April 2013 – Contents

High Court

The consequences of not responding to consultative efforts - Greenpeace of New Zealand Inc v The Minister of Energy and Resources [2012] NZHC 1422

Failure to establish trust obligations at Wakatū - Proprietors of Wakatū Inc v Attorney General [2012] NZHC 1461

Māori Appellate Court

Trusts – partial termination - lower Court did not have regard to relevant considerations - Larkins v Kaitaia – Waihou Hutoia D2A Block [2013] 2013 Maori Appellate Court MB 159

Māori Land Court

Trusts - standing - applications framed against responsible trustee not former trustees - Clarke v Gray – Poukawa 9G and others (2013) 23 Takitimu MB 92

Withdrawal of an application to the Court - Dovey Property Holdings Limited – Orokawa 3B Part Lot 8 DP41892 (2013) 57 Taitokerau MB 75

Waitangi Tribunal

Tribunal declines binding recommendations for Ngāti Kahu - The Ngāti Kahu Remedies Report (Wai 45, 2013)

Tribunal to inquire urgently into availability of legal aid for Waitangi Tribunal claims - The Latimer and Piripi Claim (Wai 2374, #2.5.18)

Disposal of Waitangi Tribunal records - proposal for consultation

Law reform

Review of Te Ture Whenua Māori Act 1993 – discussion document March 2013

Print Version

Download the Māori Law Review April 2013 (493 KB PDF).


The consequences of not responding to consultative efforts

Greenpeace of New Zealand Inc v The Minister of Energy and Resources

[2012] NZHC 1422

22 June 2012

The High Court dismissed an application by Greenpeace and Te Rūnanga o Te Whānau-ā-Apanui seeking judicial review of decisions by the Minister of Energy to grant exploration rights in the Raukumara Basin under the Crown’s minerals programme for petroleum.

Download Greenpeace of New Zealand Inc v The Minister of Energy and Resources (369KB PDF) here. read more

Trusts – partial termination – lower Court did not have regard to relevant considerations – Larkins

Larkins v Kaitaia – Waihou Hutoia D2A Block

[2013] 2013 Maori Appellate Court MB 159 (2013 APPEAL 159)

9 April 2013

Appeal allowed. The lower Court failed to take into account relevant considerations and had incorrectly held that there must be unanimous consent to an application for partial termination of a trust.

Download Larkins v Kaitaia – Waihou Hutoia D2A Block here (851 KB PDF).

Overview and result

Trusts – partial termination - lower Court did not have regard to relevant considerations
Date9 April 2013
CaseLarkins v Kaitaia – Waihou Hutoia D2A Block (851 KB PDF)
Citation[2013] 2013 Maori Appellate Court MB 159 (2013 APPEAL 159)
CourtMāori Appellate Court
Judge(s)Deputy Chief Judge Fox, Judges Harvey and Reeves
Earlier/later decisions6 Taitokerau MB 139 (6 TTK 139); Larkins v Hurae and Ngawaiata Whānau Trust - Waihou Hutoia D2A (2015) 94 Taitokerau MB 120 (94 TTK 120)
Legislation citedTe Ture Whenua Māori Act 1993 ss 2, 17, 241
Cases citedRata – Te Rongoa A7 (1991) 13 Aotea Appellate MB 228 (13 WGAP 228);  Morgan - Tautuku Block XIII and s 13 (1998) 83 South Island MB 90 (83 SI 90); Lake v Taylor- Ngārara West B3B (2003) 134 Aotea MB 20 (134 AOT 20)
Overview and resultAppeal allowed. The lower Court failed to take into account relevant considerations and had incorrectly held that there must be unanimous consent to an application for partial termination of trust. The Appellate Court laid out considerations that must be given regard to when considering an application for partial termination and the lower Court was directed to conduct a rehearing.

Background

Moa Larkins applied for a partial termination of the Hurae and Ngawaitata Whānau Trust so that he could gift the interests he had vested in the trust to his children. The application was opposed by the trustees and other beneficiaries. They contended that the interests should remain for the benefit of the whole whānau and that Mr Larkins had not provided any reasonable grounds for the application other than simply changing his mind.

The application was dismissed as Mr Larkins had failed to attract the consent of all affected parties and, further, the Judge was concerned that other whānau members would have likely been influenced by Mr Larkin’s decision to vest his shares and thus a partial termination may “sour the aroha of their vesting”.

Discussion

Dealing with the lower Court's point that unanimous support is required for a partial termination, the Court considered that “while Parliament has provided for the Māori Land Court to ascertain the wishes of the owners, and in certain circumstances it has required that it assess sufficiency of support or it has imposed a specific percentage of ownership support, it has never required unanimous support”. Further, “Nothing in the Preamble, s 2 or s 17 changes that position. Accordingly, it would be inconsistent with the legislative scheme to find otherwise. Thus there can be no requirement for unanimous owner or beneficiary support for the termination of a trust under s 241” (at [22]).

After considering relevant authorities, the Court found that three important considerations emerge in relation to an application for partial termination of a trust: (at [27])

(a) A change of mind is usually insufficient as a ground for termination unless there is an absence of opposition;

(b) Termination should be refused where it is likely to result in detriment or create unreasonable disadvantage to affected parties; and

(c) Evidence of a trust failing to adhere to the terms of trust and core accountabilities may be sufficient grounds for termination.

The Court considered there was nothing in the Māori Land Court record to indicate the Judge turned his mind to these factors. He had therefore failed to take into account relevant considerations. Further, while the view of those affected is important, it is also important to consider the impact of the application on them. Here there would be no material detriment to any other party. The Court also noted that the Judge’s findings about future relations between Mr Larkins and his siblings, the ongoing viability of the trust, and the risk of souring the “aroha” of the original gift and intention were made without sufficient evidence.

Result

Appeal allowed. The lower Court was directed to conduct a rehearing and consider: (at [30])

(a) the Preamble, s 2, and other matters listed in s 17, including the extent to which partial termination achieves better retention, use, development and control of the land in accordance with the fundamental principles and purposes of the legislation;

(b) the purposes of the whānau trust;

(c) the extent of beneficiary and trustee consent;

(d) the impact of any termination on the remaining beneficiaries and the trust; and

(e) any evidence of dysfunction by the whānau trustees to justify the Māori Land Court’s intervention.

Failure to establish enforceable trust or equitable obligations owed by the Crown over Māori interests in land at Wakatū

Proprietors of Wakatū Inc v Attorney General

[2012] NZHC 1461

26 June 2012

The High Court dismissed an application by Wakatū Incorporation (“Wakatū”) for a declaration that the Crown had breached duties owed as trustee or in equity relating to land subject to the Nelson Tenths Trust. The decision is under appeal.

Download Proprietors of Wakatū Inc v Attorney General [2012] NZHC 1461 here (1.07 MB PDF) here. read more

Trusts – standing – applications framed against responsible trustee not former trustees – Clarke

Clarke v Gray – Poukawa 9G and others

Māori Land Court (2013) 23 Takitimu MB 92 (23 TKT 92)

22 April 2013

Decision as to whether the applicant has standing to bring applications against the trust. The Court there was standing in terms of the applications filed.

Download Clarke v Gray – Poukawa 9G and others (168 KB PDF) here. read more

Withdrawal of an application to the Court – Dovey Property Holdings Limited

Dovey Property Holdings Limited – Orokawa 3B Part Lot 8 DP41892

Māori Land Court (2013) 57 Taitokerau MB 75

5 April 2013

Withdrawal of an application to the Court. Proper grounds for withdrawal.

Download Dovey Property Holdings Limited – Orokawa 3B Part Lot 8 DP41892 here (584 KB PDF).

read more

Tribunal declines binding recommendations for Ngāti Kahu

The Ngāti Kahu Remedies Report (pre-publication edition)

Waitangi Tribunal (Wai 45, 2013)

4 February 2013

Karen Feint, Barrister, Thorndon Chambers, critiques the Waitangi Tribunal’s Ngāti Kahu Remedies Report.

The Waitangi Tribunal has declined to exercise its powers to compel the Crown to transfer property to Ngāti Kahu to remedy the iwi’s well-founded historical Treaty claims.  While the Tribunal found that redress for the wrongful dispossession of 70 per cent of Ngāti Kahu lands by 1865 is long overdue, the circumstances of wider Treaty settlement negotiations in the far north region did not warrant the use of its binding powers.

Download The Ngāti Kahu Remedies Report here. read more

Tribunal to inquire urgently into availability of legal aid for Waitangi Tribunal claims

The Latimer and Piripi Claim - memorandum-directions

Waitangi Tribunal (Wai 2374, #2.5.18)

19 March 2013

The Waitangi Tribunal will inquire urgently into the availability and administration of legal aid for claims made to it.

Download The Latimer and Piripi Claim - memorandum-directions Wai 2374, #2.5.18 here (422 KB PDF). read more

Disposal of Waitangi Tribunal records – proposal for consultation

Waitangi Tribunal Retention and Disposal Schedule, March 2013

Professor David V Williams, University of Auckland, comments on the Waitangi Tribunal's proposal to retain some of its business records and destroy other records. The  Waitangi Tribunal is currently seeking feedback on its proposed approach to records retention by Friday 26 April 2013.

Download the Tribunal's draft appraisal report (PDF, 612 KB), draft retention and disposal schedule (PDF,  70KB)  and guide to making comments on disposal recommendations here. read more

Review of Te Ture Whenua Māori Act 1993 – discussion document March 2013

The panel of experts reviewing Te Ture Whenua Māori Act 1993 has released a discussion document and invited submissions by 17 May 2013. The review panel proposes five integrated measures that it considers will improve the likelihood of Māori land being used more effectively.

  • Utilisation of Māori land should be able to be determined by a majority of engaged owners;
  • All Māori land should be capable of utilisation and effective administration;
  • Māori land should have effective, fit for purpose, governance;
  • There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputes;
  • Excessive fragmentation of Māori land should be discouraged.

Download the panel's discussion document here (PDF 1.2 MB). read more