IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A ABE WITANA HINERANGI PURU Applicants. Applicant

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1 123 Taitokerau MB 199 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 315, Te Ture Whenua Maori Act 1993 IN THE MATTER OF BETWEEN Panguru A16 & Others BUDDY WIHONE ABE WITANA HINERANGI PURU Applicants A UNDER IN THE MATTER OF AND BETWEEN Sections 19 and 67, Te Ture Whenua Maori Act 1993 Panguru A18 HAMUERA WINOKA TOPIA Applicant Hearing: 20 November May September January 2016 (Heard at Kaitaia, Kaikohe and Waipuna Marae, Panguru) Appearances: Bronwyn Moore for B Wihone, A Witana and H Puru Judgment: 29 January 2016 RESERVED JUDGMENT OF JUDGE D J AMBLER

2 123 Taitokerau MB 200 Introduction [1] Hinerangi Puru, Abe Witana and Buddy Wihone have applied for a water easement over Panguru A16, A18 and A24B in favour of Panguru E6A1 and A59B1, being the Waipuna Marae at Panguru. The water easement is to support a new water treatment and reticulation scheme for the Panguru community. [2] A separate application has been brought by Hamuera Topia concerning use of the Papakuwhenua roadway, which is opposite the Waipuna Marae. Hamuera complains that Joseph Te Wake and David and Marion Thomas, whose respective homes are adjacent to the Papakuwhenua roadway, have obstructed his ability to use the roadway to gain access to Panguru A18, of which Hamuera is an owner. Hamuera originally applied for an injunction under s 19 of Te Ture Whenua Māori Act 1993 ( the Act ) and for a judicial conference under s 67 of the Act. The underlying dispute over the roadway raises issues concerning the rights of use of the roadway, its route and maintenance obligations. [3] The roadway application is related to the water easement application as Hinerangi Puru, Abe Witana and Buddy Wihone also complain that the water scheme s contractors have been obstructed from using Papakuwhenua roadway to undertake work on the scheme. [4] The two applications culminated in a special sitting at Waipuna Marae, Panguru on Tuesday 19 January At the conclusion of the hearing I reserved my judgment but advised that the grounds were made out to grant the water easement, and that resolution of the roadway issue needed to await further evidence from a surveyor. I deal with each application in turn. The water easement Background [5] The water easement is to support the new water treatment and reticulation scheme at Panguru. The 1999 floods that affected Panguru destroyed the previous water reticulation scheme. Following the floods, the Panguru community secured Ministry of Health funding for a new water scheme with a modern treatment plant located at Waipuna

3 123 Taitokerau MB 201 Marae. The applicants and the Panguru community have been actively discussing and progressing the new scheme since [6] I viewed the water treatment plant during the hearing on 19 January The main pipes, storage tanks, treatment plant, solar power system and reticulation pipes are all in place, however the scheme has yet to be commissioned. Once commissioned, the scheme will be administered by the Waipuna Marae, and it is intended that some form of water board be constituted in the future which will include representatives of the land owners. [7] The new water scheme will operate as follows. A new water catchment dam has been constructed on Panguru A18. The untreated water is piped through a pipeline laid over Panguru A18 and A24B and the Papakuwhenua roadway to the treatment plant based at Waipuna Marae. Once treated, the treated water is then pumped from Waipuna Marae through a separate pipeline that runs over Papakuwhenua roadway and Panguru A24B and A16 to water storage tanks situated on Panguru A16. The treated water is then distributed from the water storage tanks on Panguru A16 by gravity-fed pipes to households in the Panguru community. It will service over 60 homes. In addition, the system has been designed to enable treated water to be pumped to water storage tanks to supply the Motutii community. However, that part of the scheme has yet to be completed. [8] The water easement is only sought for the main pipelines to take the untreated water from Panguru A18 to the Waipuna Marae, and to then take the treated water from Waipuna Marae to the holding tanks on Panguru A16. The easement will not apply to the pipes that distribute the water to the households; the Waipuna Marae and the householders will enter into separate agreements in relation to distribution of the water to each household. Procedural history of the two applications [9] The water easement application was filed in March However, the application languished in the Court registry for some time because it appeared to affect 40 unspecified blocks of land and was not accompanied by any consents from the land owners. The registry staff were awaiting further information from the then applicant, Joseph Cooper.

4 123 Taitokerau MB 202 Notwithstanding the absence of all the relevant information, the application was referred to me in August 2013 when I set it down for a judicial conference. [10] The judicial conference took place at Kaitaia on 20 November We clarified aspects of the application. At the conclusion of the judicial conference I adjourned the application to hold a teleconference with the applicants proposed solicitor to discuss, among other things, the terms of the easement, identification of the blocks affected and the process for gauging the support of the owners. In addition, during the course of the judicial conference some of the persons present raised the issue of the dispute over the use of Papakuwhenua roadway. In that respect I directed the affected parties to file an application with the Court setting out their concerns. [11] Hamuera Topia s application concerning Papakuwhenua roadway was subsequently filed on 28 November That application was heard at an initial hearing at Kaikohe on 21 May The hearing clarified some of the issues concerning the roadway dispute. However, I adjourned the application to Chambers to issue directions. The following day, on 22 May 2014, I issued a minute wherein I made orders under ss 40 and 98 of the Act directing the Registrar to prepare a report with the assistance of Bob Adam, a retired surveyor, on the history and status of the Papakuwhenua roadway. 3 The report was to: (a) Show the Papakuwhenua roadway, any related roadways and easements, and surrounding titles on a spatial plan; and (b) Provide a title history of the Papakuwhenua roadway together with any land titles which it traverses. [12] Mr Adam s report was to be produced by 31 July He produced his report on 30 June [13] In the meantime, the water easement application did not progress because of difficulties with the applicants engaging a solicitor to advance the application. Eventually, Taitokerau MB (72 TTK ). 81 Taitokerau MB (81 TTK ). The minute book incorrectly records the hearing as having taken place at Kaitaia however, the hearing took place at Kaikohe. 80 Taitokerau MB (80 TTK ).

5 123 Taitokerau MB 203 on 17 October 2014, I directed that Mr Adam s Papakuwhenua roadway report of 30 June 2014 be distributed to the parties and for a teleconference to be held to progress both applications to an eventual hearing at Waipuna Marae, Panguru. 4 [14] Between October 2014 and November 2015 there were a series of teleconferences as a result of which the scope of the water easement application was clarified. 5 The applicants eventual solicitor, Mark Patterson, filed an amended application on 16 September 2015 which clarified that the easement was sought over Panguru A16, A18 and A24B only, and which also clarified the route of the easement and its proposed terms [15] Following an earlier teleconference on 3 September 2015 I had issued directions for a consultation hui to take place with the owners of Panguru A16, A18 and A24B. That hui took place at Waipuna Marae on 18 October [16] In the meantime, the dispute over access over Papakuwhenua roadway had escalated with the locking of the gate and the chainsawing of the strainer post at the gate latch. A special hearing took place at Kaikohe on 25 September 2015 when I issued an oral judgment granting an interim injunction prohibiting Joseph Te Wake or any other person from blocking access over Papakuwhenua roadway. 6 [17] As noted earlier, the substantive hearing took place at Waipuna Marae, Panguru on 19 January There was a good turnout from the Panguru community, with over 20 in attendance. Following the whakatau and kapu tī, the hearing commenced in the wharenui with a brief overview of the purpose of the two applications. We then undertook a site inspection of the water treatment plant at the marae and walked the Papakuwhenua roadway from below the teachers residences (opposite the marae) to Panguru A17, from where we could view Panguru A16 and A18. We then returned to the marae where the hearing reconvened. [18] Notwithstanding that some land owners had concerns over how the water scheme had been implemented, those owners in attendance at the hearing supported the granting of Taitokerau MB (89 TTK ). 90 Taitokerau MB (90 TTK 13-14); 97 Taitokerau MB 233 (97 TTK 233); 99 Taitokerau MB 247 (99 TTK 247); 110 Taitokerau MB (110 TTK 78-80); 115 Taitokerau MB (115 TTK 35-36). 113 Taitokerau MB 1-3 (113 TTK 1-3).

6 123 Taitokerau MB 204 the water easement. There is in fact no opposition to the easement. Nevertheless, I will return below to address the question of whether there is sufficient support for the easement. [19] There was also a constructive though at times heated discussion of the Papakuwhenua roadway. Bob Adam s report together with the site inspection assisted greatly in clarifying the various roadways and easements that affect these land blocks. Annexed and marked A is map 3 from Bob Adam s report which sets out the various roadways and easements. Annexed and marked B is the survey plan showing the route of the proposed water easement over Panguru A16, A18 and A24B. Notwithstanding that survey evidence, at the end of the hearing I concluded that it was necessary to engage a surveyor to define the actual route of the northern end of the formed Papakuwhenua roadway as far as it reaches Panguru A17. Owner support for the water easement [20] The merits of the water scheme for the Panguru community are self-evident and do not need any greater explanation. The scheme is supported by the Panguru community and will also benefit the Motutii community. Notwithstanding the merits of the scheme, a water easement creates legal rights over private land and the Court must ensure that the affected land owners property rights are respected in addressing such a community initiative. [21] The primary issue for the Court is whether there is a sufficient degree of support for the water easement from the owners of each of Panguru A16, A18 and A24B. The Court is empowered to grant easements over Māori land under s 315 of the Act. As far as access easements (rights of way) and roadways (s 316) are concerned, s 317 of the Act expressly directs the Court in relation to the owner support required. In relation to Māori land, s 317(1) provides: 317 Required consents (1) The Court shall not lay out roadways over any Maori freehold land unless it is satisfied that the owners have had sufficient notice of the application to the Court for an order laying out roadways and sufficient opportunity to discuss and consider it, and that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter.

7 123 Taitokerau MB 205 [22] However, the Act does not provide similar express guidance on the level of owner support required in relation to non-access easements, such as in the case of the present water easement. I discussed this issue in my decision in Smith Ohuirua No 2. 7 The approach I took in that decision was upheld by the Māori Appellate Court in the subsequent appeal. 8 More recently, I discussed the approach the Court should take in assessing the level of owner support for an electricity easement in Top Energy Limited Whakataha Z1C. 9 I concluded in that decision that the approach taken in the earlier decisions concerning Ohuirua No 2 was correct and should be followed. I set out below the discussion at paragraph 50 and 51 of Top Energy Limited Whakataha Z1C which quotes from the earlier decisions: [50] In my Smith decision I outlined the relevant sections of the Act (ss ) and noted that s 315 was silent on the consent required in relation to nonaccess easements. So too, ss 286 and 289 of the Act do not address the issue of consent. However, relying on Brown v Māori Appellate Court (at [35]), 10 and the Preamble and ss 2 and 17 of the Act, I concluded as follows: 11 [63] The issue then is what level of consent or support is required for these other types of easements? I have not found any decisions on point. In my view the consent of all owners is not required. First, the Act does not say that. Second, as I observed in Davis Matoa Trust Land (2007) 113 Whangarei MB 135 (113 Wh 135), owners of Māori freehold land can grant easements by registration of an instrument. The Court s exclusive jurisdiction in Part 14 is an exclusive jurisdiction to make easements by order. As owners can grant easements by instrument if they all agree, it makes little sense for s 315 to also require unanimous consent. The Court s power under s 315 is there to address situations where unanimous consent is not present (see in particular s 17(2)). [64] If unanimous consent is not required under s 315 then what level of consent is required? Although s 315 could have said it more directly, the consent required for easements other then access easements is no different to that required for access easements under s 317(1). That is, the test is whether there is a sufficient degree of support for the application among the owners having regard to the nature and importance of the matter and having regard to the principles in the Preamble, s 2 and s 17 of the Act. [51] In the Māori Appellate Court s Smith decision the Court ruled as follows: 12 [30] It should be noted that the application sought easements not only for access but also for various services including electricity, telecommunications and water. Judge Ambler in his decision noted that when considering access easements the Court had to take into account whether there was a sufficient degree of support for the application among the owners, having regard to the Smith Ohuirua No 2 (2009) 142 Whangarei MB 287 (142 WH 287). Smith v Courtney Ohuirua No 2 [2011] Māori Appellate Court MB 284 (2011 APPEAL 284). Top Energy Limited Whakataha Z1C (2015) 104 Taitokerau MB 108 (104 TTK 108). Brown v Māori Appellate Court [2001] 1 NZLR 87. Smith - Ohuirua No 2 (2009) 142 Whangarei MB 287 (142 WH 287) at [63]. Smith v Courtney Ohuirua No 2 [2011] Māori Appellate Court MB 284 (2011 APPEAL 284) at [30].

8 123 Taitokerau MB 206 nature and importance of the matter (s 317(1)). In contrast he noted that s 315 is silent as to the consent required in relation to other easements such as electricity, telecommunications and water easements. [31] At paragraph 64 he turned his mind to what level of consent is required for these different types of easement. He said: [64] If unanimous consent is not required under s 315 then what level of consent is required? Although s 315 could have said it more directly, the consent required for easements other then access easements is no different to that required for access easements under s 317(1). That is, the test is whether there is a sufficient degree of support for the application among the owners having regard to the nature and importance of the matter and having regard to the principles in the Preamble, s 2 and s 17 of the Act. [32] We endorse Judge Ambler s approach. The granting of easements over a servient tenement involves the encumbering of the land and the diminishment of an owner s ability to use it, sometimes without receiving any benefit in return. We also concur with Judge Ambler s approach set out at paragraph 76 of his decision wherein he referred to the fact that long gone are days when Māori land is to be treated as a waste land available to the Crown or public to use whether or not the owners consent or not. [33] Although there is no express reference to the level of consent required for easements other than access easements we consider that applicants must demonstrate a sufficient degree of support for the application among the owners having regard to the nature and importance of the matter and having regard to the principles in the Preamble, s 2 and s 17 of the Act. There is no room in our opinion for an approach which would permit the encumbering of Māori land without the owners knowledge or consent. [23] Accordingly, the applicants need to demonstrate that there is a sufficient degree of support for the water easement among the owners of each of Panguru A16, A18 and A24B having regard to the nature and importance of the water easement and having regard to the principles in the Preamble, s 2 and s 17 of the Act. [24] Despite the fact that the water scheme has been at the forefront of the Panguru community since the 1999 floods, and despite the applicants having discussed the specifics of the scheme with the community since 2007, there has been limited formal engagement by the owners of Panguru A16, A18 and A24B with the water easement proposal. I understand that limited involvement is due largely to many of the listed owners being deceased or living outside of Panguru itself. However, the applicants assured me that during the various hui they have held there has been widespread support for the water scheme and the water easement, and that support has also come from the owners of those three blocks and their whānau. Furthermore, the owners of those blocks will themselves benefit from the new water scheme.

9 123 Taitokerau MB 207 [25] Nevertheless, as I explained to the parties during the teleconferences that led up to the hearing on 19 January 2016, the Act quite properly requires there to be an opportunity for formal consultation with owners where they can express support for or opposition to an application. The formal consultation in the present case occurred through the publicly notified consultation hui held at Waipuna Marae on 18 October 2015, and through the hearing at Waipuna Marae on 19 January [26] The owners of Panguru A16 did not attend the 18 October 2015 consultation hui or the 19 January 2016 hearing. The land has 11 listed owners. I was informed that most of the owners are deceased and the particular whānau who own the land, the Butler whānau, have not occupied the land for some years. However, members of the Butler whānau have been aware of and approved the water scheme as it affects Panguru A16, and in particular have approved the water storage tanks and pipeline being on the land. Representatives of the owners, Peter Haines and Patrick Butler, signed a Memorandum of Understanding on 6 April 2015 in support of the water scheme. [27] Two owners of Panguru A18 have participated in the consultation in relation to the water easement. The land has 20 listed owners. Hamuera Topia attended the consultation hui and the hearing, and Caroline Morunga also attended the hearing. Hamuera has been using the land in recent years and is a representative of the Matini whānau who own the land. He and Caroline unreservedly support the water scheme and water easement, and advise that the rest of the owners also support the easement. [28] Three of the owners of Panguru A24B have participated in the consultation. The land has 24 listed owners. Mariata Rihari attended both the consultation hui and the hearing, while Geoffrey Wi John and his sister Stephanie Te Wake attended the hearing. Their father is Joseph Te Wake, who gifted his land interests to them. Joseph had been involved in locking the gate on Papakuwhenua roadway. He attended the hearing and expressed concerns about how work on the water scheme had been undertaken. At the consultation hui, Mariata (Joseph s sister) explained that some within their whānau were unhappy with how the work had been carried out on the land. She advised that the whānau would be meeting at Labour Weekend to discuss the water scheme. At the hearing on 19 January 2016 she reported that the whānau had in fact met and, notwithstanding their concerns, agreed to support the water scheme and the water easement. Similarly, although

10 123 Taitokerau MB 208 Joseph had concerns regarding how the work on the land was undertaken, ultimately he supported the water scheme and the water easement as the scheme will benefit the community. [29] Notwithstanding the small percentage of owners of each of the three blocks who participated in the consultation process, I am satisfied that their support and that of the owners they represent amounts to a sufficient degree of support for the Court to grant the water easement given the nature and importance of the easement. I have regard in particular to the fact that the water scheme proposal has been discussed by the Panguru community for a number years, that it has widespread support, that the owners of the three blocks have been fully aware of the proposal for some time, and that those owners who have participated in the consultation have done so in a representative capacity on behalf of the owners as a whole. Fundamentally, the water scheme is for the benefit of the Panguru community, including the owners of the three land blocks, and reflects a continuation of past arrangements whereby land owners have worked together to provide water to the Panguru community. Other issues [30] The only other potential difficulties relate to the route of the easement and the terms of the easement. [31] The route of the easement has now been defined by the survey plan annexed and marked B. Although there were some initial concerns with parts of the pipeline being above ground, those problems were resolved and the pipeline was buried underground. Otherwise, there are no issues with the route of the easement. [32] Mr Patterson filed a draft easement in the form of an instrument. The terms of the easement are per the Land Transfer Regulations 2002 and/or Schedule 5 of the Property Law Act 2007 subject to the express provisions in Schedule 1 to the easement instrument. I have reviewed those provisions and am satisfied that they are appropriate except that cl 8 provides for any disputes to be resolved by arbitration. In my view that is not appropriate when dealing with Māori land. Rather, the parties must be able to come to the Court to resolve disputes, as the Court provides a far more cost effective and accessible dispute

11 123 Taitokerau MB 209 resolution process than arbitration. Accordingly, to that extent only, the draft terms of easement will be modified. [33] I therefore conclude that the water easement should be granted. Papakuwhenua roadway [34] The dispute over the Papakuwhenua roadway stems in large part from misunderstandings about the history, status and route of the roadway. This became apparent during the site inspection on 19 January 2016 when Joseph Te Wake and Mariata Rihari questioned whether a roadway had ever been created and whether their tupuna had agreed to it. Joseph also suggested the roadway was not within the survey boundaries, and claimed the relevant pegs were up the bank towards the teachers residences which lie north of the northern end of the roadway. There was also a suggestion that the access had been created independently of any Court order, with Pat Thomas referring to metalling the roadway in 1950 before the roadway order was made. [35] Bob Adam s 30 June 2014 report very helpfully sets out the history of the roadway and other rights of way and easements over the various land titles that lie immediately to the west of the Panguru Township. The report was distributed to the parties in October 2014 and has not been challenged to any degree. I do not intend repeating the detail of the report as it identifies a number of issues in relation to various actions that have affected these land titles. As Mr Adam notes, information from the various sources is sketchy and inconsistent, and often in conflict. Further, Mr Adam makes a range of recommendations for follow-up action to ensure the existing orders and instruments are registered against the titles. [36] Notwithstanding those various issues, the situation in relation to the Papakuwhenua roadway at its northern end is relatively straightforward. There are two primary points that arise from Mr Adam s report that need to be outlined. First, the existence of the 1925 right of way, and second, the route of the Papakuwhenua roadway. I will then go on to address who is entitled to use the roadway and the issue of maintenance.

12 123 Taitokerau MB 210 The 1925 right of way [37] The Court record discloses that a separate right of way proximate to the Papakuwhenua roadway at its northern end pre-dates the roadway. On 1 September 1925 the Court created a right of way 16 feet wide to provide access to the land blocks then known as Whakarapa 51 and 19 (now Panguru A18 and A24B respectively). 13 The indicative route of the roadway is shown on map 2 of Mr Adam s report, a copy of which is annexed and marked C. The 1925 right of way order provides: It is hereby ordered that a private right of way (sixteen) 16 feet wide be laid along the existing track (alongside a fence) through Secs 15B and 19 to the main road, the right of way over Secs 15B and 19 to be appurtenant to Sec 51, and the right of way over Sec 15B to be appurtenant to Sec 19. Sec 19 is also to be subject to the right of way in favour of Sec 51, while Sect 15B is to be subject to the right of way in favour of Secs 19 and 51. [38] I note that the right of way has never been surveyed, has never been cancelled and has never been registered against the relevant land titles. Nevertheless, at law it exists today. I anticipate that in 1952 the Papakuwhenua roadway was intended to replace the right of way. However, for reasons that are not clear, the Court did not formally cancel it at the time. I do not believe it would be appropriate to cancel the right of way today without a proper application being brought before the Court, lest the right of way have some ongoing utility for the land owners. Nevertheless, the important point is that since at least 1925, Panguru A18 and A24B (and their predecessor titles) have had a legal right of access via the right of way to the public road. The route of the Papakuwhenua roadway [39] On 17 May 1952 the Court issued the order creating the Papakuwhenua roadway. 14 The roadway was created as part of the consolidation of the land titles at Panguru. We are only concerned with the northern end of the roadway where it traverses the former Panguru A23B and Panguru A24B and A17. As noted, the land titles changed from a Whakarapa appellation to a Panguru appellation, and I imagine there were also changes in the land title boundaries Hokianga MB 22 (6 HK 22). 23 Hokianga MB 322 (23 HK 322).

13 123 Taitokerau MB 211 [40] The description of the Papakuwhenua roadway is recorded in the Court s minute book as follows: A Road Line, 40 ft wide, proceeding from the Public Road to Westward, between Panguru A8 and A9 through A10 and A11, between A12 Subdivisions and A13, through A14, A15 and A16, to junction with the surveyed road at Southernmost corner of A17 or near thereto. From a point in A15, a branch or circuit will swing off to the N W, through A16, A17 (touching A18), and swinging around to Eastward through A24 and A23B and along north of section A23A and A22A to again meet Public Road at the angle therein all as shown in Scheme Plan. It is really two road lines in from the Public Reserved decision, with provision for a circuit connection upon survey of the area it might be found desirable to make this access route a Right of Way rather than a road line, (in which case the circuit connection might be dispensed with as long as all get access). [41] We do not have all the information to hand as to why a new roadway was considered necessary in Nor do we really need to know why, as the order is effective on its face. Nevertheless, the notable thing about the various roadways, rights of way and easements depicted on maps 2 and 3 is that there are so many of them, some of which appear to be redundant and intended to be replaced by the Papakuwhenua roadway. [42] For example, as already noted, at the northern end of the roadway there is the existing right of way created on 1 September Also, at the southern end of the roadway there is a legal road created by Gazette notice in 1923 which the first section of Papakuwhenua roadway (as shown on map 2) appears to shadow. 15 That length of legal road has apparently never been formed, or at least has not been used for many decades. Thus, the first section of Papakuwhenua roadway appears to have been intended to replace that length of legal road, and the northern end of the roadway appears to have been intended to replace the 1925 right of way. But both the legal road and right of way remain in place today. [43] Although the Papakuwhenua roadway order exists in the minute book it has never been drawn up, signed and sealed as a Court order. But that does not matter. A roadway order exists if it is contained in the Court s minute book and has not subsequently been 15 Proclaiming Road lines laid out through Subdivisions of Whakarapa and Waihou Lower A Blocks to be Public Roads (22 November 1923) 22 New Zealand Gazette 2841 at

14 123 Taitokerau MB 212 cancelled. There is longstanding authority to that effect. In Whakatane District Council - Part Lot 28B Parish of Rangitaiki, Judge Russell observed as follows: 16 On the second ground the test of whether or not a Roadway Order has been made by the Māori Land Court is a very simple one. The first question is whether or not there is a signed and sealed Order of the Court. If there is not, then the question is whether or not there are records of an order having been made which are sufficient, to enable an order to be now drawn up, signed and sealed. [44] Thus, the Papakuwhenua roadway order can be drawn up, signed and sealed at any point in time. The reason that has not taken place may well be because the roadway has never been fully surveyed. [45] Mr Adam s report notes that parts of the roadway appear to be defined by other titles or surveys. At the southern end of the roadway the part of the roadway marked K to L on map 3 has been defined (and redefined) by the Court and other title actions, so that it does appear to have some survey definition. Similarly, at the northern end of the roadway the part of the roadway marked P to Q on map 3 has apparently also been defined by the boundaries of the neighbouring titles. However, more significantly, the part of the roadway marked L to P on map 3 has apparently never been the subject of a survey. [46] Exactly why the roadway was not surveyed remains unclear. I note that the third paragraph of the 1952 roadway order contemplated a survey and also the possibility of some variation to the route described by the Court. In the absence of any survey or subsequent variation by the Court, the roadway should follow the Court s description in the minute book. It is in this respect that there are difficulties with some past attempts to depict the roadway by sketch plans and digital title plans. Some of these have not followed the Court s description. In particular, some plans omit providing access to Panguru A18, as I will now explain. [47] Mr Adam notes that the Court s copy of ML has drawn on it a roadway that broadly follows the Court s description. However, rather than the roadway touching Panguru A18 per the Court minute, it provides for a short leg that extends to the boundary of Panguru A18. I surmise that in the 1950s the officials and owners decided to 16 Whakatane District Council - Part Lot 28B Parish of Rangitaiki (1979) 6 Waiariki Appellate MB 20 (6 AP 20) at p 42.

15 123 Taitokerau MB 213 adopt the leg approach rather than provide for the roadway to touch the boundary of Panguru A18 due to the terrain of the land. The site inspection demonstrated that the northern side of the Whakarapa stream at the junction of Panguru A17, A18 and A24B contains a steep bank which in recent years has eroded. The nature of the terrain likely meant that it was not practical for the loop to touch the boundary of Panguru A18 and the leg approach was adopted. Such an adjustment was contemplated by the Court s minute ( as long as all get access ) and is appropriate. [48] However, in contrast, the Sketch plan of Pt.Panguru Consolidation Scheme, which is appendix C to Mr Adam s report, shows the roadway as a loop which does not touch Panguru A18 or provide any leg access to that block. It also excludes the western arm of the roadway described as the first section on Mr Adam s map 2. [49] In more recent years, as part of the Māori Freehold Land Registration Project, four digital title plans have purported to show parts of Papakuwhenua roadway, being ML , ML , ML and ML The primary difficulty with these digital title plans is that they do not follow the Court s order in providing access to Panguru A18. In addition, it is not clear whether the plans reflect the actual route of the roadway to the extent it has been constructed. [50] In terms of the construction of the roadway, my understanding from the site inspection and hearing is that the northern end of the roadway has only been constructed from the legal road over the former Panguru A23B (points Q to P ), Panguru A24B and Panguru A17. At its southern end it has been formed over points K to M. Thus, a substantial area of the roadway (from the boundary of Panguru A11A and A13 to the boundary of Panguru A16 and A17) has not been formed or used to any significant degree, and there appears to be limited evidence of past use on which a survey could be based. [51] In my view, the past attempts to depict the roadway on the sketch plan and digital title plans as it traverses Panguru A24B and A17 are problematic. Although those problems have not necessarily caused the current dispute between the parties, it is incumbent on the Court to correct any such problems in order to mitigate the potential for ongoing disputes.

16 123 Taitokerau MB 214 [52] The site inspection demonstrated that the route of the section of the roadway with which we are concerned is well defined on the ground and has been used for a number of years. But there are suggestions it does not follow the intended route. The roadway needs to be defined as it traverses the former Panguru A23B title. It also needs to be defined along its as constructed route over Panguru A24B and A17. Furthermore, as the roadway crosses the Whakarapa stream from Panguru A24B to Panguru A17 (at point O on map 3), it should branch off to the north to provide the leg to give access to Panguru A18. That access has been used for many years by the owners of Panguru A18, as confirmed by Hamuera Topia at the site inspection. Accordingly, the leg needs to be included in the surveyed route of the roadway. [53] In summary, in dealing with the dispute over access over Papakuwhenua roadway the Court needs to define the roadway by survey to the extent it traverses the former Panguru A23B and the current Panguru A24B and A17, so as to follow the constructed roadway and to provide for the leg access to Panguru A18. I will appoint a surveyor to prepare a draft survey plan depicting the roadway. This can be discussed at a further sitting of the Court. It will be more efficient to engage the surveyor who completed the survey plan for the purposes of the water easement, which is Von Sturmer s of Kaitaia. I see no need to have the roadway surveyed further to the south where it traverses Panguru A11B, A11A, A13, A14, A15 and A16, as there is no dispute in relation to the roadway in those areas. The plan can simply show that section as undefined by survey. Who is entitled to use the Papakuwhenua roadway? [54] Although the discussion above addresses the history and route of the roadway, the question that remains is: who is entitled to use the roadway? [55] The roadway was granted in The Native Land Act 1931 ( 1931 Act ) applied at the time. The consolidation scheme was effected under ss 161 to 168 of the 1931 Act. Section 162(8) provided that in carrying a consolidation scheme into execution the Court could among other things lay out roadways (known as road-lines ). This was under Part XX of the 1931 Act. The Court s power to make roadways in Part XX was under ss 477 or 478 of the 1931 Act.

17 123 Taitokerau MB 215 [56] The 1931 Act did not expressly address whether such roadways were restricted as to user or open to the public. It was not until s 416(1) of the Māori Affairs Act 1953 ( 1953 Act ) that the legislation created a presumption that a roadway order conferred on all persons the same rights of use of a roadway as if it were a public road (unless the order stated otherwise). I discussed this issue in a report I issued to the Chief Judge of the Māori Land Court under s 46(1) of the Act in the context of a s 45 application: Butler v N F Fraser and Co Limited Mangawhati 3B1 and Takahiwai 3A2. 17 In reviewing the legislation I concluded that prior to the 1953 Act, the legislation did not create a presumption that roadways or roadlines were available to be used by the public at large. That is, the presumption was in fact that they were restricted as to user unless the Court ordered otherwise. [57] In the present case, the 1952 order is not expressed to be for the benefit of the public at large. It is therefore restricted as to user. That means that the persons entitled to use the roadway are the owners of the land blocks which the roadway serves and their invitees, that is, the land blocks that abut the roadway. Two points arise out of this conclusion. [58] First, some of the parties at the hearing queried whether they were entitled to lock the gateway across Papakuwhenua roadway. My view remains that the surrounding land owners are not entitled to lock the gate. They are certainly entitled to have a gate over the roadway in the absence of the roadway being fully fenced. However, because the roadway serves so many land blocks and there are numerous owners and invitees who would be entitled to use the roadway, it is simply too impractical and contentious to allow the gateway to be locked. [59] Second, the dispute over the roadway related not only to land owners such as Hamuera Topia who were prevented from using the roadway to get access to land that abutted the roadway, but also the workers associated with the water scheme. The proponents of the scheme objected to being excluded from using the roadway. In my oral judgment of 25 September 2015, when I granted an interim injunction prohibiting Joseph Te Wake or any other person from blocking access over the roadway, I came to the 17 Butler v N F Fraser and Co Limited Mangawhati 3B1 and Takahiwai 3A2 (2010) 7 Taitokerau MB 260 (7 TTK 260) at [62] [75].

18 123 Taitokerau MB 216 preliminary view that the persons involved with the water scheme were also entitled to use the roadway. That was on the assumption that the roadway was unrestricted as to user. As I have outlined above, in fact the roadway is restricted as to user. Furthermore, the 1925 right of way is also restricted to being for the benefit of Panguru A18 and A24B. [60] Consequently, while I issued that injunction on an interim basis and intended that it also benefit those associated with the water scheme, clearly my assumption that the roadway was unrestricted as to user was wrong. Persons involved with the water scheme do not have an independent right to use the roadway, though they can use it as invitees of the abutting land owners. However, importantly, the water easement will separately grant to the Waipuna Marae the right for those persons maintaining the water scheme to have access over Panguru A16, A18 and A24B for the purposes of maintenance and so forth of the water scheme. Roadway maintenance [61] Joseph Te Wake complained that owners of land blocks such as Panguru A18 who have made use of the Papakuwhenua roadway have not contributed to its construction or maintenance. The evidence is not sufficient to determine whether Joseph is entirely correct in this regard. Nevertheless, the important point is that at present, the 1952 roadway order does not address responsibility for maintenance of the roadway. All of the parties at the hearing agreed that it should do so, and that contribution to maintenance should be based on the level of use of the roadway. [62] Accordingly, I intend making an order under s 322 of the Act to vary the 1952 roadway order to include a provision concerning maintenance of the roadway to the effect that the users of the roadway, in particular the owners of Panguru A17, A18, A24B, A23A and A22A, the owners of Lot 1 DP (CFR NA87C/839), and the Waipuna Marae are obliged to make a reasonable contribution towards the cost of establishment, maintenance, upkeep, and repair of the roadway to an appropriate standard. Should there be any dispute over maintenance of the roadway, then that is a matter that the users of the roadway can bring to the Court to resolve.

19 123 Taitokerau MB 217 Outcome [63] As far as the water easement application is concerned, I make the following order: (a) Pursuant to s 315 of the Act granting a water easement over Panguru A16, A18 and A24B in favour of Panguru E6A1 and A59B1 (contained in CFR ) on the terms contained in the draft easement instrument filed by the applicants save that cl 8 shall provide that: If any dispute arises between the Grantor and Grantee concerning the rights created by this order, the parties must enter into negotiations in good faith to resolve their dispute. If the dispute is not resolved within one month of the date on which the parties begin their negotiations, the parties may apply to the Māori Land Court for a determination of the dispute. [64] In terms of the application concerning the Papakuwhenua roadway: (a) The application is adjourned to a further hearing at the Kaitaia Court; (b) Pursuant to ss 69 and 98 of the Act the Court appoints Von Sturmer s Kaitaia to prepare a draft survey plan that depicts the northern end of Papakuwhenua roadway and which: (i) Follows the formed roadway lying immediately to the north of Panguru A22A and A23A, and Lot 1 DP (CFR NA87C/839); (ii) Follows the formed roadway between points P and O on map 3; and (iii) Provides for a leg access from point O on map 3 following the existing track to the boundary of Panguru A18. The draft survey plan is to also show the roadway on an aerial photograph/satellite image. The surveyor is to be available to attend the Court sitting in Kaitaia. Von Sturmer Kaitaia s reasonable costs are to be met out of the Special Aid Fund.

20 123 Taitokerau MB 218 [65] The Registrar is to make contact with Von Sturmer s Kaitaia to ascertain the firm s costs and ability to produce the draft survey plan by 31 March I will issue orders addressing the Papakuwhenua roadway following the final hearing. [66] As for the rights of user of the Papakuwhenua roadway, I have concluded that it is restricted as to user to the owners of the various land blocks that abut the roadway and their invitees. There is no general public right of access. [67] Finally, Mr Adam s report has identified a number of actions for the Registrar to undertake to ensure that various historical orders and instruments are registered against the land titles. I leave the Registrar to action those matters once the proceeding is finally completed. Pronounced in open Court at Whangarei at 5.32 pm on Friday this 29 th day of January D J Ambler JUDGE

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