IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU … · agreed to the exchange as a result of duress on the Crown’s part. I need not make a finding in that respect. 2 58 Taitokerau

87 Taitokerau MB 258

IN THE MĀORI LAND COURT OF NEW ZEALAND

TAITOKERAU DISTRICT

A20120002366

UNDER

Section 306, Te Ture Whenua Maori Act 1993

IN THE MATTER OF

Hauai Ahu Whenua Trust

Bella Thompson and Matutaera Clendon

APPLICANTS

Hearing:

20 March 2013

28 November 2013

22 July 2014

(Heard at Whangarei)

Judgment:

24 September 2014

PRELIMINARY DETERMINATION OF JUDGE D J AMBLER


Introduction

[1] In 1976 the Crown and the Hauai Trust (“the Trust”) entered into an exchange

agreement whereby certain Māori land was to be vested in the Crown and certain general

land was to be vested in the Trust. The exchange was effected by orders of the Māori Land

Court in 1977.1

[2] The Trust and its beneficial owners subsequently felt the exchange was unfair and

had been entered into under duress. They raised their concerns with the Crown. Following

an application to the Chief Judge of this Court the parties unsuccessfully attempted to

negotiate a settlement. In 1991 the Trust lodged a claim with the Waitangi Tribunal. In

1993 the Crown and the Trust entered into a Deed of Settlement whereby in essence the

Crown returned the Māori land to the Trust and the Trust returned the general land it still

owned to the Crown.

[3] The Trust and its beneficial owners maintain that the Māori land returned to them in

1977 (Hauai 2D8) should have been returned in the form of the titles that existed prior to

the 1977 orders, that is, as Hauai 2D1C, 2D2 and 2D3. Accordingly, the applicants have

now applied under s 306 of Te Ture Whenua Māori Act 1993 (“the Act”) to cancel the 1977

title orders and issue new titles in accordance with the pre-1977 titles.

[4] In this preliminary determination I address whether the applicants have satisfied the

requirements for an order under s 306 and identify certain ancillary issues. One of those

issues is the cost of survey of the replacement titles. The Trust believes the Crown should

meet those costs. One of the principal reasons for issuing a preliminary determination is

that the Trust needs to discuss the survey cost issue with the Crown before I finally

determine the application. If those costs are to fall on the Trust, then the Trust and

beneficial owners may no longer wish to pursue the application.

Background

[5] I have been greatly assisted in understanding the history of the land by two sets of

evidence.

1 53 Whangarei MB 2-4 (53 WH 2-4).


[6] First, the applicant trustees, Matutaera Clendon (a kaumātua involved with the land

since at least the early 1970s) and Bella Thompson, and Te Heke Smith (another kaumātua

involved with the land for a similar period) provided direct evidence regarding the history

of the land and dealings with the Crown.

[7] Second, in accordance with my orders of 2 May 20132 Nanette Rahui and Bob

Adam prepared a comprehensive report setting out the background to the current land

titles, providing plan diagrams showing the three original titles and their relationship to the

current five titles administered by the Trust, and compiling a list of the current beneficial

owners and their relationship to the pre-1977 titles.

The land titles prior to 1977

[8] The land in question is situated on the historic and picturesque Rawhiti peninsula.

It is of great cultural significance to Ngāti Kuta.

[9] Prior to 1977 the land comprised three separate titles: Hauai 2D1C (which included

the island, Moturahurahu), Hauai 2D2 and Hauai 2D3. Importantly, while the parent title

(Hauai 2D) was surveyed in 1913 and depicted on survey plan ML 9143, the three

subsequent titles were never surveyed and were defined by sketch plans only. The lack of

survey of the pre-1977 titles means that a full survey will be necessary to complete any

orders under s 306 of the Act.

The exchange

[10] In about 1971 the land was vested in the Trust. Around this time the Trust explored

a proposal to develop the land for residential purposes. The Crown opposed this as it

wanted the land for a public reserve. Consequently, the Crown proposed a land exchange

and an agreement was eventually reached.

[11] Mr Clendon and Mr Smith are adamant that the Trust and its beneficial owners only

agreed to the exchange as a result of duress on the Crown’s part. I need not make a finding

in that respect.

2 58 Taitokerau MB 63 (58 TTK 63).


[12] In August 1976 the Trust and the Commissioner of Crown Lands entered into an

exchange agreement whereby the Trust agreed to transfer to the Crown the bulk of its land,

with the Trust retaining Moturahurahu and three sections (to be located adjacent to the

public road) and the Crown agreed to transfer to the Trust a block of land at Kamo known

as the Felix farm and three residential sections at Eastern Beach, Auckland.

[13] In order to give effect to the exchange, on 11 March 1977 the Court made various

orders: amalgamating Hauai 2D1C, 2D2 and 2D3 as one title; repartitioning that title into

five titles being Hauai 2D5, 2D6 and 2D7 (the three sections for the Trust), Hauai 2D8 (the

land to go to the Crown) and Hauai 2D9 (Moturahurahu – also to be retained by the Trust);

and finally by way of exchange orders vesting Hauai 2D5, 2D6, 2D7 and 2D9 together

with the Felix farm and the three sections at Eastern Beach in the Trust, and vesting Hauai

2D8 in the Crown.3

[14] It is important to understand how the beneficial ownership of the Māori land altered

as a result of the 1977 orders as that change is the key reason for the present application.

[15] Prior to the 1977 orders Hauai 2D1C, 2D2 and 2D3 had separate ownership lists

which reflected three separate but related whānau groupings. As a result of the 1977

amalgamation and partition orders, the ownership interests were reallocated and

intermingled. This is best summarised in the report of Ms Rahui and Mr Adam as

follows:4

The Court’s minute is clear in respect of ownership and shares for the ‘new’ titles:

Hauai 2D5 to comprise 1.7100ha as shown on plan at folio 4 and to be for

the present owners of Hauai 2D1C in their present shares.

Hauai 2D6 to comprise 1.0750ha and to be for the present owners of Hauai

2D2 in their present shares.

Hauai 2D7 to comprise 1.3050ha and to be for the present owners of Hauai

2D3 in their present shares.

Hauai 2D9 comprising 2.8328ha being Moturahurahu to be for the present

owners of Hauai 2D1C in their present shares.

Hauai 2D8 to comprise 25.4943ha and to be

3 53 Whangarei MB 2-4 (53 WH 2-4).

4 N Rahui and R S Adams Hauai 2D5-2D9 and former blocks dated 29 June 2013, at A2.3.


(a) As to 182455 parts out of 350000 for the owners of Hauai 2D1C

and in their present share proportions in that block.

(b) As to 88970 parts out of 350000 for the owners of Hauai 2D2 and

in their present proportions in that block.

(c) As to 78575 parts out of 350000 for the present owners of Hauai

2D3 and in their present proportions in that block.

Hauai 2D5, 6, 7 & 9 above are straightforward. The total shares and individual

owner shares in the former blocks remained the same for the new block. Refer also

to section A2.2 above.

Hauai 2D8 was dealt with differently. In 1976 a special valuation was provided for

three parts of 2D8 ((a), (b), (c) above - see Appendix A9). The values 182455,

88970, 78575 were used to convert the shares of the owners in the former blocks

into their ‘share proportions’ in 2D8 resulting in the owners of Hauai 2D8 owning a

proportion of 350000 shares. This is explained in detail in Part B of this report.

Hauai block Number of Owners Block Shares

2D5 30 47.951

2D6 23 26.000

2D7 37 25.000

2D8 102 350 000.000

2D9 30 47.951

Refer to Appendix A2 for schedules of owners at the time of partition and current

ownership.

[16] The reconfiguration of the three Māori land titles as five titles is best understood by

Plan 3 of the report, which I attach as Annexure A.

[17] As a result of the 1977 orders, Hauai 2D5, 2D6, 2D7 and 2D9 were vested in the

Trust with four separate ownership lists, and Hauai 2D8 was vested in the Crown. The

Crown then effected certain statutory actions in relation to Hauai 2D8 by Gazette Notice,

namely: declaring the land to be Crown land; setting the land apart as a recreation reserve;

appointing the Bay of Islands Maritime and Historic Park Board to control and manage the

reserve; and later classifying the land as a scenic reserve and naming it Oke Bay Scenic

Reserve.


Issues following the exchange

[18] The Trust and its beneficial owners soon became dissatisfied with the exchange.

The owners felt that their ownership had been “squeezed” into the three smaller sections,

Hauai 2D5, 2D6 and 2D7. Furthermore, significant issues arose over the value and benefit

of the general land vested in the Trust. The three sections at Eastern Beach were sold for

considerably less than they had been valued by the Crown, and Felix farm, which was

intended to be developed for a residential subdivision, was found to have significant coal

workings beneath it which meant it could not be developed as intended.

[19] Eventually, the Trust applied to the Chief Judge under s 452 of the Māori Affairs

Act 1953 for cancellation of the 1977 orders. The Trust and the Crown entered into

protracted negotiations. On 28 February 1991 a claim on behalf of the Trust was filed with

the Waitangi Tribunal (Wai 200) in relation to the exchange and the 1977 orders. Later that

year Judge P J Trapsky, a member of the Waitangi Tribunal, was appointed to mediate the

claim. Negotiations between the Trust and the Crown resulted in a settlement recorded in a

Deed of Settlement dated 30 October 1993 executed by the Honourable Douglas Graham

(the then Minister of Justice) and the Trust (“the Deed of Settlement”).

The 1993 settlement

[20] The Deed of Settlement is four pages long and consists of several key elements (a

copy is attached as Annexure B):

(a) It recites the history of dealings between the Trust and the Crown;

(b) It records that the Crown is to introduce legislation regarding the

revesting of Hauai 2D8 in the Trust and the revesting of Felix farm in

the Crown, and removing the reserve status of Hauai 2D8; provides

that the marginal strip requirements of s 24 of the Conservation Act

do not apply to the land but that an equivalent area is to be held by

the Trust as a Māori reservation for the common use and benefit of

all New Zealanders; excludes a wāhi tapu area from the said

reservation but provides that it be held under a further reservation for


the protection of the wāhi tapu; and provides for a three metre wide

walkway strip around the wāhi tapu site;

(c) It provides a conditional acknowledgement by the Crown in relation

to its actions;

(d) It records that the settlement is in full and final settlement of the Wai

200 claim and any other claims against the Crown;

(e) It records that the Crown will not oppose planning or other proposals

for subdivision or papakainga housing on the land; and

(f) It provides for certain ex gratia, costs, compensation and rates

payments.

[21] Two steps were then carried out to give effect to the Deed of Settlement.

[22] First, on 30 October 1993 Deputy Chief Judge McHugh made an order pursuant to

s 44 of the Act cancelling the 1977 exchange order as far as it affected Hauai 2D8 and

Felix farm.5 Consequently, Hauai 2D8 was returned to the ownership of the Trust and its

beneficial owners, and Felix farm was returned to the ownership of the Crown.

[23] Second, the Crown enacted the Reserves and Other Lands Disposal Act 1995 (“the

1995 Act”). The 1995 Act effected certain actions in relation to Hauai 2D8:6

(a) It revoked the various Gazette Notice actions declaring the land to be

Crown land, setting the land aside as a recreation reserve, appointing

the Bay of Islands Maritime and Historic Park Board to control and

manage the reserve, and classifying the land as a scenic reserve and

naming it Oke Bay Scenic Reserve;

(b) It deemed the land to be Māori freehold land;

5 5 Chief Judge’s MB 57 (5 WHCJ 57)

6 Reserves and Other Lands Disposal Act 1995, ss 2-3.


(c) It created a 20 metre wide coastal strip to be held by the Trust as a

Māori reservation for the common use and benefit of the people of

New Zealand;

(d) It created the wāhi tapu site as a reservation for the protection of

wāhi tapu; and

(e) It created a three metre walkway strip to be held by the Trust as a

walkway for the general public.

[24] The 1995 Act also cancelled the vesting of Felix farm in the Trust and vested that

land in the Crown, subject to the Land Act 1948 (although it would seem that had already

been effected by the cancellation of the exchange order).7

The Trust’s concerns regarding the 1993 settlement

[25] As already outlined, the primary effect of the Deed of Settlement was to return

Hauai 2D8 to the Trust. As a result, the Trust’s land was now in five titles rather than the

original three titles, and Hauai 2D8 was encumbered by the 20 metre wide coastal strip, the

wāhi tapu reservation and the three metre wide walkway strip (which I shall refer to as the

“three encumbrances”).

[26] The Trust and beneficial owners complain that they expected the Deed of

Settlement to return the land to them in the form of the three titles that existed prior to

1977. However, Deputy Chief Judge McHugh’s order under s 44 of the Act and the 1995

Act did not go that far.

[27] The Trust and beneficial owners say the Crown officials agreed that would be the

outcome when they negotiated the settlement – to paraphrase Mr Clendon, “If I gave you

an apple, I expect to be given back an apple”. I accept that was the expectation of the Trust

and beneficial owners. I am not called upon to decide whether in fact the Crown officials

made those representations, as such a finding is not essential to my function under s 306 of

the Act.

7 Reserves and Other Lands Disposal Act 1995, s 4.


[28] In addition, the Trust and beneficial owners complain that the 20 metre wide coastal

strip and three metre wide walkway strip were imposed on them.

[29] The complaints about the Deed of Settlement have been the subject of regular

discussion amongst the trustees and beneficial owners over the years. Although I have not

reviewed all of the Trust’s meeting minutes since 1993, I accept that the Trust and

beneficial owners have held to a common view that the land titles should have been

returned to them in accordance with the pre-1977 titles. They would also like the three

encumbrances removed from Hauai 2D8.

The application

[30] Mr Clendon and Mrs Thompson filed the present application in 2012. In support of

the application they filed minutes of a “Special Beneficiaries Housing Meeting” held on 14

January 2012 where unanimous support was expressed for the application. I note that

immediately following that resolution the minutes record:8

Whānau who feel they will be adversely affected by the application will need to

discuss their issues with the Trust.

[31] I have not heard from any beneficial owners who consider they will be adversely

affected by orders under s 306 of the Act. Indeed, at the three hearings before me there

was no opposition from beneficial owners.

[32] The first hearing took place on 20 March 2013.9 The applicants, some of the

trustees and a number of beneficial owners attended and explained the background to the

application. Notwithstanding those explanations, aspects of the application remained

unclear as the parties did not have access to all the relevant information, including a signed

copy of the Deed of Settlement. I concluded that the Registrar of the Court needed to

prepare a report. On 2 May 2013 I issued orders under ss 40 and 69 directing the Registrar

to prepare a report with the assistance of Mr Adam and Ms Rahui that:10

(a) Addresses the background to and nature of the reservation registered

(C908506.1) against Hauai 2D8 block (CFR 425291) pursuant to s 3 of the

Reserves and Other Land Disposal Act 1995; and

8 Minutes of Special Beneficiaries Housing Meeting, 14 January 2012 at para 2(b).




(b) Explains and sets out by plan diagram the three original titles (Hauai 2D1C,

2D2 and 2D3) and their physical relationship to the current titles (Hauai

2D5 - 2D9) administered by the Hauai Ahu Whenua Trust; and

(c) Identifies and sets out the current beneficial owners of Hauai 2D5 – 2D9

and in respect of which of the original titles (Hauai 2D1C, 2D2 and 2D3)

their interests relate (in three separate lists and showing their relative

interests).

[33] Mr Adam and Ms Rahui submitted their report. It is detailed and comprises a full

Eastlight file. On 20 September 2013 I issued directions for the report to be released, for

the application to be set down for hearing and for Mr Adam and Ms Rahui to present the

report and field questions from the beneficial owners at a meeting to be held immediately

prior to the hearing.11

[34] The second hearing took place on 28 November 2013.12

Mr Adam and Ms Rahui

attended the meeting with the Trust and beneficial owners immediately prior to the hearing.

Their report was well received. During the hearing the Trust and beneficial owners

discussed once again their desire to return the land to the pre-1977 titles and their concerns

over the 20 metre wide coastal strip and three metre wide walkway strip. I indicated that if

the Court was to grant the orders sought, then the titles would need to be surveyed and the

Trust therefore needed information on the likely cost of survey. In addition, I was

concerned to know whether the three encumbrances posed any impediment to the orders

sought. Accordingly, I adjourned the application and directed the Registrar as follows:13

1. With the assistance of Mr Adam, to make enquiries of surveyors as to the

cost of providing full surveys to support titles to the former Hauai 2D1C,

2D2 and 2D3 by 31 January 2014.

2. To request LINZ to report to the Court by 31 January 2014 regarding the

ability of the Court to cancel the existing titles to Hauai 2D5, 2D6, 2D7,

2D8 and 2D9 and to issue new titles for Hauai 2D1C, 2D2 and 2D3 having

regard to the:

a. 20 metre wide Māori reservation;

b. 3 metre walkway;

c. Wāhi tapu.

provided for in the Reserves and Other Lands Disposal Act 1995.

11

66 Taitokerau MB 99 (66 TTK 99). 12

74 Taitokerau MB 86 (74 TTK 86). 13

74 Taitokerau MB 98 (74 TTK 98).


[35] On 14 January 2014 the Registrar-General of Land (“RGL”) responded to my

direction. Given the technical issues raised by the RGL I set out the substance of his

response in full:14

Background

His honour Judge Ambler has requested me to report back to the Court by 31

January 2014 on the proposal to reconfigure the above Blocks and to replace the

existing titles with new ones for the reconfigured Blocks.

In particular I have been asked to address this proposal in the light of the specific

requirements provided for in the Reserves and Other Lands Disposal Act 1995.

Appellations for surviving parts of Block 2D8

I note that the proposal respects the ongoing impact of the Reserves and Other

Lands Disposal Act 1995 (ROLD Act 1995) to the extent that the land directly

affected by that Act is staying outside the reconfiguration.

In that regard the parts of 2D8 that constitute:

(a) The two 20 metre wide coastal reservation strips - one to the north and the other

to the south

(b) The 3 Metre wide walkway that connects those strips and

(c) The Wāhi Tapu reservation;

are to remain unaltered (as shown on Plan 7).

Presumably it is intended that these will be kept together in a new title with the

balance of 2D8 being redistributed into parts of the new 2D3, 2D2 and 2D1C

Blocks with each new Block having a separate title.

For ease of identification it would be desirable for each of the four separate parcels

referred to in (a), (b) and (c) above [taking into account the severance of the 20

metre coastal strip into northern and southern pieces] to be given a unique

appellation e.g. 2D8A - 2D8D. This would be more in keeping with the LINZ

preference for allocating unique descriptors to separate parcels of land. In that

regard the Wāhi Tapu site is defined as “A” on SO Plan 66958 by virtue of s3(3)

ROLD Act 1995 so in that sense that parcel already has a unique identifying

appellation although Plan 7 does not mirror that.

I note however, that at this stage, Plan 7 indicates that these four pieces of land will

retain their current part Block appellations (part 2D8).

I also appreciate that the Māori Land Court may have its own preferences in that

regard so LINZ will follow the direction of the Court on these matters.

Moturahurahu Island

In a similar vein I see that Moturahurahu Island is to share the same appellation

(2D1C) as a separate but nearby part of the mainland. The island is currently 2D9.

At the moment 2D9 is provisionally registered so presumably it is intended that it

will be surveyed to a standard commensurate with the issue of a full freehold title

14

Correspondence from Robbie Muir Registrar-General of Land to the Court, 14 January 2014.


(computer freehold register). It is not immediately apparent why it should cease to

have its own unique appellation.

Computer Freehold Register 425291

The only other comment I would make is that I am not sure that the title for 2D8

(CFR 425291) fully records the operation of the ROLD Act 1995. It records the

setting apart of the Wāhi Tapu land and the three metre walkway but not the coastal

reservation strips as provided for in s2(4) and (5) ROLD Act 1995.

I will explore these matters further and if it is appropriate for the title to include

such a notation I will arrange for it to be amended accordingly.

[36] On 24 January 2014 I issued a minute in which I discussed the RGL’s response:15

The Case Manager has followed up with LINZ and the Registrar-General of Land

has helpfully provided a reply by way of his letter of 14 January 2014. The

essential point of that reply (from my perspective) is that the reconfiguration of the

titles can occur provided that it respects the impact of the Reserves and Other

Lands Disposal Act 1995. Two matters raised by the Registrar-General of Land

require comment.

First, the Registrar-General of Land assumes that the four parcels that make up the

20 metre wide coastal reservation strips, the three metre wide walkway and the

waahi tapu will stay outside the reconfigured of titles. That is not something that

had been fully thought through in the course of the report from Mr Adam and Ms

Rahui or by the Court. Nevertheless, the Registrar-General of Land raises an

important issue.

There appear to be two options. First, for those four parcels to be kept in the one

title, as suggested by the Registrar-General of Land. Second, for those four parcels

to be included with the former Hauai 2D1C block (including Moturahurahu). That

would create a rather irregularly shaped title.

I have no firm view on this issue but, given the potential in the future for the

owners to request that the Trust be terminated in relation to the reconfigured titles

comprising the former Hauai 2D3, 2D2 and 2D1C blocks, it may well make more

sense for the four parcels to be contained in a separate title so as to enable the Trust

to continue to function in that event.

Second, the Registrar-General of Land notes the potential need for Moturahurahu to

be surveyed to a standard commensurate with the issue of a full freehold title. It is

unclear to me what that standard might be for an island such as Moturahurahu.

That is something that the surveyors providing estimates/quotes for the cost of

survey will need to address.

Accordingly, I thank the Registrar-General of Land for his prompt reply and direct

the Registrar to arrange for this minute to be distributed to the parties, the

Registrar-General of Land and the surveyors providing estimates/quotes of survey

costs. Hopefully this minute and the Registrar-General of Land’s letter of 14

January 2014 will inform the surveyors’ costing exercise. I now await their

responses.

15

71 Taitokerau MB 14 (71 TTK 14).


[37] Mr Adam followed up in relation to the survey costs with a memorandum of 31

March 2014 in which he assessed the possible survey costs as between $27,000.00 and

$36,000.00. One of the matters requiring clarification with potential impact on survey

costs is whether Land Information New Zealand (“LINZ”) requires the coastal boundary of

Moturahurahu to be surveyed.

[38] The third hearing took place on 22 July 2014.16

We discussed the RGL’s letter and

the cost estimates. The Trust and beneficial owners were very unhappy at the prospect of

having to pay up to $36,000.00 for a survey of the pre-1977 titles. In fact, Mrs Thompson

maintained that the pre-1977 titles had been surveyed and filed survey plans and sketch

plans to support her contention. However, having reviewed that material, I confirm that

the three pre-1977 titles have not been surveyed, as Mr Adam had earlier concluded.

[39] The Trust and beneficial owners also objected to the prospect of Moturahurahu

being surveyed. The island is regarded as very tapu, being the site of a significant

historical massacre, and for that reason the Trust and beneficial owners do not want any

surveying to take place. They otherwise reiterated their view that the 20 metre wide

coastal strip and three metre wide walkway strip were inappropriate and should be

removed.

[40] The hearing concluded on the basis that I would issue a preliminary determination

and identify the issues that need to be addressed before orders could issue. As indicated at

the outset, the key reason for issuing a preliminary determination is to provide the Trust

with a ruling that will enable it to engage with the Crown over the anticipated survey costs.

I also consider the Trust needs the benefit of legal advice to assist it in this process. If the

Trust and the Crown can agree on payment of survey costs, then it may be that orders can

issue. However, if the Trust and the Crown cannot agree, then the question for the Trust

and beneficial owners will be whether they still wish to proceed with the application if they

have to meet the survey costs themselves.

16

87 Taitokerau MB 75 (87 TTK 75)


Discussion

Section 306

[41] The application is brought under s 306 of the Act which provides:

306 Cancellation of partition orders

(1) Subject to the provisions of this section, the Court may at any time cancel,

wholly or in part, any partition order made under this Act or under the

corresponding provisions of any former Act, whether or not that order has

been registered under the Land Transfer Act 1952.

(2) If the whole of the land comprised in the order has been acquired by the

present owner or that owner's predecessor in title by any alienation, the

Court shall not cancel an order under this section without the consent of the

present owner.

(3) Where the whole of the land comprised in any partition order is subject to

any lease, licence, mortgage, charge, or other encumbrance, the order shall

not be cancelled under this section without the consent of the lessee,

licensee, mortgagee, or other person entitled to the benefit of the

encumbrance, unless the Court is satisfied that the rights and interests of

that person would not be detrimentally affected by the cancellation of the

order.

(4) Upon the cancellation under this section of any partition order, the land

comprised therein shall, to the extent of the cancellation, be held again

under the former instrument of title as if no partition had taken place; and

all orders of the Court and all alienations affecting interests in the land

made or affected since the date of the order cancelled shall be deemed to

relate to the former title and the interests under it.

(5) Upon the cancellation under this section of a partition order, the Court

shall, unless it considers such a course unnecessary, issue a declaratory

order under section 128 of this Act declaring the current ownership of the

land; and in such a case all the provisions of that section shall apply to the

making of any such order, except that no notice of the order under

subsection (3) of that section shall be necessary.

[42] Section 306 does not set out any express criteria for granting an order cancelling a

partition order. Nevertheless, as s 306 is contained within Part 14 of the Act, ss 286 and

287 apply:

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 Maori 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 Maori Land Court shall have

exclusive jurisdiction to make partition orders, amalgamation orders,

aggregation orders, and exchange orders in respect of Maori land, and to

grant easements and lay out roadways over Maori land.

(2) The jurisdiction conferred on the Maori 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 Maori 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.

[43] As far as s 288 of the Act is concerned, in my view it does not apply to an

application under s 306 of the Act as strictly speaking the Court is not being asked to make

a partition, amalgamation or aggregation order. But as I return to discuss that section later,

I set it out below:

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 Maori

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 Maori 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.

[44] Accordingly, under s 306 the Court has a broad discretion to grant an application to

cancel a partition order. The exercise of that discretion is guided by ss 286 and 287, and

the ever present Preamble and ss 2 and 17 of the Act. Having regard to the matters set out

in those various sections and the scheme of the Act, it seems to me that the Court’s inquiry

needs to focus on two key matters. First, whether there is a sufficient degree of support

among the Trust and beneficial owners for the cancellation of the 1977 partition orders.

Second, whether the cancellation of those orders fits with the principal purpose of Part 14

and the scheme of the Act. That second exercise requires the Court to consider whether

there is a proper and practical purpose to the cancellation of existing title orders.

[45] Turning to the first issue, I conclude that in principle there is a sufficient degree of

support among the beneficial owners for the application. I say “in principle” as the support

thus far is subject to whether or not the Trust will be required to meet the survey costs and

the final title configuration (which is something I comment on below). Therefore, the

support for the application is sufficient but before any final orders can be made I will

require the Trust to convene a general meeting of beneficial owners to express a final view

on the proposed orders once the survey costs and title configuration issues are clarified.


[46] Turning to the second issue, I conclude that the proposed cancellation of the 1977

title orders does fit with the principal purpose of Part 14 and the scheme of the Act as a

whole. The 1977 orders significantly altered the configuration of the beneficial owners’

ownership of their land. That only occurred because of the Crown’s policy of acquiring the

land for public reserve purposes, a policy which was subsequently reversed by the return of

the land. The Trust and beneficial owners expected the Deed of Settlement to return the

land to them in the same configuration that existed prior to the 1977 orders. It did not do

that. The result is that today there is a significant inter-mingling of whānau interests in

what were previously separate blocks. The beneficial owners wish to return to the position

where they held separate whānau blocks. That is an entirely legitimate objective.

[47] I did have a concern that a return to land titles that had not existed for 37 years

might give rise to practical problems. For example, owners may have placed houses in

areas that might compromise those reconstituted titles. However, I was reassured that there

had been limited reliance on the 1977 title orders since that time in terms of use of the land

and that no such practical problems will arise.

Alternative to s 306

[48] One matter for me to consider is whether an order under s 306 of the Act on its own

will achieve the outcome sought by the applicants.

[49] The response from the RGL indicates that the three encumbrances will likely need

to be contained in separate titles (four titles in total as the 20 metre wide coastal strip is

split into two parcels). Furthermore, whereas in the pre-1977 titles Hauai 2D1C included

Moturahurahu, the RGL has indicated that it may be appropriate for Moturahurahu to

remain in its separate title (Hauai 2D9). Thus, while the Trust and beneficial owners might

want to move from the current five titles to the three pre-1977 titles, because of the 1995

Act they may end up with eight titles. Consequently, if the land is not to be returned to the

exact titles that existed prior to 1977, the Court may need to call upon its other powers in

the Act to achieve the desired outcome.

[50] An alternative to orders under s 306 of the Act is for the Court to make partition

orders in reliance on ss 289 and 298 of the Act. Before exercising that jurisdiction the

Court must first be satisfied of the matters contained in ss 286 to 288 of the Act. Section


288 is the critical provision. As far as s 288(1) and (2) are concerned, I am satisfied that in

principle there has been sufficient notice to the beneficial owners of the proposal to return

the land to the pre-1977 titles, that there is sufficient support among the beneficial owners

and that the proposal does reflect the best overall use and development of the land.

[51] Section 288(4) is often an insurmountable hurdle to partition. However, here I

conclude that the proposed reconfiguration of the titles is reasonable necessary to facilitate

the effective operation, development and utilisation of the land as it accords with the

beneficial owners’ desire to hold the land in accordance with the separate whānau blocks

that existed prior to 1977. Without that reconfiguration there is a significant impediment to

the owners using their land.

[52] Thus, if in fact orders under ss 289 and 298 of the Act are needed, I conclude that

the grounds are made out to make such orders.

Survey

[53] As noted, the titles will need to be surveyed if the existing title orders are to be

cancelled, as the pre-1977 titles were never fully surveyed. A full survey will cost between

$27,000.00 and $36,000.00.

[54] The Trust and beneficial owners object to the prospect of Moturahurahu being

surveyed. It is not entirely clear to me why Moturahurahu needs to be surveyed – it is an

island the boundaries of which are defined (I assume) by mean high water springs. I

require more information about whether a survey is strictly required. An alternative may be

for Moturahurahu to simply remain as Hauai 2D9 in accordance with the existing

provisionally registered title (CIR 500719).

The 20 metre wide coastal strip and three metre wide walkway strip

[55] The Trust and beneficial owners want the 20 metre wide coastal strip and three

metre wide walkway strip removed. As I pointed out during the hearing, I have no power

to cancel those two encumbrances over Hauai 2D8. They were created by the 1995 Act. If

the Trust and beneficial owners wish to pursue this issue they will need to take it up with


the Crown. However, I observe that both encumbrances were contemplated by the Deed of

Settlement signed in 1993.17

Can the land in fact be returned to the pre-1977 titles?

[56] A more fundamental issue is whether the land can be returned to the pre-1977 titles.

[57] In one sense they cannot be returned to their exact pre-1977 state as the 1995 Act

imposed the three encumbrances over Hauai 2D8. In the absence of any repeal of the 1995

Act, those encumbrances must remain in place.

[58] The position of the RGL is that providing that the Court’s orders respect the effect

of the 1995 Act, he does not see any particular impediments to the Court granting the

orders. Nevertheless, the RGL’s letter suggests to me that it is not possible to return the

titles to the exact configuration that existed prior to 1977.

[59] The RGL considers that the three encumbrances need to remain in separate titles.

He suggests that these be given the separate appellations Hauai 2D8A-2D8D, and that

Moturahurahu remain as Hauai 2D9. Accordingly, following the RGL’s suggestion the

current five titles would be reconfigured as eight titles, rather than the three titles sought by

the applicants. This is best understood by reference to Plan 7 of Ms Rahui and Mr Adam’s

report (Annexure C). The titles would be:

(a) Hauai 2D1C

(b) Hauai 2D2

(c) Hauai 2D3

(d) Hauai 2D8A

(e) Hauai 2D8B

(f) Hauai 2D8C

(g) Hauai 2D8D

(h) Hauai 2D9 (Moturahurahu)

[60] Whether this approach is acceptable to the Trust and beneficial owners remains to

be seen. Nevertheless, I query whether separate titles are needed for the three

encumbrances. That is, if the three encumbrances currently relate to Hauai 2D8 and that

title is cancelled and replaced by Hauai 2D1C, 2D2 and 2D3, is there any need to create

17

Hauai Trust Deed of Settlement dated 30 October 1993, at cl L


separate freehold titles for those three encumbrances? This is a matter for the RGL to

advise on.

Conclusion

[61] My preliminary determination is that the applicants have satisfied the grounds to

reconfigure the titles for Hauai 2D5 to 2D9 to the pre-1977 titles. Whether that is to be by

orders under s 306 or ss 289 and 298 of the Act remains for final determination. A

question arises as to whether the titles can be reconfigured exactly as intended by the

applicants as the RGL considers that separates titles are required for the three

encumbrances and that Moturahurahu should retain its separate title as Hauai 2D9. There

are also the issues of whether Moturahurahu needs to be surveyed and the overall question

of who is to meet the survey costs.

[62] Before I consider the form of any final orders the following steps need to be carried

out:

1. The RGL is to clarify:

(a) Whether he considers it is strictly necessary for the Court to

issue separate titles for the three encumbrances. That is, will

not those encumbrances simply apply to any titles replacing

Hauai 2D8?

(b) Whether a full survey of Moturahurahu is required and, in the

alternative, whether Moturahurahu can remain under

provisional registration as Hauai 2D9;

2. The Trust is to discuss with the Crown whether the Crown will meet

the survey costs of reconfiguring the land into the pre-1977 titles.

[63] Once the RGL and the Trust have addressed items (a) and (b) above I will issue a

decision determining the form of the titles, that is, whether approximating the three pre-

1977 titles or the eight titles as suggested by the RGL. Furthermore, it will still be


necessary for the Trust to convene a meeting of beneficial owners to express a final view

on whether they are happy to proceed with the titles as proposed by the Court.

[64] The Trust has to date prosecuted the application without the assistance of counsel. I

was told that Mr Te Kani Williams had represented the Trust in the Waitangi Tribunal. In

my view, the further discussions with the RGL and the Crown will proceed more

efficiently if counsel are involved. Given the peculiar circumstances of the land, the 1977

orders and the 1993 settlement, I consider this to be an application where the legal costs of

the Trust in progressing the matter further should be met out of the Special Aid Fund

pursuant to s 98 of the Act. Accordingly, if the Trust does wish to engage Mr Williams or

other members of his firm to assist further with the application, those reasonable legal

costs will be met out of the Special Aid Fund pursuant to s 98 of the Act. Counsel will

need to file an estimate of costs in due course.

[65] I imagine that it will take some time for the Trust to instruct counsel and progress

discussion with the RGL and the Crown. I will therefore adjourn the application for five

months leaving the Trust, the RGL and the Crown to progress matters in light of this

preliminary determination.

[66] I direct the Trust to update the Court on progress by 28 February 2015. The

application is adjourned to Chambers on 1 March 2015.

Dated at Whangarei this 24th

day of September 2014.

D J Ambler

JUDGE










Documents

IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU … · agreed to the exchange as a result of duress on the Crown’s part. I need not make a finding in that respect. 2 58 Taitokerau