IN THE MĀORI LAND COURT OF NEW ZEALAND WAIĀRIKI DISTRICT A TAUPARA ERUERA AND HEMANA ERUERA Applicants

Transcription

1 179 Waiariki MB 249 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIĀRIKI DISTRICT A UNDER Section 322 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN Kōkōhinau Block TAUPARA ERUERA AND HEMANA ERUERA Applicants Hearing: 18 December 2017, 178 Waiariki MB (Heard at Whakatāne) Appearances: T Eruera and H Eruera in person Judgment: 12 February 2018 JUDGMENT OF JUDGE L R HARVEY Introduction [1] The Kōkōhinau Papakainga Trust along with Kōkōhinau Māori Reservation Trust and Pahipoto Māori Committee are currently working with Te Puni Kōkiri and the Ministry of Business Innovation and Employment to support Edgecumbe residents affected by the 2017 flooding. 1 The collective entities are intending to provide suitable emergency affordable housing accommodation to be situated on the Kōkōhinau block. [2] To assist with the development of this project, an application to cancel a roadway order made on 18 November 1969 was recently filed. They say the roadway has never been used and, for all practical purposes, is simply a paper road. The applicants state that, instead, the former roadway laid out in 1955 continues to be utilised. At the hearing held on 18 December 2017, I confirmed that the orders sought were granted and that a written decision outlining the reasons for doing so would be issued in due course. 1 Kokohinau Marae papakāinga to house Edgecumbe whānau affected by floods

2 179 Waiariki MB 250 Background [3] Kōkōhinau is a block of Māori freehold land situated in Te Teko along the Te Teko- Edgecumbe Highway next to the Rangitāiki River. It has been an important pā and kāinga of the local tribes for generations. The second oldest wharenui in Ngāti Awa, Oruataupare, is located on the Māori reservation created over the land. Its construction was directed by the Rongowhakaata prophetic leader Te Kooti Arikirangi Te Turuki and was opened in [4] Many illustrious Ngāti Awa ancestors have resided from time to time at Kōkōhinau during their lifetimes including the nineteenth century fight chief Te Rangikawehea, his children Hātua, Te Motutere, Putangako and Te Arikikotore and his grandchildren Te Rangitukehu, Te Rangikauaewhatu, Hiriweteri, Tiopira and Te Rangitākina, all prominent tipuna of Ngāti Awa in their own right. 3 [5] The Kōkōhinau block had been subject to raupatu (confiscation) in Then in 1874, as part of the arrangements made by Crown agent J. A. Wilson, some 2,527 acres known as Matatā Lot 72 was returned to Te Rangitukehu, Tiopira Hukiki, Te Tutere and Matutaera Te Wharau in trust for Te Pahipoto hapū. 5 This land covers most of present day Te Teko. The part of the land under consideration is derived from the original Matatā Lot 72 grant. [6] The Kōkōhinau block today comprises hectares and there are currently 1,682 beneficial owners. Approximately hectares is set aside as a Māori reservation for the benefit of Te Pahipoto hapū of Ngāti Awa for the purposes of a burial ground, meeting place, recreation ground and sports ground. 6 The balance of the land is administered by the Kōkōhinau Papakāinga Trust (an ahu whenua trust). 2 Judith Binney Redemption Songs A life of Te Kooti Arikirangi Te Turuki (Bridget Williams Books, Auckland, 1995) at According to Binney, relying on oral sources including Eruera Manuera and Wi Tarei, Te Kooti also paid for the building materials for the wharenui. 3 Hirini Mead and others Mataatua te whare i hoki mai (Huia publishers, Wellington, 2017) at See Waitangi Tribunal The Ngati Awa Raupatu Report (1999) Legislation Direct, Wellington at 5 Appendix to the Journals of the House of Representatives, 1874 Session I, C-03 at Setting Apart Māori Freehold Land as a Māori Reservation (21 May 1970) 29 New Zealand Gazette 867 at 893. See also Notice Redefining the Persons or Class of Persons for whose Use and Benefit a Maori Reservation is Set Apart (4 November 1976) 113 New Zealand Gazette 2489 at 2505; and Corrigendum Setting Apart Maori Freehold Land as a Maori Reservation (26 November 2009) 171 New Zealand Gazette 4097 at 4143.

3 179 Waiariki MB 251 [7] The title records of the Court confirm that the trustees of the Māori reservation are Dick Hunia, Hemana Eruera, Tutere Hohepa, Ian Hunia, Con O Brien, Charles Ohaki Elliot, Donalda Manuera Niao and Leanne Ariana Waiari. 7 The trustees of the Kokohinau Papakainga Trust are Rihi Vercoe, Robert Thompson and Hemana Eruera. 8 The Law [8] Part 14 of Te Ture Whenua Māori Act 1993 is applicable. Section 322 provides: 322 Court may cancel roadways (1) Where any roadway that has been laid off by an order of the court, whether before or after the commencement of this Act, has not been declared to be a road, the court may, on application, vary or cancel that order in so far as it relates to the roadway. (2) Where application for the variation or cancellation of an order under this section is made by any person other than the Chief Surveyor of the district in which is situated the land over which the roadway has been laid off, notice of the variation or cancellation of the order shall be given to the Chief Surveyor by the Registrar. (3) The court may vary or cancel any order under this section notwithstanding that, after the order was made, the land over which the roadway was laid out ceased to be land to which this Part applies. [9] Section 323 is also relevant: 323 Powers of court on cancellation of roadway (1) Where, pursuant to section 322, the court cancels an order for the laying out of any roadway for which a separate instrument of title exists, the court may cancel that instrument of title and may amend any other instrument of title so as to include in it the whole or any part of the land comprised in the roadway; and the land so included in any instrument of title shall thereupon vest in the owner or owners as if it had been originally included in it, and shall become subject to any reservations, trusts, rights, titles, interests, or encumbrances to which the land comprised in that instrument of title is then subject. (2) Where the land comprised in any roadway is not included in a separate instrument of title, the owners shall thereafter hold the land freed from its reservation as a roadway. (3) The foregoing provisions of this section as to the cancellation of orders shall, as far as they are applicable and with any necessary modifications, apply to the variation pursuant to section 322 of an order of the court as to roadways. (4) Any order made by the court under this section shall, upon production, be registered by the District Land Registrar or the Registrar of Deeds, as the case may be; and the District Land Registrar is hereby authorised to make such amendments in any instrument of title as may be necessary to give effect to any order under this section Waiariki MB (65 War 48-52) Whakatāne MB (104 WHK )

4 179 Waiariki MB 252 [10] In Pomare v Rangihaeata Hongoeka 7 Block Lot 2 and 3 the appellant sought to set aside the decision of the Court below to cancel part of an existing roadway and lay out a new roadway extending the width of the road. 9 The Appellate Court upheld the earlier decision, finding that the application clearly provided for improved access and that there was a sufficient degree of support for the application having regard to the nature and importance of the matter. The Appellate Court set out the principles in relation to Part 14: 10 [38] The law in relation to the meaning of the Preamble, section 2 and section 17 is set out in Brown v Maori Appellate Court [2001] 1 NZLR 87 which was followed by the Maori Appellate Court in Reid v Trustees of Kaiwaitau 1 Trust - Kaiwaitau 1 (2006) 34 Gisborne Appellate MB 168 (34 APGS 168) and confirmed again in Hammond - Whangawehi 1 B3Hl (2007) 34 Gisborne Appellate MB 185 (34 APGS 185). [39] These cases support the following principles: a) That Part 14 of Te Ture Whenua Maori Act 1993 is not a self contained code, but is an integral part of the scheme of the Act, and to be construed and applied in the context of the Act as a whole. b) Part 14 is concerned principally with the objective of effective use, management, and development, by or on behalf of the owners, of Maori land and General land owned by Maori. c) The objective of retention of land by the Maori owners and their descendants is always to be promoted, where it is relevant. d) The Court must, in weighing up the circumstances of each case, take account of and apply the policies and objectives expressed in the preamble to the Act, and sections 2 and 17. [40] The two primary objectives of Te Ture Whenua Maori Act 1993 of retention of Maori land as taonga tuku iho in the hands of the owners, their whanau, and hapu, and the promotion of the use, management and development of Maori land or general land owned by Maori, are contained in the preamble and sections 2 and 17(1). These objectives refer not only to current ownership and use of the land, but also to past and future generations as well as future use and development of the land. [42] Thus the Court will interpret the specific provisions relating to roadways in any particular case, while taking into account the objectives stated above. The Court must give effect to the requirements of section 317 by considering whether the owners of the land over which the roadway is to be laid have had sufficient opportunity to discuss and consider the matter and whether there is sufficient support for the application. However, since a roadway serves other blocks, section 17(2) requires that the Court also take into account the wishes of the owners in those other blocks as well, being owners of "land to which the proceedings relate". Where those wishes differ the Court will consider the extent of and reasons for the support for and opposition to the application in determining the matter. [11] This approach was followed in Setter v Hewitt - Lot 1 & 4 DP and Lot 3 DP where Judge Coxhead stated: 11 9 [2009] 16 Whanganui Appellate Court MB 88 (16 APWG 88). 10 Ibid. 11 Setter v Hewitt - Lot 1 & 4 DP and Lot 3 DP (2010) 5 Takitimu MB 239 (5 TKT 239).

5 179 Waiariki MB 253 [18] It is clearly within the Court s jurisdiction to cancel or vary this roadway and lay out a new roadway. This jurisdiction is discretionary. Critical to the exercise of this discretion is the principal purpose of Part 14 of the Act, as set out in section 286. This application falls squarely within this. The considerably improved access provided by the proposed new roadway will provide owners of the Whataarakai blocks with increased choice as to the future use and occupation of their land, and will prevent the land from becoming further landlocked. [12] In Parker Waipahihi Judge Ambler considered the jurisdiction to cancel a roadway. The applicant sought to close a roadway comprising Māori freehold land and vesting it into two neighbouring blocks of General land. Regarding s 322 of the Act, Judge Ambler stated: 12 [15] Although the section does not provide any express guidance as to when the Court should cancel a roadway, it is self evident that the Court will only do so when a roadway is no longer needed and provided that the cancellation will not be detrimental to any title that relies on the roadway. In accordance with my preliminary determination, I now conclude that the cancellation of the roadway is appropriate as the roadway has not been used as intended by the Court in 1951 and is unlikely to ever be so used. Furthermore, the owners of the only titles that are able to rely on the roadway, namely, the Parker land and the Lake Terrace land, consent to the cancellation of the roadway. There is otherwise no objection to the cancellation of the roadway. [13] In Western Bay of Plenty District Council Part Taumata 3A2B, 13 the Court adopted the reasoning in Parker and determined an application to cancel a roadway by considering whether the road was still required and whether cancellation would be detrimental to any of the titles that rely on the road. The Court determined that it was appropriate that the road be cancelled given that it was not currently being used and had been superseded by the use of an alternative road, without objection had been received regarding cancellation. Discussion [14] Kōkōhinau block was created by amalgamation order granted on 18 November The effect of that order was to combine Allotment 72B No 2 Parish of Matatā (Kōkōhinau Pa), Lot 72B No 3M No 2 Parish of Matatā (Kōkōhinau Papakainga), Lot 72B No 3V No 1A Parish of Matata and Lot 72B No 3Z Parish of Matatā into one title. [15] At the time, there existed a right of way (created in 1955) over Lot 72B No 3M No 2 Parish of Matatā to the main Te Teko Edgecumbe highway. 15 The roadway order states: 12 Parker - Pt Waipahihi 2B2B Roadline (2012) 52 Waiariki MB 295 (52 WAR 295) 13 Western Bay of Plenty District Council Part Taumata 3A2B (2015) 128 Waiariki MB 49 (128 WAR 49) Whakatāne MB (47 WHK ) Whakatāne MB 371 (30 WHK 371)

6 179 Waiariki MB 254 WHEREAS the Court after due enquiry in order to give access or better access to Lot 72B No. 3V No. 1E No. 1, Lot 72B No. 3V No. 1E No. 2, and Lot 72B No. 3V No. 1E No. 3 Parish of Matata block has deemed it necessary and expedient to lay off the above roadway NOW THEREFORE in pursuance of section 415 of the Māori Affairs Act, 1953 and any other power it enabling the Court DOTH HEREBY ORDER AND DECLARE that the land described hereunder shall be and is hereby set apart as a roadway AND IT IS FURTHER ORDERED that until the aforesaid roadway be proclaimed as a Public Road it shall be designated the Lot 72B No. 3M No. 2 Parish of Matata Roadway. [16] The Schedule describes the roadway as follows: 16 A right of way 30.3 links wide running through the entire width of Lot 72B No. 3M No. 2 Parish of Matata block from East to West to the Main Te Teko Edgecumbe highway Such right of way to be appurtenant to Lot 72B No. 3V No. 1E No.1, 1E No.2 and 1E No 3 Parish of Matata blocks. [17] To facilitate the perceived increased use of the right of way, the Court when amalgamating the titles, in 1969, cancelled the 1955 order. The order cancelling the roadway described the road as follows: All those pieces of road extending North of a line drawn across the same twenty (20) feet to North of a notional continuation to the West of the common boundary of Matata Parish Lot 72B No. 3V No. 1E No. 1 and Matata Parish Lot 72B No. 3V No. 1E No. 2 [18] The Court then ordered the laying out a roadway to provide improved access: 17 UPON HEARING the application for the amalgamation of the land known as Allotment No. 72B No. 2 Parish of Matata (Kokohinau Pa) and other Blocks the Court deemed it necessary to lay off a roadway for the purpose of providing improved access to the new title now styled Kokohinau NOW THEREFORE pursuant to the provisions of sections 415(1) and 418(1)(a) of the Māori Affairs Act 1953 IT IS HEREBY ORDERED AND DECLARED that the land described in the Schedule hereunder is HEREBY SET APART as a roadway AND IT IS HEREBY FURTHER ORDERED pursuant to the provisions of section 416(2) of the Māori Affairs Act 1953 that the user of the said roadway shall be limited and restricted to the owners for the time being of Matata Parish Lot 72B No. 3V No. 1E No. 1, Matata Parish Lot 72B No. 3V No. 1E No. 2, Matata Parish Lot 72B No. 3V No. 1E No. 3 and Kokohinau, their respective lessees, tenants and visitors. [19] The Schedule describes the roadway as follows: All those pieces of land containing 7987m2 or 1 acres 3 roods 35.7 perches and lying to the West and South West of the roadway laid out on the 21 st day of July 1955 to the end and intent that the roadway be an overall width as laid out on the 21 st day of July 1955 for a space of twenty (20) feet as same is shown on M.L. Plan deposited in the office of the Chief Surveyor, Hamilton, and more particularly delineated on the diagram attached thereto. 16 Ibid Whakatāne MB (47 WHK )

7 179 Waiariki MB 255 [20] The intended result of the order was to increase the area of the 1955 roadway by effectively widening the right of way. According to the applicants, the existing right of way was never widened or formed and users continue to use the right of way as laid out in The applicants seek to cancel the 1969 order so as to increase the area available for the housing project. They say that the increased width of the right of way will impact on the placement of five kaumātua units which will likely result in less green space between each of the units. [21] Having regard to the case law set out above, and on the evidence, I consider that the 1969 roadway has not been formed or used as intended by the Court in The users have continued to utilise the former existing roadway and did not widen the roadway. In addition, those persons relying on the roadway have not been and will not be impeded in their access as they simply want to continue to use the roadway as laid out in [22] I also note that hui were held on 11 June 2017, 21 May 2017 and 16 July 2017 and there appear no objections to the application. [23] As the Māori Appellate Court expressed, the Court will interpret the specific provisions relating to roadways in any particular case, while taking into account the objectives provided in the Preamble, ss 2 and 17 of the Act. In the present case, varying the roadway will enable the Emergency Housing project to continue. It will also facilitate the effective use, management and development of the land as well as promoting practical solutions to problems arising in such use, management and development. [24] Given that what is being sought here is simply a reversion to the 1955 roadway order to reflect the current practical use of the roadway and, taking into account the fact that there are no meritorious objections to the order sought, I see no reason why the orders as sought to should not be granted. Decision [25] Pursuant to section 322 of Te Ture Whenua Māori Act 1993, the Court varies the order issue on 18 November 1969 to the effect that the roadway laid out therein is to be reduced in width to reflect only the area marked Pt Matata Rdwy 2,520m 2 as depicted on ML Plan Whakatāne MB

8 179 Waiariki MB 256 [26] For the avoidance of doubt the area marked Pt Kokohinau Roadway, 5467m 2 will no longer comprise part of the roadway and is to revested in the beneficiaries of Kokohinau Block. [27] No issue as to costs arises. Pronounced in Taumarunui at 11.15am on Monday this 12 th day of February L R Harvey JUDGE