IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A RESERVED JUDGMENT OF JUDGE L R HARVEY

Transcription

1 337 Aotea MB 131 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER IN THE MATTER OF Section 67 of Te Ture Whenua Māori Act 1993 Mangaporou Ahu Whenua Trust Hearing 17 March 2015, 335 Aotea MB 55 Judgment: 10 June 2015 DAVID CHURTON on behalf of TAUNOKA TRUST Applicant TRUSTEES OF THE MANGAPOROU TRUST Respondents RESERVED JUDGMENT OF JUDGE L R HARVEY Introduction [1] On 15 October 2014 David (Tuffy) Churton Jnr, on behalf of Taunoka Trust filed an application seeking a judicial conference in respect of Mangaporou Trust. The judicial conference was held on 17 March 2015 at the conclusion of which I adjourned the application and indicated that a written decision would issue in due course. 1 [2] From the evidence before the Court I apprehend that Mr Churton remains dissatisfied with the management of the land by the Mangaporou Trust. He has raised a host of issues, including legal and constitutional points, in his effort to challenge the authority of the current trustees in the context of their refusal to grant him a lease of the land and for related reasons. [3] In general terms therefore I consider that the purpose of the present application was for Mr Churton to seek directions on how best he might challenge the decisions of the trustees and to enable him to put his arguments on customary title forward for consideration. In summary, I consider that the relevant issues for determination are: Aotea MB 55 (335 AOT 55)

2 337 Aotea MB 132 (a) (b) (c) Are the trustees required to enter into leases or licences with the applicant? Are the trustees required to enter into discussions with Mr Churton? Are customary rights and the Treaty of Waitangi relevant to this application? Background [4] The Mangaporou Trust was constituted on 6 December 1979 as an investigatory trust. 2 The trust administers 15 Māori freehold land blocks. The original trustees were Whakaari Metekingi, Hori Hipango, Te Reimana Bailey, Ani Davenport, Hoeroa Marumaru, Merengue Phillips and Taitoko Rangiwhakateka. 3 The current trustees are Maraea Taiwhati, Michael Parker, Chris Shenton, Te Aroha McDonnell and Michael Parker Jnr. 4 Applicant s submissions [5] Mr Churton submitted that in 1986 his whānau took possession of part of the trust lands under a temporary grazing agreement. He claimed that at the time the grazing agreement was entered into the trustees assured them that they would be granted a long term development lease. The applicant further added that in 1999 the temporary grazing license was terminated because the trustees were not willing to enter into a further lease. He claimed that improvements to the land during that time contributed almost 50 per cent of the total value of the trust lands. [6] The applicant further submitted that the trust had failed to recognise or acknowledge his interest in the trust lands. He added that the trust has not used the land for a considerable number of years and have applied to the local council for a rates exemption on the basis that the land is unproductive. [7] Mr Churton contended that his whānau continue to occupy the property under customary rights. He stated that he has suffered distress as a result of interactions between himself and the trustees and claims that the Court is required to protect his rights under the Treaty of Waitangi as recognised by the Crown in the Wai 377 claim. He relies on the 2003, Waitangi Tribunal Report on the Wellington District where the Tribunal observed that Māori Whanganui MB 124 (143 WG 124) 143 Whanganui MB 124 (143 WG 124) 310 Aotea MB 164 (310 AOT 164)

3 337 Aotea MB 133 customary rights to land and associated waterways and to the sea were complex, fluid and multi layered. [8] Accordingly, the applicant asserted that his family have customary rights over the trust lands, which were established over time by his tipuna through occupation. To that end, the applicant argued that the Human Rights Act 1993 cannot diminish the rights of his whānau to use and occupy Māori land as such rights are retained per Article Two of the Treaty of Waitangi. [9] The applicant implored the Court to direct the trustees to enter into a lease agreement with him for 25 years thus honouring his rights under the Treaty of Waitangi. Respondent s submissions [10] The trustees submitted that the application lacks detail about the differences which the applicant seeks to resolve. The trustees confirmed that they have not granted any right of occupation to the applicant nor has the applicant provided any authenticated and substantiated evidence of any interests in the lands administered by the trust. [11] The trustees further submitted that they have, since November 2010, been working on a strategic plan concerning the use of the land with the aim of generating income for all the beneficiaries of the trust. The plan was presented at the 2013 AGM and affirmed by the owners as a positive step in the right direction. The trustees have over the last 12 months taken action to implement the strategic plan. [12] The trustees added that the strategic plan has five key points: restoring cash flow, growing the capability of the trustees, establishing strong accountability systems, maintaining a positive relationship with the communities of Ranana and Jerusalem and developing a ten year sustainable management plan. [13] The trustees submitted that they have now entered into two leases for part of the trust lands, the trustees have undergone training and hold regular trust meetings, financial statements have been completed for 2005 to 2013, the trustees have also looked at ways to promote the activities of the trust, employment initiatives and restoration projects. Further the trustees confirmed that an integrated farm plan was completed in 2011 and presented to the owners in A land use study has also been completed as well as an engineer s

4 337 Aotea MB 134 report on the bridge situated on the trust s land. They say that any income generated is being put back into the improvement of access. The Law [14] The application was filed per s 67 of Te Ture Whenua Māori Act 1993: 67 Powers of Judge to call conference and give directions (1) For the purpose of ensuring that any application or intended application may be determined in a convenient and expeditious manner, and that all matters in dispute may be effectively and completely determined, a Judge may at any time, either on the application of any party or intended party or without any such application, and on such terms as the Judge thinks fit, direct the holding of a conference of parties or intended parties or their counsel presided over by a Judge. (2) At any such conference, the Judge presiding may do all or any of the following things: (a) with the consent of the applicant, amend the application to give better effect to the applicant s intention: (b) settle the issues to be determined: (c) give directions as to service, and as to the public notification of the application and any hearing: (d) direct by whom and by what time any notice of intention to appear, or any statement in reply, shall be filed: (e) direct the filing of further particulars by any party: (f) direct further research by any party, or by the Registrar from the court records: (g) direct the filing by any party of any valuation, land use, or other report that may assist the court in determining any matter in issue: (h) fix a time by which affidavits or other documents shall be filed: (i) exercise any powers of direction or appointment vested in the court or a Judge by the rules of court in respect of applications of the class with which the Judge is dealing: (j) give such consequential directions as may be necessary: (k) fix a time and place for the hearing of the application. (3) Notwithstanding any of the foregoing provisions of this section, a Judge may, at any time before the hearing of an application has been commenced, exercise any of the powers specified in subsection (2) without holding a conference under subsection (1).

5 337 Aotea MB 135 [15] In Keepa v Vercoe Ruatoki B92 the Māori Appellate Court referred to its previous decision Karena v George Karaka Huarua A and B where it held: Under section 67(1)/93 a conference is part of a preliminary process aimed at ensuring that an application is managed and eventually determined in a convenient and expeditious manner. To enhance that purpose, the Court is given various powers of direction as are set out in section 67(2)/93; none of those matters list the making of final orders or dismissal as jurisdictional options that may be pursued during such conferences. 29. While we tend to the view that the powers set out in section 67/93 are not exclusive, a Judge is limited to making directions in keeping with the tenor and intent of the section. There is no mention of a power to make an order. This is consistent with section 41/93, which requires every order to be pronounced orally in open Court. A conference is not a hearing in open Court. The parties are not required to be ready to proceed or to put forward their cases. Admittedly, it serves to bring the parties together and there is always the possibility that discussion may bring about agreement. In such case, the Court has no power to make an order but it may be appropriate for the Judge, with the consent of the parties, to convene a hearing and deal with the matter under Rule 11 of the Maori Land Court Rules Even then, the notice requirements are still reasonably onerous. In other cases, where orders are proposed during a conference, the requirements as to notice may render it necessary for a hearing to be set down and formally notified. 30. There is no authority for the Court to dismiss an application during the course of a judicial conference. Accordingly the order dismissing the applications has been made in excess of jurisdiction. Discussion Are the trustees required to enter into leases or licences with the applicant? [16] The applicant sought to raise issues relating to a purported long term lease arrangement between the trustees and Churton Farms Ltd. He also referred to issues regarding ownership of the bridge erected on the land. As the applicant is aware, those matters have been dealt with by this Court and the Māori Appellate Court previously. 6 [17] In 2002 the Court dealt with several concerns relating to the administration of the trust. The Court noted that Churton Farms Ltd had held an annual grazing agreement since the 1980s over Pukehika block, which was part of the trust s corpus. That grazing 5 6 Keepa v Vercoe Ruatoki B92 [2015] Māori Appellate Court MB 189 (2015 APPEAL 189) at [13] Churton v Trustees of Mangaporou Trust (2002) 122 Aotea MB 182 (122 AOT 182), Churton v Trustees of Mangaporou Trust (2003) 132 Aotea MB 219 (132 AOT 219), Churton v Mangaporou Trust - Mangaporou Trust (2003) 15 Aotea Appellate Court MB 120 (15 WGAP 120) and Churton v Trustees of Mangaporou Trust (2009) 226 Aotea MB 82 (226 AOT 82)

6 337 Aotea MB 136 agreement expired in Regarding the grazing agreement the Court noted that the trustees had made attempts to have Churton Farms Ltd vacate the block and to recover rental from them. 7 [18] Mr Churton had also filed an application in 2002 seeking an injunction to enable the continued occupancy of the trust s land by Churton Farms Ltd. That application was dismissed on the basis that the trust order empowers the trustees to grant an annual tenancy agreement upon such terms and conditions as they think fit. The Court considered that the trustees must have the flexibility to consider all potential lessees and not be limited to one prospective tenant. 8 [19] Then in 2003 the orders made on the appointment of trustees and the dismissal of the injunction application were subsequently subject to unsuccessful appeal to the Māori Appellate Court. 9 It was argued by Mr Churton that Churton Farms Ltd took the annual grazing license on assurance that the license would operate until a long term development lease was negotiated. He said that they had acted in reliance on the assurance and the active encouragement of the trustees over the period s. The Māori Appellate Court determined that there were no sufficient grounds for an urgent injunction. [20] Further, in 2003 applications were filed by Mr Churton seeking, inter alia, compensation for stock losses. The Court directed the parties to file submissions on jurisdiction. It was argued that the Court had jurisdiction per s 18(1)(d) and s 237 of the Act to make order for the return of stock, access to the trust s land to remove stock and compensation or any stock lost, sold or taken as well as any benefits gained by the trust from the stock and any wool produced. The Court determined that it did not have the jurisdiction to deal with such a claim and dismissed the application. 10 [21] Further applications were filed by the Churtons in 2008 seeking orders declaring that a bridge erected on the property belonged to them and that the trust should compensate the Churtons for erecting the bridge. The Churtons also sought compensation for other improvements made to the land during their occupation of the land. In relation to the long term lease arrangements the Court commented: Churton v Trustees of Mangaporou Trust (2002) 122 Aotea MB 182 (122 AOT 182) Ibid Churton v Mangaporou Trust - Mangaporou Trust (2003) 15 Aotea Appellate Court MB 120 (15 WGAP 120) Churton v Trustees of Mangaporou Trust (2003) 132 Aotea MB 219 (132 AOT 219) Ibid at [30] to [31]

7 337 Aotea MB 137 [30] Mr Churton is very clear in his mind as to what the terms in the agreement needed to be and should have been. The trustees (including the trustees appointed in 1991) never agreed to his terms. The evidence before me indicates that the trustees had at the most agreed to consider Mr Churton s proposal and, if appropriate terms could be reached, they would then enter into a long-term lease. This is a different position from Mr Churton s assertion that the trustees promised him a long-term lease. [31] Moreover the trustees did not have the power to enter into a long-term lease arrangement. In 1986 and up until 2005, the Trust was an investigatory trust operating under limited trust powers. The trust powers specified that the trustees could not grant tenancies for periods longer than one year. If the trustees had entered into a long-term lease with Mr Churton they would have been in breach of the Trust Order and the lease would have been void. [22] Regarding the bridge, it was determined that it was in part firmly annexed to the land of the trust and had been so for 19 years for the purpose of forming part of the land on a permanent basis. The Court went on to conclude that Mr Churton built the bridge at his own expense at his own risk (given that he had no long-term lease) and as such no implied term for compensation could be imputed. The Court found there to be no equitable basis for a claim of compensation nor had there been any unconscionable conduct on the part of the trustees to justify imposing an equitable lien. The application was dismissed. 12 [23] In light of the previous determinations made I do not propose to revisit these issues. The Court has previously ruled that the trustees did not have the power to enter into the long-term lease arrangement sought by Mr Churton nor did they owe any compensation to Mr Churton in association with improvements to the block. Are the trustees required to enter into discussions with Mr Churton? [24] The judicial conference was sought on the basis that the Court should direct the parties on how to resolve their issues. The trustees submit that the applicant has not specified those issues with sufficient particularity and further say that they are working on a development for the trust s lands and are not contemplating a lease with the applicant. [25] Mr Shenton, on behalf of the trust, confirmed that the trustees had held discussions with Mr Churton and confirmed that the trust did not wish to lease the land to the applicant. 12 Churton v Trustees of Mangaporou Trust (2009) 226 Aotea MB 82 (226 AOT 82)

8 337 Aotea MB 138 [26] The apparent inability of the parties to resolve their differences has been an ongoing challenge for this trust as highlighted by the previous applications filed with the Court. For example, in 2002: 13 Mr T. Churton has acknowledged that his prime objective is self motivated. That is, he wants the long terms lease of the trust lands and it is clear that any proposed trustee who may pose a threat to him achieving that objective will not meet with his approval. [27] It appears that the applicant s stance has not changed. He is simply unwilling to accept the trustees decision not to grant him a long term lease. Further, he refuses to recognise that the trustees have the legal ownership of the land. [28] Throughout the duration of the judicial conference I raised with the applicant the fact that the owners of the land have spoken by firstly agreeing to create the trust and secondly by electing trustees. I made clear to the applicant that the Supreme Court has held that trustees can do anything an absolute owner can except sell. 14 Mr Churton was concerned with the idea that the land may be leased to a Pakeha. I observed that the trustees could not discriminate against who the land was leased to pursuant to the Humans Right Act 1993 and that the ultimate decision was theirs alone, not the owners, nor the Court. Mr Churton did not agree. [29] It is trite law that when trustees are appointed they take legal ownership. In Eriwata v Trustees of Waitara SD s 6 and 91 Land Trust Waitara SD s 6 and 91 Land Trust the Māori Appellate Court held: 15 The owners in their shares, in the schedule of owners, have beneficial or equitable ownership but do not have legal ownership, and do not have the right to manage the land or occupy the land. Trustees are empowered and indeed required to make decision in relation to the land and they are often hard decisions. Their power and obligation to manage the land cannot be overridden by any owner of group of owners or even the Māori Land Court, so long as the trustees are acting within their terms of trust and the general law, and it reasonably appears that they are acting for the benefit of the beneficial owners as a whole. A meeting of owners cannot override the trustees. Decisions to be taken for the land are to be decisions of the trustees. They decide who can enter and who can reside there and how the land is managed. It is for the trustees to control. They have the power to permit occupation Churton v Trustees of Mangaporou Trust (2002) 122 Aotea MB 182 (122 AOT 182) Fenwick v Naera [2015] NZSC 68 Eriwata v Trustees of Waitara SD s 6 and 91 Land Trust Waitara SD s 6 and 91 Land Trust (2005) 15 Aotea Appellate Court MB 192 (15 WGAP 192)

9 337 Aotea MB 139 [30] One of the matters raised during the judicial conference was the fact that the applicant is not an owner in any of the lands administered by the trust. Mr Churton says that his grandfather is an owner in one of the blocks and that succession to those interests has not taken place. He further said that he would do so as soon as possible. [31] I note that this issue was discussed by the Māori Appellate Court in their 2003 decision involving these parties. That Court considered: 16 On one view of it, far from being alienated from the land, the Churtons have effectively had exclusive use and enjoyment of some valuable trust property for over a decade. During that time they did little to resolve the question of the 1986 agreement. It was only when they served notice to vacate trust property that they attempted to use the Court to their own ends against the trustees. While it is clear that the Churtons may be entitled on succession, their future interest must be weighed against the direct interests of all the current legal and beneficial owners to enjoy the benefits, such as rentals, that are derived from the retention, use and development and control of the trust lands Clearly the Churtons have been demanding lessees. Any further occupation by the Churtons will be demanding of the limited trust resources, relative to any new lessee who will comply with a new lease agreement. That cannot be in the best interests of all the owners, their whānau, hapū or descendants. [32] I agree that the applicant s future interest must be weighed against the direct interests of all the current legal and beneficial owners. That is a matter for the trustees to consider when determining the future use of the land. The trustees have said that they do not wish to enter into a long-term lease with the applicant. Moreover, if Mr Churton seeks to exercise the rights and obligations of an owner in the land then he needs to prosecute an application for succession. [33] My conclusion is that the trustees are not required to enter into any discussions with the applicant in relation to the granting of a long term lease or for any other purpose. Are customary rights and the Treaty of Waitangi relevant to this application? [34] At the hearing the applicant prefaced his submissions by saying: 17 D Churton: Sir, my argument today really is not with the Mangaporou Trust as such. First of all I would like to say that. I think my argument really is with this Churton v Mangaporou Trust - Mangaporou Trust (2003)15 Aotea Appellate Court MB 120 (15 WGAP 120) 335 Aotea MB 55 (335 AOT 55) at MB 62-63

10 337 Aotea MB 140 Court, the Māori Land Court and how the Crown has dealt with Māori land right from the beginning which is 1840 [35] The applicant then proceeded to discuss the Wai 377 claim in support of his argument that he and his whānau have customary rights to occupy the trust lands. The basis of the applicants claim is that he has occupation of Mangaporou lands under customary rights. He also relied on the Whanganui Report of the Tribunal. [36] In Te Hiwi v Tahamata Incorporation I dealt with claims of a similar nature. 18 In that decision the following observations were made: 19 The Applicant refers in his submission to concepts that are commonly identified with elements of the Tino Rangatiratanga or Māori Sovereignty movement. Those concepts concern, inter alia, customary title, constitutional sovereignty and the status of the Treaty of Waitangi. in Faulkner and Ors v Tauranga District Council (unreported CIV , Cooper J, High Court Hamilton, 2 June 2004) when confronted with Treaty and customary based rights arguments Cooper J simply reinforced the common law and constitutional orthodoxy as to sovereignty, the Treaty and issues of custom. That orthodoxy has been confirmed by the Privy Council in Te Heuheu Tukino v Aotea District Māori Land Board [1941] NZLR 590 and more recently by the Court of Appeal in New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 and Ngati Apa v Attorney-General [2003] 3 NZLR 643. Against this backdrop it is important in my view to underscore that the Māori Land Court is a court of record created by statute. The Act and other statutes, the Māori Land Court Rules 1994 and the various regulations concerning the administration of Māori land and certain Māori entities delineate the parameters of this Court s jurisdiction. A number of superior courts decisions are also relevant in this context. They include Attorney General v Māori Land Court [1999] 1 NZLR 689 (CA), Paki v Māori Land Court [1993] 3 NZLR 700 (HC), McGuire v Hastings District Council [2003] 2 NZLR 577 (PC) and Ngati Apa v Attorney General (supra). The essential point is that, while the Court has a wide brief to deal with Māori land and related matters, ir does not have the jurisdiction to deal with the essentially constitutional issues raised by the Applicant in this case. There are other fora, both legal and political, where arguments of this kind can be considered. This Court is not one of them and consequently I cannot take this matter any further. [37] During the judicial conference in a lengthy exchange I explored with the applicant whether he understood that the law provides that Māori customary title is extinguished when Te Hiwi v Tahamata Incorporation (2005) 148 Aotea MB 265 (148 AOT 265), see also Oppert v Thompson - Wharekawa 5B South 4B1 and Wharekawa 5B South 4B2B2B2 (2006) 21 Waikato Maniapoto Appellate MB 106 (21 APWM 106) and Kaihau v Police HC Palmerston North AP5/2000, 11 May 2000 at [10]. New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA); and affirmed in R v Waetford CA406/99, 2 December Mason v R Te Hiwi v Tahamata Incorporation (2005) 148 Aotea MB 265 (148 AOT 265)

11 337 Aotea MB 141 a title investigation has been undertaken before the Native Land Court. The applicant did not agree: 20 D Churton: What I m saying, just like what you said, that when it s been put into Māori freehold title customary right is extinguished at that point. I m saying no, that s not when it is extinguished. It is extinguished when it s taken out of Māori freehold title and put into European title. At the point that it s in European title it s unencumbered by any Māori Land Court, Te Ture Whenua Māori Act 1993 or anything like that. Prior to that land going from being Māori land to European freehold title it is encumbered by the Māori Land Court and Te Ture Whenua Māori Act So to say that customary rights and rights of occupation were extinguished at that point that all of this land goes into Māori freehold land creates this problem. So what you re saying is that the Crown s interpretation is that also the remaining Māori land that then got transferred though the Native Land Court and was given title, that then the customary rights were extinguished. So in effect customary rights have been extinguished throughout the whole of New Zealand And I believe that is wrong. And I believe that if that is the case there is a huge contemporary claim that Court be taken to the Crown jointly by all iwi in New Zealand to get compensation to do that [38] The applicant implored the Court should accept that he and his whānau have customary rights and occupation of the land in reliance on the Tribunals findings. As I pointed out to Mr Churton during the judicial conference he has misunderstood what customary rights mean in the context of the Tribunal s jurisdiction and functions per the Treaty of Waitangi Act At the time I observed that it was open to Mr Churton to file a claim in the Waitangi Tribunal and put his arguments to that body if he considers that there is merit in doing so. The short point is that this Court has no jurisdiction to entertain these submissions. [39] My conclusion is that customary rights and the Treaty of Waitangi are not relevant to the present application for a judicial conference. The Treaty relationship is between hapū and the Crown, not between non-owners and the trustees of Māori freehold land. It is a relationship that has been acknowledged both formally, through legislative means, and informally through interactions and exchanges over the last century. Customary rights are also a matter for the hapū exercising mana whenua in accordance with their traditions and Aotea MB 55 (335 AOT 55) at MB 62-63

12 337 Aotea MB 142 customs. They can only fall within the purview of the Court where there is a legal basis to entertain such submissions. The Court cannot intervene where it does not possess the statutory jurisdiction to do so. Decision [40] The application for judicial conference is concluded and dismissed. [41] There will be no order as to costs. Pronounced in open Court at am in Whanganui on the 10 th day of June 2015 L R Harvey JUDGE