IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A THE MĀORI TRUSTEE Applicant RESERVED JUDGMENT OF JUDGE D J AMBLER

Transcription

1 124 Taitokerau MB 231 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 131, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN Pt Sec 1 Blk 1 Punakitere SD THE MĀORI TRUSTEE Applicant Hearing: 11 June August December 2013 (Heard at Whangarei and Kaikohe) Judgment: 09 February 2016 RESERVED JUDGMENT OF JUDGE D J AMBLER

2 124 Taitokerau MB 232 Introduction [1] This decision concerns a block of land described as Pt Sec 1 Blk 1 Punakitere SD comprising approximately 240 acres ( the land ). The Māori Trustee has held the land on trust since 1961 and has now applied to the Court to determine the status of the land. The essential question is whether the land has the status of Crown land or Māori freehold land in terms of s 129 of Te Ture Whenua Māori Act 1993 ( the 1993 Act ). The Māori Trustee does not have a fixed view on the status of the land and merely seeks the Court s determination. The Crown s position is that it has had no interest in the land since 1961 and that the land belongs to the Māori Trustee. There was no participation in the proceeding by the beneficiaries of the trust that applies to the land, being the Ngāti Moerewa hapū. The application [2] The Māori Trustee filed its application to determine the status of the land in The application was supported by a report from a local surveyor with considerable experience with Māori land, Mike Elrick of the survey firm Lands and Survey Limited. It had been prompted by an earlier application to vary the Māori Trustee s trust over the land, which I dealt with on 12 December In the course of addressing that application it became apparent that the status of the land was unclear, and so I directed the Māori Trustee to bring an application to determine the status of the land within 12 months. [3] The first substantive hearing of the application occurred on 21 August The Māori Trustee was represented by Pita Paraone, and Mr Elrick was also in attendance. We discussed the history of the land as disclosed by Mr Elrick s research. At the conclusion of the hearing I adjourned the application to Chambers to issue directions. The following day, on 22 August 2013, I outlined the issues arising from the application and issued the following directions: 3 I therefore direct as follows: 1. Mr Elrick is to file any further evidence or information within one month Taitokerau MB (32 TTK ). 67 Taitokerau MB (67 TTK ). 64 Taitokerau MB 5-6 (64 TTK 5-6). 232

3 124 Taitokerau MB Upon receipt of Mr Elrick s further information, the Case Manager is to forward to the Commissioner of Crown Lands and the Chief Executive of LINZ a full copy of the application, supporting material and relevant minutes and orders of the Court. 3 The Commissioner of Crown Lands and the Chief Executive of LINZ are to advise the Court by 22 October 2013 of their preliminary position in relation to the application. 4 The application will be set down for a teleconference with Mr Paraone and Mr Elrick for the Māori Trustee, and counsel for the Commissioner of Crown Lands and the Chief Executive of LINZ, in the week commencing Tuesday 29 October [4] On 11 December 2013, Crown Law filed a memorandum on behalf of the Commissioner of Crown Land and the Chief Executive of Land Information New Zealand confirming that the Crown has had no interest in the land since the 1961 order vesting the land in the Māori Trustee. [5] I convened a teleconference with counsel for the Māori Trustee, Stewart Otene, and Mr Elrick on 16 December Mr Elrick advised that he did not wish to present any further evidence. Mr Otene confirmed that the Māori Trustee took a neutral stance in relation to the application. The application was adjourned for a reserved judgment to issue. The history of the land [6] The relevant background to the application involves the history of the original investigation of title in the Native Land Court and subsequent efforts to have the land vested in Māori. The investigation of title [7] The land formed part of the Punakitere block first investigated by the Native Land Court on 2 June Survey plan 3270, prepared at the time of the investigation of title, showed the Punakitere block to be 7557 acres. It also showed a 240 acre block within the Punakitere block at its southern end as Reserve. That is the land with which we are concerned. Whether the Reserve was depicted on the survey plan at the time it was Taitokerau MB 90 (70 TTK 90). 2 Northern MB 119 (2 N 119). 233

4 124 Taitokerau MB 234 produced to the Court is unclear. A later survey plan, 4004, prepared in October 1877 also showed this 240 acre block as a Native Reserve. [8] Whatever the effect of the two survey plans, the land is today defined as a separate title in the cadastre. According to Mr Elrick, an area of hectares was taken for road (SO 62710), meaning that the original area of hectares has reduced to hectares. [9] At the original investigation of title in 1875 the principal claim to the land was brought by Pehikuru on behalf of Ngāti Moerewa. He did not claim all of the Punakitere block, just the area between the Waimea creek and Punakitere river. He is recorded as saying, I wish to reserve this piece. 6 According to evidence given some years later, one of the reasons the Native Reserve was sought was because the land contained wāhi tapu. 7 There were however cross-claimants to the land, including Mehaka Patutai and Hori Karaka Tawiti. Ultimately, after the claimants presented their evidence, Hori Karaka Tawiti requested an opportunity to arrange the matter amongst themselves outside Court. When discussions concluded, Hone Mohi Tawhai advised the Court that the matter had been arranged and that Hori Karaka Tawiti should be considered the sole owner. The Court made orders to that effect. 8 [10] The Punakitere block was sold to the Crown shortly thereafter. In 1876 it was recorded as being proclaimed waste lands following its purchase by the Crown. However, the situation with the 240 acre Native Reserve with which we are concerned remained uncompleted and unclear for a significant number of years. The Native Reserve [11] The most complete explanation of what led to the creation of the Native Reserve is set out in the minute of a hearing on 11 February 1946, when the Court was addressing the Minister of Lands application under s 527 of the Native Land Act 1931 ( the 1931 Act ) Northern MB 120 (2 N 120). 12 Bay of Islands MB 369 (12 BI 369). 2 Northern MB (2 N ). 21 Bay of Islands MB (21 BI ). 234

5 124 Taitokerau MB 235 [12] During the course of the hearing the Crown official, Mr Wright, explained that the Crown had acquired the whole of the Punakitere block of 7557 acres in about The 240 acre block was contained within that larger block. Nevertheless, apparently Māori sought retention of the Native Reserve. [13] On 10 March 1877 the chairman of the Waste Lands Board advised that there was no objection to 500 acres being set aside as reservations out of the Punakitere and Arawhatatotara 1 block (which lies immediately to the south of the Punakitere block). A letter of 15 July 1877 confirms that the surveyor was to lay-off the land. That same month, the district officer advised the land purchase agent regarding the survey of the wāhi tapu. The district officer subsequently confirmed to the land purchase agent that 200 acres was to be set aside from Arawhatatotara, with the balance to come from Punakitere. [14] In October 1877, plan 4004 was received showing the 240 acre Native Reserve within the Punakitere block. The subsequent parliamentary return of 1883 (C3) under the heading Negotiations Completed noted Punakitere as comprising 7117 acres, thus deducting the 240 acre Native Reserve from the original return. Likewise, in 1908 the 240 acres of land was included as a Native Reserve in a return to the Legislative Council. [15] Notwithstanding that history, for reasons that remain unclear the 240 acre Native Reserve was never formally vested in Māori and remained without any determination of ownership for many decades. It was not until 1946, when the Minister of Lands brought his application under s 527 of the 1931 Act, that the Crown sought to give effect to the arrangements from the 1870s. Earlier applications concerning the land [16] Prior to the 1946 application there in fact were two earlier applications that attempted to address the ownership of the land. [17] The Court s original block order file for the land contains a copy of an application for investigation of title filed in 1913 in the name of Wiremu Poakatahi. The claim referred to the land as Punakitere No 5, but it was the same 240 acre Native Reserve with which we are concerned. The application was advertised for hearing on several occasions and ultimately dismissed for non-prosecution on 28 May

6 124 Taitokerau MB 236 [18] In 1931 the Court considered a further application for investigation of title. It is not clear from the record who was the applicant. At that stage the Crown opposed the application on the basis that the land had been proclaimed Crown land. However, a consolidation officer, Maurice Vincent Bell, noted that the land had been surveyed off and tentatively marked as a Native Reserve from the Crown purchase. Wiremu Pehikuru attended Court and spoke on behalf of the Māori claimants to the land. He claimed it was intended to be reserved for Māori due to the wāhi tapu on the land. Ultimately, the application was adjourned on the basis that the Court would apply for special parliamentary authority to investigate the land s title. It is not clear whether that ever occurred. The Minister of Lands 1946 application [19] In 1946 the Minister of Lands applied to the Court under s 527 of the 1931 Act to determine ownership of the land. Hearings took place on 11 February 1946, October 1947, 11 and 9 February The Minister of Lands apparently brought the application as a result of research being undertaken which demonstrated that the land was indeed intended to be reserved from sale as a Native Reserve. I assume the application was in response to lobbying by interested Māori. [20] At the hearing on 11 February 1946 Mr Wright outlined the history of the land (as set out above). In addition, Tamati Pehikuru, the grandson of the original Pehikuru who claimed the land in 1875, said that the land contained wāhi tapu and a papakainga. He claimed the land on behalf of Ngāti Moerewa. He explained that Hori Karaka Tawiti had been appointed as owner to sell the overall block, but that Pehikuru had been appointed to hold the reserve on behalf of the hapū. The Court concluded the hearing on the basis that it was clear that the land was intended to be excluded from sale. However, the application was adjourned to enquire as to whether one of the other persons identified, Matenga Taiwhanga, or his descendants had an interest in the land. [21] When the application came before the Court again on 17 October 1947, Tamati Pehikuru advised that he had not been able to trace descendants of Matenga Taiwhanga Bay of Islands MB (21 BI ). 22 Bay of Islands MB (22 BI ). 25 Bay of Islands MB 238 (25 BI 238). 236

7 124 Taitokerau MB 237 He proposed that five individuals be appointed as trustees on behalf of Ngāti Moerewa. Hemi Toia objected to that arrangement on the basis that other hapū including Ngāti Terau, Ngāti Pakau and Ihutai had interests in the land. The application was adjourned in light of the objections. [22] The application returned to Court on 9 February 1951 when Tamati Pehikuru once again sought orders. The objectors had not been able to establish a connection to the land. The Court concluded it was inexpedient to vest the land in any individual Māori but that it should be vested in five trustees on behalf of the Ngāti Moerewa hapū, with any proceeds to be expended on wāhi tapu and any marae of Ngāti Moerewa. The Court made a recommendation under s 9 of the Native Purposes Act 1943 ( the 1943 Act ). [23] I set out below the relevant statutory provisions considered by the Court in relation to the Minister s 1946 application. The application had originally been under s 527 of the 1931 Act, which provided: 527 (1) Where any Crown land has been set aside or reserved for the use or benefit of Natives, or where it is proposed to so set aside or reserve any such land, the Court shall have jurisdiction, on the application of the Minister of Lands, to inquire and ascertain what persons shall be included in the certificate of title or other instrument of title of that land, and to determine the relative interests of the persons so ascertained, and the Court shall report its findings to the Governor-General. (2) After receiving any such report the Governor-General may direct the District Land Registrar of the district within which the lands referred to in such report are situated to issue a certificate or certificates of title for such land in favour of the Natives so ascertained to be entitled, and if more than one as tenants in common according to their respective shares and interests, subject to such restrictions on alienation as to the Governor-General shall seem fit; and the District Land Registrar shall issue certificates of title accordingly. [24] However, the Court made its recommendation under s 9 of the 1943 Act, which provided: 9 (1) Where upon the exercise of jurisdiction pursuant to an application by the Minister of Lands under section five hundred and twentyseven of the principal Act the Court considers it inexpedient for any reason that the Crown land to which the application relates should be vested in any particular Native as the owners thereof but considers that the land should be vested in trustees for some group 237

8 124 Taitokerau MB 238 or class of Natives, the Court shall report its findings to the Governor-General, stating the group or class of Natives and the name or names of the trustee or trustees in whom the land should be vested. (2) The Native Trustee or any Māori Land Board or any person or persons, whether incorporated or not, may be appointed trustee or trustees under this section. (3) In respect of such land as aforesaid, the Governor-General may, if he thinks fit, direct the District Land Registrar of the district within which the land is situated to issue a certificate of title in favour of the trustee or trustees, and the District Land Registrar shall, if directed by the Governor-General so to do, place on the certificate of title issued in pursuance of the direction a memorial to the effect that the land has been granted under this section. (4) Forthwith after the issue of any such certificate of title the Court shall by order declare the trusts upon which the land shall thenceforth be held, and the provisions of the last preceding section shall, so far as applicable and with the necessary modifications, apply as if the trusts had been declared under that section. (5) For the purposes of this section, unless the context otherwise requires, any person who is a descendant of a Native shall be deemed to be a Native. [25] As can be seen, where an application came before the Court under s 527 of the 1931 Act the Court could determine the Māori who owned the land and report those findings to the Governor-General. In the alternative, under s 9 of the 1943 Act the Court could recommend to the Governor-General that the land be vested in trustees for a group or class of Māori. Importantly, much like a recommendation for a Māori reservation under the 1993 Act, the Court s recommendations would only be effected by the Crown taking the next step (in this instance, through the Governor-General issuing a certificate of title in favour of the owners or trustee). In the present case there is no evidence that the Crown took any steps to give effect to the Court s recommendation under s 9 of the 1943 Act. Consequently, the land remained in Crown ownership. The vesting of the land in the Māori Trustee [26] The application that finally resulted in the land being alienated from the Crown and vested in the Māori Trustee first came before the Court on 6 September The Deputy Registrar appears to have applied under s 437 of the Māori Affairs Act 1953 ( the Bay of Islands MB (35 BI ). 238

9 124 Taitokerau MB Act ) to vest the land in trustees. The application was supported by the Hokianga County Council, which was concerned about the noxious weed position of the land. The Deputy Registrar noted a separate application by Tamati Pehikuru to appoint trustees. That separate application, under s 443 of the 1953 Act, subsequently came before the Court on 10 February Tamati Pehikuru proposed the appointment of five trustees to administer the land. However, the Court concluded that it would be better to appoint the Māori Trustee and adjourned the application to Chambers to consider the form of the order. [27] Section 437 of the 1953 Act effectively replaced s 527 of the 1931 Act and s 9 of the 1943 Act (discussed above), and provided: 437 Court to determine beneficiaries of Crown land reserved for Maoris (1) Where any Crown land has heretofore been or is hereafter set aside or reserved for the use or benefit of Maoris, the Court, on the application of the Minister of Lands, shall proceed to determine the persons who are beneficially entitled to the land, and their relative interests therein, and, subject to the provisions of subsection four hereof, shall thereupon make an order or orders vesting the land in the persons found by it to be entitled thereto. (2) Every order made under this section shall have the effect of vesting the land therein referred to in the persons therein named for a legal estate in fee simple as if the land had been then granted to those persons by the Crown. (3) Where two or more persons are named in any order as entitled to any land, they shall hold the same as tenants in common in the shares expressed in the order. (4) Notwithstanding anything in the foregoing provisions of this section, the Court may, if it thinks fit, vest any land in a trustee or in trustees, to be held in trust, in accordance with the terms of the order, for the benefit of any Maoris or of any group or class of Maoris specified in the order. (4A) The Court may at any time, in respect of a trust constituted under this section, on the application of any person interested, do any of the following things: (a) (b) It may add to or reduce the number of trustees, or may replace the trustees or any of them by making a further order vesting the land that is subject to the trust in any person or persons, (with their prior consent) upon and subject to the existing trusts, whether or not those persons or any of them were previously trustees; or It may vary the terms of the trust by making a new trust order in substitution for the existing trust order Bay of Islands MB 98 (36 BI 98). 239

10 124 Taitokerau MB 240 (5) For the purposes of this section the term Maoris includes the descendants of Maoris. (6) The District Land Registrar shall endorse on any certificate of title issued to trustees appointed under this section a memorial to the effect that the land has been vested in the trustees pursuant to this section. (7) Notwithstanding that any Crown land has not formally been set aside or reserved for the benefits of Maoris, the Court, on the application of the Minister of Lands, may exercise in respect of the land the jurisdiction conferred by this section, and all the provisions of this section shall apply accordingly. [28] Section 443 of the 1953 Act was a general provision allowing the Court to appoint trustees in relation to any real or personal property held on trust for Māori. [29] The two applications that is, the Deputy Registrar s application under s 437 and Tamati Pehikuru s application under s 443 were finally disposed of by the Court on 23 May 1961 as follows: 15 This matter considered at Kaikohe. See previous minutes. The application before the Court at sitting in February was that by Tamati Peehikuru but there was the further application by Deputy Regs which was then not referred to but which had been considered at an earlier sitting. Court now satisfied order should be made under Sec 437(4) appointing the Māori Trustee as Trustee to be held on following trusts (a) (b) To lease on such terms as the Māori Trustee may decide, but in opinion of the Court it may be necessary to accept a peppercorn rental for a number of years to induce a prospective lessee to take it on. Probably a lease for 21 years with first 6-8 years free of rent and rent then to commence on some basis to be decided on. Terms to include safeguards for wahitapu so that such shall be properly respected, preferably fenced off. How cost of fencing wahitapus to be borne to be gone into. Any proceeds available to be expended on wahitapus on the land and any surplus on any marae of the Ngatimoerewa. Qualified to the extent that such trusts may be varied on application to the Court from time to time where any variation appears to be fair and reasonable. [30] The sealed order of the Court is to the following effect: WHEREAS an application has been made to the Court by William Adams, Deputy Registrar of the Māori Land Court, to vest the land known as Section 1 Block 1 Punakitere S.D. in the Māori Trustee and whereas the Court on hearing such Bay of Islands MB (36 BI ). 240

11 124 Taitokerau MB 241 evidence as has been placed before it hath determined that the said land is Crown Land. NOW THEREFORE the Court having heard all parties requiring to be heard in pursuance of the powers vested in it under Section 437(4) of the Māori Affairs Act, 1953, DOTH HEREBY ORDER that the land known as Section 1 Block 1 Punakitere S.D. be and the same is hereby vested in the Māori Trustee upon trusts: - (1) To lease on such terms as the Māori Trustee may decide (2) Any proceeds available to be expended on Wahitapus on the land and any surplus on any Marae of the Ngatimoerewa subject to such trusts being varied on application to the Court form time to time where any variation appears to be fair and reasonable. [31] Following the 23 May 1961 order vesting the land in the Māori Trustee there have been further orders: cancelling the original order and making a replacement order under s 437(4) of the 1953 Act on 5 February 1965; 16 creating a new trust over the land under s 438(3)(b) of the 1953 Act on 30 November 1978; 17 and, much more recently, varying the trust pursuant to s 244 of the 1993 Act on 12 December [32] Today, the land is vested in the Māori Trustee on behalf of Ngāti Moerewa but there is no order determining the status of the land as a consequence of that vesting. The status of the land Legislation [33] Section 129 of the 1993 Act sets out the particular statuses of land for the purposes of that Act: 129 All land to have particular status for purposes of Act (1) For the purposes of this Act, all land in New Zealand shall have one of the following statuses: (a) (b) (c) Maori customary land: Maori freehold land: General land owned by Maori: Kaikohe MB 122 (3 KH 122). 55 Whangarei MB 177 (55 WH 177). 32 Taitokerau MB (32 TTK ). 241

12 124 Taitokerau MB 242 (d) (e) (f) General land: Crown land: Crown land reserved for Maori. (2) For the purposes of this Act, (a) (b) (c) (d) (e) (f) Land that is held by Maori in accordance with tikanga Maori shall have the status of Maori customary land: Land, the beneficial ownership of which has been determined by the Maori Land Court by freehold order, shall have the status of Maori freehold land: Land (other than Maori freehold land) that has been alienated from the Crown for a subsisting estate in fee simple shall, while that estate is beneficially owned by a Maori or by a group of persons of whom a majority are Maori, have the status of General land owned by Maori: Land (other than Maori freehold land and General land owned by Maori) that has been alienated from the Crown for a subsisting estate in fee simple shall have the status of General land: Land (other than Maori customary land and Crown land reserved for Maori) that has not been alienated from the Crown for a subsisting estate in fee simple shall have the status of Crown land: Land (other than Maori customary land) that has not been alienated from the Crown for a subsisting estate in fee simple but is set aside or reserved for the use or benefit of Maori shall have the status of Crown land reserved for Maori. (3) Notwithstanding anything in subsection (2) of this section, where any land had, immediately before the commencement of this Act, any particular status (being a status referred to in subsection (1) of this section) by virtue of any provision of any enactment or of any order made or any thing done in accordance with any such provision, that land shall continue to have that particular status unless and until it is changed in accordance with this Act. [34] Section 129(3) is important. In the present case there is no evidence that the status of the land has changed since the 1993 Act came into force. Therefore, pursuant to s 129(3), the land continues to hold the status it had prior to the 1993 Act coming into force. The relevant definitions of land that applied at the time the Court made its order on 23 May 1961 are set out in s 2 of the 1953 Act as follows: Land includes Crown land, European land, and Māori land as those terms (subject to the special provisions contained in subsection two of this section) are herein defined, that is to say: 242

13 124 Taitokerau MB 243 Crown land means any land other than Māori land which has not been alienated from the Crown for a subsisting estate in fee simple: Customary land means land which, being vested in the Crown, is held by Māoris or the descendants of Māoris under the customs and usages of the Māori people: European land means any land other than Māori land which has been alienated from the Crown for a subsisting estate in fee simple: Māori land means customary land or Maori freehold land: Maori freehold land means land other than European land which, or any undivided share in which, is owned by a Māori for a beneficial estate in fee simple, whether legal or equitable: [35] The essential issue is therefore whether the effect of the Court s order of 23 May 1961 is that the land remained Crown land (what the 1993 Act would later define as Crown land reserved for Māori ) or whether its status changed to Maori freehold land. [36] The 1961 order was not explicit as to whether it had the effect of changing the status of the land. Mr Elrick interpreted the order to contain a determination that the land was Crown land. In fact, the minute of the hearing does not include any such determination, though the sealed order does state in its recital clause that the Court hath determined that the said land is Crown Land. That said, the recital simply reflects the fact that the Court needed to be satisfied that the land was Crown land before it could make an order under s 437 of the 1953 Act. Importantly, the Court did not determine the status of the land after the s 437 order had been made. [37] Section 437 needs to be understood in its historical context. It originates from s 11 of the Native Land Amendment Act 1912 ( the 1912 Act ), where the Minister of Lands could apply to the Court to determine the persons entitled to land held by the Crown. The Court s findings would be reported to the Governor to act on. The Hansard debates regarding the 1912 Act report in relation to this particular provision: 19 Clause 9A allows the Court to decide what Natives are the beneficial owners of any reserve. There are numbers of reserves under the control of the Crown Lands Boards reserves scattered all over the country and no one knows to what use they ought to be put. They have been reserved in the old days for some purpose. This clause allows the Court, on the requisition of the Minister of Lands, to inquire into who really are the beneficial owners of these reserves. It still keeps them inalienable, but allows the Court to find who are the beneficial owners. 19 (31 October 1912) 161 NZPD

14 124 Taitokerau MB 244 [38] Section 11 of the 1912 Act was subsequently replaced by s 13 of the Native Land Amendment Act 1914 ( the 1914 Act ). Section 13 of the 1914 Act provided that upon receipt of the Court s report, the Governor could direct the District Land Registrar to issue a certificate of title for the land in the names of the persons entitled. That provision remained largely the same under s 527 of the 1931 Act (set out above). In 1943 the provision was further amended to allow the Court in the alternative to make a report to the Governor recommending that the land be vested in trustees per s 9 of the 1943 Act (also set out above). Section 527 of the 1931 Act and s 9 of the 1943 Act were subsequently replaced by s 437 of the 1953 Act, where the Court could make an order vesting the land in its Māori owners or trustees on behalf of Māori. The Court s powers were no longer recommendtory only. [39] Section 437 of the 1953 Act has since been replaced by s 134 of the 1993 Act. Section 134 expanded the categories of land that may be the subject of an application to vest land in the persons beneficially entitled or in trustees on behalf of a person or persons. It now includes not only Crown land but also general land, Māori land and land acquired for public works. However, the general purpose of the section remains unchanged, and is simply to enable land to be vested in the Māori who are determined to be entitled to it. Significantly, s 134(2) provides that in making an order the Court can declare that the land shall become Maori freehold land. [40] Accordingly, the purpose of s 437 of the 1953 Act (and its predecessors) was to enable Crown land that had been reserved for Māori to be vested in the persons beneficially entitled or in trustees to hold on behalf of Māori. While s 437 was not explicit that the status of Crown land changed to Maori freehold land as a consequence of a vesting order unlike s 134(2) of the 1993 Act in my view, s 437(2) operates to that effect. It provides: 437 Court to determine beneficiaries of Crown land reserved for Maoris (2) Every order made under this section shall have the effect of vesting the land therein referred to in the persons therein named for a legal estate in fee simple as if the land had been then granted to those persons by the Crown. 244

15 124 Taitokerau MB 245 [41] The reason land became Maori freehold land as a result of a s 437 order is that the effect of the order was to alienate the land from the Crown and vest its beneficial ownership in Māori. Returning to the definitions in s 2 of the 1953 Act, following the 1961 order the land we are concerned with was clearly no longer Crown land as it had been alienated from the Crown. It became Maori freehold land, being land other than European land which, or any undivided share in which, is owned by a Māori for a beneficial estate in fee simple, whether legal or equitable. It did not matter that the legal estate was vested in the Māori Trustee as trustee, because the equitable estate was clearly held by Māori, being the Ngāti Moerewa hapū. Consequently, the s 437 order converted this former Crown land to Maori freehold land. Case law [42] There are surprisingly few decisions on s 437 of the 1953 Act (and its predecessor and successor provisions). Certainly, none of the decisions I have identified directly address the question of the effect of the vesting order on the status of the land. [43] In Pihema v Ngāti Whatua of Orakei Māori Trust Board Section 722, 790, 792, 793 and 794 Town of Orakei, 20 the Māori Appellate Court heard an appeal against the decision of the lower Court concerning an application under s 437(4A)(a) and (b) of the 1953 Act. The lower Court had made orders vesting the lands in the Ngāti Whatua o Orakei Māori Trust Board and varying the existing trust order. The Court also determined the land to be Maori freehold land. The appeal was granted and a rehearing ordered, though the determination of the status of the land was not argued on appeal. [44] In a reserved judgment I issued in 2010 in quite separate proceedings as part of the Maori Freehold Land Registration Project ( MFLRP ), I determined the particular land together with many other blocks of land vested in the Ngāti Whatua o Orakei Māori Trust Board to be Maori freehold land. 21 Although I discussed the vesting of the land under s 437 of the 1953 Act, I did not address the effect of that provision on the status of the land Pihema v Ngāti Whatua of Orakei Māori Trust Board Section 722, 790, 792, 793 and 794 Town of Orakei (1990) 3 Taitokerau Appellate MB 44 (3 APWH 44). See also 141 Whangarei MB 245 (141 WH 245). Deputy Registrar v Ngāti Whatua o Orakei Māori Trust Board Lot 1 DP40823 being Part Section 684 Town of Orakei and Others (2010) 14 Taitokerau MB 164 (14 TTK 164) at [33] and [34]. 245

16 124 Taitokerau MB 246 as other legislation specific to the Ngāti Whatua o Orakei Māori Trust Board dictated that the land was clearly Māori freehold land. [45] Nevertheless, the decision does note that in the Māori Appellate Court s oral decision in 1990 the Court had in fact affirmed the status of the land as Maori freehold land though, in issuing its written reasons, it concluded that it could only grant a rehearing in relation to all matters before the Court, and therefore the status needed to be reconsidered by the Court. Ultimately, the status of land was not reconsidered by the Court and was not finally addressed until my decision of [46] The decision in Berryman v Te Arikinui Te Atairangikaahu Hopuhopu Military Camp and Te Rapa Airforce Base also concerned an order under s 437 of the 1953 Act. 22 In that case, the land had been vested in Potatau Te Wherowhero. As a result of that vesting the lower Court determined the land to be Maori freehold land. The vesting was part of the Waikato-Tainui raupatu settlement. On appeal, the Māori Appellate Court considered the application should have been brought under s 436 of the 1953 Act and directed that an application be made to the Chief Judge to correct the situation. However, the Chief Judge subsequently declined to make an order and referred the matter back to the Māori Appellate Court. 23 Ultimately, the Māori Appellate Court determined that the orders should have been made under the 1993 Act, and proceeded to do so. Much later, the land was determined to be general land as a part of the MFLRP as a result of the effect of the Waikato Raupatu Settlement Act [47] Aside from the above two instances where land was vested in Māori as part of Treaty settlements, I have come across only a few other instances of land being revested in Māori under s 437 of the 1953 Act. More often than not, the subsequent status of the land has not been addressed. [48] In Minister of Lands - Maungatapu 3 and 4 Blocks, 25 the Minister of Lands applied under s 436 of the 1953 Act to vest Crown land in the persons or trusts as the Court may Berryman v Te Arikinui Te Atairangikaahu Hopuhopu Military Camp and Te Rapa Airforce Base (1993) 18 Waikato Maniapoto Appellate Court MB 173 (18 APWM 173). Registrar Hopuhopu and Te Rapa Blocks [1993] Chief Judge s MB 583 (1993 CJ 583). 138 Waikato MB (138 W ). Minister of Lands - Maungatapu 3 and 4 Blocks (1993) 52 Tauranga MB 115 (52 T 115). See also 51 Tauranga MB 281 (51 T 281). 246

17 124 Taitokerau MB 247 determine. The Court of its own motion varied the application to be under s 437 of the 1953 Act and made vesting orders accordingly. There was no determination of the status of the land at the time. However, in 2008 the land was determined to be Māori freehold land as a result of an application under the MFLRP. 26 [49] In another application which came before the Court in 1981, the Minister of Lands applied to vest Crown land known as the Mamakumaru Station in the persons or trusts as the Court may determine. 27 Vesting orders were made. However, the status of the land was not determined at the time and status orders have not subsequently been made. The land is recorded in the Court s Māori Land Information System as general land. [50] There have been two instances of Crown land being vested in Te Runanga o Ngāti Awa. The Minister of Lands applied to vest Crown land known as Waimana Parish in Te Runanga o Ngāti Awa. 28 The land was to be returned as Maori freehold land and the Court issued a status declaration under s 30(1)(i) of the 1953 Act to that effect. However, in a separate application to vest Waimana Parish 516, 517 and 736 in Te Runanga o Ngāti Awa, a status order was not issued. 29 For reasons that are unclear, these lands are recorded in the Māori Land Information System as Crown land. [51] A further example involves the vesting of lands in the Waireia Trust, in the North Hokianga. Five blocks of land were revested in the Waireia Trust pursuant to s 437 of the 1953 Act. 30 The status of the land was not addressed at the time of revesting. The Waireia A block was subsequently determined to be Maori freehold land as a result of an application under the MFLRP. 31 However, three of the blocks are recorded as general land and the other block is recorded as Crown land in the Māori Land Information System. [52] The above decisions do not undermine my conclusion that the effect of a vesting order under s 437 of the 1953 Act is that the land becomes Māori freehold land. The fact that the Court has dealt with the status of different lands vested under s 437 in an Tauranga MB 240, 242 (94 T 240, 242). 61 Waikato MB (61 W ). 82 Whakatane MB (82 WHK ). 85 Whakatane MB 37 (85 WHK 37). 15 Kaikohe MB 362 (15 KH 362). 128 Whangarei MB (128 WH 34-35). 247

18 124 Taitokerau MB 248 inconsistent manner merely highlights the fact that the question of the status of the land was not always addressed at the time of vesting. Outcome [53] I conclude that Part Sec 1 Block 1 Punakitere SD is Māori freehold land as from 23 May I therefore make an order under s 131 of the 1993 Act to that effect. [54] I also draw to the attention of the Chief Registrar that the question of the status of the land vested in the Mamakumaru Trust, Te Runanga o Ngāti Awa and Waireia Trust (as noted above) may need to be addressed by way of applications under s 131 of the 1993 Act. Pronounced in open Court in Whangarei at 2.00 pm on Tuesday this 9 th day of February D J Ambler JUDGE 248