September 2018 Mahuru – Contents

Te Kōti Mana Nui – Supreme Court

Judicial review - strike out reversed on final appeal - decisions in advance of proposed Treaty settlement - Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84 - Cate Barnett

Te Kōti Pīra – Court of Appeal

Resource management - control of fishing under RMA - leave to appeal - Attorney-General v The Trustees of the Motiti Rohe Moana Trust [2018] NZCA 67 - Toni Love

Rating valuation - prohibition on alienation a relevant factor - Rotorua District Council v Ngāti Whakaue Education Endowment Trust Board [2018] NZCA 143 - Toni Love

Te Kōti Matua – High Court

Procedure - representation order - refused - Tahi Enterprises Ltd v Taua [2018] NZHC 516 - Toni Love

Procedure - security of costs - appeal from waiver decline - Ngai Te Hapu Incorporated and Nga Potiki A Tamapahore Trust v Bay of Plenty Regional Council [2018] NZCA 291 - Toni Love

Resource management - control of fishing under RMA - Attorney-General v The Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 - Toni Love

Trusts - trustee duties - Te Kōhanga Reo National Trust - unlawful trustee removal - Waho v Te Kōhanga Reo National Trust [2018] NZHC 1935 - Toni Love

Costs - granted - disbursements not necessary - earlier order varied - Ngāti Hurungaterangi & Ors v Ngāti Wāhiao [2018] NZHC 1991 - Toni Love

Te Kōti Pīra Māori – Māori Appellate Court

Succession - return of shares - no obligation on the Court to inquire further - Wihongi v Samson - Otarihau 2B1C [2018] Māori Appellate Court MB 469 (2018 APPEAL 469) - Toni Love

Judicial recusal - apparent bias - prior role as barrister - decision quashed - rehearing - Taueki - Horowhenua 11 Part Reservation Trust [2018] Māori Appellate Court MB 512 (2018 APPEAL 512) - Toni Love

Trusts - charging order over future revenue upheld - Adlam v Niao - Matata Parish 39A 2A Ahu Whenua Trust [2018] Māori Appellate Court MB 478 (2018 APPEAL 478) - Toni Love

2018 Māori Appellate Court Judgments - index

Te Kōti Whenua Māori – Māori Land Court

Injunction - trespass - no permission to occupy - Dawson v Young - Maungaturoto D1B Block (2018) 174 Taitokerau MB 89 (174 TTK 89) - Carolyn Southey-Jensen

Chief Judge's powers - succession order amended - Nyman v Appleton - Estate of Felix Appleton (2018) Chief Judge MB 31 (2018 CJ 31) - Annelise Samuels

Chief Judge's powers - succession order amended - exclusion - Tiopira - Bella Tiopira [2018] Chief Judge's MB 96 (2017 CJ 96) - Carolyn Southey-Jensen

Costs - special aid refused - venue was applicant's choice - Barns - Lot 39A Sec. 2B No. 2B. No. 2A Parish of Matata (2018) 387 Aotea 218 (387 AOT 218) - Annelise Samuels

Costs - unmeritorious defence - 80% costs awarded - Baker v Samuels-Thomas (2018) 178 Taitokerau MB 131 (178 TTK 131) - Carolyn Southey-Jensen

Succession - intestacy - interests from whāngai relatives returned - Wati - Estate of Thomas Winitana Nuku Soloman (2018) 66 Tākitimu MB 176 (66 TKT 176) - Annelise Samuels

Succession - absence of consent - vesting of interests and trustee appointments void - Hay - Estate of Douglas Allan Huirama Te Kohera Hay (2018) 50 Te Waipounamu MB 144 (50 TWP 144) - Carolyn Southey-Jensen

Trusts - application for directions in administration of estate - Djangozov v Johnston - Estate of Audrey Trimble (2018) 185 Waiariki MB 238 (185 WAR 238) - Annelise Samuels

Trusts - review of whānau trust - interest of beneficiary quantified - Buchanan – Riwaka-Matiu-Matana Whānau Trust (2018) 50 Te Waipounamu MB 152 (50 WAR 152) - Carolyn Southey-Jensen

Trusts - trustee appointment - opposition insufficient - Evans - Waitara West 52C (2018) 383 Aotea MB 43 (383 AOT 43) - Annelise Samuels

Trusts - disqualification of counsel - lack of independence - Witana v Robust - Omapere Taraire E (2018) 175 Taitokerau MB 251 (175 TTK 251) - Carolyn Southey-Jensen

Partition - application granted - needed for a mortgage - Hancock - Horowhenua A5F2B and A5F2C (2018) 385 Aotea 296 (385 AOT 296) - Carolyn Southey-Jensen

Occupation order - disputed ownership of dwelling - lifetime award - Rean v Pitman - Takahiwai 7A2B2C (2018) 175 Taitokerau MB 237 (175 TTK 237) - Annelise Samuels

Māori reservations - removal of reservation status - insufficient support - Winitana - Mokau Reserve (2018) 77 Tairawhiti MB 187 (77 TRW 187) - Annelise Samuels

2018 Māori Land Court Judgments - index

Te Rōpū Whakamana i Te Tiriti o Waitangi – Waitangi Tribunal

Waitangi Tribunal procedure - remedies - urgent inquiry refused - no imminent risk - Ngāti Rangi settlement - Rangataua and Umumore blocks (Wai 836, #2.54) - Meredith Clement

Rights of indigenous peoples

The 2017 Shirley Smith address - First laws: tikanga Māori in / and the law - Professor Jacinta Ruru

Arotakenga pukapuka - Book review

Indigenous Courts, Self-Determination and Criminal Justice - Dr Fleur Te Aho

Sir Edward Taihakurei Durie student essay competition 2018

Entries are welcomed for the 2018 Sir Edward Taihakurei Durie student essay competition sponsored by the Māori Law Review. For more information and details on how the competition operates go here. Entries close at 5 p.m. on Tuesday 9 October 2018.

Print version

Download the Māori Law Review September 2018 (766 KB PDF)


Judicial review – strike out reversed on final appeal – decisions in advance of proposed Treaty settlement – Ngāti Whātua Ōrākei Trust

Ngāti Whātua Ōrākei Trust v Attorney-General 

New Zealand Supreme Court [2018] NZSC 84

17 September 2018

The Supreme Court allowed an appeal by Ngāti Whātua Ōrākei against decisions of the lower courts striking out its claim. That claim challenges the lawfulness of decisions about proposed Treaty settlements and the impact of those decisions on the iwi. Most of the claim can now proceed to a hearing.

Download Ngāti Whātua Ōrākei Trust v Attorney-General (534 KB PDF). read more

Rating valuation – prohibition on alienation a relevant factor – Rotorua District Council

Rotorua District Council v Ngāti Whakaue Education Endowment Trust Board

Court of Appeal [2018] NZCA 143

9 May 2018

Appeal dismissed from a decision that a specific statutory prohibition on the sale of land is to be taken into account in the course of applying the hypothetical sale method of determining the land’s capital value for rating purposes.

Download Rotorua District Council v Ngāti Whakaue Education Endowment Trust Board (510 KB PDF). read more

Trusts – disqualification of counsel – lack of independence – Witana

Witana v Robust - Omapere Taraire E

Māori Land Court (2018) 175 Taitokerau MB 251 (175 TTK 251)

18 July 2018

Application to disqualify counsel granted for lack of independence.

Download Witana v Robust - Omapere Taraire E (259 KB PDF).  read more

Resource management – control of fishing under RMA – leave to appeal – Attorney-General

Attorney-General v The Trustees of the Motiti Rohe Moana Trust

Court of Appeal [2018] NZCA 67

21 March 2018

Application for leave to appeal granted and issues set out in a dispute about whether regional councils can control elements of fishing under the Resource Management Act 1991.

Download Attorney-General v The Trustees of the Motiti Rohe Moana Trust (224 KB PDF). read more

Procedure – security of costs – appeal from waiver decline – Ngai Te Hapu and Nga Potiki

Ngai Te Hapu Incorporated and Nga Potiki A Tamapahore Trust v Bay of Plenty Regional Council

Court of Appeal [2018] NZCA 291

3 August 2018

Application for leave to appeal an interlocutory decision declining an application for waiver of security for costs declined.

Download Ngai Te Hapu Incorporated and Nga Potiki A Tamapahore Trust v Bay of Plenty Regional Council (358 KB PDF). read more

Costs – granted – disbursements not necessary – earlier order varied – Ngāti Hurungaterangi

Ngāti Hurungaterangi & Ors v Ngāti Wāhiao

High Court [2018] NZHC 1991

7 August 2018

Application for costs granted.

Download Ngāti Hurungaterangi & Ors v Ngāti Wāhiao (374 KB PDF). read more

Trusts – trustee duties – Te Kōhanga Reo National Trust – declaration trustee removal unlawful – disclosure of serious wrongdoing not bringing trust into disrepute – Waho

Waho v Te Kōhanga Reo National Trust

High Court [2018] NZHC 1935

31 July 2018

The applicant sought declarations that he had not brought the Te Kōhanga Reo National Trust into disrepute and that his removal as a trustee was unlawful. Declarations granted, the applicant acted in conformity with his contractual and fiduciary obligations by disclosing to the relevant Ministers allegations of serious wrongdoing.

Download Waho v Te Kōhanga Reo National Trust (686 KB PDF).

read more

Resource management – control of fishing under RMA – Attorney-General

Attorney-General v The Trustees of the Motiti Rohe Moana Trust and NZMC

High Court [2017] NZHC 1429

26 June 2017

The High Court allowed in part an appeal from an Environment Court decision about the extent to which the Resource Management Act can be used to control fishing.

Download Attorney-General v The Trustees of the Motiti Rohe Moana Trust and NZMC (972 KB PDF). read more

Trusts – charging order over future revenue upheld – Adlam

Adlam v Niao - Matata Parish 39A 2A Ahu Whenua Trust 

Māori Appellate Court [2018] Māori Appellate Court MB 478 (2018 APPEAL 478)

22 August 2018

Ms Adlam was ordered to pay approximately $12.7m for breach of duty as a trustee relating to a geothermal development. The current trustees of the land obtained a charging order against Ms Adlam's Māori land interests. Ms Adlam appealed on the basis a charging order could not attach to future revenue to which she had no present entitlement. The Māori Appellate Court dismissed this appeal after interpreting the legislation and distinguishing it from other regimes allowing charging orders.

Download Adlam v Niao - Matata Parish 39A 2A Ahu Whenua Trust (277 KB PDF). read more

Judicial recusal – apparent bias – prior role as barrister – decision quashed – rehearing – Taueki

Taueki - Horowhenua 11 Part Reservation Trust

Māori Appellate Court [2018] Māori Appellate Court MB 512 (2018 APPEAL 512)

12 September 2018

The Court allowed an appeal from a decision appointing trustees to the Lake Horowhenua Trust because the deciding judge might have been biased against those raising objections to some of the proposed trustee appointments. The decision was set aside and a rehearing directed.

Download Taueki - Horowhenua 11 Part Reservation Trust (264 KB PDF). read more

Succession – return of shares – no obligation on the Court to inquire further – Wihongi

Wihongi v Samson - Otarihau 2B1C

Māori Appellate Court [2018] Māori Appellate Court MB 469 (2018 APPEAL 469)

14 August 2018

Application to appeal a decision dismissing an application seeking a return of shares dismissed.

Download Wihongi v Samson - Otarihau 2B1C (317 KB PDF). read more

Succession – absence of consent – vesting of interests and trustee appointments void – Hay

Hay - Estate of Douglas Allan Huirama Te Kohera Hay

Māori Land Court (2018) 50 Te Waipounamu MB 144 (50 TWP 144)

27 June 2018

Application to vary succession orders granted.

Download Hay - Estate of Douglas Allan Huirama Te Kohera Hay (217 KB PDF).  read more

Costs – unmeritorious defence – 80% costs awarded – Baker

Baker v Samuels-Thomas

Māori Land Court (2018) 178 Taitokerau MB 131 (178 TTK 131)

9 August 2018

Application for costs granted.

Download  Baker v Samuels-Thomas (260 KB PDF).  read more

Trusts – trustee appointment – opposition insufficient – Evans

Evans - Waitara West 52C

Māori Land Court (2018) 383 Aotea MB 43 (383 AOT 43)

19 April 2018

Application for appointment of an additional trustee granted. The grounds of opposition were insufficient to justify dismissing the application.

Download Evans - Waitara West 52C (317 KB PDF).

read more

Chief Judge’s powers – succession order amended – exclusion – Tiopira

Tiopira - Bella Tiopira 

Māori Land Court [2018] Chief Judge's MB 96 (2017 CJ 96)

18 May 2018

Application to amend succession orders granted. The applicant was mistakenly excluded from succession to his mother's interests.

Download Tiopira - Bella Tiopira (359 KB PDF).  read more

Partition – application granted – needed for a mortgage – Hancock

Hancock - Horowhenua A5F2B and A5F2C

Māori Land Court (2018) 385 Aotea 296 (385 AOT 296)

11 June 2018

Application to partition Horowhenua A5F2B & A5F2C granted.

Download Hancock - Horowhenua A5F2B and A5F2C (297 KB PDF).  read more

Occupation order – disputed ownership of dwelling – lifetime award – Rean

Rean v Pitman - Takahiwai 7A2B2C

Māori Land Court (2018) 175 Taitokerau MB 237 (175 TTK 237)

16 July 2018

Application for an occupation order over some of the land contained in Takahiwai 7A2B2C. The area contained a dwelling, the ownership of which was disputed by the respondents. Application granted with terms that it last for the applicant's lifetime.

Download Rean v Pitman - Takahiwai 7A2B2C (242 KB PDF).

read more

Succession – intestacy – interests from whāngai relatives returned – Wati

Wati - Estate of Thomas Winitana Nuku Solomon

Māori Land Court (2018) 66 Tākitimu MB 176 (66 TKT 176)

26 February 2018

A reserved decision determining successors to Mr Thomas Solomon's land interests inherited from his whāngai father and uncle. Those Māori land interests received are to be returned to their source, namely Mr Solomon's whāngai father and uncle, and then distributed to the remaining successors of those persons.

Download Wati - Estate of Thomas Winitana Nuku Solomon (183 KB PDF).

read more

Trusts – breach of trust – grants outside trust terms – Taniora

Taniora v Crown - Pukemakoiti 2

Māori Land Court (2018) 390 Aotea MB 268 (390 AOT 268)

28 September 2018

Application for enforcement of obligations of trust adjourned pending outcome of annual meeting regarding grants made in breach of trust.

Download Taniora v Crown - Pukemakoiti 2 (491 KB PDF). read more

Chief Judge’s powers – succession order amended – Nyman

Nyman v Appleton - Estate of Felix Appleton

Māori Land Court (2018) Chief Judge MB 31 (2018 CJ 31)

02 May 2018

A successful application to amend a succession order to include the applicant and allow her to succeed to the deceased's Māori land interests. The application was granted despite opposition from a child of the deceased.

Download Nyman v Appleton - Estate of Felix Appleton (410 KB PDF).

read more

Māori reservations – removal of reservation status – insufficient support – Winitana

Winitana - Mokau Reserve 

Māori Land Court (2018) 77 Tairawhiti MB 187 (77 TRW 187)

6 July 2018

Application to vest the Mokau reserve block in the hands of the original owners, remove the Māori reservation status and instead constitute an ahu whenua trust. The Court dismissed the application due to insufficient support for the change.

Download Winitana - Mokau Reserve (283 KB PDF).

read more

Trusts – application for directions in administration of estate – Djangozov

Djangozov v Johnston - Estate of Audrey Trimble 

Māori Land Court (2018) 185 Waiariki MB 238 (185 WAR 238)

19 April 2018

Application for directions and payment of funds held on trust by the Audrey Trimble Estate. Application dismissed as the respondent will be seeking further direction from the High Court on these issues.

Download Djangozov v Johnston - Estate of Audrey Trimble (272 KB PDF).

read more

Trusts – review of whānau trust – interest of beneficiary quantified – Buchanan

Buchanan – Riwaka-Matiu-Matana Whānau Trust

Māori Land Court (2018) 50 Te Waipounamu MB 152 (50 TWP 152)

27 June 2018

Provisional determination made determining entitlement of a beneficiary to part of a property on a review of trust application.

Download Buchanan – Riwaka-Matiu-Matana Whānau Trust (253 KB PDF).  read more

First laws: tikanga Māori in / and the law

First laws: tikanga Māori in / and the law

Shirley Smith Memorial Address 2017

Jacinta Ruru*

The Māori Law Review's consultant editor Professor Jacinta Ruru delivered the 2017 Shirley Smith memorial address. This is an annual address presented by the Women in Law Committee of the New Zealand Law Society's Wellington branch. The address is dedicated to Ms Smith, a Wellington lawyer and legal academic. Ms Smith was the first woman law academic in New Zealand. She qualified and practiced law at a time when few women were practicising.

The final edited version of Professor Ruru's address will be published in the Victoria University of Wellington Law Review. This version, taken from Professor Ruru's oral presentation, is printed with permission and may differ in minor respects from the final published version. read more