HENARE, HENARE, HENARE, HENARE, HENARE, WIKAIRA, SWINTON AND BENSON v THAMES COROMANDEL DISTRICT COUNCIL COA CA797/2011

HENARE, HENARE, HENARE, HENARE, HENARE, WIKAIRA, SWINTON AND BENSON v THAMES COROMANDEL DISTRICT COUNCIL COA CA797/2011 [9 May 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA797/2011[2012] NZCA 179BETWEEN FRANCES HENARE, BRIAN HENARE,CHARLES HENARE, DEAN HENARE,FAHLEN HENARE, RAYMONDWIKAIRA, DAVID SWINTON ANDDANIEL BENSONApplicantsAND THAMES COROMANDEL DISTRICTCOUNCILRespondentHearing: 3 April 2012Court: Ellen France, Harrison and White JJCounsel: D A Benson for ApplicantsM C Frogley for RespondentJudgment: 9 May 2012 at 10amJUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicants must pay the respondent costs for a standard application on a band A basis together with usual disbursements.___________________________________________________________________REASONS OF THE COURT(Given by White J)[1] The applicants seek leave to appeal to this Court under s 67 of the Judicature Act 1908 against a decision of Miller J in the High Court1 dismissing their appeal from a decision of Judge Spiller in the District Court2 granting the respondentCouncil's application for possession of a road that provides public access from the Coromandel-Colville Road to a beach at Papaaroha in the Northern Coromandel.[2] The application to this Court is necessary because the High Court has declined to grant the applicants leave to appeal.3[3] To succeed in their application, the applicants must establish not only that there is a question of law capable of bona fide argument, but also that this question of law is of sufficient public or private importance to justify a further appeal.[4] The applicants have raised the same five questions of law that were considered by Miller J in the High Court. He concluded that the first four questions were not seriously arguable and that the fifth question raised a new issue not appropriate for consideration on appeal.[5] As we agree with Miller J's decision and the reasons given by him, we areable to address the five questions briefly.[6] The first two questions contend that the land occupied by the applicants, which was once Maori customary land and which was taken under the Public Works Act 1908 in 1918, was subject to certain restrictions. The applicants claim the Council was prohibited from taking any land that was the site of housing or an urupa or a garden, and in any case had acted outside of a 15 year statutory time limit for taking the land. The difficulty for the applicants is that, as pointed out by Miller J,4the land was no longer customary land but was general freehold land by the time it1 Henare v Thames Coromandel District Council HC Hamilton CIV-2010-419-1487,29 September 2011.2 Thames Coromandel District Council v Henare DC Thames CIV-2010-075-176, 20 October2010.3 Henare v Thames Coromandel District Council HC Hamilton CIV-2010-419-1487,11 November 2011.4 At [6]–[8].was taken under the Public Works Act. The restrictions relied on by the applicants therefore did not apply.[7] The third question of law raised by the applicants was that the land could not be taken without compensation because that would be contrary to the preamble of the Native Land Act 1873 and would breach the principles of the Treaty of Waitangi. As Miller J pointed out,5 however, it was inappropriate to make findings on compensation given the nature of the proceedings and the lack of evidence adduced in the District Court on the subject.[8] The fourth question of law raised by the applicants challenged Miller J'sconclusion that Orders in Council made under the Native Districts Regulation Act 1858 and the Native Circuit Courts Act 1858 did not exclude the Native LandCourt's jurisdiction over the land. As Miller J pointed out,6 the Orders in Council were repealed when the Acts empowering them were repealed so the land ceased to be a Native District and came under the jurisdiction of the Native Land Court.[9] The fifth question of law raised by the applicants challenged the decision of Miller J that it would be inappropriate to determine a question of fraud on appeal. As Miller J pointed out,7 this was a new question of law which the applicants were not entitled to raise on appeal. They must begin a new proceeding if they wish tochallenge the Council's title for fraud.[10] The applicants placed considerable emphasis on their long connection with the land in question and their concern to seek protection for the urupa. A number of the matters they raised were directed to the consistency of the Crown's actions withthe principles of the Treaty of Waitangi. The present proceeding is not, however, the appropriate avenue for addressing and resolving these issues.[11] The application for leave to appeal is therefore dismissed and the applicants are ordered to pay costs for a standard application on a band A basis to the respondent together with usual disbursements.5 At [9].6 At [10].7 At [11].Solicitors:Brookfield Lawyers, Auckland for Respondent