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Major win for our Resurce Management Team - Otito Reserve Matapouri
A small Northland community and hapu have won a significant victory after challenging two Government departments in the High Court.
High Court Justice Heath today released his judgment in which he found an error in law had been made by the Chief Surveyor in 1999.
His decision follows a hearing in July 2010 over 1.1 hectares of land at Otito Reserve, Matapouri Bay, which fell into private ownership as a result of a disputed survey that redefined the boundary.
The Crown paid $3.5 million to buy back most of the land and restore it to public ownership in early 2010 - more than two years after it had been made aware of the issue. However, the Crown refused to admit error.
Te Rangiwhakaahu Hapu Charitable Trust and Friends of Matapouri continued with Court action against the Department of Conservation (DoC), the Department of Land Information New Zealand (LINZ)and the Attorney General seeking acknowledgment of Crown liability and to recover their legal costs, which had by then become substantial.
Justice Heath granted the Hapu Trust’s application to review the 1999 decision of the chief surveyor that shifted the boundary of the Otito reserve. He found that by applying too low a standard the chief surveyor had approved a new plan inconsistent with plans on which title had previously been issued. He said that it was difficult to resist an inference that the change of boundary “might not have been so readily made had the affected land been in private ownership.”
He granted the Hapu Trust’s application to review the 1999 decision but said it was not possible to rectify the land Register because that would “undermine the principle of indefeasibility on which the Land Transfer Act is based.”
He reserved his decision on costs and deferred to the Hapu’s exisiting Waitangi Tribunal claim to provide redress. Justice Heath set a February date to rule on costs.
Friends of Matapouri co-chairman John Woolley said the decision was another positive step in a process which had brought the community together in support of a common goal, but which had also been exhausting and should not have been necessary.
“We first brought this to the Crown’s attention in October 2007, expecting that we would be listened to and the error would be investigated and put right.
“Instead the Crown seems to have used its might and resources to try to make us go away. Despite spending $3.5 million of public money buying back land that it once owned, the Crown has not acknowledged any error. It offered to pay less than half the legal costs of our two community organisations if we withdrew our Court action.”
Te Rangiwhakaahu Hapu Charitable Trust chairman Kris MacDonald said the two groups had been placed “in the ridiculous position of having to sue the Crown to prove that the Crown owned the reserve land.”
“We wanted to make sure this would never happen again. When this land was originally sold to the Crown in 1970, our objective was that it would be maintained by DoC on behalf of all New Zealanders. To see it disappear into private ownership was a complete breach of trust.”
He said Otito Reserve contains two significant wahitapu and one of these tapu areas - an urupa where bodies were cleansed and prepared for burial - was included within the area that had fallen into private ownership.
Both Te Rangiwhakaahu Hapu Charitable Trust and Friends of Matapouri acknowledged the “incredible contribution” of local Whangarei law firm Henderson Reeves Connell Rishworth, which - despite community fundraising and donations by the two groups totalling more than $102,000 throughout the process - had worked on a largely unpaid basis.
Henderson Reeves Connell Rishworth principal Stuart Henderson said the Otito case called into question the integrity of New Zealand’s entire land transfer system. The Otito boundary had been redefined by a new survey plan deposited in 1999. after having been approved by LINZ under a new reduced accreditation process. That process allows accredited surveyors to submit plans that are not subject to a rigorous individual check by LINZ staff but are instead randomly audited to ensure accuracy. Previously, every survey plan lodged was rigorously checked to ensure survey regulations had been followed and there was no conflict with existing surveys.
“This shows that the system isn’t foolproof and is no longer safe. A single error can result in priceless land - land that belongs to all New Zealanders in this case - being lost, and it is almost prohibitively expensive to prove what has taken place and force an error to be corrected,” said Mr Henderson.
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