IN THE MĀORI LAND COURT OF NEW ZEALAND TĀKITIMU DISTRICT A PETER NEE HARLAND Applicant. THE CROWN Interested Party

Transcription

1 57 Tākitimu MB 1 IN THE MĀORI LAND COURT OF NEW ZEALAND TĀKITIMU DISTRICT A UNDER IN THE MATTER OF BETWEEN AND AND Section 30(1)(b) of Te Ture Whenua Māori Act 1993 Mana Ahuriri Incorporated Society PETER NEE HARLAND Applicant PIRINIHA PRENTICE, BARRY WILSON, TERRY WILSON, JOINELLA MAIHI- CARROLL, BEVERLEY KEMP-HARMER, TANIA HUATA, EVELYN RATIMA, RANGI SPOONER AND HEITIA HIHA Respondents THE CROWN Interested Party Hearing: Appearances: 9 December 2016 P Nee Harland in person M von Dadelszen, Counsel for the Respondents G Melvin, Counsel for the Crown Judgment: 16 February 2017 JUDGMENT OF JUDGE L R HARVEY Copies to: P Nee Harland, C/- 719 Ngaio Street, Mahora Hastings 4120 llmhons@gmail.com M von Dadelszen, Bannister & von Dadelszen Barristers and Solicitors, PO Box 745 Hastings 4156; mark.vondadelszen@bvond.co.nz G Melvin, Crown Law, Te Tari Ture O Te Karauna, PO Box 2858 Wellington 6140; Geoffrey.Melvin@crownlaw.govt.nz

2 57 Tākitimu MB 2 Introduction [1] Peter Nee Harland seeks a determination as to whether Piriniha Prentice, Barry Wilson, Terry Wilson, Joinella Maihi-Carroll, Beverley Kemp-Harmer, Tania Huata, Evelyn Ratima, Rangi Spooner and Heitia Hiha (being committee members of Mana Ahuriri Incorporated Society) are the most appropriate representatives for the people of the Ahuriri Hapū. He also seeks an interim injunction until the question has been answered. [2] The respondents and Mana Ahuriri Incorporated Society (MAI) oppose the application on the basis that first, the applicant has no standing to bring the proceedings and, second, that the application is misconceived. [3] The Crown also seeks to be involved in these proceedings as an interested party. Crown counsel argues that the applicant challenges the appropriateness of the respondents to hold their positions as committee members of MAI and the initial trustee positions for the Mana Ahuriri Trust. Counsel has confirmed that the Crown does not agree to be bound by an order of the Court in so far as it relates to the historical Treaty claims of the Ahuriri Hapū. I am satisfied that, given the potential effect this application could have on the Ahuriri Hapū Deed of Settlement, the Crown should be added as an interested party to these proceedings. [4] On 9 December 2016 I convened a teleconference to hear from the parties. At the conclusion of the teleconference I directed the parties to file further submissions. Those submissions have now been received. On 18 January 2017 the applicant sought to file additional submissions in response. I granted the applicant the opportunity to do so with a right of reply from the respondents and the Crown. Those responses have now been received. Issues [5] The issues for determination are first, does the applicant have standing to bring the application? Second, does the Court have the jurisdiction to determine the proceedings? Background [6] MAI was established for the principal purpose of representing Ngāti Hinepare, Ngāti Mahu, Ngāti Matepu, Ngai Tawhao, Ngai Te Ruruku, Ngāti Paarau (which includes Ngai

3 57 Tākitimu MB 3 Tahu Ahi) and the claims of Marangatuhetaua (Ngāti Tu) in negotiations with the Crown for a comprehensive settlement of the historical claims of all seven hapū under Wai 55 (Te Whanganui a Orotu) and Wai 692 (Napier Hospital Claims) and all other historical claims of Ngāti Hinepare, Ngāti Mahu, Ngāti Matepu, Ngāti Parau and Ngai Tawhao in respect to the rohe of those hapū. 1 [7] In 2009, by way of a postal vote, it is said that Ahuriri Hapū gave MAI a mandate to negotiate a deed of settlement with the Crown. The evidence confirms that mandate proposal was accepted by 98.8 per cent of registered adult members. The Crown recognised this mandate on 29 January [8] MAI and the Crown, by terms of negotiation dated 22 June 2010, agreed the scope, objectives, and general procedures for the negotiations; and by agreement dated 19 December 2013, agreed, in principle, that Ahuriri Hapū and the Crown were willing to enter into a deed of settlement. 3 [9] On 19 December 2013, the Crown and MAI signed an Agreement in Principle which formed the basis for the Ahuriri Hapū Deed of Settlement which was initialled on 19 June 2015 and signed on 2 November [10] Ahuriri Hapū have, since the initialling of the deed of settlement, by a majority of 76 per cent, ratified the deed of settlement and approved its signing on their behalf by Mana Ahuriri Trust (MAT) the post-settlement governance entity for Ahuriri Hapū, and by a majority of 71 per cent, approved MAT receiving the redress. 5 As is customary, the Settlement will be implemented following the passage of legislation. Procedural history [11] The application was initially filed in July 2016 however it could not be accepted as it did not meet the requirements of r 9.11 of the Māori Land Court Rules 2011 concerning the names and addresses of those persons who it is claimed should be the representatives of the Mana Ahuriri Incorporated constitution r 2.2 Ahuriri Deed of Settlement Summary ( at 1.48 and 1.49 Ibid at 1.50 Ibid Ibid at 1.52

4 57 Tākitimu MB 4 class or group as well as the names and addresses of the persons currently representing the class or group. [12] The application was re filed on 27 October The applicant also suggested Mr Hawea John Patrick Moananui be appointed interim representative and an interim injunction be ordered until the application had been determined. [13] On 28 November 2016 Chief Judge Isaac referred the application to me for determination. 6 [14] As foreshadowed I convened a judicial conference on 9 December 2016 to hear from the parties following which I directed them to file further submissions by 15 December Does the applicant have standing? [15] Counsel for the respondents submits that the applicant has no standing to bring these proceedings. Counsel argues that the application was filed belatedly by an applicant who has not identified that he has any connection with Mana Ahuriri and who is not a member of MAI and is not known to whakapapa to the ancestors of Mana Ahuriri. [16] The applicant did not make any specific submission on this issue. [17] Section 30 does not limit who can file an application under that provision. Section 37(1) and (2) of the Act sets out who can make an application to the Māori Land Court. 37 Exercise of jurisdiction generally (1) Subject to any express provisions of this Act or of the rules of Court relating to the making of applications, the jurisdiction of the Court may be exercised on the application of (a) Any person claiming to have an interest in the matter; or (b) The Minister or the Chief Executive or a Registrar. (2) Notwithstanding subsection (1) of this section, the Court may grant to any person, body, or association leave to make an application to the Court for the exercise of its jurisdiction where the Court is satisfied (a) That a question of importance to the Maori people or any tribe or group of the Māori people is involved; and (b) That, because of the standing of the proposed applicant among the Maori people concerned and the proposed applicant's relationship to or connection with any land to which the application relates, it is appropriate that leave be granted to the proposed applicant. 6 [2016] Chief Judge s MB 962 (2016 CJ 962)

5 57 Tākitimu MB 5 [18] Under s 37(1)(a) a person is required to have an interest in the matter. In von Dadelszen v Goldsbury - Puketiti 4A the Māori Appellate Court considered the interpretation to be given to s 27(1) of the Māori Affairs Act 1953 which provided that: 7 Subject to any express provisions of this Act as to the making of applications, the jurisdiction of the Court in any matter may be exercised on the application of any person claiming to be interested therein [19] The Appellate Court found that: 8 The subject of that section is not, in our view, any particular lands, but, the jurisdiction of the Court in any matter. The interest therein accordingly refers not to any particular land, but rather to the matter before the Court, in this case a proposed roadway. The question therefore is not whether Kuini Goldsbury has a legal or beneficial interest in either block, but whether she could claim to have some general interest in the laying out of the particular roadway proposed. [20] In adopting that approach the question in this case is whether the applicant, Mr Nee Harland could claim to have some general interest in relation to who are the most appropriate representative of Ahuriri hapū. [21] The applicant has not provided any evidence as to his standing. He does not purport to be a member of MAI or one of the seven Ahuriri hapū. Even so, Mr Nee Harland says he is concerned about the actions of the respondents in their role as committee members of MAI and in that context can be said to have some general interest in the matter to be determined. Accordingly, I am satisfied that Mr Nee Harland has standing to bring this application. Does the Court have jurisdiction? Applicant s submissions [22] The applicant contends that the purpose of this application is to review the acts and or omissions of the respondents as individuals representing MAI. The applicant specifically states that the application is not about the Crown recognised mandate of MAI. [23] The applicant further argues that per s 30(1)(b) of the Act this Court has the jurisdiction to determine that the respondents are not the most appropriate representatives of Ahuriri Hapū and per s 30C(3)(b) the Court can make an order as to who is the most appropriate representative for Ahuriri Hapū. 7 8 (1982) 16 Waikato Maniapoto Appellate Court MB 328 (16 APWM 328) Ibid at MB 330

6 57 Tākitimu MB 6 Respondents submissions [24] Counsel submits that the issue of who are or who are not lawful committee members of MAI is an entirely separate matter from who are the most appropriate representatives of the Ahuriri Hapū. Accordingly, she argues that the application is misconceived. Crown submissions [25] Crown counsel submits that the applicant is effectively asking the Court to exercise a jurisdiction it does not have. Counsel submits that the application while filed under s 30 is primarily focussed on the Court determining the legal status of the respondents as MAI committee members and the legality of decisions made by the respondents purporting to act as committee members. [26] Counsel also contends that the proper forum for establishing impropriety or unlawfulness about the operation of societies or trusts not established under the Act is not the Māori Land Court. Counsel argues that the more appropriate forum for such complaints is to seek judicial review or other civil proceedings in the High Court or by way of complaint to the Police in respect of criminal allegations. The Law [27] The relevant provisions of the Act are ss 30, 30A, 30C and 30: 30 Maori Land Court s jurisdiction to advise on or determine representation of Maori groups (1) The Maori Land Court may do either of the following things: (a) advise other courts, commissions, or tribunals as to who are the most appropriate representatives of a class or group of Maori: (b) determine, by order, who are the most appropriate representatives of a class or group of Maori. (2) The jurisdiction of the Maori Land Court in subsection (1) applies to representation of a class or group of Maori in or for the purpose of (current or intended) proceedings, negotiations, consultations, allocations of property, or other matters. (3) A request for advice or an application for an order under subsection (1) is an application within the ordinary jurisdiction of the Maori Land Court, and the Maori Land Court has the power and authority to give advice and make determinations as the court thinks proper. 30A Intent of sections The intent of section 30 and sections 30B to 30I is

7 57 Tākitimu MB 7 (a) to enable and encourage applicants and persons affected by an application under section 30 to resolve their differences concerning representation, without adjudication; and (b) to enable the Chief Judge to facilitate, as far as possible, successful resolution of differences surrounding an application by the persons affected, without adjudication. 30C Powers of Judge in addressing applications for determination (1) The jurisdiction in section 30(1)(b) is exercised on written application to the Chief Judge. (2) Within 20 working days of receiving an application under subsection (1), the Chief Judge must allocate the application either to him or herself or to another Judge to address. (3) The Judge addressing an application for a determination may (but is not obliged to) do 1 or more of the following things: (a) determine the most appropriate representatives of a class or group of Maori, and order accordingly, if subsection (5) applies: (b) refer the application to the Maori Land Court for hearing and determination: (c) exercise the powers in section 67 for the purpose expressed in that section: (d) refer some or all of the issues arising from the application to a mediator for mediation: (e) dismiss or defer consideration of the application, if subsection (6) applies. (4) The Judge may choose not to address an application if the Judge is satisfied that the issues it presents are governed by another enactment, or another part of this Act, or are more appropriately addressed in another forum. (5) The Judge may make a determination under subsection (3)(a) if the Judge is satisfied that (a) the applicant has taken reasonable steps to notify those persons affected by the application of the application; and (b) those persons do not oppose the application. (6) The Judge may dismiss or defer consideration of an application under subsection (3)(e) if 30H (a) it is vexatious, frivolous or an abuse of the Maori Land Court, or fails to satisfy rules of court; or (b) it does not present serious issues for determination; or (c) the Judge considers it appropriate to dismiss or defer consideration of the application for another reason. Orders (1) In making orders under section 30 and sections 30B to 30I, the Judge or the court, as the case may be, may do 1 or more of the following: (a) specify the duties and powers of the representatives of a class or group of Maori and impose conditions on the exercise of those powers: (b) incorporate or restate the terms of an agreement reached by the persons participating in an application:

8 57 Tākitimu MB 8 (c) incorporate the terms that express the outcome of mediation: (d) specify that the order applies for general or specific purposes: (e) (f) specify the purpose or purposes for which the order is made: specify a date after which the order ceases to have effect. (2) Neither a Judge nor the court has jurisdiction to make an order that binds the Crown in relation to applications concerning Treaty settlement negotiations unless the Crown agrees to be bound. Discussion Is the application sought for proceedings, negotiations, consultations, allocations of property, or other matters? [28] It is trite that this Court s jurisdiction to determine, by order, who are the most appropriate representatives of Māori applies to representation of a class or group of Māori in or for the purpose of current or intended proceedings, negotiations, consultations, allocations of property, or other matters. [29] In Pue v Nga Hapu o Nga Ruahine Iwi Inc the Māori Appellate Court determined that s 30(2) is a clear indication that the Court s jurisdiction is not to be used to declare representatives for abstract, indefinite purposes. 9 In discussing the ambit of s 30 the Appellate Court referred to the memorandum of Chief Judge Durie (as he then was) as quoted by Judge Clark in the decision of the Court below: 10 [33] In its 2001 discussion paper the Law Commission referred to a memorandum by Chief Judge Durie, as he then was, referring to the intention of s 30 of TTWMA in its original form. The memorandum underscores the point that the then Chief Judge considered that the intention of s 30, at least in its original form, was designed to determine actual representation problems as they had arisen. Section 30 was not designed to determine the representation of a group for all time or for a wide ranging number of purposes of no immediate concern. I set the quotation out in full: The section may be defined by reference to the malady that the Legislature has sought to cure. The malady in this case would appear to be that persons seeking to effect negotiations, consultations, funding allocations or the like, in respect of Māori groups, are uncertain as to who may have an appropriate mandate to effect such negotiations or consultations or as to who may give a valid receipt. The section is designed to give that certainty so that outside parties may treat or be treated with. Conversely, the section does not appear to be designed to enable the Court to determine the appropriate representatives of a group for all or a wide number of purposes. The purpose must relate to some matter of business that is pressing at the time. It must also be established that the question of 9 10 [2011] Māori Appellate Court MB 577 (2011 APPEAL 577) at [40] Ibid at [43] see also Manuirirangi v Nga Hapu o Nga Ruahine Iwi Inc [2010] Chief Judge s MB 355 (2015 CJ 355) at [33]

9 57 Tākitimu MB 9 representation for the particular purpose described has not and cannot be settled outside of the Court. The section may be read in the context of past Legislative history. The legislature empowered the Māori Land Court to determine appropriate tribal representatives for a range of purposes in the [Runanga Iwi Act 1990], but then repealed that Act [Runanga Iwi Act Repeal Act 1991]. This supports the view that the current section limits the Court to determining representation in the light of specific representation problems that arise, and is not a mandate to determine the representation of a group for all or for a wide ranging number of purposes of no immediate concern. The words or other matter should be read in the context of the words preceding them. The common denominator for the preceding words is that some outside person wishes to treat with a Māori group, or vice versa. [30] In that case the only current or intended negotiations were in relation to the Treaty settlement proceedings. The Appellate Court upheld Judge Clark s finding that s 30 was not designed to determine or advise upon appropriate representatives for a wide number of purposes for all time and that there were no proceedings, negotiations, consultation, allocation of property or other matters which required the intervention of the Court. [31] In the present case Mr Nee Harland contends that the principal purpose of the application is for the Court to determine that the respondents are not the most appropriate representatives for MAI. The applicant takes no issue with the MAI entity nor does he seek to challenge MAI s mandate. His concern is with the acts and or omissions of the respondents in their role as committee members of MAI. [32] Mr Nee Harland says he is concerned that the respondents have breached several rules contained in the MAI constitution particularly regarding the election of committee members and the holding of annual general meetings. The applicant also says that has real concerns about a loan some of the respondents authorised to be taken out against MAI. He is opposed to that debt being transferred to the Post Settlement Governance Entity MAT and is also opposed to the respondents being appointed as the initial trustees of MAT. [33] While those allegations may be the cause for some concern I do not see how they relate to a s 30 order. The Court s jurisdiction is to be exercised for the purpose of determining who the most appropriate representatives are for a specified purpose. The applicant has not pointed to any current proceedings, negotiations, consultation, and allocation of property or other matters which require the intervention of the Court. In fact the only matters that are current are those concerning the Treaty settlement.

10 57 Tākitimu MB 10 [34] Mr Nee Harland suggests that a simple and straight forward solution would be for the Court to order the respondents to voluntarily stand down as committee members of MAI and trustees of MAT and for an independent interim trustee to organise fresh elections amongst the Ahuriri hapū to determine the most appropriate representatives. [35] I agree with the respondents and the Crown that the proper forum for establishing impropriety or unlawfulness about the operation of societies or trusts not established under the Act is not the Māori Land Court but by way of review or other civil proceedings in the High Court. [36] Moreover, MAI is an incorporated society. It was not established per Part 13 of the Act or Part 4 of the Māori Affairs Amendment Act It is not subject to Part 13 of the Act relating to incorporations. Accordingly, the Court has no ability to review the acts or omissions of the respondent under s 280 of the Act. A review must be undertaken in a court of competent jurisdiction. An application per s 30 cannot be used to circumvent that process. As the Crown will not be bound by any determination should the application proceed? [37] Section 30H(2) states: 30H Orders (2) Neither a Judge nor the court has jurisdiction to make an order that binds the Crown in relation to applications concerning Treaty settlement negotiations unless the Crown agrees to be bound. [38] It is well established that, while the Court retains the jurisdiction to make a s 30 order despite the Crown s intention not to be bound by that order, where a matter is nonjusticiable and the Court s order would have no effect, it would be an improper use of the Court s time to hear a mandate dispute in such circumstances. [39] As foreshadowed, the Crown has confirmed that it would be concerned that a Courtmade determination as to who are the most appropriate representatives of Ahuriri Hapū would cut across the same decision the wider group has recently made for itself in the course of negotiating its historical Treaty claims with the Crown. [40] To the extent that there may be residual matters of implementation in respect of those historical claims, and in respect of any other settlement negotiations with Ahuriri Hapū,

11 57 Tākitimu MB 11 the Crown records that it does not agree to be bound by an order that may be made pursuant to s 30 of the Act. [41] Mr Nee Harland submits that s 30H (2) is of no relevance as the application does not relate to the Treaty settlement. Yet, despite that repeated claim, I consider that it is. The applicant acknowledges that if this Court were to make findings that the respondents were acting unlawfully it may then have an impact on MAI and MAT. [42] As foreshadowed, the Ahuriri Hapū Deed of Settlement was initialled on 19 June 2015 and signed on 2 November It was ratified by a majority of 76 per cent, and MAT was approved to sign the Deed and receive the redress. 12 The settlement will be implemented following the passage of settlement legislation in due course. [43] Given these realities, that the negotiations to settle the historical Treaty claims of Ahuriri Hapū are now substantially completed, I consider that there would be little point in making any decision on the application as it relates to the settlement. Decision [44] The application is dismissed per s 30C (6)(b) of Te Ture Whenua Māori Act [45] Counsel and Mr Nee Harland may exchange costs memoranda within 1 month. Pronounced at 9.55am in Te Hāwera on Thursday this 16 th day of February 2017 L R Harvey JUDGE Ahuriri Deed of Settlement Summary ( Ibid at 1.52