IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2010-419-001694 IN THE MATTER OF an Application for Summary Judgment BETWEEN AND AND TAINUI DEVELOPMENT LIMITED Plaintiff RANGIMARIE TE HORANGANUI MARAE TRUST First Defendant WIKI TOATAUA AS OPERATOR OF TE RANGIMARIE TE KOHANGA REO Second Defendant Hearing: 2 May 2011 Counsel: M C Sumpter and HJH Glennie for the Plaintiff J A Hope for the Defendants Mr A McQueen in person, seeking to be joined in the proceeding Judgment: 12 May 2011 JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN This judgment was delivered by me on 12.05.11 at 4:00pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar Date Solicitors: M Sumpter and H Glennie, Chapman Tripp, Auckland matt.sumpter@chapmantripp.com / humphrey.glennie@chaptripp.com J Hope, Barrister, Hamilton alex@punachambers.co.nz Copy to: Mr A McQueen, C/- 86 Bruce Avenue, Glenview, Hamilton TAINUI DEVELOPMENT LIMITED V RANGIMARIE TE HORANGANUI MARAE TRUST HC HAM CIV 2010-419-001694 12 May 2011
The summary judgment claim [1] This judgment concerns the defendants opposition to the plaintiff s (TDL) application for summary judgment for possession of land at Collins Road, Hamilton (the land). The land is general land. Title to it passed to the Tainui Maori Trust Board (as trustee of the Waikato Raupatu Lands Trust) on 14 May 1997 in the outcome of the Waikato-Tainui raupatu settlement with the Crown in 1995. On 17 June 2004 TDL obtained the freehold title to the land. Background [2] In about 1858 the land had been confiscated to the Crown in the time of Pootatau Te Wherowhero the first Maori King (Pootatau). The land was part of an area of 1.2 million acres that had been confiscated and which, by the Waikato Raupatu Claims Settlement Act 1995, was returned. [3] Before then and since about 1982 the land had been utilised for the operation of the kohanga reo (early childhood facility) of which the second defendant is the current operator. The land comprises an area of about 2.6 hectares. The use of part of that land as a kohanga reo has been undertaken by arrangement with the first defendant (the Marae Trust), a charitable trust registered under the Charitable Trusts Act 1957. [4] There is evidence that since late 1999 there have been discussions between the Marae Trust and the Tainui Maori Trust Board concerning future development and use of the land. It seems clear that Sir Robert Mahuta, as chairman of various Tainui entities, corresponded with the Marae Trust in that connection. He is a descendant of Pootatau. At about the time of Sir Robert s death in early 2000 his brother William Tutawhiao Ormsby was appointed chairperson of the Marae Trust. [5] Mr Ormsby s evidence documents the course of discussions between what I shall call the Tainui entities on the one hand and the Marae Trust on the other.
[6] The defendants evidence is that from late 1999 early 2000 there were discussions for the establishment of a marae type complex on the land. Mr Ormsby s diary referred to development plans, of the receipt of a grant of funds, and about work undertaken for development purposes. [7] These factors of confiscation; of a return of this land as part of other lands returned; of the established use of a kohanga reo before the land was returned; of the input of Sir Robert Mahuta in connection with proposals for a marae development after TDL assumed ownership of the land, all bear significance in the defendants opposition to TDL s action are to recover vacant possession of that land. [8] The possession action was not initiated until February 2010. Notices issued then and since for recovery have been the subject of newspaper comments to report in particular that the Marae Trust would only leave if forcibly removed. [9] In the evidence of the defendants and also from Mr McQueen this Court has, as needs must, consider the significance of both history and culture associated with the land. Issues raised [10] From TDL s viewpoint the issue is simple and straightforward. The land is general land, it is not Maori customary land or Maori freehold land or general land owned by Maori under the Te Ture Whenua Maori Act 1993. It is not therefore land which is subject to the considerations required for dealing in those other land forms. [11] The opposition to the summary judgment application strongly suggests the issue is not as straightforward or simple as TDL claims. [12] The land was confiscated in about 1863 in what is known as the raupatu. The land was returned to Waikato-Tainui initially to be held in trust by the Waikato Raupatu Lands Trust with the hapu and iwi who suffered confiscation in the raupatu. [13] The kohanga reo has occupied the site without any formal lease or licence since 1982. The defendants claim that occupation exists under an easement or a
similar right in the nature of an easement in alieno solo (a right of use in another s land). [14] The defendants claim the second defendant s occupation of the land was affirmed by two transfers of the land, one in 1997 when title was issued to the Tainui Maori Trust Board. The second transfer occurred in 2004 when TDL took title to the land as a bona fide purchaser. The defendants say this transfer was with the knowledge of the second defendant s interest and occupation and at the time TDL took no action to oppose that occupation or to modify or challenge in any way the second defendant s interest or occupation. [15] The defendants claim the kohanga reo has occupied the site under an arrangement whereby it believes on reasonable grounds that it could continue to occupy the land indefinitely. The defendants also claim they were led, on reasonable grounds, to believe that TDL through the Waikato-Tainui Te Kauhanganui Incorporated (Te Kauhanganui) and its executive body, Te Arataura, had agreed to negotiate a settlement with it. [16] Te Kauhanganui is the ultimate shareholder of TDL. The second defendant s opposition notes it is part of the national kohanga reo movement governed by the kohanga reo National Trust. Its patron was Te Arikinui Dame Te Atairangikahu, the Maori Queen, and lately her son King Tuheitia both of whom are from the Waikato- Tainui iwi. [17] The defendants assert that the brother of the late Dame Te Atairangikahu, Sir Robert Mahuta made a dying wish or ohākī during 1999 that the land should be used for a marae. Sir Robert died in January 2000. [18] The defendants claim that Te Kauhanganui as trustee of the Waikato Raupatu Lands Trust holds the land for the iwi and hapu who suffered confiscation of their lands.
Application by Mr McQueen for joinder [19] Mr McQueen filed an application that he be joined as a co-defender in the proceedings. He advises that he was on 16 December 2009 elected as secretary of the Marae Trust. He applied for joinder as a defendant because at the time he believed the defendants would not oppose TDL s summary judgment application. He is a descendant of hapu who have interests in the land. He said he was born and raised in the area and was representing the natural person. In addition to those matters of history to which the defendants refer, he says he with others have since 30 August 2010 (when TDL served notice upon the second defendant to leave the land) requested the formalisation of an ahika (burning fire) to protect, declare and to help those who chose to stay and occupy the land under the traditional way of Tangata Whenua and Mana Whenua. He says the ahika has been maintained since. [20] Mr McQueen submits that the customary practices and usages of Te Kauhanganui apply and that the land in dispute is wahitapu (sacred) as a marae and taonga tuku iho (of special significance) and therefore lies under the ambit of the preamble of the Te Ture Whenua Maori Land Act 1993. Mr McQueen believes the Maori Land Court is the appropriate Court to determine the rights of whenua and hapu to the land. He also asserts that TDL has a fiduciary duty to the Maori land owners, the whenua and the hapu of Tainui. [21] Mr McQueen s application for joinder was opposed by TDL and by the defendants. Mr Hope for the defendants submitted that Mr McQueen s attendance adds nothing to the defendants case. He says Mr McQueen s argument for standing in the proceeding is because of his membership of the Marae Trust and otherwise has no standing to appear as a natural person and one claiming it to be a direct descendant. Mr Sumpter agreed with that position. So too does this Court and it is my ruling that Mr McQueen s joinder application be declined. [22] This is a case about an application to recover land from two entities that occupy it. In the case of considering that claim I will review the defendants arguments to resist the occupation claim. In the course of those I will consider the elements of history and culture averted to by the defendants. In some part they focus
upon matters raised by Mr McQueen but otherwise it is my view that Mr McQueen s case for standing as an individual cannot succeed. The defendants opposition to the summary judgment application [23] It is that there are important issues of disputed fact between the parties respective positions. It is also that TDL s case has ignored evidence or that it has yet to disclose relevant documents which may undermine claims of actions in good faith. [24] The defendants evidence is that from 2000 onwards preparations were being made to establish a marae type complex and that this was known by the predecessors in title to TDL indeed with the assistance and consent TDL s predecessor in title, the Tainui Maori Trust Board. [25] The defendants submit the marae type complex had the apparent approval of TDL for years before it acted to repossess the land. When TDL took title in 2004 no objection was taken to the defendants occupation. Indeed after that time the marae trust continued with the marae type development and the second defendant continued to occupy the land as it had done so for many years previously. [26] The defendants believe the plaintiff has relevant documents in its possession that would point to knowledge by TDL of occupancy use at the time of transfer, and of marae type development intentions. [27] Mr Ormsby has retained a diary note of a meeting between the Marae Trust and TDL on 12 December 2003. He said in the outcome TDL supported the Marae Trust s development proposals. [28] Likewise and more recently correspondence and communications between the Marae Trust and Te Kauhanganui make it clear, the defendants claim; that all issues challenging the right of the defendants to occupy the land, have, by agreement been deferred and remain deferred. The defendants claim that letters dated 27 February 2011 and 20 March 2011 from Te Kauhanganui evidencing that state of
affairs, bind TDL because the Te Kauhanganui executive (Te Arataura) provides TDL s directors from amongst its numbers. [29] In the result the defendants claim that they continue to lawfully occupy the land. They say it is implicit in the motion passed by the Te Kauhanganui on 20 March 2011 to suspend consideration of a community development proposal that will recognise the significant historical relevance of its whenua and its whakapapa that continues to evolve, such as... (a) Te Rangimarie Kohanga Reo is the first Kohanga reo in the Kirikiriroa 29 years old. (b) (To protect the Taonga tuku iho) that had been gifted to support the site development in the name of the Kingitanga. [30] In summary Mr Hope submits for the defendants that the plaintiff s claim is not suitable for summary judgment because there are disputed facts; there are relevant discoverable facts; and the court would benefit from hearing expert evidence about cultural and historical concepts which, the defendants say, TDL is bound to observe in the manner it purports to administer occupancy and use of the land. [31] Two other important events compel, the defendants claim, TDL to acknowledge the lawful occupation of the defendants. One is disclosed in what Sir Robert Mahuta wrote and in what it is reported he said concerning the future use of the land. The second was in the gift by the Maori Queen of her personal flag for use by the kohanga reo upon the land. The defendants claim the gift of that flag for that purpose is waahi tapu and taonga that cannot be replaced or traded. [32] Sir Robert Mahuta s actions and words raise the issue of ohākī, i.e. an old promise or declaration in the nature of a will in circumstances requiring fulfilment of those wishes by future generations that may use the land.
[33] The relevance of ohākī refers not to just what Sir Robert Mahuta was reported to have said but what he wrote on 30 December 1999. Ohākī refers to reverence and respect due to those persons having the authority to bind the actions of future generations. The ability of Sir Robert Mahuta to do this is explained in part by the preamble to the Waikato Raupatu Claims Settlement Act 1995 wherein it was noted the confiscated land, of which the land is a part, was pledged to the name of Pootatau and it was through his name that the confiscated lands would be returned to Waikato-Tainui to be held communally in a trust. Therefore it is said that in the name of his ancestor Sir Robert Mahuta could act in the manner the defendants now claim he has done. In this respect the Court is referred to a letter written by Sir Robert Mahuta on 30 December 1999 as chairman of the Waikato Raupatu Lands Trust. He wrote: 4. My general view is that we should see if we can renovate and expand the present Rangimarie work trust building into a marae type complex and build a meeting house at the front, expand and improve the existing kitchen facilities, expand and improve the toilet facilities, tidy up and improve the lecture and office sections. 5. The existing kohanga reo and house would need to be relocated somewhere on the Colins Road site, of the complex so that it is all managed under the one umbrella of the marae committee.... 9. Once the development is completed (hopefully by October 2000) we can then work out a lease arrangement between the Lands Trust and the marae committee. [34] The evidence available is that Sir Robert Mahuta was quite ill at this time. Indeed he died a short time only after. [35] The defendants position is that to an extent Sir Robert ordained the future use of the land for a marae type complex and therefore TDL is bound to respect that action. [36] In the similar sense in which the defendants advance a defence of estoppel by the actions of the Te Kauhanganui by its letters, by which it claims TDL was now bound to withdraw its land recovery claim, so too the issues of ohākī give rise to a claim of estoppel because of the expressed wishes of Sir Robert Mahuta for
development of the land. The defendants say therefore, TDL is estopped from denying there was an agreement by them permitting occupation of the land for the development of a marae type complex. Considerations [37] Te Arataura is the executive board of Te Kauhanganui which represents various hapu/tribes within the Waikato-Tainui iwi. Te Arataura is responsible for Te Kauhanganui s governance. [38] Te Kauhanganui, as trustee of the Waikato Raupatu Lands Trust, is TDL s ultimate shareholder. This court is informed Te Arataura through its authority maintains directorship control of TDL. Sir Robert Mahuta was Te Arataura s chairman. [39] TDL is a landholding subsidiary of Tainui Group Holdings Limited which hold assets for the benefit of all Waikato-Tainui iwi members. It is not in doubt that TDL, its shareholders and stakeholders are dedicated to the obligations they have to their people, their ancestors, the history of the land and its future use. It follows that TDL and its governing bodies want to use the land to best advance the interests of the entire iwi. [40] The correspondence, some of it from Sir Robert Mahuta, of or around 1999 highlights the consultation under way. The development proposal referred for consideration of the Te Kauhanganui on 20 March 2011 identified the objectives of a development proposal as including the protection, advancement, development and unification of the interests of Waikato. It noted its goals as including the design of facilities that best suit the provision of community and tribal based educational programmes for an opportunity for educational providers to work in partnership on the community complex. [41] It appears little development if any has been done since. However TDL obtained freehold title in 2004. Clearly this was done with the authority of the Te Kauhanganui.
[42] There are concerns by the defendants that TDL may wish to undertake commercial development upon the land which would threaten its continued use as a kohanga reo. No evidence of intended commercial development is before the Court. The defendants are concerned for the potential of their values and interests being sidelined if vacant possession is given to TDL. But, the fact is this land is the lawful land of TDL. It is entitled to possession of this land unless a lawful reason exists to prevent that. Such might arise if the defendants had a lease or some tenancy of the land, but they do not. They do not pay rent or rates. [43] Sir Robert Mahuta supported proposals for a development of the land in accordance with the goals and objectives earlier referred to in this judgment. That is consistent with permission being given to occupy the land. But, it is not consistent with the conveyance of any proprietary right, nor is such a right created in circumstances where TDL took title with the knowledge a kohanga reo operated there. [44] The fact that a working party was convened does not create an estoppel. The fact the land had been confiscated but later returned to the Waikato-Tainui iwi and that the kohanga reo has now been in occupation for more than 20 years, does not confer any prescriptive title to the defendants. [45] For TDL now to be estopped from obtaining possession of its land the Court will require to receive a clear and unequivocal representation given by TDL or its predecessors in title or by the Te Kauhanganui which the defendants say was detrimentally relied upon and which was given in circumstances where it would be unconscionable to allow TDL to rely on its strict legal rights of occupation. [46] There were no such representations given. There is no evidence of unconscionable conduct in this case. There is no evidence of dishonesty by or on behalf of the Te Kauhanganui to defraud the defendants or to take from them some equitable interest they consider they hold in the land. [47] The Te Kauhanganui through its various entities and by its authority is entrusted with an obligation to advance the interests of all its people. There is no
evidence that this has not been done. There is no evidence it does not intend to enhance the lives and opportunities of succeeding generations. It clearly has the legal infrastructure in place to achieve those objectives. Of course, there will be different views about how these long term objectives are met but those are matters of consultation and governance. [48] No lawful reason exists to refuse TDL s application. The defendants are occupiers at the will of TDL. There is no lawful basis upon which this Court could refuse TDL s vacant possession application. [49] There is no reason at all to doubt the sincerity of the defendants in the position they take. No question at all is raised about those matters advanced on their behalf. However, the land in question is general land and this Court has no option but to acknowledge TDL s claim for vacant possession pursuant to parts 12 and 13 of the High Court Rules. There is no evidence which has been provided which offers a defence to TDL s claim. There is no critical difference over issues of fact except in regard to the defendants claim of a right of occupation in perpetuity having been promised to them. No such promises were made by the circumstances in which the land was returned to Waikato-Tainui. Nor was there any in the consultation process which has ensued since. The Te Kauhanganui by its authority and through its entities must deal with the land in the interests of its iwi. That however does not confer any right of occupancy in the long established kohanga reo in the absence of a formal arrangement for that occupation having been concluded. Judgment [50] It is ordered that the first and second defendants, their agents and employees and all other unlawful occupiers, deliver possession of the land contained in certificate of title SA 61B/114, being lot 2 of DP 77072, to the plaintiff.
[51] Mr Hope requested costs be reserved if TDL was to succeed with its application. Instead, I think it appropriate for costs to be fixed and I order this be done on a 2B basis together with disbursements approved by the Registrar. It is of course a matter for the plaintiff to decide whether any action will be undertaken to recover those costs. Associate Judge Christiansen