Pascoe v Ng�ti Tama Custodian Trustee Limited
[2023] NZHC 805
•17 April 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2023-443-000005
[2023] NZHC 805
BETWEEN TONY JAMES SOFUS PASCOE and DEBBIE ANN PASCOE
ApplicantsAND
NGĀTI TAMA CUSTODIAN TRUSTEE LIMITED
First Respondent
WAKA KOTAHI
Second RespondentMINISTER OF LAND INFORMATION
Third Respondent
Hearing: 30 March 2023 Appearances:
M J Utting for Applicants
V N Morrison-Shaw for First Respondent
J M Prebble and J W Henderson for Second and Third RespondentsJudgment:
17 April 2023
JUDGMENT OF GRICE J
Introduction
[1] Mr and Mrs Pascoe seek orders preventing Waka Kotahi from restricting the Pascoes’ stock from accessing and grazing on land owned by the Crown and Ngāti Tama adjoining Mr and Mrs Pascoe’s farm (the grazing land) in the Mangapēpeke Valley. The farm (known as the Valley Farm) and the environment which they have created there is very important to the Pascoes. The Pascoe whānau has owned and
PASCOE v NGĀTI TAMA CUSTODIAN TRUSTEE LIMITED [2023] NZHC 805 [17 April 2023]
occupied the Mangapēpeke Valley Farm and homestead for nearly 70 years. Mrs Pascoe belongs to Poutama, and the Mangapēpeke Valley is ancestral land. The Pascoe whānau, including their children and mokopuna, consider themselves Poutama kaitiaki and stewards for the Mangapēpeke Valley as the haukāinga, maintaining rights and core beliefs on behalf of the wider iwi.
[2] Initially the Pascoes had also sought an order that Waka Kotahi remove the fence which has been built to prevent the stock from going onto the grazing land. However, at the hearing Mr Utting indicated that the applicants no longer sought the removal of the fence, given the cost incurred by Waka Kotahi to erect it. However, they did seek that the gate in the fence remain open and access be allowed to enable the stock to access the fenced land.
[3] Mr Utting outlined the background giving rise to the dispute over the grazing. Waka Kotahi is beginning construction on the Te Ara o Te Ata: Mt Messenger Bypass Project to realign part of the state highway between New Plymouth and Hamilton. The proposed road will run through the Pascoes’ farm and across the grazing area in contention, as well as across land acquired by Waka Kotahi from Ngāti Tama. The road is the subject of a designation and resource consents which have been approved by the Environment Court and been subject to an unsuccessful appeal to this Court.1 The Supreme Court has refused leave to appeal the High Court decision.2
[4] As part of that project, some land on the Pascoes’ Valley Farm is being acquired or leased by the Crown under the Public Works Act 1981. Matters relating to that process are currently before the courts in other proceedings. The Pascoes believe the road should not be built over their farm or across the Mangapēpeke Valley.
[5] Part of the Ngāti Tama land which is adjacent to the Valley Farm has been acquired by Waka Kotahi for the purposes of the project. This includes the land on which the Pascoes’ stock grazed. Until recently the land now owned by the Crown/Ngāti Tama was not separated from the Pascoes’ land by any fencing.
1 Director-General of Conservation v Taranaki Regional Council [2018] NZEnvC 203; and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, (2020) 22 ELRNZ 202.
2 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 87.
[6] Mr and Mrs Pascoe’s claim to the grazing rights over the land dates back to the arrangements put in place at the time Mr Pascoe’s parents owned the farm in the 1950s. The farm was taken over by Mr Pascoe in the 1980s. He entered into a grazing licence with the Crown in 1985. On the expiry of that licence in 1991 Mr and Mrs Pascoe continued to use the land for grazing. When Ngāti Tama acquired the land as part of cultural redress provisions following a Treaty settlement in 2001, the deed of settlement and subsequent legislation referred to Mr Pascoe’s grazing arrangement on the land.3
[7] In the legislation, which passed in 2003, the land to be transferred to Ngāti Tama was listed as having an encumbrance, described as an “[i]nformal grazing right of T J Pascoe”. That description also appeared in a conservation covenant which was registered on the land until the Crown acquired the land for the project from Ngāti Tama.
Procedural background
[8] The application for interim injunction was made on a without notice basis initially. The application came before McQueen J on 17 February 2023. The basis for the urgency was that the building of the fence would interfere with the grazing rights held by Mr Pascoe. Her Honour noted that the dispute about the grazing land had existed for some time and that proceeding on notice would not cause undue delay or prejudice to the applicants or their stock. She concluded the interests of justice required the application be determined on notice.4
[9] At the time of the hearing of this application no substantive proceedings had been filed. I directed the applicants to file and serve a statement of claim, which they did on 3 April 2023. This is in draft and has clarified the basis of the proposed substantive claim. However, that proceeding has not yet been filed. While the draft statement of claim sets out the proposed causes of action, given the applicants have not yet filed the proceeding they must prove there is sufficient “urgency” that the
3 Deed of Settlement of the Historical Claims of Ngati Tama (20 December 2001) at 193; and Ngati Tama Claims Settlement Act 2003, sch 1.
4 Pascoe v Ngāti Tama Custodian Trustee Ltd HC Ngāmotu | New Plymouth CIV-2023-443-5, 17 Pepuere | February 2023 (Minute of McQueen J).
orders sought should be made before the commencement of the substantive proceeding.5 The specific rule in the High Court Rules 2016 provides:
7.53 Application for injunction
(1)An application for an interlocutory injunction may be made by a party before or after the commencement of the hearing of a proceeding, whether or not an injunction is claimed in the party’s statement of claim, counterclaim, or third party notice.
(2)The plaintiff may not make an application for an interlocutory injunction before the commencement of the proceeding except in case of urgency, and any injunction granted before the commencement of the proceeding—
(a)must provide for the commencement of the proceeding; and
(b)may be granted on any further terms that the Judge thinks just.
Principles relating to injunctions
[10] Putting aside that the applicant must first establish urgency, when considering applications for interim injunction in the private law context the well-established three-step Klissers approach applies.6 This involves: firstly, the applicant establishing there is a serious question to be tried; secondly, the Court considering where the balance of convenience lies; and finally, the Court will consider where the overall justice lies. The last step is essentially a discretionary check on the position that has been reached following analysis of the first two limbs.
[11] I deal with the issue of urgency first and then move on to consider the three-step process in the context of this case.
Urgency
[12] “Urgency” means “needing immediate action”. The courts have noted that “it must be a special case with the urgency of a special nature so that the failure to obtain interim relief would or might lead to irreparable harm.”7
5 Rule 7.53(2) of the High Court Rules 2016.
6 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142 per Cooke J.
7 Tardus Mortgages Ltd v Lister HC Te Papaioea | Palmerston North CP 38-98, 27 Ākuhata | August 1999 at 6, cited with approval in Tellen Systems NZ (2013) Ltd v Fibre Investments Ltd [2022] NZHC 19 at [61].
[13] The reason put forward by the applicant for the urgency in dealing with this application is that the Minister of Land Information and Waka Kotahi, with whom the Pascoes have been dealing for some time, say the grazing rights which Mr Pascoe’s father secured when he owned the land, and which Mr Pascoe continued, have been cancelled. The applicants, however, say the grazing rights have been preserved by their inclusion in the Deed of Settlement between the Crown and Ngāti Tama and the subsequent settlement legislation, as well as related documentation, including the referral to the grazing right in the conservation covenant under the Reserves Act 1977 registered against the land. The covenant has since been discharged. The Pascoes say that as the “informal grazing right” in favour of Mr Pascoe is recorded in the list of encumbrances in the schedule to the Act vesting the land in Ngāti Tama that right cannot be removed except by legislation.
[14] Mr Pascoe says that without the grazing rights his Valley Farm is not sustainable. He says although the Valley Farm on paper is just under 156 ha, the actual farm platform, including grazing rights, is around 35 ha. Much of the farm is a unique wetland. It is swampy, but with patches of land where cattle can graze. Due to the nature of the wetland, the farm is divided into two parts. Mr Pascoe says the grazing land also provides a land bridge whereby cattle can move from one side to the other.
[15] Waka Kotahi has now fenced the grazing land with pest-proof fencing. It says this protects the Ngāti Tama land from pests. The Pascoes no longer seek the removal of the fence, as they say it will cost as much to remove as it did to build and they are not in a financial position to cover the costs of that construction if the outcome was that they had to pay for it.
[16] Instead, the Pascoes seek access through the fence for their stock, which will involve leaving the gate in the fence open as well as providing another access place in the fence. The respondents say that would defeat the purpose of the fence, which is to keep out wandering stock and enable the safe elimination of other pests within the fence which have wrought damage on the land for many years.
[17] The Pascoes say their stock was wrongfully removed from the grazing area. At the time of removal there were about 30 head of stock on the land. The Pascoes
say due to the threat of land-taking for the project hanging over their head for many years, as well as the coming and going of various personnel associated with the project, they have in recent times contracted their farming operation. For instance, they stopped raising calves on the property a few years ago. It appears there are none of the Pascoes’ stock on the property at present and there was no evidence of any welfare issues in relation to the stock which had been removed from the property. It appears with the contraction of the farming operations, which the Pascoes say is due to the wrongful acts of the respondents, there is no immediate demand for grazing land which would point to any urgency at all in re-admitting stock to the land.
[18] On the evidence, I am therefore not satisfied that there is urgency of the nature required. The application for interim injunction therefore fails on this ground alone and disposes with the application. However, I now turn to consider the application of the Klisser principles in the circumstances of this case.
Serious question to be tried
[19] As noted, no substantive proceeding or statement of claim was filed by the hearing date. However, it appears there are two main bases for the claim. The first is that the Pascoes have a grazing right to the land based on past usage and the grant of those rights initially to Mr Pascoe’s parents and subsequently to him.
[20] The second basis, which is the main ground relied upon by Mr Utting for the Pascoes, is that a grazing right has been preserved by virtue of reference to the arrangement in the Ngāti Tama settlement deed and subsequent legislation as well as the conservation covenant.
Grazing right by virtue of past usage
[21] A claim based on past usage cannot succeed. Mr Pascoe’s parents moved to the Valley Farm in about 1956. They held grazing rights on the relevant land, although it is not clear how they were recorded. Mr Pascoe continued grazing stock on the land after he acquired the farm in the 1980s. In 1985, Mr Pascoe and the Minister of Forests entered into a licence agreement (the 1985 licence agreement), which allowed Mr Pascoe to graze 3.2 ha of the Mt Messenger State Forest (the 1985 grazing land)
for a term of six years. After the term of the 1985 licence agreement expired in 1991 Mr Pascoe’s stock continued to access and graze the 1985 grazing land.
[22] In the 1990s the conservation legislation relevant to the 1985 licence agreement was changed. A concession was required under part 3B of the Conservation Act 1987 to enable the grazing to continue. The Department of Conservation in the early 2000s made numerous approaches to Mr and Mrs Pascoe suggesting they apply for a concession. No concession was sought.
[23] In December 2001, the Crown and Ngāti Tama entered into a deed of settlement settling Ngāti Tama’s claims against the Crown under te Tiriti o Waitangi | the Treaty of Waitangi. The settlement Act was passed in 2003 to give effect to the deed of settlement. As part of the settlement, the Mt Messenger site (which included the grazing land) was vested in Ngāti Tama. In the first schedule to the settlement Act, the vesting of the Mt Messenger site was listed as subject to an “[i]nformal grazing right of T J Pascoe”.
[24] Mr and Mrs Pascoe continued to allow the stock to graze and access the 1985 grazing land after the site was vested in Ngāti Tama in 2004. In 2019 and 2020 Ngāti Tama wrote to Mr Pascoe informing him that the 1985 licence agreement had expired and that any informal grazing arrangement for the stock on or with access to the 1985 grazing land was cancelled.
[25] In May 2022, parts of the Mt Messenger site, including the 1985 grazing land, were acquired by the Crown (freehold and leasehold interest) for the purposes of the project. In late 2022 and early 2023 Waka Kotahi wrote letters to Mr Pascoe stating that he had no right to graze stock on the 1985 grazing land and informing him that a fence between Mr and Mrs Pascoe’s land and the 1985 grazing land (and other land owned by the Crown or Ngāti Tama) was going to be built. Construction of the fence commenced on 8 February 2023. Mr and Mrs Pascoe filed an interlocutory injunction for interim orders without notice on 14 February 2023. As I have noted, this Court directed the application was to be notified.
[26] The only formal grazing arrangement, which was recorded in the 1985 licence agreement, did not confer an interest in land on Mr Pascoe, was terminable on notice and expired in 1991. Mr Pascoe continued to allow his stock access to graze on the land. Under the Conservation Amendment Act 1996, grazing licenses over the conservation land (including the Mt Messenger Conservation Area) could only be granted by way of concession. Section 47(2) of that Act brought the existing interest to an end by preventing ongoing renewal. The consequence was that after the 1990s there was no legal way Mr Pascoe could renew the 1985 licence agreement (although that had already expired in 1991). The only way to obtain a formal legal interest to graze on the 1985 grazing land would have been to obtain a concession from the Department of Conservation under part 3B of the Conservation Act 1987. This was not done.
[27] Therefore, given the expiration of the 1985 licence agreement and the failure to obtain a concession, at the time of the transfer of the 1985 grazing land to Ngāti Tama in 2004, Mr Pascoe had no legally enforceable right to access and graze his stock on the land. At best Mr Pascoe had a common law bare licence, or mere permission by the licence to enter the land. There was no contract, estoppel or trust arising. The permission could be cancelled by the Department at any stage.8 However, it is likely that Mr Pascoe’s stock were trespassing on the 1985 grazing land with no licence or right to access the land.
[28] In any event, even if Mr Pascoe had a licence to occupy the land, that was brought to an end by the cancellation letters sent by Ngāti Tama to the Pascoes in 2019 and 2020. If Mr and Mrs Pascoe had held a bare licence in respect of the 1985 grazing land then the only requirement in order to cancel such a licence was to communicate cancellation of the licence to the licensee on reasonable notice.9 Ngāti Tama gave notice by letters to the Pascoes terminating the grazing rights in 2019 and 2020. The notice dated 14 July 2020 referred in its subject line to “Termination of informal grazing concession – Mt Messenger conservation area”. It gave notice to the Pascoes to remove the stock by 30 June 2019, stating that the informal grazing licence would
8 Elizabeth Toomey (gen ed) New Zealand Land Law (3rd ed, Thomson Reuters) at [18.004].
9 David Brown A to Z of New Zealand Law Property (online ed, Thomson Reuters) at [48.R.7.5.03(1)].
terminate at 5pm on 19 October 2020. The notice then went on to request the removal of the stock and required measures to be taken to stop the stock from wandering onto the Ngāti Tama land by that date.
[29] I conclude that the following the expiry of the licence to graze in 1991 the Pascoes had no enforceable right to allow the stock to graze on the land. The passing of the Conservation Amendment Act in 1996 prevented any further licence being granted. No concession was sought or granted. The fact that the stock were allowed to continue to graze on the land did not give the Pascoes any rights for the stock to continue to graze. The notices to terminate issued by Ngāti Tama reinforced that the grazing rights had been terminated. They expressly required the Pascoes to remove the stock and put them on notice that their stock would be trespassing if they continued to access the property. The Pascoes’ claim cannot succeed on the basis of a grazing right based on past arrangements and usage.
[30] I therefore turn to the primary ground put forward by Mr Utting for the Pascoes, that the grazing rights exist because the rights have either been preserved or otherwise maintained through the references to those rights in the deed of settlement and subsequent legislation.
[31] The deed of settlement between the Crown and Ngāti Tama recorded the Crown’s acknowledgement to Te Rōpū o te Whakamana i te Tiriti o Waitangi | the Waitangi Tribunal of injustices and their severe impact on Ngāti Tama. The deed of settlement recorded the Crown’s apologies as well as the proposed cultural redress to be provided to Ngāti Tama and the details of the settlement of the claims made as a result of the findings of the Waitangi Tribunal.
[32] In relation to the Mt Messenger site the deed stated that the settlement legislation would provide that:10
(a)the reservation of the Mount Messenger Scenic Reserve described in Part 2 of the Cultural Redress Schedule as a scenic reserve subject to section 19 of the Reserves Act is revoked;
10 Deed of Settlement, above n 3, at [9.6.10].
(b)the part of the Mount Messenger Conservation Area described in Part 2 of the Cultural Redress Schedule ceases to be a conservation area under the Conservation Act;
(c)the fee simple estate in the following areas (together the “Mount Messenger Site”) vests in the Governance Entity, namely …
[33] In Part 2, the schedule for the relevant site to be vested recorded an encumbrance over the site, whereby the site was subject to a “[g]razing licence dated 18 September 1985 issued by NZ Forest Service to Tony James Pascoe.”
[34] The grazing licence had expired by the date of the deed of settlement. Therefore, when the legislation to effect the deed was enacted it vested the Mt Messenger site in Ngāti Tama and revoked the scenic reserve reservation but subject to the conservation covenant recorded in cl 9.6.10(d) of the deed.11 The encumbrance recorded against the relevant land was described as:12
Subject to:
Informal grazing right of T J Pascoe
Conservation covenant and walkway easement referred to in section 33(3).
[35]“Encumbrance” is defined widely in the Act to include any “right or interest
… without limitation”.13
[36] The $50 per annum grazing fee payable under the 1985 grazing licence has not been paid for many years. The records indicate Ngāti Tama has received no payment since it acquired the land.
[37] The deed of settlement is between the Crown and Ngāti Tama. It does not record either or both of the Pascoes as parties. The legislation provides that the purpose of the Act is to record the acknowledgements and apologies given by the Crown to Ngāti Tama in the deed of settlement and to give effect to certain provisions of the deed of settlement, which settles the Ngāti Tama historical claims.14
11 Section 33(3) of the Ngati Tama Claims Settlement Act.
12 Schedule 1.
13 Section 9 definition of “encumbrance”.
14 Section 3.
[38] Neither the Act nor the deed creates or gives the Pascoes or either of them any interest in the land. As the Pascoes did not have any interest in the land which would have allowed them to allow the stock to graze the land at the time of the deed there is nothing to preserve. Even if the Pascoes did have a right to graze, which I have found they did not, Ngāti Tama was entitled, once it became owner of the land, to bring that to an end by notice of termination, which it did. There was no disagreement over the fact that the notice was given, nor was there any suggestion that the notice was unreasonable in its terms. The period of the notice given was longer than that required in the grazing licence and was reasonable in all the circumstances.
[39] A purposive interpretation of the legislation indicates that it is for the benefit of Ngāti Tama. It would be against the interests of Ngāti Tama if by reference to the informal grazing right of Mr Pascoe an interest in the land was created permitting the Pascoes to continue to use the land for grazing despite no interest existing at the time of either the signing of the deed or the passing of the settlement legislation.
[40] The draft statement of claim, which the respondants have not had the opportunity to comment on, added a further limb to the common law usage claim. It pleaded:
16. The previous and current owners of the Pascoe Whānau Land have held and exercised rights of pasture (grazing livestock), rights of pannage (to turn out pigs to eat nikau berries etc.), rights of estover (to collect wood), rights of piscary (eeling, etc.), or common law profits à prendre on the Grazing Rights Land for more than 100 years. These rights were acquired through long usage, and through prescription. The use of the profit was enjoyed for more than 100 years by the Pascoe Whānau, or by their predecessors. These rights were exercised without force, secrecy or permission.
17. Debbie and Tony Pascoe are the current holders of the grazing, pannage, estover, and piscary rights or common law profits à prendre on the Grazing Rights Land, each holding an individual, undivided interest, which gives them an equal right to use the Grazing Rights Land.
18. Profits à prendre are a form of proprietary estoppel, meaning they can act to prevent the servient landowner from restricting or interfering with the rights accorded to the owner of the dominant tenement in the exercise of that right, including the right for the dominant tenement owner to graze livestock.
[41] I do not consider this adds a great deal to the arguments put forward at the hearing.
[42] The legal basis for the claim is not entirely clear, but to establish an estoppel there must be more than a bare usage of the right to use the land. Commentary puts it as follows:15
48.R.7.7.01 Requirements to raise an estoppel
(1) Proprietary estoppel
Proprietary estoppel, which evolved from the equitable doctrine of “encouragement and acquiescence”, was classically analysed by Fry J in Wilmott v Barber. His Honour identified five “probanda” as the necessary requirements to be shown by a party seeking to raise the estoppel:
(a)Mistake: the plaintiff must have been mistaken as to his or her legal rights.
(b)Expenditure or detriment: the plaintiff must have made some expenditure or suffered some detriment on the faith of the mistake.
(c)Awareness: the representor/defendant must have been aware of his or her own rights (and should therefore have asserted them).
(d)Knowledge: the representor/defendant must know of the mistake made by the representee/plaintiff.
(e)Encouragement or silence: the representor must have encouraged the representee in the expenditure or detriment, or at least stood by silently when seeing the actions done in reliance on the representation.
[43] More recently the courts have indicated that it is not necessary to apply a rigid approach in every case. One commentator has elaborated as follows:16
While courts do sometimes use the “five probanda” … as a starting point, there has been a gradual tendency towards a broader approach, which has been confirmed in New Zealand. In Andrews v Colonial Mutual Life Assurance Society Ltd Barker J applied the five probanda to the case before him and, on finding that the third and fourth were not clearly made out, applied the broader approach of Oliver J. The Court of Appeal has also endorsed the approach of Oliver J. In Westland Savings Bank v Hancock Tipping J reviewed the state of the New Zealand and English authorities, and referred to Humphreys Estate (above) as highly persuasive authority for the Oliver J test. Tipping J stated that the ultimate issue is whether:
“… in the particular circumstances it would be inequitable for a party to be allowed to deny what he knowingly or unknowingly has allowed or encouraged the other party to assume to his detriment. On the one hand it is necessary for the concept of estoppel to remain flexible and not to be confined to any rigid formula; on the other hand there must be some test or principle so that those who have to consider the matter
15 Brown, above n 9, at [48.R.7.7] (footnotes omitted).
16 At [48.R.7.7.01(2)] (footnotes omitted).
in advance of a decision by the Court can have a reasonable prospect of forecasting what the result will be.”
[44] In this case it is unlikely that proprietary estoppel could be established. None of the five probanda are established. In addition, if there were any rights of usage they were recorded in the 1985 grazing licence on the terms of that agreement. That provided an expiry date and was terminable on notice. The licence has expired, and even had it continued as an “at will” usage arrangement it was brought to an end by the Conservation Amendment Act. No concession was then sought to maintain the grazing right. In addition, Ngāti Tama acquired the land and has given a valid notice to terminate any existing usage rights of whatever nature and directed the removal of stock. No usage rights including any rights based on common law profits à prendre are apparent here.
[45]This ground of claim cannot succeed.
[46]Accordingly, I conclude there is no serious question to be tried.
Balance of convenience
[47] The fencing of the land is intended as part of various pest control measures to foster bringing the land now owned by Ngāti Tama back to its original state. If gates are left open to allow the stock to wander onto the Ngāti Tama land, the evidence is that it will be impossible to undertake the pest control measures proposed.
[48] On the other hand, the stock that were grazing on the site have been removed. No evidence was adduced that there are any animal welfare or other concerns about the animals.
[49] In addition, damages would be an adequate remedy if the plaintiffs were to succeed in a proceeding.
[50] The balance of convenience strongly favours not granting the interim injunction.
Overall justice
[51] Mr Utting emphasised the position that the Pascoes have been put into. For some years now they have had the uncertainty of whether or not their farm or parts of it would be taken or leased for the road realignment project. This has led to their destocking the land and changing their operations to accommodate that uncertainty. Now they are faced with having to further manage the farming operation by preventing the grazing of stock on land which they maintain they have a right to use for grazing.
[52] On the other hand, the respondents point to the fact that the issue of contention over the grazing rights has been alive for many years. The Pascoes have had many opportunities to deal with the matter, including recently when Waka Kotahi wrote to them to offer to discuss the issue. In response the Pascoes wrote directly to the Minister for Land Information seeking his intervention. The Minister refused.
[53] I consider the overall justice of the situation dictates that the injunction should not be granted. The Pascoes have been offered the opportunity to discuss the matter. They have chosen not to and then to strategically apply for the injunction. That was an option open to them, but is also a matter that counts against the granting of the injunction.
[54] In addition, Ms Morrison-Shaw for Ngāti Tama pointed out that the impacts on Ngāti Tama of granting an interim injunction are a relevant consideration. She submitted that granting an injunction would adversely affect Ngāti Tama and would constrain or undermine its abilities to exercise its rangatiratanga over the land and determine what activities are allowed to occur on the land. She pointed out they could not fulfil their kaitiakitanga obligations in relation to the land and ensure that their taonga species that live within the areas are actively protected from harm. Nor could they carry out the effect of pest management on their lands if the fence were not stock-proof.
[55] Ms Morrison-Shaw pointed out the stock grazing has had significant impacts on the ecological values of the whenua of Ngāti Tama, which has been accepted by the Environment Court in earlier decisions relating to this land. In addition, Ngāti Tama have other land blocks subject to similar informal grazing licenses. Therefore,
this decision has some precedent value for the iwi. Ms Morrison-Shaw also said that other iwi and hapū who have received Treaty settlement land subject to similar informal grazing licenses may be affected. She warned against encouraging other beneficiaries of informal grazing arrangements from bringing claims similar to the present claim to enable a continuation of grazing at least while the claims were being determined.
[56] For those reasons I consider that the overall justice favours not granting the interim injunction.
Conclusion
[57] I dismiss the application for interim injunction. First and decisively, it is not urgent in terms of r 7.53(2) of the High Court Rules. Secondly, even if proceedings had been commenced, which they have not been, the applicant would fail due to lack of a serious question to be tried. In addition, the balance of convenience and the overall justice of the situation favour not granting an interim injunction.
Costs
[58] There appears no reason why costs should not follow the event on a category 2B basis. If counsel are unable to agree on the award of costs an application for costs together with supporting submissions is to be filed on or before five days from the date of this judgment. Any response is to be filed on or before a further five days and any reply within a further three days.
Grice J
Solicitors:
Thomson O’Neil & Co – Eltham Branch, South Taranaki Vicki Morrison-Shaw Barrister, Rodney
Jeremy Prebble Barrister, Wellington
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