A High Court judge has ordered Māori protesters to leave the former Hato Petera College site in Northcote within 48 hours.
Judge Pheroze Jagose has found that the Catholic Bishop of Auckland's substantive case to ownership of the disputed land "seems overwhelming", and has granted the bishop an order to the protesters to leave the land and remove their property within 48 hours.
However he declined a request by the church's lawyer Ben Upton for a further order authorising police to use force if necessary to evict the protest group, which has been occupying the site since mid-August.
The judgment means the church may have to go back to the High Court to seek an arrest order if the protesters do not comply with the order to leave.
Protest spokesman Reti Boynton said the group had not yet decided how to respond.
The group says it represents the Turoa and Peters families who were part of the Ngāti Paoa iwi which occupied the land before it was acquired by Governor George Grey, who granted it to the Catholic Church in 1850 "for the education of children of our subjects of both races and of children of other poor and destitute persons being the inhabitants of the islands in the Pacific Ocean".
The group says it has "repossessed" the land because the closure of Hato Petera College on August 31 means that it is no longer being used for the purposes required by the land grant.
However Upton told the Court yesterday that the church still intended to use the land for educational purposes and was "currently considering its options".
Hato Petera old boy Dr Lance O'Sullivan has proposed that the site should be used for the Vanguard Military School, which is looking for a new location so that it can expand to a full Years 9 to 13 secondary school, and for a hostel for Māori students.
Only 48 of Vanguard's 149 students (32 per cent) are Māori, but the school has been authorised to expand to up to 312 students when it takes in Years 9 and 10 in addition to its current Years 11 to 13.
Justice Jagose said his orders were only "interlocutory", meaning that they would take effect only until the court decided on the church's substantive claim to own the land.
"I make no determination on any substantive claim the Bishop is in breach of the 1850 Deed of Grant, nor on the iwi's more general Treaty of Waitangi claim with respect to Governor Hobson's original purchase of the land," he said. (The land was actually acquired by Governor Grey).
"But that is not the issue presently before me. I am faced with a clear question of property rights. The Bishop is the registered proprietor of the land, and without the Bishop's permission for their occupancy, the defendants have no legal right to occupy the properties."
He listed four "factors weighing in favour of interlocutory relief":
• "There are safety concerns with the buildings on the properties, which are neither fit nor licensed for residence, and for which the Bishop as proprietor may be liable."
• "The defendants appear to have damaged the buildings through their occupation (including by removing boards, breaking windows, cutting phone lines and forcing entry into previously locked buildings)."
• "Several complaints have been made that the defendants intimidated people who entered or walked near the land, and have erected signs asserting their rights to exclude people from the land."
• "Such conduct would affect other third parties with rights to use the land for various primarily school-aged sports training and events."
However, although granting the order to vacate the land, the judge said he saw no foundation in either the Trespass Act or the High Court Rules to make a further order authorising police to use force if necessary to evict the protest group.
He said the Trespass Act "enables a constable to arrest a trespasser without warrant if certain statutory precursors are met, and only then subject to the exercise of the constable's discretion".
"I am not minded to risk overriding the precursors or discretion by any interlocutory orders I may make," he said.
"But committing a trespass is a criminal conduct, as may be disobedience of Court orders. Either or both may be punished by fines or imprisonment.
"I am satisfied that the Bishop's interests are sufficiently addressed by his ability to seek an arrest order under [High Court Rules] on a party's non-compliance with any order I may make."