Peter Pii Pii Keepa v Council
[2003] NZCA 162
•24 July 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA60/02
BETWEENPETER PII PII KEEPA
Appellant
ANDWHAKATANE DISTRICT COUNCIL
Respondent
Hearing:25 June 2003
Coram:Blanchard J
Tipping J
Glazebrook JAppearances: P T Harman for Appellant
A M B Green and E Y Tan for Respondent
Judgment:24 July 2003
JUDGMENT OF THE COURT DELIVERED BY TIPPING J
[1] This appeal from Paterson J concerns the validity of a Gazette notice published in 1964 purporting to remove a rating exemption from lands historically referred to as Ruatoki Blocks 1, 2 and 3. The judgment below contains a comprehensive review of the factual and legislative background, which it is not necessary for us to repeat. The Judge found the 1964 notice to be valid. As a consequence he found that the respondent Council was entitled to levy rates on what we will call the Ruatoki Lands.
[2] The 1964 notice was in these terms:
Pursuant to section 16 of the Urewera Lands Act 1921 – 1922, the Minister of Maori Affairs hereby gives notice that, as from the 31st day of March 1964, so much of the land within the district described in the First Schedule to the said Act as is now deemed to be excepted from the term “rateable property”, as defined by the Rating Act 1925, shall cease to be so excepted.
[3] It is common ground that the Ruatoki Lands were within the First Schedule to the Urewera Lands Act 1921-1922 (the Act). The appellant, Mr Keepa, represents the parties claiming the 1964 notice to be invalid. On his behalf Mr Harman contends for such invalidity on the basis that the necessary pre-conditions for the giving of the 1964 notice and its coming into effect were not fulfilled.
[4] The best starting point is the preamble to the Act, the long title of which is “An Act to Facilitate the Settlement of the Lands in the Urewera District”. The preamble reads:
WHEREAS the Native lands within the district referred to in the First Schedule to this Act have for a number of years been under special administration, and it is now desirable to apply the ordinary law thereto : And whereas during such administration the Crown, pursuant to powers in that behalf, has purported to deal with certain portions of the said lands, and arrangements have been entered into between representatives of the Crown and of the Natives interested in such lands for the consolidation and location of interests in such lands and in certain lands outside such district, and it is desirable that such arrangements should be carried into effect.
[5] Section 4 of the Act provides:
4 Commissioners appointed
(1) For the purpose of carrying into effect the scheme of consolidation referred to in parliamentary paper G-7, 1921 (hereinafter called the said scheme), with regard to the lands within the district comprised in the First Schedule hereto and such other lands as may be affected, the Governor‑General shall appoint two Commissioners, to be known as the Urewera Consolidation Commissioners (hereinafter called the Commissioners).
[6] The next section in the Act to which reference should be made is s7(1). It is in these terms:
7 Maori awards
(1) After providing for the portion of land to be allotted to the Crown, the Commissioners shall make and issue orders, as near as may be in accordance with the said scheme, with respect to the balance of the land in the district described in the First Schedule hereto and affected by the scheme, and shall allot to persons to be named in such orders the portions to which they are entitled after making adjustments for the area taken for roads and surveys.
[7] The section in the Act which deals directly with the rating issue now before the Court is s16 which reads:
16 Rates deferred
The land within the district described in the First Schedule shall, so far as it is not awarded to the Crown, be deemed to be excepted from the term rateable property as defined by the Rating Act 1908, unless and until a notice is signed by the Maori Minister and published in the Gazette that the land named therein shall cease to be so excepted. Such notification shall not be made with respect to any area of land until the expiry of at least twelve months after the order relating thereto shall have been countersigned by the Chief Judge.
[8] It can therefore be seen that land within the defined district, which included the Ruatoki Lands, to the extent it was not awarded under the scheme to the Crown, was to be exempted from rates (this being the effect of exception from rateable property) until the Minister published a notice in the Gazette bringing the exemption to an end. In its initially enacted form (as set out above), s16 contained the proviso in its last sentence that no s16 notice could be given for at least 12 months after the order relating to the land in question had been “countersigned” by the Chief Judge. With respect to the wider view we have no doubt that the “order” referred to as the “order relating thereto” must mean the order made by the Commissioners under s7(1). It is that order which Parliament envisaged would be countersigned by the Chief Judge. We consider this is clear, both textually and contextually. The point is really put beyond doubt by the use of the definite article in the expression “the order” which naturally looks back to the type of order already mentioned in s7(1), and cannot reasonably be read in any wider sense.
[9] By s43(3) of the Native Land Amendment and Native Land Claims Adjustment Act 1922, s16 of the Act was amended by the addition of the following words after the proviso:
It shall not be necessary to wait such period in the case of the lands known as Ruatoki 1, 2 and 3 Blocks.
[10] The issue which arises from this amendment is whether, in the case of the Ruatoki Lands, the proviso should be treated as not being there at all, or whether the need for countersigning by the Chief Judge remains, but it was no longer necessary to wait for at least 12 months thereafter before a Gazette notice could be issued. Paterson J was not satisfied there was evidence that the Chief Judge had countersigned any order in respect of the Ruatoki Lands. If, as Mr Harman contends, such countersigned order was a necessary pre-condition to a s16 Gazette notice, it must follow that the Minister was not entitled in law to issue the 1964 notice.
[11] Mr Green, for the Council, argued that the 1922 amendment had the effect of removing the proviso altogether in respect of the Ruatoki Lands. He also argued that there was in any event no need for the Chief Judge’s countersignature in respect of the Ruatoki Lands because they were not part of the scheme of consolidation and no s7(1) order could therefore be made in relation to them. We will address this last point first.
[12] The Judge concluded that whereas the Ruatoki Lands were within the district described in the First Schedule to the Act, they did not become part of the scheme of consolidation referred to in s4(1). The appellant has not challenged that conclusion. As the Ruatoki Lands were not within the scheme, the Commissioners could not make a s7(1) order in relation to them, unless they were “affected by the scheme” in spite of not being within it: see the use of that expression in s7(1) and the corresponding expression “such other lands as may be affected” in s4. Section 4 expressly contemplates that lands not within the scheme might be “affected” by it.
[13] Mr Harman sought to persuade us that the Ruatoki Lands were affected by the scheme as a result of roading and survey considerations. The only reference to roading in the Act, apart from that in s7(1), is in s5(1) which contains the following:
5 Crown awards
(1) … The Commissioners shall allot to the Crown portions of the lands in accordance with the said scheme, including in such allotment land to the value of twenty thousand pounds given by the Natives for roading purposes and a further area of land to represent the probable cost of surveys of Native portions …
[14] There is no evidence upon which the Court could properly find that the Ruatoki Lands were lands affected by the scheme on account of either roading or survey matters. The word “affected” in its context suggests that the scheme must have had some tangible effect on land not within it, before that land could be regarded as affected by the scheme. As the Ruatoki Lands were neither within the scheme nor affected by the scheme the Commissioners had no power to make a s7(1) order in relation to them. Hence, for s16 purposes, although the Ruatoki Lands were within the district described in the First Schedule, there could never have been “an order relating to” them which the Chief Judge could have countersigned. For this reason the proviso in s16 was not capable of taking effect in relation to the Ruatoki Lands. The 1922 amendment may therefore have been unnecessary other than for the avoidance of doubt.
[15] We should add that even if the proviso had applied to the Ruatoki Lands, we consider the amendment should be construed as removing the proviso altogether in relation to them. The intention of the amendment was obviously to remove the need for the waiting period. Although this point is not free from difficulty, we think it likely that had Parliament considered the countersigning point to be of continuing importance, notwithstanding the removal of the waiting period, it is likely to have made that point clear, rather than left it to a rather precarious process of implication. The removal of the waiting period can quite logically and reasonably be regarded as intended to remove also the need for a countersigned order. The irony is that no such order was required, as we have seen, but if the draftsman had appreciated that, he could not logically have intended to preserve this requirement.
[16] The probability is, we think, that the amendment was passed following an appreciation that the Ruatoki Lands, albeit within the district described in the First Schedule, were not within the scheme. This created something of an anomaly on the rating front, which the amendment was presumably designed to cure. The consequence is that whichever way the matter is viewed there was no need for any s7(1) order, countersigned by the Chief Judge, before the Minister could publish a s16 Gazette notice, removing the rating exemption from the Ruatoki Lands. We accept Mr Green’s submission to this effect and reject Mr Harman’s argument to the contrary.
[17] Even if our reasoning to this point were incorrect, we would still regard the 1964 Gazette Notice as valid. Counsel informed us that the scheme had been fully implemented by the late 1920s or the early 1930s. It must follow that the proviso then became obsolete. The Commissioners had completed their task and no s7(1) order had been made in relation to the Ruatoki Lands. None could thereafter be made, as the Commissioners were functus officio. If the proviso were not regarded as obsolete in these circumstances, parity of reasoning would mean that the restriction on alienation contained in s8(4) of the Act, which is similarly conditional on the Chief Judge’s countersignature, would not be obsolete either. The restriction on alienation cannot possibly have been intended to continue past the date on which the scheme was fully implemented. Neither can the need for a countersigned order in the rating context.
[18] Mr Harman attempted to make something of the fact that the words “excepted” and “exempted” both featured in the legislation. We see nothing material in this distinction. The natural way in which the two words work together is apparent from the first sentence in para [8] above. We have also considered all the other matters referred to in Mr Harman’s written and oral submissions. The issues in the case are essentially ones of statutory interpretation. We have admitted and considered the so-called further evidence, which the appellant filed. It cannot, however, affect the conclusions which we have reached on the basis of the relevant legislation. Our reasoning has not in all respects been the same as that of the Judge but we have no doubt that he came to the correct conclusion. The 1964 Gazette notice was a valid notice under s16 of the Act, and must be regarded as having taken effect according to its terms.
[19] The appeal is therefore dismissed. The appellant must pay the respondent costs in the sum of $5,000.00 plus disbursements including the reasonable travel and accommodation expenses of counsel, to be fixed if necessary by the Registrar.
Solicitors:
Rishworth Wall & Mathieson, Gisborne for Appellant
Brookfields, Auckland for Respondent
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