IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A IN THE MATTER OF Taupo No.23 B Section 1. OWEN MURRAY FOSTER Applicant

Transcription

1 108 Taitokerau MB 43 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 151, Te Ture Whenua Māori Act 1993 IN THE MATTER OF Taupo No.23 B Section 1 BETWEEN AND AND OWEN MURRAY FOSTER Applicant WAITANGI WOOD First Respondent EMMA WINDUST Second Respondent Hearing: 31 July 2015 (Heard at Whangarei) Judgment: 31 July 2015 ORAL JUDGMENT OF JUDGE M P ARMSTRONG

2 108 Taitokerau MB 44 Introduction [1] An application has been filed by Owen Murray Foster seeking confirmation of an alienation of the Taupo No.23 B Section 1 block ( the block ) as per s 151 of Te Ture Whenua Māori Act 1993 ( the Act ). [2] The owners of the block are Brian Foster, Owen Foster, Ross Windust, Sylvia Rae and Terence Windust. Those owners have entered into an agreement to sell the block to David and Susan Lewis. The application records that the purchasers are not members of the preferred class of alienee. [3] Waitangi Wood has filed a notice with the Court seeking to exercise the right of first refusal to purchase the block as per s 147A of the Act on the basis that she comes within the preferred class of alienee. The current owners do not accept that Ms Wood comes within the preferred class. [4] Emma Windust is the daughter of Terence Windust, one of the owners in the block. Emma Windust does not wish to exercise the right of first refusal, however, she nevertheless opposes the application. [5] A hearing was held today in relation to two issues: To consider the grounds of opposition raised by Ms Windust; and To determine whether Ms Wood comes within the preferred class of alienees. [6] This decision addresses these two preliminary issues. As is the normal approach with oral decisions, I reserve the right to amend this decision but only as to form not as to substance and not to change the outcome of the decision I am about to make. Can I dismiss the application based on the opposition raised by Ms Windust? [7] Ms Windust opposes the sale of the block on the basis that it holds great significance for her.

3 108 Taitokerau MB 45 [8] Ms Windust made a heartfelt submission that the sale of the block will alienate her, her child and future generations from this land. She advised that this is the only land that connects her to the Taupo area and she fears that any alienation of the block will sever her connections to the area. [9] Ms Windust also considered that it was unfair that the current owners should be able to sell the block simply because their names are on the title. Miss Windust argued that they should hold the block for future generations. [10] I have a great deal of sympathy for Ms Windust. I consider that her plea was sincere and that she holds genuine fears that the alienation of this block will sever her connection to this area. [11] Ms Windust s concerns are understandable. Land is a taonga tuku iho of special significance to Māori people. Section 2 of the Act states: 2 Interpretation of Act generally (1) It is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the principles set out in the Preamble. (2) Without limiting the generality of subsection (1), it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Mäori land as taonga tuku iho by Mäori owners, their whanau, their hapū, and their descendants, and that protects wahi tapu.. [12] Similar principles are contained in the Preamble, and s 17 of the Act. [13] However, in the present case the applicant seeks an order confirming the sale of the block pursuant to s 151 of the Act. [14] Section 152(1) of the Act states: 152 Court to grant confirmation if satisfied of certain matters (1) The Court must grant confirmation of an alienation of Māori freehold land if it is satisfied

4 108 Taitokerau MB 46 that, (i) in the case of an instrument of alienation, the instrument has been executed and attested in the manner required by the rules of court; (c) (d) (e) (f) that the alienation is not in breach of any trust to which the land is subject; and that the value of all buildings, all fixtures attached to the land, all things growing on the land, all minerals in the land, and all other assets or funds relating to the land, has been properly taken into account in assessing the consideration payable; and that, having regard to the relationship (if any) of the parties and to any other special circumstances of the case, the consideration (if any) is adequate; and that the purchase money (if any) has been paid to, or secured to the satisfaction of, the Māori Trustee or Court appointed agent or trustees in accordance with section 159; and that, if section 147A applies to the alienation, the alienating owners have discharged the obligation in that section. [15] In the decision of Taueki the Māori Appellate Court held that: 1 In the present context section 152 provides that the Court must grant confirmation if it is satisfied of certain preconditions. It has no discretion. Any discretion that it previously had was removed in 2002 when section 152 was amended and sections 153 and 154 repealed. The mandatory nature of section 152 significantly limits the ability of the Court to apply the principles in section 2(2). [16] In the present case: There is an agreement for sale and purchase which has been signed by the current owners; There is no trust over this block of land; (c) The applicant has obtained a valuation which confirms that the purchase price is adequate; and 1 Taueki Horowhenua X1B41 North A3A and 3B1 (2008) 16 Whanganui Appellate Court MB 30 (16 WGAP 30) at [33].

5 108 Taitokerau MB 47 (d) The applicant has a solicitor acting in the sale who will ensure that the purchase money is properly secured upon settlement. [17] As such s 152 to (e) are satisfied. The only remaining issue to be addressed is s 152(f). That relates to the right of first refusal being exercised by the preferred class of alienees. That issue is addressed below. I also note that while Ms Windust comes within the preferred class, she is not seeking to exercise the right of first refusal. [18] For these reasons, while I sympathise with Ms Windust s position, I cannot refuse the application on the grounds of opposition that she has raised. I have no power or discretion to do so. Does Ms Wood come within the preferred class of alienee? [19] Section 147A of the Act states: 147A Right of first refusal for sale or gift A person referred to in section 147 who seeks to alienate any Māori freehold land by sale or gift must give the right of first refusal to prospective purchasers or donees who belong to 1 or more of the preferred classes of alienees, ahead of those who do not belong to any of those classes. [20] The preferred class of alienee is defined in s 4 of the Act as follows: 4 Interpretation Preferred classes of alienees, in relation to any alienation (other than an alienation of shares in a Māori incorporation), comprise the following: (c) (d) (e) Children and remoter issue of the alienating owner: Whanaunga of the alienating owner who are associated in accordance with tikanga Māori with the land: Other beneficial owners of the land who are members of the hapū associated with the land: Trustees of persons referred to in any of paragraphs to (c) of this definition: Descendants of any former owner who is or was a member of the hapū associated with the land:

6 108 Taitokerau MB 48 [21] Ms Wood claims that she comes within the preferred class of alienee as she is: A descendant of a former owner who is or was a member of the hapū associated with the land; and Whanaunga of the alienating owner who is associated in accordance with tikanga Māori with the land. Block history report prepared by the Registrar [22] To assist with the determination on this issue, I directed the Registrar to prepare a report showing the history of this block. A copy of the report was circulated to the parties and was referred to by both sides during the hearing today. [23] The report shows that: On 12 November 1907 an order was made pursuant to the Native Land Court Act 1894 vesting the Taupo block in 169 owners. On 20 May 1912 an order was made partitioning the Taupo block creating the Taupo 23 block. (c) On 10 March 1914 a further partition was granted creating Taupo 23B. Taupo 23B was vested in 3 owners one of those being Peti Kingi. Peti Kingi was an original owner named in the parent Taupo block. (d) On 10 March 1914 a further partition was granted creating Taupo 23B1. This block was vested in Peti Kingi solely. (e) On 18 July 1921 Peti Kingi sold Taupo 23B1 to Delphine Pepi. (f) Delphine Pepi passed away on 24 November On 3 July 1974 succession orders were made vesting Taupo 23B1 in Brian Foster, Sylvia Rae, Owen Foster and Zoe Windust equally.

7 108 Taitokerau MB 49 (g) Zoe Windust passed away on 14 July On 26 September 1995 succession orders were granted vesting Zoe s interests in the block in Ross Windust and Terence Windust. Is Ms Wood a descendant of a former owner who is or was a member of the hapū associated with the land? [24] This category of the preferred class of alienee has two limbs: A descendant of a former owner; and Who is or was a member of the hapū associated with the land. Is Ms Wood a descendant of a former owner? [25] Ms Wood gave evidence along with her mother Moana Wood. [26] Moana Wood advised that Hori Rakena was her grandfather. Hori Rakena is one of the original owners in the parent Taupo block. [27] Evidence was given on behalf of the applicant by Audrey Campbell-Frear. Mrs Campbell-Frear is related to the Foster family. Delphine Pepi was her great-aunt. Mrs Campbell-Frear did not dispute the whakapapa evidence given by Ms Wood showing their connections to Hori Rakena. [28] As such I am satisfied that Moana Wood, and her daughter Waitangi, are descendants of a former owner in the parent Taupo block. [29] An issue arises as the Taupo block was partitioned three times between 1912 and 1914 creating the current block Taupo 23B1. Taupo 23B1 was then vested solely in Peti Kingi. Moana Wood advised that her father, and Peti Kingi s father, were first cousins. [30] As such Ms Wood does not descend from an owner in the current block, but rather from an owner in the former parent block which existed prior to the various partition orders being granted. A question arises as to whether this comes within a descendant of any former owner as defined in s 4 of the Act.

8 108 Taitokerau MB 50 [31] A similar issue was considered by the Māori Appellate Court in Sade v Mahanga. 2 In that case the Court had to consider whether a prospective donee, Colleen Allan, came within the preferred class of alienee for the purpose of gifting shares in the Taiharuru 2A1 block. Ms Allan was a direct descendant of Hohepa Mahanga who was an owner in the original Taiharuru parent block prior to Taiharuru 2A1 being created by partition. The Māori Appellate Court found that: [9] In this case Ms Allan would be within the kin group if she were whanaunga of the alienating owner who is associated in accordance with tikanga Māori with the land. Clearly there are two separate requirements here but equally clearly Ms Allan falls within both and Ms Sade conceded as much before us. It is to be noted that the association is with the land and not with any particular title to the land. Ms Allan can whakapapa back to the tupuna Hohepa in the 1870s and there was a direct and complete legal relationship to the particular block in which we are concerned until As an uri of Hohepa Mahanga she would also be a descendant of a former owner who was a member of the hapū associated with the land. [32] This approach is consistent with the principles set out in the decision of Nuhaka. 3 In that case, Judge Isaac (as he then was) found that: 4 According to Tikanga Māori, right to land is validated by Whakapapa. 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 on to future generations. If a person can Whakapapa to an original owner or occupier of the land that person has a right to the land. [33] The principles in Nuhaka have subsequently been adopted in a number of decisions including by the Court of Appeal in Kameta v Nicholas. 5 [34] These principles apply in the present case. Ms Wood can whakapapa back to an original owner in the land. It matters not that the land was subsequently partitioned, as the relevant association is with the land itself, not any particular title to the land. This is reinforced by the fact that there is still a close whakapapa relationship between Ms Wood and Peti Kingi who received the Taupo 23B1 block. As such I find that Ms Wood is a descendant of a former owner in the land Sade v Mahanga Taiharuru 2A1 (2008) 7 Whangarei Appellate Court MB 47 (7 APWH 47). T F Hickling Family Trust - Nuhaka 2E3C8A2B (1994) 92 Wairoa MB 214 (92 WR 214). At 218. Kameta v Nicholas [2012] NZCA 350.

9 108 Taitokerau MB 51 Are Ms Wood, and her great grandfather Hori Rakena, members of the hapū associated with the land? [35] Ms Wood gave evidence that Ngatirua is the hapū that associates with this land. She contends that she and her great grandfather are members of Ngatirua. [36] Ms Wood advised that Patara is the paramount tupuna of Ngatirua. She confirmed her descent from Patara s sister, Hana Te Wharenui, who married Te Pahi. Ms Wood advised that Te Ururoa and Te Pahi were brothers and that Te Ururoa was of Ngati Uru but not Ngatirua. [37] Ms Wood advised that Taupo Marae is the local Marae for this area. She contends that the Marae operates for the benefit of Ngatirua. Ms Wood also advised that she and her whanau have filed a claim with the Waitangi Tribunal on behalf of Ngatirua. She stated that this claim is registered as Wai 1661 and is being heard in the Te Paparahi o Te Raki Inquiry. She advised that the Wai 1661 claim encompasses this block and the wider Taupo area. [38] Ms Campbell-Frear advised that she is also a descendant of an original owner in the parent Taupo block, namely Te Wairama Riwhi. Ms Campbell-Frear also gave evidence of the connections between the Foster family as descendants of Te Ururoa. Ms Campbell-Frear advised that while she shares the whakapapa connections with the Foster family to Te Ururoa, the Foster family do not have connections on the Te Pahi side and so they are not related to her tupuna Te Wairama. [39] In relation to whether Te Ururoa was Ngati Uru but not Ngatirua, and whether Ngatirua is the hapū that associates with this land, Ms Campbell- Frear advised that she would need further time to look at these issues and respond. [40] Ms Campbell-Frear accepted that Taupo Marae is the Marae associated with this area. She also advised that this is her Marae. Mrs Campbell-Frear disputed that Taupo Marae operates for the benefit of the Ngatirua hapū. Ms Campbell-Frear was not able to elaborate on who she considered the beneficiaries of the Marae are. Once again, she advised that she would need further time to consider this and respond.

10 108 Taitokerau MB 52 [41] At the conclusion of the hearing I raised with Ms Campbell-Frear, and with the Foster family, whether they were seeking further time so that Mrs Campbell-Frear could consider and respond to these issues. Both Ms Campbell-Frear, and the Foster family, advised that they were not seeking further time. They did not wish to make further submissions on these issues and simply wanted me to proceed with making a decision. [42] From the evidence that has been presented I am satisfied that Ngatirua is a hapū that associates with this land and that Ms Wood, and her tupuna Hori Rakena, are members of that hapū. Their uncontested whakapapa evidence shows that Patara and Hana Te Wharenui were siblings, and that they descend from Hana Te Wharenui. Their evidence also outlined the association of Ngatirua with this area, including through Taupo Marae. [43] I consider that Ms Wood and her mother are actively involved in local Māori issues around Taupo. Moana Wood is a trustee of Taupo Marae, and as noted they are claimants on behalf of Ngatirua before the Waitangi Tribunal. While those claims are ongoing this does demonstrate that Ms Wood and her family have asserted Ngatirua s status as a hapū of this area in a highly public forum. Their involvement in local Māori issues adds weight to their evidence. [44] Ms Campbell-Frear did not necessarily dispute that Ngatirua was a hapū associated with this area. Rather, she advised that she would need further time to respond on that issue. When offered that further time she declined to take that opportunity. [45] Ms Campbell-Frear did not accept that Taupo Marae operated for the benefit of Ngatirua. However, she did not elaborate on that issue. In the absence of further evidence it is difficult to assess Ms Campbell-Frear s argument. I anticipate that she considers that there are other groups that also associate with Taupo Marae rather than asserting that Ngatirua does not associate with the Marae. [46] I emphasise that I have not found that Ngatirua is the only hapū that associates with this area. It may well be that there are also other hapū who have an association with this land according to tikanga Māori. Nor am I saying that Te Ururoa does not associate with the area according to tikanga Māori. The evidence before me is not sufficient to make such determinations. Ultimately, it is not necessary for me to decide these issues in the present case. It is sufficient that I have found that Ngatirua does have an association with this land.

11 108 Taitokerau MB 53 [47] For these reasons I find that Ms Wood is a descendant of a former owner who is or was a member of the hapū associated with the land. Is Ms Wood whanaunga of the alienating owner who is associated in accordance with tikanga Māori with the land? [48] Given my finding above, I do not need to consider this issue. Decision [49] Pursuant to ss 37(3) and 18(1)(f) I determine that Ms Wood is a member of the preferred class of alienee for the purposes of ss 4 and 147A of the Act. Dated at Whangarei on Friday this 31 st day of July 2015 M P Armstrong JUDGE