Section 328, Te Ture Whenua Maori Act HUIA CONNOR ISABELLA MEHANA KENNETH CONNOR NGAIRE COOPER Applicants

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1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 19 Taitokerau MB 1 (19 TTK 1) A A A A A UNDER Section 328, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Pataua 4B BETWEEN BARRY GOUGH HUIA CONNOR ISABELLA MEHANA KENNETH CONNOR NGAIRE COOPER Applicants Hearing: 29 August December September December March 2011 (Heard at Whangarei) Court: Judge A D Spencer Judge D J Ambler Judgment: 12 April 2011 RESERVED JUDGMENT OF JUDGES A D SPENCER AND D J AMBLER Introduction [1] This judgment concerns five applications for occupation orders under s 328 of Te Ture Whenua Māori Act 1993 ( the Act ). Barry Gough has applied for a 1.2 acre area. Huia Connor and three of her children, Isabella Mehana, Kenneth Connor and Ngaire Cooper ( the Connor whanau ), have each applied for sections of varying sizes. BARRY GOUGH MLC 19 Taitokerau MB 1 12 April 2011

2 [2] Barry Gough s application and the Connor whanau s applications are competing applications. They claim the right to the same area of the land. This reflects a deeper division within the owners over the occupation of the land. [3] The outcome of the hearing on 7 March 2011 was that Mr Gough withdrew his application and the Connor whanau s applications were adjourned for 12 months for the owners to meet to resolve issues concerning the occupation of the land. [4] In this judgment we set out our preliminary findings in respect of the applications. Hopefully our findings will provide some guidance to the owners when they meet to discuss their land. The land [5] Pataua 4B is a hectare block of Māori freehold land. There are 2064 shares in the land and 171 owners. The land is situated on the picturesque northern headland of the Taiharuru River, north east of Whangarei, and is within the Whangarei District Council s coastal countryside zone. [6] There are about a dozen dwellings on the land. Orders have issued under s 30(1)(a) of the Māori Affairs Act 1953 ( 1953 Act ) determining ownership of four of the houses (but not entitlement to the site) in favour of Graham Mahanga, Rihai Whaikawa, Derek Whaikawa and Star Whaikawa respectively. The other dwellings are houses or baches and do not have the benefit of any orders. The Connor whanau have five small dwellings. Mr Gough has yet to build on the land. The owners otherwise use the land for camping and graze stock on some areas. Applicants [7] Barry Gough holds 6.25 shares and seeks an occupation order for the benefit of himself and three of his siblings who jointly hold 25 shares. He claims that he and his whanau are entitled to the area known as Haukapua. The Connor whanau hold shares through the Huia Faith Taha Whanau Trust. They also claim areas within Haukapua. Title history [8] The dispute over rights to different parts of the land stems largely from disputed claims about which tupuna lived where, in large part when the land was in former titles. A basic understanding of the title history is therefore necessary. 19 Taitokerau MB 2

3 [9] Title to the Pataua block of 339 acres was first investigated and determined on 20 September Ownership was determined in favour of Kamira Te Mahara, Ruamoana, Te Raharaha and Heeni Kaio. [10] In Pataua was partitioned into Pataua 1, 2 and 3. These titles were further partitioned in 1911 and In 1965 the Pataua 2A, 2B, 3A and 3B titles were cancelled and amalgamated as Pataua 4. 4 [11] On 25 April 1979 Pataua 4 was finally partitioned into Pataua 4A, 4B and 4C. 5 Pataua 4C was alienated to the Crown and now forms a public reserve administered by the Department of Conservation. Pataua 4A and 4B remain in Māori ownership. Progress of applications [12] The applications were filed in 2006 and were set down for hearing without first being referred to a Judge for directions. They came before Judge Ambler on 29 August 2006 when he adjourned the application to Chambers to issue directions. 6 On 22 December 2006 Judge Ambler directed a meeting of owners with the assistance of Matatahi George to discuss whether to form an ahu whenua trust, an overall plan for the use and occupation of the land and the owners support for the current applications. 7 [13] A meeting of owners took place on 24 February In a memorandum to the Court dated 14 March 2007 Mr George advised that the owners did not wish to establish an ahu whenua trust and that they intended to withdraw all the applications. A transcript of the meeting evidenced deep-seated disagreements amongst the owners. [14] The applications next came before Judge Ambler on 26 September In light of Mr George s report Judge Ambler assumed that the applicants would be withdrawing their applications. However, contrary to Mr George s report, the owners wished to pursue their applications. Mr Gough explained that he had filed an application to the Chief Judge pursuant to s 45 which challenged the underlying shareholding in the land. Furthermore, Whangarei MB 218 (2 WH 218). 6 Whangarei MB 316 (6 WH 316). 10 Whangarei MB 185 (10 WH 185) and 22 Whangarei MB 131 (22 WH 131). 41 Whangarei MB 125 (41 WH 125) and 43 Whangarei MB 19 (43 WH 19). 55 Whangarei MB 338 (55 WH 338). 111 Whangarei MB 33 (111 WH 33). 112 Whangarei MB 298 (112 WH 298). 121 Whangarei MB 145 (121 WH 145). 19 Taitokerau MB 3

4 some of the Connor whanau claimed that Judge Spencer had conducted a site inspection on the land some years before where he had identified occupation areas for different owners. Judge Ambler adjourned the applications pending the outcome of the s 45 application and ordered the Registrar to prepare a report pursuant to s 40 to address the following: 1. Reporting to the Court on any past site inspections by Judge Spencer or any other Judges of Pataua 4B in relation to occupation areas for owners. Copies of any minutes or plans are to be annexed to the report. 2. Setting out the numbers of shareholders and value of shareholding in support or opposition to each of the 5 applications for occupation orders. The report should identify the date of any such support or opposition, whether it is by individual consent or resolution at a hui. 3. Updating the shareholding of Pataua 4B to show the interests of the 4 applicants apart from Mr Gough, which are now held in a Whanau Trust. [15] A s 40 report was completed and referred to Judge Ambler on 16 April On 22 May 2008 Judge Ambler issued directions requiring the report to be revised to: 1. Clearly set out the outcome of any site inspections/meetings with the Court or Court staff involved. 2. Tabulate the support/opposition for the various applications. [16] In the meantime, on 22 August 2008 Acting Chief Judge Isaac (as he then was) issued a decision dismissing Mr Gough s s 45 application as he concluded that there was no error in the share calculations for Pataua 4B. 9 [17] On 3 August 2009 a revised s 40 report was completed. As per the earlier report of 16 April 2008, the revised report did not locate any information concerning site inspections that Judge Spencer or the Court staff had conducted. [18] On 14 December 2010 the applications came before Judge Ambler again. The two s 40 reports had not been distributed. Mr Gough appeared and wished to present substantial historical evidence to uphold his claim to the area known as Haukapua and to challenge the Connor whanau s applications. Judge Ambler ruled that the hearing could not proceed as the parties had not had an opportunity to review the s 40 reports and as they needed to receive any historical evidence in advance of a hearing. The applications were adjourned, with directions as to the filing and service of evidence, to a three day hearing commencing on 7 March 2011 to be followed by a site inspection Chief Judge s MB 520 (2008 CJ 520). 19 Taitokerau MB 4

5 [19] Subsequently, Judge Ambler decided that, in light of the ongoing claim that Judge Spencer had previously been involved in addressing occupation issues, it would be appropriate for both Judge Spencer and Judge Ambler to preside over the hearing. [20] On 6 March 2011, at our directions, the Deputy Registrar located the files for the earlier s 30(1)(a) applications. Included in these was a memorandum from Judge Spencer following a site inspection conducted on 31 August This document was located by the Deputy Registrar in a matter of minutes even though the authors of the two earlier s 40 reports had failed to do so. Importantly, contrary to the assertions of members of the Connor whanau, the site inspection did not relate to occupation of the land but rather to roadway issues. That is, Judge Spencer had not previously addressed the occupation of the land. [21] The hearing and site inspection took place on 7 March The parties filed and served evidence in accordance with Judge Ambler s directions. Carmel Gleeson filed a 174 page report on behalf of Mr Gough. This made various claims about occupation of the land dating back to the 1820s and disputed some owners entitlement to Pataua 4B. The Connor whanau filed an 18 page report with annexures in response. [22] During the hearing Mr Gough advised that he wished to withdraw his application. At his request, we dismissed his application with leave to re-file within 12 months. We also raised with the owners the option of establishing an ahu whenua trust as a means of resolving issues over which owners could occupy certain areas. This would involve the trust order and a plan annexexd to it setting out agreed areas for groups of owners which would then leave owners to apply for occupation orders in relation to those areas. Arepa Patira, a whanaunga of the owners who appeared to be looking for a constructive solution to the impasse, volunteered to arrange a meeting of owners to discuss this option. [23] At the conclusion of the hearing we undertook an inspection of the land with the owners, following which we issued a minute. 10 The primary purpose of the inspection was to assess the capacity of the land for housing and, therefore, the shareholding requirement for an occupation order s 329(2)(c). We also hoped that a discussion on the land might resolve occupation issues but it did not. Instead, it confirmed that the owners positions are at present quite entrenched. At the conclusion of the site inspection we confirmed that Mr Gough s application was dismissed, advised that the shareholding requirement for an occupation order was a minimum of 26 shares and adjourned the Connor whanau s Taitokerau MB 285 (17 TTK 285). 19 Taitokerau MB 5

6 applications for Mr Patira to follow through on the meeting of owners and to file an application to form an ahu whenua trust. [24] In addition to the five applications for occupation orders there were two applications to gift shares in Pataua 4B to Ken Connor. Judge Spencer issued a minute on 10 March wherein he granted conditional orders vesting the interests of the alienors, Steve Wahapu and Sharon Lang, in the Huia Faith Taha Whanau Trust. If the conditions are satisfied, this will add shares to the trust bringing its total shares to shares. Discussion [25] Section 329 sets out the matters that are to be considered before the Court can grant an occupation order: 329 Matters to be considered (1) In deciding whether or not to exercise its jurisdiction to make any occupation order, the Maori Land Court shall have regard to (a) (b) (c) The opinions of the owners as a whole; and The effect of the proposal on the interests of the owners of the land; and The best overall use and development of the land. (2) Notwithstanding subsection (1) of this section, the Maori Land Court shall not make any order, unless it is satisfied (a) [(aa) That the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and that the owners of the land to which the application relates understand that an occupation order (i) (ii) may pass by succession; and may be for a specified term or until the occurrence of a defined event:] (b) [(c) That there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. that, in the circumstances, the extent of the beneficial interest in the land held by the person in whose favour the occupation order is to be made, or to which that person is entitled to succeed, justifies the occupation order.] Taitokerau MB 276 (17 TTK 276). 19 Taitokerau MB 6

7 [26] We will need to return to address the overall criteria in s 329 when the applications come back before us. In the meantime, we address the shareholding requirement and the allocation of occupation sites. Shareholding requirement [27] The Court determines the shareholding requirement in s 329(2)(c) by assessing the number of potential building sites relative to the shares in the land. For example, if there are 10 building sites then an owner will ordinarily need to hold a minimum of 10% of the shares in order to justify an occupation order. More desirable sites may require even more shares. Following the site inspection we determined that the land could sustain m² building sites and, therefore, that a minimum of 26 shares are required to support an occupation order. [28] The Connor whanau seek four occupation orders. But the Huia Faith Taha Whanau Trust currently holds shares only and, upon the shares of Steve Wahapu and Sharon Lang being added, will hold a total shares. That will still be insufficient for one occupation order, let alone four. Hence, at present the Connor whanau applications do not satisfy s 329(2)(c). [29] However, in accordance with the objectives in s 17 of the Act, we adjourned the applications for 12 months to await progress of the ahu whenua trust proposal. This will also give the Connor whanau an opportunity to either acquire further shares or to group their shares with other owners in order to meet the shareholding requirement. In adjourning the application we were particularly mindful that the dispute over occupation of the land has plagued the owners for a number of years and that these applications provide the Court with an opportunity to either assist to resolve those issues or, at the very least, to establish the parameters for occupation. Allocation of occupation sites [30] As we have said, the dispute over occupation of the land has plagued the owners for a number of years. Some owners claim longstanding tupuna rights to certain areas while others claim more recent rights. The lengthy reports filed for the 7 March 2011 hearing were taken up with these issues and presented detailed evidence of historical occupation as far back as the 1820s, whakapapa and challenges to the rights of some owners. 19 Taitokerau MB 7

8 [31] As Mr Gough withdrew his application and the Connor whanau do not meet the shareholding requirement, we are not at this point in time required to finally rule on these claims. The 12 month adjournment will allow the owners to meet and, hopefully, sort out their differences and agree on the allocation of areas. However, we are mindful that it would be disastrous to simply send off the owners to meet without providing some clear guidance on the principles that apply to the allocation of areas for groups or individual. Accordingly, we set out the following guidelines. [32] First, the Act encourages owners to decide for themselves how to use their land. Given the complexities of past use of the land, the number of owners, the significant differences in shareholdings and the characteristics of the land, the owners would be best to develop a land use plan which can be incorporated into an ahu whenua trust order. A land use plan would need to take into account the following: 1. The plan must be based on the physical capacity of the land to accommodate housing and communal areas and any Whangarei District Council requirements. 2. Owners can only expect to be granted exclusive sites in the form of occupation orders if they have sufficient shares. Shareholding is critical and is the ultimate determinant of what is fair. Here, we have determined that owners need a minimum of 26 shares for a 2000m² site. Importantly, owners may need to hold more than 26 shares to justify a more desirable site, such as a site with commanding views. 3. Owners with less than 26 shares may be accommodated in the communal areas by way of temporary sites, camping areas and so forth. The communal areas can be set aside as a Maori reservation for the benefit of all the owners. We identified suitable areas during the site inspection. 4. Owners within particular whakapapa lines may be grouped in certain areas but, once again, the allocation of those areas must still reflect the shareholding of those owners. That is, some groups of owners will be entitled to smaller areas than others. 5. Owners may be allocated areas associated with their tupuna where there is agreement and where such an allocation is fair. [33] Second, and following on from point 5 above, tikanga has a place in addressing owners use and occupation of land but it operates within certain principles. Judge Ambler recently discussed this in Mohinui 3B2B: 12 [37] Prior to the Crown granting freehold title, land was held by Māori in accordance with custom and, therefore, tikanga largely prevailed. Following the 12 Mohinui 3B2B (2011) 18 Taitokerau MB 6 (18 TTK 6). 19 Taitokerau MB 8

9 granting of freehold title, the land was held by the owners as tenants in common and each owner was at law entitled to the use of the whole land, that is, there were no separate areas. However, notwithstanding the position at law, owners invariably agreed on the allocation and use of land without resort to legal tools such as licences, leases or orders of the Court. Such arrangements may be expected in relation to any land in multiple-ownership. In respect of Māori freehold land, these arrangements may be regarded as a form of tikanga. [38] Thus, the tikanga that Stephen Tautari speaks of is not uncommon though it obviously differs from block to block. Several points need to be made in relation to such tikanga. [39] First, it is always important to remember that tikanga are laid down for a specific purpose and in particular circumstances. [40] Second, and related to this first point, tikanga are not set in stone and may change. In his leading text on tikanga, Tikanga Māori, Living by Māori Values, Professor Hirini Moko Mead refers to adjustments being made to the practice of tikanga and to the overall pragmatism of tikanga. 13 In Mangere Village Lot 5A 14 Judge Carter commented in the context of the appointment of trustees that, Tikanga and custom are not necessarily static but generally evolve over passage of time, particularly to take into account changes in society and circumstances. Thus, tikanga may change by express agreement or by circumstances. [41] Third, tikanga must be practised in order to have currency. This is what Professor Mead refers to as social validation. 15 It follows that if a tikanga concerning land allocation has not been practised for some time it may be questioned whether it can still be said to be tika. [42] Fourth, before the Court will endorse a tikanga concerning land allocation the Court must be satisfied that it is fair in its treatment of the owners. That is, it cannot compromise the underlying property interests in the land. [43] Consequently, the Court will, in accordance with the Preamble and ss 2 and 17 of the Act, endeavour to give effect to such tikanga where its purpose remains valid, it has not changed, it has continued to be practised and it is fundamentally fair. [34] Third, the Court is unlikely to give weight to claims about where tupuna lived on Pataua in the 1820s, 1840s and so forth when we are today concerned with a much smaller remnant of that land, Pataua 4B, and when the owners number 171. Equally, assertions that my tupuna put me here and I will not move will not carry weight if that owner s shares are too small to justify an occupation order for that site. We specifically observe that: 1. Mr Gough cannot claim exclusive rights to Haukapua when it clearly contains the best building sites. Certain tupuna may have lived on particular areas in the past but that was decades ago when there were far fewer owners and when their use of the land was very different. 2. The Connor whanau, who at present have five small dwellings on the land, cannot presently justify any occupation orders. Furthermore, orders as to Hirini Moko Mead Tikanga Māori, Living by Māori Values, (Huia Publishers, Wellington, 2003) at pp 14 and 17. Mangere Village Lot 5A (1997) 81 Waikato Minute Book 187 (81 W 187) at 189. Supra p Taitokerau MB 9

10 ownership of dwellings, as per the Whaikawa whanau and Graham Mahanga, do not create exclusive rights to those areas and are not a substitute for occupation orders. As we have said, the shareholding dictates what orders the Court can make and what is fair. 3. Simply because some owners have built houses within prime areas does not mean that other sites within those areas must be allocated to that line in the whakapapa. Fairness is the ultimate determinant. Outcome [35] Mr Gough s application is dismissed with leave to re-file within 12 months. [36] The Connor whanau s applications are adjourned for 12 months. Mr Patira is to convene a meeting of owners to discuss forming an ahu whenua trust that addresses the occupation of the land and is to file any resulting application. The filing fee is to be waived. The meeting will need to decide whether to establish an ahu whenua trust and, if so, to nominate trustees and to agree on a land use plan in light of the guidelines we have set out above. The Registrar is to assist Mr Patira in conducting the meeting, including providing an explanation and examples of ahu whenua trust orders that provide for areas for groups of owners, and may seek further directions from the Court. Dated at Whangarei this 12 th day of April A D Spencer JUDGE D J Ambler JUDGE 19 Taitokerau MB 10