IN THE MAoRI LAND COURT OF NEW ZEALAND AOTEA DISTRICT. Date: 5 January Application No: A

Transcription

1 Minute Bool<: 134 AOT 96 IN THE MAoRI LAND COURT OF NEW ZEALAND AOTEA DISTRICT Place: Rotorua Present: L R Harvey, Judge Date: 5 January 2004 Application No: A Subject: Ngatarua 2A2 and other blocks - Partition Sections: 135,298/93 Hearings: 8 April, 10 June and 8 July 2003 Counsel: Mr J Tong for Wareti & Witerina Cooper Mr H MacDonald for the Patapu Trust RESERVED DECISION Introduction On 2 December 2002 an application was filed by solicitors for Mr & Mrs Wareti & Witerina Cooper ("the Applicants") pursuant to section 298 of Te Ture Whenua Maori Act 1993 ("the Act") for a partition ("the Partition Application"). The Applicants seek partition in respect of several blocks of Maori freehold land and General land owned by Maori. The Partition Application also seeks the apportioning of rights pursuant to section 295 of the Act and the creation of easements per section 315 over Part Ngatarua 2A 1 and Part Lot 1 DP (CT 100/594) for the purpose of a right of way. Background According to counsel Mr Tong, the application concerns five blocks of land - Ngatarua 2A1, 2A2 and 2A3 along with Pungaharuru 1A3 and 1A1 ("the Land"). The application states that Ngatarua 2A2 and Pungaharuru 1 A 1 are both blocks of Maori freehold land and the other three blocks are General land owned by Maori. Kanui and Tina Cooper own Ngatarua 2A1 and the Applicants own Ngatarua 2A3. Ngatarua 2A2 is held in trust by six trustees: Matiu Pine, Julian Bailey, Witerina Cooper, Erana Brooks, Rangipo Mete Kingi and Hone Tamehana. They are trustees of the Patapu Trust ("the Trust') which was created by the Will of Moari Bailey. The current trustees are Mr Tamehana, Mrs Cooper, Mr Pine and Rereomaki Paerau. There is also a dwelling on Ngatarua 2A2 referred to here as the Homestead. Pungaharuru 1A1 is owned by Pine and Ruakohatu Tamou while Riwaru and Elizabeth Tihema own Pungaharuru 1 A3. Part Lot 1 DP is owned by Raihania Potaka. The Partition Application also states that:

2 Minute Book: 134 AOT 97 the orders as sought are to give effect to the wishes of Moari Bailey, the original owner of the Ngatarua blocks; there is no need for valuation or equality of partition "due to the understanding of the patties"; and the Wanganui District Council has agreed in principle to the application. Two survey plans were filed by counsel illustrating the areas of land to be partitioned. While there was at times some dispute and confusion over the precise areas involved, the essence of the proposal, according to counsel, is that the Court should partition the Land on the following basis: (b) (c) (d) (e) (f) (g) 1625m 2 to the Applicants; 1207m 2 to Riwaru and Elizabeth Tihema; 3593m 2 to Pine and Ruakohatu Tamou; 1101 m 2 to the trustees of Patapu Trust; 1000m 2 to Kanui and Tina Cooper; cancelling the private roading over Ngatarua 2A3 dated 30 January 1958; and creating easements over Ngatarua 2A 1 in favour of Ngatarua 2A2 and over Lot 1 DP in favour of Ngatarua 2A 1. During the course of the hearing amendments were made to the areas sought for partition as a result of errors with the survey. The application came before me on 8 April Aotea MB 196, 10 June Aotea MB 49, and finally on 8 July Aotea MB 132. A site inspection was also conducted on 10 June Two hui of beneficiaries to the estate of Moari Bailey were also held on 30 April 2003 and 24 May The first hui was facilitated by Court staff who provided me with the minutes of that meeting. The second hui was chaired by Mr William McGregor, the spokesman for Ms Potaka with minutes taken by Mr Christopher Shenton. All hearings, hui and the site inspection were well attended by the parties, their counsel and supporters. The essence of the Partition Application - in the words of a former Judge of this Court, Hoeroa Marumaru - is to regularize the titles for the Land and provide certainty to all parties. His statement on the background and reasons for the application can be found at 126 Aotea MB : "The application deals with three blocks, which were owned by our grandmother, Moari Bailey... Over periods of time blocks were transferred to her children, her daughter and her son. One block went to her son, Taamehana Thompson and another block to my mother Tareikura. The middle block remained in the ownership of the Trust, called the Patapu Trust that was set up by our grandmother. It was in her Will. Without going into too much detail, over a period of time boundaries weren't used strictly by persons occupying that piece of land. The homestead, for example, that's the block in the middle. Our ancestors, are not quite sure who, built an outhouse encroaching on to the back... the house was used for various other purposes. It seemed to have been accepted that where they built that outhouse, although it encroached on the land at the back, it was under the control of our grandparents. This is an example of our people using land that is not legally theirs but actually occupying and using it. They did think about

3 Minute Bool<: 134 AOT 98 legalising it by an occupation oreier, or what have you. But they just carried on using it and that was accepted... the side boundary, 2A3, that passed through the hands of my mother and stepfather and was used over the years. During this period their use of their area encroached upon this strip of land in the homestead block. It appeared that that encroachment was accepted by our old people, just like the encroachment in the back of the section. Hence, this application is trying to legalise that boundary. The strip of land that was encroached upon that passed to the present owners of 2A3, the Coopers. Then you look at the right hand side of the homestead, the homestead encroached on the Thompson's section 2A 1. He was the son of our grandmother... time has passed and now uncle Thompson has vested in Kanui, who is present, and Kanui is the son of Mr and Mrs Cooper. To try and finalise the boundaries betvveen the homestead and his section, he has erected a boundary fence. I have noticed that he is not claiming the full area, the legal area for his site. He is leaving a strip of land to remain with the homestead. If he stuck to the legal areas he would have gone quite a distance into the homestead area... this is where there has been a lot of give and take happening. He is only asking for a strip of the land. It was appropriate to try to legalise all of this and finalise it and legalise the boundary lines that have been used in the past and accepted by our own people. To regula rise the current boundaries we need to deal with it and not pass them off to the next generation and so on. Let us complete this and bring it to an end. It is what I am asking my whanau, so our next generation can deal then with other important matters. " Submissions in support of Partition Application On behalf of the Applicants Mr Tong provided written submissions which were then expanded upon at the hearing. In summary, he submitted that the Partition Application complies with Part 14 of the Act in that it has been notified to and discussed by the owners, there is a sufficient degree of support for it and it represented the best overall use and development of the Land. Mr Tong, his clients and their supporters also submitted that the partition was necessary to enable all owners of land affected by the application to regularise their use of the Land, particularly in terms of access, maintenance, buildings and other improvements. While acknowledging that the Trust had originally agreed to the proposal but had since withdrawn their support, Mr Tong emphasised that at the very least this was evidence of the proposal being discussed. He also submitted that there were real problems with compliance that the local authority had identified concerning building, fencing, encroachment and the supply of services. He claimed that the only sensible proposal for all concerned was that embodied in the Partition Application. He was supported in his submissions by various people including the Applicants, their son Mr Kanui Cooper and by Mrs Cooper's brother, former Judge H B Marumaru. In essence, Mr Tong submitted that as the Partition Application satisfied the requirements of Part 14, the Court should exercise its discretion in favour of the Applicants. Counsel stated in his memorandum of 27 June 2003 that consent to the combined application for partition has been filed by the Applicants, Kanui and Tina Cooper, Ruakohatu and Pine Tamou and Riwaru and Elizabeth Tihema - all parties bar the trustees over Ngatarua 2A2. In other words, all owners affected by the application have consented apart from 5 out of 6 trustees of the Trust. By letter dated 4 March 2003, the then Chairman of the Trust, Mr Julian Bailey advised the Court that, by a majority of trustees, they did not consent to the Partition Application. Mr Bailey noted that the trustees present including him were Mr Tamehana, Mrs Cooper, Erana Brooks and Matiu Pine with an apology from Rangipo Mete Kingi. However, on 29 April 2003, Mr Bailey filed a statement with the Court annexing copies of two sets of

4 Minute Book: 134 AOT 99 Patapu Trust minutes dated 15 February 2002 and May Those minutes appeared to indicate that there was support for the partition proposal. Unfortunately, they are best ambiguous and even when read in their totality do not necessarily convey clear support or opposition. Ultimately, they are of limited relevance given the trustees' attendance at Court and the clear statement of the majority position. Submissions in opposition to Partition Application Mr MacDonald filed submissions in opposition which were also amplified at the hearings. His clients did not consent to any further "loss" of Trust land. The Trust considered that their lands should not be further reduced by the Partition Application unless there was a corresponding gain of land from the Coopers. Mr Tamehana and other Trust representatives also spoke of cultural and spiritual connections with the Land and the use of the area as a papakainga for the wider whanau. Counsel underscored the discretionary nature of the jurisdiction for partition and also emphasised his clients' position that the Trust did not consent to the Partition Application. That being the case, he submitted, the application could only be dismissed as the necessary compliance with Part 14 and in particular, the sufficient degree of support had not been achieved. Relevant Law As a preliminary point, in my view, section 236(1)(b) provides jurisdiction for the Act to apply to the Trust. It states that sections of the Act applies to, inter alia, "every other Trust constituted in respect of any Maori land." Therefore, the Court has the necessary jurisdiction over the Trust and its trustees. Turning to the Partition Application, the procedures for title improvement generally are set out in Part 14 of the Act. Section 286 spells out the purpose of Part 14: "286 Purpose of this Part (1) The principal purpose of this Part of the Act is to facilitate the use and occupation by the owners of land owned by Maori by rationalising particular land holdings and providing access or additional or improved access to the land. (2) Where it is satisfied that to do so would achieve the principal purpose of this Part of this Act, the Court may make partition orders, amalgamation orders, and aggregation orders, grant easements, and layout roadways in accordance with the provisions of this Part of the Act. " Section 287 provides the Court with exclusive jurisdiction to deal with applications for partition. Section 288 of the Act is of particular relevance. It states: "288 Matters to be considered (1) In addition to the requirements of 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- The opinion of the owners or shareholders as a whole; and The effect of the proposal on the interests of the owners of the land or the sharehoiders of the incorporation as the case may be; and The best overall use and development of the land. (1) 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-

5 Minute Book: 134 AOT 100 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 That there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. (1) 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- 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. (1) The Court must not make a partition order unless it is satisfied that the partition order- is necessary to facilitate the effective operation, development and utilisation of the land; or effects an alienation of land, by gift, to a member of the donor's whanau, being a member who is within the preferred class of alienees." (Emphasis added) Sections 289 to 306 of the Act then provide a detailed scheme by which partition orders can be granted, modified and cancelled. It is important to note that the entire scheme places considerable emphasis on the discretionary nature of the Court's powers to grant or decline applications made under Part 14 of the Act. It is therefore again apposite to underscore the discretionary nature of the jurisdiction and the legislative hurdles imposed by sub-sections 288(2) and (4). Case Law Brown v Maori Appellate Court [2001] 1 NZLR 87 is the primary authority on partitions of Maori land. The High Court held in that decision that whether or not a proposal for partition falls within Part 14 and overcomes the constraints of Section 288 of the Act will depend on a consideration of the relevant facts. The High Court held that in disposing of applications for partition the Maori Land Court is required to assess whether in the circumstances of the case: there was sufficient support for the proposal; a partition order would facilitate the use and occupation by the owners of the land; and the partition order was necessary to facilitate the effective operation, development and utilisation of the land. In weighing the circumstances, the High Court considered that the Act required this Court to have regard to the opinion of the owners as a whole, the effect of the proposal on the interests of the owners and the best overall use and development of the land. In addition, it was held that this Court was required to take into account and apply to the circumstances as found the policies and objectives as expressed in the preamble of the Act. On the meaning of the word "necessary" in terms of Section 288(4) the High Court's view was that this meant "reasonably necessary" not that "there is no other way". Thus "necessary" meant closer to that which is essential than that which is simply desirable or expedient. The decision went further in referring to a number of important policy considerations but they are not relevant here.

6 Minute Book: 134 AOT 101 Then in the recently issued decision of the Maori Appellate Court in re: Port Levy - Wade Wereta Osborne (2003) 6 Te Waiponamu Appeal MB 20 (also cited as 6 APTW 20) a lower Court determination refusing partition was reversed. In that decision the Appellate Court granted the partition based on the particular circumstances of the case. They included the fact that there was overwhelming support from the owners, no opposition to speak of and that the partition was pivotal to the Appellant securing finance for his proposed dwelling. However, even in that decision the Appellate Court noted that the lower Court's approach of emphasising an occupation order over partition was sound. Discussion From the outset, it should be underscored that I have considered the proposals in the Partition Application as a single interdependant whole where all elements must be satisfied if the application is to succeed. Put another way, I have assumed that approval of all parts to the application is required and that partition of Ngatarua 2A2 is critical. The great majority of persons who made submissions in support of and in opposition to the Partition Application are all whanau. They are closely related and thus share the same tipuna, Moari Bailey. Most if not all who spoke relayed some link and connection to the Land and to the Homestead over many years of occupation or use. It is obviously a taonga of considerable significance to this family. Given those relationships, ideally, these matters should have been resolved within the whanau and without recourse to the Court, except where a consent order was sought. Regrettably however, the reality is that, like many important whanau taonga, this land and the Homestead, while sometimes being a catalyst for unity, can also be the source of friction and dispute. It became evident, through the presentation of much irrelevant and repetitive material, that there was a history of difficulty between some of the participants. In any case, the only concern for the Court has been whether or not the application complies with Part 14 of the Act. Matters to be considered Section 288(1) sets out the matters to be considered including the opinion of the owners as a whole, the effect of the proposal on their interests and the best overall use and development of the land. The area sought in the Partition Application by Mr & Mrs Cooper is essentially part of the Ngatarua Stream and an adjourning area of embankment immediately adjacent to their own property. It can have only limited use to anyone else other than the Coopers given the difficulties over access as part of the area is quite steep. It also floods and requires regular maintenance. In return, it was proposed that Kanui Cooper provide an area of his land to the Trust including the part where the septic tank is situated. I noted on the site inspection that the land offered by Mr Cooper was flat and thus more utile and inevitably more valuable in dollar terms when compared with that sought in the Partition Application. Mr Tong also referred to serious compliance issues as identified by the Wanganui District Council and stressed that if the proposal was not accepted then the consequences would be problematic for all parties including his clients and the Trust. Then there is the land already subject to an existing right of way. Mr Macdonald for the Trust in response did not agree the Cooper's proposal and instead made various counter proposals, none of which were accepted. Interestingly, one of the proposals was that the partition proceed provided Kanui Cooper give more of his land to the Trust than originally proposed. In other words, the trustees were prepared to agree to a partition, provided they received an equal or greater area of

7 Minute Bool<: 134 AOT 102 land in return. The essence of his clients' opposition was based on the concerns of the trustees to retain the integrity of the original titles as was intended by the tipuna to the Land. As mentioned, references were also made to cultural and spiritual matters. The trustees' and other beneficiaries' opposition was grounded in their desire to maintain Ngatarua 2A2 as a homestead and papakainga for the wider whanau. Mrs Cooper challenged these submissions in rejoinder as in her view the Homestead was not always used as a whanau meeting place in the manner claimed by her relatives before the Court. Unsurprisingly her remarks provoked a heated exchange with other beneficiaries and trustees including most notably Mrs Brooks. If nothing else, those exchanges both at the site and in Court reinforced the level of dispute between the principal participants and their supporters. They also disclosed an element of rancour that appeared to cloud the views of some of the beneficiaries. Having viewed the area with Court staff, the proposal, at a practical level, appeared to me to be a sensible compromise. The Coopers would have included in their title an area of land that they had been maintaining and in fact improving for some years. They would then have certainty of tenure. The present appearance and state of the area they seek is, in my view, certainly in keeping with a broad scheme to improve and beautify the land. This is also consistent with the standard of building and landscaping evident on Kanui Cooper's property. In return for the Cooper's proposal, the Trust would gain certainty of tenure over the septic tank and be provided with definite access, thus guaranteeing the habitability of the Homestead as well as an increase in overall area of the Trust's land. Having carefully considered Section 288(1) (b) and (c), in my view, the proposals embodied in the Partition Application would, in the circumstances, provide for the best overall use and development of the Land including the Homestead. That said, consideration now needs to be given to a number of equally vital matters including sections 288 (1) and 288(2)-(4) of the Act. Sufficient degree of support As mentioned, section 288 (2) provides for a two step process that must be satisfied before the Court can contemplate a partition. The first is that the owners have had notice of the application and opportunity to discuss it, and secondly that there is a sufficient degree of support. It is also important to underscore that section 288 makes it plain that the Court "shall not" make a partition order unless the criteria have been satisfied. There is no doubt that the first limb of the test has been met. However, while it is correct to say that the Applicant's do have support for their plans, there is also real opposition. In strict legal terms, the trustees, being the legal owners, are able to make the decision themselves in respect of the lands over which they have authority, namely Ngatarua 2A2. Even so, it is obviously preferable that decisions be achieved by consensus following proper consultation and opportunity for input by all trustees and the beneficiaries. Nonetheless, the fact that a clear majority of the trustees, five from six, do not consent to the application as it affects Trust land is an important consideration, as is the fact that no agreement could be reached at the hui of beneficiaries facilitated by Court staff. Both circumstances are potent indicators of the level of discontent with and opposition to the Partition Application. While the trustees or some of them had originally agreed, even as Mr Tong acknowledged, a majority had since recanted and withdrawn their support. At the well-attended hearings and during the site inspection the parties and their supporters, despite the attendance of counsel, were not slow in conveying their views. The right of those who spoke to make submissions was not successfully challenged. Significant

8 Minute Book 134 AOT 103 opposition was conveyed to me at both hearings. While letters of support have been filed, those in opposition are the more numerous. In reviewing these matters, I have also taken into account the difficulties inherent in making any proper assessment of the views of the owners and the beneficiaries. Allied to that is the fact that there is no statutory definition of "sufficient degree of support". Surprisingly, neither counsel had any specific instructions regarding the level of beneficiary support or opposition, the extent of which I have had to cautiously deduce from the hui, the site inspection and the hearings. In addition, I have also considered Mr Tong's argument as to the level of support of the "owners" in all the blocks affected by the application and their relative proportions. Nonetheless, based on the evidence before the Court, I do not accept that there is a "sufficient degree of support" for the partition of Ngatarua 2A2, notwithstanding my concerns over the nature of the opposition. In summary therefore, I am not persuaded that section 288(2)(b) as it relates to Ngatarua 2A2 has been satisfied. Obviously, the same cannot be said for the remaining 4 blocks where all parties are in harmony. The necessity of partition Turning then to section 288(4) of the Act as to whether the partition of the Land is necessary. The Applicants provided no evidence of any need to build on the land and have not said that finance for building purposes has been refused them- two common grounds for seeking partition. In fairness it ought to be acknowledged that the Applicants appeared well settled in their present dwelling and were unlikely to be in need of further building on their land or that sought in the partition. Nevertheless, the actual necessity for partition of Ngatarua 2A2 was not emphasised during the hearings, beyond claims that it would provide certainty and a more practical arrangement for all parties affected by the proposal as well as the wider Bailey whanau. There would, it was submitted, be greater clarity for all owners in terms of access, tenure and all the attendant responsibilities such rights entailed. However, when applied to the present facts, the definition of "necessary" taken from the High Court decision Brown - recently followed in the Port Levy case in the Maori Appellate Court - cannot assist the Applicants. The partition, especially of Ngatarua 2A2, is not "necessary". It would clearly be "desirable" even highly desirable for the Applicants. But when applying the definition of the High Court, even were the hurdle of support to be overcome, the application cannot succeed as it is presently framed. In simple terms, I am not convinced, based on the material before the Court, that the partition of Ngatarua 2A2 is in fact "necessary". Regarding the other four blocks, the point is at least arguable and if an alternative proposal that excluded partition of Ngatarua 2A2 was forthcoming, a partition encompassing the balance of the lands might then be possible. Occupation orders Mention was made during the hearings of whether an occupation order would be a realistic alternative to partition. Various proposals were suggested and considered by the parties. Ultimately they came to nothing as agreement could not be reached on the fundamental terms. For the trustees such terms included a condition that Kanui Cooper relinquishes even more of his land in favour of the Trust but without compensation to him. Instead, counsel for the Trust submitted that, if any remedy was due to Mr Cooper, he should look to his parents for relief. Unsurprisingly perhaps, that proposal went no further, In this context, it is also pertinent to note again that - as mentioned at the site visit and during the hearings - if Mr Cooper strictly enforced his legal rights, the Trust might be in some difficulty regarding the

9 Minute Book: 134 AOT 104 habitability of the Homestead. This is because certain utilities supplying that dwelling with basic services like sewerage as well as proper access fall within the legal boundaries of Mr Cooper's land. Should the Applicants seek an occupation order sometime in the future that application will naturally be dealt with on its own merits. Access Then there was the issue of access raised by Ms Potaka where she claimed that her agreement to Mr Cooper's proposals hinged on the provision of access from her home through his land to the Homestead. As a mentioned at the hearing, Mr Cooper has a consent signed by Ms Potaka's representative, Mr MacGregor and based on the evidence before the Court I am not prepared to look behind that agreement, given that it's terms have been observed. That concerns have now been expressed by Ms Potaka as to subsequent issues is not at this point a matter for the Court. Similarly, any unresolved points over fencing should be for the parties to agree and failing that, left for a body of competent jurisdiction. Decision In conclusion, for the reasons stated, I am not persuaded that the Partition Application in respect of Ngatarua 2A2 complies with the legislative scheme set out in Part 14 of the Act. In particular, I am not satisfied that first, there is a sufficient degree of support from among the owners and secondly, that the partition is in fact necessary. In arriving at that conclusion, I have also taken into account the interests of the owners as a whole, the effect of the application on the interests of the owners as well as the best overall use and development of the Land. In addition, I have also carefully considered the underlying principles of the Act and its objectives set out in section 17 including the ascertaining and giving effect to the wishes of the owners. In this latter context, the owners of the four blocks excluding Ngatarua 2A2 have of course agreed to these proposals and their wishes, as far as is possible within the law, should be given effect to by the Court. If an alternative proposal (which might, hypothetically, incorporate both a combined partition over all the blocks bar Ngatarua 2A2 and occupation an order) was put to the Court it too would also be considered on its merits. I therefore intend to adjourn the application for 90 days to provide the Applicants with the opportunity to at least explore the possibility. Summary Having carefully considered the evidence and submissions before the Court, and all other relevant matters, pursuant to Section 37 of the Act, the Partition Application in respect to Ngatarua 2A2 is dismissed. Leave is reserved for the Applicants to submit an amended proposal within 90 days. The balance of the application is adjourned to 31 March Dated at this day of 2003 L R Harvey JUDGE