OIorohang> Minute Book Volume 120 Folio 3 INTHEMATIER

Transcription

1 OIorohang> Minute Book Volume 120 Folio 3 In the Maori Land Court of New Zealand Waikato Maniapolo Dislrict Files: A A A A A A INTHEMATIER of applications for succession pursuant 10 seclion 118 of Te Ture Whenua Maori Acl1993 by Lanl Dawn Tane-Stockler and Norman Tane to Tanelinorau Opalaia and Others DECISION Background The above applicalions affect inleresls in Hauluru Easl 8 Block. Thai block is Ihe block conlaining Ihe Wailomo Caves and Ihe parking area servicing Ihe caves. The block was vesled in certain owners as part of whal is known as Ihe Wailomo Caves Settlemenl r,:nai 51). The lands which are now Hauluru Easl 8 Block were formerly part of Hauluru Easl3B1 Block and Hauluru Easl 1A6 Block. One acre 2 roods 13 perches of Hauluru Easl 3B1 was laken under Ihe Public Works Acl on 7 April 1911 for Ihe convenience and enjoymenl of the Wailomo Caves House. Three acres of Hauluru East No 1A No 6 Block was laken for scenic purposes under the Public Works Act 1905 and the Scenery Preservation Acl 1903 on 11 February These two areas lotalled 4 acres 2 roods 13 perches. The tolal area of Hauturu Easl 8 Block relurned to the former owners was 1.88 hectares or 4 acres 2 roods perches. The claim 10 Ihe Wailangi Tribunal was broughl on behalf of the hapu of Ruapuha. A negotialed settlement was reached. In the case of Ihe Iwo blocks which now make up Hauturu East Block when the lands were laken the litles had been established and owners recorded.

2 Volume 120 Folio 4 Page 2 The application to the Maori Land Court by the then Minister of Lands sought vesting of the block under section 436 of the Maori Affairs Act The vesling was to be "in the owners recorded on the instrument of title for that land specified in the second schedule as at the date of taking thereof'. The second schedule referred to Hauturu East la6 Block and Hauturu East 3Bl Block and the dales of gazetting of each of those blocks. The application for vesting was heard at Te Kuiti on 1 October 1990 and is recorded at Otorohanga Minute Book 104/ The application was presented on behalf of the Minister of Lands by a representative of the Department of Survey and Land Information at Wellington and Counsel for the owners was present. The Court was asked to make a vesting order u~der section 436 vesting the blocks in the beneficial owners thereof as at the date of taking of the lands. The Court made an order accordingly in the following terms - Order under Section 436/53 vesting Hauturu East Section 8 in the original owners thereof as at the date of taking by the Crown namely in respect of Hauturu East 1 A6 as at the 29th day of December 1905 and the owners of Hauturu East 3Bl as at the date of taking thereof namely the 13th of April The area of la6 taken was 3 acres and the area of 3Bl taken was 1 acre 2 roods 13 perches and the shareholdlng in the new Hauturu East Section 8 block is to be calculated between the respective owners on an area basis. " Title was duly compiled and accordance with the Court's order and the current list of owners for Hauturu East Block and their shareholding is - 1. Ani Hokopu Charles Richard Davis m Edward Charles Davis m Haami Haereiti m Hare Purangi m Joseph Paul Davis m Kingi Taniora Tanetinorau m Kino Tanetinorau Lani Dawn Tane-Stockler f Mereana Tanetinorau Norman Tane m Okewhare Tanetinorau f

3 Otorohanga Minuto Book Volume 120 Folio 5 Page Parakau Tanetinorau m Rangipataka Tanetinorau m Rangiwhakarewa Parone Tanelinorau Opalaia m Te Aue Tanelinorau f Te Kiripango Tanetinorau f Te Whata Karaka f Thomas Phillip Davis m Totorewa Tanetinorau m Waiwhakaehu Tanetinorau f Whariki Tanelinorau f The original list of owners as at 1 October 1990 contained Purangi Tanetinorau holding shares. Succession to Purangi Tanetinorau or Baggs was made on 3 February 1999 in favour of Lani Dawn Tane-Stockler and Norman Tane who are shown as numbers 9 and 11 above. That is the only change 10 the original ownership. In the submission to the Court Mr Bollmann for DOSLI said: This application will vest the land described in the terms of settlement in Trustees for Ihe persons beneficially entilled or for that class of persons being the descendants of Ihe owners recorded at the date of the taking. " The application under section 436/53 was accompanied by an application under section 438/53 to create a Trust in respect of the block. These applications are recorded at Otorohanga Minute Book 104/ and Ihe orders establishing a Trust were formally pronounced at Olorohanga Minute Book 104/272. An interim Trust was established to be known as the Ruapuha Uekaha Hapu Trust and it provided that within one year the trustees should call a general meeting and Ihe general meeting should consider Ihe future use and administration and constitution of the Trust of the block and move for a varialion of the trust order accordingly. No further application has been made and Ihat order, which was made on Ihe 2nd of October 1990, still remains in force.

4 Volume 120 Folio 6 Page 4 In the trust order the word beneficiaries is defined as follows - " In this Trust Order the word "beneficiaries" refers to all the descendants of the owners In whom the land was vested by order of the Court at Te Kuill pursuant to Section 436 of the Maori Affairs Act 1953 on the 1 st day of October " The owners in Hauturu East 8 Block come from four whanau. Those whanau have each formed separate Trusts for the administration of their lands or assets. They are the Tanetinorau Opataia Whanau Trust, the Haami Haereiti Whanau Trust, the Whatakaraka Whanau Trust and the Te Riutoto Aihe Whanau Trust. Using the numbers set alongside Ihe above list of owners the shares held rei alive to each of those Whanau Trusts Is as follows - Haami Haereiti Whanau Trust Te Whatakaraka Whanau Trust Te Riulolo Aihe Whanau Trust Tanetinorau Opataia Whanau Trust Numbers 4 and 15 Number 19 Numbers 2, 3, 6 and 20 All the remaining owners I understand that the Ruapuha Uekaha Trust has structured its management around these Trusts and recognises that they should manage the shares relative to their shareholders. Each of the Trusts is en tilled to appoint trustees to the Ruapuha Uekaha Whanau Trust. Distributions are made through those Trusts on a basis that appears to have been agreed to among them. It is perhaps a matter of some concem that despite meetings and attempts to finalise the Ruapuha Uekaha Trust in accordance with the Intenlion of the order made in 1990 this has not yet been done. There are applications for succession involving owners numbered 1,5,14,16, 17, 21 and 23. All th ese are members of the Tanetinorau Opataia Whanau. All the applications for succession have been brought by the present applicants except for succession to Te Aue Tanetinorau (Number 17). The latter application has been brought by Noeline Hira Love and the Court is not currenlly dealing with it in connection with the other applications. That application seeks to establish a separate whanau trust for the holding of Te Aue Tanetlnorau. My findings in respect of the applications made by Mrs Tane-Stockler and Mr Tane will no doubt affect the manner in which I deal with the application by Noeline Love. ~

5 Volume 120 Folio 7 Page 5 Because of the impact of the present applications on the Ruapuha Uekaha Trust and the four whanau trusts I directed that notice be given to the trustees of those trusts and other persons who appeared to be affected. As a consequence a number of submissions, which CQuid be grouped under two heads, were made opposing the applications. First, it was claimed that, if granted, the applications and consequent orders for succession could undermine the structure of ownership and ability of the trustees to manage and administer the block. They could also impact upon the management and administration particularly of the Tanetinorau Opataia Whanau Trust. Secondly was whether the applicants were in fact entitled to succeed. As I have already noted both succeeded to an interest held by Purangi Baggs or Tanetlnorau by order of succession made by this Court at Tauranga on 3 February 1999 at Tauranga Minute Book They were beneficiaries under the Will of Purangi Baggs and the Court made succession orders in accordance with the provisions of that will. Again, as stated, this is the only case of any succession since tille was established in In each of the applications Purangi Tanetinorau is one of the successors to the deceased and the applicants claim through Purangi. Angela Pope, on behalf of the Ruapuha Uekaha Trust points out that the land was not the property of Purangi at the date of his death on 3 May 1971 nor did he have any right or claim to it which could be regarded as an asset of the estate. Accordingly she questions whether succession under the provisions of the will is appropriate or whether the land should be dealt with under an intestacy in which case others would also be entitled. Before considering the submission I look briefly at the effect of succession, if granted, on the bases of the applications that have been made. For the purposes of the exercise I relate to the original owners, remembering that Purangi Tanetinorau's shares have been succeeded to by Lani Dawn Stockier and Norman Tane. /

6 Volume 120 Falla 8 Pag.6 Members of the Tanetinorau whanau on the original list were: 1. Ani Hokopu fa Te Aue Tanetinorau fa Hare Purangl ma Kingi Taniora Tanetinorau ma Kino Tanetinorau fa Te Kiripango Tanetinorau fa Mereana Tanetinorau fa Okewhare Tanelinorau ma Parakau Tanetlnorau ma Purangl Tanetinorau ma Rangipataka Tanetinorau ma Tanetinorau Opatala ma Totorewa Tanetinorau ma Waiwhakaehu Tanetinorau fa Whariki Tanetinorau fa The present applications apply to Numbers 1, 6, 15, 17, 19 and 21. A brief exam ination of those appl ications shows that successions would pass through the same children of Tanetinorau Opataia. Ani Hokopu was the mother of Tanetinorau Opataia and her interest would pass through him to his children. Hare Purangi was a brother of Ani Hokopu who died without issue and his shares would pass through her to the children of Tanetinorau Opataia. Rangipataka Tanetinorau and Totorewa Tanetinorau were children of Tanetinorau Opataia both of whom died without issue so that their shares would pass to their siblings. Whariki Tanetinorau was the wife of Tanetinorau Opataia and both her and his shares would pass to the children of Tanetinorau.

7 Volume 120 Folio 9 Page 7 Accordingly, if succession were to be granted, the entitlements of all the deceased would pass to the children of Tanetinorau Opataia and then to their successors. This would mean that the total shares of the deceased owners amounting to shares would pass equally to Numbers 2, 8 to 14 and 20, that is and, in some cases, shares each. This would give the following shareholding NAME EXISTING ADDITIONAL SHARES SHARES!Q!& 2. Te Aue Tanetinorau fa Kingi Taniora Tanetinorau ma Kino Tanetinorau fa Te Kiripango Tanetinorau fa Mereana Tanetinorau fa Okewhare Tanetinorau ma Parakau Tanetinorau rna Purangi Tanetinorau ma Waiwhakaehu Tanetinorau fa TOTAL: The above exercise shows the shares that each the chidren of Tanetinorau Opataia would have received and would have been available to each whanau had succession followed in the nonmal way. I tum now to consider the submissions. First are the submissions that the change in ownership as a consequence of succession could undermine the present stnucture of ownership and the way in which the block Is managed and administered. I tend to agree with those submissions. The present Trust is run on a whanau basis and succession would see undivided ownership recognised. Accordingly the structure of the Trust would need to be changed to accord more with that of a standard ahu whenua trust. While I agree with the submission I do not see this as a reason to decline succession. If it is established that there is an entitlement to succeed then the Court must make orders.

8 Volume 120 Falla 10 Page 8 Secondly is the submission by Angela Pope questioning whether persons named under the will can succeed to lands which have been vested in a deceased's name subsequent to his death. One would normally look at a will where lands are held by an owner who is deceased. However in the present case the testator ceased to have any interest in the block in He died in 1971 and there was no right whereby he might bring any action to recover this land. The estate had been administered and there was no way in which this land could be regarded as an asset of the estate. II could never have been contemplated by the testator that this land would form part of his estate and in fact it never did. It was only when the provisions of the Treaty of Waitangi Act were extended in 1985 that any such right to make a claim arose, long after the death of Purangi Tanetinorau. I therefore fail to see how the land could be treated as part of his testate estate, that is, under his will, unless the manner of vesting made some such specification. Vesting in the name of a deceased person, although sometimes done to recognise tupuna, is unusual and this would seem to account for my inability to find any authority on the subject. Having regard to the fact that this land was subject of a Treaty of Waitangi settlement and to the tikanga of succession I would have taken the view that this land should be dealt with under an intestacy if succession was appropriate. As it happens I do not have to decide this issue. In looking carefully at the settlement that was made it is apparent that while the various tupuna were put on the tiue it was never intended that they be regarded as absolute owners and subject to rights of succession. The original claim to the Waitangi Tribunal was filed by Josephine Anderson on behalf of the hapu of Ruapuha on 3 February This was superseded by a later mare explicit claim filed on 14 July 1989, Part of the relief specified was the "Return of the land to the descendants of the original owners", The underlining is mine. The claim was not ruled on by the Tribunal but was accepted by the Crown and mediation followed, The vesting which ensued was in accordance with the relief claimed and the details are set out in the first two pages of this decision. The land was vested in the owners at the date of the taking of the land. However to ensure that the beneficial owners were the descendants of those owners a section tnust was established in which the beneficiaries were defined as the descendants of the owners, that is, of the owners as at the time the land was taken.

9 Volume 120 Folio 11 Page 9 This was Ihe basis on which the land was vested in the original owners. II was not intended that they hold the title as absolute owners and be subject 10 rights of succession. Their names were entered on the title simply to record that they were the owners when the land was taken and to establish the class of persons who were beneficially entitled to the land pursuant to the trust order made on the 2nd of October Normally in a section 438/53 trust or an ahu whenua trust under the 1993 Act the owners arrange for a trust to be formed to manage their land. The trustees become the legal owners and the former owners become the beneficial owners. Their interests are still recorded on the title and are capable of transfer and succession. In the present case to meet the terms of the agreed settlement the original owners were recognised by placing them on the title and a trust then established whereby the trustees held the legal title and the descendants of the original owners as a class became the beneficial owners. By this process the title of the original owners was supplanted and they now hold no title or interest in the land. I find that the owners listed on the title now hold no interests in the land and therefore cannot be succeeded to. Consequently the applications are dismissed. I noted earlier that I had on 3 February 1999 at Tauranga MB 61/182 made an order of succession to Purangi Tanetinorau or Purangi Baggs. At that time I had no reason to enquire into the background of the vesting of the Waitomo Caves lands and simply treated that application as a simple application for succession on the bas is that the land was held by the deceased as at the date of his death. believe that I was at fault in making that order and that consequent upon the above investigation the order was made in error of law. The Registrar is directed to consider making an application under section 45/93 to rectify the error. This brings me to the Court's title record. II shows the original owners as the owners. II now needs to be noted as to the true position; that the legal owners are the trustees and that the beneficial owners are a class of persons, namely, the descendants of the original owners; that the original owners hold no interest in the title and that there can be no succession.

10 Volume 120 Folio 12 Page 10 The applicants have made their application in reliance on the Court's title. circumstances it is appropriate that their fees be refunded and I direct accordingly. In the Dated at Hamilton this 10th day of May ~~...,... " JUDGE G D CARTER COpy TO: The Applicants and to ali interested parties Recorded on the Court files. Ol20A.thc\3 12