Wellington W W Isaac, Deputy Chief Judge 15 October 2004

Transcription

1 Minute Book: 178 NA 26 Place: Present: Date: Wellington W W Isaac, Deputy Chief Judge 15 October 2004 Application No: A Subject: Kaitoki 2C2B - Application for a Status Order declaring general land to be Maori freehold land Section: 133/93 Applicant: Wales Tu Rautahi RESERVED DECISION The Application 1. On 26 March 2004 Wales Tu Rautahi ("the applicant") filed an application pursuant to section 133/93 to change the status of Kaitoki 2C2B from general land to Maori freehold land. 2. The application came before the Court on 7 May 2004 (176 NA 75) and 2 July 2004 (176 NA 239), but was adjourned at the request of Mr Poole, one of the trustees of the Hirai Matene Rautahi estate, in order for the residuary beneficiaries to be notified. 3. The matter was heard again on 6 August 2004 (177 NA 132). Mr Coleman attended representing Mr Poole, whose clients are Myra McKay and Eleanor Hirai. The applicant was not represented. 4. After hearing from the parties, the Court reserved its decision for 21 days to enable the family to have a discussion about the land and perhaps how the land could be retained in the family. In a letter dated 16 August 2004 from Myra McKay it was made clear that no agreement had been reached between family members. Accordingly my decision is now issued as follows. Background to the Application 5. Kailoki 2C2B block comprises approximately hectares and is described in Certificate of Title HBB4/1321. It is currently being leased by a Mr Charlton, who is using it for dairy fattening. At the time of filing the application there were seven owners of the land: Owner Louise Rautahi and Marcus John Quentin Poole as executors Aperahama Matene Te Whiwhi Rautahi Wales Tu Rautahi Lynette Keitia Rautahi Roger Ihaka Hiraka Rautahi Tuhana Mathew Rautahi Catherine Valena Rautahi Share y, share 1112 share 1112 share

2 Minute Book: 178 NA Title to the block had historically been Maori land. However, on 16 September 1968 the status of Kaitoki 2C2B block was changed to general land through the registration of a "Status Declaration" under the provisions of Part I of the Maori Affairs Amendment Act Louise Rautahi (Hirai) was named co-trustee and beneficiary in the land in the will of her late husband, Hirai Matene Rautahi ("the testator"). Mr Poole was named as the other executor and trustee. Under the terms of the testator's will, Louise Rautahi was granted a life interest in his one-half share in Kaitoki 2C2B. Upon her death the interest was to be held upon trust for the testator's children, Diane McKay and Eleanor Hirai Rautahi, in equal shares. 8. Diane McKay has since died leaving two children, Darrell Hirai Te Amo and Myra McKay. Louise Rautahi also passed away during the course of these proceedings. Consequently the beneficial entitlement of the testator's one-half interest in Kaitoki 2C2B is Y. to Eleanor Rautahi and Y. each to Darrell Hirai Te Amo and Myra McKay. 9. The application to change the status of the land was supported, in addition to the applicant, by Aperahama Matene Te Whiwhi Rautahi, Lynette Keitia Rautahi, Roger Ihaka Hiraka Rautahi, Tuhana Mathew Rautahi, Catherine Valena Rautahi and Darrell Hirai Te Amo. Eleanor Rautahi and Myra McKay opposed the application. In terms of actual numbers therefore, 7 out of 9 owners are in support of the change of status and 2 out of 9 oppose it. 10. The applicant's arguments for changing the status of the land from general land to Maori land come down to a desire to have the land under the jurisdiction and protection of the Maori Land Court. He also expressed a desire to have the land put into a Maori Trust. 11. Eleanor Rautahi and Myra McKay filed statements of opposition with the Court. In essence their arguments are that they will be restricted in their choices if the status of the land were to change. For her part, Eleanor Rautahi states that she wishes to deal with her interest in the land by her will, which she can do because of its status as general land. She states that if the land has the status of Maori land then the persons to whom she is related by blood would not be entitled to succeed to her interest. Myra McKay states that she plans to use her share as leverage for and towards her university education. Her concern is that she could lose that ability if the land became a communal interest. 12. Although Eleanor Rautahi and Myra McKay both state that they wish to retain their interest as general land, they are willing to subdivide their interest in the block so that the other owners in the block may have their interest in the land made Maori land. 13. During the course of the proceedings before the Court it became clear that the parties were unwilling to compromise on their respective positions. The applicant also gave evidence to the Court that he would not consent to a proposed subdivision. This was confirmed in a letter from Myra McKay dated 16 August 2004 advising that a family meeting prior to the decision being issued would not change her mind.

3 Minute Book: 178 NA 28 The Law 14. The Maori Land Court has jurisdiction under section 133/93 to make a status order declaring that any land shall cease to be general land, or general land owned by Maori, and shall become Maori freehold land. Before doing so, however, the Court must be satisfied that the following requirements of section 133(3)/93 have been met: (3) The Court shall not make a status order under this section unless it is satisfied that - (a) The land is beneficially owned by one or more Maori; and (b) The owners have had adequate opportunily to consider the proposed change of status; and (c) Either- (i) (ii) All the owners agree to the proposed change of status; or The land can be managed or utilised effectively as Maori freehold land and a sufficient proportion of the owners agree to the proposed change of status; and (d) If is desirable that the land become Maori freehold land having regard to the history of the land, and to the identily of the owners and their personal association with the land 15. I will now deal with each of the above provisions. Section 133(3)(a)j The Maori Appellate Court has recently held that the reference to "owners" must include beneficial owners (Whaanga and Mahia Township Section 90 & 91 (2000) 34 APGS 12). In that case the Court found that term "beneficial owners" extends to all those persons who can satisfy the Court, either at law or in equity, that they are entitled to an interest in the land. There are eight persons of Maori descent who can claim beneficial ownership to this land. The requirement in section 133(3)(a)/93 is therefore met. Section 133(3i(b)j In terms of section 133(3)(b)/93, I note that the beneficial owners of the land have all been notified of the proposed change of status and given the opportunity to object or consent. Given that the application has been before the court on three separate occasions and that at the last hearing five of the beneficial owners were present at court, I am satisfied that the owners have had an adequate opportunity to consider the proposed change of status. Section 133(3)(c)j The onus is on the applicant to satisfy the Court that either all the owners agree to the proposed change of status, orthat the land can be managed or utilised effectively as Maori freehold land and a sufficient proportion of the owners agree to the proposed change of status.

4 Minute Book 178 NA As is set out above, 7 out of nine of the beneficial owners support the change of status, whereas 2 out of nine oppose it. Accordingly, because there is not unanimous support for the application the applicant needs to satisfy the Court that the requirement in section 133(3)(c)(ii)/93 has been met. Section 133(3)(c)(jj)! The first part of section 133(3)(c)(ii)/93 requires the applicant to show that the land can be managed or utilised effectively as Maori freehold land. 21. It is interesting to note the difference in wording between section 133(3)(c)(ii)/93 and section 136(1 )(d)/93. Section 136(1 )(d)/93 provides that if an applicant wishes to have the status of land changed from Maori freehold land to general land, then the Court must be satisfied that the land can be managed or utilised "more" effectively as general land. 22. The word "more" is not present in section 133(3)(c)(ii)/93. In other words the applicant need not satisfy the Court that the land can be utilised or managed "more" effectively if it is changed to Maori land. 23. The case law dealing with a change of status to general land from Maori freehold land clearly recognises the onus upon the applicant to provide evidence of more effective management and utilisation as general land. (Re Oromahoe 17B1 & 17B26 APWH 84-88). 24. As the word "more" is not in section 133(3)(c)(ii)/93 the same evidential burden is not present for the applicant. This was accepted by counsel as shown in the following exchange on 6 August 2004: Court: It is interesting just on that point and there are a number of other issues. But seeing as we are on this point, If the land is changed from Maori to general land then the Court has to be satisfied that it is going to be more effectively used as general land Mr Coleman: The word more. Court: That is not here in this case. Mr Coleman: WeIll bow to your knowledge of the section Sir. But just as a matter of common sense one would feel that you shouldn't make the change unless the more is implied Court: But the more is not there. Mr Coleman: VelJl well Sir. Court: Whereas it is in the other section. Mr Coleman: Well if you have to give effect to eveljl word in the section you do prevail on that one Sir.

5 Minute Bool<: 178 NA 30 Court: The change of status from Maori to general says 'the land can be managed or utilised more effectively as general land. " Now the word more as I said it not in that section 133/93 and the fact that II is in section 136/93 there must have been a reason for that. Mr Coleman: Yes Sir. I have to throw myself back on the question of sufficient proportion of the owners agree. 25. In this case the applicant gave evidence that the land is presently being leased to Mr Charlton and that he believed that arrangement could continue if the status of the land was changed. The Court also heard that Mr Charlton is a successful dairy farmer who is paying proper market rental. No evidence was adduced contradicting the applicant. Having regard to the evidence presented to the Court I am satisfied that if the status of the land changed to Maori freehold land it could continue to be managed or utilised effectively. 26. This now leaves the issue of whether a sufficient proportion of the owners agree to the proposed change of status as set out in the second part of section 133(2)(c)(ii)/93. Of the present owners, 7/9 agree to the change and 2/9 oppose the change. That is, 77.8% of the owners in number support the application and 22.2% oppose. In shareholding, 62.5% support the application and 37.5% oppose. Therefore, the majority of owners both in number and by shares support the change of status. The question that has to be asked is whether those in support constitute a sufficient proportion of the owners. 27. Based solely on the numbers set out I consider that they do. However, one should also consider the numerical support alongside the principles set out in the preamble, section 2 and section 17 of Te Ture VVhenua Maori Act Section 2(2)/93 provides that the 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. Section 17(1)(b)/93 provides as a primary objective the effective use, management, and development, by or on behalf of the owners, of Maori land and general land owned by Maori. Of note are subsections 17(2)(c) and (t), which state that the Court shall seek to determine or facilitate the settlement of disputes and other matters among the owners of any land and shall promote practical solutions arising in the use or management of any land. 29. In Whaanga and Mahia Township Section 90 & 91 the Maori Appellate Court considered that the interpretation of a whether a sufficient proportion of owners agree to the proposed status is a matter of degree. In the context of the case before it, the Maori Appellate Court stated that "[t]he Court therefore must draw its conclusions to some extent from the merits of the application and the opinions of those owners who have been consulted".

6 Minute Book: 178 NA In this application, both those in support of the application and those opposed to it expressed their desire to retain their interest in the land. There was a strong theme of retaining the land within the whanau for future generations. The applicant was concerned, however, that as general land Eleanor and Myra could choose to sell their shares in the land and they could sell them to an outsider. The applicant and those supporting his application were quite emphatic that they did not want the land broken up. 31. With the lands current status an owner can sell to whomever they please without offering a right of first refusal to any of the other owners. If the status were changed to Maori land an owner seeking to alienate an interest in that land would have to offer a right of first refusal to members of the preferred class of alienee. The only other way would be to sell the entire block, which requires not less that 75% agreement of all the owners. 32. I have considered the arguments of those in support of the change in status and the arguments of Myra McKay and Eleanor Rautahi, who wish the status to remain as general land. Despite their opposite positions there is common ground between them. Both sides wish to protect their interests. 33. By changing the status of the land to Maori freehold land such protections could be easily put in place. For example the owners could make an application for an ahu whenua trust, whereby trustees could be appointed to negotiate on behalf of the owners. Alternatively a whanau trust for the owners respective shares could be put in place, and that would mean that the shares could not be broken down any further and could be protected for the owners' descendants. 34. Accordingly, I consider that the general agreement of the owners for retaining this land as their turangawaewae supports a finding that a sufficient proportion of the owners agree to the change of status. Based on the current relationship between the respective parties, and despite the assurances from those opposed to the change of status that they have no desire to sell their interest, I find that the retention and utilisation of this land would be better achieved by changing its status. Section 133(3){d)j The evidence received demonstrates that Kaitoki 2C2B Block has historically been considered Maori land and that its Maori owners have had a long association with it. The land was only changed to general land by a unilateral act under Part I of the Maori Affairs Amendment Act I therefore consider that it is desirable to change the status having regard to its history, the identity of the owners, and their association with it. Conclusion 36. Having regard to the above discussion, I now order that pursuant to section 133/93 the status of Kaitoki 2C2B be declared Maori freehold land.

7 Minute Book: 178 NA I also note that following completion of the above decision but prior to the distribution of the decision to the parties, the Court received a Memorandum from Mr Poole under cover of letter of 14 October The Memorandum seeks a judicial conference to consider a proposal to subdivide by two of the owners who oppose the change of status. The decision does not affect the parties' ability to apply for a partition. Should Mr Poole's clients, still wish to have a conference they should advise the case manager to arrange one. 38. A copy of this decision is to go to all parties and Mr Poole. WWlsaac Deputy Chief Judge