IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 9 TAITOKERAU MB 209 (9 TTK 209) A A

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT UNDER IN THE MATTER OF 9 TAITOKERAU MB 209 (9 TTK 209) A A Section 113, 118 and 214, Te Ture Whenua Maori Act 1993 Tiro Taupaki also known as Tiro Te Kahui HENRY ERNEST PULHAM Applicant Hearing: 20 March June June February 2010 (Heard at Auckland) Judgment: 16 September 2010 RESERVED JUDGMENT OF JUDGE D J AMBLER Introduction [1] The Court has before it two applications in relation to the Māori land interests of the late Tiro Taupaki. [2] First, an application under ss 113 and 118 of Te Ture Whenua Maori Act 1993 ( the Act ) to succeed to her Māori land interests. As Tiro is said to have had whangai children s 115 also applies. [3] Second, there is an application under s 214 of the Act to establish the Taupaki Whanau Trust to hold the Māori land interests succeeded to from Tiro. [4] Tiro had Maori land interests in Maraetaua A8B (minerals only), Piopio B4 (Pukepuke burial place) and Hurakia A1. In addition, she was the sole owner of Whangamata 6B3B3A which was formerly Maori freehold land but was changed to General HENRY ERNEST PULHAM MLC A September 2010

2 land under the Maori Affairs Amendment Act That land is situated at Whiritoa, comprises the homestead and is the subject of some disagreement amongst the whanau. Hearings [5] The applications were initially set down for hearing on 29 June Judge Spencer was to preside but realised beforehand that he would need to recuse himself. Accordingly, a preliminary hearing took place before me on 3 June [6] After hearing from the parties on 3 June 2009 I identified that there were three issues to be addressed. First, whether Lena Sarsfield was a whangai of the deceased and therefore entitled to succeed. Second, whether the status of Whangamata 6B3B3A should be changed to Māori freehold land and thereby be included in the succession orders. Third, the application to establish the whanau trust could not proceed until the interests of Tiro s deceased children were succeeded to all of her children are deceased. [7] I adjourned both applications to the scheduled hearing before Judge Spencer on 29 June I directed one of Tiro s grandchildren, Mary McGlone, to convene a meeting of Tiro s descendants to confirm their consent to the change of status of Whangamata 6B3B3A to Māori freehold land and amended the application to include an order under s 133. I also directed that if applications to succeed to Tiro s children were filed within six months the filing fee was to be waived. [8] The applications came before Judge Spencer on 29 June Given the need to recuse himself Judge Spencer simply recorded the evidence of the parties. The evidence was that Lena Sarsfield was related to Tiro s husband only and that a granddaughter, Lynette Tipene, was also said to have been a whangai. [9] The applications came before me again on 25 February I heard from four of Tiro s grandchildren, namely, Lynette Tipene, Vivian Taupaki, Rodney Taupaki and Wayne Taupaki. Their evidence was that Lena Sarsfield was a whangai child of Tiro, that she was not related to her by blood (she was a niece of Tiro s husband, Temarumaru George Taupaki) but all present considered that she should be entitled to succeed as she had always been regarded as Tiro s daughter. It also emerged that not only was Lynette Tipene raised by Tiro but also several other grandchildren were raised in a similar manner, namely, Rodney Taupaki, Vernon Taupaki, Vivian Taupaki and Chub Pineaha. 9 Taitokerau MB 210

3 Succession to Maori land interests [10] Tiro did not leave a will. She had five children of her own, all of whom have died since her death, being Mathew, Laura, Margie, Lilac and Robert. [11] As noted, Lena Sarsfield was raised as a whangai daughter. All of the whanau who appeared before the Court accepted that she was a whangai daughter, that she did not whakapapa to Tiro but that in the circumstances of this whanau it was appropriate that she succeed as if she were a child of the deceased. [12] I raised with the whanau the fact that in many districts the prevailing tikanga is that a whangai child who does not whakapapa to the land should not receive a full interest in the land. The whanau were aware of this but considered that such a tikanga did not or should not apply in their circumstances. [13] As I have not heard from anyone who objects to Lena Sarsfield succeeding fully and as the whanau emphasised their particular circumstances, I accept for the purposes of s 115 that Lena Sarsfield should be recognised as a whangai child of Tiro and that she should be entitled to succeed equally with Tiro s biological children. [14] This then brings me to the position of the five grandchildren who were raised by Tiro. Lynette Tipene gave the most detailed evidence of having been raised by Tiro more or less from birth and having had little to do with her birth mother for many years. She also spoke of Rodney Taupaki, Vernon Taupaki, Vivian Taupaki and Chub Pineaha as having been whangai of their grandparents at the time their grandfather died in about Following their grandfather s death Laura Taupaki (the mother of Rodney, Vernon and Vivian Taupaki), returned to look after Tiro and subsequently raised Lynette Tipene, Stephen Thompson, Chub Pineaha and Paki Pineaha as her whangai children. [15] The other grandchildren who gave evidence, that is, Rodney Taupaki, Vivian Taupaki and Wayne Taupaki, all agreed that the five grandchildren were raised by their grandmother and should be considered whangai. [16] However, the question is then whether these five grandchildren should be entitled to succeed as children of the deceased in terms of s 115(2). I raised this with the members of the whanau who attended Court on 25 February. 9 Taitokerau MB 211

4 [17] The three grandchildren who were raised as whangai said that they felt that they should be entitled to succeed as if children of the deceased. The one grandchild who was not raised as a whangai, Wayne Taupaki, said that he felt that these grandchildren were always considered to be his cousins and therefore grandchildren of Tiro and that they should simply succeed along with all the other cousins through their respective parents. [18] Whangai is defined in the Act as a person adopted in accordance with tikanga Maori. Under s 115 the Court can make two determinations. First, under s 115(1) the Court can determine whether or not a person is to be recognised as a whangai of the deceased owner. Second, under s 115(2) the Court can determine the extent to which that whangai is entitled to succeed to any Māori land interests. The Court can order that the person succeed to the same extent or to a lesser extent as if that person had been a child of the deceased owner or can determine that that person is not entitled to succeed. [19] Section 115 recognises that in some circumstances individuals may be adopted in accordance with tikanga Māori and are therefore whangai but that they should not be treated as if they were a child of the deceased for the purposes of succession. The Court can take into account the considerable variability and fluidity of tikanga concerning whangai and the broad range of circumstances of whangai within whanau. Where a whangai is a grandchild of the deceased a key issue is whether that grandchild should succeed alongside his or her biological parent/aunts/uncles as if a child of the deceased or whether he or she should wait to succeed with his or her biological siblings/cousins. Ultimately, the Court must do what it considers is tika in light of all the circumstances. [20] Here, I am satisfied that these five grandchildren should be regarded as whangai of the deceased. However, I do not believe that they were or should be regarded as effectively children of the deceased. In other words, I consider that they were whangai grandchildren but not whangai children. Consequently, they should not be treated as if they were Tiro s children and should wait to succeed to interests through their respective parents along with those of their generation. I reach this conclusion for several reasons. [21] First, I accept Wayne Taupaki s uncontested evidence that the granchildren all regarded each other as cousins and that the whangai grandchildren were not regarded as aunts or uncles and effectively of a higher generation. While Tiro obviously had a close relationship with the whangai grandchildren, the evidence is that she did nonetheless regard them as her grandchildren. 9 Taitokerau MB 212

5 [22] There is evidence of this from Tiro herself. Lynette Tipene produced three letters written by her grandmother to her in 1970 and Tiro signed off all three letters as Nana. The letters speak of a close grandmother/grandchild relationship but not a mother/child relationship. [23] Furthermore, Lynette Tipene only ever referred to Tiro as her grandmother, as did the other whangai grandchildren who appeared in Court. [24] Second, if Tiro had wanted to treat her whangai grandchildren as equals of her children then I would have expected her to express that wish in some way, whether by will, letter or an ohaaki to her family. There was no evidence of this. [25] Third, the fluidity of the whanau s arrangements in relation to the whangai grandchildren is confirmed by Laura Taupaki having returned to look after her mother and having then raised the whangai grandchildren as her own whangai children. Apparently, in her will she leaves her interests to her three children and four whangai children. If I were to recognise the whangai grandchildren as Tiro s children then some may end up inheriting interests three times through Tiro, Laura and their own biological parent. Section 115 does not promote that sort of outcome. [26] Finally, given the evidence before me and the circumstances of this whanau I believe it would be wrong to treat some of the grandchildren as equals of their biological parents/aunts/ uncles and thereby award them greater interests than their own siblings/cousins. [27] My conclusion does not diminish the relationship these grandchildren had with their grandmother as whangai grandchildren. I simply consider that their entitlement must be through their respective parents like all other grandchildren. [28] I will therefore make orders under s 115(1) determining the five grandchildren to be Tiro s whangai and under s 115(2) determining that they not be entitled to succeed as if they were Tiro s children. 9 Taitokerau MB 213

6 Whanau Trust [29] The fundamental difficulty with the application to establish the whanau trust is that all of Tiro s interests will now be vested in her five biological children and her whangai daughter Lena Sarsfield, all of whom are deceased. Some of the next generation have met and agreed to put the interests into a whanau trust when, as yet, it is not clear whether any or all of them will be entitled to those interests. That is, unless and until the successions to some or all of the six children are completed the whanau trust application cannot proceed. [30] The Court can only establish a whanau trust where either the living owners consent or the administrator of the estate is giving effect to the terms of a will or where the administrator or the Court act with the consent of those entitled. Here, a second round of successions must take place before the Court can consider a whanau trust application. [31] In my direction of 3 June 2009 I invited the grandchildren to complete the further successions. Although there was some attempt to complete applications, I understand that none have been filed. [32] In the circumstances I do not believe there is any point in adjourning the application to establish the whanau trust any further. It will be dismissed. The filing fee (if any) should be reimbursed as, had the Court staff properly explained the requirements in relation to establishing a whanau trust, the application should not have been accepted. [33] In dismissing this application I am not discouraging the whanau from establishing a whanau trust. It makes good sense. However, succession to the six children must be completed first. Application to change status of Whangamata 6B3B3A [34] Changing the status of Whangamata 6B3B3A to Māori freehold land had been discussed at one of the whanau meetings but no application had been filed. Given that the status of the land only changed to General land by reason of the operation of the Maori Affairs Amendment Act 1967, it seemed appropriate that the status be changed back to Māori freehold land if Tiro s prospective successors agreed. One of the advantages would then be that succession to Whangamata 6B3B3A could be concluded as part of this process. 9 Taitokerau MB 214

7 [35] Although there was a meeting on 20 June 2009, there has been no further discussion amongst the prospective successors in relation to the change of status. Lynette Tipene and Vivian Taupaki believe the land should remain General land. Rodney Taupaki and Wayne Taupaki believe it should change back to Māori freehold land. The views of the rest of the prospective successors are unknown. In such circumstances it would be unsafe for the Court to change the status of the land and accordingly I will dismiss the application. [36] Consequently, Whangamata 6B3B3A will remain General land in the name of Tiro Taupaki. I explained to the whanau that they will need to apply to the High Court for letters of administration in order for succession to take place. One of the consequences of that is that, given that the estate is intestate, then the interests in the land will likely go to Tiro s five biological children only and Lena Sarsfield will be excluded as the general law does not recognise whangai children. However, if the land were changed back to Maori freehold land, Lena Sarsfield would be included. The whanau might want to consider that issue further. Ahu Whenua Trust option [37] Finally, I note that bubbling away under all of these issues is the situation with the homestead on Whangamata 6B3B3A. Currently, Lynette Tipene and her partner live there and have done so for some years. Apparently they have improved the homestead and the land. It seems that Lynette Tipene and her partner feel a greater right to the land than others, while others within the whanau feel that they are being excluded from the land. [38] Although the Court cannot deal with succession to that land at present, once succession has been concluded the Court could establish an ahu whenua trust over the land to regularise its use and occupation. I leave the whanau to consider whether such a trust would be appropriate. Orders [39] The Court makes orders pursuant to Te Ture Whenua Maori Act 1993: (a) section 115(1) and (2)(a) determining that Lena Sarsfield be recognised as a whangai of the deceased and is entitled to succeed as if a natural child of the deceased. 9 Taitokerau MB 215

8 (b) section 115(1) and (2)(b) determining that Lynette Tipene, Rodney Taupaki, Vernon Taupaki, Vivian Taupaki and Chub Pineaha be recognised as whangai of the deceased but shall not be entitled to succeed as if they were a child of the deceased. (c) section 113 determining that the persons entitled to succeed to the deceased s interests are Matthew Taupaki, Laura Taupaki, Margie Taupaki, Lilac Taupaki, Robert Taupaki and Lena Sarsfield equally. (d) section 118 vesting the Maori land interests of the deceased in the persons entitled. (e) dismissing the application under s 214 to establish the Taupaki Whanau Trust and directing that the filing fee (if any) be reimbursed to the applicant. (f) dismissing the application under s 133 to change the status of Whangamata 6B3B3A to Maori freehold land. Pronounced in open Court in Whanganui at 4.31 pm on Thursday this 16 th day of September D J Ambler JUDGE 9 Taitokerau MB 216