IN THE MAORI APPELLATE COURT OF NEW ZEALAND WAIARIKI DISTRICT 2011 Maori Appellate Court MB 500 (2011 APPEAL 500) A

Transcription

1 IN THE MAORI APPELLATE COURT OF NEW ZEALAND WAIARIKI DISTRICT 2011 Maori Appellate Court MB 500 (2011 APPEAL 500) A UNDER Section 58 Te Ture Whenua Maori Act 1993 IN THE MATTER OF Estate of Whakaahua Walker Kameta, Te Puke 2A2A3B1 and 2A2A3B2 BETWEEN AND PHYLLIS RANGI NICHOLAS, JANE TIWHA, ANDRE NICHOLAS, CHARMAINE NICHOLAS, MARSHALL NICHOLAS, AND BRUCE NICHOLAS Appellants LEN KAMETA, DUKE POIHIPI AND ROBINA THOMPSON Respondents Hearing: 2010 Maori Appellate Court MB dated 17 August 2010 (Heard at Rotorua) Court: Deputy Chief Judge C L Fox Judge A D Spencer Judge L R Harvey Appearances: Leo Watson, counsel for the Appellants Miharo Armstrong, counsel for the Respondents Judgment: 31 August 2011 REASONS FOR ORAL JUDGMENT Solicitors: leowatson@paradise.net.nz Leo Watson, PO Box 92, Paekakariki, Kapiti Coast admin@aurere.com Aurere Law, PO Box 1693, Rotorua 3010 NICHOLAS V KAMETA MAC 2011 Maori Appellate Court MB August 2011

2 CONTENTS Introduction [1] Background [3] The Appeal [6] Application to adduce further evidence [9] The issues on appeal [12] Is Ms Nicholas entitled to a life interest? [13] Appellant s submissions [14] Respondents submissions [17] Discussion [21] The purpose of Te Ture Whenua Māori Act 1993 [21] Date of distribution [26] Are the children of Ms Nicholas related by blood to the deceased and are they members of the hapū associated with the land? [28] Membership of the hapū associated with the land [21] Appellants submissions [29] Respondents submissions [35] Discussion [39] Related by blood [40] Hapū associated with the land [57] Are the children of Ms Nicholas whāngai of Mr Kameta? [62] Should provision be made for Ms Nicholas from the income of Mr Kameta s Māori land? [63] Appellants submissions [64] Respondents submissions [66] Discussion [67] Should the interim injunction remain in force? [69] Costs [70] 2011 Maori Appellate Court MB 501

3 Appellants submissions [70] Respondents submissions [71] The Law [72] Discussion [74] 2011 Maori Appellate Court MB 502

4 Introduction [1] On 17 August 2010 we issued an oral decision on this appeal noting that detailed reasons for the judgment would follow in due course. 1 For convenience that decision is set out below: 1. The appeal of Phyllis Rangi Nicolas is declined but only as to the claim that the Court erred in finding that the Act does not permit her to take a life interest under the [W]ill of the deceased dated 10 August In fact, we find that His Honour Judge Savage correctly interpreted s108(4) of Te Ture Whenua Māori Act 1993 as to the meaning of spouse. 2. However, we accept that the children of Phyllis Nicholas are related by blood to the testator and are members of the hapū associated with the land. The appeal filed on behalf of the remaining appellants is allowed in that the orders of the Māori Land Court issued on 2 December 2009 concerning s108(2)(c) are annulled and substituted with the following orders: a) clause 4(d) of the deceased s [W]ill is to be given full effect in terms of succession to Te Puke 2A 2A 3B1 and 2A 2A 3B2; b) there will be orders under ss113 and 117 of the Act in favour of those beneficiaries listed in clause 4(d) of the [W]ill. 3. As to the issue of whāngai that depended on whether this Court found the arguments regarding s108(2)(c) could not succeed and given that we have allowed the appeal on that point, it is unnecessary for us to consider that issue. 4. Having regard to the overall justice of the matter and to the findings made by Judge Savage that the deceased and Phyllis Nicholas were in a defacto relationship and taking into account section 116(3) the Court pursuant to section 56(1)(f) makes an order under s116 awarding to her any income derived from Te Puke 2A 2A 3B1 and 2A 2A 3B2 for life or until she enters into any relationship in the nature of a marriage, defacto partnership or civil union. 5. Finally, the interim injunction issued by His Honour Judge Savage on 16 December 2004 is cancelled as per rule 83 of the Māori Land Court Rules Nicholas v Kameta - Estate of Whakaahua Walker Kameta (2010) Māori Appellate Court MB 254 (2010 APPEAL 254) at Maori Appellate Court MB 503

5 [2] We then invited counsel to make submissions on costs. Those arguments are considered at the end of this judgment. Background [3] Whakaahua Walker Kameta died on 27 October He left a Will dated 10 October A grant of probate was then issued on 24 March On 2 December 2009 His Honour Judge Savage issued a reserve judgment concerning the Will as it affected Mr Kameta s Māori land interests. 2 The relevant parts of the Will are set out below: 1. I give any land owned by me but excluding my land at 133 No. 1 Road, Te Puke, to such of my brothers and sisters as shall survive me and if more than one in equal shares. 2. If my friend PHYLLIS RANGI NICHOLAS is living at my death, my trustees shall hold my property at 133 No 1. Road, Te Puke ( my residence ) and all fitted floor coverings, window hangings and light fittings in the property as follows: (a) My said friend shall be entitled to occupy my residence during her lifetime. (b) My said friend shall pay all rates, insurance premiums and other outgoings on my residence which are usually paid out of income. (c) Should any part of my residence not be in good condition on my death my trustees may put that part into good condition, and charge the costs involved to the capital of my residuary estate. (d) From the first point in time when I have died and when my friend has died to hold my said residence in six (6) equal shares, with the first five of such shares to be held for the benefit of my friend s children JANE TIWHA, ANDRE GEORGE NICHOLAS, CHARMAINE NICHOLAS, MARSHALL NICHOLAS and BRUCE NICHOLAS provided that if any of the said JANE TIWHA, ANDRE GEORGE NICHOLAS, CHARMAINE NICHOLAS, MARSHALL NICHOLAS and BRUCE NICHOLAS should die before me leaving a child or children living at my death, that child or children shall be entitled equally to their parent s share as if that parent had been living at my death. The remaining share shall be held for the benefit of such of the children of my friend s late daughter NESSIE ANGELINA NICHOLAS as survive me and attain the age of 21 years and if more than one in equal shares. 2 Kameta v Nicholas - Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348 ROT 282) 2011 Maori Appellate Court MB 504

6 [4] The land at 133, No. 1 Road, Te Puke is in two severances, Te Puke 2A 2A 3B1 having an area of hectares and Te Puke 2A 2A 3B2, having an area of hectares. Mr Kameta was the sole owner of Te Puke 2A 2A 3B1. 3 [5] Judge Savage decided that the life interest awarded to Phyllis Rangi Nicholas, the defacto partner of the deceased, should fail. He also determined that s108(2)(c) of Te Ture Whenua Māori Act 1993 did not permit her children from taking pursuant to the Will, because the whakapapa link with the deceased was too tenuous. The Judge then made certain findings concerning the hapū associated with the land namely Waitaha Tūturu and Whitikaioneone. He also found that the Appellant s children were not whāngai but rather foster children of the deceased. In summary, Judge Savage held that paragraph 4 of the Will was of no effect being contrary to the terms of the Act. 4 The Appeal [6] On 4 February 2010, counsel for Ms Nicholas filed an appeal against the decision of Judge Savage. The Notice of Appeal dated 3 February 2010 was filed two days late and counsel sought leave to submit the notice out of time with the Chief Judge and this request was granted. 5 [7] The notice alleges that the lower Court erred in finding that none of the children of Ms Nicholas have the status of whāngai of Mr Kameta and were unable to take pursuant to the Will, and in finding that the Act did not permit Ms Nicholas to take a life interest. It was also claimed that the lower Court further erred in the application of s116 of the Act. [8] This appeal was originally set down for February 2010 but for various reasons was unable to proceed and the parties sought an adjournment. The appeal was heard on 17 August Curiously Maori Land On line records Natalie and Teddy Boy Kameta as the owners of this land. They succeeded to this land at 21 WAR 192 as part of a succession to further interests of Walker Te Huatahi Kameta, originally succeeded to at 251 ROT 362, dated 3 September The Registrar may need to raise the matter with the parties to this succession decision so this error may be addressed. 4 Supra, fn 2 at [55] 5 (2010) Chief Judge s MB 47 (2010 CJ 47) 2011 Maori Appellate Court MB 505

7 Application to adduce further evidence [9] Prior to the hearing, Mr Watson filed an application for leave to adduce further evidence from Andre Nicholas on the circumstances of the tangihanga of Mr Walker. He also sought a subpoena for Nigel Kameta to answer questions on his evidence. Mr Armstrong opposed the application. He filed an affidavit from Nigel Kameta responding to the affidavit of Andre Nicholas and refuting the evidence therein. [10] Under s55 of the Act, parties in this Court are restricted to a review of the evidence in the lower Court. This position is reiterated in the Māori Land Court Rules 1994 under r173(3). The only exception is where this Court, pursuant to s55 of the Act and r173(4), allows such further evidence to be adduced as in its opinion may be necessary to come to a just decision on the matters at issue. On this issue, we were of the view that the evidence sought to be adduced could have been produced during the lower Court hearing, where there was ample opportunity for the Appellants to seek to have Nigel Kameta made available for cross-examination and to raise the issues outlined in Andre Nicholas affidavit produced for the Court dated June [11] In addition, it was our view that the probative value of the evidence was doubtful given its highly contested nature and the main issues for determination before the Court. We also did not believe that the threshold tests in Hoko Papamoa 2A1 6 had been met. Thus the application to adduce further evidence was declined. The issues on appeal [12] As foreshadowed we have identified five principal issues for consideration in our oral judgment. Those issues are set out below: (a) (b) (c) Is Ms Nicholas entitled to a life interest? Are the children of Ms Nicholas related by blood to Mr Kameta and members of the hapū associated with the land? Are the children of Ms Nicholas whāngai of Mr Kameta? 6 Hoko Papamoa 2A1 (2003) 20 Waikato Maniapoto Appellate Court MB (20 APWM 167). See also Ruka Taheke 23A and 23B (2010) Māori Appellate Court MB 254 (2010 APPEAL 254) at Maori Appellate Court MB 506

8 (d) (e) Should provision be made for Ms Nicholas from the income of Mr Kameta s Māori land? Should the interim injunction remain in force? Is Ms Nicholas entitled to a life interest? [13] Judge Savage accepted that Ms Nicholas lived in a defacto relationship with Mr Kameta. 7 He went on to find, however, that at the time the Will became operational, which in his view was the date of Mr Kameta s death, s108(4) of the Act only permitted an owner of Māori land interests to leave a life interest in favour of their spouse, namely a person to whom the testator was married. He went on to state: 8 For the Will to stand in relation to the grant of the life interest to Phyllis, she would either have to have been related to Dada by blood and a member of the hapū associated with the land, or his spouse. She is neither and the life interest purportedly granted to her is of no effect. Appellants submissions [14] Mr Watson argued that the lower Court erred in failing to give appropriate regard to the express wishes of the testator, in its assessment of Ms Nicholas as a spouse. He submitted that the first duty of the lower Court was to ascertain the language of the Will, to read those words used and to ascertain the Will-maker s intention from them. If the wording of a Will appears to offend against some rule of law and to be partially invalid, but is fairly capable of another construction that avoids the objection, he contended that the latter is presumed to be the Will-maker s intention. [15] Counsel contended that the lower Court failed to give the meaning of spouse in s108(4) a meaning consistent with the New Zealand Bill of Rights Act 1990 (BORA). In this respect he argued that the recent decision of the High Court in Re AMM 9 in response to a case stated from the Family Court, held that the term spouse in the Adoption Act 1955, by reason of s6 of the BORA, includes a man and a woman who are unmarried but Kameta v Nicholas - Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348 ROT 282) Ibid, at[54] Re: AMM [2010] NZFLR 629 at [73] 2011 Maori Appellate Court MB 507

9 in a stable and committed relationship. Mr Watson contended that there was an even stronger case to make such a finding in terms of the 1993 Act. [16] In the alternative, he submitted that the date of distribution of the estate, not of the date of death of the deceased, should be the date that determines the issues. It is the trigger point for the interpretation of the clauses in the Will, where it is the donee (not the property) being identified. Mr Watson conceded that the class of property under a devise is determined as at the date of death. He argued, however, that the class of donee may be determined as at the date of distribution, and if so, then the Relationship (Statutory References) Act 2005 should apply thus allowing Ms Nicholas, as the defacto partner of Mr Kameta, to take a life interest. Respondents submissions [17] In response, Mr Armstrong submitted that the Will was clear in its terms. It referred to Ms Nicholas as my friend. There was no reference to the term spouse. He noted that the Act provides restrictions on succession, including at the relevant time, a restriction as to whom a life interest may be granted by Will. The Māori Land Court, he contended, must apply these restrictions to any Will to ensure that the kaupapa of the Act is maintained. [18] Counsel then argued that in terms of the relevance of the decision Re AMM the High Court did not think that the term spouse had changed since the Adoption Act 1955 was passed. It has remained a word commonly used to refer to married people. In addition, he submitted that the case was distinguishable on five grounds. First, the purposes of the Adoption Act 1955 and the 1993 Act were very different. Second, this is not a case where the law is an absurdity and there would be no loss to any party as a result of extending the meaning. When compared to the case before this Court, there clearly will be a loss occasioned to one party depending on the outcome of the appeal. [19] Third, unlike Re AMM this is not a case where Parliament has failed to address the issue and for this Court to adopt the Appellants approach would be to render the Relationship (Statutory References) Act 2005 nugatory. Fourth, the High Court noted that adoption is a discrete area and that the numbers affected are relatively small and that no justification for discrimination under that legislation was advanced. When compared to this case, the Appellant s approach would allow a flood of applications from defacto partners to be revisited from 1993 to 2005, thereby reversing countless existing orders and rights of 2011 Maori Appellate Court MB 508

10 those to whom succession has been granted. Fifth, if Parliament intended such a result the Relationship (Statutory References) Act 2005 would have been retrospective. [20] As to the argument that the date of distribution is the date when the distribution is to occur, the Appellants have not shown that Judge Savage erred in finding that the law applied as at the date of death. Discussion The purpose of Te Ture Whenua Māori Act 1993 [21] We begin by noting the general rule that the words and expressions used in a Will must be given their plain and ordinary meaning. 10 The Will is to be read as a whole in order to ascertain the Will-maker s intentions. 11 Where the words are plain in their meaning, a Court cannot depart from that meaning even if it seems that a Will-maker may have misunderstood the legal effect of the gift. 12 However, there are exceptions to the general rule created by statutes, including Te Ture Whenua Māori Act In the Act, the language of s108(2) provides a restricted list of people to whom a Will-maker may devolve his or her Māori land interests. A spouse is not included in that list. Instead, Parliament made provision in s108(4) of the Act for a spouse to be left a life interest. The term spouse in this context must mean, in ordinary common usage, a person to whom a testator is legally married. [22] We agree with Mr Armstrong that the restrictions of the Act must be applied where these are relevant. Indeed, s5 of the Interpretation Act 1999 establishes that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The purpose of the Act is set out in the Preamble and s2. In particular, s2 makes it clear that Parliament s intention was that the provisions of the Act were to be interpreted in a manner that best furthers the principles set out in the Preamble. One of those principles is to promote the retention of Māori land, as a taonga tuku iho, in the hands of its owners, their whānau, and hapū. In accordance with that approach, there are specific provisions that limit the alienation of Māori land in restricted classes of people, of which s108 is one. Thus, unless a spouse is of one of the restricted classes listed in s108(2) of the Act, they cannot receive any Laws of New Zealand Wills (online ed) at [163] Ibid Ibid at [236] 2011 Maori Appellate Court MB 509

11 beneficial interest in Māori land held by a testator after their death, even if it is specifically devised. [23] We cannot try and fit this express restriction around the intention of the testator so as to give effect to the Will. If Parliament intended that result it would have provided the discretion to give effect to such intention. It did not do so. In addition, the decision in Re AMM is distinguishable. In this case there is an express provision specifically limiting the class for whom a life interest may be left to, namely a spouse. As the 1993 Act was passed after the BORA, if Parliament intended that the BORA was to be applied to the interpretation of the 1993 Act, it would have expressly stated as much in s2. It did not do so. We also accept the arguments made by Mr Armstrong on this point. [24] This application before the lower Court was filed in November This was before the Act was amended by the Relationships (Statutory References) Act At that time it was not possible to leave a beneficial interest in Māori freehold land to by will to a spouse for life or for any shorter period. While seemingly unjust to some, that was the law as it stood when the testator made his Will, when he died and when the application was filed. The argument that effect should be given to the intention of Mr Kameta for Ms Nicholas to obtain a life interest cannot be sustained. [25] Parliament has now expressly reversed that result by the 2005 amendment. From 26 April 2005, any owner of a beneficial interest in Māori freehold land may, by Will, leave that interest to the owner s spouse, civil union partner, or defacto partner for life or for any shorter period. However, this change has come too late for Ms Nicholas. Date of distribution [26] We note that if the Will involves a devise to a class (e.g. life interest with remainder to others) the vesting of the interests in that donee class must vest as at the time of the testator s death, even though the class may enlarge following that event. 13 In this case, however, the Will clearly identified my friend Phyllis Nicholas. But for s108(4) of the Act the interest for life would have vested at that point. It is the operation of the Act prior to 2005 that prevents her taking that interest. The Appellants arguments on this point must fail. 13 Laws of New Zealand Wills at [279] 2011 Maori Appellate Court MB 510

12 [27] Therefore our conclusion is that Ms Nicholas is not entitled to a life interest. Are the children of Ms Nicholas related by blood to the deceased and are they members of the hapū associated with the land? [28] Judge Savage relied on the majority decision of the Māori Appellate Court in Mihinui - Maketu A which concerned the different context of alienation by sale and the test to be applied under s148 of that Act. Under that section an owner of Māori land may alienate an undivided interest in Māori land to any person of the preferred classes defined in s4 of the Act. Judge Savage stated: 15 [12] Pursuant to that section one had to look at what is called the preferred class. The relevant subspecies of preferred class in that case was whanaunga of the alienating owner. Whanaunga in s.2 [should be s.4] means a person related by blood. The test before me and in the Appellate Court decision is exactly the same. [13] The nub of the decision, was that related by blood meant something more than the European concept of the nuclear family, but something less than a distant historical link, and that those related by blood, would likely be members of the same hapū in any event.... [17] In my judgment the generic relationship is distant indeed. We are talking about a common ancestor extremely distant in time, who must at least have been living in the 18 th Century and perhaps earlier. One only has to look at the matter in terms of mathematical dilution. If the dilution is to be nine times, then we are talking in the order of five hundred to one. The finding of links between Māori is a common experience and activity, for in traditional terms, we are dealing with a culture and a people for whom whakapapa and mana deriving there from, was everything. In the rituals of encounter, it would be extreme indeed to go back nine or thirteen generations to find a link. [18] In my judgment the links are now so tenuous that it cannot be said that the Nicholas children were related by blood to Dada, within the meaning of that term in Te Ture Whenua Māori Act [20] Having reached this point, I have effectively determined that s108(2)(c) of Te Ture Whenua Māori Act 1993, does not permit the Nicholas children from taking, pursuant to the (2007) 11 Waiariki Appellate Court MB 230 (11 AP 230) Kameta v Nicholas - Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348 ROT 282) at [12]-[13], [17]-[18], [21]-[22], [27] 2011 Maori Appellate Court MB 511

13 will, because they are not related by blood. However, for the sake of completeness, I pass on to the issue of whether they are members of the hapū associated with the land. Membership of the hapū associated with the land [21] In the vast majority of cases, persons related by blood, in the sense that the term is used in Te Ture Whenua Māori Act 1993, will be members of the same hapū, and vice versa. But this is not necessarily the case, hence the two step approach required in s108(2)(c) of that Act. As an aside, this is an indicator of the scope to be applied to the term related by blood; for co-membership of a hapū will not... necessarily be sufficient evidence of the required relationship by blood. [22] The main issue here is the identification of the hapū associated with the land. For the Kameta side, Maru Tapsell and Tame McCausland propose Whitikaioneone, of which, the Nicholas whānau are not members. For the Nicholas side Monty Te Moni and Rereamu Wihapi say that Waitaha tūturu is the appropriate hapū and includes the Nicholas whānau. These two persons say that they have never heard of Whitikaioneone as a hapū. They know Whitikaioneone as a tupuna. He was a teina to Ruataumanu. They suggested that for that very reason he would not have been the founder of a kin group. I pointed out to them the many occasions when teina had in fact become the eponymous ancestor of iwi and hapū, and in the end they accepted that. Their situation, however, was that they did not know him as the eponymous ancestor of any hapū. [27] I must weigh all the evidence and the balance of the evidence points me inevitably to the proposition that there is no working, functioning contemporary hapū, known as Whitikaioneone. It is not clear whether this hapū is a recent invention or whether it is an echo back to an earlier time. I am clear however, that there is no contemporary functioning hapū in the sense that is required by s108(2)(c). Appellants submissions [29] Mr Watson provided the Court with a whakapapa chart that, in his submission, demonstrated the connection between the Nicholas children and Mr Kameta. The whakapapa is from their biological father, Barry Nicholas to the ancestor Te Kumikumi who is held in common with the deceased. 16 Mr Watson submitted the common hapū associated with the land is Waitaha tūturu, which is also referred to as Ngāti Haraki. 17 Waitaha tūturu is the hapū that was granted title to Te Puke 2A out of the Te Puke Reserves. Other divisions L Watson, Submissions for the Appellants, Appendix 1 Ibid, at [2.4.3] and Appendix Maori Appellate Court MB 512

14 of Te Puke 2 were granted to three other Waitaha hapū, Ngāti Rereamanu, Ngāti Moemiti and Ngāti Pukuokahoma. 18 [30] Mr Watson pointed to the original Schedule of Owners for Te Puke 2A. 19 Owner 32 is Te Pokiha Taranui, the teina to Te Waata. Te Waata is the great grandfather of Barry Nicholas. Owner 44 is Rakitu Haerehuka, who is the great grandmother of the deceased, Mr Kameta. 20 In addition to this connection, the Nicholas children have undisputed whakapapa links to the deceased through another line of their biological father, to the common ancestor Rereamanu. Ngāti Rereamanu was granted Te Puke 2B, which bordered Te Puke 2A. The Nicholas children also whakapapa to the deceased through their biological mother, Ms Nicholas (nee Martin or Matene) to the ancestor Te Rangiunuora who is held in common with the deceased, although it was acknowledged Ngāti Rangiunuora is not a hapū associated with the Te Puke lands which are the subject of this appeal. [31] Mr Watson went on to argue that the lower Court had erred in law in its interpretation of clause 4 of the Will with reference to the explicit intentions of Mr Kameta as regards the Nicholas children. He claimed they were wrong in finding that s108(2)(c) of the Act does not permit the Appellants to take pursuant to the Will, because they are not related by blood to the testator. He also argued the lower Court erred in its interpretation of the phrase in s108(2)(c) are members of the hapū associated with the land, and in finding on the evidence that there is no contemporary functioning hapū applicable to the land. [32] Mr Watson contended that the lower Court erroneously applied the two limbs of s108(2)(c) by treating these as entirely distinct, rather than viewing sub-paragraph (c) as a whole and ensuring that the two phrases therein relate logically to each other. The phrase related by blood can, he submitted, retain its wide and unambiguous meaning, because its breadth is fettered by the fact that it is only those related by blood who are members of the same hapū who fall within this class. He went on to argue that the purpose of the legislation is that the phrase related by blood be interpreted with reference to the hapū associated with the land, to promote the retention of the land within the whānau and hapū of the owners. [33] After reviewing the basis of the lower Court s findings, Mr Watson submitted that a further error was in failing to recognise Waitaha tūturu as a functioning hapū to which the Folio 606 of the case on Appeal Ibid, folio 500 Mary Gillingham Waitaha and the Crown A Report Commissioned by the Crown Forest Rental Trust (Wai 644, February 2001) 2011 Maori Appellate Court MB 513

15 Nicholas children and the deceased belonged. The Court did not find that co-membership of the relevant hapū was an appropriate and workable fetter to satisfy s108(2)(c) of the Act. [34] Finally, it was also argued that Judge Savage s decision was contrary to tikanga Māori and the evidence provided to the Court. Respondents submissions [35] Mr Armstrong analysed the whakapapa between Mr Kameta and the Nicholas children noting that they both whakapapa to Te Kumikumi, nine generations on Mr Kameta s side and 11 generations on the Nicholas side. The Respondents argued that if the Nicholas children were successful that this would not result in maintaining the whakapapa line from Rakitu Haerehuka, the source of Mr Kameta s interest. Instead, counsel argued, it is going up the whakapapa line nine generations to Te Kumikumi, across to a separate descent line starting with Ruataumanu and then down eleven generations to the Nicholas children. Mr Armstrong submitted this was not a taonga tuku iho process in the proper sense and is a hara or a wrongful act to the tikanga of Waitaha. [36] Counsel argued that s108(2)(c) of the Act must be interpreted in a manner that gives effect to the intention of Parliament. He contended that Parliament intended this to be a two limb test: being related by blood and being members of the hapū associated with the land. Mr Armstrong conceded that if two people are members of the same hapū, they will also be related by blood, given that membership to the hapū is based on whakapapa to the paramount tipuna for that hapū. [37] But he contended, if the Appellants proposition was accepted as to the approach to the interpretation of s108(2)(c), the test would be reduced to a one limb test, namely whether they were both members of the hapū associated with the land. Thus one of the limbs of the provision would be rendered nugatory. This would cut directly across the intention of Parliament that a two limb test is required. Related by blood, he argued, must require something closer than simply membership of the same hapū as this approach defeats the intention of Parliament. Thus, Mr Armstrong argued, there was no error of law by Judge Savage who adopted the same approach. [38] In terms of the tikanga argument, Mr Armstrong pointed to evidence to argue that if the land goes to the Nicholas whānau that would not maintain the whakapapa line to the whenua Maori Appellate Court MB 514

16 Discussion [39] We have already discussed the impact of the Act on the freedom of a Will-maker to leave his Māori land interests as he or she wishes. This is explicitly provided for in s108(2) of the Act. The Nicholas children may only take under clause 4 of the Will if they fall within one of the classes listed in this provision. In this respect the relevant classes would be those listed in s108(2)(c) and (e) concerning whāngai. We discuss the issue of whāngai below. Related by blood [40] Returning to s108(2)(c), that provision enabled Mr Kameta, as an owner of a beneficial interest in Māori freehold land, to leave his interests by Will to any person who is related to him by blood and who are members of the hapū associated with the land. The first hurdle to overcome to satisfy this provision requires evidence that the intended successors are related by blood to the testator. [41] The whakapapa produced demonstrates a blood relationship between the Nicholas children and Mr Kameta. The only issue between the parties relates to the degree to which there is a blood relationship, given the arguments relating to the number of generations that exist between them and their common ancestor Te Kumikumi. We are satisfied that the whakapapa evidence confirms a blood link between the Nicholas children and Mr Kameta through Te Kumikumi. [42] We note the importance of whakapapa establishing a blood relationship and we refer to the decision of His Honour Judge Isaac, as he then was, in Re Nuhaka 2E3C8A2B 21 where he found that rights to land are validated by whakapapa. He went on to state that: 22 The earlier the ancestor the stronger the right to that land. Land was claimed by Whakapapa because in accordance with tikanga Māori all things were derived from the ancestors and were passed to future generations. If a person can whakapapa to an original owner or occupier of that land that person has a right to the land. The Whakapapa does not lose its strength because it traces back for many generations. In terms of tikanga Māori it can gain strength (1994) 92 Wairoa MB 214 (92 WR 214) At [218] 2011 Maori Appellate Court MB 515

17 [43] In that case he was dealing with whakapapa that traced back as far as Rakaipaaka and Kahungunu, founding ancestors of two eastern sea-board tribes. While Judge Isaac s decision may now be too broad in its ambit in light of the more recent decisions of this Court discussed below, its acknowledgement of the importance of whakapapa cannot be denied. [44] Indeed Judge Isaac s approach is not inconsistent with the evidence before the lower Court from Thomas McCausland for the Respondents who stated: 23 [26] Mixed in with tikanga and whenua is whakapapa. Whakapapa connects you to your tupuna, Whānau, Hapū, Iwi and history. Inherent in your whakapapa is your identity (and history) of your tupuna. Whakapapa also provides you with mana over people, land, resources, or other things both physical and spiritual. [27] On this basis, to try and put it simply, the land is a taonga, whakapapa provides the connection to, and mana over, the taonga, and tikanga provides how this relationship is to exist, be exercised and preserved. [28] On this basis, the tikanga of Waitaha in relation to land, is primarily concerned with maintaining whakapapa. Because when this whakapapa is broken, everything comes undone. The connection to that taonga is lost, the connection to that tupuna is lost, and the connection to that history is lost. Therefore the primary role of tikanga in relation to land is to uphold whakapapa. This means that the land must be passed down in accordance with the whakapapa lines from which it was received. [29] It is for this reason that when Pakeha came, Māori did not consider themselves as owning land. They were merely temporary custodians. They received it from their tupuna after it was handed down from the whakapapa line. That person then has an obligation of maintaining and preserving the land and handing it on down through the same whakapapa line. To break that is to takahi [trample] the tupuna who have gone before you. [45] The whakapapa in this case does not go back as far as the founding ancestor of Waitaha tūturu before there is a common link, but it is not far from it. What is important is that it records that the land was devolved as a taonga tuku iho through a whakapapa line from which both the Nicholas children and Mr Kameta descend. Whakapapa and blood descent are as much a taonga tuku iho as land is. This whakapapa also demonstrates a blood relationship exists between these people and it demonstrates membership of the hapū associated with the land. 23 Folio 451 of the Case on Appeal 2011 Maori Appellate Court MB 516

18 [46] Where we believe the lower Court erred was in discounting the importance of this whakapapa in establishing a blood relationship. Rather it engaged in counting generations and measuring degrees of consanguity, finishing with an assertion, that in the rituals of encounter, it would be extreme indeed to go back nine to thirteen generations to find a link. 24 While we acknowledge that the degrees of relationship through whakapapa will always be a relevant consideration, in this case we do not consider the link to be so tenuous as to discount a connection by blood which satisfies the statutory provisions. [47] What is needed is that a person or persons to whom a devise is made are related by blood relevant to the land in question. This can be established once uncontested whakapapa is produced. In other words, speaking hypothetically, if the parties were related by blood on their Te Ārawa side to the hapū connected with the land then a blood relationship would be self evident. For arguments sake, if the parties were both Ngāti Pikiao and the land concerned was a well known Ngāti Pikiao block, then the requirements of s108 would be satisfied. Conversely if the parties were related on their Ngāti Pikiao side but the Willmaker alone was also Ngāti Whakaue and the land to be left by Will was unquestionably Ngāti Whakaue, then the fact that they are related by blood is insufficient to satisfy the twolimb test of being related by blood and also being members of the hapū associated with the land. Similarly, if the parties were related only on their Mataatua side and the land was Te Ārawa then being related by blood is insufficient to comply with s108 of the Act. [48] In this case, the whakapapa evidence produced for the Nicholas children was not disputed, particularly before us. What was in dispute was the number of generations that were counted before a common link was found. Our approach to this issue under s108(2)(c) is, of course, constrained by s2 and the Preamble of the Act which refers to the need to recognise land as a taonga tuku iho of special significance to the Māori people and, for that reason, to promote its retention in the hands of its owners, their whānau and their hapū. [49] It is also constrained by the second limb of s108(2)(c) itself. Nothing in those provisions, however, provides for an alternative interpretation, given that the evidence demonstrates that the land was devolved through a whakapapa line from a founding ancestor of a hapū, down to the testator and the donees under a Will thereby establishing a blood relationship. In addition, section 17(2)(a) of the Act, inter alia, provides that this Court should ascertain and give effect to the wishes of the owners of Māori land to which any 24 Kameta v Nicholas - Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348 ROT 282) at [17] 2011 Maori Appellate Court MB 517

19 proceedings relate. In this case ascertaining and giving effect to the wishes of Mr Kameta expressed in clause 4 of his Will, in sofar as these wishes were consistent with the Act, is consistent with our approach to this issue. [50] We note Judge Savage and both counsel referred to the decision of this Court in Mihinui - Maketu A That case concerned an appeal against a decision of His Honour Judge Carter dismissing an application in the Māori Land Court to permit the sale of shares in Maketu A100 to the Te Ārawa Lakes Trust. The Trust was already an owner of shares in this block. The issue was whether the Te Ārawa Lakes Trust fitted the definition of preferred class of alienees ( PCAs ) in s4 of the Act. [51] In the lower Court, and because this Court had never fully reviewed the effect of s108(2)(c), Judge Savage considered that Maketu A100 was germane to the issues before him, even though that case considered s148, which restricts the sale of undivided interests in Māori land to any person who belongs to one or more of the PCAs. This list of PCAs is defined in s4 and it includes whanaunga of the alienating owner who are associated in accordance with tikanga Māori with the land. Whanaunga in the same section of the Act means related by blood. In Maketu A100 Judge Savage commented at paragraph [23] on the definition of whanaunga. He noted whanaunga was derived from the word whānau and that this meant the s4 definition of whanaunga meant related by blood in a family sense. This was a gloss that he added to the words of the definition. [52] The terms whānau or whanaunga, however, are not used in s108(2)(c) and thus his interpretation on the definition related by blood for the purposes of defining the PCA under s148 cannot be the basis upon which we interpret s108(2)(c). The test for s108(2)(c) and the test under s148 analysed in Maketu A100 are not the same given the different wording of the provisions. [53] Rather we consider that s108(2)(c) requires that an applicant must establish the first limb of s108(2)(c) - demonstrating a blood relationship. We cannot assess degrees of consanguity or numbers of generations to ascertain whether the parties are within a sufficient degree of proximity to establish they are related by blood. Even so, and as foreshadowed, the relationship by blood must nonetheless be a relevant relationship, taking into account the Preamble and s2 of the Act. We emphasise again, at the risk of belabouring the point, Waiariki Appellate MB 218 (11 AP 218) Judge Savage s decision; 11 Waiariki Appellate MB 224 (11 AP 224) Judge Harvey s decision; 11 Waiariki Appellate MB 230 (11 AP 230) Chief Judge Williams decision Maori Appellate Court MB 518

20 that the Act has a focus on promoting the retention, utilisation and development of Māori land in the hands of the owners, their whānau and hapū. We underscore hapū as being the hapū associated with the land, otherwise absurd outcomes might result if the definition were cast wide enough to encompass hapū not associated with the land. [54] We refer again to s5 of the Interpretation Act 1999 which requires that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The terms of s108 (2)(c) of the Act and its purpose are clear. The entire s108(2) list, although restricting the classes of people to whom Māori freehold lands interests may be devised provides, at least within those restrictions, some measure of testamentary freedom for a Will maker. That is the essential difference between s108 and s109 which prescribes the classes entitled on intestacy in a manner akin to a hierarchy of entitlement based on proximity of relationship with a deceased. [55] A consistent approach to the interpretation of this provision, rather than a discretionary approach, should be adopted to provide some certainty for litigants in the future. We note that this will be a particular problem as the number of successors to the original owners and their descendants increase. It will become the norm that there will be several different generational levels in the whakapapa of descent through which the taonga whenua tipuna is devolved or devised by Will. Already such a phenomenon is becoming apparent in the work of the Māori Land Court. Thus we repeat, all that is required, is that a person must demonstrate that they are related by blood to a testator, and that they are a member of the hapū associated with the land. [56] We do not accept the argument of Mr Armstrong that the test under s108(2)(c) would be reduced to a one limb test if the Appellant s arguments are accepted, namely whether the Appellants and the Will maker were both members of the hapū associated with the land. While we accept that related by blood must require something closer than simply membership of the same hapū, that something is addressed by the associational relationship of sharing blood lines with the owner of the land and being part of the same hapū who once held the collective ownership of the land in accordance with Māori custom. In this case, we are satisfied that the evidence establishes that the Nicholas children are related by blood to Mr Kameta Maori Appellate Court MB 519

21 Hapū associated with the land [57] The second limb of s108(2)(c) of the Act requires assessing whether a person related by blood is of the hapū associated with the land. A hapū association is founded on whakapapa or through ownership in hapū lands or both. A person is a member of a hapū if they whakapapa to the relevant tīpuna and, usually, are owners or beneficiaries of the land associated with the hapū. The Native Land Court is replete with numerous title determination and partition cases which demonstrate the lengths to which hapū leaders would go to ensure the purity of hapū whakapapa and the entitlement to land premised in that whakapapa. While not all of the decisions of that Court were without challenge or error, in large part their determinations have survived and often lists of owners assembled from that era form a useful starting point for the basis of hapū origins for individual members. 26 Certain Crown grants are also used in this fashion. [58] In this case when Waitaha Tūturu were awarded original ownership of the land, they were the hapū granted title to Te Puke 2A out of the Te Puke Reserves. This was the parent block of the two land titles that are the subject of this appeal. The derivation of the blocks Te Puke 2A 2A 3B1 and 2A 2A 3B2 from the initial title, Te Puke 2A, shows that Waitaha tūturu is the hapū associated with the land. [59] Our approach is not inconsistent with Maketu A100 where at paragraphs [19]-[21], the majority in this Court found that the Act focuses on (a) owners, (b) their whānau and (c) their hapū. More importantly, it was found that the Act did not go further and exhibit an iwi focus. Thus an approach which suggests that members of the wider Te Ārawa iwi are whanaunga of the Appellant in that case was held to be inconsistent with the kaupapa of the Act. This meant that the Act should be interpreted to promote the retention of the land by the Appellant in that case, her whānau and her hapū, namely Ngāti Whakaue. [60] Judge Savage went on to say in Maketu A100 that the Appellant s hapū, Ngāti Whakaue is the outer limit of the preferred class of alienees. In this case, our approach is also consistent with this aspect of Judge Savage s judgment and the decision of Judge Harvey in Maketu A The latter considered that the term whanaunga should not be construed as including members of other hapū beyond that holding ownership of the land in question. Thus the majority in the Maketu A100 decision upheld the primacy of hapū For example see 3 Whakatāne MB 271 regarding hapū entitlement to the Omataroa block and creation of lists of hapū ownership. 11 Waiariki Appellate MB 224 (11 AP 224) 2011 Maori Appellate Court MB 520

22 [61] The evidence establishes that Waitaha tūturu are the hapū associated with the land and that the Nicholas children are members of that hapū through Te Waata and Te Pokiha Taranui. Therefore, as persons related by blood and as members of the hapū associated with the land, our conclusion is that they are entitled to take the land interests left to them by Mr Kameta pursuant to clause 4 of the Will. Are the children of Ms Nicholas whāngai of Mr Kameta? [62] As to the issue of whāngai that depended on whether this Court found the arguments regarding section 108(2)(c) could not succeed and given that we have allowed the appeal on that point, it is unnecessary for us to consider this issue. Should provision be made for Ms Nicholas from the income of Mr Kameta s Maori land? [63] Judge Savage held that: 28 For the Will to stand in relation to the grant of the life interest to Phyllis, she would either have to have been related to Dada by blood and a member of the hapū associated with the land, or his spouse. She is neither and the life interest purportedly granted to her is of no effect. Appellants submissions [64] Mr Watson submitted that this Court has a final and over-arching jurisdiction on appeal to consider whether an injustice would be done if it failed to intervene. In this case, relevant factors, he suggested, which would cause injustice included the fact that Ms Nicholas and her children have resided for many years (and continue to do so) in their residences on the land; the manifest intention of the testator was for Ms Nicholas and her children to enjoy the benefits of the land; and the whakapapa connection of the Nicholas children to the hapū associated with the land will promote the retention of Māori land in the hands of the owners, their whānau and their hapū. 28 Kameta v Nicholas - Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348 ROT 282) at [54] 2011 Maori Appellate Court MB 521

23 [65] Mr Watson also argued that the lower Court erred in the application of s116 of the Act as it was entitled to make provision under that section for Ms Nicholas, regardless of its interpretation of spouse. Respondents submissions [66] Mr Armstrong in reply submitted that s116 of the Act was a discretionary power and Judge Savage declined to exercise his discretion to make an order under this section. It was open to Judge Savage to take this course and the Appellants failed to establish that he erred at law on this point. Discussion [67] We agree that Judge Savage could have made provision for Ms Nicholas per s116 of the Act but declined to do so. We consider, however, that this is a case where due to the operation of law, the defacto partner of Mr Kameta, contrary to his express wishes, has been left without her life interest in the land. She would also lose any potential revenue that the land may generate. We consider that as she has lived upon the land for many years and that her children are of the relevant class of beneficiaries, that the overall justice of the case requires that she should continue to enjoy the benefits of the land during her life time. [68] Our conclusion is that the provisions of s116 of the Act should be invoked in favour of Ms Nicholas. Should the interim injunction remain in force? [69] Given the decisions to apply s108(2)(c) of the Act to enable the children of Ms Nicholas to succeed to the land of Mr Kameta and to make provision for her under s116 of the Act, there is no need for the injunction to remain in force. It is therefore dismissed. Costs Appellants submissions [70] Mr Watson submitted that in the normal course of litigation, costs follow the event and that an award of $13, would be appropriate in this case Maori Appellate Court MB 522

24 Respondents Submissions [71] Mr Armstrong opposes the award sought on three grounds. First, there are exceptional circumstances in this case which justify that an award of costs should not be made. Second, if an award of costs should be made, as a starting point the amount sought by the Appellants is excessive. Third, the circumstances require a substantive reduction on what would normally be payable. The Law [72] This Court in Nicholls v Nicholls Papaaroha 6B set out the relevant principles as follows: 29 (a) (b) (c) (d) (e) the Court has an unlimited discretion in the award of costs but that discretion must be exercised judicially; costs follow the event and a successful party should be awarded a reasonable contribution to the costs that were actually and reasonably incurred; the Court has an important role in attempting to facilitate amicable relationships between parties who are invariably connected by whakapapa to both the land and each other and on occasion that aim will be frustrated by an award of costs. Even so where litigation has been pursued in accordance with conventional principles then the starting point will be that costs are appropriate; if a party has acted unreasonably for instance by pursuing a wholly unmeritorious and hopeless claim or defence a more liberal award may well be made in the discretion of the judge, but there is no invariable practice; and an award of costs at the level of 80% was warranted in the Riddiford case due to the difficult nature of the arguments, their lack substance, the unsuccessful party's lack of realism, the parties legal situation, the degree of success achieved by the respondent and the time required for effective preparation. [73] Citing Glaister v Amalgamated Dairies Limited 30 and Shirley v Wairarapa District Health Board 31 this Court accepted that although the cost jurisdiction is discretionary, it is 29 Nicholls v Nicholls - Part Papaaroha 6B Block (2011) 2011 Maori Appellate Court MB 64 (2011 APPEAL 64) at [8] 2011 Maori Appellate Court MB 523