Gregory v Thames Coromandel District Council
[2017] NZHC 3002
•5 December 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE
CIV-2016-419-240 [2017] NZHC 3002
BETWEEN COLT GREGORY
First Plaintiff
PETER-JAMES MARTIN Second Plaintiff
AND
THAMES COROMANDEL DISTRICT COUNCIL
First Defendant
GLEN LEACH Second Defendant
JOHN HOOK Third Defendant
MINISTER FOR LAND INFORMATION Fourth Defendant
SCHMITT GROUP Fifth Defendant
Hearing: 7 August and 14 November 2017 Counsel:
First Plaintiff in person
Second Plaintiff in person
J Vella and C Timbs for First and Second Defendants
M Pirini and R Polaschek for Third and Fourth Defendants
D Quinn for Fifth Defendant
P Andrews, amicus curiaeJudgment:
5 December 2017
JUDGMENT (NO 2) OF WHATA J
This judgment was delivered by me on 5 December 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………………….
GREGORY v THAMES COROMANDEL DISTRICT COUNCIL [2017] NZHC 3002 [5 December 2017]
[1] The plaintiffs claim to be the lawful proprietors of land on or around Redbridge Road, Tairua, by whakapapa, tikanga Māori and customary right. They seek a summary proceeding for recovery of land in accordance with Part 13 of the High Court Rules 2016. The defendants seek summary judgment and/or strike out. The claimed area involves the following parcels of land:
(a) Section 20 Block XII Whitianga Survey District (Section 20); (b) Section 1 Survey Office Plan 53116 (Section 1); and
(c) Lots 1 and 2 LT419829 (Lots 1 and 2).
[2] In a judgment dated 25 September 2017 I granted summary judgment to the first, second and fifth defendants in relation to Section 20 and Section 1.1
Indefeasible title to these parcels is held by the first and fifth defendants respectively. I found the claims by the plaintiffs in respect of these parcels could not possibly succeed.
[3] I adjourned the claim in relation to Lots 1 and 2 (both parcels of reclaimed land), however, to enable further submissions to be made on the effect of s 31(3)(a) of the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act). This subsection provides the absolute vesting of the full and beneficial ownership of all existing reclaimed land in the Crown does not affect any lesser interest held, immediately before the commencement of the Takutai Moana Act, by a person other than the Crown in existing reclaimed land.
[4] I was not satisfied by the limited analysis offered by the parties on the effect of this subsection, and whether “lesser interest” includes customary interests. I invited the parties, together with an amicus curiae, to provide further submissions on its effect and whether customary rights were extinguished by the operation of s 31. The parties subsequently sought a further hearing on this issue, which was held on
14 November 2017.
1 Gregory v Thames Coromandel District Council [2017] NZHC 2323.
The defendants’ applications
[5] The Crown and Mr Hook seek strike out of Mr Hook, and strike out and/or summary judgment in respect of the claim to Lots 1 and 2. Strike out of Mr Hook is sought on the basis the claim for recovery of land is not concerned with his actions taken in respect of the land, Mr Hook merely being Group Manager of Crown Property at Land Information New Zealand (LINZ). Strike out and/or summary judgment in respect of the claim to Lots 1 and 2 is sought on the basis the plaintiffs have failed to establish sufficient interests in the land (with no evidence of such an interest brought), that no customary interests can exist in the land, and even if customary interests can exist, the Māori Land Court is the correct forum for such a claim. The Thames Coromandel District Council (TCDC) seeks strike out and/or summary judgment of the claim against Lot 2 on the basis no customary interest can exist in the land.
A proposed course
[6] It transpired Ms Pirini for the Crown, at the commencement of the second hearing, submitted the proper course would be to grant summary judgment against the plaintiffs without the need to resolve the full effect of s 31(3)(a) of the Takutai Moana Act. She submitted the plaintiffs cannot succeed on their claim under Part 13 because ownership of reclaimed lands was clearly vested absolutely in the Crown by s 31 of the Takutai Moana Act. This, she argued, made any claim based on full customary title untenable. She added the Crown was prepared to concede summary judgment in the present proceeding did not resolve any claim that might be made based purely on customary rights (without accepting that there is a proper basis for such a claim).
[7] This concession is important; the argument advanced by the Crown at the first hearing in favour of summary judgment was s 31 conferred full and exclusive ownership of reclaimed land in the Crown, while s 18(2) of the Foreshore and Seabed Act 2004 extinguished any customary rights in relation to such reclaimed lands. The concession leaves that aspect open for future argument.
[8] I was initially attracted to the Crown’s suggested approach. But the plaintiffs’ claim, as pleaded, asserts proprietorship of the reclaimed land based on, among other things, “Customary Right”. I cannot sensibly resolve the strike out and summary judgment applications without addressing the significance (if any) of these asserted customary rights. In this regard, I note “land” in the High Court Rules includes any
interest in land.2
Mr Leach
[9] Ms Vella reminded me I have an application before me to strike out the proceedings against the second defendant, Mr Leach. I now make that order. Mr Leach was formerly the Mayor of the first defendant, the TCDC. The plaintiffs argue he should be personally liable to account for any profit made by the TCDC from its unlawful and deceptive claims of proprietorship of the land in dispute. But, assuming for present purposes the TCDC acted unlawfully, any interest Mr Leach had in the land in dispute, and any decisions made by him as Mayor, were not made in his personal capacity.
Background
[10] The background to this proceeding is set out at [9]-[10] of my earlier judgment, which I repeat for present purposes.
[11] The plaintiffs, Colt Gregory and Peter-James Martin, allege they are “the authorised executor and registrar respectively of Te Wakaminenga Ki Hauraki, of which Nga Uri of Tametepo are members”. They further assert they are lawful kaitiaki (proprietors) of land on and around Redbridge Road. They say it is a customary area for mahi kai (food gathering) and recreation for Tametepo, Ngāti Pu, Ngāti Whanaunga, Ngāti Karaua, Ngāti Huarere and others. Relevantly, for present purposes, they make the following allegations:
(a) Te Wakaminenga Ki Hauraki is the lawful proprietor of the land on and around Redbridge Road, in accordance with whakapapa, tikanga
Māori (which they submit is supreme law) and customary right.
2 Rule 1.3.
(b)The defendants are unlawfully occupying the land, utilising its resources and fraudulently collecting rent.
(c) Despite requests from the plaintiffs, the defendants have not vacated or ceased to utilise the land and its resources.
(d)The defendants have no defence to an action for recovery of land pursuant to Part 13 of the High Court Rules.
(e) A month prior to filing this claim, a Council whistle-blower informed the plaintiffs that the TCDC intended to conspire with LINZ to give effect to their “fraudulent” title. This was confirmed when Mr Hook served a trespass notice on the plaintiffs which stated the Crown held title.
(f) Upon request to provide information regarding ownership, LINZ
informed the plaintiffs that it did not own the land.
(g)Any land that is not titled is subject to native title. As such, ownership is claimed.
[12] On the foregoing basis, the plaintiffs seek a summary proceeding for recovery of the land on or around Redbridge Road, an order for trespass, damages and costs on an indemnity basis.
The circumstances of the reclamations
[13] The background to the reclamations was not pleaded. I propose, for present purposes, simply to adopt the evidence of Paul Davies, filed on behalf of the TCDC.
[14] Thames County Council was authorised to reclaim land at Redbridge Road by Order in Council dated 11 May 1970, pursuant to s 175 of the Harbours Act 1950. That order is a deemed coastal permit pursuant to s 384(1)(b) of the Resource Management Act 1991 (RMA), and remains authorised by the RMA.
[15] Reclamation was undertaken after 1970 and completed prior to 1997. A survey was undertaken by M J Dunwoodie Ltd in March 1997, which shows the reclaimed land as Lots 1 and 2. The Minister of Conservation and Waikato Regional Council approved the survey plan in accordance with s 245 of the RMA and confirmed it conformed with the resource consent and relevant regional plan provisions on 6 June 1997 and 23 September 1998 respectively. However, the survey was not deposited as the (then) TCDC had not yet been granted an interest in the land. Further certificates in accordance with s 245 were issued in 2002, 2005, 2009 and 2016.
[16] The TCDC made an application on 20 August 2002 for an interest in the land pursuant to s 355 of the RMA, which allows any person to apply to the Minister of Conservation for a right, title or interest in land in the coastal marine area which is land of the Crown. No other parties have made an application in respect of Lots 1 and 2. That application was put on hold due to litigation in relation to customary ownership of the foreshore and seabed and the subsequent enactment then repeal of the Foreshore and Seabed Act. It was updated in 2008 but put on hold again for consideration under the Land of Potential Interest process under the Overseas Investment Act 2005, and in 2009 due to the pending review of the Foreshore and Seabed Act and enactment of the Takutai Moana Act.
[17] On 27 September 2011, the TCDC made an application to have its s 355 application considered and determined pursuant to s 41 of the Takutai Moana Act, which was transferred to the Minister for Land Information on 1 May 2012. LINZ advised a fresh application addressing relevant matters under the Takutai Moana Act was required; due to consultation with iwi and Council deliberation, that application remains on hold. Nevertheless, as developer of Lots 1 and 2, the TCDC has the sole right to apply for an interest in the land under s 35 of the Takutai Moana Act. No
other party can apply for an interest in the land until 1 April 2021.3
3 Marine and Coastal Area (Takutai Moana) Act 2011, s 35(3) and (4). The effect of this provision was discussed by Ms Pirini in her submissions of 24 July 2017. She submitted the Crown cannot dispose of interests in reclaimed land other than in accordance with ss 35-41, and that the requirement for the Minster to take into account cultural value of the reclaimed land was the mechanism through which any cultural associations can be considered. But these sections are concerned with applications for interests in reclaimed land. I do not consider they purport to cover the present issue: the recognition of (allegedly) existing customary interests.
Jurisdiction
[18] I set out the principles governing summary judgment and strike out procedure in my judgment of 25 September 2017, at [18]-[23]. I adopt that summary for present purposes.
Submissions
The position of the Crown and TCDC
[19] The Crown and TCDC contend all reclaimed land was vested absolutely in the Crown pursuant to s 18(2) of the Foreshore and Seabed Act and again pursuant to s 31 of the Takutai Moana Act. The effect of this vesting, they submit, was to extinguish any pre-existing customary title, rights or interests in reclaimed land. They add the Takutai Moana Act did not revive those customary rights and interests, as the relevant provisions of the Takutai Moana Act which have that effect apply only to the common marine and coastal area, which does not include reclaimed land.
Amicus curiae
[20] Mr Andrew, who I appointed as amicus curiae, responded to the Crown position. He contends (in short) the Foreshore and Seabed Act did not clearly and unambiguously extinguish any customary rights or interests in reclaimed land. On the contrary, he submits the Foreshore and Seabed Act preserved existing rights and interests in reclaimed land, a preservation which was carried into the Takutai Moana
Act. The plaintiffs adopt and support Mr Andrew’s submissions.4
[21] While I have not recorded respective counsel’s argument at any length, I wish
to take the opportunity to acknowledge that their submissions were very helpful to me.
4 Mr Martin also maintained that irrespective of the statutory position, customary rights, founded in tikanga, assume pre-eminence. He also maintained the Crown’s claims to proprietorship of the reclaimed lands are fraudulent. These arguments are plainly untenable given s 31 of Marine and Coastal Area (Takutai Moana) Act 2011, and for the reasons set out in my earlier judgment.
A problem with the pleadings
[22] Before I move to my assessment it is necessary to observe that the pleadings are woefully inadequate to sustain a claim based on customary rights. Ordinarily, a claim based on customary rights would need to plead in some detail the factual basis for the claimed customary interests in accordance with tikanga Māori and the common law.5 The pleadings would also need to set out the circumstances of the reclamations including, where relevant, the exercise of any statutory powers to enable the reclamation. At present the pleadings merely assert proprietorship without sufficiently addressing any of the above matters. There is, as noted, no detail
on the background to the reclamation. In this regard:
(a) To the extent the plaintiffs rely on customary rights or interests in the reclaimed land, in their current form the pleadings have no prospect of success and would require substantial amendment. I proceed on the basis, however, that the pleadings are capable of amendment to properly sustain a claim based on customary rights.6
(b)The present judgment is confined to addressing whether the plaintiffs’ claims to customary rights in respect of the reclaimed land in this proceeding are untenable as a matter of law. No consideration has been given to the substantive merits of those claims or the effect of other rights (if any) to reclaimed land more generally on such a
claim.7
The scope of s 31(3)
[23] The Crown and TCDC’s central claim is the Foreshore and Seabed Act extinguished all customary title and rights to reclaimed land. As such, there are no existing customary interests capable of recognition under s 31(3)(a). As
foreshadowed, to resolve this claim it is necessary to determine whether lesser
5 The requisite level of detail can be found in the pleadings and evidence filed in Re Tipene [2016] NZHC 3199, [2017] NZAR 559, an application for customary marine title pursuant to s 58 of the Marine and Coastal Area (Takutai Moana) Act 2011.
6 See Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [123], per Tipping J.
7 See comments to similar effect in Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at
[88] per Elias CJ.
interests at s 31(3)(a) of the Takutai Moana Act includes customary rights or interests, and whether customary interests survived the enactment of the Foreshore and Seabed Act. This in turn requires reference to the full text of s 31, and the preceding legislative treatment of reclaimed land in s 18 of the Foreshore and Seabed Act and s 9A of Foreshore and Seabed Endowment Revesting Act 1991 (Revesting Act).
The Marine and Coastal Area (Takutai Moana) Act 2011
[24] Section 31 states:
31 New status of existing reclaimed land
(1) This section applies to reclaimed land (existing reclaimed land)
that,—
(a) immediately before the commencement of this Act, was—
(i) part of the public foreshore and seabed under the
Foreshore and Seabed Act 2004; or
(ii) vested in the Crown under the Land Act 1948; or
(iii) subject to the Foreshore and Seabed Endowment
Revesting Act 1991; or
(iv) otherwise owned by the Crown; and
(b) is not set apart for a specified purpose.
(2) On the commencement of this Act, the full legal and beneficial ownership of all existing reclaimed land vests in the Crown absolutely and, so far as it is, immediately before that commencement, subject to the Foreshore and Seabed Act 2004, the Foreshore and Seabed Endowment Revesting Act 1991, or the Land Act 1948, ceases to be subject to those Acts.
(3) However, this section does not affect—
(a) any lesser interest held, immediately before the commencement of this Act, by a person other than the Crown in existing reclaimed land; or
(b) the ownership in structures fixed to, or under or over, existing reclaimed land.
[25] On its face, subs (3) preserves any lesser interest held in existing reclaimed land. Section 29(1) provides:
lesser interest means an interest in reclaimed land that is less than a freehold interest and includes a lease, licence, or other right or title to occupy or use the land[.]
[26] Customary use rights, like any common law usufruct, would appear to fall within the definition of lesser interest (as an interest less than a freehold interest). It is important to understand, as Williamson J observed in Te Weehi v Regional Fisheries Officer, at common law customary use rights could exist independently of
ownership of land.8 Mallon J more recently stated in Re Tipene:9
[13] According to the custom on which they are based, a customary interest in land may extend from usufructuary rights, to exclusive ownership with rights essentially equivalent to those recognised by a fee simple title. Sometimes these are described as non-territorial and territorial rights. Non- territorial rights are less than full ownership, and are the rights that may continue to exist in land, even where the customary title (or territorial title) to land has been extinguished. Territorial rights are those which are equivalent to full ownership of the land.
[27] Ms Pirini submits nevertheless the purpose of the reclaimed land subpart is to provide certainty to business and development interests in respect of investments in reclamations and to balance the interests of all New Zealanders, including their interests in conservation.10 She submits interpreting lesser interests as including a right or interest based on customary usage would cut across that purpose by requiring lengthy investigation into customary use of reclaimed land.
[28] But as Mr Andrew submits, the requirement for certainty and the balancing of interests supports a natural reading of “lesser interests”; one which includes all rights and interests recognised by the law, including the common law. The process by
which those rights are ascertainable does not bear on the meaning of that text.11
8 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC) at 690, citing Attorney-General v Emerson [1891] AC 649 (HL) at 654, per Lord Herschell.
9 Re Tipene [2016] NZHC 3199, [2017] NZAR 559, citing Valmaine Toki “Adopting a Māori Property Rights Approach to Fisheries” (2010) 14 NZJEL 197 at 203-204. See also Attorney- General v Ngati Apa [2003] 3 NZLR 643 (CA) at [31], citing Delgamuukw v British Columbia
[1997] 3 SCR 1010 at [110]-[119], per Lamer CJ.
10 Section 29(2).
11 Equally, I am not persuaded by Ms Pirini’s reference to sections 58-62, which provide a detailed statutory regime for recognition of statutory rights in the common marine and coastal area based on customary usage. In any event, those provisions provide for recognition of customary marine title, rather than lesser customary interests.
[29] This interpretation also accords with the wider scheme of the Takutai Moana Act, namely to restore any customary interests in the common marine and coastal marine area. Section 4 states:
4 Purpose
(1) The purpose of this Act is to—
(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and
(b) recognise the mana tuku iho exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua; and
(c) provide for the exercise of customary interests in the common marine and coastal area; and
(d) acknowledge the Treaty of Waitangi (te Tiriti o Waitangi). (2) To that end, this Act—
(a) repeals the Foreshore and Seabed Act 2004 and restores customary interests extinguished by that Act; and
(b) contributes to the continuing exercise of mana tuku iho in the marine and coastal area; and
(c) gives legal expression to customary interests; and
(d) recognises and protects the exercise of existing lawful rights and uses in the marine and coastal area; and
(e) recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area—
(i) for its intrinsic worth; and
(ii) for the benefit, use, and enjoyment of the public of
New Zealand.
[30] Section 6 then states:
6 Customary interests restored
(1) Any customary interests in the common marine and coastal area that were extinguished by the Foreshore and Seabed Act 2004 are restored and given legal expression in accordance with this Act.
(2) Any application under this Act for the recognition of customary interests must be considered and determined as if the Foreshore and Seabed Act 2004 had not been enacted.
[31] While these sections do not apply to reclaimed land,12 the clear restorative policy of the Act tends to favour an interpretation that affirms any existing customary rights.
The Foreshore and Seabed Act 2004
[32] However, s 18 of the Foreshore and Seabed Act previously vested the full and beneficial ownership of reclaimed land in the Crown absolutely. As the Crown and TCDC say, this bears on the likelihood Parliament in fact preserved existing rights to reclaimed land. That section stated:
18Land reclaimed before this Act vests in the Crown if not otherwise owned
(1) This section applies to any land that—
(a) has at any time before the commencement of this section been lawfully or unlawfully reclaimed from the foreshore and seabed; and
(b) is not, at that commencement, subject to a specified freehold interest or an estate in fee simple held by a local authority.
(2) On the commencement of this section, the full legal and beneficial ownership of any land to which this section applies is vested in the Crown, so that the land is held by the Crown as its absolute property.
(3) Subsection (2) does not affect the ownership in any structure or thing that is fixed to, or under or over, any land to which this section applies.
(4) The land vested by subsection (2) is not part of the public foreshore and seabed.
(5) Section 9A of the Foreshore and Seabed Endowment Revesting Act
1991 as continued by section 30(2) has effect in respect of any land to which this section applies.
[33] It is also beyond dispute that the overall object and purpose of the Foreshore and Seabed Act was to vest absolute ownership of the foreshore and seabed in the
Crown. That object was stated at s 3:
12 It is common ground between Mr Andrew and the defendants that the definition of common marine and coastal area in s 9 does not include existing reclaimed land.
3 Object
The object of this Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.
[34] Section 4 then identified the following purposes (including, in particular, subs
(a)):
4 Purposes
The Act gives effect to the object stated in section 3 by—
(a) vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown; and
(b) providing for the recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the public foreshore and seabed; and
(c) enabling applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those rights are not able to be fully expressed as a result of this Act, enabling a successful applicant group—
(i) to participate in the administration of a foreshore and seabed reserve; or
(ii) to enter into formal discussions on redress; and
(d) providing for general rights of public access and recreation in, on, over, and across the public foreshore and seabed and general rights of navigation within the foreshore and seabed.
[35] That object was the literal effect of s 13, which stated:
13 Public foreshore and seabed vested in the Crown
(1) On and from the commencement of this section, the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown, so that the public foreshore and seabed is held by the Crown as its absolute property.
(2) Subsection (1) replaces all previous statutory vestings in, and acquisitions of title by, the Crown in respect of any area of the foreshore and seabed.
(3) Subsection (1) does not affect customary rights that are able to be recognised and protected under Part 3 or Part 4.
(4) The Crown does not owe any fiduciary obligation, or any obligation of a similar nature, to any person in respect of the public foreshore and seabed.
(5) The Land Act 1948 does not apply to the public foreshore and seabed.
[36] Subsection (3) however stated the vesting provision at subs (1) “[did] not affect customary rights that are able to be recognised and protected under Part 3 or Part 4”. Under these parts, the Māori Land Court and the High Court had jurisdiction to make a customary rights order in respect of particular areas. It is to be inferred that the vesting of ownership in the Crown therefore did not confiscate lawful customary usage rights; in fact this provision enabled judicial recognition of that customary usage in the form of customary rights orders (that is via conversion into statutory rights).
[37] But the customary rights order regime did not directly apply to reclaimed land. Rather, as provided by s 18(5) of the Foreshore and Seabed Act, s 9A of the Revesting Act (as continued by s 30(2)) had effect in respect of any land to which the section applied. It is common ground that s 30(2) dealt with reclaimed land. It noted that despite repeal, the Revesting Act continued to have effect in respect of any area:
(a) to which it applied immediately before the commencement of the
Foreshore and Seabed Act; and
(b) that is not included in the public foreshore and seabed.
[38] Whether s 18 extinguished all customary interests in reclaimed land therefore has to be resolved by reference to the Revesting Act.
Foreshore and Seabed Endowment Revesting Act 1991
[39] Section 9A of the Revesting Act provided:
9A Foreshore and seabed to be land of the Crown
(1) All land that–
(a) Either–
(i) Is foreshore and seabed within the coastal marine area (within the meaning of the Resource Management Act 1991); or
(ii) Was foreshore, seabed, or both, within the coastal marine area (within the meaning of that Act) on the
1st day of October 1991 and has been reclaimed
(whether lawfully or otherwise) on or after that date;
and
(b) Is for the time being vested in the Crown, but for the time being is not set aside for any public purpose or held by any person in fee simple,–
shall be land of the Crown to which this section applies and shall be administered by the Minister; but the provisions of the Land Act
1948 shall not apply to such land.
(2) All land of the Crown to which this section applies shall be held by the Crown in perpetuity and shall not be sold or otherwise disposed of except–
(a) Pursuant to the Resource Management Act 1991; or
(b) By the authority of a special Act of Parliament; or
(c) By a transfer to the Crown, where the land will not be land to which the Land Act 1948 applies.
(3) Subject to subsection (4) of this section,–
(a) The Minister shall have and may exercise, in relation to land of the Crown to which this section applies, all the functions, duties and powers that the Crown has as owner of the land; and
(b) In exercising such functions, duties and powers, the Minister shall manage all land of the Crown to which this section applies so as to protect, as far as is practicable, the natural and historic resources of the land.
(4) Nothing in this section derogates from the Forest and Rural Fires Act
1977 or the Resource Management Act 1991.
(5) The provisions of this section shall apply notwithstanding anything in section 4 of this Act.
[40] This provision was inserted into the Revesting Act by s 2(1) of the Foreshore and Seabed Endowment Revesting Act Amendment 1994 (Revesting Amendment Act). Particularly relevant for present purposes is the saving provision at subs (2), which recorded that in relation to any land of the Crown to which s 9A applies,
nothing in it shall limit or affect “any interest in that land held by any person other than the Crown”.
[41] Section 9A was subject to comment in the Ngati Apa decision.13 Elias CJ
observed that:
[73] Read in context, it is clear that s 9A applies only to lands which are property of the Crown. In conformity with the Land Act and the common law discussed above, Maori customary land is necessarily excluded.
[42] The Chief Justice considered it was unnecessary to consider the effect of s
2(2), but if expropriation had been achieved, Māori customary interest would be an interest in land protected by subs (2).14 Gault P was likewise not persuaded by the Crown argument that title according to tikanga Māori to undeclared Māori customary land could not constitute an interest in land for the purpose of subs (2).15
Keith and Anderson JJ address the import of ss 9A of the Revesting Act and 2(2) of the Revesting Amendment Act in this way:
[170] Does s 9A proceed on the assumption that Maori customary property no longer exists or does it extinguish that property? The provision is not about revesting land in the Crown. Under s 9A(1)(b) the land is already vested in it, and the implication of that paragraph and of the introductory words to subs (2) is that the Crown (already) owns it beneficially. Subsection (2), as the Minister said, repeats the essence of the repealed s 150 of the Harbours Act by placing limits on the Crown's power to dispose (beneficially) of that land. The legislation also has a major purpose of changing the government's administrative arrangements for the foreshore and seabed, as the Minister also explained to Parliament. Further, the legislation is careful to save existing property and rights as appears from s
2(2) of the Amendment Act as well as the saving in s 9A(1)(b). Indeed, as the President demonstrates, s 2(2) alone provides a sufficient basis at this
stage for the application to proceed. Just as there is no general confiscatory purpose in the 1994 Amendment Act, there is nothing in it which has the
clear and plain character required to extinguish existing Maori customary property.
[43] Tipping J agreed it was not appropriate to regard s 9A as designed to extinguish the status of any Māori customary land as might have been involved, but
he doubted the interest referred to at s 2(2) could ripen into a Land Transfer title.16
13 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA).
14 At [74].
15 At [116].
16 At [202].
[44] What emerges from these broadly aligned perspectives is that s 9A of the Revesting Act did not purport to confiscate customary interests in foreshore and seabed, including reclaimed land, and that s 2(2) of the Revesting Amendment Act preserved lesser interests, including customary usage rights according to tikanga.
Returning to the key issue
[45] Ms Pirini for the Crown maintains s 18 of the Foreshore and Seabed Act went further than s 9A of the Revesting Act, extinguishing all customary interests. She contends the key difference between ss 9A and 18 is s 18 vested the “full legal and beneficial ownership” of reclaimed land in the Crown as its “absolute property”. The introduction of those words, the Crown claims, is significant, because they meet the test for extinguishment of any customary interests in the land. She refers to
comments of Professor Richard Boast in this vein.17
[46] But the scheme of the Foreshore and Seabed Act did not have such a drastic effect. First, as noted, s 13 vested the public foreshore and seabed in the Crown as its absolute property. But s 13(3) stated this did not affect any customary rights that are able to be recognised under Parts 3 and 4. This presupposes the ongoing existence of a customary relationship with the foreshore and seabed in accordance with tikanga; indeed, that was one of the criteria for recognition at ss 50(1)(c) and 74(1)(iii) of the Foreshore and Seabed Act:
50 Determination of applications for customary rights orders
(1) The Māori Land Court may make a customary rights order, but only
if it is satisfied that, in accordance with the provisions of section
51,—
…
(c) the right to carry on, exercise, or follow the activity, use, or practice has not been extinguished as a matter of law.
17 Richard Boast Foreshore and Seabed (LexisNexis, Wellington, 2005) at 133: “It is certainly the case that the [Foreshore and Seabed Act 2004] is a situation where the “clear and plain” test is met. The provision vests the “full legal and beneficial ownership” of the foreshore in the Crown.
... In addition, s 13 has the extra words “so that the public foreshore and seabed is held by the Crown as its absolute property”. The phrase “absolute property” has been stated by the Court of Appeal to be a clear indication of a parliamentary intention to vest full dominium in the Crown and – which amounts to the same thing – an intention to extinguish the native or customary title.”
…
74 Determination of applications for customary rights orders
(1) The High Court may make a customary rights order, but only if it is satisfied that, in accordance with the provisions of section 75,—
…
(c) the right to carry on, exercise, or follow the activity, use, or practice has not been extinguished as a matter of law.
[47] A corollary of this is I do not consider the Foreshore and Seabed Act extinguished existing tikanga based customary use rights. Rather, the object and purpose of the Foreshore and Seabed Act was, as stated, to vest ownership of the public foreshore and seabed in the Crown, while providing for the recognition and protection of “ongoing customary rights”.18 The language of “absolute property”, wherever it appears in the Foreshore and Seabed Act, therefore, should be interpreted in a way that gives effect to this object and purpose.
[48] Second, to the extent it is necessary to refer to the Parliamentary debates, this purposive duality was confirmed by the Hon Dr Michael Cullen MP on the second reading of the Foreshore and Seabed Bill. He said:19
First of all, there is the objective of the bill. The objective is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whanau, hapū, and iwi with areas of the public foreshore and seabed.
[49] Dr Cullen also observed in relation to reclaimed land:20
The vesting of reclaimed land: limited exceptions will apply if a resource consent for a reclamation has been granted before the enactment of this bill, or if there is a specific statute or legal arrangement, and new provisions will give port companies an automatic right of renewal on leases. They will reclaim the land necessary for port infrastructure, while other holders of a lease over reclaimed land that is due to expire will have a right to have an
18 Section 4(b).
19 (16 November 2004) 621 NZPD 16931-16932. He also observed, at 16933, that the bill reflected the actual common law rights position, codified into statute. For reasons stated, I consider this codification occurred on the order of the Court pursuant to either ss 50 or 74 of the For eshore and Seabed Act 2004.
20 (16 November 2004) 621 NZPD 16932-16933.
application for a new lease considered. Existing rights are protected, and the situation going forward provides adequate protection for reclamations.
[50] Third, I note Professor Boast acknowledged the Foreshore and Seabed Act did simultaneously preserve common law rights under the territorial rights procedure.21 He viewed the Act as extinguishing and transforming common law rights into statutorily defined rights. In my view, however, contrary to the view expressed by Professor Boast, the statutory preservation of the tikanga based use rights meant that, at law, they remained extant, at least pending the completion of the customary rights order process.
[51] Fourth, and crucially, s 18(5) expressly preserved the effect of s 9A of the Revesting Act. Section 9A was subject to s 2(2) of the Revesting Amendment Act from its inception. It necessarily forms part of the infrastructure of s 9A and therefore the power of the Crown to deal with reclaimed land. As s 1 of the Revesting Amendment Act states:
This Act … shall be read together with and deemed part of the Foreshore and
Seabed Endowment Revesting Act 1991 …
[52] That is confirmed by s 23 of the Interpretation Act 1999 which states an amending enactment is part of the enactment it amends. In Securities Commission v Midavia Rail Investments BVBA the Court of Appeal considered a reference in the Judicature Act 1908 to the Securities Act 1978. Section 1(1) of the Securities Amendment Act 1988 mirrored s 1 of the Revesting Amendment Act. Chambers J stated:22
From the date, therefore, on which that 1988 Act came into force, it was part of the Securities Act 1978, and any civil proceedings under the 1988 Act would be caught by s 24B(1)(e) of the Judicature Act. It is noteworthy that Parliament these days when passing amending Acts does not include a provision such as s 1(1) of the Securities Amendment Act 1988. It is unnecessary to do that now because s 23 of the Interpretation Act 1999 provides that “an amending enactment is part of the enactment that it amends”. The effect of s 1(1) of the 1988 Act and s 23 of the Interpretation Act is that the reference to the Securities Act 1978 in s 24B(1)(e) of the Judicature Act must be construed as a reference to not only the Securities Act
1978 itself but also all its amending Acts, including the Securities
Amendment Act 1988.
21 At 133.
22 Securities Commission v Midavia Rail Investments BVBA [2005] 3 NZLR 433 (CA) at [19].
[53] Against this background, in agreement with Mr Andrew, I consider had Parliament intended to sever s 2(2) from s 9A it would have done so in much clearer terms than the language used. Relevantly, this outcome also accords with the presumption that Parliament will not extinguish existing property rights (customary or otherwise) other than expressly.23
[54] It might be said that unlike s 13, which expressly provides for the recognition of customary rights, s 18 makes no express provision for them. From this, it might be inferred the vesting of absolute ownership extinguished any pre-existing rights in respect of reclaimed land. Ms Pirini draws a parallel to s 26 of the Public Works Act
1981, which provides for land specified in a Proclamation to be “absolutely vested” in the Crown “freed and discharged from all mortgages, charges, claims, estates or interests of whatever kind”. But the analogy is not apposite. The Public Works Act lays out a clear process for compulsory acquisition of land, including rights of objection and to compensation. That is the context within which the phrase “absolutely vested … freed of … interests of whatever kind” is to be understood.
[55] Ms Pirini also referred to the observations made by Keith and Anderson JJ in Ngati Apa that one of the reasons the Territorial Seas and Fishing Zone Act 1965 and the Exclusive Economic Zone Act 1977 did not extinguish Māori customary interests was because, unlike s 206 of the Coal-mines Act 1925, they did not vest the seabed
as “absolute property” of the Crown.24 But this observation was also sandwiched
between two other reasons: first, the fact the seabed is “vested” in the Crown is not inconsistent with the continuing existence of Māori customary property,25 and second that legislative measures claimed to extinguish indigenous property and rights must be clear and plain.26
[56] What then did s 18(2) seek to achieve? It made very clear that the Crown owned all reclaimed land. This corresponds to the issue that was being addressed
squarely by the Court of Appeal in Ngati Apa. In that case the Court was concerned
23 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [162]; SMW Consortium (Golden
Bay) Ltd v Chief Executive of the Ministry of Fisheries [2013] NZCA 95 at [31].
24 At [161].
25 At [160].
26 At [162].
with the jurisdiction of the Māori Land Court to determine whether any specified land “is or is not Māori customary land or Māori freehold land or general land owned by Māori or general land or Crown land”.27 As Gault P commented, “interests in land in the nature of ownership” were in focus.28 He added:29
Under this Part of the Act we are concerned with land capable of supporting an estate in fee simple and ownership interests capable of conversion to registered estates under the Land Transfer Act 1952. Interests in land in the nature of usufructuary rights or reflecting mana, though they may be capable of recognition both in tikanga Maori and in a developed common law informed by tikanga Maori, are not interests with which the provisions of Part 6 are concerned.
[57] The Foreshore and Seabed Act thus made clear that the foreshore, seabed and reclaimed land were Crown land. But it did not expressly extinguish or purport to confiscate forms of ongoing customary rights in respect of that land that were not incompatible with Crown ownership.
The status of customary interests under s 31
[58] Returning then to the effect of s 31 of the Takutai Moana Act; it is tolerably clear that all existing reclaimed land was vested in the Crown as its absolute property (as it had previously been by s 18 of the Foreshore and Seabed Act). Subsection (3), however, preserved all pre-existing lesser interests. Given where I have got to on the effect of s 18 and s 9A of the Revesting Act, the preservation of lesser interests at subs (3) may include customary interests that have otherwise not been expressly extinguished (a matter not fully explored before me beyond consideration of the effect of s 18). Subject to meeting the relevant common law criteria for customary
rights,30 and assuming those rights have not otherwise been extinguished, claims
based on them may therefore be made in any Court of competent jurisdiction.
27 At [2], and [6]-[8]. This issue arose under Te Ture Whenua Maori Act 1993, s 18(1)(h).
28 At [104].
29 At [106].
30 While this question is not before me, an example of the possible criteria is R v Marshall [2005] 2
SCR 220 at [45]-[53]. For this purpose analogy may also be drawn with the statutory test for recognition of protected customary rights in the common marine and coastal area in s 51 of the Marine and Coastal Area (Takutai Moana) Act 2011, as well as the approaches in Re Tipene [2016] NZHC 3199, [2017] NZAR 559, considering an application for customary marine title pursuant to ss 58-62, and Tsilhqot’in Nation v British Columbia [2014] 2 SCR 256 at [37]-[38], considering a claim for aboriginal title. It will however be a matter for the Court hearing the substantive claim to decide the jural basis for any such claim in this country.
Effect on the present proceeding
[59] The effect of this is that as a matter of law I cannot foreclose the possibility a properly pleaded claim, based on ongoing customary use of reclaimed land in accordance with tikanga, might succeed. However, any claim to:
(a) ownership based on tikanga being “supreme law”; and/or
(b) full exclusive ownership
cannot succeed. While ‘tikanga’ may inform the common law,31 under our constitutional arrangements, the law of Parliament assumes supremacy.32 As to ownership, for the reasons set out at [50] – [58], reclaimed land is Crown land. This precludes claims to full exclusive ownership by other persons. There shall be orders
for summary judgment in respect of those claims in favour of the defendants. The claim against the third defendant can also be struck out, Mr Hook having been improperly joined. As s 86(1) of the State Sector Act 1988 makes clear, as an employee of LINZ, he is immune from liability in civil proceedings for good faith actions or omissions. For the reasons stated in my first judgment, there is nothing before me to suggest he has acted other than in good faith. Any suggestion otherwise is speculative and mischievous.
[60] Nevertheless, a properly pleaded claim based on customary rights is not untenable on the argument before me. As noted, “land” in the High Court Rules includes any interest in land. I propose therefore to adjourn the proceedings pursuant to r 15.1 in their current form, with leave granted to the plaintiffs to amend the pleadings to make an orthodox claim based on customary rights. Leave however is also granted to the defendants to bring an application to strike out again follow filing
and service of the amended pleadings if it is considered no cause of action is
31 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94], per Elias CJ, Attorney- General v Ngati Apa [2003] 3 NZLR 643 (CA) at [106].
32 For the reasons set out in Mihinui v Attorney-General [2017] NZHC 56 and the cases cited therein.
disclosed in any respect.33 The pleadings will need to describe the basis for the customary usage in accordance with tikanga and address the background to the reclamation, as well as any rights to the reclaimed land conferred by statute. As noted, the type of claim that may be made is analogous to a protected customary rights claim under s 51 of the Takutai Moana Act.
Orders
[61] The pleadings as they relate to the second defendant, Mr Leach, are struck out.
[62] The pleadings as they related to the third defendant, Mr Hook, are struck out.
[63] To the extent the pleadings assert ownership based on tikanga being supreme law, or seek full exclusive ownership, summary judgment in favour of the defendants is granted. If necessary, I would alternatively strike out those parts of the pleadings.
[64] Otherwise the proceedings are adjourned, with leave granted to the plaintiffs to amend their pleadings to make a claim based on customary rights.
[65] Leave is granted to the defendants to bring an application to strike out again following filing and service if no cause of action is disclosed by the amended pleadings in any respect.
Costs
[66] The parties are granted leave to file submissions seeking costs. My current thinking is that the pleading dealing with the reclaimed land raised an issue of considerable public interest, and costs in respect of that claim should lie where they fall. Furthermore, as the plaintiffs were not represented by counsel, any costs claim
by them (if any) should be limited to disbursements.
33 I consider Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 327 and 336 is apposite. While the pleadings are in need of major repair, they cannot be described as a “write off” and it would be wrong at this stage to take the view no arguable cause of action can be discerned.
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