IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A MIRANDA HORAN Applicant

Transcription

1 70 Waiariki MB 61 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A UNDER Section 289, Te Ture Whenua Māori Act 1993 IN THE MATTER OF Hiwarau C AND MIRANDA HORAN Applicant Hearing: 22 September 2008, 104 Opotiki MB 6 8 March 2012, 50 Waiariki MB May 2012, 54 Waiariki MB (Heard at Opotiki) Judgment: 8 February 2013 PRELIMINERY DETERMINATION OF DEPUTY CHIEF JUDGE C L FOX

2 70 Waiariki MB 62 Introduction [1] Hiwarau C was created by an amalgamation order on 4 August 1969 under s 435 of the Māori Affairs Act As part of that order, 22 Māori freehold land titles were amalgamated into one title in order for the land to be better utilised and managed. These blocks included Hiwarau B1B1 and Hiwarau B1B2. The area that formally comprised these two blocks, is bounded by approximately 110 metres of the Ōhiwa Harbour coastline/estuary. [2] As at the date of hearing this application, there were approximately 994 owners in Hiwarau C holding a total 19, shares. The area of the block is hectares in size. [3] Hiwarau C became vested in the Māori Trustee as the responsible trustee for the owners. Owner trustees were subsequently appointed. The current owner trustees are Josephine Mortensen, Miranda Horan (nee Pukepuke), Wiremu Edwards and Dean Flavell. 2 Applications [4] The Court has before it two applications received on 4 September The first is an application filed under s 289 of Te Ture Whenua Māori Act 1993 ( the Act ) for a partition of part of the land known as Hiwarau C. The application was made by Miranda Horan on behalf of the Pukepuke Haunui Onerau whanau. The partition is sought for that part of the land which, prior to amalgamation, was known as Hiwarau B1B1 and Hiwarau B1B2. The area sought for partition is hectares. It is not clear why an area of hectares is sought when the former titles equate to 12.6 hectares. The current trustees of Hiwarau C have supported this partition application. [5] The second application is an application pursuant to s 215 of the Act for the creation of an ahu whenua trust for the lands sought to be partitioned in the first application. This application is dependent on the outcome of the first application Opotiki MB 111 (45 OPO 111) Waiariki MB 77 (23 WAR 77).

3 70 Waiariki MB 63 [6] Attached to the applications was a report which set out the reasons for partition. The report contains information on how the whānau have continued to utilise and occupy the land for over 5 generations. It also describes their emotional and spiritual connection to the whenua and it emphasis their desire to retain control of the land. The report details plans to develop the land through an ahu whenua trust. Rental from leases to kaumātua who wish to build on the land, for example, will be reinvested in the block for further development. The report also outlines a number of additional options for future utilisation. Background [7] The parent block for the relevant area of Hiwarau C was Hiwarau B1 created in It was partitioned into Hiwarau B1B in 1916 and vested in Awaroa Tiopira, Monumonu Tiopira and Te Uwhitaua Tiopira. 3 From that block, Hiwarau B1B1 and Hiwarau B1B2 were created by partition orders dated 26 November [8] At that time Hiwarau B1B1 was vested in Te Ua Monumonu, Te Urupiua Monumonu, Hone Tiopira and Tata Tiopira. [9] Hiwarau B1B2 was vested in Te Uira Wharehere, Mini Tuhi, Wini Tuhi and Tuhi Tuhi. [10] The applicant and her whānau are descendants of the original owners in Hiwarau B1B2. They also share common ancestry with the original owners of Hiwarau B1B1. The Court has no evidence that the descendants of the original owners for Hiwarau B1B1 support this application. Documents in Support of the Application [11] On 22 September the applications were adjourned sine die on the basis that a valuation report was not attached to the partition application. A valuation report dated 23 February 2009 was subsequently filed on 17 July Opotiki MB 75 (3 OPO 75) Opotiki MB 150 (30 OPO 150) Opotiki MB 6 (104 OPO 6).

4 70 Waiariki MB 64 [12] The applicant complained about the costly process of obtaining a valuation for Hiwarau C. I note that under r 140 of the Māori Land Court Rules 1994, an application for a partition had to be filed with either a certified copy of the entry in the district valuation-roll or a valuation report. [13] While the original application appended an entry from the district valuationroll, that was not sufficient to assist the Court in this case. I directed that a full valuation report from a registered valuer be provided. That valuation report considers the effect of partition for an area of 12.6 hectares that being the total area for the two Hiwarau blocks as they existed prior to the amalgamation. It is also notes that the Pukepuke family own shares out of the total 19, shares. In fact, that figure appears to have been based upon an assumption that all the descendants of the original owners in Hiwarau B1B2 supported the application. I note that this is not evident from the material so far advanced in support of this application. [14] However, assuming that degree of support, the valuer concluded: VALUATION: Due the [sic] extensive size of the total block and therefore the extensive nature (and cost) of a full valuation it is considered that perhaps the best option to consider would be a valuation perhaps by using the 2007 Rating Valuation. TOTAL Value of Improvements $ 263,000 Land Value $ 1,909,00 Capital value $2,172,000 If we took off the Pukepuke improvements (house) and other houses not belonging to the Trust it is considered that the Rating Valuation would be $2,024,000. (Pukepuke) Value of Improvements $ 50,000 Land Value $340,000 Capital value $390,000 This is for hectares. If we took off improvements the Value would be $340,000. Therefore the assessed Pukepuke value of $340,000 is 16.8% of the total value of $2,024,000 as outlined above and higher than the families share percentage of 6.855%. This is more than the families shares because of small size of the subject property and the higher total value because of this [sic].

5 70 Waiariki MB 65 If we applied a Value per hectare of the total property $5,394 ($2,024,00/ hectares) and multiply by the hectares of we get $69,053 or 3.4% of the total Value. The end result is that the Pukepuke family are apparently not getting anything that was not originally consolidated into the main block. Rating Valuation Date 1/9/2007 (Kuturere) Value of Improvements $ 15,000 Land Value $275,000 Capital value $290,000 This is for hectares (Main area) Value of Improvements $ 94,000 Land Value $970,000 Capital value $1,064,000 This is for hectares (Pukepuke) Value of Improvements $ 50,000 Land Value $340,000 Capital value $390,000 This is for hectares (Wainui Road) Value of Improvements $ 6,000 Land Value $175,000 Capital value $181,000 This is for hectares (Start of Hiwarau Road) Value of Improvements $ 98,000 Land Value $149,000 Capital value $247,000 This is for hectares TOTAL Value of Improvements $ 263,000 Land Value $1,909,000 Capital value $2,172,000 This is a mass appraisal assessment prepared primarily for local authority rating purposes. [15] It was the valuer s opinion that the partition would not affect the residual value of Hiwarau C, apart from the removal value and that the Pukepuke whanau would not get anything more than was originally amalgamated into Hiwarau C.

6 70 Waiariki MB 66 [16] I note that a resource consent report was also obtained from the Opotiki District Council Environment and Planning Manger. That report recommends consent be given subject to a Māori Land Court partition order being made and other requirements as to subdivision being addressed. [17] Minutes of a public meeting held on 2 March 2008 were also filed. This meeting had been advertised in the Opotiki News and Whakatane Beacon. The partition application was an agenda item. In addition, the applicant filed trustee consents dated 17 and 23 January [18] Correspondence from October 2010 gives background to the application including what the whānau is trying to achieve. The whanau is currently leasing the land. But their current lease expires in the next few years. Through this application, they are trying to secure their whanau interests in this land. Meeting of Owners [19] The Court directed that a meeting of owners be held and that a s 40 report be completed by the Registrar detailing the outcomes of that meeting. [20] The minutes of the meeting of owners held on 24 November 2011, record that only 12 people were in attendance. Of those people, all gave their support for the application. [21] The Deputy Registrar s report was completed on 6 December The report records that a unanimous resolution was passed supporting the partition application. It attached the minutes of the 24 November 2011 meeting, attendance list and the minutes of the Hiwarau C AGM recording a unanimous resolution in support of the application. [22] An objection of sorts to the application has, however, been received from one owner in Hiwarau C, Mr Peter De Loree. [23] As far as can be ascertained by the Deputy Registrar, there are 19 owners in support of the application. I note that the numbers of owners and their combined shareholding in support, through no fault of the applicant, is very low. While I am mindful of the important connection and history that the Pukepuke whanau have to

7 70 Waiariki MB 67 the land, there are other owners who have not participated in this process and they too share that connection and history. Both these factors are a problem for the applicant and her whanau for the reasons I explain below. Hearing [24] The matter was set down for hearing before the Court on 9 May During the hearing, the applicant gave evidence of her motives for filing the application. She had been approached by her aunties and uncles to pursue this matter. She also claimed to have the full support of all her whānau. Essentially, the applicant argued that the whanau consider this application necessary in order to keep the land in a trust for future generations and to have control over their lands. By retaining control of the land the whānau could then invest in maintaining the roads and buildings on the land. The applicant expressed a desire to be able to develop the land in order to create income and employment for the whānau. They also want to have in place a legal structure to safeguard what the land means to them and their aspirations. [25] She noted the position of the whānau is that their tīpuna never agreed to the amalgamation. [26] The Court queried whether there were any buildings on the land. Evidence was given that there is 1 whanau house, 1 bach and a shed currently situated on the land. The house was on the land prior to the amalgamation. [27] Mr Bruce Pukepuke (the elder of the whānau) then gave evidence of the historical occupation of the land by the whānau. He stated that his grandmother had lived on the land prior and had remained there until she passed away in After that there was a short period of time when the land was unoccupied and during this time the land was amalgamated into Hiwarau C. The whānau returned to the block in the early 1970s to find the land amalgamated. Mr Pukepuke s parents then moved back onto the land under a lease agreement. He outlined how five generations of his whanau have grown up on the block Waiariki MB 264 (54 WAR 264).

8 70 Waiariki MB 68 [28] Rosalyn Hefferan spoke of the desire for the whānau to have a youth programme and the importance of being able to return to their land and to facilitate ancestral healing and the ability of the whānau to sustain itself and grow. She particularly focused on the hauora or health benefits that could be derived from being in control of the land. [29] The matter was then reserved for a preliminary determination and it was noted that a further Court hearing may be required, especially for the balance of the owners that would remain in Hiwarau C. Relevant Law and Discussion [30] The issue for the Court s determination is whether the applicant has satisfied the requirements for partition as set out in Part 14 and ss 286, 288 and 289 of the 1993 Act, particularly s 288(2)(b). That provision requires the applicant show that she has a sufficient degree of support from the owners for this proposal. In assessing whether the applicant has met the relevant statutory requirements, I have also had regard to the Preamble and ss 2 and 17. [31] I note that this Court has exclusive jurisdiction to grant partition orders in relation to Māori freehold land. While that jurisdiction is discretionary, it must exercise its discretion in accordance with the relevant sections of the 1993 Act as reproduced below Purpose of this Part (1) The principal purpose of this Part is to facilitate the use and occupation by the owners of land owned by Māori by rationalising particular landholdings and providing access or additional or improved access to the land. (2) Where it is satisfied that to do so would achieve the principal purpose of this Part, the court may make partition orders, amalgamation orders, and aggregation orders, grant easements, and lay out roadways in accordance with the provisions of this Part. 287 Jurisdiction of courts (1) Subject to subsection (3), the Māori Land Court shall have exclusive jurisdiction to make partition orders, amalgamation orders, aggregation 7 Hammond Whangawehi 1B3H1 (2007) 34 Gisborne Appellate MB (34 APGS 185).

9 70 Waiariki MB 69 orders, and exchange orders in respect of Māori land, and to grant easements and lay out roadways over Māori land. (2) The jurisdiction conferred on the Māori Land Court by this Part shall be discretionary, and, without limiting that discretion, the court may refuse to exercise that discretion in any case if it is not satisfied that to do so in the manner sought would achieve the principal purpose of this Part. (3) Nothing in this section shall apply in respect of any Māori reserve. (4) Except as provided in subsection (1), nothing in this Part shall limit or affect the jurisdiction of the High Court. 288 Matters to be considered (1) In addition to the requirements of subsections (2) to (4), in deciding whether or not to exercise its jurisdiction to make any partition order, amalgamation order, or aggregation order, the court shall have regard to (a) the opinion of the owners or shareholders as a whole; and (b) the effect of the proposal on the interests of the owners of the land or the shareholders of the incorporation, as the case may be; and (c) the best overall use and development of the land. (2) The Court shall not make any partition order, amalgamation order, or aggregation order affecting any land, other than land vested in a Māori incorporation, unless it is satisfied (a) that the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and (b) that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter.... (4) The Court must not make a partition order unless it is satisfied that the partition order (a) is necessary to facilitate the effective operation, development, and utilisation of the land; or (b) effects an alienation of land, by gift, to a member of the donor s whanau, being a member who is within the preferred classes of alienees. 289 Partition orders (1) Where the Court is satisfied that it should partition any Māori freehold land in accordance with this Part, it shall make a partition order, being (a) an order for the partition of any land into 2 or more defined separate parcels; or (b) an order creating or evidencing the title to any 1 or more of such defined parcels. (2) Every partition order shall, upon registration in accordance with section 299, constitute the title to the parcel of the several parcels of land included in it, without any transfer or other instrument of assurance being required. [32] As can be seen, under s 288, I cannot grant a partition order if certain prerequisites are not satisfied and I discuss these below.

10 70 Waiariki MB 70 [33] Under s 288(2)(a), I must be satisfied that the owners have had sufficient notice of the application and sufficient opportunity to discuss and consider it. Given that there have been two meetings (one facilitated by the Court), several notices sent concerning those meetings, Panui and written notice and public notice concerning the Court hearing, I consider that this pre-requisite has been satisfied. [34] Under s 288(2)(b), I must be satisfied that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. This issue is problematic. [35] In 2011, the Māori Appellate Court considered the approach to this issue. 8 The appeal involved two blocks of land, Tutuotekaha 1B5B1 and Tutuotekaha 1B5B2. During the 1940 s to the 1950 s, the appellant s father cleared and used the land. Without development finance, however, he was forced to leave and the land was later used by a local Māori land Incorporation. The lands of that Incorporation and some surrounding blocks were eventually transferred in 1968 to the Board of Māori Affairs for development under Part 24 of the Māori Affairs Act This occurred after the Māori Land Court cancelled the titles to the relevant blocks and made an amalgamation order in The appellant s father was consulted and agreed to the inclusion of Tutuotekaha 1B5B1 and Tutuotekaha 1B5B2 in the amalgamation. [36] Ms Whaanga appealed a decision of the Māori Land Court not to grant a partition order on a number of grounds including that Judge Coxhead was wrong for finding that she had not established that there was a sufficient degree of support for the partition. [37] The Appellate Court noted that ss 286 to 288 govern the Māori Land Court s jurisdiction to order partitions and that the Preamble and ss 2 and 17 guide the exercise of its powers and discretions. [38] After traversing the legal authorities on the subject, the Appellate Court focused upon the issue of whether there was sufficient support for the application as required by s 288(2)(b). In doing so it made the following observations: 8 Mere Whaanga v Anewa Trust (2011) Māori Appellate Court MB 428 (2011 MAC 428).

11 70 Waiariki MB 71 [50] First, notwithstanding the comment in Reid v The Trustee of Kaiwaitau 1 Trust that the question of sufficiency had been left tantalising ambiguous, we think it understandable that the Legislature took this approach. The alternative would be to prescribe a formula, such as a percentage of owners or ownership. The circumstances of Māori land, its owners and ownership vary considerably and the Court needs to have the flexibility to measure sufficiency against those individual circumstances. [51] Second, the test of sufficient of support must be seen in the wider context of the Court s extensive powers of title reconstruction and improvement under Part XIV. With the exception of land-locked land, the general Courts do not have similar powers in respect of land outside the Māori Land Court s jurisdiction only the owners acting unanimously can effect such title changes. Thus, a principal reason for the Court having such extensive powers is that unanimous consent is invariably impossible or impractical to achieve in respect of Māori land in multiple ownership. Blocks such as Anewa are an extreme example but even blocks with a dozen or so owners can present difficulties. Furthermore, as Anewa shows, blocks with large members of owners regularly struggle to achieve owner participation above 10 percent of the owners or ownership. Thus, Part XIV empowers the Court to act on behalf of the owners where there is a sufficient degree of support... having regard to the nature and importance of the matter. But it is not a matter of support exceeding 50 percent or 75 percent or any other pre-determined figure. Rather, the Court is tasked with a more nuanced and fact-dependent assessment. Hence, s 17(2) identifies a number of objectives that are aimed in particular at issues that arise from multiple ownership: (2) In applying subsection (1), the court shall seek to achieve the following further objectives: (a) to ascertain and give effect to the wishes of the owners of any land to which the proceedings relate: (b) to provide a means whereby the owners may be kept informed of any proposals relating to any land, and a forum in which the owners might discuss any such proposal: (c) to determine or facilitate the settlement of disputes and other matters among the owners of any land: (d) to protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority: (e) to ensure fairness in dealings with the owners of any land in multiple ownership: (f) to promote practical solutions to problems arising in the use or management of any land. [39] The Appellate Court went on to note that as the decision whether to grant an application for partition is discretionary, decisions may only be challenged successfully if it is shown that there was an error of law or principle; or that the Court took into account an irrelevant consideration; or that the Court failed to take

12 70 Waiariki MB 72 into account a relevant consideration; or that the decision is plainly wrong. 9 The Appellate Court found that in making any determination on sufficiency of support for a partition under s 288(2), the key is to undertake a proper assessment of the nature and importance of the matter. Thus the Māori Land Court must assess the sufficiency of support in context. [40] The Appellate Court allowed the appeal, as the lower Court had erred in its approach because the learned Judge did not undertake this assessment and he gave too much emphasis to the numerically small turnout in support of the partition. [41] In this case, the numbers in support of the application are low, with opposition from one owner. In addition, the applicant has no tangible support from different branches of the ownership that existed in the two titles, Hiwarau B1B1 and Hiwarau B1B2, prior to amalgamation. [42] In her favour, however, are the circumstances that are relevant to the nature and importance of the matter. The context indicates that the application concerns an area of Hiwarau C that is significant from a spiritual and emotional perspective for the applicant and her whanau. They have had a long association with the block that extends back to the time when Hiwarau B1B1 and Hiwarau B1B2 were created. The family still occupy the land today. Although I am told there is a lease, I have not sighted a copy. However, there are buildings on the land that are associated with their occupancy. The order, if granted, would then regularise what is happening on the ground. They are using the land and want to invest further in its development. It could be argued that as the trustees of Hiwarau C have supported this proposal, it appears that granting the order will not impede any plans they have for the future development and utilisation of the land. However, I am not certain of this and need to hear from them. [43] Under s 288(1)(a), I must have regard to the opinion of the owners or shareholders as a whole. With the exception of one owner, the applicant and her whanau have received support from the active owners in this block. The issue 9 Mere Whaanga v Anewa Trust [2011] Māori Appellate Court MB 428 at 452 para 52.

13 70 Waiariki MB 73 remains, however, whether that number is sufficient having regard to the nature and importance of the matter. [44] Under s 288(1)(b), I must have regard to the effect of the proposal on the interests of the owners of the land. I am not certain of the effect on the residual owners of this proposal. That is essentially because a report from the trustees has not yet been provided. I also note the original title lands are bounded by the Ōhiwa Harbour coastline/estuary. The valuation evidence does not indicate what the loss of this area may mean for the trust if a partition order were granted. [45] Under s 288(1)(c), I must have regard to the best overall use and development of the land. That is a matter I cannot yet have regard to, because there is no sufficient information available on this point. [46] Under s 288(4)(a), I must also be satisfied that the partition is necessary, to facilitate the effective operation, development, and utilisation of the land. In Brown v Māori Appellate Court (2001) 10 the High Court made it clear that the word necessary in this provision is properly construed as reasonably necessary and that it is closer to that which is essential than that which is simply desirable or expedient. [47] At this stage I have no sufficient information concerning whether the partition is necessary to facilitate the effective operation, development and utilisation of the land. I would need evidence on the current state of the Hiwarau Trust, namely its farming operations on the relevant land, its financial statements for the last 5 years, the rating situation, its plans for future utilisation and whether it has provided dividends to all the owners, including the applicant and the owners from the Pukepuke whanau. If it has paid out dividends, I need to know the amount and how regularly. Thus I need a report from the trustees on these matters. As this is not a gift s 288(4)(b) does not apply. 10 Brown v Maori Appellate Court [2001] 1 NZLR 87 at para 51.

14 70 Waiariki MB 74 Directions [48] The applications are adjourned. [49] The Trustees are to file a full report under s 238 within six months of this decision setting out the information the Court needs as outlined above at paragraph 47. [50] The applicant, working with the Deputy Registrar, must provide to the Court a list of owners (and their shareholding interest) representing all the respective branches of the families associated with the land that was once Hiwarau B1B1 and B1B2 who support the application for partition. This list is to be provided within one year, or two weeks following a decision of the Chief Judge on any application filed under s 45 (see below), whichever is the earlier. The applicant is to also file a copy of the lease agreement with the Hiwarau C trustees. [51] The matter will then be set down for final hearing and notice is to be given of that hearing by the Deputy Registrar to all those owners and trustees of Hiwarau C for whom the Court has addresses or for whom, addresses can be reasonably ascertained from the Electoral Roll. The applicant will also be required to advertise notice of the application in the Opotiki News. [52] The Deputy Registrar is to send a copy of this preliminary determination to all those owners and trustees of Hiwarau C for whom the Court has addresses or for whom, addresses can be reasonably ascertained from the Electoral Roll. Alternative Approach [53] I note the application was filed with a decision under s 452 of the Māori Affairs Act 1953 concerning a different Hiwarau block, but it is relevant nonetheless. That provision of the 1953 Act was similar in effect to the current s 45 of Te Ture Whenua Māori Act [54] In that decision the then Deputy Chief Judge, determined that there was nothing on the file to indicate that the Māori Land Court gave notice of all hearings to the sole owner of the Hiwarau B1A, or to any of the owners of the other blocks affected, prior to granting the order for amalgamation resulting in the creation of

15 70 Waiariki MB 75 Hiwarau C. This was a problem because the application was amended when 8 blocks were withdrawn from the proposed amalgamation. The Deputy Chief Judge determined that in the interests of natural justice, the then owner of Hiwarau B1A was entitled to notice of the amendment to the application and she was entitled to be heard thereon. In failing to give notice and proceeding to make orders on the amended application without notice, the Court committed an omission sufficient to justify the variation to the order. The result of that decision was that Hiwarau B1A was taken out of the amalgamated blocks. [55] In this case, there may be some basis for a similar application under s 45 of the 1993 Act as regards Hiwarau B1B1 and Hiwarau B1B2. One of the grounds may be that there is no evidence that the applicant s tīpuna agreed to the amalgamation or received notice of hearings concerning it. [56] I note, I can adjourn this application, if the whanau consider that they should apply to the Chief Judge to pursue this avenue. [57] Given my preliminary determination regarding the application for partition, I strongly suggest that this can only be done for the descendants of the original owners of Hiwarau B1B2. However, the applicant will have to ensure that she has descendants of all 4 original owners in B1B2 represented before filing such an application. I do not consider that she has a mandate to represent the owners of Hiwarau B1B1. I will give her six months to pursue this course in terms of Hiwarau B1B2 if she advises the Registrar within two months that this is her preferred approach. Following a decision from the Chief Judge, and subject to meeting all other directions, the matter will be set down for a final hearing. Pronounced in open Court in Gisborne on 8 February C L Fox DEPUTY CHIEF JUDGE