Applicant. Hearings: 1 November 2017, 72 Tairawhiti MB May 2018, 76 Tairawhiti MB (Heard at Wairoa) JUDGMENT OF JUDGE P J SAVAGE

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1 77 Tairawhiti MB 187 IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRAWHITI DISTRICT A UNDER IN THE MATTER OF Sections 215, 219, 220, 222, 338(5) & 338(9) of Te Ture Whenua Māori Act 1993 Mokau Reserve Block BETWEEN VERNON WINITANA Applicant Hearings: 1 November 2017, 72 Tairawhiti MB May 2018, 76 Tairawhiti MB (Heard at Wairoa) Judgment: 6 July 2018 JUDGMENT OF JUDGE P J SAVAGE

2 77 Tairawhiti MB 188 Introduction [1] The land with which this judgment is concerned is a Māori reservation of some 11.5 hectares. It is on the shores of Lake Waikaremoana. It is basically in its pristine state. While it produces no income, it is of high cultural value. [2] The applications before me seek to achieve a return of the lands to the owners, clear of reservation status and then, the creation of an ahu whenua trust to administer the land. At first blush, many of the elements of the kaupapa of Te Ture Whenua Māori 1993 are met and I will retain that thought firmly in the forefront of my mind as this judgment is formulated. 1 Māori Reservations [3] Māori reservations are, and have always been, created by subordinate legislation that underpins decisions of executive government, and not by the actions of this Court. However, the power to create reservations has always been contingent upon a recommendation of this Court. The steps toward the creation of a reservation have been for all intents and purposes as follows: (a) (b) (c) (d) (e) (f) The filing of an application in this Court; A hearing in this Court; A recommendation to the Chief Executive that a reservation be created; A decision in accordance with the recommendation by the Executive; The gazettal of that decision; The appointment of trustees by this Court. [4] That is the structure contained in Part 17 of this Act. An application to cancel a reservation, such as I now have before me, follows the same procedure. 2 [5] The creation of a Māori reservation has a number of ownership and administrative consequences. There are then three parties involved. First, the trustees who have the right and duty to administer the reservation for the purposes of the reservation and for the benefit of the beneficiaries. They are bound by legislation, common law duties and regulations. 1 Te Ture Whenua Maori 1993, Preamble, ss 2, Te Ture Whenua Māori Act 1993, s 338(5)

3 77 Tairawhiti MB 189 Secondly, there are the beneficiaries for whom the trust has been created and who are entitled to enjoy the benefit of the reservation. Thirdly, there are the owners who have vested the land in the trustees. It is in effect a gift or endowment. Notwithstanding the reservation, they remain owners and are shown on Māori Land Court records as such. They do not however have an active role, except when major changes are involved. It can be easily understood that if the reservation is to be cancelled or the purposes for which the reservation is to be administered or as to whom the beneficiaries will be is to be changed, then they must be consulted and their support or otherwise can be pivotal. [6] The trustees often simply abide the decision to change or cancel but in fact have a right to be heard. The beneficiaries and the owners certainly have a right to be heard and they are the major protagonists in this case. The Creation of this particular reservation [7] The Mokau reserve, as it was then called, was created by order of the Native Land Court in February That order created a list of 24 owners in unequal shares totalling 204 shares. All of the owners were from what came to be called the Tuhoe list, compiled by the Native Land Court for the purpose of completing title to the Lake bed. Many of the surnames in the list are still to be found in Tuhoe communities today. The largest block of owners was the Te Kaaho whānau holding 56 shares. [8] The application for a recommendation for the creation of the reservation was heard at a sitting of this Court at Kuha Marae on Saturday 16 February The case was led by Mr John Rangihaua and Mr Tama Nikora, both well-known and senior leaders in Ngāi Tuhoe. It is to be noted that Mr Rangihaua was a member of the Te Kaaho whānau referred to above. There were 13 proposed reserves dealt with. Mr Rangihaua s brief ran to eight typed pages and the history of Mokau is referred to at page 16. [9] An extract from the Court minutes read as follows: 5 Mr T.B. Nikora - Secretary for Tuhoe Waikaremoana MT Bd. Bd content to act as Section 439 Trustees if owners so desire. Court: Explains Section 439. Need to specify persons or class of persons for whose common 3 2A Urewera MB (2A URE ) Wairoa MB (75 WR ) Wairoa MB (75 WR ).

4 77 Tairawhiti MB 190 use & benefit the land to be set aside. (Some 60/70 persons present). (General discussion amongst those present, eleven elders & others speak in support of applns) Mr Rangihau: - Complete agreement. Ct: Will you please explain agmt. & Ct will record & so recommend, etc. Mr Rangihau: Yes. Ct: In respect of each appln. Recds that the land be set aside as a Maori Reservation as a place of historical & scenic interest and of special emotional association for the common use & benefit of the owners thereof, and the peoples of Tuhoe and the peoples of Ngati Kahungunu. [10] It is to be seen therefore, that the Tuhoe owners entered not just themselves but Tuhoe and Kahungunu katoa to be beneficiaries of this and the other 12 reserves. [11] The gazettal issued on 8 August 1974, 6 and on 26 August 1974 the proposed trustee, the Tuhoe Waikaremoana Māori Trust Board, was appointed as trustee. 7 Owners, Trustees and Beneficiaries [12] From the 24 owners 93 years ago there are now 200 owners on the ownership schedule, with the last entry made on 24 October [13] There are now 10 private persons who are the trustees. [14] The beneficiaries are the whole body of members of two substantial iwi who must number in the tens and perhaps hundreds of thousands. [15] The owners made an important and substantial decision when they decided to vest beneficial rights in the reservation, not just in themselves and their uri, but, instead they gave it to their own whole iwi and to the whole of another iwi. [16] At the point that was reached in 1974, the owners role became a passive one and the dynamics would henceforth be basically between the trustees and the beneficiaries. The owners however have rights that become quite central if the nature of the reservation, the 6 Setting Apart Māori Freehold Land as a Māori Reservation (1 August 1974) 76 New Zealand Gazette 1649 at Tairawhiti MB 40 (2 TAI 40).

5 77 Tairawhiti MB 191 purpose of the reservation or the identity of the beneficiaries is about to change. This Court would particularly want to know what has changed or, perhaps, has not changed to the effect that that decision 40 years ago should be overturned. We should be mindful that this was a time where there was quite complicated interplay between those groups around the lake, or who had rights in the lake in relation to the lake bed and leasing, and this is referred to and explained in Te Urewera, a report of the Waitangi Tribunal. [17] The trustees in their capacity as trustees have not taken a particularly active role. That is not to say however, that in their personal capacity they have been silent. That is far from the case. [18] From the beneficiaries perspective, the effect of cancellation would be to take all rights away from Ngāi Tuhoe, unless those Ngāi Tuhoe were entitled to succeed to the original 24. The application would also mean that all rights were taken away from Ngāti Kahungunu. The position of Ruapani is quite complicated in that some will be entitled to succeed to the 24. The status of Ruapani had been determined by the Native Appellate Court in 1947 as being a hapū of the Ngāti Kahungunu tribe. 8 Many today might not accept that, and whakapapa to further north in Tairawhiti and particular Whangara are often seen. I do not lose sight of the fact that many Ruapani people also whakapapa to Tuhoe. [19] During the course of the hearing, a number of previous decisions of this Court were referred to. They show that applications to cancel a Māori reservation are unusual and that the wishes of the original owners who made the endowment are to be respected and a substantial level of support for cancellation would be required. If the vision of the original owners has not been met then that may be a potent factor. In this case the vision has been met in that the land is still in its pristine state. 9 Meetings and support [20] Two meetings were called prior to the hearing of this matter by the Court. Voting was taken at those meetings and I should say something about the effect of voting. The questions put to the meeting and the votes taken are devices whereby the Court can ascertain 8 27 Gisborne Appellate Minute Book 46 (27 APGS 46). 9 Lux v Raukawa - Opape No 3A1E (2017) 171 Waiariki MB 8 (171 WAR 8); and Fenton - Rurima Māori Reservation (2004) 102 Whakatane MB 196 (102 WHK 196).

6 77 Tairawhiti MB 192 the wishes of the owners, and in this particular case, the beneficiaries. The leading case which sets out the principles and reviews the relevant cases is Wall v The Māori Land Court - Tauhara Middle [21] The first meeting was held at Wairoa on 9 October There three votes were taken for or against the motion to remove the trustees from the current trust. The first was a vote for the beneficiaries, the second was a vote for the owners in Mokau and the third concerned another block of land which is not before me in this case. The result for beneficiaries was 21 for and 12 against, for the owners, it was 53 for and 7 against. [22] The second meeting was held on 23 January 2018 at Te Kuha Marae. At that meeting the results were as follows: Vote 1: Beneficiaries voted on whether to keep the current trustees or change: To keep the current trustees Votes: 38 Proxies: 182 Total: 220 To change the trustees Votes: 33 Proxies: 279 Total: 312 The second vote was taken as to whether the beneficiaries wished to keep Mokau as a Māori Reservation or for it to become an ahu whenua trust. The result was as follows: To remain as a Maori Reservation: Votes: 37 Proxies: 182 Total: 219 To establish an Ahu Whenua Trust: Votes: 32 Proxies: 279 Total: 311 [23] As will be seen the results of the two votes are so remarkably similar it appears that the same people voted the same way on each occasion. It should also be noted that Lorna Taylor who was present as a representative of Te Uru Taumata o Ngāi Tuhoe stated they would oppose. The Hearing [24] The Court hearing was well attended with approximately 40 people present. Of those 40, ten spoke. 10 Wall v The Maori Land Court - Tauhara Middle 15 Trust [2010] Maori Appellate Court MB 55 (2010 APPEAL 55).

7 77 Tairawhiti MB 193 [25] Mr Vernon Winitana put his case very succinctly and after hearing what others had to say, was given the right of reply. He drew my attention to the kaupapa of the legislation and I do not at all lose sight of that. [26] Te Uru Taumata o Ngāi Tuhoe produced full written submissions, which were read out aloud before those in the Court. I accept that that body speaks with some authority of Tuhoe, but of course is not beyond a challenge within Tuhoe. It spoke in effect, for the multitude of beneficiaries who are not descended from owners. Even if it only spoke for a majority of Tuhoe, this represents pretty serious opposition. [27] The voices heard in the hearing seemed to be Tuhoe and/or Ruapani, and I was left with the impression that I had no direct input from the wider iwi of Ngāti Kahungunu. Mr Winitana said it was not a tribal issue but I cannot ignore those within Ngāti Kahungunu, numbering many thousands, who will lose their rights and have not expressed support. [28] There was opposition, but not without exception, from the Te Kaaho Rurehe whānau, and it appeared that the balance of the views was slightly against the application. Decision [29] I came from the Court hearing with a view as to how the matter ought to be decided. I have taken time to reconsider the file and read the minutes of the hearing and to re-play in my mind what was said and how it was said. [30] I remain of the same view, namely, that there is not sufficient support from the descendants of the owners or from the beneficiaries as a whole, as would allow me to grant the application. [31] The application is dismissed. Pronounced at 9:00 am in Rotorua on this 6th day of July P J Savage JUDGE