McLeod v Nga Uri A Maata Ngapo - Māori Land Court · IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO A20090018262 ... 6 Ellis – Matapihi No 1B No 2C No 2D ... 9 Thompson

2017 Chief Judge’s MB 46

IN THE MĀORI LAND COURT OF NEW ZEALAND

WAIKATO MANIAPOTO

A20090018262

UNDER

Section 45 of Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Harataunga West 2B2A1 Block and orders made

to set aside Harataunga West 2B2A1 as a Māori

Reservation at 104 Hauraki MB 4

BETWEEN

JOHN THORNTON MCLEOD

Applicant

AND

NGA URI A MAATA NGAPO CHARITABLE

TRUST

Respondent

Hearing:

15 December 2016, 2017 Chief Judge's MB 12-30

(Heard at Hamilton)

Appearances:

Natalie Coates, for the applicant

Paul Majurey, for the respondent

Judgment:

08 February 2017

RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC

Copies to: Kahui Legal, PO Box 1654, Wellington Paul F Majurey, PO Box 1585, Shortland Street, Auckland 1140


Introduction

[1] The applicant, John McLeod, pursuant to s 45 of Te Ture Whenua Māori Act 1993

(the Act), seeks to amend a 3 December 2001 order of the Court recommending that

Harataunga West 2B2A1 be set aside as a Māori reservation for the benefit of the Ngapo

whānau and Kennedy Bay community (to be known as Te Paea o Hauraki Reserve).1 This

recommendation was subsequently gazetted, and the reservation established, in 2002.2

[2] Section 44 of the Act sets out that when a s 45 application is received, the Chief

Judge can amend the order complained of if it was erroneous in fact or in law because of

any mistake or omission by the Court or Registrar or in the presentation of the facts of the

case to the Court, if it is in the interests of justice to do so.

Background

[3] The Case Manager’s preliminary Report and Recommondation (“the Report”),

dated 20 December 2011, sets out the background to the application. The Report is

produced in full as follows:

1 104 Hauraki MB 4 (104 H 4).

2 “Setting Apart Maori Freehold Land as a Maori Reservation” (21 March 2002) 26 New Zealand Gazette

743.





`


Case for the Applicant

[4] In summary, the case for the applicant is that the Court erred for the following

reasons:

(a) The Court recommended the reservation without inquiry into the sufficiency

of support amongst the landowners, such that the Court failed to recognise

that landowner support was insufficient.

(b) Neither the 2001 Court hearing, nor the preceding hui in December 2000

(the hui) at which shareholders discussed and voted on a proposed

application for a reservation, were sufficiently notified.

(c) The Court exceeded its jurisdiction by including the Kennedy Bay

Community as a beneficiary of the recommended reservation because such a

class of beneficiary is too broad and could include non-Māori.

[5] The applicant argues that the order recommending the reservation has adveresly

affected him and other landowners, and so the interests of justice support the order’s

cancellation or amendment.

Case for the Respondent

[6] The case for the respondent can be briefly stated as follows:

(a) sufficiency of support and notice go to the weight to be given to the

application, not fact or law;

(b) the facts relied on by the Court were not factually incorrect;

(c) the hui was not challenged until nine years later;

(d) the hearing was not challenged;

(e) the applicant has not proved that the class of beneficiary was not referring

exclusively to Māori in Kennedy Bay; and


(f) it is not in the interests of justice to amend or cancel the order.

Discussion

[7] The principles relating to the exercise of jurisdiction under s 45 are well known and

set out in the Ashwell case.3 These principles include the need to examine the original

hearing, which I have done. I have also examined the hui and the notice around both the

hui and the Court sitting complained of. I refer to these matters when discussing the

applicant’s main submissions. However, I wish to deal first with what is, in my view, the

primary obstacle to the applicant’s case.

[8] Applications to the Chief Judge under s 45 are the exception rather than the rule

and the Act’s other review provisions should be utilised before an application to the Chief

Judge is made.4 Such applications are unique to the Māori Land Court’s jurisdiction.

5 This

exceptionality demands that the Chief Judge’s discretion is exercised with care,6 and sets s

45 applications apart as distinct from appeals made to appellate courts throughout the

judicial system. Accordingly, applications raising issues akin to those raised in an appeal or

rehearing, as opposed to those highlighting a patent defect in the order, are not

appropriately raised in a s 45 application.7

[9] In response to my questions, Ms Coates submitted that the case was exceptional

because not enough landowners attended the hui, and so the Court could not have known

whether support was sufficient when it recommended the reservation. Furthermore, the

building of a marae on the land was a serious development that, when accompanied with

the issue of sufficiency of support and lack of notification, cumulatively provides the

exceptional circumstances that warrant exercising the s 45 jurisdiction.

[10] I do not accept this reasoning, which essentially reiterates the applicant’s arguments

about sufficiency of support, rather than addressing the question of exceptionality in light

of the other avenues for judicial review, or how this application might be distinguished

from an appeal or rehearing. In this case, neither the applicant nor any other owner chose

3 Ashwell – Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209 (2009 CJ 209).

4 Estate of Amos – Horahora 1A4B, 1A4E and 1A4F [2002] Chief Judge’s MB 54 (2002 CJ 54) at [3.2].

5 At [3.2].

6 Ellis – Matapihi No 1B No 2C No 2D [2010] Chief Judge’s MB 25 (2010 CJ 25) at [12].

7 Takapuna – Wiremu Reupene [2010] Chief Judge’s MB 152 (2010 CJ 152); Ruka – Taheke 23A [2012]

Chief Judge’s MB 416 (2012 CJ 416).


to appeal the decision recommending Te Paea o Hauraki Reserve, or to apply to have the

case reheard, despite both avenues previously being open. At the hearing, Ms Coates was

unable to explain this. In 2007, the applicant did apply to the lower court to redefine the

uses and purposes of the Māori reservation. However that application was adjourned

pending the outcome of this decision.8 In my view, the 2007 application is a judicial

avenue that remains open; it is more proper that the issues raised in the present application

are raised in the context of the re-activated 2007 application instead. Should that

application be completed, it may well alleviate the necessity to apply under s 45.

[11] Consequently, I question whether I should exercise my jurisdiction in this case.

Notwithstanding, I will consider the applicant’s substantive submisions. However, in doing

so, I note that these submissions essentially seek a reconsideration of the same facts that

were at issue at the original hearing and which were clearly before the Judge. The applicant

does not allege that these facts were presented incorrectly, so it was incumbent on him to

show an error of law or to point to law which existed at the time, but which the Judge did

not follow. In my view, the arguments Ms Coates presented did not do this. Rather, they

amounted to submissions that the Judge did not properly weigh the relevant factors in

reaching a decision on the application to establish a reservation. For this reason, the

application advances arguments more appropriate to an appeal, an approach which in turn

treats s 45 as a backstop appeal provision, which it is not.

Sufficiency of support

[12] In written submissions, Ms Coates referred to the hui records showing that although

27 people attended the meeting, only eight were landowners, despite there being 68 owners

in the land at that time. Further, the resolution made at the hui, that “the committee of “Ngā

Uri ā Maata Ngāpo” Be vested with the job of establishing a papakainga/pā on the land”,

was passed via two shareholder votes and four proxy votes, with one shareholder

abstaining and another voting against.

[13] Drawing on these facts, the applicant submits that the support for setting aside the

land as a reservation was insufficient. To the extent that such support existed, the wording

of the resolution referred only to a papakainga/pā, not the establishment of a marae. Thus,

8 80 Waikato Maniapoto MB 205 (80 WMN 205).


the Court’s order was wrong in law, being based on the mistaken presumption that the

landowners supported the land becoming a Māori reservation, or that they did so for the

purpose of a marae.

[14] To succeed in this argument, the applicant must show that the Court is legally

required to be satisfied of sufficiency of support before recommending land be set apart as

a Māori reservation. As noted in Ms Coates’ written submissions, the Act is silent on the

degree of owner support required before the Court can make such a recommendation. As I

noted at the hearing, this stands in contrast with other provisions in the Act which do

require the Court, before making an order, to be satisfied of sufficiency of support (for

example, provisions relating to alienation, occupation, and partition). At the hearing, Ms

Coates could not explain this discrepancy, but pointed to case law suggesting that

sufficiency of support should be read into s 338.9

[15] I accept that the Court has developed principles to assist determination of whether

to recommend land be set aside as a reservation. As is evident from the cases cited by Ms

Coates, this includes consideration of the level of owner support, which I agree is highly

relevant to whether to make a recommendation of far-reaching consequences. However,

the fact remains that s 338 does not mandate sufficiency of support as part of the test for

the recommendation of a Māori reservation. Even in the passage of Tamati cited by Ms

Coates, the Court notes that the requirement that owners consent to a proposed reservation

is self-imposed by the Court as “a rule of practice”.10

[16] Thus I agree with Mr Majurey’s submission that the question of landowner support

for a reservation goes to the weight to be given to the application, rather than the law. At

the hearing, Ms Coates submitted that “the Court has a greater role to go and do more than

what was required”,11

but this is a contradiction in terms; how can the Court be required to

do more than what the Act requires it to do? The Court’s jurisdiction under s 45 does not

extend to cancelling or amending orders because the Court failed to go above and beyond

the law.

9 Thompson – Omahu 4C4 Ahu Whenua Trust (2016) 48 Takitimu MB 249 (48 TKT 249); Tamati –

Horotiu and Puketapu (1980) 84 Taranaki MB 70 (84 TAR 70). 10

At 76. 11

2017 Chief Judge’s MB 12-30 (2017 CJ 12) at 16.


[17] I would also add that the cases cited are relevant but not decisive. The Tamati case

involved the consent of the sole owner of the land proposed for a reservation. Also, in

Omahu, the relevance of sufficiency of support was heightened because the application to

set aside the land as a reservation was greatly opposed. In the present case, landowners

knew, or had the opportunity to know, of the proposed application, and none objected.

Although Mr Mareroa initially sent a letter of objection to the Court, he later attended the

Court hearing and did not voice his dissent. In fact the minutes show unanimous support

for the application. This provides some insight into why the Judge did not enter into a

balancing exercise in which sufficiency of support was weighed against competing factors.

[18] The second prong of Ms Coates’ submissions on sufficiency of support was that

even if landowner consent for the reservation was adequate, it was granted for the purpose

of a papakainga/pā, not the construction of a marae. Accordingly, the purposes of the

reservation that the Court ultimately recommended did not correspond with the terms upon

which the landowners expressed support.

[19] Based on my examination of the original file, I consider this argument

unconvincing. The minutes from the hui demonstrate that those present knew what they

were there to discuss; that discussion took place and a note was taken. Even if a marae was

not expressly discussed at that time, the subsequent application to the Court clearly

included a marae, consisting of a wharenui, wharekai and ablution block, as one of the

proposed purposes of Te Paea o Hauraki Reserve. As I have already noted, no landowners

opposed the application, which they could have done if they did not support a reservation

on those terms. Furthermore, following the Court’s recommendation, several years passed

before the applicant sought to challenge the reservation or the purposes for which it was

established.

[20] Accordingly, I find the Court did not err in its examination of sufficiency of

support.

Notification

[21] Counsel for the applicant submitted that neither the hui nor the Court sitting were

sufficiently notified. As a result, landowner consent for the reservation, including the

marae, cannot be implied by the absence of objection at either event because landowners


who might have objected may not have known that the hui or hearing were to occur.

Specifically:

(a) the advertisements for the hui were inadequate because they did not outline

the purpose of the hui;

(b) notice about the application and court hearing was not sent to any of the

landowners present at the hui, nor did the applicant comply with a judicial

direction to notify as many landowners as possible about the hearing; and

(c) three notices of hearing were placed in newspapers, but two included an

incorrect date due to the Court changing the date at the last minute.

[22] Ms Coates submitted that the requirements of natural justice demand that

landowners are sufficiently notified about proceedings on matters that would affect their

rights and interests, such as an application to set aside land for a Māori reservation.

[23] Having examined the original file, I am satisfied that the notice provided was

sufficient. The hui was advertised in the Hauraki Herald, twice, and the New Zealand

Herald. These notices are on the original file and the Court would have known of them.

The Court sitting was advertised three times in the Hauraki Herald and once in the New

Zealand Herald, and included in a Māori Land Court Pānui. The change of date was

unfortunate, but the advertisements would still have transmitted notice of the application

itself, such that objectors could have filed written objections with the Court, as Mr Mareroa

did. As it transpired, the change of date did not affect the attendance of this single objector,

but as the records show, he did not oppose the application at the hearing.

Lack of jurisdiction to make order relying on certain purposes

[24] Ms Coates’ final argument was that the Court exceeded its jurisdiction when it

recommended a reservation for the benefit of the “Kennedy Bay Community”. This class

of beneficiary is overly broad, potentially encompassing non-Māori members of the

Kennedy Bay Community, who are not permitted to be beneficiaries of Māori reservations

under the Act.


[25] Mr Majurey submits that the applicant has not fulfilled his onus of proving that the

phrase refers to anyone other than Māori of Kennedy Bay.

[26] I agree that the class of beneficiary is ambiguously phrased and clearer articulation

could have avoided doubt about its scope. Nevertheless, in this case I do not consider it

sufficient to warrant setting the order aside. The Court does not have jurisdiction to

recommend a Māori reservation for the benefit of any group other than a Māori class of

beneficiary. Where ambiguous phrasing logically permits both a narrower class of

beneficiary that includes only Māori, and a broader class of beneficiary that could include

non-Māori, the class can be read to cover only those individuals that fall within the Court’s

jurisdiction. In short, it is simply implied that the Court sought to stay within its

jurisdiction, such that the reference to the “Kennedy Bay Community” could only be read

to mean the Māori members of the Kennedy Bay Community. The applicant has provided

no evidence to demonstrate that the words have, in practice, been applied in any other way

to date.

Decision

Having regard to the above, I decline to exercise my jurisdiction under s 45 of the Act and

the application is dismissed.

The Case Manager is directed to distribute a copy of this judgment to all parties

Dated at Wellington this the 8th

day of February 2017.

_______________

W W Isaac

CHIEF JUDGE

Documents

McLeod v Nga Uri A Maata Ngapo - Māori Land Court · IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO A20090018262 ... 6 Ellis – Matapihi No 1B No 2C No 2D ... 9 Thompson