September 2014 Mahuru – Contents

Supreme Court - Te Kōti Mana Nui

Customary title to waterwaysPaki v Attorney-General (No 2) [2014] NZSC 118 by Baden Vertongen

Customary title to waterways - Paki v Attorney-General (No 2) [2014] NZSC 118 - comment by Tom Bennion

Customary title to waterways - Paki v Attorney-General (No 2) [2014] NZSC 118 - further comment by Professor Richard Boast

High Court - Te Kōti Matua

Summary judgment application - succession - Mulder v Heke [2014] NZHC 2098

Māori Land Court - Te Kōti Whenua Māori

Injunctions – application adjourned so parties could try to resolve outstanding issues - Trustees of Maungatautari 4G Sec IV v Maungatautari Ecological Island Trust - Maungatautari No 4G Sec IV (2014) 86 Waikato Maniapoto MB 248 (86 TTK 248)

Chief Judge’s powers – determining the interests of justice – Riwai Mokena v Riwai Morgan Whānau Trust - Estate of Tamati Mokena [2014] Chief Judge’s MB 314

Māori reservations – creating a reservation in the face of a possible public works acquisition of land - Grace – Ngarara West A25B2A (2014) 317 Aotea MB 268

Māori reservations – land set aside as urupā – Graham - Parish of Komakorau Lot 240B 2 (2014) 80 Waikato Maniapoto MB 260

Trusts - appointment of replacement trustees - Pene-Stevens - Puhatikotiko 2C2B2 and 2D (2014) 41 Tairawhiti MB 219

Occupation orders - order declined where majority of trustees opposed application - Wairua - Maungaroa No.1 Section 2B Block (2014) 103 Waiariki MB 133

Occupation orders / partition - Court granted occupation order of its own motion - Matchitt - Te Kaha 65 (2014) 104 Waiariki MB 145

Occupation orders - order amended - Howell v Jaram - Omaio 43 Section 4 (2014) 104 Waiariki MB 73

Partition - cancellation – grounds satisfied to reconfigure titles - Thompson - Hauai Ahu Whenua Trust (2014) 87 Taitokerau MB 258 (87 TTK 258)

Costs - award made against former trustees - Hall v Opepe Farm Trust (2014) 104 Waiariki MB 54

Environment Court - Te Kōti Taiao

Public works - proposed taking not fair, sound or reasonably necessary - Grace v Minister for Land Information [2014] NZEnvC 82

Waitangi Tribunal - Te Rōpū Whakamana i te Tiriti o Waitangi

Waitangi Tribunal to inquire in mid-2015 into prohibition on prisoner votingWai 2472 - the Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim (Wai 2472, 2.5.3)

Indigenous Law Speaker Series 2014

Lex Aotearoa - Hon Justice Joseph Williams delivered the most recent of our 2014 lunchtime seminars on 21 August 2014 at the Faculty of Law, Victoria University of Wellington.

Māori Law Review news

Sir Edward Taihakurei Durie student essay competition 2014 - this competition is now open. Entries close on 1 October 2014.

Print version

Download the Māori Law Review September 2014 (615 KB PDF).


Customary title to waterways – Paki v Attorney-General (No 2) [2014] NZSC 118

Paki v Attorney-General (No 2)

Supreme Court of New Zealand Te Kōti Mana Nui [2014] NZSC 118

29 August 2014

Baden Vertongen reports on the Supreme Court’s decision dismissing a claim of breach of fiduciary duty in relation to a portion of the bed of the Waikato River, but giving much to reflect on in considering the possibility of customary title to waterways. Tom Bennion and Professor Richard Boast have also provided comments on the decision.

Download Paki & Ors v Attorney-General [2014] NZSC 118 here (860KB PDF). read more

Customary title to waterways – Paki v Attorney-General (No 2) [2014] NZSC 118 – comment

Paki v Attorney-General (No 2)

Supreme Court of New Zealand Te Kōti Mana Nui [2014] NZSC 118

29 August 2014

Tom Bennion comments on potential impacts on customary title to waterways resulting from the Supreme Court's decision. Baden Vertongen and Professor Richard Boast also discuss the decision.

Download Paki v Attorney-General [2014] NZSC 118 here (860 KB PDF). read more

Customary title to waterways – Paki v Attorney-General (No 2) [2014] NZSC 118 – further comment

Paki v Attorney-General (No 2)

Supreme Court of New Zealand Te Kōti Mana Nui [2014] NZSC 118

29 August 2014

Professor Richard Boast provides further comments on the Supreme Court's decisions in Paki (No 1) and Paki (No 2).

See also Baden Vertongen's article and Tom Bennion's comments on Paki (No 2).

Download Paki v Attorney-General [2014] NZSC 118 here (860 KB PDF). read more

Summary judgment application – succession – Mulder v Heke

Mulder v Heke

High Court [2014] NZHC 2098

3 September 2014

Unsuccessful summary judgment application. The plaintiff claimed that the deceased, represented by the first defendant, was not the legal child of her adoptive mother who died intestate. There was conflicting evidence but the Court held that there was an arguable defence to the plaintiff’s claims.

Download Mulder v Heke here (93 KB PDF). read more

Chief Judge’s powers – determining the interests of justice – Riwai Mokena v Riwai Morgan Whānau Trust

Riwai Mokena v Riwai Morgan Whānau Trust - Estate of Tamati Mokena

Māori Land Court [2014] Chief Judge’s MB 314 (2014 CJ 314)

1 July 2014

Application to amend a succession order made in 1950 relating to the interests of Tamati Mokena dismissed. The order complained of had allowed a whāngai child to succeed to Tamati's interests, contrary to law at the time. The Chief Judge determined that it would not be in the interests of justice to amend the order. Determination of what is in the interests of justice requires consideration of the rights of the parties, the adversity suffered by each, as well as matters of policy and the intended effect of legislation.

Download Riwai Mokena v Riwai Morgan Whānau Trust - Estate of Tamati Mokena here (183 KB PDF). read more

Māori reservations – creating a reservation in the face of a possible public works acquisition of land – Grace

Grace – Ngarara West A25B2A

Māori Land Court (2014) 317 Aotea MB 268

27 March 2014

An application by Mrs Patricia Grace was granted to recommend that her land at Waikanae be set apart as a Māori reservation for the benefit of the descendants of Wiremu Parata Te Kakakura (Wi Parata) as a place of cultural and historical significance and as a wāhi tapu, being a place of special significance according to tikanga Māori. The decision is significant beyond its application of the law for establishing Māori reservations. This is because part of the land at issue has been subject to proposals that it be acquired for roading purposes (the Kāpiti Expressway project).

Download Grace – Ngarara West A25B2A here (268 KB PDF). read more

Māori reservation – land set aside as urupā – Graham

Graham - Parish of Komakorau Lot 240B 2

Māori Land Court (2014) 80 Waikato Maniapoto MB 260 (80 WMN 260)

2 July 2014

Māori freehold land was set aside as a Māori reservation for the purpose of an urupā.  Strict conditions were imposed to mitigate the concerns of neighbours and the Waikato District Council.

Download Graham - Parish of Komakorau Lot 240B 2  here (186 KB PDF). read more

Public works – proposed taking not fair, sound or reasonably necessary – Grace

Grace v Minister for Land Information

Environment Court [2014] NZEnvC 82

8 April 2014

The Environment Court decided that compulsory acquisition of Māori freehold land (owned by Mrs Patricia Grace but recently gazetted as a Māori reservation) cannot be supported because the proposed taking is not fair, sound and reasonably necessary as required by s 24(7)(d) of the Public Works Act 1981.

Download Grace v Minister for Land Information [2014] NZEnvC 82 here. read more

Trusts – appointment of replacement trustees – Pene-Stevens

Pene-Stevens - Puhatikotiko 2C2B2 and 2D

Māori Land Court (2014) 41 Tairawhiti MB 219 (41 TRW 219)

18 August 2014

Applications for review of trust and replacement of trustees. In deciding whether to appoint someone as a trustee the Court considered the individual’s abilities, experience and knowledge; whether they were broadly acceptable to the owners; whether they were able to whakapapa to the land; and, whether their appointment would result in too many people from one major whānau being appointed as trustees.

Download Pene-Stevens - Puhatikotiko 2C2B2 and 2D (186 KB PDF) here. read more

Injunction – application adjourned so parties could try to resolve outstanding issues – Trustees of Maungatautari 4G Sec IV

Trustees of Maungatautari 4G Sec IV v Maungatautari Ecological Island Trust - Maungatautari No 4G Sec IV

Māori Land Court (2014) 86 Waikato Maniapoto MB 248 (86 TTK 248)

24 September 2014

Application for an interim injunction. The Court considered that an interim injunction was not appropriate at this stage. The application was adjourned so that the parties could attempt to resolve three outstanding issues relevant to the question of whether the injunction should be granted.

Download Trustees of Maungatautari 4G Sec IV v Maungatautari Ecological Island Trust - Maungatautari No 4G Sec IV (217 KB PDF) here. read more

Occupation orders – order declined where majority of trustees opposed application – Wairua

Wairua - Maungaroa No.1 Section 2B Block

Māori Land Court (2014) 103 Waiariki MB 133 (103 WAR 133)

3 September 2014

Application for an occupation order following the Court indicating that the applicant should apply for ownership of a utility shed on the land and an occupation order. The application was supported by major shareholders but was opposed by smaller shareholders and a majority of the land's trustees. The application was declined.

Download Wairua - Maungaroa No.1 Section 2B Block (PDF, 208 KB) here. read more

Costs – award made against former trustees – Hall v Opepe Farm Trust

Hall v Opepe Farm Trust - Opepe Farm Trust

Māori Land Court (2014) 104 Waiariki MB 54 (104 WAR 54)

5 September 2014

Decision as to costs arising out of earlier proceedings. The applicant had earlier sought the removal of five trustees from the Opepe Farm Trust: two were removed by the Court for breaches of their duties and three resigned during proceedings. An award of costs was made against the respondents in favour of the trust, although a distinction was made between those trustees who had resigned and those who were removed. read more

Occupation orders / partition – Court granted occupation order of its own motion – Matchitt

Matchitt - Te Kaha 65

Māori Land Court (2014) 104 Waiariki MB 145 (104 WAR 145)

16 September 2014

Applications for amendment of four occupation orders and partition. Applications dismissed as there was insufficient support for the partition and amendment of the occupation orders would be inequitable.

Download Matchitt - Te Kaha 65 (181KB PDF) here. read more

Occupation orders – order amended – Howell v Jaram

Howell v Jaram - Omaio 43 Section 4

Māori Land Court (2014) 104 Waiariki MB 73 (104 WAR 73)

10 September 2014

Application for an amendment of an occupation order. The applicant applied to amend his occupation order to a site he and his family had occupied for 30 years. The land's trustees opposed the amendment, arguing that the applicant had already been granted a site for occupation and the site he proposed was earmarked as a camping area for other owners, giving access to the beach. The application for amendment was granted.

Download Howell v Jaram - Omaio 43 Section 4 here (150KB PDF). read more

Partition – cancellation – grounds satisfied to reconfigure titles – Thompson

Thompson - Hauai Ahu Whenua Trust

Māori Land Court (2014) 87 Taitokerau MB 258 (87 TTK 258)

24 September 2014

Preliminary determination concerning an application to cancel partition orders made in 1977. The applications satisfied the grounds to reconfigure the titles. However, the application was adjourned as there were issues remaining for final determination.

Download Thompson - Hauai Ahu Whenua Trust (618 KB PDF) here. read more

Waitangi Tribunal to inquire in mid-2015 into prohibition on prisoner voting

Wai 2472 - the Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim - Memorandum-Directions of the Deputy Chairperson granting priority to the claim

Waitangi Tribunal (Wai 2472, 2.5.3)

7 August 2014

The Waitangi Tribunal has granted a priority inquiry into the Electoral (Disqualification of Sentenced Prisoners) Amendment Act Claim. The inquiry, likely to occur in mid-2015, will look at the prohibition on prisoner voting resulting from the Electoral (Disqualification of Sentenced Persons) Amendment Act 2010.

Download the Memorandum-Directions of the Deputy Chairperson granting priority to the claim here (426 KB PDF). read more