Mihinui v Attorney-General for the Ministry of Education

[2017] NZCA 263

IN THE COURT OF APPEAL OF NEW ZEALAND

CA222/2017
[2017] NZCA 263

BETWEEN

JOANNE MIHINUI, MATATAHI MIHINUI, TANIA MIHINUI
Applicants

AND

ATTORNEY-GENERAL FOR THE MINISTRY OF EDUCATION
First Respondent

WESTERMAN PROPERTY SOLUTIONS LIMITED
Second Respondent

Hearing:	12 June 2017
Court:	Harrison, French and Winkelmann JJ
Counsel:	J Mihinui in person for Applicants S Eccles and A Smith for First Respondent
Judgment:	26 June 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

BThe application for a stay of execution is declined.

CThe applicants must pay the first respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

1. The applicants have been occupying properties, formerly used for teachers’ accommodation in Tūrangi.[1]  The Ministry of Education needs those properties for use in Treaty-settlement processes and, in some cases, for Ministry purposes.  The Ministry sought possession orders under s 65 of the Residential Tenancies Act 1986 over the properties.  That section requires the Tenancy Tribunal to make a possession order when it is satisfied that “any person is in possession of the premises as a squatter or a trespasser”. 

   [1]It is unclear from the record whether the applicants are still in occupation.  We also record that when these applications were filed in this Court, the second respondent was named as the “Turangituka Charitable Trust”.  The Trust was not a party in the High Court and therefore is not a party to this appeal.  The Trust’s status on this appeal could not, however, change our decision.

2. On 30 June 2015 the Tenancy Tribunal granted the order sought.[2]  Ms Mihinui appealed that decision to the District Court, an appeal which was dismissed by Judge McGuire on 8 December 2015.[3]  A further appeal to the High Court was also dismissed and a subsequent application for leave to appeal to this Court declined.[4]

   [2]Ministry of Education v The Occupiers NZTT Taupo 14/01790/RO, 30 January 2015.  An application for a rehearing was dismissed on 2 March 2015.

   [3]Mihinui v Attorney-General for the Ministry of Education [2015] NZDC 24107.

   [4]Mihinui v Attorney-General for the Ministry of Education [2017] NZHC 56 [Palmer J substantive decision]; and Mihinui v Attorney-General for the Ministry of Education [2017] NZHC 654.

3. The applicants now seek special leave under s 120(3) of the Residential Tenancies Act to appeal the decision of Palmer J dismissing their appeal, and a stay of execution of his judgment pending that appeal.  This Court must not grant leave under s 120(3) unless “the appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”.

4. The primary ground the applicants seek to advance on appeal is that they have unextinguished aboriginal title to the properties, and that the Ministry has not produced evidence to show that their title has been extinguished. 

5. Palmer J was satisfied that the Native Land Act 1909, the passage of the land in question through the Native Land Court and the indefeasibility sections of the Land Transfer Act 1952 established that aboriginal title to the properties in question had been extinguished.[5]  He noted the failure of the applicants to identify any significant defect in the Native Land Court process or even to establish, as a precondition to their claim, their whakapapa to those who held original title.[6]  He also noted that the claims of Ngāti Tūrangitukua claimants had been settled through s 8 of the Ngati Turangitukua Claims Settlement Act 1999, and the applicants had failed to show they fell outside of the terms of that settlement.

   [5]Palmer J substantive decision, above n 4, at [18].

   [6]At [19]–[20].

6. A related ground of appeal the applicants seek to advance is a challenge to the sovereignty of the Crown, and a claim that the question of land ownership has already been determined on the marae in accordance with tikanga.  Palmer J said that there was no doubt that sovereignty in modern New Zealand lies with the Crown in right of New Zealand.[7]  The applicants’ claims not to recognise the Crown’s sovereignty, and their assertion of alternative authority to the Crown and the legislation passed for the Crown in Parliament, could not therefore be sustained. 

   [7]At [24].

7. In respect of both proposed grounds the applicants seek to do no more than make the same arguments they made before Palmer J.  They do not identify any error in the Judge’s approach.  But in rejecting their arguments Palmer J was applying well settled law.[8]  We are satisfied therefore that the proposed grounds of appeal have no prospect of success and for that reason cannot meet the threshold for leave under s 120(3).

   [8]See for example Warren v Chief Executive of the Department of Corrections [2017] NZSC 20 at [7].

8. The final ground of appeal which the applicants seek leave to advance is that the Judge was biased and breached the judicial oath in rejecting their appeal.  The applicants provide no substance to this allegation, and we assess it as being without foundation and having no prospects of success.

Conclusion

1. It follows that, as the proposed appeal raises no question of law of general or public importance, the threshold for leave is not met and we decline the application.

2. The applicants also apply for a stay of execution pending appeal.  Because leave to appeal is not granted, the stay application is also declined.

Costs

1. The Ministry seeks costs and we consider a costs order to be appropriate in the circumstances.  The applicants must pay the first respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for First Respondent