IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A

Transcription

1 352 Aotea MB 233 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER Section 18 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF Atihau Whanganui Incorporation BETWEEN AND PETER JOHN FIRMIN on behalf of the TAUAKIRA FIRMIN WHĀNAU TRUST Applicant THE COMMITTEE OF MANAGEMENT OF ATIHAU WHANGANUI INCORPORATION Respondent Hearings: 344 Aotea MB dated 17 November Aotea MB dated 16 December 2015 Appearances: D Woodbridge for the applicant J Unsworth for the respondent Judgment: 12 May 2016 RESERVED JUDGMENT OF JUDGE L R HARVEY Solicitors: Mr D Woodbridge, Evans Henderson Woodbridge, Solicitors, 333 Wellington Road, Marton DX PA84502 Mr E J Unsworth, Horsley Christie, Solicitors 14 Victoria Avenue, Wanganui DX PA87021

2 352 Aotea MB 234 Introduction [1] Peter Firmin, on behalf of the Tauakira Firmin Whānau Trust, seeks declarations: (a) that the applicant, trustees and beneficiaries of the Tauakira Firmin Whānau Trust be permitted to go onto the land the subject of the application to hunt; and (b) that the applicant be given an opportunity to air his concerns about the Incorporation s administration of the land either in a Court hearing or a hui. [2] Mr Firmin also seeks an order that the Atihau Whanganui Incorporation be required to withdraw the trespass notice issued against him. [3] The Incorporation opposes the application. It says that the Court does not have the necessary jurisdiction to make the declarations. It also argues that the trespass notice was issued lawfully and that the applicant has had previous opportunities to air his concerns. Issue [4] The issues for determinations are: (a) (b) (c) (d) Does the Court have the jurisdiction to make the orders as sought by the applicant? What is the Court s jurisdiction regarding Māori Incorporations? Does the Court have the jurisdiction to review a decision of a Māori Incorporation? Should the declarations as sought be made? Background [5] Atihau Whanganui Incorporation was created by order of incorporation pursuant to the Māori Affairs Amendment Act A number of Māori freehold land blocks are vested in the Incorporation. [6] The applicant is a trustee of the Tauakira Firmin Whānau Trust. 2 The Trust is a shareholder of the Incorporation. The applicant has a historical connection with lands blocks now vested in the Incorporation Whanganui MB 93 (134 WG 93) 242 Aotea MB 230 (242 AOT 230)

3 352 Aotea MB 235 Procedural history [7] A judicial conference was held on 17 November The issue of whether the Court had the ability to make the declaration as sought by the applicant was raised. At the conclusion of the conference I adjourned the case for hearing in December. I also directed counsel to file written submissions on the jurisdictional issue. [8] A hearing was held on 16 December 2015 to receive further submissions on the jurisdictional point. 4 Counsel for the applicant maintained that the Court has the ability to make the declarations sought. Counsel for the respondent continued to oppose that submission. At the conclusion of the hearing I adjourned the application for a written decision to issue in due course. Does the Court have the jurisdiction to issue the declarations sought? Applicant s submissions [9] Mr Woodbridge submits that the current application falls within s 18(1)(a) and (b) of Te Ture Whenua Māori Act 1993 in that it is a claim to possession of Māori freehold land or to any interests in such land and/or that it calls for a determination of the relative interests of the owners in common of any Māori freehold land. [10] Counsel argues that the Court should adopt an expansive interpretation to s 18 that corresponds with the principles and objectives of the Act. Mr Woodbridge submits that if there is doubt as to whether the statute is too narrow to permit the application, it should be crosschecked against the Preamble and s 2(2) of the Act which requires that the Act be interpreted in such a way that it preserves to individual Māori owners their ancestral and spiritual connection to the land. [11] Further, counsel argues that the jurisdiction of the Court must be interpreted in accordance with the principles of interpretation. Mr Woodbridge refers the Court to s 5 of the Interpretation Act 1999 and the decision of the Supreme Court in Commerce Commission v Fonterra Cooperative Group Ltd which emphasise that the meaning of the text must be cross checked against a purpose. 5 In line with such an approach, counsel argues that the reference in the Preamble to land being of special significance to Māori people may Aotea MB (344 AOT ) 346 Aotea MB (346 AOT ) (2007) 3 NZLR 767 (SC)

4 352 Aotea MB 236 reasonably be interpreted as a reference not to the Māori people but to Māori people as individuals. [12] Mr Woodbridge then refers to s 17 and submits that the term objectives used in that section is not the same as jurisdiction. In addition he points out that the objectives, jurisdiction and powers of the Māori Land Court as set out in ss of the Act lack detail and say little about remedies or procedure. To that end, counsel argues that the objectives must contain a jurisdictional element which is independent of the jurisdictional provisions in s 18 of the Act. [13] In summary, counsel argues that in keeping with the principles of interpretation, regard must be had to the principles in the Preamble, a cross check of the text against the principles and the use as far as possible of the Court s powers in a manner that facilitates the use of Māori land as a taonga tuku iho. Respondent s submissions [14] Mr Unsworth submits, in relation to the Courts jurisdiction per s 18(1)(a) and (b), that the applicant does not assert any particular right, title, estate or interest in land entitling him to enter onto the Incorporations land and argues that no such right, title, estate or interest exists. Nor is there any relative interest of owners in common for the Court to determine. [15] In addition, Mr Unsworth emphasises that s 17 of the Act sets out the objective to be pursued by the Court in exercising its jurisdiction and powers under the Act. It does not of itself confer jurisdiction and it is readily apparent from that provision that a statutory jurisdictional basis is required before these more aspirational considerations become relevant. [16] Mr Unsworth argues that in this case the Incorporation determined who had a right to enter on or occupy its land and the applicant has no authority to do so. Therefore there is no specifically exercisable jurisdiction for the Court to compel the Incorporation to allow anyone to enter on to its land. [17] Mr Unsworth contends that, per s 4(1) of the Trespass Act 1980, the Incorporation is an occupier of the land and the applicant has trespassed. The trespass notices were valid and lawful and within the Incorporation s powers per ss 250(1) and 253. There is no jurisdiction to compel the Incorporation to withdraw the warning to stay off the land.

5 352 Aotea MB 237 Discussion [18] Mr Woodbridge for the applicant invites an expansive approach to the issue of whether the Court has jurisdiction per s 18(1)(a), or (b) of the Act to make the declarations sought. That approach, counsel says, requires the Court to take into account the principles of the Act as set out in the Preamble, a cross check of the text of the Act against the principles and the use as far as possible of the Courts powers in a manner that facilitates the use of Māori land as a taonga tuku iho. [19] Mr Unsworth submits that the applicant has not sought to assert any particular right, title, estate or interest in land per s 18(1)(a) and (b) of the Act, entitling him to enter onto the Incorporation s land and further argues that no such right, title, estate or interest exists. In addition, counsel argues that there is no relative interest of owners in common for the Court to determine. [20] Section 18(1)(a) and (b) provides: 18 General jurisdiction of court (1) In addition to any jurisdiction specifically conferred on the court otherwise than by this section, the court shall have the following jurisdiction: (a) (b) to hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest: to determine the relative interests of the owners in common, whether at law or in equity, of any Maori freehold land: [21] Case law on this provision makes it clear that the jurisdiction is declaratory in nature the Court may declare existing ownership rights at law or in equity but cannot create new ownership rights. 6 [22] Section 17 of the Act sets out the objectives to be pursued by the Court in exercising its jurisdiction and powers under this Act. It does not of itself confer jurisdiction and it is readily apparent from that provision that a statutory jurisdictional basis is required before these more aspirational considerations become relevant. [23] The relevant provisions provide: 6 Williams v Williams Matauri 2F2B (1991) 3 Taitokerau Appellate MB 20 (3 APWH 20), McCann Waipuka 3B1B1 and 3B1B2B1C2A (1993) 11 Takitimu Appellate MB 2 (11 ACTK 2) and Paki Matauri X Inc (1996) 5 Taitokerau Appellate MB 16 (5 APWH 16).

6 352 Aotea MB 238 Preamble Nā te mea i riro nā te Tiriti o Waitangi i motuhake ai te noho a te iwi me te Karauna: ā, nā te mea e tika ana kia whakaūtia anō te wairua o te wā i riro atu ai te kāwanatanga kia riro mai ai te mau tonu o te rangatiratanga e takoto nei i roto i te Tiriti o Waitangi: ā, nā te mea e tika ana kia mārama ko te whenua he taonga tuku iho e tino whakaaro nuitia ana e te iwi Māori, ā, nā tērā he whakahau kia mau tonu taua whenua ki te iwi nōna, ki ō rātou whānau, hapū hoki, a, a ki te whakangungu i ngā wāhi tapu hei whakamāmā i te nohotanga, i te whakahaeretanga, i te whakamahitanga o taua whenua hei painga mō te hunga nōna, mō ō rātou whānau, hapū hoki: ā, nā te mea e tika ana kia tū tonu he Te Kooti, ā, kia whakatakototia he tikanga hei āwhina i te iwi Māori kia taea ai ēnei kaupapa te whakatinana. Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles. 2 Interpretation of Act generally (1) It is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the principles set out in the Preamble. (2) Without limiting the generality of subsection (1), it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Maori land as taonga tuku iho by Maori owners, their whanau, their hapu, and their descendants, and that protects wahi tapu. (3) In the event of any conflict in meaning between the Maori and the English versions of the Preamble, the Maori version shall prevail. 17 General objectives (1) In exercising its jurisdiction and powers under this Act, the primary objective of the court shall be to promote and assist in (a) (b) the retention of Maori land and General land owned by Maori in the hands of the owners; and the effective use, management, and development, by or on behalf of the owners, of Maori land and General land owned by Maori. (2) In applying subsection (1), the court shall seek to achieve the following further objectives: (a) (b) (c) to ascertain and give effect to the wishes of the owners of any land to which the proceedings relate: to provide a means whereby the owners may be kept informed of any proposals relating to any land, and a forum in which the owners might discuss any such proposal: to determine or facilitate the settlement of disputes and other matters among the owners of any land:

7 352 Aotea MB 239 (d) (e) (f) to protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority: to ensure fairness in dealings with the owners of any land in multiple ownership: to promote practical solutions to problems arising in the use or management of any land. [24] Section 5 of the Interpretation Act 1999 provides: (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose. (2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment. (3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment. [25] In Hastings v Māori Land Court the High Court noted the unifying theme of the general statements of principle and statutory objectives contained in these provisions. 7 However, the Court considered that against those general statements of principles the Act contained specific provisions which expressly anticipated Māori freehold land losing its status: The Maori Land Court is created by the Whenua Maori Act and is not a Court of inherent jurisdiction. Thus its powers are limited to those expressly conferred under the Act or which may, by necessary implication, be inferred as being within the scope of the Act Section 18 prescribes the general jurisdiction of the Court and s 19 prescribes its jurisdiction in relation to injunctions. Both sections require to be read in the context of the objectives of the Act in s 2(2) and also s 17. The effect of s 17 on s 18 was considered by the Court of Appeal in Attorney- General v Maori Land Court [1999] 1 NZLR 689 at 698 as follows: [Section 17(1)] states the primary objective of the Court and reinforces the Preamble - to promote and assist in the retention of Maori land and General land owned by Maori in the hands of the owners and its effective use, management and development on behalf of the owners. The further objectives in subs (2) relate back to this primary objective With those general objectives in mind the Court is then given in s 18 its general jurisdiction, which is in addition to specific jurisdictions conferred elsewhere in the Act. the careful manner in which Parliament has defined the Maori Land Court's role and the expressly provided interface between the Whenua Maori Act and other legislation leads to the irresistible view that, on the plain face of the statute, the Maori Land Court has not been granted jurisdiction to make interim orders in relation to lawful designations under the RMA. If such jurisdiction had then been contemplated, one would expect Parliament to have expressly provided a clear 7 HC Napier CP 11/99, 3 September 1999

8 352 Aotea MB 240 interface between the two pieces of legislation accordingly, no such interface has however been prescribed. Finally, neither the Preamble nor s 2 provides any specific jurisdictional powers Rather they are of general purport and engender the spirit of the Act. Accordingly, whilst they are to be given weight in interpreting and applying the jurisdiction of the Act, they do not provide authority for interpretations going beyond the plain statutory language used by Parliament. [26] The preamble and ss 2 and 17 set out the principle purposes of the Act. These include the retention and utilisation of Māori land in the hands of its owners, whānau and hapū as the cornerstone or fundamental principle that must guide the Court when assessing the merits of all applications it is required to consider. 8 [27] Consistent with the High Court s comments I find that neither the Preamble nor s 2 provides any specific jurisdictional powers. They are of general purport and function as a critical guide to interpretation. Accordingly, whilst they are to be given weight in interpreting and applying the jurisdiction of the Act, they do not provide authority for interpretations going beyond the plain statutory language used by Parliament. [28] As foreshadowed, s18(1)(a) and (b) of the Act provide the Court with jurisdiction which is declaratory in nature, thus the Court can make declarations of existing ownership rights at law or in equity but cannot create new ownership rights. What is the Court s jurisdiction regarding Māori Incorporations? Applicant s submissions [29] Mr Woodbridge submits that incorporations can be distinguished from companies in general. Even so, he argues that an incorporation should be treated as a quasi limited liability company given that the operations of companies in general are aimed at commercial or business efficacy and therefore are subject to quite different controls and expectations from the operations of a Māori Incorporation (being a creature of the Act). [30] Mr Woodbridge further submits an order for incorporation per s 250 of the Act vests the legal estate in the land in the Incorporation and the beneficial interests remain vested in the individual owners. He says that the individual owners thus have equitable rights which 8 Grace - Ngarara West A25B2A (2014) 317 Aotea MB 268 (317 AOT 268); White Maketu A2A Lot 4 DPS (1999) 1 Waiariki Appellate MB 116 (1 AP 116) and Rameka v Hall [2013] NZCA 203.

9 352 Aotea MB 241 can be distinguished from rights of shareholders in a limited liability company who have no equitable interest in the company or its assets. [31] In addition, counsel argues that incorporations owe fiduciary obligations to their beneficiaries as distinct from the directors of a limited liability company who owe a fiduciary duty to the company but not the shareholders. [32] Mr Woodbridge accepts that s 231, providing for the Court to review the operation of certain trusts, does not apply to incorporations. Counsel also acknowledges that, per s 68 of the Trustee Act 1956, the High Court has the ability to review the act or omission or decision of a trustee. However, Mr Woodbridge says an application to the High Court is not an option. [33] In summary, Mr Woodbridge submits that the Court is able to take an expansive approach to its jurisdiction to entertain the claim and provide the remedies sought. Such an approach is justified by the interpretation of the jurisdictional provisions of the Act permitted by the Interpretation Act, the purposes and principles in the Preamble and s 2(2) of the Act. Respondent s submissions [34] Counsel submits that a Māori Incorporation is not a trust constituted under Part 12 of the Act and per s 236(2) the Court s jurisdiction under s 237 does not apply to trusts established by the vesting of land in a Māori Incorporation. [35] In addition, Mr Unsworth contends that the Court has no jurisdiction under s 68 of the Trustee Act 1956 in relation to a Māori incorporation. [36] Counsel submits that the Court s investigative jurisdiction per s 280 of the Act has not been triggered. Further, he says there has been no special declaration of a shareholder or by shareholding owning more than ten per cent of shares to prompt such an investigation. Discussion [37] Mr Woodbridge accepts that the Incorporation holds the legal estate in the land but nonetheless maintains that it does so on trust for beneficiaries per s 250 of the Act. Counsel says, as part of its fiduciary obligations, the Incorporation had a duty to act impartially and in the best interests of the beneficiaries and by excluding the applicant from being granted a hunting permit the Incorporation has failed in that duty.

10 352 Aotea MB 242 [38] Mr Unsworth submits that Māori incorporations are not subject to the Court s supervisory powers per s 236(2) and accordingly are not subject to the same equitable duties as Māori land trusts. Rather, Mr Unsworth argues that the Court s investigatory power is contained within s 280 of the Act which can only be triggered by special declaration of shareholder or by shareholding owning more than ten per cent of the shares. [39] Part 13 of the Act governs Māori Incorporations. The relevant provisions are: 250 Effect of order (1) On the making of an order incorporating the owners of any land under this Part, the owners shall become a body corporate, with perpetual succession and a common seal, under the name specified in the order, with power to do and suffer all that bodies corporate may lawfully do and suffer, and with all the powers expressly conferred upon it by or under this Act. (2) On making any such order, the court shall vest the legal estate in fee simple in the land specified in the order in the Maori incorporation, but no such vesting shall affect the beneficial interests in that land which shall remain vested in the several owners. (3) The estate of the incorporation shall be subject to all leases, mortgages, charges, or other interests to which the title of the owners or any of them was subject at the date of incorporation, and shall also be subject to the right of any person to procure the confirmation of any alienation under an instrument of alienation executed before the making of the order. (4) From and after its constitution, every Maori incorporation shall hold the land and other assets vested in it on trust for the incorporated owners in proportion to their several interests in the land. (5) No Maori incorporation acting in accordance with its powers and in compliance with this Act or any other Act shall be in breach of trust. (6) Subject to any determination made in accordance with section 256 and to any order made in accordance with section 358, all land vested in an incorporation, whether by virtue of the order of incorporation or by virtue of section 357 or otherwise, shall, while so vested, continue to be or be deemed to be Maori freehold land. (7) The District Land Registrar shall cancel or amend any existing certificate of title that may be necessary to give effect to any order incorporating the owners of any land under this Part. 253 Capacity and powers of incorporation Subject to this Act, and any other enactment, and the general law, and to any express limitations or restrictions imposed by the court in the order of incorporation or included in its constitution pursuant to section 253A, every Maori incorporation has, both within and outside New Zealand, in addition to the powers expressly conferred on it by this Part, (a) (b) full capacity in the discharge of the obligations of the trust in the best interests of the shareholders, to carry on or undertake any business or activity, do any act, or enter into any transaction; and for the purposes of paragraph (a), full rights, powers, and privileges.

11 352 Aotea MB Investigation of incorporation s affairs (1) The court may appoint 1 or more persons (in this section referred to as examining officers) to investigate the affairs of a Maori incorporation and to report to the court in such manner as the court directs. (2) The person or persons so appointed may (with the consent of the chief executive) be officers of the Ministry. (3) The court s jurisdiction under subsection (1) may be exercised (a) (b) (c) on the application of shareholders together owning not less than one-tenth of the shares; or pursuant to a declaration by special resolution passed by a general meeting of shareholders that the affairs of the incorporation should be investigated. [Repealed] [40] Section 280(3)(c) as originally enacted provided that the Court could of its own motion, where it appeared to the Court that there was sufficient appoint 1 or more persons (in this section referred to as examining officers) to investigate the affairs of a Māori incorporation and to report to the court in such manner as the court directs. That provision was subsequently repealed in [41] In Rotoma No 1 Incorporation Rotoma No 1 the Māori Appellate Court discussed the powers and operations of Incorporations as introduced by the 1993 Act: 9 There is no doubt that part of the kaupapa of the Act is to facilitate and promote the retention, use, development and control of Māori land by the owners. The preamble to the Act refers to these objectives and also to the establishment of mechanisms to assist the Māori people to achieve the implementation of these principles. In the provisions relating to trusts and incorporations the Act has established two such mechanisms conferring management of lands by owners in accordance with the kaupapa. The provisions of the Act and Māori Incorporations Regulations constitute a code regulating the administration and management of incorporations. Under the 1993 Act the powers and operations of incorporations are considerably extended from those held previously. Any new incorporation that is formed has under Section 250 all the powers of a body corporate. Section 253 confers on any existing incorporation, subject to any limitation or restrictions expressed in the order of incorporation, the right to carry on or undertake any business or activity, do any act, or enter into any transaction. Under Section 270 an incorporation acts through its Committee of Management. Conversely the Act and Regulations provide a series of counterchecks and balances for the owners. The Committee of Management must account to the shareholders at Annual General Meeting each year. The owners can under Section 253A by resolution passed at Annual General Meeting impose limitations or restrictions on the constitution or on the powers conferred by Section 253. Under Section 270(6) the Committee of Management must comply with the terms and conditions of any resolution passed at general meeting relating to the powers and functions of the incorporation. 9 (1996) 1 Waiariki Appellate MB 25,42 (1 AP 25,42)

12 352 Aotea MB 244 Other than these possible limitations which can be imposed by the shareholders, the only other limitations imposed on the Committee of Management in dealing with the assets of an incorporation are those under Section 254 relating to transfer, sale, gift or lease for over 21 years of any Māori freehold land vested in the incorporation. It is the aspect of lease with which this Court is concerned. [42] Then in McCleery v Waihaha 3D2 Incorporation that Court considered the standard of conduct of members of a committee of management of an incorporation: 10 Unlike the Companies Act in the case of directors, and the Trustees Act in the case of trustees, Te Ture Whenua Maori Act 1993 does not impose any prescribed standards of conduct for members of a Committee of Management. While there are certain statutory duties and obligations laid down, the standard of conduct of such members has to be inferred from the nature of the position and the principles of the Act. [43] In Mangatawa Papamoa Incorporation this Court considered an application by the incorporation to omit objects of the incorporation. Judge Milroy also referred to Wooster - Te Uranga B2 finding that: the intention of Parliament in the 1993 Act was to remove the constraints on incorporations business activities which existed under the previous regime. It is also clear that any such constraints must be imposed by the will of the shareholders, rather than the determination of the Court, as is shown by the provisions of section 253A of the 1993 Act.... The 1993 Act shows a clear intention that shareholders now exercise powers of intervention, not the Court, at least in the first instance. [44] More recently the Māori Appellate Court in Watson v Parker - The Proprietors of Torere 64 Incorporated referred to the policy shift regarding incorporations: 11 [64] The essential purpose of s 269(6) is to enable the Court to investigate a committee of management election and, where there are irregularities, provide an appropriate remedy. While the philosophy of the Act promotes (among other things) the greater autonomy of shareholders and incorporations, the corollary of that greater autonomy is that shareholders are given ready access to the Court to remedy problems with elections (s 269(6)), vacancies in membership of committees of management (s 269(5)), the conduct or performance of members of committees of management (s 269(4)), and the functioning in general of incorporations (ss 280 and 281). [45] These decisions affirm the general proposition that the Act provides the shareholders with the ability to exercise the powers of intervention, not the Court, at least in the first instance. In this case there is no resolution from the shareholders to support the applicant. In summary, as the necessary statutory thresholds having not been met, I cannot see how the Court can intervene (1997) 1 Waiariki Appellate MB 67 (1 AP 67) at 77 [2015] Māori Appellate Court MB 543 (2015 APPEAL 543)

13 352 Aotea MB 245 Does the Court have the jurisdiction to review a decision of a Māori Incorporation? Applicant s submissions [46] The appellant argues that the Incorporation has fiduciary obligations to its shareholders as confirmed by s 250(4) of the Act. Mr Woodbridge submits that in the present case the applicant has been excluded from being able to use the Incorporation lands for hunting while other owners and non owners have been are being permitted to do so. Such exclusion, he argues, is a failure by the Incorporation to maintain impartiality between beneficiaries and is inconsistent with the Preamble and other matters referred to previously. [47] Mr Woodbridge argues that the present case can be distinguished from Eriwata v Trustees of Waitara SD Sections 6 and 91 Land Trust, 12 and Proprietors of Parininihi ki Waitotara Block v Manuirirangi 13 as here the applicant is not seeking to establish a right to the exclusion of other owners he is merely seeking to share in privileges granted to other owners and non owners to go onto the land. In granting such privileges the Incorporation ought to give proper consideration to the principles contained in the Act and the general obligations of trustees to treat beneficiaries impartially. Counsel adds that the privilege of going onto the land is as much a benefit from the Incorporation as the financial returns receivable by the owners as shareholders. [48] In addition, Mr Woodbridge contends that the Court is clearly empowered to hear and determine claims. That must, by its nature, involve some means by which the determination may be enforced. Otherwise it will be futile and the statutory objectives thwarted. Counsel argues therefore that the Court has the jurisdiction to provide the remedies sought by the applicant. [49] Counsel concluded that Courts can and do grant remedies where an applicant might otherwise have no means of vindicating a right as such the Court would be justified in granting appropriate remedies to the applicant in the present case. Respondent s submissions [50] Mr Unsworth reiterates that checks on the exercise of incorporation s powers are contained in the committee s obligation to comply with shareholders resolutions passed at an (2007) 15 Whanganui Appellate Court MB 261 (15 WGAP 261) HC New Plymouth CP 18/99, 23 April 2004

14 352 Aotea MB 246 annual general hui and in the investigative and corrective powers available to the Court under s 280 of the Act. There has been no such resolution nor has the Court s investigative jurisdiction been triggered. Accordingly, he argues that there is no jurisdictional basis for the Court to interfere with otherwise lawful conduct of a Māori Incorporation. [51] In addition, counsel submits that the principles concerning the rights of legal owners set out in Eriwata v Trustees of Waitara SD Sections 6 and 91 Land Trust apply equally to Māori Incorporations as demonstrated in Te Hokowhitu v Proprietors of Matauri X. 14 [52] Mr Unsworth submits that per s 236(2) of the Act the Court has less supervisory powers over Māori Incorporations and points out that the jurisdiction in respect of trusts does not apply to Māori Incorporations per s 250(4) of the Act. [53] Mr Unsworth contends that, per s 4(1) of the Trespass Act 1980, the Incorporation is an occupier of the land and the applicant has trespassed. The trespass notices were valid and lawful and within the Incorporations powers per ss 250(1) and 253. There is no jurisdiction to compel the Incorporation to withdraw the warning to stay off the land. The Law [54] Section 250(4) of the Act provides: 250 Effect of order (4) From and after its constitution, every Maori incorporation shall hold the land and other assets vested in it on trust for the incorporated owners in proportion to their several interests in the land. [55] However s 250(5) specifically provides: (5) No Maori incorporation acting in accordance with its powers and in compliance with this Act or any other Act shall be in breach of trust [56] Further at s 236(2) of the Act specifically states: 236 Application of sections 237 to 245 (1) Subject to subsection (2), sections 237 to 245 shall apply to the following trusts: (a) every trust constituted under this Part: (b) every other trust constituted in respect of any Maori land: (c) every other trust constituted in respect of any General land owned by Maori. (2) Nothing in sections 237 to 245 applies to any trust created by section 250(4). 14 [2010] Māori Appellate Court MB 566 (2010 APPEAL 566)

15 352 Aotea MB 247 Discussion [57] The applicant seeks to argue that incorporations are subject to trust duties. However, when the provisions of s 250 are considered in their totality and taking into account s 236, I cannot see how such a conclusion is sustainable in the absence of evidence of the Incorporation acting outside of its powers or contrary to the Act. Even then, there are separate remedies available should any such instance arise. [58] Regarding arguments over equitable ownership of shareholders, Proprietors of Parininihi ki Waitotara v Manuirirangi is relevant where the High Court stated: 15 Mr Lawrence developed this argument in opening submissions. While accepting that PKW has legal title to the land, he submitted that ss 260 and 261 Te Ture Whenua Maori Act created an equal or superior beneficial interest in Mr Manuirirangi and all other PKW shareholders in all pieces of land of which the incorporation is the legal or registered owner. Both provisions are of a declaratory nature; s 260 deems the shares in a Maori incorporation... for all purposes...' to be undivided interests in Maori freehold land, and s 261(1) deems an alienation of shares in a Maori incorporation to be an alienation of the shareholder's equitable interest in the land and other assets then vested in the incorporation. Mr Lawrence placed particular emphasis on the breadth of s 260, and its extension to 'all purposes', not just to those relevant to the Act. He submitted also that an absolute statutory right to the land was consistent with the overall scheme of the ownership arrangements and the fact that prior to PKW's incorporation all land was held on trust for the various owners. [17] Mr Lawrence later acknowledged the practical anomalies inherent in his proposition. The Winks Road farm is a small part of a total area of hectares throughout Taranaki contained in one certificate of title. If followed to its logical conclusion, Mr Lawrence's argument would allow Mr Manuirirangi an absolute and unfettered right of physical access to any of the other land contained within the same title, regardless of whether or not he had ancestral links with it. That result could not possibly conform with the relevant statutory regime. [19] I am satisfied that PKW has an absolute right of occupation and possession of the farm. The Order in Council incorporating PKW constituted it the 'beneficial owner of the land described in the schedule to this order [including Winks Road]... [being] the whole of the equitable interest [in 55,137 acres of] land...'. Among other things, PKW's statutory object is 'to use, manage and administer any land or interests in land vested in or owned' by it. Each shareholder was allocated a share bearing the same proportion to the total number of shares... as the value of his interest in the land...' bears to the total value of that land. Shortly after the incorporation was registered as proprietor of the land which now has Maori freehold status under Te Ture Whenua Maori Act. [20] The relevant sections of the Land Transfer Act 1952 are unequivocal. A registered proprietor's estate or interest is paramount or primary and he or she holds the land... absolutely free from all other... interests whatsoever...' (except in three narrow classes which do not apply here) (s 62); the registered proprietor is protected from any claims for possession or recovery of land (except in named cases, which again do not apply here) (s 63); and title is guaranteed to the registered proprietor and no other interest `... shall be acquired by possession or user adversely to or in derogation of title of the registered proprietor' (s 64). 15 HC New Plymouth CP18/99, 31 October 2003

16 352 Aotea MB 248 [21] In combination these provisions confirm PKW's status since 9 August 1977 as the sole registered or legal owner of the title to the farm. Registration gave the incorporation an absolute right of possession and occupation subject to any rights created lawfully in favour of other parties by an instrument such as a lease. Mr Manuirirangi's rights of occupation or possession as a member of the Trust came to an end when PKW terminated its lease in November Neither he nor other members of the hapu have any residual rights recognised by law to occupation or possession of the farm. [59] That decision was cited in Te Hokowhitu v Proprietors of Matauri X: 16 [30] In the Proprietors of Paraninihi ki Waitotara Block v Horitamakiterangi Manuirirangi & Ors (2003)16 his Honour Harrison J in the High Court noted that the Māori Land Incorporation in that case, as the registered proprietors of the land, have an absolute right of occupation and possession.17 When combined with the relevant sections of the Land Transfer Act 1952, the Incorporation became the legal owner of the land. [31] Harrison J also noted that the tort of trespass occurs by: a) the act of a person entering or remaining; b) upon the land in the lawful possession of another; c) without lawful justification and d) is actionable without proof of actual damage. [32] The same principles apply here. The Proprietors of Matauri X Incorporation as the legal owner, represented by Mr Kevin Gillespie, have the absolute right of occupation and possession. The Incorporation determines who has the right to occupy the land and permission must be sought from them to do so. It was common ground that Mr Hokowhitu did not seek formal permission and had no lawful authority to enter and occupy the land. A private conversation with the Secretary of the Incorporation cannot be the basis for asserting a legal entitlement to enter and occupy the land. [60] In the absence of an application by the shareholders, I have no ability to review the decision of the Incorporation to issue a trespass notice against the applicant. Consequently, I cannot make such a declaration. It then follows that for the same reasoning I cannot issue an order that the Incorporation withdraw the trespass notice. Should the declarations as sought be made? [61] Taking into account the circumstances in the present case, I consider that the declarations as sought cannot be made. It is not for the Court to order committees of management to allow or prevent shareholders from accessing their lands or that they must provide Mr Firmin with the opportunity to address the hui-a-tau with his concerns. It might be sensible to do so. But any purported order of the Court to that effect might amount to an interference with the Incorporation s right to manage its land and resources as it considers 16 [2010] Māori Appellate Court MB 566 (2010 APPEAL 566)

17 352 Aotea MB 249 appropriate, in the absence of any evidence of wrongdoing contrary to the Act and the constitution of the Incorporation. [62] The committee of management decides on Incorporation policy and its management and staff implement those decisions. While there is little doubt that it should treat it shareholders impartially in the end it is the committee that must make the decisions. Should the shareholders disagree with any decision then they are entitled to activate the jurisdiction to investigate per s280 of the Act. [63] One final observation. If there is a policy to allow shareholders the right to hunt, subject to strict observance of health and safety rules, then it should be applied impartially. If the committee and its management believe on reasonable grounds that any shareholder, based on previous or proposed conduct, may by act or omission breach those safety rules, then they are entitled to act accordingly to protect themselves, their staff, their shareholders and their guests. Bridges are often in need of repair when they become damaged. If there has been damage in the relationship between the applicant and the respondent then some effort should be made to seek to repair that breakdown so that Mr Firmin might be permitted the right to hunt again. Decision [64] The application is dismissed. [65] Counsel have 1 month in total to exchange submissions on costs. Pronounced at 4.30 pm in Rotorua on Thursday this 12 th day of May 2016 L R Harvey JUDGE