Max Pakinga-Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
Summary
The Court of Appeal held that mine shafts could not be consented on an unformed ‘paper’ road on conservation land for gold mining operations.
Background
The Wharekirauponga Forest is conservation land in the Coromandel administered by the Department of Conservation (“DOC”).
Mining company Oceana Gold (New Zealand) Ltd obtained a crown minerals permit to explore for gold and silver underneath parts of the forest. The access arrangement with DOC did not cover access if gold and silver were discovered. Having discovered gold, instead of applying for the necessary access, Oceana Gold plans to construct a tunnel from private land underneath the forest to access the minerals. The tunnel needs ventilation and escape shafts. To surface in DOC land would require a DOC access arrangement.
Oceana Gold sought to circumvent this by asking the Hauraki District Council for a licence to surface the shafts on an unformed ‘paper road’ in the forest.
Paper roads are legal roads on survey plans and in law but without current formed surfaces to enable foot and vehicle traffic. They are typically found in rural areas, often running unmarked through farmland or bush. They are usually unused and indistinguishable from their surrounding environment. Local authorities own the paper road land under s 316 of the Local Government Act1 974 (“LGA 74”).
The ‘roads’ on which consent was granted to surface shafts were in remote dense bush. They were difficult to access on foot and impossible to access by vehicle.
In September 2021, the Council granted licences in the face of DOC opposition to construct and maintain the shafts on the road. The licence ran for 40 years. During the initial construction period, only 5 metres of the 30 metre width of the road would be passable. For the remainder of the term, the shafts would obstruct approximately 10 metres of the road. The Council included conditions requiring that the road not be completely obstructed, and that Oceana Gold remediate the obstruction at the end of the Licence term.
Ours Not Mines Ltd (“ONM”), a local environmental advocacy group, applied for judicial review, arguing that the Council could not use its statutory roading powers to grant a licence for a commercial purpose.
The High Court held that the Council’s power to grant the Licence arose from its common law ownership rights, and that granting the Licence was permissible as it did not result in an ‘appreciable interference’ with public access along the road.
ONM appealed to the Court of Appeal.
The case
Extent of local authority powers to licence obstructions to roads
The Court of Appeal agreed with the High Court that the Council's power to grant licences derived from ownership rights not statutory authority. Accordingly, ONM’s argument that the Council had exceeded its statutory powers failed.
However, ownership rights did not give the Council absolute power to deal with roads as it pleased. Local authorities held public roads on trust for the public to enable public access. Temporary obstructions could be authorised, but appreciable interferences with access rights created a public nuisance and were beyond the Council’s powers.
A court would assess whether an interference was appreciable based on contextual factors like the magnitude and duration of the disruption, and the nature, location, and use of the road. The same basic principle applied to busy city streets through to unformed paper roads through dense bush and other inhospitable terrain.
Appreciable interference with public access
The Council submitted that there was no appreciable interference caused by the structures because they were located in dense bush far away from other accessways, were completely inaccessible by vehicle and accessible only with difficulty by walkers.
These arguments were decisive in the High Court. However, the Court of Appeal took a different view, albeit claiming that the case was finely balanced.
The court considered the claim finely balanced but rejected the Council’s argument. The decisive factors were the magnitude and duration of the obstruction. Only 5 metres of the road would be unobstructed during the initial construction period. While the obstruction would diminish afterward, 10 metres of the road’s 30 metre width would be fenced off for the 40 year term of the Licence. While the road’s remoteness and infrequent use and the lack of any plans for formation were relevant context, the court emphasised that public rights of access were paramount on any land legally designated as a road.
Given the magnitude and duration of the interference in this case, the court held that the Licence appreciably interfered with the public’s right to access the road. Accordingly, the Licence was unlawful.
Result
The court granted the appeal.
The decision adopts a more stringent approach to maintaining public access rights than was adopted in the High Court.
It is possible that Oceana Gold’s motives for obtaining the Licence influenced the outcome. In parts of the judgment, the court was critical of Oceana Gold circumventing Conservation Act restrictions around mining on conservation land, although this did not determine application of the legal test for interference with paper . It remains to be seen whether the Council or Oceana Gold will appeal to the Supreme Court.
The Conservation Amendment Bill is currently before the Environment Committee and is due to be reported back to the House by 12 November 2026. Proposed amendments significantly expand the powers of the government to exchange or dispose of conservation land. If enacted, this change may facilitate mining projects and other economic developments on what is currently conservation land without the need for recourse to devices like paper roads.
For further information on this or similar cases please contact Director, Brigitte Morten
The High Court held that the court’s power under the Gangs Act 2024 to order seized gang insignia to be “destroyed or otherwise disposed of” could not be used to return a seized Mongrel Mob patch to its owner. The decision is significant in re-asserting a more orthodox approach to statutory interpretation that places greater emphasis on the statutory text.
Section 7 of the Gangs Act 2024 prohibits the display of gang insignia in public places, pursuant to the Act’s purposes of reducing the ability of gangs to operate and to cause fear, intimidation, and disruption to the public.
Section 7(3)(a) provides that forfeiture of the relevant gang insignia to the Crown is an automatic consequence of conviction under s 7.
Section 7(3)(b) then provides that, following forfeiture, the insignia “may be destroyed or otherwise disposed of as the court […] directs”.
In 2024, a Mongrel Mob member was arrested for wearing a gang patch in public and pleaded guilty. During sentencing, he sought return of his patch because of its special significance to him and based on an (unenforceable) undertaking to no longer wear the patch in public.
The District Court held the words “otherwise disposed of” in s 7(3)(b) were sufficiently broad to allow a forfeited patch to be returned to its owner and granted the order sought. The judge based his interpretation in significant part on the principle of legality, which required that ‘fundamental common law rights’ like property rights could only be extinguished by express words or necessary implication.
The Solicitor-General appealed arguing that the District Court’s interpretation was wrong.
In its judgment, the court emphasised the orthodox text for statutory interpretation - that the meaning of legislation “must be ascertained from its text and in the light of its purpose and its context”. Contrary to the District Court, the court held that the plain meaning of s 7(3)(b) was clear and unambiguous and did not allow the court to order a return of forfeited insignia.
While “otherwise disposed of” was not defined, its meaning was clear when read in its immediate context. Upon conviction, s 7, s 7(3)(a) stipulated automatic forfeiture of relevant gang insignia to the Crown. Forfeiture meant an absolute loss of property and a transfer of the right to exclusive possession to the Crown.
The District Court erred by interpreting “otherwise disposed of” in isolation from its immediate context. Court orders under s 7(3)(b) were necessarily made after property in the item had irreversibly transferred to the Crown. The words “destroyed or” ins 7(3)(b) also coloured the meaning of “otherwise disposed of”. Destruction implied causing such damage to the relevant insignia that it ceased to exist. In that context, “otherwise disposed of” implied an action that “got rid of” the insignia in a manner short of destruction of property.
The court gave the example of a car with gang insignia painted onto it in which a third party had a security interest. The broad definition of “gang insignia” in the Gangs Act meant that an order for destruction would require destruction of the entire car. An order to “otherwise dispose of” the insignia could allow the flexibility to allow the car to be repainted to cover the sign and then sold.
But the term was not sufficiently flexible to allow the court to return the offending item to the defendant.
The textual interpretation was consistent with the purposes of the Gangs Act as it would result in patches being removed from circulation, thereby contributing to the disruption of gangs and protection of the public from intimidation and fear. The District Court’s interpretation would have the opposite outcome and be inconsistent with those purposes.
Context
Relevant context also supported the textual interpretation. The court considered the Parliamentary materials to the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 (“Wanganui Act”) to be the most relevant contextual aid. Section 7 of the Gangs Act was worded almost identically to a provision from the Wanganui Act.
As introduced, the Bill that became the Wanganui Act only provided for forfeiture of insignia upon conviction for display in public. The equivalent of s 7(3)(b) was added following Select Committee recommendation. The Committee considered that property seizures were appropriate for court oversight but also intended to create an express statutory process that would remove any ambiguity that would allow gang members to apply for return of their patches.
While Parliamentary materials for the Gangs Act were less explicit than for the Wanganui Act, they were characterised by an implicit understanding among MPs that forfeiture was irreversible. There was no discussion of the possibility of patches being returned or any process to make this happen.
Application of the principle of legality had been central to the District Court’s interpretation of s 7(3)(b). This principle requires that fundamental common law rights (including property rights) cannot be overridden unless Parliament makes it clear it intends to do so through express words or necessary implication. Modern New Zealand courts have increasingly used this principle to reach interpretations that are difficult to square with relatively clear statutory language. Recent examples include Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 and Fitzgerald v R [2021] NZSC 131.
In this case, the court agreed that s 7(3) overrode common law property rights. But it concluded that Parliament had intended to do so. This was the necessary implication from the clear words of s 7(3). The principle of legality could not be used to subvert Parliament’s clear intent.
The District Court had relied on inconsistency with rights guaranteed under the New Zealand Bill of Rights Act 1990 (“NZBORA”) to support its interpretation of “otherwise disposed of”.
On appeal, the court emphasised that the first step in applying NZBORA to interpreting legislation is to assess whether the plain meaning of the provision limits the right. Only then is the court permitted to consider whether limitations on the right are reasonable and whether a rights-consistent interpretation is available. The court also emphasised s 4 of NZBORA, which meant that if Parliament’s intention to limit the right was sufficiently clear, the relevant legislation overrode NZBORA rights.
In this case, the court held that s 7(3) did not infringe any NZBORA rights. The consequences were not sufficiently disproportionate to cause shock and revulsion to the community, the legal standard under NZBORA s 9. Freedom of expression was not limited by forfeiture requirements - if the patch was returned to its owner, they would still be prohibited from wearing it in public by s 7(1). The right to natural justice and against unreasonable search and seizure rights were not engaged on the facts.
The court allowed the appeal, holding that gang insignia forfeited under s 7(3) could not be ordered to be returned to its owner. The court remitted the application to the District Court for re-hearing. The decision effectively decided another case, Solicitor General v Gray-Gill, that has also been remitted to the District Court.
The court’s interpretation of s 7 means that while, property in the gang insignia automatically reverts to the Crown (via Police) following conviction, the property cannot be destroyed or disposed of without court orders. It is usually appropriate for such order(s) to be sought on sentencing. Other parties (including the defendant) can apply for orders, but the court cannot order the insignia to be returned to the forfeiting party.
The greater significance of the decision is in its approach to statutory interpretation. The reasoning is in stark contrast to the modern judicial trend of ‘reading down’ controversial legislation via purposive interpretation, the principle of legality, and NZBORA.
Because the respondent declined to participate in the hearing, the case is unlikely to be appealed. Only time will tell whether this case is an outlier or represents the beginning of a new trend that gives primacy to the legislative text.
For further information on this or similar issues please contact Director, Brigitte Morten
The Environment Committee reported back on RMA replacement bills, recommending some significant changes and retentions. However, this is not the end of the story. The government has signalled further significant changes for the Bills since the Committee’s report was published.
The Planning and Natural Environment Bills that will replace the RMA reported back from the Environment Committee in late July.
The Bills, as reported back, retained or strengthened some existing provisions, including ministerial direction powers and compensation for some plan rules. They also introduced significant changes, including enhanced Ministerial powers, excluding greenhouse gas emission effects from the new regime, and allowing natural-hazard rules to override existing land use rights.
Before they become law, the Bills will pass through the Committee of the Whole House. At that stage, the Government can introduce further changes by Amendment Paper. It has already signalled two significant developments.
Mana Whakahono ā Rohe arrangements are agreements between iwi authorities and local councils under the RMA that provide for iwi/Māori participation in RMA processes like plan-making and resource consent hearings. Some of these arrangements have pursued other objectives, including granting decision-making involvement and powers to iwi appointees. Once arrangements are entered, they can be changed only with both parties' consent.
The Bills originally preserved arrangements that had been entered or initiated before enactment of the Bills but did not provide for them in the new planning framework.
The Government has now said that existing and initiated arrangements will also be abolished and replaced by narrower agreements that will record how iwi authorities will participate in statutory planning processes needed to give effect to Treaty settlement redress. The detail is not yet available. However, the Minister has said the new agreements will contain "clear guard rails to prevent scope creep". An Amendment Paper is to be published soon.
Waikato Regional Plan Change 1 (PC1 )has been under development and court appeals since 2016. It is intended to give effect to Te Ture Whaimana, the vision and strategy for improving the health of the Waikato River. The Environment Court delivered its final judgment on the PC1 appeals in early July, meaning PC1 is expected to become operative soon.
The Government has raised concerns about the workability of PC1's discharge rules for farmers and vegetable growers. It has signalled that PC1 may be paused while the new planning regime is introduced, although it has not made a firm commitment.
The Bills had their second reading on 4 August. They will now proceed to the Committee of the Whole House, with the detail of the changes to be released in an Amendment Paper ahead of the Committee stage.
For further information on these changes or similar issues, please contact Managing Director Brigitte Morten.
