IN THE MĀORI LAND COURT OF NEW ZEALAND TE WAIPOUNAMU DISTRICT 292 Aotea MB 135 (292 AOT 135) A

Transcription

1 IN THE MĀORI LAND COURT OF NEW ZEALAND TE WAIPOUNAMU DISTRICT 292 Aotea MB 135 (292 AOT 135) A UNDER Section 118 (6) Te Ture Whenua Māori Act 1993 IN THE MATTER OF Succession Hector (Heketa) Paipeta Rowallan Blk IV Section 5 BETWEEN SUSAN TANE, TRUSTEE OF OPERA MANENE WHANAU TRUST Applicant Hearing: 4 April 2012, 11 Te Waipounamu MB July 2012, 287 Aotea September 2012, 290 Aotea MB 131 (Heard at Wellington) Judgment: 15 November 2012 RESERVED JUDGMENT OF JUGE S F REEVES TANE MLC 292 Aotea MB 135 [15 November 2012]

2 Introduction [1] This is an application brought by Susan Tane (the applicant), a trustee of the Opera Manene Whānau Trust (the whānau trust), under section 118 (6) Te Ture Whenua Maori Act 1993 to vest further interests of Hector (Heketa) Paipeta in Rowallan Survey District Section 5 Block IV into the whānau trust. Background [2] Rowallan Survey District Section 5 Block IV (the block) was set aside under the South Island Landless Natives Act 1906 (SILNA). Hector (Heketa) Paipeta and Heta Paipeta were two of the original owners of the block under Crown Grant gazetted at page 1826 New Zealand Gazette Heta received 49 shares, and Hector (Heketa) received 50 shares. [3] The applicant is a great granddaughter of Hector (Heketa) Paipeta. Her grandfather Opera Manene Piper succeeded to the interests of Heta Paipeta in the block at 41 SI MB 296 dated 24 May Subsequently those shares were vested in the whānau trust. [4] The applicant now applies to succeed to Hector s interests in the block on the basis that Hector and Heta were the same person. The Māori Trustee currently holds approximately $53,000 in accumulated income from Hector s interests. [5] The Deputy Registrar prepared a section 40 report into the background and issues arising in the proceedings. The report is reproduced here: The following report is in respect of the interests of Heta Paipeta and Hector (Heketa) Paipeta in Rowallan Blk IV Section 5. This report incorporates the findings/research notes of Awatea Edwin case manager and further information on the shares succeeded to by Opera Paipeta at the request of the applicant, Susan Tane. On 9 October 2009 an application was lodged by Susan Tane to succeed to the shares of Hector Paipeta in Rowallan Blk IV Section Aotea MB 136

3 Background Hector (Heketa) Paipeta is recorded as an original owner in Rowallan Blk IV Section 5, being a grant under the South Island Landless Natives Act 1906) set out on p. 1826; New Zealand Gazette The original owners for that block are listed as follows: A R P Paipeta, Teoti Paipeta, Henare Paipeta, Hera Paipeta, Ema Tainui Paipeta, Heta Paipeta, Hector (Heketa) Paipeta, Areta Pitama, Tainui Pitama, Akinehi I reproduce the whakapapa compiled by Mr Edwin: Paipeta Whakapapa Te Whakarawa = George Piper Ramari Manahi = John Chamberland Teoti Paipeta Teera Chamberland 1. Emma (Ema / Hema) Paipeta (B. 1866) 2. Kiti Paipeta (B. 1868) 3. Pita (Peter) Paipeta (D. 1957) 4. Makareta (Eta / Heta) Paipeta (B D. 26 June 1927) 5. Charlotte (Harata / Areta) Paipeta (B. 1874) 6. Eriaha (Heketa / Hector) Paipeta (B D. 11 May 1965) 7. Wiremu Pohio Paipeta (Born 16 March 1880 D. 1937) 8. Teoti (George Manning) Paipeta (Born 1881) 9. Henare Paipeta (Born 1885) In comparing the original owners in the block the following is evident: 1. That Hera Paipeta is Terra Paipeta, this is comfirmed through succession to her recorded at 38 South Island MB 358 dated 19 February 1962, where her interests in the above where vested in Henare Paipeta, Valentine Wera Couch and May Rakena in accordance with the terms of her will. Her identity is further confirmed through the identification of her children at 22 South Island MB dated 7 September That the majority of the children of Teoti and Teera Paipeta are present as owners with the exception of the names Wiremu Pohio Paipeta, Pita (Peter) Paipeta, Kiti Paipeta & Makareta Paipeta. 292 Aotea MB 137

4 3. That it should be also noted that Emma Tainui is also written as Ema and Hema (an H being added). The shares of Hema were vested in her successors at 48 South Island MB dated 20 September That it should also be noted that Areta Paipeta is also written as Harata or Charlotte (on this occasion an H being dropped). The shares in Areta were vested in her successors at 140 Rotorua MB 40 dated 17 November I also refer to evidence recorded at 38 South Island MB dated 19 February 1962 as support of the use of the name Harata as an alias. 5. Hector Paipeta remains as a current owner in the above block with a shareholding of shares. 6. The shares of Heta were succeeded to at 41 South Island MB 296 dated 24 May 1966 by Opera Manene Piper I now refer to the research done by Mr Edwin where it is his conclusion that the person named as Heta Paipeta in the ownership schedule is the same person named as Makareta Paipeta. His conclusion is based upon the following: 1. That name Makareta Paipeta is not found among the list of original owners; 2. That Heta is a derivative of the name Makareta, being shortened to Eta or Heta 3. That Hector is already present in the grant with an allotment of 50 shares It is highly improbably for a person to appear in the same grant twice under different names. It is more probable that the person known as Heta was a sibling, as other known children of Teera and Teoti are recorded as original owners in that specific block. It is also improbable for a person to appear twice in the same grant when one considers the purpose of the grant. The purpose of the SILNA grants was to make provision for land to be allocated to landless South Island Māori. I refer to a report compiled by Mackay and Smith (1905) which cites that the purpose of the grants was to allocate land to South Island Māori, who were landless or had fewer than 50 acres, if adults, or 20 acres, if minors, and were allocated land under the SILNA grants to bring their holdings up to those amounts. In the table of lands allocated by 1905, a total of 142,118¼ acres is listed as having been allocated to 4064 persons, an average of 35 acres each. I refer to previous evidence recorded at 41 South Island MB 296 dated 24 May 1966 where Opera Manene Piper succeed to the interests of Heta Paipeta in Rowallan Blk IV Section 5. The following extract is recorded: Opera Manene Piper (sworn)...i say that deceased, who was my father, was also known as Heta Paipeta or Heketa Paipeta as well as Eriaha. He told me himself that he was given name Heta Paipeta at birth. The shares 49 shares in Rowallan Blk IV Section 5 were consequentially been vested in Tutekawa Rapaki Piper at 14 Aotea MB 328 dated 14 June 1990 and later vested in the Opera Manene Piper Whanau Trust upon its constitution at 44 Ruatoria MB dated 7 June Aotea MB 138

5 The transfer of the above interest can therefore be traced as follows: Heta Paipeta Opera Manene Tutekawa Rapaki Opera Manene Piper Piper Piper Whānau Trust Succession to Makereta Paipeta or Manihera is rcorded at the following minute book references: 24 South Island MB 268, 25 South Island MB 195 and at 40 South Island MB 145. Her successors are recorded as being: 1. Eruera Manihera 2. Mohi Manihera 3. Emere Manihera 4. Henare Whaitiri Manihera Conclusion In light of the findings of Mr Edwin, I also conclude that the order made at 41 South Island MB 296 was incorrect, as the above report shows that Hector Paipeta was already recorded as an original owner in the block as Hector (Heketa) Paipeta. The purpose of SILNA was to allocate land to South Island Landless Māori to bring their award up to a total of 50 acres. That Hector is present as an original owner with a full entitlement of 50 shares, makes it highly unlikely that he would be in that same award with a further 49 shares. Therefore I deem that it would have been more likely that those shares would have belonged to a sibling, in this case being Heta (a derivative of Makareta). I recommend that the application be forwarded to the resident Judge for direction pending the response from the applicant on her response to the findings of this report. [6] The report was provided to the applicant in March 2010 for comment and she subsequently advised the case manager that she disagreed with its findings. Following directions from the Court she filed a written response and the application was heard in Wellington on 21 September 2012 at 290 Aotea MB 131. [7] The issue is whether the Court can be satisfied that the interests in the name of Hector (Heketa) Paipeta are additional interests of Heta Paipeta in terms of s118 (6), or whether the interests are likely to belong to two separate individuals. 292 Aotea MB 139

6 Relevant Law [8] Section 118 of the Act provides for vesting of beneficial interests in Maori freehold land in persons beneficially entitled where there is no grant of administration. Sub-section (6) provides as follows: (6) Where the known estate of a deceased person has previously been administered and additional interests of the deceased in Maori freehold land are discovered (emphasis added), the Court, notwithstanding any other provisions of this section, may deal with those interests under this section if it is satisfied that any other course would be unduly expensive or difficult having regard to the value of the interests. [9] Section 118 (6) provides for succession to additional interests of a deceased, which pre-supposes that the interests concerned belong to the deceased and not to another person. Discussion [10] The applicant appeared at the hearing with her sister Mrs Lily Tahiwi and brother Mr Opera Piper. Their main submission was that their great-grandfather Hector Piper was known by several names including Heta, and that Heta and Hector are one and the same person. [11] In support of their submission the applicants and her whānau pointed to their grandfathers evidence in the 1966 succession (referred to in the report) where he stated that his father was known variously by the names Heta, Heketa and Eriaha. They produced a copy of an undated letter from Hukarere Te Karu, a Ngai Tahu whakapapa researcher which supported this view. [12] They also submitted that their father had told them that his grandfather, Hector Piper, in addition to his own allocation of 50 shares had received another 49 shares under the name Heta as he was a namesake for this person who had no issue. [13] In response to the suggestion in the Deputy Registrar s report that Heta was a shortened form of the name Makareta, a sister of Hector, they submitted that Makareta 292 Aotea MB 140

7 had been left out of the will of Teoti Paipeta as a result of a family rift and was unlikely to have received any allocation of shares on her own account. [14] The applicant s submissions do not persuade me that Heta and Hector (Heketa) are the same person, and that the conclusions reached by the Deputy Registrar are incorrect. Specifically the explanation of why Hector might have received separate SILNA allocations in two different names was not compelling and the whakapapa evidence offered in the letter from Mrs Te Karu did not resolve this issue. [15] Additionally, Teoti Paipeta s will pre-dates the SILNA grants by some years and there is no explanation as to how this would have affected the SILNA allocation of land to the individual members of the Paipeta whānau in any case. Lastly, there is no clear explanation why Opera Manene Piper only applied to succeed to the interests of Heta in 1966 if the family believed that Heta and Hector (Heketa) was the same person. [16] As stated, I am not sufficiently satisfied that Heta and Hector are the same person although the identity of Heta remains unclear. [17] I am also of the view that the 1966 succession by Opera Manene Piper to the 49 shares of Heta Paipeta was likely by mistake or omission and that instead he should have succeeded to the 50 shares of Hector Paipeta. [18] An issue which arises from this is that the applicant and her whanau have received the benefit of income from Heta s interests since Whilst they may succeed to Hector s interests in due course, there should be no payment of any income from this interest until an accounting has taken place of funds paid out for Heta s interests to be reconciled with the funds held for Hector. 292 Aotea MB 141

8 Decision [19] The evidence is insufficient to establish that Heta Paipeta and Hector (Heketa) Paipeta are the same person, and I therefore decline to grant the application to vest additional interests pursuant to s118 (6) Te Ture Whenua Māori Act [20] The present application is adjourned sine die. [21] I direct the Registrar to file an application pursuant to Section 45 Te Ture Whenua Māori Act 1993 to cancel the 1966 succession order made at 41 South Island MB 296. [22] I further direct the Maori Trustee not to disperse any funds held on behalf of Hector (Heketa) Paipeta on account of his interests in Rowallan Block IV Section 5 until further order of the Court. Pronounced in open court at Wellington on the 15th day of November S F Reeves Judge 292 Aotea MB 142