Northland: Māori trustees to appeal case against FNDC

The High Court has declined an appeal by a Maori trust for FNDC to remove an asbestos pipeline and metalled access track from its land. Photo / Michael Cunningham

A Māori trust has failed in a legal bid to get the Far North District Council to remove an asbestos pipeline and metalled access track from its land.

The trustees of the Ngakahu/Ngakohu Whānau Ahu Whenua Trust administer two Māori freehold land titles in Kaitaia.

In the 1930s, at the behest of the hospital board when considering relocation of the hospital from Mangonui to Kaitaia, a pipeline providing potable water was constructed across the land.

In 1957, a cement, sand and asbestos pipe was laid over the land to replace the original pipeline and in the early 1980s, the FNDC's predecessor the Kaitaia Borough Council obtained a pipeline easement for waterworks and a right of way easement over the land under the Public Works Act 1981.

The pipeline easement included the right "to use any line of pipes already laid on the stipulated course".

In 1987, the pipeline easement was amended and the right of way removed but still included the right to enter to inspect and repair the pipeline.

Sometime between 1999 and early 2000, FNDC constructed a metalled access track over the land which largely followed the course of the pipeline easement except for an area described as the dogleg, which was outside the pipeline easement boundary.

This was created to provide all-year-round access to a kauri dam.

In 2019, the trustees advised FNDC it could no longer use the dogleg after the Māori Land Court determined the 1983 pipeline easement was not a vehicular right of way.

Under the Property Law Act, the trustees required FNDC to remove the disused asbestos pipeline and metalled driveway, and reinstate the land. The cost of the proposed works was said to be $165,925.52.

They went to the District Court after FNDC refused to do so.

Judge McDonald found FNDC had no right under the pipeline easement to construct the driveway and the dogleg was outside that easement boundary.

However, he said there was no power under the relevant section of the Public Law Act to make an order in relation to the driveway across the trustees' land as it was not constructed under or maintained as part of the pipeline easement.

The trustees appealed the ruling in the High Court, where Justice Ian Gault determined that given the limited scope of the Public Law Act, it was not for Judge McDonald to determine whether there was a lawful basis to construct the driveway under the Local Government Act.

Nor was it for the High Court to determine that issue on appeal, he ruled.

Justice Gault said the trustees were not precluded from lodging a civil claim in relation to the driveway.

A trustee, Desmond Mahoney, said the trustees were talking to their lawyer with a view to appealing the High Court's decision.