwise) in respect of the navigation of lakes in New Zealand.[83] The Trust Board highlights there was no such prescription or dedication inrelation to commercial navigation of Taupō Waters in the 1926 Act. To the contrary,as already noted, the right to use was declared as part of the property of the Crown,there was an express power to regulate, and regulations were then made. The abilityto engage in commercial navigation, subject to paying any charges or fees to theCrown for such activity, does not reflect a public right of navigation at common law.[84] In terms of the revesting of Taupō Waters in the Trust Board in the 2007 Deed,the Trust Board notes the only dedication of public use is that of non-commercialrecreational use by the public free of charge, expressed in cl 2.2.1. There is no rightof access for commercial navigation or other commercial purposes protected by the2007 Deed. To the contrary, the 2007 Deed proceeds on the basis that the Trust Boardcan license and charge fees for commercial activities and private structures, exceptwhere an express exemption is provided in the Deed.[85] The Trust Board notes there are also express constraints on that limited publicright arising from the specific terms of the 2007 Deed, which are inconsistent with anyassumed wider public right of navigation, such as:(a) the ability for areas of Taupō Waters to be excluded from public usethrough the terms of the management plan;(b) the ability of the Management Board to make rules regulatingcommercial use; and(c) while the Trust Board has agreed under the 2007 Deed that personsusing Taupō Waters for non-exclusive, non-commercial recreationaluse and enjoyment are not required to obtain a right of occupation oruse from the Trust Board, cl 2.5.5(a) provides the Crown maynonetheless charge and collect fees from some such persons.[86] The Trust Board also submits that the dedication principle is displaced bytikanga rights and interests that are recognisable under the common law. The TrustBoard does not cite specific authority for this proposition, but rather relies on a bodyof more general case law to support the propositions that:34 rights and interests sourcedin tikanga can be recognised as legal rights by the common law; and more generally,tikanga can modify the general common law. The Trust Board also notes the TribunalReport concluded that Lake Taupō and its freshwater fisheries were taonga,exclusively possessed by Ngāti Tūwharetoa and over which they exercised controland authority as at 1840.35 The Trust Board submits that the "customary law, practicesand tikanga of Māori and, in this case, Ngāti Tūwharetoa in respect of Taupō Waters,have not been extinguished." The Attorney-General does not support this submission.Analysis[87] As already noted, the public's general freedom of entry to and access of TaupōWaters for non-exclusive, non-commercial recreational use is not in dispute. But thatis distinct from the asserted right of commercial use, free of authorisation and charge.I agree with the Attorney-General and the Trust Board that there is no evidence acommon law right of public navigation existed pre-1926. I also agree that, had sucha right existed, it is highly likely it has since been extinguished.[88] The 1926 Agreement provided that the beds of all Taupō Waters shall be vestedin the King as a Public Reserve.36 The 1926 Agreement also said the Minister ofInternal Affairs would be empowered "to license at a fee to be prescribed byregulations all boats or launches plying for hire on Taupō Waters".37[89] The 1926 Act gave effect to the 1926 Agreement, and s 14(1) declared the bedof Lake Taupō and the bed of the Waikato River extending from Lake Taupō to andinclusive of the Huka Falls, to be the property of the Crown, "freed and dischargedfrom the Māori customary title (if any) or any other Māori freehold title thereto". The1926 Act included a proviso reserving certain access for Ngāti Tūwharetoa, and34 For example, Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; and Ngāti Whatua oOrakei v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.35 Waitangi Tribunal, above n 6, vol 4 at 1286.36 1926 Agreement, cl 4.37 1926 Agreement, cl 10.reserved the right to set aside parts of the lakebed for their use. The 1926 Act containedno dedication for a highway for public navigation of the lake, and s 14(9)(d) authorisedthe making of regulations for the licensing of "boats and vessels plying for hire overor upon" Taupō Waters.[90] The Taupō Harbour Regulations 1926, promulgated under s 14 of the 1926 Act,required, among other things: a licence from the Department of Internal Affairs forvessels to ply for hire, carry passengers or cargo, or be employed as ferry-boats ortug-boats; and for an annual fee for such licences to be paid to the Department ofInternal Affairs.[91] The Crown points to two further legislative provisions that pose an insuperabledifficulty for any argument that there was a grant of a right of way or dedication againstthe Crown after 1926. The Land Act 1948 provided, at s 172:(1) No dedication or grant of a right of way shall, by reason only of user,be presumed or allowed to be asserted or established as against theCrown, or as against any person or body holding lands for any publicwork or in trust for any public purpose or as against any Stateenterprise referred to in Schedule 2 of the State-Owned EnterprisesAct 1986, or as against a mixed ownership model company within themeaning of section 45P of the Public Finance Act 1989, whether suchuser commenced before or after the coming into force of this Act.[92] This was in similar terms to the earlier provision in s 13 of the Land Act 1924:No dedication or grant of a right of way shall, by reason only of user, bepresumed or allowed to be asserted or established as against the Crown, or asagainst any person or body holding lands in trust for any public purpose,whether such user commenced before or after the coming into operation ofthis Act.[93] Taupō Waters were actively regulated and managed by the Crown during theperiod from 1926 to 1992. Continuous Crown regulation of Lake Taupō isincompatible with the existence of a common law right of public navigation that wouldallow commercial navigation, without authorisation.[94] Although the 1992 and 2007 Deeds themselves could not have extinguished acommon law right, had one existed, nonetheless they appear to be drafted based on thepresumption a common law right did not exist.[95] Even if a common law right of public navigation did exist, the right tonavigation is not necessarily a right to navigate for all purposes and without chargewhen deriving an economic benefit from the activity.[96] While the Trust Board acknowledged in the 1992 Deed that recreational useand enjoyment has always been acceptable to Ngāti Tūwharetoa – and that is reflectedin the provisions for non-commercial recreational access and use in both the 1992 and2007 Deeds – since 1992 it has taken active steps to make it clear that CommercialUsers do not have an unconstrained right to use and engage in commercial activity onTaupō Waters without the Trust Board's consent. There has been no express or implieddedication by the Trust Board in the period since 2007.[97] The Trust Board submits that the "customary law, practices and tikanga ofMāori and, in this case, Ngāti Tūwharetoa in respect of Taupō Waters, have not beenextinguished." Any claim regarding customary rights must be established byevidence.38 The Trust Board has not identified the particular "customary law, practicesand tikanga" of Māori generally, or of Ngāti Tūwharetoa in particular, on which itrelies in support of its submission that the dedication principle in respect of inlandlakes, including Lake Taupō, has been replaced or displaced. For that reason, I havenot specifically considered this submission. But, in any event, I have concluded thatit was not necessary to do so.[98] Turning to the specific factors to which the Collective referred as indicating a"reasonable prospect" of a common law right,39 these were conclusively addressed bythe Trust Board and the Attorney-General.[99] I agree that no inference in terms of Taupō Waters can reasonably be drawnfrom the position of Lake Rotorua. First, the waters are within the customary domainof different iwi (Ngāti Tūwharetoa and Te Arawa, respectively). Even if an analogycould properly be drawn between Lake Rotorua and Lake Taupō, as recognised inTamihana Korokai,40 any acquiescence by iwi in the use of the lake for recreational38 Attorney-General v Ngāti Apa, above n 32, at [54].39 See above at [67].40 Tamihana Korokai v Solicitor-General, above n 24, at 324.purposes is not evidence of a cession or surrender of rights. Clause 1.4 of the1992 Deed refers to public recreational use of Taupō Waters as "acceptable" toNgāti Tūwharetoa "in accordance with Ngāti Tūwharetoa custom". I agree withcounsel for the Trust Board and the Attorney-General that that indicates an affirmativeexercise of customary authority, not an abdication or absence of such authority.[100] The Harbours Act point raised by the Collective is shortly disposed of.Clause 3.5 of the 1992 Deed provided:3.5 The Trust Board acknowledges that Lake Taupō is a harbour withinthe meaning of the Harbours Act 1950 and the Lake TaupōRegulations 1976 and that the control of Lake Taupō as a harbour iscurrently in the Crown and the provisions of this deed and theoperations of the Management Board are subject to the provisions ofthe Harbours Act 1950, the Lake Taupō Regulations 1976 and anylegislation enacted in place of the said Act and Regulations.[101] The Harbours Act: set out a detailed regime for the constitution of harbourboards and the establishment of the Harbour Fund and related provisions as toexpenditure, investment, borrowing, repayment, keeping of accounts and audit;provided for harbour dues and the ability of a harbour board to levy harbourimprovement rates; set out the powers and duties of harbour boards; canvassed thequestion of reclaimed land and disposal of foreshores; and provided for the making ofharbour by-laws. Relevant to this matter, it provided for control of navigation inharbours. Section 202(1) provided:A Harbour Board is hereby empowered to regulate and control the traffic andnavigation of the harbour under its control, and to provide specially for thedirect and personal control of that traffic by the Harbourmaster or other officerappointed by the Board on any day or occasion of unusual or extraordinarytraffic.[102] Plainly, the provisions of the Harbours Act did not confer a right of freecommercial navigation on Lake Taupō, as a designated harbour. Rather, it wasconsistent with the Crown's exercise of control over navigational authority on the lake.The characterisation of Lake Taupō as a harbour for the purposes of theHarbours Act 1950 was consistent with the Crown's exercise of control overnavigation authority, not the existence of a right of free commercial navigation.4141 See, for example, Attorney General v Ngāti Apa, above n 32, at [210].[103] As to cl 1.4 of the 1992 Deed,42 the right of public use and enjoyment ofTaupō Waters for non-commercial, recreational purposes is not in issue. It is expresslyrecognised in cl 2.2.1 of the 2007 Deed. It does not, in my view, assist the Collectivein argument that there is a right of commercial navigational use of the lake.[104] The last of the specific issues that the Collective says points to the possibilityof a common law right of public navigation is that recreational activities onTaupō Waters have long had the status of "permitted activities" under the RMA.However, the effect of such designation is simply that a resource consent is notgenerally required to carry out the activity. It does not impact on the need to obtainthe approval of the landowner to carry out such an activity where the land is privatelyowned; nor does it constitute an exemption from any other applicable legalrequirements.Conclusion[105] To the extent that there may have been a common law right of public navigationin favour of the public prior to 1926 that extended to personal use, which I do notaccept has been established on the material before me, any such right was extinguishedor overridden by:(a) the statutory declaration in the 1926 Act that the beds of Taupō Waters,together with the right to use the respective waters, are the property ofthe Crown; and(b) the Crown's subsequent licensing of the operation of commercialvessels on Taupō Waters.[106] I am satisfied that, on the face of the 2007 Deed, I am able to make thedeclarations sought by the Trust Board at (a), (b) and (e), and I decline to make thedeclaration sought by the Collective at (b).42 As set out above at [67].[107] It is implicit in declarations (a), (b) and (e) that the Trust Board's powers inrelation to Commercial Users are not limited by an asserted common law right ofpublic navigation. It is unnecessary and beyond the Court's remit in determiningquestions of construction or validity of the Deed to grant the declaration sought by theTrust Board at (g). However, I emphasise my conclusion that a common law right ofpublic navigation has not been established, and the Collective needs to do more thansimply assert one may exist, in order to rebut the clear meaning of the 2007 Deed.Issue three: the Crown's power to license[108] The third question is: irrespective of any common law right of navigation inrelation to all or any part of Taupō Waters and the provisions of the 2007 Deed, doesthe Crown have the power to promulgate regulations under s 14(9)(d) of the 1926 Actthat:(a) require vessels using all or any part of Taupō Waters for commercialpurposes to be licensed; and(b) prescribe fees for such licences?[109] Section 14(9)(d) of the 1926 Act provides:(9) The operation of the Fisheries Act 1908, so far as it applies to the saiddistrict, shall be modified as follows:(d) the Governor-General may, by Order in Council, make specialregulations as to any matter or thing relating to or that is inany manner deemed necessary for the due administration ofthis section. Sections 98 and 99 of the Fisheries Act 1908 shallapply to such regulations as fully and effectually as if theywere regulations made under that Act. The power to makeregulations shall include the power, in so far as there may notbe provision for doing so under the Harbours Act 1950 tolicense boats and vessels plying for hire over or upon thewaters herein referred to, with power to impose suchconditions as may be deemed necessary or prudent for thesafety and convenience of passengers, to prescribe feestherefor, to declare the grounds upon which a licence may berevoked or suspended, and to restrain any person from plyingfor hire with unlicensed boats or vessels. It shall also includethe power to prescribe the fees to be paid for fishing licencesand camping sites within such district. The said fees need notbe uniform, but may differentiate between such classes ofpersons as are defined by the regulations, and any class orclasses may include divisions of age, or of residence or non-residence within such district, or by reference to fishermenfrom overseas and those permanently resident within theDominion of New Zealand, or in any other manner that theGovernor-General in Council may see fit. Such licence feesmay be made payable in respect of a whole season or anylesser part thereof, and a licence may limit the rights of theholder thereof to be exercised only within the said district orat some particular place or locality within the said district:[110] The Collective says that, notwithstanding the provisions of the 2007 Deed,s 14 of the 1926 Act remains in full force and effect, and preserves in the Crown thepower to make regulations to license boats and vessels plying for hire over or uponLake Taupō. This is pleaded in response to [40] of the Amended Statement of Claim,which says:As legal owner of the freehold title to Taupō Waters, the Trust Board has allrelevant ownership rights over the land, the water column and the airspaceassociated with Taupō Waters.[111] This argument was not addressed separately in submissions before me, and Iam therefore unable to determine it.Issue four: whether an exemption for holders of berthing and launching permitsexists[112] The fourth question agreed by the parties is: what is the meaning and effect ofcl 2.5.5(c) of the 2007 Deed? For ease of reference, I repeat the relevant parts of cl 2.5here:2.5 Board's right as owner to grant rights of occupation or use forcommercial and private structures and other activities2.5.1 The Board, as owner, may grant rights of occupation or use ofparts of Taupō Waters for any purpose and charge for the samePROVIDED that no such rights shall conflict with:a) any enactment affecting navigation or safety overTaupō Waters;b) any other provision of this Deed; andc) the provisions of any Management Plan establishedby the Taupō-nui-a-Tia Management Board.2.5.5 Notwithstanding clause 2.5.1, the following persons shall notbe required to obtain any right of occupation or use from theBoard:(a) persons on Taupō Waters pursuant to clause 2.2.1,including non-commercial anglers andnon-commercial boaters from whom the Crown maycharge and collect fees;(b) the Crown in respect of existing structures listed inSchedule 3;(c) the holders of berthing or launching permits issued bythe Harbourmaster, in respect of berths, wharves orramps or other structures, details of which structuresare set out in Schedule 3;43(d) the owners of the existing private structures listed inSchedule 5, in respect of such structures, provided theycomply with clause 2.5.2; and(e) the holders of mooring permits issued by theHarbourmaster, in respect of such moorings, details ofwhich moorings are set out in Schedule 6.[113] Clause 2.4 is also relevant, and provides:2.4 Crown structures2.4.1 The Crown shall be entitled (at no cost except as set out in clause 2.6of this Deed and without being required to obtain any further right ofoccupation or use) to continue the occupation and use of Taupō Watersby its existing structures set out in Schedule 3 and shall have the rightto repair, maintain and replace the existing structures.[114] Schedule 3 contains a list of structures, including bridges, marinas, boat ramps,jetties, and public moorings (the Schedule 3 structures).[115] This issue relates to the following declaration sought by the Trust Board:(c) A declaration that Commercial Users who hold permits under clause2.5.5(c) of the 2007 Deed are not exempt from obtaining anoccupation or use right from the Trust Board under clause 2.5.1 of the2007 Deed to undertake the commercial activities on Taupō Waters.43 For the avoidance of doubt holders of permits under this paragraph will require consent from theBoard to operate any commercial business on Taupō Waters.[116] And the following declaration sought by the Collective:(a) That the Board may not, in respect of a holder of a berthing or landingpermit issued by the Harbourmaster, require the payment of any feefor the occupation or use of the Taupō Waters by that permit holder.SubmissionsThe Collective[117] The Collective says the 2007 Deed does not provide for the levying of licencefees upon Transitory Users wishing to pursue commercial activities on the lake.[118] Counsel to assist submits that the effect of cl 2.5.5(c) (read together with thefootnote) is that the persons described in that clause (the holders of the permitsdescribed) are exempted from any requirement to obtain a use or occupation right fromthe Trust Board, and are required only to obtain the Trust Board's "consent" to anycommercial operations. Counsel argues that the words "in respect of berths, wharvesor ramps" are intended to describe the class of persons exempted, and not to attenuatethe breadth of the exemption.[119] Counsel says that if the Deed had been intended to provide an exemption only"in respect of berths, wharves or ramps", as the Trust Board contends, the drafters ofthe Deed would have placed those words at the beginning of subparagraph (c) toindicate that the qualifying words applied to the exemption and not to the relevantclass of persons.[120] The further submission for the Collective is that if the words "in respect ofberths, wharves or ramps" qualified the extent of the exemption, there would havebeen no need for the footnote to refer to the requirement to obtain the Trust Board's"consent", as this would go without saying. Counsel argues that the word "consent"in the footnote to cl 2.5.5(c) does not provide a right for the Trust Board to levy licencefees on commercial operators. If that had been the intention, the provision would havereferred expressly to the grant of a licence or the payment of a fee.[121] The Collective also relies on broader contextual arguments to support itsinterpretation of cl 2.5.5(c):(a) The absence of any consultation between the Crown and the TransitoryUsers during negotiations prior to the conclusion of the 2007 Deedwould tend to indicate that no substantive change to the position ofthose Commercial Users was intended.(b) The absence in cl 1.8 (which confirms the Deed records the agreementof the parties in relation to certain property rights, legal issues, andpayment by the Crown for some property rights) of any reference to thecreation of a right on the part of the Trust Board to charge licence feesto commercial Transitory Users tends to indicate that ultimately thiswas not part of the agreement between the Crown and the Trust Board.(c) The reservation in cl 3.3 of the Deed (which provides that the "Boardacknowledges the right of the Crown to control and legislate in respectof water including its use and quality, public safety, public health,navigation and recreation"), and the application of the relevantplanning instruments (the Taupō District Plan and the Waikato RegionalPlan), supports the Collective's position.(d) The continuance of a statutory regime for payment of fees to theHarbourmaster in respect of the berths, wharves and rampsadministered by the Harbourmaster.44The Attorney-General[122] Both the Trust Board and the Attorney-General submit that cl 2.5.5(c) must beread in the context of cl 2.5 as a whole, which opens at 2.5.1 with the Trust Board'sright as owner to grant a right of occupation or use for commercial and privatestructures and other activities, and to charge for such a right.[123] The Attorney-General submits no significance can be attributed to theplacement of the words "in respect of berths, wharfs or ramps" in cl 2.5.5(c). Both the44 Maritime Transport Act 1994, s 33R; Lake Taupō (Crown Facilities, Permits, and Fees)Regulations 2004.language of the 2007 Deed and a cross-check against the documents from thenegotiations do not support the Collective's interpretation:(a) The footnote begins with the words "for the avoidance of doubt";consistent with these words, the substance of the Trust Board's right tocharge (arising from its fee simple ownership) is found in the Deed, inparticular cl 2.5.1.(b) If the parties had intended that consent alone was required forTransitory Users, the Deed would have expressly addressed such animportant constraint on fee simple ownership.(c) The supporting documents show that both parties understood the TrustBoard had the right to charge Transitory Users for use of Taupō Waters,and holding a berthing or launching permit would not exclude theobligation to pay a fee for such use.The Trust Board[124] The Trust Board says that cl 2.5.5(c) is clear. Commercial Users do not needauthority for occupation and use of the Schedule 3 structures, whether for commercialor non-commercial use. But if they are conducting commercial activities elsewhereon Taupō Waters, they need authority from the Trust Board to do so, and the TrustBoard may charge for that authority.[125] The Trust Board says the wording of each of the exceptions in cl 2.5.5(b)-(e)limits the exception to the particular item discussed, through the words "in respect of".Any use of Taupō Waters other than "in respect of" the specified structure or permitor mooring is liable to be charged under cl 2.5.1.Analysis[126] I agree with the submissions for the Trust Board and the Attorney-General thatthe interpretation of cl 2.5.5(c) of the 2007 Deed advanced on behalf of the Collectiveis not sustainable on the plain words of the clause, and when read in light of otherinterrelated clauses in the Deed, and having regard to the supporting documents.[127] The 2007 Deed draws a clear distinction between:(a) non-commercial recreational activities and non-commercial research,which the public may exercise, subject to certain conditions, free ofcharge and without an occupation or use right from the Trust Board;and(b) commercial activities, where an occupation or use right from the TrustBoard is required.[128] Clause 2.5 sets out the Trust Board's "right as owner [of Taupō Waters] to grantrights of occupation or use for commercial and private structures and other activities".Clause 2.5.1 is a general empowering provision, which provides the Trust Board withthe power to grant rights of occupation or use in respect of Taupō Waters for "anypurpose" and to charge for those rights of occupation or use. The clear words incl 2.5.1 "and charge for the same" meet the Collective's argument that the absence ofany reference to a right to charge in cl 1.8 is conclusive. As indicated by the headingof cl 2.5, the phrase "occupation or use" includes transitory activities.[129] On its face, the right under cl 2.5.1 applies to all structures and activities onTaupō Waters, whether commercial or non-commercial. Clause 2.5.5, in turn,specifies five categories of persons who are not required to obtain a right of occupationor use from the Trust Board. The first of these, in cl 2.5.5(a), are the people of NewZealand who enter or access Taupō Waters pursuant to cl 2.2.1 for non-exclusive,non-commercial recreational use and enjoyment and non-commercial research. The2007 Deed specifies their entry and access is free of charge. However, inacknowledgement that these exclusions encroach on the Trust Board's rights as theowners of Taupō Waters, the Crown made a capital sum payment of $9.865 million tothe Trust Board. The Crown also and makes an annual payment to the Trust Board,which includes payment for access to Taupō Waters for non-commercial use.4545 2007 Deed, cl 2.6.1.[130] The other exceptions, in subclauses (b)-(e), apply only to the existence and useof the specified structures identified in Schedules 3, 5 and 6 of the Deed by theidentified persons (being the holders of berthing, launching and mooring permits andthe owners of private structures).[131] The Schedule 3 structures are all located, in whole or in part, on Taupō Waters.The effect of cl 2.5.5(c) is that authorisation for the occupation and use of theSchedule 3 structures is not necessary, whether for commercial or non-commercialuse. The words "in respect of" make it plain, in my view, that the exemption fromthe requirement to obtain a right of occupation or use from the Trust Board relates onlyto the occupation and use of those Schedule 3 structures. If the holders of permitsidentified in cl 2.5.5(c) wish to conduct commercial activities elsewhere onTaupō Waters, beyond the use of the Schedule 3 structures, they require theTrust Board's consent, and the Trust Board may charge for that consent.[132] The footnote to cl 2.5.5(c) makes it clear that the Trust Board's consent tooperate a commercial business will still be needed by the holders of these permits.Although the footnote does not refer to the right to charge for this consent, it must beread in the context of cl 2.5.1, which authorises the Trust Board to charge for theconsent provided for pursuant to a grant of occupation or use under cl 2.5.1. Thereference to "consent" in the footnote cannot be interpreted to override or oust theexpress power in cl 2.5.1.[133] I also accept that, if the parties had intended that consent alone was requiredfor transitory activities, a separate clause or sub-clause would have addressed whatwould be an important constraint on the Trust Board's fee simple ownership. Forexample, where the Deed does restrict the charging of rent/fees this is expressly stated,as in cl 2.4.3:The Crown shall acquire a licence from the Board for occupation and use byfuture Crown structures for the public good purposes set out in Schedule 4,but with no payment or rent to the Board, and the Board's agreement forsuch licences shall not be unreasonably withheld. No such licence shall begranted if the licence would be inconsistent with the Management Plan of theTaupō-nui-a-Tia Management Board.(emphasis added)[134] Counsel assisting put some emphasis on the order of the words in cl 2.5.5(c),submitting that if the interpretation advanced by the Trust Board and the Crown iscorrect, then the words "in respect of berths, wharves or ramps" would have beenplaced at the beginning of sub-paragraph (c), to indicate that those qualifying wordsapplied to the exemption and not to the relevant class of persons.[135] No significance can be attributed to the placement of those words. The orderof the words in sub-paragraph (c) follows the pattern of sub-paragraphs (a)–(b) and(d)–(e). In each case, the paragraph focuses on the person exempted, followed by theactivity or structure to which the exemption applies. If the Collective's interpretationof the words "in respect of" in cl 2.5.5(c) was correct, that interpretation would alsohave to apply to cl 2.5.5(d) and (e), which use exactly the same words and sentencestructure. However, the Collective accepts that there is no exemption for CommercialUsers who own fixed moorings if they are commercial users of Taupō Waters.[136] The other provisions of the Deed provide support for this interpretation.Clause 3.2.1 (in the Miscellaneous section of the Deed) provides:3.2. Nothing in this Deed is intended to exclude or limit:3.2.1 The exercise by the Crown of any statutory power to control ormanage commercial fishing, provided that no person shall operate anycommercial right on Taupō Waters without a licence from the Board;or[137] As the Attorney-General submits, a "cross-check" against the context of thenegotiations leading up to the 2007 Deed supports this interpretation. The 2007 Deedwas entered into, among other things, for the clarification of legal issues.46 Both theTrust Board and the Crown have consistently proceeded on the understanding that the2007 Deed provides for the Trust Board's right to charge commercial operators foroccupation or use of Taupō Waters. For example, the Cabinet papers relating to the2007 Deed show that the Crown considered that under the Deed the Trust Board wouldhave the right to charge for commercial occupation or use. It says:4746 2007 Deed, cl 1.8.2.47 Cabinet Business Committee "Property Rights in Lake Taupō" (24 August 2007).14. Given that the deed does provide for ownership of the beds of TaupōWaters by the Board and there are no restrictions on the title, a Courtwould be likely to uphold the right of the Board to charge for usage iflegal action was taken. The Crown, as a pre-condition for enteringinto negotiations, has therefore conceded the Board's right to licencethese activities, significantly reducing litigation risks.Conclusion[138] I conclude that the exemption from the requirement to obtain a right ofoccupation or use from the Trust Board at cl 2.5.5(c) of the 2007 Deed relates only tothe occupation and use of the structures specified at Schedule 3 of the Deed. If theholders of permits identified in cl 2.5.5(c) wish to conduct commercial activitieselsewhere on Taupō Waters, beyond the use of the Schedule 3 structures, they willrequire the Trust Board's consent to do so and, in accordance with cl 2.5.1, theTrust Board may charge for such rights of occupation or use.[139] I am therefore satisfied that I am able to make the declaration sought by theTrust Board at (c), and I decline to make the declaration sought by the Collective at(a).Issue six: the role of the Management Board, the management plan, and theReserves Act 1977[140] The sixth question, as framed by the parties, is: what is the meaning and effectof cl 2.3.4 of the 2007 Deed?[141] Clause 2.3.4 of the 2007 Deed provides:2.3 Management of Taupō Waters2.3.4 The functions of the Taupō-nui-a-Tia Management Board are to:(a) manage Taupō Waters as if a reserve for recreation purposes undersection 17 of the Reserves Act 1977, subject to the provisions of thisDeed;(b) as far as practicable, and where not inconsistent with this Deed, actas if it is an administering body appointed to control and manageTaupō Waters under the Reserves Act 1977, including in accordancewith the financial provisions in Part 4 of that Act;(c) determine a Management Plan for Taupō Waters as soon asreasonably practicable taking into account the provisions of this Deedand review such plan as required and at least every ten years;(d) consider and decide applications in accordance with the ManagementPlan for use of Taupō Waters for:(i) non-commercial research;(ii) recreational use activities that may exclude the generalpublic's use of parts of Taupō Waters;(iii) any increase in the area occupied by Crown structures agreedto by the parties under cl 2.4.2; and(iv) any Crown owned structures for public good purposes agreedto by the parties under cl 2.4.3;(e) perform such further functions as are mutually acceptable to theparties to this Deed and are in accordance with the role of Taupō-nui-a-Tia Management Board in relation to Taupō Waters as a reserve forrecreation purposes.[142] This issue relates to the following declarations sought by the Collective:(d) That the obligations on the Taupō-nui-a-Tia Management Board tomanage Taupō Waters as if a reserve for recreation purposes unders 17 of the Reserves Act 1977 in partnership with the Crown, includesan obligation on that management board to prepare a managementplan which provides for the management and regulation of bothcommercial and non-commercial recreational use.(e) That, as the administering body, when preparing a management plan,the Taupō-nui-a-Tia Management Board is obliged to do so inaccordance with the provisions of s 41 of the Reserves Act 1977.[143] And the following declaration sought by the Trust Board:(d) A declaration that the provisions of the Reserves Act 1977 do notrequire the Trust Board to grant an occupation or use right for a termof 33 years or any other specific term.(f) A declaration that the Trust Board may grant occupation or use rightsunder cl 2.5.1 of the 2007 Deed notwithstanding the establishment,enforceability and/or validity of any management plan promulgatedby the Taupō-nui-a-Tia Management Board.SubmissionsThe Collective[144] The Collective says the Management Board, as the administering body ofTaupō Waters, must prepare a management plan; and when doing so, must includeconditions and/or restrictions for the management and regulation of the commercialuse of Taupō Waters, and must follow the procedural requirements in s 41 of theReserves Act.[145] The Collective relies on cl 1.7.2 of the 2007 Deed, which provides that TaupōWaters "shall be managed as if it were a reserve for recreation purposes under section17 of the Reserves Act 1977 in partnership between the Crown and the [Trust] Board"through the Management Board. The Collective says this is an integral term of thetrust created by the 2007 Deed, subject to which the Trust Board holds legal ownershipof the land. The Collective also points to cl 2.3.1, which states that management ofTaupō Waters as if a reserve shall be by the Management Board. The Collective alsorelies on all of the functions of the Management Board specified in cl 2.3.4(a)-(d).[146] The Collective says, in accordance with cl 2.3.4(a), the provisions (ss 17 and41 in particular) of the Reserves Act apply to the process for preparation of amanagement plan. That entails, the Collective says, the preparation of a detailedmanagement plan that is submitted to the Minister of Conservation and incorporatesand ensures compliance with the principles set out in s 17 of the Reserves Act,including: charging for commercial access; a process of public consultation and inputinto a management plan; and a requirement for Ministerial approval of aspects of anylease for commercial access to a reserve, including rental and terms for termination.[147] The Collective says that the 2007 Deed echoes the Reserves Act indistinguishing between non-commercial and commercial access to recreational spaces.The Reserves Act, in addition, includes safeguards in relation to the use of the reserve,including the requirement for Ministerial approval and restrictions on the termsapplicable to leases and licences.48[148] The Collective says that the declarations it seeks at (d) and (e) are necessarybecause it is clear that the current management plan has not been prepared inaccordance with s 41 of the Reserves Act, and, in particular, that the ManagementBoard has not understood its obligation in relation to the requirements of publicconsultation in s 41(5) and (6) of the Reserves Act.[149] Further, the Collective says that, contrary to the intention of the 2007 Deed,the Management Board's current management plan has no provision for charging forcommercial activities other than to refer applicants to the Taupō Waters Trust. Thismeans that there is nothing in the management plan that provides safeguards forcommercial operators in relation to the charges and terms of any rights of accessgranted by the Trust Board.The Trust Board[150] The Trust Board accepts that the Management Board is required, undercl 2.3.4(c), to determine a management plan for Taupō Waters "as soon as reasonablypracticable taking into account the provisions of [the] Deed", and must review it asrequired and at least every 10 years.[151] In terms of the provisions of the Reserves Act, the Trust Board emphasises thewords "as if a reserve" and "subject to the provisions of this Deed" in cl 2.3.4(a), and"as far practicable" and "where not inconsistent with this Deed" in cl 2.3.4(b). Itsubmits that a number of the requirements of s 41 of the Reserves Act are inconsistentwith the provisions and intent of the 2007 Deed, for example the requirements of theadministering body of a reserve to: prepare and submit a management plan to theMinister of Conservation for approval;49 and to invite by public notice writtensuggestions on a proposed plan, and to give full consideration to any such comments48 Reserves Act 1977, ss 17, 53, 54 and Schedule 1.49 Section 41(1).received;50 and provide an opportunity for submitters to be heard on a draft plan,before approving it.51[152] The Trust Board submits the 2007 Deed is clear that the management plan isdetermined by the Management Board, not drafted for approval by the Minister oranyone else. The Trust Board says that while the Management Board might in itsdiscretion conduct a public submission process in developing a management plan, itis not bound by s 41 of the Reserves Act in terms of the nature of such process.[153] The Trust Board acknowledges that the provisions relied on by the Collectivemay, to some extent, enable the management plan to include provisions that aredirected to and/or have an impact on the commercial recreational use, as well asnon-commercial use, of Taupō Waters. But it submits that the Management Board isnot compelled to include provisions regarding the management and regulation ofcommercial activities in the management plan. That is at the Management Board'sdiscretion.[154] The Trust Board submits the functions of the Management Board are inaddition to the Trust Board's rights as owner – while the Trust Board cannot grant anoccupation or use right that conflicts with the management plan, that does not obviateor displace the Trust Board's power to grant such rights.The Attorney-General[155] The Attorney-General says the Collective's interpretation of cl 2.4.3 isinconsistent with the Reserves Act and the 2007 Deed. The Attorney-General submitsthat, as the Trust Board acknowledges, while a licence issued by the Trust Board mustbe consistent with the provisions of any management plan, this does not mean that theManagement Board can assume the rights of the owner of Taupō Waters.50 Sections 41(5) and 41(8).51 Section 41(6).Analysis[156] Clause 1.7.2 of the 2007 Deed provides the Management Board is to manageTaupō Waters "as if" it were a recreation reserve. The general role to be carried outby the Management Board is set out at cl 2.3.1 of the 2007 Deed:2.3 Management of Taupō Waters2.3.1 Management of Taupō Waters as if a reserve shall be by theTaupō-nui-a-Tia Management Board comprising eight members, fourof whom shall be appointed by the Minister having regard to theinterests of the Crown, conservation, recreation, tourism andfreshwater sciences to represent the public interest and four of whomshall be appointed by the Board to represent Ngāti Tūwharetoa'sinterests.[157] While cl 1.7.2 requires the Management Board to manage Taupō Waters "asif" it were a recreation reserve, that obligation is qualified by a number of specificprovisions in the 2007 Deed. Those qualifications significantly impact on the extentto which the provisions of the Reserves Act can be applied to the Management Board'srole, both in terms of substantive powers and obligations and procedural requirements.Those qualifications include:(a) "subject to the provisions of this Deed" in cl 2.3.4(a);(b) "as far as practicable, and where not inconsistent with this Deed" incl 2.3.4(b);(c) "taking into account the provisions of this Deed" in cl 2.3.4(c); and(d) "perform such further functions as are mutually acceptable to theparties to this Deed" in cl 2.3.4(e).[158] As to the Management Board's substantive role, first, the functions of theManagement Board at cl 2.3.4(d) do not include any reference to the ManagementBoard considering and deciding applications for commercial activities. Pursuant tocl 2.3.4(e), any Management Board functions beyond those in cl 2.3.4 (a)-(d) must be"acceptable to" the Trust Board and the Crown.[159] Second, the circumstances in which an administering body under the ReservesAct can issue leases or licences over a reserve do not apply to the Management Board'smanagement of Taupō Waters. An administering body can issue leases or licencesonly in the following circumstances:(a) If the reserve is Crown-owned land, s 59A of the Reserves Actauthorises the Minister of Conservation to grant a concession over thereserve in accordance with Part 3B of the Conservation Act 1987.(b) If a recreation reserve is vested in the administering body, s 54 of theReserves Act authorises the administering body (with the Minister'sconsent) to lease parts of the reserve for specified purposes allied torecreation, including under s 54(1)(d) for the carrying on of any trade,business or occupation on any specified site within the reserve,provided that the trade, business, or occupation must be necessary toenable the public to obtain the benefit and enjoyment of the reserve orfor the convenience of the persons using the reserve. A lease under s54 cannot exceed 33 years.[160] Taupō Waters is neither owned by the Crown nor vested in the ManagementBoard, so the terms applicable to concessions issued under s 59A and leases or licencesissued under s 54(1)(d) (including the 33 year limit) do not apply.[161] That position is entirely consistent with the Trust Board's ownership of TaupōWaters. Clause 2.5.1 of the 2007 Deed recognises the Trust Board's right as owner to"grant rights of occupation or use of parts of Taupō Waters for any purpose and chargefor the same", with certain stated exceptions. The recognition of this right by cl 2.5.1would be meaningless if the Management Board were required to decide such matters.And, as the Trust Board submits, its rights under cl 2.5.1 are materially different fromthe 1992 Deed, under which the concurrence of the Management Board was requiredfor the Trust Board to grant a lease or licence under cl 2.6.1 of the 1992 Deed (theequivalent to cl 2.5.1 of the 2007 Deed).[162] As the Trust Board acknowledges, the occupation or use right granted by theTrust Board must be consistent with the management plan determined by theManagement Board,52 but that does not mean that the Management Board can assumethe rights of the owner of Taupō Waters. Taupō Waters is not vested in theadministering body. It is vested in the Trust Board, which has the power of an ownerto grant leases and licences over its property, subject to the restrictions provided bythe 2007 Deed.[163] Turning to the process requirements for preparation of a management plan, thequestion is whether and to what extent the requirements of s 41 of the Reserves Actare consistent with the 2007 Deed.[164] Section 41 of the Reserves Act requires submission of a management plan tothe Minister of Conservation, for his or her approval. Under s 30 of the Reserves Act,it is the Minister (or a Commissioner appointed by the Minister) who may appoint aboard to control and manage the reserve. In the case of Taupō Waters, the ManagementBoard is not appointed under the Reserves Act, nor is it the body in whom the reserve(Taupō Waters) is vested. The Management Board represents a partnership betweenthe Trust Board and the Crown, with four of the eight members being appointed by theMinister "having regard to the interests of the Crown, conservation, recreation,tourism and freshwater sciences to represent the public interest",53 and four membersby the Trust Board to represent Ngāti Tūwharetoa's interests. Against that context, itwould be inconsistent with the 2007 Deed to require the Management Board to prepareand submit a management plan to the Minister of Conservation for approval.[165] It is less clear whether the Reserves Act provisions require the ManagementBoard to invite, by public notice, written suggestions on a proposed plan beforepreparing the management plan, and to then give public notice calling for submissionson a draft management plan and to provide an opportunity for submitters to be heard.However, that is not an issue I must decide. The Management Board determined andissued an initial management plan in 2011. The legal status of that management plan52 2007 Deed, cl 2.5.1(c).53 2007 Deed, cl 2.3.1.is not a matter for determination in this proceeding. There is no current judicial reviewproceeding challenging the status or effect of the 2011 management plan.[166] I note the Management Board commenced the process for the preparation of anew management plan in October 2018, by public notice calling for initial feedbackon key questions relating to the development of a plan. As at the date of the hearingof this proceeding, a new management plan has yet to be determined.Conclusion[167] While it is correct that the 2007 Deed requires the Management Board toprepare a management plan for Taupō Waters, I do not accept the Collective'sargument that it is required to do so in accordance with all of the provisions of s 41 ofthe Reserves Act, where to do so would be inconsistent with the 2007 Deed. I concludethere is nothing before me about the Management Board or the management plan toprevent the declaration sought by the Trust Board.[168] I also conclude that the Management Board is not required to prepare amanagement plan that includes conditions and/or restrictions for the management andregulation of the commercial use of Taupō Waters. To do so would be inconsistentwith the provisions of the 2007 Deed.[169] I am therefore satisfied that I am able to make the declarations sought by theTrust Board at (d) and (f), and I decline to make the declarations sought by theCollective at (d) and (e).Issue five: recreational use activities that exclude the general public[170] The fifth question posed by the parties is: what is the meaning and effect ofcl 2.3.4(d)(ii) of the 2007 Deed? For ease of reference, I repeat cl 2.3.4(d)(ii):2.3.4 The functions of the Taupō-nui-a-Tia Management Board are to:(d) consider and decide applications in accordance with theManagement Plan for use of Taupō Waters for:(ii) recreational use activities that may exclude thegeneral public's use of parts of Taupō Waters;[171] This issue relates to the following declaration sought by the Collective:(c) That the phrase "recreational use activities that may exclude thegeneral public's use of parts of Taupō Waters" in the Deed includesactivities of a recreational nature even where those activities areundertaken by a commercial operator for commercial gain.SubmissionsThe Collective[172] The Collective says that cl 2.3.4(d)(ii) means that it is the Management Board,and not the Trust Board, that must consider and decide applications in accordance withthe management plan for any recreational use of Taupō Waters that may exclude thepublic's use. The Collective says this requirement extends to Commercial Users whoown and operate structures that occupy parts of Taupō Waters. That kind of occupationexcludes public access to the relevant areas.The Trust Board[173] The Trust Board says that the approval of the Management Board is onlyrequired for "recreational use activities" that exclude the public from parts ofTaupō Waters, but says that role is distinct from the requirement for approval from theTrust Board, as owner of Taupō Waters. On that basis, even if the words "recreationaluse activities" in cl 2.3.4(d)(ii) include recreational activities undertaken by acommercial operator, for commercial gain, the commercial operator must also obtainan occupation or use right from the Trust Board for any such commercial recreationaluse, and the Trust Board is entitled to charge for the right.[174] The Trust Board acknowledges that any occupation or use right granted by itunder cl 2.5.1 must be consistent with the management plan determined by theManagement Board.[175] The Trust Board says cl 2.3.4(d)(ii) is in effect a corollary to the qualificationson the right of the public, under cl 2.2.1, to use Taupō Waters for non-exclusive,non-commercial recreational use. Clause 2.2.2 provides that such public access shallbe subject to, amongst other things:(a) such conditions and restrictions as the Taupō-nui-a-Tia ManagementBoard considers to be necessary for the protection and well-being ofTaupō Waters and for the protection and control of the public usingthem;(c) any right of exclusive use and enjoyment of any part of Taupō Waters.[176] The Trust Board refers, by analogy, to the provisions of the RMA. It says thatactivities on Taupō Waters may be viewed in terms of the need for "local authority"(here, Management Board) approval, separately from any occupation or use rightrequired from the landowner (here, the Trust Board).The Attorney-General[177] The Attorney-General again submits the Collective's arguments areinconsistent with both the 2007 Deed and the Reserves Act.Analysis[178] The Collective's arguments misinterpret cl 2.3.4(d)(ii) and conflate the rolesand obligations of the Trust Board and the Management Board,54 and againmisapprehend the extent to which the Reserves Act governs the Management Board'sactivities.[179] The management functions that rest with the Management Board are plainlydifferent in kind from the Trust Board's ownership functions, and cl 2.3 must be readin that context. The Management Board does have a role in considering anddetermining applications for those uses of Taupō Waters set out in cl 2.3.4(d) of the2007 Deed. But I agree with the Trust Board that the Management Board's role in this54 As set out above at [156]-[162].regard is distinct from, and in addition to, the approval required from the Trust Boardas owner of Taupō Waters, where such approval from the owner is required.[180] To read cl 2.3.4(d)(ii) as including the Commercial Users' commercial"recreational use activities" would be inconsistent with the 2007 Deed, read as awhole, and specifically with:(a) cl 2.2.1, which states that the public's right to access Taupō Waters, freeof charge, is for non-exclusive, non-commercial recreational use andenjoyment and non-commercial research; and(b) cl 2.5.1, which sets out the Trust Board's right as owner ofTaupō Waters to grant occupation or use rights for any purpose and tocharge for these (subject to the specified exceptions).[181] As I have already noted, the recognition of the Trust Board's right as owner,at cl 2.5.1, would be meaningless if in fact it were the Management Board that wasrequired to decide such matters.[182] Clause 2.3.4(d)(ii) is, in my view, concerned with temporary closures forspecific purposes. As counsel for the Attorney-General notes, the reference incl 2.3.4(d)(ii) to "recreational use activities that may exclude the general public's useof parts of Taupō Waters" is analogous to s 53(1)(d) and (e) of the Reserves Act, underwhich an administering body may set aside all or part of a recreation reserve forparticular purposes and grant the exclusive use of that part for particular games, sports,or other activities, or for public recreation or enjoyment. The current managementplan interprets cl 2.3.4(d)(ii) in this way, where it explains that the Management Boardmust provide a process for considering applications for temporary closures.[183] That interpretation is also consistent with the purpose of "recreation reserves"under s 17 of the Reserves Act, which are: for the purpose of providing areas for the recreation and sporting activitiesand the physical welfare and enjoyment of the public, and for the protectionof the natural environment and beauty of the countryside, with emphasis onthe retention of open spaces and on outdoor recreational activities, includingrecreational tracks in the countryside.Conclusion[184] I conclude that the phrase in cl 2.3.4(d)(ii) of the 2007 Deed, "recreational useactivities that may exclude the general public's use of parts of Taupō Waters", doesnot include recreational activities that are undertaken by a commercial operator forcommercial gain. It is the Trust Board, and not the Management Board, that has thepower and responsibility to approve (and charge for) all commercial activities onTaupō Waters, including commercial recreational activities.[185] I therefore decline to make the declaration sought by the Collective at (c).Orders[186] Accordingly, I make declarations in the following terms:(a) A declaration that the Trust Board has the right under cl 2.5.1 of the2007 Deed to:(i) require the Commercial Users to obtain from the Trust Boardrights to occupy or use parts of Taupō Waters for commercialactivities; and(ii) charge Commercial Users for the same.(b) A declaration that in the absence of:(i) an exemption under cl 2.5.5 of the 2007 Deed; or(ii) an occupation or use right granted by the Trust Board undercl 2.5.1 of the 2007 Deed;the Commercial Users have no lawful right to occupy or use any partof Taupō Waters for commercial activities.(c) A declaration that Commercial Users who hold permits undercl 2.5.5(c) of the 2007 Deed are not exempt from obtaining anoccupation or use right from the Trust Board under cl 2.5.1 of the 2007Deed to undertake the commercial activities on Taupō Waters.(d) A declaration that the provisions of the Reserves Act 1977 do notrequire the trust Board to grant an occupation or use right for a term of33 years or any other specific term.(e) A declaration that the grant of a resource consent to a Commercial Userin relation to a commercial activity on Taupō Waters does not exemptany such Commercial User from obtaining an occupation or use rightfrom the Trust Board as the owner of Taupō Waters.(f) A declaration that the Trust Board may grant occupation or use rightsunder cl 2.5.1 of the 2007 Deed notwithstanding the establishment,enforceability and/or validity of any management plan promulgated bythe Taupō-nui-a-Tia Management Board.[187] The declarations sought by the Collective are inconsistent with the findingsthat are set out above.Costs[188] Counsel assisting was appointed to act as contradictor, to assist the Court.Generally, no question of costs would therefore arise in respect of the Collective. Ifthe Trust Board has a different view, it should file a memorandum accordingly, within14 working days of the date of this judgment.Gwyn JAppendix AMembers of the Taupō Waters Collective Limited[189] On or about 30 March 2017, the Trust Board was notified that the Collectiverepresented the following Commercial Users:(a) Chris Jolly Outdoors;(b) Fish Her Charters;(c) Fish Taupō Limited;(d) K2 Charters;(e) Kiwi Charters Taupō;(f) Lake Fun Taupō;(g) Lake Taupō Charters Limited;(h) Sail Fearless;(i) Taupō Boating and Fishing Charters;(j) Taupō Hole in One;(k) Taupō Lake Adventures;(l) Troutline of NZ Limited;(m) White Striker Charters;(n) Fly Fish Taupō;(o) Taupō Kayaking Adventures;(p) Tongariro River Rafting Limited;(q) Ernest Kemp Cruises;(r) Taupō Bungy NZ (Taupō Tourism Holdings Limited); and(s) Taupō Floatplane.[190] On 19 October 2017, Mr Andrew Cameron, legal counsel for the Collective,notified the solicitors for the Trust Board that he was authorised to accept service ofthe Trust Board's proceedings on behalf of the following Commercial Users:(a) Chris Jolly Outdoors;(b) Fish Her;(c) Fish Taupō;(d) Pinnacle Charters (previously K2 Charters);(e) Kiwi Charters;(f) Taupō Troutcatcher Limited (Lake Fun Taupō);(g) Lake Taupō Charters – Sail Barbary;(h) Sail Fearless;(i) Taupō Boating and Fishing Charters (Solomaar);(j) Hole in One Limited;(k) Taupō Lake Adventures Limited;(l) White Striker Charter;(m) Taupō Kayaking Adventures;(n) Tongariro River Rafting;(o) Ernest Kemp Cruises (previous Simon Dickie Adventures);(p) Taupō Bungy;(q) Taupō's Floatplane;(r) Big Sky Parasail Limited;(s) Huka Cruise;(t) Canoe and Kayak Taupō;(u) Soremi;(v) Waimarie;(w) Whiskery Mikes Turangi; and(x) Fish on a Fly.