361 Aotea MB 75
IN THE MĀORI LAND COURT OF NEW ZEALAND
AOTEA DISTRICT
A20160003772
UNDER
Section 239 of Te Ture Whenua Māori Act
1993
IN THE MATTER OF
Sections 57, 58, 70, 72 and 100 of the Rātana
Pā
BETWEEN
MANUAO SONNY TAMOU
Applicant
AND
JACK JOHN SMITH
Respondent
Hearing:
16 August 2016, 356 Aotea MB 282-292
(Heard at Whanganui)
Appearances:
Manuao Tamou, in person
Jack Smith, in person
Rudolph Hotu, in person
Adrian Rurawhe, MP, in person
Judgment:
18 November 2016
JUDGMENT OF JUDGE L R HARVEY
Introduction
[1]
Manuao Tamou seeks the appointment Danielle Marise Hika, Kahu Ariki Hurinui,
Te Pahunga Martin William Davis and Jennifer Wikitoria Waitai-Rapana as responsible
trustees to replace Mere Wiremu, Aparere Wiremu, Nakata Taiaroa, Piha Ratahi, Hohipera
Meihana, Whaimatua Samuel Anaru, Daphne Puanani Whareaitu and Hamiora Pirpi Paki as
trustees for the Rātana Pā Reserve Trust following a hui held on 19 March 2016. He says
that the meeting was properly notified and facilitated by Adrian Rurawhe, MP, and that the
five nominees emerged after an appropriate period of discussion amongst those present. Mr
Tamou asks that the new trustees be appointed as soon as possible.
[2]
Jack Smith opposes the application. He says that the process for nominating trustees
was wrong. Mr Smith asserts that the appropriate process is to coordinate nominations and
through the Rātana Communal Board (“RCB”). Instead, Mr Smith seeks the appointment of
Kevin Anderson, Lei Graham and Josephine Hotu as trustees. In support, Rudolph Hotu
361 Aotea MB 76
submitted that the process followed by Mr Tamou and those allied to him was inappropriate
and in breach of the relevant legislation and also contrary to the custom of the Rātana
Church, the Rātana whānau and the local community.
Issue
[3]
At the hearing on 16 August 2016 I posed the question to the parties that the real
issue is simply who has the responsibility in law to nominate trustees?1 There was no
opposition to this framing of the principal issue for determination.
[4]
Following the hearing, submissions were then received from Rudolph Hotu on 30
August 2016, Josephine Hotu on 14 September 2016, Harerangi Meihana on 14 September
2016, Jack John Smith, the Rātana Communal Board and Rudolph Hotu on 7 October 2016,
Jennifer Waitai Rapana and Gaylene Nepia on 14 October and Adrian Rurawhe MP on 14
and 17 October 2016.
Background
Rātana Trust Board
[5]
On 18 December 1941 the Court vested several Māori freehold land blocks owned
by members of the Rātana family in the Rātana Trust Board per ss 12 and 14 of the Māori
Purposes Act 1941:2
14. Whereas for the better administration and more effective utilization of the Native
settlement at Ratana in the Aotea Native Land Court District, it is desirable to
constitute a Board and to vest certain lands in such Board for administration and
management in accordance with the provisions of this section:
[6]
The Rātana Trust Board was constituted per s 14(2). The members of the Board
were to consist of:3
(a) The President for the time being of the organization known as the Ratana
Movement who shall be the Chairman of the Board:
(b) Three beneficial owners of land vested in the Board, or, if the said President is a
beneficial owner, then two beneficial owners, who shall be nominated by other
beneficial owners:
(c) Three adherents of the Ratana Movement, not being beneficial owners of land
vested in the Board, or, where the said President is not a beneficial owner, two such
1
2
3
356 Aotea MB 282 (356 AOT 282)
101 Whanganui MB 342-343 (101 WG 342-343)
Māori Purposes Act 1941, s 14(3)
361 Aotea MB 77
adherents, who shall be nominated by other adherents of the Movement who are not
beneficial owners:
(d) Two officers of the Public Service (hereinafter in this section referred to as
official members) of whom one shall be nominated by the Director General of
Health and the other by the Under Secretary of the Native Department.
[7]
The lands to be administered by the Rātana Trust Board were described in s 14(29):
The land affected by this section is all those parcels of land in the Aotea Native Land
Court District containing together sixty-four acres and thirty- one perches, more or
less, being portions of Waipu lC 1, 1D 1, 1D 2, and 1D 3 Blocks, situated in Block
XIV, Ikitara Survey District, and being all the land delineated -on Plans W.D. 3975A
and W.D. 3975B, deposited in the Office of the Chief Surveyor at Wellington.
[8]
Further provisions concerning the Rātana Trust Board were issued in 1954. Section
5 of the Māori Purposes Act 1954 provided:
5
Rātana Settlement administration
(1)
Upon application made to it by or on behalf of the Rātana Trust Board
constituted under section 14 of the Maori Purposes Act 1941, or upon the
application of the Registrar, the court may make, in respect of the land
described in subsection (29) of the said section 14, or in respect of any
other land vested in the said Board immediately prior to the
commencement of this Act, orders to the following effect—
(a)
vesting in a trustee or trustees, upon such trusts as may be
declared by the court, those portions of the said land which, at the
commencement of this Act, are used for communal purposes,
whether or not church or other buildings are situated thereon:
(b)
vesting in trustees, not exceeding 5 in number, such portions of
the said land as are suitable for residential purposes upon trust to
subdivide and otherwise prepare the land for those purposes, and
to dispose of the land in suitable lots or areas for house and
business sites:
(c)
vesting any residue of the said land in such persons as the court
finds to be beneficially entitled thereto.
….
(3)
…
Subject to the provisions of this section, every order made under paragraph
(a) or paragraph (b) of subsection (1) shall take effect as if it had been
made under section 438 of the principal Act, and the provisions of that
section shall, as far as they are applicable, and with the necessary
modifications, extend and apply to any such order accordingly. Nothing in
subsection (1) shall be so construed as to limit the authority of the court, in
making any order under this section, to declare any additional and
incidental trusts upon which any trustee or trustees appointed under this
section shall hold the trust property or to confer on any such trustee or
trustees such powers as the court deems necessary for the proper
administration of that property.
361 Aotea MB 78
Rātana Pā Reserves Trust
[9]
In 1955 the Court cancelled the title orders for the blocks described in s 14(29) of
the Māori Purposes Act 1941 and created one title in its place, Town of Rātana.
The Court also made an order vesting Lots 57, 58, 70 and 72 Town of Rātana being
[10]
portions used for communal purposes in 13 trustees and set out the terms of trust.4 The
trustees were to hold the land upon trust on behalf of the adherents of the Rātana movement.
Those trustees comprised of representatives from Tairawhiti, Te Waipounamu, Taitokerau
and Taiharuru. The President of the Rātana Church was also appointed as a trustee.
Following that, on 9 April 1958 the Rātana Trust Board applied to amend the vesting
[11]
orders made in 1955 as the sub divisional plan of the land had been revised and as a
consequence the descriptions of the lands vested in the trustees required amendment. 5 The
first division comprised lots 57, 58, 70, 72 and 100 Town of Rātana (the Rātana Pā reserve
lands).6 The application was adjourned for further notice to be given to the beneficial
owners.
[12]
The final orders were granted 11 April 1958. Lots 57,58,70,72 and 100 Town of
Rātana were vested in the 13 trustees appointed in 1955 to hold the land on trust for the
benefit of the adherents of the Rātana movement.7
[13]
Then on 10 May 1961 the Court appointed replacements following the deaths of two
of the trustees and resignations of 10, leaving Tapihana Paikea as the sole trustee. According
to the minutes a fully representative meeting of the adherents of the Rātana Church resident
at the Pā was convened. Five individuals were nominated and eventually appointed. 8
[14]
Two years later, on 15 October 1963, Tapihana Paikea, who had died, was replaced
as trustee by Piha Ratahi.9 On 1 December 1965 Te One Motu was removed as a trustee
following his death.10
4
5
6
7
8
9
10
113 Whanganui MB 298-299 (113 WG 298-299)
119 Whanganui MB 152-156 (119 WG 152-156)
119 Whanganui MB 152-156 (119 WG 152-156)
119 Whanganui MB 206 (119 WG 206)
125 Whanganui MB 24-25 (125 WG 24-25)
128 Whanganui MB 48 (128 WG 48)
130 Whanganui MB 168 (130 WG 168)
361 Aotea MB 79
[15]
In 1983 the RCB applied to appoint additional trustees to the trust. The application
was sought on the basis that the trusteeship had been reduced to three. According to the
minute of the hearing held on 12 July 1983 a meeting of the people was held at Rātana Pā
and seven individuals were nominated. The Court appointed all seven candidates as trustees
in addition to the existing three.11
Submissions for Manuao Tamou
[16]
Mr Tamou confirmed that a properly notified meeting was held on 19 March 2016.
At that hui, five nominees emerged from the discussion that ensued as replacements for
deceased trustees.
In support, Mr Rurawhe, MP submitted that a proper process of
notification had been followed. He also emphasised that the names of the nominees that had
emerged from the meeting were also presented to the Hui Whakapumau which Mr Rurawhe
equated with a general church synod.
[17]
In addition, Mr Rurawhe outlined the background history to the formation of the
trust and the RCB and its various incarnations over the last half century. Mr Rurawhe,
supporting Mr Tamou and the nominees, underscored that the process was correct, had the
support of the relevant communities of interest and should therefore proceed in accordance
with the outcome of the hui held on 19 March last.
[18]
Gaylene Nepia also provided a submission in support. Ms Nepia argued that she has
been a member of the RCB since 17 September 2015. Since becoming a member the issue
of appointing trustees has been debated at length at every monthly hui she has attended (ten
out of thirteen). Ms Nepia added that core business has been deferred because the two
remaining trustees are unable to reach agreement. Ms Nepia opposed the appointment of the
three RCB nominees. She does not believe that excluding the remaining four elected at the
public hui fits with the kaupapa of their Maramatanga.
[19]
Jennifer Rapana also supports the nominees appointed at the public hui. She was
nominated at that meeting and is also a member of the Rātana Executive Church Committee.
According to Ms Rapana in April 2015 a motion was put to the Rātana Church Synod on
behalf of the RCB seeking a mandate from the Morehu to create a charitable trust under the
RCB. That motion was rejected.
11
146 Whanganui MB 87 (146 WG 87)
361 Aotea MB 80
[20]
Ms Rapana stated that the RCB was established in the late 1970s to fundraise for the
new Manuao. She confirmed the trustees became a part of that project and never returned
back to their own “waka” trust and continued to work under the umbrella of the RCB.
Submissions for Jack Smith
[21]
Mr Smith emphasised the point that a community hui was not the appropriate forum
within which to seek nomination. On the contrary, he argued that there had been a process
of long standing followed by an agreement that the trust should consist of three persons
endorsed by the Rātana movement and up to three persons from the Rātana whānau.
[22]
Mr Hotu gave an outline as to the background history as he understood it,
emphasising the importance of the RCB and its role in the process.
[23]
In addition, Mr Hotu also opposed the application on the basis that the process
followed by the applicant and those supporting him was incorrect and inappropriate. He
referred to a period of some eight years where between 2006 and 2014 various stakeholders
and interested parties agreed, he says, a process of nomination for the trust.
[24]
Further, Mr Hotu underscored his view that the community was the last of the three
parties to gain recognition and involvement, the first two being the Rātana movement and
the Rātana whānau. He also outlined some of the background history as to how the various
entities were created, the circumstances within which they operated and how present events
unfolded.
Discussion
Who has the responsibility in law to nominate trustees?
[25]
As foreshadowed, Mr Tamou submits that the wider Rātana community should be
involved in nominating trustees.
Mr Smith opposes this and says that traditionally
nominations have been made by RCB. Mr Smith says that the long established process of
nomination from the RCB should continue especially given the specific direction from the
Church that the RCB nominees be put forward as replacement trustees.
[26]
Unfortunately, the legislation provides no insight into who has the right to nominate
trustees. In addition, the trust order merely provides that the trustees are to hold the land on
361 Aotea MB 81
trust for the benefit of “the adherents of the Rātana movement”.12 There are also no
provisions for holding meetings, electing trustees and related procedural requirements that
would be expected for such entities.
[27]
This Court has the power to appoint trustees per s 222 of Te Ture Whenua Māori Act
1993 for any trust over Māori land. The Court must be satisfied that there is sufficient
support from the beneficiaries. This is normally done by holding a meeting of beneficiaries.
In Thomson v Newton – Pokuru 1A1B2 and 1A2D2 the Court said:13
Section 222 of Te Ture Whenua Māori Act 1993 provides that the Court in
appointing trustees, must be satisfied inter alia that the trustee/trustees to be
appointed “would be broadly acceptable to the beneficiaries”. The meeting of
beneficial owners was arranged by the Court under the chairmanship of an officer of
the Court. This was a meeting of beneficial owners not a meeting of assembled
owners, summoned in terms of Part IX of the Act. It was sought merely to enable the
owners to decide who should be nominated to the trust for appointment for the
purposes of satisfying the provisions of section 222 of the Act. Such meetings have
no formal requirements as to quorum or voting and since a consensus only is sought,
voting by a show of hands is appropriate. Trustees are appointed in accordance with
statute or the trust document. In this present instance the trust document is silent as
to the matter of appointment of trustees and neither the Trustee Act 1956 nor Te Ture
Whenua Māori Act 1994 make any provision as to the manner of voting on these
matters. A vote by poll is not essential nor warranted and a consensus is more
appropriate and better meets the provisions of section 17(2)(c) of the Act, whereby a
balance is achieved between major and minor owners.
[28]
The learned authors of Equity and Trusts in New Zealand observe that at general law
the power of appointment and removal of trustees has been described as a power of a
fiduciary character and its exercise as a duty of a fiduciary nature to the cestuis que trust.
They refer to the decision of Davies J in Re Burton, Wily v Burton:14
But perhaps the more important point is that the power to remove a trustee and to
appoint a new trustee is neither a general power of appointment nor a power which
may be executed in the interests of the appointor. The interest of the persons other
than the appointor must be taken into account. The power is a trust or fiduciary
power, being a power conferred by the deed of trust, and must be exercised
accordingly, in the interest of the beneficiaries. A power, even though not a fiduciary
power, must be exercised solely in furtherance of the purpose for which it was
conferred.
[29]
Generally the Court is permitted to appoint a new trustee or new trustees, whenever
it is expedient per s 51 of the Trustee Act 1956. If it is found inexpedient, difficult, or
12
13
14
119 Whanganui MB 201, 206 (119 WG 201,206)
(1997) 19 Waikato Maniapoto Appellate Court MB 66 (19 APWM 66)
Law of Trusts (online ed, Lexis Nexis) at [4.37]
361 Aotea MB 82
impracticable to do so without the Court’s assistance, then the Court may make an order
appointing a new trustee or new trustees.15
[30]
Mr Tamou has sought to obtain the views of the Rātana community by calling a
public hui. The meeting was held on 19 March 2016 at Rātana Pa. Mr Tamou was unable to
attend due to his hospitalisation. Mr Smith was also absent. It was then argued, inter alia,
given that both current trustees were absent the meeting should not have proceeded. I
consider that argument unsustainable. There are no formal requirements for a meeting of
beneficiaries. The public hui was sought to enable the community to decide who should be
nominated to the Rātana Pā Reserves Trust for appointment. The fact that the trustees were
absent is not fatal to the application and Mr Tamou at least was aware of the hui since he
called it.
[31]
Mr Smith stated that in the past the process has been that the RCB nominates
trustees and applies to the Court for appointment. The impression I gained from the hearing
was that the RCB have been operating in a manner akin to the Rātana Pā Reserves Trust.
However, I can find no legal authority for RCB’s operation or ability to administer the
Rātana Pā Reserves Trust. It is the Trust that is the legal entity for the reserve lands. It is
responsible for the administration and management of the lands in the interests of the
adherents of the Rātana Movement.
[32]
Mr Smith also sought to rely on correspondence from the Tumuaki of Te Haahi
Rātana, Harerangi Meihana dated 23 August 2016 which stated:
There have been on-going issues around the replacement of trustees on The Ratana
Reserves Trust. I am aware that this has been before the Māori Land Court and has
not yet been resolved.
I would like to table a resolution that a minimum of three representatives from the
Ratana Communal Board be nominated onto the Reserves Trust as Trustees as they
have in the past.
[33]
Ms Nepia and Mr Ruarawhe MP submit that at the RCB hui held on 29 August 2016
the Tumuaki attended and according to their recollections the Tumuaki considered that three
nominees from the RCB should be appointed in addition to the nominees put forward at the
public hui. However, it appears that a further RCB hui was held on 29 September 2016
where the RCB resolved that only the three RCB nominees should be appointed.
15
Ibid at [4.37.1]
361 Aotea MB 83
[34]
Mr Tamou and Mr Smith, as the current trustees of the Rātana Pā Reserves Trust,
attempted to meet and resolve the issue on several occasions. However, it appears that a
solution remains elusive.
[35]
Having regard to all the circumstances, I consider that the individuals elected at the
public hui and the nominees put forward by RCB should all be appointed as interim trustees
for a period of say up to two years. This will mean a trust of nine, including the current
living trustees. In making these appointments I note that in 1983 there were ten trustees,
with seven new trustees being added to the current appointments. Accordingly, it is not
unprecedented to have more than five trustees appointed at any one time. Following their
appointment, the trustees should then review their trust order, in consultation with all
relevant parties, and consider amending the trust order to include an appropriate mechanism
for the appointment, retirement, re-election and replacement of trustees. Any proposed
changes will need to be considered by the beneficiaries to ensure compliance with s244 of
the Act.
[36]
Section 244 of the Act states:
(1) The trustees of a trust to which this Part applies may apply to the Court to vary
the trust.
(2) The Court may vary the trust by varying or replacing the order constituting the
trust, or in any other manner the Court considers appropriate.
(3) The Court may not exercise its powers under this section unless it is satisfied—
(a) that the beneficiaries of the trust have had sufficient notice of the application
by the trustees to vary the trust and sufficient opportunity to discuss and
consider it; and
(b) that there is a sufficient degree of support for the variation among the
beneficiaries.
[37]
It is important to underscore that the sufficiency of notice, of opportunity for
discussion and of support tests have been considered in a number of decisions including
Brown – Kairakau 2C5B,16Karu o te Whenua B2B5B1,17 Brown v Māori Appellate Court18
and Reid v Kaiwaitau.19 Those authorities emphasise that “sufficiency of support” will
depend on a range of key considerations including the nature and importance of the issue
being decided, the extent of support and opposition and whether notice has been adequate.
16
17
18
19
(1996) 11 Taitokerau Appellate MB 143 (11 ACTK 143)
(1996) 19 Waikato Maniapoto Appellate MB 40 (19 APWM 40)
[2001] 1 NZLR 87
(2006) 34 Gisborne Appellate Court MB 168 (34 APGS 168) at 172
361 Aotea MB 84
[38]
The Court of Appeal in The Trustees of Pukeroa Oruawhata v Mitchell stressed the
importance of strict adherence to s 244 of the Act whenever variations to trust orders are
contemplated. 20 A three step process was necessary: first, notice to the beneficiaries of the
proposed variation; second, sufficient opportunity to discuss and consider the proposals; and
third, evidence of support from the beneficiaries.
[39]
Whenever a specific variation is proposed, then the beneficiaries are entitled to
notice of the proposal with a degree of precision to provide certainty as to what exactly is to
be changed. In other words, it is not sufficient that a notice for a general meeting of
beneficiaries states “variation” or “variation to trust order” without providing a clear
indication as to the practical effect of the proposed variation. Otherwise the beneficiaries
will not have received notice in the strict sense and may ask for further hui.
[40]
One example is where a proposed variation is to alter the manner of voting from
show of hands to shares, the notice to the beneficiaries should make that point clear. It
should be clear to a lay audience as to what is intended and how it differs from the existing
trust order. Another example is where it is proposed that trustees serve finite terms and may
offer themselves for re-election. Again the notice need not refer to the relevant clauses and
recite them exactly. It should be sufficient that the notice say that a variation is proposed to
enable election of trustees by rotation on a triennial basis for example.
[41]
In addition, sufficient opportunity to consider the proposed variation and to discuss
it is also a requirement in the legislation.
The minutes of any general meeting of
beneficiaries should record the discussion and any resolutions in support of or in opposition
to the variation. The minutes should also record, where there is opposition or abstention, the
number of owners who voted. This will then assist the Court in its consideration of whether
the third element of the process has been satisfied, namely the extent to which there is
evidence of sufficiency of support for the proposed variation.
[42]
Given these observations, it may also assist the parties if independent counsel were
appointed to support their deliberations as to the particular drafting that may be required to
achieve a set of sensible outcomes for the beneficiaries of these lands. These are complex
historical and legal issues, in terms of the amending of the trust order that may be required,
and so particular expertise may be of assistance. The review of the trust order should also
consider the tenure of trustees, the means of their appointment including consultation and
20
[2008] NZCA 518
361 Aotea MB 85
notice, trustee accountability and reporting to the beneficiaries, dispute resolution processes
and the more mundane procedural processes required for the convening and conduct of
trustee meetings and general meetings of the trust’s beneficiaries.
Decision
[43]
Danielle Marise Hika, Kahu Ariki Huirinui, Te Pahunga Martin William Davis,
Jennifer Wikitoria Waitai-Rapana Kevin Anderson, Lei Graham and Josephine Hotu are
appointed responsible trustees for two years or until further order of the Court. Aparere
Wiremu, Daphne Puanani Whareaitu, Hamiora Piripi Paki, Hohipera Meihana, Mere
Wiremu, Nakata Taiaroa, Piha Ratahi and Whaimatua Samuel Anaru are replaced as
responsible trustees as they are deceased. To avoid doubt, Sonny Tamou and Jack Smith are
to remain as responsible trustees.
[44]
The trustees are directed to undertake a review of the current trust order within 12
months with particular reference to the process for the nomination, election, retirement,
resignation and replacement of trustees. The review must include appropriate consultation
with the trust beneficiaries over a series of hui and discussions that the trustees will arrange
during the review period.
[45]
Counsel will be appointed to assist the trustees in due course.
[46]
Leave is reserved for any party to seek further directions at any time.
[47]
There is no order as to costs.
These orders are to issue immediately, per r7.5, Māori Land Court Rules 2011
Pronounced at 4.10pm in Whanganui on Friday this 18th day of November 2016
L R Harvey
JUDGE