HAMILTON JUDGE S Te A MILROY GERALDINE HULBERT, COURT CLERK

Transcription

1 Minute Book: 76 T 182 MAoRI LAND COURT PLACE: PRESENT: DATE: Panui No: SUBJECT: Section: HAMILTON JUDGE S Te A MILROY GERALDINE HULBERT, COURT CLERK Wednesday 17 December 2003 Chambers Application No: A TAHAWAI PARISH of LOT 12 A SECTIONS 9, 16, 22, 26 and 32 RESIDUE 215/93 Court: This matter was heard on 20 March At that time I indicated that orders creating a Trust under Section 215/93 would be made and I appointed trustees under Section 222/93. I also indicated that time would be given for submissions to be made on variations to the standard form of trust order. I now give my reasons for making the orders and for the variations to the standard form of trust order. Background Tahawai Parish of Lot 12A Section 9, 16, 22, 26 and 32 (Residue) comprises an area of hectares. The Maori Land Court records currently show the number of owners as 373, holding 13,460 shares. The block was created by Partition Order dated 24 October 1963, and appears to have been part of a housing development scheme taking place at Rereatukahia Pa. The minutes at Tauranga 25/93 disclose that Section 1 to 8, 10 to 15, 17 to 21 and 23 to 25, and 27 to 31 were allotted to various owners. The remaining sections 9, 16, 22, 26 and 32 (Residue) were awarded to all the remaining owners in their proper shares, as well as to those owners already allocated a section but whose awards had not wholly absorbed their share in the original block. The block does not include the Marae. On 9 March 2002 a hui was held at Te Rereatukahia Marae. The meeting was advertised on 28 February in the Bay of Plenty Times, 1 March in the Hauraki Herald, and on 5 March in the Katikati Advertiser and the Waihi Leader. The notices for the meeting stated that the agenda was to obtain permission from shareholders and owners to gift their shares to the Runanga 0 Ngai Tamawhariua Incorporated ("the Runanga") so that an area of three acres could be partitioned for the resiting of a whare and future hapu developments.

2 Minute Book 76 T 183 A further meeting was called on 27 April That hui was also extensively advertised in the Waikato Times, the New Zealand Herald, the Hauraki Herald and the Bay of Plenty Times, with the first advertisement being inserted on 6 April. The notice for that meeting advertised the agenda as being to set up a trust over the land, as well as to nominate trustees and elect them. A further hui was held on 23 November Again it was advertised in the Bay of Plenty Times and the New Zealand Herald, with the first advertisement being inserted on 12 October. A mail out was also undertaken for these meetings, with notices of the hui being sent to all those owners for whom addresses were held by the Runanga. The kaupapa for the November hui was to elect and form a trust over the block. At the November meeting a resolution that the owners form an ahu whenua trust was put. Fourteen owners voted for the motion, while three owners voted against it. Nominations for trustees were then taken. Ten people were nominated, but Arthur Smallman declined the nomination due to other commitments. A resolution was then passed that all nine nominees be nominated as trustees for the trust. The persons nominated to be trustees were - Peter Motutere Tom Rehua Smallman Graham Bluegum Peter (Bedes) Rikona Mereana Tangiia Kerewai Wanakore Edna Isaac Ted Bluegum (declined nomination at Court hearing) and Reuben Chapman Based on the information contained in the minutes of 22 November 2003 owners holding shares voted in favour of the formation of the trust and the appointment of the trustees. Although three people voted against the formation of the trust, the Court Officers could only verify two as owners. Those two owners held 1.9 shares. The matter was called on 4 February 2003 but prior to the hearing the Court received a request for an adjournment from Ann Duggan and a notice of opposition from Phillip Wharekawa. A number of the people present at the hearing objected to the grant of an adjournment on the basis that they had already had three hui regarding

3 Minute Book: 76 T 184 the matter and there was considerable inconvenience for them in being required to come to yet a further hearing. However, the adjournment was granted in order to allow further discussions to take place regarding the setting up of the trust, and because those objecting to the application were unable to be present at that hearing. The matter was adjourned until the hearing of 25 March. Between 4 February and 25 March 2003 the Court received letters and documents from the respondents to the application. These documents included the reasons for opposing the application, together with lists of owners they considered were in opposition to the application. These owners were the descendants of Pe Hori and Ripene Kuka. Not all descendants signed against their name in the list of the descendants of these owners. Of those who signed and whose ownership could be verified from the Court records it appears that owners holding a further shares oppose the application. In this decision I have called these owners the respondents to the application. The supporters of the application handed in signed consents from owners holding a further shares at the March hearing. The shareholders supporting the application hold roughly three and a half times the number of shares of those opposing the application. However, the Court also accepts that there are a number of persons both for and against the application who are not owners, but who are descendants of owners or affiliated to the Marae, and who have an interest in land so closely associated to the Marae. It is also to be noted that the shareholding of active shareholders, whether they were for or against the proposal, forms only a small part of the total shareholding. For these reasons the Court indicated at the March hearing that the merits of the application would be the determining factor. Numbers for and against the application would not necessarily determine the matter, although it was one of the factors to consider. Concerns of Respondents to the Application The main concerns of the respondents to the application can be summarised as follows: 1. That there was insufficient consultation and time to consider the proposal; 2. That a trust set up through the Maori Land Court was the imposition of a Pakeha structure which may not be appropriate for the owners;

4 Millute Book: 76 T That the trustees may not be the appropriate body to represent the owners in dealing with their concerns over the rates arrears, issues of raupatu, local government matters and adjacent railway land; 4. That this proposal was put forward by those involved with the Runanga 0 Ngai Tamawhariua Incorporated and that trustees from the Runanga were not appropriate people to be in positions of responsibility. Applicants' Submissions At the hearing the supporters of the application stated that some kind of governance body was required for the land to address issues such as the rates arrears, and appropriate development for the land in future. Various comments were made about whether the land was suitable for housing, or whether a hau ora clinic should be moved onto the land. The applicants wanted controlled development of the land, rather than the possibility of haphazard development occurring without the knowledge or consent of the owners. Comments were made that more than 2500 descendants could now affiliate to this block and that housing for all of them was out of the question. The applicants' position was that without some form of governing body future development of the block would be uncontrolled, and would lead to serious arguments amongst the owners. The Law Section 215(2)/93 requires that the Court must be satisfied: "... that the constitution of an ahu whenua trust would promote and facilitate the use and administration of the land in the interests of the persons beneficially entitled to the land ". Under Section 215(4)/93 the Court must not grant an application under Section 215 unless it is satisfied - " (a) That the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and (b) That there is no meritorious objection to the application among the owners, having regard to the nature and importance of the matter. "

5 Minute Book: 76 T 186 Discussion Most of those who stood either in opposition to the application or to ask questions about the application indicated that they did not oppose the setting up of a trust as such. Rather they were concerned about the terms of the trust and the persons who were to be trustees. The respondents asked for more time to consider the proposals, and more time to get to know the proposed trustees. It was also clear to me that some of the respondents strongly objected to the involvement of the Runanga, and that these objections arose from the financial difficulties and other problems experienced by the Runanga. Dealing with each of the issues raised by the respondents in order: 1. The first meeting at which these issues were raised was on 9 March Although the agenda for that meeting stated a different proposal to the one before the Court, nevertheless, issues of the appropriate body to deal with the land and appropriate development for the block were raised there. Both the following meetings were publicly advertised, and had agendas that specifically stated the resolution to set up a trust. This proposal was on the table from at least April 2002 until the Court hearing in March Consulting a large body of owners is always difficult, and there is always a possibility at every Maori Land Court hearing that one of the owners may stand up and state that they have not been given sufficient notice of the proposal. In this case I consider that the notice given was sufficient and that the three meetings in 2002 and the time from the adjourned hearing in February 2003 to the hearing in March 2003 gave the owners sufficient opportunity to discuss and consider the proposal. I therefore consider that the requirements of s 215(4)(a) have been met. 2. Maori Land Court Trusts are certainly based upon Pakeha concepts of trust law. However, they are useful in providing a more convenient and efficient way to manage land owned by a large number of shareholders than the meeting of assembled owners mechanism. Whether it is an appropriate body for the owners of this piece of land is for the shareholders to decide, and, clearly, the applicants think it is appropriate. 3. The rates arrears need to be addressed by someone. At present, it is not clear who is responsible for the rates arrears; somebody needs to take charge of dealing with this issue. The other issues of raupatu, the sale and purchase of railway land and representation at the District Council are hapo issues, rather than issues relating to the development of this particular piece of land. The

6 Minute Book: 76 T 187 ahu whenua trust deals only with the land, and not these wider issues. The creation of the ahu whenua trust does not substitute for traditional Maori ways of dealing with these wider issues - the kaumatua at the Marae and the mandated representatives of the hapcl as a whole have the responsibility for them. 4. From documents provided to the Court which detailed the governance structure of the Runanga it appears that only one nominee for trustee is an officer of the Runanga - Kerewai Wanakore is a trustee of the Runanga. The Court is not aware of any allegations of impropriety or financial misconduct against Mrs Wanakore. Nor were specific allegations made against any named trustees at the Court hearing. While Runanga supporters also support the proposal for the trust, other people representing other interests, such as the Chapman whanau, were also nominated as trustees. Both Mr Graham Bluegum and Mr Ted Bluegum were nominated as trustees in an effort by the supporters of the application to have representation of all interests in the block. Although Mr Ted Bluegum withdrew his consent to be a trustee at the hearing, he had the opportunity to remain as trustee. Nevertheless, it is also clear that some of these trustees are not well known to the owners who live on or near the block. I consider that that issue can be dealt with in the Trust Order by allowing for rotation of trustees and review of the trust within a set period of time to allow the owners to judge the performance of the proposed trustees. It is clear from the foregoing discussion that I consider that a trust would promote and facilitate the use and administration of the land. At present the land has no administration or governance body and no one to deal with developmental issues as they begin to arise. Without a trust the possibility of development occurring which is unfair to shareholders, and which takes place without the consent of shareholders is likely to occur. Some entity is needed to undertake consultation with the owners and to put together a management plan for the block that can address the competing needs and desires of the owners. I indicated above that I consider that the requirements of section 215(4)(a) have been fulfilled. In terms of section 215(4)(b) there were no objections as such to the formation of the trust but rather to some of the proposed trustees. I therefore conclude that the requirements of section 215(4)(b) have also been met, and that the proposed variations to the trust order to allow for early review and rotation of the trustees will deal with the issues regarding the proposed trustees.

7 Minute Book: 76 T 188 The Trust Order At the hearing of 25 March 2003 the parties were given time to make submissions on the form of the trust order. Apart from the discussions held at the hearing the Court has received no further submissions. Summarising the discussions at the hearing the following matters were raised: (a) Consultation - there was a strong call for further consultation to take place so. that the owners would have a better opportunity to consider how the block can be best managed and developed. The Trust Order will provide that as part of developing a management plan for the block the trustees undertake a programme of reasonable consultation with the owners to ascertain their wishes as to how the block is to be developed. The trustees will be required to report back to the owners with a management plan for the block which takes reasonable account of the wishes of the owners. (b) (c) (d) Trustees - rotation of trustees is required to ensure that the owners have the ability to remove trustees who are not performing. The suggestion was made from the floor that all trustees should step down after two years, but be eligible for re-election, and thereafter three trustees would resign every two years so that a full rotation of trustees would occur in six years. The provision for trustees to step down and the rotation of trustees in the Trust Order answers some of the concerns owners had with regard to those nominated as trustees. Review of Trust - the concerns expressed by the respondents of the proposal prompted the Court to suggest that the review of the trust should take place earlier than the standard three year interval in the ahu whenua trust order. The suggestion from the floor was that the review take place after two years, and at that time the trustees would be expected to provide the Court with a clear management and development plan for the land. The two year time line would allow the trustees to consult with the owners, develop the plan, and give indications of their long term performance. Accordingly the Trust Order will provide for a review after two years from the date of this decision. Existing occupiers - all indications prior to the hearing, and from most of those at the hearing who mentioned it, were that those currently occupying houses on the block be permitted to remain. However, one person considered that the Court should not bind the trustees to allow existing occupiers to remain, but should allow the trustees to take whatever action they deem appropriate. My understanding is that these houses have been on the block for a considerable

8 Minute Bool<: 76 T 189 number of years and that the occupiers of the houses may be able to claim an interest under Section 18(1 )(a)/93. It cannot help the trustees in their management of the block to be entering into acrimonious dispute with long term occupiers. On the other hand some clear understanding and orderly agreements need to be entered into with the current occupiers in relation to matters such as rates payments, contribution to maintenance of the block, succession issues and so on. I therefore consider it appropriate that the trustees be prevented from taking any action to evict these occupiers at this time, and at least until the review of the trust by the Court. At the review the Court would expect to see a report from the trustees detailing the basis upon which these houses were built and occupied and plans as to how these occupations are to be managed in future. These requirements are given as directions of the Court under the provisions implied by s The standard form of ahu whenua trust order is therefore varied to take account of the above matters. Accordingly there are orders under Sections 215/93 and 219/93 consituting the ahu whenua trust on the terms current in the Waikato-Maniapoto district but varied as set out above. There are also directions pursuant to s 237/93 as set out above. JUDGE