IN THE MATTER. Te Kopua No 3 and 4 Blocks are held under a Section 438/53 Trust, now

Transcription

1 Volume 98 Folio 100 In the Maori Land Court of New Zealand Waikato Maniapoto District File: A IN THE MATTER of an application by Robert Tukiri under Section 239 of Te Ture Whenua Maori Act 1993 to appoint Trustees for Te Kopua 3 and Te Kopua 4 Blocks DECISION Te Kopua No 3 and 4 Blocks are held under a Section 438/53 Trust, now commonly known as an ahu whenua trust. The Trust was established on 30 November Three trustees were appointed, namely Ben Tukiri, Eva Tuaiwa Rickard and Mere Appleby. The first two are now deceased and the third, Mrs Appleby, is and has for some time been resident in Australia. As a consequence the land is not being administered by the Trust. Mr Robert Te Ngaungau Tukiri, after receiving advice from Te Puni Kokiri, called a meeting of owners to consider the election of new trustees. on 29 September 2001 and nine trustees were nominated. A meeting was held Of these only six completed consents to act as trustees and it is in respect of these six persons that Mr Tukiri seeks an order appointing them as trustees in place of the existing trustees. The land has had a chequered history. It was taken during the Second World War for defence purposes. Once it was no longer needed for those purposes it was otherwise dealt with by the Crown. After a prolonged struggle led by the late Mrs Rickard the Crown agreed to return the land and it was vested in the owners at the time the land was taken for their descendants. At the same time the Section 438 Trust was established and the three trustees were appointed. The minutes are recorded at 63/ of 30 November 1983.

2 Volume 98 Folio 101 Page 2 Marleina Te Kanawa opposed the application. In her statement to the Court she gave some history of the block and advised that at present the land is being used and cared for by the Whaingaroa Kita Whenua Trust and Whaingaroa Kohanga Reo, both whanau organisations. She indicated that there had been previous meetings where the consensus was to complete a hapu plan and then restructure, putting in place those legal entities most suited to carrying out the particular tasks, e.g. environment, historic, charitable arm, co-operatives et cetera. She sought an adjournment for six months to allow the hapu time to complete its hapu plan. She went on to say that once a common vision is agreed upon the legal entities most suited to particular roles in lands could then be put in place. Mrs Te Kanawa also contested the procedure whereby the trustees were appointed. The meeting was held immediately after the Te Kopua 283 Block Incorporation annual general meeting. of Te Kopua 3 but not Te Kopua 4. At that meeting would have been owners She claimed that sufficient notice was not given. She also advised that most of the shareholders walked out of the meeting when Mr Tukiri indicated that it was proposed to appoint trustees. Mrs Te Kanawa was supported by Luana Ngatai, who said that the majority of those in attendance got up and walked out before voting took place. Likewise, Hinemoa Rossi supported Marleina Te Kanawa and indicated that the Panui indicated that there would be hui but that was all. She said that it went out in the Te Kopua 283 Newsletter and was not an official notice. Mr Tukiri's application was supported by Matt Paekau, John Toma and Taiporohenui Day, all of whom saw nothing wrong with the procedure and

3 Volume 98 Folio 102 Page 3 supported the appointment of trustees so that the Trust could proceed to administer the land. Mr Tukiri responded that the first meeting was held on 31 December 2000 and the Rickard families were there and asked for a further six months so that they could come up with a plan. He stated that that was two years ago and he gave them plenty of time to come up with something and that nothing had happened. It was because nothing had happened that he went ahead and called the meeting. He said that the meeting was advertised and was to be held after Te Kopua 2B3 Incorporation meeting. Notification was given that a meeting for Te Kopua 3 and 4 Blocks was to be held to appoint persons as trustees. He claimed that there was a small group of people trying to exercise family control over the block as opposed to the will of the owners. He accepted that the late Mrs Rickard did sterling work securing the block for the people but felt that they had to move on and look to the benefit of all shareholders and for this reason he sought orders appointing trustees. In 1983 a Trust was formed to administer the land. To some it may not have seemed an ideal vehicle to manage and administer the land but nevertheless it was formed. It provided the owners an opportunity of being involved in such management and administration. It would appear that because of the demise of two trustees and the absence of the third the Trust has not functioned as an owners' Trust for many years. It is apparent that present management of the lands is being undertaken by whanau organisations. I am not decrying the existing management by whanau groups or the proposals that might come from hapu but. it does seem to me that the final decision on those proposals and the form of management should be made by the

4 Volume 98 Folio 103 Page 4 owners as appear on title. It would seem that under the present structure the Trust needs to be operative so that it can consider and agree to or reject such proposals as are put forward. The Court must recognise that there is a Trust in place and for that Trust to function it is necessary that it have active trustees. While the Court can appreciate the feeling of both parties the Court does have some sympathy for the views and actions of Mr Tukiri in seeking to have trustees appointed. When the Court appoints trustees it has to be satisfied under section 222 of Te Ture Whenua Maori Act 1993 that the appointment of those trustees would be broadly acceptable to the beneficiaries. In the present case the Court, for the reasons that I will give, cannot be satisfied that the trustees are broadly acceptable. Normally when trustees are agreed to it is through a vote taken at a properly called general meeting of owners. In this case the meeting was held immediately after the AGM of Te Kopua 283 Incorporation. Public Notice of the meeting stated - Te Kopua 3 and 4 IMMEDIATELY after the AGM of Te Kopua, 283, Incorporation on Sat 29th September, 2001, I will be asking for nominations for Trustees for the two above mentioned blocks, Te Kopua 3 and 4, Section 215 or 239 Turewhenua. Signed Robert Tukiri. n There is no reason why a general meeting for another block cannot be held immediately after the completion of a general meeting for a related

5 Walkato Minute Book Volume 98 Folio 104 Page 5 block, particularly when many of the owners are the same. However, the Notice leaves a little to be desired. It does not state that a general meeting of the Te Kopua 3 and 4 Blocks is to be held. It tends to indicate that the election process will be carried out by those present at the 283 meeting. Because of the lack of clarity in the advertisement I do not regard it as sufficient notice to the owners. While this ruling may seem somewhat pedantic proper notice to owners is a major requirement of any general meeting. I also take into account the fact that a large proportion of the owners left the meeting because they disagreed with the process of appointing trustees. Normally the Court would not take notice of owners if they took action which meant that they deliberately ignored an opportunity to express their views on appointment of trustees. In this case however, having regard to the nature of the Notice and this action by the owners, I am not satisfied that the persons nominated as trustees can be said to be broadly acceptable to all the beneficiaries. For these reasons I decline to make an order. As I noted earlier I believe that it is important that a Trust for this block be functioning properly. In so saying I do not see the Trust as necessarily running counter to the present whanau groups that are on the land or to proposals that may be put forward by the hapu for the future administration of the land. Without any legal management structure any use or management of the land can only be informal. The appointment of trustees would mean that those trustees can, on behalf of the owners, consider and approve management and occupation

6 Volume 98 Folio 105 PageS arrangements and other proposals in respect of the land if they feel that such proposals and arrangements are in the interests of the owners. In this way such arrangements can be given legal effect. In the absence of any active trustees it is appropriate that any meeting of owners be arranged by the Court. Pursuant to its general powers under section 37(3)/93 and 238 the Court directs that the Registrar call a meeting of owners to consider the appointment of new trustees for this Trust. At that meeting as part of general business other matters in connection with the future management and development or utilisation of the lands can be discussed. The Registrar should ensure that sufficient notice of the meeting is placed in local newspapers and notice is to be sent to each of those persons present at this hearing. If any of those persons has any suggestions as to other means of notice such as through local newsletters or otherwise they should contact the Registrar. Dated at Hamilton this 31st day of May ~~.... J~~;D~~~~~R COpy TO: All persons present at hearing W98A.A t13 18