IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A Taitokerau MB 94 (71 TTK 94)

Transcription

1 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A Taitokerau MB 94 (71 TTK 94) UNDER Section 117, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN Te Anga Whanga KEVIN TITO Applicant Hearing: 24 August February January December 2012 (Heard at Whangārei) Judgment: 3 February 2014 RESERVED JUDGMENT OF JUDGE D J AMBLER

2 71 Taitokerau MB 95 Introduction [1] Kevin Tito has applied to succeed to the Māori land interests of his late uncle, Te Anga Whanga, who died on 31 January Te Anga was the half-brother of Kevin s late father. Under Te Anga s will, he left all of his Māori land interests to Kevin. Te Anga held Māori land interests that came from both his mother and his father. [2] The primary issue is whether Kevin is entitled to succeed to any of the interests derived from Te Anga s father, to whom Kevin does not whakapapa and, if not, who then is entitled to succeed. Background [3] There is no dispute that Te Anga s father was Kepa Whanga and that his mother was Te Awhina Whanga. Te Awhina Whanga also had another son, Pomare Tito, to another man. Pomare Tito was Kevin s father. [4] Te Anga succeeded to his father s Māori land interests on 3 December Naki Rewanui gave evidence at the Court hearing that Te Anga was Kepa Whanga s only child. This evidence was then confirmed by Te Awhina Whanga who was also present at the hearing. Te Anga and Pomare Tito succeeded equally to their mother s Māori land interests on 19 December [5] Te Anga never married and did not have any children. Under clause 2.1 of his last will dated 1 May 2008, he left all his Māori land interests to Kevin. Hearings [6] The present application has been to four hearings. [7] Following the first hearing on 24 August 2010 I issued a minute wherein I concluded that I was able to make orders in relation to the interests that Te Anga received from his mother, who was Kevin s grandmother. I determined that Kevin was entitled to succeed and vested those interests in him. [8] However, as for the interests that Te Anga received from his father, I indicated that if Kevin could not satisfy s 108(2) of Te Ture Whenua Māori Act 1993 ( the Act ), then an intestacy would Whangarei MB 126 (36 WH 126). 2 Registrar Taitokerau MB 209 (2 RGTO 209).

3 71 Taitokerau MB 96 arise in relation to those interests. Under s 109 of the Act, those entitled to succeed would need to be traced back through Te Anga s father, Kepa Whanga. [9] According to the Court succession records, Kepa Whanga had only one sibling, a sister, Naki Whanga or Naki Rewanui. Kepa and Naki Whanga s parents were Whanga Te Pato (father) and Terehia Whanga (mother). [10] Members of Naki Whanga s whānau travelled from the Waikato-Maniapoto District (where they are primarily based) to attend the four hearings. The Whanga whānau participated in the first hearing and agreed to arrange a hui between them and Kevin to discuss an appropriate way to deal with Te Anga s interests that were derived from his father. [11] Accordingly, following the hearing on 24 August 2010 I adjourned the application for Kevin and the Whanga whānau to hold those discussions. I also directed the Registrar to prepare a report pursuant to s 40 of the Act identifying any further interests in the name of Te Awhina Whanga, Kepa Whanga or Te Anga Whanga, and whether succession had been completed to Naki Whanga. [12] The application next came before me on 14 February A hui had not taken place. The s 40 report had been prepared but the parties had not had an opportunity to review it. I adjourned the application for six months for the parties to consider the s 40 report and to hold a hui. [13] The application came before me again on 17 January The s 40 report had been discussed but the parties had yet to hold a hui. It was suggested that Kevin needed to first complete Te Anga s kawemate to the Waikato-Maniapoto District. The application was therefore adjourned to December 2012 to allow the kawemate to take place and for the parties to then hold a hui. [14] The application came before me for the final time on 4 December The parties had still not held a hui. Kevin did not attend the hearing and wrote to the Court asking for an adjournment to March He had not completed Te Anga s kawemate due to funeral funds being held up and did not consider that there should be a meeting with Naki Whanga s descendants because of the suggestion that Te Anga had two half-sisters. Due to work commitments he was not able to attend the hearing. However, members of the Whanga whānau had once again travelled from the Waikato-Maniapoto District to attend the hearing. [15] I decided that the hearing should proceed. The only reason the application was first adjourned on 24 August 2010 was for the s 40 report to be completed and for Kevin to hold a hui

4 71 Taitokerau MB 97 with Naki Whanga s descendants. As I explained to Kevin on that occasion, the prima facie position was that he was not entitled to succeed to Te Anga s interests that were derived from his father. However, I was prepared to give Kevin an opportunity to discuss some form of accommodation with Naki Whanga s descendants to reflect the spirit of Te Anga s will. One possible accommodation was to establish a whānau trust in relation to the interests derived from Kepa Whanga and for Kevin to be one of the trustees. Kevin did not take up the opportunity to meet with Naki Whanga s descendants. As the s 40 report was otherwise sufficient to determine the extent to which Kevin was entitled to succeed to any of the remaining interests, I saw no point in further delaying the application. [16] Members of the Whanga whānau presented evidence at the final hearing regarding Te Anga s purported two half-sisters and the question of who were Naki Whanga s children. Issues [17] Three specific issues arise for me to address: (b) (c) First, is Kevin entitled to succeed to any of the interests that Te Anga received from his father? Second, did Te Anga have two half-sisters? Third, if Naki Whanga (now deceased) is entitled to succeed as Kepa Whanga s only sibling, who were her children? Is Kevin Tito entitled to succeed to the interests derived from Kepa Whanga? [18] Section 108(2) of the Act provides: (2) An owner of a beneficial interest in Maori freehold land may leave that interest by will to any person who belongs to any one or more of the following classes: (b) (c) (d) (e) Children and remoter issue of the testator: Any other persons who would be entitled under section 109(1) of this Act to succeed to the interest if the testator died intestate: Any other persons who are related by blood to the testator and are members of the hapu associated with the land: Other owners of the land who are members of the hapu associated with the land: Whangai of the testator:

5 71 Taitokerau MB 98 (f) Trustees of persons referred to in any of paragraphs to (e) of this section. [19] Kevin can only succeed to Te Anga s interests that were derived from his father if Kevin qualifies under s108(2)(c) or (d). Although Kevin does not whakapapa to Kepa Whanga, the Court record shows that Kevin does nevertheless have connections to some of the land blocks that Te Anga received from Kepa Whanga: his grandmother s father held interests in Pipiwai X1 and X2, and Maungapohatu North. Consequently, Kevin is entitled to succeed to those interests by reason of s108(2)(c) and (d). Under the Act, it matters not that Kevin has no whakapapa connection to Kepa Whanga. Te Anga s will prevails. Did Te Anga Whanga have half-sisters? [20] According to the evidence given by Matekitawhiti (Cissie) McQueen on 14 February 2011, Te Anga also had two half-sisters who were daughters of Kepa Whanga. These are said to be Rose and May. Anni Maurece Ngawaka-Nathan also signed a Statutory Declaration dated 11 February 2011 confirming that her mother, Rose Whanga-Katipa, was the half sister of Te Anga. [21] However, this evidence contradicts the evidence given to the Court on 3 December 1963 that Te Anga was Kepa Whanga s only issue. That evidence was given by Naki Whanga (Rewanui) and Te Awhina Whanga. [22] In the circumstances, I am bound by the Court s finding on 3 December 1963 that Kepa Whanga s only issue was Te Anga. If the Whanga whānau consider that the 1963 evidence was wrong and that the Court s order was in error, then they will need to file an application under s 45 of the Act to correct the situation. In the absence of such an application, I must proceed on the basis that Kepa Whanga s only child was Te Anga. [23] Consequently, the interests that Kevin is not entitled to succeed to must return through the whakapapa to Kepa Whanga, and then to his only sibling, Naki Whanga. Who are Naki Whanga s children? [24] According to the Court record Kepa Whanga died on 8 July 1962 and Naki Whanga died on 16 July Succession to Naki Whanga s interests have been dealt with on three separate occasions, and on each occasion slightly different evidence was presented to the Court. [25] On 29 November the descendants of Naki Whanga were identified as follows: 3 45 Waikato MB (45 W ).

6 71 Taitokerau MB Papa Takiari 2. Paraire Takiari 3. Whakaronui Joyce Takiari 4. Hinemoa Takiari 5. Petu Era Takiari (noted as legally adopted). [26] On 15 November the descendants of Naki Whanga were identified as follows: 1. Rima Whakarau 2. Paraire Friday Takiari 3. Whakaaronui Joyce Takiari 4. Hinemoa Takiari 5. Papa Takiari (deceased), issue as follows: 5A Ngaire Slade 5B Cissie McQueen 5C Kingi Takiari [27] On 1 August the evidence presented was again slightly different; the children being: 1. Paraire Takiari 2. Joyce Whakaaronui Takiari 3. Hinemoa Takiari 4. Papa Takiari [28] Those who appeared before me for the descendants of Naki Whanga endeavoured to reconcile the conflicting evidence. Albert McQueen, the son of Matekitawhiti McQueen, explained that Petu Era Takiari was also known as Kingi Takiari and was a whangai son to Naki Whanga. He was not aware of who was Rima Whakarau. [29] Unfortunately, the evidence is not sufficient to reconcile the various discrepancies in the Court record as to who were Naki Whanga s issue. Accordingly, I will make orders vesting the interests in Naki Whanga, and leave it her descendants to satisfy the Court in the Waikato- Maniapoto District as to who is entitled to succeed to these further interests in her name. Orders [30] I make orders as follows: Pursuant to s 113 of the Act determining that the following persons are entitled to succeed to the interests of Te Anga Whanga that were derived from Kepa Whanga: Waikato MB 58 (46 W 58). 95 Waikato MB 44 (95 W 44).

7 71 Taitokerau MB 100 (i) Pursuant to Te Anga Whanga s will and s 108(2)(c) and (d) of the Act, Kevin Tito is entitled to the interests in Pipiwai X1, Pipiwai X2 and Maungapohatu North. (ii) By reason of a resulting intestacy and pursuant to s109(1)(c) of the Act, Naki Whanga (deceased) is entitled to the other interests. Section 117 vesting the said Māori land interests in those persons entitled. Pronounced in open Court in Whangarei at 4:30pm this 3 rd day of February D J Ambler JUDGE