IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A TRUSTEES OF MAUNGATAUTARI 4G SEC IV BLOCK Applicant

Transcription

1 86 Waikato Maniapoto MB 248 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A UNDER Section 19, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND AND AND AND Maungatautari No 4G Sec IV Block TRUSTEES OF MAUNGATAUTARI 4G SEC IV BLOCK Applicant MAUNGATAUTARI ECOLOGICAL ISLAND TRUST First Respondent WAIPA DISTRICT COUNCIL Second Respondent TED TAUROA Third Respondent LANCE HODGSON Fourth Respondent Hearing: 9 July 2014 (83 Waikato Maniapoto MB ) (Heard at Hamilton) Appearances: Mr G O'Brien for the Applicant Ms A Twaddle for the First Respondent Mr P Lang for the Second Respondent Judgment: 24 September 2014 RESERVED JUDGMENT OF JUDGE S R CLARK Copies to: Mr G O Brien, Garth O Brien & Associates, Barristers & Solicitors, DX GA29016, Te Awamutu, garth@obrien.co.nz Ms A Twaddle, Davidson Twaddle Isaac, Lawyers, P O Box 9198, Hamilton 3240, andrea@dtilawyers.co.nz Mr P Lang, Barrister, P O Box 19539, Hamilton 3244, p.lang@xtra.co.nz Mr G Cullen, Lyfestyle Research Ltd, P O Box 532, Hamilton 3240, cull@lyfestyle.co.nz

2 86 Waikato Maniapoto MB 249 Introduction [1] Maungatautari No 4G Sec IV ( the block ) is a block of Māori freehold land situated on Maungatautari mountain. It is vested in trustees and administered as an ahu whenua trust. 1 The trustees are Wiremu Hira Rick Muru, Te Aira Anita Berryman, Donna Matatahi, Te Huritau Muru and Ora Te Ngakau Muru ( the trustees ). 2 [2] Most of the block is situated behind a 47 kilometre predator proof fence built by the Maungatautari Ecological Island Trust ( MEIT ). The fence was completed in Within that ecological island are two areas known as the northern enclosure and the southern enclosure. They were developed prior to the completion of the predator proof fence, as microcosms of the ecological island. The enclosures are the focus of visitor activity and species translocations. [3] In December 2011 the Waipa District Council ( WDC ) entered into a lease with the trustees. The lease is for a period of 21 years and is registered against the title. At the same time an easement instrument was also entered into by the trustees with WDC, to enable members of the public to have access to Maungatautari mountain. [4] Disputes have arisen between the parties concerning both the lease and the easement arrangements. The trustees have also objected to some of the activities carried out by MEIT. On 25 February 2014 the trustees filed an interim injunction application with the Māori Land Court. They sought to prohibit all commercial guided tours and other activities on the block carried out by WDC, MEIT and Mr Lance Hodgson, until Māori land owners consent was given and resource consents were issued by the appropriate authority. [5] Before turning to the issue of whether or not an injunction should be granted there are underlying questions which require determination. They mainly relate to questions concerning the lease and easement instrument. They are: 1 The block comprises some hectares, the relevant CFR Identifier is SA77/105 South Auckland. 2 3 Waikato Maniapoto MB 240 (3 WMN 240).

3 86 Waikato Maniapoto MB 250 a) Are MEIT and members of the public invitees of WDC and able to use the rights of way created by the easement? b) Are MEIT entitled to charge a fee for use of the rights of way created by the easement? c) Have the trustees (and the beneficial owners) been denied access to the block? d) What is meant by the phrase authorised persons as it appears in the lease and easement? [6] Once I have considered those matters I will then return to the issue of whether an interim injunction should be granted. Background [7] Maungatautari mountain is situated in the Waikato district. It is a native forestcovered andesitic volcano. Approximately 3,363 hectares of the mountain is in native forest or regenerating native bush. Approximately 2,530 hectares is set aside as a scenic reserve pursuant to the Reserves Act The land within the scenic reserve is owned by either WDC or the Crown and is administered by WDC. [8] MEIT was formed in October 2001 and operates as a charitable trust. Its primary object is: 3 To remove forever, introduced mammalian pests and predators from Maungatautari, and restore to the forest a healthy diversity of indigenous plants and animals not seen in our lifetime. [9] MEIT have been responsible for building a 47 kilometre predator proof fence around Maungatautari mountain enclosing approximately 3,400 hectares. The land behind the fence is frequently referred to as the Maungatautari Ecological Island. 3 Affidavit of Malcolm Anderson, 19 March 2014 at [2].

4 86 Waikato Maniapoto MB 251 [10] Prior to the completion of the predator proof fence MEIT was responsible for preliminary testing and field work on an appropriate fence type. Part of that involved the building of the northern and southern enclosures. When the two enclosures were completed an eradication programme was undertaken which was completely successful. [11] Some of the key aims of MEIT are to: maintain the predator proof fence; eliminate all warm-blooded mammalian animal pests within the Maungatautari Ecological Island and reintroduce threatened species including kiwi, kōkako, giant weta and tuatara. MEIT wish to facilitate visitor access to the Maungatautari mountain and encourage people to experience a predator free New Zealand wildlife experience. [12] The creation of the Maungatautari Ecological Island has been a major community project which has received significant funding from public donations, territorial authorities, private business industries and the New Zealand Government. [13] Land blocks within the Maungatautari Ecological Island comprise the Maungatautari Scenic Reserve (owned by the Crown and WDC) and privately owned Māori freehold land and General land. [14] The majority, but not all of Maungatautari No 4G Sec IV is enclosed by the predator proof fence. Six and a half hectares of the block is located within the southern enclosure. Having said that the block sits entirely outside the Maungatautari Scenic Reserve. [15] Prior to the completion of the predator proof fence MEIT obtained some resource consents for earthworks to be carried out on Maungatautari mountain. MEIT relied upon the purported authority of one owner in the block. In so far as any legal arrangements concerning access over and the construction of the predator proof fence on the block, nothing was in place until the lease and easement arrangements were entered into in late 2011.

5 86 Waikato Maniapoto MB 252 [16] An ahu whenua trust for the block was constituted by the Māori Land Court on 24 March The minutes of the Court hearing reveal some of the motivation behind the formation of the trust. Mr Wiremu (Rick) Muru said in Court: 5 Well I m hoping to, first of all, at least get some sort of control back for our whānau given the way the Ecological Trust went about fencing the land off before talking to us So the work I see with the Ecological Trust, I think it s good what they re trying to do but I also think that, for them to move forward on a lot of Māori land on the maunga, they need to talk to us rather than take it for granted they can fence certain land off and talk to us later. [17] Prior to the formation of the ahu whenua trust, WDC and MEIT were unsure who spoke on behalf of the owners. They were content to rely upon approval from representatives of Ngāti Koroki Kahukura, one of three iwi groups who have longstanding associations with Maungatautari, the other two being Ngāti Raukawa and Ngāti Hauā. [18] Following the formation of the ahu whenua trust, issues and tensions continued to exist between the trustees on the one hand and WDC and MEIT on the other. The trustees and WDC proceeded to a mediation in July and August Following that three agreements were entered into by the trustees and WDC, they being: a) A heads of agreement dated 31 October 2011; b) A lease; c) An easement instrument. [19] Notwithstanding those arrangements, issues have continued to arise. Matters of particular concern to the trustees are the alleged desecration of wāhi tapu on the block and the construction of a gate and turnstile on a public road leading to the block which they say restricts owners access. They are concerned that MEIT charge visitors to the southern enclosure and operate guided tours when their understanding was the public had free access over the block. They were also concerned that activities carried out by MEIT required resource consent. 4 3 Waikato Maniapoto MB (3 WMN ). 5 3 Waikato Maniapoto MB 248 (3 WMN 248).

6 86 Waikato Maniapoto MB 253 [20] In late 2013 and early 2014 a variety of proceedings were filed by the parties. The trustees sought enforcement proceedings in the Environment Court. WDC sought and were granted an interlocutory injunction by the District Court on 16 January 2014 directing that the trustees shall not prevent WDC, their invitees or visitors from gaining access to the easement lands. The trustees responded by filing injunction proceedings in the Māori Land Court on 25 February Running alongside all of that, MEIT sought resource consents to operate a permanent visitors centre and to undertake guided tours on Maungatautari mountain. [21] Between March and June 2014, I held a series of telephone conferences with the parties and counsel. I was initially reluctant to set the matter down for a hearing given the presence of dispute resolution clauses in both the lease and easement instrument which directed the trustees and WDC to attempt to resolve their differences and if they could not, to then proceed to mediation. Ultimately the trustees and WDC could not resolve their differences by negotiation and a further mediation did not take place. [22] A hearing was held in the Māori Land Court at Hamilton on 9 July At the conclusion of the hearing I put in place a timetable for the filing of further material concerning a concession arrangement between WDC and MEIT. The parties were also given further time to file submissions on legal questions. The last of that material was received by the Court on 15 August [23] On 18 August 2014 the Court received a memorandum from counsel for MEIT attaching a copy of resource consents granted to MEIT to operate a visitors centre at Tari Road and to undertake guided tours. [24] The enforcement proceedings filed by the trustees were due to be heard by the Environment Court on 1 and 2 September Those proceedings have been settled subject to a cost determination and one issue concerning the structures on a public road. I understand those issues will be dealt with by the Environment Court on the papers Waikato Maniapoto MB (83 WMN ).

7 86 Waikato Maniapoto MB 254 My approach to this case [25] The application before the Court is for an interim injunction. Having said that I indicated to all the parties at a judicial conference on 20 March , that at any substantive hearing, the Court would need to determine the rights and interests of the parties pursuant to the lease and easement instrument, prior to considering whether an interim injunction was appropriate. [26] Pursuant to s 18(1)(a) of Te Ture Whenua Māori Act 1993 ( the Act ) the Māori Land Court has the jurisdiction to hear and determine competing rights, estates or interests in relation to Māori freehold land. That section reads: 18 General jurisdiction of court (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: [27] At the hearing on 9 July 2014 the trustees continued to seek an interim injunction, which was opposed by both WDC and MEIT. Counsel for WDC and MEIT placed reliance upon the terms of the easement and lease to support the proposition that members of the public and MEIT were entitled to use the easement as invitees of WDC. Counsel for WDC also made a number of legal submissions on what was meant by authorised persons. [28] Counsel for the applicant appeared in a limited capacity at the hearing. He was not responsible for any of the evidence that was filed and was specifically instructed not to prepare for the hearing. He provided valuable assistance at the hearing but was not in a position to address the Court on the issue of what is meant by invitee or authorised persons. He was therefore given further time to take instructions and file submissions on that point Waikato Maniapoto MB 106 (74 WMN 106).

8 86 Waikato Maniapoto MB 255 [29] During the course of the hearing counsel for WDC also submitted that it would be useful if the Court provided some guidance to the parties on issues of access to the block in particular the locking of gates and the meaning of the phrase authorised persons as it appears in the lease and easement instrument. [30] In the decision that follows I will address the four questions set out at paragraph [5] above. In taking this approach I rely upon s 18(1)(a) of the Act. I also invoke s 37(3) of the Act which reads as follows: 37 Exercise of jurisdiction generally (3) In the course of the proceedings on any application, the court may, subject to the rules of court, without further application, and upon such terms as to notice to parties and otherwise as the court thinks fit, proceed to exercise any other part of its jurisdiction the exercise of which in those proceedings the court considers necessary or desirable [31] If there is any doubt concerning the jurisdiction of the Māori Land Court to make a declaratory order I refer to ss 236 and 237 of the Act. In combination those sections bestow upon the Māori Land Court the same powers and authorities as the High Court when supervising ahu whenua trusts. [32] Section 236 reads as follows: 236 Application of sections 237 to 245 (1) Subject to subsection (2), sections 237 to 245 shall apply to the following trusts: (a) (b) (c) every trust constituted under this Part: every other trust constituted in respect of any Maori land: every other trust constituted in respect of any General land owned by Maori. (2) Nothing in sections 237 to 245 applies to any trust created by section 250(4). [33] Section 237 reads as follows: 237 Jurisdiction of court generally (1) Subject to the express provisions of this Part, in respect of any trust to which this Part applies, the Maori Land Court shall have and may exercise all the same powers and authorities as the High Court has (whether by statute or by any rule of law or by virtue of its inherent jurisdiction) in respect of trusts generally. (2) Nothing in subsection (1) shall limit or affect the jurisdiction of the High Court.

9 86 Waikato Maniapoto MB 256 [34] The Māori Land Court decisions of Malcolm Okataina 10 8 and Trustees of Te Reti B and C Block v Te Kura Te Reti B and Te Reti C Block 9 confirm that the Māori Land Court has the same jurisdiction as the High Court in relation to those types of trusts referred to in s 236 of the Act. [35] In the context of this decision I am able to invoke the same powers and authorities of the High Court whether conferred by statute or by virtue of its inherent jurisdiction. I specifically invoke the same jurisdiction that the High Court has pursuant to the Declaratory Judgments Act [36] After I answer the four questions set out at paragraph [5] above I will then consider whether an interim injunction is warranted. Easement issues Background [37] In late 2011 the trustees and WDC signed an easement instrument. The instrument was certified by a Registrar of the Māori Land Court and registered against the title on 19 November [38] Amongst other things the easement provides for rights of way in gross over five separate parts of the block. [39] The trustees have submitted that the original intention behind granting the easements was to enable the public to have free and uninterrupted use of its land to gain access to both the southern enclosure and the Summit Track also known as the Over the Mountain Track (hereinafter referred to as the Over the Mountain Track ). They submit that MEIT is not a party to the easement instrument and does not fall within the definition of invitee. Furthermore they argue that MEIT have sought to change the use of the easement facilities by providing commercial guided tours. The trustees submitted that persons who pay a fee to MEIT are not licensees or invitees of WDC Rotorua MB 287 (260 ROT 287) Waikato Maniapoto MB 277 (74 WMN 277).

10 86 Waikato Maniapoto MB 257 [40] WDC point to the definition of grantee as contained in Schedule 4 of the Land Transfer Regulations Specifically they highlight the extended definition of grantees which includes agents, employees, contractors, tenants, licensees and other invitees of the grantee. WDC say that they always intended to authorise the general public to exercise rights in reliance upon the easement and the general public must be considered either licensees or other invitees of WDC. On the question of paid tours WDC submitted that there is no limitation in the easement instrument that states or implies that it is for the purpose of free public access to the southern enclosure. They point to the fact that free public access is available to the Over the Mountain Track and the only restriction on access is to the southern enclosure. [41] WDC also submitted that a concession has been granted to MEIT in relation to the southern enclosure. As the sole purpose of the access track to the southern enclosure is to facilitate public access to the enclosure, any restriction on access prior to entry is consistent with the terms of the easement. Furthermore, people wishing to access the southern enclosure will only be invitees for the purpose of the easement instrument if they gain access on terms that are agreed to by WDC, such terms can include participation in a guided tour and the payment of a tour fee. [42] The position of MEIT was that it held all the necessary resource consents and concessions required to carry out commercial activities within the Maungatautari Ecological Island. They say that they operate in accordance with a Memorandum of Understanding between themselves and WDC. I record that the Memorandum of Understanding was not placed before the Court. [43] MEIT submitted that although they are not a party to the easement instrument they are entitled to rely on it. They say that WDC as the grantee has the right to authorise the general public as visitors to the southern enclosure to gain access via the easement land. Furthermore that WDC as grantee has the right to use the easement land for access to the southern enclosure for the purpose of paid guided tours.

11 86 Waikato Maniapoto MB 258 What does the easement instrument say? [44] The easement instrument was entered into between the trustees as grantor and WDC as grantee. Clauses 3 and 4 together with associated plans indicate that WDC has the right to use five specific areas of the block for the purposes of access. [45] The background recitals in the easement instrument are relevant. They cast light on why the easements were necessary. Those provisions read as follows: BACKGROUND A. The Grantor is the owner of the Land. B. MEIT has paid for and erected a predator proof fence around Maungatautari for the purposes of preventing mammalian pests from entering the Maungatautari Ecological Island, thereby creating the Maungatautari Ecological Island. MEIT has carried out extensive pest removal programmes to reduce the number of pests within Maungatautari Ecological Island and extensive release programmes to increase the number and diversity of native fauna with the Maungatautari Ecological Island. C. Part of the predator proof fence and the Perimeter Access Track is situated on the Grantor s land. In addition access to the Southern Enclosure and the Summit Track is gained over the Grantor s land. D. The Grantee has accepted responsibility for arranging legal access across the Grantor s Land to enable members of the public to experience and enjoy Maungatautari and to enable Authorised Persons engaged by the Grantee or MEIT to monitor, repair and maintain the Fence and to monitor and control mammalian pests and pest plants. [46] In simple terms the trustees say that MEIT is not a party to the easement instrument and are not allowed to rely upon it. Nor are they to be included within the definition of grantee as set out in the Land Transfer Regulations [47] Schedule 4 of the Land Transfer Regulations 2002 sets out the definition of grantee in relation to easement. It reads: grantee, in relation to an easement, (a) means (i) (ii) the registered proprietor of the dominant land; or the person having the benefit of an easement in gross; and (b) includes the agents, employees, contractors, tenants, licensees, and other invitees of the grantee

12 86 Waikato Maniapoto MB 259 Legal principles [48] The leading decision on the question of who may use a right of way is Baxendale v North Lambeth Liberal and Radical Club Ltd. 10 That case concerned an action by a lessee against the defendant club and one of its members claiming an injunction to restrain the members, honorary members, guests, visitors, officers, and tradespeople of the defendant club from using a passage across the lessee s land as a carriage or footway from the defendant s land onto a public road. Swinfen Eady J said: 11 the grant of a right of way to premises which may be and are being lawfully used as a workmen s club extends to all persons lawfully going to and from the club, and includes the members of the club, associates, tradespeople, and servants it cannot be doubted that in the ordinary case of a grant of a right of way to a house and premises which may only be used as a private dwelling-house, the right would extend not only to the grantee, but to members of his family, servants, visitors, guests and tradespeople, even though none of these persons be expressly mentioned in the grant. [49] In the New Zealand decision of Grinskis v Lahood 12 the Court held that where classes of persons entitled to use a right of way are enumerated, prima facie, those classes will be seen as examples only of a person entitled to use the right of way. Haslam J said: 13 The nature of the pathway at the time when the grants were created may be treated as indicating by way of inference an intention that the quality and purpose of user should not be unduly limited. There is here no express restriction as to the persons entitled so to use it. [50] In the case of Harb Trading Ltd v Rodney District Council 14 Harrison J took the approach that the extent of the rights conferred depends upon the construction of the words used in the instrument. Those words must be construed according to the natural meaning of the words contained in the document as a whole and read in the light of the surrounding circumstances existing at the date when the instrument was executed. He referred to a general principle that a right of way may be used by anyone who is expressly or impliedly authorised to do so by the person entitled to possession of the dominant tenement. Although classes of persons entitled to use a right of way may be expressly limited by the terms of the instrument, a grant is not construed strictly. Where classes of individuals 10 [1902] 2 Ch Ibid, at [1971] NZLR Ibid at [2002] 2 NZLR 800.

13 86 Waikato Maniapoto MB 260 entitled to use the right of way are enumerated, prima facie, such classes are not intended to be read as exhaustive but as illustrative of the classes of individuals entitled to use the right of way with the result that a grant of right of way normally extends to all licensees of the grantee lawfully going to and from the dominant tenement. Question One: Are MEIT and members of the public invitees of WDC and able to use the rights of way created by the easement? [51] The answer is yes. The mere fact that neither MEIT or members of the public are not enumerated in the definition of grantee is not fatal. The authorities set out above confirm that a liberal approach is taken to the question of who may use a right of way. As there is no express restriction on the class of persons able to enjoy the rights of way, the restrictive interpretation argued for by the trustees is not warranted. [52] The purpose in creating the rights of way is clearly understood from the background recited in the instrument. Clause B expressly refers to the fact that MEIT has paid for and erected the predator proof fence around Maungatautari mountain. Clause D of the background recital is significant in this context. It records that: a) WDC accepted responsibility for arranging legal access across the block; and b) The legal access was to enable members of the public to experience and enjoy Maungatautari. [53] I am of the view that the trustees of the land when entering into the easement instrument were aware of its purpose. That being that WDC as the grantee would facilitate access via the rights of way created by the easement instrument for members of the public and MEIT. [54] The result is that WDC are entitled to a declaration that members of the public and MEIT are the invitees of WDC and are entitled to use the rights of way created by the easement.

14 86 Waikato Maniapoto MB 261 Question Two: Are MEIT entitled to charge a fee for use of the rights of way created by the easement? [55] The evidence before me was that the cost of constructing the predator proof fence was well over $20 million. In recent times MEIT has sought to become active in the tourist market in an effort to become more self-sustaining. To that end, they market and promote guided tours of the southern enclosure. Recently MEIT was granted a licence to occupy part of Tari Road, a public road, by WDC. MEIT have built a steel gate and turnstile on Tari Road. The purpose is to direct members of the public to a visitors centre where they can obtain information about the Maungatautari Ecological Island and arrange tours of the southern enclosure. [56] It was the position of MEIT that without some form of proper access controls they would not be able to recover fees in accordance with a concession they hold from WDC, nor make visitors aware of the additional services they offer. [57] The rights of way over the block enables access to the Over the Mountain Track and the southern enclosure. In relation to the Over the Mountain Track the position appears to be that free public access is provided. A perimeter gate is unlocked and the public are able to access the Over the Mountain Track free of charge. [58] The situation concerning the southern enclosure is different. A member of the public who wishes to visit the southern enclosure is directed towards the visitors centre. A visitor has two options. They can pay for and undertake a guided tour of the southern enclosure. If they do not wish to undertake a guided tour then they must pay a facility fee for accessing the southern enclosure. Access is then provided through the turnstile by way of swipe card. [59] The position of both WDC and MEIT is that there is no limitation in the easement instrument that states or implies that free public access must be available to the southern enclosure. WDC argued that if people wished to access the southern enclosure they will only be invitees for the purpose of the easement if they access on terms that have been agreed to by WDC, and that there is nothing to prevent those terms, including participation in a guided tour or payment of a facility fee.

15 86 Waikato Maniapoto MB 262 [60] Counsel for MEIT submitted that WDC as the grantee has the right to use the easement lands for access to the southern enclosure for the purpose of paid guided tours. Likewise they submitted that the easement does not state expressly or by implication that its purpose was to provide free public access to the southern enclosure. [61] Counsel for MEIT also referred to a reserve management plan for the Maungatautari Scenic Reserve which has been in place since That plan refers to the option of a concession for the conducting of tours in the southern enclosure. Section 6.12 of that plan contemplates the possibility of commercially operated tours in the southern enclosure. Section refers to the fact that any organisations, groups or individuals that wish to undertake commercial activities must apply for a lease, licence or concession from WDC under the Reserves Act Clause of the plan refers to the possibility that MEIT will apply for a licence to develop, maintain and promote the southern enclosure. [62] Both WDC and MEIT placed reliance upon a concession arrangement that exists between them. Surprisingly that material was not placed before the Court. I called for that information at the conclusion of the hearing. It was subsequently filed on 16 July [63] That material indicates that an initial application for a concession was filed with WDC on 30 November WDC granted a trial concession for a 12 month period to enable MEIT to conduct a low impact tourism business. The trial concession lasted until 30 October In October 2013 an application was filed for an enduring concession. On 24 June 2014 WDC granted MEIT an interim concession. Currently WDC continues with the processing of an enduring concession application in accordance with the provisions of the Conservation Act [64] Section 59A of the Reserves Act 1977 provides for the granting of concessions over reserves controlled by or on behalf of the Crown. A concession is a generic term for rights created by lease, licence, easements and permits to use land vested in the Crown. Subsection 59A(4) contemplates that a concessionaire may impose a reasonable charge for the use of any facility in a reserve (other than a path or track) provided by the Minister. Subsection 59A(5) contemplates that a person acting in accordance with the concession who

16 86 Waikato Maniapoto MB 263 carries out any activity in a reserve may impose a reasonable charge in relation to that activity. [65] I acknowledge that the opening words of clause 7.1 of the lease state that WDC will manage the block as part of the Maungatautari Scenic Reserve. Having said that I doubt that clause has any application in relation to the concession granted to MEIT as s 59A(6) of the Reserves Act 1977 states: 59A Granting of concessions on reserves administered by Crown (6) Nothing in this section authorises any person to do anything on or in respect of any private land. [66] Maungatautari No 4G Sec IV block is privately owned Māori freehold land. The concession has no application in relation to that block. As Mr Roxburgh for WDC deposed: 15 Any concession granted can only apply to the reserve land. Any arrangement over the Applicants land would be a matter for discussion between the Applicants and MEIT as the concession holder. There was no provision included in the Easement or the Lease in relation to that issue. It was left for the Applicants to discuss with MEIT if they wish to pursue it. [67] WDC as the administrator of the Maungatautari Scenic Reserve can grant a concession pursuant to s 59A of the Reserves Act Since late 2012 WDC has granted limited concessions to MEIT to conduct guided tours in the southern enclosure. That concession cannot and does not relate to private land, it relates only to land contained within the Maungatautari Scenic Reserve. [68] It is not a sufficient answer for WDC to say that it sets the terms upon which invitees may use the rights of way, including the possibility of a fee for a guided tour. It is not WDC who are charging for guided tours or facility fees, it is MEIT pursuant to a concession. They cannot do so in relation to the block. [69] The reasons I have outlined are sufficient to answer Question Two. However there are a number of additional factors which support the conclusion that MEIT are not entitled to charge a fee for use of the rights of way created by the easement instrument. 15 Affidavit of Anthony John Roxburgh, 13 June 2014 at [29].

17 86 Waikato Maniapoto MB 264 [70] First, I note that MEIT belatedly applied for resource consents for guided tours to the southern enclosure and only after the trustees sought enforcement orders in relation to those activities. A resource consent was granted on 17 July It is: 16 limited to those parts of the Maungatautari Ecological Island Southern enclosure which have reserve status under the Reserves Act 1977, being Section 31 Tautari Settlement and Part Lot 2 DP [71] Further the advisory notes contained in the resource consent record that: 17 The conducting of tours within Maungatautari 4GIV Block is not authorised by this consent, although the consent does not preclude access through Maungatautari 4GIV Block where this is legally provided for by way of easement or landowner agreement. [72] Secondly, I note that it was always the position of the trustees that the public were entitled to free access over the block whether or not those rights of way led to the Over the Mountain Track or the southern enclosure. A submission was made on behalf of WDC that had the trustees wished to insist upon free access then those terms could have been included into the easement instrument and were not. [73] That submission flies in the face of an assurance given by representatives of MEIT, when they met with the owners on 28 November 2008 seeking an access arrangement. At that meeting, Mr Jim Mylchreest speaking on behalf of MEIT, told the owners that: 18 The key issue is the Scenic Reserve status on the mountain means the general public has free and unrestricted access to the reserve and can t be charged for it. [74] Third, pursuant to ss 59A(2) and (4) the Minister or concessionaire may impose a reasonable charge for the use of any facilities (other than a path or track) provided by the Minister in or in respect of any such reserve. [75] The path or track is provided by WDC as the grantee to the easement instrument. MEIT and members of the public are only able to use the rights of way, as the invitees of the grantee WDC. If the easement instrument did not exist, members of the public could not use the block to gain access to the Maungatautari Scenic Reserve. 16 Decision by Independent Hearings Commissioners dated 17 July 2014 attached to memorandum of counsel for MEIT dated 18 August 2014 at page Ibid. 18 Affidavit Graham Cullen, 20 February 2014 at exhibit 32.

18 86 Waikato Maniapoto MB 265 [76] Whilst the rights of way are not located in the scenic reserve itself, they clearly exist in respect of any such reserve, leading as they do to the Maungatautari Scenic Reserve. Thus there is a strong argument that ss 59A(2) and (4) of the Reserves Act 1977 prohibits WDC or in this case MEIT from imposing any charge in relation to the rights of way leading to the Maungatautari Scenic Reserve. 19 [77] In conclusion on this question I make the following declarations: a) MEIT are not entitled to charge a fee for use of the rights of way over Maungatautari No 4G Sec IV; b) Pursuant to the concession it holds, MEIT are entitled to charge members of the public for guided tours or a facilities fee in relation to that part of the southern enclosure which lies within the Maungatautari Scenic Reserve. Question Three: Have the trustees and beneficial owners been denied access to the block? [78] The initial position taken by the trustees is that they, the beneficial owners and their invitees were prevented from accessing the block. [79] In relation to the Over the Mountain Track, having read the evidence and heard the cross-examination of Mr Cullen, the situation appears to be that members of the public, the trustees and their invitees have free access to that track. A right of way over the block leads to an animal security gate which is not locked and there is free access to the Over the Mountain Track. [80] The trustees were concerned about MEIT s construction of a steel gate and turnstile on Tari Road. They submitted that those structures were built without their knowledge or permission and impedes or hinders access to the block. [81] Strictly speaking it is not necessary for me to make any comment on this issue as those structures are located on a public road, which is vested in WDC. The Māori Land 19 I record that I have been unable to locate any authority on the meaning of ss 59A(2) and (4) of the Reserves Act 1977.

19 86 Waikato Maniapoto MB 266 Court does not have jurisdiction over those lands. However as the cross-examination unfolded before me it became clear that the steel gate is not locked. All that is required to do is slide a bolt to unlock the gate, and vehicle and pedestrian access can then be obtained to the block. [82] Prior to MEIT erecting the steel gate and turnstile there were disputes relating to the locking and unlocking of a wooden gate on the block which leads to the southern enclosure. Indeed there have been a number of injunction proceedings taken out both in the District Court and the Māori Land Court in relation to that issue. 20 [83] The issue before me appeared to be that locks and chains formerly belonging to the trustees were removed from the gate and replaced with a lock and chain by WDC. The trustees complain that only one key was provided by WDC, which made access to the block difficult. [84] During the course of the hearing a suggestion was made by counsel for WDC that I provide comment or guidance upon this issue to the parties. [85] The evidence before me is that the wooden gate which leads to the southern enclosure is situated on the block. As such it is the trustees as the legal owners of the block who are entitled to control and lock the gate. [86] However, that cannot be at the expense of WDC as the grantee. As the Land Transfer Regulations 2002 provide, a grantee has the right to go over and along the easement facility without obstruction. Locking the gate by the trustees would clearly be an obstruction. Nor are WDC entitled to, as they have done in the past, lock the gate and prevent access to the trustees, the beneficial owners and their invitees. As Mr Roxburgh on behalf of WDC deposed: 21 The Applicants are free to fasten their own locks on their boundary gate, but the Council would expect to be provided at all times with a key because access through that gate is authorised by the lease and easement granted to the Council 20 Applications A application for an injunction by Tioriori Wally Papa, A application for an injunction by Wiremu Hira Rick Muru and injunction proceedings taken in the District Court by WDC. 21 Further affidavit of Anthony Roxburgh, 13 June 2014 at [12].

20 86 Waikato Maniapoto MB 267 [87] Common sense should prevail in this situation. That has not always been the case in the past. The trustees have entered into arrangements which are binding on them, the result being that WDC, their agents, employees, contractors, tenants, licensees and other invitees are entitled to use the rights of way. The trustees cannot obstruct them from doing so. Nor can WDC prevent the trustees as the registered proprietors of the block and their agents, employees, contractors, tenants, licensees and other invitees from accessing the block. [88] I am attracted to and support the submission made by counsel for WDC during the course of the hearing, that the parties put in place a dual padlock system secured by interlocking chains. Keys could be held by the trustees, and representatives of WDC and MEIT. Any one key could open the dual padlocks. [89] I strongly urge the parties to meet, discuss and decide upon a locking mechanism agreeable to all concerned with a sufficient number of keys held by representatives of the parties. [90] In summary I reach the position that: a) Neither the trustees, the beneficial owners or their invitees are prevented from accessing the Over the Mountain Track; b) The steel gate on Tari Road is unlocked. The trustees, the beneficial owners and their invitees continue to have free access to the southern enclosure. [91] I make the following declarations: a) The trustees are entitled to lock the wooden boundary gate which leads to the southern enclosure. At all times however they must permit access to WDC, their agents, employees, contractors, tenants, licensees and other invitees which includes members of the public and MEIT; b) WDC are not entitled to lock the wooden boundary gate to the southern enclosure, thereby preventing access to the trustees, the beneficial owners

21 86 Waikato Maniapoto MB 268 and their agents, employees, contractors, tenants, licensees and other invitees. Question Four: What is meant by the phrase authorised persons? [92] The phrase authorised persons appears in both the lease and easement instrument. [93] On 20 December 2011 the trustees and WDC entered into a lease of the block. Clause 7 of the lease sets out various obligations on the lessee. Restrictions are placed upon the lessee and any authorised person or visitor from carrying out a number of activities on the land for example bringing on firearms, lighting fires, bringing on dogs and leaving rubbish on the land. [94] Authorised persons is defined in the lease and easement instrument as follows: Means any person specifically named and appointed by the Community Facilities Manager of Council or Group Manager Service Delivery (all the equivalent Council positions should these positions no longer exist) or the Chief Executive and approved by the Landowner, to carry out specific work or inspections on behalf of the Council or MEIT. [95] It is apparent from examining the lease and easement instrument that a number of different classes of persons would access the block: the trustees (and the beneficial owners and their invitees); WDC; MEIT; authorised persons ; and visitors. [96] MEIT have been responsible for carrying out a variety of tasks within the Maungatautari Ecological Island including pest monitoring, fence inspection, weeding, planting, guiding and helping with fence and track maintenance. An issue has arisen that none of the employees, contractors and volunteers for MEIT have been approved by the trustees, as required by the lease. [97] The situation appears to be that following execution of the lease and easement instrument, little work was done on the question of land owner approval being sought for authorised persons to access the block. [98] This issue seems to have come to life in late WDC have responded to requests for personal information by requiring an explanation and assurances from the trustees that information acquired would only be used for the purposes of approval, that

22 86 Waikato Maniapoto MB 269 applicants would be informed as to the process they were being subjected to and why that private information was being sought. [99] The trustees did not specifically reply to that request. Instead they sent a form to WDC which sets out information required for approval. The information sought being: a) The full name of the proposed person and any dog; b) An address; c) A telephone number; d) The entity; e) General purpose of entry; f) The signature of the proposed person or dog handler; g) The signature of the Waipa District Council Authorised Officer; [100] A $20 processing/registration fee was also required. The lower part of the form then provides a section indicating whether or not approval has been given. [101] The position of WDC and MEIT is that the personnel of MEIT, including employees, contractors and volunteers have carried out work in the Maungatautari Ecological Island, including the southern enclosure for a number of years without any apparent problem. Counsel for WDC submitted that requested lists of volunteers and contractors for approval only arose in and around the time Court proceedings were commenced in late 2013, I take that to mean proceedings in the Environment Court. [102] Particular criticism was made of the fact that the trustees sought a $20 processing/registration fee for each application. They submitted that would have the effect of running into thousands of dollars given the large volunteer base of MEIT. A submission was made that the insistence upon approving authorised persons smacks of opportunism on the part of the trustees. Counsel for WDC also submitted that the definition of authorised persons must be read as including an implied term that the approval of an authorised person would not be unreasonably or arbitrarily withheld.

23 86 Waikato Maniapoto MB 270 [103] By way of oral response, counsel for the trustees submitted that they were entitled to know who was on their land and in what capacity. They were entitled to make inquiries as to whether persons had criminal convictions for say, wilful damage or arson or may in some way be involved in activities that could destroy or damage the block. [104] When I examine the definition of authorised person the following matters are of significance: a) Both the trustees and WDC clearly had in mind that specific work or inspections would be carried out on the block or on the rights of way by either WDC itself or MEIT; b) That WDC would develop a process whereby those persons who carried out that specific work or inspections were named and appointed by a WDC Manager; c) That those persons would in turn be approved by the land owner the trustees. [105] It is apparent that the initial responsibility for the identification and appointment of approved persons rests with WDC. In turn approval then has to be sought from the land owner. I have very little evidence before me from WDC as to whether or not they have developed a process, list or register of potential authorised persons. There is no evidence that even if they have developed such a list that it was ever forwarded to the trustees for approval. There was a suggestion in one of the answers provided by Mr Cullen under cross-examination on behalf of the trustees, that a list of persons may have been provided, but other than that no further evidence is available. 22 [106] It is difficult from this vantage point to categorically say whether there is some opportunism on the part of the trustees. What I do know is that there is an express clause in the lease which requires that land owner approval has to be obtained for persons carrying out work or inspections on behalf of either WDC or MEIT Waikato Maniapoto MB 80 (83 WMN 80).

24 86 Waikato Maniapoto MB 271 [107] Whilst there has been a concentration upon lack of approvals for MEIT contractors and volunteers, one interpretation of the clause is that it refers to all employees, contractors, licensees, invitees and volunteers who carry out specific work or inspections whether on behalf of WDC or MEIT. On that issue I received no evidence and no submissions. [108] I have viewed the form which the trustees prepared. 23 Most of the questions are not objectionable. The trustees as the land owners are entitled to know who is on their property and what tasks they are carrying out. The questions posed are aimed at identifying the person on their land, whether they will have a dog with them, the purpose of entry, and ensuring that authority has been obtained from an authorised WDC officer. [109] There can be no real objection to a request for an address and telephone number. There may be good reason that the trustees may need to contact an authorised person who is on their property or relatives or next of kin of that authorised person. I take it that question 4 in the form, which relates to entity, is an attempt to identify whether a person is on the block on behalf of either WDC or MEIT. If they are a contractor to either WDC or MEIT I take that question to be a request to identify the name of the relevant company, firm or partnership. [110] Having said that the trustees need to be aware that they are seeking disclosure of private information. Thus they must be guided by the principles of the Privacy Act To that end the explanations and assurances sought by WDC and MEIT are not unreasonable. The persons from whom the private information is sought should be informed of the following: a) What is the purpose in collecting the personal information? b) Who are the intended recipients of the information? c) An assurance that the information provided would only be used for the purposes of approval of authorised persons ; 23 Affidavit of Graham Cullen, 20 June 2014, exhibit D.

25 86 Waikato Maniapoto MB 272 d) The process the trustees would undertake prior to approval of an authorised person ; e) An assurance that the personal information is secure against loss, modification or misuse to a degree that is reasonable in the circumstances; f) An assurance that an individual who discloses the information has access to it for the purposes of checking and/or correction. [111] There are three further matters which require comment. The first is minor. Question 1 in the form seems to suggest that the full name of any dog on the block is required. I have assumed that is a drafting error and what in fact is sought is whether any person will be accompanied by a dog. In that respect the type of dog and the purpose for the dog being on the block would be relevant information that the trustees are entitled to. [112] The next matter is the criticism levelled by WDC that a $20 processing/registration fee is unnecessary and opportunistic on the part of the trustees. They submitted that if a $20 fee was required that would run into several thousand dollars for MEIT. Both WDC and MEIT submitted that the lease requires the land owners to consider approval applications and the lease already provides for lease payments to the trustees. Thus they submitted that the trustees are attempting to vary the terms of the lease by asking for a processing/registration fee. [113] I agree with that submission. The lease expressly contemplated an approval process being undertaken by WDC and the land owners for authorised persons. It was up to the parties at the time they entered into the lease to agree upon whether or not a registration or processing fee was appropriate and that does not appear to have been done. Thus I would conclude that the insistence upon a $20 processing/registration fee appears to be an unnecessary barrier imposed by the trustees to land owner approval. [114] The final issue relates to Police vetting checks. In response to an answer under cross-examination, Mr Cullen indicated that the owners wanted to carry out Police vetting checks on people who were accessing their land. 24 Counsel for the trustees picked up on Waikato Maniapoto MB 78 (83 WMN 78).