Discovery of a legal proclamation which had not been recorded on the title of a Māori land block near Kaitaia has overturned Far North District Council (FNDC) plans to enforce access to the property through the Public Works Act.
In the Māori Land Court at Whangarei last Friday Judge Miharo Armstrong recalled an oral decision he made on May 24 last year on an application by the Ngakahu-Ngakohu Whanau Ahu Whenua Trust to cancel a right-of-way granted in 1983 to give the (then) Kaitaia Borough Council road access through several trust land titles along with permission to install and maintain a pipeline carrying water to Kaitaia from a dam on the border of trust land.
The trust claimed the right-of-way was not needed because the pipeline corridor provided sufficient access for council maintenance.
Construction of the dam in the 1960s had followed a decision by the Māori landowners to support a move to supply water to Kaitaia when the Mangonui Hospital was moved to the town in the 1930s. The hospital supply evolved into a source of town water and in 1983 the borough council used the Public Works Act to obtain the pipeline corridor and road access to the dam.
Disputes over access maintenance, landowners' compensation and other issues have plagued relations between the landowners and the FNDC — which took over from the borough council after local-body amalgamation in 1989. There was a period around 2014 when the trust was created and the parties worked together but since then the dam, which has water quality problems and has not supplied Kaitaia for years, has become an option to relieve the town's summer drought problems.
When Judge Armstrong's oral decision in May last year dismissed the trust's application to cancel the right-of-way granted in 1983 because he did not have the jurisdiction to grant the order sought it cleared the way for the FNDC to enforce access rights provided by the 1983 ruling. In August last year the council resolved to formalise the right-of-way easement and also instructed staff to investigate the possibility of exiting the dam. In September the council issued a 'notice of desire' advising the trust of its intention to put its Public Works Act access into effect.
That was when trustee Des Mahoney burrowed into historical records relating to the land and uncovered a Public Works Act proclamation in 1987 which removed the right-of-way access from the earlier pipeline corridor ruling.
As trust lawyer Richard Mark, of Kerikeri, explained to the court on Friday, following a proclamation by the governor-general of the compulsory acquisition of land, the Public Works Minister was meant to notify the Register-General of Land so the proclamation was publicly notified, published in the Gazette and registered on the title of the land affected.
The then minister had failed to carry out this title registration move after the proclamation on August 20, 1987, five days after the general election which returned the fourth Labour Government. As a result, removal of the right-of-way fell off the radar for both the trust and the FNDC.
Council lawyer George Swanepoel said he was amazed Mahoney had been able to produce the 1987 document, which had not been picked up by council staff, an external researcher or external legal advisers.
Swanepoel accepted the 1987 proclamation altered the 1983 ruling, but he asked how the council was to know when the change had not been registered on the land title?
He would have liked to settle whether the council had since been acting unlawfully, but Judge Armstrong said that, although that was a big issue for the council, it was not the issue before him.
The judge recalled his May 24, 2018, oral decision, which had not been sealed and said he would direct the court registrar to get Land Information New Zealand to register the 1987 proclamation against the relevant land titles.
The lawyers are to provide information for the judge to assess costs for the hearing and court staff will produce a written record of Friday's hearing, including the judge's minute of the proceedings.
Once were friends
The Far North District Council and the Ngakahu-Ngakohu Whanau Ahu Whenua Trust have not always been at odds.
Mayor John Carter (second from left) is pictured with, from left, Des Mahoney, Elizabeth Fong Ah Chong, Te Uri Reihana-Ngatote, the Rev Pereniki Tauhara and Hone Peters outside the Māori Land Court in Kaitaia in 2014.
Carter had appeared in court to support the formation of the trust, which he said was a template for the council solving rating issues over land in multiple Māori ownership
contributing to the FNDC's $28 million accumulated unpaid rates debt.
The court heard council discussions with the owners had led to rates arrears of about $168,000 being remitted and rates owing on the 159ha Ngakahu block had been reduced from $29,000 to under $8000 a year.
Those rates had been paid, some land had been leased and more than $9000 was in the Ngakahu bank account.
Much progress has since been made, with gorse-covered land sprayed with weedkiller, waterways and paddocks fenced, and land leased to grow maize.
Trustee Des Mahoney has led the hard graft, assisted by past and present trustees Te Uri Reihana-Ngatote, Hone Peters, Judy Baker, Tania Morunga, Desley Austen, Raiha Mann and others among the nearly 400 owners who have come from around the country and overseas to help on their whenua.
Mahoney said more than 150,000 litres of spray and about 285 tonnes of fertiliser had been applied to the property between 2015-18, several kilometres of fencing had created paddocks, stockyards were built in 2016 and the land had been turned into a working farm.
All work carried out had been discussed beforehand with the Northland Regional Council manager in Kaitaia, Peter Weissing, who had also advised the trust on how to erect stone barriers to prevent erosion of the banks of a stream now stock-proof with 2.8km of fencing erected with an NRC grant.
A major project at present involved Bellingham Quarries stripping the topsoil from about 3.2ha of boggy trust land, spreading overburden from their Larmer Rd quarry bordering the trust, and replacing the topsoil laced with fertiliser and grass seed to eventually create well-drained pasture.
The trust also has an arrangement with North Country Grains which leases about 10ha to crop and graze.
Mahoney said he was proud of what the trustees had achieved in maintaining and improving the land for the owners over the past four years.