3. The Committee has asked for information LlNZ holds relating to:

Transcription

1 Land lnfrmatin New Zeala nd (LINZ) inf rmatin relating t the Wa kapuaka estuary Purpse 1. The Lcal Gvernment and Envirnment Cmmittee (the Cmmittee) is cnsidering petitin 2002/0122 f Len Harvey and thers which requests the investigatin f the erectin f a gate n the public rad blcking the access t the freshre f the Wakapuaka estuary (the estuary) and that the gate be remved. 2. The Cmmittee has asked LINZ fr infrmatin t funher its cnsideratin f the issues. This paper respnds t that request. Intrductin 3. The Cmmittee has asked fr infrmatin LlNZ hlds relating t: LINZ's understanding f the current legal status f the estuary; the current status f any legal prceedings relating t the wnership f r access t the estuary; the relevant Mari Land Curt decisins relating t the wnership and title f the estuary including the 1883 and 1998 decisins; and the relevant district land survey reprt. 4. The infrmatin LINZ hlds n Mari Land Curt decisins is dealt with belw fllwed by LINZ's understanding f the current legal status f the estuary and legal prceedings relating t wnership f the estuary. 5. in summary in 1998 the Mari Land Curt issued rders n the assumptin that the estuary was Mari freehld land. The Minister f Cnservatin initiated prceedings in the High Cun t cancel the Mari Land Curt rders n the basis that they were based n errrs f law. The High Curt Prceedings have been stayed. 6. With respect t the fou I1h buljet pint abve LINZ des nt believe such a reprt exists but if further infrmatin can be prvided as t what it is expected such a reprt wuld cntain we may be able t help further. If yu are seeking a cpy f the 1885 survey f the relevant land blck it is attached. Relevant Mari Land Curt decisins 7. UNZ understands that in 1883 the Native Land Curt gave judgment in relatin t a claim t land knwn as the Wakapuaka Blck and recrded that a certificate f title wuld be issued upn the prductin f an apprved survey. The blck f land was subsequently surveyed in In 1892 the Native Land Curt issued a title f r the blck and this was backdated t 20 Nvember 1883 being the date f the judgment. 2

2 8. In 1986 the Man Land Curt made rders under sectin 438 f the Mari Affairs Act 1953 purprting t vest the Wakapuaka mudflats (estuary) in fur trustees subject t an "Investigatry Trust" fr a perid f five years. The mudflats were desc ribed as "Part Wak.puaka Blck (Mud Flats)" and "the Mari freehld land knwn as Wakapuaka Mudflats". The terms f the trust were "t investigate and determine the rightful wners f the Estuary area f mudflats in the said blck". 9. In July 1992 the Mari Land Curt extended the In vestigatry Trust until In 1996 the Ngati Tama Manawhenua ki Te Tau lhu Trust applied underte Ture Whenua Mari Act 1993 fr a determinatin by the Mari Land Curt f the wners f the mudflats. Befre any hearing f this applicatin had ccurred a further applicatin was made in April 1998 fr an rder under Te Ture Whenua Mari Act vesting the mudflats in a Whenua Tpu Trust. This secnd applicatin was made by the Ngati Tama Manawhenua Ki Te Tau lhu Trust the Wakapuaka Mudflats In vestigatry Trust and Wakapuaka I A Ahuwhenua Trust Wakapuaka I B Incrpratin and Wakapuaka Ie Reserve. 11. In September 1998 the Mari Land Curt recrded that it was "f the view that the Wakapuaka Mudflats are included in the 1883 ti tle". It cnsidered that "the land in questin had the status f Mari freehld land prir t the 1993 Act." The Curt made rders t tenninate the existing Investigatry Trust in respect f the Wakapuaka Estuary cnstitute a Whenua Tpu Trust t be knwn as the Te Huna Matenga Wakapuaka Trust and t vest the Wakapuaka Mudflats r Estuary in the names f the Trustees f the Trust. 12. The Mari Land Curt Frwarded a cpy f the 1998 Curt Ordert LINZ's Nelsn ffice in August 1999 fr registratin purpses. The legal status f the Wakapuaka estuary 13. [n August 1999 the Crwn applied under sectin 45 fte Ture Wheua Mari Act 1993 fr the Chief Judge t cancel the rders affecting the mudflats that were made in 1986 and This applicatin was made n the grunds that: the riginal rder affecting the Wakapuaka Blck in 1883 did nt include the Wakapuaka Mudflats belw th e high water mark; as a matter f law the Native Land Curt in 1883 culd nt issue title belw high water mark; as a matter f law the Mari Land Curt in 1986 culd t vest land belw the high water mark; and fr these reasns the further rders made in 1998 were based upn errrs f fact and law. 3

3 14. By requisitin dated 2 September 1999 LINZ advised the Mari Land Curt [hat the vesting rder culd nt be registered underthe Land Transfer Act 1952 (as required under Te Ture Whenua Mari Act 1993) and stated the fllwing: "Frm the illfrmatin supplied with tlte rder it appears 10 be claimed fhat the land affected thereby is colllailled i/l Native Lalld Curt Certificate f Title dated 20 Nvember 1883 and embdied in the Prvisinal Register atlhis ffice June 1892 Vlume 2 Fli 193. Frm my investigatins 1 have detenllined that the land yu refer t as 'Te Parumana Ki Wakapllaka (Wakapuaka Mudflats r Wakapuaka Estuary) is n01 part f the land cmprised and described ill PR 2/193. (The area f acres shwn in 2/193 appears [0 be satisfied withut illciudillg the Wakapuaka Mudjlals/Eslliary referred t ill Order 23 Nelsn MB ldged in this ffice under N ) Therefre 1 d nol cnsider that the rder can be registered against PR 2/ In June 2001 cunsel fr the Minister f Cnservatin advised the Mari Land Curt that the Crwn intended lo initiate prceedings in the High Curt (in place f the earlier seclin 45 fte Ture Whenua Mari Act 1993 applicatin) t btain the cnclusive reslutin f the status f the Wakapuaka estuary/mudflats. The prceeding was cmmenced in December The grunds n which the Crwn seeks relief are that: the Mari Land Curt made invalid rders in 1986 in the mistaken belief that the mudflats were Mari freehld land; the Mari Land Curt made invalid rders in 1998 in the mistaken belief that the mudflats were included in the title t the Wakapuaka blck and were M-ari freehld land; and even if the 1883 rder f the Native Land Curt is interpreted as including the mudflats belw the mean hi gh water mark that Native Land Curt rder was made withut jurisdictin as sectin 147 f the Harbur Act 1878 prhibited grants belw the mean high water mark except by special Act. 16. In March 2002 a stay f prceedings was granted until a further rder f the Cun r until the Curt f Appeal's judgment in the Marlbrugh Sunds freshre and seabed litigatin became avai lable t the parties. The Cun f Appeal gave judgment in the Marlbrugh Sunds freshre and seabed litigatin in June Beginning in L999 the Crwn Law Office asked LINZ t prvide assistance in researching histric recrds. Tw frmer Chief Surveyrs examined relevant dcuments held by UNZ and filed affidavits ne in 1999 and the ther in The Chief Surveyrs cncluded that the estuary was nt included in the adjining Wakapuaka blck. Their cnclusins were based n cnsideratin f numerus relevant factrs. but the grunds can be summarised as fllws: graphical infrmatin n plans dating frm 1856 and n title dcuments indicated that the estuary was nt included in the adjining parcels; 4

4 the estuary is a substantial area (850 acres by calculatin) which is nt included in either the ttal area f acres shwn n the plan prepared in 1885 t suppn the issue f a certificate f title by the Mari Land Cun r in the area shwn in that cenificate f title; legal descriptins cntained in title dcuments fr the Wakapuaka blck including the first certificate f title issued by the Native Land COUl1 in 1892 indicated that the bundary was t the high water mark; In 190 l the Chief Judge f the Native Land Curt stated that the Wakapuaka Blck was t be dealt with as if it had been granted by Gvernr's warrant. This indicated that any definitin was t be t the line f high-water mark at rdinary tides as stipulated in sectin 41 f the Crwn Grants Act Cpies f tw f the relevant plans are anached fr the cmmittee's reference. These plans - ML 3574 and ML shw a survey definitin f "Native Reserve in Wakapuaka District". This survey was carried ut in 1885 t define the land fr the issue f a certificate f title fllwing an rder f the Mari Land Curt in ML 3575 shws the whle blck while ML 3574 is a detail plan shwing the mudflats r estuary. 20. The affidavit f the Chief Surveyr dated 2002 states: "Reviewi1lg the land recrd as whle fr the perid/rm up t Ihe issue f the LAnd Transfer Title 23/219 in 1901 all available dcuments Gild plalls are cnsistem ill recrding thai the estuary was nt included ill the Wakapuaka Blck. " 21. The legaj prceedings in the High Curt shuld cnclusively reslve whether the estuary/mudflats are currently Mari freehld land. The Chief Surveyrs' cnclusins suggest that if the Mari Land Curt's rders are verturned by the High Curt as a resull f the current prceedings the estuary wuld have been prima facie wned by the Crwn and s wuld becme public freshre and seabed under the Freshre and Seabed Act Current status f legal prceedings 22. As is mentined abve in December 2001 the Crwn cmmenced prceedings in the High Cun t btain the cncl usive reslutin f the status f the Wakapuaka estuary/mudflats. In March 2002 a stay f prceedings was granted until a funher rder f the Curt r until the Curt f Appeal's judgment in the Marlbrugh Sunds freshre and seabed litigatin became available t the parties. The Cunf Appeal gave judgment in the M.arlbrugh Sunds freshre and seabed litigatin in June LINZ understands that the stay f prceedings has expired and that the Crwn Law Office has applied fr a renewal f the prceedings. II is expected that the prceedings will cme befre the Curt fr timetabling in early February LlNZ is nt aware f any legal prceedings relating t access t the estuary. 5

5 Summary 25. In summary in 1998 the Mari Land Curt fund the estuary t be included in the riginal Wakapuaka Blck and issued rders n this basis. The Minister f Cnservatin initiated prceedings in the High Curt t cancel the Mari Land Curt rders n the basis that they were based n errrs f law. The High Curt prceedings have been stayed but the Crwn has applied fr a renewal f the prceedings and it is expected that it will cme befre the Curt fr timelabling early in February The invlvement f LINZ with respect t this issue has been in tw areas: a) LINZ advised the Mari Land Curt that the vesting rder culd nt be registered under the Land Transfer Act 1952 n the grunds that the Wakapuaka mudoatslestuary are nt included in the prvisinal title against which the vestin g rder was ldged fr registratin; and b) the Crwn Law Office asked LINZ t prvide assistance in researching histric recrds. Tw frmer Chief Surveyrs examined relevant dcuments held by LINZ and filed affidavits stating that the estuary was nt included in theit view in the Wakapuaka blck. 6

6 DELAWAREBA land=1i!' Infrmatin ~- CROWN COPYRIGHT RESERVE D I "" I Wakapuaka Estuary "'" I ScIIe ''''' I i ' "'". I Th. d81&... bwn COt'I'lPiIed frm fibii _. leri:n 0( ~ r.quor" an..a/ysii: 0(.. relev..c i'iirmaiin... ampii... wlih... SlrIIW)' Re;p.Aatinl AttrIbute dati..quirfl an ~.. 0( the ~eleg" r««c. LandInI... 1Mp Prin!ed u It! 07~ ktwydle

7 rt ML 3574 '. ' I " FIELD PLOT ~: r:: -- k _ I... :~... M NATIVE RES. W AKAPUAKA DIS!.. ~ 1). \ G.. T..... I... ~ It ~ t:c."!t :;O:~...I;-..a- Th...!'lt. 110.:1. ' ;. '. ". I J 1 M 3674 AI " ---

8 MI..-._ ! =.. ' " IV - --~ V VI v.... "..' t ;~-;;::: -;fi ~ l ~ M 4::." 3B70.. PLAN f NATIVE 1... t= RE.SERVE '0.. ' i WAlCAPUAKA