SUBMISSION IN SUPPORT OF APPLICATION FOR URGENT INJUNCTION Dated this 19th day of November 2013

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1 IN THE MAORI LAND COURT AOTEA REGISTRY A UNDER Te Ture Whenua Maori Act 1993 IN THE MATTER OF Horowhenua 11 (Lake) BETWEEN : [withheld] Applicant of [withheld] AND BETWEEN: AND BETWEEN: AND BETWEEN: AND BETWEEN: AND BETWEEN: AND BETWEEN: HOROWHENUA LAKE DOMAIN BOARD DEPARTMENT OF CONSERVATION HOROWHENUA 11 (LAKE) TRUST HORIZONS REGIONAL COUNCIL HOROWHENUA ROWING CLUB NZ POLICE SUBMISSION IN SUPPORT OF APPLICATION FOR URGENT INJUNCTION Dated this 19th day of November 2013 [withheld] [withheld] Ph [withheld]

2 MAY IT PLEASE THE COURT 1. The first issue that this Court has asked me to address is whether or not this Court had the jurisdiction to entertain that part of the application that relates to the use of the Domain buildings in light of the fact that those issues are currently the subject of related litigation. 2. The catalyst for this urgent interlocutory injunction is a report I received on 4 November 2013 from a certified consultant ecologist recommending immediate action to reduce the risk of threats that place Lake Horowhenua at serious risk of losing most of its fishery, recreational and amenity values. These piscatory rights of the owners of Horowhenua 11 (Lake) existed long before Europeans arrived in New Zealand but are preserved in s18 of the Reserves and Other Lands Disposal Act The grounds for this application are sections 19 (1) (a) and 20 (d) of the Te Ture Whenua Maori Act 1993 and its preamble. 4. Section 19(1)(a) provides the Maori Land Court with jurisdiction to issue an order by way of an injunction against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land. 5. Section 20 (d) grants the Maori Land Court jurisdiction to determine any proceeding for the recovery of Maori freehold land where any person without right, title or licence is in possession of any Maori freehold land. 6. It is my understanding that as a result of a teleconference, the previous application currently under appeal has been adjourned from November until February, leaving the lake at serious risk of irreversible damage from the introduction of an invasive weed species due to recreational activities occurring over the summer period. However this is a new application based on new grounds. 7. The owners require both Domain buildings for urgent lake restoration work. The Crown, this Court and the Domain Board cannot extinguish our right to occupy these buildings.

3 Grounds for application 8. The catalyst for this particular application is of course, the report forwarded to me on Monday 4 November 2013 by Mr Bill Chisholm, an independent consultant ecologist specialising in freshwater ecology, resource management and biosecurity. 9. In his report, Mr Chisholm recommends a complete ban on allowing trailer-mounted boats of any type from entering the lake, unless they are confined to Lake Horowhenua itself. 10. Mr Chisholm states that he believes that Lake Horowhenua is currently at serious risk of losing most of its fishery, recreational and amenity values from two major threats. If anybody is of the belief that the lake can withstand business as usual they are very much mistaken. 11. Mr Chisholm s report adds even greater urgency to the issues raised by Dr Max Gibbs from NIWA at a Horizons meeting on 8 February 2012, and which was attended by representatives of the various bodies with a statutory obligation to protect the Lake. 12. Both Dr Gibbs and Mr Chisholm refer a Trophic Lake Index of 6.7 for Lake Horowhenua, which indicates a very high level of pollution. If the water quality is not markedly improved as soon as possible it will become a difficult, lengthy and very expensive process to restore the Lake. 13. This is not a risk that owners are prepared to tolerate, either financially or environmentally. Nor should we. Ownership 14. For Mua-Upoko, Lake Horowhenua is not just a place purchased in pounds. It is a spiritual site, where hundreds of their ancestors were slain in battle as they fought off formidable invaders who coveted this bountiful kai basket. 15. Nor is it land reclaimed under Treaty of Waitangi settlements. 16. Mua-Upoko has owned this land in fee simple estate, English title, since 1893.

4 17. English title in fee simple estate confers upon the Maori owners and consolidates property ownership rights, unless alienated. 18. The Mua-Upoko owners have never sold nor leased any land that allows access to the Lake. Nor have the Mua-Upoko owners sold or leased to the Crown or any other party the land upon which the northern and southern Domain buildings were erected. The legal principle of nemo dat non quod habit therefore applies; namely nobody can give something that does not belong to them. 19. As fixtures, these buildings are the property of the owners of the land, and the terms of expired licences verify this position. Distinctive legislation 20. The ownership of Lake Horowhenua and the land that completely encircles it, is the subject of very special statutory recognition. 21. S18 of the Reserves and Other Lands Disposal Act recognises and reaffirms ancestral rights of Mua-Upoko in a deeply etched way, by declaring that the bed of the lake and surrounding land is owned, and has always been owned, by the Maori owners. 22. By section 9 of the Horowhenua Block Act 1896, piscatory rights to the Lake and Hokio stream were retained by Mua-Upoko. S18(6) ROLD preserves and maintains those rights. 23. These ownership and piscatory rights are therefore the subject of special, indeed unique rights in terms of Maori land. As Cooke J noted in Regional Fisheries v Tukapua, I think the result that best accords with the spirit and words of the 1956 section and with the history is to treat the maxim generalia specialibus non derogant as applicable. In other words, the provisions of a general statute must yield to those of a special case. 24. As Horowhenua 11 (Lake) has unique characteristics as a special case, it would be virtually impossible to identify legal precedents of relevance, unless relating directly to the Lake. 25. The piscatory rights of Mua-Upoko are well-established, and must not to be compromised by activities that injure or threaten to injure the fragile ecosystems that sustain the Lake s fisheries.

5 Reason for urgency 26. The report that I received from Mr Chisholm this month is disturbing; advocating immediate action to reduce the threats he had identified as soon as possible. I stress the word immediate. 27. It is now almost two years since Dr Max Gibbs of NIWA released his report stating, amongst other things that the danger to the lake from the introduction of exotic weeds such as Egeria denas and/or hornwort is that they have aggressive growth habits which would irreversibly change the water quality and character of Lake Horowhenua. 28. The solution proposed by Dr Gibbs was to construct a washdown facility for boats at the domain launching area so that they can be washed down prior to entering the lake, and before they leave the vicinity of the lake after being on the lake. The estimated cost of this facility was $6000 with an additional cost of $1000 to cover the purchase of up to two water-blasters. 29. Despite this relatively-inexpensive solution, no wash-down facility has been installed at the Domain, nor is there likely to be any wash-down facility installed at the Domain over the summer period when there are likely to be events at the Lake. 30. Despite the existing by-laws sanctioned by the Minister of Conservation and also the warnings issued by Dr Gibbs, the only tangible measure undertaken by any of the statutory bodies with a legal obligation to protect the Lake, has been the erection of signs, initially declaring: Lake open for recreation use. No restrictions apply 31. This unattributed signage completely contradicts the measures Dr Gibbs had recommended in his report, and gives me no confidence whatsoever that any of the statutory bodies are taking seriously the concerns he had raised. 32. Mr Chisholm says that it is disheartening to see that nearly two years have passed since Max Gibb s report was produced.

6 33. Although Horizons has recently placed a new sign at the Domain, the sign at the entrance to the Domain asking people to wash down their boats before entering the water has been removed. 34. However Mr Chisholm says that the mere presence of the sign near the boat club, warning boaties and other recreational users of the lake about the dangers of lake weed spread is insufficient to manage the present threat of aquatic weed invasion. 35. According to Mr Chisholm, as a general rule of thumb, if an infected waterway is within 120 kilometres, then the potential for any of three invasive weed species to spread to an infected lake is high. All three of these species are highly invasive, with only a small fragment being needed to infect an area which will then spread rapidly throughout the entire lake and downstream waterways. Once infected, it is extremely and prohibitively expensive to eradicate these aquatic weed species from the lake, even if the infection is localised to a small area. 36. While he concedes that the ban he recommends may seem draconian, he says boaties should be reminded that if these aquatic weeds enter the lake, then there will probably be no boating at all in the future because the weed mats will make boating physically impossible. Occupation by the Rowing Club 37. The Rowing Club does not have any title to the land at the Domain. 38. Nor does the Rowing Club have a licence to occupy this building. 39. A matter of direct relevance to Lake Horowhenua is the Court of Appeal judgement for Taueki v the Queen CA (2012) NZCA 428, on 21 September 2012 when it was held that: Again, it now appears to be accepted that there was no power to effectively attempt to roll over the terms of the previous licence in this way. Rather, in terms of s53 of the Reserves Act, the Board s power is to grant limited exclusive use rights.

7 40. This position was not challenged by Crown Law in its submission to the Supreme Court dated 19 February 2013 accepting that the leasing provisions in the Reserves Act empowering the Board to grant leases and licences do not apply with respect to Maoriowned land. Emphasis added. 41. The Lake Domain Board has tried to circumvent the judgement of a superior court by resolving on 4 February 2013 to permit the Rowing Club, the Sailing Club and other boating clubs to store their gear. Furthermore, the Chair (a DOC employee) was to write to the relevant clubs asking them to submit applications for further occupation rights. 42. Neither the Lake Domain Board nor the Maori Land Court has the jurisdiction to over-ride the judgement of a superior court. 43. Therefore, the Rowing Club cannot claim occupation rights. Rights of the Maori owners 44. By contrast, the Maori owners hold the title to the Horowhenua 11 (Lake), and have done so unencumbered since I am a beneficial owner. 46. I am also a direct descendent of Taueki who signed the Treaty of Waitangi, and therefore I am entitled to the full, exclusive and undisturbed possession of the property I collectively own, as guaranteed by Her Majesty the Queen in a Treaty my ancestor signed in good faith. I consider this to be a binding contract. 47. Furthermore, s 18(5) of ROLD 1956 preserves my right as a beneficial owner to free and unrestricted use of the Domain at all times. The principle of maxim generalia specialibus non derogant applies to this situation, namely that the provisions of a general statute must yield to those of a special case. 48. Although Domain is vested in the hands of trustees by virtue of this Act, this legislation does not give trustees any authority to limit unrestricted use of the Domain by the owners.

8 49. The Domain Board is the only body with authority to limit the use of the Domain by owners, but such constraints must be reasonable. 50. The Domain is gazetted as a recreation reserve, subject to provisions of the Reserves Act It is not reasonable for the Domain Board to flout the law that applies to the Domain s status as a recreation reserve. 52. Section 94 of the Reserves Act 1977 limits the period for which the Domain Board can grant exclusive use rights of a recreation reserve to a total of 40 days per annum and no more than six days consecutively. 53. This year alone, members of the Rowing Club have enjoyed exclusive use of this Maori-owned facility for 323 consecutive days this year, despite their occupation being ultra vires s53 of the Reserves Act 1977 that restricts exclusive use of this recreation reserve to no more than 40 days per annum, and no more than six consecutive days. 54. Neither the Domain Board nor the Maori Land Court has the jurisdiction to over-ride the judgement of a superior court in relation to a matter of direct relevance to Lake Horowhenua. 55. I hold an indefeasible, statutory property right because this Maori freehold land is held for my benefit and for the benefit of other owners. 56. The Maori owners require the use of both Domain buildings that they own for urgent lake restoration research and activities. Equipment for lake restoration work must be stored at the Lake. Exclusive use rights. 57. As a direct descendent of a Treaty signatory, I have already been guaranteed full, exclusive and undisturbed possession of the lands, fisheries and other property I collectively own by Her Majesty the Queen. The Treaty was signed in good faith by my ancestor and I consider that contract to be binding.

9 58. As Sir Robin Cooke has said in Court, A nation cannot cast adrift from its own foundations. 59. Exclusive use is absolute. By fortiori, exclusive use precludes usage by any other party. 60. Accordingly, the Crown, this Court and the Domain Board have no jurisdiction to over-ride our right to exclusive use of the Domain, and the facilities on this Domain that we own. 61. This right to free and unrestricted use at all times is reinforced by s18(5) of ROLD The Crown, this Court and the Lake Trust have no authority to over-ride this right preserved in statute. 62. Whilst the Domain Board may have the right to determine the reasonable rights of the public, the Domain as a gazetted recreation reserve is subject to the Reserves Act 1977 which precludes exclusive use by members of the public for a period exceeding six consecutive days, or 40 days in total per annum. 63. As already stated, the owners now require these buildings for urgent lake restoration work. As we have already been guaranteed exclusive possession through the Treaty, preserved by ROLD as free and unrestricted use, it would be contrary to the principles of law for owners to apply to a body with lesser rights for permission to use our own facilities. 64. As previous Maori Land Court judgements have shown, the Lake Domain Board has shown a reluctance to issue written notification to the Rowing and Sailing Clubs to vacate the buildings. And despite the Court of Appeal judgement, the Domain Board has actively sought applications from both clubs to submit applications for further occupation rights. 65. Accordingly, in light of the Chisholm Report urging immediate action to protect our privately-owned Lake from the risk of further injury, I have no option but to apply to the Maori Land Court for the recovery of our Maori freehold land. If the other parties wish to be pedantic, we cannot occupy our freehold land if the rowers continue to occupy the building erected on top of it.

10 66. As a superior court has already established that the club has no right to remain in the building, it then becomes a simple matter for the Maori Land Court to exercise its jurisdiction to recover the property for the owners, who require it urgently for lake restoration purposes. 67. It is well within the jurisdiction of the Maori Land Court to recover Maori Freehold Land from those without right, title or licence to claim possession of this land. Injunction banning boating 68. The Court has sought advice on what (if any) additional evidence may be required for the court to assess the extent of risk to the Lake arising from boating activity. 69. Dr Gibbs is a scientist employed by NIWA who has spent nearly 50 years studying New Zealand s lakes and rivers. His restoration plan for Lake Horowhenua was prepared for Dr Jon Roygard, science manager at Horizons, and presented to Horizons on 8 February Mr Chisholm is a certified environmental practitioner who is an independent consultant ecologist specialising in freshwater ecology, resource manager and bio-security. 71. Lake Horowhenua is recognised by NIWA as being one of the worst polluted lakes and also one of the lakes with the worst eutrophication in all of New Zealand. 72. But more importantly, both scientists have identified the risk from the introduction of invasive weeds into the Lake which could cause irreversible damage. 73. Mr Chisholm s report highlights the need for urgency. He says it is disheartening to see that nearly two years have passed since Dr Gibbs produced his report and yet no apparent action has been taken to implement its recommendations. 74. The owners therefore cannot rely on the statutory bodies to take the action necessary to protect our Lake from the risk of irreversible damage.

11 75. At the very least, the Maori owners are entitled to expect that members of the public launching their boats on the Lake are not placing it at risk from the spread of invasive weed species that would in future make boating physically impossible. 76. Mr Chisholm recommends a complete ban on trailer-bound boats of any type from entering the Lake, apart from those confined to the Lake. 77. Section 19(1)(a) of the Te Ture Whenua Maori Act gives the Maori Land Court the jurisdiction to issue an order by way of an injunction against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land. 78. If the Court chooses to seek further evidence, it needs to be borne in mind that nearly two years have elapsed since Dr Gibbs first brought his concerns to the statutory bodies who all have an obligation to protect the Lake. 79. At the very least, an interim injunction is required to protect our Lake over the summer period, when the risk is highest. 80. Judge Harvey has already raised Roseneath Holdings Ltd v Grieve, in which the Court of Appeal summarised the essential purpose of an interim injunction: The object of an interim injunction is to protect the plaintiff from harm occasions by any breach of rights, that is the subject of current litigation, for which the plaintiff might not be adequately compensated by an award of damages by the Court, if successful at the trial. 81. The owners should not have to bear the brunt of injury to their taonga due to the recreational activities of club members and others who show scant regard for bio-security measures that apply to all other waterways throughout New Zealand. Why should this privately-owned Lake be an exception? 82. How can any Court adequately award the Maori owners compensation for damages if the damage to our most-prized taonga is irreversible, as Dr Gibbs claims? 83. Is the Rowing Club or the Lake Domain Board prepared to put up a bond to cover the risks from continued recreation usage?

12 84. The Lake s very survival is at stake. It is hovering on the brink of flipping over and becoming a major liability for the owners. 85. Club members and members of the public have not modified their behaviour since the release of the Gibbs report two years ago. 86. I have observed club members transporting their boats away from the Lake, and events taking place when boats are transported in. 87. Other members of the public transport boats in for private use. 88. The Maori owners should not be placed under an obligation to produce any more evidence to justify our concerns about the state of the Lake, as we are entitled to the same property rights as any other New Zealand citizen to protect our own property from the risk of harm. This is freehold land the Crown does not lease. 89. The rights of the owners to protect their Lake from the threat of injury must therefore take precedence over the recreational exploitation of a property that remains in private ownership. 90. The mana, cultural and historical significance of the continuous, unbroken ownership and possession by Mua-Upoko extending from before pre-european times, would be diminished forever by any conclusion that allows members of the public to occupy and place at risk an asset that remains first and foremost, privatelyowned. Our property and piscatory rights cannot be extinguished. Supreme Court 91. After eight months, the reserved judgement of the Supreme Court is imminent. 92. As Lake Horowhenua is gazetted as a recreation reserve subject to the Reserves Act 1977, public access is subject to compliance with the Reserves Act 1977 and the Domain Board s by-laws. 93. For the sake of completeness, this Court and other parties need to be reminded of some of the issues that were raised in the Supreme Court on 11 March 2013 and that have a direct bearing on matters before this Court. The full transcripts are available on the Supreme Court s web site.

13 94. If the Supreme Court accepts that I am in peaceable possession of Horowhenua 11 (Lake), then it follows that I have the right to use reasonable force to remove those whose conduct is unreasonable. 95. At that hearing, Crown Law conceded: That public enjoyment, as my friend submitted and we accept, is conditioned by the Board s ability to promulgate bylaws and a person acting in defiance of those bylaws exceeds the extent of the public right. 96. Dr Gerard McCoy QC, who represented me in Court, had explained it in this manner: It s not critical for me to show that the Sailing Club had or didn t have a defence, It s only important for me to show the state of mind of the appellant at the time, that he apprehended that there was to be an imminent trespass, inasmuch as there was a reasonable case that the boat was dirty or too big.. The Trespass Act has no application, with respect, to this case. Here you re looking at trespass from its original tortious basis, that s what it s doing. Peaceable possession, a property law concept, trespass, a property law concept defending the land. What has happened is our pioneer legislature, in my submission, has decided that there is an importance in being able to protect your land or your dwelling and has given a limited right to interfere with actual trespass or prospective trespass. You certainly do not have to wait. The Boat Club was an invitee, a statutory invitee. If it could not meet the criteria of the invitation, it failed. 97. In other words, if the Supreme Court accepts this point, I and every other beneficial owner will not need the permission of this Court, the Crown, the Domain Board, the Trust or the Police to use reasonable force to remove club members unlawfully occupying our buildings and members of the public engaged in activities that place the Lake at risk. 98. As this approach would inevitably be confrontational, it would be preferable for this Court to exercise its jurisdiction to issue the orders necessary to preserve the right of owners to occupy their own building and to protect our property from activities that place it at risk of irreversible damage.

14 99. Whilst the reserved judgement of the Supreme Court imminent, it would be futile for any party, or the lawyers representing any party, to present legal submissions on matters before the Supreme Court, as the judgement of a superior court would ultimately supersede any ruling by this Court As a final point, Crown Law also submitted: By that statute, actual control of the Lake passed from the Trust. The lake assumed the character of a public reserve and since then it s been regularly used in that way. So from that date, in our submission, it couldn t be said that the Trust maintained actual control of the lake If the Supreme Court accepts this argument, it therefore follows that the Trust has no authority to allow the Clubs to occupy the buildings on the Domain. In summary 102. Lake Horowhenua that has been recognised by Parliament as always having been owned by Mua-Upoko, so an autochthonous approach to the concept of property rights by a person of Mua- Upoko is already mandated Over-arching all this is, of course, the Treaty of Waitangi, and the right of Treaty descendants to the full, exclusive and undisturbed possession of lands, fisheries and property whether collectively or individually owned, as guaranteed by Her Majesty the Queen in the Treaty my ancestor signed in good faith It would be a violation of the promise and the spirit of the Treaty of Waitangi for this Court to merely pay lip service to the principles identified in the preamble to the Te Ture Whenua Maori Act 1993; ie to promote the retention of Maori Freehold Land in the hands of its owners and to facilitate the occupation, development and utilisation of that land for the benefit of its owners Members of the Horowhenua Rowing Club have continued to show a flagrant disregard for the welfare of this seriouslycompromised and privately-owned lake.

15 106. Due to the escalating urgency of lake restoration work, the owners require the exclusive use of both Domain buildings for lake restoration work This Maori Land Court has the jurisdiction to recover the Northern Building from Rowing Club members who have no right, title or licence to possess this property This Maori Land Court also has the jurisdiction to issue an order by way of injunction prohibiting boating on the Lake, with the exception of boats permanently confined to the Lake, due to the actual or threatened injury to the Lake by the introduction of the invasive weed species identified by Mr Chisholm on 4 November. An interim injunction would be acceptable But to adjourn this application to seek additional evidence that the court requires to assess the extent of risk to the Lake arising from boating activity, places our Lake at the risk of irreversible damage, as a report commissioned by Horizons warned two years ago. In that period, not one of the parties appearing before this Court has challenged the credibility of this report or the credentials of Dr Gibbs The recent report from a bio-security consultant not only consolidates these findings, but also laments the lack of action to implement these recommendations. Procrastination is no longer an option, if the Lake is to recover To dismiss this application for the recovery of buildings on the grounds that these issues are currently the subject of related litigation would be an admission that this Court fails to recognise that the owners require these buildings urgently for Lake restoration work, as our equipment must be stored on-site The alternative will be confrontation, should the owners be forced to exercise their rights through the means of reasonable force sanctioned by the Supreme Court That judgement is imminent. [withheld]

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