Nth. Canterbury Waipara Gorge Access Update

[Steve_t647]

Okay fellows here are the points I raise against their recommendations including the sections the relate to.

Access

MOTORBIKES/ATVS

RECOMMENDATION FIVE
THAT THE WORKING PARTY RECOMMEND TO THE HURUNUI DISTRICT COUNCIL THE USE OF A BYLAW TO RESTRICT THE HOURS OF OPERATION OF MOTORBIKES TO BETWEEN THE HOURS OF 8AM AND 7PM IN THE RIVERBED.

Concentrating the problem to a particular area or time can cause more issues and conflict, it can work but you have to think about parking for trailers, good access roads, maintenance of them, Signage to cover the areas acceptable for use and potentially gates you can close to limit the hours of use, much like those implemented for the Waimak River Access.

6 VEHICLES

RECOMMENDATION SIX
THAT THE WORKING PARTY RECOMMEND THAT VEHICLES BE BANNED BETWEEN STRINGERS BRIDGE AND WHITE GORGE UNLESS BY PRIOR ARRANGEMENT WITH THE LANDOWNERS.

Do these "indicated" AMF Rights exist? Before any restrictions on access can be introduced ownership must be established to not do so will create a vast enforcement loophole for both sides.

What about the public right of access defined in the paper road? This is legal access as written in law, what happens to these rights? is the council going to have the road legally dis-established?

The Gorge is a unique location and over many years has been visited by many vehicles there is even a commercial operation driving a vehicle into the location, perhaps allowing access for two months at the end of summer for all is a better option than access by landowners permission, this way the rain's and floods over winter will remove the minor traces of vehicle tracks and limits the number.

Define vehicles, as far as the 3 dictionary's I have they define a vehicle it as "A self-propelled, boosted, or towed conveyance for transporting a burden on land or sea or through air or space." all vehicles include motorised and non motorised wheel chairs and bikes, boats, Hovercraft, Planes, Helicopters ETC.Does this remove the current commercial vehicle based activities in the area?

Where will the landowners contact numbers be displayed or available? do we contact the council and have them make arrangements?

How is access going to be limited gate? Who holds the key? How many key's?

Is the river navigable? as indicated "Kayaks and Jetboats are known to use the river" yet in these documents there is no mention about their continued use!

The pests, rubbish, weeds, river flood damage and control in the "indicated" AMF owned areas of the river are these the owners responsibility?

RECOMMENDATION SEVEN
THAT THE WORKING PARTY RECOMMEND THAT VEHICLES BE BANNED BETWEEN STRINGERS BRIDGE AND UPSTREAM OF BARNETTS ROAD / DARNLEY ROAD WITH THE EXCEPTION OF MOTORBIKES WHICH WILL BE BANNED FROM DIRECTLY WEST OF SH1.

Define vehicles, as far as the 3 dictionary's I have they define a vehicle it as "A self-propelled, boosted, or towed conveyance for transporting a burden on land or sea or through air or space." all vehicles include motorised and non motorised wheel chairs, bikes, boats, Hovercraft, Planes, Helicopters ETC.

Allowing for 4wd access through this area for the open period of the gorge would need to be included, recovery of motorbikes that have run out of fuel, broken down, crashed or have flat tyres would also mean access and parking is required.

RECOMMENDATION EIGHT
THAT THE WORKING PARTY RECOMMENDS THAT VEHICLES BE PERMITTED BETWEEN SH1 BRIDGE AND WEBBS ROAD.

RECOMMENDATION NINE
THAT THE WORKING PARTY RECOMMEND THAT THE HURUNUI DISTRICT COUNCIL CREATE A BYLAW TO MANAGE VEHICLE USE IN THE WAIPARA RIVER.

Option C: Vehicle ban area around nohoanga site would allow damaged area to be restored. Ban would extend upstream from the mouth to Webbs Rd boundary. Vehicle access would be limited to the designated vehicle access track as shown.

Option C removes the current access route to the beach, will this be replaced with another route that does not cross the banned area or will there be an established and maintained (marked) track through the area to allow vehicle access to the beach from the river?

[SMOKEY]

Al, for the good of the cause I will put aside the PAST SHIT, and have already joined the crusade for the right of enjoying what four generations of my family have had the privilege to do and use and everyone don't forget this is only one recreational area, if we lose this the ball will keep rolling.

BUT I DON'T FORGET SHIT

FITZY.

[Leithfield]

RECOMMENDATION SEVEN
THAT THE WORKING PARTY RECOMMEND THAT VEHICLES BE BANNED BETWEEN STRINGERS BRIDGE AND UPSTREAM OF BARNETTS ROAD / DARNLEY ROAD WITH THE EXCEPTION OF MOTORBIKES WHICH WILL BE BANNED FROM DIRECTLY WEST OF SH1.


I'm sure the Scouts camp which operates directly West of SH1 are particularly enamoured by this one. The camp site offers an 'adventure retreat' to many groups from Scouts, Girl Guides, etc, and from time to time supervised quad biking activities are active. I wonder how well informed the Scout Camp manager is of the HDC's proposed changes which, with a stroke of a pen, will remove years of established community access.

What is lacking in the HDC proposal is balance; while it is acknowledged and endorsed that a conservation strategy is necessary to preserve the resource of the Waipara River for ALL for years to come, the avarice and self-interest of a minority is being permitted to bulldoze the rights of the wider community.

[albundy]

I wonder how well informed the Scout Camp manager is of the HDC's proposed changes which, with a stroke of a pen, will remove years of established community access.

Very good point Kev. My boy has Keas tonight so I may just enter a discussion with them, get some email addys and start the ball rolling with the scout movement as well.
AL

[albundy]

This came via my email this morning. Thanks to Paul Dolheguy for putting it together. Hopefully it can help some to understand AMAF rights for the writing of their submissions.
Al

Notes on ‘Ad Medium Filum Aquae’ Rights (AMF)
By Paul Dolheguy August 2010
_____________________________________________________________________
These notes are drawn from opinions and information I have gathered and researched and are no more than background information for those interested.

What is AMF?
AMF rights are a Common Law principle that gives a reference point to a boundary by a river that is non tidal. AMF means “to the middle thread of the water”. So if a boundary is on a rivers edge then an AMF boundary is basically the centre of the river. AMF rights are presumptive rights and where the landowner owns land bounded by a river, the presumptive rights will apply unless there is evidence to the contrary.

Can AMF rights be challenged?
Yes, basically three ways:-
1 Can it be established as to was the river expressly reserved from Crown Grant.
2 Was the river navigable at the time of the Coal Mines Amendment Act 1903 coming into force, if so then the river bed remains vested in the Crown.
3 Additionally if the river is deemed navigable now. (This bit is somewhat unclear, but it may apply as a challenge.)
However it is not for the landowner to prove this as rights are presumptive. But the rights can none the less be challenged.

Complex law?
Yes the law is complex and that is an issue and hence the legal opinions of past High Court cases are what the lawyers will debate issues on.
There is case law in NZ that supports the above mentioned challenges.
An early case in NSW Australia (1859 the Privy Council v the City of Sydney) stated that AMF assumption applies unless there is evidence to the contrary. This also applies to NZ and it supports the theory of the landowner has the rights by default in reality.

Are AMF rights limited?
Yes it appears so, as they do not give the landowner the right to interfere with the natural flow of the river, nor can they interfere with rights that have accrued to the public, nor any activity that may affect downstream owners. (This accrued right I think only applies to watercraft use and may link to my point 3 above)

Are AMF rights transferable from owner to owner?
Yes they will be but some people think that AMF rights apply only to the original owner and recipient of the original title. I think this assumption comes about as the original Crown Grant needs to be examined against the title to determine did title exclude or include the river bed?

Additionally the background on Navigability aspects of the river.
Case background on this:-
In a case in 1900 Mueller v Taupiri Coal Mines is important as it went to the court of appeal and they found that the original grant by the crown to Taupiri Coal Mines did not include the actual bed of the river. The river in question was the Waikato River and it was navigable and was a major highway at that time. The court said that basically should the presumption apply, then accordingly it would interfere with the existing use of the river. So that the public interest in the river should remain public property.



Following this case the Coal Mines Amendment Act 1903 was passed. Section 14 said;-
“Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to always have been vested in the Crown, and , without limiting in any way the rights of the crown thereto and all minerals, including coal, within such bed shall be absolutely the property of the Crown.
For the purposes of this section ‘Bed’ means the space of land which waters of the river would flow at its fullest flow without bursting the banks. ‘Navigable river’ means a river continuously or periodically of sufficient width and depth to be susceptible of actual or future beneficial use to the residents, actual or future, on its banks, or for the public for the purpose of navigation by boats, barges, punts or rafts.”

Then section 206 of the Coal Mines Act 1925 amended ‘Navigable River’ to mean
“….a river of sufficient width and depth (whether at or all times so or not) to be used for the purpose of navigation by boats, barges, punts or rafts”.

Then moving to the Resource Management Act;-
Now under section 230 of the Resource Management Act 1991 require a 3 metre esplanade reserve abutting streams and rivers where the subdivision is less that 4 HA lots.
Section 237A of RMA requires for the vesting of the river bed in a territorial authority on a subdivision where by the land abuts a river. This in reality nulls a AMF presumption on any subdivision.

Parliaments intentions with Law and public access
A Journey, not a Destination view point
It seems that since 1900 various Acts of Parliament have been set up to try and deal with landownership, especially with sea bed, riverbeds, lakes and the like. as there are also many other cases and laws with the repeal of many Acts of parliament, and these replaced with RMA, Conservation Act and so on, you need to be a very good lawyer to wade through it all.
But the key for me is this, the general thrust of all these Acts’ over time is clearly, to preserve where possible rivers, esplanade strips, stream beds, rivers, seabed’s lakes, foreshores and the like to be actually owned by the Crown and or local bodies thus meaning to be in the hands of the general public of New Zealand, not in the ownership of other landowners. Further more the Walking Access Act is there to specifically improve the publics access to these and other public lands. Some of this also goes back to the intention of these lands under the Treaty of Waitangi, and we just now still see issues on this. The recent debate with the Seabed & Foreshore comes to mind, hence my comments, it is in reality a journey not a destination in my opinion, and that is how we should think of it “Evolution, not revolution.”
So Local Bodies and other Crown operations should be acting in the same way, that is with a view and actions to improve public access, not reduce it.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

In the Waipara case, the following should be noted:-
(Extract summary from HDC legal opinion from Simpson Greirson Law Firm paper I think circulated to members of the working party)
a) The navigability of the river is likely to be a factor as to if AMF rights actually apply
b) To determine navigability (and was it navigable in 1903) a detailed factual inquiry would need to be required. This could require court action to get a clear declaration.
c) If the crown grant was prior to 1903 it is possible that the crown grant included the river bed, unless there is evidence to say it did not. This would require a title by title application.
d) If the grant was between 1903 and 1924 then it is likely that the grant did not include the river bed, due to the Coal Mines amendment Act 1903
e) Since 1924 crown grants of riparian land should have reserve strips of land adjacent to the river.
This means that HDC should at least explore all of these to be assured that they are acting in the best legal and public interest with respect to the actual ownerships of the river. Once this key issue is established, then actions can come from the outcome whichever way it goes. Without making some effort to check legal ownership HDC is sidestepping a key issue and allowing the landowners without challenge to actually control public access when it may be in fact be Crown land with full Crown rights. (Remember when we use the term ‘Crown’ we are in fact saying ‘the people of NZ’)

What is so special with respect to the Waipara River?
Obviously the above legal note from Simpson Greirson lawyers is not just applicable to the Waipara. The same will and must apply to all rivers.

Other Rivers
I have done some searches on the Computerised land database on other Canterbury braided rivers and not all at protected totally by Reserve Strips (on computer databases they are shown as a ‘Paper Road’) and are therefore with similar title boundaries as the Waipara River.
My research shows that the following rivers also seem to have a mixture of AMF boundaries and also Esplanade Reserve road strips:-
Ashburton River, Rakaia River, Selwyn River, Okuku River, Ashley River, & Kowai River are all examples.

All of these rivers are used by all form or recreational use and I have no knowledge of any neighbouring landowner that may have AMAF rights blocking public users. The Rakaia may be a bad example as it is a navigable river (well currently used by a lot of Jet boats) but none the less I am not sure if it was navigable in 1903, so it may be a presumed Navigable river?

Clearly if neighbours on these rivers exercised their rights under AMF if they exist and we must assume that in many cases they do especially if the river boundary is not a public road strip, we could have more repeats of what is happening on the Waipara, so we need to be careful how we open up comparisons with other rivers, but it raises a key issue, What is so special with respect to the Waipara River?


The Waimakariri River is a bit different also, as when the Waimakariri river was diverted most of the riverbed is actually owned by Ecan, (it actually shows up as titles not as unclaimed crown land) so that is why Ecan can control and do what it does as ownership is vested by title to Ecan as a local body. So in some ways the Waimakariri is a good example of a local body exercising good ownership and control plus they have allowed for a good mixture of recreational users. If Ecan did not own the River bed then it would have been a different set of circumstances. So there are clear benefits whereby the Crown and or local bodies have clear title to the river bed land.

In summary the Waipara River issue exists because a few land owners have complained about, what is a nuisance aspect, of public use of the river, again this nuisance aspect applies to all rivers as public treat rivers with some abuse. This creates a conflict and in the Waipara case some one has ceased on AMF rights and have decided to exercise ownership rights as a result, then to keep the public of what they consider their land. If this was to be seen as a solution, then other rivers could attract the same outcomes.

We therefore need to “tread very carefully”

[OVERSZ]

I have been given permission to share this Submission as an example. Thanks Mike. Please don't just copy and paste. Use your own words as much as possible.

Please share your submissions with others on here. You might inspire others to place a submission.

TO: Hurunui District Council


SUBMISSION - WAIPARA RIVER MANAGEMENT - HDC

1. Need more work, refer it back to the Working Group, premature release of the plan and the vehicle access had not been 'FULLY' discussed upon release of the plan.

2. The Mission Statement of the working party was to have the Waipara River managed in an environmentally sound way ensuring areas of public interest allowed public access. Quite clearly, this has not been addressed.

3. Legal aspect of the river has not been addressed. Crown ownership is clearly the best option for the Waipara River and would be more likely to be accepted by the public.

4. As for gaining access through every neighbouring land owner is an impossible task that very few will ever try to say the least. Most times it is a spur of the moment idea to go for a swim, ride, fish or drive. Finding all the numbers and names of owners to ring just to find one is out, thus prohibiting access, cannot and will not work EVER.

5. If the HDC enforced current laws "present" legal avenues to control unlawful use of the river could be enforced. Why make even more laws if you can't enforce the ones you currently have in place.

6. Most of the public will not follow any 'new' laws as they will be too complex for the average 'Joe Bloggs' to understand. As you will know, signage only lasts a few weeks so that does not work. Dividing the river into sections of use will not work as again 'Joe Bloggs' won't read signage or know the points where the line is drawn. How are you going to put signage on ALL access ways to the river? Impossible. People get to the river from many many access ways and have done so for over 100 years. Don't let the public lose this riverbed access because of half a dozen or so newcomers saying "we don't want you in our river". Most of them are new Landowners to the Area, and now they say it's "their river" - what a joke.


I have used this river for 30 plus years and my father before me and my sons now. It has been used this way for over 100 years. As for the new owners, before they bought their property they knew it was used by the public - it is our traditional right as New Zealanders to continue doing this.

As the HDC well knows, there is a paper road from the north side of Stringers Bridge and yes it is not driveable. But the HDC also knows that just because it is not driveable doesn't mean much. As the HDC spent thousands of rate payers money to engage a lawyer to find out that from the centre of the paper road to the centre of the river the land in between can legally be used for access. HDC can you please present ALL documentation confirming this to the combined 4WD club as soon as possible so everyone can understand it properly.

As for west of the gorge and from Laidmore Road, the current owner of Claremont farm has, in my opinion, had heavy machinery in the riverbed to move what the general public refer to as "giant cannon balls" from where they naturally fell into the river and moved them to the south side of the river just so his paying customers can view them better. This is not acceptable. The same applies for the gorge - Claremont owners are happy to allow their own vehicles in the river for their paying customers. It is my submission that 'if it's good for one then it's good for all.


Mike Barnett
Leithfield Beach
North Canterbury

[OVERSZ]

Has anyone go photographs of Gods Marbles as they now called from a few years ago?

This information could well be very important in our Fight for the Waipara.

Cheers

Graham

[tallsam66]

Caution should be observed in what you write here remember this is a public forum & ANYONE can read this.
Dont give the game away by saying too much ... the "enemy" will be watching!!

[albundy]

All the better Trev, they see we hav a movementof action going.
Al

[OVERSZ]

If it did happen they have nothing to worry about. If it did well let them shake in their boots. I hope those opposing us are watching. As Al says they will see we are serious.

Al you had a photo sent to you yesterday. Can you put that on please. I cant figure out how.

We still dont have any photos of Gods Marbles pre say 2008.

[Steve_t647]

I have also made the NZJBA (Jet Boat Association) aware of the issue and management plan as this draft document does not have any mention of their continued use of the river.

Jetboats are classed as a vehicle so would also be restricted under this agreement and they are interested in the "alleged AMF rights".

[Steve_t647]

On the above topic of Ad medium filum aquae rights this is a direct quote form a government document:

"An aspect of land law, originating in Britain, is the concept of ad medium filum aquae (to the middle line of the water). Where a river abuts a property and connection is not interrupted by a legal road or other form of public land, the adjoining landowner may own the riverbed to the middle line of the river. Such land can offer valuable grazing or land use rights. Nearly all Maori land bordering waterways has ad medium filum rights."

In this it states "Where a river abuts a property and connection is not interrupted by a legal road or other form of public land" in the Waipara river there is a legal road admittedly unsurfaced but it is there and it does exist so these AMF rights may not exist!

This does not mean do not put in a submission, or just challenge this one position.

[albundy]

Al you had a photo sent to you yesterday. Can you put that on please. I cant figure out how.

no photo sent to me cobber, I have never loaded a photot up to this ever, so I wopuld have to work it out first. Where abouts are these so called gods marbles in the river bed. I may have a photo, just not sure what you are referring to Graham.
Al

[OVERSZ]

They are above Whites Gorge, Below Claremont

Almost certainly they have been fiddled with.

I have resent the Photo to you by email.

Cheers

Graham

[tallsam66]

Fpund these on the net

[tallsam66]

Found these on the net

[kbjj]

Wow, they look cool. I must take family up there to see those. Google them, quite interesting.

[Steve_t647]

Has anyone been up this way to see what has happened further upriver? There is a lot of damage to the riverbed and some "land wave" style formations that will wash out to sea as soon as the river floods.

Beware of pea gravel in the river if you go have a look fut it would be interesting especially the gorge area, if we can show it can handle a 7.1 earthquake or that it later has recovered from it.

[OVERSZ]

Just a reminder folks to you only have until the 30th to get your submission in. Dont leave it till the last Minute.
Hey and you dont need to be a local. The Waipara river is there for all. You folks up north and way down South get to it as well.
Even more important that you do as many who would have put in a Submission are now involved in looking after themselves and others after the Quake.
There are links on page 18 of the thread

Cheers

Graham

[OVERSZ]

Right O folks here's your chance. If you prefer action to writing submissions this is for you.

There is a Draft Management Strategy which basically shuts 4WDers out of the Waipara River. SH1 to the Gorge.

This will be your day

SUNDAY 26th September
Assemble 10.30am at Sefton.
To keep things orderly turn into Amores Road then right into Rangiora Leithfield Rd and Right again into Pembertons Road.
This should provide us with enough room for up to 1000 trucks.
Please don't block the road.

Listen on UHF & CB channel 11.

We will then go to Amberley via the Back Road to cause as little disruption to others as possible.
We will Drive past the HDC offices and onto the Waipara River.

Turn into the Riverbed on the left and then go DOWNSTREAM. We will assemble out of site of SH1 so we don't have rubber neckers smashing into each other.

There will be a place there where people can sign a pre written submission. A Sausage Sizzle will also opperate to cover costs.

At a time to be arranged a small delegation will present the Submissions to a representative of the HDC or failing that to someone in the Waipara River Working Party.

Please no Hooning as we will try and have the News Media there.

Tell everyone about this. Lets show them that its NOT GOOD ENOUGH to just shut us out. After all the River has been used for more than 50 years by people in 4WD's. The people who want us out have only had title for less than 20 years.

Tell us your coming, Tell us how many mates are coming. Tell Campers, Tell Fishermen. Tell Everybody.

PM me if you need more info

Cheers

Graham

[tallsam66]

Not long to go.
30th is the cut off point ...get your submissions in ... have your say or loose the river.

[OVERSZ]

There will be Submission forms there on Sunday for you to put your names to. Already written for you.

They are also available at

4WD Upgrades and 4x4 Accessories. Call in and put your name on them.

[tallsam66]

Bump.... deadline is approaching fast

[IcedJohnno]

Bump.... deadline is approaching fast

Hey All
This is something I am passionate about although sadly I could not make the protest.

Is there a submission already prepared online that I can can and send off?

I looked on this, and the other thread but could not find it.

Cheers John

[albundy]

pm oversz, AKa Graham

[OVERSZ]

Bump.... deadline is approaching fast

Hey All
This is something I am passionate about although sadly I could not make the protest.

Is there a submission already prepared online that I can can and send off?

I looked on this, and the other thread but could not find it.

Cheers John

email graham@orarinursery.co.nz I will send it by return for you to fill in sign and post or Fax

Cheers

Graham

[IcedJohnno]

Thanks Graham and Al