95 Waiariki MB 230
IN THE MĀORI LAND COURT OF NEW ZEALAND
WAIARIKI DISTRICT
A20080013837
UNDER
Section 289, Te Ture Whenua Maori Act 1993
IN THE MATTER OF
Tōrere Section 58 Block
BETWEEN
NEVILLE PATU AND ROVER WAIAPU
Applicants
Hearing:
7 February 2002, 77 Opotiki MB 281-282 (Heard at Opotiki)
2 April 2002, 78 Opotiki MB 137-161
1 October 2002, 80 Opotiki MB 101-103
5 May 2009, 108 Opotiki MB 186-208
7 March 2013, 72 Waiariki MB 142-152
19 April 2013, 76 Waiariki MB 247-248 (Heard at Gisborne)
4 July 2013, 79 Waiariki MB 241-248 (Heard at Opotiki)
5 September 2013, 83 Waiariki MB 281-285
10 October 2013, 84 Waiariki MB 153
(Heard at Rotorua)
Judgment:
17 April 2014
RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX
95 Waiariki MB 231
Introduction
[33]
Tōrere Section 58 is a block of Māori freehold land situated behind the township of
Tōrere in the Eastern Bay of Plenty. The block is 355.967 hectares and it is administered
as an ahu whenua trust by seven trustees. As at 2012, there were 122 owners.
Application
[34]
This long standing application for partition was first filed pursuant to s 289 of Te
Ture Whenua Māori Act 1993 (“the Act”) in October 2001 by Mr Neville Patu and Mr
Rover Waiapu, trustees of Tōrere Section 58. The application was accompanied by a
scheme plan for five subdivisions, approved at a meeting on 8 November 2000. The
application was made for the following purposes:1
(a)
To consolidate five subdivisions for each whānau who descend from the five
children of Patihana Hohepa, for their exclusive use and occupation without
further interference;
(b)
The rates were in arrears for $6000-$7000 and the Opotiki District Council
was prepared to write off the majority of this upon completing the new
partitions;
(c)
The land had not been properly utilised for nearly a decade hence the rate
arrears, bush reversion etc;
(d)
There was a desire from each whānau to take control of their own separate
partition to develop the unusable areas, maintain the rates, build houses and
use the land more effectively to become self-sufficient; and
(e)
The proposal had been before the Court before. Refer to Court minutes 74
Opotiki MB 151 and 74 Opotiki MB 223 – reference made to partitioning of
1
108 Opotiki MB 186 (108 OPO 186).
95 Waiariki MB 232
this block and final approved plan for the new partitions sent into Court and
confirmed.
History of the Application
[35]
There has been a history of opposition to this application. The application was first
heard in February 2002 where Mrs Heni Wilkinson and Olive Chapman recorded concerns
regarding the partition proposal. The application was adjourned and the Registrar was
directed to conduct a meeting of owners.2
[36]
In April 2002, the report of the Registrar was presented to the Court and it recorded
that a meeting had taken place with the trustees, owners and interested parties on 27 March
2002.
[37]
The Registrar advised that the nature of the objections concerned the rights of
Herbet Te Hue Reha (or Pairi Reha) a whāngai child of Ria Patihana, the daughter of
Patihana Hohepa.
Mr Reha and his whānau wished to be included in the partition
application, thus requiring six subdivisions. Succession to Ria Patihana’s interests in
Tōrere Section 58 was completed in 1981 and Mr Reha was not included.3 Ria Patihana
had passed away in 1968 without issue.4 It was noted that if Mr Reha wanted to pursue
this matter he would need to file a s 45 application to succeed to his whāngai mother’s
interests.
[38]
The Registrar further advised that during the meeting Hakaraia Patihana, another
child of Patihana Hohepa may also have had issue. He too was succeeded to in 1981.5
That could have potentially resulted in a seventh subdivision.
[39]
During the meeting an old partition plan with four subdivisions of 117 acres was
discussed. It depicted a subdivision that would see the block divided in favour of the
following:
(a)
2
3
4
5
Mere Kaahu Rewi Patihana - with a new appellation as Tōrere 58A
77 Opotiki MB 281 (77 OPO 281).
62 Taupo MB 53 (62 TPO 53).
50 Opotiki MB 207 (50 OPO 207).
62 Taupo MB 53 (62 TPO 53).
95 Waiariki MB 233
(b)
Ria Patihana - with a new appellation as Tōrere 58B
(c)
Pare Keiha Patihana - with a new appellation as Tōrere 58C
(d)
Hakaraia Patihana, Maria Ihe Patihana, Te Wharetaka Patihana and Keita
Waiapu Patihana - with the balance of the block.
[40]
All those present at the meeting agreed that the land should be partitioned but there
were nine owners in favour of the partition proceeding as a subdivision into four blocks as
depicted in the old plan. Eight owners voted against that. There were nine owners in
favour of adopting the new scheme plan of five subdivisions as envisaged by this
application and 10 owners against doing so.
[41]
During the hearing the Court was advised that a further seven people supported the
applicants and not the subdivision based upon the older plan. The reason for that was
because the old plan did not give those in the balance of the block a fair allocation, relative
to those in subdivisions 1-3.
[42]
The Court noted that there remained issues as to access on and off the block and
there were only limited submissions made as to why the partition was necessary rather than
merely desirable. Primarily, whānau could not work together on its administration and
each branch wanted their own independence. The applicants were also concerned about
the rates and the expense of the survey work needed to complete the partition. As the trust
had met the expense of that work and as the rates were being dealt with by the treasurer,
there did not appear to the Court to be any real basis to these concerns.
[43]
What was clear was that there were significant objections received from a number
of persons present, including Nola Melrose. Also at the hearing, counsel for Mr Reha
submitted that there was insufficient support for the partition and that the application did
not address all interests in the block. The application was adjourned for six months, during
which time the applicants were to provide the Court with a valuation.
[44]
The matter came before the Court again in October 2002 but was adjourned “sine
die” pending a decision of the Chief Judge on an application under s 45 of the Act, filed on
95 Waiariki MB 234
behalf of Mr Reha for succession to Ria Patihana.6 That application was subsequently
dismissed by the Chief Judge in October 2005.7
[45]
Further delays occurred before the matter came back to Court in May 2009. 8 The
same opposition to the application remained from those who wished to progress the old
scheme plan for partition into four Lot subdivisions. Primarily these people were Mrs
Chapman, Mrs Melrose and Mrs Mellanie Thomas. An adjournment was granted so that
those in opposition could provide valuation evidence as to the merits of the four Lot
subdivision proposal. I indicated that the application would be adjourned to chambers to
receive that valuation and provide judgment, if no further issues needed to be addressed.
[46]
Subsequently, in July 2009, the applicants requested a further adjournment due to a
tangi and for certain health reasons. The matter was adjourned for 12 months.
[47]
On 30 April 2012, after several requests for a valuation from the case manager, the
Court was finally advised by the applicants that there had been a change in position as a
result of a meeting held on 20 October 2012, whereby all present (owners and trustees)
agreed that the old scheme plan should form the basis of the partition application. A
further hui was to be called to discuss the implications of this proposal once a valuation
was complete.
[48]
On 20 February 2012, the Court was advised by letter that issues concerning the old
plan had been resolved as follows:9
The old partition plan was originally for 7 families each having approximately 117 acres
per block. There are now only 5 families. Two (Ria and Hakaraia) of the original 7
families have had their blocks succeeded to by the remaining 5 families, which means 5
blocks are required with an increase in block size to roughly 160 acres per block. Th[is]
has now resulted in the old boundaries on the old plan being moved and this is shown
on a survey scheme plan produced at the meeting.
A survey scheme plan (149179-R-SDOC1) showing the proposed five blocks based on
the ol[d] partition plan was presented and approved by the owners/whānau. (Plan
attached)
[49]
6
7
8
9
The five Lot subdivision based on the old partition plan were allocated as follows:
80 Opotiki MB 101 (80 OPO 101).
[2005] Chief Judge’s MB 233 (2005 CJ 233).
108 Opotiki MB 186 (108 OPO 186).
72 Waiariki MB 142 (72 WAR 142) at p 144.
95 Waiariki MB 235
Lot 1 – Merekahu’s whānau – subsequently valued at $59,100
Lot 2 – Parekeiha’s whānau – subsequently valued at $92, 800
Lot 3 – Keita’s whānau – subsequently valued at $61,100
Lot 4 - Wharetaka’s whānau – subsequently valued at $46,000
Lot 5 – Maria’s whānau – subsequently valued at $46,000
[50]
The Court made orders to commission the valuation report necessary for this new
proposal when it came before it on 7 March 2013.10 That is where the values given above
came from.
[51]
The owners and trustees were then directed to meet to discuss the content of that
valuation report. That meeting had not been able to deal with the new valuation report in
any detail and so when the matter was called again before the Court in July 2013, the
application was adjourned one further time at the request of Mrs Melrose. 11 A submission
was also filed noting the significant differences in value between each parcel of the
subdivision and the issues concerning access to Lots 4 and 5. The Court was subsequently
advised that at a meeting held on 4 August 2013 all the owners and trustees present agreed
that the partition should proceed based upon the revised old plan that divided the block into
five Lot subdivisions.
[52]
Unfortunately, that advice was not correct. Rather Mrs Melrose and Mrs Thomas
objected again based upon their concerns regarding values of each parcel and access. They
sought an adjournment so that they could take legal advice when the matter was before me
on 5 September 2013. By this time it was obvious that they wanted to obtain some form of
share compensation in Tōrere 31 block for their agreement to the partition.12 I declined the
adjournment application on the basis that there had been more than sufficient time to
receive such advice before the Court hearing.
[53]
Mrs Melrose then sent a letter received by the Registrar on 13 September 2013.
That letter was sent to all parties for comment.
10
11
12
72 Waiariki MB 142 (72 WAR 142).
79 Waiariki MB 241 (79 WAR 241).
83 Waiariki 281 (83 WAR 281).
Responses were received from the
95 Waiariki MB 236
applicants, Olive Chapman, Millie Patu, Jodi Porter and Frank Te Wheki Porter in support
of the application and denying certain allegations made by Mrs Melrose.
[54]
The file was referred to me on 16 December 2013 for judgment once all those
responses were received.
Relevant Law and Discussion
[55]
I must consider s 286-289 of the Act 1993. I set these out below:
286
Purpose of this Part
(1)
The principal purpose of this Part is to facilitate the use and occupation by the
owners of land owned by Maori by rationalising particular landholdings and
providing access or additional or improved access to the land.
(2)
Where it is satisfied that to do so would achieve the principal purpose of this
Part, the court may make partition orders, amalgamation orders, and aggregation
orders, grant easements, and lay out roadways in accordance with the provisions
of this Part.
287
Jurisdiction of courts
(1)
Subject to subsection (3), the Maori Land Court shall have exclusive jurisdiction
to make partition orders, amalgamation orders, aggregation orders, and exchange
orders in respect of Maori land, and to grant easements and lay out roadways
over Maori land.
(2)
The jurisdiction conferred on the Maori Land Court by this Part shall be
discretionary, and, without limiting that discretion, the court may refuse to
exercise that discretion in any case if it is not satisfied that to do so in the
manner sought would achieve the principal purpose of this Part.
(3)
Nothing in this section shall apply in respect of any Maori reserve.
(4)
Except as provided in subsection (1), nothing in this Part shall limit or affect the
jurisdiction of the High Court.
288
Matters to be considered
(1)
In addition to the requirements of subsections (2) to (4), in deciding whether or
not to exercise its jurisdiction to make any partition order, amalgamation order,
or aggregation order, the court shall have regard to—
(2)
(a)
the opinion of the owners or shareholders as a whole; and
(b)
the effect of the proposal on the interests of the owners of the land or
the shareholders of the incorporation, as the case may be; and
(c)
the best overall use and development of the land.
The court shall not make any partition order, amalgamation order, or aggregation
order affecting any land, other than land vested in a Maori incorporation, unless
it is satisfied—
(a)
that the owners of the land to which the application relates have had
sufficient notice of the application and sufficient opportunity to discuss
and consider it; and
95 Waiariki MB 237
(b)
(3)
(4)
The court shall not make any partition order, amalgamation order, or
aggregation order affecting any land vested in a Maori incorporation unless it is
satisfied—
(a)
that the shareholders of the incorporation to which the application
relates have been given express notice of the application; and
(b)
that the shareholders have passed a special resolution supporting the
application.
The court must not make a partition order unless it is satisfied that the partition
order—
(a)
is necessary to facilitate the effective operation, development, and
utilisation of the land; or
(b)
effects an alienation of land, by gift, to a member of the donor’s
whanau, being a member who is within the preferred classes of
alienees.
289
Partition orders
(1)
Where the court is satisfied that it should partition any Maori freehold land in
accordance with this Part, it shall make a partition order, being—
(2)
[56]
that there is a sufficient degree of support for the application among the
owners, having regard to the nature and importance of the matter.
(a)
an order for the partition of any land into 2 or more defined separate
parcels; or
(b)
an order creating or evidencing the title to any 1 or more of such
defined parcels.
Every partition order shall, upon registration in accordance with section 299,
constitute the title to the parcel of the several parcels of land included in it,
without any transfer or other instrument of assurance being required.
Judge Clark recently summarised the principles with regard to partitions in
Tohiariki – Section 1F No 2 Parish of Katitkati.13 I reproduce that summary below:
[13] A number of principles have developed in case law. First there are a
number of statutory prerequisites to satisfy. They are:
a) The Court must be satisfied that the owners have had sufficient
notice of the application and sufficient opportunity to discuss and consider
it – s 288(2)(a);
b) The Court must be satisfied that there is a sufficient degree of
support for the application among the owners, having regard to the nature
and importance of the matter – s 288(2)(b);
c) The Court must be satisfied that the partition is necessary to
facilitate the effective operation, development, and utilisation of the land
or, effects an alienation of land, by gift, to a member of the donor’s
whānau, being a member who is within the preferred classes of alienees –
ss 288(4)(a) and (b).
13
[2013] 54 Waikato Maniapoto MB 31 (54 WMN 31).
95 Waiariki MB 238
[14] Second, if the statutory prerequisites are satisfied the Court must then
address the mandatory consideration in s 288(1). In this section the Court is
directed to have regard to, the opinion of the owners as a whole, the effect
of the proposal on the interests of the owners of the land and the best
overall use and development of the land – s 288(1).
[15] Third, if the Court is to exercise its general discretion it may refuse to
do so if the application would not achieve the principal purpose of Part 14
of TTWMA – s 287(2). The principal purpose being to facilitate the use and
occupation by the owners of land owned by Māori by rationalising
particular landholdings and providing access or additional or improved
access to land – s 286(1).
[16] As the Māori Appellate Court recently said in Whaanga v Niania –
Anewa Block,10 although a Court must tackle each of the three steps
separately, often the steps overlap in terms of the evidence that applies to
each.
[17] In addition the Court must at all times have regard to the principles set
out in the Preamble to TTWMA, s 2 and s 17. Furthermore when assessing
the question of what is necessary pursuant to section 288(4)(a) the Court
must assess whether there are reasonable alternatives to partition.11
Discussion
[25]
I am not convinced that in terms of s 286 a partition of this block will facilitate the
use and occupation of the land through the rationalisation of the land into smaller whānau
units.
I am not satisfied that the applicants have been able to address this matter
adequately and there remains outstanding issues of equity given the respective values of
the Lots 1-5 and access to all those lots.
[26]
I am also not satisfied that the requirements of s 288(2)(b) have been addressed to
the standard required by the Act. In particular, I do not consider that they have achieved
sufficient support for the application having regard to the nature and importance of the
matter. I acknowledge that they have tried to do so, but they have failed and even now out
of the 122 owners there is still less than 50 per cent of the share ownership in support of a
partition. When the detail of this particular proposal is assessed there are even less shares
in support. In addition, the issue concerning the value of the respective Lots means that
there is no consensus among those who support a partition of the land as to how it should
be subdivided. The Court has bent over backwards to try to assist the parties to reach an
amicable agreement on this issue, and despite this assistance the parties have not been able
to do so.
95 Waiariki MB 239
[27]
In addition, there is s 288(4)(a). That provision requires that I have to be satisfied
that the partition is necessary to facilitate the effective operation, development, and
utilisation of the land. In this respect, the applicants were unable to produce any evidence
that demonstrated why the partition was necessary rather than simply desirable. The
rationale that the wider whānau cannot manage the land together as an ahu whenua trust
and that this partition is needed so that they can have their own individual whānau blocks,
is not sufficient to justify a partition.
[28]
This block is hilly and bush clad in parts. It is a very hard block to access as there
is a river to ford and that river is often in flood in the winter. Residential development is a
limited option for this block at this time, without a clear access proposal including realistic
cost assessment to accompany this application.
[29]
Conversely, it is possible to conduct a limited farming operation on this block and
generate the income necessary to handle the rates and other necessities to ensure that the
block is cared for.
[30]
Furthermore, I note that in exercising my discretion under ss 289 and 288, I must
take into account the Preamble and ss 2 and 17 of the Act. Those provisions make it clear
that I am charged with the responsibility of promoting the retention of land in the hands of
the owners, their whānau and hapu and to facilitate its occupation, development and
utilisation. That approach is further underscored by s 17 of the Act. I consider that by
declining this application for partition a balance will be struck between retaining the land
for the owners that have not participated in this application process and for the generations
of the whānau and hapu to come.
[31]
I consider that no one should now apply for a partition again until they reach at
least a 50 per cent shareholding threshold in support of any future application and that they
can demonstrate with real evidence why a partition is necessary.
Order
[32]
The application is dismissed.
95 Waiariki MB 240
[33]
The Registrar is directed not to accept any further applications for partition unless
there is full compliance with the Māori Land Court Rules 2011, including a scheme plan
and valuation evidence.
[34]
Finally, and in conclusion I note that if there has been an issue as to poor returns
from this land, it is partly because the trustees have been too busy chasing this proposal
rather than focusing on administering the block. It is time that they refocused. They should
conduct an annual general meeting for the purpose of conducting an election and reviewing
their trust order. That way, those who do not wish to remain trustees can retire and new
people may be appointed who have the energy to deal with the land as it is – namely
Tōrere Section 58.
Pronounced in Open Court in Gisborne on the 17th day of April 2014.
C L Fox
DEPUTY CHIEF JUDGE