Gisborne C L Wickliffe F McClutchie, Clerk of the Court 23 October 2001 A Te Araroa Maori Township Sections 14, 15,23 - Partition 289/93

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1 Minute Book: 61 RU A 245 Place: Present: Date: Application No: Gisborne C L Wickliffe F McClutchie, Clerk of the Court 23 October 2001 A Subject: Section: Te Araroa Maori Township Sections 14, 15,23 - Partition 289/93 Background DECISION,.; Te Araroa Township Sections 14, 15 traditionally known as Ruaotainui, was created by surveyed Investigation of Title Order dated 2 September The lands were once subject to the Maori Reserved Land Act There has been an ahu whenua trust constituted over these sections and the Maori Trustee is the responsible trustee. (See 16 Ruatoria MB varied at 42 Rua 278. His Honour Judge Russell at 28 Ruatoria MB 239 described the reason for the need to establish the trust to administer the land in the following terms: By 1979 forestry development had created serious housing shortage in Te Araroa. Maori Affairs and other government agencies were willing to build houses but there were no sections. On Ruaotainui was vested in the Maori Trustee under S.438 with advisory trustees upon trust to subdivide the land for housing. Obviously any subdivision of Sec. 23 required the co-operation of the lessees under the perpetual lease. The advisory trustees were Mrs Constance Grace Katae, Mr Koro M Dewes and Sir Henare Ngata. A surveyor prepared a subdivisional plan of Lots 14 & 15 into 39 sections. It was apparently proposed that the Waiapu County Council should rezone the land residential but Constance Katae and R Rickard objected. They finally withdrew their objection on promises that their shares would be located in Sec 23, that they would be able to take the balance of their shares in sections fronting Koronia Street and that the sale of Lots 1-9 would be arranged in consultation with Mrs Katae. It would seem that if Secns 14 & 15 are to be used for housing the first step should be for the shares in the freehold owned by the lessees under the perpetual lease to be partitioned out in Sec 23. The Katae Whanau Trust and Mr William Herbert Beresford Rickard (who is the successor to R Rickard are involved in this application. They both currently hold the perpetually renewable lease over Section 23. The Katae Whanau Trust also held a lease over Secs 14 & 15 which has expired. Description of the Land The land is located just west of Te Araroa township and it forms a square block of stony flats bounded by the sealed Koronia Street on the eastern boundary and the unformed Kahukura Street on the seaward side. Under the proposed Combined Regional Land and District Plan 1997 the property is zoned "Rural General". The title contains hectares proportioned as follows:

2 Minute Book: 61 RUA 246 Section 14 Section 15 Section 23 Total ha Previous Application In 1997 an application was made to the Maori Land Court for partition of the shares held by the Katae Whanau Trust located in Section 23 with any balance left over to be located. in the balance area of Sections 14 and 15. His Honour Judge Savage dismissed that application on 29 October 1997 for want of sufficient owner and shareholder support. (See 49 Ruatoria MS In January 1999, his Honour Judge Isaac directed reinstatement of the application, however, after considering the matter he realised that he did not have jurisdiction to make such a direction and the applicant was advised to file a fresh application. (See 53 Ruatoria MS Current Application On 11 December 2000, Mr William Herbert Seresford Rickard and the Katae Whanau Trustees filed another application in the Maori Land Court Gisborne, to partition Section 23 for the development and erection of a dwellings for the Katae Whanau and the Rickard family who were returning to Te Araroa. Together the applicants have claimed the following improvements: A boundary fence which encloses the section on 3 sides. A paling fence separating the house on 2 sides from the rest of the section. A ground bore they installed. The applicants and the Whanau Trust basically wish to split Section 23 in half between them. This would leave approximately hectares in Sections 14 and 15 for the balance' of the owners. Their residue shares would also fall into those two sections. A letter attached to the application from the Gisborne District Council dated 14 October 1997, although dated, indicates that the site is suitable for the erection of dwellings.. There are 65 owners in the Sections and they hold a total of 30 shares. The Katae Whanau Trust owns shares and the applicant owns shares. This gives them a total of shares or 50.28%. The applicant and the Trust are, thereby, the largest shareholders in the block with combined shareholding representing a small majority in the Sections. Summary of Proposal to Partition and Effect on the Residual Owners Attached to the application filed by Mr Rickard was a Valuation Report prepared by Quotable Value New Zealand dated 28 November A summary recording the required shareholding and their valuation required for partition was provided and is reproduced below. Description Land Area Land ValUe Percentage of Total Entitlement ha Proposed Partition Rickard , % shares Katae.890~4 3, % 19.02% shares ~~ ~X5tk ~&.l 25eK 31.26% Residue , % shares 49.72% or or or Totals , /0 30 shares or 100.0% \r 'ftei~r ~ mended pursuant re Sectinn ~6-cf the Te Ture VI/hsnl;a ~\ljaori Act 1993 at ~ \ ~~*'\ '..16!;lrot; cn '7>0 ~o~,.,... ~ \ If/Itw-- -

3 Minute Book: 61 RUA 247 Consents and Opposition The application was notified to as many of the owners as possible directly by way of letter and by way of a short public notice placed in the Gisborne Herald on the 23 and 30 November The applicant and the Trust have worked hard to obtain the consent of as many shareholders as possible to the partition. Their letter dated 26 November 2000 attached to the application demonstrates the determination of the applicants to achieve partition. It records that in response to their letter of notification the following results were achieved: Total replies 13 Addresses unknown 17 Return to sender letter 1 Non replies to letters sent 35 It seems that 11 owners including the applicant, together holding % shares consent to the partition. These 11 owners, while holding a significant shareholding, represent only a small minority of actual owners when one considers that there are 65 owners in these sections. Only two owners representing shares or approximately 9.4% have objected. The objectors were Parekura (Sonny Poi with shares and the Trustees of the Norah M Ngata Estate with shares. Maori Land Court Hearing The Maori Land Court first heard the matter on 8 February 2000 (See 59 Ruatoria MS On that date the Court heard evidence from Mr Doug Katae describing this land as turangawaewae for himself and his siblings. All his brothers and sisters were born on Section 23. Over a period of many years there has only been one building on the site, namely their whanau homestead. He noted that the land is not very suitable for farming or grazing as in the summer the land is very dry and very stony. Present at the hearing was Parekura (Sonny Poi who has objected to the application on the basis that allowing the residue of shares after partition held by the applicants to be left in Sections 14 & 15 could result in a further application for partition. He was also concerned about the impact of partition on the value of the shares held by the remaining owners. In his mind, the most valid ground for his objection was the fact that he was left his shares in these sections by his mother who expressed her wish that he never sell. When asked by the Court whether he would continue with his objection if the applicants forfeited any residual shares they may have in Sections 14 and 15 he agreed that this would ease his mind a little. At that hearing Mr Paenga for the Maori Trustee (the responsible trustee expressed concerns regarding the valuation report produced by the applicant and the Trust and asked to be able to put questions to the valuer. Due to the objection from Mr Poi and the valid request from the Maori Trustee's Office for further information, the matter was adjourned. Mr Sruce Cowper, the valuer, was asked to attend the next sitting of the Maori Land Court. The matter came before the Court again on 6 March 2001 (See 60 Ruatoria MS At that hearing Mr Cowper clarified the manner in which he arrived at the valuation of the property and the valuation of the partition which he said were based on his inspection of the property. To arrive at his results he considered: Rateable Values 1999 Assessed Value for partition purposes as at November 2000 Partitioner entitlement: Katae Whanau 31.26% & Rickard 19.02% Entitlement including frontage

4 Minute Book: 61 RUA SUb-divisional potential SUb-divisional entitlement As far as Mr Poi's objection is concerned, the applicants made it clear that they do not wish to forfeit their entitlement to the residue of their shares in Sections 14 and 15. Upon reflection, I have decided to request further information from Mr Cowper regarding whether a valuation based on the capital value of the Sections as a whole rather than the rateable value would result in a different result. This may assist determine accurately whether his method for assessing the valuations attached to this application accurately identifies that there will be residue shares in Sections 14 and 15 held by the applicant and Katae Whanau Trust. Law The jurisdiction of the Maori Land Court to grant partition orders is laid out in Part XIV of Te Ture Whenua Maori Act 1993 and in particular section 289/93. Pursuant to section 286/93 the purpose of Part XIV is to facilitate the use and occupation by the owners of land owned by Maori by rationalising particular landholdings and providing access or additional or improved access to the land. The Court may make partition orders, grant easements, and layout roadways where it is satisfied that to do so would achieve the principal purpose of this Part of the 1993 Act. In addition, the Court must have regard to the Preamble and sections 2 and 17/93 as confirmed by the decision of the High Court in Brown v Maori Appellant Court [2001] 1 NZLR 87 recently followed by the Maori Appellate Court in ~e Hoe~o~Tainui North SA and North 28 (~JylAgJ l~,j~~2091~-lam bound by those decisionsk.~-~m'k=~fi~'"'n~--~='~-'.'=-~' =-- ~~"""<{,;:~\.-.."-~~,,.Y"'''' ''h'''w'''''~~''o''''-'''''''''-- '",', ~"_"", ',,_; In making partition orders the Court must consider the matters listed in section 288/93. Section 288/93 provides: Matters to be considered (1 Subject to subsections (2 to (4 of this section, in deciding whether or not to exercise its jurisdiction to make any partition order, amalgamation order, or aggregation order, the Court shall have regard to- (a The opinion of the owners or shareholders as a whole; and (b The effect of the proposal on the interests of the owners of the land or the shareholders of the incorporation, as the case may be; and (c The best overall use and development of the land. (2 The Court shall not make any partition order, amalgamation order, or aggregation order affecting any land, other than land vested in a Maori incorporation, unless it is satisfied- (a That the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and (b That there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. (3 The Court shall not make any partition order, amalgamation order, or aggregation order affecting any land vested in a Maori incorporation unless it is satisfied- (a (b That the shareholders of the incorporation to which the application relates have been given express notice of the application; and That the shareholders have passed a special resolution supporting the application.

5 Minute Book: 61 RUA 249 Findings (4 The Court shall not make a partition order affecting any land unless it is satisfied that the partition is necessary to facilitate the effective operation, development, and utilisation of the land. I find in accordance with section 288(2/93 that there has been sufficient notice of the application and sufficient opportunity to discuss and consider it. I further find that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. Eleven owners, including the applicants, holding a total of % shares have consented to the partition. While they represent only a small minority of the 65 owners there has been limited opposition to the application. That opposition has only been strongly put by two owners and Mr Poi may withdraw his opposition if the new valuation indicates that there will be no residue of shares held in Sections 14 and 15. Even if that opposition is not withdrawn, there would not be enough opposition to prevent an order being granted. In relation to section 288(4/93, I am satisfied that the partition could be described as necessary to facilitate the effective operation, development, and utilisation of the land. I make this finding because there has been no development and utilisation of the land other than the work done by the applicant and the Whanau Trust. I am persuaded by their evidence that the land is suitable only for dwelling sites. I also agree that having owners resident on Section 23 can only be beneficial to its future administration and utilisation. That being the case it is possible to describe this partition proposal as essential rather than simply desirable or expedient. In addition, there is evidence that the local authority may be prepared to grant a building permit. I appreciate that partition is a very serious matter that in the normal case can undermine the principle of retention pervading Te Ture Whenua Maori Act 1993 reflected in the Preamble and sections 2 and 17/93. However, the applicant and the Whanau Trust have a perpetual lease which effectively prevents any other owner taking occupation anyway, therefore the retention principle is not so overwhelming in this case as to warrant not granting the orders. As far as section 288(1 (a/93 is concerned, I am satisfied that the opinion of the owners or shareholders as a whole indicates that the majority interest holders in the block support the application, 2 owners oppose and about 50 owners have no objection to make. j In terms of section 288(1 (b/93 regarding the effect of the proposal on the interests of the balance of the owners serious detriment has been demonstrated by those in opposition. I find that the effect of the proposal which, other than resulting in the loss of the rent from the perpetual lease, will result in no serious adverse effects on the balance of the owners. Finally, in terms of section 288(1 (c/93 erecting dwellings appears to be the best overall use and development of the land. I make these findings in accordance with section 17(1/93 and section 17(2(a(c(d and (e /93 to give effect to the wishes of the owners, to determine and settle disputes, to protect majority interests and to ensure fairness. Orders and Directions For the aforementioned reasons I make the following orders: 1. Subject to survey, there is an order under section 289/93 granting the hapu partition of Te Araroa Section 23 in accordance with the application. 2. Order under section 18(1 (a/93 terminating the perpetual lease over Te Araroa Township Section 23 held by the applicants.

6 Minute Book: 61 RUA Order under section 219 and 244/93 varying the Ahu Whenua Trust order to remove Section 23 from the operation of the Trust. These orders are made conditional upon receipt of the further information requested from Mr Cowper discussed above when the issue of the residue of shares will be finally determined in Chambers. That further information is to be filed within one month of this decision. ~~~ JUDGE