IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT 317 Aotea MB 268 (317 AOT 268) A A PATRICIA FRANCES GRACE Applicant

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1 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT 317 Aotea MB 268 (317 AOT 268) A A UNDER Section 338 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND AND AND NGARARA WEST A25B2A PATRICIA FRANCES GRACE Applicant NGARARA WEST A25B2 AHU WHENUA TRUST Applicant NEW ZEALAND TRANSPORT AGENCY Interested Party VECTOR GAS LTD Interested Party Hearing: 22 November 2013, 312 Aotea MB February 2014, 316 Aotea MB (Heard at Wellington) 13 March 2014, 317 Aotea MB (Heard at Waikanae) Appearances: L Watson for the Applicants D Hughes and L Van for the Respondents Judgment: 27 March 2014 RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC Copies to: Leo Watson, Barrister and Solicitor, PO Box 1035, Napier leowatson@paradise.net.nz Kensington Swan, Private Bag 92101, Auckland 1142 Attention: D M Hughes/L M Van daniel.hughes@kensingtonswan.com/lynne.van@kensingtonswan.com

2 317 Aotea MB 269 Introduction [1] There are two applications before the Court seeking a recommendation that Māori freehold land be set apart as a Māori Reservation in terms of ss 338(1)(a) and 338(1)(b) of Te Ture Whenua Māori Act 1993 (TTWMA) as follows: (a) An application by Mrs Patricia Grace (Mrs Grace), dated 7 May 2013 and amended 13 March 2014, as the sole owner of Ngarara West A25B2A, described in Computer Freehold Register WN58B/341 comprising 5770m² and situated on Te Moana Road in Waikanae, for the benefit of the descendants of Wiremu Parata Te Kakakura: (i) As a place of cultural and historical significance; and/or (ii) As a wāhi tapu being a place of special significance according to tikanga Māori. (b) An application by the Ngarara West A25B2 Ahu Whenua Trust dated 10 December 2013 from Riki Pitama (Mr Pitama) as a trustee of that trust, which holds the Ngarara West A25B2B and A25B2C blocks (the Pitama land): (i) For the benefit of the owners or of Māori of the class specified in the recommendation, namely the descendants of Wiremu Parata Te Kakakura; and (ii) For the purposes of a place of historical and cultural interest and associated purposes as determined by the trustees of the Reservation. [2] The New Zealand Transport Agency (the Transport Agency) appears as an interested party as it wishes to acquire 983m² of Mrs Grace s land and 4162m 2 of the Pitama land. This land is required to enable the construction of an expressway forming part an improvement to State Highway 1. It is said to be a road of national significance.

3 317 Aotea MB 270 [3] Vector Gas Limited (Vector) also appears as an interested party because there is an existing gas pipeline running through the western part of Mrs Grace s land and it has a registered easement over that land. [4] It should also be noted at this point that there are parallel proceedings in the Environment Court in relation to the compulsory acquisition of the 983m 2 of Mrs Grace s land required for the expressway. These proceedings are set down for hearing on 31 March Procedural History [5] On 7 May 2013, an application was received from Patricia Grace for a recommendation that Ngarara West A25B2A be set aside as a Māori reservation. [6] A telephone conference was held on 10 June Parties agreed to file a statement of issues and responses. A statement of issues was filed by the applicant dated 27 June A reply was filed by the Transport Agency dated 12 July [7] A further telephone conference was held on 9 August There were no objections to the initial additional issues proposed by the Transport Agency with the support of Vector. Further detail was sought on the history of the land, and briefs of evidence were to be filed by 1 November The application was adjourned, and a judicial conference set for 22 November [8] A consolidated statement of issues was filed on 15 August An application was made for an extension for filing evidence. This was granted, and an extention given until 8 November [9] On 27 August 2013 the Environment Court issued a minute regarding the timetable and order of proceedings for the application in that court Aotea MB Aotea MB

4 317 Aotea MB 271 [10] A judicial conference was held on 22 November The owners of the Ngarara West A25B2B Ahu Whenua Trust filed a notice of intention to appear as an interested party. There were no objections to this. The timeline for the Environment Court proceedings was discussed, and it was noted that a minute had been issued by the Environment Court judge indicating that the Environment Court would defer progression of those proceedings until the Māori Land Court proceedings had been addressed. Briefs of evidence were filed by Mrs Grace; Benjamin Ngaia, the Chairperson of the Takamore Trust; Bruce Stirling, the Research Director of HistoryWorks Ltd; and Susan Thorpe, Archaeologist of Kotuku Consultancy Ltd. Counsel were directed to provide a joint memorandum addressing proposed hearing dates following the exchange of evidence. [11] On 10 December 2013, an application was received from Riki Pitama as a trustee of Ngarara West A25B2 Ahu Whenua Trust seeking a recommendation that the land subject to that trust, Ngarara West A25B2B and A25B2C, be set aside as a Māori reservation. Counsel for the Ngarara West A25B2 Ahu Whenua Trust requested that the application be dealt with together with Mrs Grace s Māori reservation application. [12] Briefs of evidence in support of the Transport Agency were filed on 11 December 2013 by Peter Sacree, Vector Senior Project Manager; Andrew Noble, Property Consultant for Opus International Consultants Ltd; Mary O Keeffe, Archaeologist; Andrew Quinn, Senior Project Manager for the Transport Agency; and Amos Te Koeti Kamo, Principal for Māori Engagement and Strategy for the Transport Agency. [13] On 20 January and 5 February 2014, joint memorandums were filed by counsel regarding timetabling for a site visit and court hearing. [14] On 13 February 2014 a site visit took place. 4 The applicant, Mrs Grace, was present along with whānau members including Kua Ranea Aperahama, Rakairoa Hori, Tony Ropata, Patrick Grace, Waiariki Grace, Kohai Grace, Himiona Grace (Senior), and Himiona Grace (Junior). Also present were counsel for the applicants, Leo Watson together with counsel for Transport Agency, Daniel Hughes and Lynne Van; and Andrew Noble, Bruce Stirling and Susan Thorpe Aotea MB Aotea MB

5 317 Aotea MB 272 [15] The site visit commenced at the gates to Mrs Grace s property with a mihi and karakia given by Kua Ranea Aperahama. The site visit included walking Mrs Grace s property, viewing sites of significance and the area required by the Transport Agency for the expressway. We also travelled to the Takamore urupā, a nearby urupā which is a registered wāhi tapu. 5 [16] On the afternoon of 13 February 2014 a hearing was held at the Waitangi Tribunal hearing room to hear the evidence of archaeologist Susan Patricia Thorpe for the applicant, as she was travelling overseas and would not be available for the substantive hearing. 6 [17] On 13 March 2014 the substantive hearing took place at Whakarongotai marae, Waikanae in Te Puku Mahi Tamariki the wharenui of Wiremu Parata Te Kakakura (Wi Parata). At that time an amended application was filed on behalf of Mrs Grace. [18] At the commencement of the hearing, the application by the Ngarara West A25B2B Ahu Whenua Trust in relation to the Pitama land was adjourned to 1 May 2014 for the filing of a joint memorandum of counsel for the parties. [19] The Court was then asked to hear and determine Mrs Grace s application. This decision, therefore, only deals with that application. Submissions for Mrs Grace [20] Counsel for Mrs Grace notes that s 338 of TTWMA provides a two-step process whereby the Māori Land Court recommends that land be set apart as a Māori reservation and the chief executive of Te Puni Kōkiri may, by notice in the Gazette, declare that land to be a Māori reservation. Counsel submits that, as set out in Owners of Nukutaurua 3C3B v Mato Nukutaurua 3C3A and 3C3B, 7 the legislative history shows that the setting apart of Māori reserves has always been a function of the Crown, and the inalienability of reserves has been constant Aotea MB Aotea MB Owners of Nukutaurua 3C3B v Mato Nukutaurua 3C3A and 3C3B (1987) 32 Tairawhiti Appellate MB 217 (32 APGS 217).

6 317 Aotea MB 273 [21] Counsel notes that key principles relating to Māori reservations have been summarised in the Tuatini Township case, 8 in which the continued relevance of the Mount Tauhara Māori Reservation case, 9 the Section 1A Parish of Katikati case, 10 and the Part Maraetai 3B case was noted. 11 [22] Counsel submits that the decision Gibbs v Te Rūnanga o Ngāti Tama is relevant as it involved the New Plymouth District Council, who intended to compulsorily acquire part of the land subject to the reservation application, and Vector, who had easements on the land for gas pipelines. 12 Counsel notes that the Court in that decision stated that the applicant would first need to satisfy the Court that a Māori reservation should be granted, and secondly, if so, the extent of the effect of the application on the interests of the Council and Vector. The effect on those parties was of secondary importance. 13 [23] Counsel addresses the five-question framework set out in Gibbs: 1. Who are the tangata whenua of the district? [24] Counsel states that the tangata whenua have been clearly established. Mrs Grace has shown her whakapapa to Wi Parata and this has been established in the wider context of Wi Parata s position as a rangatira through Ngāti Toa Rangatira, Ngāti Mutunga and Te Atiawa Nui Tonu. 2. Do tangata whenua support or oppose the application? [25] The Court was invited to notify all relevant stakeholders of the application. There has been no opposition from tangata whenua. Tangata whenua endorsed Mrs Grace s application at the hearing. 3. What is the purpose of the proposed reservation? Marangairoa Trust Section 4C1 Block II, Tuatini Township (2002) 151 Gisborne MB 250 (151 GIS 250). In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168). Section 1A Parish of Katikati (1995) 18 Waikato-Maniapoto Appellate MB 260 (18 APWM 260). Part Maraetai 3B (1996) 19 Waikato-Maniapoto Appellate MB 34 (19 APWM 34). Gibbs v Te Rūnanga o Ngāti Tama (2011) 274 Aotea MB 47 (274 AOT 47). At [52].

7 317 Aotea MB 274 [26] Counsel sets out the proposed purposes of the reservation: to regenerate native bush; to use the land as a place of retreat, contemplation and peace; to construct a caretaker s cottage; to use the land to tell the stories of Tuku Rākau and its people; to reestablish connections with the Takamore urupā and surrounding land; and to retain the land for the next generation. The land is not currently inalienable and a Māori reservation would protect the land from alienation. This is relevant in the context of TTWMA; the retention of Māori land by owners, whānau and hapū is a fundamental tenet of the legislation. 4. What is the size of the proposed reservation and its relevance to the statutory tests? [27] Mrs Grace seeks a reservation over the whole 5770m 2 of her land. She does not accept that a reservation should apply to only part of the block. A reservation this size is not unusual. Mrs Grace s application differs considerably from the application in Gibbs where 227ha was subject the application for a reservation. In that decision, the Court commented that reservations tended to be smaller parcels of land. [28] Counsel submits that there is no requirement in TTWMA that an application for a Māori reservation satisfy the Court that either the land is a place of cultural or historical significance or a wāhi tapu, with reference to ss 338(1)(a) and 338(1)(b). An application is entitled to rely on both provisions in order to establish that land is both a place of cultural and historical significance and a wāhi tapu. [29] Counsel notes that the Transport Agency s opposition to the application is limited to the area of land it seeks to acquire. The evidence of Amos Kamo, the Principal for Māori Engagement and Strategy for the Transport Agency, supported a conclusion that all the land is historically and culturally significant; the evidence of the archaeologist, Mary O Keeffe included that the land is located within what was Tuku Rakau village ; 14 and Vector Senior Project Manager Peter Sacree concurred that the pipeline construction did not affect the historical significance of the land. Given that the Transport Agency has recognised the historical and cultural values within that portion of Mrs Grace s land [the balance of the land not sought], 15 counsel submits that the Transport Agency has not Brief of Evidence of Mary O Keeffe, dated 11 December 2013, at [28]. Opening Submissions of the New Zealand Transport Agency, dated 13 March 2014, at [45a].

8 317 Aotea MB 275 proved that there is anything in particular about the land they seek to acquire which would lead to the conclusion that it does not have the same historical and cultural values. [30] Counsel submits that Mrs Grace, a direct uri of the original grantee, Wi Parata, and kaitiaki, regards her land as culturally and historically significant and the wider hapū and iwi affirm that view. Counsel states that the cultural and historical landscape of which the land is a part is significant. The landscape approach is employed by both the archaeologists who gave evidence; Benjamin Ngaia, the chairperson of the Takamore Trust; and Mr Kamo. The Grace land connects to other sites of significance in the cultural landscape: the Takamore urupā and wider wāhi tapu; the Tuku Rākau village and kauri tree; and the historic location of the Wi Parata homestead, church and associated whare. This was supported by the evidence of Mr Ngaia, Ms Thorpe, and Mr Kamo. Counsel also referred to Mrs Grace s evidence where she stated that the Transport Agency became obsessed with the location of the Wi Parata s homestead and the associated church, which denoted historical or cultural significance. She considers that it is the connection between places and people of the area as a whole that contribute to the cultural and historical significance of her land not the exact location of the homestead or the church. Counsel also highlights that Mr Kamo agreed under questioning that all but one of the ten factors listed in the issues of cultural concern to tangata whenua in cultural impact assessments applied to Mrs Grace s land. [31] Counsel states that Mr Kamo agreed that the following factors were important to assessing the cultural and historic significance of a piece of land: the land as taonga tuku iho; the retention of the land in the hand of owners, their whānau and hapū; the exercise of kaitiakitanga; the paucity of Māori land remaining in the Kapiti area; the historic use and occupation of the land; the access to the urupā; that carvings were removed and buried in the dunes; the possible midden sites on the sand dunes; the evidence of Mrs Grace as to the land s significance; the association of the land with key historic figures and events; and the likelihood to burials in the sand dunes. [32] Counsel submits that there is a significant likelihood that there were burials on the part of the Grace land sought by the Transport Agency. Mr Ngaia gave evidence of burials in the dune. Graham Coe gave evidence of personally finding a skeleton in a crouching position in a nearby sand dune and of his uncle regularly finding skulls washed down the

9 317 Aotea MB 276 dunes to the foot of Mrs Grace s dune and into the drain that crosses her land, referred to as the tapu drain. Ms Thorpe stated that there was a high likelihood of burials on the Grace land due to the discovery of burials nearby and the fact that the actual boundaries of the Takamore urupā extend beyond the cadastral boundaries. Mrs Grace regards her land as wāhi tapu and states that she has been told that her land is likely to include areas of human interment. Mr Kamo also acknowledged those perspectives and agreed that there was potential for the land to be wāhi tapu. [33] Counsel submits that the Transport Agency s evidence on the relevance of the sloping sand dune was contradictory and inconsistent; having agreed to the possibility of burials in the dune, Ms O Keeffe nevertheless concludes that there is no likelihood of burials in the Grace sand dune which is sought by the Crown. Counsel also submits in response to the Transport Agency s argument about the impacts of the existing gas pipelines on the land, which was limited to the likelihood of finding archaeological material, that: (a) The pipeline construction did not affect the cultural or historical significance of the land; (b) The pipeline corridor is outside the area sought by the Transport Agency within the existing easement, therefore the fact that it was constructed in the eastern part of the land is of limited relevance to determining the impacts on archaeological material in the land currently sought for the expressway; (c) The alleged impacts of the pipeline are disputed by the applicant s archaeologist, who gave evidence that due to the nature of archaeological matter in sand dunes on the Kapiti Coast, and the limited nature of the pipeline construction, there is unlikely to have been significant adverse impact on the archaeological resource. 5. Do the applicant and proposed beneficiaries have a customary connection to the land? [34] Mrs Grace has a clear customary connection to the land through whakapapa and her continued exercise of kaitiakitanga in accordance with tikanga Māori. The proposed

10 317 Aotea MB 277 beneficiaries are the descendants of Wi Parata. The proposed reservation will restore the collective and communal connections through principles of whakapapa, mana whenua and whanaungatanga. [35] Counsel submits that Judge Harvey in Gibbs also stated that the vast majority of reservations are set aside for a class of beneficiaries that are hapū and kin-based groups; that the overlay of Māori reservation status is reserved for particular communal purposes to benefit Māori, as opposed to benefitting an individual; and reservations are established by Māori who have held occupation as tangata whenua since 1840 or following the upheaval of 19 th century land alienation and dispossession. 16 Counsel submits that these statements are relevant to the current application. Counsel also states that in the exercise of s 338, the Court must consider the principles of TTWMA, in particular, as Judge Harvey stated in Gibbs, that the retention of Māori land in the hands of owners, their whānau and hapū is a cornerstone, fundamental principle of the Act that underpins the approach that the Court must take with every application. 17 [36] In summary, counsel submits that the Transport Agency has accepted the evidence establishing the cultural and historical significance of the land, except for the portion that it seeks to acquire. This is not a sustainable distinction. The wider context of the land being sought for the expressway cannot fetter the approach to the creation of a Māori reservation. The applicant seeks a recommendation that her block of land in its entirety is set aside as a Māori reservation for the benefit of the descendants of Wi Parata. Submissions for the Transport Agency [37] The Transport Agency accepts that the Tuku Rākau land, of which the Grace land forms a part, is of cultural and historical significance to Mrs Grace. Mrs Grace s customary association with the land, and the manner in which she derived her title and interest, is not in dispute. The Transport Agency does not oppose Mrs Grace s application so far as it relates to the land not sought for the expressway. [38] Counsel for the Transport Agency notes that Vector has not actively taken part in these proceedings, but is supportive of the Transport Agency s position Gibbs v Te Rūnanga o Ngāti Tama (2011) 274 Aotea MB 47 (274 AOT 47) at [61]-[66]. At [51].

11 317 Aotea MB 278 [39] Counsel for the Transport Agency refers to the consolidated statement of issues, filed on 15 August, which divided the issues into three main headings: traditional and customary associations with Ngarara West; legislative considerations; and contextual matters. Counsel states that the five-question framework set out in Gibbs largely aligns with the matters set out in the consolidated statement of issues. [40] Counsel for the Transport Agency states that the conflicting interests of Mrs Grace and the Transport Agency in relation to the land it seeks for the expressway project are at the core of this case. Counsel states that although the acquisition process itself is not directly at issue in this application, it is relevant to note that acquisition of the part of Mrs Grace s land sought is the best worst case scenario as it causes the least amount of disturbance to both the community generally, but also to Māori land which is of equal significance to the Grace land by virtue of Tuku Rākau village, or because it has wāhi tapu status. [41] Counsel sets out the general principles applicable to the case as being ss 2 and 17 of TTWMA, which highlight the importance of the preamble of the Act and set out the general objectives of the Court; s 338 of TTWMA; Gibbs v Te Rūnanga o Ngāti Tama; 18 and Heybridge Developments v Bay of Plenty Regional Council, which dealt with the Environment Court s consideration of wāhi tapu. 19 Traditional and customary associations with Ngarara west [42] The Transport Agency does not dispute Mrs Grace s traditional and customary associations with the land, nor does it object to a recommendation being made in respect of the part of Mrs Grace s land not sought for the expressway. The main issues for consideration are the legislative considerations and the contextual matters which may impact on a recommendation being made in relation to the land sought. Legislative considerations Gibbs v Te Rūnanga o Ngāti Tama (2011) 274 Aotea MB 47 (274 AOT 47). Heybridge Developments v Bay of Plenty Regional Council HC Tauranga CIV , 22 December 2011.

12 317 Aotea MB 279 [43] Counsel for the Transport Agency submits that it is their position that an election needs to be made by Mrs Grace as to whether the application is under s 338(1)(a) or s 338(1)(b); it cannot be under both. [44] Counsel submits that although the historical and cultural significance of the Grace land cannot be disputed if a landscape approach is adopted, it is necessary to assess what physical evidence supports a finding that the requirements of s 338(1)(a) and 338(1)(b) of TTWMA are met. Counsel states that there are two aspects to an assessment of cultural and historical significance; both cultural/spiritual attributes and physical/tangible attributes. Counsel states that in terms of a cultural and spiritual assessment, that is generally a matter for tangata whenua, and it is not the place of the Transport Agency to dispute Mrs Grace s claim that she has cultural and spiritual connection to the land. To a large degree, cultural and historical significance is subjective, and the Transport Agency submits that it should be noted that spiritual connections are not caught by s 338(1) of TTWMA. The only matter which can be considered objectively is the physical evidence supporting a finding that the land sought by the Transport Agency is culturally or historically significant, or a wāhi tapu, and matters of cultural or spiritual significance in the context of archaeological evidence should be afforded little weight. It is the Transport Agency s position that the evidence does not meet the threshold of either limb of s 338(1), and no recommendation is justified. [45] With respect to the legislative considerations in the consolidated statement of issues, the Transport Agency takes the position that: (a) The legislative regime contemplates that a Māori reservation will be for communal use and/or for common benefit. The evidence given during the course of the hearing in relation to the land sought does not satisfy this requirement. Although the overlay of a Māori reservation would ensure the land remains in Mrs Grace s family, the Court in Gibbs v Te Rūnanga o Ngāti Tama suggests that this would be insufficient; 20 (b) The evidence given in relation to the purpose of the reservation is vague. If the Court declined to make a recommendation with respect to the land 20 Gibbs v Te Rūnanga o Ngāti Tama (2011) 274 Aotea MB 47 (274 AOT 47).

13 317 Aotea MB 280 sought, none of the proposals by Mrs Grace would be defeated. Though alienation occurs in the sense that Court sanction would be required to enable occupation to occur, it is of note that no evidence was given that Mrs Grace intended to construct on, or in the vicinity of, the land sought for the expressway project; (c) All the physical evidence points towards the eastern part of Mrs Grace s land being the more significant part of the Tuku Rākau village. The tangible evidence is less certain and contradictory in relation to the area surrounding the land sought. It is the Transport Agency s position that a recommendation for a reservation is not appropriate in respect of the land sought by them, as the evidence does not meet the requirements of s 338(1). Accordingly, the land sought by the Transport Agency should not form part of any recommendation for a Māori reservation; (d) The archaeological evidence was insufficient to show that there was a likelihood of human burials or other archaeological sites on the land sought. Mr Sacree s evidence was that, in his experience, everything was at handdepth. Although little weight can be given to Mr Coe s evidence as is contained a large amount of hearsay, this accords with his statements concerning burials located close to the surface. Ms Thorpe gave evidence of historical burials in the wider area, but there was no recorded archaeological site, and the burials found were not on the land sought. Ms Thorpe also referred to Mr Ngaia s evidence, although he was unable to specify precisely where burials were located. Contextual matters [46] With respect to the contextual matters, it is submitted that these need to balanced against the tenuous nature of the claim and application: (a) Māori reservations have special status under TTWMA and represent less that 10 per cent of all Māori freehold land. Case law suggests that the

14 317 Aotea MB 281 special status attached to Māori reservations means that applications under s 338 of TTWMA should be considered with great care; (b) Case law suggests that where only parts of the land meet the statutory criteria, the Court has the discretion to recommend a Māori reservation overlay in respect of those parts only; (c) The land is sought to be acquired for a road of national significance. The upgrade to State Highway 1 is required to sustain urban growth in the region, reduce congestion, improve travel times and improve road safety. The proposal to upgrade was first raised in the late 1940s/early 1950s. The Transport Agency has been in an extended period of discussions and consultation with affected parties, and has actively sought to engage with Mrs Grace. The requisite consultations, design works and plans, and consents have been put in place. The Board of Inquiry was satisfied that alternative routes, consultation and cultural mitigation had been sufficiently addressed. A notice under s 18 of the Public Works Act 1981 (PWA) was issued in respect of the part of Mrs Grace s land sought for the expressway. This was followed by unsuccessful attempts to negotiate and discuss the proposal with Mrs Grace. A s 23 PWA notice was issued when no agreement could be reached with Mrs Grace to acquire the land. The acquisition of this land is the least invasive in terms of land take, and has the least impact on Māori freehold land. Mitigation proposals have been agreed upon with the Takamore Trust to address concerns and compensate for taking of land. Construction has already commenced on other parts of the expressway upgrade and further delay will hinder work. [47] Counsel submits that further contextual matters that need to be taken into account as part of this balancing are: (a) Evidence that the cost of avoiding Mrs Grace s land will be significant; at around $10 to $15 million. Mr Quinn advised that it was not certain that any realignment was feasible, nor that this cost was assured;

15 317 Aotea MB 282 (b) The very real risk that a recommendation from this Court could thwart the processes under the PWA which are underway. It is uncertain how the PWA and TTWMA provisions should be interpreted together; (c) The PWA provides a statutory process which Mrs Grace in entitled to use to object to the acquisition of her land. Mrs Grace has filed such an application with the Environment Court which will be heard at the end of March. Many of the arguments raised by Mrs Grace during the Board of Inquiry hearing will be heard in the Environment Court. If adequacy of consideration or process is complained of, the Environment Court is the correct forum to address those issues, not this Court. [48] In conclusion, the Transport Agency submits that the requirements of s 338(1) of TTWMA have not been made out in relation to the part of Mrs Grace s land sought for the expressway. The physical evidence is contradictory and does not justify recommending a Māori reservation be created over that part of Mrs Grace s land. [49] Counsel submits that even if the Court were to ignore the cultural and historical aspects, Mrs Grace s application, as far as it relates to the land sought by the Transport Agency, should fail as it remains unclear what the proposed purpose of the reservation is to be. No evidence was given in relation to that part of the land, although it is accepted that Mrs Grace wishes to construct or use the land as a retreat. The proposed purposes do not appear to meet the communal aspect of s 338. [50] The contextual matters in this case are relevant. This case can be distinguished from Gibbs, as that case was largely concerned with the Council requiring access to maintain the road. The requirement for the part of Mrs Grace s land sought is much more significant. All attempts have been made to minimise the impact on Mrs Grace and the surrounding landowners. The Transport Agency have explored a number of options, and the current proposal is the least invasive on Māori freehold land. [51] Counsel submits that declining this reservation application does not prevent Mrs Grace from objecting to the acquisition of part of her land through the Environment Court,

16 317 Aotea MB 283 where there is an extant proceeding. There is a real risk that a recommendation from the Court will thwart the statutory process provided for under the PWA. [52] Finally, the application by the Ngarara West A25B2 Ahu Whenua Trust cannot succeed on the evidence given in the Grace application. Submissions for Mrs Grace in response [53] Counsel for Mrs Grace submits in response that there is no cultural versus physical divide in s 338(1). A cultural perspective encompasses both tangible and intangible aspects of tikanga Māori. There is no legislative or tikanga base to suggest that aspects of wairuatanga, or spiritual aspects, are not caught by s 338(1). A place of cultural or historical interest under s 338(1) does not require a physical or tangible object to be present, and such an approach would unduly limit the provision. In any case, there is evidence that there is likely to be taonga and/or burials in the land sought to be acquired by the Transport Agency. [54] Counsel for Mrs Grace notes that the Transport Agency has not referred to Graham Coe s evidence in their closing submissions, apart from describing them as largely hearsay. Counsel submits that Mr Coe s recollections of finding koiwi, taonga and middens on the Grace dune is not hearsay, and at any rate the Court has a broad power to admit evidence under s 69(1) of TTWMA. Mr Coe s evidence of oral traditions of koiwi was relevant and admissible. Further, counsel notes that the Transport Agency s submissions do not deal with Ben Ngaia s oral traditions of burials on that sand dune either. [55] Counsel responds to the submission that the proposed reservation does not meet the requirement for communal benefit, stating that the proposed reservation is for the benefit of the descendants of Wi Parata. Those descendants number in their hundreds and include a much wider group than Mrs Grace and her children. In making an application for a reservation, Mrs Grace is making a significant gesture, in keeping with the manaaki and generosity shown by Wi Parata himself.

17 317 Aotea MB 284 [56] While the Transport Agency cite Gibbs in favour of the proposition that ss 338(1)(a) and 338(1)(b) are disjunctive, the comment in that decision was obiter and without benefit of legal submissions on the point. 21 The Law [57] Section 338 of Te Ture Whenua Maori Act 1993 states: (1) The Chief Executive may, by notice in the Gazette issued on the recommendation of the Court, set apart as Maori reservation any Maori freehold land or any General land (a) (b) for the purposes of a village site, marae, meeting place, recreation ground, sports ground, bathing place, church site, building site, burial ground, landing place, fishing ground, spring, well, timber reserve, catchment area or other source of water supply, or place of cultural, historical, or scenic interest, or for any other specified purpose; or that is a wahi tapu, being a place of special significance according to tikanga Maori. (2) The Chief Executive may, by notice in the Gazette issued on the recommendation of the Court, declare any other Maori freehold land or General land to be included in any Maori reservation, and thereupon the land shall form part of that reservation accordingly. (3) Except as provided in section 340 of this Act, every Maori reservation under this section shall be held for the common use or benefit of the owners or of Maori of the class or classes specified in the notice. (4) Land may be so set apart as or included in a Maori reservation although it is vested in an incorporated body of owners or in the Maori Trustee or in any other trustees, and notwithstanding any provisions of this Act or any other Act as to the disposition or administration of that land. (5) On the recommendation of the Court, the Chief Executive, by notice in the Gazette, may, in respect of any Maori reservation made under this section, do any one or more of the following things: (a) (b) (c) (d) Exclude from the reservation any part of the land comprised in it: Cancel the reservation: Redefine the purposes for which the reservation is made: Redefine the persons or class of persons for whose use or benefit the reservation is made. (6) No notice under this section shall affect any lease or licence, but no land shall be set apart as a Maori reservation while it is subject to any mortgage or charge. (7) The Court may, by order, vest any Maori reservation in any body corporate or in any 2 or more persons in trust to hold and administer it for the benefit of the persons or class of persons for whose benefit the reservation is made, and may from time to time, as and when it thinks fit, appoint a new trustee or new trustees or additional trustees. (8) The Court may, on the appointment of trustees under subsection (7) of this section, or on application at any time thereafter, set out the terms of the trust, and subject to any such terms, the Maori reservation shall be administered in accordance with[, 21 Gibbs v Te Rūnanga o Ngāti Tama (2011) 274 Aotea MB 47 (274 AOT 47).

18 317 Aotea MB 285 and be subject to,] any regulations made under subsection (15) of this section. (9) Upon the exclusion of any land from a reservation under this section or the cancellation of any such reservation, the land excluded or the land formerly comprised in the cancelled reservation shall vest, as of its former estate, in the persons in whom it was vested immediately before it was constituted as or included in the Maori reservation, or in their successors. (10) In any case to which subsection (9) of this section applies, the Court may make an order vesting the land or any interest in the land in the person or persons found by the Court to be entitled to the land or interest. (11) Except as provided in subsection (12) of this section, the land comprised within a Maori reservation shall, while the reservation subsists, be inalienable, whether to the Crown or to any other person. (12) The trustees in whom any Maori reservation is vested may, with the consent of the Court, grant a lease or occupation licence of the reservation or of any part of it for any term not exceeding 14 years [(including any term or terms of renewal)], upon and subject to such terms and conditions as the Court thinks fit. (13) The revenue derived from any such lease or occupation licence shall be expended by the trustees as the Court directs. (14) Any lease granted pursuant to subsection (12) of this section for the purposes of education or health may, notwithstanding anything in that subsection, be for a term exceeding 7 years [(including any term or terms of renewal)] and may confer on the lessee or licensee a right of renewal for one or more terms. (15) The Governor-General may from time to time, by Order in Council, make all such regulations as, in the Governor-General s opinion, may be necessary or expedient for giving full effect to the provisions of this section. (16) Any such regulations may apply to any specified Maori reservation or to any specified class of Maori reservations, or to Maori reservations generally. (17) Where any Maori reservation (set apart under any Act repealed by this Act or the corresponding provisions of any former Act) is subsisting at the commencement of this Act, this Act, and any regulations made under this Act, have effect, (a) (b) in relation to the Maori reservation, as if it were a Maori reservation set apart under this section; and in relation to any vesting order made in respect of the Maori reservation (under any Act repealed by this Act or the corresponding provisions of any former Act), as if that vesting order were a vesting order made under this section. [58] A review of decisions concerning Māori reservations was undertaken by Judge Wickliffe, as she then was, in a judgment regarding Section 4C1 Block II, Tuatini Township, dated 13 April In that decision the principles identified included that: 22 (a) The provisions set out in s 439 of the Māori Affairs Act 1953 relating to Māori reservations were significant as they represented the only legislative acknowledgement of the tribal and communal basis of Māori land 22 Marangairoa Trust Section 4C1 Block II, Tuatini Township (2002) 151 Gisborne MB 250 (151 GIS 250).

19 317 Aotea MB 286 ownership and enabled that concept to be applied to areas of special tribal significance; 23 (b) In determining the appropriate beneficiaries of a Māori reservation, the Court has regard to Māori customary concepts relating to turangawaewae and ancestry. Māori reservations are generally held for the whānau, hapū or iwi traditionally associated with that land and very special circumstances must exist before a Māori reservation is set aside for the common use and benefit of others. It is important to maintain the customary distinction between hosts and guests, or owners and invitees; 24 (c) It is important that the underlying beneficial ownership be maintained and successions completed, as while the legal estate vests in trustees, the beneficial estate remains with the original owners or their successors. All that is passed is a licence as to occupation, use and enjoyment of the land and the benefits accruing therefrom for as long as the reservation status persists. Conversely, the rights of the beneficial owners to the legal estate or exclusive use and enjoyment as beneficial owners are suspended; 25 (d) Reservation trustees are governed by the same rules of trust as other types of trustees, and they are appointed by the Court. Elections are evidence of who those at a meeting support for nomination to the Court. The Court will take a broad range of factors into account in appointing trustees, including the people for whom the reservation was set aside, the characteristics of the proposed trustees, and if a proposed trustee is a body corporate, the nature of its structure, operation and business; See In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168). See In Re Waipahihi Māori Reservation (1978) 59 Taupō MB 184 (59 TPO 184); In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168); Pihema v Ngati Whatua of Orakei Māori Trust Board Sections 722, 790, 792, 793 and 794 Town of Orakei Block IX Rangitoto Survey District (Orakei Marae) (1990) 3 Taitokerau Appellate Court MB 44 (3 APWH 44). See In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168), upheld by the Māori Appellate Court in Re Rahui a 13 Block (1992) 32 Tairawhiti Appellate MB 370 (32 APGS 370) and In Re Ruawahia (1992) 8 Waiariki Appellate MB 52 (8 AP 52). See Pihema v Ngati Whatua of Orakei Māori Trust Board Sections 722, 790, 792, 793 and 794 Town of Orakei Block IX Rangitoto Survey District (Orakei Marae) (1990) 3 Taitokerau Appellate Court MB 44 (3 APWH 44).

20 317 Aotea MB 287 (e) On matters relating the administration of a reservation, the trustees should consult with the persons for whose use and benefit the reservation was created; 27 (f) To amend the purposes of a reservation, to redefine the beneficiaries or boundaries or to exclude or add land to the reservation, the trustees should consult with the underlying beneficial owners; 28 (g) Māori are entitled to have recognition of the fact that the land is a Māori reservation, that it may have some special tribal significance, that Māori usually control it, and that others use it only for as long as they accept and respect those facts; 29 (h) The total or partial cancellation of Māori reservation is appropriate only where circumstances have changed or where it is to enable some development consistent with the purpose reservation (for example pensioner housing on marae) or some commercial development on a peripheral part of the reservation in order to maintain the rest of the reservation. However, the Court s main concern is to ensure the area is not so changed so as to defeat the purposes for which the reservation was created, or allow some incompatible user. The Court has a duty to protect Māori reservations; 30 (i) Where a modern generation of beneficiaries propose the exclusion of some central or major part for some commercial reason inconsistent with the legislation and the reservation itself, then if the Court is minded to permit such development, it has to ask itself whether or not the reservation status should remain in respect of the whole land. The Court has to weigh not only the arguments and views of contemporary owners and beneficiaries, but the views of earlier generations, as documented in Court records, who supported the use of their land for some common purpose or the common good when the reservation was created. It may be that in proposing the See In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168). See In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168). See In Re Waipahihi Māori Reservation (1978) 59 Taupō MB 184 (59 TPO 184). See In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168).

21 317 Aotea MB 288 reservation they sought some measure of retention in perpetuity of an area of tribal significance. The Court is concerned with protecting the values of a past generation from the exigent demands of some future generation with a more materialistic mind. The restrictions on leasing, for example, are consistent with the Court needing to take a strict approach and protect Māori reservations from development proposals requiring long term leases; 31 (j) In relation to appointment of trustees, when one considers the retention and utilisation principles underpinning the 1993 Act, an inclusive approach, taking into account the views of both the beneficial owners and persons for whom the reservation was set aside, is preferable. 32 [59] Also, in the recent case of Gibbs v Te Rūnanga o Ngāti Tama, Judge Harvey identified the nature of Māori reservations as follows: 33 (a) Māori reservations come in all shapes and sizes. It is commonplace for land that is covered by a Māori reservation overlay to predate colonisation in terms of its importance to hapū and iwi; (b) Most Māori reservations are set aside for a class of beneficiaries that are hapū based and for the hapū of owners of the land; (c) Māori reservations are normally set up for communal purposes to benefit a particular community of interest that is hapū-based; (d) The Māori Land Court record confirms that out of 26,000 titles there are only 2000 Māori reservations. It is special status normally reserved for communal purposes to benefit Māori communities of interest; (e) Normally Māori reservations are established by Māori who have held occupation as tangata whenua since See In Re Mount Tauhara Māori Reservation (1977) 58 Taupō MB 168 (58 TPO 168). Marangairoa Trust Section 4C1 Block II, Tuatini Township (2002) 151 Gisborne MB 250 (151 GIS 250). Gibbs v Te Rūnanga o Ngāti Tama (2011) 274 Aotea MB 47 (274 AOT 47) at [61]-[66].

22 317 Aotea MB 289 The General Context interplay between TTWMA and the PWA [60] Before I examine whether the applicant has satisfied the requirements of s 338 of TTWMA it is important to consider the broader context of this case. [61] As mentioned previously, this application for a Māori reservation made to the Māori Land Court is proceeding in parallel to proceedings before the Environment Court, where Mrs Grace is objecting to the compulsory taking of 983m 2 of her land by the Transport Agency for the expressway under the PWA. The Environment Court hearing is scheduled to start on 31 March Therefore before considering the merits of the application for the Māori reservation, I will consider the interplay between TTWMA and the PWA in light of s 338(11) of TTWMA and in particular whether the notice of intention to take land issued under the PWA has any impact on the application under s 338 of TTWMA. [62] As previously set out, s 338(11) of TTWMA provides that while the reservation subsists, the land subject to it is inalienable, whether to the Crown or to any other person. Submissions for the Transport Agency [63] Counsel for the Transport Agency submits that s 338(11) appears on its face to suggest that once the status of a Māori reservation has been recommended and gazetted that the land becomes inalienable to the Crown. Counsel correctly states that inalienable is not defined in TTWMA, but that alienation is defined as including an agreement to the taking [of land] under the Public Works Act There is no reference in TTWMA to the compulsory acquisition of land by the Crown. Counsel considers that the distinction under the PWA between acquisition by compulsion and acquisition by agreement is a fundamental one. Counsel compares this compulsory acquisition by the Crown to a mortgagee sale, which in TTWMA is an express exception to the definition of alienation and for which no confirmation is required by the Court. The same, he says, is true of the compulsory acquisition under the PWA. [64] Counsel for the Transport Agency cites McGuire v Hastings District Council, stating that it provides a useful analogy for determining how the Court should approach a situation where there is a conflict between TTWMA and another statutory process, in that

23 317 Aotea MB 290 case under the Resource Management Act (RMA). 34 Counsel submits that in that case, the Privy Council recognised that there were strong grounds for recognising that the RMA has an exclusive code of remedies, ruling out any ability of the Māori Land Court to intervene in the case. Because the RMA was so comprehensive, it was unlikely that Parliament intended the Māori Land Court to have overriding powers. The Privy Council also recognised that Māori freehold land could be validly designated under the RMA and acquired under the PWA. 35 [65] Counsel for the Transport Agency states that this supports the view that the PWA will trump the alienation provisions of the TTWMA should there be any inconsistencies in the legislative framework. The land is sought for a road of national significance. However, counsel also acknowledges that the interplay between the TTWMA and the PWA may be of secondary importance to this application. Submissions for Mrs Grace [66] Counsel for Mrs Grace in response submits that while the application for a Māori reservation does not affect Vector s existing easements over the land, it is likely that there is a conflict between the Māori reservation provisions in TTWMA and the powers of compulsory acquisition under the PWA. Counsel quotes the Māori Appellate Court decision Owners of Nukutaurua 3C3B v Mato Nukutaurua 3C3A and 3C3B in which the Court looked at the legislative history of Māori reservations and inalienability provisions, stating that: 36 Given the historical survey, albeit brief and general, it is apparent that any limitation on the creation of Maori reservations or the extraction of public reserves from them based on a perceived public interest of new import, or to delegate responsibilities thereon to local authorities must be seriously viewed, not only in the Maori interests, but in the national interest having regard to the Crown s original commitments on the settlement of this country. It is also apparent why the matter assumes such importance for Maori people. Although there are now many Maori reservations, they occupy but a small proportion of the total acreage of remaining Maori lands. Today, the reservations alone have the benefit of the Crown s protective cloak McGuire v Hastings District Council (2002) 8 ELRNZ 14, [2002] 2 NZLR 577 (PC). At [16]. Owners of Nukutaurua 3C3B v Mato Nukutaurua 3C3A and 3C3B (1987) 32 Tairawhiti Appellate MB 217 (32 APGS 217) at