McGuire v Hastings District Council [1999] NZCA 318; [2000] 1 NZLR 679; [2000] NZRMA 337; (2000) 6 ELRNZ 102 (16 December 1999)

Last Updated: 29 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 224/99

	BETWEEN	M A McGUIRE and F P MAKEA
		Appellants

	AND	HASTINGS DISTRICT COUNCIL
		First Respondent

	AND	THE MAORI LAND COURT
		Second Respondent

Hearing:	29 November 1999
Coram:	Richardson P Henry J Thomas J Keith J Tipping J
Appearances:	P F Majurey and C N Whata for Appellants The Rt Hon Sir Geoffrey Palmer, J M von Dadelszen and A McEwan for First Respondent
Judgment:	16 December 1999

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] The central question for decision in this appeal is whether the Maori Land Court has jurisdiction under s19(1)(a) of the Te Ture Whenua Maori Act 1993, also cited as the Maori Land Act 1993 (the MLA), to issue an injunction restraining a local authority from embarking on the designation processes under the Resource Management Act 1991 (the RMA). The Maori Land Court properly abides the decision of this court.
[2] Section 19(1)(a) provides:

The Court, on application made by any person interested or by the Registrar of the Court, or of its own motion, may at any time issue an order by way of injunction--

(a) Against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land.

Background

[3] The statement of agreed facts before the High Court shortly records that the Hastings District Council had engaged in a process to commence designation under s168A of the RMA of a route for the northern arterial intended to link the Hastings urban area and Havelock North to the motorway that leads to Napier; and that the interim injunction issued on the application of Ms McGuire and Mr Makea as owners of Maori freehold land prevented the council from proceeding to designate the northern arterial route through their lands, Karamu GB (Balance), Karamu GD (Balance) and Karamu No 15B, until further order of the Maori Land Court.
[4] The injunction was issued on 29 April 1999 only hours before a scheduled meeting of the council was to consider resolving under s168A of the RMA to issue notice of a requirement for a designation and to publicly notify the requirement.

Section 168A and related provisions

[5] Section 168A provides:

(1) When a territorial authority proposes to issue notice of a requirement for a designation--

(a) For a public work within its district and for which it has financial responsibility; or

(b) In respect of any land, water, subsoil, or airspace where a restriction is necessary for the safe or efficient functioning or operation of a public work--

it shall publicly notify the requirement; and the provisions of section 168, with all necessary modifications, shall apply to such notice.

(2) Sections 93, 96, 97, and 99 to 103 shall apply, with all necessary modifications, in respect of a notice under subsection (1), as if every reference in those sections--

(a) To a resource consent were a reference to the requirement; and

(b) To an applicant or a consent authority were a reference to the territorial authority; and

(c) To an application for a resource consent were a reference to the notice under subsection (1).

(3) In considering a requirement under this section, a territorial authority shall have regard to the matters set out in section 171 and all submissions, and may decide to--

(a) Confirm the requirement; or

(b) Cancel the requirement; or

(c) Modify the requirement in such manner, or impose such conditions, as the territorial authority thinks fit.

(4) Sections 173, 174, and 175 apply, with all necessary modifications, in respect of a decision made under subsection (3).

[6] The relevant notice provision of s168 (s168(3)) reads:

A notice under subsection (1) or subsection (2) shall be in the prescribed form and shall include--

(a) The reasons why the designation is needed; and

(b) A description of the site in respect of which the requirement applies and the nature of the proposed public work, project or work, and any proposed restrictions; and

(c) The effects that the public work or project or work will have on the environment, and the ways in which any adverse effects may be mitigated, and the extent to which alternative sites, routes, and methods have been considered; and

(d) Any information required to be included in the notice by a plan or regulations; and

(e) A statement of the consultation, if any, that the requiring authority has had with persons likely to be affected by the designation, public work, or project or work; and

(f) A statement specifying all other resource consents that the requiring authority may need to obtain in respect of the activity to which the requirement relates, and whether or not the requiring authority has applied for such consents.

[7] Sections 93, 96, 97 and 99 to 103 relate to the requirements for public submissions and hearings; s171 specifies matters to which a territorial authority must have regard when considering whether to recommend that a requirement be confirmed or withdrawn; s173 provides for notification of decisions of requiring authorities; s174 provides for rights of appeal to the Environment Court - including "by any person who made a submission on the requirement"; and s175 for designations to be provided for in the District Plan.

The Maori Land Court decision

[8] Counsel for the council opposed the interim injunction application on jurisdiction grounds. They submitted, first, that s19(1)(a) does not confer jurisdiction to restrain a local authority from exercising its statutory functions under the RMA and the Local Government Act 1994 and that the council was proposing to act pursuant to lawful authority conferred by statute; and, second, that "trespass or other injury to ... land" under s19(1)(a) is directed to unlawful entry or physical damage to land and that the passing of resolutions and the following of statutory procedures under the RMA could not come within s19(1)(a).
[9] Judge Isaac rejected the submissions as to jurisdiction. He said:

The land is Maori land, the applicants are owners of that land, the provisions of the Preamble, Section 2 and Section 17 of Te Ture Whenua Maori Act set out the principles and objects of the Act, which in effect are to promote the retention, use, development and control of Maori land as taonga tuku iho by Maori owners, their hapu, and descendants.

As a consequence and notwithstanding submissions made by Counsel for the Hastings District Council, I am of the view that this Court has clear jurisdiction to accept and deal with the applications for the injunction today.

[10] The Judge went on to consider, for the purposes of determining the interim injunction application, whether there was a serious question to be tried and, if so, where the balance of convenience lay. The considerations which led him to find that there was a serious question to be tried were that the owners had been and were strongly opposed to the council's proposal to designate the northern arterial route through the Maori freehold land and that they, the owners, were concerned that the proposal would "impact upon them" and that there might be "actual or intended trespass or damages to that land". The Judge considered the balance of convenience was clearly with the owners having regard to the fact that the land was productive land, not waste land, and the designation, if proposed, would deny the Maori owners a right and ability to utilise and occupy the land. As well, the Judge said, he was conscious of the provisions of the preamble and of ss2 and 17 of the MLA in these matters.

The judicial review proceeding

[11] The council sought judicial review of the decision of the Maori Land Court to issue the interim injunction preventing the council "from proceeding to designate the northern arterial route" through the lands the subject of the application for injunction until further order of the Maori Land Court. Counsel sought a declaration that in making the decision the Maori Land Court acted unlawfully and/or ultra vires, a declaration that the decision itself was unauthorised and/or ultra vires, and an order setting aside the decision.
[12] Goddard J recorded that the questions posed for the court to answer were:

η Whether the Maori Land Court has jurisdiction to issue injunctions under s19(1)(a) of the Maori Land Act to restrain a territorial authority from the purported exercise of its powers under the processes and procedures specified in the RMA to make designations where those designations if made under s168A would apply to Maori freehold land.

η Whether preparation for a decision, whether valid or invalid, by a territorial authority to designate Maori freehold land under s168A of the RMA, amounts to an "actual or threatened trespass or other injury to Maori freehold land".

η Whether a decision, whether valid or invalid, by a territorial authority to designate Maori freehold land under s168A of the RMA amounts to an "actual or threatened trespass or other injury to Maori freehold land".

η Whether the Maori Land Court has power to determine the validity of a decision by a territorial authority to designate Maori freehold land under s168A of the RMA, on the ground that the action amounts to an "actual or threatened trespass or other injury to Maori freehold land".

[13] The Judge noted that the adequacy of any consultation conducted to date was not an issue in the proceeding.

The High Court decision

[14] Goddard J saw the questions as to the jurisdiction of the Maori Land Court under s19(1)(a) and as to whether there was a serious question to be tried as requiring analysis of the relevant provisions of the two statutes, the RMA and the MLA.
[15] On her assessment of the relevant provisions of Part II of the RMA the Judge concluded that Maori aspirations, values and processes must be afforded protection wherever the RMA is applied; that the Act explicitly provides for consultation and that, in relation to Maori landowner issues, the obligations to consult arise both expressly under the Act and by virtue of the Treaty of Waitangi principles acknowledged in s8, and that significantly the RMA anticipates that the Environment Court may require and should have available to it expertise in matters relating to Maori customary law.
[16] Goddard J reviewed the statutory scheme for designations and summarised the requirement procedure relating to territorial authorities as contemplating:

η public notification of any requirement for a designation (s168A(1));

η public submission and hearings in relation to the requirement, following its notification (s168A(2));

η confirmation, cancellation or modification of the requirement by the territorial authority, after consideration of the matters specified under s171 and all submissions made or received (s168A(3));

η a right of appeal against confirmation, rejection or modification of a requirement by the territorial authority (ss168A(4) and 174);

and that, during the period between public notification of a requirement and its withdrawal by the requiring authority or cancellation by the Environment Court or inclusion in the District Plan, s178(1) provides that without prior written consent of the requiring authority "no person may ... do anything ... that would prevent or hinder the public work or project". A designation included in a District Plan has similar effect (s176).

[17] Turning to the MLA the Judge noted that the unifying theme of the general statements of principle and statutory objectives in the Preamble and ss2 and 17 of the Act is the "retention, use, development, and control of Maori land as taonga tuku iho" in Maori hands by Maori. However, she emphasised that some provisions, notably s130, expressly anticipate Maori freehold land losing its status under other legislation and that other provisions relate to aspects of the RMA and the Public Works Act, referring to s301, concerning subdivisions and appeals to the Environment Court, and s303 and related provisions as to reserves.
[18] The argument for the council was that Part II of the RMA is a self-contained framework, which provides an elaborate series of processes and protections for landowners' rights, including the rights of Maori landowners: thus, it is incompatible with the legislative purpose of the RMA to read it as subject to the jurisdiction of the Maori Land Court in respect of resource management issues affecting the Maori land. Part VIII, it was submitted, provides a clear set of procedures and processes, so comprehensive that they amount to expressly protecting all interests involved in the designation procedure, including Maori interests. Parliament had carefully designated the respective regimes of the MLA and the RMA to avoid a clash of jurisdictions between the Environment Court and the Maori Land Court and the two statutes were prima facie separate and distinct, with the only interrelationships between the Acts being those specified. The statutory scheme of the RMA is irreconcilable with the view that the Maori Land Court can prevent the Council acting under authority of the RMA and supplant the oversight of resource management matters by the Environment Court. Rather, the RMA contains explicit provisions which circumscribe its inter-relationship/inter-face with the MLA. It explicitly provides for the accommodation of Maori issues in relation to resource management, requiring Maori values to be taken into account, requiring Maori to be consulted on various matters, and explicitly contemplating that the Environment Court will address Maori issues in relation to resource issues.
[19] The argument for the Maori landowners was that the Acts co-exist as two separate forms of regulation of Maori land; each with its own principles, objectives, controls and standards to be met. The extent to which their fields of enquiry cross over simply ensures that their respective requirements are met. The primary objective of the RMA is the sustainable management of resources; the primary objective of the MLA is to affirm and protect the relationship between Maori and Maori land. In this way, the MLA provides an additional and separate tier of regulation from that contemplated by the RMA, and is not supplanted by the RMA where the sustainable management of Maori freehold land is in issue. Counsel accepted that the RMA does not specifically exempt Maori freehold land from the application of Part VIII but emphasised that no right of appeal lies against notification of a requirement, notwithstanding its immediate effect on potential land use, and in the present case designation for the purpose of an arterial route would effectively leave the land unusable for any permanent use. As there is no right of appeal, both judicial review to the High Court and challenge pursuant to s19(1)(a) of the MLA must be available to collaterally challenge the validity of a decision to notify. The forum of choice, however, must be the Maori Land Court because the "unique combination of lack of a right of appeal and the potential for severe and adverse consequences of a designation take this case outside of the normal planning case, where judicial review would not be appropriate ... ". Specifically and plainly the MLA confers upon the Maori Land Court, without relevant limitation, the jurisdiction to determine whether or not a public authority has or is about to commit any actual or threatened trespass or other injury to the subject land. There are no express or implied restrictions in the RMA on the jurisdiction of the Maori Land Court to hear an application pursuant to s19(1)(a) concerning the purported exercise of power pursuant to s168A(1) of the RMA. The object of the MLA, the principles enunciated in the Preamble, and the principles of the Treaty call for "a holistic view of the relationship of Maori to their land. Any conception of injury ... must include injury to the physical land and injury to the spiritual connection with that land".
[20] Goddard J discussed the approach of this court in Attorney-General v Maori Land Court [1999] 1 NZLR 689. That decision focussed on the jurisdiction of the Maori Land Court in relation to equitable interests in land under s18(1)(i) of the Act but, the Judge said, its approach to the court's jurisdiction is helpful and the extensive and detailed analysis of the Act undertaken serves to emphasise the particularity with which the legislature has expressly defined the scope of the MLA and thus the jurisdiction of the Maori Land Court. Her conclusion was that:

[T]he careful manner in which Parliament has defined the Maori Land Court's role and the expressly provided interface between the Whenua Maori Act [MLA] and other legislation leads to the irresistible view that, on the plain face of the statute, the Maori Land Court has not been granted jurisdiction to make interim orders in relation to lawful designations under the RMA. If such jurisdiction had then been contemplated, one would expect Parliament to have expressly provided a clear interface between the two pieces of legislation accordingly: no such interface has however been prescribed.

Finally, neither the Preamble nor s2 provides any specific jurisdictional powers. Rather they are of general purport and engender the spirit of the Act. Accordingly, whilst they are to be given weight in interpreting and applying the jurisdiction of the Act, they do not provide authority for interpretations going beyond the plain statutory language used by Parliament.

[21] Turning to the serious question to be tried, Goddard J concluded that the only construction to place on the words "other injury", when read in conjunction with the word "trespass" immediately precedent in s19(1)(a), is that such "other injury" must necessarily be unlawful. A prima facie unlawful exercise of powers, such as would merit injunctive relief and pose a serious question for trial, is therefore only likely if the council's actions appear to be ultra vires. Conceivably, the appearance of ultra vires might arise if the process upon which the decision to notify or designate was based seemed demonstrably flawed. In the present case, however, the fact or adequacy of any consultation to date is specifically exempt as an issue and there is no evidence that the procedure is flawed in any other way.
[22] The RMA explicitly provides for the accommodation of Maori issues in relation to resource management and requires Maori values to be taken into account. Maori are to be consulted on various matters and the Act expressly contemplates the Environment Court addressing Maori issues. Furthermore, the provisions in Part VIII, relating to the designation procedure, are so clear and comprehensive as to provide an exhaustive code. Any actions taken by the council in accordance with the provisions of Part VIII must be construed as encompassing and embracing the principles of protection of Maori land as taonga tuku iho of special significance to Maori people and thus in accordance with the principles and object of the MLA. Accordingly, the legal and practical consequences flowing from the decisions of the council to notify its proposed designation were lawful consequences and the council's actions could not be construed as other than vires.
[23] Finally, and responding to the argument that the Maori Land Court must have jurisdiction to entertain a collateral challenge to the proposed notification decision given the absence of any right of appeal against that decision, Goddard J pointed to the "tailor-made" procedure under the RMA which is designed to safeguard landowners whose land is or may be affected and which culminates in rights of appeal to the Environment Court under several provisions. She ended:

I can only conclude that the Whenua Maori Act does not provide jurisdiction for the Maori Land Court to overrule actions lawfully undertaken by territorial authorities under the RMA. I further conclude that any allegedly unlawful actions are the responsibility of the Environment Court on appeal or the High Court on review if no right to appeal to the Environment Court lies.

Submissions for the Maori landowners

[24] It became apparent in the course of the argument of the appeal that the four questions posed for the High Court were inaptly formulated and in particular, contrary to what was assumed in the language of the questions, a court could not enjoin the lawful exercise or proposed exercise of statutory powers. Similarly, the reasoning of the Maori Land Court, which appeared to assume jurisdiction to enjoin the otherwise lawful exercise by the council of its powers under the RMA to notify requirements and propose designations, could not be supported.
[25] The ultimate issue, counsel for the appellant landowners submitted, is whether the Maori Land Court has jurisdiction to entertain a collateral challenge to the validity of the decision by the council to make and notify a requirement under ss 168 and 168A of the RMA on the basis that such decision, if invalid, amounts to an "actual or threatened trespass or other injury to Maori freehold land". That, he said, raises two questions. First, whether the jurisdiction of the Maori Land Court to injunct the council is circumscribed by the scheme and provisions of the RMA. Second, whether the decision to notify a requirement constitutes an actual or threatened trespass or other injury to Maori freehold land.
[26] On the first, he contended that:

η The MLA reaffirms the Treaty principle of protection and maintains a specialist court to achieve the implementation of that principle.

η The RMA and the MLA are not in conflict. They have different purposes and are complementary not contrary. Moreover, the MLA operates to protect Maori freehold land from the consequences of unlawful decisions - i.e. decisions which are not authorised by the RMA.

η To the extent that the MLA has an effect on the process of designation under the RMA, this accords with the manifest intent of Parliament under the MLA to affirm the Crown's duty of protection of Maori land as a taonga tuku iho.

η The RMA does not expressly exempt an unlawful exercise of statutory power under s168 or s168A which causes injury to Maori freehold land from injunction by the Maori Land Court.

η This approach to jurisdiction is consonant with the strong presumption that public authorities and public servants are, unless clearly exempted, answerable in the ordinary courts for wrongs done to individuals.

[27] On the second, he submitted that s19(1)(a), and so the expression "any actual or threatened trespass or other injury to Maori freehold land", must be read in its statutory context having regard to the scheme and purpose of the legislation and the underlying policy. He submitted that land should be regarded as a physical and metaphysical entity. In his submission, having regard to the purpose and objects of the MLA, including the legislative reaffirmation of the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi, and having regard to the special significance of Maori land as taonga tuku iho, an unlawful making and notification of a requirement to construct an arterial route over the Maori freehold land constitutes an actual or threatened trespass or other wrongful injury to that land. Moreover, the planning blight consequent upon the notification of the requirement is plainly an injury to Maori freehold land. Notification of a requirement represents a public violation of the Maori landowners' ancestral bond with their land. It offends against their rangatiratanga and their status as kaitiaki. More importantly it offends against the spirit or wairua of the land, because it represents a severing of ancient ties between the people and the land. Any conception of injury for the purposes of the MLA must include injury to the physical land and injury to the spiritual connection with that land.
[28] Finally, given that the RMA does not expressly provide for relief from an invalid exercise of powers under ss168 and 168A and given the absence of express fetters contained in either the MLA or the RMA to limit the application of the jurisdiction of the Maori Land Court in this context, the jurisdiction of the Maori Land Court should not be read down to preclude collateral challenge to the decision of a local authority to make and notify a requirement pursuant to ss168 and 168A.
[29] Mr Majurey submitted that the Maori Land Court could inquire into the lawfulness of the proposed designation and process before the statutory process had started. The wide jurisdiction under s19(1)(a) could only be excluded by clear statutory language.

Submissions for the Council

[30] Sir Geoffrey Palmer for the council submitted that the provisions of the MLA and the RMA demonstrate that Parliament carefully considered and established the inter-relationship between the statutes and in doing so did not confer jurisdiction on the Maori Land Court to deal with RMA matters.
[31] The Maori Land Act contains express, and in some instances very detailed, provisions in respect of certain aspects of the RMA. In particular, in relation to partitioning of Maori land, the MLA enacts a set of detailed interrelationships with the RMA. The provisions show the care with which the regimes of the MLA and the RMA were designed by the legislature to avoid a clash of jurisdictions between the Environment Court and the Maori Land Court.
[32] The RMA likewise contains explicit provisions which circumscribe its interrelationship with the MLA. Yet, there are no provisions which make the requirement and designation process subject in any way to the MLA. The RMA explicitly provides for Maori values to be reconciled under the RMA. It requires Maori values to be taken into account. It requires Maori to be consulted on various matters. It explicitly contemplates the Environment Court addressing Maori issues. In addition, the MLA explicitly anticipates Maori freehold land losing status under other legislation. Section 130 provides that Maori freehold land can lose its status where explicitly provided by other legislation. The RMA expressly provides for a procedure by which any land, including Maori freehold land, may be required and designated. Under the Public Works Act the council can acquire designated Maori freehold land.
[33] It must be inferred that Parliament considered the two statutes as being prima facie separate and distinct. The only interrelationships are those that are specified. Accordingly, the RMA's requirement and designation provisions are not subject in any way to the Maori Land Act. Parliament has also carefully considered and limited the interface between the Maori Land Act and the Public Works Act. Section 134(2) clearly anticipates that Maori freehold land may be taken under the Public Works Act.
[34] More specifically, he submitted, the requirement and designation procedure under the RMA is so clear and comprehensive as to provide an exhaustive code. The RMA contains procedures and processes to protect all the interests involved. This cannot be reconciled with the purported jurisdiction of the Maori Land Court to make orders that would cut across the administration of the RMA.
[35] On the second issue of the scope and meaning of the phrase "trespass or other injury ... to land" in s19(1)(a), he submitted that the RMA requirement and designation process does not amount to "trespass or other injury". The word "trespass" has a clearly established meaning at common law. Trespass involves some unlawful act and physical entry or use of force and under the principle of ejusdem generis the term "other injury" must be limited by the same criteria. The phrase is not directed to loss of value except through actual or threatened injury to the land itself. If there are any questions about whether a territorial authority is acting in accordance with the statute, a declaration can be sought from the Environment Court. If the actions are ultra vires, the requirement and/or designation will be a nullity and hence there will be a trespass. If the actions are intra vires, they cannot, by definition, amount to a trespass because they are lawful.
[36] He submitted, too, that if an injunction could lie in this situation it would be competent for the Maori Land Court to issue injunctions that interfere with the operation of statutes of broad and general significance to the whole community including Maori - these include the Local Government Act 1974, the RMA, the Building Act 1991 and the Public Works Act - which would be a surprising and unexpected role for a specialist court like the Maori Land Court. That would, he said, allow for duplication and the potential for forum shopping and, as well, unacceptable uncertainty and confusion. The Environment Court is the statutory and appropriate forum to deal with such invalidity issues.

The MLA

[37] The scope of the injunction jurisdiction of the Maori Land Court under s19(1)(a) requires consideration of the language of that provision in relation to the scheme and purpose of the whole statute. That point was recently emphasised in relation to the lack of jurisdiction of the Maori Land Court under s18(1)(i) to determine whether land is held in a fiduciary capacity in Attorney-General v Maori Land Court at p698 (para [20] above).
[38] The object of the Act as stated in the long title is to reform the laws relating to Maori land in accordance with the principles set out in the Preamble which relevantly reads:

And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a Court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles.

[39] Section 2 goes on to express the intention of Parliament that "the provisions of this Act shall be interpreted in a manner that best furthers the principles set out in the Preamble" and that "powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Maori land as taonga tuku iho by Maori owners, their whanau, their hapu, and their descendants".
[40] Sections 17 and 18 set out the general objectives and the general jurisdiction of the MLA:

17. (1) In exercising its jurisdiction and powers under this Act, the primary objective of the Court shall be to promote and assist in-

(a) The retention of Maori land and General land owned by Maori in the hands of the owners; and

(b) The effective use, management, and development, by or on behalf of the owners, of Maori land and General land owned by Maori.

...

18. (1) In addition to any jurisdiction specifically conferred on the Court otherwise than by this section, the Court shall have the following jurisdiction:

(a) To hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest:

(b) To determine the relative interests of the owners in common, whether at law or in equity, of any Maori freehold land:

(c) To hear and determine any claim to recover damages for trespass or any other injury to Maori freehold land:

...

[41] Section 19(1)(a), which parallels s18(1)(c), has to be read in context in s19 along with the other paragraphs of subs (1). The subsection reads:

(1) The Court, on application made by any person interested or by the Registrar of the Court, or of its own motion, may at any time issue an order by way of injunction--

(a) Against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land; or

(b) Prohibiting any person, where proceedings are pending before the Court or the Chief Judge, from dealing with or doing any injury to any property that is the subject-matter of the proceedings or that may be affected by any order that may be made in the proceedings; or

(c) Prohibiting any owner or any other person or persons without lawful authority from cutting or removing, or authorising the cutting or removal, or otherwise making any disposition, of any timber trees, timber, or other wood, or any flax, tree ferns, sand, topsoil, metal, minerals, or other substances whether usually quarried or mined or not, on or from any Maori freehold land; or

(d) Prohibiting the distribution, by any trustee or agent, of rent, purchase money, royalties, or other proceeds of the alienation of land, or of any compensation payable in respect of other revenue derived from the land, affected by any order to which an application under section 45 of this Act or an appeal under Part II of this Act relates.

[42] In its ordinary common law use, trespass is an unlawful entry on to land and as part of the collocation or words, "trespass or other injury to ... land" the expression "other injury" is on its face directed to physical damage to land or conduct interfering with the possession of land, e.g. nuisance which involves substantial and unreasonable interference with the use and enjoyment of land. Clearly there is nothing in the further paragraphs of s19(1) supporting a more expansive interpretation of para (a) than would otherwise be called for. Further, the statutory history does not justify a wider interpretation. Section 19(1)(a) has stood in essentially the same form, but with one important qualification, since the enactment of the Native Land Act 1909. By s24(1)(d) of the 1909 Act and in succeeding statutes, until 1982 the jurisdiction was confined to granting "an injunction against any native in respect of any actual or threatened trespass or other injury to native freehold land", with the term "native" and in later statutes, "Maori" being defined in terms of individual persons, and so not as a noun extending to corporates or public bodies or other entities.
[43] In 1982 the then current provision was amended by omitting the words "against any Maori" (Maori Purposes Act 1982 s6(3)) and the Minister of Maori Affairs in introducing the Bill simply said, "The present law permits the Maori Land Court to hear claims against only Maori offenders. This provision will allow the Maori Land Court to consider proceedings against any trespasser regardless of race" (448 NZPD 4313).
[44] There are no New Zealand reported decisions discussing the reach of s19(1)(a), or more generally a phrase such as "trespass or other injury to land". In a limitation context the Alberta Court of Appeal in Guest v Bonderove & Co (1988) 88 AR 277 was required to determine whether an action by an owner of real property or chattels for pure economic loss was an action for "trespass or injury to real property or chattels, whether direct or indirect, and whether arising from an unlawful act or from negligence or breach of statutory duty". The court held (p278 para [6]):

In our view, the words "trespass or injury to real property or chattels whether direct or indirect" do not encompass an action alleging pure economic loss. The broadest acceptable sense of the word "injury" is "interference with a right". We cannot put that interpretation on "injury" in s51(f) because it would make no sense. Section 51(f) is referring to things that happen to property, not things that happen to the owners of the property. We therefore agree with Esson J, in Alberni District Credit Union and ADCU Development Ltd v Cambridge Properties Ltd et al (1985) 65 BCLR 297 (BCCA) when he says that, in this context, "injury"

... imports something in the nature of physical injury or damage.

We agree. Pure economic loss is not covered by that word in this context.

[45] The court added that it could and did give effect to legislative purpose provided the words chosen by the legislature could reasonable bear that meaning and that there might be cases where courts could add or change words in legislation to cover legislative oversight. This, the court concluded, was not such a case. The words could not reasonably bear an interpretation extending to economic loss and the suggested modification of the statutory language was anything but straightforward (pp278-279 para [11]).
[46] But because the appeal is more appropriately determined by focussing on the RMA it is unnecessary to decide whether s19(1)(a) can be read as embracing conduct wider than actual or threatened physical damage to or interference with the possession of land, and that issue must be seen as open for later determination.

The RMA

[47] The RMA brought the management of all natural and physical resources under a single statute. It is unnecessary to repeat the narrative of the legislation and the specific linkages and inter-relationship with the MLA set out in the arguments of counsel and the judgment of Goddard J already traversed in this judgment. However, there are two central features of the RMA which are particularly important considerations on this appeal.
[48] The first is the emphasis which the Act places on Maori values. Part II contains the statement of purpose and principles. The express purpose of the Act is to permit the sustainable management of natural and physical resources (s5(1)) and sustainable management is capaciously defined in s5(2). Sections 6, 7 and 8 then state matters to be recognised and provided for "in achieving the purpose of this Act". Section 6 requires that "In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance". Separately identified amongst those matters is "(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga".
[49] In similar vein, s7 continues "In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to--(a) Kaitiakitanga".
[50] And by s8:

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

And Maori terms and concepts are used throughout the statute. See, too, the extended analysis by Boast and Edmunds of The Treaty of Waitangi and Maori Resource Management Issues in Brooker's Resource Management, TW-1 to 134.

[51] The second central feature of the RMA is the crucial and expansive role of the Environment Court and the reflection in the appointment of Judges and Commissioners of the Maori dimension in resource management. Having set out the purpose and governing considerations of resource management in Part II, the legislation provides for working out of those principles through regional and district councils and through case by case decision-making processes where the Environmental Court has a pivotal role. As well as its jurisdiction to determine appeals in respect of policy statements and plans and on resource consent applications, the court has wide jurisdiction to grant declarations (s310) and extended enforcement powers (Part XII), including appeals against abatement notices (s325).
[52] The Environment Court is a court of record (s247). As well as its duty to take account of the specific principles set out in ss6, 7 and 8, it is required by s269(3) to recognise tikanga Maori where appropriate. The Environment Court consists of Environment Judges (including alternate Environment Judges) and Environment Commissioners (including Deputy Environment Commissioners). An Environment Judge must be appointed as a District Court Judge (s249(1)) and an alternate Environment Judge must be a District Court or a Maori Land Court Judge (s249(2)). Environment Judges and alternate Environment Judges are appointed after consultation with the Minister of Maori Affairs (s250). An alternate Environment Judge may act as an Environment Judge when the Principal Environment Judge, in consultation with the Chief District Court Judge or Chief Maori Land Court Judge, considers it necessary for the alternate Environment Judge to do so (s252).
[53] Section 253 provides for the appointment of Environment Commissioners and Deputy Environment Commissioners to ensure that the Environment Court "possesses a mix of knowledge and experience in matters coming before the Environment Court, including knowledge and experience in ... (e) matters relating to the Treaty of Waitangi and kaupapa Maori"; and there is a similar consultation process with the Minister of Maori Affairs over all such appointments (s254).

Conclusions

[54] The essential question is whether in its terms and given the scheme of the Resource Management Act, s19(1)(a) gives the Maori Land Court the jurisdiction it invoked when issuing the interim injunction.
[55] The Maori Land Court has jurisdiction to grant an injunction where injury to Maori freehold land is threatened. Leaving aside the question of whether a designation may ever constitute trespass or other injury to land, clearly, and as is now common ground, "injury" within s19(1)(a) must be one which is caused by an unlawful act. The unlawful act relied on by the appellants is the alleged failure of the council to carry out its intended exercise of the s168A powers in accordance with its statutory responsibilities. In short, the argument asserts that the Maori Land Court has jurisdiction for the purposes of exercising its powers under s19(1)(a) to determine that the council in purporting to exercise its powers under s168A will fail to comply with the RMA.
[56] That argument could not be right. The exercise or intended exercise of a statutory power of the council must be accepted as lawful unless and until set aside by a court of competent jurisdiction. Section 19(1)(a) does not purport to give the Maori Land Court jurisdiction to question decisions of the council which on their face are squarely within the RMA. And there could be no justification for reading in a controlling jurisdiction of that kind by implication. The language and scheme of ss18 and 19 provide no support. And to do so would also jar with the elaborate provisions designed to ensure that the Environment Court will reflect Maori values which are part and parcel of resource management under the RMA. And in that regard an implication of that kind could not be confined to challenges to designations, where, in any event, the declaration jurisdiction of the Environment Court and the High Court's supervisory jurisdiction would be available. Such an implication for the purposes of a s19(1)(a) injunction would confer jurisdiction on the Maori Land Court to inquire into any matters which may impinge on the validity of any action of a council under the RMA.
[57] Mr Whata submitted that resort to s19(1)(a) should be viewed as a collateral means of challenge and referred to recent decisions in the House of Lords in Boddington v British Transport Police [1998] 2 WLR 639; Roy v Kensington and Chelsea FPC [1992] 1 AC 624; and R v Wicks [1997] UKHL 21; [1998] AC 92). But the availability of a collateral challenge to the validity of an act, and whether as a shield or as a sword, necessarily depends entirely on the construction of the relevant statute. As Lord Hoffmann said in Wicks (at p117), " ... the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant ...".
[58] We are satisfied that the RMA was intended to be self-contained as to all matters capable of falling within its compass. The Environment Court is designed through its constitution and by its statutory focus, and through the ability to call on alternate Environment Judges and Environment Commissioners with particular expertise, to take account of relevant Maori values. Apart from its general appeal jurisdiction it has extended declaratory jurisdiction and enforcement powers. As well, the High Court has jurisdiction under the Judicature Amendment Act 1972 and the prerogative writ procedures. There is no warrant for attributing jurisdiction to the Maori Land Court whose ordinary area of operation and expertise is far removed from resource management and judicial review matters.

Result

[59] For the reasons given the appeal is dismissed and the question for decision reformulated in terms of para [25] above, namely whether the Maori Land Court has jurisdiction under s19(1)(a) of the MLA to entertain a collateral challenge to the validity of the decision by the council to make and notify a requirement under ss168 and 169 of the RMA, is answered, No.
[60] If any questions of costs arise counsel may submit memoranda.

Solicitors
Russell McVeagh McKenzie Bartleet & Co, Auckland, for appellants
Bannister & von Dadelszen, Hastings, for first respondent