IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A Sections 18,37, 67, 150 and 151 of Te Ture Whenua Māori Act 1993

Transcription

1 312 Aotea MB 104 IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER Sections 18,37, 67, 150 and 151 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF Waiokura Te Kauae blocks, Section 27-29, 33,34, and Section 111 Block VII Waimate Survey District and Lot 1 Deposited Plan 5603 BETWEEN AND HORI MANUIRIRANGI Applicant PARININIHI KI WAITOTARA INCORPORATION Respondent Hearing: 310 Aotea MB 223 dated 11 October 2013 (Heard at New Plymouth) Appearances: Mr H Manuirirangi in person Mr D Tuuta in person Judgment: 29 November 2013 RESERVED JUDGMENT OF JUDGE L R HARVEY Introduction [1] Hori Manuirirangi on behalf of the Ngāti Tu Hapū Whenua Tōpu Trust seeks an order for the alienation of the Waiokura Te Kauae lands from the Parininihi ki Waitotara Incorporation ( PKW ) to the Trust for the benefit of Ngāti Tu hapū, and for the upkeep of Waiokura Marae. In short Mr Manuirirangi requests that the Court order PKW to transfer title of the lands to the Trust by way of gift or alternatively for some nominal amount that may involve an exchange of shares. [2] PKW opposes the application and says that it has wider responsibilities to all of its shareholders regardless of tribal and hapū affiliation. Moreover, PKW argues that the incorporation was originally established for the benefit of all owners and with the consent of a majority of those individuals who participated in the meetings to create PKW in the 1970s.

2 312 Aotea MB 105 [3] The application was set down for a judicial conference on 23 August 2013 and was subsequently adjourned at the request of PKW. 1 This was because Mr Tuuta, the Chief Executive and Secretary of PKW, would be overseas at the time of the proposed hearing. For completeness I note the (eventually declined) request of the applicant to have the hearing at Waiokura Marae. As I read the papers it appears that the application involves consideration of the determining interests, the alienation of land and the general jurisdiction of the Court. [4] The substantive hearing was held on 11 October 2013 in New Plymouth. 2 The proceedings were adjourned for a written decision to issue. Before then the parties were given a brief period of time within which to file any further submissions. Issue [5] The principal issues for determination are: (a) Does the Court have the jurisdiction to order PKW to vest Waiokura Te Kauae in the Trust taking into account the facts of these proceedings? (b) Should the Court grant the application to vest the land in the Trust? Background [6] The Waiokura Te Kauae Blocks (Section 27-29, Section 33-34, Section and Section 111 Block VII Waimate Survey District and Lot 1 Deposited Plan 5603) are (ha) in size. Currently the blocks are owned by the proprietors of PKW. [7] The blocks have a long history. According to the applicant they were confiscated in 1863 and awarded to Manaia Hukanui in 1881 under the West Coast Settlement (North Island) Act The land was subsequently placed under the trusteeship of the Public Trustee per the West Coast Settlement legislation. [8] In 1976 the lands were transferred to PKW. According to Mr Tuuta on behalf of PKW the West Coast Settlement Reserves Act 1881 vested management of the reserves in the Public Trustee to allocate to Māori such land as necessary for their occupation and to Aotea MB 225 (307 AOT 225) 310 Aotea MB 223 (310 AOT 223)

3 312 Aotea MB 106 lease the balance to Europeans generally on perpetual terms. Subsequent legislative amendments led to the rapid sale of tens of thousands of shares in the Reserve which in turn led to the establishment of PKW as an incorporation. The surrounding history to these lands has been considered by the Waitangi Tribunal in its Taranaki Report. 3 [9] The evidence discloses that the Trust and PKW have for some time been unable to reach an agreement as to the possibility of returning the Waiokura Te Kauae land to representatives of Ngāti Tu. This has led to considerable tension and conflict between the Trust and PKW over many years. Accordingly, an application has been made to the Court seeking guidance on this matter. At the hearing Mr Manuirirangi and Mr Tuuta made detailed submissions. Evidence and submissions were also presented by Greg White, Joyce Williams, Tongawhiti Manuirirangi, Hinerangi Raumati, Toroa Cruden, David Williams and Bev Gibson. Submissions for the Applicant [10] Mr Manuirirangi submitted that Te Kauae block was originally granted to Manaia Hukanui on 5 April 1881 pursuant to the West Coast Settlement (North Island) However he says that the various trustees and PKW have acted at all times as if they are the owners of the blocks while Manaia Hukanui and his successors have been treated as mere shareholders. Their opinions and wishes have counted for little over the years he argued. [11] The applicant recounted how at a meeting between PKW and the Trust on 1 June 2013 the incorporation claimed they were prevented from returning the title back to the Trust. PKW said they had no mandate to sell land which the applicant submitted was difficult to understand since PKW have in fact sold land in the past. [12] It was also argued that the Court should endorse the Waitangi Tribunal Taranaki Report with respect to the unlawfulness of all legislation that provided for the alienation of their land without the owner s consent. Mr Manuirirangi submitted that the confiscation had already caused significant damage to Taranaki hapū including Ngäti Tu. It was said that the Waiokura Te Kauae blocks held by PKW were among the last remnants of hapū identity left and accordingly were lands of particular significance in the context of the preamble to the Act and the principle of retention. In summary, it was emphasised, in effect, that the loss of 3 4 Waitangi Tribunal, The Taranaki Report: Kaupapa Tuatahi (GP Publications, 1996) West Coast Settlement Reserves Act 1881

4 312 Aotea MB 107 these lands to PKW represented a final undermining of the remnants of the hapū structures that had endured through the hardships wrought by raupatu. [13] The applicant further submits that the Court should find that several actions were unlawful: the mandate of the Advisory Committee responsible for co-ordinating the amalgamation of the Taranaki reserves; the global approach to amalgamation where less than 50% of traceable owners supported the amalgamation; and traceable owners from other Taranaki tribal areas imposed their views on land that they had no whakapapa connection to or interest in whatsoever and in particular the land that is the subject of these proceedings. [14] Mr Manuirirangi also raised issues as to the purchase of the lease over part of the Te Kauae block by the Ngaruahine Tribal Trust and the attempts to have the lands returned to the Trust. The Trust he said was eventually put into liquidation following action taken by PKW to recover rental arrears. Tongawhiti Manuirirangi also made submissions in support underscoring in an impassioned plea that the requests of now deceased owners and kaumātua had inspired him and those supporting the applicant to leave no stone unturned in their quest to have the subject lands restored to the authority of the hapū. [15] The applicant asks that the Court direct that PKW return the ownership of Te Kauae block to the Trust at the same price it paid when it was transferred to their title. The applicant asserts that the transfer of ownership include all shares that the farms generate in the Fonterra Dairy Company and, as a sign of good faith and in recognition of the transfer to the Trust, agree to gift back to PKW all shares generated from the above blocks. [16] Mr Manuirirangi also seeks costs in relation to these proceedings, loss of potential income and compensation for abuse and humiliation and for prolonging their disempowerment. Submissions for PKW [17] Dion Tuuta submitted, in summary, that PKW opposes the application to alienate Te Kauae blocks in favour of the Trust and argues that the application should be struck out. In relation to the Ngaruahine Tribal Trust the Trust was aware that additional rents would be payable prior to purchasing the lease. Negotiations were undertaken for options for Ngaruahine to purchase the blocks.

5 312 Aotea MB 108 [18] It was submitted that over a long period of time PKW has made a concerted effort to come to a negotiated settlement but nothing has been resolved the applicant continues to insist PKW return the land at no cost which clashes with the responsibility PKW has to all its shareholders. Legal action was taken to recover the land after rental payments remained in arrears. Despite attempts at reaching an understanding no resolution has been found. [19] Mr Tuuta underscored that the reality is that PKW is the legal owner of the land on behalf of all its shareholders and seeks to lawfully use its land to benefit its entire shareholding whānau which includes the applicant and members of the Trust. [20] PKW opposes the application for costs on the basis that any losses suffered by Ngaruahine Tribal trust or its successor the Ngāti Tu Whenua Tōpu Trust are ultimately the result of their own decisions and actions. Finally, Mr Tuuta confirmed that costs are sought against the applicant that takes into account the costs incurred in the preparation of this submission. Discussion Does the Court have the jurisdiction to order PKW to vest Waiokura Te Kauae in the Trust taking into account the facts of these proceedings? [21] It is not difficult to understand the perspective of Mr Manuirirangi and those persons supporting his application. From their point of view the issue is simple: PKW was created without the consent of the majority of the owners of these particular blocks of land and so PKW should now willingly or be ordered by the Court to return those lands. That said, the extensive documentary record supplied by the parties demonstrates that the background to the alienation of these lands is complex. The impacts of the confiscations of the 1860s and the deleterious effects still felt by the hapū today are a harsh reminder of the many great injustices perpetrated on the tribes of Taranaki both contrary to law and the principles of the Treaty of Waitangi. [22] It is hardly surprising then that those groups seriously affected by the raupatu of their lands and the subsequent individualisation of title and the inexorable alienation of the few remnants of tribal estates continue to feel aggrieved at the role of the legislature in authorising the taking of their lands on a vast and unprecedented scale, by the impact of the incorporation model on traditional collective custodianship of land and no doubt by the actions of the Court as well as its predecessors, the Compensation Court and the Native

6 312 Aotea MB 109 Land Court. All have wrought, according to the historical record, a complicated and bitter legacy of dispossession and disempowerment for the tribes of this region. [23] But the legal issue for determination is simple: does the Court have the jurisdiction to order the legal owner of land to vest that land in the Trust against its wishes in the circumstances of this case? The answer must be no. PKW is the owner of the land. It has the sole right to determine who it will vest that land in and on what terms with the increasingly rare exception, in the context of Māori land, of takings under the Public Works Act [24] The Court s jurisdiction is limited by statute. The remedy the applicant and those supporting him seeks cannot be granted by this Court. That would cut across the legal rights of the current owner of the land in manner beyond the contemplation of the relevant provisions of the legislation. Doubtless the granting of the application would also provoke judicial review or appeal proceedings on the grounds that the Court would have acted outside of its jurisdiction and without the consent of the owner of the land. It is difficult to see how either possibility might assist the applicant. [25] The only other possibility for the applicant in terms of the jurisdiction of this Court would be the pursuit of an application to the Chief Judge per s45 of the Act. The onus would again be on the applicant to satisfy the Chief Judge that the order to establish PKW was erroneous in fact or in law because of any mistake or omission on the part of the Court or the Registrar or in the presentation of the facts of the case to the Court. However it is important to acknowledge that significant evidential obstacles would need to be surmounted if ever such a proceeding had any real prospects of success. Given the passage of time and the absence doubtless of a number of critical witnesses as well as related legal hurdles to overcome, any such proceeding is likely to be fraught with difficulty. [26] The short point is that only by negotiation will an agreed outcome acceptable to both parties be revealed. Negotiation means exactly that - parties coming to an agreement, not having a Court or other external party impose a solution which is the antithesis of agreement. If they cannot then no Court will force them against their wishes to reach an agreement. The only conceivable exception being Parliament but the likelihood of that body in the twenty first century forcibly taking land from the legal owner against its wishes in the circumstances of this case and outside of the public works regime seems an unlikely prospect. In any event if the parties cannot agree because one participant cannot accept the

7 312 Aotea MB 110 terms of the other then any resolution of the claims by the Trust against PKW will remain elusive. [27] By way of observation I note that the Waitangi Tribunal can inquire into acts or omissions of the Crown in breach of the principles of the Treaty of Waitangi. 5 But even then it cannot recommend the return of land in private ownership. 6 Whether or not that body will be able to provide a basis for recommending the solution sought by the applicant remains a matter at large. Although I also note for completeness decisions of this and the Mäori Appellate Court as well as media reports in the public domain concerning mandate disputes surrounding proposals to settle the historical claims that concern Ngāti Tu with the broader framework of the Ngā Ruahine historical claims. 7 [28] Doubtless the decision rendered here will be a disappointment for the applicant and his supporters who have been engaged in numerous activities in various fora that have been intended to secure the return of the land to those persons claiming an interest according to tikanga Mäori. That is understandable, given the long history of attempts to try and have this land transferred to the hapū. However, as Mr Williams recognised, the narrow issue for determination was whether or not the Court has the jurisdiction to force the legal owner of the land to transfer it to someone else against its wishes: 8 The one line that came to mind when you stated, The legal owner PKW'. As soon as I heard that statement I thought, uh oh we are pretty well stuffed. Even though the legal owner was implemented by the Crown or rather a Crown entity gave them that legal ownership illegally. Just like they do, legislate things to make things legal, that was illegal. [29] To put the point beyond doubt, even if I accepted everything that the applicant had to say and supported without hesitation his desire to order PKW to return the land to the hapū representatives, there is no power under the Act to enable me to grant the application as currently framed. The key point is that Parliament has imposed limitations on the ability of the Court to force the legal owners of land to transfer that land to another party in circumstances where that owner does not agree. Accordingly I cannot see how the application can be granted. The Court simply does not have that jurisdiction Section 6, Treaty of Waitangi Act 1975 Section 4A, Treaty of Waitangi Act 1975 Pue v Nga Hapu o Nga Ruahine Iwi Inc [2011] Māori Appellate Court MB Aotea MB 244 (310 AOT 244)

8 312 Aotea MB 111 Should the Court grant the application to vest the land in the Trust? [30] As I have found that the Court does not have jurisdiction to order PKW to vest the subject land against its wishes in another party there is no need for me to consider whether or not any such application should be granted. Costs [31] PKW seeks costs. It has outlined how over a decade it has incurred significant costs and losses as a result of the actions of the applicant and those supporting his position of seeking control or return of the land back to hapū representatives. It is said that those costs and losses exceed $300,000 which have been borne by the shareholders as a whole. [32] Mr Tuuta should now file a memorandum setting out PKW s claim for costs, in the context of costs that may be legitimately claimed in legal proceedings by a successful respondent, within 21 days. Mr Manuirirangi will then have a further 21 days to file any response before a decision will be issued, taking into account the upcoming end of year holiday period. Decision [33] The application is dismissed for want of jurisdiction. [34] The Respondent has 21 days to file submissions on costs. The Applicant will have 21 days following that to file any response. Pronounced at am/pm in on this day of 2013 L R Harvey JUDGE