maoru land court a20080002328 - ministry of justice · in the maoru land court of new zealand...

123 Whakatane MB 150

IN THE MAoru LAND COURT OF NEW ZEALAND WELLINGTON

A20080002328

UNDER Section 19, Te Ture Whenua Maori Act 1993

IN THE MATTER OF Ruatoki B23, Ruatoki B32, Ruatoki B33B2C2, Ruatoki B79 and Ruatoki B35B2 - Injunction

BETWEEN TE TAW A KAITI LANDS TRUST Applicant

AND

AND

TUHOE PUTAIAO TRUST Respondent

THE ATTORNEY-GENERAL Interested Party

COUlt: Judge S R Clark Judge C T Coxhead

Appearances: Peter Jolm Marshall, for the Applicant Jason Pou, for the Respondent Darnen Ward, for The Crown

Judgment: 19 December 2008

RESERVED DECISION OF JUDGE C T COXHEAD AND JUDGE S R CLARK

Introduction

[1 J Te Kawa Kaiti Lands Trust (Applicant) seek an injunction against the trustees

of the Tuhoe Putaiao Trust (Respondent) requiring them to vacate certain lands and

to stop extracting metal frolll a beach area adjoining the Whakatane River.

Te T,w, Kaiti l.ands Trust V Tuhoc Put,;.o Trust MLC WN A200S0002328 [19 December 2008) ~


Background

[2] The Applicant is the owner of certain blocks of Maori freehold land, they

being Ruatoki B23, Ruatoki B32, Ruatoki B33B2C2, Ruatoki B79 and Ruatoki

B35B2 {"the Applicant's lands").

[3] The Applicant has also filed substantive proceedings seeking the

determination of the status and ownership of lands, extending from the Applicant's

lands to the middle of the Whakatane riverbed. This area includes the beach from

which gravel is being extracted. In the substantive proceedings the applicant argues

that the Whakatane river is non-navigable. Thus they invoke the ad medium filum

aquae principle and argue that the land the subject of those proceedings is Maori

freehold land.

[4] The Respondent has a resource consent to extract metal from the area in

question.

[5] Recently the High Court examined the test to apply when ascertaining the

navigability of rivers. That decision being Paki & Ors v Allorney General (HC,

Hamilton, 30 July 2008, CIV-2004-419-000017, Hanison J). We are informed by

Counsel that decision has been appealed to the Court of Appeal.

[6] The navigability or otherwise of the Whakatane river will be a key factual

issue which will need to be determined in the substantive proceedings. The legal test

to apply when determining the navigability of a river will also be a key issue in the

substantive proceedings.

[7] In February of this year the Applicant sought an injunction pursuant to

section 19(1 lea) of Te Ture Whenua Maori Act 1993 {"the Act") seeking to prevent

the extraction or removal of metal from the same area of land adjacent to the

Whakatane river. On 22 February 2008 the Applicant withdrew their injunction

application.

. .. _----_.


[8] The Applicant has now filed a new application for an injunction dated

25 November 2008, pursuant to sections 19(1)(a), 19(1)(b) and 19(1)(c) of the Act.

[9] The Respondent filed a notice of opposition on 3 December 2008 opposing

the injunction on the basis that the Whakatane riverbed is not, Maori freehold land, a

Maori reservation nor is it wahi tapu and , furthermore the actions of the Respondent

do not amount to trespass or causing injury to Maori freehold land,

[10] The Crown opposes any injunction sought pursuant to section 19(1)(a) or (c)

on the basis that to grant an injunction the Court must first find that the land is Maori

freehold land, wahi tapu or Maori reservation. Such a finding would effectively

determinc the substantive issue before the Court and that section 19 should not be

used to defeat the substantive hearing, In relation to any injunction sought pursuant

to section 19(1)(b) the Crown abides the Court's decision on whether an interim

injunction may issue.

Judicial Conference - 12 December 2008

[I I] A judicial teleconference for these proceedings was held on 12 December

2008, Prior to the judicial teleconference Judge Clark issued directions (123

Whakatane ME I 16) which set out the purpose of the judicial teleconference being

to:

a) Review compliance of the timetable set out in the sixth memorandum

direction (9 Conference ME 158 - 159);

b) Hear submissions from all paliies as to when a substantive fixture

should be held;

c) If a fixture is allocated, the dates for opening and closing submissions,

the order of presentation of cases and cross examination, the logistics

of a site visit; and

d) Hear submissions concerning the injunction currently sought by the

Applicant.


[12) Following the judicial teleconference the Respondent filed a supplementary

submission dated 12 December 2008. The Respondent sought leave to file the

supplementary submission. Leave is granted.

[13] We invited Counsel for the Applicant to seek instructions on whether the

Applicant would provide an undertaking as to damages in respect of the interim

injunction. We received a memorandum of Counsel dated 17 December 2008 along

with an undertaking provided on an interim basis. The memorandum of Counsel

also contained further submissions concerning the interim injunction, which we have

considered.

Review compliance with the timetable

[14) Having heard from the parties and seeking to ensure that the evidence is

completed in a timely fashion the following directions are made:

a) Leave is granted to the Crown to file out of time the briefs from Mr

Parker dated 4 November (second brief), 10 November (third brief)

and 4 Decem bel' (fourth brief);

b) Any further evidence in response to the evidence of Mr Parker to be

filed and served by the Applicant by 6 March 2009; and

c) Any fm1her evidence is to be filed and served by any party by 3 April

2009.

Substantive fixture

[I 5] The Applicant seeks a hearing of the substantive matter as soon as possible,

unless they can obtain an injunction.

[16) In summary, the Applicant agrees there is merit in the adjournment of the

hearing of proceedings until the appeal of the Paki & Ors v AI/orney General

decision is determined , however a lengthy adjournment will prejudice them, as the

extraction of metal continues in the meantime.

' . ",-'---_. __ ._._ ",,,'


(17J The Crown submits that no fixture should be set for this matter at present.

The matter should await the Court of Appeal's decision in the Paki & Ors v Allol'l1ey

General appeal.

[18J The Respondent submits that no fixture should be granted until the outcome

of the Paki & Ors v Al/ol'l1ey General appeal is known. Counsel updated the Court

as to where matters were at with the appeal in that a notice of appeal has been filed

and while no fixture date had been sought, this needed to be done by the end of

January 2009.

[19J All parties agree that the Paki & Ors v Attorney General COUlt of Appeal

decision, when delivered, will be of assistance to these proceedings. We understand

from Counsel for the Respondent and the Crown that the Court of Appeal will be

asked to examine the test for navigability adopted by Harrison J.

[20J We have carefully considered the merits of proceeding to a hearing prior to

the decision of the Paki v AI/orney General appeal being delivered. It is our view

that to proceed to a hearing of the substantive matter, in the full knowledge that an

area of law relevant to this matter is before the Court of Appeal, is not sensible or

desirable. This Court is bound to apply the principles of law laid down by Courts of

higher authority. All parties and the Court are on notice that a matter of legal

relevance to these proceedings is before the COUlt of Appeal.

[21 J It is impOltant for all parties and the Court that there is some certainty with

regards to the relevant law for these proceedings. With the Paki & Ors v Allorney

General appeal in train there is not the desired certainty. The applicable law could

change, or it could stay the same. We do not know.

[22J It is Ollr assessment that in balancing all considerations it is best to await the

decision of the Court of Appeal rather than proceed to a hearing now.

---------_ . . -._,,_ .. - ---


Dates for opening and closing submissions, the order of presentation of cases

and cross examination and the logistics of a site visit

[23] Given a fixture is not to be allocated at this stage we defer providing

direction as to the dates for opening and closing submissions, the order of

presentation of cases and cross examination, the logistics of a site visit.

Application for Injunction

[24] The Applicant seeks an injunction against the Respondent under section 19 of

Te Ture Whenua Maori Act 1993 (Act):

a) requiring the trustees to vacate Ruatoki B23, B32, B33B2C2, B79,

and B35B2 (the specified land); and

b) to prohibit the hustees from extracting or removing metal already

extracted from the riverbed where the specified land adjoins the

Whakatane river.

[25] The Applicant's grounds for the injunction are that:

a) There are proceedings pending before the Court and an order by way

of injunction is required to prohibit the Respondent from dealing with

or doing any injury to any property that is the subject matter of the

proceedings or that may be affected by any order that may be made in

the proceedings (section 19(1 )(b) of the Act);

b) The Respondent is trespassing or causing other injury to the Maori

freehold land of the Applicant (section 19(1 lea) of the Act); and

c) The Respondent is not an owner or any other person with lawful

authority over the land ill question and an order by way of injunction

is required to prohibit the Respondent from removing or authorising

the removal or otherwise making any disposition of any metal or other

123 Whakalane MB 156

substances from the Applicant's Maori freehold land (section 19(1)(c)

of the Act).

[26J The Applicant has applied for orders determining the status and ownership of

the land in question being the beach area and riverbed where the specified land

adjoins the Whakatane River. In the meantime the Respondent continues to extract

and remove metal from that area.

[27] The Applicant initially sought an injunction in these proceedings but

withdrew the application on the basis that damages would likely provide a sufficient

remedy in the event that the Applicant's damage claim is successful. The Applicant

now says that circumstances have changed and damages will not provide a sufficient

remedy:

a) having regard to the value and volume of metal being extracted and

removed from the land;

b) the refusal of the Respondent to supply a sufficient undertaking or

security for damages; and

c) the prospect of substantial delay of the hearing to determine status and

ownership of the land in question.

[28J The Respondent opposes the injunction on the grounds that: the Whakatane

riverbed is not Maori freehold land, a Maori reservation, nor is it waahi tapu; and the

actions of the Respondent do not amount to a trespass nor do they cause any other

injury to the Maori freeho ld land of the Applicant.

[29] The Crown opposes the injunction as it relates to an application for land

status declaration orders over the specified blocks. The Crown submits that in

granting an injunction under sections 19(1)(a) or 19(1)(c) the Court is effectively

determining the substantive issue bcfore the Court. Section 19 should not be used to

defeat the substantive hearing.

-_. __ ....... , ....... ' ~-" - -.............. .... .


(30) We agree with the Crown that to grant an injunction pursuant to sections

19(1 lea) and or 19(1 )(c) of the Act would require the Court to first determine the

status of the land in question including the riverbed. The land status is an issue in

the substantive hearing.

[31) We therefore decline the il~unction application in terms of sections 19(1)(a)

and 19 (I)(c). That leaves 19(1)(b) for the Court's consideration.

Section 19(1)(b) of the Act

Jurisdictioll

[32) One of the issues raised and discussed at the recent telephone conference was

the ambit of section 19(1 )(b). The Applicant argued that the Court had jurisdiction

to consider an injunction under this subsection of the Act. Furthermore, that any

consideration under this subsection does not require a consideration of whether or

not land the subject of the proceeding was Maori freehold land, walli tapu or Maori

reservation.

[33) In terms of section 19(1)(b) of the Act the Crown submits that it will abide by

the Court's decision on whether an interim injunction is issued. The Crown submits

that an injunction on this ground does not require a finding about ownership or

boundaries of the specified land or the adjoining land. The Crown notes that should

an injunction be granted it should be an interim injunction applying only until the

date of judgment in the substantive hearing.

[34) The Respondent submits that section 19(1)(b) confers jurisdiction of a

procedural nature and is restricted to Maori freehold land. Further Counsel contends

that with Counsel for the Applicant accepting that the land in question is not

currently Maori freehold land, the Court has no jurisdiction to grant the injunction

that is sought.

[35] The Court'sjurisdiction to grant injunctions is provided by section 19:

. . ... _----


J 9 Jurist/ietioll ill respect of injllllctioll

(1) The Court, 011 application made by any person interested or by the Registrar a/the COllrl, OJ' 0/ its own motion, may at any lime issue an order by way of injunct;on-

(a) Against any person in respect of any actual or threatened trespass 01' oliler injury 10 any Maorifreehold landl Maori reservation, or wah; IOpU}: or

(b) Prohibiting any person, where proceedings are pending before the COllr' or lilt! Chief Judge, from deaNJlg wilh 01' doing any injury (0 any property thaI is the sllbjec/#matler oj the proceedings or Ihal may be af/ee/ed by any order thaI may be made in the proceedings; or

(c) Prohibiting any owner or any other person or persons without law/ul authority from clilting or removing, or authorising the cutting Or removal, or otilel1vise making any disposition, 0/ any timber trees, timber, or other wood, or any flax, (ree ferns, sand, topsoil, metal, minerals, or other substances whether usually quarried or mined or 110t, on or/rom any Maori /reehold land; or

(d) Prohibiting the distriblilion, by any trustee or agem, 0/ relll, purchase mOlley. royalties, or other proceeds of (he alienation 0/ land, 01' of any compensation payable ;n respect 0/ olher I'eve/lue derived from the land, affected by any order to which an application under secrion 45 a/this Act 01' an appeal under Part 2 a/this Act relates.

(2) Notwithstanding anything in the Crown Proceedings Act 1950, any injunction made by the Court under this section may he expressed to be binding on the Maori Trustee.

(3) Any injunction made by the Court under this seclioll may be expressed to be of imerim effect only.

(4) Every injunction made by the Courl under this section that is nOI expressed to be of interim effect only shall be affinal effect.

(36) Section 19(1)(a) and (c) clearly relate to Maori freehold land. Section

19(1)(b) makes no reference to Maori freehold land. The wording of section 19(1)(b)

is clear and unambiguous. It is clear that the ambit of this section is not limited to

Maori freehold land in the use of the words "any properly that is the sllbject mailer

of the proceedings". Section 19(1)(b) is not limited to Maori freehold land in the

salile way as sections 19(1)(a) and (c).

(37) If it was intended that section 19(1)(c) be limited to Maori freehold land only

the section should have stated "prohibiting". from dealing with 01' doing any injury

to any Maori freehold land that is the subject matter of the proceedings".


[38] The COUli of Appeal in Attorney General v Maori Land COllrt [1999) I

NZLR 689 made obiter comments relating to sections 19 and 20 generally. In that

case the Court of Appeal specifically examined the jurisdiction of the Maori Land

Court under section 18(1 lei) of the Act. Blanchard J while undertaking a VCIY

thorough analysis of the jurisdiction in relation to section 18 of the Act did not

undertake a similar examination of section 19. He did not make any specific

comments in relation to the jurisdiction of section 19(1 )(b) but did make some obiter

comments in reference to sections 19 and 20 at p699:

The next two sections, ss 19 and 20 respectively conjerjurisdicfions 0/ a procedural nature, namely to grant injunctions and 10 determine proceedings for recovery of land. Bolh sections apply 10 Miiorifreehold 10lld only.

[39] Generally speaking of course the comments by the Court of Appeal are

correct. However, the Court of Appeal did not specifically examine section 19(1)(b)

and was not rcquired to examine what is meant by the words "any properly that is

the slIbject mailer of the proceedings ... " We consider that on a plain ordinary

interpretation of those words, we have jurisdiction in this case to consider whether or

not to grant an injunction.

[40] There are a paucity of cases in the Maori Appellate or Maori Land Court

which discuss the ambit of section 19(1)(b). In one example Judge Milroy has noted

in her interpretation of section 19(1 )(b) in the case of Koia - Wharekahika A 13 Block

(2006)74 Ruatoria MB 155 (75 Rua 155) at 75 Rua 164:

lily interpretation of sectioll /9(/)(b) of the Act · is that when it is used in an inter/ocli/ory way it ;s intended primarily to hold parties in the pas ilion in which they stand at the lime oJthe application. This is (0 prevent either one a/the parties Jrom dealing with the subject matler of the proceedings in such a way as 10 make it impossible to render adequate or appropriate redress fa the other parties.

[41] We therefore conclude that the Court does have jurisdiction to grant an

injunction in these circumstances.

Interim Injunction

[42] It is settled law that an injunction is a discretionary remedy. An interlocutory

injullction is grantcd to protect an applicant from injury to its legal or equitable rights


resuiting from delay between the filing of its claim and the trial that cannot be

adequately compensated by an award of damages.

[43) The essential purpose and approach to addressing applications for interim

injunctions was summarise in the Court of Appeal decision of Roseneath Holdings

Ltd v Grieve [2004]2 NZLR 168 at 176:

The object of an interim injunction ;s (a prOlect the plaintiff from harm occasioned by any breach of rights, that is the subject of current litigation, for which the plaintiff might nol be adequately compensated by an award of damages by the COllrt, if sliccess/ul at 'he trial, Against that object it is necessary 10 weigh the consequences to defendants of preventing them from acting in ways which the trial may determine are in accord0/1ee with their rights. The well established two stage approach 10 addressing applications for interim injunctions involves first, ascertaining whether there is a serious question to be tried and secondly, conSidering the balance of convenience if Ihe relief sought is granted.

[44) The general approach to determining whether there is a serious question to be

tried was set out in Henry Roach (Petroleum) Capital Pty Limited v Credit House

(Vic) Ply Ltd [1976) VR 309:

In order to determine whether there is a serious issue 10 be tried it is necessary 10

COl/sider whal is the applicable Jaw and whether there are arguable differences concernil1g if, what the facts are said fo be on the opposing sides, and where Ihe issues /ie, and whether there is a tenable combination of resolutions of the issues of lmv andfact on which the plaintiffs could succeed.

[45) Sommers J in Congoleum Corp v Poly-Flor Products (NZ) Ltd [1979) 2

NZLR 560 (CA) at p571 described the inquiry into the balance of convenience

between the parties in the following terms:

[II] involves a decision as to whether the granting of an injunction or its refusal is Ihe course which, after the action itself has been fried and the issues between the parties determined, would best allow (he adjllstment of the rights of the parties in a way that accords withjairness Qndjuslice.

[46) The balance of convenience is a broad and flexible inquiIy, unrestrained by

any rigid or inflexible rules and the COUl1 may take into account numerous factors. It

is recognised that an important factor that the CoU!1 will take into account will be

whether damages would be an adequately remedy.


Discussion

[47) It is clear that there is a serious question to be tried. No party has argued

against this point.

[48] ln weighing where the balance of convenience lies there are a number of

factors for our consideration.

[49) The Applicant argues that if a substantive fixture is not allocated until after

the outcome of the Court of Appeal hearing in Paki & Ors v Allorney General, they

face considerable delay. In particular they point to the fact that if an injunction is not

granted, gravel extraction will continue from the beach area and they face a potential

loss of royalties. They also argue that damages are no longer an adequate remedy.

They have provided a limited undertaking as to damages.

[50] The Respondent in turn points to the following matters: the merits of the

Applicant's substantive case - the Respondent says that the Applicant will on the

evidence provided thus far struggle to succeed at a substantive fixture; they have a

legal right to extract gravel, that right having been obtained t1uough the resource

consent process; substantial loss of income will be occasioned to them if an

injunction is granted; gravel extraction is also important for flood protection.

[51) After considering all factors, we are of the view that the balance of

convenience favours the Respondent. The potential loss of royalties to the Applicant

is contingent upon the Court at a substantive hearing concluding that the beach area

and riverbed of the Whakatanc river is Maori freehold land. The Applicant currently

carlllot point to an actual loss of income, only what might be a potential loss of

income in the future. Secondly, although the evidence before us is very vague as to

the potential losses to the Applicant, should a Court find on the substantive issue in

its favour, damages will be an adequate remedy. The only real loss the Applicant

can point to is to a potential monetary loss. Whilst the Applicant has provided an

undertaking they have attempted to limit it to the assets of the trust. This Court has

no evidence before it as to what the assets of the trust are. Whilst there is no

requirement under the Act for an undertaking as to damage to be provided, if these


injunction proceedings were brought say for example in the High Court, a full

undertaking as to damages might be expected. The potential delay in proceeding to a

hearing before the outcome of the Paki & Ors v ATTorney General case is regrettable.

However, we would have thought that given the test for navigability set down by

HalTison J, the Applicant faces considerable hurdles to overcome.

[52] Tn considering the Respondent's position, they currently have a legal right to

extract metal. Preventing them from exercising that legal right and the flow on

effect of loss of income for an indeterminate period factors high in our

considerations.

[53] When applying the legal test and having considered all matters we are of the

vIew that an injunction should not be granted. The injunction application is

dismissed.

Future Directions

[54] We are concerned that the substantive fixture may not be set down for a

considerable period of time. Therefore we direct tile Case Manager to organise a

further judicial telephone conference with Counsel for all parties in early July 2009.

At that time we will want to hear from par1icularly the Respondent and the Crown as

to whether or not progress has been made on the Paki & Ors v Allorney General case

before the Court of Appeal and when it could be expected that a substantive fixture

can proceed.

Pronounced in open COUl1 at If. . 4i f~' on the

S R Clark JUDGE

Jqth day of December 2008.

C TCoxhead JUDGE

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