IN THE MAORI APPELLATE COURT OF NEW ZEALAND …

WHAANGA V NIANIA MAC 2011 Maori Appellate Court MB 428 [19 August 2011]

IN THE MAORI APPELLATE COURT OF NEW ZEALAND

TAIRAWHITI DISTRICT

2011 Maori Appellate Court MB 428

(2011 APPEAL 428)

A20110002361

UNDER Section 58, Te Ture Whenua Maori Act

1993

IN THE MATTER OF An appeal against an order of the Maori

Land Court made on 14 December 2010 at

11 Tairawhiti MB 46-55 in respect of the

Anewa Block

BETWEEN MERE JOSLYN WHAANGA

Appellant

AND DICK NIANIA, JEFFERSON

POWDRELL, JOHNSON ROBINSON,

RAYMOND GREENING-CROMBIE,

TOM TE KAHU, TUMANAKO WILSON

AND WHETI MANUEL AS TRUSTEES

OF ANEWA TRUST

Respondents

Hearing: 10 May 2011

(Heard at Gisborne)

Court: Judge L R Harvey (Presiding)

Judge D J Ambler

Judge S R Clark

Appearances: Mrs Mere Whaanga in person

Judgment: 19 August 2011

RESERVED JUDGMENT OF THE MĀORI APPELLATE COURT

2011 Māori Appellate Court MB 429

TABLE OF CONTENTS

Introduction [1]

Background [2]

Shareholding [2]

Tutuotekaha 1B5B1 and 1B5B2 [4]

Amalgamation of titles [9]

The Trust [11]

The application [17]

The lower Court’s decision [23]

The appellant’s arguments [25]

The Trust’s position [34]

The law [35]

Statutory framework [35]

Case law [37]

Legislative context [49]

Discussion [52]

Discretion [52]

The lower Court’s decision [53]

The Court’s powers on appeal [68]

Section 288(2)(b) [70]

Sections 288(4), 288(1) and 287(2) [73]

Outcome [76]


Introduction

[1] In 2008 Mere Whaanga1 and her late sister Riwia Whaanga

2 applied to the

Court to partition their interests in the Anewa block. They sought a 300 acre

(121.4056 hectare) title that represented their late father‘s interests in Tutuotekaha

1B5B1 and 1B5B2. These two blocks had been amalgamated in 1967 with several

other blocks to form Anewa. The applicants have the support of 2.17 percent of the

owners holding 9.97 percent of the ownership. The only owners who oppose the

partition are two of the trustees of the Anewa Trust (―the Trust‖) that administers the

land. In his decision of 14 December 2010, Judge Coxhead concluded that the

applicants had failed to show a sufficient degree of support for the partition and

dismissed the application. The appeal focuses on the Court‘s thorny task of

assessing whether there is a ―sufficient degree of support‖3 where only a minority of

owners actively participate in the affairs of the land and yet virtually all of those

owners support partition.

Background

Shareholding

[2] Mere and Riwia Whaanga each hold 900 shares in Anewa. They received

their shares from their late father, Epanaia Whaanga, in 1986, shortly before his

death. He retained 123.038 shares which are now held by Mere Whaanga as

adminstratrix of Epanaia‘s estate. Although the application was not explicit, the

appellant clarified that the partition relates to all 1,923.038 shares.

[3] Anewa is 1,911.4026 hectares in area and lies north of Wairoa.4 There are

3,966 owners – the list of owners takes up 134 pages – holding 103,972.522 shares.

Approximately 200 owners hold 100 or more shares. Thus, well over 3,700 owners

1 Mere Whaanga is also known as Mere Schollum. 2 Riwia Whaanga died on 1 October 2010. 3 Section 288(2)(b) of Te Ture Whenua Māori Act 1993 (―1993 Act‖). 4 CFR GS5C/896.


hold less than 100 shares each. Many hold shares in single digits or less. Mere

Whaanga and her sister each have the seventh largest shareholding as individuals and

second largest shareholding when their shares and the estate‘s shares are considered

in aggregate. Together, they equate to 1.85 per cent of the ownership.

Tutuotekaha 1B5B1 and 1B5B2

[4] The history of the amalgamation of Tutuotekaha 1B5B1 and 1B5B2 is central

to the partition application.

[5] The Native Land Court awarded title to Tutuotekaha in 1868. By 1915, as a

result of subdivisions, sales and partitions, the land remaining in Māori ownership

was held in seven titles, being Tutuotekaha 1B1 to 1B7. These were essentially

whanau blocks comprising about 300 acres each. Mere Whaanga‘s great

grandfather, Puhara Timo, was the principal owner of Tutuotekaha 1B5. His

interests were later partitioned with some minor owners into Tutuotekaha 1B5B.

Following his death, Puhara Timo‘s seven grandchildren, including Epanaia

Whaanga, succeeded to his interests in Tutuotekaha 1B5B in 1931.5

[6] Puhara Timo‘s son-in-law, Tihi Whaanga, farmed the land before his son

Epanaia took over. Epanaia had grown up on the farm. It was known as ―Rata‖ due

to a large Rata tree in the bush.6 It is steep country which contained heavy timber –

much of the timber was used for posts and batons on Rata and on other land

including Tihi Whaanga‘s farm at Taiporutu. A cottage and yards were built.

Epanaia farmed the land during his first marriage, for some years as a widower and

during his second marriage when Mere Whaanga and her sisters were born. He ran

sheep and supplemented his income from mustering work on neighbouring land.

[7] In 1950, after several years of farming, Epanaia exchanged his interests in

other land with his brothers and sisters and thereby acquired all of Puhara Timo‘s

interests in Tutuotekaha 1B5B.7 In 1952 Tutuotekaha 1B5B was further partitioned

5 41 Wairoa MB 210. 6 We refer to the land as ―Rata‖ throughout this judgment. 7 51 Wairoa MB 190.


into Tutuotekaha 1B5B1 in favour of Epanaia solely, being a 1 acre section

containing the cottage, and Tutuotekaha 1B5B2 in favour of 25 owners with Epanaia

holding 308.968 shares out of 318.718 shares, being the balance area of 300 acres 3

roods 25 perches.8

[8] By 1954 Epanaia Whaanga had cleared the land and wanted to develop it

further. He approached a local stock and station agent for credit but was turned

down. Without development finance he had little prospect of continuing to farm

Rata and, at Sir Turi Carroll‘s suggestion, he left Rata to manage the Ohuia Station.

In 1955 he leased out Rata for a term of 10 years. In 1959 the lessee surrendered the

lease and from then on the nearby Tutuotekaha A and B Incorporation (―the

Incorporation‖) used the land. Epanaia and his family continued to return to the

cottage for holidays until about 1961 when work took him further afield. In later

years he learnt that the cottage had been burnt down by farm workers.

Amalgamation of titles

[9] In 1966 the Incorporation, which had over 2,000 acres and leased or used

many of its neighbouring blocks, approached the Department of Māori Affairs to

develop its land and the neighbouring blocks under Part XXIV of the Māori Affairs

Act 1953 (―1953 Act‖). According to the District Officer‘s memorandum to the

Court of 18 October 1967, it was a requirement of the Board of Māori Affairs‘

approval of the development scheme that the various titles be amalgamated into one

title. The owners of the various blocks were consulted. Epanaia Whaanga agreed

and signed the necessary consent form. In the hearing before us Mere Whaanga

complained that the memorandum of 18 October 1967 referred to her father having

already consented yet he did not sign the consent form until the following day. In

our view, nothing turns on this anomaly and there is no suggestion that Epanaia ever

disputed that he had consented to the scheme and the amalgamation.

[10] On 24 October 1967 the Court issued an amalgamation order cancelling 14

titles including Tutuotekaha 1B5B1 and 1B5B2 and creating the Anewa block

8 54 Wairoa MB 16.


comprising 4,750 acres 2 roods 9 perches.9 On 16 February 1968 Anewa was

gazetted under Part XXIV of the Māori Affairs Act 1953.10

The Incorporation was

cancelled. The land remained under the Department of Māori Affairs‘ control until

1986.

The Trust

[11] On 12 November 1986 the Court constituted the Anewa Trust pursuant to s

438 of the 1953 Act.11

This occurred after two meetings of owners, on 26 November

1982 and 23 July 1986, where the ownership in support was 17 percent and 13.18

percent respectively – this was insufficient support to establish an incorporation and

so the owners opted for a trust. The land was released from the provisions of Part II

of the Māori Affairs Restructuring Act 1989 on 12 November 1991.12

Mere

Whaanga was a trustee between 1986 and 1993.

[12] Today, the Trust continues to farm sheep and beef.13

The effective farming

area is 1030 hectares or 53 percent of the land area.14

The remaining land is in

native bush and scrub and is largely steep and erosion prone. The land has been

farmed as two farming units since its amalgamation. In the west is the original farm

that formed the Incorporation. In the east are some of the whanau blocks that were

amalgamated in 1967. In the middle is much of the non-effective land that is in bush

and scrub. Rata is in this middle section.

[13] Rata dissects Anewa from north to south. All but 40 acres have reverted to

bush or scrub. The 40 acres is in grass but is either steep hillsides – described by

Mere Whaanga as ―goat country‖ – or swampy. She said it had little farming value,

a view that was not contradicted by the Trust. Although this middle section lies

between the two farming units – and the proposed partition would mean that Anewa

9 72 Wairoa MB 22. 10 New Zealand Gazette Notice No 9 p 265 February 1968 Anewa Development Scheme Notice. 11 85 Wairoa MB 31. 12 New Zealand Gazette Notice No 204 p 4431 dated 22 November 1991 Māori Land Development Notice. 13 The lower Court mistakenly described it as a dairy farm. 14 We allowed the appellant to produce the 30 June 2010 Financial Report which was not before the lower

Court. The Trust is required to file such reports annually and they therefore form part of the Court record.

Some of the information we rely on is sourced from that report.


would be held in two severances – this area of bush and scrub is not used by the

farming operation due to its steep terrain and any stock movements are along the

council road which lies along the northern boundary.

[14] An area of 295 hectares within the middle section has been set aside as a

Māori reservation ―as a place of historical, scenic and cultural interest and use‖ for

the owners of Anewa.15

In 1993, 202 hectares was initially set aside. In 1995 the

area was increased to 295 hectares.

[15] The Department of Conservation and Nga Whenua Rahui had a role in the

establishment of the Māori reservation but the exact nature of the relationship with

the Trust is unclear. The Court minutes record that the land was first set aside with

the ―involvement‖ of the Department of Conservation and in 1995 there is reference

to Nga Whenua Rahui. Mere Whaanga spoke of the Trust having entered into a 25

year covenant with Nga Whenua Rahui however, neither the Court‘s memorial

schedule nor the LINZ title disclose a covenant. We estimate from the plan of the

Māori reservation that approximately 80 percent of Rata is within the Māori

reservation. Mere Whaanga estimated that less than a third of Rata was subject to

the covenant. This suggests that not all of the area under the Māori reservation is

subject to the covenant.

[16] Since its amalgamation in 1967 the Anewa block has not produced a dividend

for its owners. Under the Trust, the only financial distributions are kaumatua grants

of $100.00 to those 60 years old and over and funeral grants of $100.00. In the 2010

Financial Report these distributions amounted to $7,100.00 in total. An annual koha

of $1,000.00 is also given to the marae. There are no other tangible benefits to the

owners, whether by way of provision of papakainga housing or otherwise.

The application

[17] About seven years ago Mere Whaanga began looking into the partition of

Rata. She spoke of her father having always understood that the land could be

15 CIR 255914 has issued for the Māori reservation.


returned providing they paid for the improvements. In late 2005 and early 2006 she

discussed her partition proposal with the trustees individually. Two trustees, Lim

Robinson and the late George Pomana, signed letters of consent. The other trustees

agreed verbally. However, when the appellant was finally able to present her

proposal to a trustee meeting held immediately before the 2006 AGM the trustees

advised that, while they might individually have sympathy for the proposal, as a

Trust they could not support it. She was then given the opportunity to present the

proposal to the owners at the 2007 AGM. She did so. All the owners present with

the exception of the trustees supported the partition. Indeed, the only owners who do

not support the partition are trustees.

[18] The application was filed on 2 April 2008 and was supported by 32 pages of

documents setting out the history of the land, the partition proposal and the consent

and support of the owners. Chief Judge Isaac held a judicial conference on 2

September 2009 where Mere Whaanga explained the proposal in some detail. Some

of the trustees attended. Walter Wilson, the Deputy Chairperson, said that the Trust

had not consented as it felt it did not have jurisdiction and that its role was to protect

the land and not split it up. Lim Robinson confirmed that he had agreed to the

partition as an individual as he felt the owners would have received a better return by

leasing rather than amalgamating their lands. Ray David remained neutral. Chief

Judge Isaac discussed the merits of the application, observing that ―the trustees have

to agree‖, and directed that the Court staff chair a further meeting of owners where

the partition proposal was to be discussed.

[19] The Court-directed meeting of owners took place on 11 December 2009. The

owners in attendance passed a resolution in support of partition by 20 votes to two.

The two owners opposing were trustees. The other trustees maintained their neutral

stance and abstained from voting. Following the meeting the Court staff prepared a

report which calculated the total level of support following the various meetings to

be 82 owners, being 2.17 percent of the owners and representing 9.97 percent of the

ownership by shareholding.16

16 Judge Coxhead and the appellant assessed the level of support at 2.22% of owners and 10.28% of the

ownership. This is incorrect as these figures relate to the overall participation of the owners.


[20] The hearing before Judge Coxhead took place on 5 March 2010. Mere

Whaanga presented her whanau‘s grounds for partition. She explained that they seek

the return of Rata as their ―kainga tuturu‖ so that they may perform and express their

―ahikaaroa‖. Specifically, they wish to build on the land and intend to invest in it

through various initiatives including: planting and harvesting native timber; a

truffiere; harvesting manuka honey and oil; harvesting herbal and gourmet products

such as pikopiko; and eco-tourism. In essence, they wish to utilise the land in ways

other than pastoral farming which they consider to be unsuited to the land. They say

that there will be no detriment to Anewa and that it may in fact benefit from the

partition. Mere Whaanga pointed out that since 1967 Rata had not been developed

as the development scheme had intended; that the land had in fact regressed to bush

and scrub; that any improvements such as the cottage and yards had long since been

destroyed; that the area was not used in any way by the Trust; and that as owners

they had not received any tangible benefits from the land. In those circumstances,

she argued, her whānau should be entitled to the return of Rata to develop it in

accordance with their plans.

[21] Some of the trustees attended the hearing. Walter Wilson spoke on behalf of

the Trust. He described the partition as resulting in the cancellation of the

amalgamation and suggested that it would likely lead to other whānau withdrawing

their blocks. This, he argued, would in turn lead to the cancelling of his trusteeship

when he did not consider the trustees were at fault. He wondered at the

consequences ―if the amalgamation is cancelled‖ but did not elaborate on any

specific detriment to the Trust. As per the comments at the judicial conference, the

Trust felt obliged to oppose the partition in principle. The Trust did not challenge

the applicants‘ evidence regarding consultation, the level of support for partition,

their description of the Trust‘s use of the land or their proposals for Rata.

[22] Following the hearing Mere Whaanga submitted further information to the

Court regarding her whānua‘s plans for the land and her and her three children‘s

various skills and qualifications. They have an impressive array of tertiary

qualifications, business experience and experience in the agricultural sector. Mere

Whaanga is in the latter stages of completing a PhD through the University of

Waikato in relation to Māori land law, Māori land tenure and traditional ecological


knowledge and the partition will, in part, enable her to implement some of her ideas

for land use and development.

The lower Court’s decision

[23] Judge Coxhead concluded that the applicants had satisfied s 288(2)(a) – that

the owners have had sufficient notice of the application and sufficient opportunity to

discuss and consider it – but went on to rule that they had not established that there

was a sufficient degree of support in terms of s 288(2)(b). We agree that s 288(2)(a)

was satisfied. The focus of the appeal is the ruling on s 288(2)(b), which we set out

below:17

[19] I accept that the applicants have received support both by a vote at

the owners meeting on 11 December 2009 and in writing. However, that

support accounts for, as noted in the minutes of the 11 December meeting,

2.22% of the total owners and 10.28% of the total share interests in Anewa.

[20] The applicants have gone to extraordinary lengths to obtain support

for this application. The applicants contend that the Court should focus on

the support they have gained not in terms of overall owner numbers but in

terms of those who are actively involved in the land issue pertaining to

Anewa. As the applicants put it, those ―shareholders who actively took an

interest in the land and attended meetings‖.

[21] On this basis the applicants say that since 2000 the attendance at

annual general meetings has been between 45 and 90 and by their

calculations this is an average of ―62‖ beneficiaries and guests over ten [10]

years.18

The 84 owners in support of their application are in excess of the

average number of owners who are active in Anewa matters.

[22] I have some sympathy for the applicants and the predicament they

are in. It is not easy getting owners along to meetings. However, 2.22% of

the total owners and 10.28% of the total share interests in Anewa is not

sufficient support given the partition will have implications for the overall

amalgamation, will only benefit two shareholders – the applicants – and will

require a reconfiguration of land.

[23] In the context of this block Anewa, with 3784 owners and over

100,000 shares the applicants are a long way from demonstrating sufficient

support needed to satisfy the requirements of section 288(2).

[24] This is not a sufficient degree of support as required by section

288(2)(b). I do not accept the applicants‘ suggestion that the Court should

17 11 Tairawhiti MB 169 (4 TRW 169) at p 172. 18 4 Tairawhiti MB 169 (4 TRW 169) at p 172.


only consider the views of those owners who are able to attend meetings and

are therefore actively involved in Anewa matters.

[25] I also note that the Trustees of Anewa Trust have been consistent in

their opposition to the partition application. Their opposition is on two

fronts, firstly on the basis that their Trust Deed does not allow them to

partition and second that a partition goes against the intentions of the

amalgamation.

[26] The Trustees have obvious concerns that a partition will be the first

step to unravelling the whole amalgamation.

[27] Given the applicants have failed to show that there is a sufficient

degree of support for their partition, the applicants have failed to satisfy one

of the essential requirements required before a partition order can be made.

Therefore the application is dismissed.

[24] Judge Coxhead went on to observe that on a preliminary assessment he found

it difficult to conclude that s 288(4) could be satisfied and encouraged the applicants

and the Trust to discuss the applicants‘ development proposals.

The appellant’s arguments

[25] Mere Whaanga represented herself at the appeal hearing with her two

daughters. She presented detailed submissions that challenged the lower Court‘s

decision at every level. Her arguments warrant a comprehensive summary.

[26] First, the Court wrongly exercised its discretion in deciding that the

applicants did not have a sufficient degree of support in that:

The Court did not balance the competing views and did not take

cognisance that 84 owners versus seven trustees (being 12 to 1) were

in favour of partition.

The Court was wrong in saying that the trustees had been consistent

in their opposition as originally five of the seven trustees supported

partition.

The trustees had not contradicted her evidence and had misconstrued

the application as being to cancel the amalgamation.

The Court gave undue weight to the trustees‘ opposition.

The 10.28 percent support (sic) was sufficient when considered in

the context of 13.1 percent support being sufficient to place the land

in the Trust in the first place in 1986.


The Court did not give weight to the applicants‘ historical

association with the land contrary to Marsh v Robertson – Karu o te

Whenua B2B5B1.19

The Court did not factor in that Rata was non-effective land as far as

the Trust‘s farming operation was concerned.

The applicants had obtained consent from twice the number of

owners for whom the Trust held addresses (30-40 owners).

The Court failed to correct the trustees‘ misunderstanding that

partition will diminish the trustees‘ role and that partition will

unravel the whole amalgamation.

[27] Second, the Court erred in the weight given to the evidence presented:

The Court failed to correct the trustees‘ assertion that the trust order

did not allow them to partition when that was erroneous and

irrelevant.

Partition does not go against the intention of the amalgamation as

the amalgamation was to develop the land and Rata had not been

developed.

[28] Third, the Court made an incorrect assessment in regard to the matters to be

considered under s 288(1):

At paragraph 28 of the decision Judge Coxhead did not consider s

288(1).

The opinion of the owners as a whole was in favour of partition apart

from some of the trustees.

The record of attendance at general meetings from 2000 to 2009

shows an average of 62 ―beneficiaries and guests‖ and yet the

applicants had garnered support from 84 owners.

In terms of s 288(1)(b) and (c) the land in question is non-

productive, there would be no detriment to the owners and in fact

there would be benefit as any distribution to owners will be shared

across a smaller shareholding. Consequently, Judge Coxhead‘s

statement that the partition will ―only benefit two shareholders‖ is

wrong.

The trustees and other owners do not have the same personal interest

or involvement in this part of Anewa as the applicants.

19 Marsh v Robertson – Karu o te Whenua B2B5B1 (1996) 19 Waikato Maniapoto Appellate Court MB 40 (19

APWM 40).


[29] Fourth, the Court erred in its assessment of matters under s 288(4):

Without partition there will be no effective operation, development

and utilisation of Rata. The Trust cannot develop the land in

question.

The applicant‘s proposal for the use of the land involves a long-term

investment ranging from 10 to 80 years. This is not feasible under

the Trust as the trustees rotate on a three yearly basis and follow a

conservative pattern of pastoral farming that cannot afford this type

of investment.

The applicants wish to use the land as security to build a house.

The applicants have considerable expertise, experience and

qualifications to develop the land.

The partition will not impede the Trust‘s farming operation as stock

movements occur along the council road.

The Court‘s suggestion that the applicants ―work together‖ with the

Trust to implement their proposals ignores the problems that arise

from the trustees changing regularly and the Trust‘s entrenched,

conservative land management practices.

There is a fundamental disagreement between the applicants and the

Trust as to how the land can and should be used which necessitates

partition.

[30] Fifth, the Court‘s decision is inconsistent with the overall principles of the

1993 Act:

The 1993 Act emphasises the retention of land in the hands of its

owners and not an artificial entity such as a trust.

While the land is under the Trust the applicants as owners cannot

build on or use the land.

[31] Sixth, the Court‘s decision does not reflect the considerations in s 17:

The decision does not give effect to the wishes of the owners.

The decision does not protect the minority interests from an

oppressive majority as was discussed in Reid v Trustees of

Kaiwaitau 1 Trust.20

The Court has effectively decided that the absent owners influence

the decision over the wishes of the active owners.

20 Reid v Trustees of Kaiwaitau 1 Trust (2006) 34 Gisborne Appellate Court MB 168 (34 APGS 168) at [19].


Given the effort the applicants have gone to, the decision has not

ensured fairness in dealings with the owners.

The decision is out of sync with the Court‘s own processes whereby

13.1 percent of the owners had moved to have the land placed under

the Trust.

The decision does not promote practical solutions to the problem of

Rata not being used effectively. Although Judge Coxhead described

the applicants‘ initiatives as ―wonderful and innovative‖ he failed to

take cognisance of the practicalities that any such initiatives will

require huge investment of time and money and that in order to

bring those ideas to fruition, a separate title is needed.

The Trust‘s operation may suit owners who have neither the skills

nor the desire to live on and utilise the land but does not suit owners

such as the applicants who do wish to live on and use the land.

[32] Seventh, the Court took into account an irrelevant consideration in that the

trust order is not relevant to the application for partition.

[33] Finally, the failure to grant the partition will give rise to an injustice as the

documentary record disclosed an anomaly in that the District Officer‘s memorandum

of 18 October 1967 referred to Epanaia Whaanga having given his consent when in

fact he did not sign the consent until the next day, 19 October 1967. We have

already discounted this complaint as having any substance.

The Trust’s position

[34] Surprisingly, the trustees did not attend the appeal hearing on 10 May 2011

and did not send a representative. Following the hearing, on 24 June 2011, the Court

received a letter dated 15 May 2011 from the Trust‘s farm consultant that simply

advised that the Trust‘s position remained that it does not support any attempt to

partition.


The law

Statutory framework

[35] Sections 286 to 288 of the 1993 Act govern the Court‘s jurisdiction to

partition. Section 288(2)(b) is our focus but all the provisions are relevant to the

appeal:

286 Purpose of this Part

(1) The principal purpose of this Part of this Act is to facilitate the use and

occupation by the owners of land owned by Māori by rationalising

particular landholdings and providing access or additional or

improved access to the land.

(2) Where it is satisfied that to do so would achieve the principal purpose

of this Part of this Act, the Court may make partition orders,

amalgamation orders, and aggregation orders, grant easements, and

lay out roadways in accordance with the provisions of this Part of this

Act.

287 Jurisdiction of Courts

(1) Subject to subsection (3) of this section, the Māori Land Court shall

have exclusive jurisdiction to make partition orders, amalgamation

orders, aggregation orders, and exchange orders in respect of Māori

land, and to grant easements and lay out roadways over Māori land.

(2) The jurisdiction conferred on the Māori Land Court by this Part of this

Act shall be discretionary, and, without limiting that discretion, the

Court may refuse to exercise that discretion in any case if it is not

satisfied that to do so in the manner sought would achieve the

principal purpose of this Part of this Act.

(3) Nothing in this section shall apply in respect of any Māori reserve.

(4) Except as provided in subsection (1) of this section, nothing in this

Part of this Act shall limit or affect the jurisdiction of the High Court.

288 Matters to be considered

(1) [In addition to the requirements of] subsections (2) to (4) of this

section, in deciding whether or not to exercise its jurisdiction to make

any partition order, amalgamation order, or aggregation order, the

Court shall have regard to—

(a) The opinion of the owners or shareholders as a whole; and


(b) The effect of the proposal on the interests of the owners of the

land or the shareholders of the incorporation, as the case may

be; and

(c) The best overall use and development of the land.

(2) The Court shall not make any partition order, amalgamation order, or

aggregation order affecting any land, other than land vested in a Māori

incorporation, unless it is satisfied—

(a) That the owners of the land to which the application relates

have had sufficient notice of the application and sufficient

opportunity to discuss and consider it; and

(b) That there is a sufficient degree of support for the application

among the owners, having regard to the nature and importance

of the matter.

(3) The Court shall not make any partition order, amalgamation order, or

aggregation order affecting any land vested in a Māori incorporation

unless it is satisfied—

(a) That the shareholders of the incorporation to which the

application relates have been given express notice of the

application; and

(b) That the shareholders have passed a special resolution

supporting the application.

(4) The Court must not make a partition order unless it is satisfied that the

partition order—

(a) is necessary to facilitate the effective operation, development,

and utilisation of the land; or

(b) effects an alienation of land, by gift, to a member of the donor's

whanau, being a member who is within the preferred classes of

alienees.]

[36] In addition, the Preamble and ss 2 and 17 guide the Court‘s exercise of its

powers and discretions.

Case law

[37] In Hammond – Whangawehi 1B3H121

this Court analysed the partition

exercise as involving three steps:

21 Hammond – Whangawehi 1B3H1 (2007) 34 Gisborne Appellate MB 185 (34 APGS 185) at [14].


[14] The leading decision on partition is that of the High Court in Brown

v Māori Appellate Court [2001] 1 NZLR 87. We refer also to the decisions

of this Court in Re Port Levy – Wade Wereta Osborne, Re Kaiwaitau 1

(2005) 34 APGS 168 and Re Matakana 1A7A Ngatai v Duvall & Ors (2007)

21 Waikato Maniapoto Appellate MB 147.

[15] The Court has exclusive jurisdiction to grant partition orders in

relation to Māori freehold land in accordance with Part 14 of the Act. That

jurisdiction is discretionary. The Act directs the Court to exercise its

discretion in three steps.

[16] First, the statutory prerequisites must be satisfied. The Court is

expressly prohibited from granting partition if these prerequisites are not

satisfied. There are, in essence, three (we do not look at the situation where

the land is vested in an Incorporation):

Section 288(2)(a): The Court must be satisfied that the owners

have had ―sufficient notice of the application and sufficient

opportunity to discuss and consider it.‖

Section 288(2)(b): The Court must be satisfied that there is a

―sufficient degree of support for the application among the

owners, having regard to the nature and importance of the

matter.‖

Section 288(4)(a) and (b): The Court must be satisfied that the

partition is ―necessary to facilitate the effective operation,

development, and utilisation of the land;‖ or, ―effects an

alienation of land, by gift, to a member of the donor‘s whanau,

being a member who is within the preferred classes of

alienees.‖

[17] In Brown v Māori Appellate Court the High Court clarified (para 51)

that ―necessary‖ in section 288(4)(a) is properly to be construed as

―reasonably necessary‖ and that it is ―closer to that which is essential than

that which is simply desirable or expedient.‖

[18] Second, if the statutory prerequisites are satisfied, the Court must

then address the mandatory considerations in section 288(1). That section

requires the Court to have regard to the opinion of the owners as a whole, the

effect of the proposal on the interests of the owners, and the best overall use

and development of the land.

[19] Third, the Court is to exercise its general discretion mindful that it

may refuse to exercise that discretion if it would not achieve the principal

purpose of Part 14 of the Act: section 287(2). The principal purpose is

expressed in section 286(1) to be ―to facilitate the use and occupation by the

owners of land owned by Māori by rationalising particular landholdings and

providing access or additional or improved access to the land.‖

[20] At all times the Court must have regard to the principles set out in

the preamble to the Act, section 2 and section 17: Brown v Māori Appellate

Court (para 66).


[38] Clearly, the Court must tackle each of the three steps separately. However,

the steps overlap in terms of the evidence that applies to each. For example, the

evidence of the ―degree of support‖22

is largely the same evidence that goes to the

assessment of ―the opinion of the owners‖.23

Importantly, the evidence that goes to

―the nature and importance of the matter‖24

for the purpose of s 288(2)(b) must, by

definition, include the various evidence that relates to the application: that is, the

evidence that goes to whether the partition is ―necessary to facilitate the effective

operation, development, and utilisation of the land‖;25

―the effect of the proposal on

the interests of the owners‖;26

―the best overall use and development of the land‖;27

and the Court‘s ultimate exercise of discretion.28

Our point is that the assessment

under s 288(2)(b) requires the Court to consider the evidence in its entirety.

[39] The leading authorities emphasise that sufficiency of support must be

assessed on a case by case basis having regard to all the relevant facts.

[40] The first occasion on which this Court considered s 288(2)(b) was in Marsh v

Robertson – Karu o te Whenua B2B5B1.29

The circumstances were highly unusual.

Eight owners holding the majority interests (2.0223 shares out of 2.1141 shares) in a

207.1990 hectare block of landlocked land had resolved to sell the land to their

lessee who owned neighbouring land. Twenty owners holding minority interests

(0.0918 shares) opposed the sale and applied to the Court to partition their interests.

The Judge who initially heard the application decided that, as the eight owners who

were selling were to be paid for their interests, the Court need not take their views

into account. He concluded that, in terms of s 288(2)(b), there was sufficient

support. However, the application had to be adjourned to a further hearing and, as it

happened, another Judge presided over the further hearing and reached the opposite

conclusion on sufficiency of support. He decided that in assessing sufficiency he

was restricted to considering the views of those owners who were not seeking to

22 Te Ture Whenua Māori Act 1993, s 288(2)(b). 23 Ibid, s 288(1)(a). 24 Ibid, s 288(2)(b). 25 Ibid, s 288(4). 26 Ibid, s 288(1)(b). 27 Ibid, s 288(1)(c). 28 Ibid, s 287(2). 29 Marsh – Karu o te Whenua B2B5B1 (1996) 19 Waikato Maniapoto Appellate Court MB 40 (19 APWM 40).


partition, that is, the eight owners who wished to sell the land. As those owners

opposed partition, he concluded that there was in fact no support for partition in

terms of s 288(2)(b).

[41] On appeal, this Court confirmed that under s 288(2)(b) the Court ―must

carefully balance the competing views and generally support would need to

outweigh the opposition before the proposal can proceed.‖30

The level of support is

to be assessed ―among the owners‖, that is, all of the owners – the Court disagreed

with the respective approaches of both Judges in the lower Court in disregarding the

views of some of the owners. Nevertheless, the Court considered that the views of

the eight owners who were selling should be ―afforded less weight‖.31

The Court

emphasised that each case is to be considered on its own merits.

[42] The Court went on to propose a ―suggested guideline‖ for dealing with

applications for partition. In reality, the guideline is a reiteration of factors that the

Court can or must take into account in terms of the Preamble and ss 2, 17 and 286 to

288. Importantly, the Court identified that ―the historical importance of the land to

the partitioning owners or any of the owners and their historical connection with it‖

is a factor.32

Furthermore, where partition is opposed, the Court should assess the

support and opposition in terms of ownership interests and numbers of owners.33

[43] Not surprisingly, the appeal was allowed and the lower Court was directed to

grant the partition. The support of the majority owners holding less than five percent

of the interests was ―sufficient‖.34

Foremost in the Court‘s mind was the unpalatable

prospect of owners having their interests sold compulsorily:35

We note that s 320 of the Māori Affairs Act 1953 which provided for the

Court adjourning a confirmation hearing to allow non-sellers time to apply to

partition was not repeated in the Act. Notwithstanding this omission we are

30 Ibid p 46. 31 Ibid p 48. 32 Ibid p 46. 33 Ibid p 47. 34 There is confusion in the decision in relation to the percentage of shareholding. The owners who were

selling were said to have 75% of the shareholding. In fact, their shareholding (2.0223 out of a total of

2.1141 shares) amounted to over 95% of the shareholding. 35 Ibid p 49.


firmly of the view that because retention of Māori land in the hands of the

owners is a primary objective of this Court and reading this with the

Preamble and s 2 of the Act, a Judge of first instance would be expected to

lean toward accommodating non-sellers.

We go so far as to suggest that where there are owners who have not voted

for a sale (including the shares of deceased owners) the Court has an

obligation to avoid compulsorily divesting these owners of their land. This

approach would accord the kaupapa of the Act. We realise that there could

be instances where it was impractical to partition the non-sellers; this could

well decide the question of confirmation or refusal of confirmation.

[44] The leading authority on partition is the High Court‘s decision in Brown v

Māori Appellate Court.36

The Court ruled that the Māori Land Court and the Māori

Appellate Court had misconstrued Part XIV in holding that the applicants‘

acknowledged intention to sell their interest in the partitioned land was fatal to the

application. As a result:37

[4] Because of its approach that the intention to sell was determinative

under both s 288(2)(b) (in assessing sufficiency of support) and s 288(4) (in

assessing whether the partition order was necessary), the Māori Land Court

had not further considered the facts both as to the need for rationalisation

and to set sufficiency of support in context.

[45] The application was remitted to the Māori Appellate Court with a direction

that the application be sent back to the lower Court for determination in accordance

with the law. The High Court discussed the different approaches of the judges of

both Courts to the sufficiency of support test:38

[54] The Judges in the majority held that Judge Isaac in the Māori Land

Court had correctly applied the statute in concluding that there was

insufficient support for the application from the owners having regard to the

nature and importance of the matter. Judge Isaac had reached that

conclusion on the basis that it was appropriate, given the kaupapa of the Act,

that ―more weight should be attached to the number of owners opposing the

application, than the shareholding support for the application‖:

―The retention of this land is seen as more important to the

owners as a whole than the partition and sale of the land.

Accordingly, it is this Court‘s finding that having regard to the

nature and importance of this matter as a whole that Mr and Mrs

Brown have not satisfied this Court that they have sufficient

support for their application.‖

36 Brown v Māori Appellate Court [2001] 1 NZLR 87. 37 Ibid at [4]. 38 Ibid at [54].


[58] The majority Judges approved Judge Isaac‘s decision that there was

not sufficient support for the proposal (the s 288(2)(b) requirement),

apparently adopting Judge Isaac‘s reasoning...

[59] Chief Judge Durie, in his dissenting judgment, disagreed with the

interpretation placed by the majority on s 288(2) and (4) and with the

interpretation they placed on s 286...

[60] Chief Judge Durie considered that having regard to the nature and

importance of the matter (as s 288(2)(b) requires), the degree of support

from owners other than those supporting partition was irrelevant since

―[h]aving regard to the nature of the case then, their support can hardly be

expected‖. He expressed the view that:

―Clearly, a partition to sever the interests of owners who cannot

agree is not like the case of a major proposal to change farm

land to residential allotments or otherwise to effect a substantial

change of use for the owners as a whole. In the latter case a

high degree of support may be required‖ (p 76).

[65] Whether such proposals for partition are within the purpose of Part

XIV and overcome the constraints imposed by s 288(2) and (4) requires the

Māori Land Court to consider all the relevant facts of the case. We consider

that the emphasis on the applicants‘ intention to sell distracted the Māori

Land Court and the Judges in the majority in the Māori Appellate Court from

weighing the facts against the statutory directions for exercise of the

discretion.

[68] Whether an application should be granted requires consideration of

the facts of the particular case. That was not undertaken here because Judge

Isaac and the majority Judges in the Māori Appellate Court erroneously

considered that the applicants‘ intention to sell the land, if partitioned, was

fatal to the application. Similarly, whether the application had sufficient

support was not assessed against the factual background because of the view,

based upon the policy of land retention in the Act, that the preference of the

minority owners was to be given more weight. Because of the error in

treating the prospect of sale as determinative as a matter of law, the Māori

Land Court and the majority Judges in the Māori Appellate Court failed to

ask themselves the right questions.

[75] Depending on the circumstances (including the significance of the

land to the Māori owners), the Māori Land Court will need to decide

whether 62 per cent is a sufficient level of support for a partition, even if the

Māori owners retain an interest in the balance of the block which is adequate

to represent their equity. In this respect, we do not accept the view expressed

by the Chief Judge that a lower degree of support may be appropriate for a

partition to sever than for proposals to change the use of a block. The policy

of s 2 and s 17 (affirmed in Part XIV by the hurdle imposed by s 288(4))

may require greater support than a straight majority assessed either on the

basis of equitable interest or numbers. That is a matter of judgment for the

Māori Land Court in assessment of all the circumstances.

[46] We note that the High Court was careful not to propose any specific

percentage of owners or ownership as a threshold for sufficiency of support.


[47] In Reid v The Trustees of Kaiwaitau 1 Trust39

five owners holding 22.07

percent of the interests in a 141.1142 hectare block of coastal land on Mahia beach

unsuccessfully applied to partition their interests. Forty one owners holding 35.35

percent of the interests supported the application, while 56 owners holding 7.47

percent of the interests opposed. On appeal, the question of sufficiency of support

came into focus:40

[9] Section 288(2) imposes important procedural constraints on the

court in considering any application so as to ensure that the owner‘s views

are known for the purpose of para (a) above. The owners must have had

sufficient notice of the application and sufficient opportunity to discuss and

consider it. In addition there must be ―a sufficient degree of support‖ for it

bearing in mind the nature and importance of the application. Just what is

‗sufficient‘ in all three steps is left tantalisingly ambiguous by the drafter of

these provisions, but it is clear that partition is a matter for the land owning

hapu or whanau to consider as a group. It is not for the applicant to advance

partition proposals in isolation from the group. There is clearly no right in

any individual owner of Māori land to sever his or her own shares. It is

equally clear that each case must be decided on its own merits.

[17] Just what amounts to ‗sufficient‘ support for the proposal is in the

end a matter for case by case analysis (see Brown at p97). In some cases,

partition may be the only means of overcoming intractable differences

between owners and their whanau even though those in support of the

partition are only in the minority in number or shareholding. In other cases a

clear majority in support will be required. When the matter last came before

the learned Deputy Chief Judge, 41 owners representing 35.35% of the

shares in the land supported the application. 56 owners holding 7.47% of the

shares were actively opposed to it. The Māori Trustee only had addresses

for less than half (202) of the 482 land owners and less than half of those

(97) responded at all to the proposals.

[19] There are a number of competing factors to be considered in the

overall assessment of what level of support can be considered to be

sufficient. On the one hand this is a relatively large block of land with

nearly 500 owners, only a small proportion of whom have chosen to be

actively involved in this application. Individual owners wishing to utilise

their land should not be unduly penalised by the fact that only a minority of

owners are engaged in policy setting. It would, we think, in some cases be

oppressive to require applicants for partition to show an absolute majority in

shareholding in support of the application if a majority do not participate at

all. On the other hand there can be no question but that this proposal

represents a significant reconfiguration in the land and therefore in the

relationships within the community that owns it. The proposal is to remove

the only usable unleased land to the control of the appellants. The remaining

owners will be locked into a very long-term lease to the Mahia Golf Club for

what appears to be marginal return. There is a significant potential

39 Reid v The Trustees of Kaiwaitau 1 Trust (2006) 34 Gisborne Appellate Court MB 168 (34 APGS 168). 40 Ibid at [9].


imbalance in benefits to accrue to the appellants as against the owners of the

residue in this partition. In addition the trustees are implacably opposed to

the appellants‘ proposals.

[20] In the end, the combination of the fact that only a minority of owners

by shareholding and numbers participated, the potentially detrimental impact

on the residue owners of being left with a marginal long term lease on the

entire residue block and the unanimous opposition of the trustees leads us to

conclude that there is not sufficient support for this partition proposal in the

circumstances of this case.

[21] We find therefore that the requirements of s288(2)(b) are not

satisfied.

[48] Ngatai v Charmaine – Matakana 1A7A41

also deserves brief mention.

Although on appeal this Court upheld the lower Court‘s dismissal of the application

because the applicant had failed to satisfy s 288(4), it did nevertheless conclude that

the support of seven owners holding 70.69 percent of the interests as against six

owners holding 5.13 percent of the interests (out of a meeting of 32 owners) was

sufficient for the purposes of s 288(2)(b).

Legislative context

[49] We make two observations on the legislative context of s 288(2)(b).

[50] First, notwithstanding the comment in Reid v The Trustees of Kaiwaitau 1

Trust42

that the question of sufficiency had been ―left tantalising ambiguous‖, we

think it understandable that the Legislature took this approach. The alternative

would have been to prescribe a formula, such as a percentage of owners or

ownership. The circumstances of Māori land, its owners and ownership vary

considerably and the Court needs to have the flexibility to measure sufficiency

against those individual circumstances.

[51] Second, the test of sufficiency of support must be seen in the wider context of

the Court‘s extensive powers of title reconstruction and improvement under Part

XIV. With the exception of land-locked land, the general Courts do not have similar

41 Ngatai v Charmaine – Matakana 1A7A (2007) 21 Waikato Maniapoto Appellate Court MB 147 (21 APWM

147). 42 Reid v The Trustees of Kaiwaitau 1 Trust (2006) 34 Gisborne Appellate Court MB 168 (34 APGS 168) at

[9].


powers in respect of land outside the Māori Land Court‘s jurisdiction – only the

owners acting unanimously can effect such title changes. Thus, a principal reason

for the Court having such extensive powers is that unanimous consent is invariably

impossible or impractical to achieve in respect of Māori land in multiple ownership.

Blocks such as Anewa are an extreme example but even blocks with a dozen or so

owners can present difficulties. Furthermore, as Anewa shows, blocks with large

numbers of owners regularly struggle to achieve owner participation above 10

percent of the owners or ownership. Thus, Part XIV empowers the Court to act on

behalf of the owners where there is a ―sufficient degree of support ... having regard

to the nature and importance of the matter‖. But it is not a matter of support

exceeding 50 percent or 75 percent or any other pre-determined figure. Rather, the

Court is tasked with a more nuanced and fact-dependent assessment. Hence, s 17(2)

identifies a number of objectives that are aimed in particular at issues that arise from

multiple ownership:

(2) In applying subsection (1) of this section, the Court shall seek to

achieve the following further objectives:

(a) To ascertain and give effect to the wishes of the owners of any

land to which the proceedings relate:

(b) To provide a means whereby the owners may be kept informed

of any proposals relating to any land, and a forum in which the

owners might discuss any such proposal:

(c) To determine or facilitate the settlement of disputes and other

matters among the owners of any land;

(d) To protect minority interests in any land against an oppressive

majority, and to protect majority interests in the land against an

unreasonable minority;

(e) To ensure fairness in dealings with the owners of any land in

multiple ownership;

(f) To promote practical solutions to problems arising in the use or

management of any land.


Discussion

Discretion

[52] The Court‘s jurisdiction to partition is discretionary – s 287(2) expressly says

so. Any challenge to the lower Court‘s decision can only succeed if it is shown that

there was an error of law or principle; or that the Court took into account an

irrelevant consideration; or that the Court failed to take into account a relevant

consideration; or that the decision is plainly wrong.43

The lower Court’s decision

[53] As discussed, the key to the assessment of sufficiency of support is the proper

assessment of the ―nature and importance‖ of the matter. In the words of the High

Court, ―to set the sufficiency of support in context‖.44

In our view, the lower Court

did not do that and gave too much emphasis to the numerically small owner turnout.

[54] The Court‘s analysis at paragraphs 19 to 27 did not capture the relevant

factual context. The context is, in broad terms, that owners with a longstanding

association with part of Anewa wish to use and develop that area for themselves after

more than 40 years of receiving no tangible benefits. More specifically: the

applicants and their tupuna more or less exclusively used Rata between 1915 and

1967; the land was amalgamated in 1967 as that was a prerequisite to the

development scheme; the development scheme did not develop Rata and, in fact, that

area has regressed; the Trust does not actively use Rata in its farming operation; the

applicants and their father before them have not received any tangible benefits from

Anewa since amalgamation; the applicants‘ partition proposal will result in Rata

being used; the proposal will not cause any detriment to the Trust; nevertheless, the

application is significant in that it represents the first occasion on which any owners

have sought to remove land from Anewa.

43 Kacem v Bashir [2010] NZSC 112 at [32], Blackstone v Blackstone [2008] NZCA 312, Harris v MacIntosh

[2001] 3 NZLR 721 and Karena – Owhaoko C1, C2, C4, C5 and C7 (2004) 14 Takitimu Appellate Court

MB 4 (14 ACTK 4). 44 Brown v Māori Appellate Court [2001] 1 NZLR 87 at [4].


[55] In not taking into account the applicants‘ historical association with Rata the

lower Court failed to take into account a relevant consideration. As was emphasised

in Marsh v Robertson – Karu o te Whenua B2B5B1, the historical importance of the

land to the owners is an important factor. Here, that association was a key plank to

the application for partition and yet the Court did not address it in its reasoning.

[56] Furthermore, an application to partition a title that existed prior to

amalgamation – what is sometimes referred to as a ―de-amalgamation‖ – is different

in nature to an ordinary partition that aims to create an entirely new title. That is not

to say that a so-called de-amalgamation has any greater prospect of success. But the

history of the land and its ownership, including the fact that the area sought was

previously held in a separate title, is all part of the ―nature and importance‖ of the

matter and should feature in the Court‘s assessment. It did not feature here.

[57] We agree with the appellant that there were also errors in the Court‘s factual

findings and analysis.

[58] First, the Court ruled that the partition ―will have implications for the overall

amalgamation‖.45

But the learned Judge does not justify this statement with any

evidence of specific, detrimental implications. In fact, there is no evidence in this

regard. The trustees certainly did not present any cogent evidence. They merely

raised objections in principle. But it cannot be presumed that partition is in principle

detrimental to an amalgamated title: it may in fact improve the title by removing

unusable areas.

[59] Second, we agree that the learned Judge was mistaken in saying that the

partition ―will only benefit two shareholders‖. As the uncontested evidence

demonstrates, the removal of Rata will not detrimentally affect the farming

operation, is unlikely to significantly diminish the income of the Trust, will remove

land from the Trust that carries its own rating and cost burden, and will likely result

in an improved financial bottom-line that will be shared across a smaller

shareholding. Thus, it is quite conceivable that the partition will result in a benefit to

45 11 Tairawhiti MB 46 at [22].


the Trust and the remaining owners. This is not a case of owners seeking to remove

300 acres of productive land from the middle of a farming operation.

[60] Third, we are also unclear why the lower Court referred to the fact that the

partition will ―require a reconfiguration of land‖ as a relevant factor.46

Partition

always results in a reconfiguration of land. The correct question to ask was, will the

partition result in a detrimental reconfiguration of the land? There is no evidence

that it will. The present situation is quite different to that in Reid v The Trustees of

Kaiwaitau 1 Trust where the proposed partition was clearly detrimental to the trust,

the land and its owners.

[61] Fourth, later on the Court repeats the trustees‘ concern that the partition ―goes

against the intentions of the amalgamation‖47

and that it will be ―the first step to

unravelling the whole amalgamation‖.48

Again, the Court accepts these concerns at

face value without testing them. They are not supported by the evidence. As the

appellant argued, the amalgamation was for the purpose of developing the land as

part of the development scheme and yet Rata was not developed and is no longer

used as part of the Trust‘s operation.49

As for the fear that the amalgamation will

unravel, that is mere speculation by the trustees. There is no evidence that other

owners are lining up to partition. In any event, what other owners might do in the

future if this partition is granted is irrelevant as the Court can only address one

application at a time. We do not know who might apply, what area they might seek,

what impact another partition will have on the block, and so forth.

[62] We also consider that the lower Court, rather than rejecting the applicants‘

argument that it should focus on the views of those owners actively involved in the

land, should have taken that factor into account.50

The Court effectively dismissed

the level of owner participation from any consideration. While we agree that the

Court is not restricted to only those owners‘ views, the level of owner participation is

46 Ibid at [22]. 47 Ibid at [25]. 48 Ibid at [26]. 49 To the extent that Rata might have been developed initially the evidence is that it was not maintained in a

developed state. 50 11 Tairawhiti MB 46 at [22] to [24].


nevertheless a relevant factor against which the Court should measure the level of

support. As was said in Reid v The Trustees of Kaiwaitau 1 Trust: 51

[19] There are a number of competing factors to be considered in the

overall assessment of what level of support can be considered to be

sufficient. On the one hand this is a relatively large block of land with

nearly 500 owners, only a small proportion of whom have chosen to be

actively involved in this application. Individual owners wishing to utilise

their land should not be unduly penalised by the fact that only a minority of

owners are engaged in policy setting. It would, we think, in some cases be

oppressive to require applicants for partition to show an absolute majority in

shareholding in support of the application if a majority do not participate at

all.

[63] Here, the applicants had demonstrated that at AGMs held between 2000 and

2009 the attendance of owners ―and guests‖ was between 45 and 90, with an average

of 62. In that context the applicants had gained the support of 82 owners with the

only opposition coming from two of the trustees. This was following a four year

process of presentations at the 2007 AGM, the 2009 Court-directed meeting and the

2010 lower Court hearing. That is a high level of support amongst those actively

involved in the land. In terms of s 17(2), the Court had to weigh the level of support

against the interests of the silent majority of owners and ask: to what extent might

the partition have a negative impact on the majority owners‘ interests? The Court

did not do that. In our assessment, there is no cogent evidence that the partition will

have a negative impact on the majority owners‘ interests.

[64] We also conclude that the lower Court erred in its consideration of the views

of the trustees. The learned Judge pointed to the consistent opposition of the trustees

on the basis that the ―Trust Deed‖ (sic) does not allow partition. But the fact that the

trust order does not provide for partition is a red-herring: it is the Court that

partitions, not the trustees. More significantly, the trustees‘ consent is not a

prerequisite to partition. At the judicial conference Chief Judge Isaac commented

that ―the trustees have to agree‖. Although Judge Coxhead did not express his view

in like terms, he placed some emphasis on the trustees‘ opposition to partition,52

51 Reid v The Trustees of Kaiwaitau 1 Trust (2006) 34 Gisborne Appellate Court MB 168 (34 APGS 168) at

[19]. 52 11 Tairawhiti MB 46 at [25] and [26].


which suggests to us that he was of the same view as Chief Judge Isaac. With

respect, the view that the trustees‘ consent is required is incorrect.

[65] Where s 288(2)(b) speaks of assessing the sufficiency of support of the

―owners‖, and the land is under a trust, it means the beneficial owners and not the

trustees as legal owners. The trustees‘ support or opposition is irrelevant for the

purposes of that subsection. Admittedly, the 1993 Act is not explicit in regard to the

different meanings of ―owners‖ in the various contexts in the Act. But in the context

of Part XIV, ―owners‖ in s 288(2)(b) means beneficial owners where land is under a

trust. This is plain when s 288(2)(b) is compared with s 288(3), where the Court is

only interested in the support of ―shareholders‖ of an incorporation and not the

committee of management. So too, rule 142 of the Māori Land Court Rules 1994

(―1994 Rules‖) contemplates meetings of beneficial owners to discuss an application

to partition. Similarly, in the context of occupation orders, the 1993 Act

differentiates between the ―consent‖ of the trustees in s 328(2) – which is not a

prerequisite for partition – and the ―support‖ of the owners under s 329(2)(b) which,

in respect of a trust, can only be the beneficial owners.

[66] We do not say that the trustees‘ views are irrelevant to a partition application.

The trustees are entitled – and we go as far as to say that they have a duty – to

express their views on a proposed partition. But their role is not as owners

expressing support or opposition but rather as the administrators and managers of the

trust53

expressing views on whether the partition is necessary,54

the effect of the

partition on the interests of the owners,55

the best overall use and development of the

land56

and whether the partition would be consistent with the principal purpose of

Part XIV.57

[67] We conclude that the lower Court erred in its approach to the assessment of

sufficiency of support. We also conclude that the lower Court‘s preliminary

53 Te Ture Whenua Māori Act 1993, s 223. 54 Ibid s 288(4)(a). 55 Ibid s 288(1)(b). 56 Ibid s 288(1)(c). 57 Ibid s 287(2).


assessment that the partition does not satisfy s 288(4) cannot stand as it was not

supported by any reasons.

The Court’s powers on appeal

[68] Having concluded that the lower Court‘s decision was wrong we must decide

whether to remit the application to the lower Court to reconsider or decide it

ourselves. Section 56 provides:

56 Powers of Court on appeal

(1) On any appeal, the Māori Appellate Court may, by order, do such

one or more of the following things as it thinks fit:

(a) It may affirm the order appealed from:

(b) It may annul or revoke that order, with or without the

substitution of any other order:

(c) It may vary that order:

(d) It may direct the Māori Land Court to make such other or

additional order as the Māori Appellate Court thinks fit:

(e) It may direct a rehearing by the Māori Land Court of the

whole or any specified part of the matter to which the order

relates:

(f) It may make any order that the Māori Land Court could have

made in the proceedings:

(g) It may dismiss the appeal.

(2) The Māori Appellate Court, in the exercise of the jurisdiction

conferred on it by this section, may exercise, as though it were the

Māori Land Court, any of the discretionary powers conferred upon

that Court.

[69] The 1993 Act offers no explicit guidance on the exercise of these powers.

Nevertheless, they are similar to the general powers of other appellate Courts in New

Zealand, such as the High Court,58

the Court of Appeal59

and the Supreme Court, and

the case law provides clear guidance.60

In short, the interests of justice dictate that

an appellate Court should endeavour to determine the matter itself but it will

58 High Court Rules 20.19. 59 Rule 48 of the Court of Appeal (Civil) Rules 2005. 60 Sections 25 and 26 of the Supreme Court Act 2003.


normally refer the matter to the lower Court to reconsider where there has been a

breach of natural justice or where there is a new point or issue to be considered or

where additional evidence is required.61

Therefore, we propose to determine the

matters under ss 287 and 288 to the extent that no new issue arises or new evidence

is required.

Section 288(2)(b)

[70] No new issues arise or additional evidence is required in relation to the

assessment of sufficiency of support. For the reasons we have discussed at

paragraphs 53 to 66 we conclude that there is sufficient support for partition having

regard to the nature and importance of the matter.

[71] The key factors are: the applicants‘ historical association with Rata; the

partition will effectively mean the return of a previous title to the owners; the owners

have not received any benefit from the land in 44 years; the lack of objection from

other owners associated with Rata; Rata is virtually unused by the Trust; the lack of

detriment to other owners‘ interests or to the Trust; the support reflecting the views

of in excess of 95 percent of the owners and ownership actively engaged in the

land;62

the opposition being in principle only and not because of any tangible

concerns; and the proposal falling firmly within the objectives of the Preamble and

ss 2 and 17 as it will give owners with the predominant association with Rata the

opportunity to use, manage and develop an area that is currently unused.

[72] While the support of less than three percent of the owners and less than 10

percent of the ownership might appear in the abstract to be small, we are satisfied

that in all the circumstances it is ―sufficient‖. Certainly, our conclusion does not set

61 Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149, Karena – Karaka Huarua A and B (2004)

6 Taitokerau Appellate Court MB 182 (6 APWH 182), Terry v Gardiner and Knobloch [1991] 3 NZLR 533,

Taylor v Attorney-General [1975] 2 NZLR 675, at p 556 and Europa Oil (NZ) Ltd v Commissioner of

Inland Revenue (1974) 1 TRNZ 1 (CA). As to the power to remit, see Kacem v Bashir [2010] NZSC 112,

Chee v Stareast Investment Ltd HC Wellington CIV-2009-404-5255, Wellington City Council v McBride

[2006] DCR 452, and Director of Civil Aviation v Paterson (No 2) CIV-2005-485-606 HC Wellington. 62 Eighty two of 84 owners supported partition, being 97.6 percent of the active owners, while 9.97 of the

10.28 percent of the ownership that expressed a view support partition, being 96.9 percent of the active

ownership.


any benchmark or precedent as every case must be assessed on its own merits. The

circumstances of this application are particularly unique.

Sections 288(4), 288(1) and 287(2)

[73] The appellant presented persuasive evidence and arguments in relation to the

remaining steps for granting partition. However, we are significantly hindered by

the trustees‘ limited participation in the lower Court and failure to participate in this

Court. While respondents will ordinarily stand or fall by their lack of participation

in proceedings, trustees are in a different category. They represent the interests of

the beneficial owners. The Court must take a cautious approach in exercising its

powers under Part XIV where trustees have not properly engaged with the relevant

issues affecting an application.

[74] In our view, the trustees have not properly engaged with the issues that arise

under ss 288(4), 288(1)(b) and (c), and 287(2). Their stance appears to have been

driven by a misunderstanding of their role in the application, and this

misunderstanding may well have been contributed to by the views expressed by the

Judges in the lower Court that the trustees‘ consent was a prerequisite. As explained,

their consent is not a prerequisite though their views are relevant.

[75] Regrettably, we cannot determine the matters under ss 288(4), 288(1) and

287(2) in the absence of hearing from the trustees. In particular, the trustees need to

address the question of whether partition is reasonably necessary, that is, whether

there are reasonable alternatives that might allow the applicants to achieve their

proposals for the land. This is an evidential gap that cannot be filled at an appellate

level. Therefore, the application will need to be remitted to the lower Court for the

trustees to address these matters and for the appellant to respond. For the benefit of

the parties, that means that they will need to address:

1. Whether partition is ―necessary to facilitate the effective operation,

development, and utilisation of the land‖ (s 288(4)); and

2. The ―opinion of the owners... as a whole‖, the ―effect of the proposal

on the interests of the owners of the land‖ and the ―best overall use

and development of the land‖ (s 288(1)); and


3. Whether the granting of the partition ―in the manner sought will

achieve the principal purpose‖ of Part XIV, that is, to ―facilitate the

use and occupation by the owners of land owned by Māori by

rationalising particular land holdings and providing access or

additional improved access to the land‖ (s 287(2)).

Outcome

[76] Pursuant to s 56(1)(b) the Court allows the appeal, revokes the lower

Court’s dismissal of the application and determines that s 288(2)(a) and (b) are

satisfied.

[77] Pursuant to s 56(1)(e) the Court directs a rehearing in the lower Court

for the trustees to address the matters in ss 288(4), 288(1) and 287(2), for the

appellant to respond and for the lower Court to rule on the application.

This judgment will be pronounced in open Court at the next sitting of the Māori

Appellate Court.

___________________ ___________________ _________________

L R Harvey (Presiding) D J Ambler S R Clark

JUDGE JUDGE JUDGE

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IN THE MAORI APPELLATE COURT OF NEW ZEALAND …