NORMAN TANE Appellant. Appearances: Mr S Webster & Mr J Koning for the Ruapuha and Uekaha Hapu Trust Mr K J Catran for Norman Tane

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1 IN THE MAORI APPELLATE COURT OF NEW ZEALAND WAIKATO-MANIAPOTO DISTRICT 2010 MAORI APPELLATE COURT MB 512 (2010 APPEAL 512) A A UNDER IN THE MATTER OF BETWEEN AND Section 59, Te Ture Whenua Maori Act 1993 Hauturu East 8 Block RUAPUHA AND UEKAHA HAPU TRUST Appellant NORMAN TANE Appellant Coram: Judge A D Spencer Judge L R Harvey Judge D J Ambler Appearances: Mr S Webster & Mr J Koning for the Ruapuha and Uekaha Hapu Trust Mr K J Catran for Norman Tane Hearing: 11 February 2009 (Heard at Hamilton) Judgment: 2 November 2010 JUDGMENT OF THE APPELLATE COURT RUAPUHA AND UEKAHA HAPU TRUST V TANE MAC A November 2010

2 TABLE OF CONTENTS Introduction [1] Background [6] Settlement of WAI 51 [6] Implementation of the settlement [21] Subsequent proceedings [37] Current applications [45] The appeal [50] Preliminary determinations [50] The trust s arguments [51] Mr Tane s arguments [53] Issues [56] What did the 1990 settlement intend in relation to the re-vesting of HE8? [57] What was the effect of the 1990 orders in relation to HE8? [69] Section 436 order [69] Option of re-vesting under section 267(3A) [74] Section 438 orders [78] Is the trust an ahu whenua trust? [86] Section 167 [97] Variations to the trust order [102] Who are the beneficiaries for the purposes of s 244(3)? [102] Approach to consultation over variations to the trust order [113] Should the Court s list of owners or the trustees list of beneficiaries [118] form the beneficiary roll? Distributions via whanau trusts [125] Can the definition of the beneficiaries be varied? [130] Reference to the WAI 51 settlement [138] Decision [142] Special Aid Fund [148] 2010 Māori Appellate Court MB 513

3 Introduction [1] In 1990 the Crown settled WAI 51, a claim under the Treaty of Waitangi Act 1975 concerning land associated with the Waitomo caves. The claim was brought by Josephine Anderson on behalf of the Ruapuha and Uekaha hapu of Ngati Maniapoto. The settlement involved the return of several blocks of land that were formerly Māori freehold land, including Hauturu East 1A6 ( HE1A6 ) and Part Hauturu East 3B1 ( HE3B1 ) which contain the entrance to the Waitomo caves. At the time of the settlement these two blocks were re-named Hauturu East 8 ( HE8 ). The settlement was effected inter alia by the lower Court making orders under the Māori Affairs Act 1953 ( 1953 Act ) vesting HE8 in the original 22 owners (by then deceased) and then vesting the land in the Ruapuha and Uekaha Hapu Trust ( the trust ). [2] In 2006 Norman Tane brought proceedings in the lower Court against the trust. Mr Tane is a trustee of the trust but is at odds with the majority of trustees. The trust responded with an application to review the trust under s 231 of Te Ture Whenua Māori Act 1993 ( 1993 Act ). [3] On 29 September 2008 Judge Milroy issued a decision wherein she made findings and issued directions in relation to the continuation of the applications but did not finally dispose of them. 1 The trust and Mr Tane each appeal against aspects of those findings and directions. [4] At the heart of the appeals lies the question of who are the beneficiaries of the trust. Mr Tane argues that the beneficiaries are the underlying owners of the land being the successors to the original 22 owners. The trust argues that the beneficiaries are the descendants of the original 22 owners regardless of legal entitlement to succeed. [5] The respective positions of Mr Tane and the trust reflect philosophical differences over the intention and effect of the settlement. But the answer to the question of who are the beneficiaries has important consequences for the future of the trust. If Mr Tane is correct the beneficiaries have fixed interests in the trust and its benefits, whereas if the trust is correct the beneficiaries are a discretionary class only. Determining who is correct requires a careful analysis of the background to the settlement and the Court s orders Waikato MB Māori Appellate Court MB 514

4 Background Settlement of WAI 51 [6] In the late nineteenth century Māori associated with the Waitomo caves commenced a tourist guiding business. One ancestor in particular, Tanetinorau, had a central role in that business. It was not long before the Crown expressed an interest in the caves and the business. Following a process that included the investigation of title and partition of interests in the Native Land Court, the Crown acquired land associated with the caves. In 1906 HE1A6 was acquired under the Public Works Act 1905 and the Scenery Preservation Act In 1911 HE3B1 was similarly acquired. At the time HE1A6 had 17 owners and HE3B1 had 14 owners. A number of owners had interests in both blocks and in aggregate there were 22 owners. Four of the owners were non-sellers and their interests were acquired compulsorily. The Crown also acquired other lands at Waitomo at the time. Thus, the Crown took control of the tourism business at the Waitomo caves. [7] In 1988 the Government announced the proposed sale of various state-owned assets including the Tourist Hotel Corporation Ltd ( THC ) which owned and operated the Waitomo caves business. This prompted Mrs Anderson to file WAI 51 on behalf of the Ruapuha hapu claiming breaches of the Treaty of Waitangi in relation to the acquisition of various blocks of land including HE1A6 and HE3B1. The claim was expressed to be...on behalf of the hapu of Ruapuha... of which I am a member being represented by the original owners of the Hauturu East No. 1A block... and was later amended to also be on behalf of Uekaha. [8] Following the filing of the claim Mrs Anderson and others were involved in a short period of activity that resulted in the settlement in late We refer to the main steps only in that settlement process. [9] In May 1989 a new organisation for the Ruapuha hapu was formed. It held its first meeting on 6 May Kit Toogood, solicitor of Wellington, was appointed as legal advisor for WAI 51. At its second meeting on 10 June 1989 Mrs Anderson advised the meeting that the Waitangi Tribunal had proposed mediation to settle the claim. The hapu agreed to mediate Māori Appellate Court MB 515

5 [10] In July 1989 the claim was amended to list more specific grievances and to include Uekaha as a claimant hapu. Although Mrs Anderson was the sole named claimant, the claimants were by that stage the Ruapuha and Uekaha hapu. [11] Retired Judge Peter Trapski was appointed mediator. A mediation hui took place at Tokikapu Marae, Waitomo on 7 and 8 September The mediation hui did not result in a settlement but led to ongoing discussions and negotiations between the claimants and the Crown with the assistance of the mediator. These discussions continued through the end of 1989 into early [12] On 20 February 1990 Alex Frame, director of the Treaty of Waitangi Policy Unit within the Department of Justice, wrote to the claimants on behalf of the Crown and set out the framework of an agreement authorised by Cabinet on 12 February Paragraph 2 provided that the ownership of the three acres claimed in the core cave area should be vested in the claimants... that is the land that was to become HE8. Paragraphs 5 and 8 provided for other land to be vested in the claimants. Paragraph 4 noted that...land occupied by the school and the school buildings is still required for public works purposes, i.e. education, and does not come within the offer back criteria of sections 40(1) and 40(3)(b) of the Public Works Act If and when the time comes that the land and buildings are no longer used for education purposes, the Ministry of Education envisages reversion by way of the Public Works Act [13] On 28 February 1990 a hui of the Ruapuha and Uekaha hapu discussed the Crown s proposal. Differing views were expressed as to whether the land should be returned to the descendants of Tanetinorau or to the hapu. Although there was no consensus on this issue, a resolution was passed to form a hapu trust. [14] On 5 April 1990 members of Ruapuha and Uekaha hapu met with Mr Trapski, Bishop Manu Bennett of the Waitangi Tribunal and Tribunal staff. After the departure of these guests, members of the hapu discussed the question of ownership of the land upon its return. There were different views: some argued that it should be vested in the non-sellers only; some argued that it belonged to the non-sellers and sellers regardless; others said it should be returned to the hapu in general; while others were concerned that they might end up including the whole of Ngati Maniapoto in the land. Once again, there was no consensus Māori Appellate Court MB 516

6 [15] On 10 April 1990 Mr Toogood wrote to Mr Frame and Graeme Quinn of THC to advise that the Crown s proposal of 20 February 1990 was accepted in principle. In relation to the proposed return of the three acres, he advised: An appropriate trust deed will be prepared by the claimants to enable the re-vesting of the three acres over the cave. The beneficiaries of the trust have yet to be determined but the ultimate objective is that any financial return from the cave should be applied for the benefit of members of both hapu. [16] On 26 April 1990 Mrs Anderson and one other met with Judge Carter to discuss aspects of the proposed settlement in anticipation of applications being made to the Court. The establishment of a s 438 trust was discussed. [17] At a meeting on 28 April 1990 six trustees for the Ruapuha and Uekaha Hapu Trust were nominated. Mr Tane was one of the six trustees. [18] On 29 May 1990 Mr Frame wrote again to Mr Toogood enclosing an amended Agreement in Principle approved by Cabinet ( the AIP ). Clause 2 provided again for the three acres claimed in the core cave area to be vested in the claimants and noted that the three acres are owned, and belong to, the claimants in the full sense, subject only to the principle that the caves are accessible to the public.... Clauses 5 and 8 referred to the return of other land to the claimants. Once again, clause 4 referred to the school and school buildings not meeting the offer back criteria of the Public Works Act 1981 ( PWA ) and that, if and when they became available, the reversion would be under the appropriate statutory procedure. [19] On 30 May 1990 Mr Toogood responded to Mr Frame to advise that the proposed settlement was acceptable to the claimants. [20] Thus, the settlement of WAI 51 is evidenced by the exchange of correspondence of 29 and 30 May 1990 and is recorded in the AIP. However, in a joint memorandum filed with the Tribunal in 1996, Crown counsel and claimant counsel for WAI 51 refer to the final agreement being reached on 14 June Furthermore, it is said that the Cabinet minutes for 12 February 1990 (CAB (90) M3/11) and 25 October 1995 (TOW (95) M18/2) together record the terms of agreement. It is not entirely clear what is meant by the reference to a 14 June 1990 agreement. Certainly, on that date an Agreement to Licence (sic) was entered into between the Minister of Conservation, the hapu of Ruapuha and Uekaha and THC. This was one of the agreements contemplated by the AIP. In any event, there is no real dispute that the AIP records the substance of the settlement Māori Appellate Court MB 517

7 Implementation of the settlement [21] Following the AIP various steps needed to be taken to implement the settlement including the re-vesting of HE8. An implementation committee was established which included representatives of the Crown and the claimants. The core group of that committee included Mr Toogood and Peter Bollmann of the Department of Survey and Land Information. [22] In July 1990 the claimants engaged Tom Woods, barrister of Wellington, to assist with the re-vesting of the land. In a letter dated 9 August 1990 from Mr Woods to Mr Toogood he set out his views on aspects of implementation of the settlement. He contemplated the application for re-vesting being under s 436 of the 1953 Act. [23] On 13 August 1990 the implementation committee met. The minutes of the meeting record that it was proposed that the re-vesting of the land proceed under s 267 of the 1953 Act. Mr Woods was in attendance and is recorded as at first agreeing with proceeding under s 267 but later reserves his position. As we go on to point out, whether the re-vesting occurred under ss 267 or 436 had different consequences. [24] At about this time a significant debate arose between the claimants and the Crown in relation to the re-vesting of HE8. Mr Woods was instructed by the claimants that HE8 should be re-vested in the original non-sellers only. Mr Bollmann disputed the appropriateness of this. His view was that the land could vest in either the people from whom the land was acquired, or their descendants. Mr Bollmann and Mr Woods reached an impasse and the matter was subsequently referred to the Minister of Lands who, Mr Bollmann later recalled, was adamant that the land should be vested in either the original owners, or in an interim trust for the original owners, with the Court to determine beneficial ownership. Thus, the Crown s view was that there should be no distinction between sellers and non-sellers. This view prevailed, the Minister having the ultimate say on the issue. 2 [25] Mr Woods prepared the necessary applications to the Court in relation to the various blocks of land. The application for re-vesting of HE8 was under s 267(3A) to vest the land in trustees to hold and administer for the use and benefit of the descendants of the original 22 owners. Applications for s 438 trusts for the different blocks were also filed. A hearing was set down for 1 October This debate is recorded in Mr Bollmann s subsequent letter of 31 October Māori Appellate Court MB 518

8 [26] On 27 September 1990 Mr Woods attended a meeting of the Ruapuha and Uekaha hapu to prepare for the upcoming hearing. According to a note of the meeting kept by Lani Dawn Tane-Stockler, a supporter of Mr Tane, Mr Woods proposed that the land be vested in the five non-sellers and that on re-vesting no individual was to have an undivided interest in the land. [27] On 28 September 1990 Mr Woods filed a memorandum with Judge Carter explaining the basis of the applications. He referred to the re-vesting being under s 436, even though the application had been filed under s 267(3A). He confirmed his instructions that the land was to be vested in the non-sellers and explained as follows: In revesting the block in those persons, the intention is not to enable the restoration of title by succession so that the block once again becomes vested in common ownership. Instructions are that the benefits arising from the return of this property be to promote the interests of the Ruapuha and Uekaha hapu. In order to achieve that within the confines within the present legislation it is important to state in the application that the nominated owners in whose names the vesting order is made hold the land for the benefit of those two hapu. The owners on the making of a vesting order hold the land in a bare trust capacity, subject to the conditions upon which the order was made. In order to promote and facilitate the use and administration of the land in the interest of the hapu it will be necessary to appoint trustees pursuant to s 438 in place of the owners who are all deceased. The section 438 trustees in essence acquire the same trust for which the owners were nominated to hold the land. The trust order reflects that. You will note in the Māori Affairs Bill the prospect of creating whenua topu trusts to promote specifically the interests of iwi or hapu. As intended in this case, whilst a whenua topu trust is constituted no person is entitled to succeed to any interests vested in the trustees. In this instance, the s 438 trustees do not acquire beneficial interests capable of succession but are appointed to facilitate the use, management and alienation of the land in accordance with the trusts and conditions the owners hold the land. In other words, the s 438 trust is simply constituted to fulfil the obligations of the owner trustees. The revesting otherwise is in accord with the terms of settlement of the Treaty of Waitangi claim. The trustees pursuant to s 438 assume all the obligations and rights vested in the claimants arising from the agreement with the Crown. [28] Notwithstanding Mr Woods instructions regarding the re-vesting in non-sellers only, the Crown remained of the view that the land should be re-vested in all the original owners Māori Appellate Court MB 519

9 [29] On the morning of the hearing on 1 October 1990 Mr Woods raised with the Court his concerns about whether orders under s 267 were appropriate and, following a conference in Chambers, the applications were amended to be under s 436. The minute of the hearing records Mr Bollmann as stating in relation to HE8: 3 To meet the requirements of the terms of settlement I will ask for an order vesting the land in the persons who owned the land at the time of taking by the Crown. In conclusion, I advise the Court that care has been taken to ensure that the beneficial interests of all the former owners are not derogated through these applications, and in this regard I thank the claimants and their counsel for their cooperation and flexibility. I also express my thanks to the Court for its forbearance in what has proven to be a complex and sometimes confusing task. It is with the cooperation of the Court and claimants that this implementation phase of the mediation of the Waitangi Tribunal claim (WAI 51) is able to be heard. The application which is signed by the Minister and has been submitted to you is pursuant to Section 267 of the Māori Affairs Act I would ask that the Court views its discretionary jurisdiction under Section 59/53 and amend the application to be an application under Section 436/53 which would seem more appropriate to the circumstances and then to make orders vesting the various blocks in the beneficial owners thereof as at the date of taking of these lands. [30] Judge Carter made three orders on 1 October 1990 under s 436 re-vesting HE8, Hauturu East 9, 10 and 11 and Hauturu East 12, 13 and 14 respectively, subject to the Minister signing fresh applications under that section. 4 The following day Judge Carter made orders under s 438 establishing the trust in respect of HE8 and vesting the land in eight trustees including Mr Tane. 5 He made a separate trust order in respect of the other blocks. [31] It took some time for the orders to be signed and sealed. In 1991 and 1992 Mrs Anderson wrote to Judge Carter raising issues over the apparently mistaken inclusion of Ingoa Tukemata and Konehu Tukemata in the list of owners of HE8 and advocating that only four of the 14 original owners of Hauturu East 3B1 should have been included in the revesting order. This latter point was a reiteration of the claimants view that the land should be re-vested in non-sellers only. [32] In a minute dated 28 July 1992 Judge Carter concluded that an order under s 60 of the 1953 Act amending the vesting order by excluding Ingoa Tukemata and Konehu Tukemata was appropriate. However, he did not agree that a more substantive amendment could be made to the vesting order and directed that the signed and sealed orders be issued: Otorohanga MB 244 at p Otorohanga MB 244 at p Otorohanga MB Otorohanga MB 195 at p Māori Appellate Court MB 520

10 Under section 436 the Court has no discretion as regards the Orders it makes. It must make them in accordance with the terms of the application or it may decline them. It cannot modify them. This being the case the Court cannot entertain or assist Mrs Anderson in respect of her further representations. [33] Accordingly, three orders were issued in relation to HE8 as a result of the sittings on 1 and 2 October 1990 (copies of which are annexed to this judgment): (a) Order revesting land acquired for a public purpose pursuant to ss 60 and 436. (b) Order vesting Māori freehold land pursuant to s 438(2). (c) Order declaring the terms of trust pursuant to s 438(5). [34] The trust order was a modified version of a standard s 438 trust order. It was an investigatory trust in the sense that one of the objects of the trust was to investigate the future use, management and alienation of the land within a year (clause B3), to discuss the nature of the trust and the manner of appointment of trustees with the beneficiaries (clause B6) and to hold a general meeting within the year to discuss any recommendations (clause C11). The powers of the trustees were otherwise relatively restricted in comparison to standard s 438 trusts. Clauses A1 and A2 are important: A Title and Interpretation 1. The Trust shall be known as the Ruapuha-Uekaha Hapu Trust and shall apply to the lands set out in the Schedule hereto. 2. In this Trust order the word beneficiaries refers to all the descendants of the owners in whom the land was vested by order of the Court at Te Kuiti pursuant to Section 436 of the Māori Affairs Act 1953 on the 2 nd day of October [35] The trustees did not carry out the investigations and consultation or the AGM within the one year provided in the trust order. In fact, a comprehensive review of the trust did not take place until the trust brought the current application under s 231 in However, in 1998 the Court did vary the trust order pursuant to s 244 by amending clause 4 to provide for trustees fees and by adding a new clause 8 to provide for the distribution of funds to whanau trusts approved by general meeting of owners. 7 [36] Before discussing the background further we note that in the lower Court the parties to the appeals referred to many other items of correspondence and documents which discuss the basis on which HE8 was returned. Some pre-date the hearings on 1 and 2 October Otorohanga MB Māori Appellate Court MB 521

11 and some post-date them. In our view, they are irrelevant to our task of understanding the settlement and interpreting the orders. Furthermore, counsel referred to comments made by Judge Carter in informal discussions and correspondence both before and after the orders. Once again, those matters are irrelevant, particularly as Judge Carter was functus officio once he made the orders. Subsequent proceedings [37] Since 1999 various applications have been pursued which have tested the issue of whether the interests vested in the original 22 owners in 1990 were capable of succession. The outcomes of those applications are said to be relevant to the appeals. [38] On 3 February 1999 Judge Carter made succession orders in relation to the estate of Purangi Tanetinorau, one of the original 22 owners who died in The orders were in favour of two of his grandchildren, being Ms Tane-Stockler and Mr Tane, in terms of his 1970 will. The orders included his interests in HE8. [39] On 10 May 2002 Judge Carter issued a decision concerning six applications for succession to interests held by some of the original 22 owners. 9 This was the first occasion on which the Court had expressly addressed the question of whether the interests of the original 22 owners in HE8 were capable of succession. Judge Carter concluded that, in light of the circumstances of the settlement of WAI 51 and the 1990 orders, it was not intended that the original 22 owners hold title as absolute owners and be subject to rights of succession. He dismissed all applications and directed that the Court s title record be amended to show that the original 22 owners held their interests as bare trustees. As for the orders he had made on 3 February 1999 in relation to the interests of Purangi Tanetinorau in HE8, he concluded that the order had been made in error and invited the Registrar to bring an application under s 45 to correct the order. [40] Judge Carter s decision of 10 May 2002 was appealed to the Māori Appellate Court. In a decision dated 30 May 2003, Tane-Stockler Hauturu East 8 Block, 10 this Court concluded that the interests of the original 22 owners could be succeeded to and granted the appeal. The Court noted that the applications and submissions in respect of the Tauranga MB Otorohanga MB 3-12 Tane-Stockler Hauturu East 8 Block (2003) 20 Waikato Maniapoto Appellate MB 158 (20 APWM 158) 2010 Māori Appellate Court MB 522

12 hearings had not asked for a limitation on succession, and none was stated in the orders. Pursuant to s 354 of the 1993 Act, all s 438 trusts continue as ahu whenua trusts under s 215. Section 215(8) expressly provides that an ahu whenua trust shall not affect a person s entitlement to succeed to any beneficial interest in land vested in the trustees for the purpose of the trust. The Court further concluded that allowing succession to the original 22 owners would not invalidate the 1990 settlement. [41] The various applications for succession came back in front of Judge Carter. In a decision dated 12 December 2003 Judge Carter made succession orders in relation to those owners who died intestate. 11 As far as succession to Purangi Tanetinorau was concerned, a complex legal issue arose as, although he died leaving a will, at the time of his death he did not own any interests in HE8. It was Crown land and would not come into his ownership until 1990, 18 years after his death. Judge Carter suggested three alternative approaches to dealing with succession to Purangi Tanetinorau but ultimately did not express a final view as he concluded that the estate was outside the provisions of Part IV of the 1993 Act by reason of s 100(2) as probate had been granted. Judge Carter concluded that Mr Tane would need to apply to the Registrar for succession orders under ss 81 and 81A of the Māori Affairs Amendment Act 1967 ( 1967 Act ). [42] Mr Tane and Ms Tane-Stockler had also applied under s 242 of the 1993 Act for orders determining their entitlement to funds held by the trust. In a separate decision dated 12 December 2003 Judge Carter dismissed the application as he concluded that an order under s 242(1) would only be appropriate where the trust had authorised a payment to a particular beneficiary, that is, where the trust had effectively declared a dividend. 12 As that had not happened, no order could be made. Furthermore, Judge Carter considered that the application was contrary to the 1990 settlement and the provisions in the trust order. [43] Mr Tane applied to the Registrar pursuant to ss 81 and 81A of the 1967 Act to succeed to the interests of Purangi Tanetinorau. By way of orders dated 29 April 2004 the Registrar made an order pursuant to s 81A vesting Purangi Tanetinorau s interests in HE8 in Mr Tane and Ms Tane-Stockler in terms of the 1970 will. 13 [44] Subsequently, Georgina Tane-Gibbons, another grandchild of Purangi Tanetinorau, filed an application pursuant to s 45 of the 1993 Act in respect of the Registrar s s 81A order Otorohanga MB Otorohanga MB 17 6 Registrar Waikato-Maniapoto MB Māori Appellate Court MB 523

13 claiming that the interests should only be succeeded to on the basis of intestacy. Judge Milroy conducted an inquiry and issued a report wherein she concluded that succession must be dealt with on the basis of an intestacy. Deputy Chief Judge Isaac (as he then was) agreed with Judge Milroy s assessment of the legal position and in a judgment dated 19 August 2008 cancelled the Registrar s vesting order and made an order pursuant to s 118(6) vesting Purangi Tanetinorau s interests on the basis of intestacy. 14 Current applications [45] On 20 January 2006 Mr Tane filed applications under ss 351, 215, 17 and 242 of the 1993 Act seeking orders that living owners/shareholders are properly recognised by the [trust], and that their interests in HE8 block be distributed directly to living owners/shareholders. On 4 October 2006 the trust filed the application for review of the trust pursuant to s 231 of the 1993 Act. [46] Judge Milroy directed that the two applications be heard together and appointed Mr Catran to represent Mr Tane. The applications were heard on 16 October The hearing focussed on the nature of ownership and beneficiary interests in HE8, past performance of the trustees and proposals from the trust and Mr Tane for new trust orders. [47] In her decision of 29 September 2008 Judge Milroy considered who was intended to benefit from the trust. Regarding disputes over the nature of Tanetinorau s original ownership of the land, she concluded that at law he held the land with all the rights and powers of an owner. 15 She concluded that the 1990 settlement was between the Crown and the hapu of Ruapuha and Uekaha. 16 Further, as the vesting orders were in favour of the original 22 owners and as the trust order provided for the beneficiaries to be the descendants of those owners, she held that the Court must ensure that the descendants remained the beneficiaries of the trust unless it is clear that they have consented to a change to the beneficiaries. 17 Nevertheless, the descendants of the original 22 owners were entitled to succeed to interests in accordance with this Court s decision in Tane-Stockler Hauturu East Georgina Tane-Gibbons Purangi Tanetinorau (2008) 2008 Chief Judge s MB 339 (2008 CJ 339) Ruapuha Uekaha Hapu Trust Hauturu East8 (2008) 134 Waikato MB 3 (134 W 3) at [23] Ibid at [30] and [46] Ibid at [48] Ibid at [50] 2010 Māori Appellate Court MB 524

14 [48] Judge Milroy then addressed the review of the trust order. She considered that a significant change to the beneficiaries would constitute a fundamental change to the nature of the trust. 19 In terms of s 231, she was not satisfied that there was a sufficient degree of support for the proposals of either the trust or Mr Tane. She identified various difficulties with both proposals. Furthermore, the current situation whereby the trust pays dividends to four whanau trusts who do not hold interests in HE8 but represent descendants of some of the original 22 owners was problematic. Judge Milroy identified the specific matters that the trust order needed to address, 20 including that the definition of beneficiaries must remain the descendants of the original 22 owners. 21 She directed that the trust and Mr Tane amend their respective draft trust orders taking into account her comments at paragraph and directed that a further meeting be held to consider the proposals and that only those listed in the Court s list of owners would be entitled to vote. 23 [49] As far as the application for enforcement of obligations of trust was concerned, Judge Milroy identified that the question of the unsecured loan to the Tanetinorau Opataia Whanau Trust needed to be addressed by the trustees and, providing it was dealt with satisfactorily, that application would then be dismissed. 24 The appeal Preliminary determinations [50] As Judge Milroy did not make final orders or dismiss the applications her findings and directions could only be considered by this Court by way of appeals against preliminary determinations under s 59. We brought this issue to the attention of counsel and Judge Milroy in a minute issued on 25 February On 5 June 2009 Judge Milroy granted leave to appeal the preliminary determinations. 26 Accordingly, we approach the appeals as being against preliminary determinations Ibid at [67] Ibid at [125] Ibid at [125(i)] Ibid at [136] Ibid at [138] Ibid at [152] 21 Waikato Maniapoto Appellate MB Otorohanga MB Māori Appellate Court MB 525

15 The trust s arguments [51] The trust submits that all descendants of the original 22 owners are beneficiaries of the trust and are entitled to fully participate in the affairs of the trust. The trust argues that Judge Milroy erred in two respects in her directions: (a) (b) by directing at paragraph 138 of the decision that only underlying owners of HE8 are entitled to vote at a meeting of owners called by the Registrar regarding the proposals to amend the trust; and by directing at paragraph 125 (sic) of the decision that any proposal to amend the trust order is not required to retain implementation of the WAI 51 settlement as an object of the trust. [52] In support the trust makes several points: (a) (b) (c) (d) The descendants of the original 22 owners are beneficially entitled to HE8 and/or the original 22 owners hold title under the vesting order together with any subsequent owners as trustees for their descendants and/or in a fiduciary capacity. The 1990 revesting order is subject to the terms of the WAI 51 settlement. Under s 436(1) and (3) of the 1953 Act a Minister could stipulate...any other conditions subject to which a vesting order under this section may be made... and in making the vesting order the Court was obliged to make it...subject to such terms and conditions as may be specified in the application.... The vesting order was expressed to be subject to the terms of settlement of claim WAI 51. The 1990 trust order is also subject to the WAI 51 settlement. The trust order defines the beneficiaries as all the descendants of the 22 owners and includes as an object in clause B2 the fulfilment of the settlement of claim WAI 51. The direction in paragraph 138 that only underlying owners be able to vote at the meeting was therefore wrong as all the descendants of the original 22 owners are beneficiaries under the trust order. Consequently, a large number of beneficiaries will be excluded from participating in the affairs of the trust. This was characterised as a defacto variation of the trust Māori Appellate Court MB 526

16 (e) (f) (g) Judge Milroy appeared to favour the Court s list of owners over the trust s list of beneficiaries. This was wrong. Clause 11 of the trust order provided for the trust to maintain the list and its reliability had not been raised as an issue in the hearing. In terms of paragraph 125, the vesting order and the trust order were expressly subject to the WAI 51 settlement and therefore it should remain as an object of the trust. The trust was not an ahu whenua trust by reason of the transitional effect of s 354 of the 1993 Act as the trust had been constituted under s 438(2) of the 1953 Act and not s 438(1) and successions should not occur. Mr Tane s arguments [53] Mr Tane argues that only successors to the original 22 owners are beneficiaries of the trust. He challenges two aspects of Judge Milroy s decision: (a) (b) He says that the findings at paragraphs 48 and 50 that the descendants of the original 22 owners must remain the beneficiaries of the trust is in error. He says that the direction at paragraph 125(i) that the definition of beneficiaries must remain as the descendants of the original owners in whom the land was vested in 1990 is likewise in error. [54] In support Mr Tane makes several points: (a) (b) (c) The core issue was whether the beneficiaries of the trust, and thereby those who control the trust, are the successors of the original 22 owners or the descendants of the original 22 owners; Prior to the revesting and trust orders in 1990, various views had been expressed amongst the community of the descendants of the original 22 owners and the hapu as to how ownership of the land would be configured when returned, but there was no consensus; The Crown intended that the land be vested in the original 22 owners and that their successors be entitled to succeed. This was consistent with the 2010 Māori Appellate Court MB 527

17 Crown seeing the return of the land as analogous to a return under the PWA, in which case those entitled were the successors of the original owners. (d) (e) Judge Milroy s finding at paragraph 30 that the settlement was with the hapu of Ruapuha and Uekaha was in error: the settlement was with the beneficial successors to the original owners. The conclusions in paragraphs 48 to 50 are contrary to the Crown s intentions in respect of the 1990 orders and derogate from the rights that arise from ownership in the land. [55] Mr Catran, for Mr Tane, went on to address in his submissions (paragraphs 109 to 167) the new trust orders proposed by Mr Tane and by the trust. Judge Milroy had determined that there was insufficient support for either proposal and directed a further meeting to consider revised proposals in accordance with her directions. Neither party has appealed that conclusion. Therefore, we do not consider it our function to express views on the proposed trust orders except to the extent that they relate directly to the findings and directions under appeal. Issues [56] The appeal gives rise to three broad issues. First, what did the 1990 settlement intend in relation to the re-vesting of HE8? Specifically, who was to benefit from the land and did the settlement contemplate successions? Second, what was the effect of the 1990 orders in relation to HE8? This is the central issue. Although the settlement was recorded in the AIP, it is the 1990 orders that implemented the settlement in relation to HE8 and it is those orders that determine the nature of the interests in the land. Third, we discuss consequential issues in relation to the proposed variations to the trust order. What did the 1990 settlement intend in relation to the re-vesting of HE8? [57] The trust contends that the intention of the 1990 settlement was that the land including HE8 be returned to the claimant hapu, Ruapuha and Uekaha. The trust points to correspondence, minutes and memoranda leading up to and following the 1990 orders for support Māori Appellate Court MB 528

18 [58] Mr Tane contends that the intentions of the claimants were at times confused, that the Crown s offer did not focus on who was to benefit from or own HE8, but that the settlement arose in the context of the return of land taken under the PWA and therefore the intention was that the land be returned to the successors, from whom it was acquired. [59] We agree with Mr Tane that up to and following the settlement with the Crown various views had been expressed amongst the claimants as to the manner in which ownership of the land would be returned. There was no clear consensus. Nevertheless, it is beyond argument that the settlement was between the Crown and the hapu of Ruapuha and Uekaha: Mrs Anderson brought WAI 51 on behalf of the hapu; the mediation and negotiations were conducted with representatives of the hapu; the AIP and related settlement documents were all entered into with representatives of the hapu; and the AIP spoke of returning HE8 and other land to the claimants, that is, the hapu. Conversely, at no stage was the settlement in relation to HE8 expressed to be for the sole benefit of those who could succeed to the original 22 owners. [60] We consider Mr Tane s focus on the PWA to be misguided. Although the proposed sale of the THC and the potential breach of the offer back rights under the PWA was the catalyst for lodging WAI 51, and no doubt had some influence on the negotiations with the Crown, the settlement was not a settlement of claims under the PWA. It was a settlement of claims under the Treaty of Waitangi Act and was at the higher level of resolving and enhancing Treaty relationships. [61] The AIP did not purport to settle claims under the PWA nor did it purport to re-vest the land under the PWA. The AIP makes no mention of the PWA in relation to the land that was to be re-vested clauses 2, 5 and 8. The only clause that mentions the PWA is clause 4 which relates to the school land which, at the time, did not satisfy the offer back criteria. [62] Mr Catran argued that the reference in clause 4 to the PWA colours the meaning and intention of clauses 2, 5 and 8 and that consequently the AIP contemplated the re-vesting of HE8 and other land in the successors to the original 22 owners. We disagree. Had the Crown and the claimants intended the PWA regime to apply to the land in clauses 2, 5 and 8 then we would have expected those clauses to have expressly said so in the same manner as clause 4. Clause 4 s reference to the PWA distinguished the Treaty settlement process that applied to the land in clauses 2, 5 and 8 from the PWA process that would apply to the school land if it was no longer needed by the Crown. That is, the PWA was only relevant in the event of the return of other land in the future Māori Appellate Court MB 529

19 [63] Nevertheless, we acknowledge that the Crown officials and the Minister approached the settlement with PWA principles in mind. Given the Crown s duty of utmost good faith, that is not surprising. This is discussed in some detail in Mr Bollmann s letter of 31 October He makes it clear that he and the Minister considered that the land should not be revested in non-sellers only, but that it should be re-vested in either the people from whom the land was acquired or their descendants. He goes on to discuss the situation with land still owned by the Crown, namely, Hauturu East 1A3. There was apparently some debate at the time over whether s 40 of the PWA applied because of arguments over whether that land was purchased from willing sellers. From the Crown s perspective, that did not matter: Once the land is no longer required for the work for which it was acquired, then irrespective of whether the land was acquired under the Public Works Act, the principles of s 40 of that Act are applied as a matter of policy. The principles referred to here requires surplus land to be offered back to the former owners or their descendants. [64] Mr Bollmann was speaking in terms of principles affecting the return of Crown land and not the technical legalities of the PWA. Accordingly, we are not persuaded by Judge Milroy s suggestion that this discussion could indicate the Crown s consideration of succession rights in respect of HE8. 27 Neither in Mr Bollmann s letter of 31 October 1990 nor elsewhere does the Crown venture into the more acute issue of whether the former owners or their descendants meant their successors or descendants. The Crown did not turn its mind to the distinction at the time. [65] Mr Catran (paragraphs 101 and 102) also referred to paragraphs 37 to 41 of Judge Milroy s decision and argued: Mr Bollmann s letter to the Treaty Unit sets out Mr Wood s opposition to successions (para 37). Mr Bollmann stated his own opposition to that approach and emphasised that the Crown intended to ensure that the beneficial interests of the former owners were not derogated through the WAI 51 application. [66] Mr Catran has misread the documents. Mr Bollmann does not refer to Mr Woods opposition to successions in his letter of 31 October Rather, he refers to his own opposition to Mr Woods proposal that HE8 be re-vested in the non-sellers. That was the heart of the debate. The Crown had a firm view that the land should be re-vested in the sellers and non-sellers without discrimination but did not express a view on whether or not successions should follow. 27 Ruapuha Uekaha Hapu Trust Hauturu East 8 (2008) 134 Waikato MB 3 (134 W 3) at [43] 2010 Māori Appellate Court MB 530

20 [67] Furthermore, when Mr Bollmann addressed the Court on 1 October 1990 and stated,...i advise the Court that care has been taken to ensure that the beneficial interests of all the former owners are not derogated through these applications..., he was again referring to the inclusion of non-sellers and sellers and was not speaking in support of successions. In fact, we cannot find a single reference in the evidence to the Crown expressly addressing the issue of successions. [68] Accordingly, we agree with Judge Milroy s conclusion that the settlement was with the hapu of Ruapuha and Uekaha. Furthermore, the AIP and associated documents did not purport to preserve successions. The possibility of successions had not arisen. The Crown s intention was that HE8 be returned to the original 22 owners and their descendants in the broadest sense of that word. What was the effect of the 1990 orders in relation to HE8? Section 436 order [69] The order under s 436 vested an estate in freehold in fee simple in HE8 in the original 22 owners. Under s 436(3) the Minister could stipulate any terms and conditions to be included in the order. The order refers in its recitals to two conditions having been stipulated by the Minister: AND WHEREAS the Minister has stipulated in his application that agreement to vest was reached subject to the following conditions: (a) (b) That the order be and is subject to the terms of settlement of claim WAI 51 with the Waitangi Tribunal under the Treaty of Waitangi Act That all expedient steps be taken to have the said land vested in trustees pursuant to Section 438 of the Māori Affairs Act 1953 with all the necessary powers and authorities to conclude and carry on any arrangements and agreements entered into in respect of the said land binding on the claimants in the settlement of claim WAI 51 with the Crown under the Treaty of Waitangi Act (emphasis added) [70] The trust argues that this clause imports into the vesting order an express trust that the original 22 owners hold the land for their descendants and that their interests could not be succeeded to. [71] While we agree that the intention of the settlement was that it benefit the Ruapuha and Uekaha hapu, and therefore the descendants of the original 22 owners, we do not accept 2010 Māori Appellate Court MB 531

21 that the terms of settlement provided that the original 22 owners held the land on trust. The terms of settlement for the purposes of the order must be the AIP. The AIP does not provide for the original 22 owners to be trustees, nor does it exclude the right of succession to those interests. Furthermore, the Crown s correspondence did not stipulate either of those two things. [72] Mr Woods may well have been instructed that there was to be no right of succession to the interests, and that may well have been his interpretation of the effect of the settlement, but his instructions and views do not have the effect of importing such terms into the AIP. [73] Accordingly, the reference in the s 436 order to the conditions stipulated by the Minister did not impose an express trust on the original 22 owners and did not exclude the right of succession. The s 436 order simply vested HE8 in the original 22 owners. Successions were a legal consequence of the s 436 order, albeit that they were not expressly contemplated by the settlement. Importantly, any trust obligations arose separately as a result of the s 438 orders. Option of re-vesting under section 267(3A) [74] The re-vesting could have been effected under either ss 267 or 436 of the 1953 Act. Sections 267 and 436 provided: 267 Special provisions for sale to and vesting in Māoris of interests in Māori land acquired by Crown (1) This section applies with respect to any Māori land or to any undivided share in Māori land that has at any time been acquired by the Crown, whether pursuant to this Part of this Act or otherwise howsoever, and whether or not the land has been proclaimed to be Crown land. (2) Any land or undivided share in land to which this section applies may, with the consent of the Minister of Lands, and notwithstanding anything to the contrary in this or any other Act, be sold or otherwise disposed of to any Māori or the descendant of a Māori, or to a body corporate of owners established under Part 22 of this Act, on such terms and conditions as to the amount of purchase money (if any), the payment thereof by instalments or otherwise, the security (if any) to be given for any unpaid purchase money, and such other terms and conditions as the Minister of Lands may determine. (3) The Court, on the application of the Minister of Lands, shall make an order vesting any land or undivided share in land to which this section applies, in the person or persons specified in the application as being entitled thereto. (3A) The Court, with the agreement of the Minister of Lands, may, instead of vesting the land in the persons beneficially entitled, vest it in some person 2010 Māori Appellate Court MB 532

22 or persons or in a body corporate as trustees for the persons beneficially entitled or for some class of persons. (4) Every vesting order made under this section shall have the same effect as if the land or undivided share had been duly transferred by the Crown to the person or persons in whose favour the vesting order is made. (5) All land sold or otherwise disposed of by the Crown pursuant to this section to a Māori (whether in severalty or in common with any other person or persons) or to a body corporate shall, on the taking effect of the vesting order, become and be deemed to be Māori freehold land. (6) All land in respect of which a vesting order is made pursuant to this section shall remain subject to all leases, charges, or other encumbrances to which it was subject on the making of the vesting order. 436 Land acquired from Māoris for public work may be revested in Māoris (1) Where any Māori land or any [General land] owned by Māoris has been at any time acquired by the Crown or by any local authority or public body for the purposes of a public work or other public purpose, and is no longer required for [the public work or other public purpose for which it was acquired or is held], the Minister or authority under whose control the land is held or administered may apply to the Court to vest the land in accordance with the provisions of this section. In any application made for the purposes of this section the Minister or other applicant may nominate the person or persons in whom the land shall be vested, and may stipulate the price to be paid for the land, the terms and conditions of payment, and any other conditions subject to which a vesting order under this section may be made, or may leave all or any of such matters to be dealt with in the discretion of the Court. (2) An application may be made to the Court and the Court may exercise its jurisdiction under this section notwithstanding the provisions of any Act to which the land is subject and notwithstanding any terms and conditions imposed by any Act on the sale or other disposition of the land. (3) On application being made under this section the Court may make one or more orders, subject to such terms and conditions as may have been specified in the application or subject to any other terms and conditions not inconsistent with any terms and conditions so specified as it may think fit to impose, vesting the land or any parts thereof, freed from any trusts and restrictions subject to which the land may previously have been held, in such person or persons as may be nominated by the applicant or, if no such nomination has been made, in such person or persons as may be found by the Court to be justly entitled thereto, for an estate of freehold in fee simple and, if more than one, as tenants in common in the relative shares or interests defined by the Court. (4) Instead of making a vesting order under this section or in addition to any such order the Court if it thinks it necessary or convenient so to do, may amend any existing instrument of title so as to include therein the land or any part of the land to which the application relates, and the land so included shall thereupon become subject to all reservations, trusts, rights, titles, interests, and encumbrances affecting the other land comprised in that instrument of title. (5) Any land vested in a Māori pursuant to this section shall thereupon be deemed to become Māori freehold land, unless the Court otherwise expressly orders Māori Appellate Court MB 533