IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A

Transcription

1 80 Waikato Maniapoto MB 260 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A UNDER Section 338 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF an application for recommendation to set apart 2,662m 2 of PARISH OF KOMAKORAU LOT 240B 2 BLOCK as a Māori reservation for the purpose of an urupā MARIA LEEANN GRAHAM and MANIA ORIWIA HOPE Applicants Hearing: 20 February 2014 (73 Waikato Maniapoto MB ) (Heard at Hamilton) 26 June 2014 (Heard at Hamilton) Appearances: Mania Hope and Maria Graham in person Jane Stevens in person David McPherson in person Shane Paul in person (at the 20 February 2014 hearing only) Ms P Collin, counsel for the Waikato District Council (at the 20 February 2014 hearing only) Judgment: 02 July 2014 RESERVED JUDGMENT OF JUDGE S R CLARK

2 80 Waikato Maniapoto MB 261 Introduction [1] The Parish of Komakorau Lot 240B 2 Block is Māori freehold land, comprising hectares situated on River Road, a short distance south of Ngaruawahia. The block is vested in the trustees of the Kaiahi Whānau Trust. 1 [2] On 1 August 2013 Russell Graham, a beneficiary of the Kaiahi Whānau Trust, died. He was buried at the block on 5 August At the time of his burial, the block was not a burial ground within the meaning of that term as defined in the Burial and Cremation Act 1964 nor was it a Māori reservation set aside for the purposes of a Māori burial ground. [3] On 15 November 2013 Mania Hope and Maria Graham ( the applicants ) 2 applied for part of the block to be set aside as a Māori reservation pursuant to s 338 of Te Ture Whenua Māori Act 1993 ( TTWMA ). The application seeks a recommendation that 2,662m 2 of the block be set aside as a burial ground. 3 [4] The application has generated opposition and interest from a number of parties. Notices of Intention to Appear were filed by neighbours and persons who live close to the block, the Waikato District Council and the Waikato District Health Board. [5] The issue before me is whether I should make a recommendation to the Chief Executive of Te Puni Kōkiri to set aside a Māori Reservation, specifically an urupā. First Hearing 20 February 2014 [6] An initial hearing took place on 20 February On that day I heard from the applicants and some of those persons who had filed Notices of Intention to Appear. The Waikato District Council participated by having counsel present and providing evidence from two witnesses, an Environmental Health Officer and an Engineer. The Waikato District Health Board and the New Zealand Police were in attendance but did not take an active role in the proceedings. 1 Throughout this decision Parish of Komakorau Lot 240B 2 Block will be referred to as the block. The relevant CFR is SA10D/ Mania Hope is a trustee of the Kaiahi Whānau Trust, Maria Graham is a beneficiary. 3 Throughout I will refer to this as an urupā Waikato Maniapoto MB (73 WMN ).

3 80 Waikato Maniapoto MB 262 [7] I adjourned the hearing on 20 February 2014 to give a number of persons time to properly prepare their case. I became aware in the lead up to the hearing that a number of people who had filed Notices of Intention to Appear had not been notified of the hearing or had received belated notice. It goes without saying that they should have been properly notified. [8] The adjournment also allowed the applicants time to respond to a number of issues which I had raised during the hearing, they being: a) Did a majority of the trustees consent to the application? b) What is the proposed beneficiary class? c) Was an easement/roadway order sought? d) Entrance location and formation. [9] I also suggested but did not direct, that the applicants meet with those people who had filed Notices of Intention to Appear in an effort to discuss and confine any outstanding issues. Second Hearing 26 June 2014 [10] Prior to the second hearing I conducted a site visit. My observations concerning the site visit will be recorded in the minutes of that hearing. [11] During the second hearing I heard from both applicants and Lorraine Hetet, a trustee of the Kaiahi Whānau Trust. [12] I also heard from Mr David McPherson and Jane Stevens. They live at River Road, Ngaruawahia, on a lifestyle block immediately adjacent to the Parish of Komakorau Lot 240B 2 Block. Their house looks directly towards the site of the proposed urupā.

4 80 Waikato Maniapoto MB 263 [13] In the lead up to the second hearing, in-house counsel for the Waikato District Council indicated that they would not be appearing. They did however provide some written submissions on 19 June, subsequently amended on 20 June. As the hearing unfolded it became apparent that it would have been useful to have received some further evidence from Council staff concerning traffic safety issues on River Road and the site and location of an entranceway to the block. The hearing was stood down to inquire with the Waikato District Council as to whether Mr Bryant, an Engineer who had given evidence at the first hearing, was available to attend the hearing. The response I received from the Registrar was that he had resigned from the Waikato District Council and there was no one else familiar enough with the file to be able to provide evidence at short notice. The Law [14] The Māori Land Court has jurisdiction to make a recommendation pursuant to s 338 of TTWMA to the Chief Executive of Te Puni Kōkiri, to set apart as a Māori reservation any Māori freehold land or general land. [15] I set out the relevant part of section 338 as follows: 338 Maori reservations for communal purposes (1) The chief executive may, by notice in the Gazette issued on the recommendation of the court, set apart as Maori reservation any Maori freehold land or any General land (a) (b) for the purposes of a village site, marae, meeting place, recreation ground, sports ground, bathing place, church site, building site, burial ground, landing place, fishing ground, spring, well, timber reserve, catchment area or other source of water supply, or place of cultural, historical, or scenic interest, or for any other specified purpose; or that is a wahi tapu, being a place of special significance according to tikanga Maori. (2) The chief executive may, by notice in the Gazette issued on the recommendation of the court, declare any other Maori freehold land or General land to be included in any Maori reservation, and thereupon the land shall form part of that reservation accordingly. (3) Except as provided in section 340, every Maori reservation under this section shall be held for the common use or benefit of the owners or of Maori of the class or classes specified in the notice. (4) Land may be so set apart as or included in a Maori reservation although it is vested in an incorporated body of owners or in the Māori Trustee or in any other trustees, and notwithstanding any provisions of this Act or any other Act as to the disposition or administration of that land.

5 80 Waikato Maniapoto MB 264 (5) On the recommendation of the court, the chief executive, by notice in the Gazette, may, in respect of any Maori reservation made under this section, do any 1 or more of the following things: (a) (b) (c) (d) exclude from the reservation any part of the land comprised in it: cancel the reservation: redefine the purposes for which the reservation is made: redefine the persons or class of persons for whose use or benefit the reservation is made. (6) No notice under this section shall affect any lease or licence, but no land shall be set apart as a Maori reservation while it is subject to any mortgage or charge. (7) The court may, by order, vest any Maori reservation in any body corporate or in any 2 or more persons in trust to hold and administer it for the benefit of the persons or class of persons for whose benefit the reservation is made, and may from time to time, as and when it thinks fit, appoint a new trustee or new trustees or additional trustees. (8) The court may, on the appointment of trustees under subsection (7), or on application at any time thereafter, set out the terms of the trust, and subject to any such terms, the Maori reservation shall be administered in accordance with, and be subject to, any regulations made under subsection (15). [16] It is of importance to note that the provisions of the Burial and Cremation Act 1964 do not apply to Māori burial grounds, except as expressly provided for in that Act. 5 [17] There are a number of cases which discuss principles applicable to Māori reservations, for example Bristowe Section 4C1 Block II Tuatini Township and Lot 1 DP 7439 and Lot 2 DP 7439, 6 Gibbs v Te Rūnanga o Ngāti Tama Part Lot 2 and Lot 1 DP 4866 (TNK 4/901) and Section 1 SO CT TNK 4/ [18] I note that questions posed by Judge Harvey in the Gibbs decision were recently adopted by Chief Judge Isaac in the case of Grace Ngarara West A25B2A. 8 [19] The principles and questions posed in those cases are of limited relevance to the issues involved in this case. The context of the Gibbs case is quite different to the facts before me. In Gibbs the key issue for Judge Harvey was whether there were grounds for granting a Māori reservation of some 227 hectares for the benefit of a small whānau who 5 Burial and Cremations Act 1964, s 3. 6 (2002) 151 Gisborne MB 250 (151 GIS 250). 7 (2011) 274 Aotea MB 47 (274 AOT 47). 8 (2014) 317 Aotea MB 268 (317 AOT 268).

6 80 Waikato Maniapoto MB 265 did not affiliate by whakapapa to the rohe, in circumstances where there was a division of opinion amongst the tangata whenua. In that case one of the applicants was Māori but from a tribe resident outside the district in which the block was located, the other applicant, her spouse was a pākehā. [20] The circumstances of this case are quite different. There is no question about whether the applicants are tangata whenua of the district, they are. There is no opposition from tangata whenua. Although the application has been made by two individuals, they have lodged it in a representative capacity. The proposed reservation is intended to be used by a whānau for Māori communal purposes namely an urupā. The applicants seek to set aside only a small portion of the block they own for the urupā. This is a block to which the applicants and proposed beneficiaries have a customary connection. [21] In this case the issues as I see them are: a) Should the Court make a recommendation, with the knowledge that an unlawful burial has taken place? b) To what extent, if any, should I take into account the objections of those persons who filed Notices of Intention to Appear? c) To what extent, if any, should I take into account concerns raised by the Waikato District Council? d) Viewed from an overall perspective, should I make the recommendation to set aside the Māori reservation for the purposes of an urupā? Unlawful Burial [22] At the time Mr Russell Graham was buried, the block was not a burial ground or a Māori burial ground, thus the burial was unlawful. The responsibility for the prosecution of an unlawful burial rests with the Ministry of Health. 9 9 There are offence provisions set out in the Burial and Cremation Act 1964, for example s 54.

7 80 Waikato Maniapoto MB 266 [23] The evidence before me from the applicants is that their whānau has a burial plot on Taupiri maunga. That plot is now full and they have been asked not to bury any more tūpāpaku on Taupiri. I accept that evidence. It was supported by the evidence of Shane Paul, one of the persons who filed a Notice of Intention to Appear, when he appeared on 20 February [24] There is a desire on the part of the trustees of the Kaiahi Whānau Trust to utilise their land to accommodate burials. The applicants also say that in the particular circumstances of this case a decision had to be made about the burial of Mr Graham as a matter of some urgency. Maria Graham gave evidence that appropriate tikanga protocols were observed prior to the burial. [25] There are a number of objections from neighbours and the Waikato District Council. Underpinning those objections is the fact that the burial was unlawful. [26] There is nothing in TTWMA or the case law which prevents the Court making a recommendation to set aside a Māori burial ground, after somebody has been unlawfully buried. Indeed the applicants stress upon me that they have done the correct thing by bringing an application to subsequently formalise the position. [27] Having said that, the applicants should not be surprised that neighbours and others who are charged with certain statutory functions, such as the Waikato District Council, have raised concerns regarding the burial. To that extent it was naïve on the part of the whānau of Russell Graham to believe that there would be no adverse reaction. [28] In summary I am of the view that I am entitled to take into account the fact that there was an unlawful burial prior to any application being made to this Court. I am conscious that this Court is not hearing any prosecution. The fact that an unlawful burial took place prior to any application being lodged does not veto the process. However I reiterate that I am entitled to take into account the unlawful burial.

8 80 Waikato Maniapoto MB 267 Objections of Persons who filed Notices of Intention to Appear [29] Amy Bass and Derek Hooker, who described themselves as immediate neighbours, filed a joint Notice of Intention to Appear. They did not attend either of the hearings but in their Notice of Intention to Appear indicated that they believe they should have been consulted. They were also concerned that any urupā might become a traffic hazard. [30] Shane and Aileen Paul also filed a Notice of Intention to Appear. Mr Shane Paul gave evidence at the first hearing. Although he is related to beneficiaries of the whānau trust, he was concerned that the burial was unlawful, sudden and that there hadn t been any prior discussion or consultation. He believes that more effort should have been made by the applicants to discuss their plans with the wider community. He agreed with the position outlined by the applicants that there was an issue with a lack of space to bury tūpāpaku at Taupiri maunga. As he said in his evidence: 10 and I know the situation at Taupiri, I agree it s filling up dramatically. [31] Jane Stevens gave evidence at both hearings. I summarise her evidence as follows: a) She and her partner David McPherson have built a house and business on an adjoining lifestyle block. Resource consents were required for that. During that process she had struck up a relationship with the then trustees of the Kaiahi Whānau Trust and expected that a similar relationship would be reciprocated; b) Ms Stevens has found communication with the trustees of the Kaiahi Whānau Trust frustrating and/or elusive. She has also been frustrated in her attempts to deal with government agencies. She contacted the Waikato District Council and the New Zealand Police. Belatedly she found out that the Ministry of Health are the agency responsible for prosecutions pursuant to the Burial and Cremation Act 1964 but they would not take any action in this matter. Her view is that the applicants have exploited the unwillingness of the Waikato District Council and government agencies to take action; Waikato Maniapoto MB 103 (73 WMN 103).

9 80 Waikato Maniapoto MB 268 c) She has no opposition in principle to an urupā on the block but was not informed as to the burial of Mr Russell Graham which took her completely by surprise; d) She objects to the location of the urupā right next to her property. One of the views from their veranda is directly toward where Mr Graham is located and the site of the proposed urupā; e) Ms Stevens discussed the impact on her and her partner David McPherson. She gave evidence that her son had moved out of their house due to his discomfort at living next door to the block where a tūpāpaku is located. He suffers from poor mental health and this has impacted upon his psychosis; f) She feels disrespected by the applicants to the point where she believes they have been disingenuous. She also rejects any attempted consultation as after the fact and a matter of simply box ticking ; g) Ms Stevens addressed her concerns about road safety. A fatal accident has occurred on the stretch of River Road immediately outside her property in the past and she is concerned at the possibility of cars being parked on the side of a busy road; h) In terms of possible mitigation she is opposed to any suggestion of a hard surface fence. As an alternative she suggested a living ponga fence and pā harakeke. However she stressed that any visual screen does not change the fact that there is and will be tūpāpaku buried next to her house. [32] Mr David McPherson gave evidence before me at the second hearing. He is the partner of Jane Stevens. I summarise his objections as follows: a) He and Ms Stevens run a bed and breakfast business located on their property. In addition they will shortly have a training/seminar room available for hireage. A resource consent was required from the Waikato District Council which involved them obtaining approval from the trustees

10 80 Waikato Maniapoto MB 269 of the Kaiahi Whānau Trust. At no time in their discussions with the trustees of the Kaiahi Whānau Trust was there any indication that part of the block might be used for an urupā; b) No prior notice was given concerning the burial. He stressed that the burial was illegal; c) The bed and breakfast units and the training/seminar room, when completed, will look directly toward the proposed urupā site; d) Mr McPherson is concerned at the effect on the business. His evidence was that he had already received feedback from the local community who would be unwilling to use the training/seminar facility and bed and breakfast units due to the proximity of the urupā; e) In his opinion, the application was a cynical and self-serving attempt to legitimise an illegal activity after the event; f) He has asked the trustees of the Kaiahi Whānau Trust to consider locating the urupā to another location on the property. He would be happy to support an application for an urupā but on a different, less sensitive part of the property. Efforts at dialogue have been rebuffed and he sees little point in further attempts at consultation with the trustees of the Kaiahi Whānau Trust as it is simply a box ticking exercise; g) He considers that the Kaiahi whānau trustees have not accorded he and Ms Stevens the same level of neighbourly consultation and respect and have little confidence that they will follow any rules ; h) He refers to comments attributed to a Tainui kaumātua, Tame Pokaia that there should have been wider iwi and hapū consultation; i) Mr McPherson pointed to the fact that River Road is very busy and the berms on the side of the road are narrow. He has concerns about cars being parked on the side of a very busy road;

11 80 Waikato Maniapoto MB 270 j) In terms of any possible mitigation, whilst he accepts planting may hide the urupā, that in turn would affect a view that can be enjoyed from his property towards the Hakarimata Range and impact upon the rural aspect currently enjoyed from his property. [33] The TTWMA and the case law are silent on the question of whether I should take into account the opinions of those neighbours who live adjacent to or in the immediate vicinity of the block, and if I do, the weight that I give to that evidence. Whilst TTWMA permits a permissive approach I do not think that means the views of adjoining land owners should be ignored. In exercising any discretion to make a recommendation I reach the view that I can take into account the opinions of those persons who filed Notices of Intention to Appear but they are not necessarily determinative nor do they veto the application. Issues and concerns raised by the Waikato District Council [34] The Waikato District Council appeared by counsel and witnesses at the hearing on 20 February [35] Mr Kee, an Environmental Health Officer, gave evidence. He indicated that he had been approached by Jane Stevens inquiring as to the rules concerning burial. Similar issues were raised with him by the Ngaruawahia Police and the District Health Board. He referred to the fact that a burial ground is a permitted activity in terms of the Waikato District Council rural zone rules. Mr Kee also provided a number of photographs showing the location of the tūpāpaku, and the Stevens/McPherson house. [36] Mr William Bryant gave evidence. He was a Senior Development Engineer for the Waikato District Council and gave evidence about roading issues and vehicle access. The concern of the Waikato District Council is to ensure safety along River Road which is a district arterial route with the volume of traffic approaching 4,000 vehicles per day. He made a number of suggestions concerning the placement and design of an entranceway.

12 80 Waikato Maniapoto MB 271 [37] On 19 June 2014 the Court received a legal submission from the Waikato District Council and subsequently an amended submission on 20 June The matters referred to by counsel are: a) That the burial was illegal and although there have been attempts to broker a solution, the matter remains unresolved; b) The Ministry of Health, who is the agency which administers the Burial and Cremation Act 1964, have taken a hands off approach; c) The proposed urupā is a permitted activity in the rural zone; d) There remain concerns about traffic and that an entranceway would need to be upgraded to a dual width TSG-E3 standard to ensure traffic safety when tangi were being held. They have concerns that there has been accidents in the area outside the block in recent times and that an urupā may increase safety and traffic related issues. [38] As I said earlier it would have been useful for the Waikato District Council and a roading engineer to be in attendance at the second hearing which took place on 26 June There are concerns about traffic safety and the location of any entranceway to the block. Lorraine Hetet, a trustee for the Kaiahi Whānau Trust gave evidence of her attempts to have discussions with Mr Bryant after the first hearing. She understands that notwithstanding what Mr Bryant told the Court in February, that Council staff changed their minds as to the location of any entranceway. Her understanding was that either the Waikato District Council and/or Transit New Zealand intend to extend a barrier along River Road which would make the placement of an entranceway, where a gate is currently located, difficult or impossible. In summary she simply does not understand what the preference of the Waikato District Council is as to the location of an entranceway. [39] The jurisdiction I am operating under is TTWMA. Pursuant to that Act I have jurisdiction to make a recommendation to set aside a Māori reservation as a burial ground. In doing so I do not have to take into account, as a matter of law, the zoning rules or other concerns of the Waikato District Council. However I do consider it relevant that if an

13 80 Waikato Maniapoto MB 272 application was made to establish a burial ground in the ordinary way and not via the Māori Land Court, that activity is permitted in the rural zone of the Waikato District Council. [40] In relation to the roading and traffic issues, the only consent I require as a matter of law from the Waikato District Council would be if I was setting aside an easement or roadway pursuant to s 316 of TTWMA. Having said that, the issues of traffic and roading are of concern and a matter of public safety. I believe those concerns can and should be taken into account in any decision that I arrive at. Should I make the Recommendation? [41] At the conclusion of the hearing on 26 June 2014 I indicated to those present that the decision I have to make is a difficult one and the choices stark. If I make the recommendation there is an undoubted effect on Ms Stevens and Mr McPherson s property and the lifestyle they enjoy. If I do not grant it, that will undoubtedly cause a great deal of anguish on the part of the applicants and the beneficiaries of the whānau trust, they might have to disinter Mr Graham, something they indicated they were unwilling to do. [42] I reiterate that it was naïve on the part of the whānau to proceed with the burial of Mr Russell Graham in such close proximity to a neighbouring property and not expect an adverse reaction. The tūpāpaku lies approximately 9 metres from the eastern boundary shared with the Stevens/McPherson block. The Stevens/McPherson house is set back 25 metres from that boundary. At its closest point the tūpāpaku lies approximately 34 metres from the Stevens/McPherson home and business. [43] Having said that I am prepared to make a recommendation that a burial ground be set aside. However owing to the concerns that have been raised a number of matters will need to be satisfied by the applicants prior to finalising my recommendation. I now set out the reason why I have reached that decision.

14 80 Waikato Maniapoto MB 273 [44] First, I clearly have jurisdiction to do so pursuant to s 338 of TTWMA. That Act contemplates the setting aside of land by way of reservation for communal purposes, one of which is a burial ground. Just as humans occupy land and make use of it during their lifetime, other than in cases of cremation, we all need to be buried somewhere, at some stage. TTWMA clearly contemplates that a use to which Māori land should be put is as a burial ground. [45] Following the first hearing there were a number of outstanding issues which the applicants have now satisfied me of. A majority of the trustees, five out six, now support the application. I have received evidence that the beneficiary class has been determined. No easement or access order is sought and the applicants did attempt to have discussions concerning the location of an entranceway with the Waikato District Council. [46] It is important to recall that the applicants whānau burial plot on Taupiri maunga is full and cannot be used. I accept that it is a proper use of a block of Māori freehold land for part of it to be set aside as a communal burial ground. [47] In reaching the decision that I make I have taken into account the concerns raised by the Waikato District Council. Those concerns can be met by the imposition of conditions as to the location and formation of an entranceway. [48] I am not insensitive to the concerns of Ms Stevens and Mr McPherson. Had I been in their position I may well have reacted in the same way. Burials on private land are a rarity and restricted by the framework of the Burial and Cremation Act In the main, people are buried in a public cemetery which is often located in a clearly demarcated place some distance from housing and/or businesses. Having said that the Law Commission in their recent issues paper, The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review contrasted burial on private land in rural areas in New Zealand to that of the United Kingdom and Australian states. In New Zealand burial on private lands is heavily restricted and only lawful if there is no public cemetery available within 32 kilometres of the place of death. By contrast burial on private land in rural areas in the United Kingdom and Australia is allowed providing planning requirements are met. The

15 80 Waikato Maniapoto MB 274 Law Commission noted from their survey of local authorities that there was a likely demand for the option of burial on private land in rural areas. 11 [49] The applicants had the options of applying to establish a private burial place or seek the approval of the Minister of Health for a burial in a special place pursuant to the Burial and Cremation Act In their legal submission dated 20 June 2014, counsel for the Waikato District Council confirmed that a burial ground in the rural zone is permitted, as long as the activity complies with all effects and building rules. There is no building on the proposed site. With regard to the effects counsel indicated that the activity would trigger rules relating to access, vehicle entrance and vehicle movement. Provided the activity complied with those two rules it is a permitted activity. I mention this because that would suggest to me that any application to establish a private burial ground and/or a special burial place would have had a measure of success, had those options been pursued. [50] In this case however the governing law is TTWMA rather than the Burial and Cremation Act On this issue the Law Commission said: 12 However, it is interesting to note the differences between the permissive approach to urupā, and the highly restrictive approach to burial grounds and cemeteries. In particular, in a number of cases it is evident that those with ties to ancestral Māori land who did not necessarily meet the Ministry s criteria under section 48 were nevertheless given approval for burial on private land on the grounds that the proposed site was in the process of being designated as an urupā. While there are compelling reasons why the law should not interfere with the rights of tangata whenua to be buried on their own land, we consider that many New Zealanders, particularly in rural areas, have a similar desire for burial in a place of particular significance to their family. [51] Having listened to and considered the concerns particularly of Ms Stevens and Mr McPherson I am willing to impose a number of conditions upon the applicants prior to formalising my recommendation. These conditions are more stringent than what might otherwise normally be imposed. I believe they are necessary and respond specifically to concerns identified in this case. 11 Law Commission The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review (NZLC IP34, 2013) at Ibid at 4.92.

16 80 Waikato Maniapoto MB 275 Decision [52] I am prepared to make a recommendation pursuant to s 338(1)(a) of Te Ture Whenua Māori Act 1993 that 2,662m 2 being part of the land known as Parish of Komakorau Lot 240B 2 Block, be set aside as a Māori reservation for the purpose of an urupā for the common use and benefit of Ngā Uri o Peata rāua ko Hori Te Raika Graham. [53] I intend to finalise the recommendation once I am satisfied of the following matters. Survey [54] Within twelve months of the date of the release of this decision the applicants must provide to the Court a survey and cadastral survey data set being approved by LINZ in terms of the Rules for Cadastral Survey. The Māori reservation is to be dealt with as a non-primary parcel. The boundary points of the reservation are not required to be ground marked. [55] The eastern boundary of the urupā is to be set back a distance of 7.5 metres from the eastern boundary of the block, being the boundary shared with the Stevens/McPherson property. I have imposed this condition because if I approved the urupā in accordance with the sketch plan before me that would allow burials even closer to the Stevens/McPherson household than that of Mr Russell Graham. [56] In imposing this condition it is intended that the boundary of the urupā, as it runs parallel with the Stevens/McPherson property, moves 7.5 metres to the west. Thus there will be a strip of land between the boundary of the urupā and the shared boundary with the Stevens/McPherson property, which is to act as a form of buffer zone. Planting/Screening [57] I have viewed the current plantings. I understand a variety of plants were planted recently by a whānau member. The plants are small and some were dead. It was obvious to me that the current plantings will take some time to provide any effective screening.

17 80 Waikato Maniapoto MB 276 [58] Within three months from the date of the release of this decision, the applicants are to submit a planting/screening plan prepared by a suitably qualified specialist for review and approval by the Court. [59] The planting/screening plan is to detail the location and type of plants that will provide full visual screening of the urupā when viewed from the perspective of the Stevens/McPherson property. The plan is to include the details of proposed planting. All plants are to be indigenous to New Zealand. No planting is to be any closer than 6 metres to the eastern boundary of the block, that being the boundary shared with the Stevens/McPherson property. [60] Subject to approval by the Court of the planting/screening plan, all planting is to be completed within six months from the date of the release of this decision. Once the planting is completed, the applicants are to provide the Court with a report from the specialist who prepared the planting/screening plan, indicating that the planting has been completed in accordance with the plan as approved by the Court. Entranceway [61] The applicants are to meet with the Waikato District Council staff in an effort to agree upon a suitable location for the vehicle entrance. Subject to their being a mutual satisfactory outcome in relation to those discussions, the trustees of the Kaiahi Whānau Trust are to construct a dual width entranceway TSG-E3 standard within twelve months from the date of the release of this decision. [62] Once the entranceway is formed, the applicants are to provide the Court with a report confirming that the entranceway has been formed to the TSG-E3 standard. I anticipate that the report will contain confirmation from the Waikato District Council that they have agreed to the location of the entranceway and that it has been formed to the TSG-E3 standard. [63] The Waikato District Council staff need to appreciate that I do not have to impose any condition concerning an entranceway. I have done so in order to respond to the traffic safety concerns they raised. Should they and the Kaiahi Whānau Trust be unable to reach a

18 80 Waikato Maniapoto MB 277 mutually agreed position undoubtedly the matter will come back to me for further direction. At that stage possible options are: a) That I decide the location for the vehicle entranceway without any further input from the Waikato District Council; b) That I impose no condition upon the location and formation of any entranceway. [64] Clearly it is in the interests of the Waikato District Council to come to a mutual agreement with the applicants regarding the location of the entranceway. Burial of further tūpāpaku [65] There is to be no burial of any further tūpāpaku prior to the publication of any notice setting aside the urupā in the Gazette. Summary of conditions [66] I summarise the timeframes for satisfaction of the conditions: a) Twelve months from the date of the release of this decision to provide a survey plan; b) Three months from the date of the release of this decision to provide a planting/screening plan; c) Six months from the date of the release of this decision to carry out all planting; d) Twelve months from the date of the release of this decision to construct a dual width entranceway to a TSG-E3 standard; e) No burial of any further tūpāpaku prior to the publication of any notice setting aside the urupā in the Gazette.

19 80 Waikato Maniapoto MB 278 Leave to apply for further directions [67] If the applicants are unclear about any of the conditions concerning survey, location of the urupā, planting/screening or the entranceway they have leave to seek further direction from the Court. [68] The applicants should note that the timeframes provided are the maximum time limits for fulfilling these conditions. If they are able to meet the conditions earlier than the maximum time limits then the application can be placed in front of me for finalisation of the recommendation at an earlier date. Appointment of Trustees to the Reservation [69] The applicants have indicated that subject to a notice in the Gazette being published then it is intended that the trustees of the Kaiahi Whānau Trust are, subject to their consent, also appointed as trustees of the urupā pursuant to s 338(7) of TTWMA. [70] The Court may, on the appointment of trustees set out the terms of any trust s 338(8) of TTWMA. It is rare for Māori reservations to have a standalone trust order however in this case I highlight for the attention of the applicants that at the stage any trustees are appointed, I intend to set out the terms of the trust. The applicants will need to provide the Court with a proposed trust order. It need not be detailed. [71] I am particularly mindful of ensuring that there are obligations in the trust order which are capable of oversight by the Māori Land Court relating to planting/screening, specifically: a) A provision that the trustees will ensure that the planting/screening, when mature will be no higher than 2.5 metres in height; b) A provision that if any plants die or are damaged or are removed then the trustees are under an obligation to replace them with similar species of the same size and thereafter be maintained and kept to a high standard at all times.

20 80 Waikato Maniapoto MB 279 [72] I had considered whether or not the existing Kaiahi Whānau Trust order, with amendments would be appropriate. From a cursory look at the trust order I think it is preferable that a separate trust order is drafted for the specific purposes of the Māori reservation given there are provisions in the existing whānau trust order which would be difficult if not impossible to reconcile with some of the prohibitions on alienation set out in s 338 of TTWMA. Pronounced in open Court at 3.30 pm in Hamilton on the 2nd day of July S R Clark JUDGE