IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A CJ 2014/42 DECISION OF CHIEF JUDGE W W ISAAC

Transcription

1 2016 Chief Judge s MB 764 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A CJ 2014/42 UNDER Section 45, Te Ture Whenua Māori Act 1993 IN THE MATTER OF Great Barrier Island (all the islands and rock outcrops in the environs of Aotea) ERANA HEMOATA BAYNE Applicant Judgment: 22 August 2016 DECISION OF CHIEF JUDGE W W ISAAC

2 2016 Chief Judge s MB 765 Introduction [1] This application filed by Erana Hemoata Bayne ( the applicant ), pursuant to s 45 of Te Ture Whenua Māori Act 1993 ( the Act ), seeks to amend evidence presented to the Court that lead to orders dated 23 February 1998 at 25 Auckland MB in respect of Great Barrier Island (all the islands and rock outcrops in the environs of Aotea) ( the land ). [2] The applicant claims that there was a mistake, error or omission in the presentation of facts of the case to the Court. [3] The applicant claims that she is adversely affected by the orders complained of as Ngāti Rehua (who are now the Ngātirehua Ngātiwai Ki Aotea Trust) have entered into negotiations and agreements with The Crown, Auckland City Council and Department of Conservation for the whole of Great Barrier Island, without the knowledge or consent of the owners. Background [4] The Case Manager s Report and Recommendation dated 29 April 2016 sets out the background to the application. The report is produced in full as follows: Introduction REPORT AND RECOMMENDATION 1. This application filed by Erana Hemoata Bayne (the applicant), pursuant to section 45 of Te Ture Whenua Māori Act 1993 (the Act), seeks to amend orders dated 23 February 1998 at 25 Auckland MB in respect of Great Barrier Island (all the islands and rock outcrops in the environs of Aotea) (the land). 2. The applicant claims that the following mistake, error or omission was made in the presentation of the facts of the case to the Court, therefore the said orders are erroneous in fact and law: At Page 220 (25 AT exhibit A ). The person Rehua referred in the evidence as presentation of Conquest page 220 is NOT the same person!! I present Rehua who is the son of Rangihokaia of Ngatiwai. Rehua is a brother of Repo, Haua & HikiHiki as recorded in whakapapa papatipu as presented in pages 102, 107 & Te Roto Papatipu 1904.

3 2016 Chief Judge s MB The applicant claims that she has been adversely affected by the order because: Ngati Rehua who are now Ngatirehua Ngatiwai Ki Aotea Trust have entered into negotiations & agreements with The Crown, Auckland City Council & Department of Conservation for the whole of the Barrier without the knowledge or consent of the owners. They are not the representatives 25 AT This body was formed in Companies Act: 24 October 2013 NO Concise history of Order sought to be amended/cancelled 4. The decision, that is the subject of this application, was made by Judge Spencer on 23 February 1998 at 25 Auckland MB and the orders made were as follows: The Court now makes the following orders: (a) (b) Pursuant to s.131/93 (formerly under s.161/53 in the application by John da Silva), the Court determines the status of all the islands and rock outcrops in the environs of Aotea to which title has not previously been determined, to be Māori customary land. Pursuant to s.132/93, the Court determines the owners of the islands and rock outcrops in (a) above to be Ngati Rehua, to hold the same as kaitiaki for themselves and, in accordance with the tikanga of whanaungatanga, for Ngati Wai ki Aotea and Marutuahu ki Aotea. 5. The following excerpts from that decision are noted as being of particular relevance in light of this Chief Judge s application: Part 5 (Page 12) - Ngati Rehua and Marutuahu Relationships Although detailed whakapapa evidence was presented to the Court by the parties, it is unnecessary to examine it in any detail as everyone acknowledges the close genealogical relationships between Ngati Rehua and Marutuahu and their respective descendance from Ngati Tai in relation to their occupation of Aotea. Rather, it is a difference within the take tupuna part of the claim as to whether Marutuahu, through their descent from Ngati Tai, maintained a presence on Aotea. and (Page 27) Conclusion The evidence presented by Ngati Rehua was extensive and detailed. Of necessity, much has been obtained from records of traditions made after the arrival of the Pakeha. The continued practice of those traditions and tikanga in, for example, food gathering on and around Aotea, is not disputed by Marutuahu as being within Ngati Rehua s immediate knowledge. Their interpretation of past events, however, is in many cases disputed. Although the Court has considered all the evidence it has not been possible to critically examine all of it in this decision. For example, from the late sixteenth century, from generation to generation, there were marriages for a variety of reasons which, one may assume, were to cement alliances between tribal groups. By following these marriages and where they settled after marriage (i.e on the man s or the woman s kainga) one may guess the relationships which then existed between the

4 2016 Chief Judge s MB 767 tribal groups in a particular place. But it is only a guess because it is all subject to interpretation. Instead, the Court confined itself in this decision to critical events, acknowledged by both parties to be important in their relationship, which have been examined and interpreted through the tikanga most likely to apply. 6. Previous hearings of the application were held by the Court on several occasions, where evidence of the parties were given, and are recorded as follows: a) 23 Auckland MB dated December 1995; b) 23 Auckland MB dated 13 November 1995; c) 23 Auckland MB dated 15 September 1995; d) 23 Auckland MB dated 14 September 1995; e) 78 Whangarei MB dated 20 June 1995; f) 22 Auckland MB dated 24 November 1993; g) 21 Auckland MB dated 12 March 1993; h) 21 Auckland MB 142 dated 13 July 1992; i) 20 Auckland MB dated 10 July 1991; j) 20 Auckland MB dated 7 March Identification of evidence that may be of assistance in remedying the mistake or omission 7. The applicant has provided the following documents in support of her application: a) A list of affected parties with contact details; b) Copy of Court Order made at 25 AT on 23 February 1998 (Exhibit A ); c) Page from Court minute - 25 AT 220; d) Book extract showing whakapapa of Rehua (Page 102); e) Book extract showing whakapapa of Rangihokaia (Page 107); f) Map of Great Barrier Island; g) Document Index 2 with attachments - Those Adversely Affected Fabricating Mana Whenua: 1. Ngatiwai Whakapapa; 2. Rehua of Kawhia Whakapapa;

5 2016 Chief Judge s MB Whetu McGregor & others Whakapapa. h) Document Index 3 with attachments: 1. Supporting statement; 2. Exhibit A - MB ref 25 AT (pages. 213, 220, 227, 234, 235); 3. Exhibit B - Whetu McGregor statement - page. 4; 4. Exhibit C - Whiti McMath statement - page. 1 & 14; 5. Exhibit D - Rehua Strategy book whakapapa; 6. Blood lines of above applicants; 7. Full Ngatiwai whakapapa. i) Document Index 4 with attachments: 1. Te Roto Papatipu 1905; 2. Mother and child Ngapera (baby) Ngapeka (mother) Rahuri (grandmother) - Little Barrier & Great Barrier; 3. Korero of Ngapera Taiawa - page. 4; 4. Korero of Hone Paama - page. 5; 5. Share Register Ngapera Taiawa - page. 6; ( Ngatiwai/Ngati Manaia) 6. Share Register Pita Kino/Hone Paama - page. 13; Ngati Rehua Rangihokaia 7. Claim to land by descendants of Rehua - page. 22; 8. Old inhabitants of Aotea (Ngatiwai) HikiHiki; 9. Whakapapa of Pita Kino = Ngapera Taiawa; 10. Māori Wars HikiHiki - page. 23. j) Document Index 5 with attachments: 1. Who is Ngatirehua-Ngatiwai Trust Board; 2. Exhibit F - Deed of Trust; 3. Exhibit G - Attendance sheet: a. Page 3 - $4M wai claim b. Page 1a - Motairehe Marae hui - Great Barrier c. Page 7 - Ruapotaka Marae hui - South d. Page 13 - Maungatapu Marae hui - Tauranga

6 2016 Chief Judge s MB Exhibit I - Marilyn Stevens & Lynette Hoey statements; 5. Exhibit J - Signature of Pita Hone Pita Kino; 6. Exhibit K - Voting on resolutions & eligibility; 7. Exhibit L - Deed of Mandate; 8. Exhibit M - MB ; 9. Opening of Kawa Marae under Tainui; 10. Rehua Trust Board members. k) Document Index 6 with attachments: 1. National Governments changing boundaries; 2. Auckland City Council s refusal to except Ngatiwai ki Aotea into the Tamaki Collective; 3. Exhibit E - The Crowns changing agenda. 8. On 15 January 2015 the Chief Judge issued directions for the applicant to clarify the error in fact or in law complained of in the order of 23 February A detailed response was received from the applicant setting out the specific evidence referred to in the Courts decision, and her comments regarding each such excerpt. This document is attached as Appendix The applicant (represented by Mr Chambers) also filed an associated application for an interim injunction, pursuant to section 19 of the Act, which was considered by His Honour Judge Armstrong. In his reserved judgment delivered on 5 November 2015 (115 Taitokerau MB 41-57) the following excerpts are of relevance to this application: Para [37] Mr Chambers clarified that the s 45 application does not seek to cancel or amend those orders 1. Rather, Ms Bayne alleges that the whakapapa relied upon by Judge Spencer in coming to that determination is a fiction as it derives from Tainui depriving Ngāti Rehua and Ngāti Wai ki Aotea of the Pita Kino line. Para [38] As such, Ms Bayne does not challenge the decision that Ngāti Rehua is the owner, as kaitiaki, on behalf of themselves and others. Rather, she challenges the whakapapa evidence relied upon by Judge Spencer concerning Ngāti Rehua descent. Ms Bayne alleges that the exclusion of the Pita Kino line in Judge Spencer s decision has resulted in her and her family being excluded from the settlement negotiations with the Crown. Para [59] It appears that this argument is based on Mr Chambers contention that Judge Spencer s decision related to the whole of Great Barrier Island. That is clearly incorrect. 1 Section 131 and 132 orders made on 23 February 1998 (25 AT ).

7 2016 Chief Judge s MB 770 Para [60] In the body of the judgment, Judge Spencer refers to historical evidence concerning Great Barrier Island. That includes: conquest and occupation of Aotea by Ngāti Rehua; Ngāti Rehua and Marutuahu relationships; the battle with Te Mauparoa in 1838; and the alleged sales of land on the island from 1838 onwards. However, in reviewing the judgment as a whole, it is clear that Judge Spencer is referring to those historical events as evidence to support his finding on customary ownership of the islands and rocky outcrops outside of Great Barrier Island. That does not include Great Barrier Island itself. Details of subsequent Orders affecting lands to which this application relates 11. There are no subsequent orders affected by this application. Details of payments made as a result of the Order 12. There have been no payments made as a result of the orders made. Reference to areas of difficulty 13. The areas of difficulty to deal with in this matter are as follows: a) Disputed Evidence i. The whakapapa evidence that is being disputed dates back as far as the 16 th century, and is therefore not evidence that can be checked against the historical records of the Court. ii. iii. It is also not uncommon for historical evidence of this nature, as given by one person, to differ from that given by another. This does not mean that the evidence is wrong and in need of correction, but rather, just that it is a record of what evidence that person gave. b) Jurisdiction i. The applicant in this matter does not seek to amend an order of the Court, but rather the evidence that was presented to the Court. ii. iii. iv. Pursuant to section 44 of the Act the Chief Judge may cancel or amend an order made by the Court or a Registrar, if satisfied that the order was erroneous in fact or in law because of any mistake or omission on the part of the Court or the Registrar or in the presentation of the facts of the case to the Court or the Registrar. Accordingly, in terms of those provisions of the Act, the Chief Judge does not appear to have jurisdiction to grant amendments to evidence as is being sought. Further, section 44(4) of the Act states that: The powers conferred on the Chief Judge by this section shall not apply with respect to any vesting order made under Part 6 of this Act in respect of Māori customary land.

8 2016 Chief Judge s MB 771 v. The order of the Court made on 23 February 1998 (25 Auckland MB ) was made under sections 131 and 132, from Part 6 of the Act, and was in respect of Māori customary land. Consideration of whether matter needs to go to full hearing 14. Based on the information available, there is insufficient evidence to support the proposition that there was an error in fact or law due to a mistake or omission or in the presentation of facts of the case to the Court. 15. It is also clear that the Chief Judge does not have jurisdiction to grant the amendments being sought. 16. Accordingly a Court hearing is not necessary and the matter can be dealt with on the papers before the Court. Recommendation of course of action to be taken 17. If the Chief Judge is of a mind to, then it would be my recommendation that: a) A copy of this report be sent to all those affected parties, for whom we have contact details for, to give them an opportunity to comment or respond, in writing, within 28 days of the date of this Report. b) If no objections are received, then the application be dismissed; or c) If objections are received then the matter should be referred to the Court for directions.

9 2016 Chief Judge s MB 772

10 2016 Chief Judge s MB 773

11 2016 Chief Judge s MB 774 [5] On 3 May 2016 the Registrar s Report and Recommendation was sent to all parties, for whom addresses were known, with objections or responses to be filed at the Rotorua Māori Land Court no later than 31 May [6] Three responses were received from affected parties, however none of them made an objection to the report or to the recommendation made: (a) One, from the applicant (27 May 2016), requested that the matter be put on hold, until such time as her section 30/93 application (A ) is dealt with; and (b) The other two responses are from affected parties, Hillarey McGregor (27 May 2016) and the Ngātiwai Trust Board (30 May 2016), both of which are in favour of the application being dismissed, as recommended in the Registrar s report. Discussion [7] The Chief Judge s jurisdiction to amend or cancel an order of the Māori Land Court is set out in s 44 of the Act: 44 Chief Judge may correct mistakes and omissions (1) On any application made under section 45 of this Act, the Chief Judge may, if satisfied that an order made by the Court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160 of this Act, was erroneous in fact or in law because of any mistake or omission on the part of the Court or the Registrar or in the presentation of the facts of the case to the Court or the Registrar, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission. and (4) The powers conferred on the Chief Judge by this section shall not apply with respect to any vesting order made under Part 6 of this Act in respect of Māori customary land.

12 2016 Chief Judge s MB 775 [8] In Ashwell Rawinia or Lavinia Ashwell (nee Russell) 2 the Chief Judge summarised certain principles relating to s 45 applications as follows: When considering s 45 applications, the Chief Judge needs to review the evidence given at the original hearing and weigh it against the evidence provided by the Applicants (and any evidence in opposition); Section 45 applications are not to be treated as a rehearing of the original applications; The principle of Omnia Praesumuntur Rite Esse Acta (everything is presumed to have been done lawfully unless there is evidence to the contrary) applies to s 45 applications. Therefore in the absence of a patent defect in the order, there is a presumption that the order made was correct; Evidence given at the time the order was made, by persons more closely related to the subject matter in both time and knowledge, is deemed to have been correct; The burden of proof is on the applicant to rebut the two presumptions above; and As a matter of public interest, it is necessary for the Chief Judge to uphold the principles of certainty and finality of decisions. These principles are reflected in section 77 of the Act, which states that Court orders cannot be declared invalid, quashed or annulled more than 10 years after the date of the order. Parties affected by orders made under the Act must be able to rely on them. For this reason, the Chief Judge s special powers are used only in exceptional circumstances. [9] Section 45 is a unique section amongst the Courts of New Zealand. It was evidently felt that, as a titles Court, the principle of indefeasibility was extremely important and consequently orders should not be easy to overturn. The exceptions contained in s 45 explicitly refer to situations where the Court has not made a correct decision due to a flaw in the evidence presented, or in the interpretation of the law, and it is necessary in the 2 [2009] Chief Judge s MB (2009 CJ 209)

13 2016 Chief Judge s MB 776 interests of justice to correct this. For this reason, s 45 applications must be accompanied by proof of the flaw identified, through the production of evidence not available or not known of at the time the order was made. [10] In Tau v Nga Whanau O Morven & Glenavy Waihao 903 Section IX Block 3 the Māori Appellate Court ruled that the Chief Judge must exercise his jurisdiction by applying the civil standard of proof on the balance of probabilities having regard to that standard s inherent flexibility that takes into account the nature and gravity of the matters at issue. [11] The applicant has requested that the Chief Judge amend the evidence given in respect of orders made pursuant to s 131 and s 132, from Part 6 of the Act, in respect of Māori customary land. [12] In terms of s 44(1) of the Act, the Chief Judge has the jurisdiction to cancel or amend an order of the Court or Registrar. [13] Having considered the Case Manager s Report and all evidence provided by the parties, I am also satisfied that s 44(4) of the Act applies and therefore I have no jurisdiction to grant the amendments sought. Decision [14] As a result I dismiss this application. [15] A copy of this decision is to be distributed to all parties. Dated at Wellington this 22 nd day of August W W Isaac CHIEF JUDGE 3 [2010] Maori Appellate Court MB 167 (2010 APPEAL 167)