IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A Hearing: 364 Aotea MB dated 13 December 2016

Transcription

1 366 Aotea MB 274 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER Rule 4.10(3), Maori Land Court Rules 2011 IN THE MATTER OF Ruapehu 2 block and a decision of the Deputy Registrar to refuse an application for filing BETWEEN RONALD PERIGO AND MARIA PERIGO Applicants Hearing: 364 Aotea MB dated 13 December 2016 Judgment: 17 March 2017 RESERVED JUDGMENT OF JUDGE S F REEVES Introduction [1] This decision concerns an application by Ronald Perigo and Maria Perigo pursuant to r 4.10(3) of the Maori Land Court Rules 2011 (the Rules) seeking a review of the Deputy Registrar s decision to refuse an application pursuant to s 118(6) of Te Ture Whenua Māori Act 1993 (the Act). [2] The application that was refused was A for succession to further interests of Topia Turoa in Ruapehu No 2. [3] The application was refused on the basis that Ruapehu No 2 is Crown land. [4] The applicants seek a review of this decision. Background [5] On 12 July 2016 the applicants applied for succession to further interests of Topia Turoa in Ruapehu 2.

2 366 Aotea MB 275 [6] The application refers to the original succession hearing for Topia Turoa in 1907, 1 and states that the applicants wish to succeed to further interests in Ruapehu No 2, with the interests to be vested in their hapū group known as Patutokotoko ki uri o Topia Turoa. [7] The Deputy Registrar advised the applicants on 12 July 2016 that the application was refused. The land formerly known as Ruapehu No 2 was partitioned into Ruapehu 2A and Ruapehu 2B blocks on 19 March Both blocks later became Crown land and are no longer recorded as current blocks of Māori freehold land. [8] Following receipt of the Deputy Registrar s letter the applicants filed an application to the Chief Judge under s 45 of the Act. On 2 August 2016, Deputy Registrar Kura Barrett wrote to the applicants advising that the matter could not be dealt with under s 45 as no order or confirmation had been made by the Court. She suggested that the applicants could apply in writing for a review of the Deputy Registrar s decision under r 4.10(3) of the Rules. [9] The application for review was referred to Judge Harvey who directed that it be set down for a judicial conference at the next available Whanganui Court. I held a judicial conference on 13 December At the conclusion of the conference I adjourned the matter for a decision to issue. Applicants submissions as to why the application for succession to further interests ought to be accepted. [10] In their oral submissions to the Court, the applicants appeared to accept that the land that was formerly Ruapehu No 2 Block is now part of the Tongariro National Park. 3 [11] The applicants then went on to give further details of the reason for their application to succeed to the interests of Topia Turoa in Ruapehu No 2. It is their belief that the Māori customary land block now known as Rangiwaea-Tāpiri, formerly Rangipō North 8, is the same block as Ruapehu 2B, or at least forms part of it. At the hearing Maria Perigo stated: 4 The reason we are bringing this to Court of course, as the Registrar has pointed out, it was under the Tongariro National Park. From our findings in the last four years we were party to a block of land that was being dealt with Whanganui MB , 204 (55 WG , 204) Aotea MB (364 AOT ). 3 At At

3 366 Aotea MB 276 This particular block of land was also known as the Rangiwaea Tapiri block, now known as the Rangipo North 8 block today. Our maps that we have indicate that that block is the same as this block here, so of course Rangiwaea Tapiri starts down the bottom of the mountain and then of course, through the findings of the Court as at 2001, for the Rangipo North 8, it went up the mountain and it went straight through this particular block of land that we re doing today. That was our reasoning for wanting to get acknowledgment, recognising that Turoa name is still up there [12] When asked to specify which part of Ruapehu 2 she was referring to, Maria Perigo went on to say: 5 The actual area the Ruapehu 2B is the actual area of the now elected Rangipo North 8 today, it is in the vicinity of that particular block, that was taken as, was awarded by the Judge back in 2001 as a result of it being a block of land with no title on it, that was the reason for the actual application. So we believe that this particular block here was the original block of land because nobody in the family had succeeded to it since, of course, 1887, assuming that it was under the Tongariro National Park. The Law [13] Rule 4.10 of the Rules states: 4.10 Registrar may refuse to accept proceedings or other document for filing (1) A Registrar may refuse to accept for filing a proceedings or other document for any of the following reasons: (a) (b) (c) (d) (e) (f) it is illegible: if in electronic form, it cannot be opened: it does not comply with a requirement of these rules it is not in the correct form: it is not accompanied by the presided fee: it is not accompanied by other information or documentation required by these rules to be filed with it. (2) The Registrar must advise the person filing the proceedings or other document that it is refused and must state the reason of refusal. (3) The party or person filing a proceeding or other document that has been refused for filing by the Registrar may apply in writing for the review of the Registrar s decision by a Judge, and a Judge must then determine the matter Aotea MB (364 AOT ) at 293.

4 366 Aotea MB 277 [14] Under r 4.10 the Registrar has power to refuse to accept a proceeding for filing for the reasons set out in sub-r (1). The reasons which are included are all administrative in nature such as illegibility, failure to comply with the Rules, incorrect form, and failure to pay the prescribed fee. [15] There are very few authorities in relation to reviews under r 4.10(3) of the Rules, and none that have directly addressed the matter at issue in the present case. 6 In The Proprietors of Potikirua Block Incorporation v Te Kani the Court considered an application pursuant to s 45 of the Act which sought to cancel a memorandum of transfer endorsed by a Deputy Registrar. 7 While r 4.10(3) was not specifically considered, the Court examined the role and functions of a Registrar under the provisions of the Act and former Māori land legislation, noting the difference between functions that are administrative and those that are quasi judicial in nature, such as under s 160 of the Act. [16] A decision by the Registrar to reject an application for filing for any of the reasons set out in r 4.10(1) is a threshold decision that a proceeding does not comply with the administrative requirements of the Rules. It is not a decision or determination about the substantive merits of an application. While the consequences of the Registrar s decision may be that an application does not proceed further, that is not the same as deciding or determining an application. In any event, an applicant can apply for a review of the Registrar s decision pursuant to sub-r (3). Discussion [17] There is no serious question that the former Ruapehu No 2 block now forms part of the Tongariro National Park and is Crown land. This issue was extensively covered in the Waitangi Tribunal s report Te Kāhui Maunga. 8 [18] The Māori Land Court has no jurisdiction to hear a succession application in respect of Ruapehu No 2. In this respect the application did not comply with r 4.2(5) and the Deputy Registrar s decision not to accept the application of 12 July 2016 was correct. 6 See Wilson Oue 2B3 [2015] Chief Judge s MB 215 (2015 CJ 215); 2013 Chief Judge s MB 161 (2013 CJ 161); and 2012 Chief Judge s MB 325 (2012 CJ 325). 7 The Proprietors of Potikirua Block Incorporation v Te Kani Lot 1 Deposited Plan 8212 [2013] Chief Judge s MB 82 (2013 CJ 82). 8 Waitangi Tribunal Te Kāhui Maunga: The National Park District Inquiry Report (Wai 1130, 2013).

5 366 Aotea MB 278 [19] The applicants also claimed at the hearing that Rangiwaea-Tapiri is the same block as Ruapehu 2B, or at least forms part of it. Their view being that they should be able to succeed to interests in Rangiwaea-Tāpiri. This issue was only raised at the hearing and so the Deputy Registrar did not have the opportunity to consider this as part of the original application. [20] It quickly became clear that the applicants real interest is the challenge by Ngāti Uenuku interests to the order of the Māori Land Court issued on 28 April This was a determination that Rangiwaea-Tāpiri is Māori customary land and papa tuku iho mo Ngāti Rangi, and that the persons entitled to succeed are Rangitutia, Rangiteauria and Uenuku Manawawiri o Ngāti Rangi 9 [21] The 2001 order of the Court is the subject of a current application pursuant to s 45 of the Act which was filed in The applicants are listed as interested parties and Ron Perigo gave evidence before the Court on behalf of Ngāti Uenuku interests. [22] Judge Harvey has completed a report to the Chief Judge dated 12 August In the report Judge Harvey makes a number of findings and recommendations, ultimately recommending that the s 45 application be dismissed. The application now awaits a final decision of the Chief Judge. [23] One of the key issues in the report was whether Ngāti Uenuku has a separate legal interest in Rangiwaea-Tāpiri or Rangipō North 8. On that issue Judge Harvey found: 12 Having regard to the evidence I find that on the balance of probabilities the applicants have not proven an individual and distinct legal claim to the land, through an ancestor named Uenuku, which would be separate and exclusive from the claim of Ngāti Rangi. [24] The report also refers to evidence on this issue given by Ron Perigo: 13 Ron Perigo also spoke of his tupuna Topia Turoa and his exploits around Ruapehu. He notes that Topia Turoa is the owner of a block adjoining Rangipō North Aotea MB (105 AOT ). 10 A , CJ 2007/ Aotea MB (356 AOT ). 12 At At 195.

6 366 Aotea MB 279 [25] By now claiming that Rangiwaea-Tāpiri is the same land as the former Ruapehu 2 block instead of adjoining blocks, the applicants are taking a different position to that suggested in Ron Perigo s evidence to Judge Harvey. They have not produced any evidence to support their assertion. When asked to produce maps they referred to in their submissions, Maria Perigo stated that they had not provided that information with their application. 14 [26] I have now examined information on the Māori Land Court record, in particular ML Plan 4774 for Rangiwaea-Tāpiri, and also a cadastral map which shows the boundaries of the Tongariro National Park including the former Ruapehu 2 block. Two things are clear; first that Rangiwaea-Tāpiri and Rangipō North 8 are the same block, and second that Rangiwaea-Tāpiri is completely separate from Ruapehu 2B and outside the boundaries of the Tongariro National Park. [27] I have already concluded that the Deputy Registrar was correct to reject the application as filed, because it did not comply with the Rules. [28] In relation to the applicants claims in respect of Rangiwaea-Tāpiri; the applicants have failed to provide any documentation or evidence to show that they have legal interests in Rangiwaea-Tāpiri which are capable of succession in the Court. Decision [29] The Registrar s decision to refuse the application for succession to further interests of Topia Turoa in Ruapehu 2 block is upheld. Dated at Wellington this 17 th day of March 2017 S F Reeves JUDGE Aotea MB (364 AOT ) at 293.