IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A Section 43, Te Ture Whenua Maori Act May 2006, 170 Aotea MB 51-60

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1 Minute Book 178 AOT 80 IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT UNDER A Section 43, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Rangipo North 8 RANGI BRISTOL MATIU HAITANA AlDEN GILBERT CHRIS NGAITERUA Applicants Hearing: 23 May 2006, 170 Aotea MB Appearances: Mr M McGhie for Tamahaki Ms L Poutu for N gati Rangi Mr Te K Williams for Ngati Waewae Judgment: 29 November 2006 RESERVED DECISION OF JUDGE L R HARVEY ON APPLICATION FOR REHEARING Introduction [1] Representatives of Uenuku, Ngati Kowhaikura, Ngati RuakopirilPatutokotoko and Tamakana seek a re-hearing of an application to declare Rangipo North 8 Maori customary land effectively in favour of N gati Rangi. The applicants claim a lack of notice of the hearing and assert their interests, not having been heard, were not recognised in the final orders of the Court which determined those entitled to succeed were Rangitutia, Rangiteauria and Uenuku Manawawiri 0 Ngati Rangi. Counsel for the applicants underscored that his clients had therefore suffered prejudice in not being provided with the opportunity to present their case. A rehearing he argued was the only appropriate remedy. RANGI BRISTOL And Ors MLC WANG A [19 June 2006]

2 178 Aotea MB 81 [2] Ngati Rangi oppose any re-hearing. They contend that the applicants ought to have been aware of the hearing given the extensive publicity the case generated in local and national media. In any event, counsel for N gati Rangi submitted that the applicants' interests were catered for through their whakapapa and links into Ngati Rangi. For their part the applicants do not accept this position and claim a right to separate recognition. [3] A third contender, N gati Waewae, a hapu with primary affiliation to N gati Tuwharetoa, also claim an interest in the land. [4] The applicants have also filed an application pursuant to section 45 of Te Ture Whenua Maori Act 1993 regarding an order issued for the suppression of evidence recorded in volume 70 of the Aotea minute book series. [5] The issues for determination are firstly, whether a rehearing should be granted, and secondly, whether the section 45 application ought to proceed. At the conclusion of a teleconference held on 7 November last, I formerly convened the Court and informed counsel of my decision to dismiss the application for rehearing and to recommend that the suppression order should not apply to the applicants and their counsel. I then confirmed that reasons for my decision and recommendation would be issued in due course. Submissions for the applicant [6] Mr McGhie contended his clients' case was simple: the applicants had not received actual notice of the original hearing and had not been able to put their case. They did not give any mandate to N gati Rangi to represent their interests. The applicants were prevented from having their say due to the lack of notice with the result that they have been excluded from the title to the land. [7] Concerning the section 45 application, counsel argued that the intent of the original suppression order was to exclude the public, not those with a direct interest in the proceedings. Counsel submitted that the applicants should therefore be provided with a full copy of volume 70.

3 178 Aotea MB 82 Submissions in opposition [8] Ms Poutu implored the Court to refuse the application for rehearing on four grounds: that the application was made well outside of the 21 days required by the Act; that the applicants had failed to establish that the application could not have reasonably been made sooner; that the applicants failed to establish a procedural flaw when the earlier order was made; and that the applicants failed to demonstrate a substantive case for re-opening the hearing. [9] She further contended that in the context of notice the Maori Land Court Rules 1994 had been complied with and further, that the proceedings were extensively advertised and well known to the Whanganui and Ruapehu Maori communities. In summary, she submitted that there was simply no basis for the Court to reopen the earlier hearing and accordingly the application for rehearing should be declined. In the terms of the suppression order counsel submitted that her clients had complied with that order. [10] While Mr McGhie claimed the suppression order was not meant to apply to parties or their counsel, in reply Ms Poutu submitted that the applicants and their groups were not a party to the original application. [11] For Ngati Waewae Mr Williams submitted that his client's were not aware that they had an interest in the land until the rehearing application was filed in February He noted that earlier discussions concerning his client's interests in the land had been conducted through the Tuwharetoa Maori Trust Board. He further submitted that his client's were keen to discuss matters with Ngati Rangi without the need to resort to proceedings. However, if such discussions were not ultimately fruitful, then he contlrmed that his clients would wish to be joined, albeit reluctantly. The Law [12] Section 43 ofte Ture Whenua Maori Act 1993 states: "43. Rehearings-

4 178 Aotea MB 83 (l)subject to subsection (2) of this section, on an application made in accordance with the rules of Court by any person interested in any matter in respect of which the Court has made an order, the Judge by whom the order was made or any other Judge may order a rehearing... upon such terms as the Judge thinks reasonable, and in the meantime may stay the proceedings. (2)A rehearing under this section shall not be granted on an application made more than 28 days after the order, unless the Judge is satisfied that the application could not reasonably have been made sooner. (3)An application under this section shall not operate as a stay of proceedings unless the Judge so orders. (4) The rehearing need not take place before the Judge by whom the proceedings were originally heard. (5)On any rehearing, the Court may affirm its former determination, or may vary or annul that determination, and may exercise any jurisdiction that it could have exercised on the original hearing. (6) When a rehearing has been granted, the period allowed for an appeal to the Maori Appellate Court shall not commence to run until the rehearing has been disposed of by afinal order of the Court. [(7)Subsection (6) applies, with the necessary modifications, to appeals to the High Court under section 63(2) of the Foreshore and Seabed Act 2004,}, [13] In its decision Ham v Ham - in re: Hohotaka (1989) 13 Aotea Appellate MB 164 the Maori Appellate Court stressed the importance of notice to affected parties. Referring to its earlier judgment Kennelly & Sons v Board of Maori Affairs (1985) 3 South Island Appellate MB 88 the appellate court noted that a failure to provide notice to those affected would be sufficient to warrant the quashing of any earlier orders. This view has been supported more recently in Perenara & ars v Pryor & ars - in re: Matata 930 Rangitihi Marae (2004) 10 Waiariki Appellate MB 233 (10 AP 233). Discussion [14] The first question to consider is whether the applicants and those they claim to represent have standing - in other words, do the proceedings affect them and if so, in what way? Secondly, if they do or may have an interest in the original application, did they receive notice of the hearing? A third consideration is, if they do or potentially have an interest and they did not receive notice, were their interests in effect represented by another litigant so that the arguments they may have

5 178 Aotea MB 84 advanced were dealt with despite their absence? Another matter the Court may consider is the effect of a rehearing on the other parties. Then there is the issue of delay. Standing [15] The applicants claim ancestral associations in the land. They point to evidence of their interests and those of related tupuna being recognised in awards of blocks surrounding the subj ect land. Noone has said that they do not have an interest in the land. N gati Rangi did of course argue that whatever interest the present applicants might claim, they have been in someway subsumed under the former's mantle for the purposes of the original proceedings. Unsurprisingly, the applicants dispute this and claim a right to separate representation. At the very least I consider they have an arguable case. I accept therefore that they do have standing. Notice [16] A review of the files confirms that notice of the hearing was given in the usual way and that panui were issued as for every other application heard by the Court. The panui would have been issued to several thousand recipients throughout the country in every Maori Land Court district. Publicity was extensive and the proceedings attracted considerable interest. I am satisfied therefore that any party claiming an interest in the proceedings should have been aware of the application. Representation [1 7] Regarding the possibility that any interests the applicants might have claimed were in fact represented by Ngati Rangi, clearly that is disputed. But the real issue is would the applicants have advanced arguments any different to those of N gati Rangi? The answer to that question can only be speculative in the absence of the actual arguments the applicants may have wished to put before the Court. In any case they do not appear to have given any mandate to Ngati Rangi.

6 178 Aotea MB 85 Effect on other parties [18] For completeness, I note that the grant of a rehearing, without the consent of all parties, would require all of the evidence and submissions to be recast and reheard. Ngati Rangi, as the principal claimant, would be forced to effectively resubmit their whole case. Certain key Ngati Rangi witnesses have since passed away. The effort and cost of having to reargue their entire case - not withstanding the absence of key witnesses - will doubtless seem both daunting and objectionable to Ngati Rangi. Even so, this is not a matter that is determinative to the rehearing application. Delay [19] A critical issue is the fact that the application was filed well out of time. The delays that have occurred as a result must also be considered. While the applicants have made some effort to advance their cause during the intervening years, I do not accept that the framers of the Act intended the rehearing provisions to operate in a manner now sought by the applicants. To do so would allow potentially legions of litigants to attempt to reopen cases long since settled by the Court. I am not persuaded that the intention of Parliament when enacting section 43 was to permit those claiming an interest in proceedings to reopen those matters years after the Court's final determination. There are other pathways open to the applicants that may yet achieve the outcome they are seeking, which is simply the right to be heard. But a rehearing is not that way. Rehearing application dismissed [20] Notice was given to the public VIa the Court's usual processes. The proceedings attracted significant publicity. The local Maori communities were well aware of the case, given its unique nature. I am not persuaded therefore that the application for rehearing should be granted on the grounds advanced. It IS accordingly dismissed.

7 178 Aotea MB 86 Interests in the land [21] That said, I am mindful that all of those claiming an interest in this land may have an interest under one whakapapa and lineage or another. It is not a case of groups with absolutely no connection or at best a tenuous link claiming a significant or predominant right. The applicants have made it plain that they simply wish to be included as a participant to share in the land as a right holder alongside their whanaunga but with their own identity. [22] The applicants may wish to file an application per section 45 of the Act. At first blush it is at least arguable that this pathway might be open to them to mount their claims. Whether or not the Chief Judge is then minded to exercise his powers and alter the Court's original orders is another matter entirely. Decision [23] For these reasons the application for rehearing is dismissed. The application per section 45 of the Act is the subject of a separate recommendation to the Chief Judge. [24] In the circumstances, I consider it appropriate that costs lie where they fall. Pronounced at, f "f) NOy~aE~ amji*&in W\-1PN&ANVl 2006 on the 2 qtl4 day of