Minute Book: 80 T 144 In the Maori Land Court of New Zealand Waikato Maniapoto ~istrict File: A20050001768 IN THE MATTER of an application by Peter & Jennifer Rolleston and James & Elva Borell for a partition under Section 289 of Te Ture Whenua Maori Act 1993 in relation to Allotment 1540582 Parish of Te Puna Block as contained in SA100/342 DECISION Allotment 15405B2 Parish of Te Puna is a block of 4.9903 hectares, and is owned by Peter Rolleston and Jennifer Rolleston as to a one-half share and James and Elva Borell as to a one-half share. A Status Order declaring that the land was no longer Maori freehold land is registered against the Certificate of Title SA 100/342. The block runs from Tangitu Road down to the Waikaraka Estuary of Tauranga Harbour. The owners applied to the Maori Land Court for a recommendation that an area of 2090 square metres directly adjoining the harbour be declared a Maori Reservation for the purpose of a meeting place, bathing place and landing place for the common use and benefit of the owners of the block and their invitees. At present the block is unoccupied apart from a small home on the front of the property, which is owned by the Borel/s. Both the Rollestons and Borel/s intend to build homes on the block. The block is close to Tutereinga Marae and is mostly surrounded by Maori freehold land. The block was originally owned by the late Ihakara Tangitu, who was the father of Jennifer Rolleston and Elva Borell. No evidence was given as to how the land came to be General land. The matter was set down for hearing on 2 August 2004. At the hearing Counsel for the applicants indicated to the Court that they wished the application to be set aside in the meantime, as they now wished to
Minute Book: 80 T 145 partition the land. However, a preliminary difficulty arose by virtue of the fact that the land was not Maori freehold land, and there is some question as to whether the Court is able to make partition orders in respect of General land. Counsel for the applicants made submissions on that point. The Court gave a preliminary indication of its view that Te Ture Whenua Maori Act 1993 ("the Act") does not allow or does not give jurisdiction to the Court to partition General land. If the matter was to be taken further I indicated that I would prefer to give a reserved decision on that preliminary point. Counsel then received further instructions from his clients to the effect that they were inclined to appeal, treating the matter as a test case. That being the situation I indicated that I would do a reserved decision. In order to ensure that the formalities were adhered to, the applicant filed an application for partition on 8 February 2005 on the basis that the preliminary question would be subject to a formal decision. The applicants would then take whatever steps appeared appropriate to them. Submissions Counsel referred to Section 285 of Part XIV of the Act. Section 285 provides that Part XIV applies to General land owned by Maori as well as to Maori land. Counsel also referred to Section 286, which gives the principle purpose of Part XIV as being to facilitate "the use and occupation by the owners of land owned by Maori". Counsel noted that while Section 287(1) gives the Court exclusive jurisdiction to make partition orders in respect of Maori land, it does not expressly prohibit the Court from making a partition order in respect of General land owned by Maori. Counsel also submitted that Section 288, which sets out the matters that the Court must consider when exercising its discretion to make a partition order, does not refer to "Maori land", but only "the owners of the land", or "any land", or just "the land". Counsel interpreted Sections 290 and 291 as clearly contemplating the partition of General land owned by Maori. The basis of this interpretation was that under Section 290 the provision states "the Court may partition any land under
Minute Book: 80 T 146 this part of this Act... " (emphasis mine). Section 291 states that "in partitioning any land under this part of this Act... " (emphasis mine). Counsel argued that the sections showed the Legislature contemplated partition of other land and not just Maori freehold land. Discussion Section 289(1) of the Act provides as follows: " Where the Court is satisfied that it should partition any Maori freehold land in accordance with this Part of this Act, it shall make a partition order, being- (a) (b) An order for the partition of any land into 2 or more defined separate parcels; or An order creating or evidencing the title to anyone or more of such defined parcels. "[Emphasis mine]. The section's clear wording limits the powers of the Court to partition of Maori freehold land. In my view Sections 290 and 291 then go on to specify with more particularity the manner in which the Court can formulate the partition order under Section 289. In the case of Section 290 it allows the Court to partition into parcels owned by single owners in severalty, or as joint tenants or tenants in common and so on. Section 291 allows the Court to specify how the shares held in the parent block are then reflected in terms of shares held in the partitioned blocks. I therefore see Sections 290 and 291 as purely technical sections which are there to assist the Court in dealing with the concurrent interests that exist in most Maori land. Section 285 does include General land owned by Maori as land to which Part XIV applies. However, that is because Part XIV deals with other applications besides partition, such as amalgamation, which does indeed allow for amalgamation of land including General land: see Section 307(8). Part XIV also deals with creation of easements and roadways and, for instance, under Section 315( 1 )(b) the Court is empowered to create easements over any General land.
Minute Book: 80 T 147 Section 288 deals with partition orders, but also amalgamation orders or aggregation orders. Therefore the use of phrases such as "the land" and "any land" are appropriate to that section because, for example, amalgamations can deal with General land. Again I am not convinced that the lack of specific reference in that section to Maori freehold land means that the Court has jurisdiction to grant partitions over General land under s 289 of the Act, in clear contradiction of the wording of the section. Section 298 does provide for partition of combined areas, including "any area of land owned or partly owned by Maori (whether Maori land or General land), and any other area or areas of land... ". The purpose of Section 298 is to allow the Court to treat an area of land, which may include areas of Maori freehold land and General land, as one area. The result of a partition under that section is set out in Section 298(4), so that any General land, which via the partitions comes to be owned by a Maori, becomes Maori freehold land. In this case I do not think Section 298 is appropriate to the situation, because there is only one piece of land involved, and it has one status. However, if the section were to be used then, if partitioned, a smaller block of General land would be acquired by the Borel/s, and similarly the Rollestons would acquire a smaller block of General land. Pursuant to Section 298(4) that land would become Maori freehold land, because General land is being acquired by Maori. As I understand the application, the intention is that the partitioned land remain as General land. Indeed, I put it to Counsel for the applicants that it would be a simple enough matter for the applicants to apply for a change of status of the land to Maori land, so that they could utilise the Section 289 partition provisions in the Act. Counsel's response made it clear that at this point, at least, the applicants wish to retain the status of General land. The most common partitions dealt with by the Maori Land Court are hapo partitions. The benefit of a hapo partition is that so long as the land is sold only to members of the same hapo there is no requirement of compliance with Sections 229 to 237H of the Resource Management
Minute Book: 80 T 148 Act. In practical terms it means that, in a hapo partition, partitioning owners of Maori freehold land do not have to make a reserve contribution. HapO partitions only apply to Maori freehold land: see Section 304(1 )/93. There is opportunity for partition of General land under Section 303. Section 303 provides as follows: " (1) Subject to subsection (2) of this section, the Court may make a partition order to which Section 301 of this Act applies in respect of any land if a subdivision consent under the Resource Management Act 1991 has been obtained for the partition and the consent has not lapsed. [Emphasis mine]. (2) The Court must- (a) make such orders as it considers necessary, having regard to Part 10 of the Resource Management Act 1991, to ensure that, in respect of any conditions of the subdivision consent that have not been complied with, adequate provision is made for such compliance; and (b) have regard to Sections 229 to 237H of the Resource Management Act 1991 in respect of every partition of land to which Section 301 applies. (3) Any land that would be required to be set apart, reserved, or vested in another person, because of subsection (2), must be set apart as a Maori reservation, for the common use and benefit of the people of New Zealand, despite anything in the Resource Management Act 1991. " The terms of Section 303(1) state that the Court may make a partition order in respect of any land, which would include General land owned by Maori, so long as the other requirements of the section are met. However, a partition by the Court on the basis of Section 303 would deprive the applicants of the benefits that are available to partitioners of Maori freehold land under the hapo partition provisions. That is
Minute Book: 80 T 149 emphasised by Section 301 of the Act, which provides: " Compliance with provisions of Resource Management Act 1991 relating to subdivisions (1) This section applies to every partition of land by the Court except for a partition into parcels to be held by owners who are members of the same hapu. (2) Subject to the provisions of this section, the Court shall not partition any land to which this section applies, otherwise than in accordance with the Resource Management Act 1991. (3) Without limiting subsection (2) of this section,- (a) A partition of land shall be deemed to be a subdivision of land within the meaning of section 218 of the Resource Management Act 1991; and (b) Sections 20 and 121 of the Resource Management Act 1991 (relating to appeals to the [Environment Court]) shall apply to any decision of a territorial authority in relation to any application for a subdivision consent that is required by this section. " Decision In light of the above discussion I am of the view that the Court does have power to partition General land but only in accordance with Section 303 of Te Ture Whenua Maori Act 1993. In other words the partitioner of General land owned by Maori would still be required to comply with subdivisional consent conditions, and in particular may be required to set apart land as a Maori Reservation for "the common use and benefit of the people of New Zealand." In order to gain the benefits of a hapo partition, where compliance with subdivisional consents is not required except in some circumstances where the land is sold outside the hapo, the land must be Maori freehold land. Counsel is to advise whether his clients wish to proceed with the partition application under section 303 of Te Ture Whenua Maori Act 1993. If so the Court will issue further
Minute Book: 80 T 150 directions in relation to the application, and will amend the application to be an application for partition under Section 303. Dated at Hamilton this 24th day of March 2005 A05-1768