IN THE MĀORI LAND COURT OF NEW ZEALAND TE WAIPOUNAMU REGISTRY A CJ 2010/57. DEPUTY REGISTRAR, CHRISTCHURCH Applicant

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1 2016 Chief Judge s MB 963 IN THE MĀORI LAND COURT OF NEW ZEALAND TE WAIPOUNAMU REGISTRY A CJ 2010/57 UNDER Section 45 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Te Muera Ruka also known as Te Muera Tana Ruka DEPUTY REGISTRAR, CHRISTCHURCH Applicant ARTHUR PACEY Respondent Hearing: 31 May 2016 (Heard at Blenheim at 37 Te Waipounamu MB ) Judgment: 13 January 2017 RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC

2 2016 Chief Judge s MB 964 Introduction [1] This application filed by the Deputy Registrar, Māori Land Court Christchurch (the applicant) pursuant to section 45 of Te Ture Whenua Māori Act 1993 (the Act) seeks to cancel a succession order made at 91 South Island MB dated 30 August 2000 (91 SI 91-92) and relates to the sole interest held by Te Muera Ruka also known as Te Muera Tana Ruke (Te Muera) in respect of the Wairau Blk XII Sec 20C (Wairau Block). [2] The Deputy Registrar claims that the order is incorrect by reason of a mistake, error or omission on the part of the Court on the grounds set out as follows: (a) I refer to an application (A ) filed by Rayma-Lee Katu to determine the ownership of the Wairau Block. (b) Her grounds were that the Wairau block was purchased by her father Arthur Pacey, from Te Muera on or about 1 April 1960; (c) The Agreement for Sale and Purchase was never given effect by the Māori Land Court; (d) Orders are sought to cancel the succession orders made at 91 SI 91-92; and (e) That further orders be made pursuant to section 213 of the Māori Affairs Act 1953 to grant a certificate of confirmation in regards to the 1960 Agreement for Sale and Purchase. [3] The order has an adverse affect on Arthur Pacey because it was claimed that the Wairau Block should be registered in his name solely and not remain under the deceased s name. [4] It has been noted by the Court 1 that Mr Pacey has: (a) Paid the full consideration; 1 28 Nelson dated 10 September 2009 at [238]

3 2016 Chief Judge s MB 965 (b) Continues to pay the rates; and (c) There is no opposition from the current owners. Background [5] The Registrar s Report and Recommendation dated 7 October 2015 sets out the background to the application. The Report is reproduced in full as follows: APPLICATION UNDER SECTION 45 OF TE TURE WHENUA MĀORI ACT 1993 REPORT AND RECOMMENDATION Introduction 1. This application filed by the Deputy Registrar Māori Land Court Te Waipounamu pursuant to section 45 of Te Ture Whenua Māori Act 1993 (the Act), seeks to cancel a succession order made at 91 South Island MB dated 30 August 2000 (91 SI 91-92) relating to the sole interest held by Te Muera Ruka also known as Te Muera Tana Ruka (Te Muera Ruka) in respect of the Wairau Blk XII Sec 20C (Wairau Block). 2. The Deputy Registrar claims that the order is incorrect by reason of a mistake, error or omission on the part of the Court as set out in following grounds: a) I refer to application A where application was made to determine the ownership of the above block on the grounds that the blocks was purchased from Te Muera Tana Ruka on 1 April 1960 although the Agreement for Sale and Purchase was never given effect by the Māori Land Court; b) Orders are sought cancelling the succession orders made at 91 SI and for further orders to be made to section 213 of the Māori Affairs Act 1953 to grant a certificate of confirmation in relation to the Agreement for Sale and Purchase. 3. The order has an adverse affect on Arthur Pacey because it was claimed the Wairau Block should be registered in his name solely. 4. It has been noted by the Court that Mr Pacey has: a) Paid the full consideration; b) Continues to pay the rates; and c) There is no opposition from the current owners Concise history of Order sought to be amended or cancelled 5. On 30 August 2000 at 91 South Island MB an application for succession was made by Samuel Carter to the interests held by Te Muera Tana Ruka in the following Māori land blocks: Te Waipounamu District Blocks Wairau Blk XII Sub 9B Wairau Blk XII Sec 20C Wairau Blk XII Drain Reserve Shares

4 2016 Chief Judge s MB 966 Wakatu Incorporation The Court made orders 2 upon intestacy, as previously determined on 16 October 1969 at 13 Nelson MB that the persons set out below were entitled to succeed to the interests of Te Muera Ruka. Successors/Beneficiaries Name Sex Proportion 1 Roka Roberts 1/18 2 Henry Luke 1/6 3 Kiwa Morgan or Luke 1/6 4 Sam Carter 1/30 5 John William Carter 1/30 6 Emai Stafford 1/30 7 Michael Roberts 1/18 8 Joy Roberts 1/36 9 Rangi Roberts 1/36 10 George Love 1/90 11 Enoka Love 1/90 12 Mary Love 1/90 13 William Taotao Kite 1/30 14 Mrs Rangi Uira Mackey 1/30 15 Pango Kite 1/30 16 Mrs Kiri Kowhai Smith 1/30 17 Renah Huatahi Hoete 1/ Tahnee Hineuru 1/ Toni Mabis Turi Hoete 1/ Blaine Lewis Te Au Hoete 1/ Kahui Panui Carter Patrick Tana Pukekohatu Joseph or Tana Hohepa Ruka 1/30 1/6 Identification of evidence that may be of assistance in remedying the mistake or omission 7. The applicant has provided the following documents in support of her application: a) A copy of the Court minute dated 10 September 2009 at 28 Nelson MB in respect of an application to determine the ownership of the Wairau Block; and b) A copy of a legal opinion dated 31 March 2010 from John Van Bolderen, Consultant from Wilkinson Adams Lawyers, Dunedin. 3 2 Subsequently amended on 10 November 2006 at 2006 Chief Judge s MB to include Patrick Tana Pukekohatu Joseph or Tana Hohepa Ruka as a successor with 1/6 th share 3 Attached as Appendix A [requested by Court at 28 NE 238]

5 2016 Chief Judge s MB The Court research shows that Te Muera Ruka and Arthur Pacey entered into two separate Agreements for Sale and Purchase in respect of the Wairau Block. First Agreement for Sale and Purchase 9. On the 27 January 1958, Te Muera Ruka and Arthur Pacey entered into an agreement for sale and purchase of the Wairau Block for a consideration of with the following provisions in the terms of sale: a) The terms of sale i. Deposit of 25 required; ii. Balance to be paid in 10 quarterly instalments; and iii. Immediate possession of the land subject to confirmation by the Court. 10. On 30 January 1958, an application for confirmation of the Agreement for Sale and Purchase was lodged with the Court. 11. On 20 August 1958 at 11 Nelson MB 364, the application for confirmation was dismissed by consent. The Court minute does not record the reason for the dismissal. 12. The rationale behind the dismissal is set out in correspondence to the Court from Gascoigne, Wicks, Walton & Rout dated 21 October 1963 and it states: it is correct that that an application for confirmation of an agreement for sale and purchase between Samuel Luke and Arthur Pacey was presented to the Court at Picton on the occasion mentioned by you, but as we did not have the necessary supporting evidence at the time, we accepted the suggestion of Judge Jeunne that the case by struck out from the list. What we now propose is that when the Title position is straightened out, we will have a memorandum of transfer executed by Mr Luke and present for confirmation at a sitting of the Māori Land Court. [emphasis added] Second Agreement for Sale and Purchase 13. On 1 April 1960, Te Muera Ruka and Arthur Pacey entered into a second Agreement for Sale and Purchase of the Wairau Block for a consideration of The terms of sale recorded the following: a) Terms of Sale i. That 105 had already been paid to the vendor; ii. Balance to be paid in 10 quarterly instalments; and iii. Immediate possession of the land subject to confirmation by the Court. 14. There is no evidence before the Court to show that an application for confirmation of the agreement had been filed before the Court. The likely explanation behind this is recorded by the Deputy Registrar on 10 Setpember 2009 at 28 Nelson MB 236: According to the correspondence on file the Court never confirmed the second agreement for sale and purchase dated 1 April The rationale for this involved parties waiting for issues relating to the title to be resolved, before seeking confirmation from the Court. Details of subsequent Orders affecting lands to which application this relates 15. At 2006 Chief Judge s MB dated 10 November 2006 in the matter of Patrick Tana Pukekohatu Joseph or Tana Hohepa Ruka as a successor to Te Muera Ruka;

6 2016 Chief Judge s MB At 207 Napier MB dated 3 February 2010 upon succession to John William Samuel Carter also known as Samuel Carter or Sam Carter; 17. At 27 Taitokerau MB 1-3 dated 22 August 2011 upon succession to William Taotao Kite; 18. At 33 Waikato-Maniapoto MB dated 18 November 2011 upon succession to Connie Pepe Joseph also known as Connie Pepe Skipper or Connie Joseph or Matekohi Joseph or Matakohi Joseph; and 19. At 40 Takitimu MB dated 29 April 2015 upon succession to Ramona Kuia Bennett-Love also known as Kura Ramona Love or Kuia Ramona Love or Ramona Kuia Love or Ramona Kuia Bennett. Details of payments made as a result of the Order 20. There are no payments affected as a result of the order complained of. Reference to areas of difficulty 21. There is no evidence before the Court to show that an application for confirmation had been filed in respect of the second Agreement dated 1 April The rationale given by the Deputy Registrar was that the parties were waiting to resolve the issues around the title before any application was made. Consideration of whether matter needs to go to full hearing 22. The matter does not need to go to hearing and can be dealt with on the papers. 23. This application before the Chief Judge is made against a succession order to the deceased s interest. 24. The Deputy Registrar claims that the succession was made in error on the grounds that the deceased had signed a Sale and Purchase Agreement on 1 April 1960 for the said block to be registered in the name of Arther Pacey. 25. Until an Agreement is confirmed by the Court, it shall have no force or effect. This is set out in section 156(1) of the Act as follows: No instrument of alienation that is required to be confirmed under this Part of this Act shall have any force or effect until it is confirmed by the Court under this Part of this Act. 26. The Deputy Registrar has not provided sufficient evidence to show that the Court had made a mistake, error or omission when the succession orders were made. 27. Taking the above matters into consideration, this application fails to meet the required threshold under section 44(1) of the Act for the Chief Judge to cancel the succession order and on those grounds it is recommended that this application be dismissed. Recommendation of course of action to be taken 28. If the Chief Judge is of a mind to exercise his jurisdiction, then it would be my recommendation that: a) A copy of this report be sent to all affected parties to give them an opportunity to comment or respond, in writing, within 28 days of the date of this Report; and b) If no objections are received, then the application should be dismissed c) If objections are received, then the matter should be referred to the Court for directions.

7 2016 Chief Judge s MB 969 Procedure [6] The Registrar s Report was distributed to parties on 7 October 2015 with written responses or objections to be filed at the Office of the Chief Registrar, Wellington no later than 7 November [7] There are 37 owners in the Wairau Block (which includes remaindermen of a life interest, trustees of a whānau trust and joint executors of an estate). [8] The Registrar s Report was sent to 24 of the 37 owners for whom the Court had addresses for of which two were returned to sender. In the correspondence sent to the owners, a request was made for them to contact the Court with any address details for the remaining 13 owners. [9] No responses or objections were received by this office in regards to the Registrar s Report. [10] On 23 November 2015, the matter was referred to me to adopt the Registrar s recommendation for the matter to be dismissed. I directed that this matter be set down for hearing in Blenheim on 31 May Section 45 Hearing [11] At the hearing, the Deputy Registrar objected to the recommendation that this matter be dismissed as set out in the Registrar s Report. 4 [12] The Orders sought by the Deputy Registrar at the hearing are as follows: (a) To cancel the order made at 91 South Island MB dated 30 August 2000; and 4 Registrar s Report and Recommendation dated 7 October 2015

8 2016 Chief Judge s MB 970 (b) For and Order to be made pursuant to section 18(1)(a) of the Te Ture Whenua Māori Act 1993 determining that the ownership of the Wairau Blk XII Sec 20C be vested in Arthur and Pena Pacey as joint tenants. [13] At the conclusion of the hearing, I proposed that the following orders be made: (a) To cancel the original succession order made to Te Muera Ruka at 91 South Island MB dated 30 August 2000; and (b) To make a determination that the ownership of the Wairau Blk XII Sec 20C be vested in the Arthur and Pena Pacey Whānau Trust. [14] I directed the Registrar to distribute a copy of the hearing minutes to parties giving them one month to file their responses or objections to the proposed recommendation. [15] On 26 July 2016, I was advised that no submissions had been received by the Court opposing the Orders sought by the Deputy Registrar. The Law [16] The Chief Judge s jurisdiction to amend or cancel an order of the Māori Land Court is set out in section 44(1) of the Act: 44 Chief Judge may correct mistakes and omissions (1) On any application made under section 45, the Chief Judge may, if satisfied that an order made by the court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160, was erroneous in fact or in law because of any mistake or omission on the part of the court or the Registrar or in the presentation of the facts of the case to the court or the Registrar, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission. [17] For the benefit of the parties it is necessary to set out the principles that are applied to s 45 decisions. These are to be found in the judgment Ashwell Rawinia or Lavinia

9 2016 Chief Judge s MB 971 Ashwell (nee Russell) where the Chief Judge summarised certain principles relating to s 45 applications as follows: 5 When considering s 45 applications, the Chief Judge needs to review the evidence given at the original hearing and weigh it against the evidence provided by the Applicants (and any evidence in opposition); Section 45 applications are not to be treated as a rehearing of the original applications; The principle of Omnia Praesumuntur Rite Esse Acta (everything is presumed to have been done lawfully unless there is evidence to the contrary) applies to s 45 applications. Therefore in the absence of a patent defect in the order, there is a presumption that the order made was correct; Evidence given at the time the order was made, by persons more closely related to the subject matter in both time and knowledge, is deemed to have been correct; The burden of proof is on the applicant to rebut the two presumptions above; and As a matter of public interest, it is necessary for the Chief Judge to uphold the principles of certainty and finality of decisions. These principles are reflected in section 77 of the Act, which states that Court orders cannot be declared invalid, quashed or annulled more than 10 years after the date of the order. Parties affected by orders made under the Act must be able to rely on them. For this reason, the Chief Judge s special powers are used only in exceptional circumstances. [18] Section 45 explicitly refers to situations where the Court has made an incorrect decision due to a flaw in the evidence presented, or in the interpretation of the law, and it is necessary in the interests of justice to correct this. For this reason, s 45 applications must be accompanied by proof of the flaw identified, through the production of evidence not available or not known of at the time the order was made. [19] As stated in Tau v Nga Whanau o Morven & Glenavy Waihao 903 Section IX Block, 6 the Chief Judge must exercise his jurisdiction by applying the civil standard of proof on the balance of probabilities having regard to that standard s inherent flexibility that takes into account the nature and gravity of the matters at issue. This means that the 5 6 Ashwell Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge s MB 209 (2009 CJ 209) at [15]. Tau v Nga Whanau o Morven & Glenavy Waihao 903 Section IX Block [2010] Maori Appellate Court MB 167 (2010 APPEAL 167) at [61].

10 2016 Chief Judge s MB 972 applicant must establish on the balance of probabilities that there was a mistake or omission. Discussion [20] In the context of this case, and in exercising my jurisdiction under s 44, I must consider whether the succession order relating to the estate of Te Muera Ruka was made as a result of any mistake, error or omission on the part of the Court and whether it is necessary in the interests of justice to remedy the mistake, error or omission by cancelling or amending the order. [21] The following points raised at the hearing merit further mention: (a) The basis of the recommendations proposed by the Deputy Registrar, Te Waipounamu District, for the cancellation of the existing order and for a further order to be made pursuant to section 18(1)(a) of the Act; (b) The existence of the Arthur and Pena Pacey Whānau Trust; and (c) The whakapapa of Pena Pacey [22] At the hearing the Deputy Registrar, Te Waipounamu District posed the question Had the evidence contained in this report been produced and submitted to the Court at the time of the sitting on (30 August 2000), - would the presiding Judge have made the orders that he did? [23] It is clearly evident on review of the original application file for succession to Te Muera Ruka that there is absolutely no reference to the dealings that took place between Te Muera Ruka and Arthur Pacey. On the face of it, not all of the relevant information was put before the presiding Judge to enable him to make an appropriate decision. [24] It is also evident that the succession application to Te Muera Ruka in 2000 contained omissions in the presentation of the facts of the case as it related to the land and the dealings between Te Muera Ruka and the Pacey s.

11 2016 Chief Judge s MB 973 [25] At the hearing before me the Pacey whānau indicated that a whānau trust had been constituted which encompassed both their mother s and father s interests in Māori land and sought clarification upon any subsequent determination being made that the interest be vested in the Trust. [26] On checking the record, the whānau trust known as the Arthur and Pena Pacey whānau trust was constituted on 20 January 2009 at 28 Nelson MB According to clause 3(b)(i) of the trust deed the Trust is set aside for Arthur and Pena Pacey and their descendants and as such the Trust is deemed an appropriate recipient of the interest. [27] At the hearing evidence was also given by Mr Arthur Pacey that his wife was related to Te Muera Ruka by way of adoption to Roka Roberts: Yes well my wife she was adopted by the Robert s family and Mrs Robert s was a Luke she was Sam Luke s sister [28] According to evidence set out at 13 Nelson MB , Te Muera Ruka had the following siblings: Sophie Roberts, Billie Luke, Rongo Joseph, Rore Luke, Martin Luke and Hera Carter. [29] Roka Robert is recorded as a child of Sophie Roberts, making her a niece to the deceased. [30] Succession to Pena Pacey also known as Hemongarua Pena Pacey is recorded at 7 Registrar s (Te Waipounamu) MB 181 dated 24 September Clause 8 of the deceased s will states that all my interest in the estate of ROKA ROBERTS to such of my children, however it is noted that Pena Pacey predeceased Roka Roberts. [31] Succession to Roka Ropata is recorded at 19 Nelson MB dated 7 February According to evidence presented to the Court by Rayma-Lee Katu, Roka Roberts, died without children but brought up Pena Pacey. The deceased (Roka) left a will in favour of Rayma-Lee Katu (daugther of Pena Pacey). [32] The death certificate in the name of Hemongarua Pena Pacey records her mother as being Tauru MacDonald (nee Piripi)

12 2016 Chief Judge s MB 974 [33] In the absence of an Adoption Order, the evidence suggests that Pena Pacey was not legally adopted by Roka Roberts, but rather was brought up as a whāngai child who was adopted in accordance with tikanga Māori. [34] Pena Pacey is also recorded as a part successor to her birth mother, Tauru Piripi or MacDonald at 43 South Island MB 102 dated 10 October The interests succeeded included an adjoining block (Wairau Blk XII Sec 19) to the one in question as a part successor to Tame Kerei at 13 Nelson MB 174 dated 17 April [35] It is clear from the evidence set out above that Pena Pacey was a member of the preferred class of alienee. Conclusion [36] As a result I am satisfied that the Court when it made the order complained of, did not have all the relevant information before it which lead to an incorrect order and should now be amended. Orders [37] Therefore I exercise my jurisdiction pursuant to section 44(1) of the Act to amend the succession order made at 91 South Island MB dated 30 August 2000 by: (a) Deleting the Wairau Blk XII Sec 20C block where the deceased held a total shareholding of 0.35 shares; (b) For an Order pursuant to section 18(1)(a) of the Te Ture Whenua Māori Act 1993 determining that the ownership of the Wairau Blk XII Sec 20C be vested in Arthur and Pena Pacey as joint tenants with 0.35 shares; and (c) For a further Order pursuant to section 220 of Te Ture Whenua Māori Act 1993 to vest the additional 0.35 shares held by Arthur and Pena Pacey into the Arthur and Pena Pacey Whānau Trust in accordance with the Trust Order.

13 2016 Chief Judge s MB 975 [38] There is an order in terms of section 47(4) of Te Ture Whenua Māori Act 1993 making all other consequential amendments as required. [39] The foregoing orders are to issue forthwith pursuant to rule 7.5(2)(b) of the Māori Land Court Rules The Case Manager is to distribute a copy of this decision out to all parties. Dated at Wellington this the 13 th day of January 2017 W W Isaac CHIEF JUDGE