Minute Book: 98 WH 273 TAITOKERAU DISTRICT · Minute Book: 98 WH 275 Trevor Richards ("the Trustees.") The Trust was established on 3 November 1997, 85 Whangarei MS 51. Karaka Huarua

IN THE MAoRI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT

Place: Rotorua

Present: L R Harvey, Judge

Dale: 20 January 2004

Application No: At 9990008315

Minute Book: 98 WH 273

Subject: Karaka Huarua A & S - Partition and Roadway

Section: 173 & 418/53

Hearings: 19 February and 26 March 2003

RESERVED DECISION

Introduction

Before the Court is an application for partition and the laying out 01 a roadway ("the Partition Application") over Karaka Huarua A ("the Land") and Karaka Huarua B respectively. The application was first received by the Court on 28 June 1990, some fourteen years ago and so was filed pursuant to sections 173 and 418 of the Maori Affairs Act 1953 ("the 1953 Act"). The original applicant was Wainu Hoari who passed away in 1997 and by consent an order was made on 10 March 1998 substituting Rose Richards as applicant, 85 Whangarei MB 291. Then on 1 July 1998 Whakatau George, a son of the late Mrs Hoori was added as a co-applicant with Mrs Richards, 86 Whangarei MB 151. Florence Pita, Raymond Davis and Wero Karena were also included in the application from the outset. Collectively they are all referred to in this decision as the Applicants.

Background

This matter has had a protracted journey before the Maori Land and Appellate Court. The parties are familiar with the reasons for the longevity of this litigation which need not been repeated, suffice to say the proceedings are overdue fer disp,Jsal. For convenience references to the earlier decisions concerning the Partition Application are set out in the judgment of the Maori Appellate Court dated 3 December 2002 in re: Karaka Huarua A & B (2002) 6 Tokerau MS 32. Following that Appellate Coun decision, the application was heard by me in Whangarei on 19 Februar)' 2003, 96 Whangarei MB 9 and on 26 March 2003 at Tuparehuia Marae, Whangaruru, 96 Whangarei MB 175. Wero Karena, supported primarily by the whanau of Wainu Hoori, conducted the case on behalf of the Applicants. Matatahi George, the chairman of ·the Ngati Wai ki Wharigaruru Whenua Topu Trust ("'the Trust"), supported by several kaumatua from the area led the opposition. Jon~s Hapu~u and Jeffrey Devine represented the Whangarei District Council ('"the Counci!"). Both hearings were well attended and the Court was assisted by the detailed and comprehensive submissions made by the parties, including an extensive treatment of legal issues by Mr Karena.

Minute Book: 98 IVH 274

Preliminary maHers

The Maori Appellate Court also outlined matters relevant to any subsequent hearing:

(a) the Applicants must address the legal issues raised by sections 173, 174 and 418 of the 1953 Act;

(b) the Applicants need to clarify with precision the extent of support from the beneficial owners for the partition. If there is any opposition from a beneficiary to the interests of Wainu Hoor: the application will be at an end.

(c) the corsent of the local authority for the proposed roadway must be provided if the application is to proceed;

(d) the beneficial owners in both blocks need notice of the roadway application so they may have opportunity to be heard;

(e) the Applicants need to consider the effects, if any, on their application of the creation of a whenua topu trust over the Land; and

(I) the Applicants must file a statement confirming the level of support by 1 February 2003 and failure to comply with might result in the lower Court deducing that the application no longer enjoyed the support needed.

Following the hearings it can now be confirmed that the legal issues have been addressed, the extent of support has been clarified although not completely and the consent of the local authority, subject to conditions, has been provided. In addition, given the steps that have been taken to advertise hui to discuss the application and the wide publicity within the Ngati Wai ki Whangaruru community that it has received, I am satisfied that proper notice has been given. Finally, it can also be said that the Applicants have considered the issue of the whenua topu trust as Mr Karena has provided submissions. These matters are considered in detail later in thiS' decision. The essential point is that the preliminary matters identified by the Appellate Court have, by and large, been attended to so that there is no procedu(al bar preventing consideration of the Partition Application by the Court. It should be noted that all material before the Court has now been considered including evidence presented at previous hearings. However, in the context of support, I read the Maori Appellate Court decision to say that what may have been the positions previously is no longer relevant. The parties must, by 1 February 2003, confirm in writing the level of support for the application.

The Land

Karaka Huarua A was created by partition order on 11 December 1901 . It comprises 90.04 hectares with 220 beneficial owners holding 7.25 shares as at 16 December 2003. The block had previously been designated a Maori reservation by order dated 24 August 1976, 52 Whangarei MB 80. Evidence was given that the reservation status was sought to prevent the Land from being acquired by central and/or local government during the 19705. The Maori reservation was later cancelled 'on 2 October 1991, 72 Whangarei MB 18. Apparently, there was some confusion over which block should have been affected by the cancellation according to some witnesses. Today the block is administered by the Trust and the trustees are Bella Thompson, Bob Cooper, Kingi Raharaha, Makere Lawrence·Babe, Gary Reti, Lamia Hoori, Matatahi George, Mick Reo, Pepuere Pene, Pouaka Hepi, Pona Matenga, Rose McLan€l, Ta Rehia Davis, Waipu Paralene, Wairemana Hau, Wayne Martin and


Trevor Richards ("the Trustees.") The Trust was established on 3 November 1997, 85 Whangarei MS 51.

Karaka Huarua S was also created by partition order dated 11 December 1901. It consists of 27.92 hectares with 112 beneficial owners holding a total of 2.25 shares as at 12 August 2003. This land is administered by the Trust and like Karaka Huarua A had also been subject to a designation as a Maori reservation. Similarly that overlay was also cancelled by notice in the Gazette on 31 January 1991.

Site inspections

His Honour Judge A D Spencer undertook two site inspections of the Land and completed detailed reports on 12 October 1992 and 31 May 1995. The first inspection took some four and a half hours "through very heavy bush and steep country". Having inspected the Land he considered that it could sustain house sites near the Omanupowhiri creek provided an area of at least an acre were set aside as a reservation for all the owners "to enable camping and access to the balance of the block from the sea." He considered access to the Land a difficulty that would make partition inappropriate. He concluded in the first report that the Land had importance to the owners as a whole due to its scenic and cultural features. While it could support up to twenty house sites it was, in His Honour's view, unsuitable for partition:

" ... The block is rich in mature bush and places where there has been traditional occupation. as evidenced by the numerous ''platforms n typical of sites for whare on land of this type. It is steep in many places with numerous gullies. Unfortunately caNle have been allowed to enter the block and are causing serious erosion, especially in the gullies. It is essential that the land be fenced off to keep catt/e out -they are breaking down the banks of the creeks which would otherwise provide excellent water for the block - especiaffy from both Te Waiotuoro and Omanupowhiri creeks ... ! am satisfied, however, that the land should not be partitioned. Indeed, it would appear that virtually none of the owners have ventured into the block for many years past. "

At Ihe conclusion of the second site visit Judge Spencer also prepared a memorandum of inspection. On this occasion, as the Court was accompanied by kaumatua with knowledge of the Land, the report emphasises the cultural and historical significance of the block:

" ... It became most apparent that this area is extremely significant culturally and spiritually. There are ancient remains of man made rock structures, where stone has been quarried and taken to sites away from the quarry area .. , There are many places throughout the block of great significance, going back to times of very early occupation. We had the benefit of Houpeke Plripl with us on the inspection and he was able to confirm the significance of many things seen, ,, the land is not suited to partition, principally because of lack of access for practical purposes and also because of its significance as a whole ... n

Given the detailed reports prepared by Judge Spencer from the two previous inspections and following the lead of Deputy Chief Judge N F Smith at an earlier hearing I decided that a further visit was unnecessary. In any event, none of. the parties made a formal request for a site inspection,

Nga Whenua Rahul application report

The Court file also contains a 10-page report including colour photographs prepared by an environmental consultant M J Johnston dated 19 December 2001 in support of


an application for funding from Nga Whenua Rahui. A number of points are highlighted in the report including:

(a) the area is a region ally prominent peninsula with particularly good scenic and seascape values. It is undoubtedly part of the regional coastal landscape which would be enhanced under Nga Whenua Rahui;

(b) there is little doubt that the bush covered peninsula being the northern arm of Bland Bay has recreational potential both active and passive;

(c) future management of the area would seek to protect indigenous vegetation from any action that would adversely modify the long term biological processes in operation or reduce the cultural values of the locality;

(d) the peninsula contains two plant species of significance. The majority of the vegetation, some 75% I is re·generating kanuka forest in excess of seven metres in height. Gullies on the southern side contain kanuka up to twelve metres tall. This is a good example of coastal forest and shrubland which is a nationally rare forest type;

(e) birdlife includes New Zealand pigeon, grey warbler and tui. Natural values are high and habitat ranking is classified as high;

(f) fire risks would be increased if adjoining land were used for exotic forestry and foot traffic or "boa ties" lighting camp fires on the southern side of the area.

The report concluded that the property is a good example of a nationally rare forest type that is still intact with high seascape and landscape values. It is an integral part of the regional landscape with harbours and a rare geological type known as Kerikeri volcanoes. The report, perhaps unsurprisingly, then recommends that the owners negotiate a Nga Whenua Rahui protection covenant. This report needs to be put in its proper perspective. It provides some background information which, when coupled with the site inspection reports and the colour photographs, creates a useful picture of the Land. However, for the avoidance of doubt it is important to state that this report, while being of some interest, is not a principal consideration for this Court. The issues it raises are for the owners and the Trust to review in due course.

The Partition Applicatton

The Applicants seek to sever from the Land a combined area of 40.37 hectares (approXimately 100 acres) into separate titles for the five applicants ranging in area from 4.13 hectares to 13.89 hectares. A plan prepared by a Mr Shaw of Simpson Shaw & Co, Surveyors was provided setting out the areas sought for partition based on the share holdings of the Applicants. They are referred to on Mr Shaw's map as Rose Richards, Raymond Davis, Wainui Hoori, Florence Pita and Taupiri Karena. As mentioned, Wainui Hoori died in 1997 leaving seven successors. Taupiri Karena died in 1985 with ten successors, some of whom had also passed away leaving issue, 4 Whangarei (Successions) MB 104.

In essence, the effect of the application is to cut the block almost in half leaving the northern portion to the remaining owners. Access to the proposed sections would be by way 01 restricted roadway over Karaka Huarua B. It is pertinent to note that the creeks referred to in the site inspection reports and the location identified by Judge Spencer as being able to sustain twenty house sites appear to figure most prominently on the areas sought for partition . When pressed on the basis 10r


selecting the southern portion, Mr Karena submitted that there was no particular motive tor so doing. In any case, the most definitive statements as to the rationale for partition can be found in the submissions of Mr Karena, firstly at 96 Whangarei MS 19-20 where he underscored his desire to be removed from the "contention" of multiple Maori land ownership:

" ... the mindsets that are held by our people who are in muWple ownership of land are diverse. You could say from A to Z ... They're diverse. Those diversities of mindsets Your Honour, create huge problems to managerial administration and utilisation and development of our lands. I am removing myself from that environment. I want to. I have the legal right to do so and to confine the administration, the utilisation and development to myself and my sons and my daughters, or my brothers or my sisters. That is really what I want to do, rather than being inflicted with contention, with argument, with prejudice, with bias - I remove myself from that. I don't want to be involved in that. "

Then at page 25 paragraph 73-74 of his written submissions received on 6 June 2003 he states once again that the primary motivation of those seeking to partition is to have authority over their own areas of land free from the "interference" of the other owners:

'The applicants want to put to an end to their community of ownership. The five applicants possess 3.251 shares out of a total of 7.250. Approximately 460A:, of the shares. The balance of Ihe shares of 3.999 are held by 216 owners ... The applicants want to partition their respective shares so that exclusivity 10 raise a cow or feed their chooks and not be burdened with interferences from a minor shareholder. Build a home, dig a garden and grow kumara perhaps, but most importantly, a place to live and share with their immediate family the social relationships of interacting one with another as a family. "

In summary, the Applicants desire for partition is thus based on their need to sever themselves from the administrat ion and management of the land by the Trust so that they can "confine" the use of the Land to themselves. This, they claim, will then enable them to better provide for their future generations while using their share of the Land free from outside influences. The Applicant also provided the Court with a "Management Strategy Proposal" setting out their ideas for the future use of the land sought for partition. The Applicants also commissioned their own archaeological report in an attempt to identify any sites of historical significance.

Meetings concerning the Partition Application

Several meetings of beneficial owners have been held to discuss the application dating back to 1990. At least two meetings were held in 2001 and 2003. They are especially relevant because there are minutes of those hui on the Court file. At the first hui held on 8 September 2001, facilitated by the Registrar, according to the attendance sheet there were 27 persons present or represented. Mr Karena was not able to attend the hui. From those records it appears that a majority of persons present opposed the Partition Application. It should also be noted that most of the persons present were not owners in the Land, but affiliated to it by whakapapa through the iwi or by previous whanau ownership now lost. Many present spoke in support of a Maori reservation over the Land because of its historical and cultural significance. The Registrar recorded that seven owners present opposed the application while three were in support holding 1.39 and 1.875 shares respectively. A further twenty owners were apparently represented "without formal agreement" who were also against the partition holding some 0.325 shares. Accordingly the Registrar told the hui that she would be advising the Court that the application had

Minute Dook: 98 WH 278

been opposed. Mr George also made reference to an annual general hui of the Trust held on 25 August 2001 where he claimed that meeting endorsed the Trust's stance of opposition to the Partition Application. Mr Karena submitted that the figures were misleading and the record of voting was inaccurate. In any event, as the Appellate Court has noted, what matters now is the level of support as at 1 February 2003.

At the hui held on 22 March 2003, convened by direction of the Court, the outcome was similarly inconclusive - some opposed, some supported. A number of owners were present or their representatives as well as non-owners connected to the Land by whakapapa. From the minutes of the meeting, it is evident that the parties traversed the same themes and their respective positions remained unaltered. Indeed, at the next sitting of the Court Mr Karena stated that the parties had agreed to disagree.

Submissions fn support 01 the Appffcatlon

Mr Karena, supported by other owners in the Land provided lengthy submissions as to why they should be permitted to partition their interests in the Land. Those submissions included that:

(a) the Applicants are desirous of creating a place for themselves and their respective whanau on the Land free from the influence of other owners. Their combined shareholding amounted to 3.25 out of a total share of 7.25 in the Land. As they possess almost half of the shares in the Land, the Applicants consider that they are entitled to a proportionate area;

(b) the other owners will then be free to administer and manage their remaining interests in the Land according to their own preferences;

(c) the Applicants will co-operate with the Trust, the Council and other interested parties to ensure any road access over the Land and Karaka Huarua B takes into account the location of any waahi tapu and areas of cultural significance. The Applicants would also take any necessary steps to safeguard waahi tapu sites identified on the area for partition;

(d) any opposition to the Partition Application must be carefully weighed by the Court, taking into account all relevant circumstances including the level of actual beneficial owner opposition as compared with the views, however strongly felt, of non-owners. In any case, the Applicants shares outweighed those seeking to oppose the application and so on a pure numbers basis they must succeed;

(e) the Trust was established without the knowledge or consent of the Applicants, despite these on-going proceedings. Its role in opposing the application should be discounted accordingly;

(D the Applicants are entitled to partition as a matter of law. They have complied with the reqUirements of the t 953 Act and have taken all steps necessary and

. procured all consents needed for the partition. The Court's discretion should therefore be exercised in the Applicant's favour as there is no inexpediency to any relevant party suHicient to warrant a refusal; and

(g) the application has been unnecessarily delayed over many years and should now be finalised in favour of the Applicants.


Mr Karena and Mr Whakatau George supported by Mrs Richards and others were united in their view that the partition was appropriate, necessary and a proper exercise of the Court's discretion. Mr George underscored the role of his late mother in attempting to secure the land for her descendants. Mrs Richards, who acknowledged that her interests derived from her late husband, echoed that view. She stressed that her primary motivation was to leave something for her children, a place where they could go, knowing it was theirs by right. For the Applicants, they were trying to bring closure on a kaupapa that was of great significance to them and their whanau. They implored the Court to grant the partition.

Submissions In opposition to Partition Application

" ... Karaka Huarua is the beginning of the Ngati Wai in Whangaruru. The people of Ngati Wai area Identified are known as the children of the sea ... On this land Karaka Huarua there are many waah; tapu where our ancestors were laid to rest. And indeed koiwi are still being found today. $caNered about the headland across the harbour bed. It is not the practice of our fupuna to reveal the exact whereabouts o( these places, but refer to an ovarafl area as sacred and caution be taken when crossing over the land ... Over a period of some sixty years, our people have been divested of much land and it is now a struggle to retain what is left to the extent that we are now being invaded, our waahi tapu, our maunga, our cultural heritage and afJ those areas that we hold precious to retain our history and our connection to the land and our tipuna. "

Malalahl George, 96 Whangarei MS 187·188:

Mr George, supported by kaumatua from Ngati Wai, presented evidence and submissions in opposition to the application. Mr Piripi and Mr Moananui Anaru also claimed that the Land is of paramount importance to the identity of the Ngati Wai iwi of Whangaruru and consequently should be safeguarded at all costs. In summary their submissions and evidence highlighted that:

(a) the Land is of critical importance to the Ngati Wai people, particularly those of Whangaruru who are beneficial owners and the iwi in generaL It is replete with areas of great cultural and historical significance to Ngati Wai generally including waahi tapu, urupa , tauranga waka and related sites. It represents the beginning of the iwi and retains a central relevance in the on going connection of the tribe to their unique heritage. It remained one of the few real sites of historical importance to the tribe and despite the corrosive effects of urbanisation on cultural knowledge the iwi were determined to preserve this land;

(b) the Land in its entirety holds significance for both the beneficial owners and the iwi. The precise location of some sacred sites is often kept confidential in order to prevent them from being compromised and so is the case with this land. The selecting of discreet areas for partition in favour of particular owners who may not appreciate the depth of cultural concerns of other owners and the iwi for the Land would undermine that importance. It is the duty of the Trust to protect, maintain and enhance those areas to ensure their survival for future generations;

(c) in recognition of its status, the Land has remained largely undeveloped and in a natural state. While members of the hapu and iwi have, from time to time, lived upon the Land, there have never been permanent residences established there. If the application were granted, there would be no guarantee that the Land would be maintained in its existing state. The uncertainties thus created

Minute Book: 98 IVH 280

would adversely affect the ability of the iwi and the Trust in particular to fulfil their duties of custodianship to the beneficiaries of Ngati Wai ki Whangaruru;

(d) the Land has already been imperilled by the removal of the Maori reservation status in 1991 and 1992 with little notice to the beneficiaries and may now be subject to rating. The partition of the Land will compound those difficulties by adding a further layer of ownership and unnecessary administration;

(e) if the application was granted, the interests of the remaining owners would be severely affected by their inevitable exclusion from the partition areas. The Applicants have no greater or lesser right to the land they seek than the rest of the owners and so inexpediency would result for those owners and for the iwi generally who did not own shares in the Land but who are affiliated to it in accordance with tikanga Maad;

(Q as beneficiaries of the Trust the Applicants would still derive use from it, even though if the application was successful, they would cut out almost half of the block for their exclusive use. They WOUld, in effect, be "double dipping" and this was unfair to the remaining owners and beneficiaries to the Trust.

Mr George and his supporters emphasised the necessity for the protection of the Land given its distinctive place wilhin Ngati Wai ki Whangaruru. In their view the application could not be supported based on the reasons given by the Applicants and consequently, they were completely opposed to any partition.

In reply Mr Karena for the Applicants questioned the motives of those opposing the application and raised doubts as to whether the Land was covered with waahi tapu as claimed by the objectors. He referred to examples of livestock being allowed to wander over the blocks, of the area being used for dwellings and how those and related incidents undermined, in his view, claims that the entire area was of such cultural significance to prohibit partition. Mr Karena also made much of the fact that many of those opposing partition were not in fact beneficial owners in the Land and consequently, he submitted, their views should be discounted for that reason where they conflict with those of the owners. He also made a number of allegations concerning the propriety of actions he claims were undertaken by Mr George and his supporters, particularly in the context of formal support or opposition to the application. Mr Karena also stressed the view that the partition and protection of waahi tapu were not incompatible and that through further dialogue and negotiation, the protection of those important sites could be achieved.

The Law

The partition of Maori freehold land is provided for in Part XVI of the 1953 Act. Section 173 and 174 provides the jurisdiction and discretion of the Court in respect of partitions. Sections 175 to 186 set out a detailed scheme by which partitions can be effected.

Section 173 of the 1953 Act states:

"173 Jurisdiction to Partition Maorl Freehold Land-(1) The Court shall have exclusive jurisdiction to parlition Maor; freehold land. (2) Nothing in this part of the Act shall apply with respect to Maori reserves. (3) The provisions of this part of this Act shafl be read subject to the provisions

of sections 432 and 432{a) of this Act (relating respectively to partition orders made in respect of land having a frontage to a road of less width than sixty


six feet, and to partition orders made in respect of land situated within the district of a territorial authority). "

Section 174 then confirms the discretionary nature of the jurisdiction:

"174 DIscretion of Court - the jurisdiction conferred by this part of the Act shall be discretionary, and the Court may refuse to exercise that jurisdiction in any case in which It is of opinion that partition would be inexpedient in the public interest, or in the interest of the owners or other persons interested in the land .•

The application also encompasses access over Karaka Huarua B pursuant to section 418 of the 1953 Act. That section states:

''418 Roadways providing access to Maorlland-(1) For the purpose of providing access to any Maori freehold land as aforesaid,

roadways may, without the consent of any person being required, be laid out(a) Over any other Maor; land; or (b) Over any Crown Land, with the consent in writing of the Director-General of

Lands and of every person having any estate or interest in the said land. " (2) For the purpose of providing access to any Maori freehold land as aforesaid,

roadways may, subject to consents being given as hereinafter specified, be laid out-(a) Over any [General land} that cBased to be Maori land prior to the 1~ day

of December 1913, with the consent in writing of the owners and of every other person having any estate or interest therein; or

(b) Over any Crown land, with the consent in writing of the Commissioner of Crown Lands for the district in which the land is situated and of every person having any estate or interest in the said land."

Regarding the establishment of whenua topu trusts, this is provided for by section 216 of Te Ture Whenua Maori Act 1993:

U216 Whenua topu trusts (1) The Court may, in accordance with this section, constitute a whenua topu

Trust In respect of any Maori land or General land owned by Maori. (2) A whenua topu 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 iwi or hapu.

(3) An application for the constitution of a whenua topu trust under this section· (a) Shall be made in respect of all 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 /s sallsfied -(a) That the owners of the land to which the application relates have

had sufficIent not/ce 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 a whef)ua topu trust shall be held f9' Maori community purposes, or for such Maori community purposes as the Court may specify either on the constitution of the trust or on application at any time thereafter, and shall be applied by the trustees in accordance with Section 218 of this Act or as otherwise ordered by the Court for the general benefit of the members of the iwi or hapu named in the order.

(6) Except as provided in subsection (7) of this section, while a whenua topu trust constituted under thIs section remains In existence, no


person shall be entitled to succeed to any interBsts vested in the trustees for the purposes of the trust.

(7) Not withstanding anything in subsection (5), but subject to subsection (8), of this section, the Court may, either on the constitution of a whenua topu trust or on application at any time thereafter, order in respect of any specified interests vested ;n the trustees for the purposes of the trust that the interests shall be deemed to be held for the persons named or described in the order, and the income arising from those interests shall thereafter be paid to those persons and their successors accordingly.

(8) The Court shall not make an order under subsection (7) of this section unless it is satisfied that the order is necessary to protect the interests of any owner of a large interest in the land vested or to be vested in the trustees for the purposes of the trust. H (Emphasis added)

Case Law

U ••• the propensity of Maoris to act communally for the good of the people as a whole. as an incidence of custom on the one part. and as an incident of necessity where ownership has become fragmented on the other, must prevail over the propensity of the law to facilitate individual ownership and entitlement, and the furtherance of individual rights. H

In re Rangiwaea No 4 F16 No 481 (1977) 12 Whanganui Appellate Court MS 432 at 6.

The Maori Appellate Court has issued a number of decisions concerning partition of Maori freehold land that give rise to several important propositions which include the following:

(al partition in the Maori Land Court is not a matter of course to be given upon proof of a share entitlement and evidence as to the practicality and viability of the divisions proposed. Nor is the Maori Land Court an adversary Court reslricted to the evidence of values and the like as to these matters. In its consideration of the Maori interests, it has also an inquisitorial function and it is occasionally incumbent upon it to perform that function. In re: Manawatu/Kukutauaki 7E1B and 7E2B (1981) 13 Whanganui Appellate Court MS 76;

(b) partition involves consideration of a wide range of relevant matters and not simply one's entitlement based on shares. While partition may properly be seen as a remedy for owners whose individual aspirations compel a severance of the unity of possession endured by the group of owners as a whole, it is still incumbent upon the Court to balance the conflicting interests of the individual and the group to the fullest extent practicable and not to limit its broad overview to a consideration of whether the applicant for partition has sufficient shares for the area sought - in re: Mangaroa Taharoa 6B3 2Z2B (1982) 6 Rotorua Appellate Court MS 186;

(cl the discretionary nature of partition requires the lower Court to approach applications for partition with caution as a considered approach is essential· in re: Tarawera C6. (1982) 9 Takitimu Appellate Court MS 286:

" ... If this type of development [the use of trusts and incorporations] is to be a viable option available to Maori people of today, then the Court must tread warily with applications for partition, and. in its consideration of the interests of the owners as a whole, is bound to give full rate to any policy decisions of the owners at general meetings favouring development on a collective basis as a


preferred alternative to the fragmentation of titles to individual owners and to individual unit settlements

(d) the Court can refuse to exercise jurisdiction where it considers such exercise would be inexpedient in the public interest or in the interests of the owners, or in the interests of other persons interested in the land. In its "overview discretion" the Court is not restricted to the three classes of inexpediency set out in section 174 - in re: ManawatulKukutauaki 7Et Band 7E2B and in re: Motukawa 2B22A;

(e) the wording of section 174 is clear and unequivocal. If the Court finds that the proposed partition is inexpedient in the public interest, or in the interests of the owners, or in the interests of the other persons interested in the land it may exercise its discretion to refuse jurisdiction to partition. Those classes of interest are expressed in the alternative and the provisions of section 174 should be read disjunctively. This means that if the Court finds that partition is inexpedient in any of the above alternatives it may exercise its discretion 10 refuse jurisdiction - in re: Part Kaikoura No 4 Block (1993) 1 Waiariki Appellate MB 1 at 6;

(Q the Court should consider all matters which might, in the circumstances of the case, create inexpediency to the classes of persons mentioned in section 174 and indeed, any other form of inexpediency. The legislation clearly intends that the Court should seek an overview by bringing into account all matters that ought reasonably to be considered - in re: Part Kaikoura No 4 Block at 6;

(g) the test in section 174 is that of inexpediency. Inexpediency is a factor promoted by the proposal to partition which causes the owners to be left by the partition at a disadvantage. It is in that regard against the interests of the owners whichever owners are affected. A neutral finding or one of beneficial impact would not be inexpedient and would not upon the wording of the legislation entitle the Court to refuse to exercise jurisdiction. "In the interest of the owners" is not all the owners buI any or all the owners. It would render this section a nonsense il each and everyone 01 the owners had to be disadvantaged in order to allow refusal of the proposal to partition - in re: Part Kaikoura No 4 Block at 10;

(h) "Public interest" is to be given a wide meaning and might include, where Maori land is involved, any particular matter of Maori interest and whether the retention of the whole of the land in Maori ownership is desired - in re Tarawera C6;

(i) the definition of interests of "other persons interested in the land" can be narrow - in re: Motukawa 2B22A per Judge N F Smith at 26:

'The law recognises two categories of interests, legal ie expressly recognisable by statutes and eqUitable, ie not so recognisable but recognised by a Court of equity as being an interest in land. This latter term could describe a title which is defective in law. In the Words and Phrases Judicially Defined, Volume 3 page 78, "Interests" in relation to land, includes any estate In land and any right over land whether the right is exercisable by virtue of ownership, or an interest in land or by virtue of a license or agreement ...

(j) the phrase "other persons interested in the land" has also been defined more broadly, in the context of whom might be heard by the Court on an application


(in the same Appellate Court decision Motukawa 2B22A) per Judge K S Cull at 30:

"Both the Maori Land Court and the Maor; Appellate Court has retrained from defining with any degree of certainty the class of person coming within the meaning of the words ~other persons interested". Because of the nature of the jurisdiction of the Maor; Land Court it has been found desirable not to limit the class or classes of person who may claim to be interested in the land. As a consequence, the Court does allow the participation of interested persons in applications which come before it notwithstanding that they are not in the strict sense of the word parties to an application as these words may be understood in other jurisdictions. "

The principles laid down in those earlier judgments of the Maori Appellate Court have been followed in subsequent decisions of that Court. Three particular cases that come to mind are in fe: Waimanu 2B (1987) 13 Aotea Appellate MS 156, Part Kaikoufa No 4 Block referred to previously and in fe Waihi Kahakaharoa lZ2B2B 14 Aotea Appellate Court MS 38. In the Waimanu 2B case the Appellant attempted to partition three areas of 4.8185 hectares out of a total block of 28.25 hectares into separate titles. The area sought was the preferred site for building whereas that remaining was considerably less suitable. The Appellant and his supporters wanted the prime area overlooking Lake Rotoaira. The lower Court refused the application for partition on the grounds that in the interests of the owners it would inexpedient to allow the whole of the land on the lake side of the highway to be divided between three owners. In upholding the lower Court decision and dismissing the appeal, the Appellate Court stated at page 2-3:

" ... The Judge below concluded that the three applicants werB upicking the eyes out of the block" (our words); he was of the view that the land the applicants sought, because it looked out over Lake Rotoaira, had a potential that all the owners should share in if it were to be developed; he went on to say that it would be unfair to locate the balance of owners in this steep, less attractive area across the highway ... it is our considered view that these are matters that the Judge below was obliged to take into account when considering whether the application should be allowed and we will not interfere with his conclusions .•

Then in the important Kaikoufa No 4 decision, the Appellate Court was faced with an appeal against a lower Court decision to refuse an application for partition. In upholding that deCision, the Appellate Court underscored once again the nature of the discretion and the matters to be considered in the exercise of such discretion at 12-13:

'There are many factors which can determine the impact of partition. These include the size of the block, the area to be partitioned, location, historical, ancestral or other special significance, and consensus of owners. These vary from case to case ...

... In the Motukawa and Manawatu·Kukutauaki cases referred to earlier, there is considerable reference to the importance of ancestral land and the desirability of allowing Maori to maintain their association with it. This Court sees those comments appropriate and applicable in this case and had it been required to review the decision of the Lower Court on the merits, it would have been in agreement with the findings of the Lower Court but notwithstanding that there may be some benefit in partition, the loss of ancestral (and to the residue owners would be such that in the interest of the owners, partition is inexpedient. This fact of inexpediency alone, despite the overview of all considerations, would then be enough for this Court, to decide in the circumstances of this case to refuse to exercise the discretion to partition. "

Minu(e Book: 98 WH 285

Waihi Kahakaharoa 1 Z2B28 follows the principles laid down in the earlier Appellate Court judgments. In upholding a decision to refuse partition it also referred to the particular spiritual and cultural considerations relevant to the exercise of the jurisdiction to partition at 9 of the typed decision:

"In the presenl case the Lower Court found that this land had spiritual and ancestral significance and that partition was inexpedient in the interests of the owners. In the Court's view given the history of the land, its proximity to the Waihi Marae and reserves and its association with Ngati Turumakina hapu there was ample evidence before the Lower Coult to suppolt such a finding .•

The principles identified from the decisions under the 1953 Act are respectfully adopted here.

It is pertinent to acknowledge at this juncture perhaps the most well known decision in recent times concerning partition, Brown v Maori Appellale Court [2001J 1 NZLR 67. Ultimately that litigation was dealt with under Te Ture Whenua Maori Act 1993 and so the judgment is of limited relevance to the present application. For completeness, I also acknowledge that Mr Karena has also referred to a number of additional decisions which have now been reviewed. However, most of those judgments are, with respect, not entirely relevant to the principal issue before this Court: the exercise of the discretion to partition.

Discussion

The progress of this application has been an ongoing saga for all concerned, occupying the parties and the Court for many years. Yet despite the time that has elapsed, the pOSitions have remained entrenched. The Applicants require nothing less than the partition of their interests. Those opposed have been equally unwavering in their dissent - they remain implacable. The parties have been determined and at times impassioned in their advocacy. Some of the material before the Court discloses a degree of rancour that has underscored the seriousness of the application and the frustrations all have felt. Regrettably, it would appear that compromise has been a largely unexplored zone and so resolution remains elusive.

Nonetheless, despite these issues the Applicants are entitled to have their proceedings determined according to law. In general terms the Applicants appear to have complied with the reqUirements of the 1953 Act and the directions of this and the Appellate Court. The costs of survey and related expenses, according to Mr Karena, are in hand. The Council has approved in principle a limited access roadway as sought by the Applicants. The Wainui Hood successors have unanimously confirmed their support as have other owners concerned with the application with the exception of Mr Davis. I have not been able to locate on the Court file any reaffirmation or otherwise of his support since the issue of the Appellate Court decision on 3 December 2002 either in writing or in person at the two hearings I convened. Then there are the changes in support within the Taupiri Karena whanau which will be referred to later in this decision.

The Whenua Topu Trust

Another preliminary matter for disposal before considering the essence of the application is the eHect of the Trust. Mr Karena claims that it was established without the knowledge and consent of the Applicants. He further says that if the Partition Application is unsuccessful, he intends to take whatever steps are necessary to have the Trust terminated in respect of the Land or at the very least have the current

Minule lJook: 98 WH 286

trustees removed. Mr George submits that with the Trust in place since 1997, success ions should not have occurred, per section 216(6). The result should have been therefore, that the level of support for partition claimed by Mr Karena and the Applicants would be considerably less.

Dealing with each point in turn, the establishment of the Trust is a fact. As Mr Karena must have been aware of the existence of the Trust since at least 2001 when its opposition was made clear at hui by Mr George, it might have been assumed that steps would have been taken then to review the creation of the Trust. In any case, various remedies are available to those who may not agree with its establishment. No such applications are before me so this matter cannot be dealt with here. Regarding success ions, strictly speaking, insofar as they concerned land administered by the Trust, they should not have been processed. However, like the Trust, they are a fact and it may be that sections 216(7) and (8) are relevant in this context. The affected parties will need to consider their positions in time.

In parallel of course are Mr George's claims that the reservation over the Land and Karaka HUarua B should not have been removed as the beneficiaries to those reservations did not as a whole agree to any such lifting. He says that applications to reinstate the Maori reservations over Karaka Huarua A and 8 will be filed. Once again, that is a matter for the relevant parties to consider in due course. There are no such applications before me now, so no further steps can be taken at this juncture. The real point is that I do not consider any of these matters and the respective positions of the parties on them fatal to the application before the Court.

The Treaty of Waltangi

Mr Karena cites the Treaty of Waitangi in his submissions referring to rangatiratanga over land, presumably to support the Applicants' desire for authority over the areas sought for partition. Vet the real point is that the Treaty refers almost exclusively to hapu, not individuals, or whanau or even iwi. In other words, its terms are premised in notions of collective not individual Maori custodianship over resources. That the subsequent history of Maori land dispossession puts paid to those promises (largely through the device individualisation promoted by legis/ation and the predecessor of this Court) does not diminish the fundamental primacy of hapu in Treaty terms. Further, it can also be said that one of the principal distinguishing featUres of Maori land and its care and protection by present generations is its essentially communal nature and the notions of collective development inherent in such tenure. In my view, the Maori Appellate Court judgements cited here support this general perspective.

Evidence of support

As a further preliminary point, I note that assertions of representation for owners in the Land have been made from time to time during the course of these proceedings. However, where there is no proof of a legal right to represent an owner by, for example, power of attorney, a solicitor-client relationship, as an executor and trustee or by leave of the Court then I cannot accept that such authority exists without a proper evidential basis for so doing. While the Court has some latitude in terms of what evidence it can and cannot rely on·, given the highly contested nature of this application I take the view that a more exacting approach is appropriate.

In the context of support or opposition to the Partition Application as at 1 February 2003, the Court received a number of letters and statements from owners in the Land or successors to deceased owners. Those details are set out below along with a summary of the respective positions of owners:

Whangaru(u ki Ngali Wai Trust Board


Clearly some parties supported or opposed the application at various stages but what matters now is the positions of the parties as at 1 February 2003. Not everyone who supported or opposed has confirmed their positions as directed by the Appellate Court and consequently, I cannot take their views into account. I can only consider the views of those owners who have now complied with the Appellate Court's direction. Florence Pita signed a lelter dated 29 January 2003 confirming support but at subsequent hui, her intentions appear more ambivalent, according to the records of those meetings. Mr George for the Trust has repeatedly asserted that Mrs Pita does not support partition and his latest submission to that effect was dated 30 May 2003. He also refers to her opposition at the hui held on 22 March 2003 yet my reading of the record of that meeting does not support such an interpretation. Ultimately, all I can rely on is the evidence.

Deborah Mooney claimed to speak on behalf of her siblings Susan Burns, Lance, Bill, Richard, Kim and John Karena being the children of Taupiri's Karena's son Hone. However, in the absence of corroborating evidence, I am reluctant to rely on such assertions. Similarly, Mr Karena's initial claims to represent the entire whanau of Taupiri Karena must likewise be discounted in view of the succession that has occurred and the letters of opposition that have been sent to the Court by his siblings and the extended Karena whanau. Some of the children of Alan Karena who have written to the Court, namely Belinda Jones, Sandra Brown and Lee Anne Karena, have been both conditionally supportive and in the case of Lee Anne opposed to the application. Mr Davis' position remains unciear and the Applicants should have provided a signed statement from him confirming his support. I cannot find any such statement on the Court file and he did not appear before me to verify his stance.

Views of the beneficial owners

The position of the Applicants and those opposed has been unequivocal. However, the views of beneficial owners as a whole remain a more problematic issue. It is


important to remember that there are some 220 owners in the Land holding a total of 7.25 shares. Very few owners, outside of the immediate participants to these proceedings, have actually attended any hui, site visit or Court sitting. As is frequently common with Maori land administration the bulk of the owners, for whatever reason, simply do not participate. Their support or opposition cannot simply be assumed, notwithstanding Judge Culi's view in the Motukawa 2822A decision. The opposition of the Trust as successor to the Whangaruru Ngati Wai Trust Board was made clear by Mr George. Interestingly, the schedule of interests for the Trust discloses that it is a trustee over the Land but not an absolute owner. Nonetheless, apart from Mr Karena there was little real opposition to Mr George's claims to represent the Whangaruru Ngati Wai Trust Board, the Trust or the iwi generally. There is certainly no evidence before the Court contradicting Mr George's claims to represent the Whangaruru Board and indeed, the majority of Ngati Wai ki Whangaruru iwi who appeared before me appeared to support his stance. Other owners In opposition also made their views known, often in forceful terms.

It is also important to note that the hui convened were not meetings of assembled owners in the context of Part XXIII of the 1953 Act as they were not called in accordance with the relevant regulations. If they had been then suitable resolutions might have been procured . With the Trust in place since 1997, one would have expected that body to call the hui as the administrator of the Land. However, it appears that neither has occurred. That said, the most recent hui were called at the direction of the Court and were conducted by Court staff. From the records of those hui, it is evident that invariably support and opposition was expressed concerning the Partition Application. The Applicants have been fairly consistent in their support while those opposed have come largely, but not exclusively, from the iwi and persons not beneficial owners in the Land. I have also discounted the views of those who purported to represent other owners without any legal authority for so claiming, consistent with the general approach applied to the Applicants. This included claims to represent owners at hui and before the Court.

Section 174

The area sought for partition includes the preferred location for building, as identified during the site inspections. That reality is likely to have figured in the Applicants' assessment for selecting the proposed area. If the partition were to proceed, it is evident that the residue land would largely be unsuitable for dwellings with its limited access, water supply and dearth of building sites. The report prepared in connection with Nga Whenua Rahui also confirms the unique features of the Land from conservation, environmental and public interest perspectives. The owners have to some extent commented those matters, Te Rapu Pit man in particular. Then there are the cultural considerations that affect the owners. All have acknowledged that the Land is of considerable importance in cultural terms to both the owners and to the iwi. The Applicants have said those concerns can be accommodated without having to compromise over partition while other owners have disagreed with that stance.

On the issue of support for the application, the evidence and the weight it is to be given, there is no doubt that the Applicants have support. The owners they embody and represent command a significant proportion of shares' in the Land. But that support is not even a bare majority of either the individual owners or by shares. Mr Davis' position remains unclear, despite the explicit direction of the Appellate Court that support for the application be clarified. The withdrawal of support by members of the Karena whanau and a lack of clarity as to the position of the rest of the Taupiri Karena descendants has also been considered. I do not accept the submission that the Applicants have approximately 46% of the shares in the land in their camp.


While they retain a sizeable proportion of shares in support, it is not 46%. The reality is that there is no majority either in shares or by individual owners in support of or opposition to the Partition Application. That the Applicants have more shares in support than those opposed has been taken into account and while that fact is important. in terms of the evidence as a whole and all relevant considerations, it is not determinative, per Waihi Kahakaharoa lZ2B2B at page 9 of the typed decision.

This is not simply a farming block to be shared between owners with competing development plans, for example forestry over dairy. It represents a desire to effectively almost cut in half an area of some 90 hectares, a unique piece of coastal land lor the benefit of five owners and their whanau on the one hand leaving a residue of some 200 or so owners in the balance area. As mentioned, this is no ordinary piece of Maori freehold land. It has distinctive scenic, conservation and environmental features that have been identified by the owners in evidence before the Court and in the site inspection reports. Its significance was such that it was overlaid with the status of a Maori reservation, since cancelled but which may yet be restored. It is also interesting to note that the owners have never had permanent residences on the Land that have endured to the present. The site inspection reports make that point very clearly. It is also relevant that the Applicants can exclude the residue owners from the area for partition including sites of cultural significance. Whether they intend to or not is irrelevant - if the Land is severed, they will have the legal right to do so. If the application is granted, the ability of the residue owners to "maintain the association" with the area selected for partition will be irrevocably compromised. The Applicants have made it plain that they do not want to suHer the "interferences" of the other owners. As mentioned, the residue owners will also be disadvantaged in terms 01 land available for building or camping as the Applicants will have secured the prime sites.

In the face of the opposition from other owners and all other relevant considerations, taking a broad overview, in the careful balancing required, it is difficult to see how the application can succeed. In my view, the submissions of the Appellants concerning section 174 of the 1953 Act are not compelling. I am satisfied that there will be inexpediency as defined by the Maori Appellate Court lor the owners in the Land if the application were granted in that the residue owners will be disadvantaged. I am not persuaded that such disadvantage to the residue owners can be mitigated sufficiently to enable partition to occur. That is sufficient to activate the discretion contained in section 174 to enable the Court to refuse to exercise its jurisdiction to partition, per Part Kaikoura No 4 at 6-10. It is for this reason that the application is declined.

In addition, I am also satisfied that inexpediency would also result for "other persons interested in the land" namely the members of the hapu and iwi who aHiliate according to tikanga Maori to the Land who are not beneficial owners. In this context I adopt the definition of Judge Cull in Motukawa 2B22A and not that of Judge Smith. I note that Chiel Judge Durie, although dissenting on the outcome, nonetheless was supportive 01 Judge Cull's view that the phrase "other persons interested in the land" was to be given a wide meaning. Further, if the definition of ''public interest" taken from the re: Tarawera C6 decision is followed, then that too would be a ground for declining exercise of jurisdiction to partition. In other words, any particular matter of Maori interest can be included in the items for consideration in terms of public interest. The concerns raised by the submissions of Mr George and those opposed to the application clearly fall within the ambit of ''particular matter of Maor; interest".

Minute Book: 98 \VB 290

Decision

Following careful consideration of the evidence and submissions before the Court, the conclusion arrived at is that the Partition Application if granted will be inexpedient in the interests of the owners. Consequently, I decline to exercise jurisdiction to partition.

Reference was made to the lifting of the reservation over the Land and the creation of the Trust in 1991-1992 and 1997. While disquiet was certainly expressed, and at times in forceful terms, th is Court is functus officio on those matters. It would therefore be inappropriate for me to comment further.

Similarly, while the Partition Application is at an end, there are of course other devices in Te Ture Whenua Maori Act 1993 that may assist the Applicants to realise their aims. They may wish to explore those possibilities in due course.

Summary

For the reasons stated, pursuant to section 174 of the 1953 Act, the exercise of the discretion to partition is declined. The Partition Application is therefore dismissed.

Dated at Rotorua this .2""'-h.-, day of 2004

Documents

Minute Book: 98 WH 273 TAITOKERAU DISTRICT · Minute Book: 98 WH 275 Trevor Richards ("the Trustees.") The Trust was established on 3 November 1997, 85 Whangarei MS 51. Karaka Huarua