Taueki v Police - [2017] NZCA 98

IN THE COURT OF APPEAL OF NEW ZEALAND

CA675/2016
[2017] NZCA 98

BETWEEN	PHILIP DEAN TAUEKI Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 March 2017
Court:	French, Miller and Winkelmann JJ
Counsel:	Applicant in person with A Hunt as McKenzie friend F G Biggs for Respondent
Judgment:	30 March 2017 at 11.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe application for stay is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Taueki was charged with trespass for, in his words, walking upon his own ancestral land — Horowhenua Block XI. In the District Court, Judge Moss dismissed the charge.[1] The police appealed the dismissal to the High Court on three questions of law, with Mr Taueki cross-appealing on one question of law. In December 2016, Ellis J quashed the decision dismissing the charge and remitted the proceeding to the District Court for retrial.[2] Mr Taueki now seeks leave to appeal the decision of Ellis J.

Background

[1]Police v Taueki [2016] NZDC 8014 at [16].

[2]Police v Taueki [2016] NZHC 3098 at [68].

The land in question, Horowhenua Block XI, comprises the bed of Lake Horowhenua and much of the land surrounding it. It is owned by Lake Horowhenua Trust (the Trust) and is Māori freehold land. Mr Taueki is one of over 2,000 beneficiaries of the Trust and, as such, has a beneficial interest in the land. The Horowhenua Lake Act 1905 declared the lake to be a public reserve under the control of a domain board but preserved the rights of the Māori owners.[3]
[3]Horowhenua Lake Act 1905, s 2.
The land is now subject to the provisions of s 18 of the Reserves and Other Land Disposal Act 1956 (the ROLDA), which was enacted to give effect to various matters agreed upon between the Māori owners of the land and other interested parties.[4] Section 18(2) of the ROLDA acknowledges the interest of the beneficiaries of the Trust as follows:
Notwithstanding anything to the contrary in any Act or rule of law, the bed of the lake, the islands therein, the dewatered area, and the strip of land 1 chain in width around the original margin of the lake … are hereby declared to be and to have always been owned by the Maori owners, and the said lake, islands, dewatered area, and strip of land are hereby vested in the trustees appointed by Order of the Maori Land Court dated 8 August 1951 in trust for the said Maori owners.
[4]See preamble to s 18 of the Reserves and Other Land Disposal Act 1956 which sets out the history of the land including the legislative history predating 1956.
Subsection (4) nonetheless reserves to the public the “free right of access over and the use and enjoyment of, the chain and dewatered strips fronting the Muaupoko Park”.
The critical issue for the purposes of the trespass charge was s 18(5) of the ROLDA which declares the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZCA 98
Decision Date: 30 March 2017 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Philip Dean Taueki sought leave to appeal the decision of Ellis J, who quashed the dismissal of a trespass charge and remitted the matter to the District Court for retrial. The appeal raises issues regarding the interpretation of the Reserves and Other Land Disposal Act 1956 and the applicability of the Treaty of Waitangi. The court addressed whether the Domain Board had the authority to issue a trespass notice, whether the Māori owners could be subject to a valid trespass notice, and whether there was sufficient evidence to prove that the Domain Board had resolved to issue the notice. The Court found that the Domain Board had the requisite authority under the Act, and the Māori owners' rights were not absolute. The court concluded that none of the arguments had a realistic prospect of success and declined the application for leave to appeal.

The Court also considered an application for a stay of execution of an order made by Clark J in separate civil proceedings, which required Taueki to vacate the Trust land and buildings. The Court found that the application for a stay should have been filed in the High Court and declined the application for a stay. The Court emphasised the importance of following proper legal procedures and highlighted that Taueki had the opportunity to appeal Clark J's refusal to grant a stay in the High Court.

The applications for leave and for a stay are declined, and no appeal will be allowed. The matter will be remitted to the District Court for retrial, as ordered by Ellis J.

Orders