Tauranga City Council v Faulkner
[2016] NZHC 1440
•29 June 2016
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2016-470-75 [2016] NZHC 1440
BETWEEN TAURANGA CITY COUNCIL
Plaintiff
AND
TIO FAULKNER Defendant
Hearing: 26 May 2016 (Further submissions 9, 23 and 24 June 2016) Counsel:
N Hall for Applicant
Respondent in personJudgment:
29 June 2016
JUDGMENT OF WHATA J
This judgment was delivered by me on 29 June 2016 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Simpson Grierson, Auckland
Kahui Legal
TAURANGA CITY COUNCIL v FAULKNER [2016] NZHC 1440 [29 June 2016]
[1] In 1865 the Crown confiscated the whenua o “Ngaiterangi”1. The lands were surveyed by Commissioner Brabant with allotments granted to “Ngaiterangi” members in accordance with an undertaking by Governor Grey.
[2] This case is about a strip of land on the Matapihi peninsula running between Matapihi Road and the railway line immediately south of a subdivision known as the Phoenix Gardens cul-de-sac. The Council claims this strip of land is a paper road and wants to construct a sewer pipe within it. A gate to the strip has been padlocked and protestors have recently occupied it. The Council seeks a declaration that the strip is a road and an injunction preventing persons obstructing the construction of the pipeline.
[3] Mr Faulkner, of Ngai Te Rangi, opposes the Council’s application. He contends that the strip of land is not a road, but always has been a Maori roadway providing access to the Tauranga foreshore.
[4] With the benefit of argument, the following key issues require resolution:
(a) Did Commissioner Brabant, in fact, lay out a public road over the affected land?
(b)Did Commissioner Brabant have the authority to lay out a public road over the affected land?
(c) Did the Public Works Act 1883 apply to the affected land (with the effect that it was deemed to be a public highway)?
(d) Is the land a Maori roadway?
[5] If the answers to (a) – (c) are “no”, and the answer to (d) is yes, then a proper
basis for declaring the land to be a public road will not have been established. If the
1 As noted by the Waitangi Tribunal in Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims (Wai 215, 2004) [hereinafter “the Tribunal Report”], Government officials and others used the term ‘Ngaiterangi’ as shorthand for all Tauranga Maori in the nineteenth century, as distinct from the term ‘Ngai Te Rangi’ which in this judgment refers to the hapu that claim descent from the ancestor Te Rangihouhiri.
answer to (d) is no, further proceedings may be necessary to determine whether the strip may be used for a sewer pipeline.
A History
[6] In April 1864 British Troops attacked Pukehinahina or Gate Pa, suffering a humiliating defeat. This would be avenged at Te Ranga in June the same year.2
Governor Grey sought peace through cession, while the colonial Government sought confiscation.3 The latter prevailed. Confiscation of all of “Ngaiterangi” lands was made by Order in Council dated May 1865, pursuant to the New Zealand Settlement Act 1863. A “District” was declared. But, as Grey had promised,4 the Order in Council provided that three-quarters of the land be set apart for “Ngaiterangi” after due inquiry.
[7] The Tauranga District Lands Act 1867 validated the confiscation and declared that, notwithstanding anything in the Order in Council, the “whole of the said land was duly and effectually set apart preserved and taken under the Act”. The effect of this was to vest some 290,000 acres in the Crown, thereby extinguishing customary title.5 Ultimately the area retained by the Crown was about 50,000 acres as confiscated land, with a further 93,000 purchased by the Crown as the Te Puna- Katikati blocks. 6
[8] Commissioner Brabant, also a local magistrate, was assigned the task of surveying the district.7 He completed his survey of the district in about 1883 and lodged it with the Chief Surveyor. The survey plan was numbered ML5651.
[9] The survey plan shows the Matapihi Peninsula comprising a number of allotments to be granted in Ngai Te Rangi members. The strip of land in focus is
2 The Tribunal Report at Chapter 4 (see, in particular, at 94–101).
3 At 123
4 At 136ff. The promise is recorded by Tribunal as: “I promise you that in the ultimate settlement
of your lands the amount taken shall not exceed one-fourth part of the whole lands”. It is a matter of debate as to whether Governor Grey was addressing only rebel land. The Tribunal found that this was the understanding of the Tauranga Maori, while the Crown’s intention may have been the entire lands of Ngai Te Rangi.
5 Faulkner v Tauranga District Council [1996] 1 NZLR 357 (HC) at 360–361.
6 The Tribunal Report at 149.
7 He followed on from Commissioners Mair and Clarke.
shown as abutting the boundaries of the Otumoko, Ohuki 1, Ohuki 2 and
Wharawhara blocks. The relevant plan is attached, with the strip of land highlighted.
Traditional and current use
[10] Mr Faulkner explained that the strip has always, and still provides, a pathway for the locals on the peninsula to the Tauranga foreshore for, among other things, seafood gathering purposes. It also currently provides access to houses and properties along it.
The Southern Pipeline
[11] The Council’s account of the Southern Pipeline project is not disputed
(except in relation to the description of the strip) and is reproduced here:
The Southern Pipeline will be a large capacity wastewater trunk main pipeline (approximately 800mm in diameter). It will run between the Maleme Street Pump Station and Te Maunga Waste Water Treatment Plant in Tauranga. It has been designed to help meet the increased wastewater needs of the City of Tauranga arising from urban growth, and to also relieve pressure on the existing wastewater network which has now reached capacity. The budget for the Southern Pipeline project is approximately
$99.2 million.
Planning for the project commenced in 2005. Comprehensive consultation with iwi and the community was undertaken as part of the resource consenting process. A full notified hearing process for the project also took place. A number of resource consents are held for the project. These have been the subject of full consultation, including specific dealings with the local and affected hapu.
The Southern Pipeline route was specifically designed so as to align entirely within Crown or Council land (save for two limited exceptions which are not relevant for the purpose of this proceeding). The Southern Pipeline along Matapihi Peninsula aligns within Matapihi Road and the Paper Road (save for a portion of the pipeline where it crosses Crown land subject to an easement).
Physical works for the project began in January 2009. As at early May 2016, the project was due to be completed in January 2017. As at April 2016, $62.7 million has been spent on the project. Due to its size, the project has been undertaken in a number of separate parts with construction being undertaken at various locations at any one time. There are currently four sections of the project which are yet to be completed.
One of the sections yet to be completed is the portion of the pipeline which passes along the Paper Road. This section once completed will be 540
metres. It is currently only partially complete. Construction along the Paper Road was originally scheduled to be completed by September 2015. However, as explained below, the Council has been unable to gain access to the Paper Road for construction since May 2015 (save for one one limited occasion).
Maori Land Court proceedings
[12] An application by Mr Faulkner for an injunction in the Maori Land Court to prevent the construction of the pipeline within the strip was declined because the subject land was not Maori Freehold Land or Maori reservation land and therefore beyond the jurisdiction of the Court.8
Procedural issues
Interested parties
[13] Mr Faulkner is named as the respondent because of his involvement in the Maori Land Court proceeding. Mr Faulkner (self represented at the hearing) also confirmed that local hapu groups had been advised of the proceedings. No applications to join or appearances on their behalf were made.
Originating application
[14] The Council seeks leave to commence these proceedings by way of originating application. Mr Faulkner does not oppose leave. Given this, I was content proceed on that basis. However, as matters unfolded,9 the issues could not be resolved on the affidavit evidence. Mr Neil, a survey plan expert for the council, was called and cross-examined. Additional submissions after the hearing were also required and provided on key issues, together with additional evidence. No objection
was raised to this process.
8 Faulkner v Tauranga City Council – Matapihi 3A2C1A (2015) 94 Waikato Maniapoto MB 36 at
61.
9 Mr Faulkner’s primary grounds of opposition were not made clear until the hearing. Once made clear, issues of fact were in dispute making the originating application process and resolution solely by way of affidavit evidence inappropriate.
The claims
[15] The Council’s claim to the strip can be stated succinctly:
(a) The land was taken by the Crown pursuant to an Order in Council, later validated by the Tauranga District Lands Act 1867;
(b) Commissioner Brabant was empowered by the Tauranga District Act
1867 and the New Zealand Settlements Act 1873 to survey the district to provide for settlement, including roads;
(c) The strip of Matapihi land in dispute was clearly laid out and marked as road, having been coloured burnt sienna, being the common survey method then used to identify public roads;
(d)Section 78 of the Public Works Act 1883 defined roads as a public highway, including “Crown lands over which a road is laid out and marked on the survey maps”;
(e) This “Paper Road” was vested in the Council pursuant to the Local
Government Act 1974.
(f) The land has been identified as a “road” in survey plans for more than
65 years.
[16] Mr Faulkner’s opposition can also be succinctly stated:
(a) The original survey plan does not clearly show that Commissioner
Brabant laid out and marked a “road” in burnt sienna;
(b)Commissioner Brabant did not possess the authority to lay out a public road because the Tauranga Lands Act 1867 did not permit the taking of lands for roads and the affected land was always to be returned to “Ngaiterangi”;
(c) The Public Works Act 1883 never applied to the land either as a matter of fact (because the strip was never a public highway) or as a matter of law. The Act did not apply to the affected land as it was never taken for the purpose of a public highway.
(d) The land is a Maori “roadway” as shown on the certificate of title to
the Otumoko block.
Assessment
[17] As foreshadowed at [4], four key issues are in focus.
Whether Commissioner Brabant, in fact, laid a public road over the affected land
[18] An issue of fact is whether the original survey plan shows the strip as coloured burnt sienna, there being no dispute that this colouring signified that a road was laid out.10 Copies of the plan produced to the Court were unclear. For example, an enlarged version produced by Mr Faulkner did not obviously show the strip as coloured burnt sienna in contrast to Matapihi Road which was clearly coloured burnt sienna. Nevertheless, Mr Neil, an expert on survey instruments11 attested to having viewed the original and observing that the strip was coloured burnt sienna on plan ML5651. He also opined that he could see burnt sienna in parts of the strip on Mr Faulkner’s version of the plan. While he was not shaken by cross-examination, I sought further independent evidence on whether the strip was so coloured.
[19] This further evidence was given by Richard William Barnaby. He was ably qualified to comment on survey plan ML5651.12 He confirmed that he was not aware of Mr Neil’s opinion. He opined that he located the subject land, describing it as two narrow lines millimetres apart. It appeared to him that the subject land may have been colour washed mid-brown – a similar colour to that which might also have been
used on Matapihi Road. However, given the poor condition of ML5651 and the
10 There was also no dispute that Commissioner Brabant was authorised to draft the survey plan pursuant to the Tauranga Lands Act 1867.
11 Mr Neal is an accredited supplier of property services to Land Information New Zealand.
12 Mr Barnabay is also an accredited supplier of property services to Land Information New Zealand. He has 50 years experience in the administration of land held by the Crown and territorial authorities.
narrow width of the subject land on the plan, he was unable to form a conclusive opinion as to the status based on the examination of ML5651 alone. Further investigations into the subsequent documented history of the site suggested to him that the subject land originally became road by operation of s 78 of the Public Works Act 1882.
[20] Contemporaneous documentary evidence tends to suggest that Commissioner Brabant laid out roads, but he did not consider that he could set aside roads to the use of the public. In a memorandum dated 24 October 1884, Commissioner Brabant advised the Under-Secretary of Native Affairs:
In cases where roads were in actual use or were required to give access to blocks surveyed by my order – I have caused those to be surveyed and placed on my plans and certificates. I do not think, however, that I have any legal power to set aside these roads to the use of the public and conclude that legislation will eventually be necessary to justify what I have done and to provide for future requirements.
[21] The issue of legality is then (purportedly) addressed in a letter from the Native Office to Commissioner Brabant, dated 4 March 1885, in which the Under- Secretary states:
In reply, I am directed by the Hon Native Minister to inform you that he is
advised that there is nothing specific in “a Tauranga District Lands Act
1867” as to the power to take lands for roads, but the Act declares that the lands affected shall be deemed to have been taken under “the New Zealand
Settlements Act 1863” and to be subject of its provisions.
Whatever law, therefore, is applicable to the taking of land for roads under the last-named Act is also applicable to this case of Tauranga lands unless, of course, there is any other special legislation affecting them.
[22] Subsequent documentation supports (though not uniformly) the conclusion that subsequent official treatment of the survey plan assumed the existence of a public road. The certificate issued in relation to Ohuki 2 block in 1885 refers to the
boundary of the strip as a “road line”13 and subsequent survey plans dated 1915,14
13 An affidavit produced by Mr Carlyle for the Maori Land Court proceeding by Mr Faulkner was included in the bundle of documents produced by the Council. In that affidavit Mr Carlyle attaches a certificate date stamped 27 January 1885 dealing with the Ohuki 2 block referring to a “road line” between this block and the adjacent Otumoko block. Mr Carlyle also observed in a report attached to the affidavit that the “land set out as road is not declared as road, it being not within the power of the Commissioner appointed”. I deal with the issue of law below, but the proposition of underlying fact accords with the documentary evidence.
1917,15 31 October 1961,16 8 September 1966,17 31 May 198318 and 21 July 200019
identify the strip as “Road”. This is to be compared with the certificate of title SA
10A/362 for a parcel of land adjacent to the strip which refers to a “Roadway”. Mr Neil accepted that “roadway” is commonly used to refer to a Maori Roadway. Related correspondence from the Maori Land Court to the Chief Registrar, however, also observed:
After searching thoroughly through my files I find that there is no record of an order laying out the roadway between the Ohuki and Otumoko blocks, nor can I tell from which block or blocks the road was taken.
Ohuki No. 1 was held under Certificate of Award made by the Commissioner of the Tauranga district (No. 198 dated 13 March 1885). This land, together with Ohuki 2 was combined and partitioned on 25 July 1914 into several pieces, 1G being one of them. No mention was made by the Court of the road in question when dealing with the partition of both the Ohuki and Otumoko blocks.
The diagrams received for Ohuki 1G which apparently were prepared from plan 9924 shows the roadway along the southern boundary as coloured sepia. This indicates to me that the roadway is a legal one. What the reason was for doing so I cannot say, but it appears that the road was in existence when the land was awarded to the Maori owners.
(Emphasis added).
Outcome
[23] The copies of the plan produced to the Court do not clearly show the strip as coloured burnt sienna, and there is some doubt about what the original survey plan now shows. Nevertheless, the combined weight of the evidence of the independent
14 The 1915 survey plan ML 9924 is a subdivision of Ohuki 1 and 2 Blocks into eleven parcels.
The plan shows the strip washed burnt sienna as is Matapihi Road on that plan: see Affidavit of
Richard William Barnaby sworn 30 May 2016 at [19](a).
15 The 1917 Survey Office plan SO 19834/3 is a plan of land to be taken for part of the East Coast
Main Trunk Railway. The railway crosses a portion of the subject land which is shown on SO
19834/3. It contains 23.4 perches. In the land taking proclamation of New Zealand Gazette of 28February, No. 28, page 598, this parcel is described as “Road”: see Affidavit of Richard William
Barnaby sworn 30 May 2016 at [19](c).
16 The survey plan is for the Otumoko A Block. It is Parent Plan ML 9924 and the Date of Orders
is 31 August 1959. The plan describes the parcel as “Public Rd 110A PW Act ML5651”.
17 The survey plan is for the Ohuki 1G1 and 1G2 blocks. It is Parent Plan ML 9924 and the Date of
Orders is 9 November 1950. The plan describes the parcel as “Road 50 links wide under sec
110A Public Works Act 1928”.
18 The survey plan is for the Otumoko B2. It is Parent Plan ML 21455. The plan describes the
parcel as “Matapihi Road”.
19 The survey plan is for the Otumoko B3 & B4. It is Parent Plan ML 22429. The plan describes
the parcel as “Matapihi Road Legal Road (2012 wide)”.
experts, together with the contemporaneous and subsequent documentary evidence, provides a sound basis for concluding that the strip was laid down as a road in burnt sienna and treated as if it were a road from as early as 1885. I am therefore satisfied that Commissioner Brabant laid out a public road in respect of access to the Matapihi blocks, including the Matapihi strip.
Whether Commissioner Brabant had the authority to lay a “public” road over the
lands to be returned
[24] The authority to deal with the confiscated lands is conferred by a combination of the Order in Council, Tauranga Lands Act 1867 and the New Zealand Settlement Act 1863 (the Raupatu legislation). The Order in Council was made pursuant to the 1863 Act. It declares:
[A]ll the lands of the tribe “Ngaiterangi” described in the Schedule to this Proclamation, shall be a District within the provisions of the “New Zealand Settlements Act, 1863,” and … that the said Lands are required for the purposes of the said Act and are subject to the provisions thereof, and doth order that the said Lands shall be and the same are hereby set apart and reserved as sites for settlements and colonization agreeably to the Provisions of the said Act; And … in accordance with the promise made by His Excellency the Governor at Tauranga, on the sixth day of August 1864, three-fourths in quantity of the said lands shall be set apart for such persons of the tribe Ngaiterangi as shall be determined by the Governor, after due enquiry shall have been made.
[25] The preamble to the 1867 Act refers to this background and also states:
And whereas pursuant to the terms of the said Order in Council inquiry has been made on behalf of the Crown by officers thereunto appointed and various arrangements have been entered into with persons of the said tribe concerning portions of the said lands. And whereas questions have arisen as to the effect of the said Order in Council and as to the validity of the said arrangements and it is expedient that the same should be carried out and that the estates and interests of the Crown under the said Order in Council and of persons claiming under such arrangements should be confirmed.
[26] Section 2 of the 1867 Act refers to this order, declares that all grants made pursuant to the Order in Council are valid and:
2. All grants awards contracts or agreements of or concerning any of the land described in the Schedule to this Act made or purporting to have been made pursuant to and in accordance with the terms of the said Order in Council of the eighteenth day of May one thousand eight hundred and sixty- five and all grants awards contracts or agreements of or concerning any of
the said lands hereafter to be made or entered into by the Governor or by any person or persons authorized by the Governor in that behalf which shall be consistent with the terms of the said Order in Council are hereby declared to have been and to be absolutely valid and none of them shall be called in question by reason of any uncertainty in the said Order in Council or of any omission or defect or departure of or from any of the forms matters or things provided by “The New Zealand Settlements Act 1863” “The New Zealand Settlements Amendment and Continuance Act 1865” and “The New Zealand Settlements Acts Amendment Act 1866” or either of the said Acts…
[27] And further:
… that notwithstanding anything in the said Order in Council to the contrary the whole of the lands specified in the Schedule to the said Order in Council or in the Schedule hereto were by the said Order in Council duly and effectively declared to be a District within the provisions of “The New Zealand Settlements Act 1863” and that the whole of the said land was duly and effectually set apart reserved and taken under the said Act as sites for settlements for colonization and was duly and effectually declared to be required for the purposes of the said Act and to be subject to the provisions thereof.
[28] Section 3 states that the words “due inquiry” in the Order in Council shall be deemed and taken to extend to inquiries made and carried through by persons appointed by the Governor. This was the process undertaken by Commissioner Brabant.
[29] The 1863 Act conferred on the Governor the power to take lands for settlement purposes from any Native Tribe that had from 1863 “engaged in rebellion” without compensation.20 The purpose of this scheme was stated by the then Minister of Native Affairs, Sir William Fox:21
I intimated on a previous occasion that the basis of the Government scheme was the introduction of so strong a population into the disturbed districts of the colony that, for the future, the Natives might be deterred from all hope of successful resistance to the establishment of law in the Northern Island …
What is required is a large population, practically outnumbering that of the Natives in those districts where rebellion exists, or may exist; to be permanently settled, with ownership of the land, so that they may not only have an interest, but the ability to defend their homes from future aggression; and to effect this the Government looks to the lands of those tribes who have been in rebellion. There is no injustice in taking the lands of such tribes, not by way of punishment, or of reducing the tribes from the position they now
20 New Zealand Settlements Act 1863, ss II and V.
21 New Zealand Settlements Bill (5 November 1863) NZPD 782 at 782–783.
hold, but simply as a substantial guarantee for the future peace and consolidation of the colony.
[30] For present purposes the operative sections of the 1863 Act state:
III. Governor in Council may set apart sites for settlements
It shall be lawful for the Governor in Council from time to time to set apart within any such District eligible sites for settlements for colonization and the boundaries of such settlements to define and vary.
IV. Governor in Council may take land for such settlements
For the purposes of such settlements the Governor in Council may from time to time reserve or take any land within such District and such Land shall be deemed to be Crown Land freed and discharged from all Title Interest or Claim of any person whomsoever as soon as the Governor in Council shall have declared that such Land is required for the purposes of this Act and is subject to the provisions thereof.
…
XVI Towns &c. to be laid out on land subject to this Act for Military
Settlers
On part of the Land subject to the provisions of this Act the Governor shall cause to be laid out a sufficient number of Towns and Farms around or as near as conveniently may be to the same to give full effect to the provisions of the several Contracts heretofore or hereafter to be entered into by or on behalf of the Government of New Zealand with certain persons for the granting of land to them respectively in return for Military Service on the terms in and subject to the Conditions of the said Contracts respectively expressed and the several persons who shall have been enrolled under the said Contracts respectively shall be entitled to such Town and Farm Sections in conformity with the provisions of the said Contracts. Provided always that it shall be lawful for the Governor with the consent in writing of any person entitled under such Contracts to vary the Conditions thereof as regards such person as the Governor in Council may think fit.
XVII Governor in Council may cause remaining land to be laid out in
Towns &c.
After setting apart sufficient land for all the persons who shall be entitled thereto under the said Contracts it shall be lawful for the Governor in Council to cause towns to be surveyed and laid out and also Suburban and Rural allotments.
XVIII. Land to be disposed of according to regulations to be made by the Governor in Council
All such Town Suburban and Rural Land shall be let sold occupied and disposed of for such prices in such manner and for such purposes upon such terms and subject to such Regulations as the Governor in Council shall from time to time prescribe for that purpose.
[31] In summary, the Raupatu legislation confiscated all land within the Tauranga District for settlement purposes, validated grants already made, or to be made pursuant to the Order and conferred on the Governor General the power to:
(a) Set “apart three fourths of the land for return to members of the tribe Ngaiterangi as shall be determined by the Governor, after due enquiry shall have been made”;
(b)Set “apart within any such District eligible sites for settlements for colonization and the boundaries of such settlements to define and vary” (section III);
(c) Set “apart sufficient land for all the [military settlers] entitled under said Contracts” (section XVII);
(d) Cause “towns to be surveyed and laid out and also Suburban and
Rural allotments” (section XVII); and
(e) Enable all such Town, Suburban and Rural allotments to be “let, sold and disposed of for such prices in such manner and such purposes as regulations as the Governor in Council prescribed” (section XVIII).
[32] While there is no express power to lay out roads, statutory powers will be implied where they are clearly necessary to give effect to the legislative object and
any express powers.22 Plainly the laying down of public roads was a reasonable
22 The “reasonably incidental” doctrine provides that “a public body may do all that is reasonably incidental to, or consequential upon, the exercise of its express powers and achievement of its lawful objects” (see Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 652 and 655, citing Ashbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653 (HL); Attorney-General v Great Eastern Railway Co (1880) 5 AC 473 (HL) and Attorney General v Fulham Corp [1912] 1 Ch 440). There is no question that this principle forms part of New Zealand law: Commerce Commission v Telecom Corporation of New Zealand Ltd [1994] 2 NZLR 421 at 430 (CA). Joseph describes the essence of the doctrine to be that “the conferment of an express power also confers an implied power to do all that is reasonably incidental to make effective the express power”. When applying the doctrine, the courts take a liberal approach: “[I]n deciding what can fairly be regarded as incidental to express powers, the Courts do not think narrowly. They bear in mind the public nature of the obligations of a local body and the requirements of its community, and they take a liberal view of the power under consideration” (Attorney-General ex relatione Lewis v Lower
incident of these powers. The settlement objective of 1863 and 1867 legislation and the use of the allotments to be sold could only be sensibly achieved by the laying down of public roads.23
[33] A residual issue nevertheless is whether roads on lands set apart to be returned to Ngai Te Rangi could be lawfully assigned for use as a public road. As noted, Commissioner Brabant appeared to deny that possibility in his note of 1884. The basis for this view was not expressed in any detail by the Commissioner (in the evidence before me), and Mr Faulkner did not elaborate save to say that “Returned lands” were not kinds of land for the purpose of settlement. I surmise a more detailed
submission might comprise the following elements.24
[34] First, the 1867 Act did not expressly rescind the promise made by the Governor General to set apart for “Ngaiterangi” three quarters of their land pursuant to the 1863 Act by Order in Council.
[35] Second, the lands set aside to be returned to “Ngaiterangi”, once identified, do not fall into any of the types of land expressly set apart for settlement and sale, as contemplated by the 1863 Act.
[36] Third, the Parliamentary records do not assist on issue of roads, and more generally suggest that the legislators intended to set apart and return land to “Ngaiterangi”- as promised. Mr J C Richmond is recorded as saying that “the [1867] Act would not validate anything but the arrangement made in 1884”. There are also references to expectations that the areas surveyed for settlement would be within the “the limits prescribed in 1884”.
[37] Fourth, it seems available to assume that Commissioner Brabant would have been fully cognisant of the background of the legislation, survey practice and the
local context when forming his opinion about the effect of his survey plan and ability
Hutt City [1964] NZLR 438 (CA) at 462.)
23 A similar view was reached by Goddard J in Te Runanga o Ngati Awa v Attorney General [2004]
2 NZLR 252 (HC) at [34]
24 Mr Faulkner was not represented by Counsel and was unable to fully articulate the basis for finding lack of authority. I foreshadowed the following line of argument in a minute after hearing (but before the case was closed) to the parties and invited submissions.
to lay down roads for public use over lands to be returned to “Ngaiterangi”. Relevantly, “the commissioner was a Native Land Court Judge and was fulfilling a function virtually identical to that which he would perform under the Native Land Court Act.”25
[38] But this analysis belies the full context. As thoroughly explained by Blanchard J in Faulkner v Tauranga District Council,26 the Raupatu legislation converted all land within the Tauranga District from Maori customary land to Crown land and made it available for settlement purposes. The 1867 Act also validated all existing and future agreements dealing with the same land, including agreements reached with “persons of (Ngaiterangi)”.27 This inevitably led to the fragmentation of Ngai Te Rangi land. As the Tribunal Report on the Tauranga Raupatu observed, the individualisation of customary title was unilateral and deliberate,28 and the Commissioners were largely left unfettered to identify, allocate and return land to Ngai Te Rangi (or other Tauranga Maori) on whatever basis they thought appropriate.29 The legality of this process is not before me, but a power to lay down roads to provide access, where necessary, to and through such fragmented land was logically incidental to the power to return the land to Ngai Te Rangi in separate titles.
Necessity?
[39] I am not at all attracted to the Council’s reliance on the principle of omnia praesumuntur rite et solemniter esse acta – that all things are presumed to be done
correctly unless the contrary is proved.30 As the Privy Council asseverated in
25 An observation made by Blanchard J in Faulkner v Tauranga District Council, above n 5, at
364-365.
26 At 363-365
27 Refer to the preamble to the 1867 Act set out at [25]; the Tribunal recounts examples of land returned to individual Maori to be on sold.
28 The Tribunal Report at 303–306.
29 At 287. The Native Land Court procedure was effectively bypassed and no similar procedure imposed – see also the discussion at [10.6.3] of the Tribunal Report.
30 Citing Mayor of Wellington v Stafford and the District Land Registrar [1927] NZLR 552 (SC).
The Supreme Court applied the omnia praesumuntur rite et solemniter esse acta principle as one reason for finding that the affected Native title was subject to a road as per the survey plan for the site. The Court could not identify whether consent for the change to the survey plan from a previous version was given, but assumed that the Crown must have acted properly. With respect to the Judge, such presumptive reasoning no longer bears scrutiny. As noted below, the assertion of title by the Crown is to be treated as pleading only.
Nireaha Tamaki v Baker,31 the assertion of title by the Crown should be treated as pleading only.32 To be fair to the Council’s submission, this is not a case of asserted or disputed title. The strip was Crown land from 1867, laid down as road by Commissioner Brabant in 1883 and largely treated on survey plans as a public road for 100 years or more.33 The remaining issue is simply whether a road was necessary.
[40] Unhelpfully, there is a paucity of evidence on this issue. Mr Faulkner observed that access to individual lots can be achieved by way of Matapihi Road rather than the strip. But he also observed that the strip has always provided access to the foreshore for seafood gathering purposes. The requirement to preserve this access would have been evident to Commissioner Brabant, especially if, as must have been anticipated by 1883, individual allotments might be on sold. While we cannot know whether this informed his decision to lay out the strip as road, the preservation of historic access to the foreshore provides a proper presumptive basis for it and accords with the Commissioner’s self description of the process followed, namely to lay out roads over existing access ways.
Outcome
[41] Commissioner Brabant’s opinion reflected a cautious appreciation of the literal limits of the specific powers conferred on him to survey the land for public use. But the Raupatu legislation stimulated a radical change in the relationship of Ngai Te Rangi (and other Tauranga Maori) with their land through legislated confiscation and individualisation of title, enabling sale to Pakeha by individual Maori, which in fact commenced soon after the confiscation.34 The laying down of roads on what was Crown land, where necessary, for the purpose of achieving the settlement of the Tauranga District via, among other things, the individualisation of
customary title, was a logical and necessary incident of the Raupatu legislation. On
the evidence available to me, a narrower reading of this legislation, and any
31 Nireaha Tamaki v Baker [1901] AC 561 (PC).
32 At 576. See also Wallis v Solicitor-General [1903] AC 173 (PC) at 188; Attorney-General v
Ngati Apa [2003] 3 NZLR 643 (CA) at [47] (per Elias CJ).
33 See discussion below n 37.
34 The Tribunal Report at 298–306.
correspondingly enhanced recognition of customary relationship, would be an exercise in historical revisionism.
[42] Whether the laying down of road over the Matapihi strip was necessary is a matter of factual dispute and difficult to resolve conclusively at this distance from Commissioner Brabant’s decision to designate the strip as a road. Nevertheless, the preservation of historic access to the foreshore provides a presumptive basis for it. Accordingly, a finding of illegality is not available on the evidence before me.
Whether the Public Works Act 1883 applied to the affected land (with the effect that it was deemed to be a public road)
[43] Section 78 of the Public Works Act 1883 states:
78 Definition of Road
Throughout this Act, the word “road” means a public highway, whether
carriage-way, bridle-path, or footpath, and includes the soil of–
(1) Crown lands over which a road is laid out and marked on the survey maps;
(2) Lands over which right of way has in any manner been granted or dedicated to the public by any person entitled to make such grant or dedication;
(3) Lands taken for roads under the provisions of this Act or any other
Act or Ordinance
and, unless repugnant to the context, includes all roads which have been or may hereafter be set apart, defined, proclaimed, or declared roads under any law or authority for the time being in force, and all bridges, culverts, drains, ferries, fords, gates, buildings and other things thereto belonging upon the line and within the limits of the road.
[44] All roads as defined are vested in the Crown by s 79, which states:
79 Roads vested in the Crown
All roads and the soil thereof, and all materials and things of which such roads are composed, or which are capable of being used for the purposes thereof, and are placed or laid upon such roads, are hereby dedicated to be and are hereby vested in her Majesty.
[45] Mr Faulkner’s contends that the strip was not (and never has been) in use as a
“public highway” as at 1883 and therefore not a “road”. But section 78 states
“throughout the Act road means a public highway”, and includes “Crown Land over which a road is laid out.” Tautology aside,35 it is obviously a deeming provision, intended to encompass all roads laid out on Crown land so as to bring them within the public works umbrella. It was not necessary for them to be expressly set aside for, or in, public use, or even physically laid out at the time. That has been the settled position since decision of the Court of Appeal in Kaikoura County v Snushall.36 This statement of law coincides with the fact that the strip has been treated as if it were a public road from (at least) 1915.37
[46] A subsidiary issue is whether, if Commissioner Brabant did not lawfully lay down a public road, the Public Works Act 1882 applied to nevertheless convert it into a public road. This is a vexed issue of law and fact on which there has been sparse argument (especially argument contradicting the Council case). I therefore do not propose to address it.
Whether the land is a Maori roadway
[47] “Maori roadway” is a roadway laid out in accordance with Part 14 of the Te Ture Whenua Maori Act 1993 (TTWMA). This mirrors the definition of Maori roadway ascribed in preceding Maori lands legislation.38 It provides a regime whereby the Maori Land Court or Maori Appellate Court may lay out roadways for
the purpose of providing access, or additional/improved access, to land.39 There is
35 If road means public highway, Crown Land over which a “road” is laid out must literally refer to land over which a “public highway” is laid out. It is arguable that the tautology may have been intentional, that is to make clear that public highways over Crown Land were included. But there is nothing before me to suggest that such a distinction was ever made in fact in respect of Crown land.
36 Snushall v Kaikoura County [1920] NZLR 783(CA).
37 At 800, Stout CJ found that certain strips of land had been laid out as roads for several reasons that included the fact that district plans had treated the land as roads, the land had been treated under the Land Transport Act 1908 as roads, the certificates of title showed the roads and the roads were marked on subsequent plans in the way roads have always been marked.
38 See Maori Affairs Act 1953, ss 414–432; Native Land Act 1931, ss 476–490; Native Land
Amendment Act 1909, ss 48-53; Native Land Act 1909, s 117. The earlier legislation (the Native Land Act 1886, ss 91–93 and the Native Land Court Act 1894, s 69) differed more widely from the TTWMA in that they conferred upon the Governor the power to take land for roads without the road first being laid out by the Court.
39 See, in particular, Te Ture Whenua Maori Act 1993, s 316.
also a residual power for the Governor General to declare a Maori roadway a “road”
or “street” (as defined in the Local Government Act).40
[48] But there is no clear evidence to suggest that this jurisdiction has ever been triggered in relation to the strip. The “Roadway” description of that part of the strip adjacent to the Otumoko block on certificate of title SA 10A/362 was erroneous insofar as purported to show that the land was to be used as a Maori roadway only.
Declaration and Injunctive relief
[49] The basis for a declaration that the strip of land is public road vested in the Council has been established. Mr Faulkner did not contend that an injunction could not be granted if I was satisfied that the strip was public road vested in the Council. Given the evidence of adverse interference in the construction of the pipe line,
injunctive relief is appropriate.41
Outcome
[50] I am satisfied on the evidence that the strip of land was laid down on Crown land as a road and coloured burnt sienna by Commissioner Brabant in (or about)
1883. The effect of this is that the strip was treated in fact as a public road, as shown on subsequent survey plans, and subject to the Public Works Act 1882 with the result that it was deemed to be a public highway. Subsequent legislation, culminating in the Local Government Act 1974, meant that the strip was vested as a paper road in the Council.
[51] Accordingly there shall be the following orders:
(a) A declaration that the land known as the Paper Road on Matapihi
Peninsula, Tauranga is a legal road vested in the Council.
40 Sections 320–321.
41 Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853 (EWCA) at 858. See also Bill Atkin “Trespassing on Land” in Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 481 at 513.
(b)An injunction requiring any person obstructing construction of the Southern Pipeline on the Paper Road to leave the Paper Road and to remove any property that they brought onto the Paper Road (including removing the padlock from the gate on the Paper Road); and
(c) In the event of those persons not complying with the order in [51](b), an injunction entitling the Council by its agents or servants to remove any property from the Paper Road subject to an inventory and to take any such property to a depot or other place available to its owner on proof of ownership without charge.
[52] There is no issue as to costs.
Addendum
[53] I first wish to acknowledge the submissions of Ms Hall for the Council. Some care has been taken to bring to my attention evidence and authority both favourable and unfavourable to the Council’s position, including in response to matters raised by me. Mr Faulkner is also to be commended for his focused and principled approach to opposing the applications. The threads of their argument run through my judgment. But, notwithstanding the efforts made by them, I strongly caution against future use of the originating application procedure in cases like this. The complex issues of law and fact that arose (albeit belatedly) in this case were ill-suited to that procedure. While I am satisfied that the issues have been properly ventilated by the hybrid approach taken, if the matter were not one of some urgency, I would have insisted on full pleadings, interlocutory steps and evidence.
[54] While it has had no bearing on the outcome of the application, I also wish to record the Council’s commitment to returning the strip to the local hapu once the sewer pipe has been installed.
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