Matene v Ministry for Primary Industries
[2013] NZHC 397
•5 March 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2012-488-000061 [2013] NZHC 397
HONE STEVEN MATENE
v
MINISTRY FOR PRIMARY INDUSTRIES
Hearing: 27 February 2013
Appearances: Appellant in Person with K Brown as Mckenzie friend
M A Jarman-Taylor for the Respondent
Judgment: 5 March 2013
JUDGMENT OF GILBERT J
This judgment was delivered by me on 5 March 2013 at 11.00 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………….
Counsel: M A Jarman-Taylor, Whangarei: [email protected]
Solicitor: Marsden Woods Inskip & Smith
Copy to: H S Matene, C/- Kaitaki Whanau Agent, Kaikohe
MATENE V MINISTRY FOR PRIMARY INDUSTRIES HC WHA CRI 2012-488-000061 [5 March 2013]
Introduction
[1] Mr Matene appeals against his conviction for two offences under the Fisheries Act 1996, one for possessing undersized paua and the other for taking paua in excess of the daily limit. He also appealed against his sentence of 300 hours’ community work but he abandoned this appeal at the hearing.
The facts
[2] The facts are not disputed. On 25 October 2011, Mr Matene and three associates went to Takou Bay to collect paua. Fisheries officers observed the group carrying two large backpacks and a large sack. Upon inspection the officers found that the group had taken a total of 705 ordinary paua. The defendant had 236 of these in his backpack, all of which were under the minimum size of 125 millimetres. The daily limit for paua is 10 per person.
The issue in the District Court
[3] The sole issue in the District Court was whether the fisheries officers were trespassing on Mäori reservation land and were therefore acting outside their powers. Mr Matene relied on s 200(1) of the Act which provides:
A fishery officer shall not exercise any power under this Act to enter a place that is a private dwelling place, or the enclosed garden or curtilage of a private dwelling place, or any Mäori reservation constituted by or under the Mäori Affairs Act 1953.
The judgment under appeal
[4] The fisheries officers apprehended Mr Matene on that part of the land known as the Takou Block on the south side of Takou River. Judge D G Harvey found that this land was Mäori freehold land. He based this finding on stamped duplicate copies of a number of documents produced from the Mäori Land Court records. These documents were attached to an affidavit of Moana Elizabeth Ihaia, a deputy registrar of the Mäori Land Court, Whangarei. They included:
(a) an order of the Mäori Land Court made on 4 May 1991 cancelling the former titles to three blocks of Mäori freehold land, one on the northern side of the Takou River and two to the south of it, together comprising an area of 323.9320 hectares. The court directed that all of this land be held under a single title to be known as the Takou Block. This order confirms that all of this land was Mäori freehold land as at 4 May 1991;
(b)an extract from the New Zealand Gazette dated 25 July 1996 giving notice that Dr Ngatata Love, the then chief executive of the Ministry of Mäori Development, acting pursuant to s 338(1) of Te Ture Whenua Mäori Act 1993 on the recommendation of Mäori Land Court, set aside as a Mäori reservation that part of the Takou Block formerly described as Takou East D3 and Takou East D5 and comprising 35.5262 hectares. This part of the Takou Block is on the northern side of Takou River; and
(c) a subsequent extract from the New Zealand Gazette amending the
1996 notice by including a further block in the Mäori reservation. This block, which comprised 36.4217 hectares, was formerly described as Takou East D8 and is adjacent to the other blocks, D3 and D5, on the northern side of Takou River.
[5] These documents show that as at 13 March 2003, the Takou Block remained Mäori freehold land save for the three blocks on the northern side of Takou River that had been set aside as a Mäori reservation. Ms Ihaia also produced a memorial schedule report for the Takou Block showing all interests entered in relation to the land dating back to 2001. None of these entries affects the status of the Takou Block south of Takou River as Mäori freehold land.
[6] On 5 September 2012, the informant served notice pursuant to s 130 of the Evidence Act 2006 of its intention to produce the documents attached to Ms Ihaia’s affidavit without calling a witness to produce them. Following service of this notice, Mr Matene filed and served a memorandum dated 10 September 2012 advising:
On the 8th August 2012 a letter was sent to Marcie Cooke, Fisheries Officer requesting proof of Authorisation to enter into the Mäori Reservation at Takau.
I received an email response via my Kaitiaki whanau agent of Marcie Cooke, fisheries officer dated 31 August 2012 quoting various titles and assertions of what is or is not Mäori Reservation.
I am prepared to accept Marcie Cooke, Fisheries Officer assertions upon proof of claim that that the New Zealand Court of Appeal case Ngati Apa and Ors V Attorney General Paragraph [140] 2. did not nullify the and make void the titles relied upon by Marcie Cooke, Fisheries Officer. (Copy of Para [140] 2. Attached).
[7] Mr Matene apparently understood that in Attorney General v Ngati Apa [2003] 3 NZLR 643 the Court of Appeal nullified all titles to all land throughout New Zealand, including the title to the Mäori freehold land south of Takou River. He said that as a consequence of this decision “all the lands have in fact reverted back to the original Mäori Reservation of Te Tiriti O Waitingi 1840”. He added that Ms Cooke had failed to seek permission to be on Mäori land and that any evidence from her or any other agent of the Ministry of Primary Industries was inadmissible.
[8] The judge was prepared to treat Mr Matene’s memorandum as a notice of objection under s 130(2). However, he considered that Mr Matene had misunderstood the Court of Appeal’s decision in Ngati Apa and that it did not have the effect of nullifying the titles to all land in New Zealand. He ruled that the formal stamped documents issued by the Mäori Land Court could be admitted into evidence as proof that the land was Mäori freehold land without calling a witness. It is implicit in the judge’s decision that he could not see any useful purpose being served by requiring the informant to call a witness to prove the documents.
[9] Having found that the fisheries officers were on Mäori freehold land and there being no other dispute as to what occurred, the judge entered convictions on both charges.
Grounds of appeal
[10] Mr Matene maintains the position he adopted in the District Court. His grounds of appeal are that:
(a) all land in New Zealand is reserved for tangata whenua Mäori and all other land titles are null and void; and
(b)the Mäori Land Court documents should not have been admitted without calling a witness.
[11] Mr Matene continues to rely on the Court of Appeal’s decision in Ngati Apa as authority for his proposition that all titles to all land in New Zealand are null and void and that all land has reverted to native aboriginal title. He bases this submission on the Lands Claim Ordinance (Sess 1, No 2) of 9 June 1841 which was quoted by Keith J in his judgment. This ordinance, which declared unappropriated lands to be Crown lands, does not assist Mr Matene. It reads:
“And whereas it is expedient to remove certain doubts which have arisen
in respect of titles of land in New Zealand, be it therefore declared enacted and ordained, That all unappropriated lands within the said Colony of New
Zealand, subject however to the rightful and necessary occupation and use
thereof by the aboriginal inhabitants of the said Colony, are and remain
Crown or Domain Lands of Her Majesty, Her heirs and successors, and that the sole and absolute right of pre-emption from the said aboriginal inhabitants vests in and can only be exercised by Her said Majesty, Her heirs and successors, and that all titles to land in the said Colony of New Zealand which are held or claimed by virtue of purchases or pretended purchases, gifts or pretended gifts, conveyances or pretended conveyances, leases or pretended leases, agreements or other titles, either mediately or immediately from the chiefs, or other individuals or individual of the aboriginal tribes inhabiting the said colony, and which are not or may not hereafter be allowed by Her Majesty, Her heirs and successors, are and the same shall be absolutely null and void: Provided, and it is hereby declared that nothing in this Ordinance contained is intended to or shall affect the title to any land in New Zealand already purchased from Her Majesty’s Government, or which is now held under Her Majesty.”
[12] Neither this ordinance nor the Court of Appeal’s decision in Ngati Apa supports Mr Matene’s proposition that there is only one title to all land in New Zealand and that all such land is reserved for tangata whenua Mäori. The first ground of Mr Matene’s appeal must be dismissed.
[13] In my view, Mr Matene’s memorandum dated 10 September 2012 did not serve as a notice of objection under s 130(2) to the informant’s proposal. It did not refer to the informant’s notice under s 130(1); it did not refer to the documents or object to their authenticity; it did not object to the documents being produced
without a witness from the Mäori Land Court being called; and it did not suggest that any useful purpose would be served by requiring the informant to call a witness to produce the documents. Instead, Mr Matene’s memorandum refers only to his correspondence with Ms Cooke and objects to the admissibility of her evidence or the evidence of any other witness from the Ministry of Primary Industries.
[14] Because Mr Matene did not object to the proposal, the documents, which were otherwise admissible as proving that the land was Mäori freehold land, could therefore be admitted in evidence in terms of s 130(3) on the basis that the nature, origin and contents of the documents were as shown on their face in the absence of evidence to the contrary. The extracts from the gazette were admissible in any event under s 142 as proof that those particular parts of the Takou Block were set aside as a Mäori reservation.
[15] No useful purpose would have been served by requiring a witness from the Mäori Land Court to produce the title documents from the court’s records. Mr Matene fairly acknowledged that there would have been no point in cross-examining Ms Ihaia regarding the title documents and other records from the Mäori Land Court. Accordingly, I consider that the judge rightly dismissed any objection to the informant’s proposal and to admit the documents in evidence.
Conclusion
[16] Mr Matene did not object to the informant’s proposal under s 130 of the Evidence Act to produce the stamped duplicate documents issued by the Mäori Land Court without calling a witness. These documents were admissible as proof that the relevant land was Mäori freehold land. Accordingly, the judge was correct to admit these documents in evidence pursuant to s 130(3).
[17] Even if, as the judge found, Mr Matene did object to the production of these documents in this manner, the judge was correct to dismiss the objection on the basis that no useful purpose would be served by requiring the informant to call a witness to produce the documents.
[18] The Mäori freehold title to the Takou Block south of the Takou River is not null and void, contrary to Mr Matene’s submission. Section 200 of the Fisheries Act was not engaged.
[19] Both grounds of Mr Matene’s appeal must accordingly be dismissed.
Result
[20] The appeal against conviction is dismissed.
[21] The appeal against sentence was abandoned and is also dismissed.
M A Gilbert J
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