IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
CIV-2014-454-31
[2015] NZHC 2535
UNDER
the Judicature Amendment Act 1972
IN THE MATTER
of a decision of the Māori Land Court
dated 26 November 2012 and actions of
the other defendants between that date and
4 August 2013
BETWEEN
COLIN POTANGOTANGO HANITA
PAKI
Plaintiff
AND
MAORI LAND COURT
First Defendant
JONATHAN PROCTOR AND OTHERS
Second Defendants
HOROWHENUA DISTRICT COUNCIL
Third Defendant
HORIZONS REGIONAL COUNCIL
Fourth Defendant
THE LAKE HOROWHENUA DOMAIN
BOARD
Fifth Defendant
DIRECTOR-GENERAL OF
CONSERVATION
Sixth defendant
Hearing:
23 March 2015
(Final post-trial materials received 17 June 2015)
Counsel:
G D S Taylor for Plaintiff
No appearance for First and Second Defendants
D G Randal and L M Bazalo for Third and Fifth Defendants
S Johnston for Fourth Defendant
K Muller and H Baille for Sixth Defendant
Judgment:
14 October 2015
PAKI v MAORI LAND COURT [2015] NZHC 2535 [14 October 2015]
JUDGMENT OF CLIFFORD J
TABLE OF CONTENTS
Introduction ............................................................................................................. [1]
Context ..................................................................................................................... [9]
Participation at the hearing ................................................................................. [41]
Did the Māori Land Court have power to declare terms for the Lake
Horowhenua Trust as it purported to do in the 2012 Decision? ....................... [51]
If the Māori Land Court did have that power, is its decision doing so void for
error in law? .......................................................................................................... [92]
Was the Domain Board properly constituted when it decided to enter into the
Accord? .................................................................................................................. [95]
Costs ..................................................................................................................... [106]
Introduction
[1]
The plaintiff, Colin Paki, is a member of the Muaupoko iwi of Horowhenua.
[2]
The bed of Lake Horowhenua, together with what is now known as the
dewatered area1 (a further one-chain strip of land around the original margin of the
Lake and the bed of the Hokio Stream and certain adjoining lands) are owned by the
second defendants in trust (the Lake Horowhenua Trust) for members of Muaupoko
who have beneficial interests in land within the Horowhenua XI block.
[3]
Mr Paki is one such member of Muaupoko.
[4]
Lake Horowhenua is a much degraded, shallow, coastal lake. It was not
always so. In August 2013 the second to sixth defendants entered into an accord
providing for the restoration of Lake Horowhenua as “taonga that holds pride of
place in the Horowhenua community” (the Accord).
[5]
In these proceedings Mr Paki challenges the Accord by reference to what he
terms six reviewable actions. In effect he says that:
1
The “dewatered” area was created when the Lake level was lowered by catchment board
dredging of the Hokio Stream, which runs from the Lake to the sea.
(a)
the trustees of the Lake Horowhenua Trust, the second defendants,
acted unlawfully in agreeing to the Accord, because the Lake
Horowhenua Trust is currently unlawfully constituted by reason of the
unlawfulness of the Māori2 Land Court’s decision on 26 November
2012 (the 2012 Decision)3; and
(b)
the Domain Board, the fifth defendant, acted unlawfully when it
decided to enter into the Accord, because it did not act in accordance
with provisions relating to the role of the representatives of
Muaupoko.
[6]
By agreement, the parties have asked the Court to consider, as provided by
subpart 4 of Part 10 of the High Court Rules, three preliminary questions. Those
questions are:
2
3
4
5
6
(1)
Whether the Māori Land Court had jurisdiction under either of
Te Ture Whenua Māori Act 1993 or the Trustee Act 1956 to
constitute4 a trust in respect of the trust established by s 18 of the
Reserves and Other Lands Disposal Act 1956 or to alter its terms
under those Acts.
(2)
Whether the Māori Land Court, when purporting to constitute the
Lake Horowhenua Trust, failed to consider a relevant factor, namely
the Reserves and Other Lands Disposal Act 1956 and considered an
irrelevant factor, namely the 1984 decision,5 thereby rendering the
Court’s decision void.
(3)
Whether, in order to make the decision to enter the Accord, the
Domain Board needed to be constituted of one more Muaupoko
member than Council members plus a Department of Conservation
representative as chair.6
I have followed the Māori Land Court and adopted the use of the macron in the word “Māori”
throughout this judgment.
Procter and others – Horowhenua 11 (2012) 293 Aotea MB 165.
The use of the word “constitute” is a little presumptive. The Lake Horowhenua Trust was
originally constituted, as discussed in more detail below, by the Māori Land Court in 1898. It
was confirmed and/or reconstituted by the Reserves and Other Lands Disposals Act 1956. One
central issue here is the proper characterisation of the effect of the 1956 legislation as regards the
Lake Horowhenua Trust.
The phrase “the 1984” decision refers to a decision of the Māori Land Court of 3 December that
year (Alex Maremare – Horowhenua 11 (1984) 87 Otai MB 252) which, amongst other things,
appointed seven new trustees to the Lake Horowhenua Trust pursuant to s 443 of the Māori
Affairs Act 1953.
By this is meant whether at all meetings of the Domain Board, there must be an equal number of
Muaupoko representatives as those of the Horowhenua District Council and the Department of
Conservation (taken together).
[7]
The parties consider that such questions can be answered without discovery
or affidavit evidence. Once this Court has provided the answers to those questions,
some form of alternative dispute resolution is proposed.
[8]
In order to answer those questions, however, some context is required. That
context is the history of Lake Horowhenua as found in the legislative record, and in
the numerous decisions of the Māori Land Court dealing with the Lake. That history
has been set out in detail on a number of occasions in the Māori Land Court. 7 I do
not want to record that history in greater detail than is necessary. Moreover, that
history is complex and not easy to record with great certainty. However, those
preliminary questions, and in particular the first, can only be answered when that
legal history is properly understood.
Context
[9]
Lake Horowhenua has long been a source of contention.
[10]
Since at least 1872 the Native Land Court, the Māori Appellate Court and
more recently the Māori Land Court have had before them a series of competing
claims relating to the Lake and surrounding Horowhenua land.
[11]
In 1873 the Native Land Court determined that Muaupoko were the owners
of the Horowhenua Block, of which Lake Horowhenua and its environs formed a
part, save for a small block of 100 acres known as Raumatangi which vested in
certain Ngati Raukawa. Subsequently a certificate of title to the Horowhenua Block
was issued in the name of Major Kemp/Meiha Keepa, and a list of the names of the
143 persons considered at that time to be Muaupoko were endorsed on the back of
that certificate.
That decision caused controversy, both within Muaupoko, and
between Muaupoko and other Māori.
[12]
The Horowhenua Block was partitioned by the Native Land Court in 1886.
Pursuant to that partition, a division of the Horowhenua Block called Horowhenua
No XI (which includes Lake Horowhenua and its surrounding lands, including the
7
See, for example, by Judge Smith in 1982 Horowhenua 11 (1982) 84 Otaki MB 258 and Judge
Marumaru in Horowhenua 11 (1989) 10 Aotea MB 177.
Hokio Stream from the Lake to the sea) was vested in Meiha Keepa and Warena
Hunia. A certificate of title under the Land Transfer Act 1882 subsequently issued in
their names. Warena Hunia later applied to the Native Land Court for a further
partition of Horowhenua No XI between himself and Meiha Keepa, and attempted to
deal with his share as his own property. Meiha Keepa, and certain Muaupoko,
brought suit on behalf of all Muaupoko interested in Horowhenua No XI for a
declaration that Keepa and Hunia were trustees of that land for the 143 beneficiaries.
[13]
In Warena Hunia v Meiha Keepa,8 the Court of Appeal upheld the decision of
Chief Justice Prendergast that the registered proprietors, Keepa and Hunia, were
indeed trustees. At the same time, the Court said that any terms of trust were too
uncertain to be enforced. As the original vesting of No XI in Hunia and Keepa had
been to effect the terms of a voluntary grant made by the beneficial owners, the
Court found that grant had been on terms that the grantors were to retain that
beneficial interest. Therefore, the failure of that trust gave rise to a resulting trust in
their favour. “Practically the result will be the same as if the Trust had been that
insisted on by [Meiha Keepa]”.9 The Court of Appeal found that the trustees held the
land for the parties in whom, and to the extent to which, the property in the land was
vested before the allotment. That is, it was held on trust for those Muaupoko who,
but for their consent to the allotment, would have had their rights ascertained and
defined by the Land Court.
That task of definition was, therefore, still to be
performed.
[14]
The Court of Appeal’s decision was released on 17 May 1895.
On 31
October that year Parliament passed the Horowhenua Block Act 1895. That Act
froze dealings in Horowhenua Block lands, declaring those lands to be absolutely
inalienable in any manner howsoever until after the last day of the then next session
of Parliament. That Act also provided for a Royal Commission (the Horowhenua
Commission) to be established to inquire into the sale by Māori of Horowhenua
Block lands and as to the trusts, if any, to which those lands were subject.
8
9
Warena Hunia v Meiha Keepa (1895) 14 NZLR 71 (CA).
At 95.
[15]
The Horowhenua Commission reported to the Government in May 1896. In
doing so, it noted Muaupoko’s traditional occupation of the lands comprising the
Horowhenua Block, their dispossession from those lands by Ngati Raukawa and
Ngati Toa and their return to those lands with the consent of the Ngati Raukawa
chief, Te Whatanui. Of the Native Land Court’s 1873 decision it observed:10
Te Whatanui died, and after his death, trouble began between the Muaupoko,
who asserted that the land was theirs, and members of the Ngatiraukawa,
who had settled upon it. Houses were burned, and ultimately a Native Land
Court sat in 1873, to investigate the claims of the different tribes to the
ownership of, amongst other lands, what is now the Horowhenua Block.
The result of the proceedings in that Court was to adjudge the Muaupoko
Tribe the owners of the Horowhenua Block, with the exception of a small
block of 100 acres known as Raumatangi, situated between the Hokio
Stream and the Horowhenua Lake, which was declared to belong to certain
representatives of the Te Whatanui already referred to. The Court of 1873
having found the Muaupoko entitled as already mentioned, directed a
certificate of title to issue under the 17th section of “The Native Lands Act,
1867,” in the name of Kemp, and endorsed on the back of that certificate the
names of the persons who were found to be members of the tribe.
It is a matter of great regret that much of the difficulty which has arisen in
connection with this block, is directly traceable to the non-exercise by the
Native Land [Court] the powers vested in them.
In 1873 the Court did not, as it seems to us it should have done, ascertain the
particulars of the interests of the persons named in, and on the back of, the
certificate which it ordered to issue.
[16]
It is more than a little ironic that these proceedings involve a challenge to
powers exercised by the Māori Land Court in 2012 to resolve current difficulties that
can be traced back to the very difficulty which the Horowhenua Commission
confronted in 1896, and which it said was, in turn, directly traceable to the failure of
the Native Land Court to exercise powers vested in it.
[17]
The Commission made various findings as to the ownership, both legal and
beneficial, of the various subdivisions of the Horowhenua Block that by then existed,
including Block XI. The Horowhenua Block Act 1896 was enacted to give effect to
those findings. In particular, the Appellate Court was to deal with the claims of 48
persons, named in the Second Schedule to that Act, as persons whose names were
“omitted from the Original Title to the Horowhenua Block”. Pursuant to that Act,
10
Report and Evidence of the Horowhenua Commission (AJHR, 1896, Vol III) at G-2 at 4.
the Māori Appellate Court in 1898 determined the owners of some 13,000 acres of
Block XI, including Lake Horowhenua, and the relative shares of those owners.11
[18]
In its decision the Appellate Court dealt with the Block XI lands by reference
to three schedules, Schedules B, C and D.
Schedule B referenced Block XI,
“exclusive of the state farm and the area of 210 acres allotted to Raukawa (being the
land described in the Fifth Schedule to the Horowhenua Block 1896) and of the
Horowhenua Lake and the reservation of one chain around the Lake and the
wasteland of … sand drift”.12
[19]
Schedules C and D then separately referenced:
All that parcel of land covered by water and known as the Horowhenua Lake
and a parcel of land around the said Lake, one chain wide estimated in the
aggregate to contain one thousand acres (1,000 acres) (Schedule C) and
All that parcel of land situated on the western side of subdivision XI adjacent
to the sea coast and covered with sand drift estimated to contain two
thousand and seventy eight acres (2,078 acres). (Schedule D)
[20]
The body of the order confirmed the Appellate Court’s 4 March 1887
decision that Keepa and Hunia were owners on trust. It vested the land described in
Schedule B in some 81 named persons in fee simple as tenants in common in the
proportions set out in Schedule A. It then vested the lands referenced in Schedules C
and D in those same persons, again in fee simple as tenants in common, but this time
in equal shares.
[21]
Two weeks later, on 19 October 1898, the Native Land Court ordered, as part
of the partition of Block XI, that the bed of Lake Horowhenua (some 901 acres) be
vested in 14 Muaupoko as a reserve for the purpose of “a Fishery easement for all
the members of the Muaupoko Tribe who may now or hereafter own any part of
Horowhenua No XI”,13 subject to the provisions of s 7 of the Native Trusts and
Claims Definition and Registration Act 1893. That section provided:
7.
At the close of the proceedings upon an investigation of title to
Native land, or during proceedings upon partition, the Court may, if a
11
12
13
Hunia – Horowhenua 11 (1898) Otaki Appellate MB 377.
Those are my transcriptions of the copies of the handwritten original entries in the minute book.
Horowhenua 11 (1898) 37 Otaki MB 10.
majority in number of the Native owners signify their assent thereto in
writing, order that a part of such land or Native land be set apart and vested
in one or more persons, who shall hold the same upon trust for such
religious, educational, or other purposes of general or public utility as shall
be specified in such order. The land the subject of such order shall be and
remain incapable of alienation in any way whatsoever without the consent of
a Judge; such consent shall not be given unless a Judge is satisfied that the
land is no longer needed for the purposes for which it was originally set
apart as aforesaid. The Court may, on the death of any of the persons so
appointed, make other appointments in substitution thereof, and may, for
good cause shown, remove any person in whom the land may be vested by
virtue of any order, and appoint some other person as a substitute for the
person so removed, and the parcel of land shall thereupon vest in the person
or persons so appointed without any conveyance, and shall be held by him or
them subject to the trusts expressed in the original order.
[22]
It would therefore appear that, when rights to ownership of Horowhenua No
XI generally were determined in 1898 by the Māori Appellate Court, it was agreed
that the Lake should not be subject to the process whereby alienable titles under the
Land Transfer Act 1885 would issue, but rather should be held inalienably by the 14
trustees on trust for all the Muaupoko owners of Horowhenua No XI for the
purposes of fishing.
[23]
The lack of any detail regarding the constitution and operation of that trust is
important. That is the first source of contention reflected in these proceedings.
Inevitably, difficulties arose. A recent judgment of Judge Harvey concerning Lake
Horowhenua confirms that:14
Proceedings concerning Lake Horowhenua have been before the courts since
the late nineteenth century. Issues of mandate, control and authority have
continued to vex the owners of the land, the beneficiaries of the trust and the
tribal custodians for generations.
[24]
The origins of the second source of contention regarding Lake Horowhenua
reflected in these proceedings can be traced to 1905. The Horowhenua Lake Act of
that year declared the Lake bed and certain surrounding land to be a public recreation
reserve under the control of a board to be appointed by the Government. The long
title and preamble to that Act read:
An Act to make the Horowhenua Lake available as a Place of Public Resort
14
Taueki v McMillan and ors – Horowhenua 11 (2014) 324 Aotea 144 at [124]..
WHEREAS it is expedient that the Horowhenua Lake should be made
available as a place of resort for His Majesty’s subjects of both races, in as
far as it is possible to do so without unduly interfering with the fishing and
other rights of the Native owners thereof.
[25]
That Act’s operative provisions read:
2.
3.
[26]
The Horowhenua Lake, containing nine hundred and fifty-one acres,
more or less, is hereby declared to be a public recreation reserve, to
be under the control of a Board, one-third at least of the members of
which shall be Māoris, to be appointed by the Governor, subject to
the provisions following:(a)
The Native owners15 shall at all times have the free and
unrestricted use of the Lake and of their fishing rights over
the Lake, but so as not to interfere with the full and free use
of the Lake for aquatic sports and pleasures.
(b)
No person shall be allowed to shoot or destroy birds or game
of any kind on the Lake or within the area of the said lake
reserve.
The Governor may acquire from the Native owners any area not
exceeding ten acres adjacent to the lake as a site for boat-sheds and
other buildings necessary to more effectually carry out the
provisions of this Act.
That Board was to have the powers and functions of a domain board under
the Public Domains Act 1891. As can be seen, the Lake Horowhenua Act did not
directly address the relationship between the (trustee) owners of the Lake bed, the
beneficiaries of that trust, and the Domain Board – including its three Māori
members.
[27]
Not surprisingly, subsequent years saw growing conflict between Muaupoko,
the Domain Board and various territorial authorities.
[28]
Doubts arose as to the ownership of the Lake bed and the surrounding areas.
A Committee of Inquiry was appointed in 1934 to investigate these problems. The
Committee made various recommendations, including that ownership of the land
covered by the Lake and the surrounding area be confirmed as belonging to the
trustees of the Lake Horowhenua Trust. Disagreement on other matters meant that
recommendation was never given effect.
15
The term “the Native owners” is not defined in the Horowhenua Lake Act.
[29]
Legislation in 1916,16 191717 and 192618 addressed various aspects of the
complex inter-relationships of the Māori owners and the Domain Board, and the land
they owned.
[30]
Over time, drainage work on the Hokio Stream lowered the level of the Lake,
destroying shellfish beds and creating a “dewatered” area around the Lake. The
adjoining local sewerage treatment plant discharged untreated sewerage into the
Lake during floods. The Lake was degraded.
[31]
The governance arrangements for the Lake became dysfunctional.
The
original trustees of the Lake Horowhenua Trust all died, without replacement. By
the late 1930s, the Domain Board had ceased to function as no Māori were willing to
accept nomination to it.
[32]
In 1951 the Māori Land Court, acting under s 29 of the Māori Land Act 1931,
appointed 14 new trustees as owners of the Lake bed.19
[33]
In 1956 a concerted effort was made to resolve matters. The Reserves and
Other Lands Disposal Act 1956 (the ROLD Act 1956) addressed the legal status of
some 21 areas of land throughout New Zealand.
Section 18 dealt with Lake
Horowhenua. It recorded the difficult history of the Lake since the Māori Appellate
Court’s 1898 partition order. Having defined the terms “Lake”, “Dewatered area”
and “Hokio Stream”, s 18(2) first, and “notwithstanding anything to the contrary in
any Act or rule of law”:
(a)
declared that the Lake bed, the islands in the Lake, the dewatered area
adjoining the Lake, the one chain strip around the original margin of
the Lake and (subject to some exceptions) the bed of the Hokio
Stream and the one chain access strip on the north side of that stream,
were and always had been owned by “the Māori owners”, that is, the
16
17
18
19
Reserves and Other Lands Disposal and Public Bodies Empowering Act 1916, s 97.
Reserves and Other Lands Disposal and Public Bodies Empowering Act 1917, s 64.
Local Legislation Act 1926, s 23.
Horowhenua 11 (1951) 38 Wellington MB 65.
Muaupoko recognised as the owners of any part of Block XI and, as
such, the beneficiaries of the Lake Horowhenua Trust; and
(b)
vested that land in the 1951 trustees “in trust for the said Māori
owners”.
[34]
Reflecting the complexity of rights by then existing as regards Lake
Horowhenua, s 18 went on to provide:
(4)
Notwithstanding the declaration of any land as being in Māori
ownership under this section, there is hereby reserved to the public
at all times and from time to time the free right of access over and
the use and enjoyment of the land fourthly described20 in subsection
thirteen of this section.
(5)
Notwithstanding anything to the contrary in any Act or rule of law,
the surface waters of the lake together with the land firstly21 and
fourthly described in subsection thirteen of this section, are hereby
declared to be a public domain subject to the provisions of Part III of
the Reserves and Domains Act 1953:
Provided that such declaration shall not affect the Māori title to
the bed of the lake or the land fourthly described in subsection
thirteen of this section:
Provided further that the Māori owners shall at all times and
from time to time have the free and unrestricted use of the lake
and the land fourthly described in subsection thirteen of this
section and of their fishing rights over the lake and the Hokio
Stream, but so as not to interfere with the reasonable rights of
the public, as may be determined by the Domain Board
constituted under this section, to use as a public domain the lake
and the said land fourthly described.
(6)
[35]
Nothing herein contained shall in any way affect the fishing rights
granted pursuant to section nine of the Horowhenua Block Act 1896.
The new Domain Board was to consist of:
18(8)
(a)
20
21
Four persons appointed by the Minister on the recommendation of
the Muaupoko Māori Tribe:
The land “fourthly described” comprises the dewatered area, together with part of the one-chain
strip around the original margin of the Lake.
The land “firstly described” comprises, as best as I understand matters, land the Crown had
acquired pursuant to s 3 of the Horowhenua Lake Act 1905.
[36]
(b)
One person appointed by the Minister on the recommendation of the
Horowhenua County Council:
(c)
Two persons appointed by the Minister on the recommendation of
the Levin Borough Council:
(d)
The Commissioner of Crown Lands for the Land District of
Wellington, ex officio, who shall be Chairman.
The Lake Horowhenua Trust therefore has its origins in both the Native Land
Court’s 1898 partition decision and s 18 of the ROLD Act 1956. In a 2014 decision
on an application to set aside the Lake Block as a Māori reservation as a wahi tapu, 22
Judge Harvey reviewed the various proceedings he had presided over concerning the
Lake in the preceding ten years. Reflecting those origins, the Judge commented:
[80]
On reflection, it appears that there have been parallel lines of
governing legislation running in relation to Lake Horowhenua. The block
appears to have remained Māori freehold land and indeed the ROLD Act
makes it clear that the land underlying the lake has always been owned by
the Māori owners. There exist features in the Horowhenua Lake reserve that
are common to Māori Reservations, such as that the land is vested in
trustees, its purpose is a fishing easement, the benefit is for the members of
the Muaūpoko tribe who are or will subsequently be owners in the block,
that the land is inalienable, and that the Court has the power to appoint and
replace trustees. The fact that replacements of trustees have continued to
occur under successive Māori Land legislation suggests that the Court
retains a role in relation to the reserve. Whether this stretches so far as to
conclude that the reserve is a Māori Reservation in terms of the Act is
arguable.
[81]
Factors which do not accord with what is generally understood in
terms of Māori Reservations is the existence of legislation specific to Lake
Horowhenua, combined with the unique interplay between ownership
remaining with the Māori owners but use rights being granted to the public.
In addition, although there exist mechanisms to bring the lake under the
legislative provisions specific to Māori reservations, there does not appear to
have been any attempts to do so, for example by the issue of an Order in
Council or similar device.
[37]
In the years since 1956 – and notwithstanding the provisions of the ROLD
Act of that year – matters did not improve greatly, either as regards the complicated
governance arrangements, the exercise and enjoyment of the rights they reflect or the
condition of Lake Horowhenua itself.
22
Taueki v McMillan, above n 14.
[38]
During these years the appointment of trustees has been a recurring theme of
proceedings before the Māori Land Court. Most recently Judge Harvey declined to
intervene in the outcome of the election process, and accordingly appointed the 11
highest polling candidates as trustees of the Lake Horowhenua Trust for a term of
three years. At the same time, and faced yet again with the reality that the Lake
Horowhenua Trust was dysfunctional, the Judge made an order applying terms of
trust.23 It is clear from the decision that those terms were to be interim, and were put
in place to provide a clear and certain framework whereby the beneficiaries of the
Lake Horowhenua Trust could consider and reach agreement on permanent terms for
that trust. It is that decision which Mr Paki says is unlawful and which is the subject
of the first two questions.
[39]
As already noted, in August 2013 the Accord was entered into with respect to
the Lake between the trustees of the Lake Horowhenua Trust (the second
defendants), the Lake Horowhenua Domain Board (the fifth defendant), the
Horowhenua District Council (the third defendant), the Horizons Regional Council
(the fourth defendant, the successor to the Levin Borough Council and the
Horowhenua County Council respectively) and sixth defendant (the Director-General
of Conservation, the successor to the Commissioner of Crown Lands). That Accord,
He Hokioi Rerenga Tahi,24 is a legally non-binding document intended to provide a
framework whereby the interests of Muaupoko, as tangata whenua, in the Lake
through the Lake Horowhenua Trust are recognised in the governance of the Lake
and, under that governance, the Lake can be restored to become “a source of pride
for all people of Horowhenua”.
[40]
As can now been seen, the first two questions I am to answer crystallise the
core of Mr Paki’s challenge to the lawfulness of the terms of trust of the Lake
Horowhenua Trust recently declared by Judge Harvey. The third crystallises the
challenge to the decision of the Domain Board to enter the Accord.
23
24
Above n 3.
He Hokioi Rerenga Tahi is a whakatauki of Muaupoko – An eagle’s flight is seen but once. It
refers to the legendary giant eagle that preyed on moa in the Horowhenua region. The
whakatauki is recorded in the Accord as best describing “the overarching purpose of coming
together to collaborate, progress and resolve, once and for all, the condition of
Lake Horowhenua”.
Participation at the hearing
[41]
As is customary, the first defendant, the Māori Land Court, abides the
decision of this Court.
[42]
The second defendants, the trustees of the Lake Horowhenua Trust, were not
legally represented at the hearing, although their current chairperson, Mr Matthew
Sword, was personally present for part of the hearing. During the hearing, I enquired
of counsel for the third defendant, the Horowhenua District Council, as to the
position of those trustees. Mr Sword heard that question and, with leave from me,
provided a memorandum to the Court from the Lake Horowhenua Trust. Put simply,
in that memorandum Mr Sword:
(a)
says that a lack of financial resources stood in the way of the Lake
Horowhenua
Trust
obtaining
legal
representation
for
these
proceedings;
(b)
explains the understandable impact on the Trust of the numerous
proceedings that it has been involved in in recent years;
(c)
confirms the Lake Horowhenua Trust’s full support for He Hokio Re
Rangitahi, of which he was chair; and
(d)
further explains that the Lake Horowhenua Trust was a founding
partner of that Accord, and now leads it.
[43]
Mr Sword annexed to that memorandum a copy of the Accord, signed not
only by the trustees of the Lake Horowhenua Trust, but also by many of its
beneficiaries individually showing, in his words, “the depth of support for the steps
being taken by the Trust to restore the health of our Lake”.
[44]
Mr Sword concluded by advising the Court that the trustees of the Lake
Horowhenua Trust “fully support our Accord partners (the third to sixth defendants)
in their efforts to uphold the Lake Horowhenua Accord as part of these proceedings”.
[45]
The third and fifth defendants, the Horowhenua District Council and the Lake
Horowhenua Domain Board, were jointly represented, reflecting their common
interest in the proceedings.
[46]
The sixth defendant was also represented at the hearing, but limited his
submissions to the issues raised by the third question, relating to the Domain Board’s
decision to enter the Accord.
[47]
The fourth defendant instructed counsel to maintain a watching brief on its
behalf at the hearing.
[48]
At the hearing, I suggested that an affidavit might be able to be provided by a
Deputy Registrar on behalf of the Māori Land Court, explaining the more recent
history of litigation involving the Lake, and the extent to which considerations
relating to or arising from the difficulties the Trust faced because it had no express
terms had been considered. An affidavit from Blair Kotokoto Anderson, District
Manager and Registrar of the Aotea District of the Māori Land Court, was
subsequently filed. That affidavit has been of particular help to me.
[49]
I turn now to the three questions.
[50]
In doing so, I am in effect assuming that Mr Paki’s judicial review application
raises justiciable issues. I am not at all certain that that is, in fact, the case. Given
that the Accord has no legal effect, it is difficult to see that there are issues of
illegality for that application to bite on. The Accord simply sets down a non-binding
framework against which each of the parties could, in the future, make justiciable
decisions. If the answers I provide to the questions do not enable the parties to
progress matters satisfactorily without further recourse to these proceedings, that
issue can be confronted at a later date.
Did the Māori Land Court have power to declare terms for the Lake
Horowhenua Trust as it purported to do in the 2012 Decision?
[51]
In the 2012 Decision Judge Harvey recorded his decision declaring terms of
trust for the Lake Horowhenua Trust in the following manner:
Should the Court apply terms of trust?
[28]
Mr Rudd argues that if only the Court had “accepted” a trust order
approved by the beneficiaries – by show of hands – then the current
challenges over trustee rotation, election and appointment could have been
avoided. That stance conflicts with Mr Rudd’s strident opposition expressed
at the 2011 general meeting which considered the adoption of a draft trust
order. To say in 2012 that somehow it was the Court’s responsibility to
impose the 2009 draft of a trust order against the wishes of beneficiaries
including the subsequent opposition of Mr Rudd appears somewhat
contradictory.
[29]
That said, it may be that as this trust has not been subject to statutory
review per section 351 of the Act that I should simply order terms of trust
based on the more comprehensive examples currently used by the Court in
whenua tōpu trusts where a high degree of prescription has been included.
Such prescription appears to be necessary for those trusts where there is a
history of dysfunction and dispute over elementary processes including the
convening, recording and facilitating of meetings as well as issues like
accountability of trust funds and actual or perceived conflicts of interest and
how they can be appropriately managed. The uncontroverted evidence is
that this trust does not function effectively to the point where independent
facilitator’s of trustee meetings is required. On this point at least all of the
trustees are agreed.
[30]
Proposed terms of trust have been with the trustees and beneficiaries
before 2009. Detailed procedures for even the most mundane matters of
convening meetings, the notice required and meeting procedures are clearly
required for this trust. As I mentioned in a previous judgment, without the
participation of Court staff to facilitate trustee meetings, such hui would
simply not proceed or would soon break down into open conflict. While I
accept that the purpose and objects of the trust remain a work in progress
from the perspective of some beneficiaries, at the very least the trustees will
be assisted by the provision of detailed terms of trust that focus on the
administration and management of trustee and beneficiary meetings.
[31]
That said, any terms of trust that will apply to the trustees from the
date of this judgment should properly be subject to ongoing discussion with
the beneficiaries at the earliest opportunity. To that end I direct the trustees
to raise at the next general meeting of beneficiaries for discussion the terms
of trust annex[ed] to this decision. For the avoidance of doubt, the trust
order will operate from the issue of this decision and all trustees and the
beneficiaries are to be bound by its terms.
[32]
For completeness I direct Court staff to attend the next meeting of
trustees and for Mr Hau to facilitate the hui. The agenda should include the
election of officers namely a chairperson, deputy if required and a secretary.
The issue of conflicts of interest will also need to be dealt with including the
use of a conflicts register. The court staff should again take the minutes of
the meeting and provide me with a report on the outcomes as soon as
possible.
[52]
In more formal terms, Judge Harvey concluded:
[34]
Terms of trust concerning the administration and management of the
trust are annexed to this judgment. The trustees are directed to adhere to
these terms of trust without exception. The trust order will be discussed at
the next general meeting of beneficiaries of the trust to be held within 12
months from the date of this decision where the trustees may consider any
proposals for variation of trust to ensure that the trust order remains
responsive to and relevant for the aspirations of the beneficiaries.
[53]
The subsequently sealed Court order read, as relevant, as follows:
WHEREAS on the 3rd day of December 1984 at 87 Otaki MB 252-256 the
Court made an order pursuant to section 443 of the Māori Affairs Act 1953
vesting the land known as Part Horowhenua 11 (Lake) in responsible
trustees
AND WHEREAS it is necessary that the trust declared be set out in a
separate trust order
NOW THEREFORE the Court, pursuant to Section 219 of Te Ture Whenua
Māori Act 1993 HEREBY ORDERS AND DECLARES that the trustees
shall hold and administer the said land upon the trusts as set out in the
Schedule hereto
[54]
Notwithstanding the Judge’s reference in his written judgment to a whenua
tōpu trust, as can be seen the Court’s formal order was recorded as being made under
s 219 of Te Ture Whenua Māori Act 1993 and was described as an ahu whenua order.
[55]
As filed, Mr Paki’s challenge to the lawfulness of the Māori Land Court’s
decision involves two fundamental propositions:
(a)
First, s 219 of Te Ture Whenua Māori Act only gives the Court
jurisdiction to set out the terms of trusts constituted under Part 12.
The Lake Horowhenua Trust is not such a trust, as is by now clear.
Therefore the Court had acted without jurisdiction.
(b)
Secondly, the Lake Horowhenua Trust was constituted under the
ROLD Act 1956. That Act set out the terms of the trust. The Māori
Land Court had no jurisdiction to purport to constitute a trust which
already existed by Act of Parliament nor, equally, to vary those
statutory terms.
[56]
Shortly before this Court was scheduled to hear argument, counsel for the
Māori Land Court drew the Court’s and the parties’ attention to the fact that, on
29 September 2014, the Māori Land Court had amended the terms of its earlier ahu
whenua order relating to Lake Horowhenua. An entry in the Aotea minute book
records the Deputy Registrar of the Court being the applicant for an order under s 86
of Te Ture Whenua Māori Act to amend a record of the Court.25
[57]
That application recorded the Court’s erroneous reliance on s 219, erroneous
because the Lake Horowhenua Trust was not constituted under either Part 12 of that
Act or, with reference to s 354 of that Act, s 438 of the Māori Affairs Act 1953. The
application went on to say:
The errors that have been brought to our attention are administrative in
nature and do not accurately reflect the Court’s decision upon which the
order drawn is based. For this reason an order is sought amending the Court
order at 293 Aotea MB 165-174 dated 26 November 2012 as follows:
1.
Any reference to section 219 of Te Ture Whenua Māori Act 1993 is
to be amended to section 64 of the Trustee Act 1953.
2.
The wording ‘Ahu Whenua’ in the title of the Court order is to be
deleted.
An order is sought amending the Court order at 293 Aotea MB 165-174
dated 26 November 2012 as set out above.
[58]
Appended to that formal order is an amended copy of the 2012 Decision and
order, reflecting the Court acting under s 64 of the Trustee Act 1956.26
[59]
At a telephone conference on 18 March 2015, Mr Taylor, counsel for
Mr Paki, confirmed that notwithstanding that shift of the goalposts he would
nevertheless be able to make any changes to Mr Paki’s case that were necessary in
time for the hearing scheduled for 23 March 2015 to proceed.
That is what
happened.
[60]
At the hearing, Mr Taylor argued that the Māori Land Court had, by
purporting so to correct itself, acknowledged the correctness of Mr Paki’s position.
25
26
Deputy Registrar v Māori Land Court (2014) 327 Aotea MB 192.
The minute refers to the Trustee Act 1953. This is a manifest error. I take it to mean the Trustee
Act 1956.
The original order was ultra vires.
Moreover, it could not be corrected as an
“administrative error” as the Court had purported to do. Therefore, the declaration
of terms of trust was legally ineffective.
[61]
The formulation of the first question, namely whether the Māori Land Court
had jurisdiction to constitute an ahu whenua trust “in respect of the trust established
by s 18 of the Reserves and Other Lands Disposal Act 1956” or alter its terms under
the Trustee Act 1956, reflects Mr Taylor’s essential argument for Mr Paki. That
argument is that in 2015, the Lake Horowhenua Trust is a creature of the ROLD Act
1956. That Act was a “new dispensation”, which restored the pre-eminence of
Muaupoko rights to Lake Horowhenua that had, since the passage of the
Horowhenua Lake Act 1905, been whittled away.
The ROLD Act 1956 had,
therefore, created a new trust. Mr Taylor put the position in the following terms:
The Horowhenua Block Act 1896, s 5, vested the Block in the owners
determined by the Native Land Court “in fee simple as tenants-in-common”
in the shares determined by the Native Land Court (“NLC”). No trust was
established by this Act. A trust was established by the 1898 NLC partition
order, but only for a fishing easement in favour of all owners of Horowhenua
Block 11 … The ROLD Act repealed each of the later enactments affecting
Lake Horowhenua and its owners. Any pre-existing trust could therefore
only be one established by the NLC in 1898 or a private settlement. The
trust created by the 1898 partition order is not in respect of ownership of the
land, but only in respect of fishing rights. It created a Māori reservation in
respect of these fishing rights under the trust, but only in respect of them.
The 1951 Māori Land Court decision … only substitutes new trustees for
those named in 1898 who were by then deceased.
The ROLD Act created a trust in respect of the land below the lake and
stream’s surface, as well as their close surrounding: subs (2) and (3). This is
a new trust that had never previously existed. It is submitted that it is
unarguable that this is anything other than a completely new trust owing
nothing to what went before. It is, beyond argument, a trust established by
the ROLD Act.
[62]
I do not find that argument persuasive.
[63]
The Horowhenua Block Act 1896 gave the Māori Appellate Court, not the
Native Land Court, the task of determining ownership of the Horowhenua Block
following the report of the Horowhenua Commission. To provide statutory support
for that task at that time, additional legislative foundations were required. Sections
3, 4 and 15 of that Act provide:
3.
“The Native Equitable Owners Act, 1886,” and all amendments
thereof (hereinafter collectively referred to as “the said Act”) are, for
the purposes of this Act, and not further or otherwise, revived and
re-enacted.
4.
To enable cestuis qui trustent to become certificated owners of
certain portions of the said block, the provisions of the said Act,
excepting section eighteen of “The Native Land Court Acts
Amendment Act, 1889,” shall, notwithstanding anything in the said
Act or any other Act now in force to the contrary, apply to Divisions
Six, Eleven (less portion known as the State Farm at Levin,
containing one thousand five hundred acres, as hereinafter dealt
with), Twelve, and Fourteen of the said block, as the said divisions
are more particularly described in the First Schedule hereto.
In exercising jurisdiction under this section the Court shall deal with
the claims of the forty-eight persons named in the Second Schedule
as if their names had been included in the list of persons registered
under the provisions of the seventeenth section of “The Native
Lands Act, 1867," as specified in Schedule Six hereto, as the owners
of the said block, and may also limit the interest of, or wholly omit
from any order made under the provisions of this Act the name of,
any person who, having been found to be trustee, has, to the
prejudice of the interests of the other owners, or any of them,
assumed the position of an absolute owner in respect to any former
sale or disposition of any portion or portions of the said block, or for
any other sufficient reason.
15.
[64]
For the purpose of carrying out the provisions of this Act, the Court
shall have and may exercise, as the nature of the case requires, in
addition to the special powers hereby conferred, all the powers and
jurisdiction of the Court under "The Native Land Court Act, 1894,"
and" The Native Land Laws Amendment Act, 1895."
The preamble to the Native Equitable Owners Act 1886 sets the scene:
WHEREAS under “the Native Lands Act, 1865,” certificates of title to, and
Crown grants of, certain lands were made in favour of or to Natives
nominally as absolute owners: And whereas in many cases such Natives are
only entitled and were only intended to be clothed with title as trustees for
themselves and others, members of the tribe or hapu or otherwise …
[65]
The Court was given power to determine whether land was held on trust and,
if so, to declare who the beneficial owners were. Section 4 then provided:
The Court may thereupon make order that the persons so declared entitled to
such beneficial ownership shall be owners as tenants in common of the land
the subject of such trust, and they shall be deemed to be such owners in like
manner as if their names had been inserted in certificate or grant affecting
such land.
[66]
It was pursuant to that restored power that the Māori Appellate Court
inquired into and determined the relative interests of the original 143, and the
additional 48, named persons to the extent (I infer) that they or their survivors were
still living in 1898. The Court also relied on the restored s 7. In the case of the
Horowhenua Block XI generally the Appellate Court declared the identity of
beneficial owners of the shares in which, as tenants in common, they held the fee
simple. To that extent, it acted under the powers provided by the equitable owners
legislation. In the partition order, however, and pursuant to s 7 of the trusts and
claims legislation, the Appellate Court provided for land to be set apart and vested in
one or more persons “who shall hold the same upon trust”. Moreover (and by
inference from the terms of s 7) that was done with the agreement of the majority of
the persons who, in terms of the Appellate Court’s original judgment, would
otherwise have had the fee simple of the Lake vested in them as tenants in common
in equal shares, albeit to be inalienable. It is also relevant to note that the very
purpose of the “revived” Native Equitable Owners Act 1886 was to determine
contested questions relating to the ownership of land.
[67]
It is therefore not correct to say, as Mr Taylor for Mr Paki suggested, that the
1898 partition was “not in respect of ownership of the land, but only in respect of
fishing rights”. Nor is it correct to say that the ROLD Act 1956 created the Lake
Horowhenua Trust. I acknowledge that Act did perfect that Trust by confirming the
inclusion of the dewatered area (that is, land no longer comprising the bed of the
Lake), and the encircling chain, the Hokio Stream and the one-chain access strip.
But that was an addition to the corpus of the Trust, and did not create a new trust.
[68]
What the ROLD Act did do, as is reflected in the legislation which it
repealed, was to create a new dispensation for the Domain and its governance. It
may also be, as Mr Taylor argued, that Muaupoko gained greater rights over the
Lake, relative to the interests of the Domain Board and the public in general, than
had been the case in the past. Given the terms of s 18 it is, however, a little difficult
to be certain about that.27
[69]
The Lake Horowhenua Trust is not, therefore, because of the way it was
created, beyond the jurisdiction of the Māori Land Court. Rather, that trust has its
origins in powers given to the Native Land Court, albeit in this instance exercisable
by the Māori Appellate Court.
[70]
The special character of that trust has been considered by this Court on at
least two occasions. In Regional Fisheries Officer v Tukapua,28 Cooke J described
the Lake, and the bed of the Hokio Stream and adjoining lands as being vested in
trustees for Māori owners. Not only did those Māori owners co-own all that land,
but also they had the right to fish in the Lake and in the Stream. Those were
exclusive rights. Moreover, the Judge noted that the ROLD Act 1956 specifically
stated that at all times the Māori owners had the free and unrestricted use of their
fishing rights over the Lake and the Stream.
following way:
He described those rights in the
29
They are rights reserved to the Māori owners because of the special history
of this area. They may be unique.
[71]
In another fishing case, Regional Fisheries Officer v Williams,30 O’Regan J
emphasised that the ROLD Act 1956 had not created the fishing rights of the Māori
owners, but it had only given statutory recognition to them. O’Regan J referred to
the Horowhenua Lake Act 1905 as giving statutory recognition of and protection to
rights already in existence. He also observed, recognising the particular history of
this land, that neither Block XI nor the bed of the Hokio Stream had originally been
27
28
29
30
Having said that, in a 1982 judgment Judge Smith (above n 7), in a very helpful discussion of
the legal history of Lake Horowhenua, observed: “Another point of interest is that theoretically
the Muaupoko tribe can control the policy of the Domain Board, the practice of the
Commissioner of Crown Lands apparently being to exercise only a casting vote, if necessary”.
Judge Smith went on to comment on the “dissention” that existed, at that time, between the Lake
trustees and the Muaupoko Māori Committee, on whose recommendation Muaupoko
representatives were appointed to the Domain Board by the Minister.
Regional Fisheries Officer v Tukapua HC Palmerston North M33-75, 13 June 1975.
At 3.
Regional Fisheries Officer v Williams SC Palmerston North M116-78, 12 December 1978.
vested by way of Crown grant. Of interest is his following commentary on the
history of the Lake:31
The rights of piscary which he and the other members of the Muaupoko who
own Horowhenua XI Block are as Cooke J. remarked in Tukapua’s case
unique rights. They are also, insofar as the history of New Zealand and its
legislation are concerned old rights. Research by counsel and by me have
not unearthed their genesis. I do not find that surprising. They might well
have existed prior to the coming of the pakeha. They were asserted in
necessarily general terms throughout the years over which the settlement of
land was made and in the end they were given statutory recognition. That
statute enacted that the Hokio Stream “means that stream flowing from the
outlet of the lake … to the sea”. It declared that the bed of that stream
(excepting parts alienated or disposed of by the Māori owners) “to be and to
have always been owned by the Māori owners”. The declaration that such
was always owned by them, so it seems to me, is statutory recognition that
such ownership preceded the advent of the pakeha and the introduction of
his artifices for the making of laws and for creating and recording property
rights. The statute provided further (s. 12(5)) that the Māori owners “shall at
all times … have their fishing rights over such stream” – that is from the
outlet from the lake to the sea.
[72]
The question remains, however, whether what the Māori Land Court
purported to do in 2012 was within its powers.
[73]
In Fenwick and Ors v Naera and Eru and Ors32 the Supreme Court had
occasion to consider the nature of the Māori Land Court’s jurisdiction over trusts of
Māori land. It did so first by recording key provisions of Te Ture Whenua Māori
Act.
[106]
The preamble to the Act states:
Nā te mea i riro nā te Tiriti o Waitangi i motuhake ai te noho a te iwi
me te Karauna: ā, nā te mea e tika ana kia whakaūtia anō te wairua o
te wā i riro atu ai te kāwanatanga kia riro mai ai te mau tonu o te
rangatiratanga e takoto nei i roto i te Tiriti o Waitangi: ā, nā te mea e
tika ana kia mārama ko te whenua he taonga tuku iho e tino
whakaaro nuitia ana e te iwi Māori, ā, nā tērā he whakahau kia mau
tonu taua whenua ki te iwi nōna, ki ō rātou whānau, hapū hoki, a, a
ki te whakangungu i ngā wāhi tapu hei whakamāmā i te nohotanga, i
te whakahaeretanga, i te whakamahitanga o taua whenua hei painga
mō te hunga nōna, mō ō rātou whānau, hapū hoki: ā, nā te mea e tika
ana kia tū tonu he Te Kooti, ā, kia whakatakototia he tikanga hei
āwhina i te iwi Māori kia taea ai ēnei kaupapa te whakatinana.
31
32
At 13.
Fenwick and others v Naera and Eru and others [2015] NZSC 68.
Whereas the Treaty of Waitangi established the special relationship
between the Māori people and the Crown: And whereas it is
desirable that the spirit of the exchange of kawanatanga for the
protection of rangatiratanga embodied in the Treaty of Waitangi be
reaffirmed: And whereas it is desirable to recognise that land is a
taonga tuku iho of special significance to Māori people and, for that
reason, to promote the retention of that land in the hands of its
owners, their whanau, and their hapu, and to protect wahi tapu: and
to facilitate the occupation, development, and utilisation of that land
for the benefit of its owners, their whanau, and their hapu: And
whereas it is desirable to maintain a court and to establish
mechanisms to assist the Māori people to achieve the
implementation of these principles.
[107]
Section 2 details how the Act should be interpreted. It provides:
2
Interpretation of Act generally
(1)
It is the intention of Parliament that the provisions of this
Act shall be interpreted in a manner that best furthers the
principles set out in the Preamble.
(2)
Without limiting the generality of subsection (1), it is the
intention of Parliament that powers, duties, and discretions
conferred by this Act shall be exercised, as far as possible, in
a manner that facilitates and promotes the retention, use,
development, and control of Māori land as taonga tuku iho
by Māori owners, their whanau, their hapu, and their
descendants, and that protects wahi tapu.
(3)
In the event of any conflict in meaning between the Māori
and the English versions of the Preamble, the Māori version
shall prevail.
[108] Section 6 of Act provides for the continuation of the Māori Land
Court. The general objectives of that Court are:
17 General objectives
(1)
(2)
In exercising its jurisdiction and powers under this Act, the
primary objective of the court shall be to promote and assist
in—
(a)
the retention of Māori land and General land owned
by Māori in the hands of the owners; and
(b)
the effective use, management, and development, by
or on behalf of the owners, of Māori land and
General land owned by Māori.
In applying subsection (1), the court shall seek to achieve the
following further objectives:
(a)
to ascertain and give effect to the wishes of the
owners of any land to which the proceedings relate:
[74]
(b)
to provide a means whereby the owners may be kept
informed of any proposals relating to any land, and a
forum in which the owners might discuss any such
proposal:
(c)
to determine or facilitate the settlement of disputes
and other matters among the owners of any land:
(d)
to protect minority interests in any land against an
oppressive majority, and to protect majority interests
in the land against an unreasonable minority:
(e)
to ensure fairness in dealings with the owners of any
land in multiple ownership:
(f)
to promote practical solutions to problems arising in
the use or management of any land.
Parliament’s general direction to the courts when interpreting and applying
the provisions of Te Ture Whenua Māori Act are clear: the overriding principle is to
promote the retention of Māori land in the hands of Māori, to protect wahi tapu and
to facilitate the occupation, development and utilisation of that land for the benefit of
its, Māori, owners. The Māori Land Court is maintained, and new mechanisms are
established, to assist in the achievement and the implementation of those principles.
The provisions of the Act are to be interpreted in a manner that best furthers the
achievement of those principles. The courts’ powers are to be exercised for the same
purpose. Section 17(2), which sets out further general objectives, emphasises the
pragmatic and hands-on approach called for by Parliament of the Māori Land Court.
I note in particular the objective of promoting practical solutions to problems arising
in the use or management of any land. It is clear that in answering this question of
jurisdiction I must give effect to those very clear Parliamentary intentions and
directions.
[75]
Trusts of Māori land are specifically provided for in Part 12 – ss 211–245 –
of Te Ture Whenua Māori Act.
[76]
Section 211(1) provides that the Māori Land Court is to have exclusive
jurisdiction “to constitute putea trusts, whanau trusts, ahu whenua trusts, whenua
tōpu trusts, and kai tiaki trusts” in accordance with Part 12. Those terms are not
defined. Although not of direct relevance here, there is a helpful explanation of
those terms in Garrow and Kelly’s Law of Trusts and Trustees.33 Sections 212 to 235
deal with such trusts.
[77]
Speaking of ahu whenua trusts, the Supreme Court observed:34
[121] Ahu whenua trusts are also unusual in the way in which they are
established and closely supervised by the Māori Land Court. The
beneficiaries argue that, while the Māori Land Court has broad powers, the
High Court has similar broad powers of review, but these do not supplant the
specific rules of the common law and equity setting out what forms of relief
ought to be available and in what circumstances. While that may be true, the
Māori Land Court’s role is very different from that of the High Court. The
Māori Land Court is actively involved in setting up of trusts under the Act,
sets the contents of the trust order, appoints the trustees, and has a major role
in the governance and review of Māori trusts. While the High Court has
jurisdiction over trusts, its role in trusts is not comparable to the Māori Land
Court’s special involvement in trusts created under the Act.
[78]
Whilst those remarks were made in the specific context of ahu whenua trusts,
they apply equally, in my view, to the relationship of the Court to the trust of Māori
land which is the Lake Horowhenua Trust.
[79]
Sections 236 to 245 of Part 12 contain provisions relating to trusts of land
more generally. Sections 236 and 237 are of particular relevance. They provide:
33
34
236
Application of sections 237 to 245
(1)
Subject to subsection (2), sections 237 to 245 shall apply to the
following trusts:
(a)
every trust constituted under this Part:
(b)
every other trust constituted in respect of any Māori land:
(c)
every other trust constituted in respect of any General land
owned by Māori.
(2)
Nothing in sections 237 to 245 applies to any trust created by section
250(4).
237
Jurisdiction of court generally
(1)
Subject to the express provisions of this Part, in respect of any trust
to which this Part applies, the Māori Land Court shall have and may
exercise all the same powers and authorities as the High Court has
Chris Kelly and Greg Kelly Garrow and Kelly’s Law of Trusts and Trustees (7th ed, LexisNexis,
Wellington, 2013) at [29.5]–[29.11].
Above n 32, at [121].
(whether by statute or by any rule of law or by virtue of its inherent
jurisdiction) in respect of trusts generally.
(2)
[80]
Nothing in subsection (1) shall limit or affect the jurisdiction of the
High Court.
Of particular significance for this question are the references in s 237(1) to
the statutory and inherent jurisdictions of this Court as regards trusts.
The
jurisdiction provided by ss 64 and 64A of the Trustee Act is therefore shared by the
Māori Land Court as regards trusts constituted under Part 12, every other trust
constituted in respect of any Māori land (the Lake Horowhenua Trust clearly being
such a trust), and every other trust constituted in respect of any General land owned
by Māori.
[81]
Section 64 of the Trustee Act is recognised as providing the High Court, and
hence the Māori Land Court as regards the Lake Horowhenua Trust, with extensive
powers. Speaking of the powers given to the High Court by ss 64 and 64A of the
Trustee Act, the authors of Garrow and Kelly comment:35
26.103 Section 64A does not only apply to variation of the actual trusts. It
also allows ‘enlarging the powers of the trustees of managing or
administering any of the property subject to the trusts’. There will, of
course, be cases where it is appropriate, in order to give proper effect to a
variation of the substantive trusts, to expand the administrative powers
available to the trustees. It seems, however, that the Court may expand the
administrative powers quite independently of any variation of the substantive
trusts.36
26.104 Bearing in mind the very wide, almost unfettered,37 discretion given
to the Court by s 64(1) of the Act, it is a little difficult to understand why
reference to ‘enlarging’ administrative powers was included in s 64A(1).
The apparent duplication could cause confusion. It seems that in England
the equivalent provisions exist side by side. That seems to be the case in
New Zealand also. However, there is a fundamental distinction here: …
[82]
Likewise, of contextual relevance is the following commentary from Garrow
and Kelly:
35
36
37
Above n 33.
See, for example, Re Burney’s Settlement Trusts [1961] 1 All ER 856 – and compare with
Re Power’s Will Trusts, Public Trustee v Hastings [1947] 2 All ER 282; see also Knight v Knight
High Court Palmerston North CIV-2009-454-794, 15 December 2009, MacKenzie J; Gordon
v Attorney-General High Court Auckland CIV-2010-404-003672, 23 August 2010, Potter J.
See, for example, Re W D & H O Wills (NZ) Ltd Pensions Fund [1974] 2 NZLR 27.
29.5 … One of the distinguishing features of these trusts is that the terms
of the trust are generally set out in a court order, rather than a deed or other
document. Another feature is that the beneficiaries are treated more as
owners in a way that goes beyond the usual understanding of the equitable
rights of beneficial owners (for example, voting at meetings). A third
distinguishing feature is that they are not subject to the rule against
perpetuities or the Perpetuities Act 1964. (footnotes omitted)
…
29.23 Trusts established to hold Māori land often have large numbers of
beneficiaries. Ensuring the trustees are properly informed of the needs,
wishes and interests of the beneficiaries is often best achieved by holding
meetings of beneficiaries where they can express their views and vote on
proposed courses of action. It is important to understand, however, that, in
traditional trust law, a trust is not a democracy. Trustees are appointed to
make decisions in the best interests of the beneficiaries. Trustees may
consult but ultimately the trustees must reach their own decisions and must
not simply act at the behest of the beneficiaries. Nothing in Te Ture Whenua
Māori Act 1993 authorises departure from these essential trust principles.
[83]
Against that background I conclude that the power to declare terms of trust to
provide a trust over Māori land with effective management and administrative rules
is a reasonable and necessary incident of the role of the Māori Land Court. More
particularly, I am also satisfied that there is in s 64A of the Trustee Act specific
statutory provision of such a power.
[84]
I am, therefore, satisfied that the Māori Land Court had the power to issue
terms of trust for the Lake Horowhenua Trust as it did in the 2012 Decision. Not
only did it have that power, but the issue was properly before it.
[85]
Mr Anderson’s affidavit confirms that since July 2009, Judge Harvey has
confronted, in proceedings involving the Lake Horowhenua Trust, difficulties that
Trust faced due to having no express terms. A 2009 decision records Judge Harvey
directing the trustees of the Lake Horowhenua Trust to prepare terms of trust within
three months and then to convene a meeting of beneficiaries to discuss those draft
terms for their approval.38 The trustees subsequently prepared a draft trust deed, and
intended to present it to beneficiaries. Such a meeting was held. However, terms of
trust had still not been agreed as at 25 August 2011, when Chief Judge Isaac heard an
application to remove a trustee.39 The lack of a trust deed was raised during the
38
39
Taueki and Taueki – Horowhenua 11 (2009) 238 Aotea MB 1 at 15.
Taueki – Horowhenua 11 (2011) 270 Aotea MB 214.
hearing of that application.
Chief Judge Isaac directed that an independent
chairperson be engaged to facilitate a meeting of owners both to appoint an
additional trustee and consider terms of trust.40 Owners were unable, however, to
approve a trust deed. The issue, namely the lack of a trust deed, was considered at a
number of further meetings. It was after that lengthy, but unsuccessful, process to
agree terms of trust that Judge Harvey made the 2012 Decision, and declared terms
of trust.
[86]
As Judge Harvey in the 2012 Decision noted, the “proposed terms of trust
have been with the trustees and beneficiaries before 2009. Detailed procedures for
even the most mundane matter as convening meetings, the notice required and
meeting procedures are clearly required for this Trust”.41
[87]
Subsequently, an application was made in the Māori Land Court, seeking
direction on the terms of trust Judge Harvey had ordered.42 The Judge’s comments
on that application for directions are, themselves, informative:
[7]
Ms Taueki seeks a number of directions regarding in particular the
trust order. It will be remembered that a trust order has been before the
owners and beneficiaries since 2009 so to suggest that somehow the owners
have not been involved in consultation and discussion is incorrect.
Numerous submissions have also been received from time to time from the
owners, the beneficiaries and the trustees regarding a proposed trust order.
Several beneficiaries meetings have considered draft trust orders.
[8]
While it is correct that the trust order that has now been issued is
very detailed there are two important points that need to be remembered.
First, the reason for such a detailed trust order is simply because the trustees
have proven themselves incapable of acting appropriately in the most simple
and mundane of matters including notice for calling meetings, setting the
agenda and conducting themselves without threats, allegations of
intimidation and the similar conduct. In short, a detailed trust order on the
procedure for calling, conducting and recording meetings is necessary
because of the constant bickering amongst the trustees as the voluminous
Court files will confirm.
[9]
Secondly, when the trust order was issued I emphasised that it was
still a work in progress and, in concert with the beneficiaries, the trustees
may need to refine it further so that it will properly reflect their aspirations
and desires. It is surprising that after the passage of over three years the
trustees and the beneficiaries do not appear to have made much progress
40
41
42
At 240–241.
Above n 3, at [30].
Taueki v Procter and ors (2013) 296 Aotea MB 91.
with such discussions, to say nothing of the interminable delays that were
experienced under a previous regime of trustees concerning a draft trust
order.
[88]
So the Māori Land Court, and Judge Harvey in particular, were clearly seized
of the very real difficulties that the Lake Horowhenua Trust faced because it had no
detailed terms.
Importantly, that lack of terms was seen as creating particular
management and administrative issues, which stood in the way of the trustees, in
consultation with the beneficiaries, making substantive decisions about the Lake and
surrounding areas. Given the special jurisdiction the Māori Land Court has as
regards trusts of Māori land – including under s 241 the power to terminate such
trusts – it would be more than a little surprising if that Court did not have powers to
address the governance vacuum of the Lake Horowhenua Trust so as to assist that
trust and its beneficiaries to, as Te Ture Whenua Māori Act provides, promote and
assist in “the effective use, management, and development, by or on behalf of the
owners, of Māori land and general land owned by Māori”.
[89]
The trustees had themselves raised the problem of the absence of a trust deed,
and had taken steps to address those difficulties. Those steps had been unsuccessful
for the very reason that the trust had no clear governance provisions.
[90]
Finally, I note that in any event, the Māori Land Court itself has the power to
initiate the exercise of its own jurisdiction.43
[91]
In my view, the answer to the first question is, therefore, yes. What the 2012
Decision does is to extend the management and administrative powers of the
trustees, and to add to the property the subject of the trust, rather than constituting
the trust itself.
If the Māori Land Court did have that power, is its decision doing so void for
error in law?
[92]
For Mr Paki, Mr Taylor argues that, even if the Māori Land Court did have
the power to declare express terms for the Lake Horowhenua Trust, it did not act
43
Te Ture Whenua Māori Act 1993, s 37.
lawfully when doing so because it failed to consider and refer to the provisions of the
ROLD Act 1956.
[93]
I acknowledge that Judge Harvey did not expressly refer to the ROLD Act
1956 in the 2012 Decision. It is clear, however, that the Judge was well aware of the
provisions of that Act. That Act had been referred to on various occasions in
proceedings before the Judge. The Judge’s extensive narrative of the procedural
history of the claims relating to Lake Horowhenua he has considered since 2003, set
out in Taueki v McMillan,44 demonstrate Judge Harvey’s familiarity with all aspects
of the Lake’s history, including the ROLD Act 1956, as traversed before him over
some 10 years, culminating in a hearing on 20 May 2010 at Levin. As can be seen
from this judgment, it is the terms of the ROLD Act 1956 itself that contributed to
the very problems the Judge was trying to provide the Trust with an effective way of
addressing.
[94]
There is, therefore, no error of law in the 2012 Decision simply because it
does not refer explicitly to the ROLD Act 1956.
Was the Domain Board properly constituted when it decided to enter into the
Accord?
[95]
I therefore turn to the third question, relating to the constitution of the
Domain Board, and the argument that when it made its decision to enter into the
Accord the Domain Board was not properly constituted as a decision-maker.
[96]
By way of background to this third question, the parties provided the
following agreed statement of facts:
1.
The Lake Horowhenua Domain Board did not meet formally
between 26 June 2006 and 4 July 2011 because of issues with
appointing iwi members. During this time the Board comprised
three Council representatives, one iwi representative and the
delegate of the Director-General of Conservation.
2.
On 4 July 2011 the Board consisted of:
2.1
44
Above n 14.
Mr Jason Roxburgh (Department of Conservation Area
Manager, Chair)
[97]
2.2
Mr Marokopa Wiremu-Matakatea (Iwi Representative)
2.3
Mr Rob Warrington (Iwi Representative)
2.4
Dr Jon Procter (Iwi Representative)
2.5
Ms Nyleen Ford (Iwi Representative)
2.6
Mr Brendan Duffy (Horowhenua District Council, Mayor)
2.7
Cr Tony Rush (Horowhenua District Council)
2.8
Cr Nathan Murray (Horowhenua District Council).
3.
Not long after the Board was reconstituted, Ms Ford left the district
for work which made it difficult for her to attend Board meetings.
She attended sporadically and her resignation was finally submitted
to the Board meeting held on 10 June 2013.
4.
At the 10 June 2013 meeting referred to in paragraphs 45 and 46 of
the plaintiff’s statement of claim the Board agreed to enter into the
Accord. The minutes of that meeting are attached.
5.
Mr Chris Lester replaced Mr Roxburgh as Chair at the 5 August
2013 Board meeting.
6.
Cr Victoria Kaye-Simmons replaced Cr Nathan Murray (who did not
stand for re-election) following the 2013 local body elections, with
her first meeting attendance being 2 December 2013.
I was also provided with a copy of the minutes of the meeting of the Domain
Board at which the decision to commit to the Accord was made. Those minutes
showed that, at that meeting, present were three representatives of the Horowhenua
District Council and three Muaupoko iwi representatives. Those minutes record the
decision as regards the Accord in the following terms:
6.
MONITORING REPORT
Item 27
Lake Horowhenua Accord
Cr Rush advised that at its 5 June 2013 meeting, Council had
resolved to sign the final draft (a copy of which had been
provided to Board Members) of the Accord document (He
Kotuku Rerenga Tahi). He suggested that it would be
appropriate for the Domain Board to also signal its intention to
sign. He did note that there may be further consultation
required before the Lake Trustees were ready to sign, but that
was no reason why the Board should not signal its intentions.
This was about five parties, each of which had separate
responsibilities, coming together to plan the actions that needed
to be undertaken jointly and severally by the different grounds
or the united group.
Moved:
Rush
Seconded: Warrington
“THAT the Horowhenua Lake Domain Board endorses the Lake
Horowhenua Accord (He Kotuku Rerenga Tahi) as a document
to enable discussion between five parties to improve
environmental and cultural aspects of Lake Horowhenua.”
CARRIED
[98]
The core of Mr Taylor’s submissions on this point was that the ROLD Act
1956 had placed the power to balance Muaupoko and pakeha rights in the hands of
the Domain Board. In contrast to the preceding legislation, which had successively
moved power away from Muaupoko and into the hands of local authorities, the
ROLD Act 1956 conferred greater power on Muaupoko with the vote to bring voting
power of Muaupoko and local authorities into equality “to be exercised by the
Department of Conservation representative”.
That was, Mr Taylor submitted,
perhaps the key provision to rectify the unfairness inherent in the preceding position
where the rights of the general, predominantly pakeha, population to the Domain
Board prevailed over the rights of Muaupoko as owners of the Lake and as
beneficiaries of the Lake Horowhenua Trust.
[99]
Mr Taylor further submitted that were it possible for the local authorities to
“take back their dominance” over Muaupoko by the expedient of using the
occasioned absence of a Muaupoko member, then that key provision would be
undone.
[100] I note first that that submission is based on an assertion that the local
authority members in some way had manipulated the agenda of meetings to take
advantage of the absence of a fourth Muaupoko representative. That submission is
without any evidential foundation. Secondly, there was, in fact, an equality of
representation at the meeting of the Domain Board in question.
[101] Thirdly, I am satisfied that the meeting was conducted in terms of those
provisions of the Reserves Act 1977 that apply to meetings of domain boards. As
was submitted on behalf of the Minister, the meeting of the Domain Board was, in
terms of those provisions, quorat and its decision was made by unanimous vote.
[102] Mr Taylor pointed to no other irregularities.
[103] In these circumstances, I am satisfied that the Domain Board acted lawfully
when it made its decision to commit to the Accord.
[104] In that regard, the wording of the Domain Board’s resolution is of relevance.
There the Accord is described “as a document to enable discussion between five
parties to improve environmental and cultural aspects of Lake Horowhenua”. That
description of the Accord conforms with my assessment of it, and reinforces the
comments I make about justiciability at [50] above.
[105] The answer to the third question is, very clearly, no.
Costs
[106] Given that this was a joint application for questions to be answered, I do not
understand a question of costs to arise. If I am wrong, focused memoranda may be
filed.
“Clifford J”
Solicitors:
Waikanae Law, Waikanae for Plaintiff
Crown Law, Wellington for First and Sixth Defendants
Buddle Findlay, Wellington for Third and Fifth Defendants
Fitzherbert Rowe, Palmerston North for Fourth Defendant