December 2011 Hakihea – Contents

Editorial

2011 general election and government formation

Māori Appellate Court

2011 Māori Appellate Court judgments - index

Māori Land Court

2011 Māori Land Court judgments - index

Changing the status of Māori freehold land - Warin and Jensen (2011) 30 TTK 37

Trusts - review - Māori Trustee appointed responsible trustee - Māori Trustee - Huriwai Family Trust (2011) 13 Takitimu MB 17

Trusts – trustee appointment – insufficient evidence to determine nominee acceptable - Fenwick - Whakapoungakau 24 (2011) 45 Waiariki MB 252

Trusts – trustee removal - Māori Trustee retained with owner support - Ransfield - Poukawa 9E2 (2011) 13 Takitimu MB 102

Legislation

Treaty Settlement Legislation before the House of Representatives in 2011

Print Version

Download the Māori Law Review December 2011 (352 KB PDF).


2011 Māori Appellate Court judgments – index

This table lists the 2011 judgments of the Māori Appellate Court and contains links to reports about the decisions. read more

2011 Māori Land Court judgments – index

This table lists the 2011 judgments of the Māori Land Court and contains links to reports about the decisions. read more

2011 General Election and government formation

50th Parliament

The Electoral Commission released the final results of the 26 November general election on 10 December 2011.

read more

Status of land – changing the status of Māori freehold land – Warin and Jensen (2011) 30 TTK 37

Warin and Jensen, re Whangaruru Whakaturia 4 Lot 32 DP 126453 (Part)

(2011) 30 Taitokerau MB 37 (30 TTK 37)

14 November 2011

This decision addresses the statutory criteria for considering whether land can be managed or utilised more effectively as General land than Māori land. The change of status application was refused. The land at issue remains Māori freehold land.

Download Warin and Jensen, re Whangaruru Whakaturia 4 Lot 32 DP 126453 (Part) (2011) 30 Taitokerau MB 37 (30 TTK 37) here (250KB PDF). read more

Trusts – review – Māori Trustee appointed responsible trustee – Māori Trustee

Māori Trustee - Huriwai Family Trust 

Māori Land Court (2011) 13 Takitimu MB 17 (13 TKT 17)

8 December 2011

Application for a review of trust. A meeting of owners was held where new trustees were elected. Mr Nuku argued that if the trustees were to be replaced then the Māori Trustee should be appointed for a period. The Court considered that the most practical outcome was for the Maōri Trustee to be appointed as responsible trustee and for the owners elected at the meeting to be appointed advisory trustees.

Download Māori Trustee - Huriwai Family Trust (91 KB PDF) here. read more

Trusts – trustee appointment – insufficient evidence to determine nominee acceptable – Fenwick

Fenwick - Whakapoungakau 24

Māori Land Court (2011) 45 Waiariki MB 252 (45 WAR 252)

23 December 2011

Applications to appoint two trustees following a meeting of owners. The notice for the meeting stated that a single replacement trustee was required. The Court considered there was insufficient evidence to confirm whether Mr Lloyd, the proposed additional trustee, was broadly acceptable to the beneficiaries.

Download Fenwick - Whakapoungakau 24 (137 KB PDF) here. read more

Trusts – trustee removal – Māori Trustee retained with owner support – Ransfield

Ransfield - Poukawa 9E2

Māori Land Court (2011) 13 Takitimu MB 102 (13 TKT 102)

12 December 2011

The applicant sought to have the Māori Trustee removed as responsible trustee. Given the other owners continued to support the retention of the Māori Trustee as responsible trustee, the Court could see no reason to disturb that arrangement.

Download Ransfield - Poukawa 9E2 (127 KB PDF) here. read more

Treaty Settlement Legislation before the House of Representatives in 2011

The Whanganui Iwi (Whanganui (Kaitoke) Prison and Northern Part of Whanganui Forest) On-account Settlement Act 2011 was the only Treaty Settlement Bill enacted in 2011. However, a number of settlement bills are currently before the House.  Carwyn Jones reviews Treaty Settlement legislation in 2011. read more

November 2011 Contents

Court of Appeal

Customary law as part of the common law – burial; executor’s duties - Takamore v Clarke and Anor [2011] NZCA 587

High Court

Road at Papaaroha – possession orders to remove occupiers - Henare and others v Thames Coromandel District Council High Court, Hamilton (CIV-2010-419-1487)

Māori Appellate Court

Representatives for Ngā Ruahine - Pue and Manuiririrangi v Ngā Hapū o Ngā Ruahine Iwi Inc (2011 Appeal MB 577)

Māori Land Court

Injunction – order sought was a  blunt instrument and not appropriate – Trustees of Horina Nepia and Te Hiwi Piahana Whānau Trust v Tahamata Incorporation - Tahamata Incorporation (2011) 274 Aotea MB 203

Status of landSavage-Pickett - Section 15B3 Block VIII Tairua Survey District (2011) 30 Waikato-Maniapoto MB 201

Trusts - trustee appointment - no evidence to raise doubt about those elected - Deputy Registrar - Pohokura 3B - Ahu Whenua Trust (2011) 44 Waiariki MB 10

Trusts - review of trust and appointment of replacement trustees – appointment of professional trustee necessary due to extreme dysfunction – Tawhai - Whakatere Ki Koranui Trust and Waima North A22 (2011) 29 Taitokerau MB 212

Legislation

New rules for the Māori Land Court - Māori Land Court Rules 2011/Ngā Ture O Te Kooti Whenua Māori 2011 (2011/374)

Print Version

Download Māori Law Review November 2011 here (532 KB PDF).


Customary law as part of the common law – burial; executor’s duties

Takamore v Clarke

Court of Appeal [2011] NZCA 587

23 November 2011

James Takamore died in Christchurch in 2007 having lived most of his adult life there without participating actively in the affairs and customs of his iwi, Whakatohea and Ngāi Tūhoe. After he died, his whanaunga came to claim (tono) his body. Before the matter was resolved by discussions, relatives of the deceased took the tūpāpaku to Opotiki where a tangi (funeral) was held nearby and burial took place in a private urupa (cemetery).

Download Takamore v Clarke [2011] NZCA 587 here (PDF 695 KB). read more

Road at Papaaroha – possession orders to remove occupiers – Henare v Thames Coromandel District Council

Henare v Thames Coromandel District Council

High Court, Hamilton (CIV-2010-419-1487)

29 September and 11 November 2011

Thames Coromandel District Council obtained possession orders from the District Court in October 2010 over an area of roadway leading to a beach at Papaaroha on the Coromandel Colville Road. The orders were sought to remove a group of persons occupying the site in support of their belief that the land remained Māori land.

Those in occupation vacated the land but appealed to the High Court. Miller J dismissed their appeal in September 2011.

The unsuccessful appellants then sought leave from the High Court to appeal to the Court of Appeal from that judgment. Miller J refused to grant the leave sought on 11 November 2011.

Download Henare v Thames Coromandel District Council (29 September 2011) and Henare v Thames Coromandel District Council (11 November 2011) here (248 KB PDF and 62 KB PDF). read more

Injunction – order sought was a blunt instrument and not appropriate – Trustees of Horina Nepia and Te Hiwi Piahana Whānau Trust v Tahamata Incorporation

Trustees of Horina Nepia and Te Hiwi Piahana Whānau Trust v Tahamata Incorporation - Tahamata Incorporation

Māori Land Court (2011) 274 Aotea MB 203 (274 AOT 203)

18 November 2011

Application for an injunction preventing the Tahamata Incorporation dealing with certain shares was adjourned on the basis that an injunction was not appropriate.

Download Trustees of Horina Nepia and Te Hiwi Piahana Whānau Trust v Tahamata Incorporation here (105 KB PDF). read more

Status of land – land determined to be General land – Savage-Pickett

Savage-Pickett - Section 15B3 Block VIII Tairua Survey District

Māori Land Court (2011) 30 Waikato-Maniapoto MB 201 (30 WMN 201)

9 November 2011

Determination that land is General land.  Certificates of title and computer freehold register did not indicate clearly what the status was.  The applicant sought a determination to enable correct succession to his mother's interest in the land, to update the ownership records and to allow beneficiaries and trustees to decide how best to use and develop the land.

Download Savage-Pickett - Section 15B3 Block VIII Tairua Survey District(2011) 30 Waikato-Maniapoto MB 201 (30 WMN 201) here (75 KB PDF). read more

Representatives for Ngā Ruahine – Pue and Manuiririrangi v Ngā Hapū o Ngā Ruahine Iwi Inc

Pue and Manuiririrangi v Ngā Hapū o Ngā Ruahine Iwi Inc

(2011) 2011 Māori Appellate Court MB 577 (2011 Appeal MB 577)

18 November 2011

The Māori Appellate Court dismissed an appeal against a decision dismissing an application for an order that the appellants were the most appropriate representatives for Ngā Ruahine for the purpose of Treaty settlement negotiations. There would be no utility in the proposed order about representation.

Download Pue and Manuiririrangi v Ngā Hapū o Ngā Ruahine Iwi Inc here (194 KB PDF). read more

Trusts – trustee appointment – no evidence to raise doubt about those elected – Deputy Registrar

Deputy Registrar - Pohokura 3B - Ahu Whenua Trust

Māori Land Court (2011) 44 Waiariki MB 10 (44 WAR 10)

18 November 2011

The Deputy Registrar filed an application for the enforcement of obligations. As part of the procedural process a meeting of owners was convened where two replacement trustees were elected. Concerns were expressed over the appointment of those chosen as replacements. The Court considered there was no evidence to raise sufficient doubt to impeach the applications for appointment.

Download Deputy Registrar - Pohokura 3B - Ahu Whenua Trust (140 KB PDF) here. read more

Review of trust and appointment of replacement trustees – appointment of professional trustee necessary due to extreme dysfunction – Tawhai

Tawhai - Whakatere Ki Koranui Trust and Waima North A22

Māori Land Court (2011) 29 Taitokerau MB 212 (29 TTK 212)

2 November 2011

Trust found to be dysfunctional and in financial difficulties. Had the trustees other than Mr Toia not already resigned then they would have been removed for breach of duty. Extreme situation required appointment of professional trustee.

Download Tawhai - Whakatere Ki Koranui Trust and Waima North A22 here (80 KB PDF). read more

New rules for the Māori Land Court – Māori Land Court Rules 2011/Ngā Ture O Te Kooti Whenua Māori 2011

Māori Land Court Rules 2011/Ngā Ture O Te Kooti Whenua Māori 2011 (2011/374)

A comprehensive review has led to new Māori Land Court rules that come into effect from 1 December 2011.

Download the Māori Land Court Rules 2011/Ngā Ture O Te Kooti Whenua Māori 2011 here (4 MB PDF). read more

October 2011 Contents

Māori Appellate Court

Trustees – failure to act prudently; removal upheldRameka v Hall - Opepe Farm Trust (2011) Māori Appellate Court MB 535 (2011 APPEAL 535)

Application to stay decision pending appealTito v Tito – Mangakahia 2B2 No 2A1A (2011) Māori Appellate Court MB 527 (2011 APPEAL 527)

Case stated - Court declined to hear the case stated as presently formulated - Jones v Wickliffe [2011] 2011 Maori Appellate Court MB 568 (2011 APPEAL 568)

Māori Land Court

Māori reservation – tangata whenua opposed creation of reservation – Gibbs v Te Runanga o Ngati Tama - Part Lot 2 & Lot 1 DP 4866 (TNK 4/901) and Setion 1 SO 10359 CT TNK 4/792 (2011) 274 Aotea MB 47


Trustees – failure to act prudently; removal upheld – Rameka v Hall

Rameka v Hall - Opepe Farm Trust

(2011) Māori Appellate Court MB 535 (2011 APPEAL 535)

Dismissal of appeal from removal as trustees. Removal upheld for failing to act as prudent trustees.

Download Rameka v Hall - Opepe Farm Trust (2011) Māori Appellate Court MB 535 here (222 KB PDF). read more

Application to stay decision pending appeal – Tito v Tito

Tito v Tito – Mangakahia 2B2 No 2A1A

Māori Appellate Court (2011) Māori Appellate Court MB 527

Application for a stay declined pending an appeal to the Court of Appeal.

Download Tito v Tito – Mangakahia 2B2 No 2A1A (162 KB PDF) here. read more

Māori reservation – tangata whenua opposed creation of reservation – Gibbs v Te Runanga o Ngati Tama

Gibbs v Te Runanga o Ngati Tama - Part Lot 2 & Lot 1 DP 4866 (TNK 4/901) and Setion 1 SO 10359 CT TNK 4/792

Māori Land Court (2011) 274 Aotea MB 47 (274 AOT 47)

26 October 2011

Application for the creation of a Māori reservation dismissed. The proposed beneficiary was the Gibbs whānau. The applicants were not tangata whenua and while the application was supported by some hapū, it was forcefully opposed by Ngāti Tama. The application may have succeeded if the beneficiaries were local iwi and hapū.

Download Gibbs v Te Runanga o Ngati Tama - Part Lot 2 & Lot 1 DP 4866 (TNK 4/901) and Setion 1 SO 10359 CT TNK 4/792 here (370 KB PDF). read more

Case stated – Court declined to hear the case stated as presently formulated – Jones

Jones v Wickliffe

[2011] 2011 Maori Appellate Court MB 568 (2011 APPEAL 568)

18 October 2011

Memorandum of the Court declining to hear the case stated as presently formulated.

Download Jones v Wickliffe (50 KB PDF) here. read more

September 2011 Mahuru – Contents

Māori Appellate Court

Costs - High Court scale used for comparison - Smith v Courtney - Ohuirua No 2 Block [2011] 2011 Maori Appellate Court MB 492

Māori Land Court

Injunction – cancellation of interim injunction – Te Pairi v Whakatane District Council - Omuriwaka and Tahora 2AD2 (2011) 38 Waiariki MB 116

Injunction – occupant ordered to vacate – Peters v Eruera - Kaikoura No 4 (2011) 40 Waiāriki MB 206

Occupation orders - granted after owners declined an ahu whenua trust - Mohinui 3B2B (2011) 27 Taitokerau MB 136

Status of land - application to change status to General land unnecessary, status already changed - Barrell - Lot 27 DP 40840 (2011) 27 Taitokerau MB 241

Trusts - appointment of trustees – interim independent trustee appointed – Gemmell - Mohaka A4 Trust (2011) 11 Takitimu MB 86

Costs - circumstances warranted payment from the Special Aid Fund - Rogers v Stirling - Taungaure No.2 (2011) 39 Waiariki MB 297

Costs - District Court scale used for comparison - Gardiner v Gorringe (2011) 28 Waikato Maniapoto MB 237

Costs – High Court scale used for comparison – Smith

Smith v Courtney - Ohuirua No 2 Block

[2011] 2011 Maori Appellate Court MB 492 (2011 APPEAL 492)

21 September 2011

The Appellate Court awarded costs to the respondents. The litigation was conducted in a manner similar to a civil appeal in the High Court. The High Court scale was used for guidance in reaching a fair costs award.

Download Smith v Courtney - Ohuirua No 2 Block (208 KB PDF) here. read more