IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV-2016-463-000181 [2017] NZHC 56 UNDER the Residential Tenancies Act 1986 IN THE MATTER BETWEEN AND of an appeal from a decision of the District Court in Taupo JOANNE MIHINUI, MATATAHI MIHINUI, TANIA MIHINUI Appellants ATTORNEY-GENERAL FOR THE MINISTRY OF EDUCATION First Respondent WESTERMAN PROPERTY SOLUTIONS LTD Second Respondent Hearing: 20 October 2016 Appearances: Appellants, and Hiria Mihinui, in Person S S Eccles and V J Bland for First Respondent Judgment: 1 February 2017 JUDGMENT OF PALMER J This judgment is delivered by me on 1 February 2017 at 2 pm pursuant to r 11.5 of the High Court Rules.... Registrar / Deputy Registrar Party/Solicitors: J Mihinui Crown Law, Wellington MIHINUI v ATTORNEY-GENERAL FOR THE MINISTRY OF EDUCATION [2017] NZHC 56 [1 February 2017]
Summary [1] The appellants are occupying 16 properties in Tūrangi. The Crown wants to use or dispose of them, with Ngāti Tūrangitukua having the first right of refusal. The Crown sought, and the Tenancy Tribunal granted, possession orders over the properties. The appellants appeal on the basis they have unextinguished aboriginal title to the properties and they do not recognise the Crown s sovereignty or laws. The appellants arguments are not sustainable. I decline the appeal. Facts [2] In 1964, the Crown used powers of compulsory acquisition under the Public Works Act 1928 to take land from the Ngāti Tūrangitukua hapu of Ngāti Tūwharetoa. It built the town of Tūrangi which initially housed workers involved in constructing the Tongariro Power Development and then became a permanent township. [3] In its 1995 Turangi Township Report, the Waitangi Tribunal found the Crown breached the Treaty of Waitangi in a number of significant ways. 1 The Tribunal left the Crown and Ngāti Tūrangitukua to negotiate over remedies. 2 Those negotiations did not reach a resolution. Accordingly, in its 1998 Turangi Township Remedies Report the Tribunal made binding recommendations for the return of certain Crownowned land and compensation to Ngāti Tūrangitukua. 3 [4] In responding to the Tribunal s Remedies Report, the Crown and Ngāti Tūrangitukua negotiated a Deed of Settlement dated 26 September 1998, certain provisions of which was given effect by the Ngāti Tūrangitukua Claims Settlement Act 1999 (the Settlement Act). One of the elements of the settlement is the Crown made a Deed of Grant of Right of First Refusal for Crown Residential Properties on 19 November 1998. In that Deed the Crown granted to an Iwi company, Tūrangitukua Nominees Ltd, a right of first refusal including over the relevant Crown properties here. 1 2 3 Ngati Turangitukua Claims Settlement Act 1999, Preamble, recital J. Waitangi Tribunal Turangi Township Report (Wai 84, 1995). Waitangi Tribunal Turangi Township Remedies Report (Wai 84, 1998).
[5] Some of the Crown s properties, formerly used for teachers accommodation, are owned by the Ministry of Education. One property is owned by the Ngāti Tūrangitukua Charitable Trust and leased by the Ministry. Before their acquisition by the Crown these properties had passed through the Native Land Court under the Native Land Act 1909. The properties are now general freehold land registered under the Land Transfer Act 1952. [6] In 2014 the Ministry discovered a number of people had entered 16 of the unoccupied properties and changed the locks. They were living in, and renting out, the properties. [7] The Ministry was advised that a school required accommodation for staff in one of the occupied properties. The Ministry also began the process of disposing of some of the properties which included honouring the first right of refusal obligation to Ngāti Tūrangitukua. [8] The Ministry sought possession orders under s 65 of the Residential Tenancy Act 1986 over the 16 properties. That section requires the Tribunal to make possession orders when it is satisfied that any person is in possession of premises as a squatter or trespasser. On 30 January 2015 the Tenancy Tribunal granted the orders sought. 4 An application for rehearing was dismissed on 2 March 2015. 5 [9] Ms Joanne Mihinui appealed the Tribunal s decision to the District Court. On 8 December 2015 Judge McGuire dismissed the appeal. 6 He considered the appellant had failed to show the Tribunal s decision was wrong. Ms Joanne Mihinui, Mr Matatahi Mihinui and Ms Tania Mihinui now appeal to the High Court. Submissions [10] As a preliminary point, Mr Eccles submitted for the Crown the appellants do not have standing as they do not appear to be occupants of the properties and it is 4 5 6 Ministry of Education v The Occupiers 14/01790/RO, 30 January 2015. Ministry of Education v The Occupiers 14/01790/RO, 2 March 2015. Mihinui v Attorney-General for the Ministry of Education [2015] NZDC 24107.
unclear what personal interest they have in the proceedings. However the Crown did not press the point at the hearing. The submissions have been fully heard. [11] The appellants submissions reflect their submissions to the Tenancy Tribunal and the District Court. There appear to be two key points: (a) The appellants submit they have unextinguished aboriginal title to the properties. They cite in support the Declaration of Independence of 1835, the Treaty of Waitangi, the New Zealand Constitution Acts of 1846 and 1852 and Ngāti Apa v Attorney-General. 7 They contend Judge McGuire was biased, based on his findings against them. (b) The appellants also assert the authority of a Native Assessors court they say is based at Hirangi Marae. Hirangi is the principal marae of Ngāti Tūrangitukua. The appellants say that, although Ngāti Tūrangitukua were able to attend its meeting, the court is not associated with Tūrangitukua. The appellants do not recognise Crown sovereignty though they appear to rely on common law and Imperial statutes to assert the authority of Māori Incorporations. This submission includes the claim that the Rt Hon Geoffrey Palmer repealed the New Zealand Constitution Act 1852 in an overnight Labour Party meeting in 1986, meaning New Zealand has no constitution and everything so unconstituted is unlawful. 8 [12] The Crown says the appellants occupation of the properties is hindering it from meeting its obligations to Ngāti Tūrangitukua under the Settlement Deed and Act. It submits: (a) Ngati Apa v Attorney-General acknowledges that a freehold interest, confirmed under legislation, extinguishes all existing aboriginal title to land. The Crown s freehold title to this land is indefeasible under 7 8 Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA). At the hearing, I disclosed to the claimants my personal relationship to Geoffrey Palmer. They stated they did not object to me deciding the case.
the Land Transfer Act 1952. There is no evidence of bias by Judge McGuire. (b) It is established beyond question that sovereignty resides in the Crown. Aboriginal title The law of aboriginal title [13] The Court of Appeal s judgment in Ngati Apa was cited by both parties. The Crown relied on the observation of Elias CJ that there was no argument there that, if legislation confers freehold interests, it extinguishes any pre-existing Māori customary property rights inconsistent with such interests. 9 In the same paragraph the Chief Justice considered it preferable to avoid answering the question in those terms while indicating that any customary property in the areas vested seems unlikely to survive. However, she did also acknowledge generically that customary property can be extinguished by sale to the Crown, through investigation of title through the Land Court and subsequent deemed Crown grant, or by legislation or other lawful authority. 10 [14] The appellants relied on a paragraph of the judgment of Keith and Anderson JJ which is part of reasoning acknowledging the potential existence of aboriginal or native title. 11 That reasoning goes on to acknowledge that aboriginal title can also be extinguished, the onus of proving extinguishment lies on the Crown and the necessary purpose of any legislation extinguishing aboriginal title must be clear and plain or, as Tipping J stated, crystal clear ( by express words or at least by necessary implication ). 12 [15] The Native Lands Acts of 1862 and 1865 and their successors provided a Native Land Court process by which collective Māori customary tenure of land could be substituted by individualised general freehold title on application by the 9 10 11 12 Ngati Apa v Attorney-General, above n 7, at [58]. At [47]. See P G McHugh Aboriginal Title: The Modern Jurisprudence of Tribunal Land Rights (Oxford University Press, Oxford, 2011) at 161-183. At [140] At [147]-[148] and [185].
customary owners. Part IV of the Native Land Act 1909, entitled Customary Land, contained these sections: 13 84 Save so far as otherwise expressly provided in any other Act the Native customary title to land shall not be available or enforceable as against His Majesty the King by any proceedings in any Court or in any other manner. 85 A Proclamation by the Governor that any land vested in His Majesty the King is free from the Native customary title shall in all Courts and in all proceedings be accepted as conclusive proof of the fact so proclaimed. 86 No Crown grant, Crown lease, or other alienation or disposition of land by the Crown, whether before or after the commencement of this Act, shall in any Court or in any proceedings be questioned or invalidated or in any manner affected by reason of the fact that the Native customary title to that land has not been duly extinguished. 93 Every freehold order shall on the making thereof have the effect of vesting the land therein referred to in the persons therein named for a legal estate in fee-simple in possession, in the same manner as if the land had been then granted to those persons by the Crown; and the land shall be deemed to have been so granted accordingly, and shall thereupon cease to be customary land, and shall become Native freehold land. [16] It is generally accepted that passage of Maori customary land through the Native Land Court extinguished aboriginal title. 14 Aboriginal title here [17] An affidavit by Mr Brent Parker for the Crown attests to the legal history of the land in question here. It was part of what was once known as the Waipapa Block. He produces records demonstrating that, under the Native Land Act 1909, the Native Land Court investigated the title to the customary land in the Waipapa block and made a freehold order in favour of 1,211 named individuals in 1914. 13 14 Section 84 was substantially amended by s 43 of the Native Land Amendment Act 1913 which added, after the words any other Act, the words and save as to the rights of Natives and their descendants to have their claims to any customary land investigated and adjudicated upon by the Court and the Appellate Court. See Alex Frame Salmond: Southern Jurist (Victoria University Press, Wellington 1995) at 111-122. Richard Boast The Evolution of Māori Land Law 1862-1993 in Richard Boast, Andrew Erueti, Doug McPhail, Norman F Smith (eds) Maori Land Law (2 nd ed, LexisNexis, Wellington, 2004) at chapter 4.2.
[18] On the information before me, I am satisfied the effect of the Native Lands Acts, the passage of the land through the Native Land Court and the indefeasibility sections of the Land Transfer Act 1952 establish that aboriginal title in the properties here has been extinguished. [19] To have any hope of challenging the extinguishment of aboriginal title here the appellants would have to identify a significant defect in the Native Land Court process regarding the original free consent to, or proper compensation for, extinguishment by those who held aboriginal title and deal with the effect of the relevant legislation. The documentation and submissions the appellants filed in this case does not get anywhere near doing that. [20] The appellants would also have to establish, as a precondition to their claim, their whakapapa to those who originally held aboriginal title and that each of them is not a Ngati Turangitukua claimant within the meaning of s 8 of the Settlement Act (which settles all such claims). [21] Finally the appellants argument that Judge McGuire was biased because he rejected their aboriginal title argument is plainly wrong. There is no evidence the judge was biased. Sovereignty and law [22] The history of sovereignty in New Zealand is vexed. The Waitangi Tribunal s 2014 report, He Whakaputanga me te Tiriti: The Declaration and the Treaty, contains a valuable traversing of the formulation and meaning of the Treaty of Waitangi in Māori and in English, Māori views of rangatiratanga and Britain s assertion of sovereignty in 1840. 15 It said nothing about how and when the Crown acquired the sovereignty it exercises today. 16 [23] In the seminal SOEs Case in 1987, Richardson J observed: 17 15 16 17 Waitangi Tribunal He Whakaputanga me te Tiriti: The Declaration and the Treaty (Wai 1040, 204). See, in particular, chapter 10. At 527. New Zealand Maori Council v Attorney-General (the SOEs case) [1987] 1 NZLR 641 (CA) and see Somers J at 690.
It now seems widely accepted as a matter of colonial law and international law that those proclamations [by Captain Hobson on 21 May 1840] approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand. [24] There is no doubt that, whenever and however it was acquired, sovereignty in modern New Zealand lies with the Crown in right of New Zealand. Accordingly, the appellants claims not to recognise the Crown s sovereignty and their assertion of alternative authority to the Crown and the legislation passed by the Crown in Parliament cannot be sustained by this Court. [25] The appellants claim about the effect of the Constitution Act 1986 in repealing the New Zealand Constitution Act 1852 is also misconceived. That was an orthodox exercise of the legislative power of the New Zealand Parliament. As Keith J stated for the Court of Appeal in R v Knowles, [s]ince 1947, with the adoption of the Statute of Westminster 1931 and the amendments to the 1852 Act, further elaborated in 1973, the New Zealand Parliament has had full power to make laws, as s 15(1) of the Constitution Act [1986] says. 18 The passage by Parliament of the Constitution Act 1986 did not make subsequent legislation unlawful. Result [26] The appellants submissions are not sustainable. They have not demonstrated there is any error of law in Judge McGuire s decision. [27] I dismiss the appeal. I award costs on a 1B basis to the Crown. Palmer J 18 R v Knowles CA146/98, 12 October 1998 at 2.