Paki v Maori Land Court
| Jurisdiction | New Zealand |
| Judge | Clifford J |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] NZHC 2535 |
| Docket Number | CIV-2014-454-31 |
| Court | High Court |
| Date | 14 October 2015 |
UNDER the Judicature Amendment Act 1972
IN THE MATTER of a decision of the Maori Land Court dated 26 November 2012 and actions of the other defendants between that date and 4 August 2013
[2015] NZHC 2535
CIV-2014-454-31
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
Application for judicial review of a decision of the second to the sixth defendants who entered into an non-binding Accord providing for the restoration of Lake Horowhenua — the bed of lake Horowhenua was owned by the second defendants in trust for members of Muaupoko who had beneficial interests in land — the plaintiff said that the Maori Land Court (MLC) did not have jurisdiction to set terms of the Trust when it purported to do so in 2012 because the land was in fact held under a trust which had been constituted under s18 Reserves and Other Lands Disposal Act 1956 (ROLDA) (special provisions relating to lake Horowhenua) — further said that the fifth defendant Board acted unlawfully when it had decided to enter into the Accord, because it had not acted in accordance with provisions as to the number of representatives of Muaupoko that were required — whether the MLC had jurisdiction under either Te Ture Whenua Māori Act 1993 or the Trustee Act 1956 to constitute a trust for the land or to alter its terms under those Acts — whether the MLC, when purporting to constitute the lake Horowhenua Trust, had failed to consider a relevant factor, namely ROLDA — whether, the fifth defendant Board had been properly constituted when making the decision to enter the Accord.
G D S Taylor for Plaintiff
No appearance for First and Second Defendants
D G Randal and L M Bazalo for Third and Fifth Defendants
S Johnston for Fourth Defendant
K Muller and H Baille for Sixth Defendant
JUDGMENT OF Clifford J
| Introduction | [1] |
| Context | [9] |
| Participation at the hearing | [41] |
| Did the Maori Land Court have power to declare terms for the Lake Horowhenua Trust as it purported to do in the 2012 Decision? | [92] |
| Was the Domain Board properly constituted when it decided to enter into the Accord? | [95] |
| Costs | [106] |
The plaintiff, Colin Paki, is a member of the Muaupoko iwi of Horowhenua.
The bed of Lake Horowhenua, together with what is now known as the dewatered area 1 (a further one-chain strip of land around the original margin of the Lake and the bed of the Hokio Stream and certain adjoining lands) are owned by the second defendants in trust (the Lake Horowhenua Trust) for members of Muaupoko who have beneficial interests in land within the Horowhenua XI block.
Mr Paki is one such member of Muaupoko.
Lake Horowhenua is a much degraded, shallow, coastal lake. It was not always so. In August 2013 the second to sixth defendants entered into an accord providing for the restoration of Lake Horowhenua as “taonga that holds pride of place in the Horowhenua community” (the Accord).
In these proceedings Mr Paki challenges the Accord by reference to what he terms six reviewable actions. In effect he says that:
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(a) the trustees of the Lake Horowhenua Trust, the second defendants, acted unlawfully in agreeing to the Accord, because the Lake Horowhenua Trust is currently unlawfully constituted by reason of the unlawfulness of the Maori 2 Land Court's decision on 26 November 2012 (the 2012 Decision) 3; and
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(b) the Domain Board, the fifth defendant, acted unlawfully when it decided to enter into the Accord, because it did not act in accordance with provisions relating to the role of the representatives of Muaupoko.
By agreement, the parties have asked the Court to consider, as provided by subpart 4 of Part 10 of the High Court Rules, three preliminary questions. Those questions are:
(1) Whether the Maori Land Court had jurisdiction under either of Te Ture Whenua Maori Act 1993 or the Trustee Act 1956 to constitute 4 a trust in respect of the trust established by s 18 of the Reserves and Other Lands Disposal Act 1956 or to alter its terms under those Acts.
(2) Whether the Maori Land Court, when purporting to constitute the Lake Horowhenua Trust, failed to consider a relevant factor, namely the Reserves and Other Lands Disposal Act 1956 and considered an irrelevant factor, namely the 1984 decision, 5 thereby rendering the Court's decision void.
(3) Whether, in order to make the decision to enter the Accord, the Domain Board needed to be constituted of one more Muaupoko member than Council members plus a Department of Conservation representative as chair. 6
The parties consider that such questions can be answered without discovery or affidavit evidence. Once this Court has provided the answers to those questions, some form of alternative dispute resolution is proposed.
In order to answer those questions, however, some context is required. That context is the history of Lake Horowhenua as found in the legislative record, and in the numerous decisions of the Maori Land Court dealing with the Lake. That history has been set out in detail on a number of occasions in the Maori Land Court. 7 I do not want to record that history in greater detail than is necessary. Moreover, that history is complex and not easy to record with great certainty. However, those preliminary questions, and in particular the first, can only be answered when that legal history is properly understood.
Lake Horowhenua has long been a source of contention.
Since at least 1872 the Native Land Court, the Maori Appellate Court and more recently the Maori Land Court have had before them a series of competing claims relating to the Lake and surrounding Horowhenua land.
In 1873 the Native Land Court determined that Muaupoko were the owners of the Horowhenua Block, of which Lake Horowhenua and its environs formed a part, save for a small block of 100 acres known as Raumatangi which vested in certain Ngati Raukawa. Subsequently a certificate of title to the Horowhenua Block was issued in the name of Major Kemp/Meiha Keepa, and a list of the names of the 143 persons considered at that time to be Muaupoko were endorsed on the back of that certificate. That decision caused controversy, both within Muaupoko, and between Muaupoko and other Maori.
The Horowhenua Block was partitioned by the Native Land Court in 1886. Pursuant to that partition, a division of the Horowhenua Block called Horowhenua No XI (which includes Lake Horowhenua and its surrounding lands, including the
Hokio Stream from the Lake to the sea) was vested in Meiha Keepa and Warena Hunia. A certificate of title under the Land Transfer Act 1882 subsequently issued in their names. Warena Hunia later applied to the Native Land Court for a further partition of Horowhenua No XI between himself and Meiha Keepa, and attempted to deal with his share as his own property. Meiha Keepa, and certain Muaupoko, brought suit on behalf of all Muaupoko interested in Horowhenua No XI for a declaration that Keepa and Hunia were trustees of that land for the 143 beneficiariesIn Warena Hunia v Meiha Keepa, 8 the Court of Appeal upheld the decision of Chief Justice Prendergast that the registered proprietors, Keepa and Hunia, were indeed trustees. At the same time, the Court said that any terms of trust were too uncertain to be enforced. As the original vesting of No XI in Hunia and Keepa had been to effect the terms of a voluntary grant made by the beneficial owners, the Court found that grant had been on terms that the grantors were to retain that beneficial interest. Therefore, the failure of that trust gave rise to a resulting trust in their favour. “Practically the result will be the same as if the Trust had been that insisted on by [Meiha Keepa]”. 9 The Court of Appeal found that the trustees held the land for the parties in whom, and to the extent to which, the property in the land was vested before the allotment. That is, it was held on trust for those Muaupoko who, but for their consent to the allotment, would have had their rights ascertained and defined by the Land Court. That task of definition was, therefore, still to be performed.
The Court of Appeal's decision was released on 17 May 1895. On 31 October that year Parliament passed the Horowhenua Block Act 1895. That Act froze dealings in Horowhenua Block lands, declaring those lands to be absolutely inalienable in any manner howsoever until after the last day of the then next session of Parliament. That Act also provided for a Royal Commission (the Horowhenua Commission) to be established to inquire into the sale by Maori of Horowhenua Block lands and as to the trusts, if any, to which those lands were subject.
The Horowhenua Commission reported to the Government in May 1896. In doing so, it noted Muaupoko's traditional occupation of the lands comprising the Horowhenua Block, their dispossession from those lands by Ngati Raukawa and Ngati Toa and their return to those lands with the consent of the Ngati Raukawa chief, Te Whatanui. Of the Native Land Court's 1873 decision it observed: 10
Te Whatanui died, and after his death, trouble began between the Muaupoko, who asserted that the land was theirs, and members of the Ngatiraukawa, who had settled upon it. Houses were burned, and ultimately a Native Land Court sat in 1873, to investigate the claims of the different tribes to the ownership of, amongst other lands, what is now the Horowhenua Block. The result of the proceedings in that Court was to adjudge the Muaupoko Tribe the owners of the Horowhenua Block, with the exception...
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