IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV [2015] NZHC COLIN POTANGOTANGO HANITA PAKI Plaintiff

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV [2015] NZHC 2535 UNDER the Judicature Amendment Act 1972 IN THE MATTER BETWEEN AND of a decision of the Māori Land Court dated 26 November 2012 and actions of the other defendants between that date and 4 August 2013 COLIN POTANGOTANGO HANITA PAKI Plaintiff MAORI LAND COURT First Defendant JONATHAN PROCTOR AND OTHERS Second Defendants HOROWHENUA DISTRICT COUNCIL Third Defendant HORIZONS REGIONAL COUNCIL Fourth Defendant THE LAKE HOROWHENUA DOMAIN BOARD Fifth Defendant DIRECTOR-GENERAL OF CONSERVATION Sixth defendant Hearing: 23 March 2015 (Final post-trial materials received 17 June 2015) Counsel: G D S Taylor for Plaintiff No appearance for First and Second Defendants D G Randal and L M Bazalo for Third and Fifth Defendants S Johnston for Fourth Defendant K Muller and H Baille for Sixth Defendant Judgment: 14 October 2015 PAKI v MAORI LAND COURT [2015] NZHC 2535 [14 October 2015]

2 JUDGMENT OF CLIFFORD J TABLE OF CONTENTS Introduction... [1] Context... [9] Participation at the hearing... [41] Did the Māori Land Court have power to declare terms for the Lake Horowhenua Trust as it purported to do in the 2012 Decision?... [51] If the Māori Land Court did have that power, is its decision doing so void for error in law?... [92] Was the Domain Board properly constituted when it decided to enter into the Accord?... [95] Costs... [106] Introduction [1] The plaintiff, Colin Paki, is a member of the Muaupoko iwi of Horowhenua. [2] The bed of Lake Horowhenua, together with what is now known as the dewatered area 1 (a further one-chain strip of land around the original margin of the Lake and the bed of the Hokio Stream and certain adjoining lands) are owned by the second defendants in trust (the Lake Horowhenua Trust) for members of Muaupoko who have beneficial interests in land within the Horowhenua XI block. [3] Mr Paki is one such member of Muaupoko. [4] Lake Horowhenua is a much degraded, shallow, coastal lake. It was not always so. In August 2013 the second to sixth defendants entered into an accord providing for the restoration of Lake Horowhenua as taonga that holds pride of place in the Horowhenua community (the Accord). [5] In these proceedings Mr Paki challenges the Accord by reference to what he terms six reviewable actions. In effect he says that: 1 The dewatered area was created when the Lake level was lowered by catchment board dredging of the Hokio Stream, which runs from the Lake to the sea.

3 (a) the trustees of the Lake Horowhenua Trust, the second defendants, acted unlawfully in agreeing to the Accord, because the Lake Horowhenua Trust is currently unlawfully constituted by reason of the unlawfulness of the Māori 2 Land Court s decision on 26 November 2012 (the 2012 Decision) 3 ; and (b) the Domain Board, the fifth defendant, acted unlawfully when it decided to enter into the Accord, because it did not act in accordance with provisions relating to the role of the representatives of Muaupoko. [6] By agreement, the parties have asked the Court to consider, as provided by subpart 4 of Part 10 of the High Court Rules, three preliminary questions. Those questions are: (1) Whether the Māori Land Court had jurisdiction under either of Te Ture Whenua Māori Act 1993 or the Trustee Act 1956 to constitute 4 a trust in respect of the trust established by s 18 of the Reserves and Other Lands Disposal Act 1956 or to alter its terms under those Acts. (2) Whether the Māori Land Court, when purporting to constitute the Lake Horowhenua Trust, failed to consider a relevant factor, namely the Reserves and Other Lands Disposal Act 1956 and considered an irrelevant factor, namely the 1984 decision, 5 thereby rendering the Court s decision void. (3) Whether, in order to make the decision to enter the Accord, the Domain Board needed to be constituted of one more Muaupoko member than Council members plus a Department of Conservation representative as chair I have followed the Māori Land Court and adopted the use of the macron in the word Māori throughout this judgment. Procter and others Horowhenua 11 (2012) 293 Aotea MB 165. The use of the word constitute is a little presumptive. The Lake Horowhenua Trust was originally constituted, as discussed in more detail below, by the Māori Land Court in It was confirmed and/or reconstituted by the Reserves and Other Lands Disposals Act One central issue here is the proper characterisation of the effect of the 1956 legislation as regards the Lake Horowhenua Trust. The phrase the 1984 decision refers to a decision of the Māori Land Court of 3 December that year (Alex Maremare Horowhenua 11 (1984) 87 Otai MB 252) which, amongst other things, appointed seven new trustees to the Lake Horowhenua Trust pursuant to s 443 of the Māori Affairs Act By this is meant whether at all meetings of the Domain Board, there must be an equal number of Muaupoko representatives as those of the Horowhenua District Council and the Department of Conservation (taken together).

4 [7] The parties consider that such questions can be answered without discovery or affidavit evidence. Once this Court has provided the answers to those questions, some form of alternative dispute resolution is proposed. [8] In order to answer those questions, however, some context is required. That context is the history of Lake Horowhenua as found in the legislative record, and in the numerous decisions of the Māori Land Court dealing with the Lake. That history has been set out in detail on a number of occasions in the Māori Land Court. 7 I do not want to record that history in greater detail than is necessary. Moreover, that history is complex and not easy to record with great certainty. However, those preliminary questions, and in particular the first, can only be answered when that legal history is properly understood. Context [9] Lake Horowhenua has long been a source of contention. [10] Since at least 1872 the Native Land Court, the Māori Appellate Court and more recently the Māori Land Court have had before them a series of competing claims relating to the Lake and surrounding Horowhenua land. [11] In 1873 the Native Land Court determined that Muaupoko were the owners of the Horowhenua Block, of which Lake Horowhenua and its environs formed a part, save for a small block of 100 acres known as Raumatangi which vested in certain Ngati Raukawa. Subsequently a certificate of title to the Horowhenua Block was issued in the name of Major Kemp/Meiha Keepa, and a list of the names of the 143 persons considered at that time to be Muaupoko were endorsed on the back of that certificate. That decision caused controversy, both within Muaupoko, and between Muaupoko and other Māori. [12] The Horowhenua Block was partitioned by the Native Land Court in Pursuant to that partition, a division of the Horowhenua Block called Horowhenua No XI (which includes Lake Horowhenua and its surrounding lands, including the 7 See, for example, by Judge Smith in 1982 Horowhenua 11 (1982) 84 Otaki MB 258 and Judge Marumaru in Horowhenua 11 (1989) 10 Aotea MB 177.

5 Hokio Stream from the Lake to the sea) was vested in Meiha Keepa and Warena Hunia. A certificate of title under the Land Transfer Act 1882 subsequently issued in their names. Warena Hunia later applied to the Native Land Court for a further partition of Horowhenua No XI between himself and Meiha Keepa, and attempted to deal with his share as his own property. Meiha Keepa, and certain Muaupoko, brought suit on behalf of all Muaupoko interested in Horowhenua No XI for a declaration that Keepa and Hunia were trustees of that land for the 143 beneficiaries. [13] In Warena Hunia v Meiha Keepa, 8 the Court of Appeal upheld the decision of Chief Justice Prendergast that the registered proprietors, Keepa and Hunia, were indeed trustees. At the same time, the Court said that any terms of trust were too uncertain to be enforced. As the original vesting of No XI in Hunia and Keepa had been to effect the terms of a voluntary grant made by the beneficial owners, the Court found that grant had been on terms that the grantors were to retain that beneficial interest. Therefore, the failure of that trust gave rise to a resulting trust in their favour. Practically the result will be the same as if the Trust had been that insisted on by [Meiha Keepa]. 9 The Court of Appeal found that the trustees held the land for the parties in whom, and to the extent to which, the property in the land was vested before the allotment. That is, it was held on trust for those Muaupoko who, but for their consent to the allotment, would have had their rights ascertained and defined by the Land Court. That task of definition was, therefore, still to be performed. [14] The Court of Appeal s decision was released on 17 May On 31 October that year Parliament passed the Horowhenua Block Act That Act froze dealings in Horowhenua Block lands, declaring those lands to be absolutely inalienable in any manner howsoever until after the last day of the then next session of Parliament. That Act also provided for a Royal Commission (the Horowhenua Commission) to be established to inquire into the sale by Māori of Horowhenua Block lands and as to the trusts, if any, to which those lands were subject. 8 9 Warena Hunia v Meiha Keepa (1895) 14 NZLR 71 (CA). At 95.

6 [15] The Horowhenua Commission reported to the Government in May In doing so, it noted Muaupoko s traditional occupation of the lands comprising the Horowhenua Block, their dispossession from those lands by Ngati Raukawa and Ngati Toa and their return to those lands with the consent of the Ngati Raukawa chief, Te Whatanui. Of the Native Land Court s 1873 decision it observed: 10 Te Whatanui died, and after his death, trouble began between the Muaupoko, who asserted that the land was theirs, and members of the Ngatiraukawa, who had settled upon it. Houses were burned, and ultimately a Native Land Court sat in 1873, to investigate the claims of the different tribes to the ownership of, amongst other lands, what is now the Horowhenua Block. The result of the proceedings in that Court was to adjudge the Muaupoko Tribe the owners of the Horowhenua Block, with the exception of a small block of 100 acres known as Raumatangi, situated between the Hokio Stream and the Horowhenua Lake, which was declared to belong to certain representatives of the Te Whatanui already referred to. The Court of 1873 having found the Muaupoko entitled as already mentioned, directed a certificate of title to issue under the 17th section of The Native Lands Act, 1867, in the name of Kemp, and endorsed on the back of that certificate the names of the persons who were found to be members of the tribe. It is a matter of great regret that much of the difficulty which has arisen in connection with this block, is directly traceable to the non-exercise by the Native Land [Court] the powers vested in them. In 1873 the Court did not, as it seems to us it should have done, ascertain the particulars of the interests of the persons named in, and on the back of, the certificate which it ordered to issue. [16] It is more than a little ironic that these proceedings involve a challenge to powers exercised by the Māori Land Court in 2012 to resolve current difficulties that can be traced back to the very difficulty which the Horowhenua Commission confronted in 1896, and which it said was, in turn, directly traceable to the failure of the Native Land Court to exercise powers vested in it. [17] The Commission made various findings as to the ownership, both legal and beneficial, of the various subdivisions of the Horowhenua Block that by then existed, including Block XI. The Horowhenua Block Act 1896 was enacted to give effect to those findings. In particular, the Appellate Court was to deal with the claims of 48 persons, named in the Second Schedule to that Act, as persons whose names were omitted from the Original Title to the Horowhenua Block. Pursuant to that Act, 10 Report and Evidence of the Horowhenua Commission (AJHR, 1896, Vol III) at G-2 at 4.

7 the Māori Appellate Court in 1898 determined the owners of some 13,000 acres of Block XI, including Lake Horowhenua, and the relative shares of those owners. 11 [18] In its decision the Appellate Court dealt with the Block XI lands by reference to three schedules, Schedules B, C and D. Schedule B referenced Block XI, exclusive of the state farm and the area of 210 acres allotted to Raukawa (being the land described in the Fifth Schedule to the Horowhenua Block 1896) and of the Horowhenua Lake and the reservation of one chain around the Lake and the wasteland of sand drift. 12 [19] Schedules C and D then separately referenced: All that parcel of land covered by water and known as the Horowhenua Lake and a parcel of land around the said Lake, one chain wide estimated in the aggregate to contain one thousand acres (1,000 acres) (Schedule C) and All that parcel of land situated on the western side of subdivision XI adjacent to the sea coast and covered with sand drift estimated to contain two thousand and seventy eight acres (2,078 acres). (Schedule D) [20] The body of the order confirmed the Appellate Court s 4 March 1887 decision that Keepa and Hunia were owners on trust. It vested the land described in Schedule B in some 81 named persons in fee simple as tenants in common in the proportions set out in Schedule A. It then vested the lands referenced in Schedules C and D in those same persons, again in fee simple as tenants in common, but this time in equal shares. [21] Two weeks later, on 19 October 1898, the Native Land Court ordered, as part of the partition of Block XI, that the bed of Lake Horowhenua (some 901 acres) be vested in 14 Muaupoko as a reserve for the purpose of a Fishery easement for all the members of the Muaupoko Tribe who may now or hereafter own any part of Horowhenua No XI, 13 subject to the provisions of s 7 of the Native Trusts and Claims Definition and Registration Act That section provided: 7. At the close of the proceedings upon an investigation of title to Native land, or during proceedings upon partition, the Court may, if a Hunia Horowhenua 11 (1898) Otaki Appellate MB 377. Those are my transcriptions of the copies of the handwritten original entries in the minute book. Horowhenua 11 (1898) 37 Otaki MB 10.

8 majority in number of the Native owners signify their assent thereto in writing, order that a part of such land or Native land be set apart and vested in one or more persons, who shall hold the same upon trust for such religious, educational, or other purposes of general or public utility as shall be specified in such order. The land the subject of such order shall be and remain incapable of alienation in any way whatsoever without the consent of a Judge; such consent shall not be given unless a Judge is satisfied that the land is no longer needed for the purposes for which it was originally set apart as aforesaid. The Court may, on the death of any of the persons so appointed, make other appointments in substitution thereof, and may, for good cause shown, remove any person in whom the land may be vested by virtue of any order, and appoint some other person as a substitute for the person so removed, and the parcel of land shall thereupon vest in the person or persons so appointed without any conveyance, and shall be held by him or them subject to the trusts expressed in the original order. [22] It would therefore appear that, when rights to ownership of Horowhenua No XI generally were determined in 1898 by the Māori Appellate Court, it was agreed that the Lake should not be subject to the process whereby alienable titles under the Land Transfer Act 1885 would issue, but rather should be held inalienably by the 14 trustees on trust for all the Muaupoko owners of Horowhenua No XI for the purposes of fishing. [23] The lack of any detail regarding the constitution and operation of that trust is important. That is the first source of contention reflected in these proceedings. Inevitably, difficulties arose. A recent judgment of Judge Harvey concerning Lake Horowhenua confirms that: 14 Proceedings concerning Lake Horowhenua have been before the courts since the late nineteenth century. Issues of mandate, control and authority have continued to vex the owners of the land, the beneficiaries of the trust and the tribal custodians for generations. [24] The origins of the second source of contention regarding Lake Horowhenua reflected in these proceedings can be traced to The Horowhenua Lake Act of that year declared the Lake bed and certain surrounding land to be a public recreation reserve under the control of a board to be appointed by the Government. The long title and preamble to that Act read: An Act to make the Horowhenua Lake available as a Place of Public Resort 14 Taueki v McMillan and ors Horowhenua 11 (2014) 324 Aotea 144 at [124]..

9 WHEREAS it is expedient that the Horowhenua Lake should be made available as a place of resort for His Majesty s subjects of both races, in as far as it is possible to do so without unduly interfering with the fishing and other rights of the Native owners thereof. [25] That Act s operative provisions read: 2. The Horowhenua Lake, containing nine hundred and fifty-one acres, more or less, is hereby declared to be a public recreation reserve, to be under the control of a Board, one-third at least of the members of which shall be Māoris, to be appointed by the Governor, subject to the provisions following:- (a) The Native owners 15 shall at all times have the free and unrestricted use of the Lake and of their fishing rights over the Lake, but so as not to interfere with the full and free use of the Lake for aquatic sports and pleasures. (b) No person shall be allowed to shoot or destroy birds or game of any kind on the Lake or within the area of the said lake reserve. 3. The Governor may acquire from the Native owners any area not exceeding ten acres adjacent to the lake as a site for boat-sheds and other buildings necessary to more effectually carry out the provisions of this Act. [26] That Board was to have the powers and functions of a domain board under the Public Domains Act As can be seen, the Lake Horowhenua Act did not directly address the relationship between the (trustee) owners of the Lake bed, the beneficiaries of that trust, and the Domain Board including its three Māori members. [27] Not surprisingly, subsequent years saw growing conflict between Muaupoko, the Domain Board and various territorial authorities. [28] Doubts arose as to the ownership of the Lake bed and the surrounding areas. A Committee of Inquiry was appointed in 1934 to investigate these problems. The Committee made various recommendations, including that ownership of the land covered by the Lake and the surrounding area be confirmed as belonging to the trustees of the Lake Horowhenua Trust. Disagreement on other matters meant that recommendation was never given effect. 15 The term the Native owners is not defined in the Horowhenua Lake Act.

10 [29] Legislation in 1916, and addressed various aspects of the complex inter-relationships of the Māori owners and the Domain Board, and the land they owned. [30] Over time, drainage work on the Hokio Stream lowered the level of the Lake, destroying shellfish beds and creating a dewatered area around the Lake. The adjoining local sewerage treatment plant discharged untreated sewerage into the Lake during floods. The Lake was degraded. [31] The governance arrangements for the Lake became dysfunctional. The original trustees of the Lake Horowhenua Trust all died, without replacement. By the late 1930s, the Domain Board had ceased to function as no Māori were willing to accept nomination to it. [32] In 1951 the Māori Land Court, acting under s 29 of the Māori Land Act 1931, appointed 14 new trustees as owners of the Lake bed. 19 [33] In 1956 a concerted effort was made to resolve matters. The Reserves and Other Lands Disposal Act 1956 (the ROLD Act 1956) addressed the legal status of some 21 areas of land throughout New Zealand. Section 18 dealt with Lake Horowhenua. It recorded the difficult history of the Lake since the Māori Appellate Court s 1898 partition order. Having defined the terms Lake, Dewatered area and Hokio Stream, s 18(2) first, and notwithstanding anything to the contrary in any Act or rule of law : (a) declared that the Lake bed, the islands in the Lake, the dewatered area adjoining the Lake, the one chain strip around the original margin of the Lake and (subject to some exceptions) the bed of the Hokio Stream and the one chain access strip on the north side of that stream, were and always had been owned by the Māori owners, that is, the Reserves and Other Lands Disposal and Public Bodies Empowering Act 1916, s 97. Reserves and Other Lands Disposal and Public Bodies Empowering Act 1917, s 64. Local Legislation Act 1926, s 23. Horowhenua 11 (1951) 38 Wellington MB 65.

11 Muaupoko recognised as the owners of any part of Block XI and, as such, the beneficiaries of the Lake Horowhenua Trust; and (b) vested that land in the 1951 trustees in trust for the said Māori owners. [34] Reflecting the complexity of rights by then existing as regards Lake Horowhenua, s 18 went on to provide: (4) Notwithstanding the declaration of any land as being in Māori ownership under this section, there is hereby reserved to the public at all times and from time to time the free right of access over and the use and enjoyment of the land fourthly described 20 in subsection thirteen of this section. (5) Notwithstanding anything to the contrary in any Act or rule of law, the surface waters of the lake together with the land firstly 21 and fourthly described in subsection thirteen of this section, are hereby declared to be a public domain subject to the provisions of Part III of the Reserves and Domains Act 1953: Provided that such declaration shall not affect the Māori title to the bed of the lake or the land fourthly described in subsection thirteen of this section: Provided further that the Māori owners shall at all times and from time to time have the free and unrestricted use of the lake and the land fourthly described in subsection thirteen of this section and of their fishing rights over the lake and the Hokio Stream, but so as not to interfere with the reasonable rights of the public, as may be determined by the Domain Board constituted under this section, to use as a public domain the lake and the said land fourthly described. (6) Nothing herein contained shall in any way affect the fishing rights granted pursuant to section nine of the Horowhenua Block Act [35] The new Domain Board was to consist of: 18(8) (a) Four persons appointed by the Minister on the recommendation of the Muaupoko Māori Tribe: The land fourthly described comprises the dewatered area, together with part of the one-chain strip around the original margin of the Lake. The land firstly described comprises, as best as I understand matters, land the Crown had acquired pursuant to s 3 of the Horowhenua Lake Act 1905.

12 (b) (c) (d) One person appointed by the Minister on the recommendation of the Horowhenua County Council: Two persons appointed by the Minister on the recommendation of the Levin Borough Council: The Commissioner of Crown Lands for the Land District of Wellington, ex officio, who shall be Chairman. [36] The Lake Horowhenua Trust therefore has its origins in both the Native Land Court s 1898 partition decision and s 18 of the ROLD Act In a 2014 decision on an application to set aside the Lake Block as a Māori reservation as a wahi tapu, 22 Judge Harvey reviewed the various proceedings he had presided over concerning the Lake in the preceding ten years. Reflecting those origins, the Judge commented: [80] On reflection, it appears that there have been parallel lines of governing legislation running in relation to Lake Horowhenua. The block appears to have remained Māori freehold land and indeed the ROLD Act makes it clear that the land underlying the lake has always been owned by the Māori owners. There exist features in the Horowhenua Lake reserve that are common to Māori Reservations, such as that the land is vested in trustees, its purpose is a fishing easement, the benefit is for the members of the Muaūpoko tribe who are or will subsequently be owners in the block, that the land is inalienable, and that the Court has the power to appoint and replace trustees. The fact that replacements of trustees have continued to occur under successive Māori Land legislation suggests that the Court retains a role in relation to the reserve. Whether this stretches so far as to conclude that the reserve is a Māori Reservation in terms of the Act is arguable. [81] Factors which do not accord with what is generally understood in terms of Māori Reservations is the existence of legislation specific to Lake Horowhenua, combined with the unique interplay between ownership remaining with the Māori owners but use rights being granted to the public. In addition, although there exist mechanisms to bring the lake under the legislative provisions specific to Māori reservations, there does not appear to have been any attempts to do so, for example by the issue of an Order in Council or similar device. [37] In the years since 1956 and notwithstanding the provisions of the ROLD Act of that year matters did not improve greatly, either as regards the complicated governance arrangements, the exercise and enjoyment of the rights they reflect or the condition of Lake Horowhenua itself. 22 Taueki v McMillan, above n 14.

13 [38] During these years the appointment of trustees has been a recurring theme of proceedings before the Māori Land Court. Most recently Judge Harvey declined to intervene in the outcome of the election process, and accordingly appointed the 11 highest polling candidates as trustees of the Lake Horowhenua Trust for a term of three years. At the same time, and faced yet again with the reality that the Lake Horowhenua Trust was dysfunctional, the Judge made an order applying terms of trust. 23 It is clear from the decision that those terms were to be interim, and were put in place to provide a clear and certain framework whereby the beneficiaries of the Lake Horowhenua Trust could consider and reach agreement on permanent terms for that trust. It is that decision which Mr Paki says is unlawful and which is the subject of the first two questions. [39] As already noted, in August 2013 the Accord was entered into with respect to the Lake between the trustees of the Lake Horowhenua Trust (the second defendants), the Lake Horowhenua Domain Board (the fifth defendant), the Horowhenua District Council (the third defendant), the Horizons Regional Council (the fourth defendant, the successor to the Levin Borough Council and the Horowhenua County Council respectively) and sixth defendant (the Director-General of Conservation, the successor to the Commissioner of Crown Lands). That Accord, He Hokioi Rerenga Tahi, 24 is a legally non-binding document intended to provide a framework whereby the interests of Muaupoko, as tangata whenua, in the Lake through the Lake Horowhenua Trust are recognised in the governance of the Lake and, under that governance, the Lake can be restored to become a source of pride for all people of Horowhenua. [40] As can now been seen, the first two questions I am to answer crystallise the core of Mr Paki s challenge to the lawfulness of the terms of trust of the Lake Horowhenua Trust recently declared by Judge Harvey. The third crystallises the challenge to the decision of the Domain Board to enter the Accord Above n 3. He Hokioi Rerenga Tahi is a whakatauki of Muaupoko An eagle s flight is seen but once. It refers to the legendary giant eagle that preyed on moa in the Horowhenua region. The whakatauki is recorded in the Accord as best describing the overarching purpose of coming together to collaborate, progress and resolve, once and for all, the condition of Lake Horowhenua.

14 Participation at the hearing [41] As is customary, the first defendant, the Māori Land Court, abides the decision of this Court. [42] The second defendants, the trustees of the Lake Horowhenua Trust, were not legally represented at the hearing, although their current chairperson, Mr Matthew Sword, was personally present for part of the hearing. During the hearing, I enquired of counsel for the third defendant, the Horowhenua District Council, as to the position of those trustees. Mr Sword heard that question and, with leave from me, provided a memorandum to the Court from the Lake Horowhenua Trust. Put simply, in that memorandum Mr Sword: (a) says that a lack of financial resources stood in the way of the Lake Horowhenua Trust obtaining legal representation for these proceedings; (b) explains the understandable impact on the Trust of the numerous proceedings that it has been involved in in recent years; (c) confirms the Lake Horowhenua Trust s full support for He Hokio Re Rangitahi, of which he was chair; and (d) further explains that the Lake Horowhenua Trust was a founding partner of that Accord, and now leads it. [43] Mr Sword annexed to that memorandum a copy of the Accord, signed not only by the trustees of the Lake Horowhenua Trust, but also by many of its beneficiaries individually showing, in his words, the depth of support for the steps being taken by the Trust to restore the health of our Lake. [44] Mr Sword concluded by advising the Court that the trustees of the Lake Horowhenua Trust fully support our Accord partners (the third to sixth defendants) in their efforts to uphold the Lake Horowhenua Accord as part of these proceedings.

15 [45] The third and fifth defendants, the Horowhenua District Council and the Lake Horowhenua Domain Board, were jointly represented, reflecting their common interest in the proceedings. [46] The sixth defendant was also represented at the hearing, but limited his submissions to the issues raised by the third question, relating to the Domain Board s decision to enter the Accord. [47] The fourth defendant instructed counsel to maintain a watching brief on its behalf at the hearing. [48] At the hearing, I suggested that an affidavit might be able to be provided by a Deputy Registrar on behalf of the Māori Land Court, explaining the more recent history of litigation involving the Lake, and the extent to which considerations relating to or arising from the difficulties the Trust faced because it had no express terms had been considered. An affidavit from Blair Kotokoto Anderson, District Manager and Registrar of the Aotea District of the Māori Land Court, was subsequently filed. That affidavit has been of particular help to me. [49] I turn now to the three questions. [50] In doing so, I am in effect assuming that Mr Paki s judicial review application raises justiciable issues. I am not at all certain that that is, in fact, the case. Given that the Accord has no legal effect, it is difficult to see that there are issues of illegality for that application to bite on. The Accord simply sets down a non-binding framework against which each of the parties could, in the future, make justiciable decisions. If the answers I provide to the questions do not enable the parties to progress matters satisfactorily without further recourse to these proceedings, that issue can be confronted at a later date. Did the Māori Land Court have power to declare terms for the Lake Horowhenua Trust as it purported to do in the 2012 Decision? [51] In the 2012 Decision Judge Harvey recorded his decision declaring terms of trust for the Lake Horowhenua Trust in the following manner:

16 Should the Court apply terms of trust? [28] Mr Rudd argues that if only the Court had accepted a trust order approved by the beneficiaries by show of hands then the current challenges over trustee rotation, election and appointment could have been avoided. That stance conflicts with Mr Rudd s strident opposition expressed at the 2011 general meeting which considered the adoption of a draft trust order. To say in 2012 that somehow it was the Court s responsibility to impose the 2009 draft of a trust order against the wishes of beneficiaries including the subsequent opposition of Mr Rudd appears somewhat contradictory. [29] That said, it may be that as this trust has not been subject to statutory review per section 351 of the Act that I should simply order terms of trust based on the more comprehensive examples currently used by the Court in whenua tōpu trusts where a high degree of prescription has been included. Such prescription appears to be necessary for those trusts where there is a history of dysfunction and dispute over elementary processes including the convening, recording and facilitating of meetings as well as issues like accountability of trust funds and actual or perceived conflicts of interest and how they can be appropriately managed. The uncontroverted evidence is that this trust does not function effectively to the point where independent facilitator s of trustee meetings is required. On this point at least all of the trustees are agreed. [30] Proposed terms of trust have been with the trustees and beneficiaries before Detailed procedures for even the most mundane matters of convening meetings, the notice required and meeting procedures are clearly required for this trust. As I mentioned in a previous judgment, without the participation of Court staff to facilitate trustee meetings, such hui would simply not proceed or would soon break down into open conflict. While I accept that the purpose and objects of the trust remain a work in progress from the perspective of some beneficiaries, at the very least the trustees will be assisted by the provision of detailed terms of trust that focus on the administration and management of trustee and beneficiary meetings. [31] That said, any terms of trust that will apply to the trustees from the date of this judgment should properly be subject to ongoing discussion with the beneficiaries at the earliest opportunity. To that end I direct the trustees to raise at the next general meeting of beneficiaries for discussion the terms of trust annex[ed] to this decision. For the avoidance of doubt, the trust order will operate from the issue of this decision and all trustees and the beneficiaries are to be bound by its terms. [32] For completeness I direct Court staff to attend the next meeting of trustees and for Mr Hau to facilitate the hui. The agenda should include the election of officers namely a chairperson, deputy if required and a secretary. The issue of conflicts of interest will also need to be dealt with including the use of a conflicts register. The court staff should again take the minutes of the meeting and provide me with a report on the outcomes as soon as possible. [52] In more formal terms, Judge Harvey concluded:

17 [34] Terms of trust concerning the administration and management of the trust are annexed to this judgment. The trustees are directed to adhere to these terms of trust without exception. The trust order will be discussed at the next general meeting of beneficiaries of the trust to be held within 12 months from the date of this decision where the trustees may consider any proposals for variation of trust to ensure that the trust order remains responsive to and relevant for the aspirations of the beneficiaries. [53] The subsequently sealed Court order read, as relevant, as follows: WHEREAS on the 3 rd day of December 1984 at 87 Otaki MB the Court made an order pursuant to section 443 of the Māori Affairs Act 1953 vesting the land known as Part Horowhenua 11 (Lake) in responsible trustees AND WHEREAS it is necessary that the trust declared be set out in a separate trust order NOW THEREFORE the Court, pursuant to Section 219 of Te Ture Whenua Māori Act 1993 HEREBY ORDERS AND DECLARES that the trustees shall hold and administer the said land upon the trusts as set out in the Schedule hereto [54] Notwithstanding the Judge s reference in his written judgment to a whenua tōpu trust, as can be seen the Court s formal order was recorded as being made under s 219 of Te Ture Whenua Māori Act 1993 and was described as an ahu whenua order. [55] As filed, Mr Paki s challenge to the lawfulness of the Māori Land Court s decision involves two fundamental propositions: (a) First, s 219 of Te Ture Whenua Māori Act only gives the Court jurisdiction to set out the terms of trusts constituted under Part 12. The Lake Horowhenua Trust is not such a trust, as is by now clear. Therefore the Court had acted without jurisdiction. (b) Secondly, the Lake Horowhenua Trust was constituted under the ROLD Act That Act set out the terms of the trust. The Māori Land Court had no jurisdiction to purport to constitute a trust which already existed by Act of Parliament nor, equally, to vary those statutory terms.

18 [56] Shortly before this Court was scheduled to hear argument, counsel for the Māori Land Court drew the Court s and the parties attention to the fact that, on 29 September 2014, the Māori Land Court had amended the terms of its earlier ahu whenua order relating to Lake Horowhenua. An entry in the Aotea minute book records the Deputy Registrar of the Court being the applicant for an order under s 86 of Te Ture Whenua Māori Act to amend a record of the Court. 25 [57] That application recorded the Court s erroneous reliance on s 219, erroneous because the Lake Horowhenua Trust was not constituted under either Part 12 of that Act or, with reference to s 354 of that Act, s 438 of the Māori Affairs Act The application went on to say: The errors that have been brought to our attention are administrative in nature and do not accurately reflect the Court s decision upon which the order drawn is based. For this reason an order is sought amending the Court order at 293 Aotea MB dated 26 November 2012 as follows: 1. Any reference to section 219 of Te Ture Whenua Māori Act 1993 is to be amended to section 64 of the Trustee Act The wording Ahu Whenua in the title of the Court order is to be deleted. An order is sought amending the Court order at 293 Aotea MB dated 26 November 2012 as set out above. [58] Appended to that formal order is an amended copy of the 2012 Decision and order, reflecting the Court acting under s 64 of the Trustee Act [59] At a telephone conference on 18 March 2015, Mr Taylor, counsel for Mr Paki, confirmed that notwithstanding that shift of the goalposts he would nevertheless be able to make any changes to Mr Paki s case that were necessary in time for the hearing scheduled for 23 March 2015 to proceed. That is what happened. [60] At the hearing, Mr Taylor argued that the Māori Land Court had, by purporting so to correct itself, acknowledged the correctness of Mr Paki s position Deputy Registrar v Māori Land Court (2014) 327 Aotea MB 192. The minute refers to the Trustee Act This is a manifest error. I take it to mean the Trustee Act 1956.

19 The original order was ultra vires. Moreover, it could not be corrected as an administrative error as the Court had purported to do. Therefore, the declaration of terms of trust was legally ineffective. [61] The formulation of the first question, namely whether the Māori Land Court had jurisdiction to constitute an ahu whenua trust in respect of the trust established by s 18 of the Reserves and Other Lands Disposal Act 1956 or alter its terms under the Trustee Act 1956, reflects Mr Taylor s essential argument for Mr Paki. That argument is that in 2015, the Lake Horowhenua Trust is a creature of the ROLD Act That Act was a new dispensation, which restored the pre-eminence of Muaupoko rights to Lake Horowhenua that had, since the passage of the Horowhenua Lake Act 1905, been whittled away. The ROLD Act 1956 had, therefore, created a new trust. Mr Taylor put the position in the following terms: The Horowhenua Block Act 1896, s 5, vested the Block in the owners determined by the Native Land Court in fee simple as tenants-in-common in the shares determined by the Native Land Court ( NLC ). No trust was established by this Act. A trust was established by the 1898 NLC partition order, but only for a fishing easement in favour of all owners of Horowhenua Block 11 The ROLD Act repealed each of the later enactments affecting Lake Horowhenua and its owners. Any pre-existing trust could therefore only be one established by the NLC in 1898 or a private settlement. The trust created by the 1898 partition order is not in respect of ownership of the land, but only in respect of fishing rights. It created a Māori reservation in respect of these fishing rights under the trust, but only in respect of them. The 1951 Māori Land Court decision only substitutes new trustees for those named in 1898 who were by then deceased. The ROLD Act created a trust in respect of the land below the lake and stream s surface, as well as their close surrounding: subs (2) and (3). This is a new trust that had never previously existed. It is submitted that it is unarguable that this is anything other than a completely new trust owing nothing to what went before. It is, beyond argument, a trust established by the ROLD Act. [62] I do not find that argument persuasive. [63] The Horowhenua Block Act 1896 gave the Māori Appellate Court, not the Native Land Court, the task of determining ownership of the Horowhenua Block following the report of the Horowhenua Commission. To provide statutory support for that task at that time, additional legislative foundations were required. Sections 3, 4 and 15 of that Act provide:

20 3. The Native Equitable Owners Act, 1886, and all amendments thereof (hereinafter collectively referred to as the said Act ) are, for the purposes of this Act, and not further or otherwise, revived and re-enacted. 4. To enable cestuis qui trustent to become certificated owners of certain portions of the said block, the provisions of the said Act, excepting section eighteen of The Native Land Court Acts Amendment Act, 1889, shall, notwithstanding anything in the said Act or any other Act now in force to the contrary, apply to Divisions Six, Eleven (less portion known as the State Farm at Levin, containing one thousand five hundred acres, as hereinafter dealt with), Twelve, and Fourteen of the said block, as the said divisions are more particularly described in the First Schedule hereto. In exercising jurisdiction under this section the Court shall deal with the claims of the forty-eight persons named in the Second Schedule as if their names had been included in the list of persons registered under the provisions of the seventeenth section of The Native Lands Act, 1867," as specified in Schedule Six hereto, as the owners of the said block, and may also limit the interest of, or wholly omit from any order made under the provisions of this Act the name of, any person who, having been found to be trustee, has, to the prejudice of the interests of the other owners, or any of them, assumed the position of an absolute owner in respect to any former sale or disposition of any portion or portions of the said block, or for any other sufficient reason. 15. For the purpose of carrying out the provisions of this Act, the Court shall have and may exercise, as the nature of the case requires, in addition to the special powers hereby conferred, all the powers and jurisdiction of the Court under "The Native Land Court Act, 1894," and" The Native Land Laws Amendment Act, 1895." [64] The preamble to the Native Equitable Owners Act 1886 sets the scene: WHEREAS under the Native Lands Act, 1865, certificates of title to, and Crown grants of, certain lands were made in favour of or to Natives nominally as absolute owners: And whereas in many cases such Natives are only entitled and were only intended to be clothed with title as trustees for themselves and others, members of the tribe or hapu or otherwise [65] The Court was given power to determine whether land was held on trust and, if so, to declare who the beneficial owners were. Section 4 then provided: The Court may thereupon make order that the persons so declared entitled to such beneficial ownership shall be owners as tenants in common of the land the subject of such trust, and they shall be deemed to be such owners in like manner as if their names had been inserted in certificate or grant affecting such land.

21 [66] It was pursuant to that restored power that the Māori Appellate Court inquired into and determined the relative interests of the original 143, and the additional 48, named persons to the extent (I infer) that they or their survivors were still living in The Court also relied on the restored s 7. In the case of the Horowhenua Block XI generally the Appellate Court declared the identity of beneficial owners of the shares in which, as tenants in common, they held the fee simple. To that extent, it acted under the powers provided by the equitable owners legislation. In the partition order, however, and pursuant to s 7 of the trusts and claims legislation, the Appellate Court provided for land to be set apart and vested in one or more persons who shall hold the same upon trust. Moreover (and by inference from the terms of s 7) that was done with the agreement of the majority of the persons who, in terms of the Appellate Court s original judgment, would otherwise have had the fee simple of the Lake vested in them as tenants in common in equal shares, albeit to be inalienable. It is also relevant to note that the very purpose of the revived Native Equitable Owners Act 1886 was to determine contested questions relating to the ownership of land. [67] It is therefore not correct to say, as Mr Taylor for Mr Paki suggested, that the 1898 partition was not in respect of ownership of the land, but only in respect of fishing rights. Nor is it correct to say that the ROLD Act 1956 created the Lake Horowhenua Trust. I acknowledge that Act did perfect that Trust by confirming the inclusion of the dewatered area (that is, land no longer comprising the bed of the Lake), and the encircling chain, the Hokio Stream and the one-chain access strip. But that was an addition to the corpus of the Trust, and did not create a new trust. [68] What the ROLD Act did do, as is reflected in the legislation which it repealed, was to create a new dispensation for the Domain and its governance. It may also be, as Mr Taylor argued, that Muaupoko gained greater rights over the

22 Lake, relative to the interests of the Domain Board and the public in general, than had been the case in the past. Given the terms of s 18 it is, however, a little difficult to be certain about that. 27 [69] The Lake Horowhenua Trust is not, therefore, because of the way it was created, beyond the jurisdiction of the Māori Land Court. Rather, that trust has its origins in powers given to the Native Land Court, albeit in this instance exercisable by the Māori Appellate Court. [70] The special character of that trust has been considered by this Court on at least two occasions. In Regional Fisheries Officer v Tukapua, 28 Cooke J described the Lake, and the bed of the Hokio Stream and adjoining lands as being vested in trustees for Māori owners. Not only did those Māori owners co-own all that land, but also they had the right to fish in the Lake and in the Stream. Those were exclusive rights. Moreover, the Judge noted that the ROLD Act 1956 specifically stated that at all times the Māori owners had the free and unrestricted use of their fishing rights over the Lake and the Stream. He described those rights in the following way: 29 They are rights reserved to the Māori owners because of the special history of this area. They may be unique. [71] In another fishing case, Regional Fisheries Officer v Williams, 30 O Regan J emphasised that the ROLD Act 1956 had not created the fishing rights of the Māori owners, but it had only given statutory recognition to them. O Regan J referred to the Horowhenua Lake Act 1905 as giving statutory recognition of and protection to rights already in existence. He also observed, recognising the particular history of this land, that neither Block XI nor the bed of the Hokio Stream had originally been Having said that, in a 1982 judgment Judge Smith (above n 7), in a very helpful discussion of the legal history of Lake Horowhenua, observed: Another point of interest is that theoretically the Muaupoko tribe can control the policy of the Domain Board, the practice of the Commissioner of Crown Lands apparently being to exercise only a casting vote, if necessary. Judge Smith went on to comment on the dissention that existed, at that time, between the Lake trustees and the Muaupoko Māori Committee, on whose recommendation Muaupoko representatives were appointed to the Domain Board by the Minister. Regional Fisheries Officer v Tukapua HC Palmerston North M33-75, 13 June At 3. Regional Fisheries Officer v Williams SC Palmerston North M116-78, 12 December 1978.

23 vested by way of Crown grant. Of interest is his following commentary on the history of the Lake: 31 The rights of piscary which he and the other members of the Muaupoko who own Horowhenua XI Block are as Cooke J. remarked in Tukapua s case unique rights. They are also, insofar as the history of New Zealand and its legislation are concerned old rights. Research by counsel and by me have not unearthed their genesis. I do not find that surprising. They might well have existed prior to the coming of the pakeha. They were asserted in necessarily general terms throughout the years over which the settlement of land was made and in the end they were given statutory recognition. That statute enacted that the Hokio Stream means that stream flowing from the outlet of the lake to the sea. It declared that the bed of that stream (excepting parts alienated or disposed of by the Māori owners) to be and to have always been owned by the Māori owners. The declaration that such was always owned by them, so it seems to me, is statutory recognition that such ownership preceded the advent of the pakeha and the introduction of his artifices for the making of laws and for creating and recording property rights. The statute provided further (s. 12(5)) that the Māori owners shall at all times have their fishing rights over such stream that is from the outlet from the lake to the sea. [72] The question remains, however, whether what the Māori Land Court purported to do in 2012 was within its powers. [73] In Fenwick and Ors v Naera and Eru and Ors 32 the Supreme Court had occasion to consider the nature of the Māori Land Court s jurisdiction over trusts of Māori land. It did so first by recording key provisions of Te Ture Whenua Māori Act. [106] The preamble to the Act states: 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 At 13. Fenwick and others v Naera and Eru and others [2015] NZSC 68.