McDonald v The Legal Aid Review Panel

[2004] NZCA 71

IN THE COURT OF APPEAL OF NEW ZEALAND

CA65/04

BETWEENGREGORY MCDONALD

Appellant

ANDTHE LEGAL AID REVIEW PANEL

Respondent

Hearing:17 May 2004

Coram:Anderson P
Hammond J
William Young J

Appearances:  R E Lawn for Appellant

R M Taylor for Respondent

Judgment:19 May 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

[1]       The appellant obtained legal aid for an appeal against an Environment Court interim report and associated judicial review proceedings.  By letter of 5 August 2003 the Legal Services Agency withdrew the grant of legal aid; this with effect from 8 August 2003.  The reason for the withdrawal was that “there is no prospect of success in the proceedings”.

[2]       The appellant applied to the Legal Aid Review Panel for a review of the withdrawal of legal aid.  This resulted in a decision of 11 September 2003 confirming the withdrawal of legal aid. 

[3]       The appellant then  appealed  to the High Court pursuant to s59 of the Legal Services Act which provides:

59       Appeal on question of law

If the Agency or an applicant considers that the Review Panel's determination is wrong in law, the Agency or the applicant (as the case may be) may appeal to the High Court on the question of law, and the appeal must be dealt with in accordance with the rules of court.

[4]       By a judgment delivered on 10 March 2004, Heath J dismissed the appeal and he subsequently refused leave to appeal.

[5]       The appellant now seeks leave to appeal from this Court. 

[6]       An appeal lies to this Court pursuant to s60 of the Legal Services Act.  That section incorporates the provisions of s144 of the Summary Proceedings Act 1957.  Accordingly, the appellant must be able to point to a question of law involved which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

[7]       The proceedings in the Environment Court involved a proposal to obtain sand from the seabed in the Hauraki Gulf adjacent to Pakiri beach.  The appellant unsuccessfully opposed this proposal.  He is one of the owners of coastal land at Pakiri beach.  He has a claim before the Waitangi Tribunal which relates, inter alia, to the proposed extraction area.  In part his objections related to this claim and he wanted any extraction of sand pursuant to the proposal to be deferred until the Waitangi Tribunal had reported on his claim (which is likely to be some years away).  There was also dispute as to the form of consultation and the significance of support from local Maori for the proposal.  The decision of the Environment Court preceded the decision of this Court in Attorney-General v Ngati Apa [2003] 3 NZLR 643.

[8]       We listened patiently to Mr Lawn’s argument on behalf of the appellant for some considerable time.  The most noteworthy feature was the difficulty which Mr Lawn had in expressing succinctly and precisely any question or questions of law which would be raised by the appeal, if leave were granted. 

[9]       Some of his arguments seemed to us to be mere technicalities, addressed to the precision with which the Legal Services Agency expressed the reason why aid was  withdrawn.  We see nothing in those complaints to warrant a grant of leave to appeal. 

[10]     There was also a wholly untenable contention that the Environment Court had discriminated (contrary to s21(1)(f) and (g) of the Human Rights Act 1993) against the appellant when it rejected the contention that no sand should be extracted pending the report of the Waitangi Tribunal.  There were associated arguments to the effect that the Environment Court was required to defer to the Waitangi Tribunal on this point or that in failing to do so it had acted unlawfully in administrative law terms.  These arguments, based on Attorney-General v NZ Maori Council [1991] 2 NZLR 129, were equally untenable. The position in NZ Maori Council was well-removed from the situation which the Environment Court was required to address.  The appellant’s Waitangi Tribunal claim was a relevant factor and was properly taken into account by the Environment Court. It was not, however, a controlling consideration.

[11]     Mr Lawn claimed that the Environment Court had erred in assuming that it had no jurisdiction to determine whether the appellant was a beneficial owner of the seabed.  But even after Ngati Apa, the Environment Court does not have jurisdiction to determine a claim to customary title.  It does have jurisdiction (given s6 of the Resource Management Act) to consider the “relation of Maori … with their ancestral lands” and it dealt with the appellant’s position vis-à-vis the sand extraction proposal in light of that consideration.   It accepted that sand is a treasured taonga and that, as a matter of principle, the preference of the tangata whenua is that there should be no sand-mining.  It recognised that the proposal involved the taking of sand from an area over which the appellant has a Treaty claim.  On the other hand it pointed out that there was substantial local Maori support for the proposal with only the appellant and his sister opposing it.  In those circumstances, we see no basis upon which the appellant’s claim (by definition not yet established)  to customary title to the seabed in the area of proposed extraction gave him an effective right of veto over the proposal (which is pretty much what Mr Lawn’s submission came down to).

[12]     Mr Lawn also complained about the significance placed by the Environment Court on the support for the proposal by other local Maori.  This seems to us to involve questions of evaluation or appreciation (rather than issues of law) and therefore not a suitable ground of appeal to the High Court.

[13]     We are well satisfied that there is no merit in any of the points which are proposed for argument on appeal.  Accordingly, the application for leave to appeal is dismissed.

[14]     The appellant is ordered to pay the respondent costs in the sum of $2,000 together with costs and disbursements (including the travelling and accommodation expenses of counsel if any) to be agreed and, failing agreement, to be fixed by the Registrar.

Solicitors:
Kumeu Huapai Law Centre, Kumeu for Appellant
Bartlett Partners, Wellington for Respondent