Minute Book: 87 OPO 238 IN THE MAORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT Place: Present: Gisborne CL Wickliffe, Judge K Lardelli, Clerk of the Court Date: 28 April 2005 Panui No: Chambers Application No: A20030001949 Subject: Lot 5 DP 8663 GS5D/1373 -Investigation Legislation: Sections 18, 131 and 132, Te Ture Whenua Maori Act 1993 Previous Evidence: 82 Opotiki MB 238-265 and 84 Opotiki MB 136-141 C/- P Helmbright, 73 Buchanan St, Opotiki 14GB King St, Opotiki RESERVED DECISION Introduction This application with several named applicants, two of whom were added during the course of proceedings, has at its heart a desire on behalf of all of them to contest the validity of Crown derived title over land that was formerly Maori customary land. Although ostensibly about this one block of land, the arguments made in support of the application demonstrated a desire to challenge all Crown or private title to land within the traditional territories of Upokorehe hapu of the Whakatohea Tribe. While detailed submissions were led regarding different statutes and the common law, it was clear to the Court during the course of these proceedings, that the applicants would never accept that the Crown acquired title to Section 11 in the Parish of Waiotahi through confiscation and that eventually that Crown title was replaced by a title vested in a bona fide purchaser for value.
Minute Book: 87 OPO 239 Nor would they accept that from the initial transfer from the Crown in 1907, and for over ninety years, this land has been subject to the land transfer system. The applicants take no heed of that, instead they wish to turn back the clock to a time in history when their ancestors held the full exclusive and undisturbed possession of this block. The Initial Application On or about the 24th of February 2003 the Maori Land Court in Rotorua received an application for the investigation of Maori Customary land pursuant to sections 18, 131 and 132 of Te Ture Whenua Maori Act 1993. Initially, the application was brought for and on behalf of the whanau and beneficiaries of Whakatohea. Whakatohea and it's underlying HapO, it was claimed in the application, were tangata whenua in respect of the region where this land is situated beginning at Te Rangi in the east and ending at Te Horo in the west. The region includes within it, land referred to in the attached schedule to the initial application. The land was in 1840 customary Maori land and was held by them in accordance with tikanga Maori. They claim in the application, Maori customary title to the land had not been relinquished or extinguished since that time. Consequently the land remains Maori customary land of the applicants, their whanau and the beneficiaries ofwhakatohea tribe. In the alternative, the grounds for bringing the application were that if the land is now vested in the Crown, then the applicants never consented to the abrogation of their customary title by the Crown and rely instead on the principles of R v Simons (1847) NZPCC 387, Wi Parata v the Bishop of Welling/on (1877) 3 NZ Jur 72 and Tamaki v Baker (1901) AC 561 (PC). The application suggests that these cases are precedents for the proposition that the Crown holds title as fiduciary on behalf of the applicants in accordance with section 144/93. The applicant sought an order declaring the land to be Maori customary land and vesting such land in the whanau and beneficiaries of Whakatohea. A search of the Maori land records revealed that this block is no longer a Maori land block. In fact, Lot 5 OP 8663 GS 50/1373 is a general title block registered under the land transfer system with a certificate of title declaring this to be 31.0888 hectares. At the time the application was filed, the registered proprietors of this block was Walton Mountain Limited (a registered company with the directors being John Raymond and Janice Fleming of Vanstone Road, RO 2, Opotiki). Walton Mountain Limited entered into an agreement for sale and purchase with Waiotahi Beach Trust during the course of these proceedings. Maori Land Court Conference The matter was referred to me on 11 March 2003. I required the matter be set down for a section 67 conference to be held in April. All affected land owners were to be notified and a copy of the application was to be sent to the Crown Law Office. At the conference it became clear that the major concern of the applicants was the development taking place on and within the vicinity of the block. The affected hapo,
Minute Book: 87 OPO 240 Upokorehe, were concerned that their objections to such development were being ignored by the owner-developer. It was claimed that the area where this land is situated was a major battleground in ancient times. A tohunga had identified bones within the area. The applicants and others were concerned to stop the building of houses on the sites where these bones were buried. Mr Helmbright, for the applicants advised also that the area was once subject to confiscations by the Crown. It is within the major confiscation line of the 1800's that extended from an area near Opotiki north to the territory of Ngati Awa. That confiscation, it was claimed, was an act in breach of Te Tiriti 0 Waitangi. They also claim to be adversely affected by a number of statutes, which undermined the tino rangatiratanga of Upokorehe and Whakatohea. Extensive submissions were made, despite the fact that this was only a judicial conference. It was noted that part of the hapu had set up what was described as a 'Maori Incorporation' established by seal of the Tikanga Maori Law Society. I will note that such an incorporation is not a legal Maori land incorporation set up under Te Ture Whenua Maori Act 1993 which requires an order of the Maori Land Court. An interesting element of those submissions was the contention that Part XIII of Te Ture Whenua Maori Act 1993, section 253, section 253A and section 17/93 support the proposition that Maori have the right to make their own law. The submissions also referred to Heneili Rerereri Arani v Public Trusfee (1919) [1840-1932J NZPCC 1 (PC); [1920J AC 198, Wi Parafa v fhe Bishop of Wellingfon (1877) and Tamaki v Baker (1901). As a result of hearing from the parties, the Registrar was directed under section 40/93 to file a report with the Court on the historical chain of title of this block (if it existed) through the Maori Land Court from the time of the original block, to 2003. The matter was adjourned for hearing. Maori Land Court Hearings The first hearing of this application on 5 June 2003, was adjourned for three months in order to ensure that all directions of the Court could be complied with. (81 OPO 210) The matter was again before the Court on 2 September 2003 (82 OPO 238-265). At that sitting the Court received the report of the Deputy Registrar. After liaising with the applicants and Land Information New Zealand, the Deputy Registrar reported that the historical name of this parcel of land was identified as Section 11 in the Parish of Waiotahi. The Deputy Registrar also reported that his research failed to reveal any information held in the Maori Land Court concerning this title. It is a valid title, however there is a gap in the records for this block along with various other Waiotahi blocks. As a result the Registrar was unable to produce a report for Section 11 in the Parish of Waiotahi regarding the historical chain of title. By this date the Court had before it the original application and a request for joinder by Mr Toby Wikotu and the Upokorehe Incorporation. For the avoidance of doubt as to who were the applicants, an order was made under section 71/93 recognising the status of the different applicants before the Court.
Minute Book: 87 OPO 241 The spokesperson for the Upokorehe Incorporation was Mr Bruce Williams. He made extensive submissions on behalf of the Nga Tikanga Maori Law Society, who were representing the Upokorehe Incorporation. He began by requesting the Court to exercise its jurisdiction in terms of sections 20, 18 and 19/93. He also gave detailed submissions dealing with certain UK statutes including the County Court Act 1934. He attempted a detailed analysis of certain other sections of Te Ture Whenua Maori Act 1993 and the District Courts Act 1947. He also reviewed the Court decisions listed above with the addition of the United States Supreme Court decision of Johnson and Mc'lntosh 8 Wheat. 543 (1823). These decisions he submitted indicated that, regardless of the issue of a Crown grant in terms of this particular block of land, the native title of the applicants remained as a burden on that title. No legislation had been passed to extinguish that title. He sought to have the proceedings transferred from the Maori Land Court to "The highest Court in the land being at Waitangi Marae to be heard and determined by Nga Tikanga Maori Law Society Inc, Chief Judge JEH Murphy." There is, of course, no such Court recognised by the New Zealand legal system and Mr Murphy holds no warrant from the Governor General to act as a judge. On 2 September 2003, Mr Peterson filed with the Maori Land Court a notice of intention to appear at the court hearing. Mr Peterson appeared as counsel for new vendors who were in the process of purchasing the property from Walton Mountain Limited. Basically, he submitted that the Maori Land Court has no jurisdiction in relation to this block, as it is general title, registered under the land transfer system. He contended that while the Court may make a declaration pursuant to section 18(1)(h)/93 to determine whether in fact the land is general land, the Court can not go any further as it is excluded from determining claims relating to this particular block. If this land is not Maori freehold land the Court has no jurisdiction to issue an injunction under section 19/93. Mr Peterson further submitted that the second basis under section 18(1)(i)/93 for invoking the jurisdiction of the Court can have no foundation. That is because the current owner of the block owes any fiduciary duty to the applicants. No evidence has been produced which is credible or sufficient to establish that such a fiduciary duty exists. The submissions made by the applicants relate to the legality and the effectiveness of the initial Crown grant, the extinguishment of the Maori customary title and the incorporation of the land into the land transfer system. This took place many years ago and there has been a succession of title involving bona fide purchasers for value, a certificate of title has been issued and the land has been registered under the land transfer system for over 90 years. The Maori Land Court also has no jurisdiction pursuant to section 144193, as the office of the Maori Trustee is not represented in these proceedings. Furthermore, the application of section 144/93 would require that the land be in fact Maori customary land and that there be an unlawful occupier who needed to be removed. In such a situation the Maori Trustee or the Crown has the right to take action before the Court to obtain or regain occupation. It is not appropriate in this case to invoke section 144/93 because the inevitable determination of the Court is that the land is general title land and therefore once the Court finds that it is general title land, that is an end to the jurisdiction of the Maori Land Court.
Minute Book: 87 OPO 242 Mr Peterson noted that his clients had entered an unconditional sale and purchase contract with possession effective from 1 September 2003. His clients incurred expenses under that contract and were committed to a course of action. They want to be assured that there is some determination as to the status of the land and to have this matter addressed to conclusion so that it is not an ongoing issue. During this hearing, further interlocutory orders were made under section 62(2)/93 and section 98 of Te Ture Whenua Maori Act 1993 for the Registrar to commission a report from an expert historian. I also declined the application for leave to adjourn this matter to the applicant's "higher court" in Waitangi. I found that this Court has no jurisdiction to adjourn any case that comes before it to such a court. I did adjourn the matter for three months during which time the Registrar would have the opportunity to commission the historical report previously referred to. I note that in the end it took longer than 3 months for the report to be completed. The matter was then set down for a further hearing on 17 March 2004 recorded at 84 Opotiki MB 136-141. During that hearing I noted that report had been completed. On that date, Mr Williams requested a further adjournment to allow him to fully assimilate the contents of the historical report commissioned by the Court. The Court therefore granted his application for adjournment for a further two months. At the nex1 Court sitting the Registrar was directed to request the attendance of Dr Gilling who was commissioned to complete the report. The matter was finally heard to conclusion on 28 May 2004. On that date the report of Dr Bryan Gilling was received by the Court, taken as read and the author was made available for cross-examination. Evidence of Dr Bryan Gilling At the time he presented his evidence, Dr Brian Gilling was senior research associate at the Treaty of Waitangi research unit, Victoria University. Dr Gilling holds a MA (Hans) in History, a BTh (Hans) in Church History, and a DPhil in New Zealand History. He investigated the history of Section 11 in the Parish of Waiotahi by considering: Whether it was subject to a pre-treaty or pre-confiscation crown or private purchase; Whether it was subject to the raupatu or Crown confiscations of the 1860's; and The origins and conditions of the original certificate of title Dealing first with pre-confiscation pakeha landholdings in Opotiki. He reported that it appears that there was some small pakeha land dealings in Opotiki prior to the 1860's. The most relevant of the transactions during this period was when land was purchased by the Anglican Church Missionary Society (CMS) for a mission station and for the support of its staff. This transaction took place on 27 January 1840 when 3,840 acres described as the Pakihi block was sold by Titoka, Rangihaerepo (of Upokorehe), Ake (of Upokorehe), Okioki, Aporotanga (of Ngati Rua) and twenty others to the Reverend A.N. Brown and Messrs James Stack and John Wilson of the CMS. This appeared to have been a transaction for the missionaries in their own right being described in the agreement as 'to their heirs and assigns also for ever, to locate sell or appropriate for
Minute Book: 87 OPO 243 their use and benefit: the land with whatever may be growing upon it or deposited beneath.' The description of the block Pakihi suggests that it may have incorporated part of the Section 11 in the Parish of Waiotahi block. The missionaries paid $400.00 for the Pakihi block. As this transaction occurred before the signing of the Treaty of Waitangi, it was regarded as an old land claim. Such old land claims required double-checking by Crown Commissioners. If such purchases were valid or bona fide, these Commissioners would make awards in favour of the purchasers followed by an award of a Crown grant. The award finally granted in terms of this initial transaction went to the son of Reverend Wilson. The son was awarded 1,916 acres under the Land Claims Settlement Act of 1856 and the Land Claims Settlement Extension Act of 1858. However, the area awarded was inland on the Waioeka river so regardless of the precise basis of the claim, the final award would not have impacted on the Crown acquisition of the Waiotahi lands. Between 1840 and 1862, it was illegal for private purchasers to acquire land directly from Maori. Following the Treaty and bolstered by the Native Land Ordinance of 1846 the Crown possessed a pre-emptive right of purchase which it exercised by over half of New Zealands' land area during this period. However there is no record of the Crown making any purchases of land in the Opotiki region prior to the confiscation, or even showing any interest in doing so. It does not appear, therefore, as though any of the pre 1865 transactions materially affected the ownership of the area subsequently known as Section 11 in the Parish of Waiotahi. Dr Gilling then considered what occurred during the period 1865 to 1867 in the Opotiki district. He noted that in his words: "Crown forces invaded Opotiki in early September 1865, ostensibly in retaliation to the killing of the missionary, the Reverend CS Volkner, and to apprehend his murderers." Although there was some small amount of armed resistance by Whakatohea tribe, there was no aggressive action initiated on their part. Dr Gilling continued: "". as well as taking for trial those of Volkners' killing, the Crown swept up the Eastern Bay of Plenty, including the present block and all the lands for kilometres around into a block which was confiscated according to law." This confiscation was proclaimed under the New Zealand Settlements Act of 1863. What that Act authorised was the confiscation of the land within a district belonging to a tribe engaged in 'rebellion'. The land within that district was deemed to be Crown land. Although there was provision for Maori to receive land back as reserves or by other means, that land was returned under a Crown derived grant. The New Zealand Settlements Act of 1863 expired in December 1865, however it was replaced by the New Zealand Settlements Amendment and Continuance Act passed on 30 October 1865. That later amendment provided that the Governor could only confiscate land until 3 December 1867. A further amendment entitled the New Zealand Settlements Amendment Act 1866 was also passed to strengthen the validity of Acts done by the Governor pursuant to this legislation. It was Dr Gillings evidence, that the Native Land Court subsequently refused undertake title investigations on many blocks of land that were within the confiscated to
Minute Book: 87 OPO 244 districts as they were outside its jurisdiction. The Native Land Court would deal with them only for purposes such as determining succession. Pursuant to his powers provided for under the New Zealand Settlements legislation, the Government proclaimed the Eastern Bay of Plenty to be a district under that Act. The district was proclaimed twice, as the first time the mistaken boundary would have omitted most ofwhakatohea's lands, probably including the present block Section 11 in the Parish of Waiotahi. That initial proclamation was signed on 16 January 1866 and gazetted on 18 January 1866. The boundary of the district was described as follows: "All that land bounded by a line commencing at the mouth of the Waitahanui river, Bay of Plenty, and running due south to the Tarawera river; thence by a straight line to the summit of Putauaki (Mount Edgecumbe [sic)); thence by a straight line in an easterly direction to the confiuence of the rivers Tauwhare and Ohiwa; thence by a line running due east for twenty five miles; thence by a line to the mouth of the Aparapara river, in the Bay of Plenty." As these boundaries were incorrect, an amended second order in Council was signed on 1 September 1866. The boundary was then proclaimed as follows: "All that land bounded by a line commencing at the mouth of the Waitahanui river, Bay of Plenty, and running due south for a distance of twenty miles, thence to the summit of (Mount Edgecumbe) Putauaki, thence by a straight line in an easterly direction to a point eleven miles due south from the entrance to the Ohiwa harbour, thence by a line running due east for twenty miles, thence by a line to the mouth of the Aparapara river, and thence following the coast line to the point of commencement at Waitahanui." It was because of this order in Council that all the land in the vicinity of Opotiki, including the Waiotahi coast-line, fell within the confiscation boundaries. At that point all that land within the district became Crown land pursuant to the law. It does not appear from the evidence provided by Dr Bryan Gilling, that Section 11 in the Parish of Waiotahi was caught up in any of the post confiscation allocations to military settlers or any other settlers. That would suggest that the block retained its status as Crown land. Subsequently, two Royal Commissions of Inquiry - the Jones Commission of 1920 and the Sim Commission of 1927 - investigated the Whakatohea confiscation, and neither of these Commissions were satisfied that the Crown could justify its actions during the confiscation of land within the Eastern Bay of Plenty. However, nor did they call into question the legality of the confiscation itself. Dr Gilling then considered the history of title to the block. It appears that the earliest certificate of title in fee simple for this block (69/10) was issued on 20 April 1907. The name of the block was described as Section 11 in the Parish of Waiotahi. The certificate was issued under a Governor's warrant in lieu of a grant. The certificate was issued in the name of Colton Charles Lambert. It appears that his mother, Helen Lambert and others on 11 January 1907 under the Land Act 1892 and section 9 of the Land Act Amendment Act 1895 acquired the lands from the Crown. This suggests that Section 11 in the Parish of Waiotahi block remained Crown land for over a period of forty years before it was transferred to the Lamberts. Prior to that transfer it had been leased for 25 years to a licencee who had a right to purchase. It seems that the licencee was probably Mr Lambert (senior) who had died and who was succeeded by his wife Helen Lambert and others, including his children. Colton Charles Lambert became the owner
Minute Book: 87 OPO 245 in fee simple after using a mortgage from Charles Frederick Bockett entered into on 26 February 1907. The mortgage is recorded on CT 69/10. Certificates of title superceding the CT 69/10 show a further half dozen or so bona fide purchasers for value of a shrinking block in an unbroken chain over the next ninety years. Dr Gilling pointed out that the duly registered title is indefeasible except where the current registered owner committed fraud to acquire it. It would appear therefore, that the Maori Land Court has no jurisdiction in this case. Under cross-examination Dr Gilling was able to provide a visual understanding of the confiscation district. It is clear from the evidence that Section 11 in the Parish of Waiotahi must have been included within the confiscation line. Concluding Submissions for the Applicants The concluding submissions for the applicants were lengthy and detailed but may be paraphrased as follows: Any legislation purporting to extinguish the native title in this block was ultra vires the Constitution Act 1852; The land in question being Maori Customary land, was alienated by the Governor unlawfully through misuse of the Crown prerogative, power and processes thereof in place through to 1907; The decisions made to licence or lease the property to a third party was ultra vires, unenforceable, and null and void. As no valid certificate of title existed to demonstrate a title in fee simple, the land was still native title land; Article 2 of the Treaty of Waitangi guaranteed the 'tino rangatiratanga' of the applicants, their whanau and hapu over this land; Native land legislation passed thereafter provided the Native Land Court, with the power to individualise title and facilitate the sale of Native land; The Crown exercised its right of preemption to monopolise the market; The common law, UK statute law, New Zealand statute law, and the interface between these forms of law and the Court supported the position of the applicants; The Constitution Act 1852 gave Parliament the right to set aside districts where Maori customary law prevailed. This was the law until the Constitution Act 1986. Nothing altered that legal position, not even the statute of Westminster Act 1931 or the Constitution Amendment Act 1947; As a result, the law in New Zealand up to and including 1986, recognised native customary law as it pertained to native title; As part of common law, native law as it applied to customary title could not be extinguished without the consent of Maori. ; If no such consent was forthcoming, then any attempt to confiscate, lease, occupy, or extinguish native title over the land was ultra vires. Such actions were in effect actions that were null and void in terms of the law.; A Court of competent jurisdiction has the power to test the validity of such actions; While the New Zealand parliament was a sovereign entity capable of passing laws in an unfettered manner, they could not use this power in relation to an agreement entered into with other nations such as the Maori nation. Case law was sighted in support of this proposition including the decision of the R v Simons (1847);
Minute Book: 87 OPO 246 In other words, the sovereignty of the Crown did not automatically mean extinguishment of Maori customary title. The only way it could be extinguished was by sale to the Crown in accordance with article 2 of the Treaty of Waitangi; The common law courts can intervene to protect such title and enforce it against occupiers without lawful excuse or justification; All actions of the Governor before 1907 were ultra vires and in breach of the law, the actions taken could not be sufficient to extinguish Maori customary title over the land; In other words the extinguishment of native title was unlawful as it was a misuse of Crown prerogative power; The removal of Crown pre-emption was illegal and all subsequent legislation and judgments regarding Maori land through such legislation were null and void, and ultra vires; The applicants want an order that the land is still Maori customary land and therefore ownership of the land remains with the applicants, their whanau and hapci; If the Maori Land Court no longer has jurisdiction over this land, the applicants seek an order adjourning or transferring the case to the High Court by way of judicial review. Relevant Statute Law The relevant law regarding applications such as this primarily depends on the interpretation to be given to the Preamble, sections 2,17,18,19,20,144,131,132 of Te Ture Whenua Maori Act 1993 and sections 62 and 63 of the Land Transfer Act 1952. As the relevant sections of Te Ture Whenua Maori Act 1993 are well known to the applicants and the Court I have not repeated them in full here. What I will do for convenience is reproduce the relevant provisions of the Land Transfer Act 1952: 62 Estate of registered proprietor paramount Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, [but subject to the provisions of Part 1 of the Land Transfer Amendment Act 1963], the registered proprietor of land or of any estate or interest in land under the provisions of this Act shall, except in case of fraud, hold the same subject to such encumbrances, liens, estates, or interests as may be notified on the folium of the register constituted by the grant or certificate of title of the land, but absolutely free from all other encumbrances, liens, estates, or interests whatsoever,- (a) Except the estate or interest of a proprietor claiming the same land under a prior certificate of title or under a prior grant registered under the provisions of this Act; and (b) Except so far as regards the omission or misdescription of any right of way or other easement created in or existing upon any land; and (c) Except so far as regards any portion of land that may be erroneously included in the grant, certificate of title, lease, or other instrument evidencing the title of the registered proprietor by wrong description of parcels or of boundaries.
Minute Book: 87 OPO 247 63 Registered proprietor protected against ejectment (1) No action for possession, or other action for the recovery of any land, shall lie or be sustained against the registered proprietor under the provisions of this Act for the estate or interest in respect of which he is so registered, except in any of the following cases, that is to say: (a) The case of a mortgagee as against a mortgagor in default: (b) The case of a lessor as against a lessee in default: (c) The case of a person deprived of any land by fraud, as against the person registered as proprietor of that land through fraud, or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud: (d) The case of a person deprived of or claiming any land included in any grant or certificate of title of other land by misdescription of that other land, or of its boundaries, as against the registered proprietor of the other land, not being a transferee or deriving from or through a transferee thereof bona fide for value: (e) The case of a registered proprietor claiming under the instrument of title prior in date of registration, under the provisions of this Act, in any case in which 2 or more grants or 2 or more certificates of title, or a grant and a certificate of title, may be registered under the provisions of this Act in respect to the same land. (2) In any case other than as aforesaid, the production of the register or of a certified copy thereof shall be held in every Court of law or equity to be an absolute bar and estoppel to any such action against the registered proprietor or lessee of the land the subject of the action, any rule of law or equity to the contrary notwithstanding. " Although the applicants cited a range of other statutes, they are not germane to the issues before this Court. Rather they concerned the constitutional relationship between Maori and the Crown as recognised by the Treaty of Waitangi. Until that relationship is recorded in some constitutional document enforceable by the ordinary Courts, the Maori Land Court's jurisdiction remains circumscribed by Te Ture Whenua Maori Act 1993 and other relevant enactments such as sections 62-63 of the Land Transfer Act 1952. In my view there is nothing in any of these legislative provisions relied upon by the applicants that justify the making of orders in accordance with the application. That is because the land is general land subject to the land transfer legislation. I discuss this further below. Relevant Case Law The cases cited by the applicants are well known and need not be reviewed in full here. Suffice to state that they all indicate that the common law in New Zealand recognises that Maori customary title held in accordance with tikanga Maori is legally enforceable until expressly extinguished by an enactment of Parliament. But extinguishment is the crux of the matter. What the applicants did not do in any depth was to explore the case law concerning extinguishment.
Minute Book: 87 OPO 248 In Faulkner v Tauranga District Council [1996] 1 NZlR 357 (HC), Blanchard J referring inter alia to the inclusion of a land block in a district created by proclamation under the New Zealand Settlements Act 1863 concluded that Maori customary title was extinguished when the land was taken under the confiscation legislation. That decision was recently reaffirmed by Cooper J in Faulkner v Tauranga District Council [2004] BCl 707 (He). The latter decision was decided after the Court of Appeal's decision in the Attorney-General v Ngati Apa [2003]3 NZlR 643 (Foreshore and Seabed). The judgments in the Ngati Apa case recognise that customary title may be extinguished by statute. At paragraph 47 for example, Elias CJ said: 'What is of significance in the present appeal is that New Zealand legislation has assumed the continued existence at common law of customary property until it is extinguished. It can be extinguished by sale to the Crown, through investigation of title through the Land Court and subsequent deemed Crown grant, or by legislation or other lawful authority." Gault P, referring to s 129 of Te Ture Whenua Maori Act 1993 said, at paragraph 99: "By s 129 all land in New Zealand must have one of the statuses listed in that subsection. Subsection (2), if intended to be comprehensive, leaves some difficult questions as to the status of some land not easily fitting the descriptions provided. The underlying intention seems to be that once land has been vested in fee simple (that is a Crown grant has issued), so long as the estate SUbsists (whoever may own it) it cannot have the status of Maori customary land. That is consistent with the conventional approach to native title claims. They are extinguished in respect of land that has been alienated by the Crown as by a Crown grant or consequent upon Crown purchase R v Symonds [1847] NZPCC 387 at p 391, Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321. It is common ground also that they cannot survive the enactment of legislative provisions that are clearly inconsistent with their continued existence." At paragraph 185 Tipping J observed: It follows that as Maori customary land is an ingredient of the common law of New Zealand, title to it must be lawfully extinguished before it can be regarded as ceasing to exist. In this respect Maori customary title is no different from any other common law interest which continues to exist unless and until it is lawfully abrogated. In the case of Maori customary land the only two mechanisms available for such abrogation, short of disposition or lawful change of status, are an Act of Parliament or a decision of a competent Court amending the common law. But in view of the nature of Maori customary title, underpinned as it is by the Treaty of Waitangi, and now by Te Ture Whenua Maori Act 1993, no Court having jurisdiction in New Zealand can properly extinguish Maori customary title. Undoubtedly Parliament is capable of effecting such extinguishment but, again in view of the importance of the subject matter, Parliament would need to make its intention crystal clear. In other words Parliament's purpose would need to be demonstrated by express words or at least by necessary implication. Finally, in the joint judgment of Keith and Anderson JJ at paragraph 147 they expressly recognised that native property or title can be extinguished by statute.
Minute Book: 87 OPO 249 Discussion, Findings, Order for Dismissal The judgment of Tipping J above indicates that it is possible to argue that a pure declaration of a district under the New Zealand Settlements legislation did not extinguish the Maori customary title. That is because, and he suggests, that express words would be needed before a statute could extinguish Maori customary title. The success or otherwise of an argument based on Tipping J's judgment would depend on the actual wording of the Order in Council setting aside the district and any subsequent district specific legislation, if any, as in the Faulkner Case. I could have required that such evidence be researched and produced but it would have served no purpose. That is because it was clear by the last hearing of this application that the land became general land subject to the land transfer system in 1907. The land transfer system protects a registered proprietor pursuant to sections 62 and 63/52. Another way of describing it is to say that the registered proprietor acquires an 'indefeasible title." The importance of this aspect of registration under the land transfer system was noted as early as (1906) when Edwards J observed in Fels v Knowles (1906) 26 NZLR 604, 619 (1906) 8 GLR 627: "The cardinal principle of the [Land Transfer Act] is that the register is everything, and that, except in case of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world. " In Frazer v Walker [1967] NZLR 1069, 1075 [1967] AC 569 [1967]1 All ER 649 (PC), the term indefeasibility of title was described as "... a convenient description of the immunity from attack from adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys". No one, including the applicants can attack this form of title. As the land is general land, the Maori Land Court has no jurisdiction to make the orders sought pursuant to the application and the submissions made for the applicants. That said, the application must be dismissed. JUDGE