Faulkner v Bay of Plenty Regional Council
[2023] NZHC 145
•9 February 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TAURANGA MOANA ROHE
CRI-2022-463-53
[2023] NZHC 145
BETWEEN TIO FAULKNER
Appellant
AND
BAY OF PLENTY REGIONAL COUNCIL
Respondent
Hearing: 10 October 2022 Appearances:
Appellant in person
A A Hopkinson for Respondent
Judgment:
9 February 2023
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 9 February 2023 at 4PM Registrar/Deputy Registrar
FAULKNER v BAY OF PLENTY REGIONAL COUNCIL [2023] NZHC 145 [9 February 2023]
Introduction
[1] Mr Tio Faulkner (the appellant) appeals against the decision of Judge P A Steven delivered in the Tauranga District Court on 4 November 2021 in which she found the appellant guilty and convicted him on six charges related to offending under the Resource Management Act 1991(RMA).1 The Judge entered convictions on each of the six charges on 11 November 2021.2
[2]The appellant appeals against his convictions.
The charges
[3]The charges on which he was convicted are as follows:
(a)Between 1 September 2018 and 7 October 2019 at or near Matapihi Road, Matapihi, the appellant contravened or permitted a contravention of s 12(1)(a) of the RMA by reclaiming an area of the foreshore or seabed in the coastal marine area when that reclamation was not expressly allowed by a national environmental standard, a rule in a regional coastal plan, a rule in a proposed coastal plan, or a resource consent.3
(b)Between 1 September 2018 and 7 October 2019 at or near Matapihi Road, Matapihi, the appellant contravened or permitted a contravention of s 12(1)(e) of the RMA by disturbing the foreshore or seabed in the coastal marine area in a manner that has or is likely to have an adverse effect on plants or animals or their habitat, when that disturbance was not expressly allowed by a national environmental standard, a rule in a regional coastal plan, a rule in a proposed coastal plan, or a resource consent.4
1 Bay of Plenty Regional Council v Faulkner [2021] NZDC 21536 (District Court judgment).
2 Bay of Plenty Regional Council v Faulkner [2021] NZDC 22141.
3 CRN 19070502125. Sections 338(1)(a) and 339(1)(a) Resource Management Act 1991, maximum penalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.
4 CRN 19070502131. Sections 338(1)(a) and 339(1)(a) Resource Management Act, maximum penalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.
(c)Between 30 July 2019 and 8 October 2019 at or near Matapihi Road, Matapihi, the appellant contravened or permitted a contravention of s 15(1)(b) of the RMA by discharging a contaminant (namely water containing faecal bacteria from a piggery) onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water when that discharge was not expressly allowed by a national environmental standard, a rule in a regional coastal plan, a rule in a proposed coastal plan for the same region or a resource consent.5
(d)On 13 August 2020 at or near Matapihi Road, Matapihi, the appellant contravened or permitted a contravention of s 15(1)(b) of the RMA by discharging a contaminant (namely water containing faecal bacteria from a piggery) onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water when that discharge was not expressly allowed by a national environmental standard, a rule in a regional coastal plan, a rule in a proposed coastal plan for the same region or a resource consent.6
(e)On 13 August 2020 at or near Matapihi Road, Matapihi, the appellant contravened or permitted a contravention of an abatement notice by discharging piggery effluent to land in circumstances where it may enter water being an offence under s 338(1)(c) of the RMA.7
(f)Between 14 November 2019 and 23 December 2019 at or near Matapihi Road, Matapihi, the appellant contravened or permitted a contravention of s 22(2)(a) of the RMA by failing to provide
5 CRN 19070502132. Sections 338(1)(a) and 339(1)(a) Resource Management Act, maximum penalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.
6 CRN 20070501287. Sections 338(1)(a) and 339(1)(a) Resource Management Act, maximum penalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.
7 CRN 20070501288. Sections 338(1)(c) and 339(1)(a) Resource Management Act, maximum penalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.
information as directed by an enforcement officer, namely his full name, address, and date of birth.8
The Judge’s decision
[4]In her decision the Judge summarised the factual background to the charges.
It is convenient to set out her summary in full:9
[16] On 23 July 2019, a Council land management officer, Mr Matthew Davis, was carrying out aerial surveys near Tauranga Harbour when he noticed what appeared to be a structure protruding into the harbour at the property's western edge. He also observed a piggery in this area. Mr Davis took photographs of this part of the property and then provided those photographs to the Council's compliance team.
[17] On 31 July 2019, Council enforcement officers ('enforcement officers') inspected the property where they found that there had been a significant volume of construction waste deposited on the foreshore of the CMA, creating a flat platform and extending the land area of the property onto the foreshore in the CMA. The deposited material consisted of concrete and fill, but also contained plastic wrap and rebar.
•
[18] The officers measured the reclaimed area and found it extended approximately 15 m into the CMA. At that stage the area of reclamation protruding into the harbour was 30 m in width and 2-3 m deep. The officers estimated that the volume of material in the CMA was 900 m3 to 1,350 m3. The officers observed that more material had been deposited in the CMA at this location since the Council land management officer took aerial photographs of the area on 23 July 2019.
[19] During the inspection the officers also saw a piggery beside the fill site that contained at least 20 pigs. The officers saw a flow path of water from the piggery to the edge of the CMA. The officers took a sample of the piggery water at the point where it had ponded at the edge of the CMA. When that sample was later analysed it was found to have faecal coliform levels of 57 million cfu/100ml, E.coli levels of 35 million cfu/l00ml and suspended solid levels of 7,100 g/m3.
[20] When Council officers spoke with Mr Faulkner about these issues on 9 August 2019 they told him that the works associated with the deposition of material on the foreshore and the discharge of pig effluent breached the Council's regional plan rules and required a resource consent.
[21] However, Mr Faulkner responded that he held an ”intellectual resource consent” authorising all works at the property that was issued to him by the "Tangatawhenua Wealth and Resource Management Authority™©". It is worth noting here, that the consent held by the
8 CRN 19070502141. Sections 338(2)(a) and 339(2) Resource Management Act, maximum penalty a fine not exceeding $10,000 and where the offence is a continuing one, to a further fine not exceeding $1000 for every day or part of a day during which the offence continues.
9 Footnotes omitted.
[appellant] was the subject of a later pre-trial ruling made that it is not a lawful authority under the RMA as it had not been issued by a consent authority, as defined in s 2 of the RMA.
[22] On 30 August 2019, the Council received a complaint from a member of the public that construction waste was being dumped into the CMA adjacent to the property.
[23] On 4 September 2019 an enforcement officer issued an abatement notice to the [appellant] requiring him to immediately cease the unauthorised reclamation of the foreshore in the CMA at the property. That notice was not appealed.
[24] On 7 October 2019 enforcement officers executed a search warrant at the property. The officers found that more material had been deposited and that the reclamation area had been extended further into the CMA since the previous Council inspection on 23 July 2019. The volume of demolition waste and fill deposited in the CMA was measured to be 1,422 m3 (with 256.7 m3 being the additional amount of material deposited since 23 July 2019). The material used for the reclamation work contained reinforcing steel, concrete, wood, plastic and polystyrene.
[25] On 7 October 2019 the officers also measured the distance from the piggery to the CMA to be 8 m. The officers counted 37 adult pigs and 12 piglets in the piggery at that time. The officers also saw effluent from the piggery had flowed from the pigge1y into two areas of ponded stormwater between the piggery and the harbour. A sample of this ponded water taken at a point 5 m from the harbour, which following analysis, was found to have faecal coliform levels of 47,000 cfu/l00ml and E.coli levels of 30,000 cfu/100ml.
[26] On 4 November 2019 the Council went to the property to check compliance with the abatement notice issued on 4 September 2019. During the inspection the Council served a second abatement notice on Mr Faulkner, this one requiring him to immediately cease discharging piggery effluent to land where it may enter water. That notice was also not appealed.
[27] An electronic copy of that abatement notice, along with the first abatement notice dated 4 September 2019, was sent to the [appellant] by email on 7 November 2019. In that email Mr Faullmer was also requested to provide the information described in s 22 of the RMA by 14 November 2019 (e.g. his date of birth, address and full name). The content of s 22 was included in the email. Mr Faulkner has never provided the infmmation.
[28] On 13 August 2020 enforcement officers executed a further search warrant at the property. During the execution of that [search] warrant they observed the piggery near the harbour' s edge was still in operation and contained 23 pigs. The Council officer saw effluent from the piggery ponding outside the piggery and overland flow paths from that ponded effluent.
[29] During the inspection on 13 August 2020 a Council officer took a sample of water in a ponded area to the south of the piggery. A flow path from this ponded area extended for 6-7 m towards the harbour before
disappearing into a hole. When that sample was analysed it was found to contain faecal coliform levels of 200,000,000 cfu/100mL and E.coli levels of 58,000,000 cfu/100mL.
[5] The Judge then identified and addressed the following elements of the offending which the respondent must prove beyond reasonable doubt in relation to the charge alleging breach of s 12(1)(a) of the RMA:10
(a)the activity was on the foreshore or seabed;
(b)the activity was within the Coastal Marine Area (CMA);
(c)the activity is a reclamation;
(d)the activity was not permitted by a national environmental standard, a rule in a regional coastal plan or proposed plan, or a resource consent; and
(e)the activity was caused or permitted by the appellant.
[6] As regards the first two elements the Judge referred to the evidence of the respondent’s witnesses and concluded:
[53] The evidence of all of these witnesses was undisturbed by the cross- examination of the [appellant]. I find that the question of whether the activity occurred on the foreshore or seabed and in the CMA has been proven to the requisite standard (beyond reasonable doubt) by a comfortablemargin.
[7] As regards the issue of whether the activity is a reclamation, the Judge noted that although the term reclaim is not defined in the RMA, the Bay of Plenty Regional Coastal Environmental Plan (RCEP) defines the term reclamation:
Reclamation: An activity that results in the formation of permanent land located above mean high water springs from land that was formerly below the line of mean high water springs (in the coastal marine area). Reclamation does not include:
(a)The formation of land above mean high water springs as a result of natural processes, including accretion; or
10 District Court judgment, above n 1, at [32] regarding CRN 19070502125.
(b)Structures such as breakwaters, moles, groynes, seawalls or jetties.
[8] Applying that definition to the evidence given by the respondent’s witnesses, the Judge concluded:
[64] In his legal submissions, Mr Hopkinson referred me to the definition of 'structure' in s2(1) of the RMA as meaning:
Any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft.
[65] I agree with the Council that the works are not appropriately described as a structure and nor were they the result of natural processes (such as accretion). While there was some (weak) evidence from the [appellant] to suggest that the works may have been carried out for the purpose of erosion protection, given the nature and extent of the works I find that the Council has proven beyond reasonable doubt that the works within the CMA do in fact amount to a reclamation.
[9] In addressing the issue of whether the respondent had proved that the activity was not permitted by a national environmental standard, a rule in a regional coastal plan or proposed plan, or a resource consent, the Judge referred to s 12(1)(a) of the RMA. The Judge noted the respondent’s evidence that none of the exceptions applied and none of the rules contained in the RCEP permitted the work or activities that had been carried out on the appellant’s Matapihi property, and no resource consent had been issued by the respondent authorising the works within the CMA. The Judge concluded:
[76] For completeness, the [appellant’s] questioning of witnesses and his approach in closing, as revealed in the affidavit, also suggested he had existing use rights for the activities conducted on his land and within the adjoining part of the CMA, which are protected under either ss 10 or 20A of the RMA, an argument that was directed at all of the charges (excluding those related to s22 of the RMA) and I address these and other arguments raised by the [appellant] at the end of this decision. It suffices to note my finding that the activities on the land and within the adjoining CMA are not protected by existing use rights recognised by the RMA.
[10] And in relation to the issue of whether the activity and work carried out at the appellant’s Matapihi property and adjacent inter-tidal area within the CMA was caused or permitted by the appellant, the Judge summarised the respondent’s evidence regarding the conduct of the appellant and found:
[81] In this case there is ample evidence of the [appellant’s] knowledge and involvement stemming from his ownership, occupation and control exerted in relation to the property:
…
[86] I find that the Council has proven beyond reasonable doubt that the [appellant] caused or permitted the reclamation of the area of the foreshore within the CMA at the western end of the land at 128 Matapihi Road.
[11] The Judge then considered the charge alleging the offence under s 12(1)(e) of the RMA. Her Honour found that the charge under s 12(1)(e) required proof of different elements than required in respect of the s 12(1)(a) offending. Having first considered whether the charge involved the appellant being subject to double jeopardy by the s 12(1)(e) charge, and whether the charge was precluded by limitation, she concluded that this charge was proved beyond reasonable doubt.11
[12] In relation to the charges alleging offences under s 15(1)(b) of the RMA by discharging contaminated water from the piggery, the Judge found that the evidence established that contaminated water had been discharged during the two time periods specified in the charges,12 and that the appellant was responsible and liable under s 15(1)(b).13
[13] The Judge then addressed the charge alleging that the appellant contravened or permitted a contravention of an abatement notice by discharging piggery effluent to land in circumstances where it may enter water being an offence under s 338(1)(c) of the RMA.14 Her Honour found that the respondent’s evidence proved that an abatement notice was issued and correctly served on the appellant on 4 November 2019 which required him to immediately cease discharging piggery effluent to land where it may enter the water in the CMA.15 The Judge referred to the evidence of the prosecution witness who visited the property on 13 August 2020 to undertake an inspection of the reclamation area and the piggery and observed a discharge coming from the piggery which was sampled and subsequently analysed as containing faecal contaminant. Accepting that evidence the Judge accordingly found the charge of
11 At [120] regarding CRN 19070502131.
12 At [139][140].
13 At [148] – [150].
14 CRN 20070501288.
15 At [161].
alleging the appellant contravened the abatement notice on 13 August 2020 to be proven beyond reasonable doubt.16
[14] The Judge then considered the two separate charges under s 22(2)(a) of the RMA alleging that the appellant failed to provide information as directed by an enforcement officer, namely his full name, address, and date of birth.17 The Judge concluded that the prosecution evidence proved that the appellant was guilty of one of the two charges, namely the charge based on the direction given to the appellant by the respondent’s enforcement officer on 7 November 2019.18 The Judge dismissed the second charge as she found that it was based on an erroneous understanding of the request provided to him.19
[15] The Judge then considered and rejected the appellant’s submissions that the provisions of the RMA on which the charges were based did not apply to him. The Judge described the appellant’s submissions as follows:
[197] In his closing submissions, Mr Hopkinson anticipated closing arguments from Mr Faulkner based upon his approach during the trial, and his submissions fairly capture some of the arguments, to the extent they are able to be discerned, from the affidavit filed by the [appellant], namely:
(a)the reclamation works carried out at or near 128 Matapihi Road are lawful as they occurred in accordance with his rights as tangata whenua or mana whenua to exercise undisturbed customs and usage rights over Māori-owned land;
(b)the [appellant] had no statutory duty to respond to the enforcement officer’s direction under s22(2)(a) of the RMA because he is not a “natural person” (i.e. an individual), but part of a collective (i.e. tangata whenua);
(c)the prosecutor cannot prove “its claim and its authority over
Māori customary land”;
(d)the Council officers has insufficient regard to the Treaty of Waitangi and/or tikanga when they inspected the property and gathered the evidence relied on by the prosecutor at the trial.
16 At [163][164] and [171].
17 CRN 19070502141 and CRN 19070502142.
18 At [195] regardingCRN 19070502141.
19 At [196].
[16] The Judge referred to and adopted the findings made in the pre-trial ruling of Judge Kirkpatrick20 and concluded:
[198] Mr Hopkinson submitted, and I agree, that none of these arguments constitute a valid defence to any of the charges. The laws of Parliament (including the RMA and the CPA) apply to the property and to Mr Faulkner.
[17] The Judge also dismissed the appellant’s submissions which appeared to be in the nature of a challenge to the sovereignty of Parliament,21 and also dismissed the appellant’s possible reliance on existing use rights under s 20A(1) of the RMA.22
[18] The Judge concluded that she was satisfied that the six charges set out at [3] above were proved beyond reasonable doubt, and she dismissed the alternative s 12(1) charges which were withdrawn by the prosecutor.23 The Judge also dismissed the second charge of failing to provide information.24
Procedural history of this appeal
[19] Following the Judge’s decision of 4 November 2021 finding the appellant guilty of the six RMA offences, a sentencing date was initially scheduled for 22 December 2021 and subsequently rescheduled for 19 January 2022 after the appellant had declined to meet with Corrections for the purposes of the preparation of a pre-sentence report. When the appellant did not appear in court at 10:00 am on 19 January 2022 the Judge issued a warrant for his arrest. When the appellant subsequently appeared at 1:00 pm that afternoon the Judge declined his application for bail and remanded him in custody with sentencing rescheduled for 2 February 2022.
[20] On 19 January 2022 with the assistance of Ms Georgina o-te-whanau-Turanga, the appellant applied to the High Court at Tauranga for a writ of habeas corpus. The application was heard by Gault J on 21 January 2022 and dismissed in a reserved judgment delivered on 24 January 2022.
20 At [203], citing Bay of Plenty Regional Council v Faulkner [2020] NZDC 26828 (Jurisdiction decision).
21 At [204].
22 At [214].
23 At [215][216].
24 At [216].
[21] On 28 January 2022 the pre-sentence report was filed with the Court. The sentencing on 2 February 2022 was adjourned part-heard because there was insufficient information in the pre-sentence report regarding the appellants financial circumstances and means to pay a fine. He was remanded in custody for his sentencing to be finalised on 17 February 2022.
[22] On 17 February 2022 the appellant was sentenced by the Judge to imprisonment for a term of three months and two weeks, and ordered to pay $5,000 towards the prosecutor’s costs. He has since served his sentence and been released.
[23] On 24 January 2022 with the assistance of Ms Turanga the appellant filed two documents in the High Court at Tauranga. The documents are endorsed as being filed by Ms Turanga as “Kaituhi o Te Kooti o Papatuanuku, Native Court”. The documents were an “Urgent Appeal Of Refusal To Grant Bail” and an “Urgent Appeal Against Conviction Out Of Time”. Unfortunately, the appellant’s appeal against the refusal to grant him bail was not heard prior to his sentencing hearing on 17 February 2022.25
[24] Both appeals were addressed in a Minute issued by Lang J on 25 May 2022 which he issued following a conference with the appellant and counsel for the respondent. In his Minute Lang J noted that events had overtaken the bail appeal as the appellant had already served his sentence of imprisonment and he accordingly made an order dismissing the bail appeal. In relation to the appellant’s appeal against the convictions, Lang J directed the appellant to provide a list of the points he wishes to take on appeal, to be filed and served no later than 20 June 2022. Justice Lang further directed that the conviction appeal be re-listed for mention in the criminal call- over on 22 June 2022 at 9:00 am, and he noted that the purpose of the direction requiring the appellant to list his appeal points was to ensure that the Court understands the points the appellant wished to raise on the appeal and could then proceed to allocate a hearing date of appropriate duration having regard to the nature of the points to be raised at the hearing of the appeal.
25 The reasons for the delay in having the appeal heard are set out in a Minute of Moore J dated 15 February 2022.
[25] Following a further judicial conference on 29 June 2022, Lang J issued a Minute in which he noted that although the appellant had filed and served his points on appeal on 20 June 2022 in accordance with the previous directions, the Judge considered that the proposed points on appeal were not likely to be tenable. However to ensure that the appellant was given the opportunity to advance his argument, he made an order directing that he was to file and serve his submissions in support of all points on appeal no later than 24 August 2022. Justice Lang further directed that the matter was to be listed for mention in the criminal call-over on 31 August 2022 at 9.00 am for the purpose of allocating a fixture for the hearing of the appeal and to fix a time within which the respondent’s submissions were to be filed and served.
[26] At the criminal call-over hearing on 31 August 2022 the appellant made an oral application for an order to stay the appeal proceeding pending. The application was dismissed by Lang J.
[27] Following the 31 August 2022 criminal call-over on Lang J issued a further Minute, in which he noted that the appellant had filed a further list of topics to be advanced on his appeal, but had not filed any accompanying submissions. Justice Lang nevertheless allocated a half day fixture for the hearing of the conviction appeal on 10 October 2022 at 2.15pm. The Judge also directed that the appellant was required to file and serve any substantive submissions no later than 26 September 2022, and said he would leave it to the respondent’s counsel, Mr Hopkinson, to determine whether, and if so to what extent, he was to file written submissions in reply.
[28] Following the 31 August 2022 criminal call-over the appellant filed a document in the conviction appeal proceeding entitled: “Notice Stay in Proceedings 31st August 2022”. This document appears to be a notice of motion seeking an order staying the proceeding “until a full forensic investigation is returned to Gault J (CIV2022-470-005) of the death of King George V and Queen Maud of Norway”. In this document the appellant states:
As the Constitution Act 1986, as I understand it, is not assented to by Queen Elizabeth II, note a token assent by Governor General appointed by Prime Minister is not Royal Assent;
By discovery a break in the Constitutional authority from Te Tirity o Waitangi is identified, as the RMA binds the Crown to recognise Te Tiriti-tikanga- protected customary rights-Kaitiakitanga cf. Sections 6, 7, 8, 34 A and 269;
There is not an allegation of Treason, there is an identification of Treason, by discovery of Treason affecting and effecting the creation of the RMA of the New Zealand Parliament by the removal avocatory orders in 1936 of the Sovereign outside Parliament; points of law undiscovered until 1986;
A Motion to move a Stay in proceedings until outcome of Civil Appeal is known;
Original proof of Claim in not yet heard in a court of competent jurisdiction to attend to Native Right. A Civil appeal is the correct Appeal process to address the miscarriage of justice and prevent further miscarriage of justice;
[29] On 28 September 2022 the appellant filed and served a document described as: “Response to Lang J Minute 31st August 2022”. The document appears to be a list of matters to be raised or relied on by the appellant in support of his conviction appeal. The document sets out a lengthy and discursive list of matters without any supporting information to explain how those matters are said to relate to or affect the validity of the convictions for offending against the provisions of the RMA. A copy of this document is annexed as schedule 1 to this judgment. As can be seen, the matters listed include:
1. Breach of tikanga, customs or usage
- Several occasions evidence in court dismissed as outside jurisdiction of District Court cf. RMA sec 269(3) and Sec 34(a).
2. Unlawful actions of Bay of Plenty Regional Council (BOPRC) ab initio
- BOPRC does not have full comprehension of Native title unalienable rights inherent in the whenua cf RMA Sec 5,6, and 7.
3. A Breach of Te Tiriti of Waitangi 1840 endorsed by 544 Rangatira
-Whenua already with crown designation cf RMA sec 7.
[30] Other matters listed are largely incomprehensible in terms of being of any possible relevance to the appeal.
[31] Apart from the “Response to Lang J Minute 31st August 2022” the appellant did not file (or serve) any other written synopsis of submissions in support of the conviction appeal. As a consequence the respondent could not respond to the
appellant’s submissions and did not itself file any written submissions in relation to the appeal.
Submissions
The appellant
[32] The appellant’s oral submissions generally lacked focus and were difficult to follow. As I understood him, his principal submission is that his rights as the owner or custodian of the aboriginal or native title to the land which is the subject of the charges have been disregarded and effectively ignored by the District Court Judge in her decision finding six of the charges he faced proven. He submits that his rights have been what he terms “railroaded” and his indigenous rights as owner of the whenua passed to him by his forebears have been ignored.
[33] The appellant submits that the respondent and its officers entered onto his property illegally and in doing so trespassed onto wāhi tapu where some of his ancestors are buried. The appellant was highly critical of the manner in which the respondent’s officers and agents entered onto his ancestral property without respecting his rights as owner and without appropriate respect for his kaitiakitanga or guardianship of the land and recognition of the fact that they were entering wāhi tapu.
[34] The appellant presented a number of documents which he proceeded to refer to as being relevant to the validity of the convictions. One of the documents was his unsworn affidavit dated 3 September 2021 in which he covers a range of issues related to his assertion that his customary or native rights of ownership of the subject land preclude the jurisdiction of the respondent and its officers and agents from entering onto the land and preclude the respondent from prosecuting him for conducting the activities on the land that is the subject of the charges under the RMA.
[35] The documents he presented and referred to, included a document headed: “Challenge to Jurisdiction, Dated 29 February 2020” in which he had previously sought an adjournment of the proceedings in the District Court. In this document the appellant had sought disclosure pursuant to the Criminal Disclosure Act 2008 of a range of material to prove that the respondent has authority to administer the
appellant’s ancestral land. The appellant submits that as the respondent has not produced the requested information and documents it has not proved that the native title pursuant to which the land he occupies was held has ever been extinguished.
[36] Another document presented by the appellant is headed: “Challenge to Jurisdiction Dated 3 September 2020”. This document relates to the matter determined by Judge D A Kirkpatrick in his pre-trial ruling dated 22 December 2020 in which he dismissed the appellant’s challenge to the jurisdiction of the District Court to hear and determine the eight RMA charges he was then facing.26 Referring to this document the appellant repeated the submissions he had previously made before Judge Kirkpatrick that the land which is the subject of the prosecution for offences against the RMA was never granted by the appellant’s ancestral owners of the land to the Queen, and saying that if the respondent contends that the land is under the jurisdiction of the Crown and subject to laws passed by Parliament, by reason of the effective confiscation actions of Governor Grey and Parliament, those actions were not lawful.
[37] The appellant accordingly repeats the submission he made previously in his 3 September 2020 document that:
The land the subject of the prosecutions has never been granted to the Queen
…
I also argue I have the legitimate expectation, as a right of natural justice, that the land my whanau has lived on since 1835, is not able to be affected by actions of the Crown or its governmental agents/bodies, unless I am causing distress to those around the land. Such natural justice right arises from my whanau holding the land since 1835.
I state it is a requirement of natural justice, the land being with my whanau since 1835, before the Treaty was signed, that tikanga, the land being at law land with aboriginal title and therefore Maori customary land, and how the Treaty applies to this land, is considered. I say if the land has any of such said legal standings it impugns the prosecution actions of the Regional Council.
[38] The appellant also produced copies of the documents listed in his points on appeal document, some of which had previously been produced as exhibits at the District Court trial including the document described as an “Intellectual Resource
26 Jurisdiction decision, above n 20.
Consent” dated 25 January 2019 and purporting to be issued by the “Tangatawhenua Wealth and Resource Management Authority” to the appellant as consent authorising him to undertake “earthworks mitigation for effects of global warming”. In reviewing this material and other documents produced to the District Court, the appellant in effect repeated the submissions in support of the challenge he had made in the District Court regarding that Court’s jurisdiction to hear and determine the charges in circumstances where the issue of native or customary title was in issue.
[39] Other documents produced by the appellant in the course of the hearing of the appeal were:
(a)“Writ of Supersedeas, Dated 24 February 2021”.
(b)“Writ of Certiorari to confirm lifted indubitable facts before 12th July 2021, Dated 12th July 2021”.
(c)“Motion to move to Magistrates Court, Dated 26th July 2021”.
(d)“Writ of Quo Warranto, Dated 26 July 2021”, naming the respondent and John Holst.
(e)“Writ of Quo Warranto, Dated 26 July 2021”, naming the respondent and Stuart Standen.
(f)“Writ of Quo Warranto, Dated 1 August 2021”, naming the respondent and Fiona McTavish.
(g)An unsworn affidavit appearing to be by the appellant labelled simply as, “Affidavit, Dated 3rd September 2021”.
(h)“Motion to Move the Court to Prerogative, Dated 3rd September 2021”.
(i)“Motion to Stay of proceedings, Dated 6th September 2021”.
(j)“Notice to Produce Application for Warrant, Dated 15th October 2021”.
(k)“Notice to Produce Court Order to Bay of Plenty Regional Council, 19th October 2021”.
(l)“Notice for Avoidance of Doubt, Dated 27th October 2021”.
(m)“Notice of Injudicable Proceedings, Dated 28th October 2021”.
(n)“Writ of Habeas Corpus AD Deliberandum, Dated 28th October 2021”.
(o)“Writ of Habeas Corpus AD Testificandum, Dated 28th October 2021”.
(p)“Writ of Quo Warranto, Dated 28th October 2021”, naming the Alexis Miller as Prosecutor.
(q)A second “Writ of Quo Warranto, Dated 28th October 2021”, also naming the Alexis Miller as Prosecutor.
(r)A third “Writ of Quo Warranto, Dated 28th October 2021”, naming the Alexis Miller as Prosecutor.
(s)“Notice to High Court, Writ of Prohibition Absolute to RW Muir, Registrar General of Lands, dated 2nd November 2021”.
[40] The appellant submits however that his 23 points on appeal set out in his “Response” memorandum of 26 September 2022 are subsumed by and encompassed by the matters traversed in his oral submissions. And in his oral submissions in reply, the appellant submits that the miscarriage of justice he relies on is that his appeal against the District Court Judge declining his application for bail was not heard while he remained on remand in custody. He says that he is not challenging the sovereignty of Parliament, but is challenging what the respondent did in the course of investigating and prosecuting the RMA offences and the charges it brought against him, and specifically the respondent’s failure to understand and apply tikanga.
The respondent
[41] Mr Hopkinson for the respondent notes that the appeal is to be determined pursuant to the provisions of s 232 of the Criminal Procedure Act 2011 (the CP Act) which provides that the first appeal court considering an appeal against the decision following a judge-alone trial must allow the appeal if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.27
[42] Mr Hopkinson notes that the appellant has not filed, presented or identified any grounds of appeal and has not made any submissions directed at the issues to be addressed pursuant to s 232 of the CP Act.
[43] Mr Hopkinson says that the respondent’s evidence in the District Court clearly established that the appellant was responsible for hundreds of tons of hard fill waste being spread from the appellant’s property at Matapihi Road and extending into the foreshore area of the Coastal Marine Area of Tauranga harbour. Other evidence proved that water containing faecal material from the piggery on the appellant’s property was running from the property into the harbour.
[44] The respondent submits that the Judge’s decision finding the six RMA charges proven followed an eight-day hearing and the presentation of substantial prosecution evidence to prove the charges. Mr Hopkinson submits that the Judge did not err in reaching her findings that the charges were proven.
[45] In response to the matters raised by the appellant in support of his appeal, Mr Hopkinson notes that there were four: the appellant’s challenge to the jurisdiction of the District Court, which appears to be the appellant’s principal argument; the various writs the appellant purported to issue to the respondent and its officers; the respondent’s conduct in the course of the execution of the search warrant at the appellant’s property; and the application of tikanga principles.
27 Criminal Procedure Act 2011, s 232(2)(b).
[46] Mr Hopkinson says that the issue of the jurisdiction of the District Court to hear and determine the charges was the subject of the pre-trial hearing before Judge Kirkpatrick and was determined by his judgment delivered on 22 December 2020. Counsel notes that the appellant did not appeal against Judge Kirkpatrick’s ruling and he submits that accordingly this Court need not and should not consider the issue of jurisdiction in the context of this appeal.
[47] As regards the various “writs” issued by the appellant, Mr Hopkinson says that they are largely unintelligible. He notes that following the appellant filing the “Writ of Supersedeas” dated 24 February 2021, the respondent filed a memorandum in the District Court noting that Judge Kirkpatrick’s decision had already determined the challenge to jurisdiction referred to in the document. He further notes that while a writ of supersedeas is a procedure available in the United States of America, it is not a procedure available within the laws of New Zealand. Mr Hopkinson says that the various “Writ(s) of Quo Warranto” referred to by the appellant were filed by the appellant and served on the respondent and individuals named in it after the hearing in the District Court had concluded. He submits that they are not relevant to the appeal.
[48] In response to the appellant’s submissions regarding the respondent’s execution of the search warrant and its manner of entering upon the property to conduct a search, Mr Hopkinson notes that the appellant did not challenge the validity of the search warrants or the searches conducted pursuant to the warrants at the hearing in the District Court. Counsel notes that s 332(1) of the RMA contains the power authorising enforcement officers to enter onto a property at a reasonable time to inspect it in order to determine whether there is compliance with the applicable plan, or resource consent, which includes the power to take samples of water, soil, or any organic matter. Counsel notes that in the present case the respondent applied to the District Court pursuant to s 334 of the RMA for search warrants which were granted and subsequently executed. And in accordance with s 335 of the RMA, police officers accompanied the respondent’s staff when they entered the appellant’s property to execute the search warrants. Counsel further notes that no issue was taken by the appellant with the actions of the respondent’s staff or the police during their execution of the search warrants, and the issue of the search involving an area of wāhi tapu was
not raised at the time or during the trial in the District Court. Mr Hopkinson says that the taking of water samples by the respondent’s staff or agents related to the water flowing from the piggery into the harbour and it did not involve any digging or removal of soil.
[49] Mr Hopkinson concluded by noting in his oral submissions that the appellant had not made any reference to a number of the “appeal points” contained in his list dated 26 September 2022 which he was required to file pursuant to Lang J’s direction of 31 August 2022.
The appeal
[50] The CP Act provides for a right of appeal against conviction.28 The appellate court must allow the appeal if it is satisfied that a miscarriage of justice has occurred for any reason.29 A miscarriage of justice means any error, irregularity, or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial, or a trial which is a nullity.30
Discussion
[51] Although the appellant submits that the miscarriage of justice on which his appeal against conviction is based is that his appeal against the District Court’s refusal to grant bail was not heard and determined during the period when he was being held in custody awaiting sentence, that is something that happened after the Judge had already delivered her decision finding him guilty, and after convictions on the charges had been entered. It is therefore not a matter that could possibly have affected the validity of the Judge’s decision finding him guilty of the charges.
[52] However as I have noted, the appellant’s oral submissions were centred on the proposition that the respondent did not have the legal authority to enforce the provisions of the RMA in respect the appellant’s land at Matapihi. In support of that
28 Criminal Procedure Act, s 229(1).
29 Section 232(2)(c).
30 Section 232(4).
submission, the appellant referred to the documents listed in his points on appeal, copies of which he provided to the Court at the commencement of his submissions.
[53] In most cases these documents are dated on dates falling during the District Court trial or on dates following the trial but prior to Judge Steven delivering her judgment on 4 November 2022. Although they contain a discursive range of allegations and obscure legal contentions, they all appear to be related to or derive from the appellant’s claim that the respondent did not have jurisdiction to investigate or prosecute the appellant in relation to his activities conducted on his property. For example, in his Writ of Supersedeas31 dated 24 February 2021, the appellant states:
1. I tio o te whanau falkner hereby invoke Common law by way of Writ of Supersedeas, possessing a more perfect history, to cease and desist proceedings (‘this work must be superseded by a more perfect history’) and motion the court to strike out charges for want of jurisdiction,
…
8. I therefore give this court notice that;
1. To evade my inherent right lore in favour of RMA 1991 statute interpretation as LAW, is deemed repugnant and will be addressed in a Hapu Paa Kooti recorded in Te Kooti o Papatuanuku Native Court ki Waiariki cf. ‘International Native Aboriginal Court of Justice’
2. i: am; ‘Native Inherent Authority’ in, on, over and above said whenua taonga tukuiho: interpreted by the fictitious person assuming authority; BOP DISTRICT COUNCIL as said LANDS.
…
FACT OF THE MATTER
11. I require “proof of claim” that the BAY OF PLENTY REGIONAL COUNCIL (BOPRC) has authority to administer usage upon taonga-tukuiho, my ancestral land; and
…
19. The ruling of Judge DA Kirkpatrick is limited to Acts of Parliament not lore/law of the land.
ORDER
31 An application or petition to the court for a writ of supersedeas is a legal procedure available in the United States of America by which a party applies for an order for a stay of proceedings or enforcement of a judgment or order pending the determination of an appeal. The equivalent in New Zealand is an interlocutory application pursuant to r 20.10(2) of the High Court Rules 2016 for a stay of enforcement of a judgment pending determination of an appeal.
20. I move the Court to Discharge this matter on the grounds that by admittal, Environmental [sic] Court are an administration venue with jurisdiction under the RMA 1991 ONLY therefore, lack competent jurisdiction to hear matters of tikanga customary lore.
21. I move the Court to uphold Cease and Desist Notice on BOPRC in above paragraph 1.
[54] The Writs of Quo Warranto naming the respondent and members of its staff in each case challenged the authority of the respondent and the named staff members’ warrants of authority from the respondent to act on its behalf. The “Writ of Habeas Corpus Ad Deliberandum”, purported to direct the respondent’s prosecutor to produce the author of the warrants relating to the searches of the Matapihi property on 4 October 2019 and 12 August 2020. And the “Writ of Prohibition Absolute” naming the Registrar-General of Lands dated 2 November 2021 referred to an relied on “Prerogative” powers to direct the Registrar-General of Land to prevent certain land from falling into “the jurisdiction of the Land Transfer Acts of the General Assembly of New Zealand”. The subject land being described as: “Any recorded interest registered as Māori freehold Land Shall remain as defined prior to any registration of interest – as absolute;” and “To Bind the Crown to the Fact of the Land being in original right; common absolute unalienable”.
[55] As this brief summary shows, none of the documents produced and relied on by the appellant in the course of his oral submissions at the hearing of the appeal, directly address or relate to the 23 points on appeal set out by the appellant in his “Response to Lang J Minute 31 August 2022” document dated 26 September 2022. Neither do these documents or the appellant’s oral submissions referring to them directly address the issue of whether, and if so how, the Judge erred in her findings that the charges were proven beyond reasonable doubt.
Challenge to jurisdiction
[56] In his pre-trial ruling dismissing the appellant’s challenge to the jurisdiction of the District Court to hear and determine the RMA charges, Judge Kirkpatrick said:32
[20] The argument advanced by Mr Faulkner in relation to title to the land, raupatu or confiscation and subsequent grants of title is not relevant to any of
32 Jurisdiction decision, above n 20.
the charges that he faces. I respectfully agree with the previous ruling of his Honour Judge Smith that the issues of ownership or title do not affect any element of the offences under the RMA. All of the charges relate to things allegedly done by Mr Faulkner which contravened the relevant provisions of the RMA stated in each charge and for which he had no lawful authority. Issues of grant, cession or confiscation are not relevant to those charges.
[21] In relation to his second argument, without accepting that Mr Faulkner has any legitimate expectation in respect of these charges or that there has been any breach of natural justice, I consider that these charges do raise issues concerning the causing of distress to those around the subject land. Such distress arises at least insofar as the statutory provisions of the RMA and the relevant plan rules address the control of adverse effects on the environment. Whether there has in fact been any distress caused will be a matter for evidence at a trial.
[22] In relation to the third argument, the references to aboriginal title and status as customary land are closely related to the first argument and are answered in the same way. In terms of tikanga, I note that under s 269(3) of the RMA the Environment Court is required to recognise tikanga Māori where appropriate, but there is no comparable provision in either the Criminal Procedure Act 2011 or the District Court Act 2016. Under those Acts of Parliament there is therefore no basis on which to argue that tikanga can displace an Act of Parliament. Even so, I fully accept that principles of natural justice from important elements of the common law, to be borne in mind and applied, subject to any relevant statutory provision, in every proceeding before a court. In that sense, at least, tikanga and the common law are conceptually closely related.
[57] I note that in her judgment of 4 November 2022 Judge Steven addressed the appellant’s challenge to Judge Kirkpatrick’s and Judge Smith’s pre-trial rulings regarding the District Court’s jurisdiction to hear and determine the charges, and said that as neither of those rulings had been appealed by the appellant, the rulings could not be relitigated in the proceedings.33 And as I noted earlier, the respondent submits that as Judge Kirkpatrick’s decision was not appealed by the appellant this Court now hearing his appeal against conviction need not consider the issue of the District Court’s jurisdiction determined by Judge Kirkpatrick’s ruling.
[58] However the rights of appeal against certain pre-trial decisions in judge-alone cases created by s 215 of the CP Act are restricted to appeals against those decisions coming within the terms of s 215(2). That section does not confer a right of appeal on
33 District Court judgment, above n 1, at [14].
the appellant enabling him to seek leave to appeal Judge Kirkpatrick’s decision as to jurisdiction.34
[59] I accordingly find that this Court is not precluded from considering and determining whether Judge Kirkpatrick’s pre-trial ruling is correct in the context of the appellant’s appeal against conviction.
[60] Unfortunately the appellant has not made submissions specifically directed at the issue of whether Judge Kirkpatrick’s ruling is correct in law. As I have said, the focus of his submissions has been as to the legal authority and jurisdiction of the respondent to investigate and prosecute him in respect of activities carried out by him or permitted by him in respect of the Matapihi Road property which he and his forebears have occupied since 1835. The Court is accordingly left in the somewhat unsatisfactory position of not having heard submissions from the parties on the issue.
[61] Nevertheless, and for the reasons set out by Judge Kirkpatrick in his ruling,35 I am satisfied that the respondent is constituted by the Local Government (Bay of Plenty Region) Reorganisation Order 1989, and recognised as a regional council in Part 1 of Schedule 2 to the Local Government Act 2002. Pursuant to s 30 of the RMA the respondent has the general functions set out in s 30(1) and specifically in relation to any coastal marine area in its region relevantly as follows:
30 Functions of regional councils under this Act
(1)(d) in respect of any coastal marine area in the region, the control (in conjunction with the Minister of Conservation) of—
(i)land and associated natural and physical resources:
(ii)the occupation of space in, and the extraction of sand, shingle, shell or other natural material from, the coastal marine area, to the extent that it is within the common marine and coastal area:
(iii)…
(iv)discharges of contaminants into or onto land, air, or water and discharges of water into water:
34 See Simon France (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at [CPA 215.01].
35 Jurisdiction decision, above n 20, at [16][25].
[62] The respondent as a regional council is a “consent authority” as provided in s 2 of the RMA whose permission is required to carry out any activity for which a resource consent is required under the RMA. Section 84(1) of the RMA requires the respondent to observe and enforce the provisions of its operative policy statement and plan, and the CP Act provides that any person may commence a criminal proceeding by filing a charging document in the office of the District Court nearest to where the offence is alleged to have occurred.36 I accordingly find that the respondent has the statutory power and responsibility of carrying out an investigation as to possible breaches of the RMA by the appellant and the power to enforce the provisions of the RMA by charging and prosecuting the appellant in respect of the breaches of the RMA it alleged he is responsible for.
[63]Section 8 of the RMA provides:
Treaty of Waitangi
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
[64] I respectfully agree with Judge Kirkpatrick’s observation that there is no principle of Te Tiriti o Waitangi/the Treaty of Waitangi that any Act of Parliament is not binding on any person in New Zealand, whether they be Māori or non-Māori. All persons in New Zealand are subject to the rule of law meaning that everyone is subject to the laws enacted by Parliament in the same way. The principles of the Treaty whereby the relationship between the Crown and Māori has the nature of a partnership requiring good faith, equity and equal treatment, do not provide or indicate otherwise.37 Both the terms and the principles of the Treaty, where they legally bind the Crown, may give rise to legal obligations in relation to tikanga.38 While there is a generally accepted presumption that statutes are to be interpreted consistently with the Treaty as far as possible,39 in the present context the application of Treaty principles
36 Criminal Procedure Act, ss 1415.
37 The principles of the Treaty were obligations first established in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).
38 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [587].
39 Ellis v R [2022] NZSC 114, at [98] and [117] per Glazebrook J. See also at [175][176] per Winkelmann CJ, [257] and [265] per Williams J and [280] per O’Regan and Arnold JJ.
and tikanga is appropriately undertaken under and within the scope of the statutory scheme. Other provisions of the RMA support this conclusion. Section 6 of the RMA relevantly provides:
Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and powers under it ... shall recognise and provide for the following matters of national importance:
(a)the preservation of the natural character of the coastal environment (including the coastal marine area) …
…
(5)the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga:
[65]And s 7 of the RMA relevantly provides:
Other matters
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to –
(a)kaitiakitanga:
(aa) the ethic of stewardship:
…
(4) intrinsic values of ecosystems:
…
[66] These other provisions make it clear that the relationship of Māori with their ancestral lands, water, wāhi tapu, taonga and kaitikitanga in respect of their lands, are matters that must be taken into account and given recognition by all persons exercising functions or powers under the RMA. By mandating that these matters be recognised, provided, and had regard to, by all persons exercising functions or powers under the Act, the RMA can clearly be seen to be stipulating that they are matters that fall within the scope of the RMA, leaving no room for the appellant’s contention that his property at Matapihi, and his activities on the land and affecting the adjacent inter-tidal coastal area, are beyond or outside the scope of the RMA.
[67] I accordingly reject the appellant’s submission that the respondent does not have jurisdiction to carry out its functions under the RMA in relation to the appellant’s activities regarding the property at Matapihi.
Evidential challenges
[68] It is clear from Judge Steven’s decision that the evidence presented to the District Court by the respondent and accepted by the Judge comprised a compelling evidential foundation for the Judge’s findings regarding the charges being proved beyond reasonable doubt. The appellant has not established that the Judge erred in her assessment of the evidence so that a miscarriage of justice resulted.
Conclusion
[69] For the reasons set out above I find that the appellant has failed to show that the Judge made an error in her decision finding him guilty of the charges, and has failed to show that a miscarriage of justice has occurred for any other reason, or that there is a risk that the trial was unfair or a nullity.
Result
[70]The appeal against conviction is dismissed.
Paul Davison J
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