August 1996 Contents

Mäori Land Court and Appellate Court

BN Pearce & AG Pearce and Paengaroa North K and B4B Blocks

1 Waiariki ACMB 44, 26 June 1996. Deputy CJ Smith (presiding), Spencer J, Isaac J

This was an appeal from an order removing two trustees (the appellants) because they had paid themselves an honorarium of $3000 each (ie $6000 in total) when the words of the trust deed suggested that $3000 in total only was payable. The appellants had been ordered to repay $3000 to the trust, and then removed as trustees because they were now debtors to the trust and therefore faced a conflict of interest.

Held: the Mäori Land Court indisputably has power to remove trustees under both s240/1993 (removal for failure to carry out duties satisfactorily, lack of competence or prolonged absence) and s237 (MLC to have inherent powers of the High Court for trusts under Part XII/1993).

The wording of the trust order was at the least ambiguous as to the total honorarium payable (“the Trustee may pay one or more Trustee honorarium in total of no more than $3000”). A perusal of the minutes of the MLC when the trust order was amended to include the payment provision showed that a total of $3000 per trustee was intended. Section 74(2)/1993, which provides that where orders are in conflict with the court minute the order is to prevail, was not relevant. Here the order was not in conflict with the minute, but merely ambiguous.

Also noted that while a trustee is required to know the terms of their trust, and reading the trust order may assist this, failure to read the trust order does not of itself constitute an adequate ground for removal of a trustee.

In Re Karu O Te Whenua B2B5B1 Block and B Marsh & Others

19 Waikato Maniapoto ACMB 40, 27 February 1996. Hingston J (presiding), Marumaru J, Isaac J

A farmer leasing a block of Mäori freehold land (approx 207 hectares) adjoining his own land successfully obtained a resolution of the majority of owners to sell the leased land. The Mäori Land Court adjourned the application for confirmation to allow the non-sellers to apply for a partition order. The MLC made an interim decision that the application for partition had sufficient support in terms of s288(2)(b)/1993, since the views of the sellers were not important—they would receive money for their shares whether partition proceeded or not and would therefore not be unduly affected by the partition. The court adjourned while detailed partition proposals where drawn up. Later however, another judge (the original judge was on leave) reversed the interim decision, holding that there was not sufficient support as the support of the sellers was the only thing which could be considered, since the applicants support for their own application could not be considered. The non-sellers who had been denied a partition order appealed.

Held: an order made without notice is contrary to natural justice and outside the jurisdiction of the court (Jennings v Scott (1984) HC Rotorua A183/79 followed). The lower court, having made an interim decision on partition, had breached natural justice in not giving parties notice that it would be re-examining the issue and an opportunity for those affected to be heard.

As to what constitutes a sufficient degree of support in terms of s288(2)(b), that subsection provides that the court must be satisfied “there is a sufficient degree of support for the application among the owners having regard to the nature and importance of the matter.” There were 3 elements to this:

• there must be “sufficient support” ie support needs to outweigh opposition before partition can proceed;

• support is from “among the owners” which includes those owners making the application and any other owners. Support is for the application not the applicants;

• the court must also have regard to the “nature and importance of the matter” which means looking at the totality of the application in each case and at the Preamble and ss2 and 17.

The appellate court suggested the following guideline:

Without limiting the general discretion conferred upon the Court by Section 288, the Court may decline an application for partition if the Court is satisfied that the partition would not be consistent with the objects of the Act having regard to the following matters:

(a) In all cases:

(i) The historical importance of the land to the partitioning owners or any of the owners and their historical connection with it;

(ii) The nature of the land including its location and zoning and its suitability for utilisation by the partitioning owners or any of the owners;

(iii) The question of whether or not the owners have had an adequate opportunity to give the proposed partition proper consideration;

(iv) The retention of Mäori land in the hands of its owners, their whänau and their hapü;

(v) The occupation, development and utilisation of the land for the benefit of the owners, their whänau and their hapü.

(b) In the case of a partition that is opposed by some of the owners:

(i) The respective interests of the supporting and opposing owners including the applicants;

(ii) The number of opposing owners compared to the number of supporting owners including the applicants.

Applying those guidelines to this case, those opposing the partition held 75% of the shares in the block, although those supporting partition numbered 72% of the owners. Those selling would not be affected as they would receive the same amount of the sale money. Those favouring partition wanted Mäori land retained for non-sellers. There was an urupa and historic spring in the area for which partition was sought. The area being partitioned was suitable for the use for which it was sought.

Accordingly, allowing the partition would support the overriding objective of the 1993 Act, retention of Mäori land in Mäori ownership. The sufficiency of support must be viewed with that in mind and therefore the number of owners in support of partition was just as important as the shareholding which opposed it.

The lower court was wrong in its second decision in deciding that applicants for partition could not support their own application, but correct in its first decision, that the support of the sellers was less important because they would not be affected by partition - although the views of the sellers should not be given no weight at all, but rather a lesser weight. There was therefore sufficient support for partition and the appeal should succeed.

When courts receive an application for confirmation and it is evident that non-sellers wish to remain on the land, the judge should “lean towards” accommodating the non-sellers because of the emphasis on retention of Mäori land in the Preamble and s2. This is notwithstanding that the 1993 Act does not repeat s320/1953 which provided for an adjournment of confirmation proceedings to allow non-sellers to seek partition orders.

In fact, where there are owners who have not voted for a sale (including interests of deceased owners) the court has “an obligation to avoid compulsorily divesting these owners of their land.” There might be situations however where it was impractical to partition out the non-sellers’ interests - which could well decide whether confirmation was refused or given.

As non-sellers only wish to maintain the status quo they should not be burdened with partition or subdivisional costs. These should be borne by the sellers or the purchaser.

[ed: this decision is consistent with the similar finding in In Re Brown and Kairakau 2C5B Block 11 Takitimu ACMB 143, reported in last month’s Review]

Waitangi Tribunal

Tribunal membership

Emarina Manuel died on the 16 August. She was a member of the tribunal sitting which heard the Ngai Tahu land and fisheries claims (Wai 27).

In a direction of 8 August 1996 it was noted that Georgina Te Heuheu will not be available for further sittings of the Wai 145 (Wellington Tenths) hearings due to the forthcoming election.

 

 

Ike Hunter on behalf of Ngäti Tama Whiti concerning Kaimanawa Wild Horses

Wai 588, direction of 12 July 1996. Deputy CJ Smith, Deputy Chairperson

The tribunal declined an application for an urgent hearing on the matter of a proposed Crown cull of 250-300 of an estimated 1800 horses. The Crown intention to curtail damage to flora and maintain the horses at a sustainable level was an exercise of kawanatanga intended for the benefit of the country as a whole. It was noted that the first horse introduced to the central North Island was a present to the son of Te Heuheu Tukino in 1844. Sir Donald McLean released a stallion and some mares on the Kaimanawa Plains in the 1870s.

Other Jurisdictions

NZ Guardian Trust Co Ltd as trustee of Sir Henry Kelliher Charitable Trust v Te Maati Mohi Wiremu Manukau and Eru Manukau and Others as trustees of the Manukau Mäori Trust Board

CP 331/95 HC Auckland 24 July 1996 Tompkins J

The plaintiffs were registered proprietors of Puketutu Island in the Manukau harbour. The island was claimed by two groups before the Waitangi Tribunal who alleged that a Crown grant of the land in 1948 was invalid, affecting the subsequent transfer under which the plaintiffs obtained the land. The plaintiffs sought a declaration under s3 of the Declaratory Judgments Act 1908 as to the effect of the Crown grant.

Held: The island had been purchased directly from Mäori in 1845 by a private individual. He had on-sold to another private individual, who had obtained a pre-emption certificate. This was followed in 1848 by a Crown grant confirming the earlier transactions and granting the land to the holder of the pre-emption certificate. Subsequently the land had passed through many hands until in 1971 it was transferred to the present plaintiffs.

Title to the land was protected from actions by Mäori by a series of statutes beginning in 1902, now embodied in s348 Te Ture Whenua Mäori Act 1993, which continued the effect of the Land Titles Protection Act 1908. The Crown grant could not therefore be attacked. In addition, s62 Land Transfer Act 1952 made the current title indefeasible and none of the exceptions to that section applied. Assets Co Ltd v Mere Roihi (1905) NZPCC 275, Boyd v Mayor of Wellington [1924] NZLR 1174 and Fraser v Walker [1967] NZLR 1069 cases confirmed this view. Indefeasibility has more recently been upheld in Housing Corporation v Mäori Trustee [1988] 2 NZLR 662, 678 and Registrar-General of Land v Marshall [1995] 2 NZLR 189, 198. Further, even if the claims over the land were found to be well-founded, the Waitangi Tribunal is specifically barred by s6(4)A Treaty of Waitangi Act 1975 from making any recommendation for the return of private land to Mäori . The court is also entitled to take judicial notice of frequent statements by ministers of the Crown that under no circumstances will private land be taken to satisfy claims under the 1975 Act.

Accordingly, the court declared that ownership of Puketutu is derived from the Crown and held under a valid title under the Land Transfer Act, which could not be challenged by the Waitangi Tribunal or the Mäori Land Court (additional declarations that the Waitangi Tribunal and Mäori Land Court under their legislation lack jurisdiction to affect the plaintiff’s ownership of the land were not therefore required). No finding could be made on the historical evidence presented. The Waitangi Tribunal was the appropriate forum to consider that material.

 

 

EM Uruamo & Others v Carter Holt Harvey Ltd & Pouhere Taonga/The New Zealand Historic Places Trust

A43/96, 24 May 1996. Bollard J

CCH had plans to build a two lane forestry road across private land. The plaintiffs, tangata whenua of the area, challenged a decision of the Historic Places Trust permitting CCH to modify an archaeological site and a decision of the territorial authority permitting construction of the forestry road as a controlled activity.

Held: the tribunal lacked jurisdiction to make an enforcement order against the HPT. Any challenge to its decision is an administrative law matter for the High Court. It was alleged that the HPT should have consulted a local marae rather than a representative Mäori body before consenting to the modification. Some local Mäori no longer regarded the representative body as properly representative of them. This pointed to the importance of Mäori assisting in identification of those who should be consulted, and those doing the consulting to ensure that representative bodies had necessary authority.

As to the permission to build the forestry road, a non-notified subdivisional consent had been given by the local council in 1993 for an accessway to serve the subdivision alone, not the forest adjacent to it. Protective covenants for several archaeological sites were included in that consent, with local Mäori agreeable to this. CCH and the private land owners then sought and obtained a variation to the subdivisional consent from the local council allowing for a two way access route across the subdivision. This variation was also non-notified and several conditions added, but archaeological and tangata whenua issues were not re-addressed. Much more evidence was now available about the possible impact of the forestry road. There was therefore justification in making an interim order halting its construction until there had been further discussion with local Mäori. Councils need to be ‘astute’ in recognising when consultation is likely to be an issue, and in cases of uncertainty should err on the positive side and consult through a qualified council officer or other professional. See Ngätiwai Trust Board v Whangarei District Council [1994] NZRMA 269.

 

 

Tautari v Northland Regional Council

A55/96, 24 June 1996, Sheppard J

This was an appeal against the grant of resource consents for a dairy farm irrigation dam. The appellant represented the interests of Mäori living in the locality, and along a stream downstream from the dam site. She claimed that these had not been adequately consulted and that the proposed dam and irrigation would adversely affect the environment in several respects of interest to these Mäori. It was submitted that the regional council had failed to consult tangata whenua at a sufficiently early stage, had misunderstood the ethic of kaitiakitanga and tangata whenua had not been sufficiently involved in research relating to the sustainable management of water levels and fish species, and that little regard had been given to the continued extraction of food for traditional hospitality.

Held: the applicants for the resource consent had visited the local marae, invited people to inspect the dam site, been willing to provide technical information, had examined alternatives, made suggestions to mitigate any potential adverse effects, suggested means to enhance the natural environment and had agreed to install a fish pass. There had been meetings at 2 marae which council staff had attended.

The RMA does not specifically require consultation with tangata whenua by applicants for resource consents, but it is recognised good practice that applicants consult tangata whenua where matters referred to in s6(e) (relationship of Mäori to ancestral lands, water, sites, waahi tapu, taonga) or 7(a) (kaitiakitanga) may be involved. The applicants had taken considerable steps to identify the tangata whenua and consult them about the proposal, and so had done all that could be reasonably expected of them, including having regard to Treaty principles (s8 RMA).

Mangakahia Mäori Komiti v Northland Regional Council and Dsyart and others (A107/95) demonstrates that the council, as a quasi-judicial deciding body which must avoid bias, had properly left it to its officials to consult with the local iwi and report iwi concerns back to the council. The appellant and the iwi had the opportunity to state their case to the council hearings committee and also, by virtue of the appeal, to raise concerns at a complete rehearing of the application. The fact that the local people wished to have been consulted earlier did not provide a basis for a finding that there was inadequate consultation.

Under s104(1) RMA the tribunal must have regard to the actual and potential effects on the environment and any relevant planning instruments. The local iwi had a relationship with the affected waterway as a traditional source of food and for recreation and that there was a sense of kaitiakitanga responsibility for it. The evidence did not however establish that the applicant’s proposal would affect the value of the waterway to the iwi. There was no sound basis for fear of dam failure, nor for concern that food sources in the stream would be altered, or that the water flow would be significantly altered, or that native bush downstream from the dam would be affected. There was no evidence that there were waahi tapu that would be affected by the dam. The applicants consultation was adequate, and the regional council proposed to involve local Mäori in monitoring compliance with the conditions of the consent. Consequently, the relationship of local Mäori with the waterway, including their role as kaitiaki, did not weigh against the grant of the resource consents.

[ed: the decision is interesting for several views on water which were advanced. It was said that water is a taonga, and has a mauri which is considered in using any water. One uncontested view was that “the mauri of a stream can be defiled by pollution, but not by the taking of water to sustain life”. Whether ‘sustaining life’ extended to dairy farming operations was not argued in the judgment. One witness noted that local Mäori had constructed dams themselves in the past, but he said this was for logging work to feed their families, and the dams had later been demolished.]

In Parliament

Rating Powers Amendment Act 1996

No 87

Section 10 amends the Rating Powers Act 1988 (adding new ss(4A) to s186) to provide that the Mäori Land Court may make charging orders over Mäori freehold land if satisfied that rates liability exists.

[ed: Since the decision of Carter J in Re Tauranga District Council & Ohuki No 1C2 Block 52 Tauranga MB 97 in August 1993 (see Mäori LR December 1993) there had been doubt whether the MLC court had the power to make charging orders for rates under the 1988 Act.]

 

 

Law Reform (Miscellaneous Provisions) Act (No 5) 1996

Section 204 amends s77(2) of the Electoral Act 1993 to extend from 2 months to 4 months the period which the Minister of Justice may specify as the Mäori option period (the period in which Mäori may exercise the option of being registered on the Mäori or General electoral rolls). The amendment was a last minute matter, introduced in a Supplementary Order Paper. It was passed on the 22 August 1996.

Mäori Reserved Land Amendment Bill 1996

No 218-1

This bill lists (in the 3rd schedule) over 1300 leases of Mäori reserved land and deems them subject to the bill. For every lease listed a new set of implied terms will apply. The implied terms essentially provide that:

• 3 years from the passing of the bill, market rents will be phased in over 4 years, with 7 year rent reviews for most leases;

• Lessees may not dispose of their interests (by sale or will or intestacy) without giving a right of first refusal to the Mäori lessors. Thirty days written notice is required, and the lessor must respond in 10 days. An important exception is where the lessee is selling or disposing to a “specified assignee”—a class including an existing lessee of the same lease, a spouse (including de facto) or child of the existing lessee (meaning a lessee at the time the bill becomes law ie transfers beyond immediate spouse or children will trigger the right of first refusal for the Mäori lessors). If the lessor either declines to purchase or does not exercise the right of first refusal at the offered price, the lessee is free to sell at that or a higher price to anyone else.  However, if the lessee wishes to sell at a lower price than that originally offered to the lessor, the lessee must again give the lessor the right of first refusal to purchase at that price;

• The Mäori lessors may not sell their interest without giving first refusal to the lessee. An exception is a sale to persons coming within the preferred classes of alienees under Te Ture Whenua Mäori Act 1993. The same thirty days written notice and 10 day period for reply apply as for dispositions by lessees.

Lessors and lessees may, by agreement, amend or opt out of the new implied terms. Transfers or assignments by the lessees or lessors contrary to the new implied provisions are void, unless the party not making the transfer or assignment agrees in writing that the provisions may be dispensed with.

The list of leases in the bill can be changed by Order in Council. Using this list, District Land Registrars are to note on every lease and certificate of title that the modified terms of lease apply. Before registering any transfers of leases, the registrar must have a certificate from the solicitor acting for the transferor stating that the terms implied by this bill have been complied with. If the registrar, acting in good faith, fails to comply with these requirements however, neither the Crown nor the Registrar-General of Land will be liable.

As soon as it can be calculated, the Mäori lessors will be paid the difference over the next 21 years between the rent they currently get by statute and the rate they would get on the open market. Lessees will be paid the difference between the amount they would pay under the existing formula over the next 21 years and the new market rate they will be paying. A negotiating team consisting of representatives for the Crown, lessees organisations, individual lessees, lessors, and the Mäori Trustee, will resolve certain compensation issues, including a “market rent rate” and inflation rates for the compensation calculations.

Nothing in the bill is to affect the right of any Mäori to bring a claim under s6 of the Treaty of Waitangi Act 1975.

[ed: The government obviously wished to avoid any possibility of the compulsory removal of “those people in urban and residential leases in the Wellington suburb of Berhampore or bach owners in Kawhia” and others in the next 42-63 years, who could point out that they had very firm assurances when they purchased their leases that their titles would not be upset. The next generation however have a clear signal that they must make other arrangements. An intriguing point is that de facto spouses fall within the definition of  ‘spouse’ - a sign that the government now has a policy of fully protecting the property rights of de facto spouses? The bill allows parties to opt out and make their own negotiated settlements. The provisions for compensation to be paid for rent review changes (estimated to exceed $40 million) will hopefully provide some cash for negotiations on both sides.

The government has stressed that this bill is not a ‘Treaty settlement’ (Dominion 22 August 1996). It does not contain any preamble describing the injustice it seeks to remedy - the explanatory note refers to the ‘inequities’ of the Mäori Reserved Land Act 1955 and the fact that “the owners do not enjoy the same rights as other property owners in New Zealand”. Nevertheless, some general statement in the preamble about the historic background to the bill might help courts and others in the future when interpreting the measure. Claims before the Waitangi Tribunal are not ruled out by the bill. The government has consistently said that Mäori should go to the tribunal to argue about compensation for possible Treaty  breaches by the Crown in its overall administration of the reserved lands. This also means that a claim against the Act itself will be possible.

An Independent Review Panel (Dr T Boyd, RW Davidson, RG Calvert) is to provide an opinion on compensation aspects of the legislation by 29 November 1996.]

 

 

Ngai Tahu (Pounamu Vesting) Bill 1996

No 212-1

This bill proposes to vest in Te Runanga o Ngai Tahu all pounamu (greenstone) within the “Takiwä of Ngai Tahu Whanui” (the tribal territory described in Te Runanga o Ngai Tahu Act 1996) and in the territorial sea, seabed and subsoil adjacent to the takiwä. The pounamu presently belongs to the Crown.

Existing privileges are not affected, except that any royalties presently payable to the Crown will be paid by the Crown over to Ngai Tahu. Outstanding applications to exploit pounamu would not be granted.

The bill also provides a process of ministerial consent (as opposed to an access agreement) for those wanting access to Crown land to exploit minerals not owned by the Crown. Among other matters, the minister must consider the interests of the owner of the mineral in obtaining access to it. This follows the regime for access for those with permits under the Crown Minerals Act 1991.

The bill follows a “Deed of ‘On Account’ Settlement” signed with Ngai Tahu on 14 June 1996, which dealt, among other matters, with pounamu.

[ed: applicants to exploit greenstone under the Crown Minerals Act 1991 and Mining Act 1971 affected by the bill are to be reimbursed for some of their costs. Once the bill is passed, any person wishing to exploit pounamu will deal with Te Runanga o Ngai Tahu. Other matters dealt with in the  ‘on account’ deed are a $10 million one off payment, the vesting of Tataetapu lagoon, in North Canterbury, in Ngai Tahu, subject to a public accessway, re-establishment of the Waikuku Beach Reserve under a trust run by Ngai Tahu and the Waimakariri District Council and provision of $300,000 to preserve wetlands there (Press Release 17 June 1996).]