IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A Applicants. LIZA FAULKNER Respondent. Applicant

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1 136 Waikato Maniapoto MB 278 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A UNDER IN THE MATTER OF BETWEEN AND Section 19(1) of Te Ture Whenua Māori Act 1993 MOTITI NORTH C NO 1 BLOCK GRAHAM HOETE AND AUBREY HOETE Applicants LIZA FAULKNER Respondent A UNDER Section 289 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND MOTITI NORTH C NO 1 BLOCK MARY FAULKNER Applicant GRAHAM HOETE AND AUBREY HOETE Respondents Hearing: 118 Waikato Maniapoto MB dated 8 April Waikato Maniapoto MB dated 2 May Waikato Maniapoto MB dated 3 May Waikato Maniapoto MB dated 1 June Waikato Maniapoto MB dated 19 August Waikato Maniapoto MB dated 26 August Waikato Maniapoto MB dated 9 September Waikato Maniapoto MB dated 14 October Waikato Maniapoto MB dated 13 December 2016 (Heard at Tauranga) Appearances: Ms K Feint, Counsel for Graham Hoete and Aubrey Hoete Mr M Sharp, Counsel for Liza Faulkner and Mary Faulkner Judgment: 14 March 2017 JUDGMENT OF JUDGE S R CLARK Copies to: Karen Feint, Barrister, Thorndon Chambers, P O Box 1530, Wellington, karen.feint@chambers.co.nz Michael Sharp, Barrister, P O Box 5111, Mount Maunganui, michael@michaelsharp.co.nz

2 136 Waikato Maniapoto MB 279 Introduction [1] Motiti North C No 1 is a block of Māori freehold land situated on the eastern side of Motiti Island ( the block ). The block comprises hectares. It is approximately 750 metres in length and 200 metres wide. There is no administration structure in place for the block and at the relevant time there were 83 owners who owned the block as tenants in common in unequal shares. 1 [2] The Environment Court has described Motiti Island as follows: 2 [2] Situated some 12 km from the East Coast of the North Island, Motiti or Mo[t]iti Island is a small (720ha) but arable island with freshwater springs. It has been occupied by Maori from the early canoes and farmed ever since for hundreds of years. Motiti still supports a small Maori community plus several larger farms that are in general title and owned by non-maori. Since the 1880 s non-maori have utilised southern portions of the island for stock grazing. Later general titles were issued such as the far larger Patterson farm. The island has no real infrastructure and has avoided interest from the mainland being essentially remote and self-managing. It has no local body and no government presence. [3] There is no public infrastructure on the island apart from a telephone installation. Other than several Māori roadways there is no public roading network. There is no water supply, sewerage system, footpaths, power or wired phone system. Residents do not have to pay local body rates. The infrastructure that exists on the island is located on private land. [4] There are three unsealed airstrips on Motiti Island, all of them located on private land. One of the airstrips is located on Motiti North C No 1. [5] None of the three airstrips are specifically mentioned in the Motiti Island Environmental Management Plan ( MIEMP ), 3 although there is reference in the objectives, policies and rules about infrastructure and airstrips generally. The airstrips are depicted on planning maps which appear as appendices to the MIEMP. 1 The relevant Computer Freehold Register identifier is (South Auckland). 2 Hoete v Minister of Local Government [2012] NZEnvC The District Plan for Motiti Island.

3 136 Waikato Maniapoto MB 280 [6] Graham and Aubrey Hoete are owners in the block. In late 2008 they organised two hui concerning the construction of an airstrip on the block. At the second of those hui, held on 6 December 2008 some owners agreed to build an airstrip. [7] A working bee was held on 27 December 2008 which resulted in an unsealed grass airstrip being formed. The airstrip was in use from that time until late March [8] In late March 2016, Liza Faulkner started building a small house on the block, it is located on the airstrip. [9] On 5 April 2016, Mr Graham Hoete filed an ex parte interim injunction application. On 8 April 2016, an interim injunction was granted restraining any further work being carried out on the house. 4 Graham and Aubrey Hoete now seek a permanent injunction ordering Liza Faulkner to move her house at least 50 metres away from the centre line of the airstrip. [10] On 14 June 2016, Mary Faulkner, the mother of Liza Faulkner, filed a partition application. She seeks to partition approximately 2.42 hectares (6 acres) to enable her whānau to build a papakāinga. Graham and Aubrey Hoete oppose the partition application. [11] In this decision I need to decide: Whether or not to grant a permanent injunction; and (b) Whether or not to grant the partition application. Background [12] It is necessary to set out some of the background in order to understand the issues before the Court. There is a wealth of background detail and facts, however I have only set out what I consider to be the relevant matters Waikato Maniapoto MB (118 WMN 30-37).

4 136 Waikato Maniapoto MB 281 [13] Many of the owners are descendants of Rameka Hoete and Te Paekitawhiti Hoete. They had four children, the youngest being Mary Faulkner. Mary Faulkner is an aunty to Graham and Aubrey Hoete. [14] It is common ground that each of the four children of Rameka Hoete and Te Paekitawhiti Hoete would be permitted to partition six acres for their use, with the balance of the block being earmarked for use by those owners who were not the descendants of Rameka Hoete and Te Paekitawhiti Hoete. 5 [15] Other than the partially constructed house built by Liza Faulkner, there are five or six houses on the block. [16] On 26 February 2004, a hui was held by some of the owners in the block. A resolution was passed that the Faulkner whānau be able to partition out their six acres. Matters progressed to the point whereby in October 2006, the Faulkner whānau had developed a papakāinga plan. However, for whatever reason, a partition application was not filed with the Māori Land Court until 14 June [17] Graham and Aubrey Hoete organised hui on 29 November and 6 December 2008 to discuss a proposed airstrip on the block. The calling of the hui were in response to the closure of an airstrip known as the mailbox airstrip, previously owned by Vernon Wills. The only other airstrip on the island is owned by Motiti Avocados Limited, and is not available for public use. [18] The Hoetes promoted the construction of an airstrip on the block to ensure that owners of the block and associated whānau and hapū members had guaranteed future access to the island. [19] At the second hui held on 6 December 2008 at Poroporo Marae, Pukehina, the minutes record that eight owners in attendance resolved to support the construction of a new airstrip. At the same hui the issue of the Faulkners wanting to build on the block was discussed Waikato Maniapoto MB 82 and 96 (128 WMN 82 and 96).

5 136 Waikato Maniapoto MB 282 [20] The airstrip was then formed and in use between late 2008 until late March The development of the Motiti Island Environmental Management Plan ( MIEMP ) [21] The Minister of Local Government is the territorial authority for Motiti, pursuant to s 22 of the Local Government Act In reality Motiti has no real infrastructure and has avoided interest from the mainland being essentially remote and self-managing. 6 [22] In 1995 the Environment Court had before it an application for subdivision. The Environment Court recommended to the Minister of Local Government, that a District Plan be prepared for Motiti. 7 [23] A proposed plan was notified by the Minister on 15 December Commissioners heard submissions in July 2007 and issued an interim decision on 14 August A final decision was issued on 29 October [24] That decision was appealed, and appeals were heard by the Environment Court in late August An interim Environment Court decision was issued on 20 December Mr Graham Hoete was particularly active as an appellant throughout the Environment Court process opposing the development of the plan. [25] In their interim decision the Environment Court recorded that: 8 [4] That decision and subsequent actions of the Minister or his agents is the subject of much criticism. [5] There has been strong resistance to a Plan by Motitians and those that relate to the island. There are also divisions among the residents themselves and with those who whakapapa to the island but live on the mainland. The Plan process has been fraught and divisive. [26] In the same judgment the Environment Court recorded the following: 9 [c] Beyond this there are three airfields. Those most frequently used are the Wills airstrip, known as the Post Box, and the Motiti Avocados airfield. More recently, the Hoetes have prepared an alternative airstrip on their property adjacent to the Post Box, but about 400m 500m to the north. We understand that the airline servicing the Island seeks 6 Hoete v Minister of Local Government [2012] NZEnvC 282 at [2]. 7 Berkett v Minister of Local Government A6/97, 23 January Hoete v Minister of Local Government. [2012] NZEnvC 282 at [4] and [5]. 9 Ibid at [34][c].

6 136 Waikato Maniapoto MB 283 to consolidate flights to one site, and generally, the Post Box seems to be the most frequent for general rostered flights. [27] Various aspects of the interim decision were appealed to the High Court. The High Court released a decision dated 31 May [28] There were subsequent hearings in the Environment Court on 5 and 6 December [29] On 19 December 2013 the Environment Court issued directions. The Environment Court referred to the ahi kā of Motiti feeling as if they had been left out of the loop during the Environment Court process. At paragraph [12] the Environment Court said: 11 [12] Nevertheless, they appear to have been involved in the mediation process, and a number of changes made to the Plan seem to be a direct result of discussions at mediation. For example, Mr Frentz tells us that the removal of the airfields was essentially at the request of the parties, given that there appeared to be dispute about the airfield on Maori land, known to us as the Hoete airfield. [30] At paragraph [19] the Environment Court said: 12 [19] It seems to me that the Minister now needs to suggest the appropriate wording for the issues requiring clarification, particularly identifying aircraft fields, reasons for no Esplanade Reserves and modifying the access provisions to show the reasons for the lack of access on the island. [31] A further hearing took place before the Environment Court between September A decision was released dated 31 October In that decision the Environment Court referenced the direction to the Minister of Local Government to consider appropriate wording for the aircraft fields and explanations clarifying the identification of the airfields Motiti Avocados Limited v Minister of Local Government [2013] NZHC Environment Court Directions (19 December 2013) Department of Internal Affairs < for people, communities and businesses/offshore island administration/development of the Motiti Island Environmental Management Plan/First Hearing (December 2013) Environment Court directions> at [12]. 12 Ibid. 13 Hoete v Minister of Local Government [2014] NZEnvC Ibid at [13] and [15].

7 136 Waikato Maniapoto MB 284 [32] A final decision and directions of the Environment Court was released on 19 January At paragraph [4] the Court recorded Mr Graham Hoete s perspective and that of tangata whenua on the island, that the plan was not acceptable. Notwithstanding those comments the Court confirmed that the plan should be made operative. The MIEMP became operative on 6 May [33] Although the Minister of Local Government is the territorial authority for Motiti Island, the Department of Internal Affairs provides administrative support in relation to Motiti Island and provides operational functions for the Minister. 17 Subsequent events [34] In late March 2016, Liza Faulkner was responsible for the partial construction of a small house on the block. It is located on the airstrip. An interim injunction was granted on 8 April 2016 restraining any further work on the house. 18 [35] On 1 June 2016, the injunction application was set down for a substantive hearing. On that day the parties agreed that certain questions about the airstrip and a proposed partition application by the Faulkner whānau should be referred to a meeting of owners. I directed the Registrar to call a meeting of owners pursuant to ss 172 and 173 of Te Ture Whenua Māori Act 1993 ( the Act ). On the same day I varied the interim injunction application to allow Liza Faulkner to carry out necessary weatherproofing work to the house. Other than that variation, the interim injunction remained in force. 19 [36] On 14 June 2016, the partition application was filed by Mary Faulkner. [37] On 23 July 2016, a meeting of assembled owners took place, chaired by a Deputy Registrar of the Māori Land Court. That is a matter to which I will return later. 15 Hoete v Minister of Local Government [2015] NZEnvC Affirmation of Glenn Webber, dated 4 November Director Local Government. His evidence was to the effect however that the rules and the plan effectively came into force when the plan was first notified on 16 December Ibid, paras [3], [8]-[9] Waikato Maniapoto MB (118 WMN 30-37) Waikato Maniapoto MB (121 WMN ).

8 136 Waikato Maniapoto MB 285 [38] The applications returned to Court for a further substantive hearing on 26 August After hearing evidence in relation to both applications, the matter was adjourned to await a joint memorandum from counsel about further issues and evidence that needed to be obtained. 20 [39] One of the significant gaps in the evidence at that stage was the lack of any planning evidence concerning the MIEMP. After receiving memoranda from counsel, the Court issued directions to the Department of Internal Affairs on 22 September 2016 to file evidence responding to a number of questions posed by the Court. [40] That evidence was subsequently received on 4 November [41] The matter returned to Court for a final substantive hearing on 13 December A site visit was carried out during the morning and in the afternoon the Court heard the evidence of the Department of Internal Affairs witness and final submissions. 21 The permanent injunction application [42] Aubrey and Graham Hoete originally sought an order that Liza Faulkner remove her house from the block entirely. They have now modified their position whereby they require her to move her house at least 50 metres from the centre line of the airstrip on the block. They say that they would not object to members of the Faulkner whānau building a house outside of an area extending 50 metres either side of the centre line of the airstrip. 22 The distance of 50 metres reflects r of the MIEMP which prohibits buildings in an area 50 metres either side of the centre line of the airstrip. [43] Liza Faulkner and others are co-owners and thus entitled to possession of the land. The Hoetes submit however that her actions in building the house on the airstrip amounts to trespass by ouster, a species of trespass whereby a co-owner wrongfully excludes a fellow co-owner from exercising his or her right of possession Waikato Maniapoto MB (121 WMN ) Waikato Maniapoto MB (133 WMN ) Waikato Maniapoto MB 83 and 86 (128 WMN 83 and 86).

9 136 Waikato Maniapoto MB 286 [44] In response, Liza Faulkner and her whānau oppose any permanent injunction. They submit that: Any reliance by the Hoetes on the December 2008 hui is deeply flawed. At best the evidence points to only eight owners in support of an airstrip; (b) They understood that the airstrip would be interim or temporary in nature until such time that the mailbox airstrip was again available for use. The current owners of the land upon which the mailbox airstrip is situated do not prevent anyone from using that airstrip; (c) The process used by the Minister of Local Government and the Environment Court for the development of the MIEMP was flawed. On the issue of the inclusion of the airstrip in the plan, they point to a request as owners of the land, for the airstrip to be removed from the plan. It was initially removed but then at the direction of the Environment Court included in the final plan; (d) Incorrect information was given to them by the Department of Internal Affairs as to how the airstrip could be removed from the plan; (e) The majority of owners who attended the meeting of assembled owners on 23 July 2016 do not support the airstrip being retained on the block; (f) Liza Faulkner has not ousted her fellow co-owners by building a house on the block. She says that it is actually the Hoetes who have ousted their fellow co-owners by constructing an airstrip; (g) The Māori Land Court should be reluctant to involve itself in this matter. They characterise the situation as one in which the responsibility for the enforcement of a district plan and its rules rightfully falls to the Minister of Local Government and the Department of Internal Affairs. Counsel for Ms Faulkner characterised the issue as a planning one regarding the

10 136 Waikato Maniapoto MB 287 interpretation of the plan and not an issue which this Court should involve itself in. Legal principles [45] Section 19(1) reads as follows: 19 Jurisdiction in respect of injunctions (1) The court, on application made by any person interested or by the Registrar of the court, or of its own motion, may at any time issue an order by way of injunction against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land, Maori reservation, or wahi tapu; or [46] An action for trespass to land is primarily intended to protect possessory rights, rather than rights of ownership. Accordingly, the person prima facie entitled to sue is the person who had possession of the land at the time of the trespass. Actual possession consists of two elements: the intention to possess the land and the exercise of control over it to the exclusion of other persons. 23 [47] Where land is owned by two or more people as tenants in common, each is entitled to possession of the whole land and each can sue a third party on his or her own, or independently licence a third party to enter upon the land. Since each co-owner is entitled to be present on the land and to make normal use of it, neither can sue the other for trespass unless one co-tenant expels the other from the land or destroys the subject matter of the tenancy. 24 [48] The Māori Appellate Court decisions of Te Hokowhitu v Proprietors of Matauri X, 25 and Taueki v Horowhenua Sailing Club, 26 are authorities for the proposition that when applying for a permanent injunction, applicants must establish that the elements relating to the action of trespass are made out. The prima facie rule is that those entitled to possession are entitled to an injunction to restrain a trespass. In those cases the Court reminded itself 23 Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016 at [9.204]. 24 Ibid. 25 Te Hokowhitu v Proprietors of Matauri X [2010] Maori Appellate Court MB 566 (2010 APPEAL 566). 26 Taueki v Horowhenua Sailing Club Horowhenua 11 (Lake) Block [2014] Maori Appellate Court MB 60 (2014 APPEAL 60).

11 136 Waikato Maniapoto MB 288 that an application for the grant of a permanent injunction requires an exercise of discretion. In considering whether or not to grant any remedy, even in a case of continuing a trespass, the Court may refuse an injunction if the circumstances of the case bring it within the good working rule mentioned in Shelfer v City of London Electric Lighting Co and other exceptional circumstances. 27 Trespass by ouster [49] Ordinarily a tenant in common may not sue another co-tenant in trespass where that co-tenant is simply making normal and ordinary use of the land. However, in circumstances where the co-tenant has ousted the other co-tenant from the land or destroys the subject matter of the tenancy, trespass by ouster may occur. [50] In Sitarz v Burke, Tipping J defined trespass by ouster as follows: 28 That rather antique expression simply means that the Respondents have been kept out of land which, by reason of the state of the title and usage, they have a right to pass over. There is no evidence which could suggest that they have abandoned or waived that prima facie right; if anything the contrary applies. [51] The Supreme Court in Wu v Body Corporate said: 29 [116] With respect to property owned in common, since each co-owner is entitled to be present on the land and to make normal use of it, neither can sue the other for trespass, unless one co-owner expels (ousts) the other from the land or destroys the subject matter of the tenancy. [117] In this case, the respondents, who act on behalf of the co-owners in managing, maintaining and controlling the common property, have unlawfully excluded Mr Wu from accessing the common property that he has a legal interest in. Mr Wu therefore has an action in trespass. [52] In this case Graham and Aubrey Hoete submit that: The decision to build the airstrip received broad support from the owners in late 2008; (b) The airstrip was lawfully established; 27 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (CA). 28 Sitarz v Burke HC Christchurch AP 259/93, 9 August Wu v Body Corporate [2015] 1 NZLR 215 (SC) at [116] and [117].

12 136 Waikato Maniapoto MB 289 (c) As a matter of fact, the airstrip was formed in late 2008 and was used as such until late March 2016; (d) The MIEMP the District Plan protects the status of existing airstrips. Specifically they point to a rule contained within the plan r which prohibits the construction of buildings in an area extending 50 metres either side of the centre line of the runway and for a distance of 200 metres from either end of the runway. Discussion [53] The Hoetes submit that there was broad support from among the owners in 2008 for the formation of the airstrip. The only evidence the Court has before it is that at the meeting of 6 December 2008, eight owners supported an airstrip. Even that proposition is shaky given that there is no evidence that those who voted in support were actually owners. Added to that there is little evidence that notice of the hui and topic of the airstrip was widely disseminated amongst the owners. Even if eight owners did support the resolution, quite clearly the majority of the owners did not vote or have an initial say on the formation of an airstrip. Added to that is the position of the Faulkner whānau who, at the same meeting, indicated that they wished to eventually build on the block and that the airstrip be an interim one only. [54] I set out two of the resolutions posed for the owners at the Court directed meeting which was held on 23 July 2016: A airstrip 1.1 Do the owners support the existing airstrip being retained on Motiti North C 1? 1.2 Do the owners support the airstrip remaining in the Motiti Island Environmental Management Plan (the District Plan) as an existing airstrip? [55] 27 owners out of a possible 83 owners voted on those resolutions. Those 27 owners had a combined total of 56.8 per cent of the shareholding. 30 Report of the Recording Officer dated 23 July Owners attended in person, 6 voted by proxy and 2 by postal vote.

13 136 Waikato Maniapoto MB 290 [56] In relation to the first resolution, 21 owners voted against the resolution. Those owners represented per cent of the owners on a head count basis and per cent of the shareholding. Six owners voted in favour of the resolution. Those owners on a head count basis represent 7.23 per cent of the ownership and per cent of the shareholding. The voting in respect of resolution two was exactly the same. [57] In summary there is little evidence which suggests that the airstrip was ever broadly supported by the owners. [58] The process by which the airstrip became included in the MIEMP is unclear. The evidence before me indicates that Graham Hoete was throughout steadfastly opposed to the MIEMP, although whether that opposition also extended to the inclusion or not of the airstrip I am unsure of. [59] There is evidence before me which indicates that members of the Faulkner whānau lobbied for the airstrip not to be included on any of the planning maps. An agreement was reached to that effect at mediation on 24 September Mr Keith Frentz, a planner who was commissioned by the Department of Internal Affairs to assist in the development of the plan, and Susan O Neill, a senior policy analyst from the Department of Internal Affairs, both agreed in s dated 4 November 2013 that none of the airstrips would be labelled on the planning maps since there was disagreement about their inclusion. 31 That change to the plan was expressly mentioned in the directions of the Environment Court dated 19 December [60] It was a surprise then to the Faulkner whānau that the airstrip on Motiti North C No 1 was reinstated in the planning maps. On 12 March 2014, Eunice Evans on behalf of the Faulkner whānau sent an to Mr Frentz referring to the agreement to delete the airstrip from the planning maps on the basis that land owners, including herself, had not given formal agreement to its establishment. She referred to the fact that in the latest 31 Respondents bundle of documents ref Environment Court Directions (19 December 2013) Department of Internal Affairs < for people, communities and businesses/offshore island administration/development of the Motiti Island Environmental Management Plan/First Hearing (December 2013) Environment Court directions> at [12].

14 136 Waikato Maniapoto MB 291 version of the plan the airstrip had been included again, that there had never been any formal process of approval via the Māori Land Court nor from all of the legal owners. 33 [61] In response Mr Frentz said by dated 12 March 2014: 34 Sorry Eunice, that was an instruction from the Judge in response to a submission by the MRMT. I was not able to do anything else. [62] There is some evidence before me which suggests that the Faulkner whānau were advised that if they wished to remove the airstrip from the plan, they needed to obtain 75 per cent of the owners approval to do so. Apparently the 75 per cent is a reference to the Māori Assembled Owners Regulations If advice to that effect was given by the Department of Internal Affairs or any consultants or contractors acting for it, it was incorrect. [63] The respondents have obtained an internal memorandum dated 8 April 2016 from the Department of Internal Affairs. 35 The memorandum references, amongst other things, to the question of whether or not the airstrip was correctly included within the plan and whether any process pursuant to the Act was followed in relation to the establishment of the airstrip. [64] Clearly the inclusion or not of the airstrip on the block was a controversial issue during the development of the plan. Agreement appears to have been reached in mediation that it be removed and then it was reinserted in the planning maps. Precisely how that happened and whether or not it should have been, given the lack of support from all of the owners, is undoubtedly a major source of frustration for the Faulkner whānau. [65] A further issue is that the airstrip is not part of any public infrastructure on Motiti. In fact there is no public infrastructure on the island. The block has not been designated for an airstrip. The formulation of the plan itself, and the inclusion of this airstrip in the plan has been fraught with controversy. In those circumstances, counsel for the Faulkner whānau has submitted, in effect the Māori Land Court is being asked to intervene in a 33 Affidavit of Umuhuri Matehaere dated 25 August 2016 exhibit UM6. 34 Ibid. 35 Respondents bundle of documents ref 21.

15 136 Waikato Maniapoto MB 292 planning dispute which involves an interpretation of the plan and its rules when the responsible authority, the Department of Internal Affairs, are reluctant to become involved. [66] There is more than an element of truth in that submission. The internal memorandum from the Department of Internal Affairs lists a host of issues concerning the airstrip and potential non-compliance with the District Plan by the construction of the Faulkner dwelling. The memorandum discusses a number of steps and suggests that, before any enforcement action is taken, mediation might be an appropriate interim response. [67] Both counsel have written to the Department of Internal Affairs stating their respective clients position. To date, the Department of Internal Affairs has taken no steps to visit the island, carry out a site inspection, meet with the parties, hold a mediation or take any enforcement action. In answer to a question from the Court as to why not, Mr Webber, on behalf of the Department of Internal Affairs, responded that they were waiting to see what decision the Māori Land Court would reach on the applications before it. 36 [68] In addition to this case I also recently presided over another application involving Māori land at Motiti Island where the question of the applicability of the MIEMP was at issue. 37 In both instances I called for evidence from the Department of Internal Affairs. [69] In both cases, Māori residents on Motiti Island and the Māori land owners have expressed frustration about the imposition of the MIEMP. There is little understanding by them as to the potential effects and implications of the plan, for example how the papakāinga rules will apply. Rather, there is a degree of support for the mistaken belief that the plan simply doesn t apply to them and it is business as usual in the sense that they remain self-governing. [70] In both cases, witnesses from the Department of Internal Affairs expressed a desire to liaise and meet with the parties in an attempt to resolve the issues. However in neither case has any specific action been taken to date. By remaining aloof from the fray, I sense a Waikato Maniapoto MB 83 (133 WMN 83). 37 That application was an application for an inquiry into a Māori reservation pursuant to reg 21 of the Māori Reservations Regulations 1994 A

16 136 Waikato Maniapoto MB 293 lack of confidence by Motiti Māori that the Department of Internal Affairs can and will properly administer the plan. [71] Balanced against those concerns are a number of other factors which I must take into account. First, is the fact that an airstrip was formed and in use for a number of years prior to the construction of the Faulkner house made that impossible. [72] Second, there is the location of Liza Faulkner s house. When asked under crossexamination why she put the house right in the middle of the airstrip, she responded as follows: 38 Can I just be clear here, I put my house on Mum s whenua not on an airstrip. And it wasn t though that everybody knew that we were going to build there and we were going to have a papakāinga, so I believe I did not build in the middle of the airstrip, I built on Mum s whenua that was passed down from her father and is whenua tuku iho that s what I believe. [73] During the site visit I saw the location of the house. It is built directly on the airstrip and located as such that it would be impossible for planes to land or take off. In the site where it is located, the block is approximately 200 metres in width. It is no coincidence that the dwelling, which is relatively small, is located directly in the path of the airstrip. Notwithstanding Liza Faulkner s answers to questions on this topic, I draw the irresistible inference that the house was built deliberately on the airstrip to ensure that it could not operate as an airstrip. [74] Thirdly, notwithstanding the concerns raised by the Faulkners, the Māori Land Court is not privy to all of the evidence and information that was put before the Environment Court. More significant than that is the fact that it is not the role of the Māori Land Court to undertake a review function of the Resource Management/Environment Court process. The Environment Court was lawfully seized of appeals concerning the MIEMP. Although the process was protracted, controversial and difficult, a final form of the plan was approved in It is not the job of the Māori Land Court to judicially review that process or decision. 39 [75] I understand that the Faulkner whānau were not formally represented in the Environment Court process as appellants or parties pursuant to s 274 of the Resource Waikato Maniapoto MB 131 (128 WMN 131). 39 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) at 590 line 10.

17 136 Waikato Maniapoto MB 294 Management Act However they were clearly involved at the mediation process, and iwi representative groups were advocating for some of the issues relevant to them. If dissatisfied with the decision of the Environment Court, appeal or judicial review options were available. Those options were not pursued. Alternatively, they could attempt to persuade the responsible Minister to entertain a private plan change whereby the airstrip is removed from the plan. [76] The fourth factor that I must take into account is that there is an operative District Plan in place. The airstrip is not specifically mentioned in the plan other than its inclusion in the planning maps. Having said that, the three airstrips were well known to the Environment Court. The airstrip on Motiti North C No 1 was referred to by the Environment Court on a number of occasions. 40 [77] Section 75(1) of the Resource Management Act 1991 provides that a district plan must state: The objectives for the district; and (b) The policies to implement the objectives; and (c) The rules (if any) to implement the policies. [78] The MIEMP is structured in such a way that in the first section it identifies six distinct environmental topics. Two of those topics are of relevance, being Physical Resources and Infrastructure (Topic 4) and Emergency Management (Topic 6). [79] Under Topic 4, issue 4.3 of the plan identifies that communication links to Motiti must be maintained to ensure the health and safety of the residents and visitors. Objective indicates that transport infrastructure on and around Motiti must be maintained or enhanced to provide for the health and safety of the community and the environment. Policy is aimed at ensuring that existing and new transport infrastructure to and on 40 Hoete v Minister of Local Government [2012] NZEnvC 282 at [34][c]; Hoete v Minister of Local Government [2014] NZEnvC 228 at [15], [16] and [55][b]; and Environment Court Directions (19 December 2013) Department of Internal Affairs < for people, communities and businesses/offshore island administration/development of the Motiti Island Environmental Management Plan/First Hearing (December 2013) Environment Court directions> at [12] and [19].

18 136 Waikato Maniapoto MB 295 Motiti is constructed and maintained to a standard that will safeguard the health and safety of the community. Planning method 6 indicates that rules will be established for the development and maintenance of new infrastructure on Motiti, including airstrips. [80] In the Explanation and Principal Reasons section of Environmental Topic 4: Physical Resources and Infrastructure the plan states that: Access to Motiti is either by sea or by air and is provided by private individuals or companies. It is critical for the on-going success of the island community that the infrastructure required to support air and sea links the airstrip, wharves, jetties and slipways are lawfully established and maintained to a safe standard by the private owners. [81] Topic 6 in the plan is Emergency Management. Issue 6.1 of the plan identifies that there are limited emergency response resources on the island and that emergency events require an extraordinary response from either island residents or mainland organisations to provide for or protect the health and safety of people and property. Objective of the plan seeks to avoid, remedy or mitigate the effects of emergency events by providing appropriate response measures. Policy provides that life-line infrastructure such as airstrips, should be designed, constructed and maintained to a standard that ensures that they can withstand significant storm events. [82] Section 3 of the plan sets out various rules. The Land-Use and Subdivision Activity Status table at 3.1 of the plan provides that transportation activities, including the establishment and operation of new airstrips are a permitted activity. [83] Rule of the plan is relevant, it reads as follows: Building Restrictions along Airstrip Alignments No buildings shall be erected along the alignment of any existing airstrip, or any new airstrip, in an area extending 50m either side of the centreline of the runway and for a distance of 200m from either end. [84] Sections 76(1) and (2) of the Resource Management Act 1991 reads: 76 District rules (1) A territorial authority may, for the purpose of carrying out its functions under this Act; and

19 136 Waikato Maniapoto MB 296 (b) achieving the objectives and policies of the plan, include rules in a district plan. (2) Every such rule shall have the force and effect of a regulation in force under this Act but, to the extent that any such rule is inconsistent with any such regulation, the regulation shall prevail. [85] Every rule in a district plan has the force and effect of a regulation. They are not open to collateral challenge on the grounds of unreasonableness. 41 To the extent that the case mounted by the Faulkners represents a collateral challenge to the reasonableness of r 3.2.5, that challenge must fail. Summary [86] This is a case in which the construction and maintenance of an airstrip on the block is a permitted activity. There is a specific rule in the District Plan which provides that buildings shall not be erected within an area extending 50 metres either side of the centre line of the airstrip and for a distance of 200 metres from either end. In this case a house has been built in the middle of the airstrip, which I found was an act done deliberately to thwart the use of the airstrip. [87] Graham and Aubrey Hoete and others have been unable to use part of the block as an airstrip which, by reason of its recent usage and the provisions of the relevant District Plan, they were entitled to do. [88] In the exercise of my discretion, I have given serious consideration as to whether or not the Māori Land Court should grant the order sought. Undoubtedly it would be preferable for the Department of Internal Affairs, as the entity tasked with providing administrative support for the operational functions of the Minister to have taken action in the first instance. After all, the case responds in part to an understanding and interpretation of the MIEMP. Having said that, the Māori Land Court undoubtedly has jurisdiction to entertain the permanent injunction application and the activity complained about, being a house built on the airstrip, given it is located on Māori freehold land. Thus I have taken the position that I should not step away from the issue or the necessity for it to be considered head on by this Court. 41 Ashburton Borough v Clifford [1969] NZLR 927 (CA).

20 136 Waikato Maniapoto MB 297 [89] Having done so I consider that the applicants are entitled to an order for a permanent injunction on the basis that they have been ousted from being able to use part of the block as an airstrip, as provided for in the District Plan. The partition application [90] Mary Faulkner is the last surviving child of Rameka and Te Paekitawhiti Hoete. Although she is one of 83 owners in the block, she holds the largest shareholding, out of a total of 41 shares. There was a common, if informal, understanding that the four children of Rameka and Te Paekitawhiti Hoete were allocated approximately six acres each for their own use. Based upon that informal understanding the Faulkner whānau have expressed a desire to build a papakāinga on the block using their allocated six acres. [91] As I have discussed earlier, a hui was held in late February 2004 at which owners agreed to support the Faulkner whānau partitioning out their six acres to build a papakāinga. Later at the hui which took place concerning the construction of an airstrip in late 2008, the Faulkner whānau continued to raise as an issue their desire to build on the block. Therefore the concept of the Faulkner whānau developing a papakāinga on the block for their branch of the whānau is not a new one. Having said that, no formal steps were taken by them to progress the matter until a partition application was filed on 14 June [92] The application for partition is opposed by Graham and Aubrey Hoete for a number of reasons. In summary they are: They call into question the outcome of the Court directed meeting of owners which took place on 23 July They query whether the owners truly had a sufficient opportunity to discuss the application. They point to only 21 out of 83 owners being present. They are critical that the proposed area sought by way of partition was amended at the meeting. They raise as an issue that Mary Faulkner s daughters propose retaining shares in the block even if their mother, Mary Faulkner, is successful in her partition;

21 136 Waikato Maniapoto MB 298 (b) They submit that a partition is not necessary in order to build on the block. They have indicated that they do not oppose houses being built, providing they do not infringe upon the 50 metre setback area referred to in r of the MIEMP. Furthermore, they point to significant difficulties in achieving a papakāinga due to the restrictive nature of the District Plan; (c) They question the informal arrangements which the Faulkner whānau rely on. They point to a lack of evidence concerning those arrangements. They submit that if the partition is granted, it is for a prime part of the block and the flattest area; (d) They submit that an airstrip is a critical piece of infrastructure. Without any legal right to access the Motiti Avocados Limited airstrip they have to rely upon grace and favour arrangements with the current owners of the mailbox airstrip. They point to the fact that access to them has been denied in the past and they wish to maintain an airstrip for access for the owners of the block, and the wider whānau and hapū members, who otherwise would have no legal access to the island; (e) Even if a partition is successful, as a matter of law that process will not result in a new lot or title being created. Thus the Faulkners could not, as of right, build one dwelling as a permitted activity; (f) They submit that there is a reasonable alternative which is for the Faulkner house to be built on the block, with an appropriate mechanism such as an occupation order; (g) They point to the Environment Court describing the existing level of housing on Motiti as excessive and unsustainable. 42 Legal principles [93] Sections 287 and 288 of the Act are relevant. I set those out in full: 42 Hoete v Minister of Local Government [2012] NZEnvC 282 at [176].

22 136 Waikato Maniapoto MB Jurisdiction of courts (1) Subject to subsection (3), the Maori Land Court shall have exclusive jurisdiction to make partition orders, amalgamation orders, aggregation orders, and exchange orders in respect of Maori land, and to grant easements and lay out roadways over Maori land. (2) The jurisdiction conferred on the Maori Land Court by this Part shall be discretionary, and, without limiting that discretion, the court may refuse to exercise that discretion in any case if it is not satisfied that to do so in the manner sought would achieve the principal purpose of this Part. (3) Nothing in this section shall apply in respect of any Maori reserve. (4) Except as provided in subsection (1), nothing in this Part shall limit or affect the jurisdiction of the High Court. 288 Matters to be considered (1) In addition to the requirements of subsections (2) to (4), in deciding whether or not to exercise its jurisdiction to make any partition order, amalgamation order, or aggregation order, the court shall have regard to (b) (c) the opinion of the owners or shareholders as a whole; and the effect of the proposal on the interests of the owners of the land or the shareholders of the incorporation, as the case may be; and the best overall use and development of the land. (2) The court shall not make any partition order, amalgamation order, or aggregation order affecting any land, other than land vested in a Maori incorporation, unless it is satisfied (b) that the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. (3) The court shall not make any partition order, amalgamation order, or aggregation order affecting any land vested in a Maori incorporation unless it is satisfied (b) that the shareholders of the incorporation to which the application relates have been given express notice of the application; and that the shareholders have passed a special resolution supporting the application. (4) The court must not make a partition order unless it is satisfied that the partition order (b) is necessary to facilitate the effective operation, development, and utilisation of the land; or effects an alienation of land, by gift, to a member of the donor s whanau, being a member who is within the preferred classes of alienees. [94] The leading authority on the interpretation of those sections is Brown v Māori Appellate Court. 43 Principles developed in that case have been approved by the Court of Appeal in the case of Whaanga v Smith. 44 I set out in full the following passages from Brown: 43 Brown v Maori Appellate Court [2001] 1 NZLR 87 (HC). 44 Whaanga v Smith [2015] NZCA 121.

23 136 Waikato Maniapoto MB 300 [48] If the two requirements of s 288(2) and (4) are met in the case of an application for partition, the Court, in deciding whether or not to grant the application, is required by s 288(1) to have regard to: (b) (c) The opinion of the owners or shareholders as a whole; and The effect of the proposal on the interests of the owners of the land or the shareholders of the incorporation, as the case may be; and The best overall use and development of the land. [49] Even then, under s 287(2) the Court has a discretion whether or not to grant the application: (2) The jurisdiction conferred on the Maori Land Court by this Part of the Act shall be discretionary, and, without limiting that discretion, the Court may refuse to exercise that discretion in any case if it is not satisfied that to do so in the manner sought would achieve the principal purpose of this Part of this Act. [50] The powers conferred exclusively on the Maori Land Court by Part XIV are for the purposes identified in s 286: to facilitate the use and occupation by the owners of land owned by Maori. The statute requires particular caution in the case of title reconstruction, especially by way of partition. The Court must be satisfied that there is sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter (s 288(2)). And the Court must be satisfied that the partition is necessary to facilitate the effective operation, development, and utilisation of the land (s 288(4)) (emphasis added). [51] Necessary is properly to be construed as reasonably necessary (Commissioner of Stamp Duties v International Packers Ltd [1954] NZLR 25, 54 per North J). We do not accept the contrary suggestion by Judge Spencer in the Maori Appellate Court, where at p 3 of his judgment he expresses the view that, in context, an order is not necessary unless there is no other way. The Court is not required to conclude in an absolute sense that there is no other way. But the test is not a light one. Necessity is a strong concept. What may be considered reasonably necessary is closer to that which is essential than that which is simply desirable or expedient (Environmental Defence Society v Mangonui County [1989] 3 NZLR 257, 260 per Cooke P). Section 288(2) criteria [95] Based on the evidence before me I am satisfied that the owners have had sufficient notice of the application, a sufficient opportunity to discuss and consider it and there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. [96] In reaching that view I do not take into account the outcome of the 26 February 2004 hui. In reaching my conclusion on this point I have relied upon the evidence filed in support of the application and the outcome of the Court directed meeting of assembled owners which took place on 23 July 2016.

24 136 Waikato Maniapoto MB 301 [97] The Hoetes have cast doubt upon the extent to which the Court can take into account the views expressed at the meeting of assembled owners. I will turn in a moment to examine more closely the outcome of that meeting, however that submission fails to take into account that of the 83 owners listed in the Māori Land Court records, the Faulkner whānau was able to obtain contact details for 82 out of the 83 owners. From those 82 owners they obtained written consents for 42 owners in support of the partition. That material was filed simultaneously with the partition application when it was filed in June [98] At the urging of counsel, the Court directed a meeting of assembled owners. It duly took place on 23 July 2016 and was chaired by a Deputy Registrar of the Māori Land Court. On the question of partition the following resolution was put to the owners: 2. A Partition Application by Mere Mihiora Faulkner 2.1 Do the owners support the partition application by Mere Mihiora Faulkner ( shares) to take approximately 2.42 hectares out of the Motiti North C 1 Block (area hectares, 41 shares in total) in the location shown on the sketch plan accompanying the partition application? [99] Including proxy and postal votes, 27 owners cast votes in respect of this resolution. The outcome was as follows: The number of owners who voted in support of the resolution were 20. On a head count basis that represented per cent of the total owners. Those 20 owners held shares, on a percentage basis that represents per cent of the total shareholding; (b) Six owners voted against the resolution. On a head count basis that represented 7.23 per cent of the total owners. Those six owners held shares, on a percentage basis that represents per cent of the total shareholding. [100] I note the criticisms made by the Hoetes of the meeting of assembled owners in that there was a minor amendment made to the area sought by way of partition. As I understand the evidence however it was not to increase the size of the area sought by way Waikato Maniapoto MB and 107 (128 WMN and 107).