Henare v Thames Coromandel District Council HC Hamilton CIV-2010-419-1487

[2011] NZHC 1524

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-1487

BETWEEN  FRANCES HENARE, BRIAN HENARE, CHARLES HENARE, DEAN HENARE, FAHLEN HENARE, RAYMOND WIKAIRA, DAVID SWINTON AND DANIEL BENSON

Appellants

ANDTHAMES COROMANDEL DISTRICT COUNCIL

Respondent

Hearing:         (On papers)

(Heard at Wellington)

Counsel:         D A Benson for Appellant

M C Frogley for Respondent

Judgment:      11 November 2011

JUDGMENT OF MILLER J

Background

[1]      The appellants have sought leave to appeal to the Court of Appeal from my judgment of 29 September 2011.  In that judgment I dismissed their appeal from a District Court decision that had granted the Council’s application for possession and removal of the appellants and their structures and personal property.

[2]      Since July 2010 the appellants and their supporters occupied a road that provides public access from the Coromandel – Colville Road to a beach at Papaaroha in the northern Coromandel.   The land the road lies on, which was once Maori customary land, was taken under the Public Works Act 1908 in 1918.  In the years prior to it being taken, the ownership of the land had been determined by the Native Land Court and the land had been brought under the Land Transfer Act 1915.  The

FRANCES HENARE, BRIAN HENARE, CHARLES HENARE, DEAN HENARE, FAHLEN HENARE,

RAYMOND WIKAIRA, DAVID SWINTON AND DANIEL BENSON V THAMES COROMANDEL DISTRICT COUNCIL HC HAM CIV-2010-419-1487 11 November 2011

appellants asserted rights of ownership to the land; they erected tents and a meeting house, and took steps to prevent others using the road.  The respondent considered these actions a trespass and applied to the District Court for possession and removal of the appellants, their structures and their personal property.

[3]      The  District  Court  granted  the  application  on  20  October  2010.    The appellants accordingly vacated the land but appealed the decision.  On appeal they contended that the respondent acquired the land through fraud on the basis that notice and compensation requirements had not been followed; in response, the respondent claimed indefeasible title.  I found that it was not appropriate on appeal to allow the appellants to attempt to impeach the respondent’s title on that basis.

[4]      I found that the land had been taken under ss 18 and 19 of the Public Works Act, which meant there was no prohibition on taking land that was occupied by housing or an urupa or a garden and there was no time limit on when the land could be taken.   The Council had title by virtue of s 316 of the Local Government Act

1975.  Finally, I found that despite the area being declared a Native District in 1864 and 1865 under the Native Districts Regulation Act 1858 and the Native Circuit Courts Act 1858, the Native Land Court had jurisdiction over the land.

Questions of law

[5]      The appellants must establish not only that there is a question of law capable of bona fide argument, but that this question of law is of sufficient public or private importance so as to justify a further appeal to the Court of Appeal.

[6]      The appellants raise five questions of law.  The first two both contend that the taking of the land was subject to certain restrictions, specifically a prohibition on taking any land that was the site of housing or an urupa or a garden, and a time limit of 15 years.  The appellants submit that because the land was Native land and ss 94 and 95 of the Public Works Act sets out a process for taking such land, that the taking had to satisfy those sections.  The respondent submits that these questions do not pose seriously arguable questions of law.  The restrictions in ss 94 and 95 of the Public Works Act apply only to land that is taken under s 93 of that Act, and this land

was not taken under s 93.  There was no prohibition on taking any land that was the site of housing or an urupa or a garden and there was no time restriction in ss 18 and

19 of the Act.

[7]      This ground of appeal rests on whether the land was Native land for the purposes of the Public Works Act, which in turn determines whether ss 18 and 19, or ss 94 and 95 applies to the land. The appellants point to s 93(1), which reads, in full:

From and out of any land which has been or may be granted under the provisions of any Act repealed by “The Native Land Act, 1873,” or by “The Native Land Court Act, 1886,” or by “The Native Land Court Act, 1894,” or which has been or shall be granted, or has or shall become the subject of Land Transfer certificate under the provisions of “The Native Land Court Act,  1886,”  or  any  Act  passed  in  amendment  thereof  or  substitution thereafter, or which is owned by Natives under Native Land Court certificate of title or under memorial of ownership, it shall be lawful for the Governor, at any time hereafter, to take and lay off for public purposes one or more line or lines of road through said land: ...

[8]      However, s 10(1) of the Act, which provides that ss 18 and 19 do not apply to Native land, incorporates the definition of “Native land” contained in s 2.  Section 2 in turn defines Native land as meaning “land held by Natives under their customs or usages, whether the ownership thereof has been determined by the Native Land Court or not”.   The land was no longer customary land but was general freehold land, so it was not Native land for the purposes of s 10(1).  Sections 18 and 19 of the

Act applied to the taking.1    The land was not captured by s 93 and therefore the

restrictions in ss 94 and 95 did not apply.  There is no seriously arguable question of law in these grounds of appeal.

[9]      The third question of law that the appellants raise is a contention that the land could not be taken without compensation, because this would be contrary to the preamble of the Native Land Act and would breach the principles of the Treaty of Waitangi.  They submit that the principles of the Treaty of Waitangi meant the land could not be taken in times of peace without compensation and that the preamble to the Native Land Act reflected this; accordingly, the Native Land Act and Public Works Act should be interpreted in a manner consistent with this principle and compensation should be paid.  The respondent submits that my judgment does not

draw any conclusions about the issue of compensation, so the question of law is not seriously arguable.  I agree that this is not a seriously arguable question of law; the land was taken under ss 18 and 19 of the Public Works Act which did require compensation to be paid.   I did not make any factual findings as to whether compensation was paid because it was not appropriate to do so in the context of this

appeal.2

[10]     As their fourth ground of appeal the appellants challenge my conclusion that the Native Districts Regulation Act 1858 and the Native Circuit Courts Act 1858 did not exclude the Native Land Court’s jurisdiction over the land.   Pursuant to these Acts the land was declared a Native District in 1864 and 1965 by Orders in Council. I found that the Orders in Council were repealed when the Acts empowering them were repealed, but the appellants argue that they survived despite there not being a specific savings section.  The appellants submit that despite both Acts being repealed in 1891 the land remained a Native District and accordingly the Native Land Court did not have jurisdiction over the land at any point.  The respondent submits that I did not commit an error and the point is not seriously arguable.  For the reasons in my judgment at [43], I agree with the respondent.

[11] Finally, the appellants challenge my decision that it would be inappropriate to determine the question of fraud on appeal. The appellants submit the Crown, and the High Court as the Queen’s Court, must protect and preserve Maori land. This means if there was any question of fraudulent behaviour in the taking of the land, the Court is under an obligation to address this. The respondent submits that this is a new question on appeal and that the appellants should not be able to widen the grounds of appeal. The appellants must begin a new proceeding if they wish to challenge the Council’s title for fraud. I agree with the respondent that it was not appropriate to address the issue of fraud on appeal; for my reasons see my judgment at [30].

Conclusion

[12]     Leave to appeal to the Court of Appeal is refused.

Miller J

Solicitors:

Brookfields, Auckland for Respondent