312 Aotea MB 137 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A20120013530 UNDER Section 133 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Section 4 Block IV Town of Ongarue DEPUTY REGISTRAR Applicant RUAPEHU DISTRICT COUNCIL Respondent Hearing: 298 Aotea MB 26-30 dated 18 February 2013 308 Aotea MB 130-135 dated 26 August 2013 (Heard at Taumarunui and Turangi) Appearances: L Bhullar for the Respondent Sian Barrett in person Judgment: 29 November 2013 RESERVED JUDGMENT OF JUDGE L R HARVEY Solicitor: Fergusson Bhullar & Scott, PO Box 26 Ruapehu fbs@xtra.co.nz
312 Aotea MB 138 Introduction [1] This decision concerns an application by the Deputy Registrar of the Court for an order per s 133 of Te Ture Whenua Māori Act 1933 to change the status of Section 4 Block IV Town of Ongarue from General land to Māori freehold land. The block is currently owned by Pineamine Te Rata. [2] This application arose as a result of a publication by the Ruapehu District Council ( RDC ) of Apparently Abandoned Land. The notice advised that any land that is declared to be abandoned in terms of s 77(1) and (2) of the Local Government (Rating) Act 2002 would be sold or leased by RDC pursuant to that Act. [3] The Deputy Registrar filed the application on the basis that the Court has previously dealt with succession to the current named owner of the block and that if the status of the land were changed to Māori freehold land the Court could vest the block in those persons entitled. This would enable RDC to discuss rates arrears with the owners. The Court has also been contact with the successors to the estate of Peneamine Te Rata and that there is support for the application. It is also submitted that the cost for the owners to seek formal administration of the estate in order to have the block vested in them via transmission would be unduly expensive having regard to the value of the interest. [4] RDC oppose this application on the basis that there is currently rates, arrears and penalties to the sum of $11,684.94 owing in respect of this block and the change of status of the land will effectively extinguish the council s statutory charge over the land and power of sale which it is said are the ultimate means by RDC to enforce payment of rates for the block. If the change of status is made it should be made conditional on the repayment of the arrears. Issue [5] The issue for determination is whether or not the change of status application from General land to Māori freehold land should be granted. [6] This is one of three cases of a similar nature involving RDC that were essentially heard together. At a hearing held on 26 August 2013 at Turangi I granted the order as sought and confirmed that written reasons for my decision would be issued in due course.
312 Aotea MB 139 Background [7] Section 4 Block IV Town of Ongarue being all that land in certificate of title TNB3/122 was created by partition order on 11 April 1961 1 and vested in the name of Peneamine Te Rata. On 17 March 1969 a declaration of status was registered against the title to the block. The declaration was made pursuant to the Māori Affairs Amendment Act 1967 and declared the block to be European land. The current certificate of title TNB3/122 shows that Peneamine Te Rata still remains as owner of the block. Procedural history [8] The first hearing was held on 18 February 2013 before Judge Savage. 2 The Registrar requested an adjournment to address ownership issues. From the minutes of the hearing it is evident that Judge Savage was not convinced that the application would be successful given there was no evidence before the Court at the time as to whether the owners support the application and whether the land could be managed or utilised more effectively as Māori Freehold land. [9] The case manager was then directed to: (a) (b) (c) (d) Identify if the landowner is alive and obtain contact details for them. Where the landowner is alive, the Registrar is to contact them and explain the nature of the application with them and ascertain whether they support the application. Where the landowner is deceased or their status is not known, the Registrar was directed to complete a search of the Court record to determine successors. Where the land is still owned by the landowner who owned it at the time of the status declaration the Registrar is to complete a search to show the derivation of interests to the land and the whakapapa of the landowner. [10] On 26 August 2013 the substantive hearing was held before me. For completeness I record that no objection was taken by any party to my concluding the hearing in the absence of Judge Savage. Mr Bhullar appeared for RDC and reiterated the Council s opposition to the status change and its opposition to the process for recovering rates on Māori freehold land as being less effective. Sian Barrett appeared and indicated that there was support for the application amongst the 1 2 See also Deputy Registrar v Ruapehu District Council - Lot 2 DPSA 38101 and Deputy Registrar v Ruapehu District Council Ohura South A3B1A 298 Aotea MB 26 (298 AOT 26)
312 Aotea MB 140 successors to Pineamine Te Rata. At the conclusion of the hearing I indicated that I would make an order changing the status of the land to Māori freehold land with written reasons to follow. Ruapehu District Council s submissions [11] Mr Bhullar submitted that in order to meet its costs RDC charges rates to land owners. All land owners have a legal and a community responsibility to pay rates to enable local authorities to continue to provide services. Where rates are not paid RDC has various options available to it to enforce the payments of rates depending on the type of land subject of the rates charge. All rates payable in respect of any general land constitute a first charge on that land per s 59 of the Local Government (Rating) Act 2002. According to Mr Bhullar that charge operates as a security against the land and is only released when rates are paid. That charge had priority over all other securities. [12] Counsel contended that under the Local Government (Rating) Act 2002 the Council has the power to enforce payment of rates either by rating sale (ss 67-76) or by way of abandoned land sale (ss 77-83). Part 4 of the Local Government (Rating) Act 2002 sets out a separate regime for rating of Mäori freehold land. It does not provide Council with authority to enforce payment of rates by way of rating sale or abandoned land sale. The only means of recovery is per ss 99-103 which enable Council to obtain a charging order against Māori freehold land. The Council would then be able to request that the Māori Land Court enforce the charging order. (ss 108-111). These enforcement options are only effective in the case of land that is potentially income producing. These options will not be practical in this case as the land is only suitable as a residential site. [13] Finally counsel submitted that RDC s options to enforce the liability for rates against Māori freehold land are limited and are considerably less effective than the options Council has to enforce the liability for rates against General land. The Law [14] In Paul Motatau 1B3A Judge Ambler dealt with a similar application. He discussed the context and consequences of a change of status to General land under the 1967 Act: 3 [20] Pursuant to Part I of the 1967 Act, any Māori freehold land owned by not more than four persons was, after inquiry by the Registrar of the Court, declared to cease to be Māori freehold land. The change of status was compulsory. The owners had no say and indeed were not required to be notified until the change of status had occurred. Often owners were never aware that the status of their land had changed and, following the repeal of these provisions by the Māori Purposes Act (No. 2) 1973, never sought to return the status of the land to Māori freehold land... 3 (2010) 11 Taitokerau MB 212 (11 TTK 212)
312 Aotea MB 141 [21] The change of status has several consequences. [22] First, despite being ancestral land it is no longer Māori freehold land. [23] Second, the succession provisions in the 1993 Act that apply to Māori freehold land do not apply to it. Consequently, there is no restriction on the classes who can succeed to it (ss 108 and 109) and there is no ability to provide for whangai. More significantly, it can only be dealt with by the Court if formal administration has been granted by the High Court. Very often Māori successors do not seek formal administration of estates because of the cost involved and the need to engage lawyers and the land is left in the name of deceased owners. That is the case here. [24] Third, the 1993 Act s restrictions on alienation do not apply to General land. Conversely, the Property (Relationships) Act 1976 is not automatically restricted from applying to the land as would be the case if it were Māori freehold land. [25] Fourth, owners may not be able to take advantage of land management and administration mechanisms and other Government policies available for Māori freehold land only. [26] Finally, and arguably of greatest significance, General land is not protected against rating sales whereas Māori freehold land has been protected from rating sales since 1988 under the Rating Powers Act 1988 and now the Local Government (Rating) Act 2002. [15] On the issue of who can bring an application Judge Ambler considered that: [31] In my view, the descendants of a deceased owner who can show a prima facie entitlement to succeed to that owner s interests can claim to have an interest in the matter and therefore can bring an application under s 133. This approach is in keeping with the kaupapa of the 1993 Act (the Preamble and ss 2 and 17) and in particular the need to take a practical approach in dealing with land that had its status changed compulsorily under the 1967 Act. [16] I adopt the reasoning set out in that decision. Discussion [17] Court records confirm that Peneamine Te Rata died on 17 March 1990. He left a will dated 24 January 1964. The Court made orders on 20 March 2009 vesting the interests held by Peneamine Te Rata in his successors. 4 4 139 Otorohanga MB 32 (139 OT 32)
312 Aotea MB 142 [18] Morgan Te Iringa Rata, a successor to the estate of Peneamine Te Rata, has been in contact with the Court on behalf of his whānau and submits that he and his siblings consent to the change of status of the block. It would appear that the whānau connected with this land were not aware of the effects of the 1967 amendment and its implications as summarised by Judge Ambler in his judgment cited earlier in this decision. [19] Sian Barrett, a member of the preferred class of alienees, gave evidence that the block has historical and cultural importance it being passed down generation to generation but never sold. [20] Pursuant to s 133(3) the Court must be satisfied of the following criteria before it can change the status of the land to Māori freehold land: (a)the land is beneficially owned by one or more Māori; and (b)the owners have had adequate opportunity to consider the proposed change of status; and (c)either (i)all the owners agree to the proposed change of status; or (ii)the land can be managed or utilised effectively as Māori freehold land and a sufficient proportion of the owners agree to the proposed change of status; and (d)it is desirable that the land become Māori freehold land having regard to the history of the land, and to the identity of the owners and their personal association with the land. [21] I am satisfied that Pineamine Te Rata is Māori as are his successors. Contact has been made with several of the successors. They have had an opportunity to consider the proposed change of status and it is evident that there is sufficient support for the application. Section 17 of the Act provides that one of the general objectives of the legislation is to ascertain and give effect to the wishes of the owners. While the Deputy Registrar may have initiated the application, this has eventually precipitated a response from the successors and representatives of the deceased owners and their whānau. They wish to proceed with a change of status. [22] Changing the status of the land will enable cost effective succession to Pineamine Te Rata. The important point here is that the successors will then be in a position to be able to negotiate a solution to the rates arrears with RDC. This is critical since RDC indicated that a negotiated solution that involved payment of rates and a remission of penalties would be a preferable outcome. But for the 1967 Act the land would have remained Māori freehold land. And even with a change of status the Council will still have practical options available to it under the Local Government (Rating) Act 2002 to seek payment of the arrears. I am satisfied that the land can be utilised more effectively as Māori freehold land.
312 Aotea MB 143 Decision [23] Pursuant to s 133 of Te Ture Whenua Māori Act 1993 the Court makes an order changing the status of Section 4 Block IV Town of Ongarue being all that land contained in certificate of title TNB3/122from General land to Māori freehold land. [24] There will be no order as to costs. [25] A copy of this judgment is to be issued to the representatives of the owners and their whānau and the Ruapehu District Council. Pronounced at am/pm in on this day of 2013 L R Harvey JUDGE