FAULKNER v BAY OF PLENTY REGIONAL COUNCIL [2023] NZHC 145

FAULKNER v BAY OF PLENTY REGIONAL COUNCIL [2023] NZHC 145 [9 February 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-53[2023] NZHC 145BETWEEN TIO FAULKNERAppellantAND BAY OF PLENTY REGIONAL COUNCILRespondentHearing: 10 October 2022Appearances: Appellant in personA A Hopkinson for RespondentJudgment: 9 February 2023JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 9 February 2023 at 4PMRegistrar/Deputy RegistrarIntroduction[1] Mr Tio Faulkner (the appellant) appeals against the decision of Judge P ASteven delivered in the Tauranga District Court on 4 November 2021 in which shefound the appellant guilty and convicted him on six charges related to offending underthe Resource Management Act 1991(RMA).1 The Judge entered convictions on eachof the six charges on 11 November 2021.2[2] The appellant appeals against his convictions.The charges[3] The charges on which he was convicted are as follows:(a) Between 1 September 2018 and 7 October 2019 at or near MatapihiRoad, Matapihi, the appellant contravened or permitted a contraventionof s 12(1)(a) of the RMA by reclaiming an area of the foreshore orseabed in the coastal marine area when that reclamation was notexpressly allowed by a national environmental standard, a rule in aregional coastal plan, a rule in a proposed coastal plan, or a resourceconsent.3(b) Between 1 September 2018 and 7 October 2019 at or nearMatapihi Road, Matapihi, the appellant contravened or permitted acontravention of s 12(1)(e) of the RMA by disturbing the foreshore orseabed in the coastal marine area in a manner that has or is likely tohave an adverse effect on plants or animals or their habitat, when thatdisturbance was not expressly allowed by a national environmentalstandard, a rule in a regional coastal plan, a rule in a proposed coastalplan, or a resource consent.41 Bay of Plenty Regional Council v Faulkner [2021] NZDC 21536 (District Court judgment).2 Bay of Plenty Regional Council v Faulkner [2021] NZDC 22141.3 CRN 19070502125. Sections 338(1)(a) and 339(1)(a) Resource Management Act 1991, maximumpenalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.4 CRN 19070502131. Sections 338(1)(a) and 339(1)(a) Resource Management Act, maximumpenalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.(c) Between 30 July 2019 and 8 October 2019 at or near Matapihi Road,Matapihi, the appellant contravened or permitted a contravention ofs 15(1)(b) of the RMA by discharging a contaminant (namely watercontaining faecal bacteria from a piggery) onto or into land incircumstances which may result in that contaminant (or any othercontaminant emanating as a result of natural processes from thatcontaminant) entering water when that discharge was not expresslyallowed by a national environmental standard, a rule in aregional coastal plan, a rule in a proposed coastal plan for the sameregion or a resource consent.5(d) On 13 August 2020 at or near Matapihi Road, Matapihi, the appellantcontravened or permitted a contravention of s 15(1)(b) of the RMA bydischarging a contaminant (namely water containing faecal bacteriafrom a piggery) onto or into land in circumstances which may result inthat contaminant (or any other contaminant emanating as a result ofnatural processes from that contaminant) entering water when thatdischarge was not expressly allowed by a national environmentalstandard, a rule in a regional coastal plan, a rule in a proposed coastalplan for the same region or a resource consent.6(e) On 13 August 2020 at or near Matapihi Road, Matapihi, the appellantcontravened or permitted a contravention of an abatement notice bydischarging piggery effluent to land in circumstances where it may enterwater being an offence under s 338(1)(c) of the RMA.7(f) Between 14 November 2019 and 23 December 2019 at or nearMatapihi Road, Matapihi, the appellant contravened or permitted acontravention of s 22(2)(a) of the RMA by failing to provide5 CRN 19070502132. Sections 338(1)(a) and 339(1)(a) Resource Management Act, maximumpenalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.6 CRN 20070501287. Sections 338(1)(a) and 339(1)(a) Resource Management Act, maximumpenalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.7 CRN 20070501288. Sections 338(1)(c) and 339(1)(a) Resource Management Act, maximumpenalty imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000.•information as directed by an enforcement officer, namely his full name,address, and date of birth.8The Judge's decision[4] In her decision the Judge summarised the factual background to the charges.It is convenient to set out her summary in full:9[16] On 23 July 2019, a Council land management officer, Mr MatthewDavis, was carrying out aerial surveys near Tauranga Harbour when henoticed what appeared to be a structure protruding into the harbour at theproperty's western edge. He also observed a piggery in this area. Mr Davistook photographs of this part of the property and then provided thosephotographs to the Council's compliance team.[17] On 31 July 2019, Council enforcement officers ('enforcementofficers') inspected the property where they found that there had been asignificant volume of construction waste deposited on the foreshore of theCMA, creating a flat platform and extending the land area of the propertyonto the foreshore in the CMA. The deposited material consisted ofconcrete and fill, but also contained plastic wrap and rebar.[18] The officers measured the reclaimed area and found it extendedapproximately 15 m into the CMA. At that stage the area of reclamationprotruding into the harbour was 30 m in width and 2-3 m deep. The officersestimated that the volume of material in the CMA was 900 m3 to 1,350 m3.The officers observed that more material had been deposited in the CMA atthis location since the Council land management officer took aerialphotographs of the area on 23 July 2019.[19] During the inspection the officers also saw a piggery beside the fillsite that contained at least 20 pigs. The officers saw a flow path of waterfrom the piggery to the edge of the CMA. The officers took a sample ofthe piggery water at the point where it had ponded at the edge of the CMA.When that sample was later analysed it was found to have faecal coliformlevels of 57 million cfu/100ml, E.coli levels of 35 million cfu/l00ml andsuspended solid levels of 7,100 g/m3.[20] When Council officers spoke with Mr Faulkner about these issueson 9 August 2019 they told him that the works associated with thedeposition of material on the foreshore and the discharge of pig effluentbreached the Council's regional plan rules and required a resource consent.[21] However, Mr Faulkner responded that he held an "intellectualresource consent" authorising all works at the property that was issued tohim by the "Tangatawhenua Wealth and Resource ManagementAuthority™©". It is worth noting here, that the consent held by the8 CRN 19070502141. Sections 338(2)(a) and 339(2) Resource Management Act, maximum penaltya fine not exceeding $10,000 and where the offence is a continuing one, to a further fine notexceeding $1000 for every day or part of a day during which the offence continues.9 Footnotes omitted.[appellant] was the subject of a later pre-trial ruling made that it is not alawful authority under the RMA as it had not been issued by a consentauthority, as defined in s 2 of the RMA.[22] On 30 August 2019, the Council received a complaint from amember of the public that construction waste was being dumped into theCMA adjacent to the property.[23] On 4 September 2019 an enforcement officer issued an abatementnotice to the [appellant] requiring him to immediately cease theunauthorised reclamation of the foreshore in the CMA at the property. Thatnotice was not appealed.[24] On 7 October 2019 enforcement officers executed a search warrantat the property. The officers found that more material had been depositedand that the reclamation area had been extended further into the CMA sincethe previous Council inspection on 23 July 2019. The volume ofdemolition waste and fill deposited in the CMA was measured to be1,422 m3 (with 256.7 m3 being the additional amount of material depositedsince 23 July 2019). The material used for the reclamation work containedreinforcing steel, concrete, wood, plastic and polystyrene.[25] On 7 October 2019 the officers also measured the distance from thepiggery to the CMA to be 8 m. The officers counted 37 adult pigs and12 piglets in the piggery at that time. The officers also saw effluent fromthe piggery had flowed from the pigge1y into two areas of pondedstormwater between the piggery and the harbour. A sample of this pondedwater taken at a point 5 m from the harbour, which following analysis, wasfound to have faecal coliform levels of 47,000 cfu/l00ml and E.coli levelsof 30,000 cfu/100ml.[26] On 4 November 2019 the Council went to the property to checkcompliance with the abatement notice issued on 4 September 2019. Duringthe inspection the Council served a second abatement notice onMr Faulkner, this one requiring him to immediately cease dischargingpiggery effluent to land where it may enter water. That notice was also notappealed.[27] An electronic copy of that abatement notice, along with the firstabatement notice dated 4 September 2019, was sent to the [appellant] byemail on 7 November 2019. In that email Mr Faullmer was also requestedto provide the information described in s 22 of the RMA by 14 November2019 (e.g. his date of birth, address and full name). The content of s 22 wasincluded in the email. Mr Faulkner has never provided the infmmation.[28] On 13 August 2020 enforcement officers executed a further searchwarrant at the property. During the execution of that [search] warrant theyobserved the piggery near the harbour' s edge was still in operation andcontained 23 pigs. The Council officer saw effluent from the piggeryponding outside the piggery and overland flow paths from that pondedeffluent.[29] During the inspection on 13 August 2020 a Council officer took asample of water in a ponded area to the south of the piggery. A flow pathfrom this ponded area extended for 6-7 m towards the harbour beforedisappearing into a hole. When that sample was analysed it was found tocontain faecal coliform levels of 200,000,000 cfu/100mL and E.coli levelsof 58,000,000 cfu/100mL.[5] The Judge then identified and addressed the following elements of theoffending which the respondent must prove beyond reasonable doubt in relation to thecharge alleging breach of s 12(1)(a) of the RMA:10(a) the activity was on the foreshore or seabed;(b) the activity was within the Coastal Marine Area (CMA);(c) the activity is a reclamation;(d) the activity was not permitted by a national environmental standard, arule in a regional coastal plan or proposed plan, or a resource consent;and(e) the activity was caused or permitted by the appellant.[6] As regards the first two elements the Judge referred to the evidence of therespondent's witnesses and concluded:[53] The evidence of all of these witnesses was undisturbed by the cross-examination of the [appellant]. I find that the question of whether theactivity occurred on the foreshore or seabed and in the CMA has beenproven to the requisite standard (beyond reasonable doubt) by acomfortable margin.[7] As regards the issue of whether the activity is a reclamation, the Judge notedthat although the term reclaim is not defined in the RMA, the Bay of Plenty RegionalCoastal Environmental Plan (RCEP) defines the term reclamation:Reclamation: An activity that results in the formation of permanent landlocated above mean high water springs from land that was formerly below theline of mean high water springs (in the coastal marine area). Reclamation doesnot include:(a) The formation of land above mean high water springs as a result ofnatural processes, including accretion; or10 District Court judgment, above n 1, at [32] regarding CRN 19070502125.(b) Structures such as breakwaters, moles, groynes, seawalls or jetties.[8] Applying that definition to the evidence given by the respondent's witnesses,the Judge concluded:[64] In his legal submissions, Mr Hopkinson referred me to thedefinition of 'structure' in s2(1) of the RMA as meaning:Any building, equipment, device, or other facility made bypeople and which is fixed to land; and includes any raft.[65] I agree with the Council that the works are not appropriatelydescribed as a structure and nor were they the result of natural processes(such as accretion). While there was some (weak) evidence from the[appellant] to suggest that the works may have been carried out for thepurpose of erosion protection, given the nature and extent of the works I findthat the Council has proven beyond reasonable doubt that the works withinthe CMA do in fact amount to a reclamation.[9] In addressing the issue of whether the respondent had proved that the activitywas not permitted by a national environmental standard, a rule in a regional coastalplan or proposed plan, or a resource consent, the Judge referred to s 12(1)(a) of theRMA. The Judge noted the respondent's evidence that none of the exceptions appliedand none of the rules contained in the RCEP permitted the work or activities that hadbeen carried out on the appellant's Matapihi property, and no resource consent hadbeen issued by the respondent authorising the works within the CMA.The Judge concluded:[76] For completeness, the [appellant's] questioning of witnesses andhis approach in closing, as revealed in the affidavit, also suggested he hadexisting use rights for the activities conducted on his land and within theadjoining part of the CMA, which are protected under either ss 10 or 20Aof the RMA, an argument that was directed at all of the charges (excludingthose related to s22 of the RMA) and I address these and other argumentsraised by the [appellant] at the end of this decision. It suffices to note myfinding that the activities on the land and within the adjoining CMA are notprotected by existing use rights recognised by the RMA.[10] And in relation to the issue of whether the activity and work carried out at theappellant's Matapihi property and adjacent inter-tidal area within the CMA was causedor permitted by the appellant, the Judge summarised the respondent's evidenceregarding the conduct of the appellant and found:[81] In this case there is ample evidence of the [appellant's] knowledge andinvolvement stemming from his ownership, occupation and control exerted inrelation to the property:[86] I find that the Council has proven beyond reasonable doubt that the[appellant] caused or permitted the reclamation of the area of the foreshorewithin the CMA at the western end of the land at 128 Matapihi Road.[11] The Judge then considered the charge alleging the offence under s 12(1)(e) ofthe RMA. Her Honour found that the charge under s 12(1)(e) required proof ofdifferent elements than required in respect of the s 12(1)(a) offending. Having firstconsidered whether the charge involved the appellant being subject to double jeopardyby the s 12(1)(e) charge, and whether the charge was precluded by limitation, sheconcluded that this charge was proved beyond reasonable doubt.11[12] In relation to the charges alleging offences under s 15(1)(b) of the RMA bydischarging contaminated water from the piggery, the Judge found that the evidenceestablished that contaminated water had been discharged during the two time periodsspecified in the charges,12 and that the appellant was responsible and liable unders 15(1)(b).13[13] The Judge then addressed the charge alleging that the appellant contravened orpermitted a contravention of an abatement notice by discharging piggery effluent toland in circumstances where it may enter water being an offence under s 338(1)(c) ofthe RMA.14 Her Honour found that the respondent's evidence proved that anabatement notice was issued and correctly served on the appellant on 4 November2019 which required him to immediately cease discharging piggery effluent to landwhere it may enter the water in the CMA.15 The Judge referred to the evidence of theprosecution witness who visited the property on 13 August 2020 to undertake aninspection of the reclamation area and the piggery and observed a discharge comingfrom the piggery which was sampled and subsequently analysed as containing faecalcontaminant. Accepting that evidence the Judge accordingly found the charge of11 At [120] regarding CRN 19070502131.12 At [139][140].13 At [148] – [150].14 CRN 20070501288.15 At [161].alleging the appellant contravened the abatement notice on 13 August 2020 to beproven beyond reasonable doubt.16[14] The Judge then considered the two separate charges under s 22(2)(a) of theRMA alleging that the appellant failed to provide information as directed by anenforcement officer, namely his full name, address, and date of birth.17 The Judgeconcluded that the prosecution evidence proved that the appellant was guilty of one ofthe two charges, namely the charge based on the direction given to the appellant bythe respondent's enforcement officer on 7 November 2019.18 The Judge dismissed thesecond charge as she found that it was based on an erroneous understanding of therequest provided to him.19[15] The Judge then considered and rejected the appellant's submissions that theprovisions of the RMA on which the charges were based did not apply to him.The Judge described the appellant's submissions as follows:[197] In his closing submissions, Mr Hopkinson anticipated closingarguments from Mr Faulkner based upon his approach during the trial, andhis submissions fairly capture some of the arguments, to the extent they areable to be discerned, from the affidavit filed by the [appellant], namely:(a) the reclamation works carried out at or near 128 MatapihiRoad are lawful as they occurred in accordance with hisrights as tangata whenua or mana whenua to exerciseundisturbed customs and usage rights over Māori-ownedland;(b) the [appellant] had no statutory duty to respond to theenforcement officer's direction under s22(2)(a) of the RMAbecause he is not a "natural person" (i.e. an individual), butpart of a collective (i.e. tangata whenua);(c) the prosecutor cannot prove "its claim and its authority overMāori customary land";(d) the Council officers has insufficient regard to the Treaty ofWaitangi and/or tikanga when they inspected the propertyand gathered the evidence relied on by the prosecutor at thetrial.16 At [163][164] and [171].17 CRN 19070502141 and CRN 19070502142.18 At [195] regardingCRN 19070502141.19 At [196].[16] The Judge referred to and adopted the findings made in the pre-trial ruling ofJudge Kirkpatrick20 and concluded:[198] Mr Hopkinson submitted, and I agree, that none of these argumentsconstitute a valid defence to any of the charges. The laws of Parliament(including the RMA and the CPA) apply to the property and to Mr Faulkner.[17] The Judge also dismissed the appellant's submissions which appeared to be inthe nature of a challenge to the sovereignty of Parliament,21 and also dismissed theappellant's possible reliance on existing use rights under s 20A(1) of the RMA.22[18] The Judge concluded that she was satisfied that the six charges set out at [3]above were proved beyond reasonable doubt, and she dismissed the alternative s 12(1)charges which were withdrawn by the prosecutor.23 The Judge also dismissed thesecond charge of failing to provide information.24Procedural history of this appeal[19] Following the Judge's decision of 4 November 2021 finding the appellantguilty of the six RMA offences, a sentencing date was initially scheduled for22 December 2021 and subsequently rescheduled for 19 January 2022 after theappellant had declined to meet with Corrections for the purposes of the preparation ofa pre-sentence report. When the appellant did not appear in court at 10:00 am on19 January 2022 the Judge issued a warrant for his arrest. When the appellantsubsequently appeared at 1:00 pm that afternoon the Judge declined his applicationfor bail and remanded him in custody with sentencing rescheduled for2 February 2022.[20] On 19 January 2022 with the assistance of Ms Georgina o-te-whanau-Turanga,the appellant applied to the High Court at Tauranga for a writ of habeas corpus. Theapplication was heard by Gault J on 21 January 2022 and dismissed in a reservedjudgment delivered on 24 January 2022.20 At [203], citing Bay of Plenty Regional Council v Faulkner [2020] NZDC 26828(Jurisdiction decision).21 At [204].22 At [214].23 At [215][216].24 At [216].[21] On 28 January 2022 the pre-sentence report was filed with the Court. Thesentencing on 2 February 2022 was adjourned part-heard because there wasinsufficient information in the pre-sentence report regarding the appellants financialcircumstances and means to pay a fine. He was remanded in custody for his sentencingto be finalised on 17 February 2022.[22] On 17 February 2022 the appellant was sentenced by the Judge toimprisonment for a term of three months and two weeks, and ordered to pay $5,000towards the prosecutor's costs. He has since served his sentence and been released.[23] On 24 January 2022 with the assistance of Ms Turanga the appellant filed twodocuments in the High Court at Tauranga. The documents are endorsed as being filedby Ms Turanga as "Kaituhi o Te Kooti o Papatuanuku, Native Court". The documentswere an "Urgent Appeal Of Refusal To Grant Bail" and an "Urgent Appeal AgainstConviction Out Of Time". Unfortunately, the appellant's appeal against the refusal togrant him bail was not heard prior to his sentencing hearing on 17 February 2022.25[24] Both appeals were addressed in a Minute issued by Lang J on 25 May 2022which he issued following a conference with the appellant and counsel for therespondent. In his Minute Lang J noted that events had overtaken the bail appeal asthe appellant had already served his sentence of imprisonment and he accordinglymade an order dismissing the bail appeal. In relation to the appellant's appeal againstthe convictions, Lang J directed the appellant to provide a list of the points he wishesto take on appeal, to be filed and served no later than 20 June 2022. Justice Langfurther directed that the conviction appeal be re-listed for mention in the criminal call-over on 22 June 2022 at 9:00 am, and he noted that the purpose of the directionrequiring the appellant to list his appeal points was to ensure that the Court understandsthe points the appellant wished to raise on the appeal and could then proceed to allocatea hearing date of appropriate duration having regard to the nature of the points to beraised at the hearing of the appeal.25 The reasons for the delay in having the appeal heard are set out in a Minute of Moore J dated15 February 2022.[25] Following a further judicial conference on 29 June 2022, Lang J issued aMinute in which he noted that although the appellant had filed and served his pointson appeal on 20 June 2022 in accordance with the previous directions, the Judgeconsidered that the proposed points on appeal were not likely to be tenable. Howeverto ensure that the appellant was given the opportunity to advance his argument, hemade an order directing that he was to file and serve his submissions in support of allpoints on appeal no later than 24 August 2022. Justice Lang further directed that thematter was to be listed for mention in the criminal call-over on 31 August 2022 at 9.00am for the purpose of allocating a fixture for the hearing of the appeal and to fix a timewithin which the respondent's submissions were to be filed and served.[26] At the criminal call-over hearing on 31 August 2022 the appellant made an oralapplication for an order to stay the appeal proceeding pending. The application wasdismissed by Lang J.[27] Following the 31 August 2022 criminal call-over on Lang J issued a furtherMinute, in which he noted that the appellant had filed a further list of topics to beadvanced on his appeal, but had not filed any accompanying submissions. JusticeLang nevertheless allocated a half day fixture for the hearing of the conviction appealon 10 October 2022 at 2.15pm. The Judge also directed that the appellant was requiredto file and serve any substantive submissions no later than 26 September 2022, andsaid he would leave it to the respondent's counsel, Mr Hopkinson, to determinewhether, and if so to what extent, he was to file written submissions in reply.[28] Following the 31 August 2022 criminal call-over the appellant filed a documentin the conviction appeal proceeding entitled: "Notice Stay in Proceedings 31st August2022". This document appears to be a notice of motion seeking an order staying theproceeding "until a full forensic investigation is returned to Gault J(CIV2022-470-005) of the death of King George V and Queen Maud of Norway".In this document the appellant states:As the Constitution Act 1986, as I understand it, is not assented to by QueenElizabeth II, note a token assent by Governor General appointed by PrimeMinister is not Royal Assent;By discovery a break in the Constitutional authority from Te Tirity o Waitangiis identified, as the RMA binds the Crown to recognise Te Tiriti-tikanga-protected customary rights-Kaitiakitanga cf. Sections 6, 7, 8, 34 A and 269;There is not an allegation of Treason, there is an identification of Treason, bydiscovery of Treason affecting and effecting the creation of the RMA of theNew Zealand Parliament by the removal avocatory orders in 1936 of theSovereign outside Parliament; points of law undiscovered until 1986;A Motion to move a Stay in proceedings until outcome of Civil Appeal isknown;Original proof of Claim in not yet heard in a court of competent jurisdiction toattend to Native Right. A Civil appeal is the correct Appeal process to addressthe miscarriage of justice and prevent further miscarriage of justice;[29] On 28 September 2022 the appellant filed and served a document described as:"Response to Lang J Minute 31st August 2022". The document appears to be a list ofmatters to be raised or relied on by the appellant in support of his conviction appeal.The document sets out a lengthy and discursive list of matters without any supportinginformation to explain how those matters are said to relate to or affect the validity ofthe convictions for offending against the provisions of the RMA. A copy of thisdocument is annexed as schedule 1 to this judgment. As can be seen, the matters listedinclude:1. Breach of tikanga, customs or usage- Several occasions evidence in court dismissed as outsidejurisdiction of District Court cf. RMA sec 269(3) and Sec 34(a).2. Unlawful actions of Bay of Plenty Regional Council (BOPRC) ab initio- BOPRC does not have full comprehension of Native titleunalienable rights inherent in the whenua cf RMA Sec 5,6, and7.3. A Breach of Te Tiriti of Waitangi 1840 endorsed by 544 Rangatira- Whenua already with crown designation cf RMA sec 7.[30] Other matters listed are largely incomprehensible in terms of being of anypossible relevance to the appeal.[31] Apart from the "Response to Lang J Minute 31st August 2022" the appellantdid not file (or serve) any other written synopsis of submissions in support of theconviction appeal. As a consequence the respondent could not respond to theappellant's submissions and did not itself file any written submissions in relation tothe appeal.SubmissionsThe appellant[32] The appellant's oral submissions generally lacked focus and were difficult tofollow. As I understood him, his principal submission is that his rights as the owneror custodian of the aboriginal or native title to the land which is the subject of thecharges have been disregarded and effectively ignored by the District Court Judge inher decision finding six of the charges he faced proven. He submits that his rightshave been what he terms "railroaded" and his indigenous rights as owner of thewhenua passed to him by his forebears have been ignored.[33] The appellant submits that the respondent and its officers entered onto hisproperty illegally and in doing so trespassed onto wāhi tapu where some of hisancestors are buried. The appellant was highly critical of the manner in which therespondent's officers and agents entered onto his ancestral property without respectinghis rights as owner and without appropriate respect for his kaitiakitanga orguardianship of the land and recognition of the fact that they were entering wāhi tapu.[34] The appellant presented a number of documents which he proceeded to referto as being relevant to the validity of the convictions. One of the documents was hisunsworn affidavit dated 3 September 2021 in which he covers a range of issues relatedto his assertion that his customary or native rights of ownership of the subject landpreclude the jurisdiction of the respondent and its officers and agents from enteringonto the land and preclude the respondent from prosecuting him for conducting theactivities on the land that is the subject of the charges under the RMA.[35] The documents he presented and referred to, included a document headed:"Challenge to Jurisdiction, Dated 29 February 2020" in which he had previouslysought an adjournment of the proceedings in the District Court. In this document theappellant had sought disclosure pursuant to the Criminal Disclosure Act 2008 of arange of material to prove that the respondent has authority to administer theappellant's ancestral land. The appellant submits that as the respondent has notproduced the requested information and documents it has not proved that the nativetitle pursuant to which the land he occupies was held has ever been extinguished.[36] Another document presented by the appellant is headed: "Challenge toJurisdiction Dated 3 September 2020". This document relates to the matter determinedby Judge D A Kirkpatrick in his pre-trial ruling dated 22 December 2020 in which hedismissed the appellant's challenge to the jurisdiction of the District Court to hear anddetermine the eight RMA charges he was then facing.26 Referring to this documentthe appellant repeated the submissions he had previously made beforeJudge Kirkpatrick that the land which is the subject of the prosecution for offencesagainst the RMA was never granted by the appellant's ancestral owners of the land tothe Queen, and saying that if the respondent contends that the land is under thejurisdiction of the Crown and subject to laws passed by Parliament, by reason of theeffective confiscation actions of Governor Grey and Parliament, those actions werenot lawful.[37] The appellant accordingly repeats the submission he made previously in his3 September 2020 document that:The land the subject of the prosecutions has never been granted to the QueenI also argue I have the legitimate expectation, as a right of natural justice, thatthe land my whanau has lived on since 1835, is not able to be affected byactions of the Crown or its governmental agents/bodies, unless I am causingdistress to those around the land. Such natural justice right arises from mywhanau holding the land since 1835.I state it is a requirement of natural justice, the land being with my whanausince 1835, before the Treaty was signed, that tikanga, the land being at lawland with aboriginal title and therefore Maori customary land, and how theTreaty applies to this land, is considered. I say if the land has any of such saidlegal standings it impugns the prosecution actions of the Regional Council.[38] The appellant also produced copies of the documents listed in his points onappeal document, some of which had previously been produced as exhibits at theDistrict Court trial including the document described as an "Intellectual Resource26 Jurisdiction decision, above n 20.Consent" dated 25 January 2019 and purporting to be issued by the "TangatawhenuaWealth and Resource Management Authority" to the appellant as consent authorisinghim to undertake "earthworks mitigation for effects of global warming". In reviewingthis material and other documents produced to the District Court, the appellant ineffect repeated the submissions in support of the challenge he had made in theDistrict Court regarding that Court's jurisdiction to hear and determine the charges incircumstances where the issue of native or customary title was in issue.[39] Other documents produced by the appellant in the course of the hearing of theappeal were:(a) "Writ of Supersedeas, Dated 24 February 2021".(b) "Writ of Certiorari to confirm lifted indubitable facts before 12th July2021, Dated 12th July 2021".(c) "Motion to move to Magistrates Court, Dated 26th July 2021".(d) "Writ of Quo Warranto, Dated 26 July 2021", naming the respondentand John Holst.(e) "Writ of Quo Warranto, Dated 26 July 2021", naming the respondentand Stuart Standen.(f) "Writ of Quo Warranto, Dated 1 August 2021", naming the respondentand Fiona McTavish.(g) An unsworn affidavit appearing to be by the appellant labelled simplyas, "Affidavit, Dated 3rd September 2021".(h) "Motion to Move the Court to Prerogative, Dated 3rd September 2021".(i) "Motion to Stay of proceedings, Dated 6th September 2021".(j) "Notice to Produce Application for Warrant, Dated 15th October 2021".(k) "Notice to Produce Court Order to Bay of Plenty Regional Council,19th October 2021".(l) "Notice for Avoidance of Doubt, Dated 27th October 2021".(m) "Notice of Injudicable Proceedings, Dated 28th October 2021".(n) "Writ of Habeas Corpus AD Deliberandum, Dated 28th October 2021".(o) "Writ of Habeas Corpus AD Testificandum, Dated 28th October 2021".(p) "Writ of Quo Warranto, Dated 28th October 2021", naming the AlexisMiller as Prosecutor.(q) A second "Writ of Quo Warranto, Dated 28th October 2021", alsonaming the Alexis Miller as Prosecutor.(r) A third "Writ of Quo Warranto, Dated 28th October 2021", naming theAlexis Miller as Prosecutor.(s) "Notice to High Court, Writ of Prohibition Absolute to RW Muir,Registrar General of Lands, dated 2nd November 2021".[40] The appellant submits however that his 23 points on appeal set out in his"Response" memorandum of 26 September 2022 are subsumed by and encompassedby the matters traversed in his oral submissions. And in his oral submissions in reply,the appellant submits that the miscarriage of justice he relies on is that his appealagainst the District Court Judge declining his application for bail was not heard whilehe remained on remand in custody. He says that he is not challenging the sovereigntyof Parliament, but is challenging what the respondent did in the course of investigatingand prosecuting the RMA offences and the charges it brought against him, andspecifically the respondent's failure to understand and apply tikanga.The respondent[41] Mr Hopkinson for the respondent notes that the appeal is to be determinedpursuant to the provisions of s 232 of the Criminal Procedure Act 2011 (the CP Act)which provides that the first appeal court considering an appeal against the decisionfollowing a judge-alone trial must allow the appeal if satisfied that the Judge erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred, or a miscarriage of justice has occurred for any reason.27[42] Mr Hopkinson notes that the appellant has not filed, presented oridentified any grounds of appeal and has not made any submissions directed at theissues to be addressed pursuant to s 232 of the CP Act.[43] Mr Hopkinson says that the respondent's evidence in the District Court clearlyestablished that the appellant was responsible for hundreds of tons of hard fill wastebeing spread from the appellant's property at Matapihi Road and extending into theforeshore area of the Coastal Marine Area of Tauranga harbour. Other evidenceproved that water containing faecal material from the piggery on the appellant'sproperty was running from the property into the harbour.[44] The respondent submits that the Judge's decision finding the six RMA chargesproven followed an eight-day hearing and the presentation of substantial prosecutionevidence to prove the charges. Mr Hopkinson submits that the Judge did not err inreaching her findings that the charges were proven.[45] In response to the matters raised by the appellant in support of his appeal,Mr Hopkinson notes that there were four: the appellant's challenge to the jurisdictionof the District Court, which appears to be the appellant's principal argument; thevarious writs the appellant purported to issue to the respondent and its officers; therespondent's conduct in the course of the execution of the search warrant at theappellant's property; and the application of tikanga principles.27 Criminal Procedure Act 2011, s 232(2)(b).[46] Mr Hopkinson says that the issue of the jurisdiction of the District Court tohear and determine the charges was the subject of the pre-trial hearing beforeJudge Kirkpatrick and was determined by his judgment delivered on 22 December2020. Counsel notes that the appellant did not appeal against Judge Kirkpatrick'sruling and he submits that accordingly this Court need not and should not consider theissue of jurisdiction in the context of this appeal.[47] As regards the various "writs" issued by the appellant, Mr Hopkinson says thatthey are largely unintelligible. He notes that following the appellant filing the "Writ ofSupersedeas" dated 24 February 2021, the respondent filed a memorandum in theDistrict Court noting that Judge Kirkpatrick's decision had already determined thechallenge to jurisdiction referred to in the document. He further notes that while awrit of supersedeas is a procedure available in the United States of America, it is nota procedure available within the laws of New Zealand. Mr Hopkinson says that thevarious "Writ(s) of Quo Warranto" referred to by the appellant were filed by theappellant and served on the respondent and individuals named in it after the hearingin the District Court had concluded. He submits that they are not relevant tothe appeal.[48] In response to the appellant's submissions regarding the respondent'sexecution of the search warrant and its manner of entering upon the property toconduct a search, Mr Hopkinson notes that the appellant did not challenge the validityof the search warrants or the searches conducted pursuant to the warrants at the hearingin the District Court. Counsel notes that s 332(1) of the RMA contains the powerauthorising enforcement officers to enter onto a property at a reasonable time toinspect it in order to determine whether there is compliance with the applicable plan,or resource consent, which includes the power to take samples of water, soil, or anyorganic matter. Counsel notes that in the present case the respondent applied to theDistrict Court pursuant to s 334 of the RMA for search warrants which were grantedand subsequently executed. And in accordance with s 335 of the RMA, police officersaccompanied the respondent's staff when they entered the appellant's property toexecute the search warrants. Counsel further notes that no issue was taken by theappellant with the actions of the respondent's staff or the police during their executionof the search warrants, and the issue of the search involving an area of wāhi tapu wasnot raised at the time or during the trial in the District Court. Mr Hopkinson says thatthe taking of water samples by the respondent's staff or agents related to the waterflowing from the piggery into the harbour and it did not involve any digging orremoval of soil.[49] Mr Hopkinson concluded by noting in his oral submissions that the appellanthad not made any reference to a number of the "appeal points" contained in his listdated 26 September 2022 which he was required to file pursuant to Lang J's directionof 31 August 2022.The appeal[50] The CP Act provides for a right of appeal against conviction.28 The appellatecourt must allow the appeal if it is satisfied that a miscarriage of justice has occurredfor any reason.29 A miscarriage of justice means any error, irregularity, or occurrenceaffecting the trial that has created a real risk that the outcome of the trial was affectedor has resulted in an unfair trial, or a trial which is a nullity.30Discussion[51] Although the appellant submits that the miscarriage of justice on which hisappeal against conviction is based is that his appeal against the District Court's refusalto grant bail was not heard and determined during the period when he was being heldin custody awaiting sentence, that is something that happened after the Judge hadalready delivered her decision finding him guilty, and after convictions on the chargeshad been entered. It is therefore not a matter that could possibly have affected thevalidity of the Judge's decision finding him guilty of the charges.[52] However as I have noted, the appellant's oral submissions were centred on theproposition that the respondent did not have the legal authority to enforce theprovisions of the RMA in respect the appellant's land at Matapihi. In support of that28 Criminal Procedure Act, s 229(1).29 Section 232(2)(c).30 Section 232(4).submission, the appellant referred to the documents listed in his points on appeal,copies of which he provided to the Court at the commencement of his submissions.[53] In most cases these documents are dated on dates falling during theDistrict Court trial or on dates following the trial but prior to Judge Steven deliveringher judgment on 4 November 2022. Although they contain a discursive range ofallegations and obscure legal contentions, they all appear to be related to or derivefrom the appellant's claim that the respondent did not have jurisdiction to investigateor prosecute the appellant in relation to his activities conducted on his property.For example, in his Writ of Supersedeas31 dated 24 February 2021, the appellant states:1. I tio o te whanau falkner hereby invoke Common law by way of Writ ofSupersedeas, possessing a more perfect history, to cease and desistproceedings ('this work must be superseded by a more perfect history') andmotion the court to strike out charges for want of jurisdiction,8. I therefore give this court notice that;1. To evade my inherent right lore in favour of RMA 1991 statuteinterpretation as LAW, is deemed repugnant and will be addressed ina Hapu Paa Kooti recorded in Te Kooti o Papatuanuku Native Courtki Waiariki cf. 'International Native Aboriginal Court of Justice'2. i: am; 'Native Inherent Authority' in, on, over and above saidwhenua taonga tukuiho: interpreted by the fictitious person assumingauthority; BOP DISTRICT COUNCIL as said LANDS.FACT OF THE MATTER11. I require "proof of claim" that the BAY OF PLENTY REGIONALCOUNCIL (BOPRC) has authority to administer usage upon taonga-tukuiho,my ancestral land; and19. The ruling of Judge DA Kirkpatrick is limited to Acts of Parliament notlore/law of the land.ORDER31 An application or petition to the court for a writ of supersedeas is a legal procedure available inthe United States of America by which a party applies for an order for a stay of proceedings orenforcement of a judgment or order pending the determination of an appeal. The equivalent inNew Zealand is an interlocutory application pursuant to r 20.10(2) of the High Court Rules 2016for a stay of enforcement of a judgment pending determination of an appeal.20. I move the Court to Discharge this matter on the grounds that by admittal,Environmental [sic] Court are an administration venue with jurisdiction underthe RMA 1991 ONLY therefore, lack competent jurisdiction to hear mattersof tikanga customary lore.21. I move the Court to uphold Cease and Desist Notice on BOPRC in aboveparagraph 1.[54] The Writs of Quo Warranto naming the respondent and members of its staff ineach case challenged the authority of the respondent and the named staff members'warrants of authority from the respondent to act on its behalf. The "Writ of HabeasCorpus Ad Deliberandum", purported to direct the respondent's prosecutor to producethe author of the warrants relating to the searches of the Matapihi property on4 October 2019 and 12 August 2020. And the "Writ of Prohibition Absolute" namingthe Registrar-General of Lands dated 2 November 2021 referred to an relied on"Prerogative" powers to direct the Registrar-General of Land to prevent certain landfrom falling into "the jurisdiction of the Land Transfer Acts of the General Assemblyof New Zealand". The subject land being described as: "Any recorded interestregistered as Māori freehold Land Shall remain as defined prior to any registration ofinterest – as absolute;" and "To Bind the Crown to the Fact of the Land being inoriginal right; common absolute unalienable".[55] As this brief summary shows, none of the documents produced and relied onby the appellant in the course of his oral submissions at the hearing of the appeal,directly address or relate to the 23 points on appeal set out by the appellant in his"Response to Lang J Minute 31 August 2022" document dated 26 September 2022.Neither do these documents or the appellant's oral submissions referring to themdirectly address the issue of whether, and if so how, the Judge erred in her findingsthat the charges were proven beyond reasonable doubt.Challenge to jurisdiction[56] In his pre-trial ruling dismissing the appellant's challenge to the jurisdiction ofthe District Court to hear and determine the RMA charges, Judge Kirkpatrick said:32[20] The argument advanced by Mr Faulkner in relation to title to the land,raupatu or confiscation and subsequent grants of title is not relevant to any of32 Jurisdiction decision, above n 20.the charges that he faces. I respectfully agree with the previous ruling of hisHonour Judge Smith that the issues of ownership or title do not affect anyelement of the offences under the RMA. All of the charges relate to thingsallegedly done by Mr Faulkner which contravened the relevant provisions ofthe RMA stated in each charge and for which he had no lawful authority.Issues of grant, cession or confiscation are not relevant to those charges.[21] In relation to his second argument, without accepting thatMr Faulkner has any legitimate expectation in respect of these charges or thatthere has been any breach of natural justice, I consider that these charges doraise issues concerning the causing of distress to those around the subject land.Such distress arises at least insofar as the statutory provisions of the RMA andthe relevant plan rules address the control of adverse effects on theenvironment. Whether there has in fact been any distress caused will be amatter for evidence at a trial.[22] In relation to the third argument, the references to aboriginal title andstatus as customary land are closely related to the first argument and areanswered in the same way. In terms of tikanga, I note that under s 269(3) ofthe RMA the Environment Court is required to recognise tikanga Māori whereappropriate, but there is no comparable provision in either the CriminalProcedure Act 2011 or the District Court Act 2016. Under those Acts ofParliament there is therefore no basis on which to argue that tikanga candisplace an Act of Parliament. Even so, I fully accept that principles of naturaljustice from important elements of the common law, to be borne in mind andapplied, subject to any relevant statutory provision, in every proceeding beforea court. In that sense, at least, tikanga and the common law are conceptuallyclosely related.[57] I note that in her judgment of 4 November 2022 Judge Steven addressed theappellant's challenge to Judge Kirkpatrick's and Judge Smith's pre-trial rulingsregarding the District Court's jurisdiction to hear and determine the charges, and saidthat as neither of those rulings had been appealed by the appellant, the rulings couldnot be relitigated in the proceedings.33 And as I noted earlier, the respondent submitsthat as Judge Kirkpatrick's decision was not appealed by the appellant this Court nowhearing his appeal against conviction need not consider the issue of the District Court'sjurisdiction determined by Judge Kirkpatrick's ruling.[58] However the rights of appeal against certain pre-trial decisions in judge-alonecases created by s 215 of the CP Act are restricted to appeals against those decisionscoming within the terms of s 215(2). That section does not confer a right of appeal on33 District Court judgment, above n 1, at [14].the appellant enabling him to seek leave to appeal Judge Kirkpatrick's decision as tojurisdiction.34[59] I accordingly find that this Court is not precluded from considering anddetermining whether Judge Kirkpatrick's pre-trial ruling is correct in the context ofthe appellant's appeal against conviction.[60] Unfortunately the appellant has not made submissions specifically directed atthe issue of whether Judge Kirkpatrick's ruling is correct in law. As I have said, thefocus of his submissions has been as to the legal authority and jurisdiction of therespondent to investigate and prosecute him in respect of activities carried out by himor permitted by him in respect of the Matapihi Road property which he and hisforebears have occupied since 1835. The Court is accordingly left in the somewhatunsatisfactory position of not having heard submissions from the parties on the issue.[61] Nevertheless, and for the reasons set out by Judge Kirkpatrick in his ruling,35I am satisfied that the respondent is constituted by the Local Government (Bay ofPlenty Region) Reorganisation Order 1989, and recognised as a regional council inPart 1 of Schedule 2 to the Local Government Act 2002. Pursuant to s 30 of the RMAthe respondent has the general functions set out in s 30(1) and specifically in relationto any coastal marine area in its region relevantly as follows:30 Functions of regional councils under this Act(1) (d) in respect of any coastal marine area in the region, the control (inconjunction with the Minister of Conservation) of—(i) land and associated natural and physical resources:(ii) the occupation of space in, and the extraction of sand, shingle,shell or other natural material from, the coastal marine area,to the extent that it is within the common marine and coastalarea:(iii) (iv) discharges of contaminants into or onto land, air, or water anddischarges of water into water:34 See Simon France (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at[CPA 215.01].35 Jurisdiction decision, above n 20, at [16][25].[62] The respondent as a regional council is a "consent authority" as provided in s 2of the RMA whose permission is required to carry out any activity for which a resourceconsent is required under the RMA. Section 84(1) of the RMA requires the respondentto observe and enforce the provisions of its operative policy statement and plan, andthe CP Act provides that any person may commence a criminal proceeding by filing acharging document in the office of the District Court nearest to where the offence isalleged to have occurred.36 I accordingly find that the respondent has the statutorypower and responsibility of carrying out an investigation as to possible breaches of theRMA by the appellant and the power to enforce the provisions of the RMA by chargingand prosecuting the appellant in respect of the breaches of the RMA it alleged he isresponsible for.[63] Section 8 of the RMA provides:Treaty of WaitangiIn achieving the purpose of this Act, all persons exercising functions andpowers under it, in relation to managing the use, development, and protectionof natural and physical resources, shall take into account the principles of theTreaty of Waitangi (Te Tiriti o Waitangi).[64] I respectfully agree with Judge Kirkpatrick's observation that there is noprinciple of Te Tiriti o Waitangi/the Treaty of Waitangi that any Act of Parliament isnot binding on any person in New Zealand, whether they be Māori or non-Māori. Allpersons in New Zealand are subject to the rule of law meaning that everyone is subjectto the laws enacted by Parliament in the same way. The principles of the Treatywhereby the relationship between the Crown and Māori has the nature of a partnershiprequiring good faith, equity and equal treatment, do not provide or indicateotherwise.37 Both the terms and the principles of the Treaty, where they legally bindthe Crown, may give rise to legal obligations in relation to tikanga.38 While there is agenerally accepted presumption that statutes are to be interpreted consistently with theTreaty as far as possible,39 in the present context the application of Treaty principles36 Criminal Procedure Act, ss 1415.37 The principles of the Treaty were obligations first established in New Zealand Maori Council vAttorney-General [1987] 1 NZLR 641 (CA).38 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [587].39 Ellis v R [2022] NZSC 114, at [98] and [117] per Glazebrook J. See also at [175][176] perWinkelmann CJ, [257] and [265] per Williams J and [280] per O'Regan and Arnold JJ.and tikanga is appropriately undertaken under and within the scope of the statutoryscheme. Other provisions of the RMA support this conclusion. Section 6 of the RMArelevantly provides:Matters of national importanceIn achieving the purpose of this Act, all persons exercising functions andpowers under it ... shall recognise and provide for the following matters ofnational importance:(a) the preservation of the natural character of the coastal environment(including the coastal marine area) (5) the relationship of Maori and their culture and traditions with theirancestral lands, water, sites, waahi tapu, and other taonga:[65] And s 7 of the RMA relevantly provides:Other mattersIn achieving the purpose of this Act, all persons exercising functions andpowers under it, in relation to managing the use, development, and protectionof natural and physical resources, shall have particular regard to –(a) kaitiakitanga:(aa) the ethic of stewardship:(4) intrinsic values of ecosystems:[66] These other provisions make it clear that the relationship of Māori with theirancestral lands, water, wāhi tapu, taonga and kaitikitanga in respect of their lands, arematters that must be taken into account and given recognition by all persons exercisingfunctions or powers under the RMA. By mandating that these matters be recognised,provided, and had regard to, by all persons exercising functions or powers under theAct, the RMA can clearly be seen to be stipulating that they are matters that fall withinthe scope of the RMA, leaving no room for the appellant's contention that his propertyat Matapihi, and his activities on the land and affecting the adjacent inter-tidal coastalarea, are beyond or outside the scope of the RMA.[67] I accordingly reject the appellant's submission that the respondent does nothave jurisdiction to carry out its functions under the RMA in relation to the appellant'sactivities regarding the property at Matapihi.Evidential challenges[68] It is clear from Judge Steven's decision that the evidence presented to theDistrict Court by the respondent and accepted by the Judge comprised a compellingevidential foundation for the Judge's findings regarding the charges being provedbeyond reasonable doubt. The appellant has not established that the Judge erred in herassessment of the evidence so that a miscarriage of justice resulted.Conclusion[69] For the reasons set out above I find that the appellant has failed to show thatthe Judge made an error in her decision finding him guilty of the charges, and hasfailed to show that a miscarriage of justice has occurred for any other reason, or thatthere is a risk that the trial was unfair or a nullity.Result[70] The appeal against conviction is dismissed._____________Paul Davison J