IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A

Transcription

1 374 Aotea MB 252 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER Section 338(1)(a) of Te Ture Whenua Māori Act 1993 IN THE MATTER OF Urenui Pā (Lot 2 of Part Subdivision 3 of Section 24 Block IV Waitara Survey District) JOHNSON RAUMATI Applicant Hearing: On the papers Judgment: 28 August 2017 INTERIM JUDGMENT OF JUDGE L R HARVEY Introduction [1] Johnson Raumati seeks an order to amend the gazette notice setting apart Urenui Pā as a Māori Reservation, dated 15 December 1932, to correctly reflect the Court s recommendation issued on 2 September 1932 that the reservation be set apart for the common use and occupation of the Ngatimutunga Tribe. Background [2] Urenui Pā is Māori freehold land and was created by partition order on 22 October 1918 per the West Coast Settlement Reserves Amendment Act The land is (ha) in area and there are currently 415 beneficial owners. [3] In 1932 the land was set apart as a Māori reservation. Trustees were first appointed on 6 May 1942 per s 5(4) of the Native Purposes Act Taranaki MB 352 (27 TAR 352) 53 Taranaki MB (53 Tar )

2 374 Aotea MB 253 [4] The current trustees are Barry Matuku, Mark Haupapa, Johnson Raumati, Raymond Tuuta, Hurimoana Haami, Karen Papuni, Tania Hodges-Paul and Marie Phillips. 3 Issue [5] The issues for determination are: (a) (b) Can the Court amend the recommendation or the gazette notice? Should the gazette notice be amended? Can the Court amend the recommendation or the gazette notice? [6] It is well established that it is the action of issuing the order in council that sets apart a Māori reservation. 4 The Court s function is purely recommendatory. [7] In Shaw - Tauwhao Te Ngare Judge Milroy concluded that the action of the Chief Executive on behalf of the Crown in gazetting the reservation is an executive action that cannot be reversed by the Court. 5 She noted that the applicant may apply under s 338(5) for a recommendation that the reservation be cancelled but until the Chief Executive acts upon such a recommendation the gazettal is effective and the Court cannot make orders as if the gazettal had not taken place. [8] Therefore, recourse for amending orders per s 86 or s 45 is not available. To amend the order in council, a new recommendation to redefine the beneficiary class must be issued. This can be achieved per s 338(5) of the Act: Section 338(5) of the Act states: (5) On the recommendation of the court, the chief executive, by notice in the Gazette, may, in respect of any Maori reservation made under this section, do any 1 or more of the following things: (a) exclude from the reservation any part of the land comprised in it: (b) cancel the reservation: (c) redefine the purposes for which the reservation is made: (d) redefine the persons or class of persons for whose use or benefit the reservation is made Aotea MB (360 AOT ) See Mato Nukutaurua 3C3B (1987) 32 Gisborne Appellate Court MB 217 (32 APGS 217); Muraahi v Phillips Rangitoto Tuhua 551B and 55B1A2 (Manu Ariki Marae) [2013] Maori Appellate Court MB 528 (2013 APPEAL 528); and Yates Te Kohanga Lots 1, 3-27 (2013) 63 Taitokerau MB 299 (63 TTK 299) Shaw - Tauwhao Te Ngare (2005) 81 Tauranga MB 8 (81 T 8)

3 374 Aotea MB 254 [9] That section does not provide any guidance as to the matters the Court is required to consider when determining whether to redefine the beneficiary class. [10] The Māori Appellate Court decision in Campbell v Mahuika Rahui A13 is a useful guide where that Court set out the following factors: 6 (a) (b) Although the original recommendation had been made in 1927 no further action was taken until That the further recommendation issued in 1979 set the reservation apart for a wider class than the 1927 recommendation. (c) A gazette notice was issued on 1 November 1979 in line with the 1979 recommendation. (d) (e) (f) (g) No action had been taken to challenge that recommendation and subsequent gazettal until The record did not clearly evidence an intention that the land was for use solely by the owners of the land (as per the 1927 recommendation). The Appellate Court considered the fact that the Court records showed frequent use of the term Umuariki Meetinghouse and there was evidence of the involvement of the wider Umuariki whānau, lack of objection or appeals etc at the time the 1927 matter was heard until the present application filed in Otene - Part Tauhara Middle 4A2A (Mount Tauhara) is authority for the view that weight be given to the views of the owners and that those owners should be consulted on any move to redefine beneficiaries or boundaries. 7 [11] That Appellate Court decision was cited with authority by Judge Milroy in Tangitu Parish of Te Puna 154A2. 8 In 2002 the land was set aside as a Māori reservation for the purposes of an urupā. Judge Milroy considered the starting point must be the gazette notice. The Judge found that the owners must be consulted and their views will have weight with the Court. She also noted that the urupā has been in use for over a hundred years and that its definition confirmed its use rather than setting in place something new and unexpected (1992) 32 Gisborne Appellate Court MB 370 (32 APGS 370) (1977) 58 Taupō MB 168 (58 TPO 168) (2005) 82 Tauranga MB 274 (82 TGA 274)

4 374 Aotea MB 255 [12] Judge Milroy concluded that the land was intended for use as an urupā and had been in use as such for a lengthy period of time without objection until the 2005 application was filed, that the class of beneficiaries is reasonably limited to those who are members of a hapū associated with the land and the significance to be given to the owners who unequivocally support the position of the applicant does not on its own outweigh the significance to be attached to the support of the beneficiaries, the local marae and the local community for the present definition. Judge Milroy was not inclined to make the recommendation sought. [13] In Kapa Estate of Te Whakahau Hare and Ruka Paati Judge Ambler, in dealing with an application for succession was required to consider the nature of the existing Māori reservation over Taheke D which was owned by the deceased and his wife as joint tenants. 9 The recommendation had issued in 1893 for the benefit of the descendants of Te Whakahau and Ruka. There was no evidence to indicate why this was so when the land was originally vested in them as trustees. [14] The Judge considered that the recommendation had unwittingly reduced the beneficiaries of the land to a much smaller group. The recommendation was gazetted in 1894 and no further dealings with the land until the present application. Judge Ambler notified the parties of his view that it should be for the benefit of the Māori community at Taheke and considered that there was no prejudice. [15] In the present case, it is evident that the reservation contains the Ruapekapeka pā and it was always intended that the papakāinga be set apart as a Māori reservation. It should also be noted that up until the present application was filed no objection has been made to the beneficiary class of the Māori Reservation. The applicant says that the matter was raised at the last hui-a-tau where it was evident that this was clearly an error. [16] In the circumstances, given the lack of evidence available to the Court, there is no certainty that an administrative error has occurred here. There has been no attempt by the Māori reservation trustees or beneficiary class to amend it despite hearings over the years amending the size of the reservation and appointing new trustees. 9 (2014) 72 Taitokerau MB 54 (72 TTK 54)

5 374 Aotea MB 256 Should the Gazette notice be amended? [17] On 2 September 1932, the Court heard an application to set apart Urenui Pa as a Māori reservation. The minute records: 10 Lot 2 of Pt Sub 3 of Sec 24 Blk IV Waitara SD Appl[icatio]n under Sec 298 Act 1931 to have land declared a Native Reservation. Area 9a 1r 6p Owners Raumati Paihi & 64 others Title Partition order dated 22/10/1918 Roimata Wi Tamihana Sworn I am one of the owners of this land and I am appearing for others. It comprises the Ruapekapeka Pa in which some of the owners are living. It is the principal kainga of the Ngatimutunga Tribe. There are two big meeting houses on the land and a kitchen besides other buildings. A meeting of the owners was held on the 30 th March last when it was decided to have this land declared a Native Reservation for the use and occupation of the Ngatimutunga Tribe and I ask the Court to recommend that an Order in Council be issued acc[or]d[ingl]y. No obj[ection] Recommendation to be made. (Emphasis added) [18] The Court subsequently issued a recommendation: 11 Whereas at a sitting of the Native Land Court held at New Plymouth on the 2 nd day of September, 1932, before James Wakelin Browne, Esquire, Judge, application was made, under the provisions of Section 298 of the Native Land Act 1931 to have the said Lot 2 of Pt. Sub. 3 of Section 24 Block IV Waitara Survey District, containing by admeasurement 9 acres 1 rood 6 perches more or less, declared a Native Reservation for the reason that the land comprises the Ruapekapeka Pa and is the principal kainga of the Ngatimutunga tribe. And whereas the said land is Native freehold land owned at law or in equity by more than ten owners in common. And whereas the Court is satisfied that a recommendation, under the provisions of the said Section 298 should issue in respect of the said land. Now therefore, the Court doth hereby recommend the Governor General in Council to set apart and reserve the said Lot 2 of Pt. Sub 3 of Section 24 Block IV Waitara Survey District as a Native Reservation within the meaning of the said Section 298 of the Native Land Act 1931 for the common use and occupation of the Ngatimutunga tribe. (Emphasis added) [19] The Governor General by Order in Council dated 15 December 1932 and published in the New Zealand Gazette on 22 December 1932 set aside the land: Taranaki MB 293 (44 TAR 293) Ibid

6 374 Aotea MB 257 Whereas by section two hundred and ninety-eight of the Native Land Act 1931, it is enacted, inter alia, that when any Native freehold land is owned at law or in equity by more than ten owners in common the Governor General may, by Order in Council, set apart and reserve any part of that land for the common use of the owners thereof as in the said Act provided: And whereas the Native Land Court has recommended that the land described in the Schedule hereto be set apart as a Native reservation: Now, therefore, His Excellency the Governor-General of the Dominion of New Zealand, in pursuance and exercise of the power and authority hereinbefore mentioned, and all other powers thereunto him enabling, and acting by and with the advice and consent of the Executive Council of the said Dominion, doth hereby set apart and reserve the Native freehold land described in the Schedule hereto for the common use of the owners thereof as a village and meeting-place. (Emphasis added) [20] At first blush, it is apparent that there is discrepancy between the recommendation issued by the Court and the gazette notice. There is no information in that material that sheds any light on why the Recommendation and Order in Council differ. [21] There was some suggestion that the Order in Council may differ due to the scope of the Courts ability to set apart land as a Māori reservation per s 298 of the Native Land Act That section states: 298 Native Reservations (1) When any Native freehold land is owned at law or in equity by more than ten owners in common, the Governor-General may by Order in Council set apart and reserve any part of that land for the common use of the owners thereof as a burialground, fishing ground, village, landing-place, place of historical or scenic interest, spring, well, or other source of water-supply, meeting-place, timber reserve, churchsite, building-site, recreation-ground, bathing-place, or for the common use of the owners thereof in any other manner. (2) The provisions of this section shall apply and extend to any Native freehold land which is owned at law or in equity by not more than ten owners if there is situated on the land a church, or meetinghouse, or other public building which in the opinion of the Court or Board is tribal or communal property. (3) Any portion of Native land so set apart and reserved is in this Act referred to as a Native reservation. (4) Native land may be so set apart as a Native reservation although vested in a Board, or in the Native Trustee, or in an incorporated body of owners, or in any other trustees for the Native owners, and notwithstanding the provisions of any Part of this Act as to the disposition or administration of that land. 12 Setting apart land as a Native Reservation (22 December 1932) 78 New Zealand Gazette Notice 2763 at 2785 Further amendments to the gazette order were made on 15 December Excluding land from a Native Reservation (30 November 1944) 93 New Zealand Gazette Notice 1447 at Subsequent Gazette Notices were issued in 2001, 2007 and 2012 making amendments to the area of the Māori Reservation. Notice Excluding Land from a Maori Reservation (9 August 2001) 84New Zealand Gazette Notice 2137 at ; Corrigendum - Excluding Land from a Maori Reservation (16 August 2007) 91 New Zealand Gazette Notice 2333 at 2407 and Declaring Maori freehold land to be inlcuded in a Maori Reservation (30 August 2012) New Zealand Gazette Notice 3049 at 3090.

7 374 Aotea MB 258 (5) No land shall be so set apart as a Native reservation except (a) On the recommendation of the Board of the district in which it is situated; or (b) On the recommendation of the Court or Appellate Court. (6) An Order in Council made under this section may be at any time revoked by Order in Council, or may at any time be varied in like manner whether as to the boundaries of the land included in the reservation or as to the purposes thereof; but no such revocation or variation shall take place except on the recommendation of the Board of the district in which the land affected thereby is situated, or on the recommendation of the Court or Appellate Court. [22] Under s 298 the Governor-General had the power to set apart and reserve land for the common use of the owners thereof as a burial-ground, fishing ground, village, landingplace, place of historical or scenic interest, spring, well, or other source of water-supply, meeting-place, timber reserve, church-site, building-site, recreation-ground, bathing-place, or for the common use of the owners thereof in any other manner. Curiously, no cases that discuss s 298(1) of that Act have been found. [23] It is possible that the Governor General may have issued the Order in Council along the lines of s 298(1), for the common use of the owners however there is simply nothing to confirm that this is the case. It is also possible that this was a simple oversight by the Governor General and the wording contained in the Recommendation was omitted from the Gazette Notice. Again, there is no evidence to confirm that this is the case. [24] In the circumstances while it is apparent that there is an inconsistency between the recommendation and the gazette notice it is difficult to discern where the error lies. In the absence of evidence to the contrary the gazette notice must stand as it is until validly changed. Decision [25] Pursuant to s 37(3) of Te Ture Whenua Māori Act 1993 the proceedings are amended to include an application per s 338(5)(c) and (d) to redefine the purposes for which the reservation is made and redefine the persons or class of persons for whose use or benefit the reservation is made. [26] The applicant is to produce evidence of this issue being raised at trustee hui and/or a hui-a-tau outlining the support or otherwise for the application. [27] The Case Manager is to make enquiries with Te Puni Kokiri as to whether that agency holds any relevant information.

8 374 Aotea MB 259 [28] In the absence of any further evidence being provided the case be set down for hearing and the beneficial owners and trustees notified. Pronounced in Rotorua at 4.45pm on Monday this 28 th day of August 2017 L R Harvey JUDGE