IN THE MĀORI LAND COURT OF NEW ZEALAND WAIĀRIKI … · 2013 Chief Judge’s MB 474 Introduction [1] This is an application under s 45 of Te Ture Whenua Māori Act 1993. The application

2013 Chief Judge’s MB 473

IN THE MĀORI LAND COURT OF NEW ZEALAND WAIĀRIKI DISTRICT

A20050009088

UNDER

Section 45, Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Allotments 302-315 Town of Richmond and Richmond Township Allotments 18-20

BETWEEN

COLLEEN SKERRETT-WHITE and TE ARIKI MOREHU Applicants

Hearing:

20 January 2006, 109 Whakatāne MB 1 10 March 2006, 8 Conference MB 56 1 and 2 June 2006, 111 Whakatāne MB 153 16 April 2007, 308 Rotorua MB 44-45 30 April 2010, 7 Waiāriki MB 83-98

Appearances:

J Pou, counsel for the applicants A Sykes, counsel for Ngāti Makino and Tūwharetoa ki Kawerau J Chadwick, counsel for the Trustees of the Ngāti Hinerangi Trust C Bidois, counsel for Ngāti Rangitihi J Fergusson, counsel for Te Tawera Hapū Trust

Judgment:

01 August 2013

RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC

Copies to: Aurere Law, 1115 Pukaki St, Rotorua, 3010 Attention: Jason Pou and Annette Sykes Email: [email protected] John Chadwick Barrister, PO Box 456, Rotorua, 3040 Attention: John Chadwick East Brewster, PO Box 1742, Rotorua, 3040 Attention: Curtis Bidois Email: [email protected] Kahui Legal, PO Box 1654, Wellington, 6140 Attention: Jamie Ferguson Email: [email protected]

mailto:[email protected]�

mailto:[email protected]�


Introduction

[1] This is an application under s 45 of Te Ture Whenua Māori Act 1993. The

application concerns an order made on 5 May 1998 at 248 ROT MB 277 creating an ahu

whenua trust over Allotment 18, Allotments 302-315 and Allotment 324 of the Town of

Richmond. The land is at Matata. The application was received by the Māori Land Court

on 22 June 2005. The applicants are Te Ariki Morehu and Colleen Skerrett-White.

[2] The applicants claim that they have been adversely affected by the order creating

the ahu whenua trust because they maintain the land should have been designated as waahi

tapu (as an urupā) and also that the order is erroneous in fact and/or law by reason of an

omission in the presentation of the facts of the case to the Court. The alleged errors are

that the Crown grant of 5 May 1881 was not presented to the Māori Land Court for

consideration, and the trustees of Ngāti Hinerangi do not represent Ngāti Pikiao.

The land subject to this application

[3] An ahu whenua trust was created on 5 May 1998 at 248 ROT 277 over land then

held in three separate titles:

(a) Allotment 18 of the Town of Richmond, containing 1012 square metres

more or less situated in Block VI, Awaateatua Survey District, contained on

Certificate of Title 779/179;

(b) Allotments 302-315 from which Lot 20 derives of the Town of Richmond,

containing 1.4416 Hectares more or less situated in Block I, Awaateatua

Survey District, contained on Certificate of Title 779/250;

(c) Allotment 324 of the Town of Richmond, containing 2023 square metres

more or less situated in Block I, Awaateatua Survey District, contained on

Certificate of Title 779/261.


[4] The land titles subject to this application are:

(a) Allotment 18 Town of Richmond (Allotment 18)

This is Māori freehold land vested in Te Tawera Hapū Trust Māori

Reservation. The trustees are Pouroto Ngaropo, Noti Belshaw, Tepo Elliot,

Tawio Ngaropo, Timi Peri and Amohaere Tangitu.1

(b) Lot 20 Deposited Plan 306286 (Lot 20)

This is General land vested in the Ngāti Hinerangi Trust. Lot 20 derives

from Allotments 302-315 of the Town of Richmond. Donald Mairangi

Bennett, George Bennett, Tutewehiwehi Kingi, Ikatapu Kingi and the

Proprietors of Okere 1B 3C3 and Adjoining Blocks Incorporation are the

trustees.2

Title history

The Crown Grants

[5] Allotment 18 was the subject of a Crown Grant on 5 May 1881 made to “Te Pokiha

Taranui an Aboriginal native chief of New Zealand his Heirs and Assigns”.3 It appears that

this grant was to him in his own right. It is referred to as a Military Grant.4

[6] As stated, Lot 20 derives from Allotments 302-315. The Crown grant for these

lands is to “Te Pokiha Taranui his Heirs and Assigns forever. In trust for the Ngatipikiao

hapu”.5 This grant was also made on 5 May 1881. It was made under the Richmond Land

Sales Act 1870.

1 100 Whakatāne MB 217 (100 WHK 217). 2 91 Whakatāne MB 43 (91 WHK 43). 3 Unregistered Crown Grant 1881, T 119, No. 20821, Reg. A102. 4 7 Waiariki MB 85 (7 WAR 85). 5 Unregistered Crown Grant 1881, T 121 No. 20842.


The will of Te Pokiha Taranui

[7] The last will and testament of Te Pokiha Taranui, dated 7 July 1900, leaves

everything to his wife, Te Rangipaoa Pokiha. This clearly included his lands. His will

states: “ka tuku atu ki taku hoa wahine kia Te Rangipaoa Pokiha aku whenua katoa”.

[8] The will has a schedule listing the “lands in which the late Te Pokiha Taranui had

interests”. According to the list, they were:

i. Paengaroa South (Pakotore);

ii. Te Taheke;

iii. Okataina (Te Ruato);

iv. Okataina (Waione);

v. Te Tumu – Kaituna;

vi. Te Puke (Otaraninoa);

vii. Te Puke (Motungarara);

viii. Ohineahuru No. 2;

ix. Okoheriri No. 5.

[9] Te Pokiha died on 11 July 1901. His wife, Te Rangipaoa Pokiha applied for

probate of his will on 31 July 1901.

[10] Te Rangipaoa Pokiha died on 10 July 1944 and Sam Emery was granted

administration of her estate on 13 March 1946. In her will, dated 8 September 1938, her

name is spelt ‘Te Rangipawa’. Te Rangipawa gave her interests in “the the following

blocks namely: Haumingi No.1, Haumingi No.9, Haumingi No.13, Town of Richmond,

Rotoiti 6 and 7, and Taheke No.3.” to Sam Emery.

[11] In the affidavit of the applicant Colleen Skerrett-White dated 18 January 2006, she

states that:

Rangipawa’s Will, 10th July 1944, bequeaths the whenua of the Town of Richmond to my

koroua Samuel Emery. This discovery reminded me of the korero of my kuia when she had

talked of that particular land being discussed at Taheke by all of Pikiao and that her father, Sam


Emery, or his whanau did not consider succeeding the land as it was a grant for all of the Pikiao

Hapu.

The 1911 succession orders

[12] On 11 July 1911, succession orders were made in respect of Richmond Town

Allotments 308, 309 and 310 vesting the interests of Pokiha Taranui in shares to 19 people

listed in the schedules, including Hemana Pokiha. There was also succession to Town of

Richmond Allotment 307, presumably dating from the same time to the same 19 people.

The 1949 Certificates of Title

[13] On 28 September 1949, a certificate of title was issued vesting Allotment 18 of the

Town of Richmond in “Te Pokiha Taranui of Richmond” in fee simple.6 The memorial

schedule records that this land was registered to Te Pokiha Taranui.

[14] On 18 October 1949, a certificate of title was issued vesting Allotments 302, 303,

304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314 and 315 in “Te Pokiha Taranui of

Maketu, Maori Chief in fee simple”.7 On the same day, Caveat No. 17169 was registered

against this title by the District Land Registrar. The memorial schedule records that these

lands were owned by “Te Pokiha Taranui in trust for Ngatipikiao Hapu”.

[15] Te Pokiha Taranui is named as the sole registered proprietor despite having been

dead for nearly 50 years by this time.

[16] A letter dated 10 March 1971 from the Judges’ Chambers, Māori Land Court,

Rotorua, to the Secretary of Māori and Island Affairs, states:

On 18.10.1949 the District Land Registrar lodged a caveat against fourteen of those Allotments –

it reads as follows:

I, George Hume Seddon District Land Registrar of Auckland, in exercise of the powers vested in

me in that behalf, forbid the registration of any memorandum of transfer or other instrument

affecting all that parcel of land containing ... Allotments [302 – 315] of the Town of Richmond

6 Certificate of title vol 779 folio 179, dated 28 September 1949. 7 Certificate of title vol 779 folio 250, dated 18 October 1949.


and being all the land comprised in Certificate of Title 779 Folio 250, until this caveat be by me,

or by the District Land Registrar for the time being withdrawn. The grounds for entry of this

caveat are as follows: - The Registered Proprietor holds the land upon trust and has no express

power to sell. See unregistered Crown Grant T. 121 and application 359050.

The 1957 orders

[17] A hearing was held on Thursday 11 July 1957 regarding “the Matata sections”, also

referred to in the minutes as “the N. Pikiao secs”.8 At the hearing, Mr R Vercoe is noted as

saying:9

It is a difficult matter I discussed with the D.O. he said leave till suitable opportunity. I know the

problems at issue. Some of the people entitled to speak are not versed. The leader of N. Pikiao

in the years past was Pokiha Taranui – he is spoken of as the trustee. My view is that if

approached as individuals it will take a long time and unnecessary work. I say the short cut for

these areas to be put in hands of M T and he see the beneficiaries of each section.

[18] The Court stated that there were “[?No] staff for this”. Mr Vercoe continued:10

I suggest that a committee of 3 be appointed by the Court for N. Pikiao. Mrs Bennett is here she

is interested. I suggest the committee lease and come to Court for power of sale.

[19] Jack Brady stated “I endorse what Mr Vercoe has said. We have 200 Maori children

at Matata Schools”.

[20] Albert Bennett stated:11

I endorse the setting up of a committee of N Pikiao. I note that successions have been made to

Pokiha Taranui for secs for which he was a trustee. I have looked at the minutes when

successions went through in 1911. Was he trustee for all N Pikiao. I have spoken to elders – we

agree to committee set up. I think Maori people be given opportunity to acquire secs. This will

be a start to lay it out as a modern town. We desire to short cut what will be a long matter.

8 32 Whakatāne MB 81-95 (32 WHK 81-95). 9 At 81. 10 At 82. 11 Ibid.


[21] The Court made a number of orders regarding other Town of Richmond Allotment

blocks. At 32 Whakatāne MB 95, regarding the “Ngatipikiao sections”, Mr A Bennett

states:12

We went through files – we felt that this matter should receive further attention by hapu. Not

many present. We want to do right thing by these secs; the files show Pokiha Taranui was trustee

for 302-315. Also 322, 323, 324. In 1911 succession orders were made for 4 secs – 307-310

inclusive. The succession went to Hemana Pokiha 1/3. He had 2 successors – my mother; my

uncle. Remainder went to 2 other groups. There was another [?block] of secs in name of Te

Pere [?Teito] 266-267, 272, 289, 292, 296 and 325. In 1914 those secs though in trust for N

Pikiao went to 4 successors. I raise point the whole [?] is anomalous. Pokiha was awarded NZ

Cross. Were these secs part of that grant. I suggest committee of 3 to take all the Pokiha Taranui

secs – who is entitled to be settled later.

[22] While the 1911 successions do not appear to have been taken into account in the

1949 certificates of title, they were taken into account when these orders were made on 22

July 1957 at 32 Whakatāne MB 98-100 pursuant to s 438 of the Māori Affairs Act 1953.

[23] The court minutes note that 302, 303, 304, 305, 306, 311, 312, 314, and 315 Town

of Richmond “originally had Pokiha Taranui as trustee for N. Pikiao”. And that “307, 308,

309, 310, 324 were succeeded to. Also Sec 18 which was in his name not expressed as

trustee”. Lot 20 derives from Allotments 302-315. It appears that 307, 308, 309 and 310

were now being treated separately to the rest of 302-315, as they had already been

succeeded to in 1911. It also appears that perhaps some these blocks were to be held on

trust for Taheke Marae, and the others “upon trust for maraes yet to be determined”.13

[24] The minutes note Albert Bennett as stating that representatives of Pokiha Taranui’s

successors had met at Awatere to:14

... discuss dining room for Taheke (at Okere) for the Pokiha successors ... matter was discussed

– decided that a committee of Pokiha Hemana, Koraurau Kingi, Albert Bennett be appointed to

deal with these sections. If Court feels that Comm. should have P/sale [?power of sale] should

be referred back to people. With regard to secs not succeeded to it was felt that in order to

[?free] any other branches of N Pikiao to advance claim a [?Repres] application to determine

12 At 95. 13 See Memorial Schedule for Lots 203-315. 14 32 Whakatāne MB 98-100 (32 WHK 98-100).


successors be lodged and we as a group will advance our claim as it was felt that those secs

should follow the other ones.

[25] There appear to be some blanks in the Court minutes which record Hemana Pokiha

as saying that:15

I am one of the persons entered as [successor] to Pokiha Taranui. All the [illegible writing ]

people who should be heard were present at Saturday’s meeting. No one claimed that he should

beneficially take under the succession. The agreement by all was [words missing in transcript ]

secs succeeded to [words missing in transcript] Taheke Marae other secs [words missing in

transcript] Court to decide later.

[26] The judge noted that the blocks in question fell “into 2 groups – one Pokiha Taranui

has been succeeded to, the other not”. The judge continued that:16

An agreement has been reached which the Court feels carries out the wishes of the [successors]

appointed and the others of N Pikiao who may claim. It is unlikely that any persons will claim

beneficially. Any claim would be for the 3 other maraes of N Pikiao. It is pointed out that other

sections similarly granted on trust in this [words missing in transcript] have been succeeded to

and sold.

[27] Two orders were made:17

(i) An order pursuant to s 438 of the Māori Affairs Act 1953 vesting Allotments

18, 307, 308, 309, 310 and 324 Town of Richmond in Pokiha Hemana,

Koraurau Kingi and Albert Bennett upon trust to lease and to hold the net

proceeds after payment of expenses upon trust for the Taheke Marae at Okere.

(ii) An order pursuant to s 438 of the Māori Affairs Act 1953 vesting Allotments

302, 303, 304, 305, 306, 311, 312, 314, and 315 Town of Richmond in Pokiha

Hemana, Koraurau Kingi and Albert Bennett upon trust to lease and to hold

the net proceeds after payment of expenses for such purposes as the Court

may order.

15 At 99. 16 Ibid. 17 At 100.


[28] The memorial schedule for “Lot 18 Town of Richmond” records that the block was

vested in Pokiha Hemana, Koraurau Kingi and Albert Bennett “upon trust to Lease on

behalf of the Taheke Marae”. It also refers to the order made at 32 Whakatāne MB 100.

This is consistent with the orders made.

[29] The memorial schedule for “Lots 302-315” notes that the blocks were registered to

Te Pokiha Taranui in trust for “Ngatipikiao Hapu”. After the entry noting the vesting order

made at 32 Whakatāne MB 100, there is an entry vesting the blocks in Pokiha Hemana,

Koraurau Kingi and Albert Bennett “upon trust for Taheke Marae at Okere in respect of

Lots 307, 308, 309, 310, see Whak 31/100 for other sections similarly vested. Lots 302,

303, 304, 305, 306, 311, 312, 313, 314 and 315 upon trust for maraes yet to be

determined”.

[30] The schedule of ownership orders records that “Allots 302-315” were vested in

Pokiha Hemana, Koraurau Kingi and Albert Bennett to be “Held on Trust for the Taheke

Marae”. The schedule refers to the order made at 32 Whakatāne MB 99-100. This appears

to be inconsistent with the orders made, as only Allotments 307-310 were to be held on

behalf of Taheke Marae, and the others lands, while vested in the same trustees, did not

have the same specificity of purpose, as noted above.

The 1991 orders

[31] On 28 February 1991 Donald Mairangi Bennett made an application to the Māori

Land Court requesting that the lands known as Town of Richmond 302-315 and 324, and

18 be vested in Bertram Ikatapu Kingi and Donald Mairangi Bennett as trustees upon the

grounds that the “present trustees are deceased and a meeting of the Okere Incorporation

nominated replacement trustees”.

[32] The minutes from the AGM of the Okere 1B3C3 and Adjoining Blocks

(Incorporated) held in the Rangitihi Meeting House on 9 December 1990 were provided.

The AGM minutes state:

Matata Sections


Chairman advised of discussion held with Judge Smith concerning these properties located at

Matata and of the Judge’s offer to assist in creating the necessary Trust to transfer these lands to

Ngati Rangitihi at Matata with the Trustees being Harry Semmens, Jack Brady, George Te Kuru

Bennett and Robert Tutewehiwehi Kingi.

[33] A hearing was held at Taheke Marae on 31 July 1991 to deal with “Allots 302 to

315 Town of Richmond ... and Lots 18 and 324”.18

[34] The minutes from that hearing are set out below in full:19

Mr Bertram Kingi: These sections vested in Ngati Pikiao Trustees ... land to be vested in

Rangitihi with Trustees.

Mr Jack Brady, Harry Semmens, Robert Tutewehiwehi Kingi and George Te Kuru Bennet.

Suggest at this stage land be vested in Rangitihi ma (dec). Await Trusteeship and decision

whether Section 439/53 or what.

There are 14 sections in our area and ... sections in Pakeha and John ... different uses.

Mr J Brady: We should be careful about the use of Rangitihi – would not want what we are

doing overturned because of use of that name hoping something comes from Ngati Pikiao site

so could belong to all of us.

Mr Tutewehiwehi Kingi gave whakapapa with view to finding another cousin to both Rangitihi

and Pikiao.

Court: Suggest two ancestors – one from each side.

Mr T Kingi: Suggest Rangitihi and Kawatapurangi.

Mr Brady: Supports.

Whakarewa Hunuhunu: That person to far from land belongs to Te Arawa ... Pikiao is next to

the land.

Mr T Kingi: Mention Pokiha Taranui as possible Trustee (after discussion with Mr Hunuhunu

move that it be Rangitihi and Kawatapurangi.

Court: As all present in accord over Section 438(3)(c)/53 terminating trust and vesting lands in

Rangitihi ma (dec) and Kawatapurangi ma (dec) – Order Section 34(10)/53 immediate release of

18 84 Whakatāne MB 110-111 (84 WHK 110-111). 19 At 110.


these orders.

Order Section 30(1)(f)/53 determining that land is Maori freehold land.

Mr Harry Semens: The land is our Urupa – ask that it be set aside as a reserve – Lots 302.

Mr Brady: Will that allow burials there.

Court: Up to Trustees.

Mr Hunuhunu: Don’t want new Trustees changing things.

Court: Do you want more time.

Mr Brady: Would appreciate that.

Court: Adjourned to chambers in Rotorua – Mr Brady to advise in due course what is required.

If Trusteeship – then Trustees will be J Brady, Mr Bennett, Mr T Kingi and George T Bennett as

mentioned above.

Mr B Kingi: Other section Lots 18 & 324 should be adjourned also.

Mr Don Bennett: Would Mr Brady elaborate on those sections.

Mr J Brady: Land next to Pohutukawa square, this is a reserve have to have a look at land. After

we have a look – then back to Court.

Mr Don Bennett: Trustees are a worry, there must be urgent action. I confirm that my brother

George willing to accept Trusteeship.

Court: Future Trusteeship of this land same as for Urupa area - stood down for proposed

Trustees to consider use and management.

[59] An order was made cancelling the 1957 trust and vesting the land in the tipuna

Rangitihi and Kawatapuarangi. No orders were made replacing the trustees.

The Order complained of – the 1998 order creating an ahu whenua trust

The application for an ahu whenua trust

[60] On 17 February 1998, Donald Mairangi Bennett made an application to the Māori

Land Court to constitute an ahu whenua trust over Allotments 302-315, 18 and 324, Town

of Richmond. The application requested that the lands be vested in Donald Mairangi


Bennett, George Bennett, Tutewehiwehi Kingi and Ikatapu Kingi as trustees, and for the

trust order to provide:

(a) That the Trustees shall hold the land upon Trust for the beneficiaries of Ngati Hinerangi.

(b) That the whole of the Trust income be applied for the beneficiaries of Ngati Hinerangi.

(c) That the Trustees be empowered to sell the said land upon the following conditions:

(i) Upon each sale the Trustees shall apply to the Court for a Status Order and

hold the net proceeds of sale pursuant to Section 137(1) and (2) of Te Ture

Whenua Maori Act 1993.

(d) That the name of the Trust be NGATI HINERANGI TRUST.

(e) Such other powers as the court deems appropriate.

[61] The application was made on the grounds that:

(a) The said lands have previously been held for the benefit of Taheke Marae;

the ultimate beneficiaries of that Marae are Ngati Hinerangi.

(b) It is necessary to appoint Trustees to deal with the lands.

(c) It is desired by the Trustees to sell the lands and use the net proceeds for the

betterment of Ngati Hinerangi in terms of Te Ture Whenua Maori Act 1993.

[62] The application also requested that the registered caveat be removed.

[63] The memorandum filed in support notes that “When the general titles were issued

in 1949 it was recognised then that the registered proprietor held the title in a

trustee/representative capacity”.20 It states that the caveat 17169 was registered:

... against CT 779/5021 and 779/26122... the grounds for which are expressed as follows: “the

registered proprietor holds the land upon Trust and has no express power of sale”. This

encumbrance apparently arose from the unregistered Crown Grant which created the initial title.

20 Memorandum of J T M Chadwick, filed in support of the application for an ahu whenua trust. 21 Likely to be CT 779/250, which is Allotments 302-315. 22 This is Allotment 324.


[64] The memorandum continues:

3. The Minutes of the Maori Land Court on 22 July 1957 ... indicate that these sections were set aside for the benefit of the Taheke Marae as they were vested in trustees upon trust for the Taheke Marae. One of the trustees was Pokiha Hemana, a son of Te Pokiha Taranui. The specific orders made were as follows:

(a) Allotments 18, 307-310 and 324 were vested in trustees to lease and to hold the net proceeds upon trust for the Taheke Marae.

(b) Allotments 302-306 and 311-315 were vested to hold the net proceeds for such as the Court may Order.

4. At the hearing of the Court held at Taheke Marae ... the question of who the sections should be vested in arose again and after discussion agreement was reached that the lands should be vested in Rangitihi and Kawatapurangi. This discussion arose because of a need to make clear the beneficial link back to Taheke Marae.

As a result the Court made an Order cancelling the Section 438 Trust and revesting the lands in Rangitihi and Kawatapurangi. At the same time the Court made Orders declaring the status of all the sections to be Maori freehold land.

It is noted that none of the Court orders were registered against the general land title.

5. Ngati Hinerangi now seek to become active with respect to these sections. The intention is to sell them and hold the net proceeds pursuant to Section 137(2) to enable them to formulate either a land acquisition or a land improvement plan or both.

[65] The memorandum notes that the intention was to progressively sell Allotments 302-

315 and that would require trustees to apply for individual title.

[66] An employee of the Māori Land Court wrote to John Chadwick, counsel for Don

Bennett, on 23 February 1998 asking for further information:

1. A copy of CT 779/250 for Lot 302 to 315 Town of Richmond and CT 779/261 Lot 324

Town of Richmond.

2. A copy of the minutes where the proposed Trustees were elected.

3. Written consents from each proposed Trustee confirming that they do want to be a

Trustee.

[67] The certificates of title were provided, along with a copy of the consents of the

proposed trustees. The letter from John Chadwick, dated 13 March 1998, goes on:

As to the minutes I am instructed that this particular issue has been raised at every AGM of the

Okere Incorporation for the last 20 years or so; the usual enquiry being “what are we doing about


the Matata lands?” Indeed, the issue was discussed when the Court convened at Taheke Marae

on 31 July 1991 – see 84 Whakatane Minute Book 110. Copies of the Minutes of that hearing

were circulated to the four proposed trustees. (set out above at 3.34)

[68] On 3 April 1998, the Court advised the applicant that it had set the matter down for

a hearing on 5 May 1998.

[69] On 27 April 1998, John Chadwick provided the Court with a copy of a resolution

passed at a meeting of Ngāti Hinerangi held in the Rangitihi meeting house, Taheke, Okere

Falls on 26 April 1998. In relation to the “Matata Sections”, the minutes state:

Mr D Bennett explained that he, along with Messrs G Bennett, B Kingi and T Kingi, had been to

see Judge Hingston in Chambers at the Maori Land court to discuss issues pertaining to the

Matata sections.

The Judge upon questioning by the Trustees had stated that the sections could be sold and made

it clear that any proceeds from such sales would have to be retained or invested in others land

and could not be distributed to beneficiaries.

Mr D Bennett then explained that approval was required from the beneficiaries to sell the

sections and that the present trustees need to be renominated as Trustees so that the Trust can

become an Ahu Whenua Trust.

[70] A hearing was held on 5 May 1998 before Judge Hingston.23 The only people

present were John Chadwick, Donald Bennett and Bert Kingi. The minutes from that

hearing are very short. It appears that the Court accepted the information in the

memorandum. There is no recorded discussion of the reasons for and merits of the

application. The entire record reads:

Court: Mr Chadwick, what can (sic) we going to do about the caveat? I can’t do anything about

that. I have no problem with what the proposed trustees want to do. It looks like a statutory

caveat. You’re going to have to go to the DLR, I don’t think I can do anything.

Mr Chadwick: Yes, I’ll have to take it up with the DLR. I guess if the DLR receives an order

which has the effect of ... the caveat.

23 248 Rotorua MB 277 (248 ROT 277).


Court: I don’t think it will have. The Court did not put the caveat on it.

Mr Chadwick: I will take that up with the DLR.

Court: All you need today really is the 215 order creating the Ahu Whenua Trust. (Yes) Which

I will make an order 215 in terms of the application pending an Ahu Whenua Trust. To be the

standard accordingly vesting in the proposed trustees. The Trust Order be a standard wide

powers Trust with the inclusion of a special clause, whereby the trustees may negotiate a sale of

all the blocks in the Trust and it may make an application to the Court upon the reaching of an

agreement on a possible sale for the rationalisation of the Trust lands by way of changing the

status to general land of any or all of the blocks at that time. The net proceeds from and

alienation are to be held for the benefit of Ngati Hinerangi Trust.

[71] Orders were made pursuant to s 215 of Te Ture Whenua Māori Act 1993 creating an

ahu whenua trust over Allotment 18, Allotments 302-315, and 324 Town of Richmond; and

pursuant to s 220 vesting that land in Donald Mairangi Bennett, George Bennett,

Tutewehiwehi Kingi and Ikatapu Kingi of what was to be known as the Ngāti Hinerangi

Trust.24

[72] On 18 May, a further application was made to include the Proprietors of

Okere1B3C3 and Adjoining Blocks Incorporation as an additional trustee on the basis that

the appointed trustees are members of the committee of management for that

incorporation; the lands have been vested in the trustees for the benefit of Taheke Marae

whose ultimate beneficiaries are Ngāti Hinerangi; the Incorporation is a perpetual body

that plays a leading role in the affairs of Ngāti Hinerangi and its shareholders are of Ngāti

Hinerangi; it has the administration and management infrastructure to accommodate the

proposals of the trustees; the appointment would be broadly acceptable to the beneficiaries

of Ngāti Hinerangi; and the Incorporation has already taken a leading role in the affairs and

benefit of the group.

[73] On 23 June, John Chadwick wrote to the Court informing that the general land titles

had been lost, and that in order to obtain new titles it was required that:

a) The Court make an order appointing the Okere Incorporation as additional

trustee; 24 Ibid.


b) That that order and the order made on 5 May 1998 be registered against the

above titles; and

c) A declaration of loss of titles be filed with LINZ so that new titles can issue.

This declaration cannot be filed until the previous points have been attended to.

[74] On 1 December 1998, the Court made an order “recommend[ing] that the Order

dated 5 May at 248 Rotorua MB 277 be amended to include the Okere 1B3C3 and

Adjoining Blocks Incorporation as an Additional Trustee”.25 This order, along with the 5

May orders, was forwarded to the District Land Registrar for registration on 17 June 1999.

[75] A certificate of title was issued on 22 October 1999 vesting the Māori freehold land

Allotment 18 Town of Richmond in Donald Mairangi Bennett, George Bennett,

Tutewehiwehi Kingi, Ikatapu Kingi and the Proprietors of Okere 1B3C3 and Adjoining

bocks Incorporation as trustees in fee simple.

[76] The Ngāti Hinerangi Trust then began to subdivide the land.

Subsequent orders made in relation to the lands

Lot 20 Deposited Plan 306286

[77] In September 2001, the Court made a status declaration that the lands known as the

Town of Richmond Allotments 302-315 cease to be Māori freehold land and become

General land.26 At the hearing, the trustees present stated that the purpose of the change of

status was so that the land could be subdivided and sold:27

To set up an asset base for Ngati Hinerangi ... we are hoping that through the sales of these

properties and sections that we will be able to perhaps buy a smaller dairy farm as an asset base

for our Hapu Ngati Hinerangi.

[78] There are other blocks of General land that also derive from Allotments 302-315.

These are: Lot 1 Deposited Plan 306286 (CT 24688); Lot 2 Deposited Plan 306286 (CT

25 91 Whakatāne MB 43 (91 WHK 43). 26 96 Whakatāne MB 20 (96 WHK 20). 27 Ibid.


24689); Lot 3 Deposited Plan 306286 (CT 24690); Lot 4 Deposited Plan 306286 (CT

24691). However, as the titles to these blocks had already transferred from the ownership

of the Ngāti Hinerangi Trust to third parties at the time this application was made, they

cannot be affected by this application.

Allotment 18

[79] On 24 July 2003, Donald Mairangi Bennett applied to the Court for confirmation of

an alienation of Allotment 18. His application states:

Name of land Allotment 18 Town of Richmond

Total Area of land 1012m2

Number of owners One

Total shares of all owners 1.000

Nature of Instrument Transfer

Date of first signature of Alienor

Consideration Gift

Maori Alienating Trustees of the Ngati Hinerangi Trust

Share owned 1.000

AND I HEREBY CERTIFY THAT

The alienee is a member of the preferred class of alienee being the Chief of the tangata whenua of

Matata of the iwi of Ngati Awa

[80] This application was accompanied by a letter dated 24 July 2003 from John

Chadwick, counsel for Ngāti Hinerangi who stated that “It is intended that this property be

transferred by way of gift to a tipuna Chief of Ngati Awa”.


[81] On 24 July 2003, Donald Mairangi Bennett also filed an application for an order

pursuant to s 338 of Te Ture Whenua Māori Act 1993 recommending that Allotment 18 be

set aside as a Māori Reservation as a place of cultural and historic interest:

AND FOR A FURTHER ORDER vesting the said land in Te Ramapaakura Chief of Ngati Awa

or such other person or body as the Court thinks fit.

[82] The memorandum of counsel for Donald Bennett, John Chadwick, states:

3. The land was part of several blocks of land that were distributed by the Crown to Ngati

Pikiao under the Confiscated Lands Act 1867 for services rendered by them on behalf of the

Crown at the battle of Te Kaokaoroa in 1864 and the operations of the Te Arawa Flying

Column at Te Teko in 1865.

4. Te Pokiha Taranui was a Chief of Te Arawa who fought on the side of the Crown and his

name appears as the registered proprietor on a prior certificate of title for the land No

779/179.

5. The Trustees of Ngati Hinerangi Trust have succeeded to the interest of Te Pokiha Taranui in

the land in addition to other lands at Matata of which Te Pokiha Taranui was also the

registered proprietor.

The Subdivision

6. Ngati Hinerangi have promoted a subdivision of the lands at Matata which required

consultation with the local hapu under the Resource Management Act. The Trustees

recognise that Te Tawera Hapu Trust is the appropriate body that represents the tangata

whenua who formerly owned the lands.

The Gift

7. In consideration of certain agreements and understandings reached between the Trustees of

Ngati Hinerangi Trust and Te Tawera Hapu Trust, the Trustees have agreed to transfer

Allotment 18, Town of Richmond to Te Ramapaakura, Chief of Ngati Awa by way of gift. A

transfer and the application for confirmation also accompany this application.

The Maori Reservation

8. One of the agreements reached between the parties was that Ngati Hinerangi would apply to

the Court for an Order recommending that the land be set aside as a Maori Reservation.


9. In the circumstances it is felt that this is an appropriate way to preserve the cultural and

historical significance of the land for all people.

[83] The minutes from the hearing repeat the history set out in the memorandum of

counsel dated 24 July 2003. Mr Chadwick for Ngāti Hinerangi stated that “the two

applications before you are firstly, in a historical sense, a return of the land to the original

owners”, and to prevent future alienations. The Court stated that the alienation application

required a variation of trust as the trust order did not allow alienation, “Apart from this,

this particular alienation which is to return it to the Tipuna or original owner”.28 Mr

Chadwick confirmed that to be correct, and the Court proceeded to make an order pursuant

to s 244 of Te Ture Whenua Māori Act 1993 varying the trust order to allow for the gift to

Te Ramaapakura to take place.29 That done, the Court stated that it was “simply looking at

the confirmation [of alienation]”, and after asking the proposed trustees of Te Tawera Trust

to identify themselves, the vesting order and the order recommending the creation of a

Māori reservation were made.

[84] At the hearing Donald Bennett stated: 30

I would just like to take this opportunity, I am acknowledging our whanaunga, Te Tawera Hapu o

Ngati Awa and saying how quite pleasing it was to consult with them when we went through this

consultation, we could not have dealt with better people. They are very loving, very helpful and

when Pouroto asked for a place to put a memorial for all our ancestors who died at the battle of

Te Kaokaoroa, we thought what a wonderful thing that was. Not only for their people, all our

people, enemies and all.

So we said to Pouroto if they wanted to use the land on where those 15 sections are, but we

thought we had a better site where people will see, they would be able to visit it and that is just

down here and when we offered that one, he said yes, that is the one because he said, “you know

Don, that stream running through its land that falls away to the creek at the bottom”, he said,

“you know Don that creek there was very special to our people”. That is where they use to wash

and when they were children, battle, and they use to use that stream for all sorts of things, tapu

things like that and he felt that was the ideal place.

28 100 Whakatāne MB 219 (100 WHK 219). 29 Ibid. 30 Ibid.


So on behalf of Ngati Hinerangi, we are very very pleased that we could help out. So now we

have a few things to work on like the memorial and things like that with them and we would be

glad to do that for them. No reira tena koutou, tena koutou, kia ora tatou katoa.

[85] To which Pouroto Ngaropo replied:31

Your Honour if I may just say a few words very briefly and acknowledge our kaumatua Don and

Uncle George, Uncle Bruce and all the other trustees from Ngati Hinerangi and Uncle

Tutewehiwehi it is a very momentous occasion considering the historical circumstances which

occurred between Te Arawa, Mataatua and that this gifting of land back to Ngati

Awa is a historical memorial of bringing our people together. So to Uncle Don and Uncle

George and also to their legal advisor John Chadwick for getting all the paperwork together, so

on behalf of Te Tawera and also Ngati Awa. Thank you very much for this. Kia ora tatou.

[86] Three orders were made in relation to Allotment 18 on 7 October 2003:32

(a) An order pursuant to s 151 of Te Ture Whenua Māori Act 1993

confirming the alienation of the land as effected on 24 July 2003;

(b) An order pursuant to s 338(7) of the Act that the land be vested in

Pouroto Ngaropo, Tawio Ngaropo, Timi Peri, Amohaere Tangitu, Noti

Belshaw and Tepo Elliott “in trust to hold and administer for the benefit

of the beneficiaries of the Rautahi Marae as trustees, jointly no

survivorship”;

(c) A recommendation pursuant to s 338(1) of the Act that Allotment 18 be

set aside as a Māori Reservation as “a place of cultural and historical

significance for the descendants of Te Tawera Hapu”. The order states

that the land be set apart as “a Maori Reservation for the purpose of

[words missing in order] for the common use and benefit of [words

missing in order]”.

31 Ibid. 32 Ibid.


[87] In February 2004 the land was gazetted to be set apart as a Māori reservation for

the purpose of cultural and historical significance for the common use and benefit of Te

Tawera Hapū Trust.33

Previous applications relating to the land

[88] Allotments 302-318, 18 and 324 were previously subject to an application by

Colleen Skerrett-White pursuant to s 19 Te Ture Whenua Māori Act 1993 seeking an

injunction to stop the subdivision and development of the land. A conference was held on

22 October 2003. At the conference, Judge Savage noted that:

... there are legal problems. First because the land is general land, secondly because the land

may also be waahi tapu in the cultural sense but it is not a waahi tapu in the legal sense ... I do

not have power over general land unless it has been declared at law to be a waahi tapu. I do not

have the power to issue an injunction.

[89] A report was done by the New Zealand Historic Places Trust. The Historic Places

Trust granted authority to the Ngāti Hinerangi Trust to “modify, damage or destroy part of

an archaeological site (Burial Ground; New Zealand Archaeological Association Site

Record No: V15/1331) ... for the purposes of residential development”.34 The Historic

Places Trust also noted that:

In considering this application, the Trust notes that Ngati Hinerangi Trust are developing a

residential subdivision ... Late last year earthworks associated with the subdivision exposed

koiwi. The Trust understands that most of the earthworks required for the subdivision have been

completed, however there are areas within the property that have not been significantly

recontoured or modified. This means there is potential for further human burials to be

uncovered, as well as other archaeological features representing occupation. Although the site

has been damaged it still possesses important archaeological values and is of high cultural

significance.

The Trust understands that the land in question has also been part of the Ngati Awa Treaty Claim

and via Ngati Umutahi the Tuwharetoa ki Kawerau Treaty Claim. Ngati Hinerangi Trust who

have title to the actual site, received it as payment for services to the Crown when they fought on

the side of the Armed Constabulary under Gilbert Mair. The land was originally gifted to Pokiha

33 “Setting aside land as a Māori Reservation” (19 February 2004) 17 New Zealand Gazette 375 at 1057. 34 Report of the New Zealand Historic Places Trust, dated 1 April 2004.


Taranui (Major Fox) of Ngati Hinerangi, for his services in the Te Arawa Flying Column in the

1860’s. Ngati Rangitihi were also gifted land in the area for similar services, so too were Ngati

Pikiao. Ngati Rangitihi are the current occupiers of the locality and have been there since the

1880’s.

... it is the view of the Trust that the archaeological site and features are wahi tapu. The Trust

recognises that not all tangata whenua groups approve of the subdivision and sale of this site,

indicating that Maori values are different from one hapu to the next in this instance.

[90] In light of this report, the injunction application was dismissed by consent on 19

May 2004.35

The current application

[91] The current s 45 application was made by Colleen Skerrett-White and Te Ariki

Morehu on 22 June 2005. The application concerns the order made on 5 May 1998 at 248

Rotorua MB 277 creating an ahu whenua trust over Allotments 302-315, 18 and 324 of the

Town of Richmond.

[92] The original application concerned only Allotments 302-315, but Allotment 18 was

added to the application by letter of consent from Colleen Skerrett-White on 2 December

2005.

[93] Evidence was heard at 109 Whakatāne MB 1-18, 20 January 2006, a conference

was held at 8 Conference MB 56-70, 10 March 2006, and a further hearing held at 111

Whakatāne MB 153, 1 and 2 June 2006.

[94] The parties and their counsel were:

(a) The applicants, represented by Jason Pou;

(b) Ngāti Makino and Tūwharetoa ki Kawerau, represented by Annette Sykes;

(c) The trustees of the Ngāti Hinerangi Trust, represented by John Chadwick;

35 102 Whakatāne MB 236 (102 WHK 236)


(d) Ngāti Rangitihi, represented by Curtis Bidois; and

(e) Te Tawera Hapū Trust, represented initially by Spencer Webster and then by

Jaime Fergusson and Tira Johnson.

Applicants’ submissions

[95] The applicants submit that they have been adversely affected by the order made on

5 May 1998 at 248 Rotorua MB 277 creating an ahu whenua trust over these blocks as the

land should have been designated as waahi tapu (as an urupā). Their grounds are that the

order was erroneous in fact and/or law by reason of an omission in the presentation of the

facts of the case to the Court because the Crown Grant of 5 May 1881 did not get presented

to the Māori Land Court for consideration, and further, that the trustees of Ngāti Hinerangi

do not represent Ngāti Pikiao.

Memorandum of counsel for the applicants, 2 August 2005

[96] In a memorandum dated 2 August 2005, counsel for the applicants submitted that

the order constituting the ahu whenua trust,36 and the consequent order, changing the status

of the land from Māori freehold to General land,37 were made erroneously, and that there

were considerations that were not taken into account by the Court in determining those

orders, and as a result the Court was unable to make a proper determination of the matters.

Specifically, the applicants contend that the orders were made without consultation with

Ngāti Pikiao. The applicant for the ahu whenua trust order and the subsequent status

declaration, along with the trustees of the Ngāti Hinerangi Trust have stated that they

represent the beneficiaries of Ngāti Pikiao. However the applicants submit that there has

“never been full consultation” with Ngāti Pikiao, and the consents given do not represent

all of Ngāti Pikiao, particularly, the applicants in this case have never consented to the

creation of an ahu whenua trust, or the change in status, and they contend that this is so for

“a large number of Ngāti Pikiao”.

[97] The applicants submit that significant evidence was not considered by the Court at

the time the ahu whenua trust order was made, and had it been, the Court would have 36 248 Rotorua MB 277 (248 ROT 277). 37 96 Whakatāne MB 20 (96 WHK 20).


questioned the right of the Ngāti Hinerangi Trust to make such an application on behalf of

Ngāti Pikiao.

[98] The applicants further submit that the land should be declared a waahi tapu due it

being the site of an historic battle, and the number of kōiwi found in the area as

development has been taking place. The applicants would like to see the area made into a

Māori reservation so as to appropriately recognise the cultural significance of the area as a

waahi tapu.

[99] Counsel noted that the land subject to the application had been seriously flooded

earlier in 2005 and it is “likely that the Block may never be built on again as a result of the

significant damage done to the area through flooding”. The memorandum states that the

clients recognise that the Whakatāne District Council may wish to purchase the Block, as it

is unlikely that any further sections could be sold. The applicants contend that this would

further remove them from the land, and the Council “may build a reserve that would not be

“appropriate” to the historical nature of the area”, and would be “a further step to

alienating ... Ngati Pikiao from the land granted to them in 1880”.

[100] Counsel for the applicants acknowledges that a number of the blocks referred to in

this application have already been on-sold, however he contends that the Court nonetheless

has jurisdiction to hear the matter under s 18(1)(h) Te Ture Whenua Māori Act 1993.

Further, the applicants contend that any third party purchaser would have had knowledge

that the lands were to be for the beneficial owners of Ngāti Pikiao and not just for Ngāti

Hinerangi. “Even if there had been no third party knowledge ... all sections can still be

heard in relation to our clients section 45 Application as this matter only relates to

reparations available”.

Memorandum of counsel for the applicants, 20 January 2006

[101] A further memorandum of counsel for the applicants was submitted on 20 January

2006. In this memorandum, counsel restates the contention that the order constituting the

ahu whenua trust and the subsequent orders changing the status of the land were erroneous

because relevant factors were not put before the Court for consideration to allow for proper

determination of these matters:


The applicants, and those that they come before the Court to represent, have asserted that if the

evidence were properly considered at the time the applications were made, then significant

questions would have arisen as to the appropriateness of not only the applications themselves,

but also the adequacy of process, including proper notification to affected parties, upon which

these applications are based.

[102] Counsel continues that this application strikes to the core of the protective

mechanisms that resonate within the Māori Land legislative regime. The trust order

provides that the proceeds of the land were to be held for the Ngāti Hinerangi Trust. In the

application for the ahu whenua trust, a ground for this was that the lands were previously

set aside to benefit Taheke Marae, “the ultimate beneficiaries of which are Ngati

Hinerangi”:

It is the claimants’ assertion that the application proceeded on a mistake of fact. The lands were

always for the benefit of Ngati Pikiao as a whole and not one section thereof and ignores

subsequent tribal covenants entered into which recognised the complex relationships of Ngati

Rangitihi and other tribal interest in the whenua.

[103] Counsel states that the land is an urupā and therefore waahi tapu, and this is well-

known. He submits that the process of decision-making with regards to the creation of the

ahu whenua trust was flawed and the applicants were denied the opportunity to make

meritorious objections to the application under s 215 Te Ture Whenua Māori Act 1993.

There was a failure to consult the relevant people and a lack of transparency in the process.

The affidavits filed in support outline the surprise felt by the community upon discovering

the land was to be sold. The change of status was also made without hearing evidence

from the relevant people, who but for the 1998 order would have been considered in the

preferred class of alienees and with whom consultation would have been required.

Counsel submits that the applicants, and many others, have been “legally severed” from

their whenua and their rights “have been extinguished in their absence”.

[104] Counsel concludes by stating that the relief sought by the applicants is:

(a) A declaration as to the erroneous nature of the decisions constituting the

trust and changing the status of the land;


(b) A recommendation that this land should be set aside as a Māori

Reservation given its intrinsic importance to tangata whenua and its

recent history.

Affidavits filed in support of the s 45 application, January 2006

[105] A number of affidavits were filed in support of the application. They outline the

connections that Ngāti Pikiao and other groups have with the land. In her affidavit,

Colleen Skerrett-White states:38

Ngati Pikiao was a title given to the confederation of Iwi and Hapu with a common descent from

Kawatapuarangi, Ngati Tarawhai, Ngati Rongomai, Ngati Te Rangiunuora, Ngati Makino, Ngati

Tamakari, Ngati Tiki, Ngati Tamateatuatahi/Kawiti to name a few.

All of these Iwi and Hapu have an affiliation to Te Awa a Te Atua and the Matata area and

Pokiha Taranui and all these tupuna are descendents of the earliest occupiers of the land (tangata

whenua).

...

[In] the last will and testament of Pohika Taranui ... he bequeathed all his whenua ‘taonga’ and

possessions to his wife ... [Her will] bequeaths the whenua of the Town of Richmond to my

koroua Samuel Emery ... his whanau did not consider succeeding to the land as it was a grant for

all of the Pikiao Hapu. ... When these wills are considered, it is clear that Ngati Hinerangi’s

assertion of the sole ownership as a result of the Crown Grant to Pokiha is misrepresentative.

It is difficult to understand why all of Ngati Pikiao and the Tangata Whenua of Matata were not

consulted when the application for the vesting of the land in Ngati Hinerangi and the subsequent

change of status to general title were undertaken. The only people who knew of these changes

were the owners of the Okere Incorporation, of which the majority of us are not owners.

...

It is my belief that after the deaths of our kaumatua Jack Brady in 1992 and Harry Semmens in

1994, the names Rangitihi and Kawatapuarangi were not considered or included in the 1998

order constituting the Ngati Hinerangi Trust.

38 Affidavit of Colleen Arihana Skerrett-White in support of an application pursuant to s 45 Te Ture Whenua

Māori Act 1993, dated 18 January 2006.


[106] Skerrett-White outlines the applications that have been made in relation to the land

to the Māori Land Court, the Environment Court and the Historic Places Trust to “stop

what we considered to be desecration of our whenua and tikanga”. She states that in 2004,

following mediation, the Historic Places Trust “confirmed the existence of the Urupa”.

The Historic Places Trust concluded that:39

Based on the archaeological information gathered by Hooker 2003, Phillips 2003 and NZHPT

2005 it is the opinion of the authors that the human remains disturbed during earthworks within

the property represent a burial ground most likely dating to the pre or early contact period.

[107] Skerrett-White concludes by stating that the “whenua is ‘waahi tapu’ and should be

treated with respect as the kawa and tikanga of Te Arawa and Mataatua, of all our tūpuna

dictates”.

[108] Te Ariki Morehu stated:40

Kua korerotia a taku tamahine a Arihana [Colleen Arihana Skerret-White] te take i

whakawhiwhia ai Te Pokiha ki tenei whenua mana e tiaki mo Ngati Pikiao katoa ... Ko te

tangatawhenua e mohio ana kei hea nga wahi tapu na te mea kaore a tauiwi e mohio ana kei hea

nga iwi nei e takoto ana.

[109] The affidavits also outline the history of the whenua, including history concerning

the Battle of Kaokaoroa on the land, the military services rendered by Te Pokiha Taranui

for which it is understood he was granted the land,41 and the community’s surprise at

discovering the land was to be sold and a subdivision developed on what they say was

widely known to be waahi tapu, with kōiwi having been unearthed in the area for many

decades.

The hearing on 20 January 2006

[110] A hearing was held on 20 January 2006. Jason Pou, counsel for the applicants

submitted that the problem with the ahu whenua trust was that it made Ngāti Hinerangi the 39 Ken Phillips, Rick McGovern-Wilson and Rachel Darmody “Section 18 Archaeological Investigation of

V15/1331, Clem Elliot Drive, Matata”, (NZHPT, Lower North Region, 20 May 2005). 40 Affidavit of Te Ariki Derek Morehu in support of an application pursuant to section 45 Te Ture Whenua

Māori Act 1993, dated 20 January 2006. 41 Affadavit of Anthony Olsen in support of an application pursuant to section 45 Te Ture Whenua Māori Act

1993, dated 18 January 2006.


sole beneficiary, rather than “Pikiao katoa”. And if all the beneficial owners had been able

to have a say, they would have had the opportunity to object. He stated that they agreed

that Allotment 18 should remain a Māori Reservation, but that it should not be for the

benefit of Te Tawera hapū only – that the applicants would like the Māori Reservation to

show the multiple connections with the land, as outlined in the affidavits.

[111] Judge Savage noted that the application concerns only Allotment 18 and Lot 20,

and both blocks are Māori land, but that Allotment 18:

... has passed from the trust to a volunteer. So there is no price paid for it which changes the

position in equity. Not transferred for value.

[112] Jason Pou, for the applicants, confirmed that this was the case; that the transfer was

by way of gift.

[113] Judge Savage questioned John Chadwick, counsel for the Ngāti Hinerangi Trust as

to how the land had ended up in trust for Ngāti Hinerangi, given the Crown grant is clearly

to Te Pokiha Taranui to hold in trust for Ngāti Pikiao hapū, and following that the land was

placed in a trust for Te Taheke, “probably on the basis that that marae is representative of

Ngāti Pikiao katoa”.42

[114] Mr Chadwick responded that he had not seen the Crown grant, but that the

certificate of title which he had seen showed the land as being registered with Pokiha

Taranui. Ngāti Hinerangi sought to explain how the land came down to Ngāti Hinerangi

alone and how it was then transferred to Te Tawera Trust. Mr Chadwick stated that the

land was transferred from Pokiha to three trustees for Taheke Marae, but that he did not

understand that to be because Te Taheke was representative of “Pikiao katoa”. The lands

were then registered in the ancestors Rangitihi and Kawatapuarangi, and it was known

amongst Ngāti Hinerangi that “they were going to try to come up with a mechanism to

return the land to [the owners pre-raupatu]”,43 so the gift of Allotment 18 to Te Tawera

Trust, to Ngāti Awa, was “the culmination of a plan that had been going on for decades”.44

42 109 Whakatāne MB 10 (109 WHK 10). 43 At 11. 44 Ibid.


[115] The Court stated to John Chadwick that “you’ll understand that Mr Pou is saying

that they’re not seeking to set aside that gift but seeking to tweak who the beneficiaries are

so that there is a Pikiao link still back into those lands ... so that there is an Arawa link”.

[116] Mr Chadwick stated that:

These particular lands were regularly referred to in the AGMs of the Okere Incorporation for

many years, every year they came up – What are we going to do with these lands? That is what

led to the meeting with the late Mr Semmens and the late Mr Brady. And they appear to have

acknowledged that Ngāti Hinerangi were the rightful owners.

[117] Judge Savage asked Mr Chadwick how Ngāti Hinerangi could become the rightful

owners when the land had been granted to Te Pokiha, and whether he agreed that, “when

you look at the chain of information, it appears that it is not Hinerangi, it is Pikiao”.45 Mr

Chadwick agreed to this, stating, however, that his clients were unaware of the Crown

grant.

[118] Mr Pou stated that the applicants would like the Arawa connection to be asserted

and their kaitiakitanga obligations towards the land acknowledged.

[119] Te Hau Tutua presented for Ngāti Awa, stating that the land was never rightfully

with Pikiao as Ngāti Awa had mana whenua over the land, and that the land granted to Te

Pokiha Taranui was Ngāti Awa land.46

[120] Judge Savage stated that:

... as a matter of equity any remedy given by the Court for [Allotment] 18 would be discretionary

and it may be that if the Court found that that land, [Allotment] 18 was Ngāti Awa land prior to

the Crown grant, then it might be that the Court would not exercise its discretion to grant relief

in relation to [Allotment] 18.

[121] On 9 March 2006, David Potter and Andre Robert Paterson of Te Rangatiratanga o

Ngāti Rangitihi Incorporated filed a notice of intention to appear at the judicial conference

on the s 45 application set down for 10 March 2006. They filed lengthy affidavits and

45 At 12. 46 At 16.


statements of evidence in support of the application, disputing that Ngāti Awa have any

interest in the land and asserting that Ngāti Rangitihi’s interest in the land stems back prior

to the 1881 Crown grants.

Judicial conference on 10 March 2006

[122] Jason Pou for the applicants stated that the issue raised at the previous hearing –

that Pikiao only had interests as a result of the Crown grant – was addressed in an affidavit

from Timi-Te-Po Rakeiao Hohepa which outlined the connections prior to Crown contact,

and that Allotment 18 and Lot 20 should be a Māori reservation for the benefit of all who

have interests in the land.

[123] John Chadwick for Ngāti Hinerangi stated that Lot 20 was not going to be sold and

therefore would be available as a reservation, but that he had no instructions on who the

beneficiaries of that reservation should be.

[124] Spencer Webster for Te Tawera Hapū Trust, Ngāti Awa, stated that they wished

Allotment 18 to remain for Ngāti Awa only, as it was only in the hands of others through

confiscation. As for Lot 20, while Ngāti Awa recognise that others may have interests as a

result of the tūpāpaku there, Ngāti Awa believe that they can care for this through the

existing relationships with those other tribes, and that land should also be for the benefit of

Ngāti Awa solely.

[125] Jason Pou then began submissions on the 1998 order creating the ahu whenua trust,

stating that this was the order that vested the land solely in Ngāti Hinerangi, disconnecting

Pikiao with the land. Upon questioning from Judge Savage, he confirmed that in his

submission, the order vesting Allotment 18 in Te Tawera, in Ngāti Awa, should be set aside

and that Te Tawera Trust is not protected because it is a volunteer.

[126] The Court asked Spencer Webster for Te Tawera Hapū Trust for his response to the

suggestion that the 1998 order was made in error. He stated that he understood the issues

as Mr Pou had outlined them, but that “while Ngāti Awa are a volunteer, still it is an

arrangement made by the owners at the time”.47

47 8 Conference MB 63 (8 CONF 63).


[127] Upon questioning from Judge Savage, Mr Chadwick for Ngāti Hinerangi agreed

that now he had seen the Crown grant, the 1998 order was inappropriate.48

[128] Annette Sykes made an appearance in support of the applicants, stating that the

kaitiaki position should be retained, and noting that apart from one party, there was a

consensus as to how the land should be treated, and for it to remain with Te Tawera alone

is inconsistent with the broad objectives of Te Ture Whenua Māori Act.49

[129] The application was adjourned again, and set down to be heard at Rotorua on 1 and

2 June 2006.

[130] On 26 May 2006, Jamie Fergusson and Tira Johnson wrote to the Court explaining

that Spencer Webster had, due to appearing in a hearing that conflicts with this issue,

briefed them to appear on behalf of Te Tawera Hapū Trust.

[131] On 30 May 2006, Curtis Bidois wrote to confirm that East Brewster had been

instructed to act on behalf of Ngāti Rangithi, and sought leave to appear as an interested

party to the application.

Respondents’ submissions

[132] On 19 April 2006, finalised briefs of evidence were filed on behalf of Te Tawera

Hapū Trust, Ngāti Awa by Joe Mason, Pouroto Ngaropo, Te Hau Tutua and Jeremy

Gardiner.

[133] Pouroto Ngaropo’s evidence concerns the circumstances that lead to the gift of

Allotment 18 to the Te Tawera Trust. His affidavit states:

I am presenting this evidence to inform the Court regarding the circumstances of the gift of Lot 18 to Te Tawera Trust ... My involvement in the subdivision goes back as far as 1998. There was a proposal to subdivide these lands that were held by the Ngati Hinerangi Trust. I was initially contacted by one of the trustees, Bert Kingi, as I was the Ngati Awa representative and chairperson of Te Tawera hapu at the time.

The Ngati Hinerangi Trust then sought to consult with Ngati Awa in relation to their proposal to subdivide these lands. The consultation process occurred between 1998 and 2001.

48 At 65. 49 At 68.


In 2001, I met with the trustees ... on two occasions at my home at Matata to discuss the subdivision and the cultural issues associated with it. It was agreed over those meetings that we would then meet at the Matata domain where I would have the opportunity to provide an outline of the history of Matata and the Ngati Awa interest in the area.

We met on 19 May 2001 and I provided the traditional history of Matata in accordance with our traditions. I also suggested a number of recommendations or proposals for the trustees to consider in relation to the subdivision. Some of the recommendations were:

• Ngati Hinerangi consider gifting one of the 15 sections to Ngati Awa;

• If archaeological deposits, taonga or bones were found or discovered, then work on the land would cease and we would be notified along with the relevant authorities such as the Historic Places Trust;

• Any bones found would be re-interred at the urupa atop Umuhia;

• Road names should reflect the history of the area;

• We would support the application for subdivision by the Ngati Hinerangi Trust and would appear before a Council hearing on the matter, if necessary. Ngati Hinerangi would reimburse our costs arising out of the consultation process.

Agreement with Ngati Hinerangi

After my submission to the Ngati Hinerangi trustees, they wanted time to consider the recommendations particularly the proposal to gift us a section of land. I understand that they took it back to their marae and held a number of hui about that proposal. After those hui, they came back to me and indicated that they agreed to gift a section.

We confirmed our support for the subdivision application. In 2003, the Ngati Hinerangi Trust gifted Lot 18 in Te Tawera Trust. This is a trust under s 338 of Te Ture Whenua Maori Act which is a Maori reservation.

Lot 18

Lot 18 was agreed as the land to be gifted because of its cultural significance to Ngati Awa. The Waitepuru stream runs through the land. This was understood by our hapu as the ‘boundary’ between Ngati Hikakino and Ngai Te Rangihouhiri II. Te Waitepuru is also known as Te Waitoto o Awanuiarangi.

The land within Lot 18 is also where tupapaku were washed and baptismal rituals performed in accordance with Ngati Awa tikanga. It is also where Ngati Awa warrior bathed after battle. To us it is a waahi tapu from pre-european times. Our re-establishment there is extremely important particularly because of our history and the confiscation of these lands from Ngati Awa.

Te Tawera Trust

We selected Te Ramapakura as the ancestor for this block because he was a paramount chief of Ngati Awa from this area. He was also a descendant of the Hikakino, Te Rangihouhiri II, Iramoko and other important ancestors.


However, I acknowledge that there are other Ngati Awa hapu, such as Ngati Hikakino and Ngai Te Rangihouhiri II, that have interests in these lands. It is our intention to make an application to the Court to include these other Ngati Awa hapu in this block in due course.

[134] The briefs of evidence from Joe Mason, Te Hau Tutua and Jeremy Gardiner relate

to the history of and connections to the land, including evidence placed before the Waitangi

Tribunal concerning how it ended up being granted to Te Pokiha Taranui. Joe Mason states

that:

I want to stress ... that Ngati Awa had mana and ahi kaa at Matata from the time of the Mataatua

waka through to the raupatu. The land at Matata was clearly under the mana of the Ngati Awa

hapu, Ngati Hikakino, Ngai Te Rangihouhiri and Te Tawera ... It is clear to me that the lands

given to Ngati Pikiao, Ngāti Rangitihi and others at Matata were awards for their involvement in

the Crown attacks on Ngāti Awa ... Te Pokiha was one of the Ngati Pikiao rangatira that lead the

attacks on Ngati Awa. The lands he received at Matata were on account of his involvement in

that invasion not because he or Ngati Pikiao have any interests there.

Hearing on 1 and 2 June 2006

[135] Jason Pou appeared for the applicants, specifically for Pikiao. Annette Sykes

appeared for Ngāti Makino and Tūwharetoa ki Kawerau. John Chadwick appeared for

Ngāti Hinerangi. Tira Johnson and Mr Fergusson appeared for Te Tawera Hapū Trust.

Curtis Bidois appeared for Ngāti Rangitihi.

[136] Mr Chadwick confirmed that it is Ngāti Hinerangi’s view that the 1998 order

creating the ahu whenua trust and giving title to Ngāti Hinerangi was made in error and

should be set aside.50

[137] After a discussion of procedural issues, Judge Savage stated that the focus should

turn “straight to Lot 20. The legal owners of Lot 20 have conceded that the order that gave

them ownership was in error”.51

[138] Jason Pou for the applicants stated that the applicants seek a declaration that the

order constituting the trust was made in error, and a recommendation that the land be set

aside as a reservation, but a major question remained as to who the land should be set aside 50 111 Whakatāne MB 154 (111 WHK 154). 51 At 158.


for.52 It is accepted that the land was vested in Ngāti Hinerangi in error.53 The errors were

that the land was vested in Ngāti Hinerangi solely, and the owners, Ngāti Pikiao, were not

given notice that the Court was dealing with the land when it was vested in the ahu whenua

trust.54

[139] Ngāti Rangitihi adopted those submissions in respect of Lot 20.55

[140] Ms Sykes stated that the mistake of fact and law arising was that Ngāti Hinerangi

were acting unilaterally without the input of all of Ngāti Pikiao. The Court asked whether

she accepted that should the 1998 order be overturned, it would result in the title remaining

with Te Taheke. Ms Sykes replied that that would be the case until “Pikiao katoa” decide

otherwise.56

[141] Ms Sykes submitted that the vesting of the land in Rangitihi and Kawatapuarangi

and their beneficiaries together encompass the same description as in the original Crown

grant, which is “Pikiao katoa”.57 Mr Fergusson disagreed, stating that those tipuna have a

much wider class of uri than those from Te Pokiha.58

[142] Mr Pou stated that the 1991 order should also be overturned.59 The Crown grant

was to “Pikiao katoa”, but the applicants do not want to deny the connections of anyone

else to the land, and they do not want to exclude Ngāti Awa.60

[143] Mr Fergusson submitted that the 1998 application did seek to have the land vested

on trust for the beneficiaries of Ngāti Hinerangi, but that:61

... the trust order does not specify the beneficiaries as Ngāti Hinerangi. It simply refers to the

beneficial owners of the land ... the land was vested in Kawatapuarangi and Rangitihi and in my

submission they remain the beneficial owners despite the trust being called the Ngāti Hinerangi

Trust. 52 At 159. 53 At 161. 54 At 162. 55 Ibid. 56 Ibid. 57 At 164. 58 At 168. 59 At 166 60 At 167. 61 At 170.


[144] He continued that this is the case for Lot 20, but for Allotment 18, the situation is

that Te Tawera Hapū Trust has the registered and indefeasible title to Allotment 18 and

even if the Chief Judge were to cancel the 1998 order, it cannot affect Te Tawera’s

ownership of that block as s 48 of Te Ture Whenua Māori Act 1993 clearly states that no

order made under s 44 “shall take away or affect any right or interest acquired for value

and in good faith under any instrument of alienation registered before the making of any

such order”.62 Further, Mr Fergusson disputed the fact that the land had been a gift to Te

Tawera, stating that the transfer was “a transaction negotiated between [Te Tawera] and

Ngāti Hinerangi”.63

[145] Judge Savage asked him to clarify what value was provided, and whether the

contention was that the agreement not to oppose the subdivision, and to attend any Council

hearing if required to do so, was the value.64 Mr Fergusson stated that was not all of it. He

stated that there was “an exchange of value between the Hinerangi Trust and the Te Tawera

Hapū Trust in relation to [Allotment] 18”.65

[146] Judge Savage asked whether “what we are really talking about ... is what did Ngāti

Awa give or give up for the transaction? And what did Ngāti Hinerangi get for the

transaction?”66

[147] Pouroto Ngaropo gave evidence on the discussions between Ngāti Hinerangi and Te

Tawera Hapū Trust that led to Allotment 18 being vested in Te Tawera Trust.67 In response

to the request from Mr Fergusson that Mr Ngaropo give his view of “the value that Ngāti

Awa through you, contributed to Ngāti Hinerangi Trust in relation to this transaction”, Mr

Ngaropo stated that:68

62 At 171. 63 At 179. 64 At 175. 65 At 181. 66 At 185. 67 At 182. 68 111 WHK 186. Mr Joe Mason provided a translation during the Court hearing. His translation of Mr

Ngaropo’s words are as follows: “Firstly, I have been working on this issue with Ngāti Awa. I have been working on this for six years. In terms of effort, many hours were put in by myself on this issue. A lot of time it interefered with my everyday work. I have been involved in many meetings with local hapu of Matata, Ngāti Hikakino, Ngāti Rangihouhiri and also Ngāti Awa. I have been involved in many discussions with local councils and in the preparation of this particular area where the $2000 grant by the council was made. I also supported the council with the resource consent applications to the Minister of Health for the return of the remains. I also supported Te Runanga o Ngāti Awa and the whare wananga o Awanuiarangi who were repsonsilbe for the carving of the tekoteko to commemorate


Tuatahi e ono tau ahau e mahi ana tēnei takē mō Ngāti Awa... Etahi taima ko kore au e watea ki

te haere ki te mahi nā te mea i runga ahau i tēnei takē e mahi ana... ehia kē nei ngā hui ara i haere

au ki te kōrero kia Ngāti Hikakino, Te Rangihouhiri, ara me ngā hui o Ngāti awa hoki...Mō te

wāhi a mō te tuku i ngā whakatau ara ngā applications, e korerotia nei, naku tonu ērā i tautoko i

te taha o te kaunihera. Ara, mō te whakapaepae i te whenua nāku i awhina ia rātou ki te

whakatau rua tekau mano taara mō tērā kaupapa, ki te whakahoki mai ngā kōiwi ki reira ...naku i

awhina i te kaunihera ki te tuku atu te consent, ara te whakaetanga ki te Minita Hauora kia ahei

te whakahoki mai ngā kōiwi ki reira tanu ai...Tētahi atu takē, naku i awhina taku iwi Ngāti Awa

me to matou whare wananga ki te whakarite i ngā wakairo, i te whakairo i ngā tupuna ki reira tu

ai, i runga i te whenua nei mō ngā kōiwi. Hei tohu whakamaumaharatanga mō ngā tipuna i mate

i roto i te pakanga o Te Kaokaoroa... Ko te mea nui kia houhia te rongo i waenganui ia matou o

Ngāti Awa me rātou hoki o Ngāti Hinerangi mō te hara o te raupatu kia Ngāti Awa me ōna

whenua.

[148] Mr Bidois questioned Mr Ngaropo on the report he prepared for Ngāti Hinerangi in

2001. Mr Ngaropo stated that no gifting of land had taken place at the time of the report,69

but one of the recommendations in the report was that Ngāti Hinerangi gift some land to

Ngāti Awa.70 Mr Bidois asked Mr Ngaropo to clarify that there was no understanding at

the outset that Mr Ngaropo would do work in return for the lands, to which Mr Ngaropo

responded:71

Kei te tika tērā engari i tukunga atu mā rātou ēnei whakataunga hei whakaaro, mā rātou e

wanganga, i te mutungaiho mā rātou e whakahoki mai ngā whakataunga o Ngāti Hinerangi āe.

[149] Mr Ngaropo agreed that the vesting of the land in Te Tawera Trust was an act of

generosity on the part of Ngāti Hinerangi once they were aware of the suffering caused by

the confiscations in that area, saying “Āe he koha” when asked whether the transfer

between Ngāti Hinerangi and Te Tawera Hapū Trust was a transfer by way of gift, and this

was not disputed at the hearing in 2001.72

[150] Mr Pou then asked Mr Ngaropo whether he told Ngāti Hinerangi that they would

have to pay for his time with their land, to which Mr Ngaropo replied “Karekau, engari he

the remains of our tipuna that are buried there. The biggest thing was to make peace between ourselves of Ngāti Awa and Ngāti Hinerangi for the confiscations of the lands in that particular area”.

69 At 188. 70 At 192. 71 At 191. Mr Mason’s translation was: “Yes I would agree that I did that work for consideration of the return

of certain lands”. 72 At 193.


whakapono nōku kia whakatika ngā mahi hē o te whenua i Matata, koirā noaiho te take i

aroha ki te tautoko i tēnei take”.73 Mr Pou also asked for clarification that it was not Ngāti

Hinerangi who received the council grant of $20,000, to which Mr Ngaropo replied “engari

karekau a Ngāti Hinerangi i awhina ma i ahau ki te mahi tērā kaupapa, naku”.74

[151] Judge Savage clarified with Mr Ngaropo that the land “was a gift and the

motivation for the gift was what had happened in the past”.75

[152] Judge Savage then asked Mr Ngaropo how the land came to be vested in Te Tawera,

whether it was a gift because of the “sad and unfortunate history” or because there was an

“utu, a price paid by Ngāti Awa to Hinerangi?”76

[153] To which Mr Ngaropo replied “Kia au ngā mea e rua”.

[154] Ms Sykes questioned Mr Ngaropo on his understanding of the history of the land,

the position that different factions of Pikiao took, the role of Makino, Ngāti Awa and other

groups, and whose responsibility is was to right the wrongs caused by the confiscations.

She clarified that both Te Tawera and Ngāti Hinerangi view Allotment 18 as waahi tapu.77

[155] Donald Mairangi Bennett, the applicant for the 1998 order, was questioned as to

why he contacted Te Tawera Hapū Trust or Ngāti Awa to help with the subdivision in the

first place. Mr Bennett responded that Ngāti Hinerangi was advised by the District

Council to see Pouroto Ngaropo as:78

... he was their special person for where wāhi tapu were concerned and we could do a lot worse

if we went elsewhere and as they gave us his number and gave us all the contact numbers that

was what we went ahead and did.

[156] Mr Bidois asked about the decision on the part of Ngāti Hinerangi to transfer

Allotment 18 to Te Tawera and whether Ngāti Rangitihi were involved. Mr Bennett stated

73 At 196. 74 Ibid. 75 At 198. 76 At 222. 77 At 215. 78 At 226.


that Ngāti Rangitihi were not involved in that decision and no meetings were held with

them about it.79

[157] Mr Fergusson then questioned Mr Bennett as to the 1998 application, and whether

there was a desire at that time to have the land administered by Ngāti Hinerangi Trustees as

opposed to the broader Ngāti Pikiao grouping. Mr Bennett responded:80

I think in those days it was our kaumātua who were responsible and looked upon as the

caretakers for that land and as they grew old and passed on it came down. And how it came

down was passed down to our incorporations, whoever was chairman of the incorporation and

the committee were all Ngāti Hinerangi and so to a great extent they looked after our marae

when they needed funds and things to be done at the marae. It was always the incorporation that

they came to ... it consists of Ngāti Hinerangi people only, not everyone in the tribe are in the

incorporation.

Mr Fergusson: But in terms of those changes that occurred over time through to 1998 before this

present application before the Court, are you aware of opposition being raised to these changes

and the work that Ngāti Hinerangi were doing in relation to the lands.

Mr D Bennett: Well actually at the beginning there was no opposition, no one actually knew

about it I think. The opposition came when we started subdividing and then putting the sections

up for sale.

[158] Mr Fergusson then asked who knew about the vesting in Rangitihi and

Kawatapuarangi in 1991. Mr Bennett replied that Ngāti Rangitihi were involved in that

vesting, that the Court was held at Okere Marae at Rangitihi and “that is the only contact

we had with Rangitihi”. He stated that:81

What we wanted to do there because this place was causing us so much consternation and

concern we wanted to give it to Ngāti Rangitihi. And the purpose of that meeting was really to

get them to accept it. So we put it to them and they refused to take it. And that was when they

thought they said “no we would prefer you people to keep it and we want to bring in another

name of our common ancestors and that was Kawatapuarangi”. That is how he came to be in

there.

79 At 227. 80 At 228. 81 Ibid.


[159] Mr Fergusson also asked about the decision to subdivide and that it was made by

Ngāti Hinerangi alone and to provide an asset for Ngāti Hinerangi, and furthermore, that it

did not involve “Pikiao katoa”. In response Mr Bennett stated:82

We believed at the time that the land was donated to the paramount chief of Te Arawa. At the

time that that block of land was given to him personally, as a reward for his leadership and his

courage... we were of the belief, once the Māori Land Court gave us ownership the land was

ours. Really it belonged to us and we went ahead on that premiss [sic].

[160] As to the subsequent transfer of land to Te Tawera, Mr Bennett stated that the

kōiwi on the lands and the waahi tapu status were:83

... really part of the reason why this gift of land was made. You can call it a gift, but we think it

was, well all the things have been mentioned about it except one, that is, and I think it has been

recorded in the Court at Whakatāne. I think my words they are there today and I think what I

said to Judge Milroy was this; “that we were giving this land to Ngāti Awa not only for their love

that they gave us and their aroha and not only for the way they treated us, every time we went

there, they fed us and everything.” They didn’t have to do that ... when your hosts treat you well

you always leave a koha.

[161] Ms Sykes then questioned Mr Bennett on the fact that the land was not owned by

Ngāti Hinerangi for Ngāti Hinerangi; Mr Bennett had been involved in the transfer to

Kawatapuarangi and Rangitihi, that it was Ngāti Hinerangi for Kawatapuarangi and

Rangitihi descendants.84

[162] Mr Chadwick questioned Mr Bennett on whose decision it was to transfer the title

from Pokiha to Albert Kingi, Koraurau Kingi and trustees for Taheke Marae. Mr Bennett

replied:85

I think it might have been our kaumātuas, I’m not sure about that either but I think the

recommendation would have come from some of the senior members of our Hinerangi hapū I

would suggest.

82 At 229. 83 At 230. 84 At 234 85 At 235.


[163] The proposition was put that the Hinerangi trustees did not have to pay a reserve

contribution to the Whakatāne District Council for the subdivision on the basis that they

gave Allotment 18 to Ngāti Awa.86

Applicants’ closing submissions, 2 June 2006

[164] The applicants made closing submissions focussing on the issue of the gifting of

Allotment 18 to Te Tawera. The submission states that Ngāti Hinerangi never had valid

title to the land and this was accepted by their counsel, John Chadwick, at the judicial

conference on 10 March 2006; that their interests derived from “a misrepresentation to the

Court of the Crown Grant to Pokiha which vested in him the lands for the benefit of Pikiao

katoa”. Instead “the Court was informed the Grant was actually in favour of Taheke

Marae, the beneficiaries of which are Ngati Hinerangi”,87 and as a result, an ahu whenua

trust was created, the status of the land changed, and the land was subdivided and part of it

was alienated. The applicants submitted that prior to subdivision, a cultural report was

commissioned from Pouroto Ngaropo. The report contained a number of recommendations

that were put to Ngāti Hinerangi as conditions to consenting to the subdivision. One of the

recommendations was that the Ngāti Hinerangi Trust should gift part of the land to Te

Tawera. The applicants submit that Mr Ngaropo also accepted a commission to do a

“Cultural Field Inspection and Report for the Proposed Subdivision and Quarry” for

Waiotahi Contractors Limited, who sought to quarry the pumice at Kaokaoroa. Mr

Ngaropo supported the excavation of lands and creation of the pumice pit at Kaokaoroa.

[165] The applicants submit that all these actions were taken without notice being given

to all the rightful owners, that is, “Pikiao katoa”, rather than just Ngāti Hinerangi. Only

Ngāti Hinerangi had the opportunity to be heard, the rest of Pikiao were denied that

opportunity. The applicants submitted that this is a breach of natural justice. In Jennings v

Scott,88 the High Court found that orders made in breach of natural justice were made

without jurisdiction, and therefore the Māori Land Court’s decision is a nullity.

[166] The applicants contend, with reference to s 48(1) of Te Ture Whenua Māori Act

1993, that the Chief Judge’s jurisdiction is not barred in respect of Allotment 18 because 86 At 236. 87 Closing submissions for the applicants, dated 2 June 2006. 88 HC Rotorua A183/79, 13 November 1984.


“the lands were not purchased for value ... and it is questionable whether Te Tawera Trust

can be seen to have acted in good faith”:

It seems to be the position of Te Tawera Trust that what was once construed as a generous gift, is

now to be recodified and retrospectively reinterpreted as a transaction based upon payment of

value. This value that Te Tawera Trust say that was transferred was within the services that were

provided by Mr Ngaropo and an old debt that arises as a result of the Crown Raupatu.

[167] On the question of the meaning of ‘value’, the applicants submit that the possibility

of value meaning something less than consideration is a dangerous approach “which defies

the intentions that underpin the Ture Whenua Māori 1993 which seeks to protect the

retention of lands within the hands of preferred class of alienee”.

[168] The applicants submit that according to the Bills of Exchange Act 1908, value

means “valuable consideration”. That s 16 of the Personal Property Securities Act 1999

(“the PPSA”) states that ‘value’:

(a) means consideration that is sufficient to support a simple contract; and

(b) includes an antecedent debt or liability.

[169] The applicants state that while the PPSA includes antecedent debt or liability “akin

to those that Ngāti Awa would hold Te Arawa accountable for”, that it was the Crown that

committed the Raupatu, not Te Arawa. And furthermore, this debt with the Crown has

been settled to Ngāti Awa’s satisfaction as evidenced by the Ngāti Awa Claims Settlement

Act 2005. It would therefore be wrong for the Court to construe the gifting of Allotment

18 as settlement of antecedent debt or liability. It would also ignore the tatau pounamu that

has since occurred.

[170] The applicants state that Mr Ngaropo outlined the costs he incurred as a result of

his efforts. The applicants say that these costs are incidental, and as Mr Ngaropo admitted

at the hearing, it was never communicated to the Hinerangi Trust that these costs were

being incurred to obtain the land. Therefore these factors should not be taken into account.

Specifically, Mr Ngaropo mentioned $20,000 he obtained from the Council for “factors

associated with these matters”. This money did not pass to Ngāti Hinerangi, it was money

obtained for Te Tawera and used for Te Tawera. It cannot be regarded as consideration.


[171] The applicants state that there is a suggestion that as a result of the gifting, lands

did not have to be made available to the Council for a coastal reserve. This was not a

benefit received by Ngāti Hinerangi – rather they had to pay Ngāti Awa instead of the

Whakatāne District Council. Ngāti Awa may have received a benefit, but Ngāti Hinerangi

did not.

[172] In the applicants’ submission, the facts show a close relationship between Mr

Ngaropo and the Council. Although he denied working for the Council, he had been the

chairman of their Māori Liaison Committee for a year at the time this submission was

made, although he did not hold the position at the time the gift was made. Mr Ngaropo

gained consultative status as a result of his close affiliation with the Whakatāne District

Council. In addition to Mr Ngaropo being paid by Ngāti Hinerangi for his consultation,

the Council paid him a further $20,000 themselves.

[173] In counsel’s submission, the only thing that comes close to the passing of value are

the services that were to be provided by Te Tawera in the re-interment process, but this was

not a service provided to Ngāti Hinerangi. Ngāti Rangitihi had already been carrying out

this task. Erin Mekerei-Tioke of Ngāti Rangitihi had been undertaking this task since

1980, unacknowledged by the Council or any trust; he was carrying out a task passed to

him by his elders.

[174] In conclusion, it is the applicants’ submission that no value was passed from Te

Tawera to Ngāti Hinerangi. It was a gift, and has always been called a gift. It was an act

of generosity that Te Tawera are now attempting to reinterpret to exclude others.

[175] The applicants reiterated that they seek:

(a) a declaration as to the erroneous nature of the decisions constituting the

Ngāti Hinerangi Trust and changing the status of the land described as

Allotment 18 and Lot 20 Town of Richmond;

(b) a recommendation that these lands be set aside as a Māori Reservation given

its intrinsic importance to tangata whenua and its recent history;


(c) a declaration that the conveyance by way of gift to the Tawera Trust of

Allotment 18 was void ab initio; and

(d) a recommendation that a new trust be constituted over both blocks for the

benefit of Pikiao katoa in keeping with the original Crown grant to hold

these lands pending the creation of the Māori Reservation which is being

proposed being confirmed by the Court.

Closing submissions for Ngāti Rangitihi, 2 June 2006

[176] Curtis Bidois for Ngāti Rangitihi submitted in closing that Ngāti Rangitihi’s

position was that the 1998 vesting and ahu whenua trust order were clearly in error. That

Mr Bennett had admitted that if “he knew the true trust beneficial ownership he would be

back tracking very quickly”.89 He also stated that in Ngāti Rangitihi’s submission there

was no consideration given by Te Tawera Hapū Trust for the transfer of Allotment 18.

Closing submissions for Ngāti Mākino and Ngāti Tūwharetoa Te Atua Reretahi Ngāi

Tamarangi, 2 June 2006

[177] On behalf of Ngāti Mākino and Ngāti Tūwharetoa ki Kawerau, Annette Sykes

states that “there seems to be unanimous agreement that the declarations and

recommendations sought for the parcels of land called Lot 20 of the Town of Richmond

should be made”.

[178] Ms Sykes submits that the remaining issue is around the orders and

recommendations sought for Allotment 18. Mr Fergusson for Te Tawera and Ngāti Awa

has suggested that as a result of s 48 of the Act, stating that remedial orders cannot affect

existing orders obtained on good faith and for value which have been registered under the

Land Transfer Act 1952, Allotment 18 cannot be affected by these proceedings. It is

submitted that his clients did not acquire the land for value or in good faith. Ms Sykes

continues that her clients do not accept an exchange for beads and blankets as an

appropriate approach to determining this issue, nor do they accept that political agreements

about the nature and status of the whenua amount to the realisation of value. Such an

89 111Whakatāne MB 249 (111 WHK 249).


approach would open the way for legitimisation of unconscionable bargains which are the

antithesis to principles underpinning notions of equity and the underlying principles of Te

Ture Whenua Māori. In Ms Sykes’ submission, Te Tawera and Ngāti Awa are estopped

from making claims that the existing transfer was obtained for value on the facts. They

never paid anything to the Ngāti Hinerangi Trust. In fact, the transaction was consistently

referred to as an act of generosity.

[179] Ngāti Awa and Te Tawera have suggested that the exchange is compensation for a

muru raupatu, which was described by Mr Ngaropo as an utu. However, the evidence

shows that it was the Crown that effected the Raupatu, and Ngāti Hinerangi cannot be

called upon to compensate for Crown wrongs. As evidence from Mr Hohepa and Mr Fox

illustrates, any outstanding obligations between Te Arawa and Ngāti Awa have long been

resolved in accordance with tatau pounamu between the affected parties. Ngāti Awa have

settled with the Crown and are now trying to double dip. But worse than this, they are

attempting to reopen the greenstone door that has long been closed. They are estopped by

their own settlement legislation from now claiming this land as further compensation or

from suggestion that Ngāti Hinerangi had an obligation to pay it to them. It is hardly fair

that the sins of one Crown agent be visited upon all Ngāti Hinerangi peoples.

[180] Ms Sykes states that Mr Ngaropo also suggested that because the reserve

contribution was waived by the Whakatāne District Council as part of the subdivision

application by Ngāti Hinerangi that the Ngāti Hinerangi Trust has obtained value from

Ngāti Awa. Ngāti Hinerangi did not benefit in any tangible fashion. The only difference

was that they had to pay Ngāti Awa instead of the Council. It is obvious that Ngāti Awa

and Te Tawera Trust are the only parties to have benefitted at all in this. The testimony of

Mr Bennett revealed that the Whakatāne District Council and Ngāti Awa have a very close

relationship, despite denials of this by Mr Ngaropo.

[181] Ms Sykes submits that Mr Ngaropo was referred to the Ngāti Hinerangi Trust as the

special man to be contacted to facilitate applications under the Resource Management Act

1993 (“the RMA”). He was the only person the Council required the Ngāti Hinerangi

Trust to seek information from and consult with regarding waahi tapu in the area.

Furthermore, the gifting of land to Ngāti Awa did not prevent the Council or Transit New

Zealand from requiring further land from the Ngāti Hinerangi Trust for a roadway.


Clarification from counsel at the bar confirmed that it seems Ngāti Hinerangi had to give

up Allotment 18 and then pay further compensation to the Council and Transit New

Zealand anyway. In Ms Sykes’ opinion, there is something offensive about the claim that

you have to pay a third party to achieve rights under the RMA before an application can

proceed. This is made even more difficult by the fact that the same third party, after six

years negotiation and completion of conditions required by him, including the gifting of

land, can now suggest that this conduct should be characterised as an exchange of valuable

consideration as part of an act of good faith. Such a proposition should be rejected as

absurd. Allotment 18 was not obtained for value. Ngāti Awa has not forgone anything, but

has only benefitted, most significantly from the ability to exercise kaitiakitanga to the

exclusion of others, when, upon their own admission, the kōiwi that lie there are those of a

significant number of hapū and iwi. Finally Ms Sykes submitted that it is offensive to

characterise the incursion of incidental costs as value being passed to the Ngāti Hinerangi

Trust. It is clear that Mr Ngaropo was acting in the interests of Te Tawera and Ngāti Awa,

and not beyond that scope.

[182] In conclusion, Ms Sykes submitted that the orders sought by the applicants are an

appropriate remedy in this case.

Closing submissions for Te Tawera, 2 June 2006

[183] Mr Fergusson submitted that Mr Bidois’ assertion that beneficial ownership rests

with Kawatapuarangi and Rangitihi was correct, and this remained the case even after the

1998 ahu whenua trust was created.90 He also disputed the applicants’ interpretation of the

transfer to Te Tawera Trust as a gift. This issue was discussed in greater detail in

supplementary submissions.

Supplementary submissions for Te Tawera Hapū Trust, 16 June 2006

[184] Mr Fergusson stated that at the end of the 2 June hearing, Judge Savage directed

counsel to file supplementary submissions on the meaning of the term “for value” as used

in s 48 of Te Ture Whenua Māori Act 1993.

90 At 263.


[185] Mr Fergusson submitted that the Tawera Trust’s position is that:

(a) the term “for value” in s 48 accords with the concept of “valuable

consideration” at common law. Thus any value in terms of s 48 must be

sufficient (i.e., more than nominal), but need not be adequate;

(b) the Tawera Trust obtained the title to Allotment 18 “for value”. While the

Trust did not pay money for the transfer of Allotment 18, the law

acknowledges that valuable consideration may take forms other than

payment of money;

(c) accordingly, the Tawera Trust satisfies the requirements of s 48.

[186] Mr Fergusson pointed to the legislative history of s 48 to support his contention.

He stated that the predecessor provisions of s 48 from 1909 onwards all contained the

statement that the Chief Judge’s powers to amend, cancel or vary orders cannot affect any

right or interest acquired for value and in good faith. These provisions differed

significantly from the 1894 provision, which stated that “no such order as aforesaid shall

affect any alienation of land made after the title thereto has been ascertained, and before

such application has been registered, unless the several parties consent thereto in writing”.

Mr Fergusson stated that the Parliamentary proceedings relating to the 1909 enactment

record no mention or explanation of this change. And further, the concept of “for value” is

not discussed in any of the Parliamentary proceedings in relation to subsequent Māori land

laws.

[187] Mr Fergusson noted that while none of the provisions use the phrase “bona fide

purchaser for value without notice”, the intention is the same, and the Court of Appeal has

assumed in Bruce v Edwards, in relation to a provision with similar wording (s 88(1) of Te

Ture Whenua Māori Act 1993), that it was Parliament’s intention “that protection be

afforded to bona fide purchasers”.91 He further submits that none of the enactments define

‘value’, and there are two possible reasons for this: firstly that it is such a well-known

concept that definition was unnecessary, or secondly; that whether or not a transaction was

made “for value” is so dependent on the circumstances of each case, consistent with the

91 [2003] 1 NZLR 515, 532 (CA).


notion that sufficiency not adequacy is required and that value may take a non-monetary

form.

[188] Mr Fergusson submits that he was unable to find any decisions that discuss the

words “for value” as used in s 48. He cited a small number of cases referring to

predecessor provisions, although none of them directly address the meaning of “value”.

Mr Fergusson again cited Bruce v Edwards in relation to s 88(1), which contains the same

statement that orders amended or cancelled pursuant to that section “shall not take away or

affect any right or interest acquired in good faith and for value”. This case did not address

the meaning of the term “for value”. He notes that the phrase “for value and in good faith”

has been used in a number of other enactments, but did not carry out research into these

“seemingly extraneous” provisions given the limited time available and the focus of the

Court’s directions on the term “for value”.

[189] Mr Fergusson looked at commentary on the terms “for value” and “valuable

consideration”, concluding that at equity and law they mean the same, and a transaction is

conducted “in law”. A person cannot be a bona fide purchaser for value unless he or she

has engaged or reached an agreement with another. Until that person’s interest is

registered or possession is given, equity provides some protection, subject to the rules

regarding priorities and competing equities. Equity favours a bona fide purchaser for

value; therefore the question of whether interests have been acquired “for value” is a

matter that concerns both law and equity.

[190] Citing Halsbury’s Laws of England, Mr Fergusson submitted that the courts do not

look to the form or adequacy of valuable consideration, and that agreeing not to sue or

exercise a right may be sufficient.

[191] In summary, Mr Fergusson submitted that Te Tawera Hapū Trust’s position remains

as it was at the 1 and 2 June hearing:

(a) There is nothing to be gleaned from the legislative history of s 48 which

suggests that a unique or special meaning should be attributed to the term “for

value” in the context of s 48;


(b) The origins of the term “for value” the Native Land Act 1909 weighs against

any contemporary re-interpretation in the context of the Te Ture Whenua Māori

Act 1993;

(c) The terms “for value” and “valuable consideration” are used synonymously in

relevant texts and authorities;

(d) The term “for value” in s 48 should be reasonably interpreted as equating to

“for valuable consideration” and, as such, it must be considered without

reference to form and with regard to sufficiency, not adequacy.

[192] The Tawera Trust submits that it acquired ownership of Allotment 18 “for value”.

Supplementary submissions for the applicants, 30 June 2006

[193] Annette Sykes and Jason Pou made supplementary submissions on the question

posed by Judge Savage regarding the term “for value” in s 48(1) of Te Ture Whenua

Māori. Counsel considered the Court of Appeal judgment in Bruce v Edwards, as well as

the Parliamentary debates on Te Ture Whenua Māori before it was enacted in 1993,

including the underpinning philosophy of the Act.

[194] In relation to s 48, their submission is that the ability of the Chief Judge to rectify

imperfect alienation must be invoked with great care. Counsel refer to the ‘saving clause’

in s 48, which is, in their submission, the clause which precludes the Chief Judge

exercising his powers when rights or interests have been acquired for value and in good

faith. The applicants submit that in the plain construction of the phrase “acquired for

value” there is and needs to be a connection between the acquisition and the value passed;

land may have been acquired, some sort of value may have been transferred, but if there is

no connection between the acquisition and the value, then the ‘saving provision’ cannot be

invoked.

[195] The applicants state that the submissions of Te Tawera Hapū Trust have failed to

address this connection. Even if the value is equated with valuable consideration, which

the applicants do not accept, they submit that the legislative intent is clear that this valuable


consideration must be given with the intent to acquire land. In the applicants’ submission,

this highlights the position advanced at hearing that Te Tawera Trust took the land as a

volunteer. Mr Ngaropo volunteered his services and Te Tawera Trust was gifted the land.

The applicants submit that the maxim “equity will not assist a volunteer” means that equity

will not help a volunteer perfect his or her title, and in this case s 48 of Te Ture Whenua

Māori Act will not protect Te Tawera’s imperfect title.

Supplementary submissions for Ngāti Rangitihi, 30 June 2006

[196] On behalf of Ngāti Rangitihi Mr Bidois submitted that notwithstanding the absence

of case authorities on s 48, the Court can properly accept the following propositions:

(a) That the class of transfers considered as “acquired for value” is not limited

to transfers by way of purchase, but does not include transfers by way of

gift.

For example: an interest acquired following a successful Law Reform

(Testamentary Promises) Act claim could be considered an interest acquired

for value without necessarily being a purchase in the formal sense.

Whereas, and interest succeeded to under the Family Protection Act would

not be an interest acquired for value, and would not be protected under s 48.

(b) The words “acquired for” import the concept of an exchange on a quid pro

quo basis.

(c) Section 48(1) provides no protection of purely equitable interests, the

protection being expressly limited to registered interests.

[197] Counsel submitted that the words “acquired for value” are properly read to mean

“acquired in exchange for value”, in the sense that the parties must have intended a mutual

exchange on a quid pro quo basis. If there has been no mutuality of exchange, the interest

in question cannot be said to have been acquired for value. An acquisition free of any

mutuality of exchange is either a gift or a taking.


[198] Section 48(1) requires the Court to consider whether an intention to exchange

something of value for the interest in question can be inferred from the parties’ conduct,

without necessarily requiring all the elements of an orthodox sale and purchase to be

present. If that inquiry is answered in the affirmative, then the protection provided in s

48(1) is available.

October 2006 – July 2007

[199] On 5 October 2006, the applicants wrote to the Court enquiring as to the timeframe

for a decision on their s 45 application. On 9 October 2006, the Court responded to the

applicants stating that Judge Savage had advised that “the Court has not yet produced a

transcript of the hearing and therefore he has not had the opportunity to produce a

decision”.

[200] On 8 November 2006, copies of the Court minutes from the 1-2 June hearing were

sent to the parties.

[201] On 16 April 2006, the Court released a direction stating that in the course of

preparing a report to the Chief Judge on the matter, and checking source documents, it

seemed to Judge Savage that in “two respects they do not support the facts and the

assumptions upon which the hearing proceeded”. These facts were:

(a) The Crown grant produced at hearing was not for Allotment 18. After

reading the Crown grant for Allotment 18 it became clear that it was quite

different to the Crown grant for Allotments 302-315 – that Crown grant was

to Te Pokiha Taranui and his heirs and assigns forever in trust for the Ngāti

Pikiao hapū. The Crown grant for Allotment 18, on the other hand, appears

to be to Te Pokiha Taranui in his own right, free and clear from any trust.

(b) The inquiry proceeded on the basis that Ngāti Hinerangi were the

beneficiaries of Te Taheke Marae, when in fact, the gazettal for that marae

states that the beneficiaries of Te Takinga Marae are the members of Ngāti

Te Whanarere Hapū of Te Arawa Tribe. This may well impact on the result

of the case.


[202] Judge Savage stated he was reluctant to reconvene and incur further expense and

delay, so he therefore directed counsel to discuss these matters among themselves and file

a joint memorandum to resolve the factual matters and the consequences of them.

[203] A copy of this Court direction was sent to parties on 17 April 2007.

[204] On 23 May, the Deputy Registrar wrote to counsel asking for a timeline on the

collective response requested.

[205] On 24 July 2007, the Deputy Registrar wrote again seeking that each counsel

provide response within 14 days as to where they saw matters stood.

Memorandum of counsel on behalf of Te Tawera Hapū Trust, 24 August 2007

[206] Counsel noted that due to differing positions between parties as to the consequences

of the facts raised, the memorandum was from Te Tawera Trust alone.

[207] On the issue of Ngāti Te Whanarere, counsel accepted that Te Tawera Trust

represents Te Tawera Hapū of Ngāti Awa, not Te Arawa. The submission states that Mr

Fergusson asked the trustees what their knowledge of Ngāti Te Whanarere was and

Pouroto Ngaropo advised that he was able to provide some information, but was “cautious

to acknowledge that others may have different views”. In summary, Mr Ngaropo stated

that Whanarere was a tipuna woman of Ngāti Awa descent, being a descendant of Toroa

(eighth generation) and Awanuiarangi (fifth generation), and she married into Te Arawa.

Ngāti Te Whanarere Hapū were always known as a Te Awara hapū. Mr Ngaropo was

unaware of the name being used in modern times, and did not think the hapū existed any

longer (in the political sense), and that he thought it had probably been amalgamated into

Ngāti Hinerangi. However, counsel submitted that this issue does not affect the position

of, or the arguments raised by, Te Tawera Hapū Trust.

[208] On the issue of the Crown grant for Allotment 18, counsel stated that they were

aware it was different to the Crown grant for Allotments 302-315 (from which Lot 20

derives), and that it was not a grant to Te Pokiha to hold that land on trust for all Ngāti

Pikiao.


[209] The fact that Allotment 18 was not granted to be held on trust negates the ground

upon which the applicants argued that Allotment 18 should be held for Ngāti Pikiao katoa.

However, Te Tawera submit that this issue makes no substantial difference to the case for

two reasons:

(a) The request by the applicants to revest Allotment 18 and Lot 20 in trustees

for Ngāti Pikiao katoa and a determination that the land is waahi tapu and a

Māori reserve is beyond the legitimate scope of the reporting judge’s

referral.

(b) Although Allotment 18 was originally granted to Pokiha Taranui in his own

right it was subsequently vested in 1957 in trustees on trust for Taheke

Marae (32 WHK 100), and then in 1991 in the tupuna Rangitihi and

Kawatapuarangi (84 WHK 100).

[210] Neither the 1957 nor the 1991 orders are being challenged – only the 1998 order.

Accordingly, if the 1998 orders are cancelled and s 48(1) does not apply in relation to Te

Tawera Trust’s title (which is not conceded), the position would revert to that immediately

prior to 5 May 1998. The relevant issues are, therefore:

(a) What was the position immediately prior to the 1998 orders? And

(b) What is Tawera Trust’s position under s 48(1)?

[211] These are the same issues discussed at the 1 and 2 June hearing and the views of Te

Tawera have not changed:

(a) Immediately prior to the 1998 orders, the beneficial owners of Allotment 18

and Lot 20 were Rangitihi and Kawatapuarangi and, if the 1998 orders are

cancelled, Lot 20 (at least) will vest in Rangitihi and Kawatapuarangi again.

Indeed, it is arguable that Rangitihi and Kawatapuarangi remain the current

beneficial owners of Lot 20 despite the establishment of the Ngāti Hinerangi

Trust, as the 1998 orders do not purport to vest the lands in any other

beneficial owners.


(b) Section 48(1) applies to the transfer of Allotment 18 to Te Ramaapakura and

such transfer cannot be overturned even if the Chief Judge does exercise his

jurisdiction to cancel the 1998 orders.

Memorandum of counsel for Ngāti Rangitihi, 18 September 2007

[212] Counsel for Ngāti Rangitihi submitted that, having reviewed the history of

Allotment 18 and Lot 20, all orders made in respect of the land after the order terminating

the s 438 trust in 1991 have been erroneous and should be set aside in the interests of

justice.

[213] Regarding Allotment 18, Ngāti Rangitihi submit that it was granted to Te Pokiha

Taranui free of any trust. His wife, Rangipaoa Pokiha succeeded to him, and Sam Emery

to her. On 11 July 1957, the Court vested the land in trustees and empowered them to hold

the net proceeds for Taheke Marae. At that time, Sam Emery and his successors were the

persons beneficially entitled to Allotment 18. The Court vested the land in trustees upon

hearing evidence of senior members of Ngāti Pikiao. It cannot be determined from the

record whether Sam Emery or his successors consented to the land being vested in the

trustees. On 31 July 1991, the Court terminated that trust and vested Allotment 18 in

nominated tipuna without considering whether the successors to Sam Emery were

beneficially entitled to the land. The beneficial entitlement of Sam Emery’s successors has

been omitted from this present case.

[214] Regarding Lot 20, Ngāti Rangitihi submit that the Crown grant was to Te Pokiha

Taranui, “his heirs and assigns forever” on trust for Ngāti Pikiao. Rangipaoa Pokiha

succeeded to Te Pokiha, and Sam Emery to Rangipaoa Pokiha, so Sam Emery was the

person beneficially entitled to hold Lot 20 on trust for Ngāti Pikiao at the time the s 438

trust was created in 1957. On termination of that trust in 1991, those trustees ceased to be

the legal owners of Lot 20 and Sam Emery’s successors were the persons beneficially

entitled to hold Lot 20 on trust for Ngāti Pikiao. This entitlement has been omitted from

the current case presented.

[215] In Ngāti Rangitihi’s submission, the 1991 order vesting the land in Rangitihi and

Kawatapuarangi was erroneous in fact and law. The beneficial entitlement of Sam Emery’s


successors as owners of Allotment 18 and as trustees of Lot 20 was omitted from the case

presented to the Court. As the Court terminated the 1957 trust on its own motion, no one,

apart from those in attendance, had an opportunity to address the Court before the new

vesting order was made. The 1991 application was for replacement of trustees, not

cancellation of trust.

[216] On 5 May 1998, the Court vested the land in the Ngāti Hinerangi Trust on the

mistaken grounds that the land had previously been set apart for the beneficiaries of

Taheke Marae. The Gazette notice setting apart Taheke Marae for the benefit of Ngāti

Whanarere. The interests of Sam Emery’s successors and Ngāti Pikiao katoa were omitted

in the case presented to the Court.

[217] The Gazette notice setting apart Taheke Marae for the benefit of Ngāti Whanarere

has no impact on the present application. Beneficial ownership has never vested in the

beneficiaries of Taheke Marae prior to the application by Ngāti Hinerangi. Although the

beneficiaries of the marae were, for a period, entitled to proceeds derived from the land as

a term of the 1957 (s 438) trust, any entitlement to proceeds derived from the land ceased

to exist upon termination of that trust in 1991.

[218] In conclusion, Ngāti Rangitihi state that the 1991 order vesting the land in the

tipuna, Rangitihi and Kawatapuarangi, was based on an error of fact. The 1998 order

vesting the land in the Ngāti Hinerangi Trust was also based on an error of fact. The

subsequent orders made in relation to the land also proceeded on these errors of fact. In

the interests of justice, the Court should set aside the order vesting the land in Rangitihi

and Kawatapuarangi,92 the orders vesting the land in the Ngāti Hinerangi Trust,93 and all

orders subsequently made in relation to that land.

Memorandum of counsel for the applicants, 24 September 2007

[219] This memorandum was filed in response to the memorandum filed on behalf of Te

Tawera Hapū Trust dated 24 August 2007.

92 84 Whakatāne MB 110-111(84 WHK 110-111). 93 248 Rotorua MB 277 (248 ROT 277).


[220] The applicants state that it remains their submission that the interests acquired by

the Ngāti Hinerangi Trust were obtained as a result of a misrepresentation to the Court of

the Crown grant vesting the lands in Te Pokiha. The applicants submit that the Court was

informed that the grant was actually in favour of Taheke Marae, the beneficiaries of which

are Ngāti Hinerangi. As a result, an ahu whenua trust was constituted, the status of the

land was changed, the land was subdivided, and part of the land was gifted to Te

Ramapaakura and the trustees of Te Tawera Hapū Trust.

[221] On 16 April 2007, Judge Savage issued a minute drawing attention to the fact that

the beneficiaries of Te Taheke Marae are members of Ngāti Te Whanarere Hapū of Te

Arawa, not Ngāti Hinerangi, and the grant of Allotment 18 was free of any trust. The

issues raised by Judge Savage further confirm the position of the applicants that the vesting

of the lands in the Ngāti Hinerangi Trust was improper and ought not to have happened.

[222] The applicants state that Mr Ngaropo’s “conjecture” relating to the identity of

Whanarere and Ngāti Te Whanarere hapū is categorically refuted, and such speculation is

unhelpful and completely irrelevant to the present case. The interests of Te Tawera Trust

are based on a gift received from the Ngāti Hinerangi Trust and the Ngāti Hinerangi Trust

gained possession of the lands a result of a misrepresentation to the Court. The fact that

Ngāti Te Whanarere are the beneficiaries of Te Taheke Marae, not Ngāti Hinerangi, only

emphasises the applicants’ submission that key facts were not put before the Court when

the lands were vested in the Ngāti Hinerangi Trust. The applicants submit that had these

facts been before the Court, it is highly likely that the lands would have been vested in the

Ngāti Hinerangi Trust and they would therefore not have been able to gift the land to Te

Tawera Hapū Trust.

[223] The applicants submit that the issue of the Crown grant of Allotment 18 to Te

Pokiha free of any trust was canvassed in earlier hearings. It was against this background

and for this reason that the wills of Pokiha Taranui and Rangipaoa were appended to the

original evidence submitted by Colleen Arihana Skerrett-White. Counsel for Te Tawera

Hapū Trust levels criticism at the applicants for not identifying the grant at the outset.

Counsel submits that this criticism is unwarranted and illustrative of a failure to come to

grips with the evidence that has been filed, although this can perhaps be attributed to the


fact that Kahui Legal assumed responsibilities in this matter at a later stage in the

proceedings.

[224] The applicants highlight the fact that Sam Emery, the ultimate beneficiary of the

wills, is the great-grandfather of Ms Skerrett-white, one of the applicants. She has

canvassed this relationship in her evidence. As a result of these proceedings, issues have

been raised and discussed by the Emery whānau and a mandate was given to Colleen

Skerrett-White to represent the Emery whānau and to have the land converted into a Māori

reservation for all the iwi and hapū associated with the whenua. A copy of this mandate is

attached to the submission.

[225] The points raised by Judge Savage emphasise that key facts were not put before the

Court when the lands were vested in the Ngāti Hinerangi Trust. This was accepted at

hearing by Mr Chadwick, counsel for the Ngāti Hinerangi Trust. The subsequent gifting of

lands by the Ngāti Hinerangi Trust to Te Tawera Hapū Trust was improper and ought to be

rectified. The applicants continue to seek the same relief:


Ngāti Hinerangi Trust and changing the status of the land; and

(b) A recommendation that this land be set aside as a Māori reservation for the

benefit of all those who are identified as connecting to this whenua.

February 2008 – April 2010

[226] On 29 February 2008, the applicants wrote to the Court requesting information on

the progress of the application and informing the Court that they had been alerted that the

Environment Court was awaiting the finding on this matter to assist in deciding whether to

continue with an appeal that has been lodged against the granting of resource consent over

these lands.

[227] Judge Savage prepared a report on the application for the Chief Judge, dated 30

April 2010.

[228] On the issue of the 1957 trust order, Judge Savage notes that:


It seems clear that there was no intention at that stage to deal with the issue of equitable

ownership of the land. The proceedings and the Orders simply appear to have been made, with

the intention of providing a functioning management structure and giving those trustees some

direction, so that they might perform their duties and deal with any funds received.

[229] He also notes that this is the first reference to Taheke Marae, which he states is

important “because it forms the seed that later grew into the commonly accepted idea that

the lands were in fact the property of Te Taheke Marae or perhaps its beneficial owners”.

[230] On the 1991 vesting in Kawatapuarangi and Rangitihi, Judge Savage comments

that:

It is strange indeed that lands held by one person back in 1880 in his own right, in one case and

as a trustee in the other, could suddenly be seen as appropriate for vesting in Ngāti Rangitihi.

[231] Judge Savage, in his report, notes that it is clear that by this stage there was a “fully

formed and firmly held belief that Ngāti Hinerangi are the beneficial owners of these lands.

The chain of title and events does not however, support this contention and the error is

manifest”. Judge Savage also notes that the minutes of the Ngāti Hinerangi meeting held

on 26 April 1998 indicate that “the trustees had been to see Judge Hingston in Chambers

and had obtained some sort of pre-hearing indication that an application in this form would

be viewed with favour”.94

[232] On the gifting of the land to Te Tawera Hapū Trust and the vesting in Te

Ramaapakura, Judge Savage questions how Te Ramaapakura fell into the definition of

preferred class of alienees, “the transfer being across iwi lines”. He notes that Ngāti Awa

do not fall within the definition of whanaunga set out in the Māori Appellate Court

decision in Mihinui - Maketu A100.95

[233] He also states that the gifting of the land “in consideration of certain agreements

and understandings reached” was “in contention”, as at 100 WHK 220, Donald Mairangi

Bennett and Pouroto Ngaropo specifically refer to it as a gift, but Mr Ngaropo resiled from

this position in the s 45 hearing before Judge Savage.

94 7 Waiariki MB 90 (7 WAR 90). 95 (2007) 11 Waiariki Appellate MB 230 (11 AP 230)


[234] Judge Savage also notes in relation to the transfer to Te Tawera that “if this Order is

to stand, then the land has passed from Ngāti Pikiao to Ngāti Awa and this is a major

source of contention”.

Discussion

[235] The Chief Judge’s jurisdiction is set out in ss 44 and 45 of Te Ture Whenua Māori

Act 1993 as follows:

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.

(2) Subject to section 48 but notwithstanding any other provision of this Act, any order

under this section may be made to take effect retrospectively to such extent as the

Chief Judge thinks necessary for the purpose of giving full effect to that order.

(3) Notwithstanding anything to the contrary in this Act, the powers conferred on the

Chief Judge by this section may be exercised in respect of orders to which the

provisions of section 77 would otherwise be applicable.

(4) The powers conferred on the Chief Judge by this section shall not apply with respect to

any vesting order made under Part 6 in respect of Maori customary land.

(5) The Chief Judge may decline to exercise jurisdiction under this section in respect of

any application, and no appeal shall lie to the Maori Appellate Court from the

dismissal by the Chief Judge of an application under this section.

45 Applications for exercise of special powers

(1) The jurisdiction conferred on the Chief Judge by section 44 shall be exercised only on

application in writing made by or on behalf of a person who claims to have been

adversely affected by the order to which the application relates, or by the Registrar.


(2) On any application under this section, the Chief Judge may require the applicant to

deposit in an office of the court such sum as the Chief Judge thinks fit as security for

costs, and may summarily dismiss the application if the amount so fixed is not so

deposited within the time allowed.

[236] This s 45 application relates to the order of 5 May 1998 which created an ahu

whenua trust over the land the subject of this application. What must therefore be

determined in terms of my jurisdiction is whether there was a factual or legal mistake or

omission in the creation of that order, whether that order adversely affected the applicants,

and whether it is in the interests of justice to remedy the mistake or omission.

[237] Before considering this question, there are a few points that should be noted. The

first is that, as Judge Savage stated in his report, the situation is complicated by a number

of matters which, while not directly relevant to this application concerning the 1998 order

creating the ahu whenua trust, “were ever present in the minds of those who attended and

took part” in proceedings.96 These matters are:

(a) The Crown grant;

(b) Kōiwi; and

(c) The flooding at Matata in 2005.

[238] These matters are of obvious importance in the context of this whenua and the

parties involved, but do not go directly to the question of whether a factual or legal error

was made in the 1998 order creating the ahu whenua trust. It is noted that a number of

parties made submissions on the impropriety “in Treaty and whakapapa terms” of the

original grants. As Judge Savage noted, “the action of the Crown and the interface between

Te Arawa, Ngāti Awa and Tuwharetoa ki Kawerau is well known and recognised”.97

However, the function of an s 45 application is to consider the order and decision

complained of. In this instance the 1998 order creating an ahu whenua trust over the lands

is in question. This function does not extend to looking behind the original Crown grants.

As such, this summary of events and discussion focuses on two main issues:

96 Report to Chief Judge WW Isaac, 30 April 2010 at 7 Waiariki MB 83 (77 WAR 83). 97 At 84.


(a) Whether the applicants have shown that there was a factual or legal error in

the 1998 order which adversely affected them, justifying the exercise of the

Chief Judge’s powers under s 44 of Te Ture Whenua Māori Act 1993; and

(b) Whether the exercise of this jurisdiction is limited by s 48 of the Act which

states that no order made under s 44 can take away or effect any right or

interest acquired for value and in good faith under any instrument of

alienation registered before the making of that order.

The Law

[239] First, I will set out the general law relating to a s 45 applications: 98

Pursuant to s 44 of the Act, the Chief Judge may cancel or amend an order made by the Court or

a Registrar, if satisfied that the order was erroneous in fact or in law because of any mistake or

omission on the part of the Court or Registrar or in the presentation of the facts of the case to the

Court of Registrar. The Chief Judge may also make such order as, in the opinion of the Chief

Judge, is necessary in the interests of justice to remedy the mistake or omission.

In Tau v Nga Whānau o Morven and Glenavy – Waihao 903 Section IX Block [2010] Māori

Appellate Court MB 167 the Māori Appellate court ruled that the Chief Judge must exercise his

jurisdiction by applying the civil standard of proof of the balance of probabilities having regard

to that standards’ inherent flexibility that takes into account the nature and gravity of matters at

issue.

Further, the Chief Judge must be satisfied that an error has been made. In Ashwell – Rawinia or

Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209-225 (2009 CJ 209) I summarised

the principles to be considered when determining s 45 applications as follows:99

• When considering s 45 applications, the Chief Judge needs to review the evidence

given at the original hearing and weigh it against the evidence produced by the

applicant (and any evidence in opposition);

• Section 45 applications are not to be treated as a rehearing of the original application;

• The principle of Omnia Praseumutur Rite Esse Acta (everything is presumed to have

been done lawfully unless there is evidence to the contrary) applies to s 45 applications.

98 As set out in Hina Temo v Hakeke McGarvey – Estate of Hohapata Heremia [2012] Chief Judge’s MB 194-

211 (2012 CJMB 194), at [17]-[19]. 99 See also Grant v Raroa – Ngamoe A1B1B (1993) 33 Tairawhiti Appellate MB 35-45 (33 APGS 35-45).


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 decision. These principles are reflected in s 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.

[240] It is particularly important to note that s 45 powers are only used in exceptional

circumstances where there has been clear mistake of fact or law, and this mistake has had

adverse consequences on the applicant.

[241] The alleged errors in this case are that:

(a) there was an omission in the presentation of the facts to Court when the

application for the ahu whenua trust was made because the Crown grant was

not presented to the Court; and

(b) the trustees of Ngāti Hinerangi do not represent Ngāti Pikiao.

[242] The applicants also state that the land should be set aside as a waahi tapu, as an

urupā.

[243] In 1998, an order was made establishing an ahu whenua trust and vesting the land

in that trust. The entire Court transcript of the relevant hearing records:

Court: Mr Chadwick, what can (sic) we going to do about the caveat? I can’t do anything

about that. I have no problem with what the proposed trustees want to do. It looks like a

statutory caveat. You’re going to have to go to the DLR, I don’t think I can do anything.

Mr Chadwick: Yes, I’ll have to take it up with the DLR. I guess if the DLR receives an order

which has the effect of ... the caveat.


Court: I don’t think it will have. The Court did not put the caveat on it.

Mr Chadwick: I will take that up with the DLR.

Court: All you need today really is the 215 order creating the Ahu Whenua Trust. (Yes)

Which I will make an order 215 in terms of the application pending an Ahu Whenua Trust.

To be the standard accordingly vesting in the proposed trustees. The Trust Order be a

standard wide powers Trust with the inclusion of a special clause, whereby the trustees may

negotiate a sale of all the blocks in the Trust and it may make an application to the Court

upon the reaching of an agreement on a possible sale for the rationalisation of the Trust lands

by way of changing the status to general land of any or all of the blocks at that time. The net

proceeds from and alienation are to be held for the benefit of Ngati Hinerangi Trust.

[244] Section 215 of Te Ture Whenua Māori reads as follows:

215 Ahu whenua trusts

(1) The court may, in accordance with this section, constitute an ahu whenua trust in respect of any Maori land or General land owned by Maori.

(2) An ahu whenua trust may be constituted where the court is satisfied that the constitution of the trust would promote and facilitate the use and administration of the land in the interests of the persons beneficially entitled to the land.

(3) An application for the constitution of an ahu whenua trust under this section—

(a) shall be made in respect of all the beneficial interests in 1 block or in 2 or more blocks of land; and

(b) may be made by or on behalf of any of the owners or the Registrar of the court.

(4) The court shall not grant an application made under this section unless it is satisfied—

(a) that the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and

(b) that there is no meritorious objection to the application among the owners, having regard to the nature and importance of the matter.

(5) The land, money, and other assets of an ahu whenua trust shall be held in trust for the persons beneficially entitled to the land in proportion to their several interests in the land.

(6) Notwithstanding anything in subsection (5), the court may, either on the constitution of an ahu whenua trust or on application at any time thereafter,


empower the trustees to apply the whole or any part of any specified portion of the trust income for Maori community purposes or for such Maori community purposes as the court may specify, and, in such a case, the trustees may apply any part of such specified portion of the trust income in accordance with section 218.

(7) In any case to which subsection (6) applies, the beneficiaries shall be the beneficial owners of the block or blocks of land vested or to be vested in the trustees for the purposes of the trust.

(8) The constitution of an ahu whenua trust shall not affect any person’s entitlement to succeed to any beneficial interest in any land vested in the trustees for the purposes of the trust.

[245] Of particular relevance here is s 215(4), which states that the court shall not grant

an application for an ahu whenua trust unless it is satisfied that the owners of the land have

had sufficient notice and sufficient opportunity to discuss and consider the application and

there is no meritorious objection among the owners having regard to the nature and

importance of the matter.

[246] The applicants state that they were unaware that the application under s 215 had

been made and were denied their right to make meritorious objections. At that time the

land was vested in the tipuna Rangitihi and Kawatapuarangi, beneficially owned by all

Ngāti Pikiao. Ngāti Hinerangi unilaterally made the decision to vest the land in an ahu

whenua trust.

[247] The applicant for that order, Donald Mairangi Bennett, has stated that the

committee in charge of the land at that time were all Ngāti Hinerangi. Although there was

evidence submitted with the 1998 application that meetings of Ngāti Hinerangi were held

to discuss the application for an ahu whenua trust, there is no evidence that meetings were

held or that any notice was given to the wider Pikiao beneficiaries. Although Ngāti

Hinerangi had sufficient notice and opportunity to discuss the application, this opportunity

was not extended to the rest of the Ngāti Pikiao beneficial owners. In fact, as noted earlier,

the only people present at the hearing at which the order was made were the applicant for

the ahu whenua trust, Donald Mairangi Bennett, one of the proposed trustees, Albert Kingi,

and their legal counsel, John Chadwick. Also, as clearly shown in the transcript, there was

no inquiry or discussion relating to s 215(4) of the Act.

[248] The 1998 application for an ahu whenua trust presented to the Court stated that the

land had been previously held for the benefit of Taheke Marae, the beneficiaries of which

http://legislation.govt.nz/act/public/1993/0004/latest/link.aspx?search=sw_096be8ed80b032ec_215_25_se&p=1&id=DLM291892�


are Ngāti Hinerangi. In 1957, some of the land was vested in trustees to be held for the

benefit of Taheke Marae. The rest of the land was vested in the same trustees to be held for

“such purposes as the Court may order”. When these orders were made, the land was

clearly considered Ngāti Pikiao land. The Court minutes note that Allotments 302-315

were originally vested in Pokiha Taranui as trustee for Ngāti Pikiao. Te Pokiha Taranui’s

successors had met to discuss a dining room to be built at Taheke “for the Pokiha

successors”. Discussions were held regarding the establishment of a committee of Ngāti

Pikiao to make decisions regarding the land. With some of the proceeds being held for the

benefit of Taheke Marae, the judge stated that the Court felt the agreement made carried

out the wishes of Ngāti Pikiao and any other claim would be for the “3 other maraes of N

Pikiao”.

[249] In fact, as it has emerged, the beneficiaries of Taheke Marae were gazetted as Ngāti

Te Whanarere. I do not think this has any bearing on the present application. As counsel

for Ngāti Rangitihi stated in their supplementary submissions, although the beneficiaries of

the marae were, for a period, entitled to proceeds derived from the land as a term of the

1957 s 438 trust, any entitlement to proceeds derived from the land ceased to exist upon

termination of that trust in 1991.

[250] It is unclear why the Court in 1957 proceeded on the basis that Taheke was an Ngāti

Pikiao marae, but what is clear is that that the beneficiaries of Taheke Marae were not

Ngāti Hinerangi solely.

[251] It is also evident that when the 1957 trust was cancelled in 1991, it was still clearly

understood to be Ngāti Pikiao land. Although there were discussions at the time about

transferring the land to Ngāti Rangitihi, the minutes from the 1991 hearing clearly state

that “These sections [were] vested in Ngati Pikiao Trustees”, with Jack Brady stating “we

should be careful about the use of Rangitihi – would not want what we are doing

overturned because of use of that name”. He also states that he hoped to find a name “that

comes from Ngati Pikiao site so could belong to all of us”. Pokiha Taranui was mentioned

as a possible tipuna, but after an unrecorded discussion, it was agreed the land be vested in

Rangitihi and Kawatapuarangi. It is unclear why this discussion was limited to Ngāti

Hinerangi and Ngāti Rangitihi, or whether the wider Pikiao group of beneficial owners

were informed or involved. It would appear that this is unlikely as the application was


initially to replace the trustees of the 1957 trust. The Court, on its own motion, decided to

terminate the trust and create a new trust, vesting the land in Kawatapuarangi and

Rangitihi. The only people present were the proposed Ngāti Rangitihi trustees: Harry

Semmens, Jack Brady, George Te Kuru Bennett, and Tutewehiwehi Kingi; the applicant,

Donald Bennett; and Bertram Kingi and Whakarewa Hunuhunu.

[252] It is therefore unclear how land that was recognised to be Ngāti Pikiao land in 1991

could, in 1998, be placed in an ahu whenua trust by Ngāti Hinerangi alone. The fact that

some of the land had previously been held for the benefit of Taheke Marae did not give

Ngāti Hinerangi any greater authority to act unilaterally in relation to the land. The land

was Ngāti Pikiao land. It is not clear whether Ngāti Hinerangi purported to represent all of

Ngāti Pikiao, but they certainly represented that the land was already being held solely for

their benefit. This was not the case. The wider Ngāti Pikiao beneficiaries should have

been notified of the application to form an ahu whenua trust. They should have been given

sufficient opportunity to discuss and consider the application, and raise any meritorious

objections, given the nature and importance of the matter.

[253] As stated and shown by the transcript, this was not presented in evidence or

confirmed by the Court. In my view there was clearly a mistake in the presentation of the

facts to the Court. The Court made the order creating an ahu whenua trust on the

understanding that the land was already held for the benefit of Ngāti Hinerangi alone, and

this was not disputed because the rest of the beneficiaries were not aware that the

application had been made. The wider Ngāti Pikiao group were not given sufficient notice

or opportunity to discuss the application for an ahu whenua trust, or to make meritorious

objections having regard to the nature and importance of the matter.

[254] The applicants have clearly been adversely affected by this order because their

rights in relation to this land have been removed without their knowledge or consent. It is

clear that the subsequent subdivision of this land has been of particular concern due to the

fact that the land is widely understood to be waahi tapu, an urupā.

[255] Having regard to the above discussion, in my view it is clearly in the interests of

justice to amend this order. Having established that the exercise of the Chief Judge’s


powers under s 44 are warranted in this circumstance, I will now turn to consider the effect

of s 48 on the exercise of these powers.

Jurisdiction of the Court in relation to Allotment 18

[256] Section 48(1) of Te Ture Whenua Māori Act 1993 states:

(1) No order made by the Chief Judge under section 44, or made by the Appellate Court

on appeal from any such order, shall take away or affect any right or interest acquired

for value and in good faith under any instrument of alienation registered before the

making of any such order.

[257] Te Tawera Hapū Trust argues that the effect of this section is to bar the Court from

having jurisdiction to deal with Allotment 18 in this case. They argue that Allotment 18

was acquired by them for value and in good faith, and accordingly, no order of the Chief

Judge can affect their registered title to the land.

[258] The applicants argue that the transfer of Allotment 18 was a gift from Ngāti

Hinerangi to Te Tawera. It was intended as a gift, both parties clearly referred to it as a gift

and it has been consistently referred to as a gift. The applicants state the Te Tawera Hapū

Trust cannot now try and re-classify it as something other than a gift.

[259] Te Tawera Hapū Trust has argued that the terms “for value” and “valuable

consideration” are synonymous, and as such s 48 should be considered without reference to

form and with regard to sufficiency, not adequacy. Te Tawera states that it acquired

ownership of the land for value. However, Te Tawera have failed to clearly articulate

exactly what the value is that they allege was passed to Ngāti Hinerangi for the land. Mr

Ngaropo has said that he worked with Ngāti Hinerangi over a number of years on their

subdivision proposal, that he supported resource consent applications, and was involved in

organising the carving of a tekoteko for a memorial on the land. There was discussion of a

$20,000 grant he obtained from the Council in relation to the land, but that money went to

Te Tawera, not Ngāti Hinerangi. There was also the suggestion that as a result of the

gifting, the Council did not require land for a reserve. There was also some discussion of

the work that Te Tawera was to provide for the re-interment of remains found on the land.

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[260] Section 48(1) was considered in detail in Amos – Horahora 1A4B, 1A4E and 1A4F

Blocks.100 This decision states:

In the context of section 48(1)/93 I consider that ‘value’ should not be confused with adequacy.

If the legislature had wanted the Chief Judge to concern himself with ensuring that the

transaction was for ‘adequate’ consideration it would have said so as it has in section 152/93. It

does not. The Chief Judge has to merely ensure that the transaction was for value which in my

view distinguishes a transaction for value with a transaction where the alienee acquired the

interests by way of gift, or succession.

...

Therefore I am of the view that in determining what ‘value’ is in section 48(1)/93 the Chief

Judge is required to assess the type of application before him. For example did the transferee

receive his interest by way of gift or succession or was it a transaction where consideration was

paid.

[261] Thus s 48 does not require an assessment of the adequacy of consideration.

However, it is clear that there must have been some consideration paid for the land in order

to distinguish the transfer from a gift.

[262] The transfer of Allotment 18 was clearly referred to as a gift when the transfer was

made in 2003. The application at that time was for confirmation of alienation by way of

gift. Both parties are on the Court record stating that the transfer was a gift. The transfer

continued to be referred to as a gift during the present proceedings. Pouroto Ngaropo

stated in his brief of evidence filed in April 2006 that “I am presenting this evidence to

inform the Court regarding the circumstances of the gift of Lot 18 to Te Tawera Trust”.101

[263] As noted, Te Tawera Hapū Trust has subsequently argued that the transfer was ‘for

value’ and that the transfer was “a transaction negotiated between [Te Tawera] and Ngāti

Hinerangi”.102 I accept their submission that s 48 does not require the adequacy of

consideration to be evaluated, however, in order for s 48 to apply, there is a requirement for

some value to have been passed to acquire the interests in land. Although the transfer was

stated to be “in consideration of certain agreements and understandings”,103 it was clearly a

100 (2002) 2002 Chief Judge’s MB 54 (2002 CJ MB 54). 101 Brief of evidence of Poutoro Ngaropo, dated 19 April 2006. 102 111 Whakatāne MB 179 (111 WHK 179). 103 Application for an order confirming alienation by way of gift, filed by John Chadwick, dated 24 July

2003.


gift, and Te Tawera Hapū Trust have failed to show that there was consideration in any

form that would indicate that the transfer of Allotment 18 from Ngāti Hinerangi should be

regarded as anything other than a gift.

[264] Therefore I am not satisfied that Allotment 18 was acquired ‘for value’ and s 48

does not restrict the powers of the Chief Judge pursuant to s 44 in these circumstances.

Relief Sought

[265] The applicants seek the following relief:


Ngāti Hinerangi Trust and changing the status of the land; and

(b) A recommendation that this land be set aside as a Māori reservation for the

benefit of all those who are identified as connecting to this whenua.

[266] With regard to Allotment 18, the debate was again between Te Tawera Hapū Trust,

who feel that the land is correctly set aside as a Māori Reservation for Te Tawera Hapū,

Ngāti Awa, and everyone else, who agreed with the orders sought by the applicants to set

aside the land as a Māori Reservation for all those with an interest in the land.

[267] As far as Lot 20 is concerned, all parties, apart from Te Tawera Hapū Trust, accept

the error in the 1998 ahu whenua trust order, and did not oppose the orders sought. Te

Tawera Hapū Trust stated that this land should be for the benefit of Ngāti Awa solely.

Decision

[268] Having regard to the above findings and the relief sought, I make the following

orders and directions:

(a) That pursuant to s 44 of Te Ture Whenua Māori Act 1993 the order made on

5 May 1998 creating the ahu whenua trust in respect to Allotment 18 and

Lot 20 (as derived from Allotments 302-315) be cancelled.


(b) That pursuant to s 47 of Te Ture Whenua Māori Act 1993 as a result all

subsequent orders made in respect to Allotment 18 and Lot 20 are cancelled.

(c) That an order be made recommending the establishment of a Māori

Reservation in respect of Allotment 18 and Lot 20. This order is subject to

the applicant in liaison with the Registrar Rotorua calling a properly

advertised meeting of all interested parties to consider:

(i) the creation of a Māori Reservation for Allotment 18 and Lot 20

Town of Richmond;

(ii) the appropriate beneficiaries of the land;

(iii) the appropriate purpose for which this land should be set aside;

(iv) the appointment of trustees to administer the land.

(d) At the completion of the meeting the matter is to be referred to me to

finalise the orders set out above and if necessary to hold a further Court

sitting to conclude matters.

[269] A copy of this decision is to go to all parties.

Dated at Wellington this day of 2013.

W W Isaac CHIEF JUDGE

Documents

IN THE MĀORI LAND COURT OF NEW ZEALAND WAIĀRIKI … · 2013 Chief Judge’s MB 474 Introduction [1] This is an application under s 45 of Te Ture Whenua Māori Act 1993. The application