IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 21 Taitokerau MB 172 (21 TTK 172) A Applicant

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 21 Taitokerau MB 172 (21 TTK 172) A UNDER Sections 131 and 133, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Ohawini A6 BETWEEN DEPUTY REGISTRAR Applicant Hearing: 24 August December April 2011 (Heard at Whangarei) Judgment: 26 May 2011 RESERVED JUDGMENT OF JUDGE D J AMBLER Background [1] Haora Areka is recorded as the registered proprietor of Ohawini A6 (CFR NA 16A/908), a 1442m² section that fronts Whangaruru Harbour. The land is General land, its status having changed from Māori freehold land by declaration under Part I of the Māori Affairs Amendment Act 1967 ( 1967 Act ) on 28 January A rating debt has been accumulating on the land over a number of years and in July 2010 the Whangārei District Council ( the Council ) contacted the Court registry to seek its assistance in locating the owner or the owner s successors. At the time, the Council was considering its options in recovering the rating debt, including the possible sale of the land. [2] The Deputy Registrar subsequently filed an application under s 131 of Te Ture Whenua Māori Act 1993 ( 1993 Act ) to determine the status of the land and began making enquiries to identify Haora Areka or his descendants. [3] The application first came before me on 24 August The Deputy Registrar had identified Mr Sonny Hautakere Alex to be the son of Tanu Haora Areka whose father was Haora DEPUTY REGISTRAR MLC 21 Taitokerau MB May 2011

2 Areka. On the basis of that information and the assumption that Sonny Alex was a descendant of Haora Areka, I amended the application to include an application to change the status of the land to Māori freehold land pursuant to s 133 of the 1993 Act and adjourned the application to enable the descendants of Haora Areka to express a view on the change of status of the land. [4] By the time the application came before me again on 13 December 2010 the Deputy Registrar had undertaken further research into the identity of Haora Areka. The further research identified that there were in fact two persons in the Court record that might be Haora Areka. First, the late Haora Areka Whareumu, being Sonny Alex s grandfather. Second, the late Haora Areka Hema or Matiu, whose son, Tangi Matiu, currently lives at Toetoe, Whangarei. Both Sonny Alex and Tangi Matiu attended the second hearing. In addition, a kuia from Toetoe, Mrs Kathleen Whareumu-Clarke, also attended the hearing and confirmed that she knew both Haora Areka Whareumu and Haora Areka Hema. The Deputy Registrar s research pointed to Haora Areka Hema being the owner of Ohawini A6. [5] On the basis of this further information I observed that it indeed appeared that Haora Areka Hema was the registered proprietor of Ohawini A6. I therefore adjourned the application for Tangi Matiu to discuss the change of the status of the land and succession with his siblings. [6] When the application came before me for the final time on 13 April 2011 Tangi Matiu had consulted his siblings who supported the change of status back to Māori freehold land. Sonny Alex did not appear. The Council attended and asked the Court to order payment of outstanding rates of $1, before changing the status to Māori freehold land. Issues [7] Sections 133 provides: 133 Change from General land [or General land owned by Maori] to Maori freehold land by status order (1) The Maori Land Court shall have jurisdiction in accordance with the succeeding provisions of this section to make a status order declaring that any land shall cease to be General land [or General land owned by Maori] and shall become Maori freehold land. (2) Without limiting the classes of person who may apply to the Court for the exercise of its jurisdiction, the District Land Registrar for the land district in which any land that is beneficially owned by more than 10 Maori is situated may apply to the Court for the exercise of its jurisdiction under this section in respect of that land. 21 Taitokerau MB 173

3 (3) The Court shall not make a status order under this section unless it is satisfied that (a) (b) (c) The land is beneficially owned by one or more Maori; and The owners have had adequate opportunity to consider the proposed change of status; and Either (i) (ii) All the owners agree to the proposed change of status; or The land can be managed or utilised effectively as Maori freehold land and a sufficient proportion of the owners agree to the proposed change of status; and (d) It is desirable that the land become Maori freehold land having regard to the history of the land, and to the identity of the owners and their personal association with the land. [8] In Whaanga Mahia Township Sections 90 and 91 1 the Māori Appellate Court determined that where the owner of General land is deceased then the owners for the purposes of s 133(3)(a) to (d) are those persons who are entitled to succeed to the deceased s interests. See also my discussion in Paul Motatau 1B3A. 2 [9] Thus, the first issue for determination is who was Haora Areka and therefore who are his successors. Given that the research identified two possibilities it is important that I carefully explain the reason for my finding that Haora Areka Hema is Haora Areka. [10] Second, I must address the Council s request to be paid outstanding rates before the change of status is issued. Who was Haora Areka? [11] On 14 October the Court partitioned the Ohawini block and created Ohawini A. Among the owners of Ohawini A were Taupiri Mihaka Te Wharaupo and Waata Te Wharau. [12] On 22 April the Court made succession orders in respect of Taupiri Mihaka Te Wharaupo in favour of Rauhi and Waata Te Wharau among others Whaanga Mahia Township Sections 90 and 91 (2000) 34 Gisborne Appellate Court MB 12 (34 APGS 12). Paul Motatau 1B3A (2010) 11 Taitokerau MB 212 (11 TTK 212). 43 Northern 47 (43 N 47). 10 Whangarei 277 (10 WH 277). 21 Taitokerau MB 174

4 [13] On 28 June the Court made succession orders in respect of Waata Te Wharau in favour of Hema Matiu among others. [14] On 25 November the Court made succession orders in respect of Rauhi Matiu alias Rauhi in favour of Hema Matiu among others. [15] Thus, by the end of November 1919 Hema Matiu had partially succeeded to the interests of at least two of the original owners of Ohawini A. [16] Hema Matiu (also known as Wiremu Matiu and Jim Matthews) died at Toetoe, Whangarei on or about 23 August He left a will which was probated on 8 January Under his will he left all his money to his widow and his land to his only child, his son, Haora Areka Hema. According to the evidence given in Court on 23 May , Haora Areka Hema was the son of Hema Matiu s first wife, Reti Hema, and was about 19 years old at the time, meaning he was born in either 1914 or [17] On 1 December Hema Matiu s estate came before the Court again when further succession orders were made vesting his interests in Ohawini A and other blocks in Haora Areka Hema. The Succession Order Schedule for Ohawini A was subsequently updated to record Haora Areka Hema as the sole successor to Hema Matiu. [18] On 20 June Haora Areka Hema and others succeeded to the interests of Ngatitu Matiu in Ohawini A. Ngatitu Matiu was the brother of Hema Matiu who died without issue. Once again, the Succession Order Schedule for Ohawini A was updated to record Haora Areka Hema as one of the successors to Ngatitu Matiu. [19] On 16 April the Court partitioned Ohawini A into several titles including Ohawini A6. The minute records that Ohawini A6 was awarded to Haora Areka n.5/6 th share sole. The partition order similarly declares Haora Areka to be the sole owner of Ohawini A6. Crucially, there is no record in the Court of Haora Areka being an owner of Ohawini A, only Haora Areka Hema. Accordingly, the only logical conclusion is that the Court omitted the surname Hema from the minute and the order in relation to Ohawini A Whangarei 84 (13 WH 84). 13 Whangarei 109 (13 WH 109). 17 Whangarei 135 (17 WH 135). 18 Whangarei 19 (18 WH 19). 8 Consolidation Bay of Islands MB 64 (8 Cons BI 64). 26 Whangarei 354 (26 WH 354). 21 Taitokerau MB 175

5 Whether this was due to a specific request or a mistake is unclear. Regardless, it is clear that the registered proprietor of Ohawini A6 is otherwise known as Haora Areka Hema. [20] On 28 January 1969 the Deputy Registrar issued a declaration under Part I of the 1967 Act declaring that Ohawini A6 ceased to be Māori land. There is no evidence that this was brought to the attention of Haora Areka Hema. [21] On 29 August 1969 the Ohawini A6 partition order was registered against the title to the Ohawini block (CT 2D/201) which resulted in CT 16A/908 issuing for Ohawini A6. The partition order was registered in conjunction with the status declaration. The certificate of title recorded the registered proprietor to be Haora Areka, as it still does today (CFR 16A/908). [22] In 1989 the solicitors for the estate of Alex Matthews also known as Haora Areka Hema or Haora Areka Hema Matiu initiated succession proceedings in the Court. Haora Areka Hema, born on 5 May 1914, died on 18 January 1989 leaving a will. Probate was granted on 21 September In accordance with the processes at the time, on 30 May 1989 the solicitors filed an Application for Certificate of Values under s 78(4) of the 1967 Act. It is noteworthy that on the application the only block identified as possibly being owned by the deceased was Ohaweni A6 (sic). The estate file contains a number of minutes which disclose how Haora Areka Hema received his various Māori land interests. These minutes are important in three respects. [23] First, the minutes of 1 December are missing. That was the Court sitting where Haora Areka Hema succeeded to the interests of Hema Matiu in Ohawini A. [24] Second, the minutes confirm Haora Areka Hema s whakapapa and connection to Ohawini A6. His father was Hema Matiu also known as Wiremu Horomona Matiu or Matthews and his mother was Rita or Reti Matiu nee Mohi. Hema Matiu s father was Tame Ngatitu I and his mother was Rauhi Taui. Thus, as set out earlier, Haora Areka Hema s interests in Ohawini A6 came from his father s mother s whakapapa. [25] Third, the minutes also show that Haora Areka Hema s mother s mother was Mihi Areka Whareumu. She held interests in the Toetoe, Maungapohatu North and Maunu blocks. On 22 January the Court ordered succession to Haora Areka alias Haora Whangarei 19 (18 WH 19). 10 Bay of Islands MB 194 (10 BI 194). 21 Taitokerau MB 176

6 Whareumu alias Haora Rika who died on 21 May He also held interests in Toetoe, Maungapohatu and Maunu blocks that are almost identical to the blocks in which Mihi Areka Whareumu held interests. Thus, Mihi Areka Whareumu and Haora Areka Whareumu were obviously closely related in some way. Haora Areka Whareumu s interests were succeeded to by his daughter and two sons including Taniora Haora Whareumu who was also known as Tanu Whareumu and who was Sonny Alex s father. Accordingly, Haora Areka Hema and Haora Areka Whareumu appear to be related through Haora Areka Hema s mother s mother. But, importantly, the interests in Ohawini A6 derive from Haora Areka Hema s father s mother, Rauhi Taui, and her line. [26] On 9 April and 24 June orders were made vesting Haora Areka Hema s Māori land interests in the Taitokerau and Tairawhiti districts respectively in the executors of the estate under s 81 of the 1967 Act. On 6 May an order was made under s 81A of the 1967 Act vesting those interests in Haora Areka Hema s five sons as entitled under his will, being Spencer Matthews, Paddy Matthews, Ally Matthews, Jim Phillips and Tangi Matiu. The orders did not include Ohawini A6 as the land was General land. Furthermore, as the Court s search had failed to identify Ohawini A6 as being owned by Haora Areka Hema, the executors of his estate were not advised that that land remained in his name, though under General land status. [27] Accordingly, I conclude that Haora Areka is indeed Haora Areka Hema and that the persons beneficially entitled to Ohawini A6 are his five sons, Spencer Matthews, Paddy Matthews, Ally Matthews, Jim Phillips and Tangi Matiu. Furthermore, for the purposes of s 133(3)(a)-(d), I conclude that the beneficial owners of the land, or a sufficient proportion of them, agree to the change of status to Māori freehold land. Should the change of status be conditional upon payment of outstanding rates? [28] The Council is to be congratulated on taking the appropriate step of seeking the assistance of the Court to resolve the long outstanding issue of the identity of the owner of Ohawini A6. As the above history demonstrates, through a combination of the 1953 partition order identifying Haora Areka as the owner and the 1969 change of status of the land, this land was lost from the successors to Haora Areka Hema and may possibly have ended up being sold for the nominal rating debt. As a result of the present proceedings, the Registrar MB 65 (7 RGTO 65). 7 Registrar MB 112 (7 RGTO 112). 9 Registrar MB 138 (9 RGTO 138). 21 Taitokerau MB 177

7 Court will be able to correctly identify the owner of Ohawini A6, identify the successors to the owner, return the status of the land to Māori freehold land and vest the land in those successors. [29] Understandably, the Council wishes to recover the outstanding rates. In its letter to the Court of 12 April 2011 it explained: This property was transferred into general land in 1969 as part of a government initiated process, where there were less than 3 registered owners unless the owners objected or were deceased. Neither criteria applies in the case of this block As general land the rates on this property have been assessed and remain payable since 1 July Prior to that, rates were either not assessed or have been written off. Penalties have been applied to overdue amounts and the balances currently outstanding to 30 June 2011 are: Rates $1, Penalties $ Total $2, We understand that the owner Haora Areka died around six years ago, and the Māori Land Court has been proactive in locating the descendants who now may succeed ownership of this land. We understand there is a desire by them to return this land into Māori title and Council would have no objection to that as long as rates assessed whilst the title of the property was in general land are paid. In the circumstances we would be willing to remit any penalties charged, but I do not have the authority to write off rates which have been legally and correctly assessed. We would ask the Court to order the payment of $1, prior to approving any transfer of title. [30] At the hearing on 13 April 2011 the Council s position was further clarified: 16 Court: And, that will need to be dealt with on another occasion. But, Mrs Voelkerling is here on behalf of the Council because they have a view on the matter. Do you want to just explain the Council s position? K Voelkerling: Yes, just basically that because it s registered as General land at the moment, rates are payable on it. There is no Council remission with these circumstances unless the Court changes the status or says that it was illegal to transfer it to General land at the time. The rates have not been requested for past the 1 st, prior sorry to the 1 st of July 2008 because of statute bars and not being able to find the owners of the properties. Court: So, what you re asking the Court to do is to order the payment of $1, of rates before it changes the status? K Voelkerling: Yes. Court: Do you understand what they re asking? Taitokerau MB 218 (19 TTK 218). 21 Taitokerau MB 178

8 T Matiu: Yes. Court: I m not sure whether I can or even whether I m obliged to take into account the Whangarei District Council s views but what is your view Mr Matiu? T Matiu: My only view is that I didn t know or, we didn t know, that dad owned that bit of land. Court: No. T Matiu: So, you know, if we don t know how are going to you know, why was it transferred in the first place into General title? But, you know, we knew nothing about it until Mr Haika, or Zeniff here, came up and traced it through that way. Court: Yes. T Matiu: So, you know, we have to pay for something that we knew nothing about. I mean, I can t understand I can understand it, you know, where they took it and just put it into General title. I can understand that and then you know, once it s in General they can start rating it, which is, you know, fair enough. But, you know, taking it in the first place without the owners permission it s something we didn t know about. The man was deceased. Well, no he wasn t at the time but Court: Well, it s not even clear whether your father knew about the land. T Matiu: That s right... Court: Alright. Mrs Voelkerling there s nothing you want to add? K Voelkerling: Only that regardless of whether it was European or Māori title, with one owner the Council still didn t have the ability to remit the rates only when it becomes multiply owned and unused can we actually remit the rates. So, regardless of whether it was General land or Māori land the rates were actually payable. Court: Alright. K Voelkerling: The only question that the Council failed was to actually find the owner. That was our main problem. [31] Clearly, the Council is entitled to recover rates from the persons responsible. The change of status does not change the liability for rates. While I understand the Council s wish to recover those rates as soon as is possible, I am not convinced that it is appropriate that I delay the change of status or make the change of status conditional on the payment of the rates. [32] First, s 133 sets out a range of factors that the Court must take into account before it grants a change of status. Importantly, the Court is not directed to take into account the views of the local council before it grants a change of status. [33] Second, even if the Court could take into account the views of the local council in exercising its general discretion under s 133, in my assessment this is not a case where the 21 Taitokerau MB 179

9 change of status should be delayed or expressed to be conditional. As I have explained, it is not clear that Haora Areka Hema knew he was the sole owner of Ohawini A6 or that the land s status had changed to General land. Furthermore, following his death in 1989, his successors were not aware of the land through the combined effect of the 1953 partition order and the 1969 change of status. Thus, those entitled to the land can hardly be faulted for having not paid rates for land they did not even know they were entitled to. Furthermore, there is nothing to say that they will not pay the rating debt that is due. They have not yet had the opportunity to do so and should be given the opportunity in the normal way. [34] Third, unless and until the Court makes the status change the Court will not be able to vest the land in the successors and the Council will not have any living owners from whom they can demand payment. Furthermore, given that since 1989 the land has effectively been beneficially owned by Haora Areka Hema s five sons though they did not know it it may be appropriate for the Council to consider applying its rates remission policy in respect of Ohawini A6 as multiply owned land. Thus, in my assessment, it is also in the Council s interest for the status change to issue without delay. Orders [35] Taking into account all of the matters set out in s 133 of the Act I conclude that it is appropriate that the status of Ohawini A6 now change to Māori freehold land. [36] Pursuant to s 133 of the Te Ture Whenua Māori Act 1993 the Court declares that Ohawini A6 shall cease to be General land and shall become Māori freehold land. [37] Pursuant to r 66(3) of the Māori Land Court Rules 1994 this order is to issue immediately. [38] I direct the Registrar to transmit this order to Land Information New Zealand for registration without delay. Ancillary matters [39] The order under s 133 will change the status of Ohawini A6 to Māori freehold land. By reason of s 142 of the 1993 Act, the status order does not take effect until registered and the Court cannot deal with succession to the land as Māori freehold land until that has 21 Taitokerau MB 180

10 occurred. 17 Accordingly, I must await registration of the status order before invoking ss 37(3) and 118(6) to vest the land in Haora Areka Hema s successors. Accordingly, the application stands adjourned to Chambers pending receipt of the certificate of title following registration of the s 133 order. [40] In the course of preparing this judgment I see that the minutes of 13 December contain an error at page 223 in that the third to last and last statements in the minute book are attributed to T Matiu when they should be attributed to S Alex. Pursuant to ss 37(3) and 86 of the 1993 Act I amend the minute accordingly. That order is to issue immediately. Pronounced in open Court in Whangarei at 4.23 pm on Wednesday this 26 th day of May D J Ambler JUDGE See Whaanga Mahia Township Sections 90 and 91 (2000) 34 Gisborne Appellate Court MB 12 (34 APGS 12) at p[14] and [15] and Hakiwai Omahu 2N3 Block (2001) 13 Takitimu Appellate Court MB 164 (12 ACTK 164) at p[ ]. 16 Taitokerau MB 222 (16 TTK 222). 21 Taitokerau MB 181