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Tai Whati. Judicial decisions affecting Maoris and Maori Land 1958-1983 [1983] NZMaoriLRes 1 (9 December 1983)

Last Updated: 15 January 2021

TAI WHATI

JUDICIAL DECISIONS AFFECTING
MAORIS AND MAORI LAND

1958 - 1983
Ka whakarereke to nuku e nga tai whati

Each wave breaking on the shore alters the landscape slightly

FOREWORD
The Maori Land Court has been an important part of Maori life for more than 100 years. But few people have known much about it, and even fewer have had a clear idea of how it works, and what it tries to achieve.

Today, the Maori people are taking a more self-reliant and searching interest in laws that affect them. They want to know how to use these laws that affect them. They want to know how to use these laws, and how to change them; something that cannot be done without a clear understanding of what has gone before.

This book has been written to provide a comprehensive reference source for Maori and other researchers wanting to know more about the interpretation and application of laws affecting Maori people. It will also be useful for those who plan changes.

I believe "Tai Whati" will be a valuable and practical help to our people in understanding and using our Maori Land Court.

Ben Couch

Minister of Maori Affairs

9 December 1983

INTRODUCTION

In 1980 the Royal Commission on the Maori Land Courts recommended that important past decisions of the Maori Land Court and the Maori Appellate Court should be compiled and published for the information of the legal profession and the general public.

This book is a response to that recommendation. Its object is to provide a compendium of cases having a current significance for those involved or interested in the present workings of the Maori Courts and with an interest in the current law as it affects Maori people.

In this respect it both follows and enlarges upon earlier publications. In 1879 there was published a collection of decisions described as "Important Maori Land Judgments" in a book that is now, unfortunately, a rare collectors item. In 1960 Chief Judge Morison of the Maori Land Court compiled a digest of selected judgments of the Maori Courts up to 1958. That work focused upon those cases relevant to the law and the preponderant workload of the Courts as at 1958.

This book follows on from where the Morison digest left off but the treatment is extended to include decisions of other Courts affecting Maori people and Maori land and to include in the index, references to post-1958 writings relevant to the law and the Maori and the development and administration of Maori land. This extension on the earlier works is largely a reflection of the increasing role of the General Courts in Maori matters, notably as a result of the greater use of review proceedings in the High Court, the work of the Planning Tribunal with jurisdiction in respect of Maori land as well as general land, and the passage of certain areas of jurisdiction from the Maori Courts to the General Courts in the 1960's. It is also a reflection on the current academic interest in the extent to which the law can or ought to reflect particular cultural preferences of the Maori people.

This book does not attempt to provide an historical analysis of the work of the Maori Courts. The Maori Courts played a significant role in the early settlement of New Zealand and it is regrettable that a number of important decisions in the early investigation of titles and land transactions have not been reported upon or subjected to a lego-historical analysis. In similar vein, this book does not include important decisions of the Maori Courts after 1958 in areas where those Courts no longer have a special jurisdiction (in particular in matters of probate, estate administration, adoption and family protection) or where they have been rendered redundant by statutory change.

At the time of writing a substantial change to the law affecting Maori land is being proposed. It is considered however, that many if not most of the cases in this book will remain relevant should those changes be enacted, both for the broad principles established and the interpretation given to particular aspects of the Court's jurisdiction, and for the comparative base that the cases in this book will provide.

The target audience for this book is not only comprised of lawyers and law students. It is intended for the general public, for public and local administrators and planners who are invariably involved in issues affecting Maori interests, and for Maori people, the owners of Maori land and the people who are currently challenged to seek new and improved mechanisms for the management of their kin group resources. Accordingly, the technique has been to provide case summaries only of the decisions. Lawyers and others may obtain the actual decisions of the Maori Courts referred to in this book from the Chief Registrar, Maori Land Court, Private Bag, Wellington.

This book has been produced by the Department of Maori Affairs which provides for the functioning and servicing of the Maori Courts. The Department would particularly like to acknowledge however the work of Gordon Brent Wong, LLB, and Claire Krogulec, LLB who drafted most of the case summaries, and for the considerable time given by the Chief Judge of the Maori Land Court, Judge E T J Durie in the supervision of the work.

It is intended to issue annual supplements.

G D Fouhy

Chief Registrar of the Maori Land Court

Editor

December 1983

CONTENTS

PAGE

Abbreviations

Table of Cases . . 1

List of Subject Headings in Index 6

Index—an index of cases incorporating references to books, theses, dissertations and articles not summarised
in the text . . 8

Case Summaries in chronological order 66

Glossary of Maori Words 280

ABBREVIATIONS

In the Table of Cases and Index, case titles and references have been abbreviated but full descriptions appear in the text.

Maori Courts—explanation of abbreviations:
Decisions of the Maori Courts are contained in Minutes Books divided according to Registries in the case of the
Maori Appellate Court, and according to districts within Registries in the Maori Land Court. Thus

12 Whanganui ACMB 75 Volume 12 Whanganui Appellate Court Minute Book folio 75

53 Taupo MB 2 Volume 53 Taupo Minute Book folio 2

In addition the Chief Judge has a Minute Book used primarily for applications under S452 and referred to as, for example

(1983) CJMB 14 1983 Chief Judge's Minute Book folio 14

In the Maori Courts, the original Maori name of Whanganui substitutes for the current name Wanganui in all Minute
Books and Orders.
The current Appellate Court Minute Books are

Aotea Aotea District, Registry at Wanganui

Tairawhiti Tairawhiti District, Registry at Gisborne

Taitokerau Taitokerau District, Registry at Whangarei

Takitimu Takitimu District, Registry at Hastings

Te Waipounamu Te Waipounanu District, Registry at Christchurch

Waiariki Waiariki District, Registry at Rotorua

LIST OF ABBREVIATIONS

ACMB Appellate Court Minute Book (Maori Appellate Court)
All ER All England Law Reports
Anglo Am LR Anglo American Law Review
ANU Australian National University
AULR Auckland University Law Review
AUP Auckland University Press
Cant LR Canterbury Law Review
CB Conveyancing Bulletin
CJMB Chief Judge's Minute Book (Maori Land Court)
CL Current Law
CLB Commonwealth Legal Bulletin
CMS and R, U Waik Centre for Maori Studies and Research, University of Waikato
DCR District Court Reports
Dept Maori Affairs Department of Maori Affairs
GLR Gazette Law Reports
JPS Journal of the Polynesian Society
LRF Legal Research Foundation
LQR Law Quarterly Review
MB Minute Book (of the Maori Land Court)
MCD Magistrates' Court Decisions
MOW Ministry of Works and Development
NLJ New Law Journal (UK)
NZAR New Zealand Administrative Reports
NZJPA New Zealand Journal of Public Administration
NZLJ New Zealand Law Journal
NZLR New Zealand Law Reports
NZTPA New Zealand Town Planning Appeals
NZULR New Zealand Universities Law Review
NZ Val New Zealand Valuer
Otago LR Otago Law Review
PP People and Planning
RL Recent Law
SLR Saskatchewan Law Review

21. Auck University of Auckland
21. NZ University of New Zealand
21. Otago University of Otago
21. Queensland University of Queensland
21. Saskatchewan University of Saskatchewan
21. Waik University of Waikato

VUW Victoria University of Wellington
VUWLR Victoria University of Wellington Law Review

Other Abbreviations

Unless otherwise shown, references to sections of an Act refer to sections of The Maori Affairs Act 1953. References to statutes amending that Act are recorded as, for example, s22/1967—section 22 Maori Affairs Amendment Act 1967. Unless otherwise indicated, "Court" means the Maori Land Court.

ii

TABLE OF CASES

SUMMARISED IN THE TEXT

LIST OF SUBJECT HEADINGS IN INDEX

PAGE

Accretion 8
Adoption . . • • • • • • • • 8
Adverse possession and prescriptive title . . 8
Agents • • • • • • • • • • • • • • 9

Aggregation—see "Confirmation and undue aggregation" 9
"Amalgamation and aggregation"
Amalgamation and Aggregation . . 9
Ancestral Land—see "Town Planning" 9
Appeals • • . 9
Applications . . • • . 11
Artifacts and carvings . 11
Bankruptcy . . • • . 11
Board of Maori Affairs . 11
Case stated . . . 11
Charitable . . • • . 11
Chief Judge's special powers . 12
Commission . . • • • • . 12
Compulsory acquisition and agents . 13
Conditions—see "Confirmation and conditions" . 13

"Orders" . .
Confirmation generally . . . 14
Confirmation and adequacy . 15
Confirmation and adjournments . . . 15
Confirmation and breach of trust . . • • . 15
Confirmation and conditions/modifications . 15
Confirmation and improvements . . . 16
Confirmation and informal alienations . 16
Confirmation and meetings of owners .

. 16
Confirmation and partition . . • • . 17
Confirmation and special circumstances . 17
Confirmation and undue aggregation . 17
Confirmation and who may be heard . 17
Confirmation of leases • • . 18
Confirmation of sales • • . 18
Confirmation of sales to lessees . 19
Consolidated orders (declaratory) . 19
Consolidation schemes . 19
Contracts . 19
Costs • • . 19
Crown Land . 20
Customary land . 20
Damages . . . 20
Debts • • • • • • • • . 20
Development schemes under Part XXIV . 20
Encroachment • • • • . 21
Endorsement of alienations . 21
Evidence . . . 21
Exchange . . 21
Family Protection . 22
Fencing • • . 22
Fishing Rights • • • • • • • • . 22
Foreshore—see "Lakes, rivers and foreshore" . 23
Forestry • • . 23
Freehold orders . 23
Historical interest 23
History of Laws, Maori Land Laws and Maori Land Generally 23
Housing—see "Town Planning" . . 27
Improvements • • • • 27
Incorporations • • • • • • • • • • • • • • 28
Informal occupations—see "Confirmation and informal alienations" 29
Injunctions . . 29

INDEX

An index of cases incorporating references to books, theses, dissertations and articles not summarised in the text

PAGE

Accretion

Change in course of river—accretion to land denotes increase which land bordering on a river undergoes—must be so slow and gradual as to be in a practical sense imperceptible—whether there was accretion or not is a question of fact to be determined from evidence.

Papangaio, Crown v Maori Owners 106
and whether the Maori Land Court can determine if there has been accretion to Maori land or whether the application should be to DLR

Complaint to Ombudsman re Accretion 189

Refer "Accretion to Title to land with respect to the Land Transfer Act"

5. C Adams [1957] NZLJ 351

"Who owns the shingle in the old riverbed"

5. C Adams [1962] NZLJ 110

"Accretions to title to land—riverbed and foreshore"

5. C Adams [1964] NZLJ 58

"Wind, sand and water accretion and ownership of Lake bed"
F M Brookfield [1981] NZLJ 365

"Accretion, Avulsion and Diluvion"
H W Wilkinson [1982] NLJ 1012

"Accretion and the Privy Council"
F M Brookfield [1982] NZLJ 173

Adoption

Adopted children are entitled to succeed in accordance with Maori custom

Reupena K Deceased 77

Family Protection claim against estate by birth child where whole of estate devised to an informally adopted child (or whangai)

Rogers v Rogers and Tatana 264

Refer "Adoptions Amongst Maori and the Adoption Act 1955"
A J McDonald (1978)—Essay for LLB Hons Degr.

Adverse Possession and Prescriptive Title

There is no possessory title claim in respect of Maori I.and (but the Court could not determine whether the land was Maori Land in this case because of conflicting Crown Grants)

Awhitu, Bath and Tuteao 214

Whether land was Crown land reserved for Maoris or Customary land and accordingly, whether "adverse pos‑session" could apply thereto

Whatamongo and MM of Lands 74

Refer "Difficulties and Complexities as to title to land in New Zealand"

5. C Adams [1957] NZLJ 336, 364

"Acquisition of Prescriptive Title against the Crown" (with particular reference to Haua v Kata Tamihana and the special statutory authority given to the Maori Land Court to deal with that case)

E C Adams [1961] NZLJ 58 and 296

"Prescriptive Title—protecting the possessor"
A P S Alston [1978] NZLJ 421
Agents

Maori agents—may appear, with leave, in Maori Land Court but not in District Court or High Court

Mihaka v Police (No. 2) 232

See "Compulsory Acquisition and Agents" for agents appointed by Court in respect of a proposed taking 13

Appeals

A person who is not a party in the lower Court proceedings may appeal. It is sufficient that he be "materially affected" and thus, an appeal may be brought by a child of an owner who is opposed to a long term lease

Awarua, McCarthy v Collerton 89
or a neighbour opposed to a new lease to a lessee who had not performed covenants

Marangairoa and Marangairoa Inc 99
or a co-owner opposed to the sale of an interest outside of the kin group, or to a lessee

Paokahu, Ruru v Economic Butchery 152

Tikouma, Whareraumati v Tutonu 169
or a local authority opposing partition

Rehuotane and Whangarei CC 140
or a person opposing sale who did not succeed until after confirmation

Pupuke, Smith v Poata 138
or a dissentient to a resolution of assembled owners

Whakapaupakihi, Hodgson v Bayley (which reviews earlier cases) 110
and accordingly the appellant need not have a legal or beneficial interest in the land

Puketiti, Von Dadelszen v Goldsbury 255
but the fact that a person who is not an owner or a party has been referred to in a decision in terms regarded as derogatory does not mean he is "materially affected" by an order and therefore entitled to appeal

Rangatira B and Dribble 137
Admission of further evidence on appeal—generally further evidence not admitted except upon same principles as apply in Court of Appeal

Tauranga-Taupo, Goebel v Tawhirau 117

Whareongaonga and Skuse 166

Tikouma, Whareraumati v Tutonu 169

Raharuhi Rukupo 186
and must be sought by application filed prior to trial with affidavit of evidence to be adduced

Marangairoa and Marangairoa Inc 99
and in any event cannot include evidence of circumstances arising after the order appealed against

Marangairoa and Waikari 116
but further evidence may be admitted to secure substantive justice to owners

Motatau, Haki v Board of Maori Affairs 109

Against exercise of a discretion—the Maori Appellate Court will not interfere with the exercise of a discretion except on established grounds pertaining to all Courts

Aorangi, Durie v Maori Trustee 104

Motukawa, Chase v Horton 241

Tarawera, Cottrell v Roberts 252
as for example, on a failure to consider all relevant matters on partition

Manawatu-Kukutauaki, Jarvis v Stewart 242
or in acting on a preconceived notion and with insufficient data on partition

Rangatira C, Warbrick v Grace 135
or in an abitrary manner in appointing to a committee of management

Te Hapua Inc and Murupaenga 162
or in giving insufficient weight to various factors on confirmation

Otawa and Garrett 145

Amendment of appeal—although grounds not properly stated, Maori Appellate Court may still dispose of the appeal where Court records establish the matters in question—in this case, succession order rectified by reference to previous evidence

Koti R succession 151
but the power to cure defects in s. 59 does not extend to enable further appeals against further orders to be included

Taupo Central Inc and Williams 88

From preliminary determination or final order—an appeal lies from a preliminary determination only in speci‑fied cases, as upon partition—s. 43

Mokoia Island and Karawana (where effect of preliminary determination considered) 68
but not from a determination of persons entitled to succeed where a final order vesting in successors has not been made

Ngarimu H deceased 100
and an interlocutory decision that a person is not entitled to be heard is not a final order to support an appeal

Mangawhero, Beattie v Hayes 154
Similarly, if the Court did not refuse confirmation but merely adjourned proceedings there is no appeal

Rakautatahi and Apatu 151
and a decision to confirm a resolution of owners to sell is not an order to support an appeal

Motatau, Ruka v Auckland Farmers 79
but an appeal lies against a recommendation that land be set apart as a Maori Reservation

Waimana, Biddle v Delamere 276

Hearing of appeal—whether Maori Appellate Court bound by its own earlier decisions—a Judge may sit on the Appellate Court although he has served on an earlier Appellate Court that considered substantially the same issues

Tikitiki, Tibble v Tibble 276
An appellant is not entitled to a direction for rehearing simply because he declined to engage a lawyer and raise all issues in the lower Court

Wairau North, Tuoro v Ambler Bros 87
and a matter not raised in the lower Court may not be raised on appeal

Maungatautari, Hopa v Board of Maori Affairs 76
but the Maori Appellate Court has special powers and it may effect rectifications even although they are not sought by an appellant

Koti R succession 151

Ngapuna, Ruka v Mills 163

Torere, Kingi v Rika 274
and even although the appellant seeks leave to withdraw the appeal

10

Maungatautari, Matehaere v Baillie 185
Similarly the Maori appellate Court may refuse to adjourn an appeal where the appeal is against a vesting of land in the Maori Trustee to lease, and the appeal is sought to put a stay on the leasing of the land pending the completion of a partition proposal

Wharekawa, Te Waero v Wootton 157
The Maori Appellate Court cannot direct a rehearing as to part only

Maruata, Reweti v Honetana 170

Leave to appeal—leave under s. 27 (3) may be implied

Murihiku Lands and Ngaitahu MTB 256

Maori Appellate Court—nature of—Maori Appellate Court has special powers to deal with special problems and accordingly appeals lie to the Maori Appellate Court and not to the Court of Appeal

Kingi v Jeune 126

Out of time—the Maori Appellate Court has no inherent jurisdiction to grant leave to appeal out of time

Opuatia and Tauroa 107
and accordingly it is incumbent upon Registrars to ensure the prompt despatch of Court decisions

Pehitawa and Brandon Farms 206

Applications

Who may apply—not necessary to have a legal or beneficial interest

Puketiti, Von Dadelszen v Goldsbury 255

See also "Appeals" under why may bring an appeal 9

Artifacts and Carvings

Determination of the ownership or right to custody of Maori artifacts—Antiquities Act 1975

Moe Teau, a greenstone pendant 186

Historic carving exported contrary to Historic Articles Act 1962 and sold—subsequent proposed auction—NZ Government unable to obtain order for its return to New Zealand

Attorney-General v Ortiz 272

History relating to carvings, the carved house Te Hau Ki Turanga, and the carver Raharuhi Rukupo

Raharuhi Rukupo 186

Bankruptcy

Official Assignee is subject to restrictions in s. 213 as to the transfer of individual interests

Potakakuratawhiti and Official Assignee 167

Board of Maori Affairs

Obligation to represent owners in proceedings

Taupo C C v Gillanders-Scott 234

See also "Development Schemes" 20

Case Stated

Magistrates' Court unable to state case to Maori Appellate Court

Hata v Hata 125

Maori Appellate Court should not state a case to the Supreme Court when to do so is to avoid its duty to determine whether matters are within its jurisdiction, or to determine matters within it

Ngatarawa, Chadwick v Guardian Trust 140

Opinion that on matters of Maori custom and fact Supreme Court should state a case to the Maori Appellate Court

Ninety Mile Beach 120

Charitable

Charitable purposes of Maori Trust Boards

Arawa Maori Trust Board v CIR 95

11

Sig. 2
Chief Judge's Special Powers

Purpose of s. 452—is primarily for the amendment of erroneous orders

Awaroa, Maori Trustee and Takiari 253
and Chief Judge may decline jurisdiction thereunder if there is still a right of appeal, (unless, as in this case, the effect was not to make a final determination but enable a rehearing)

Kaiapoi Reserve and Karaitiana 261
but Chief Judge may review matters of both fact and law, and Appellate Court decisions, and then even although the Chief Judge was a party to the Appellate Court decision

Ngatarawa, Chadwick v Guardian Trust 140
However, where the issues relate entirely to matters of jurisdiction and some are outside the competence of the Chief Judge to determine, the matter should be referred to the High Court

Rangitoto-Tuhua and Ormsby 72
The Chief Judge may rectify an order incapable of registration through the disclosure of a trust

Maraehako and Smith 159

As to the amendment of erroneous orders by other than the Chief Judge (or the Maori Appellate Court) see
"Orders" 39
Applications under s. 452 must be brought by a person "adversely affected"—this does not generally include
the Maori Trustee when acting as the statutory agent of owners following confirmation of an owner's resolution

Awaroa, Maori Trustee and Takiari 253
but the Maori Trustee can be adversely affected if an order affecting him as administrator is incapable of registration

Maraehako and Smith 159
and a party to the proceeding in which the order was made may be a person adversely affected

Ngatarawa, Chadwick v Guardian Trustee 140

S. 452 and confirmation—not be used to rectify certificates of confirmation

Waimanu Sawmilling v Prichard 122

S. 452 and consolidation schemes—any rectifications involving interests in lands in consolidation schemes must be made within the terms of the scheme

Board of Maori Affairs v Jeune 156

S. 452 and successions—Chief Judge may amend succession orders to include beneficiaries excluded under the $20 rule

Gilbert succession 251

S. 452 (8) and where interests have been alienated—Maori Land Court may decline to adjourn an application for confirmation to enable an application to be brought to the Chief Judge challenging the title of an alienor

Toki v Maori Land Court 240
An option to purchase in a lease, acquired for value and in good faith, cannot be affected by an order under s. 452

Murray v Scott 178
But s. 452 (8) does not prevent the Chief Judge from rectifying past orders so as to defeat the title of a person who has alienated that interest where the alienation has not been registered, the effect on the alienee's interest being determinable in the High Court

Ake deceased 279

Chief Judge may alienate lands under Part XXIV without the consent of the Board of Maori Affairs

Board of Maori Affairs v Jeune 156

Commission

Maori Trustee's Commission on sale—whether it was fair to add a condition that the alienee pay commission

Otawa and Garrett 145

Maori Trustee entitled to commission on rents paid under a renewal of a lease

Maori Trustee v Tauranga Big Game Fishing Club 246

Maori Trustee entitled to commission on proceeds of sale—commission payable by alienee

Awarua, Clay v Rangi 67
Compulsory Acquisition and Agents

Agents—powers duties and responsibilities of agents considered—agents and trustees compared—agents should not be removed on request from Crown simply on ground that negotiations have broken down

Matata and MOW 182
The Court should not appoint agents with a power to sell where the works are non-essential works unless the owners as a whole have agreed—taking authority should use meeting of owners procedure

Wharekawa East and MOW 224
but where agents lack competence to effect a long term lease, Court may replace agents with thrustees

Waikawa and MOW 184

Alternatives to compulsory acquisition—neither the local authority nor the Planning Tribunal can stipulate for a lease alternative to the compulsory acquisition of the freehold in designating land for a public work (but lease eventually concluded)

Maori Land Trust v MOW 217
and where a long term lease alternative is agreed upon, agents cannot effect same for the owners—it is more appropriate for the Court to appoint trustees

Waikawa and MOW 184
Exchange of land is another alternative—in that case a taking by proclamation and a transfer is not the best method and it is preferable that there be an application for exchange—any agreement for exchange does not require confirmation and it is misleading to owners to suggest that adequacy will be determined by the Maori Land Court

Te Tii, MOW v Aperhama 86
But Minister of Works may not refuse a recommendation for taking on grounds that it is not Government policy
to take Maori land for public works if that policy has not been made by law

Dannevirke BC v Governor-General 238
However Maori land acquired for a public work and no longer needed may be returned to Maori owners

Cook County Council v Attorney-General 192

Raglan Golf Club v Raglan CC 225

Assessment of compensation—principles applicable where undeveloped land has subdivisional potential and there was an intention to subdivide

Whareroa, Maori Trustee v MOW 111
and method of assessing, with the allowance to be given for profit and risk

Popoteruru-Takapuwahia, Nahera v MOW 69
Basis for assessing compensation for metal taken for use in a public work where the land is not taken

MOW v Hura 219
and where the land has been taken, metal is still to be valued, and on a royalty basis

Waima and MOW 82
but value of land to owners because of historical associations is not compensatable

Pukekura, Maori owners v MOW 75
There is a duty on the Crown to supply all evidence available to it to enable full compensation to be properly assessed—admissability of evidence of demand for land after date of taking

Whareroa, Maori Trustee v MOW 111

In relation to roads—access to public works should not be secured by roadway orders

Hauhungaroa Inc v Attorney-General 164
and whether Crown in trespass in forming roadways not formally taken by proclamation

Hauhungaroa Inc v Attorney-General 164

Tuaropaki and Taupo CC 234

Refer "Power Stations on Maori Land"

E Stokes (1980) P & P No. 15
"Alternatives to Acquisition"—consideration of leases, licenses, covenants and easements as alternatives to com‑
pulsory acquisition of fee simple

G. McMillan (1981) in "Land, People and Government—Public Lands Policy in the South Pacific"

"Acquisition of Maori Land for Public works"

K A Palmer (1982) Tapeka Marae Conference, Dept Maori Affairs

Confirmation Generally

Cancellation and amendment—Court will not cancel upon an allegation of mistake or error in a material term of the agreement as in an error in calculating the quantity of millable timber

Pouakani and Andrews 116
Until sealed a decision to confirm may be reviewed and conditions may be deleted

Carnarvon 93

Ngarara West, Graham and Williams 119
but thereafter the decision cannot be amended under s60 (at least, cannot be amended so as to determine an issue not raised at the hearing)

Tihiotonga and Hunt 94
(except to include conditions inadvertantly omitted from a certificate)

Waiteti and Matthews 115
or by Chief Judge under section 452

Waimanu Sawmilling v Prichard 122

Confirmation of an instrument of alienation is not evidenced by a decision, pronouncement in open Court, or an order, but by a Certificate of confirmation endorsed upon the instrument

Waimanu Sawmilling v Prichard 122

Kuratau Land Co v Te Kuru 131
but rehearing the time runs from pronouncement of an order of confirmation and not from the date on which the certificate of confirmation is sealed

Ngamoe and Rangi 90

Court is restricted to considering only those matters specifically prescribed by statute together with (in the case of resolutions) the validity of the resolution

Matahina, Kauri Timber v Ngapuna Timber 83

Papatupu and Pirikau 153

Mangawhero, Beattie v Hayes 154

Whareongaonga and Skuse 166

Alton, Ashwell v Port Craig Timber 177
Tikitiki, Tibble v Tibble 276
but the High Court may set aside instruments on wider grounds of unfair bargain and equitable fraud

Riki v Codd 233

On confirmation, where a lease contains an option to purchase, the lease should be confirmed, but not the option until the option is exercised as until then there is no agreement to alienate, semble, an option to purchase need not be confirmed

Murray v Scott 178
and the Court cannot choose between rival instruments but may confirm both

Waiohiki, Morrison v Gordon 128
In refusing confirmation of a resolution the Court may substitute a trust order of its own motion

Tangoio, Taylor v Pohio 149

The Court may refuse to consider an application for confirmation filed well out of time

Matakana, Tukaki and Porau 221
and failure to expeditiously seek confirmation could lead to a claim for damages

Rowe v Cleary 219

The Court is entitled to full information and an alienor to an instrument of alienation should appear

Rotopounamu and Tareha 75

and see "Confirmation and Who May be Heard" 17

Refer "Alienations of Maori Land"
LA Taylor (1965) NZLJ 136

"Man Perishes but the Land Remains—the alienation of Maori Land under the Maori Affairs Act 1953" PG McHugh (1978) research paper, LLB Hons Degr VUW

"Alienation of Maori Land under part XXII and s438 Maori Affairs Act 1953
P G McHaugh (1979) 10 VUWLR 153
Confirmation and Adequacy

"Adequacy" is to be determined at the time that confirmation is sought and not at the time that the agreement was reached

Rowe v Cleary 219

Matakana, Tukaki and Porau 221
A sale at bare Government Valuation is rarely acceptable and even if the alienor is prepared to accept a lower figure

Ngatimanuhiakai and Alexander 108
The Court may rely on its own knowledge of values in the area and refer to its own records of other confirmations

Ohura South and Lake Timber Co 95

Orokawa, Upton v Hakaraia 126
and if consideration is inadequate it is not bound to determine the proper value and to confirm subject to an increase in the consideration but may simply refuse confirmation

Orakawa, Upton v Hakaraia 126

Horohoro and Heap 228
but it must state its reasons for determining any consideration to be inadequate and show that the applicant had an opportunity to be heard on relevant items

Waipu and McCalman 124
Land without access but in respect of which a roadway order could be made to secure access, is not to be valued as though the land had access

Tuparekura and Leighton 128

In the case of a lease, evidence of a higher offer does not in itself mean that the rental proposed is inadequate, especially if the proposed lessee has a good record in farm husbandry

Rangitoto-Tuhua, Matena v Kawau 133
but cf—the lessee's ability to perform the covenants of a lease is not relevant to confirmation

Mangawhero, Beattie v Hayes 154
In the sale of land subject to a lease no allowance is to be made for any provision for compensation for improve‑ments but rather, consideration to be increased having regard to rent losses

Mohaka and Barry 130

In the sale of undivided interests the Court is not bound to a Government valuation of an interest as being less than the interest's equivalent proportion of the valuation of the land as a whole but must consider the circum‑stances in the particular case and in some cases the interest may be worth more than the fractional equation

Manukawhitikitiki 246

and see CIR v Flaxbourne Trust 278

Confirmation and Adjournments

Court need not adjourn to enable dissentients to bring an application under s452 to establish the existence of a trust

Toki v Maori Land court 240
but where there is confusion over true boundary lines so that a neighbour's improvements could pass with the sale, Court should adjourn to enable repartioning proposals to be brought

Maungatautari, Pakeho v Poihakena 88

Confirmation and Breach of Trust

Trust not apparent on face—Court need not adjourn for s452 proceedings to be brought

Toki v Maori Land Court 240

Confirmation and Conditions/Modifications
Consent of alienee is required to conditions

Aorangi, Te Kuiti v Serpentive Quarries 158
and where the commencement date of a lease is not recited and the Court modifies by inserting the com‑mencement date, the consent of the alienee to that modification is required

Pehitawa and Brandon Farms 206

But similarly no amendment should be made to an agreement without also hearing the alienor and then after independent legal advice

Maungapohatu South, Thompson v Hunter 130
Section 60 may be used to include conditions inadvertently omitted from a certificate of confirmation

Waiteti and Matthews 115
and Court may amend by deleting conditions at any time prior to sealing of the Certificate of Confirmation

Carnarvon 93

Ngarara West, Graham and Williams 119

Condition that purchaser pay outstanding rates held unreasonable where purchaser had not been in prior occupation

Tuparekura and Leighton 128

Confirmation and Improvements

An informal occupier does not have the benefit of his improvements

Tauranga-Taupo, Goebel v Tawhirau 117
but a purchaser effecting improvements in anticipation of confirmation may seek to have the value thereof deducted

Pakikaikutu and Gurney 129

Land sold subject to lease—consideration not to be reduced by having regard to compensation for improvements provisions in the lease

Mohaka and Barry 130

Protection of existing tenant's improvements does not apply once lease expires
Makarika, Reedy v Johnson 146
Confirmation and Informal Alienations

Unconfirmed instruments are of no force or effect (so that an informal occupier who is buying does not have the benefit of his improvements)

Tauranga Taupo, Goebel v Tawhirau 117
but the unconfirmed instrument, while without validity, is not unlawful

Matakana, Ngatai v Tarawa 147
and it is "untainted by illegality" so that an informal lessee may sue upon a licence that he has granted to a third party

Sim v McTavish 67

Refer "Alienations of Maori Land"
L A Taylor (1965) NZLJ 136

Confirmation and Meetings of Owners

Confirmation and addition of conditions—meaning and application of s318 and s319
Aorangi, Te Kuiti v Serpentine Quarries 158
Confirmation and applications for meetings of owners are separate judicial proceedings

Papatupu and Pirikau 153

Pehitawa and Johns 174

Court cannot refuse confirmation on the ground that the owners have had a change of mind—nor should Court direct a recall of the meeting of owners on that ground—s318, 319(1)(c) and 227(3)

Tikitiki, Tibble v Tibble 276
Court may review proceedings at meetings of owners however and consider the conduct of the meeting, whether persons were properly present or properly represented by proxy and the consequential validity of any resolution

Matahina, Kauri Timber v Ngapuna Timber 83

Waipa and Delta Timber 119

Whareongaonga and Skuse 166

Alton, Ashwell v Port Craig 177
and as to the conduct of meetings and proxies

see "Meetings of owners" 36
and compare with shareholder's meetings and proxies under

"Incorporations" 28

Court may also review the discussion and consider whether the duty to disclose all relevant data has been discharged—may refuse confirmation of sale to a nominee for failure to disclose real purchaser to the meeting

Pehitawa and Johns 174

88

124

Refer "Alienation of Maori land under Part XXIII and Section 438 Maori Affairs Act" P G McHugh (1980) VUWLR 153

Confirmation and Partition

Where there is confusion as to boundaries, confirmation proceedings should be adjourned to enable reparti-tioning to be considered
Maungatautari, Pakeho v Poihakena
Confirmation and Special Circumstances

Confirmation of instrument of sale—the fact that the purchaser has been in informal occupation of the land creates a particular relationship and special circumstance and the applicant should bring evidence that he has paid an adequate rental for his occupation

Waipu and McCalman
but the Court may allow a purchaser in prior occupation the benefit of his improvements having regard to
"special circumstances"

Pakikaikutu and Gurney 129
or a lower rent to a family member (but should not do so when there are dissentients)

Rangitoto-Tuhua, Matena v Kawau 133

Confirmation and Undue Aggregation

On confirmation the Court has a positive duty to consider and inquire into the question of aggregation

Taungaure, Swinton v Barker 91
but only the Crown (apart from the applicant) may be heard thereon

See all cases cited below
(the Court has the facility but not the duty to notify the Crown, and the Crown may appear as of right)

Toki v Maori Land Court 240
and accordingly a neighbour cannot be heard thereon

Toki v Maori Land Court 240
and a former lessee opposing a lease to a new lessee cannot appeal on that ground

Mangawhero, Beattie v Hayes 154
and neither can a rival lessee seeking to oppose confirmation of a lease to another

Marangairoa and Marangairoa Inc 99

A lease that is invalid through default in obtaining consent of the Land Valuation Committee may be subse‑quently validated under the Illegal Contracts Act 1970

Raglan Golf Club v Raglan CC 225

Refer JAB O'Keefe [1968] NZLJ 35

Confirmation and who may be Heard
To fulfil its inquisitorial function on confirmation, the Court may hear anyone who can assist it in its inquiries, although he may be a stranger to the transaction, and thus, a person opposing a lease and seeking an alternative lease himself

Mangawhero, Beattie v Hayes 154
a neighbour opposing a new lease to an existing lessee who had not cleared scrub

Marangairoa and Marangairoa Inc 99
a neighbour seeking a prior repartitioning

Maungatautari, Pakeho v Poihakena 88
a previous lessee

Pokuru and Pokuru Lands Ltd 68
dissentient owners

Whakapaupakihi, Hodgson v Bayley 110
and opposing even although they have not signed Memorials of Dissent

Pokuru and Pokuru Lands Ltd 68

Whareongaonga and Skuse 166

Remaindermen may be heard

Hereheretau, Tamatea v Tinworth 110
and alienors to an instrument of alienation ought to be heard

Rotopounamu and Tareha 75

Confirmation of Leases

Matters to be considered—it is in the owners interests to have a lease with a right of renewal in preference to a single term lease for the combined number of years

Rotoiti and Conn 142
it is reasonable for lessee's improvements to be deducted from the capital value in assessing rental on review when the land is substantially undeveloped

Rotoiti and Conn 142
but any provision for compensation for improvements effected by a lessee must comply with the general provisions affecting the same in Part XX of the Act and the Court will not confirm if those provisions do not so comply

Ngatitara, Public Trustee v Gatenby 72
As is also provided for in Part XX consideration may be given to protecting a former lessee for improvements effected by him in confirming a new lease (application of s230)
Araukuku, Hurley v Edmondson 71

Taungaure, Swinton v Barker 91
However, since 1967 the Court is restricted to considering adequacy, aggregation and the validity of the resolution, and accordingly now, the Court cannot consider the financial and other capabilities of the lessee to complete proposed development works or perform the covenants of a lease

Papatupu and Pirikau 153

Mangawhero, Beattie v Hayes 154
and nor can it consider that the owners have changed their minds and no longer wish to lease

Tikitiki, Tibble v Tibble 276
but the High Court may set aside a lease or grounds of equitable fraud or unfair bargain

Riki v Codd 233

Remaindermen are entitled to be heard on, and to have notice of, a lease by a life tenant

Hereheretau, Tamatea v Tinworth 110
but cf a child unsuccessfully opposing a long term lease by an aged parent in

Awarua, McCarthy v Collerton 89

Where confirmation is sought of two rival leases, Court should confirm both the second to be a concurrent lease to take effect on expiry of the first if it is for a longer term

Waiohiki, Morrison v Gordon 123
and where confirmation is sought of a lease with an option to purchase, the lease is confirmed, but not the option

Rowe v Cleary 219
See also under the various headings under "Confirmation" in this Index
Confirmation of Sales

A sale of part only of the land requires a subdivision to be effected prior to settlement. Confirmation does not mean that the title is in order or that the division of the land is approved

Moehau and Reece 179
and similarly the Court is not concerned with matters of contract law or priority of contracts and where the same land has been sold to two persons the Court may confirm both sales

Rakautatahi and Apatu 151
and see also Maungapohatu Sth, Thompson v Hunter 130
but cf where there are boundary problems and a neighbour's improvements encroach—Court should adjourn to enable a prior repartitioning

Maungatautari, Pakeho v Poihakena 88
Where settlement is provided for "on" confirmation, this may be construed as "within a reasonable time after"

Kuratau Land Co v Te Kuru 131
but in no case should payment be made direct to the alienor

Matakana, Tukaki and Porau 221

An option to purchase should not be confirmed until the option is exercised

Rowe v Cleary 219

Damages may follow a failure to expeditiously seek confirmation

Rowe v Cleary 219

See also the various headings under "Confirmation" in this Index and in particular "Confirmation Generally",
"Confirmation and Adequacy" and "Confirmation and Special Circumstances"

Refer "Maori Affairs Act 1953, ss. 213 and 215: vesting order or transfer?"
R A Wilson [1970] NZLJ 157

Confirmation of Sales to Lessees
Court may decline to summon a meeting of owners to consider a sale to a lessee

Horohoro and Heap 228
or the son of a lessee

Lindhurst Hundred and Beck 82

The Court may decline confirmation of a sale to a lessee, there being no element of open market competition

Tupurupuru and Kawana 144
and should consider the effect of the sale as where the lease is in respect of several blocks, the sale is of one block only, and owners in other blocks could be consequentially and detrimentally affected

Horohoro and Heap 228
or where the lessee is acquiring an undivided interest only and other owners could be affected as upon an attempt to exercise any powers of resumption in terms of the lease

Paokahu, Ruru v Economic Butchery 152

On a sale to a lessee the lessee cannot set off any allowance for compensation for his improvements as the right to compensation does not arise until the expiry of the lease

Mohaka and Barry 130

Horohoro and Heap 228

and see Matakana and Palmer and 165

Maori Trustee v Clark 275
but the consideration may be increased having regard to rent losses

Mohaka and Barry 130

Consolidated Orders (Declaratory)
Must be for benefit of owners

Manuaitu, Turnbull v Nicholson 108

Consolidation Schemes

Effect of change of status during currency of scheme

Whareongaonga and Hook 204

Powers of Chief Judge under s. 452 with regard to interests in land affected thereby

Board of Maori Affairs v Jeune 155

Contracts

"Equitable fraud" and "unfair bargain" applied to Maori people

Riki v Codd 233

Laws of contract—application thereof to be determined in High Court rather than Maori Land Court and accordingly are not generally considered on applications for confirmation

Waiohiki Morrison v Gordon 123

Rakautatahi and Apatu 151
applications for vesting of individual interests

Tikouma, Whareraumati v Ruha 171
or in the rectification of orders by the Chief Judge

Ake H deceased 278

Where parties suffer a loss through completing a contract in reliance upon erroneous information in the Court's title binders, and the error is a result of careless or negligent recording by staff, damages may be awarded against the Crown

Naera v Te Haara and A-G 223

Costs

Award of costs is in discretion of the Court—costs normally follow the event unless substantial grounds shown

Pereniki R Deceased 86

Costs of owner doing work for benefit of other owners may be secured by order under s. 32

Hauauru and Hardiman 118
or to reimburse one owner who has paid rates for the benefit of all

Poutaka and Webber 132

Matters to be considered in assessing the quantum of costs in awarding costs

Whareroa, Maori Trustee v Ministry of Works 111

Whether costs should be awarded against the funds of an incorporation where the litigants are all owners therein

Waihirere, Te Ua v Halbert 78

Crown Land

Whether land referred to in an early deed was Crown Land Reserved for Maoris or Maori Customary Land

Whatamongo and Min of Lands 74

Titi Islands and Pi 155

Freehold tenures—reservations in Crown Grants—refer "Searching Alienated Crown Land" JAB O'Keefe [1966] NZLJ 368, 401, 421, 466, 471, 496, 519, 543

Customary Land

Land between high and low water marks
Ninety Mile Beach 120
Principles applied and evidence required by the Maori Land Court in investigating title to customary land

Wanganui River, In re the bed of 96

Tuwharetoa Trust Board beneficiaries 127

Whether land referred to in an early deed was Crown Land Reserved for Maoris or Maori Customary Land

Whatamongo and Min of Lands 74

Titi Islands and Pi 155

Refer "The Legal and Constitutional Position of Maori Customary Land from 1840 to 1865" PG McHugh March 1981

Damages

Damages against trespasser for injury to land—s30(1)(c)

Matakana, Ngatai v Tarawa 147
against solicitors for failure to seek confirmation within a reasonable time

Rowe v Cleary 219

and against Crown in favour of parties relying upon erroneous information in a title binder to conclude a contract, where the error arose through negligent recording

Naera v Te Haara and A-G 223

Debts

Maori Land protected against debts—protection does not extend to personalty associated with the land
Rutene deceased, Maori Trustee v CIR 76
Development Schemes Under Part XXIV

Acquisition of further lands by the Board of Maori Affairs—whether the land was acquired for the scheme or for the Crown—history and purpose of Maori land development by the Board of Maori Affairs

Stewart v Attorney General 70

Amalgamation to one title—arrangement to create not one but two titles (from ten) for joint development held to be preferable

Aotea South, Ormsby v Board of Maori' Affairs 121

Chief Judge under s. 452 may alienate land subject to Part XXIV without consent of the Board of Maori Affairs pursuant to s. 330(5)

Board of Maori Affairs v Jeune 156

Whether declaration that land subject to Part XXIV valid

Maungatautari, Hopa v Board of Maori Affairs 76

Refer "Maori Land in the Four Northernmost Counties of New Zealand"
R M Frazer (1956) UNZ thesis

"He Tauira Whakaora" (Case Studies of Maori development plans)
ID Bell, RT Mahuta, IM Nottingham (1962) CMS and R, U Waik

"State Impact on Land Development in Mangonui County"
I D Murray (1964) U Auck thesis

"Tokahaere Development Scheme"

M A Smith (1972) Dept Maori Affairs, Wellington

"Maori Land Development with particular reference to land development at Poutu, Northland" W Galvin (1978) Vol 3 No 3 AULR 291

"Committee Report on Mokaikai (Te Paki) Land Use Investigation"
Dept of Lands and Survey (1979)

"Maori Land Development Schemes: Tokerau, Waikato-Maniapoto, Waiariki, Tairawhiti and Aotea" Dept Maori Affairs, Wellington (1979-1980)

Encroachment

Power of Court to grant relief in cases of encroachment—buildings erected on wrong land—evidence required to establish "mistake"—whether negligent omission is tantamount to a mistake

Ngatarawa, Chadwick v Guardian Trust 140

Endorsement of Alienations

Alienations not requiring confirmation to be endorsed—Registrar has no judicial or quasi judicial functions in endorsing—responsibility of Registrars in endorsing

Pihema v Pehekino 273

Evidence

The Court may act upon its own knowledge of lands and persons

Waihirere, Te Ua v Halbert 78

Ohura Sth and Lake Timber Co 95

Orokawa, Upton v Hakaraia 126

Te Hapua and Murupaenga 162
and records from earlier proceedings

Pupuke, Smith v Poata 138

Puketiti, Von Dadelszen v Goldsbury 255
(and should refer to previous evidence in completing successions)

Koti R succession 151
(but should not refer to Departmental files without at least enabling the parties to peruse same and be heard)

Wharekahika, Dewes v Maori Trustee 121

The Court may hear whoever can assist in its inquiries and is not restricted to hearing only the parties

Pokuru and Pokuru Lands Ltd and see 68

"Appeals" and who may be heard 11

"Applications" and who may be heard 11

"Confirmation and who may be heard" 17

The Appellate Court also has some dispensation from the normal formalities and rules

Kingi v Jeune 126
but the Appellate Court cannot consider under s44A(2) documents not existing at the time of the decision

Pupuke, Smith v Poata 138
and the Court cannot rely on s54 to introduce evidence in compensation cases that would not be admissable in a Compensation Court to which non-Maori owners must have recourse

Whareroa, Maori Trustee v Ministry of Works 111

Exchange

Contrasted with sale and acquisition

Hopkins v Kaponga 66

Exchange of land with Crown where land required for public work—the agreement thereon does not require confirmation—application for exchange preferable to separate transfers

Te Tii, MOW v Aperahama 86
Family Protection

The High Court may have regard to special circumstances affecting the Maori people including their cultural attachment to land and Maori informal adoptions

Rogers v Rogers and Tatana 264

Until 1967 the Maori Land Court had exclusive jurisdiction in Maori Family Protection matters. As that juris‑diction has now passed to the High Court the several Maori Appellate Court decisions thereon have not been included in this book—Ed

Fencing

Jurisdiction of Maori Land Court to consider claims where one (only) of the blocks affected is Maori land—whether Court should make an order when fencing notices have not been given

Waipapa and Board of Maori Affairs 154

Magistrates Court judgment against a lessee cannot be used to support a subsequent application to charge the freehold with the amount of the judgment

Morikau and Ohoutahi 144

Maori Land Court may refuse order where applicant an informal occupier who has taken no steps to obtain a legal lease

Opape, Campbell and Pene 118

On Maori Land—co owners—fencing notice—service effected on some owners only— those served held liable for fencing contribution

Attorney-General v Ward 146

Fishing Rights

Conditions imposed by Planning Tribunal in granting a water right for the discharge of effluent to the sea in proximity to Maori fishing grounds

NZ Synthetic Fuels application 246

Customary fishing rights on foreshore—whether Maoris. protected—Fisheries Act 1908 s77(2)

Keepa v Inspector of Fisheries 126

Customary fishing rights considered protected by the Treaty of Waitangi—are not affected by statutes vesting seabed in Crown or control of harbours in local bodies—query whether customary fishing rights have been extinguished

Kirkwood and Waiau Pa Fishing Grounds 195

Discharge of sewage near fishing grounds

Pikarere Farm Ltd v Porirua CC 214

Fishing rights and Maori customary practices considered

Wanganui River, In re the bed of 96

Maori fishing grounds considered protected by Treaty of Waitangi—Crown's obligation to protect Maori fishing grounds from pollution, to make better provision for Maori fishing grounds in planning laws, and to give statutory recognition to Maori fishing grounds with hapu control

Taylor and Waitara Fishing Grounds 270

See also "Treaty of Waitangi"

and "Water Rights" 59 & 62

Refer "Title to bed of Arahura River : fishing rights of Maoris"
EC Adams [1957] 33 NZLJ 380

"Associations—shellfish harvesting"
P Harte NZLJ 359

"Indian Law" (a comparative statement of the position of North American Indians)
G Williams [1983] NZLJ 260

"The Legal Status of Maori Fishing Rights"
PG McHugh (1983) VUWLR

Foreshore

"See Lakes, Rivers and Foreshore" 30

Forestry

Refer "Afforestation on Maori Land in New Zealand"

EW Williams (1978) Paper to Forestry Development Conference, ANU Canberra

"Co-operation in Private Forestry" (with references to afforestation on Maori Land)
MD Malloy, [1979] NZLJ 139

"Management, Objectives and Policies : Maori Land Forestry"

T Parore (1981) Paper to NZ Forestry Conference, Wellington

"Maori Land Afforestation Leases"
B Evert (1981) Essay, Dept of Forestry, ANU
Freehold Orders

Where land bounded by ocean—whether Court has jurisdiction to deal with claims extending to lower water mark

Ninety Mile Beach 120

See also "Status of Land" 52

Historical Interest

Carved House Te Hau Ki Turanga (Dominion Museum)—history of carvings

Raharuhi Rukupo Deceased 186

Coromandel Peninsula—Maori Lands ceded for gold-mining purposes on Coromandel Peninsula

NZ Insurance Co Ltd v Attorney-General 229

Gate Pa—acquisition of Maori Land by missionaries at Tauranga—acquisition of Church land by Crown for Township of Tauranga—allocation of Town Sections for Ngaiterangi Chiefs

Haua v Kata Tamihana (High Court 27.9.60 A 122/59) (This decision, though rich in history, is not sum‑marised in this booklet as it does not illustrate any points of law—Ed)

Ngatiawa Development Scheme

Stewart v Attorney General 70

Orakei—History of land dispositions in Orakei block and at Bastion Point, Auckland

Attorney-General v Hawke 228

Parihaka Pa—history of certain buildings

Tarakihi Reservation and Parihaka Pa 170

South Island—provision for landless natives

Murihiku Lands and Ngaitahu Maori Trust Board 256

Titi Islands—history of—mutton birding rights

Titi Islands and Pi 155

Waimana—Land reserved for Ringatu Church and the followers of Te Kooti

Waimana, Biddle v Delamere 275

Wanganui River—Maori customary practices and traditional use—significance thereof to Wanganui Tribes

Wanganui River, In re the bed of 96

Refer "The treatment of Maori Prisoners taken in the New Zealand Wars"
L H Barber [1979] NZLJ 324

History of Laws Maori Land Laws and Maori Land Generally

Refer "Maori Land in the Four Northernmost Counties of New Zealand"

R M Frazer (1956) UNZ thesis

"The history of the East Coast Maori Trust"
AD Ward (1958) Thesis, MA History

"Te Whenua, Toitu. The Improvement of Maori Land Tites"
(1959-1960) Te Ao Hou vols 28, 29, 30, 31

"Maori Land Law"

14. Smith (1960) Wellington, A H and A W Reed

"The Origins of the Maori Wars"

11. Sinclair (1961) Auckland Univ Press

"Report on Department of Maori Affairs with Statistical Supplement"
J K Hunn (1961) Government Printer

"A Maori view of the Hunn Report"
(1961) Presbyterian Church Bookroom

"When is a Maori a 'Maori' (on definitions of the word `Maori')"
DI Poole (1963) JPS vol 72

"The relationships between Land Tenure and Land-Use in Kawhia"

2. N Lentfer (1963) U Auck thesis

"The Politics of Land"

MPK Sorrenson (1965) in "The Politics of Land..." Auckland, Blackwood and Janet Paul Ltd

"Report of Committee of Inquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the
Maori Land Court"

Pritchard-Waetford Report (1965) Wellington

"Report on Conference to consider Pritchard-Waetford Report May 1966"
(1966) Dept Univ Extension, U Auck and NZ Maori Council

"An Encyclopedia of New Zealand" (Items respecting Maori land)
A H McClintock Ed (1966) Wellington

"Maori Land Tenure and Land Use: A planners point of view"

7. Rosenberg (1966) JPS vol 75

"Fragmentation of Maori Land"

J R Holmes [1967] Vol 1 AULR 1

"Submissions respecting the Maori Affairs Amendment Bill 1967"
Select Committee on Maori and Island Affairs (1967) Wellington

"Maori Affairs Amendment Bill 1967 : Maori Land Changes too hasty"
JAF O'Keefe (1967) RL 82

"Debates, House of Representatives"—on Maori Affairs Amendment Bill
First Session, 35th Parliament, 7-21 November 1967

"The Maori Affairs Amendment Bill : A dissident view"

4. Sinclair (1968) Landfall vol 22 No 1

Maori Affairs Amendment Act 1967 and Maori Purposes Act 1967—for commentaries refer J M McEwen [1968] NZLJ 80

50. A Taylor [1968] NZLJ 422

"Improving Land Tenure"

(1968) South Pacific Commission Handbook No 3 Budge Printing Ltd, Sydney

"The Shadow of the Land"

I Wards (1968) Historical Publications Dept Internal Affairs

"Appeals to the Privy Council from NZ"

2. J Cameron (1969-72) Vol 2 OLR 172

"The Tikanga Pakeke : The Maori Anti-Land Selling Movement in Taranaki 1849-59"

11. Sinclair in "The feel of truth : Essays in NZ and Pacific History" (1969) AH and AW Reed

"Statutory Planning and Changes in Maori Affairs Act"
G Rosenberg [1969] RL 104

"Maori Land"

T Parore (1970) Research Essay, Public Admin., VUW

"The Hunn Report : A measure of progress on aspects of Maori Life"

50. M Kenworthy (1970) NZJPA vol 33

"Consideration of NZ Maori Land Legislation with regard to requirements of International Convention on

elimination of all forms of racial discrimination"
RH Tristam (1970) research paper, VUW

"The Whole World Watches"
J Pope [1971] 17 NZLJ 385

"Maori Land Tenure"

JR Holmes (1971) dissertation LLB Hons degr, U Auck

"Maori Land Legislation: Some comments on its historical origins and contemporary significance" RN Tristam in "The Treaty of Waitangi : Its origins and significance" (1972) VUW

"Government White Paper on Amendments to Maori Affairs Act"
(1973) Government Printer, Wellington

"Milirrpum and the Maoris—the significance of the Maori Land Cases outside NZ" J F Hookey (1973-76) Vol [1973] OtaLawRw 6; 3 Otago LR 63

"The alienation of Maori Land"

8. Phillips (1974) The Listener 11-17 May

"Maori Land—a comparison with European Land Holding in NZ"
KW Harborne [1974] dissertation LLB Hons degr U Auck

"The White Paper; Interview with Matiu Rata"
A Bosch (1974) Te Maori Vol 6 No 1

"Submissions of NZ Maori Council on the Maori Affairs Amendment Bill 1974"
NZ Maori Council (1974) Te Maori Vol 6 No 5

"The White Paper"

16. J Birks (1974) Te Maori Vol 6 No 1

"Maori Affairs White Paper"

J A B O'Keefe (1974) RL 301

"Maori Affairs Amendment Bill 1974"
1974 RL 260

"The Maori Land Court of New Zealand"

5. J Haughey (1974) Anglo-Am LR 230, reprinted in (1976) NZLJ 203

"Debates, House of Representatives"—On Maori Affairs Amendment Bill
2-31 October 1974 Wellington

"Maori Land Law—recent statutory provisions and proposed amendments in light of history of Maori Land
Law"

MA Ewen (1974) dissertation LLB Hons degr U Auck

"A Show of Justice"

A Ward (1974) AUP

"The NZ Maori Affairs Amendment Act 1974"

16. F Rhodes [1975] Saskatoon University

"Report of the Commission of Enquiry into Maori Reserved Land"
Sheehan Commission, [1975] Wellington

"The Law and the Polynesian"
R Ludbrook (1975) NZLJ 420

"The Maori Affairs Amendment Act 1974"

H Phillips (1975) RL 284

"Conquest of British law over Maori land"

CJ Allan (1977) research paper LLB Hons degr VUW

"Maori Land Tenure : Studies of a changing Institution"

I H Kawharu (1977) Oxford, Clarendon Press

"Te Raupatu o Tauranga—a Study of Land Transactions and Race Relations at Tauranga 1864-1886" EM Stokes (1978) CMS and R, U Waik

"The Maori Affairs Bill 1978"

J A B O'Keefe [1978] RL 391

"Maori Land Development with particular reference to land development at Poutu, Northland" W Galvin (1978) Vol 3 No 3 AULR 291

"Discretion in the Maori Land Court"

J M Bouchier (1978) Vol 3 No 3 AULR 291

"Discretion in the Maori Land Court"
J M Bouchier (1978) 3 AULR 381

"Land as Turangawaewae"

I H Kawharu (1979) NZ Planning Council, Planning Paper No 2

"The Treatment of Maori Prisoners taken in the NZ Wars"
L H Barber [1979] NZLJ 324

"The Maori Affairs Bill—its historical background"

5. J Haughey [1979] NZLJ 246

"The Fragmentation of Maori Land"
PG McHugh (1980) LRF Pub 18

"O'Keefe's readings in Maori land ownership"
JAB O'Keefe (1980) U Auck (3rd ed)

"Alienation of Maori Land under Part XXIII and S 438 of the Maori Affairs Act" PG McHugh (1980) VUWLR 153

"Report of the Royal Commission of Inquiry into the Maori Land Courts"
McCarthy Report (1980) Wellington

"Matakana and Rangiwaea"

5. Stokes (1980) CMS and R, U Waik

"A future for Northlands Maori Land"

16. F Meyer (1980) Thesis—Urban and Regional Planning—U Queensland

"A discussion paper on future Maori Development and Legislation"
NZ Maori Council December 1980

"The Legal and Constitutional Position of Maori Customary Land from 1840 to 1865" PG McHugh March 1981

"Land and People"

(1981) Report of Kia Mataara Research team to Taitokerau District Maori Council

"Ngatumanako—Report on Maori Land Use National Conference Wairoa 1981" R Walker ed (1981) Centre for Continuing Education, U Auck

"Rural resettlement on Maori Land : The role of section 438 Trusts"

5. Stokes (1981) Paper to NZ Geography Conference, Wellington

"Maori Land Title"

IH Kawharu (1981) Address to NZ Law Society Conference, Dunedin

"Colonising attitudes towards Maori Custom"
A Frame [1981] NZLJ 105

"New approaches to Maori Land in the 1980's with particular reference to its settlement and resettlement in the Northern Half of the North Island"

Chief Judge Durie (1981) NZ Geographical Society Annual Lecture (No 11) Printed U Auck

"The legal and Constitutional Position of Maori Customary land from 1840 to 1865"
PG McHugh (1981) Wellington

"Proceedings of Tainui Lands Federation Conference 1982"
EK Douglas, I Nottingham ed (1982) CMS and R, U Waik

"Maori Land Laws of New Zealand"

PG McHugh (1982) U Saskatchewan, Native Law Centre II Title III Series

"The Economic Development of Native Land : New Zealand and Canadian Law Compared" PG McHugh (1982-83) 47 SLR

"Maori Land"

R Feist, CB Vol 1 No 1 (Sept 1982 and following issues)

"Kaupapa"

(1983) NZ Maori Council, proposals for a new Maori Affairs Act

"The Pursuit of Mana : a re-evaluation of the process of Land Alienation by Maoris, 1840-1890" A Ballara (1983) JPS 519

"Aboriginal Title in NZ Courts"
PG McHugh (1983) VUWLR

Housing

See "Town Planning" 54

Improvements

In encroachment—person erecting home on land by mistake as to boundary is entitled to compensation—what constitutes "mistake"

Ngatarawa, Chadwick v Guardian Trust 140

In leases— it is reasonable that there be provision to deduct lessees improvements from the capital value on a rent review where the land is substantially undeveloped

Rotoiti and Conn 142
As to compensation to a lessee for his improvements see "Leases" 32

In partition—an applicant for partition seeking to partition an area that includes an old home to which all the owners are entitled, is not entitled to deduct the value of the house even although he does not require it and it is old

Tairua and Wharepapa 236

In sales—an informal occupier who has occupied land for many years and erected a cottage on it, is not entitled to deduct the value of the cottage when buying the land

Tauranga-Taupo, Goebel v Tawhirau 117
but he cannot remove the buildings

see Lynch v Parks 148
but the value of improvements may be allowed if the purchaser has only recently effected them in anticipation of confirmation

Pakikaikutu and Gurney 129

Incorporations

Committee of Management—appointments to and removal from—the Court has wide powers in appointing or removing in order to ensure the best administration of the land by the best people to the best advantage of the owners as a whole

Waihirere, Te Ua v Halbert 78

Mangatu, Te Ua v Hooper 81

and so may remove those who have acted irresponsibly

Waihirere, Te Ua v Halbert 78

and may refuse to appoint those nominated and instead appoint independent persons where factionalism on

the Committee has prevented proper administration Mangatu, Te Ua v Hooper 81

and may refuse to appoint persons if the elections or resolutions nominating them are invalid

Tahora Inc (1961) 85

Anaura Inc 90

Tahora Inc (1962) 103

and may make appointments of persons not nominated without reference back to a General Meeting

Mangatu, Te Ua v Hooper 81

Tahora Inc (1961) 85

but generally the Court should appoint those elected unless sufficient cause for not appointing is clearly shown

Te Hapua and Murupaenga 162

A solicitor acting for one faction of owners may be appointed but the duty of Committee Members is still to represent the best interests of all and not to represent a faction

Te Hapua and Murupaenga 162

Persons appointed to the Committee do not take office until the order has been sealed and that should not generally be until after the appeal period has expired or any appeal has been disposed of

Teneti v Ngata and Brown 78

Costs—whether costs should be awarded against the funds of an Incorporation when the litigants are all owners therein

Waihirere, Te Ua v Halbert 78

Dividends—are personalty and not an interest in land

Hautu and Whatapuhou 95

Exclusion of part of land—same principles to be applied as upon partition

Matauri and Gillbanks 159

Execution of documents and transactions—s. 5 Property Law Act 1952 applies to Incorporations to cure defects arising from want of notice or supporting resolution—whether rule of indoor management applies generally (conflicting views)—whether a mining licence is a sale so as to require a confirming resolution of shareholders

Paraninihi Ki Waitotara Inc v Viking Mining 263

Consent to the Crown to construct a roadway over Incorporation's land should be given under seal

Hauhungaroa Inc v A-G 164

Meetings of shareholders—a notice of Annual Meeting cannot purport to require nominations to be filed at more than the three days prior to the meeting fixed by the Regulations

Taharoa Inc 85 or 103

An election should not be conducted in accordance with a poll if a poll has not been demanded

Tahora Inc (1961) 85

or by a show of hands (election procedure reviewed)

Anaura Inc 90

but a proxy vote is not invalidated by an error in dating it or if it is undated (the law as to proxies reviewed)

Tahora Inc (1962) 103

cf "Meetings of owners" 36

Objects of Incorporation—an Incorporation may buy land only for the purpose of carrying out the principal objects for which it was established—the objects for which it may be established are limited by statute and accordingly there can be no general authority for it to acquire land

Taharoa Inc 85 or 103

and the Court has no power to include a power to acquire land in an order of incorporation

Waipiro Inc 132

and indeed, when an incorporation sells the whole of the land in respect of which it was formed, it sells its substratum and should be wound up

Waipiro Inc 132

but cf a case of the Court empowering an Incorporation to buy land (and hold a tavern licence) and declaring each object independent

Ngatiwhakaue Inc, redefinition of objects 208

and dicta of High Court that by virtue thereof the Incorporation did have the powers set out in the Order—including the power to hold a tavern licence—(but was acting ultra vires in seeking a tavern licence before its objects had been extended)

Ngatiwhakaue Tribal Lands v Rotorua DC 251

Refer "Incorporations"

M Te Hau (1960) Te Ao Hou No 30, March 1960, 16-17, 52
"Maori Land Incorporations"

N Smith (1962) AH and AW Reed

"Report on Conference of Maori Incorporations Gisborne 1974"

(1974) Dept Maori Affairs

"The Maori Land Incorporation with specific reference to the District of Tairawhiti"

GW Thorpe (1976) Thesis, U Auck
"Minority Shareholder's Action"

G. Shapira [1978] NZLJ 156

Informal Occupations

See "Confirmation and informal alienations" 16

Injunctions

Against entry on Maori Land and removal of building—no service thereof on defendant—injunctions limited as to time and purpose—s. 30 (1) (f) and 66 (5)

Lynch v Parks 148

May be brought at the suit of an owner who is not in possession

Matakana, Ngatai v Rolleston 134

To restrain persons appointed to committee of management from assuming powers

Teneti v Ngata and Brown 78
Inquisitorial Role

The Court may in any proceeding for the exercise of a particular jurisdiction exercise any other part of its jurisdiction and thus may, for example, make a trust order on an application for confirmation

Makarika, Reedy v Johnson 146

Tangoio, Taylor v Pohio 149

or on an application to appoint members to a Committee of Management

Taupo Central Inc and Williams 88

or repartition land on an application to cancel an amalgamation

Rangatira, Warbrick v Grace 135

the power so to do indicating a preference of the legislature for a dispensation from procedural technicalities in the judicial administration of Maori Affairs

Alexander v Maori Appellate Court 200

and despite leave being sought to withdraw, the Court may still make orders

Maungatautari, Matehaere v Baillie 185

and the Appellate Court may rectify orders although not sought by the appellant

Ngapuna, Ruka v Mills 163

Torere, Kingi v Rika 274

The Court has some dispensation from the normal rules of evidence and may act upon its own knowledge of lands and persons

Waihirere, Te Ua v Halbert 78

Ohura South and Lake Timber Co 95

Orokawa, Upton v Hakaraia 126

Te Hapua and Murupaenga 162

its records from earlier proceedings

Pupuke, Smith v Poata 138

Puketiti, Von Dadelszen v Goldsbury 255

(and should refer to previous evidence in completing successions)

Koti R succession 151

(but should not refer to Departmental files without at least enabling the parties to peruse same and be heard)

Wharekahika, Dewes v Maori Trustee 121

The Court may hear whoever can assist in its inquiries and is not restricted to hearing only the parties

Pokuru and Pokuru Lands Ltd and see 68

"Appeals" and who may be heard 9

"Applications" and who may be heard 11

"Confirmation and who may be heard" 14

The broad intention is to secure some benefit to the owners, and that may be inferred in particular sections of the act although not expressly stated and thus, in s. 445 with regard to declaratory consolidated orders

Manuaitu, Turnbull v Nicholson 108

and s. 438 relating to trust orders

Hereaka v Prichard 137

The provision for representation by agents is indicative of the inquisitorial role

Mihaka v Police (No. 2) 232

legal representation being not essential in the Maori Land Court

Coates v Gillanders-Scott 237

But the Court cannot be given additional jurisdiction by consent, and should not confirm and alienation that need not be confirmed even although the parties request it to do so

Te Tii, MOW v Aperahama 86

or an alienation by trustees even although the trustees request it

Waitahanui Forestry Trust 176

or use its powers so as to effectually confirm an alienation by trustees

Alexander v Maori Appellate Court 200

Similarly the Maori Appellate Court has special powers to deal with special problems and thus appeals are to the Maori Appellate Court and not the Court of Appeal

Kingi v Jeune 126

Further as to the inquisitorial role and as to the extent of discretion see "Natural Justice and Notice" 37

Insolvency

See "Bankruptcy" 11

Judicial Review

See "Mandamus and Certiorari" 34
Lakes, Rivers and Foreshore

Foreshore between low and high water marks is vested in the Crown and the Maori Land Court has no jurisdiction thereover

Ninety Mile Beach 120

Keepa and Wiki v Inspector of Fisheries 126

Ownership of lakes—how determined—Maori customary tenure—application to Lake Taupo

Tuwharetoa Trust Board beneficiaries 127

Ownership of Lake Rotokawa near Taupo

Tauhara North and Reweti 244
Ownership of riverbeds to be determined in the Supreme Court and not the Maori Land Court

The King v Morison as referred to in Wanganui River In re the bed of 96

but the Maori Land Court cannot lay out a roadway over land including a riverbed without a prior deter‑mination of the ownership of the river bed

Puketiti, Von Dadelszen v Goldsbury 255

There is no custom to sustain a separate and independent title for riverbeds—while riverbeds may be customary Maori Land, the issuing of freehold orders for the riparian lands has the effect of applying the principle of ad medium filium to the ownership of the riverbed—but if the river is navigable it becomes Crown Land by virtue of the Coal Mines Act excepting those lands where the bed has been expressly granted by the Crown

Refer Wanganui River, In re the Bed of 96

Refer "Title to bed of Arahura River : fishing rights of Maoris"

EC Adams [1957] 33 NZLJ 380

"Licence by River Board to remove shingle from riverbed"

EC Adams [1964] NZLJ 11

"Searching alienated Crown Land"

JAB O'Keefe [1966] NZLJ 421

"Maori Claims to Lakes, Riverbeds and the Foreshore"

EJ Haughey (1966-1967) Vol 2 NZULR 29

"The foreshore—have the public any rights over it?"

A P. King [1968] NZLJ 254
"Title to riverbeds in NZ"

KH Goddard (1972) dissertation LLB Hons degr U Auck

"Land adjacent to water : public and private rights and transactions"

RI Gordon (1979) thesis LLM, U Otago

"Wind, sand and water accretion and ownership of the Lake Bed"

F M Brookfield [1981] NZLJ 365

"The Maori Spiritual Relationship with water"

B Williams (1983) PP Vol 25 p 25

See also "Accretion" 8

Land Transfer System

The Maori Land System of orders for the creation and conveyance of titles and inter Transfer system in that orders may be registered in the Land Transfer Office. If al capable of registration it can be amended by the Chief Judge

Maraehako and Smith 159

For opinions that the District Land Registrar is bound to register an order of the Mi
result that a registered proprietor could be adversely affected see

Whareongaonga and Hook 204

Awhitu, Bath and Tuteao 214

conflicting views being given in a case relating to an unregisterd roadway order in

Mahoenui, Wetere v Batley 231

Rectifications by the Chief Judge are not to affect instruments of alienation mad
Judge may still amend orders defeating the title of an alienor where the alienatio

Ake H deceased 278

Thus it is important that orders of the Court should be registered shortly after tt rt should in appropriate cases decline to deal with the land until outstanding orders II.—

Awaroa, Maori Trustee and Takiari 253

Conversely however the Maori Land Court is bound by the Land Transfer title position, so that where a transfer that ought to have been confirmed is not confirmed but is nonetheless registered, the Court must accept the position as it appears on the title

Richmond Township and Crown 117

and if a registered proprietor has obtained title by a defective Court order the Court must accept the title as it stands unless and until the order is declared void and the title rectified

Awarua and Potaka 115

The importance of the Court referring to the Land Transfer title before making orders is stressed in a case where orders were considered to be without jurisdiction because a prior order changing the status of the land to Maori land had not been registered

Awaroa, Maori Trustee v Takiari 253

and the importance of applicants establishing the status of land as Maori land in searching in the Land Transfer records is stressed in

Rowe v Cleary 219

The land transfer system and the dual system of recording Maori lands in Maori Land Court—Court title binder system was never intended but developed from lack of survey and lack of registration of orders—damages awarded against Crown where parties completed a contract in reliance upon erroneous information in Court title binders

Naera v Te Haara and A-G 223

Refer "Difficulties and Complexities as to title to land in New Zealand"

5. C Adams [1957] NZLJ 336, 351, 364
   "Maori Land : Unregistered Maori Land Court Orders"
5. C Adams [1959] NZLJ 171

"Just how indefeasible is your Land Transfer Title?" with reference to the effect of Maori Land Court title

orders

5. P Willis [1963] NZLJ 269

"Leases and the Land Transfer Act" (whether void covenants in a lease validated by registration)

F M Brookfield [1977] NZLJ 43

"Maori Land and the Land Transfer System—a guide for Practitioners"

ANF Harris (1982) Dept Maori Affairs Wellington
Leases

Assessment of unimproved, improved and capital values—in assessing a lessee's improvements for compensation purposes under the Maori Vested Lands Administration Act 1954, general valuation principles apply—unim-proved value should not be assessed by the residuary method of deducting improvements from the capital value

Wright's objection 74

and as to the general principles applicable, especially where land in natural state at commencement of term with millable timber thereon, see

Atihau-Wanganui v Malpas 249

In assessing values for the purposes of rent revision, the existence of the lease itself must be excluded from the valuation

Lalich v Valuer-General 248

Valuer-General and Maori Trustee v WRFU 267

but cf

Te Aute Trust Board Leases 222

In assessing capital value, the Valuer-General should have regard to, but should not be bound by a previous Government valuation

Valuer-General and Maori Trustee v WRFU 267

and in the assessment of unimproved value on an island without comparative sales in the area and where the Maori owners are opposed to sales, the valuation should not be restrained by the lack of comparative sales

Mayor Island Trustees v Tga Big Game Fishing 143

As to the apportionment of certain items to lessors and others to lessees, where clearing and grassing involved and removal of timber, in the context of the Maori Reserved Land Act, the Maori Vested Lands Administration Act or the terms of the lease refer

Wright's objection 74

Te Aute Trust Board Leases 222

Atihau-Wanganui v Malpas 249

Valuer-General and Maori Trustee v WRFU 267

Breaches of covenant—damages may be awarded for breaches of covenant and any impossibility of performing the covenants is no excuse—the Court will not rewrite the contract

Maori Trustee v Bjerring 85

but the whole of the circumstances must be considered in assessing the damages in accordance with a reasonable loss, including the term of the lease to run and any provisions for compensation for improvements

Maori Trustee v Bolton 156

Maori Trustee v Clark 275

Even minor breaches of covenant will justify a refusal to renew

Swift v Owen 238

Commission is payable to the Maori Trustee

Awarua, Clay v Rangi 67

Maori Trustee v Tauranga Bay Game Fishing 246

Compensation for improvements—a lessee is not entitled to compensation until the end of the term of a lease and accordingly he is not entitled to compensation if the lease is earlier surrendered

Matakana and Palmer 165

and no allowance for improvements will be made on the sale of the freehold to a lessee

Mohaka and Barry 130

Horohoro and Heap 228

but although the term may not have expired, compensation for improvements may be brought into consideration in assessing damages for breaches of covenant

Maori Trustee v Bolton 156

Maori Trustee v Clark 275

and on confirmation consideration may be given to protecting a former lessee for improvements effected by him

Araukuku, Hurley v Edmondson 71

Taungaure, Swinton v Barker 91

Any provision in a lease of Maori land for compensation for improvements must comply with the general provisions affecting the same in Part XX of the Act

Ngatitara, Public Trustee v Gatenby 72

Receivers may be appointed to lease the land to recover any compensation owing, as to which see

Rangitoto-Tuhua and Ormsby 72

Wharekahika, Dewes v Maori Trustee 121

but application to appoint a Receiver must be filed within the time prescribed

Maketu and Milner 83

As to assessment of compensation see Assessment of unimproved, improved and capital values above 32

Life tenant—lease by life tenant for duration of her life or until remarriage—whether a lease or assignment of interest and whether Land Settlement Promotion and Maori Land Court consent required

Duncan v Paki 178

Mortgagors and Lessee's Rehabilitation Act 1936—application of same to Maori land leases

Watkins v Maori Trustee 69

Reduction of rental—lease seeking reduction cannot apply for approval from a meeting of owners if he has recently exercised a right of renewal

Wharawhara and Powell 192

Right of renewal—whether the Maori Trustee should execute a renewal for the owners when the owners refuse to renew a lease

Marangairoa and Waikari 116

but a lessee is not entitled to a renewal if there have been breaches of covenant and even if those breaches are minor

Swift v Owen 238

Surrender of lease—a surrender of lease must be effected by deed executed by lessors and lessees and cannot be conditional on confirmation of a new lease to another person

Umutahi and McCallum 104

and a lessee is not entitled to compensation for improvements on the surrender of a lease

Matakana and Palmer 165

Unconfirmed lease—an unconfirmed lease is without validity but not unlawful

Matakana, Ngatai v Tarawa 147

and is "untainted by illegality" so that an informal lessee may sue upon a licence that he has granted to a third party

Sim v McTavish 67

Unfair bargain—High Court may set aside a lease for equitable fraud or unfair bargain

Riki v Codd 233
Refer "Construction of Common Covenants in Long Term Leases"

EC Adams [1964] NZLJ 297
"Right of Renewal"

EM Mackersey [1975] NZLJ 598

"Leases and the Land Transfer Act" (whether void covenants in a lease validated by registration)

FM Brookfield [1977] NZLJ 43

"Farming of Maori Leasehold Land"

Metekingi Committee Report (1978) Dept Maori Affairs Wellington

As to appropriate lease provisions and confirmation of leases generally see "Confirmation of Leases" and 18

"Confirmation of sales to lessees" 19

Legal Representation

Agents may appear in Maori Land Court but not District Court or High Court

Mihaka v Police (No 2) 232

Maori Land Court has no power to appoint Counsel—logeal representation not essential

Coates v Gillanders-Scott 237

Life Tenants and Remaindermen

Lease by life tenant—notice to be given to remaindermen

Hereheretau, Tamatea v Tinworth 110

Lease by life tenant for duration of life or until remarriage—whether a lease or an assignment of her interest—whether Land Settlement Promotion consent required—whether consent of Maori Land Court required

Duncan v Paki 178

To determine number of owners for purposes of s. 215, remaindermen are counted

Potakakuratawhiti and Official Assignee 167

Vesting of an interest to X as life tenant only with remainder to alienor and transfer of interest in remainder used to secure possessory rights to a co-tenant

Waipahihi and Te Whetu 94

Mandamus and Certiorari

Writs may be issued against Maori Land Court and Maori Appellate Court

Kingi v Jeune 126
Crown solicitor appearing amicus curiae to assist Court where no owners represented as respondents

Hereaka v Prichard 137

But Crown should not appear as amicus where there is a respondent represented by Counsel

Toki v Maori Land Court 240

S30 (2) does not prevent High Court from reviewing orders made in excess of jurisdiction

Coates v Gillanders-Scott 237

S64 does not prevent Supreme Court from reviewing orders made in excess of jurisdiction

Hereaka v Prichard 137

Maori Land Board

See "Board of Maori Affairs" 11

Maori Land Laws

See "History of Laws, Maori Land Laws and Maori Land generally" 23
Maori Language

Although s. 73A gives official recognition to the Maori language, it does not confer on a Maori a right to have proceedings in a Court conducted in Maori—nor does the Treaty of Waitangi confer any such rights

Mihaka v Police (No 1) 218

Maori Reservations

An appeal lies against a decision to recommend that land be set apart as a Maori Reservation

Waimana, Biddle v Delamere 275

Disputes arising amongst beneficiaries of reservation, weight to be attached to objections, principles to be applied

Mount Tauhara Maori Reservation 187

Exclusion of part of to enable a major undertaking to proceed thereon—reservations not to be lightly cancelled—principles to be applied

Mount Tauhara Maori Reservation 187

On partitioning, consideration should be given to whether land should be reserved as a Maori Reservation rather than as a public reserve

Rangatira C, Warbrick v Grace 135

and significant sites, such as pa sites, should not be reserved as public reserves vested in the local authority at least without the owners consent. If to be reserved, should be reserved as a Maori reservation

Harataunga, Maika v Potae 265

Public Works—for an opinion that Maori Reservations are not protected from compulsory acquisition refer

Knuckey v Taranaki CC 202

Revenues from—revenues follow the land not the people and should be applied to a local marae project rather than apportioned to the various marae with which various of the owners are associated

Waipahihi Maori Reservation 194

Significance of—relationship to Treaty of Waitangi (and opinion that Maori Reservations should be set apart by Order in Council under the hand of the Governor-General)

Mount Tauhara Maori Reservation 187

Succession in—although set apart for the common use of a group, successions to the underlying beneficial owners should still be maintained

Mount Tauhara Maori Reservation 187

Town Planning—there is no provision to compel the noting of Maori Reservations on District Schemes except that they can be registered as archeological sites and noted under the Historic Places Trust Act

Environment Assn v Thames-Coromandel DC 183

Quilter v Mangonui CC 203

Harataunga, Maika v Potae 265

and accordingly, Maori Reservations (including urupa) can be zoned for public reserves and can be acquired for that purpose

Knuckey v Taranaki CC 202

or reservations of historic, scenic and sacred significance may bear a general land use zoning

Arawa Maori Trust Board v Rotorua CC 207

and accordingly, though land be reserved for a marae, planning consent is still necessary to establish the marae

Houlihan v Whangarei CC 216

See also Mahanga v Whangarei CC 199

but conversely the fact that Maori land may be zoned for proposed reserve does not prevent the Maori Land Court from recommending that it be set apart as a Maori reservation if it has special significance for Maori people

Tamahae Maori Res, Paora v Opotiki CC 210

As to planning consent to establish an airstrip on a Maori Reservation see

Arawa Maori Trust Board v Rotorua CC 207

or a camping ground, it being noted that planning consent is necessary even although consent must also be given by the Maori Land Court

Spearman v Bay of Islands CC 166

Trustees of—the control of Maori Reservations vests in they have other important functions with respect to Maori Reservations that are marae, have no right of administration and control thereover

Huria, Tukaokao v Tarawa 261

but as to consumption of alcohol on a marae, and tribal committee control thereover see

and as to the broad principles to be applied on the commercial use of Maori Reservations (proposed erection

of television translator) see

Mount Tauhara Maori Reservation 187

Use of Maori Reservations—as to town planning consent see above—as to consent of Maori Land Court to leasing, the Maori Land Court can give a general cosent to leasing parts on approved terms and conditions

Spearman v Bay of Islands CC 166

but of Court cannot give a general consent to leasing but can only consent to a particular proposed lease

Tarakihi Reservation and Parihaka Pa 170

When set apart—where the land is solely owned it should not be reserved without the consent or at least knowledge of the owner

Karikari and Hetaraka 139

and if the land is general land, the owners must consent

Puketapu and Horotui urupa 225

Maori land should not be reserved for the benefit of "the people of New Zealand" except in special circumstances

Waipahihi Maori Reservation 194

Tamahae Maori Res, Paora v Optiki CC 210

Maori Trustee

Refer "The Role of the Maori Trustee: Report of the Committee appointed to review the operations of the Maori Trustee"

Dept Maori Affairs (1979) Wellington

Meetings of Owners

Court may decline to summon a meeting of owners to consider lessee's request for a reduction in rental after

the lessee has exercised a right of renewal

Wharawhara and Powell 192

or to consider sale to a lessee's son where several owners deceased, few addresses and covenants of lease not performed

Lindhurst Hundred and Beck 82

Directions for meetings are not to be given as matter of course

Horohoro and Heap 228

and in any event should not be directed before a special Government Valuation is available

Ohura South and Lake Timber Co 95

A meeting may be directed where land is vested in a trustee however, and should be directed where a person dissatisfied with the trustee's decision wishes to refer the matter to the owners

Kaiapoi Reserve and Karaitiana 261

In hearing an application for a meeting of the owners of one block, Court should consider whether other blocks are affected

Horohoro and Heap 228

the procedure to be adopted in such a case being considered in

Horohoro and Heap 228

and the form of resolution appropriate where a development programme is required in

Papatupu and Pirikau 153

Meetings of owners applications should be given priority over concurrent applications

Kaiapoi Reserve and Karaitiana 261

At meetings, owners are entitled to fullest information owing to an unequal bargaining power—responsibilities of recording officers to ensure fullest information disclosed

Whareongaonga and Skuse 166

Pehitawa and Johns 174

Horohoro and Heap 228

with true identity of purchaser to be stated

Pehitawa and Johns 174

It is not necessary that a proposed resolution be moved or seconded

Waipa and Delta Timber Co 119

but competing resolutions are to be separately put

Matahina, Kauri Timber v Ngapuna Timber 83

and non-owners may not participate in the owner's discussion

Waipa and Delta Timber Co 119

As to the requirements for a valid party refer

Whareongaonga and Skuse 166

Alton, Ashwell v Port Craig Timber 177

and whether an intending alienee should be a proxy holder

Whareongaonga and Skuse 166

but an owner who has given a proxy but attends may vote

Matahina, Kauri Timber v Ngapuna Timber 83

and an ill owner in a car outside the meeting place may vote

Matahina, Kauri Timber v Ngapuna Timber 83

As to the quorum required for sale of timber refer

Alton, Ashwell v Port Craig Timber 177

See also "Confirmation and Meetings of owners" 16

See also "Incorporations" with regard to shareholders meetings 28
Mining and Metals

Appliction of Mining Act 1971 to Maori land considered—alternatives of individual consent, meeting of owners consent, mining without consent, and appointment of trustees for owners

Pakirarahi and JBL Exploration Ltd 191

Compensation for metal taken from Maori land for use in public works where land itself has not been acquired—basis on which compensation is to be assessed

MOW v Hura 219

and where land is taken for a quarry, metal is to be included in assessing the total value—metal valued on a royalty basis

Waima and District Commissioner of Works 82

Coromandel Peninsula and gold mining rights on Maori land—includes right to issue residential and business licences other than for gold mining

New Zealand Insurance Co Ltd v Attorney General 229

Mining privileges—road licence—objection on Maori cultural and historical grounds—grounds must be ade‑quately stated

Westland Greenstone v Mawhera Inc 235

Whether a mining licence granted by an incorporation is a sale so as to require a confirming resolution of shareholders

Paraninihi Ki Waitotara Inc v Viking Mining 263

Refer "Mining Tenures Registration Act 1962"
EK Phillips [1963] NZLJ 546

Monies

Being proceeds of sale held for deceased Maori—those entitled to be determined as though it were land where deceased died prior to sale

Herewini Deceased, MT v Hipango 133

Natural Justice and Notice

The Maori Land Court has a wide discretion that enables it to respond adequately to a wide variety of situations and to the conflicting interests of (usually) a larger number of owners. Generally there are no defined parties other than an applicant but his application may affect the interests of numerous and often scattered co-owners some only of whom may take part in the proceedings and who, when brought together, may seek something other than that which the applicant proposes. It is generally considered in the cases below that the wide discretion conferred upon Court carries with it a corresponding onus to uphold the principles of natural justice, to ensure adequate notice and to provide an opportunity to be heard to all owners likely to be affected, to the extent that is practicable. Thus, s. 27 (2) which enables the Court to make orders of its own motion, does not enable the Court to dispense with notice, but simply to decide the terms of such notice

Coates v Gillanders-Scott 237

When the Court proposes to repartition titles of its own motion and existing occupancies could be affected, those likely to be affected should have prior notice

Rangatira C, Warbrick v Grace 135 and notice must be given to those affected when the Court proposes to remove a member of an incorporation's committee of management

Anaura Inc, Paerata v Lockwood 131

Similarly the Court may make trust orders of its own motion including the making of a trust order when declining confirmation of a resolution to sell

Tangoio, Taylor v Pohio 149
but notice of its intention must be given to owners

Taupo Central Inc and Williams 88

Waiwhariki and Noel 125

Makarika, Reedy v Johnson 146

Whatuwiwi, Windelborne v Ngatikahu 161

and notice must be given, even although the land may be vested in trustees notwithstanding the objections of its owners

Albert v Nicholson 184

In effecting notice, public media advertising and displays of notices on public places is not in itself sufficient, and a full check must be made of the Court's records for addresses

Waiwhariki and Noel 125

Although it cannot be expected that notice be given to the putative successors of a deceased owner

Whatuwiwi, Windelborne v Ngatikahu 161

Formal notice is not a prerequisite however where the Court's intentions have been made clear to owners and the owners have been given an adequate opportunity to respond

Taupo Central Inc and Williams 88

Notice must also be given of applications to owners likely to be affected, and all persons affected are entitled to be heard

Te Hapua Inc and Murupaenga 162

and accordingly although partition may relate principally to an applicant's shares, all owners must have notice (and notice in the panui is not sufficient notice of an application for partition)

Reureu, Karatea v Durie 205

and although transfers of shares may relate principally to an alienor and alienee, all owners are entitled to object

Tikouma, Whareraumati v Ruha 171

Similarly the Court should not recommend that land be set apart as a Maori reservation without notice to a sole owner of the land

Karikari and Heteraka 139

As to the extent of notice to be given to dissentients on confirmation see

Whakapaupakihi, Hodgson v Bayley 110

and note that the Maori Appellate Court may refer to Court records other than the record of the appeal to establish whether the owners had sufficient notice

Puketiti, von Dadelszen v Goldsbury 255

The Court should not consider valuation data received after the hearing without enabling the parties to be heard thereon

Mangorewa-Kaharoa and McRae 262

and nor should it refer to matters on Departmental files at least without enabling the parties to peruse the material and be heard on it

Wharekahika, Dewes v Maori Trustee 121

Where an application is amended an adjournment should not be refused to a party who has had insufficient time to consider the amendment, and it is inappropriate to consider that that party has other remedies by way of rehearing appeal or review

Raglan Golf Club v Cull 225

Reasons for decisions must be stated

-Rangiwaea, Kereopa v Peehi 193

and a decision may be set aside if it is written prior to a final hearing

Te Hapua Inc and Murupaenga 162

As to the inquisitorial function of the Court see "Inquisitorial Role" and as to notice in the panui see "Panui"

29 & 40

Ombudsman

Ombudsman declining to investigate complaint when redress may be possible by application to the Maori Land Court

Complaint to Ombudsman re Accretion 8

Orders PAGE

Amendment and rectification of orders—s. 60 is to be used only to rectify slips or errors to give effect to the decision intended and cannot be used to amend the decision itself; thus it cannot be used to amend partition orders to cure anomolies arising on survey for so long as the original intention of the Court was ascertainable

Kakepuku, Tukawe v Fraser 84

Tauhara North and Reweti 244

or an order of confirmation so as to determine an issue not considered at the hearing

Tihiotonga and Hunt 94

or if the further data needed to effect the amendment would require a rehearing

Hauauru and Hardiman 118

or a sealed certificate of confirmation to enable an amendment to a material term in a timber grant

Waimanu Sawmilling v Prichard 122

although a sealed certificate of confirmation can be amended to rectify obvious errors or omissions

Waiteti and Matthews 115

But there is, in addition to s. 60 an inherent jurisdiction in a Court to amend orders at any time before the order is drawn up (and thus an unsealed partition order)

Tauhara North and Reweti 244

(but for a decision suggesting that this applies only to confirmation cases see)

Waimana and Maori Trustee 150

(and note)

Carnarvon 93

Ngarara West, Graham and Williams 119

and an inherent jurisdiction to set aside an order made per incuriam

Maungatautari, Matehaere v Baillie 185

The authority to cancel orders of confirmation under s. 325 relates only to proposals not followed through and is not an authority to cancel an order of confirmation through an alleged mistake in a material term of the agreement

Pouakani and Andrews 116

and as to the rectification of orders by the Chief Judge see "Chief Judge's Special Powers" Minutes and evidence do not form part of the record however and cannot be amended under s. 60

Opawa-Rangitoto and Fletcher Timber Co 92

and orders are distinct from decisions—a decision, once given, and unless it relates to confirmation of instru‑ments, cannot be varied even although the order has not been sealed

Waimana and Maori Trustee 150

and appeals lie against orders and not decisions (except in confirmation cases)

Motatau, Ruka v Auckland Farmers 79

Drawing and recording of orders—damages awarded against Crown for the incorrect drawing and recording of orders in title binders causing parties to complete a contract later frustrated

Naera v Te Haara and A-G 223

Final Orders—as to what constitutes a final order see

Marangairoa and Waikari 116

and a determination that a person is not entitled to be heard is not a final order but an interlocutory decision

Mangawhero, Beattie v Hayes 154

and an adjournment is not a final order

Rakautatahi and Apatu 151

A determination that a person is entitled to succeed is not a final order (and the Court must go on to determine all the persons entitled to succeed and then to effect vesting orders)

Ngarimu H deceased 100

Orders must be pronounced in open Court

Motatau, Ruka v Auckland Farmers 79
Orders may be made subject to conditions—meaning and application of s. 34 (8A)

Aorangi, Te Kuiti v Serpentine Quarries 158

Torere, Kingi v Rika 274

but orders cannot be made conditional upon consent if consent is a pre-requisite to the exercise of jurisdiction

Waimamaku and Ngakuru 160

I' orere, Kingi v Rika 274

and if survey is required, survey should be made a condition precedent

Mahoenui, Wetere v Batley 231

Orders of the Court's own motion must accord the principles of natural justice

Anaura Inc, Paerata v Lockwood 90

and see "Natural Justice and Notice" 37

Orders should not generally be made for immediate release or issue during the appeal period, and the provision that orders are not to issue immediately (without leave) is equivalent to a stay of execution

Teneti v Ngata and Brown 78

Registration of orders—as to the priority of Maori Land Court orders see

Whareongaonga and Hook 204

whether the DLR has a discretion to register orders see

Awhitu, Bath and Tuteao 214

the drawing of orders so that they are capable of registration, see

Maraehako and Smith 159

the making of survey a condition precedent to ensure registration, see

Mahoenui, Wetere v Batley 231

and see also "Land Transfer System" 31

Trust not apparent on face of order—Court need not adjourn confirmation proceedings for s. 452 application to be brought

Toki v Maori Land Court 240

When Appellate Court may look behind face of order

Mangaawakino and Jimmieson 197

Refer "Maori Land—unregistered Maori Land Court Orders"
E C Adams, [1959] NZLJ 171

Panui

Notice in panui is not sufficient notice of an application for partition

Reureu, Karatea v Durie 205

Panui notice in respect of proposed resolutions to lease—effect thereof

Rotoiti and Conn 142

Whether constructive notice

Whakapaupakihi, Hodgson v Bayley 110

Partition

Partition is a discretionary remedy and the Appellate Court will not interfere with the exercise of that discretion

except upon established grounds

Aorangi, Durie v Maori Trustee 104

Rangatira C, Warbrick v Grace 135

Motukawa, Chase v Horton 241

Manawatu-Kukutauaki, Jarvis v Stewart 242

Tarawera, Cottrel v Roberts 252

There is no automatic right to partition and the demand of a co-owner to the exclusive use of a part of the land must be weighed with the effect thereof on the residue owners

Manawatu-Kukutauaki, Jarvis v Stewart 242

Tarawera, Cottrel v Roberts 252

but the fine balancing must be seen in the context of the particular circumstances of each case, so that, partition was confirmed on appeal to an owner seeking to add to her adjoining farm despite opposition on the ground that the residue would not sustain a proposed farming undertaking by the residue owners in

Motukawa, Chase v Horton 241

but refused on appeal in similar circumstances in

Manawatu-Kukutauaki, Jarvis v Stewart 242

Partition was affirmed on appeal against the wishes of a majority seeking the collective development of the land as a whole in

Tarawera, Cottrel v Roberts 252

but declined on appeal when there was no evidence that a majority of owners agreed, in

Mokoia Island and Karawana 68

Partition may be granted to enable dissentients to a proposal to cut out their shares, but partition orders were refused to dissentients where partition was impracticable in

Awarua, Iwikau v Shepherd 89

and was refused to an owner seeking to farm a part of the land rather than have the whole block leased to a non-owner in

Aorangi, Durie v Maori Trustee 104

(and as to the adjournment of proceedings to enable partition applications to be brought see)

Wharekawa, Te Waero v Wootton 157

In considering the interests of the owners as a whole it is generally desirable that partition should accord an overall plan whether it be for holiday housing

Matauri and Gillbanks 159

marae housing

Whangawehi and Hall 217

horticultural units

Mangorewa-Kaharoa and McCrae 262

or pastoral farming

Rangiwaea, Kereopa v Peehi 193

and if need be, should be considered only in conjunction with a general title improvement programme

Rangiwaea, Kereopa v Peehi 193

but it is not always necessary that partition be held over pending promulgation of an overall plan

Tarawera, Cottrel v Roberts 252

It is a matter of public interest to consider whether the partition would create uneconomic units

Awarua, Iwikau and Shepherd 89

Aorangi, Durie v Maori Trustee 104

but the modern trend is to consider that units uneconomic in themselves, are not necessarily inexpedient to the public interest

Tarawera, Cottrel v Roberts 252

The Courts overview should not be restricted to the matters of public interest, interest of the owners, or of others, as specifically referred to in the Act, and the Courts discretion should be exercised having regard to the totality of the circumstances

Motukawa, Chase v Horton 241

Manawatu-Kukutauaki, Jarvis v Stewart 242

Tarawera, Cottrel v Roberts 252

For observations on the circumstances by which applicants came onto the title see

Motukawa, Chase v Horton 241

Manawatu-Kukutauaki, Jarvis v Stewart 242

the weight to be given to the location of traditional family habitations

Manawatu-Kukutauaki, Jarvis v Stewart 242

the desirability of retaining ancestral links by enabling Maori owners to live upon the land

Manawatu-Kukutauaki, Jarvis v Stewart 242

the weight to be given to objections, or the lack of them

Mokoia Island and Karawana 68

Matauri and Gillbanks 159

Tairua and Wharepapa 236

Motukawa, Chase v Horton 241

Tarawera, Cottrel v Roberts 252

past policy decisions of the owners as a whole

Wharekawa, Te Waero v Wootton 157

Tarawera, Cottrel v Roberts 252

the particular circumstances of the parties (including their ability to farm)

Aorangi, Durie v Maori Trustee 104

Motukawa, Chase v Horton 241

Tarawera, Cottrel v Roberts 252

and the arrangement of partition, so as to secure access, when in the circumstances that should not have been brought into account

Manawatu-Kukutauaki, Jarvis v Stewart 242

Partition should not be considered however without notice to the owners as a whole

Reureu, Karatea v Durie 205

Partition is distinct from subdivision in that it involves a severance of the community of ownership and is more than a division of the land

Rehuotane and Whangarei CC 140

and for conflicting views as to whether this means that a person partitioning may not retain shares in the residue see

Tarawera, Cottrel v Roberts 252

There are major problems inherent in a Court effecting a substantial subdivision by partition orders

Hereaka v Prichard 137

and similarly the assessment of partitions as though they were subdivisions creates inequities in the application of the Local Government Act 1974 especially with regard to reserve requirements

Harataunga, Maika v Potae 265

Partitions should be completed by Maori Land Plan and subdivisions should be completed by scheme plans and not Maori Land Plans

Moehau and Reece 179

On partitioning, consideration should be given to whether land should be reserved as Maori Reservations rather than as public reserves

Rangatira C, Warbrick v Grace 135

Harataunga, Maika v Potae 265

Pa sites should not be vested as public reserves without the consent of owners and the burden of esplanade reserves should not fall on residue owners

Harataunga, Maika v Potae 265

The approval of the local authority is a condition precedent to the making of a partition order (and cannot be made a condition subsequent pursuant to s. 34 (8A))

Torere, Kingi v Rika 274

but proceedings should start in the Maori Land Court and return to the Maori Land Court after proceeding to the local authority (and owners should be advised of the local authority hearing and should have an oppor‑tunity to object to the imposition of any conditions)

Harataunga, Maika v Potae 265

The purported sale of a part of the land does not make the purchaser a co-owner entitled to partition. The purchaser should ensure the completion of a subdivision prior to sale

Moehau and Reece 179

In the partitioning of coastal lands, the boundary cannot extend beyond the high water mark

Ninety Mile Beach 120

but it can extend to the centre line of a river

Wanganui River 96

Applicants for partition ought to have legal representation, and it is not proper for a Registrar to bring partition applications on behalf of owners

Mangorewa-Kaharoa and McRae 262

The method of calculating an applicant's entitlement—"section value method" or "before and after method" considered, along with allowances for subdivisional and title costs and improvements, in

Tairua and Wharepapa 236

and the apportionment of mortgages (and the right of a mortgagee to be heard) in

Ngatitara, Maori Trustee v Anderson 71

Partition orders should not be amended under s. 60 to have the areas accord with survey plans

Kakepuku, Tukawe v Fraser 84

(As to the amendment of partition orders on survey see "Orders") 39

Combined Partition—combined partition under s. 182 compared with cancellation of partitions under s. 184—whether consents are required to a combined partition

Pehitawa and Te Hau 80

Maungatautari, Pakeho v Poihakena 88

and it is not necessary for a combined partition to be preceded by an amalgamation order

Rangatira C, Warbrick v Grace 135

A similar effect to an amalgamation can be achieved by a combined partition and although the Court does not have jurisdiction over general land in an amalgamation, it does in respect of a combined partition

Ngapuna, Ruka v Mills 163

Cancellation of partitions—the effect of the provision for cancellation of partitions is that partition orders are continually subject to review although the appeal period has expired

Maungatautari, Pakeho v Poihakena 88

and a partition order made in contemplation of a lease of a part of the land may be cancelled if the lease is not proceeded with

Marangairoa and Waikari 116

but where a partition order has been made and a person affected has not appealed he may not later seek the cancellation of the partition where circumstances have not changed

Rangatira B and Hereaka 136

8

185

13

173

264

248

196

54

271

105

127

232

218

265

Refer "Subdivision and Partition of Maori Land" Judge R M Russell (1982) Tapeka Marae Conference, Dept Maori Affairs

Prescriptive Titles

See "Adverse Possession"

Probate and Administration

Limited jurisdiction retained by Court after 1967

Marshall deceased

Public Works

See "Compulsory Acquisition and Agents"
Race and Law

"Funeral expenses" do not include the costs of traditional tangi in s.122 of the Accident Compensation Act so that tangi costs cannot be recovered before the Accident Compensation Commission

Ngamotu deceased, Wall v ACC

but the special position of "whangai" or children adopted in accordance only with Maori custom may be recog‑

nised in family protection claims

Rogers v Rogers and Tatana

Maori spiritual concepts in relation to water are outside the purview of the Water and Soil Conservation Act

in water rights claims

Minhinnick v Auckland Water Board

but mental and spiritual concepts of the Maori may be relevant in establishing colour of right in a criminal

charge of theft

Police v Minhinnick

and the relationship of Maori people with their ancestral land is to be considered in town planning

see "Town Planning"

and Maori cultural preferences are also relevant in Maritime Planning

Auckland DMC v Manukau Harbour

It is not an offence to drink liquor on a marae unless there is a dance, meeting, tangi, hui or similar function in progress, and an offender may be charged before either the Maori Tribal Committee or a District Court

Stubbing v Ashford

but it is an offence to refuse to serve liquor to a Maori in terms of the Sale of Liquor Act 1962

Police v Bonner

Maoris may not be represented by Maori agents in the District Courts or High Court

Mihaka v Police (No. 2)

and have no right to have proceedings conducted in Maori

Mihaka v Police (No. 1)

The equation of Maori Land partitions with subdivision in assessing reserves and other requirements under the Local Government Act creates inequities for Maori people

Harataunga, Maika v Potae

Refer "The Background to Race Relations in NZ"
J Harre (1963) Race, Vol 5 No 1

"Race Relations in NZ; A review of the Literature"
National Council of Churches (1963) Christchurch

"The Race Problem or Social Structure"
J Harre (1964) Landfall Vol 18

"Anti-discrimination legislation and private rights"
W A McKean (1965-68) Vol [1968] OtaLawRw 5; 1 Otago LR 308

"Administration in NZ's Multi Racial Society"

R H Brooks and I H Kawharu ed (1967) NZ Inst of Pub
Admin—Studies in Pub Admin No 13

"The Shadow of the Land—British Policy and Racial Contact in NZ 1832-1852"

I M Ward (1968) Historical Publications Branch,
Dept Internal Affairs

"Consideration of NZ Maori land legislation with regard to International Convention on elimination of racial
discrimination"

RH Tristam [1970] research paper VUW

"A Race Relations Act for New Zealand?"
Lawson (1970) RL 240

"International Convenants on Human Rights—implications on racial discrimination in New Zealand CL Ryan (1970) research paper LLM, VUW

"Report on the National Indian Brotherhood Presidents Tour of NZ and Australia" Chief Leo Manuel (1971) Ottawa

"The Whole World Watches"

J Pope [1971] 17 NZLJ 385

"Explanation for Polynesian Crime Rates in Auckland"
Duncan [1971] RL 283

"The Treaty and the Race Relations Act 1971"

KJ Keith in the Treaty of Waitangi: Its origins and significance (19720 VUW

"Essays on race relations and the law in NZ"
KJ Keith (1972) NZIIA

"Racial Issues in NZ : Problems and Insights"

G Vaughan, ed (1972) Auckland, Akarana Press

"International implication of race relations in NZ"
KJ Keith (1972) NZIIA

"Race Relations Act 1971"
1972 RL 115

"Justice and Race—a monocultural system in a multicultural society"
Nelson Race Relations Action Group [1973] NZLJ 175

"Social Implications for Polynesians of the Enforcement of Majority Standards"

16. Hohepa (1973) NZLJ 347

"Race Relations and the Law in New Zealand"

11. J Keith (1973) Human Rights Journal;
    International and Comparative Law vol 6 No 2

"A Show of Justice"

A D Ward (1973) AUP

"Native Rights in New Zealand"

16. F Rhodes (1974) Saskatoon

"Young Maoris' Crime Rates"

R Wallingford [1974] NZLJ 309

"The Law and the Polynesian"

R H Ludbrook [1975] NZLJ 420

"Race relations legislation in NZ"

AM Bracegirdle (1975) dissertation LLB Hons degr U Auck

"Protest and possession at Bastion Point—intrusion on Crown Land"
FM Brookfield [1978] NZLJ 383

"Implementing UN Racial conventions, some procedural aspects"
MR Burrows (1979) research paper LLB Hons degr VUW

"Takaparawha Bastion Point-506 days on Ancestral Maori Land"
(1979) Orakei Maori Committee Action Group

"Racial harmony in NZ—a statement of issues"
(1980) 6 CLB 1072

"Racial Harmony in NZ"

NZ Human Rights Commission (1980)

"From Village to Runanga to NZ Maori Wardens Association: A Historical Development of Maori Wardens" A Fleras (1980) He Whakairiwhare No 1 Maori Studies Section VUW

"Discord in Godzone—A study of NZ race relations Legislation"
TP Arnold (1981) dissertation LLB Hons degr U Auck

"Maori and Pakeha"

MPK Sorrenson (1981) in "The Oxford History of NZ" Clarendon Press—Oxford Univ Press

"Colonising attitudes towards Maori Custom"
A Fram [1981] NZLJ 105

"He Tauira Whakaora" (Case Studies of Maori development plans)
ID Bell, RT Mahuta, IM Nottingham (1982) CMS and R, U Waik

"Race against Time"

H Tauroa (1982) Human Rights Commission
"The Maori in todays law"

Chief Judge Sullivan with commentary by Chief Judge Durie (1983) Council Brief No 98 Wellington District Law Society

"Law and Custom" Report on an address by the Minister of Justice to the Wellington JP's Assoc. on the Community Mediation Service Bill

(1983) Lawtalk—Newsletter of the NZ Law Society 182

Rates

An owner paying rates on multiply owned land may be reimbursed by an order under s. 32 in respect of monies held for the land even although the rates have become statute barred

Poutaka and Webber 132

"Extent of discretion in considering rate charging orders under the Rating Act 1925

Takapuwahia and Porirua BC 134

Magistrates' Court has jurisdiction to consider claims for rates on Maori Land

Hawkes Bay CC v Puna 77

Outstanding rates and consequential trust orders—when dealing collectives with numerous blocks court must still ascertain position with regard to each block

Waiwhariki and Noel 125

Rate charging orders on Maori land—provisions of Part VIII of the Rating Act 1967 to be strictly adhered to—future use of land to be considered

181

190

72

83

121

83

121

273

131 170 206 205

262

253

223

179

110

131

170

205

206

131

90

Araparera and Rodney CC

Rate postponements—cannot be secured by rate charging orders
Oakura and Bennett

Refer "A flexible approach to the rating of Maori land"
Rosenberg [1971] RL 194

Receivers

As to the appointment of Receivers to recover monies owning for compensation to a lessee for his improvements see

Rangitoto-Tuhua and Ormsby

Maketu and Milner

Wharekahika, Dewes v Maori Trustee

The application to appoint a Receiver must be filed within the time prescribed

Maketu and Milner

and as to the discharge of a Receiver through an alleged inability to perform his statutory duties see

Wharekahika, Dewes v Maori Trustee

Registrars

As to the responsibilities of Registrars in endorsing instruments of alienation and their responsibilities as officers of the Court see

Pihema v Pehikino

As to importance of Registrars promptly despatching decision so as not to prejudice rights of rehearing or appeal

see

Kuratau Land Co v Te Kuru

Maruata, Reweti v Honetana

Pehitawa and Brandon Farms

Reureu, Karatea v Durie

Registrars may bring applications but for an opinion that Registrars should not file partition applications on

behalf of individuals see

Mangorewa-Kaharoa and McRae

Registrars are to maintain records of orders. For the importance of Registrars not recording lands as having

changed status until a status declaration has been registered refer

Awaroa, Maori Trustee v Takiari

Registrars have a duty in law to ensure that orders are properly recorded and noted—damages awarded against Crown where parties completed a contract in reliance upon erroneous information entered negligently in a Court title binder

Naera v Te Haara and A-G

and as to a Registrar drawing and sealing an order of the Court contary to the decision of the Court see

Moehau and Reece

Rehearings

A dissentient to a resolution of assembled owner is a "person interested" and able to apply for rehearing

Whakapaupakihi, Hodgson v Bayley

Decisions to be despatched promptly to enable applicants to apply for rehearing

Kuratau Land Co v Te Kuru
Maruata, Reweti v Honetana
Reureu, Karatea v Durie
Pehitawa and Brandon Farms

Time to apply for rehearing runs from the date on which the certificate of confirmation is sealed and not from the pronouncement of the order granting comfirmation

Kuratau Land Co v Te Kuru
but for a contrary decision see

Ngamoe and Rangi

Remaindermen

See "Life Tenants" 34

Representative Actions PAGE

Owner may sue on behalf of all owners

Matakana, Ngatai v Tarawa 147

Rule 73 enables the Court to appoint one person to represent a number of persons with identical interests (obiter)

Coates v Gillanders-Scott 237

Reservations

See "Maori Reservations" 34
Reserves

Maori land may be designated as "Proposed Public Reserve" even although the consent of the Minister of Maori Affairs is required to the compulsory acquisition of that land and that consent has not been given—relevance of Maori customary attitudes and title to planning considerations

Lewis v MOW 195

Whether reserves shoul be created as Public Reserves or Maori Reservations

Rangatira C, Warbrick v Grace 135

Harataunga, Maika v Potae 265

Review

See "Mandamus and Certiorari" 34

Rivers

See "Lakes, Rivers and Foreshore" 30
Roads

In closing public roads pursuant to section 425 and vesting the same in the owners of adjoining Maori land, the Court is not restricted by section 191F of the Counties Amendment Act 1972 which provides for closed roads along a river to vest as public reserve

Taringamotu and Taumarunui CC 179

Maori land taken for road and no longer required for that purpose may be returned to Maori owners

Cook CC v Attorney-General 192

Public roads as compared with Maori Roadways

Hauhungaroa Inc v Attorney-General 164
Public roads—land used as a road is not public road simply because it is shown as a road on survey maps

Koheroa, Dizdale Farms v Wootten 124

Rangitaiki, Whakatane DC and Lysaght 212

the common law doctrine of implied dedication being not applicable

Koheroa, Dizdale Farms v Wootten 124

Roadways

Applications for roadway orders—the consent of the local authority is a pre-requisite to the making of roadway orders and a roadway order cannot be cured by a consent subsequently given

Waimamaku and Ngakuru 160

and similarly the status of the land must be determined before a roadway order can be made, including the status of a river-bed crossed by a roadway

Puketiti, Von Dadelszen v Goldsbury 255

For the appropriate form of a roadway order with the matters that ought to be provided for, and for provisions relating to fencing, survey, improvements and rights of user see

Mahoenui, Wetere v Batley 231

Puketiti, Von Dadelszen v Goldsbury 255

and whether improvements such as garages can be erected thereon

Mahoenui, Wetere v Batley 231

In the assessment of compensation the ability of the servient tenement to land lock other land is not to be brought into account. Compensation is to be assessed by reference to "paddock value" and the "rental capi‑talisation" approach has limited application

Puketiti, Von Dadelszen v Goldsbury 255

The Court may determine the location of the roadway with rights of user and leave compensation to be fixed for anytime after the roadway order has been made

Ranana, Silvester v Morikaunui Inc 218

Once made, roadway orders should be registered and as to whether a roadway order may become unenforceable through non-registration refer

Mahoenui, Wetere v Batley 231

Access to public works should not be effected by roadway orders

Hauhungaroa Inc v A-G 164

Applications to amend roadway orders—whether a roadway should be widened for benefit of owners of lands not originally served by the roadway—owners in Maori village seeking to maintain an underwidth road to maintain the traditional village character

Maketu and Tauranga CC 93

and as to whether the Court can deal with roadway orders after the status of the lands has changed to general land see

Rangatira and Taylor 102

Mahoenui, Wetere and Batley 231

Applications to cancel roadway orders—the Court is not bound to cancel a roadway because alternative access has subsequently been provided, and if it is cancelled the Court is not bound to vest it in adjoining section owners

Rangatira and Taylor 102

As to what constitutes a roadway, land shown on survey maps as road and used as such is not necessarily Maori roadway (or public road)

Koheroa, Dizdale Farms Ltd v Wootten 124

Rangitaiki, Whakatane DC and Lysaght 212

the common law doctrine of implied dedication being inapplicable

Koheroa, Dizdale Farms Ltd v Wootten 124

Whether a right of way constitutes a roadway

Mahoenui, Wetere v Batley 231

Maori roadways and public roads compared

Hauhungaroa Inc v A-G 164

Recommendations for Maori roadways or land used as road to be declared public roads—Maori roadways and public roads compared—Crown should not expend public monies on Maori roadways—access to public works should not be effected by roadway orders

Hauhungaroa Inc v A-G 164

and for an example of the Appellate Court upholding a decision to recommend that a roadway or land used as a road be not declared public road even although it had been formed as a road and had been shown as a road on Crown plans, see

Koheroa, Dizdale Farms v Wootten 124

As to the matters to be brought into account in assessing compensation where a road was laid across Maori land without any formal taking or application, including damages for trespass, and the assessment of betterment see

Taupo CC v Gillanders-Scott 234

Sales

See "Confirmation of Sales" and

"Confirmation of sales to lessees" 18 & 19

Sections of Maori Affairs Acts

Section 2 (1) "Alienation"—See "Confirmation"

See also "Words & Phrases—alienation 18

Section 2 (2) (e) and (0— applies only to transfers of whole block and not to individual interest—not retrospective

Rangiwaea and Scott 149

Section 5-10 See "Board of Maori Affairs" 11

Section 27 (1)—See "Applications" 11

PAGE

Section 27 (2)—court acting of own motion—application

Ngatihine and Alexander 200

Section 27 (2)—does not enable Court to dispense with notice

Coates v Gillanders-Scott 237

Section 27 (2)—See also "Natural justice and notice 37

Section 27 (3)—leave to appeal may be implied

Murihiku Lands and Ngaitahu MTB 256

Section 30 (1) (b)—cannot be used to vest lands

Awarua and Potaka 115

Section 30 (1) (c)—claim to recover damages for injury to land

Matakana, Ngatai v Tarawa 147
Section 30 (1) (e)—removal of trustees—application

Ngatihine and Alexander 200

Waiotahi and Stewart 269

Section 30 (1) (h)—See "Status of Land"

See also "Status of Persons" 52

Section 30 (1) (i)—See "status of land" 52

Section 30 (2)— does not prevent judicial review

Coates v Gillanders-Scott 237

Section 32—orders for payment of money held in trust for deceased Maori—those entitled to be determined as though proceeds were land where deceased died prior to sale

Herewini Deceased, Maori Trustee v Hipango 133

See also "Costs" 19

Section 33—See "Receivers" 46

Section 34—See "Orders" 39

Section 36—See "Land Transfer System" 31

Section 42 et seq—See "Appeals" 9

Section 50—See "Case Stated" 11

Section 54—See "Inquisitorial Role" 29

Section 57—See "Costs" 19

Section 57A—See "Special Aid Fund" 52

Section 58—See "Agents" 9

Section 59—Amendment of proceedings

Taupo Central Inc and Williams 88

Section 60—See "Orders" 39

Section 63—Co-owners bound by order affecting land—effect thereof

Paokohu, Ruru and Economic Butchery 152

Section 64—See "Mandamus and Certiorari" 34

Section 67—See "Cases stated" 11

Section 77A—gives official recognition to the Maori Language but confers no rights to have proceedings in a Court conducted in Maori

Mihaka v Police (No 1) 218

Section 116-131—See "Succession" 53

Section 131 (3)—Value thereunder is assessed at date of death

Taniora K deceased 164

Sections 132-See "Debts" 20

Sections 133-148—See "Succession" 53

Sections 161—See "Customary Land" 20

Sections 173-186—See "Partition" 40

Sections 187-192—See "Exchange" 21

Section 213—See "Transfer of Individual Interests" 58

Section 215—See "Transfer of Individual Interests" 58

Sections 224-233—See "Confirmation" 14

Section 233—Registrars functions thereunder—purpose of section

Pihema v Pehekino 273

Section 224 (1)—instruments of no force or effect—See "Confirmation and Informal Alienations" 16

Section 224 (2)—considered

Motatau, Ruka v Auckland Farmers 109

Section 225—confirmation out of time—application

Matakana, Tukaki and Porau 221

Section 227—See "Confirmation and Special Circumstances" 17

Section 227 (3)—significance thereof to meeting of owners provisions

Tikitiki, Tibble v Tibble 276

Section 230—See "Confirmation and Improvements" 16

Section 231 (5)—See "Commission" 12

Section 232—An option to purchase is not an agreement for sale and purchase within the provisions of s. 232

Murray v Scott 178

Sections 234-251—See "Leases" 32

Section 236 (9)—application thereof

Matakana and Palmer 165

Section 239—Maori Trustee acting as agent for owners in action against lessee for breach of covenants in a lease

Maori Trustee v Bjerring 85

Section 251—appointment of receiver to enforce a charge—application for appointment of receiver filed out of time

Maketu and Milner 83

Sections 252-268—Acquisition of Maori Land by Crown by way of exchange

Te Tii, MOW v Aperahama 86

Sections 304-325—See "Meetings of Owners" and "Confirmation and Meetings of Owners" 36 & 16

Section 305A—application thereof

Alton, Ashwell v Port Craig Timber 177

Section 309 (6D)—application thereof

Alton, Ashwell v Port Craig Timber 177

Section 318—meaning and application

Aorangi, Te Kuiti v Serpentine Quarries 158
Section 319—considered

Motatau, Ruka v Auckland Farmers 109

Tikitiki, Tibble v Tibble 276

Section 326-385—See "Development Schemes under Part XXIV" 20

Section 330 (5)—Board's consent not required to alienation by order of the Chief Judge under Section 452

Board of Maori Affairs v Jeune 156

Sections 414-427--See "Roads" and 47

"Roadways" 47

Section 415 (3) (c)—consents required to roadway orders

Waimamaku and Ngakuru 160

Section 416 (2)—application

Ranana, Silvester v Morikaunui Inc 218

Section 418—necessity to determine status of land before making roadway orders

Puketiti, Von Dadelszen v Goldsbury 255

Section 422—land used as road

Rangitaiki, Whakatane DC and Lysaght 212

Tuaropaki and Taupo CC 234

Section 425-See "Roads" 47

Section 432—considered—local authority consent on partition is a condition precedent to the exercise of juris‑diction to partition

Torere, King v Rika 274

Sections 433 and 433A—See "Status of Land" 52

Section 434A—See "Amalgamation and Aggregation" 9

Section 435—See "Amalgamation and Aggregation" 9

Section 436—Land Settlement Board is an "authority" that is able to bring an application thereunder—where

Council has divested itself of the control of the land by closing a road it cannot stipulate that the land be required for some other purpose

Cook CC v Attorney-General 192

Whether Minister of Lands may impose a condition that land be revested subject to a lease

Raglan Golf Club v Cull 225

Section 437—Application thereof

Whatamongo and Min of Lands 74

Section 438—See "Trust Orders under section 438" 60

Section 439—See "Maori Reservations" 34

Section 441—See "Fencing" 22

Section 443—removal of trustees

Waiotahi and Stewart 269

Section 445—See "Consolidated orders (declaratory)" 19

Section 452—See "Chief Judges Special Powers" 12

Section 453—Enquiry as to beneficiaries of Tuwharetoa Trust Board

Tuwharetoa Trust Board beneficiaries 127

Section 453A—See "Encroachment" 21

Section 455A—procedural only—application to official assignee

Potakakuratawhiti and Official Assignee 167

Section 8 Maori Purposes Act 1963—provision applies only where person entitled dies after sale of the land

Herewini deceased, MT v Hipango 133

Sections 24-73 Maori Affairs Amendment Act 1967—See "Incorporations" 28

Section 48 (1) Maori Affairs Amendment Act 1967—whether it extends an incorporation's objects

Ngatiwhakaue v Rotorua DC 251

Section 68 Maori Affairs Amendment Act 1974—See "Status of land" 52

237

255

Special Aid Fund

Court cannot appoint Counsel to represent owners under the Special Aid Fund provisions—no provision for payment from that fund to Counsel appointed by the Court

Coates v Gillanders-Scott

Court should use Special Aid Fund to provide independant representation where there is a conflict of interests between different sets of owners

Puketiti, Von Dadelszen v Goldsbury

Status of Land

The purposes for which Court may need to determine status—Maori Land Court having to determine whether land was Maori land following a Crown Grant in order to determine its jurisdiction to effect succession orders

Manukau and Ockender 145

and High Court determining whether land is Maori land for the purposes of civil and criminal proceedings

A-G v Hawke 228

but there are limitations on the Maori Land Court's jurisdiction to determine status—cannot determine status so as to determine the priority of conflicting Crown Grants, or whether land is customary land

Awhitu, Bath and Tuteao 214

(but for an example of the Maori Land Court determining whether land was Crown land reserved for Maoris or Maori Customary land see)

Whatamongo and Min of Lands 74

and the Maori Land Court's jurisdiction is not to be read as conflicting with the Land Transfer Act. The High Court, not the Maori Land Court, should determine whether a river-bed is Maori land.

Wanganui River (King v Morrison) 96

Although, the status of riverbeds must be determined each time the Maori Land Court proposes a roadway order across a river

Puketiti, von Dadelszen v Goldsbury 255

The necessity for practioners to establish whether land is Maori land in searching the Land Transfer register—damages awarded when status of land as Maori land not noticed and confirmation of a sale not sought in time

Rowe v Cleary 219

The circumstances in which the status of land may change—when a Maori is "Europeanised" his solely owned lands become European (now General) land, but that applies only to lands solely owned at the time of Euro‑peanisation, and not to lands subsequently inherited

Himatangi and Kerehoma 105

When land becomes solely owned by a European the land becomes General land, and this includes a private company so that when the Maori owners formed a company and transferred their shares to that company the land ceased to be Maori land

Whangawehi and Ormond 82

but the land does not cease to be Maori land when it is vested in a European administrator for a deceased Maori's estate, or when it is vested in a European life tenant with a Maori in remainder

Awarua and Potaka 115

and neither the land as a whole nor an individual interest therein

Rangiwaea and Scott 149

The status changes upon the registration of a transfer to a European and then whether or not the transfer has been confirmed; and subsequent vesting orders of the Maori Land Court cannot have the effect of changing the status back to Maori land

Richmond Township and Crown 117

The status of land may be changed to General land by status declaration, but a status declaration has no effect until it is registered and Registrars should ensure that lands are not shown as having changed status until registration has been effected

Awaroa, Maori Trustee and Takiari 253

Conversely, but only in limited circumstances land may be changed back to Maori land by status declaration. Such an order may be made, despite intervening changes of ownership, where an owner was deceased when the status declaration was registered

Awaroa, Maori Trustee and Takiari 253

Crown Grants and Maori land reviewed

Manukau and Ockender 145

Awhitu, Bath and Tuteao 214

but land granted from the Crown to Maoris for other than a pecuniary consideration is Maori land

Richmond Township and Crown 117

Waimana, Biddle v Delamere 276

and as to whether in terms of an early deed, land was Crown land reserved for Maoris or Maori customary land, see

Whatamongo and Min of Lands 74

Status of Persons

Whether person a European for purposes of s. 213

Mangaawakino and Jimmieson 197

"Europeanisation" of a Maori—remains a Maori in respect of lands acquired after Europeanisation

Himatangi and Kerehoma 105

Succession

In effecting successions the Court must determine the whole of those entitled to succeed and not merely one or some only of those entitled—a determination that a child of disputed paternity is a child and therefore entitled to succeed is not a final determination for the purposes of section 135 and the court must go on to determine the total successors

Ngarimu H deceased 100

and the Court must check for previous evidence of successions, to the same deceased

Koti R Succession 151

Adopted children are to be regarded as children of the body and entitled to succeed in successions in accordance with Maori custom

Reupena K Deceased 77

In determining whether a person is a child of a deceased, the Court does not recognise any alleged Maori custom that recognition of a child by a putative father or grandfather is determinative of paternity, or, that paternity may be established by a grandfather acknowledging a child as his grandchild and by the acceptance of that acknowledgement by the people of the tribe generally—the ordinary rules of evidence apply to Maori people people in disputed paternity cases where succession to land is involved

Ngarimu M Deceased , 100

In successions to a person dying intestate and without issue the principle of "reversion to source" applies even although the deceased was an original owner

Wiremu A Deceased 142

Successions in accordance with wills—Maori testator using English words—will to be interpreted as though testator European, notwithstanding Maori custom—thus "children" in will does not include "grandchildren"

Hinerangi deceased, Public Trustee v Turu 73

determination of shares of beneficiary where testator used the words "to be equally divided between"—whether division per stirpes or per capita

Mataitaua Deceased 143

and where land is devised to a life tenant without remaindermen being named, the remaindermen are not the residuary devisees but there is a partial intestacy

Bartlett Deceased 81

Where interests in Maori Land acquired by purchase—succession on intestacy is to be determined as though the interest were an interest in European land—s. 117 (2) (c)—and not in accordance with Maori Custom (s116)

Hopkins v Kaponga 66

and where successors have been excluded under $20 rule they may be brought in again under s. 452

Gilbert succession 251

Succession fees and estate duty—for the purpose of assessing succession fees under s. 131, the value of the deceased's land interests are to be assessed as at the date of death

Taniora Deceased 164

Personalty passing with the land is subject to estate duty and not succession duty

Awarua v CIR 66

Rutene deceased, Maori Trustee v CIR 76

and dividend cheques from an Incorporation are personalty and not interests in land

Hautu and Whatapuhou 95

Torrens System

See "Land Transfer system" and 31

"Orders" 39

Town Planning

"Ancestral land"—town planning is to have regard to the relationship of Maori people with their ancestral land in District Schemes and in zoning for major development proposals, as in a substantial tourist complex

Burkhardt v Mangonui CC 213

and if the zoning affects Maori sensibilities the proper course is to object to the zoning when the scheme is notified rather than to object later to some use of the land within the zone if the objection would require a zoning change

Auckland DMC v Manukau CC 254

The ancestral land relationship is to be weighed in the particular case with several other planning objectives of equal importance

Mahanga v Whangarei CC 199

Knuckey v Taranaki CC 202

McCready v Marlborough CC 207

Mirrielees v Cook CC 209

NZ Synthetic Fuels application 246

Accordingly it may be inappropriate that important ancestral land associated with burials be zoned as esplanade reserve

Knuckey v Taranaki CC 202

but compare a case where a proposed reserve zoning was considered appropriate for important Maori land on the basis that the zoning was consistent with a Maori objective to maintain the natural character of the land but the further objective, to retain the Maori ownership of the land, was inconsistent with the planning objective to provide public access, matters of title being outside the field of planning

Lewis v MOW 195

The "ancestral land relationship" and other planning objectives apply also in the administration and imple‑mentation of District Schemes; consent to the establishment of marae in rural zones, and although there was no substantial Maori papakainga or village in the immediate area, or none was proposed, was approved in

Mahanga v Whangarei CC and 199

Houlihan v Whangarei CC 216

and a specified departure to enable an individual to build in proximity to a marae (there being no housing development plan in the area) was approved in

Morris v Hawkes Bay CC 191

but consent to erect a dwelling on rural Maori family land with some history but not in proximity to a marae or Maori community was refused in

McCready v Marlborough CC and 207

Emery v Waipa CC 211
and consent was refused to erect a dwelling on rural Maori land next to a marae when the Council had zoned other land for housing associated with that marae in

Mirrieless v Cook CC 209

The "ancestral land" provision does not call for planning consent to be refused simply because a proposed development might offend a customary Maori activity in the vicinity and accordingly a sawmill was allowed in proximity to a Maori community and marae in

Brighouse v Dannevirke CC 245

and a roadworks depot in

Williams v MOW 268

and the provision is generally to be construed as intending to confer a benefit on a Maori community or group activity rather than an individual benefit

McCready v Marlborough CC 207

Emery v Waipa CC 211

NZ Synthetic Fuels application 246

but cf

Morris v Hawkes Bay CC 191

But what is "ancestral land"? It includes land owned by a tribe and associated with the burial of ancestors

Knuckey v Taranaki CC 202

but land that has ceased to be Maori land can no longer be ancestral land

Quilter v Mangonui CC 203

unless, being land that is still Maori owned, it ceased to be Maori land only by status declaration

Emery v Waipa CC 211

but if it has ceased to be Maori owned, it is not ancestral land

NZ Synthetic Fuels application 246

Auckland DMC v Manukau CC 254

(and therefore the seabed, being owned by the Crown, is not ancestral land)

Auckland DMC v Manukau Harbour MPA 271

In the result, while it is inappropriate that important ancestral land associated with burials should be zoned as esplanade reserves

Knuckey v Taranaki CC 202

or that Maori land containing bones or relics should be disturbed by proposed works

NZ Synthetic Fuels application 246

land associated with Maori burials may still be developed if the land is no longer Maori owned (except that the consent of the Historic Places Trust is required if the sites have been registered as archeological sites)

Quilter v Mangonui CC 203

Auckland DMC v Manukau CC 254

Burial grounds may be protected from proposed works if they are registered archaeological sites, but the pro‑tection is under the Historic Places Trust Act and matters relating thereto are independant of the Town and Country Planning Act

Quilter v Mangonui CC 203

and accordingly significant Maori sites are not to be recorded on District Schemes other than by the procedure provided in the Historic Places Act

Environment Assn v Thames-Coromandel DC 183

but of the view that a proposed works site would be unsuitable if it is known to contain bones or relics (as distinct from the possibility that the same may be found)

NZ Synthetic Fuels Application 246

In considering projects affecting a harbour however, such as a wharf terminal, consideration is to be given to "the public interest" and under that heading, cultural values attaching to Maori fisheries and the principles of the Treaty of Waitangi are all relevant considerations

Auckland DMC v Manukau Harbour MPA 271

Maori land may be zoned for reserves even although Ministerial consent would be required before the land could be compulsorily acquired and that consent has not been given

Lewis v MOW 195

(and for an opinion that Maori reservations can be zoned for reserves and can be compulsorily acquired see)

Knuckey v Taranaki CC 202

The Minister of Works may not refuse a recommendation to take Maori land for a public work by a local authority on the ground that the compulsory acquisition of Maori land is contrary to government policy

Dannevirke BC v Governor-General 238

and neither the local authority nor the Planning Tribunal can stipulate for a lease alternative to the compulsory acquisition of the freehold in designating Maori land for a public work

Maori Land Trust v MOW 217

As to the principles to be applied in the grant of water rights for geothermal power where this may affect thermal scenic attractions see

Keam v Water and Soil Conservation Auth 216

NZ Maori Arts and Crafts Inst v NW and SC Auth 230

Marae and Maori housing—specified departure may be given to enable an individual to erect a house on rural land near a marae

Morris v Hawkes Bay CC 191

but not if it is not near a marae

McCready v Marlborough CC 207

Emery v Waipa CC 211

or if other land has been zoned for housing around that marae

Mirrielees v Cook CC 209

and consent to a marae is not consent to a marae papakainga

Mahanga v Whangarei CC 199

and a marae may be established in a rural area to service urban dwellers so that a marae papakainga does not necessarily follow

Houlihan v Whangarei CC 216

It does not follow from the zoning of land for marae papakainga or Maori housing that the land can be acquired for that purpose (the problems associated with zoning Maori land in multiple ownership for residential purposes are reviewed) and it may be necessary to zone additional land for that reason

MOW v Wairoa CC 210

and the necessity for papakainga zoning to be followed by amalgamation, repartitioning or subdivision in accord‑ance with an overall plan, and not by individual partition proposals is considered in

Whangawehi and Hall 217

On partition, significant sites should not be vested as reserves in local authorities without consent of the Maori owners

Rangatira C, Warbrick v Grace 135

Harataunga, Maika v Potae 265

Maori Reservations—there is no provision to compel the noting of Maori Reservations and "Maori sites" on District Schemes except that they can be registered as archaeological sites under the Historic Places Trust Act, which provides an independent procedure for the noting of such sites

Environment Assn v Thames-Coromandel DC 183

Quilter v Mangonui CC 203

Harataunga, Maika v Potae 265

and accordingly, Maori reservations (including urupa) can be zoned for public reserves and can be acquired for that purpose

Knuckey v Taranaki CC 202

Maori reservations gazetted for the purpose of a Marae may be zoned rural and planning consent is necessary to establish the marae

Houlihan v Whangarei CC 216

substantial reservations of historic, scenic and sacred significance (Tarawera mountain) may bear a general land use zoning

Arawa Maori Trust Board v Rotorua CC 207

and planning consent for the use of a reservation for a camping ground if necessary, even although consent must also be given by the Maori Land Court

Spearman v Bay of Islands CC 166

but conversely the fact that Maori land may be zoned for proposed reserve does not prevent the Maori Land Court from recommending that it be set apart as a Maori Reservation if it has special significance for Maori people

Tamahae Maori Res, Paora v Opotiki CC 210

As to planning consent to establish an airstrip on a Maori Reservation see

Arawa Maori Trust Board v Rotorua CC 207

a camping ground on a Maori Reservation

Spearman v Bay of Islands CC 166

a marae on a Maori Reservation

Houlihan v Whangarei CC 216

and consent of Maori Land Court to erect a television transmitter on a Maori Reservation

Mount Tauhara Maori Reservation 187

or to lease

Tarakihi Reservation and Parihaka Pa 170

Matters of title are not strictly relevant to planning considerations and accordingly Maori land could be zoned for public reserve although ministerial consent is required to take the land for reserves

Lewis v MOW and see also 195

Knuckey v Taranaki CC 202

and in designating Maori land for a proposed work there can be no stipulation that the work be secured by a lease arrangement only

Maori Land Trust v MOW 217

but the status of the title as Maori land, General land or General Land owned by Maoris may determine whether the land is "ancestral land"

See "what is 'ancestral land'?" (above)

Refer Submissions of the NZ Maori Council to the Select Committee considering the Town & Country Planning

Bill 1977, and earlier submissions "on the Town & Country Planning Act (and other statutes)" of 16.5.73 54

"Planning for Maori Needs in Rural Areas"

(1975) Town & Country Planning Bulletin, No 16, Ministry of Works and Development

"In the Footsteps of People"

16. Crawford Taupo C C December 1976

"Maori Land—A paradox and problem in planning"

16. Crawford Taupo C C December 1976

"Planning for Rural Maori Communities"

BL Kaye (1976) Research Paper, Dept Town Planning, Auck Univ

"Local Perceptions of the Impact of the Huntly Power Project 1971-1973"
EM Stokes (1978) CMS and R, U Waik

"Kuha and Waimako—planning marae housing"

J Bishop (1978) Thesis for bachelor of architecture, Auck Univ
"Power Stations on Maori land"

E Stokes (1980) People and Planning No 15

"A Maori Cultural dimension in Planning"

7. Te WE Asher (1980) Research Essay, Town Planning Department U Auck

"Planning for a Multi-cultural Society"

(1980) People and Planning No 15, Ministry of Works and Development

"Rural Depopulation and Resettlement"

5. Stokes (1980) LUAC Seminar on Rural Depopulation, University of Canterbury

"Some problems of Rural Resettlement"

5. Stokes (1980) Address to NZ Demographic Society Conference Wellington

"Maori Land Issues"

16. Crawford (1981) Planning Dept, Taupo County Council

"Taharoa: Survey of a Changing Community"

7. Higgs (1981) U Waik

"Huakina : Report to New Zealand Steel 1981"

RT Mahuta and K Egan (1981) CMS and R, U Waik

"Acquisition of Maori Land for Public Works"

KA Palmer (1982) Tapeka Marae Conference, Dept Maori Affairs

"Maori Planning Kit"

(1982) Auckland Regional Maori Planning Committee

"Marae, Papakainga and Kainga—Town and Country Planning"

16. Crawford (1982) Tapeka Marae Conference, Dept Maori Affairs

"Planning for Maori Land and Traditional Maori Uses"

G Asher (1982) Tapeka Marae Conference, Dept Maori Affairs

"Subdivision and Partition of Maori Land"

Judge RM Russell (1982) Tapeka Marae Conference, Dept Maori Affairs

"Planning for Maori Needs"

R Anderson (1983) Planning Div, Ministry of Works and Development Auckland

"The Maori Spiritual relationship with Water"
B Williams (1983) PP Vol 25 p 25

"Maori Land and Planning Law—a report on a seminar at Tapeka Marae"
Dept Maori Affairs (1983)

Transfer of Individual Interests by Vestings Orders

When Maori Land is owned by more than 10 persons, transfers of individual interests must be effected by vesting orders and not by instruments of transfer

Paokahu, Ruru v Economic Butchery 152

and to determine the number of owners, remaindermen are counted as owners

Potakakuratawhiti v Official Assignee 167

In the transfer of individual interests by vesting orders the Court must have regard to the fact that Maori titles are generally representative of kin groups and thus there are restrictions on who may acquire interests in Maori lands

Tikouma, Whareraumati v Ruha 171

Horowhenua and Poole 239

Tahoraiti, Ratima Estate v Waitai 243

and even "whangai" who are not legally adopted are not entitled to receive interests as members of a kin group

West Coast Settlement Reserves and Eriwhata 102

In the result, the admission of transferees to the kin group of owners is something that affects all the owners, and they are entitled to be heard on and to oppose vesting order applications

Tikouma, Whareraumati v Ruha 171

and especially if the transferee is also the lessee

Paokahu, Ruru v Economic Butchery 152

for the Court must consider the effect of the transfer on the owners as a whole

Manuaitu, Turnbull v Nicholson 108

and may refuse to vest in an owner who earlier partitioned out, especially when other owners object

Whangaroa, Maitai and Hinaki 103

Accordingly the Court has a wide discretion and is not constrained by the strict laws of contract. Agreements may be modified, alienors may withdraw, and the important question is not whether there was consensus when the agreement was signed, but whether consensus exists following the hearing

Tikouma, Whareraumati v Ruha 171

but the Court cannot substitute a purchaser

Tikouma, Whareraumati v Tutonu 169

In the sale of undivided interests the Court is not bound to a Government Valuation of an interest as being less than the interest's equivalent proportion of the valuation of the land as a whole but must consider the circumstances in the particular case and in some cases the interest may be worth more than the fractional equivalent

Manukawhitikitiki 246

and see CIR v Flaxbourne Trust 278

As to the use of vesting orders to secure possessory rights to a co-tenant, by a vesting to an alienee for life only with remainder to the alienor and a transfer of the interest in remainder, see

Waipahihi and Te Whetu 94

Refer "The Maori Affairs Act 1953, sections 213 and 215: vesting order or transfer?"
R A Wilson [1970] NZLJ 157

Treaty of Waitangi and Waitangi Tribunal

Claimants to the Waitangi Tribunal must establish that they are "prejudicially affected"—claimants who took an excess of seafood in breach of fisheries regulations held not "prejudicially affected" as convicted and discharged

Hawke and Fisheries Regulations 197

Maori customary fishing rights were intended to be protected by the Treaty of Waitangi—such rights not affected by the Territorial Seas and Exclusive Zone Act 1977 which vests the sea-bed in the Crown but quaere whether customary fishing rights have been extinguished

Kirkwood and Waiau Pa Fishing Grounds 195

Maori fishing grounds protected under Treaty of Waitangi Act—interpretation of Treaty—meaning of "preju‑dicially affected"—application of Treaty of Waitangi Act to a case involving the pollution of fishing reefs

Taylor and Waitara Fishing Grounds 270

Land ownership and the Treaty in the general Courts—on whether the foreshore is Maori customary land—relevance of the Treaty thereto—Crown freed of its obligations under the Treaty

Ninety Mile Beach 120

and on the ownership of riverbeds—status and interpretation of the Treaty—whether it gave merely a right to fish without recognising in the Maori people any property in land covered by waters

Wanganui River 96

Fishing rights and the Treaty in the general Courts—the Treaty is not enforceable in the Domestic Courts to give exemption to Maori people from the Fisheries Regulations as it has not been made part of the domestic law and neither the NZ Day Act 1973 or the Treaty of Waitangi Act 1975 gives it full force or effect in the domestic law

Hita v Chisholm 187

Town Planning and the Treaty—the principles of the Treaty are relevant in considering Maritime Planning and where there is a proposed Maritime Plan—interpretation and application of the Treaty by the Planning Tribunal

Auckland DMC v Manukau Harbour MPA 271

The Treaty and Court proceedings—the Treaty confers no rights to have Court proceedings conducted in Maori

Mihaka v Police (No 1) 218

The Treaty and the Maori Affairs Act—the provision for Maori Reservations bears a relationship to the Treaty of Waitangi and Maori Reservations should be effected by Order in Council of the Governor General

Mount Tauhara Maori Reservation 187

Any obligation to indigenous people undertaken by the Queen in Treaties are now vested in the Governments of those countries where the treaties were made

R v Secretary of State 250

Refer "The Non-Treaty of Waitangi"

A P Molloy [1971] NZLJ 193

"Walter Kawiti and Treaty of Waitangi"

FM Auburn (1971) 2 Te Maori 3

"Facsimilies of the Treaty of Waitangi"

NZ Government Printer

"Te Tiriti o Waitangi—texts and translations"

RM Ross (1972) Vol 6 No 2 NZ Journal of History 129
"The Laws that contravene the Treaty of Waitangi"

H Ngata (1972) Te Maori December-January

"The Treaty of Waitangi : Its Origins and Significance" (1972) Vict Univ of Wellington, Dept of Univ Education,

with essays

M Boyd "Cardinal principles of British Policy in New Zealand"

R Ross "The Treaty on the ground"

WA McKean "The Treaty of Waitangi Revisited"

HK Ngata "The Treaty of Waitangi and Land : Parts of the Current Law in Contravention of the Treaty"

RN Tristam "Maori Land Legislation : Some comments on its historical origins and contemporary significance"

KJ Keith "The Treaty and the Race Relations Act 1971"

"Treaty of Waitangi revisited"

WA McKean (1973) Essays in honour of WP Morrell, OUP
"Treaty of Waitangi Bill"

[1975] RL 101

"The Incorporation of the Treaty of Waitangi into Municipal Law"

B Carter (1980) Vol 1 No 4 AULR1
"Politics, Law and Indigenous Peoples"

JC Clad (1981) Cultural Survival Inc Cambridge, Massachusetts
"The Treaty of Waitangi—a judicial myth revisited"

PG McHugh (1981) Wellington
"The Treaty of Waitangi Today"

J D Sutton (1981) VUWLR 17

"The Legal and Constitutional Position of Maori Customary Land from 1840 to 1865"

PG McHugh, March 1981

"Aboriginal Title in NZ Courts"

PG McHugh (1983) VUWLR

"Recent Developments in NZ Water Law" (refers also to role of Waitangi Tribunal)

DAR Williams and MC Holm (1983) NZLJ 245
"The Legal Status of Maori Fishing Rights"

PG McHugh (1983) VUWLR

Trespass

An owner who is not in actual occupation is still entitled to an injunction against an actual or threatened trespass

by a non-owner

Matakana, Ngatai v Rolleston 134

Entry upon Maori Land by a non-owner other than by a confirmed lease is not per se tantamount to trespass—exemplary damages should not be awarded without trespass but damages for injury may be allowed where occupant not a trespasser

Matakana, Ngatai v Tarawa 147

Entry upon Crown land by Maoris—not trespass when ordered to leave by a lessee whose lease is invalid

Police v Poata 225

Trespass by Crown through an informal "taking" for road may be brought into account in assessing compensation

Tuaropaki and Taupo CC 234

Whether Crown in trespass in forming a road provided for under a roadway order but not taken by proclamation

Hauhungaroa Inc v Attorney-General 164

See also "Confirmation and Informal Alienations" 16

Trust Boards

Te Arawa Maori Trust Board—whether administering a charitable trust—whether a Maori authority—liability of Board's farming income to taxation

Arawa Maori Trust Board v CIR 95

Tuwharetoa Maori Trust Board—enquiry by Court as to persons entitled as beneficiaries

Tuwharetoa Maori Trust Board beneficiaries 127

Refer "Te Arawa Maori Trust Board 1924-1974"
November 1974 Rotorua

Report of the Maori Trust Boards Conference 1983
Dept Maori Affairs Wellington

Trust Orders Under Section 438

The history and current purpose of s. 438 is reviewed in

Tahoraiti, Ratima Estate v Waitai 243

Tarawera, Cottrell v Roberts 252

Murihiku Lands and Ngaitahu MTB 256

The section is to be read independently of other provisions of the Act, and the Court may vest lands in trustees notwithstanding the objections of its owners

Albert v Nicholson 184

but the trust must be for the benefit of Maoris, and the benefit must be direct Ind not incidental

Hereaka v Prichard 137

Although s. 438 is an independent provision, it has particular purposes related to land management and should not be used to dispose of individual interests (or to circumvent restrictions in s. 213)

Horowhenua and Poole 239

Tahoraiti, Ratima Estate v Waitai 243

to effectuate wills

Maraehako and Smith 159

or to remove trustees

Ngatihine and Alexander 200
Notice must be given to owners of proposed trust orders.

Whatuwiwi, Windelborne v Ngatikahu 161

but orders may be made of Court's own motion (the Court may of its own motion make an order under s. 438 when declining confirmation of a resolution)

Tangoio, Taylor v Pohio 149

and where made of Court's own motion the Court is still bound to give notice to owners

Makarika, Reedy v Johnson 146

and in addition to general media notices, individual notices to owners is still required and an adequate search of records for addresses is required

Waiwhariki and Noel 125

However, formal notice may not be necessary where the Court's intentions have been made clear and owners have been given an adequate opportunity to respond

Taupo Central Inc and Williams 88

Trusts are not to be disclosed on vesting orders

Maraehako and Smith 159

Trust orders need not be made only in general terms but can be made for limited or specific purposes, as for example, to subdivide and sell

Waimana and Maori Trustee 150

and while trustees may be empowered to negotiate for and conclude a particular alienation, save for special circumstances it is not the function of the Court to approve of the particular alienation. Accordingly a trust order should not be varied to authorise the conclusion of a particular instrument of alienation negotiated for by the trustees

Waitahanui Forestry Trust 176

Ngatihine and Alexander 200

A provision in a trust order for accumulation of rents to meet future subdivisional costs may be unreasonable when the owners are elderly

Rangitaiki and Pahunui 148

Multiple lands trusts—forms of trust orders—whether monies from one block may be applied to another—whether a common ownership list may be approved for distribution and share dispositions without amalgamation or aggregation—separate trust orders required for each block—welfare payments and putea accounting—major-ity decisions of trustees—composite meetings of owners—history and application of section 438 to multiple lands trusts

Murihiku Lands and Ngaitahu MTB 256

but when dealing collectively with numerous blocks the Court must still ascertain the position with regard to each block

Waiwhariki and Noel 125

Variation of trust—a trust order will not be varied solely on evidence that owners have resolved that it should be—good cause and changed circumstances to be shown

Waitahanui Stream Reserves Trust 176

Removal of trustees—s. 438 and s. 443 do not give the Maori Land Court jurisdiction to remove a trustee from office—application for removal must be dealt with in accordance with the powers conferred by s. 51 of the Trustee Act 1956

Waiotahi and Stewart 269

and see

and trustees will not be replaced (except by consent) solely on evidence that a meeting of beneficial owners has

Ngatihine and Alexander 200

so resolved—good cause to be shown

Waitahanui Stream Reserves Trust 176

200

As to trustees being unable to agree the right to seek directions of High Court and removal by Court, see Ngatihine and Alexander

Refer "A historical examination of the s. 438 trust and the application of it by the Maori Land Court..." T G Woods

"Alienation of Maori Land under Part XXIII and s. 438 Maori Affairs Act"

16. G McHugh (1980) VUWLR 153

"Rural resettlement on Maori Land : The Role of Section 438 Trusts"

5. Stokes (1981) Paper to NZ Geography Conference Wellington

Valuation

Of land on compulsory acquisition for public or local works

see "Compulsory Acquisition and Agents" 13

Of metals where land or metal taken for quarry or roading purposes

see "Compulsory Acquisition and Agents" 13

Of undivided interests—not to be assessed as a fraction of total value with a rule of thumb discount but to be separately valued in a willing seller—buyer context with regard to a variety of factors relevant to undivided interests (including the prospect of partition)

CIR v Flaxbourne Trust 279

but the Court is not bound to this manner of assessment in assessing the adequacy of consideration in the transfer of an individual interest

Manukawhitikitiki 246

Of unimproved, improved and capital values in assessing compensation for improvements, renewals and reviews in leases

see "Leases" 32

Waitangi Tribunal

See "Treaty of Waitangi and Waitangi Tribunal" 59

Water Rights

Discharge of effluent in proximity to Maori fishing grounds

NZ Synthetic Fuels application 246

Discharge of effluent to sea in proximity to shellfish beds—public interest and concept of "multiple use"

Pikarere Farm Ltd v Porirua C C 214

Maori spiritual and cultural values relating to waters—significance thereof

Minhinnick v Auckland Water Board 248
Water Rights in respect of geothermal power affecting scenic attractions

NZ Maori Arts & Crafts Inst v Nat W and S 230

C Authority

Keam v Water and Soil Conservation Authority 216

Refer "The Maori Spiritual Relationship with Water"

2. Williams (1983) PP 25 P 25

(1983) 25 PP 25

See also "Treaty of Waitangi and Waitangi Tribunal" and "Fishing Rights" 59 & 22

Words and Phrases
"Alienation" in s. 2(1)

Paraninihi v Viking Mining 263

"Alienation" in s. 2(1) includes consent to construct a roadway

Hauhungaroa Inc v Attorney-General 164

"Alienation" in s. 2(1) includes a lease containing an option to purchase

Murray v Scott 178

"Adversely affected" in s. 452

Maraehako and Smith 159

"Arrangement or agreement" in s. 136

Tikouma, Whareraumati v Ruha 171
"Arrangement or agreement" in s. 213

Tikouma, Whareraumati v Tutonu 169

Tikouma, Whareraumati v Ruha 171

"Authority" in s. 436

Cook CC v Attorney-General 192
"Bound by the order of materially affected" in s. 42

Awarua, McCarthy v Collerton 89

Whakapaupakihi, Hodgson v Bayley 110

Rangatira B and Dribble 137

Paokahu, Ruru v Economic Butchery 152

Mangawhero, Beattie v Hayes 154

"Claiming to be interested" in s. 27(1)

Puketiti, Von Dadelszen v Goldsbury 255

"Contrary to equity or good faith" in s. 227

Pupuke, Smith v Poata 138

"Decision" in s. 224(2) means final decision

Rakautatahi and Apatu 151

"Facilitating" in s. 438(1)

Albert v Nicholson 184
"Final order" in s. 42

Ngarimu H deceased 100

Mangawhero, Beattie v Hayes 154

"In respect of" in s. 441(2)

Waipapa and Board of Maori Affairs 154

"Interest in land" in s. 131

Awarua v Commissioner of Inland Revenue 66

"May" and the extent of discretion thereby conferred

Takapuwahia and Porirua BC 134

"May on sufficient cause" in s. 54(4) of the Maori Affairs Amendment Act 1967

Te Hapua and Murupaenga 162

"Mistake or error" in s. 452

Maraehako and Smith 159

"Mistake" in s. 453A

Ngatarawa, Chadwick v Guardian Trust 140
"Of no force or effect" in s. 224(1)

Tauranga-Taupo, Goebel v Tawhirau 117

Matakana, Tukaki and Porau 221

"Order" in s. 2(1)—see "Orders" 39

"Person interested" in s. 28

Whakapaupakihi, Hodgson v Bayley 110

"Rates or taxes" in s132(1) Rutene deceased, Maori Trustee v CIR 76

"Sale" in s. 48 of the Maori Affairs Amendment Act 1967

Paraninihi v Viking Mining 263

"Special circumstances of the case" in s. 227

Pakikaikutu v Gurney 129

"Use, management or alienation" in s. 438(1)

Waimana and Maori Trustee 150

CASE SUMMARIES
(in chronological order)

AWARUA v COMMISSIONER OF INLAND REVENUE
[1958] NZLR 1163

Supreme Court Gisborne 3 September, 23 October 1957
Shorland J

Successions and succession duty—personalty passing with the land is subject to estate duty and not succession duty

"Interest in land"—meaning thereof in s. 131

S. 131—"interest in land" does not refer to any associated personalty

S. 131 provides for Maori succession duty (as distinct from estate duty) to be assessed by the Maori Land Court in making succession orders in respect of any "land or interest in land". It was held that the word "interest" did not include personalty consequentially passing by virtue of the order, and accordingly that the deceased's interest in the other assets associated with the land formed part of his dutiable estate.

Burnard for the appellant
Quill for the respondent

Editor's Note

(1) This case related to a succession order made in respect of shares in an incorporation. While the Court no longer makes succession orders in respect of incorporation shares, the same principle would appear to apply to succession orders made in respect of land under Part XXIV of the Act where, in terms of s. 328 (3) the disposition of the owner's shares is deemed to be a disposition of his corresponding interest in the stock and other assets held by the Board. It appears that while succession duty would apply to the land interest, the deceased's interest in stock and other assets would be included in his dutiable estate.

(2) Other aspects of this case relating to the interpretation and application of the provisions affecting Maori Incor‑porations have been superseded by amending legislation and are not reported here.

(3) This case was followed in In re Rutene deceased summarised later.

HOPKINS v TE KAPONGA
[1958] NZLR 464 [not on NZLII but available here]

High Court Auckland 26 February 1958
Gresson J

Succession—s. 135—interest in Maori land acquired by purchase-succession on intestacy to be determined as though the interest were an interest in European land (s. 117 (2) (c)) and not in accordance with Maori custom (s. 116)

Exchange contrasted with sales and acquisition—whether transactions constituted an exchange or independent sales and purchases

N, a minor, was the sole owner of Block A which was Maori land inherited from his father. In 1914 N's trustees sold Block A in order to acquire (on the same day) a half interest in Block B which was also Maori land. The half interests in the Maori land however would have devolved in accordance with Maori custom.

N died intestate and without issue. His wife predeceased him. The Maori Land Court determined pursuant to s. 135 that the transaction represented not a purchase but an exchange and accordingly that those entitled were those entitled in accordance with Maori custom, that is, the next of kin traced through the deceased's father.

The appellant; N's half brother (who would have been entitled under the "European" law of succession) appealed to the Maori Appellate Court. The Maori Appellate Court stated a case to the Supreme Court.

HELD

That the first transaction was a sale by the trustees for a pecuniary consideration and the second transaction was a purchase by the trustees for a pecuniary consideration from a person who was not party to the first transaction. In law the two transactions were independent. The fact that the trustees were vendors in the first transaction and purchasers in the second, that the proceeds of the first were applied in part to provide the purchase money for the

second, and that both the sale and the purchase were of Maori lands could not alter the legal character of the second transaction and convert what was clearly a purchase into an exchange. Purchase and exchange are clearly contrasted in the Act, in particular by virtue of s. 2 (2) (c), s. 117 (c) and (d) and s. 187.

That the interest in Block B was purchased for a pecuniary consideration within the meaning of s. 117 (2) (c) of the Act. The persons entitled to succeed should have been determined as if the land were European land and accordingly the appellant was entitled to succeed in terms of 56 (e) of the Administration Act 1952.

Houston and Hassell for the appellant
O'Shea for the respondent

SIM v McTAVISH
[1958] NZLR 585 [not on NZLII but available here]

Supreme Court Palmerston North 3 March 1958
Haslam J

Leases—s. 224 (1)—although an unconfirmed lease is without validity in law, it is untainted by illegality and an informal occupier may still sue upon a licence given by him to a third party

S was in occupation of Maori land by an informal arrangement with some of the owners. S gave to M a licence to crop the land in return for certain payments and covenants as to re-grassing. One owner required M to vacate and M vacated without re-grassing. S sued for damages for failure to re-grass and M sought to abandon the contract on the grounds that S had no title.

It was held that although by s. 224 (1) no alienation or lease of Maori land has "Lny force or effect" unless and until confirmed by the Maori Land Court, M was still bound to perform his covenants under the licence and S could sue upon it. If the words "force or effect" be given a literal meaning, the grant of a licence by a person in de facto but unconfirmed occupation of Maori land is without validity in law but is untainted by illegality.

Opie for the plaintiff

Lusk and Forsell for the defendant

IN RE AWARUA 2C2A, CLAY v RANGI
(1958) 11 Whanganui ACMB 303

Maori Appellate Court Wanganui 13 March 1958

Judges Prichard N Smith Jeune

(from decision of Judge O'Malley)

S. 231—Maori Trustee entitled to commission on proceeds of alienation—commission payable by alienee Maori Affairs Act—not so much to benefit Maoris as to regulate their affairs

The Maori Land Court granted confirmation of a lease subject to the condition that the rent was to be paid to the Maori Trustee pursuant to s. 231, together with a six percent commission.

The appellant contended that the owners and not the lessee should meet the commission, arguing the the law requiring payment to the Maori Trustee was for the benefit of the Maori owners since the Act was passed for the benefit of Maoris.

HELD in a single judgment and dismissing the appeal

(a) The Maori Affairs Act was not enacted purely for the benefit of Maoris but rather for the purpose of regulating the affairs of Maoris both between themselves and non-Maoris. In this case it might be said that payment to the Maori Trustee protected the lessee from the possibility of the owners demanding advances of rent.

(b) That although the Court had a discretion to charge the commission to the lessors, to do so in this case would have resulted in the owners receiving less than a 5% return on the capital value of their land. (In re a lease Wellington City Corporation to Wilson (1936) NZLR distinguished).

Withers for the appellant

Davis for the respondent

Fergusson for the Maori Trustee

The original s. 231 was amended by s. 7 of the Maori Purposes Act 1963 and then substituted by s. 204 of the Maori Affairs Amendment Act 1967. The Act now specifically provides that the Maori Trustee shall be entitled to com‑mission at a rate determined in accordance with the provisions of the Maori Trustee Act 1953 and that the commission shall be payable by the alienee.

IN RE MOKOIA ISLAND AND KARAWANA
(1958) 4 Rotorua ACMB 142

Maori Appellate Court Rotorua 6 June 1958

Judges N Smith O'Malley Brook

(from decision of Judge Prichard)

Preliminary determination on partition—s. 174—jurisdiction conferred by Part XVI of the Act is discretionary. Appeals from preliminary determinations s. 43

The Court made a preliminary determination that it would not accede to an application to partition Mokoia Island without evidence that a majority of the owners largely agreed to support the proposal.

On an appeal it was submitted "that the Court had exercised its discretion on wrong grounds". HELD dismissing the appeal

(a) That the jurisdiction under Part XVI of the Maori Affairs Act 1953, conferred upon the Maori Land Court by s. 173 to partition Maori freehold land, is by s. 174 made discretionary. The lower Court had not refused to exercise that jurisdiction but had merely laid down conditions which had to be fulfilled before it would exercise its discretion.

(b) That the conditions laid down were not in any way unfair or unreasonable. It was both practicable and reasonable that the Court should not consider the application further until the great majority of the owners had been fully informed of the final probable fate of the island if a partition order was made and unless they agreed at a largely attended meeting to support the proposal.

(c) That as this was no more than an appeal from a provisional or preliminary determination the Appellate Court could express no opinion as to the merits of the application other than to affirm the condition laid down by the lower Court.

Duncan for the appellant

IN RE POKURU 3G2 AND POKURU LANDS LIMITED
(1958) 28 Waikato MB 375

Maori Land Court Auckland 4 July 1958
Judge Brook

Confirmation of resolutions of assembled owners—a previous lessee is entitled to be heard thereon—owners opposed to confirmation are also entitled to be heard even although they have not signed a memorial of dissent

Inquisitorial function of Court—in confirmation proceedings the Court may hear a previous lessee although not a party to the application and the Court may also hear objectors although they have not signed a memorial of dissent.

R, a lessee of Maori land, continued in occupation of the land after the expiry of his lease. Meanwhile, and without notice to R, P sought a resolution of assembled owners to agree to a lease to P. A resolution to lease to P was passed but there were several dissentients most of whom preferred that a new lease be negotiated with R.

After an extensive review of the authorities on the nature of confirmation proceedings the Court held that it would hear anyone who could assist it in its enquiries, and in particular, it would hear R, the previous lessee and current occupier, and also those owners who opposed the resolution even although they may not have signed a memorial of dissent.

The Court considered, with regard to the inquisitorial function of the Court on confirmation proceedings

In re Whangawehi 1B3D3 (1952)Gisborne MB

O'Rorke v Ikaroa District Maori Land Board (1911) 31 NZLR 434

Wilson v Herries (1913) NZLR 417

Douglas v Heni Koru Koru (1920) 39 NZLR 87

Puketapu v Tokoiwa (1893) 12 NZLR 688

The Court subsequently refused confirmation on the grounds that the proposal was contrary "to equity and good faith" and "to the interests of the Maoris alienating".

The provisions that confirmation may be refused on the grounds that the alienation is contrary to equity and good

faith or to the interests of the Maoris alienating were repealed in the Maori Affairs Amendment Act 1967.

IN RE A LEASE, WATKINS v MAORI TRUSTEE
[1958] NZLR 947

Court of Appeal Wellington 24, 28 June, 31 July 1958
Gresson P North J Hutchinson J

Leases—application of Mortgagors and Lessees Rehabilitation Act 1936—whether Court of Review had jurisdiction to make an order varying terms of lease and reducing amount of rent payable

The Tairawhiti District Maori Land Board granted to W a lease of Maori land for a term of 21 years from 1 July 1934 at a rent of $690 per annum. The lease provided for a right of renewal for a further term of 21 years "at the yearly rental of 5 per centum per annum on the then unimproved value of the said land plus the sum of $1,540 being the value of the owner's improvements on Lots 5 and 6, provided however that the rental for the renewal term shall be not less than the rental reserved under this present lease".

In 1938, W applied for an adjustment of the rent under the Mortgagors and Lessees Rehabilitation Act 1936. The Court of Review made an order determining

(1) That as from the 1st day of July 1938 and until the expiry of the lease the rental was to be fixed at $418 per annum.

(2) That the right of renewal clause be varied by deleting the words "the rental reserved under this present lease" and substituting therefor the words "the sum of $418 per annum".

In 1954, W gave notice to the Maori Trustee that he wished to renew the lease and application was made to the Maori Land Court for an order under s. 237 directing the Maori Trustee to execute it. The Court directed the Maori Trustee to execute a renewal in accordance with the terms and conditions of the lease and set the rent for the renewed term at $690. On an originating summons for an order determining the rent which could properly be demanded for the renewed term, the Supreme Court held that the Court of Review had jurisdiction to make the order for variation of the right of renewal contained in the lease.

On appeal against the ruling of the Supreme Court, the Court of Appeal held that the Mortgagors and Lessees Rehabilitation Act empowered the Court of Review to vary the provisions of an adjustable lease where it considered it just and equitable and consonant with the general purposes of the statute. The Court of Review had jurisdiction to make the order even though its effect was an adjustment of a future liability.

The appeal was dismissed.

Patterson and Hercus for the appellant
Spratt and Chrisp for the respondent

Editor's Note

The Mortgagors and Lessees Rehabilitation Act 1936 has been repealed. It is to be noted however that that Act, which was passed following a change in economic circumstances, served to alter the contractual obligations of parties for the protection of lessees, and it applied to Maori land. Many long term leases today run contary to the lessor's interests as a result of inflation but legislation to provide relief to lessors has not been enacted.

IN RE POPOTERURU AND TAKAPUWAHIA B3, NAHERA v MINISTRY OF WORKS
(1958) 8 Wellington ACMB 219

Maori Appellate Court Wellington 2, 4 September 1958

Judges Prichard N Smith O'Malley

(from decision of Judge Jeune)

Compensation for land taken by the Crown—potential subdivisional value—method of valuation—allowance for profit and risk

Two blocks of Maori land at Porirua were taken for housing purposes together with two blocks lying between them. Compensation was assessed at exactly the Government Valuation the Court noting "The owners produced no evidence as to what each block would be worth if it were not able to be absorbed in one composite area capable of subdivision and accordingly one set of values was offered in evidence."

On appeal it was claimed that the Court should have ascertained the compensation as if there were four separate takings. Each block should have been assessed as a separate entity and not part of the four blocks taken at the same time.

HELD (in allowing the appeal)

(a) The District Urban Valuer had assessed the value for each block by valuing the total area and apportioning a value to each block based upon their respective acreages. No allowance was made for their subdivisional potential. The Maori Appellate Court preferred the approach of Archer J in Lower Hutt City Corporation v Dyke (1954) NZLR 168 where it was stated

". . . the soundest method of valuing an area of land which appears to be capable of realisation to the best advantage by subdivision and sale in separate sections is that which arrives at the present value of the land by assessing the value of the sections in a hypothetical subdivision and deducting from the gross total the estimated cost of roadings and subdivision including an allowance for risks and profit."

(b) Accordingly the Appellate Court adopted the figures of an experienced valuer which brought into account a subdivisional potential.

(c) On the question of deduction of profit and risk, the Court considered that the percentage was variable and must depend on the particular circumstances of each case. Here some sections were flat and would sell quite quickly while others were unattractive and might take years to sell. The roading was not easy and there would be delay in completion. The Court considered an allowance of 25% a reasonable one.

Simpson for appellant
Voice for respondent.

Editor's Note

Refer however to In Re Whareroa 2E, Maori Trustee v Ministry of Works (summarised later).

STEWART v ATTORNEY-GENERAL
[1957] NZLR 244 and [1958] NZLR 538

Supreme Court Auckland 5-7 September, 18 December 1956
Turner J

Court of Appeal Wellington 11-12 September 1958
Finlay Hutchison North Henry McCarthy JJ

Development of Maori lands under (now) Part XXIV—acquisition of further lands by the Board of Maori Affairs—whether the land acquired is acquired for the scheme or for the Crown—history and purpose of Maori land development by Board of Maori Affairs.

Historical interest—Ngatiawa Development Scheme.

The Supreme Court and Court of Appeal decisions herein contain important historical data on the Ngatiawa Develop‑ment Scheme near Whakatane and on the history and purpose of the development of Maori lands by the Maori Land Board.

In this case certain Maori land was being developed for the owners by the Board. In the name of the Crown the Board acquired extensive further lands for concurrent development (in 1931 to 1933) and expended monies in develop‑ing the same from the Native Land Settlement account. It became apparent by the 1950's that the land acquired could profitably be used, with considerable gains, for residential beach sub-divisions and other purposes.

The Maori owners claimed that the purchased lands must be taken to have been acquired for them, as part of the scheme, with the cost thereof being a charge against the scheme. Reliance was placed on In re Tikitere Development Scheme (1954) NZLR 738 where it was held that lands purchased for that scheme were held by the Crown upon trust for the owners of the Maori lands included in the scheme.

It was held, in this case, on a construction of the relevant statutes, and overruling the decision in In re Tikitere Development Scheme that the purchased lands were owned by the Crown and that there was no trust in favour of the owners of the Maori land in the scheme.

The current provisions for development by the Board (Part XXIV of the Act) are substantially different from the wording given in the provisions of the earlier acts referred to in this case. The case nevertheless illustrates that even under current legislation the Board, on acquiring lands in the course of the development of Maori lands under Part XXIV should clearly specify whether the lands are acquired for the scheme owners under s. 370A, or, whether they are acquired for either the Crown or the scheme owners under s. 370. It also seems important to avoid future confusion

and the sort of problems and arguments that arose in this case, that the Board should maintain separate accounts for the Maori lands and any lands that are intended to remain as Crown land, and should apportion expenditure and profits between them so that the distinction is at all times maintained.

It appears that at present there is adequate room for claims of an implied trust to be made in the future in respect of purchased lands, although the matter would now fall to be interpreted or differently worded statutory provisions.

Keane for the appellant

Sir Vincent Merdith QC and Rosen for the respondent

IN RE NGATITARA 25A MAORI TRUSTEE v ANDERSON
(1958) 11 Whanganui ACMB 306

Maori Appellate Court New Plymouth 20 October 1958

Judges Prichard Jeune Brooke

(from decision of Judge O'Malley)

Apportionment of mortgage—s. 179—right of mortgagee to be heard

The will of the deceased devised the land herein to his grandchildren in two specified areas. There was a sum of $2000 owing on a mortgage to the Maori Trustee.

In making vestings pursuant to the Will, the Court partitioned the land and apportioned the mortgage, as to $200 to an area of 100 acres and the balance to an area of 229 acres. The Maori Trustee appealed against the decision and sought an alternative apportionment.

HELD

That the apportionment as fixed by the lower Court was unsupported by any sworn evidence and was made in the

absence of the mortgagee. It was accordingly cancelled and substituted by an apportionment proposed by the appellant.

McCormick for the appellant
Fergusson for the Maori Trustee

IN RE ARAUKUKU 3, HURLEY v EDMONDSON
(1958) 11 Whanganui ACMB 356

Maori Appellate Court New Plymouth 23 October 1958

Chief Judge Prichard Judges Jeune Brook

(from decision of Judge O'Malley)

Confirmation of lease—s. 230—protection of tenants improvements

H, an existing tenant whose lease was due to expire, appealed against the confirmation of a new lease to S upon the grounds (inter alia)—

(a) That the Court should have exercised its discretion under s. 230 to refuse to confirm the alienation as the appellant would be detrimentally affected and would not be protected for his improvements.

(b) That the alienation was contrary to equity and good faith.
HELD in dismissing the appeal

(a) The lower Court was correct in ruling that the appellant was not protected under s. 230. There was no evidence of any improvements effected on the land by the appellant nor evidence that he had paid for any improvements effected by a predecessor in title.

(b) That the alienation was not contrary to equity and good faith and to the interests of the Maori owners alienating. The evidence showed that S would be a good lessee and the rent was adequate.

O'Dea for the appellant
Taylor for the respondent

IN RE NGATITARA 11, PUBLIC TRUSTEE v GATENBY
(1958) 11 Whanganui ACMB 354

Maori Appellate Court New Plymouth 21, 23 October 1958

Chief Judge Prichard Judges Jeune Brook

(from decision of Judge O'Malley)

Confirmation of lease—payment of compensation to lessee for his improvements—s. 241—compensations for improvements to be determined in accordance with Part XX and not in accordance with the terms of the lease

The Public Trustee for the estate of a deceased owner executed a lease to the lessee for five years with rights of renewal and included a provision for payment of compensation to the lessee for any addition to a water supply which the lessee effected.

The Lower Court confirmed the lease but varied the provisions for compensation to comply with Part XX of the Maori Affairs Act which has restrictive provisions on lessees compensation in respect of Maori Land. On appeal the Public Trustee submitted that the rights of the lessee to receive compensation should have been determined in accordance with the terms of the lease and not in accordance with Part XX. The Public Trustee contended that as the lease was executed by him under authority conferred by the Public Trust Act 1908, the lease was accordingly excluded by s. 241 of the Maori Affairs Act 1953 from the provisions of Part XX which related to leases of Maori Land.

HELD

That the Public Trust Act 1908 merely gave authority for the Public Trustee to include a right to compensation to a lessee in leases granted but it was silent as to the application of rent towards and the method of payment of compensation. That being the case the provisions of Part XX must apply.

Moss and Graham for the appellant
Dawson for the respondent

Editor's Note

The 1967 Amendment Act removed the requirement that lease instruments (as c.f. resolutions to lease) be confirmed. There appear now to be no provisions to ensure that the provisions of Part XX as to the leasing of Maori Land are upheld.

IN RE RANGITOTO TUHUA 60E1 AND ORMSBY
(1959) CJMB

Maori Land Court Wellington 20 January 1959
Chief Judge Morison

Leases—compensation for improvements and appointment of receiver—application of the provisions of s. 251 and 250

Chief Judge under s. 452—where the issues relate entirely to whether or not the Court had jurisdiction to make the orders, and where the resolution of all the issues would involve a matter outside the competence of the Court or of the Chief Judge to remedy, the Chief Judge should consider whether to decline jurisdiction to deal with the matter under s. 425.

O leased solely owned Maori land. The lease contained a provision for compensation for improvements to be fixed by an arbitrator in the event of the parties being unable to agree on the amount payable. In 1954 on expiry of the lease, 0 sought and obtained an order of the Court under s. 238 appointing an arbitrator. The arbitrator assessed compensation, and by virtue of s. 251 (2), the compensation so assessed became a charge upon the land. In 1955 pursuant to s. 251 (2), 0 sought and obtained an order appointing a receiver to enforce the charge.

In 1958, the sole owner, who had been in Australia when the lease had expired, applied to the Chief Judge under s. 452 to set aside the 1954 and 1955 orders upon the grounds that the Court lacked jurisdiction to make them and in particular

(a) That in terms of the lease, an arbitrator could be appointed only if the parties had failed to agree. It was necessary for the lessee to establish that there had been consultation and a disagreement and these things had not been established.

(b) It had not been established that the lessor had been served with a notice to appoint an arbitrator. 72

HELD

(a) The Court has power to appoint an arbitrator only upon proof that the lessor has failed to comply with the provisions of the lease requiring him to appoint one. In this lease there was no obligation to appoint an arbitrator unless the parties were unable to agree on the amount of compensation. However, in hearing the case in 1954, the Court relied upon a statement by counsel that the applicant lessor had failed to nominate an arbitrator. In terms of s. 54 of the Act the Court may act on unsworn testimony and receive statements as evidence. The application was not opposed. The Court was therefore entitled to rely upon counsel's statement and accordingly it had jurisdiction to make the order. If it was now alleged that there had not been a failure to appoint an arbitrator because there had been no request to appoint one and no disagreement, then the applicant so alleging those things had to prove them as facts. The applicant had not sought to introduce any evidence however, and had relied solely upon legal argument.

(b) The applicant claimed that no formal notice to appoint an arbitrator had been given under s. 250 of the Act. That section merely prescribes the procedure for giving notices if notice is in fact required under any other section of that part of the Act. There is no other section in that part of the Act requiring a lessor to be given formal notice to appoint an arbitrator.

(c) In any event, in order to provide the applicant with relief it would be necessary to set aside not only the orders of the Court but the arbitrators award. Neither the Maori Land Court nor the Chief Judge has jurisdiction to cancel an arbitrators award and for that reason, and because the alleged errors related to matters of jurisdiction rather than fact, this was a case more appropriate to the Supreme Court and a case where the Chief Judge should therefore decline jurisdiction under s. 452.

IN RE HINERANGI DECEASED, PUBLIC TRUSTEE v TURU AND ORS
[1959] NZLR 929

Supreme Court New Plymouth 18 February 20 April 1959
Shorland J

Succession—Maori testator using English words is deemed to mean what a European person would mean notwithstanding Maori custom—term "children" in will does not include grandchildren

Succession—trust for sale of land—statutory restrictions on the sale of Maori land enacted subsequent to testator's death do not affect the operation of the equitable doctrine of conversion

By Will, written in English, the testatrix left her land to her trustee upon trust for sale, with power of postponement, and after payment of debts and expenses to hold the residue in trust

(a) as to one equal share to be invested in an authorised investment and to pay the income to her son H during his life and after his death to pay and apply the same equally for and towards the maintenance, education and benefit of all the children of H, and

(b) as to one equal share to be applied in the same way to her granddaughter T and all the children of T.

By orders of the Maori Land Court the land was vested in the Public Trustee upon the trusts in the Will. The land remained unsold. On an originating summons for interpretation of the Will it was held

(a) That a Maori testator using English words is deemed to mean what a European testator would mean. Accordingly where the word "children" was used in the Will that term did not include grandchildren, notwithstanding Maori custom.

Love v Ihaka Te Rou (1890) 8 NZLR 198 cited

(b) That by virtue of the trust for sale, the land notionally became personalty on the testatrix's death. The statutory restrictions upon sales of Maori land imposed subsequent to the death of the testatrix did not cancel or affect the operation of the equitable doctrine of conversion. Consequently, the interests of beneficiaries dying before distri‑bution devolved as personalty. The notional conversion into personalty was not affected by s. 456 of the Act which caused the proceeds of the sale of some Maori land to retain the notional character of land.

Moss for the Public Trustee
Middleton for the first defendent

IN RE WRIGHT'S OBJECTION
[1959] NZLR 921

Land Valuation Court Wellington 3-6 March, 21 April 1959
Judge Archer

Valuation of lessee's improvements for assessment of compensation under the Maori Vested Lands Administration Act 1954—general valuation principles apply—residuary method of valuation inappropriate

This was an appeal by the Maori Trustee against a valuation fixed by the Land Valuation Committee in respect of the improvements on land for which the lessee was entitled to compensation under the Maori Vested Lands Admin‑istration Act. It was held that there was no material difference in the principles to be applied to the making of a valuation under the Maori Vested Lands Administration Act 1954 from the principles applicable to a valuation of land under the Valuation of Lands Act 1951. The decision acknowledges the difficulties in valuing such improvements as the clearing stumping and initial cultivation of land. It criticises the practice of listing and valuing the improvements separately (especially when there is no reliable information as to the condition of the land in its natural state) and arriving at the unimproved value by deducting the total thereof from the capital value (the "residuary method"). It is considered "incumbent upon valuers to assess unimproved value by reference to value in the market, the improve‑ments being disregarded". After reviewing the evidence, the appeal was allowed and the valuation certificate was amended.

Tompkins QC and Willis for the Maori Trustee

Withers for the respondent lessee

Heenan for the Valuer-General

IN RE WHATAMONGO AND MINISTER OF LANDS
(1959) Wairarapa MB

Maori Land Court Masterton 29 May 1959

Crown land reserved for Maoris—application by Crown to vest in Maoris entitled—whether the land was conveyed to the Crown in trust or had never been conveyed to the Crown

S. 437—application thereof

Status of land—whether land is Crown land reserved for Maoris or whether in terms of an original conveyance the land was excluded from a transfer to the Crown

Adverse Possession and status of Land—whether land was Crown land reserved for Maoris or Maori customary land

In a conveyance to the Crown in 1856 of land in Queen Charlotte Sound by certain representatives for the Ngatiawa Tribe, there followed a description of the land, which was largely by reference to a map, the words "the reserves for us are marked red on the map of the land hereunto attached".

The Minister of Lands bought an application under s. 437 of the Act which directs the Court "where any Crown land has been set aside or reserved for the use or benefit of Maoris to determine the persons who are beneficially entitled to the land".

Part of the land marked on the map as reserves had for many years been in the occupation of a European who claimed certain rights as a result of his adverse possession. Various consequences of the land being Crown land or customary land were adverted to and the Court was called upon to determine whether in fact the lands were Crown or Maori customary land.

For the Crown it was argued that the lands had passed to the Crown and were held by the Crown on trust for formal reservation or setting apart for the Ngatiawa people. It was conceded however, that no document had been found actually setting them aside as reserves.

The Court however formed the view that the effect of the conveyance was not to convey the land marked reserves, but to exclude those areas from the sale. The Court declined to determine the status of the land but held that the lands were not Crown lands for the purposes of s. 437 and dismissed the application accordingly.

74

IN RE ROTOPOUNAMU 1A, TAREHA AND ORS
(1959) 8 Hawkes Bay—Manawatu ACMB 252

Maori Appellate Court Napier 2 July 1959
Chief Judge Morison Judges Prichard O'Malley
(from decision of Judge Jeune)

Confirmation of instrument of sale—the Court in deciding whether or not a sale is in the interests of an alienor must have full information as to his circumstances—usual for alienor to appear before the Court

Principle that land should not be sold for purpose of repaying mortgage on other land or for payment of debts—s. 227

An agreement for the sale and purchase of land executed by the owners and the purchaser related to an area of 39¹/₂ acres being part of Rotopounamu 1A which has a total area of 64¹/₂ acres. There was considerable demand for this land since it was situate in an area of high productive value for cropping and fruit growing, and with the growth of the towns of Napier and Hastings in close proximity it was likely to be in demand for residential purposes.

The Government Valuation of the area of 64¹/₂ acres was $27,920. The price for the area of 39¹/₂ acres was $22,940. The owners had agreed to sell the balance of 24 acres for $14,000, making a total of $36,940.

The lower court refused confirmation on the grounds that it was not satisfied that the sale was not contrary to the interests of the alienors. The appellant owners sought confirmation from the Appellate Court, contending that the sale was in their interests.

The Maori Appellate Court in dismissing the appeal held

(a) It was very much in the interests of the owners of land of this class in this locality to retain it. There had to be strong reasons for the Court to be satisfied that the sale was not contrary to their interests.

(b) Apart from one individual, no other owners appeared before the Court but chose instead to set out their reasons in letters. Bare statements were put forward by the major owners such as:

"She will not be able to pay her debts."

"He will be unable to repay his mortgage to the Maori Trustee or carry out urgent repairs to his property."

"He requires the sum of $7,000 to erect a house."

Bare statements cannot be accepted as sufficient proof and those making them must attend court.

(c) Land should not be sold for the purpose of repaying a mortgage secured on other land. These are normally repayable by instalments out of income. Similarly, Maori land should not be sold to pay off debts.

(d) There was insufficient proof that the investment of purchase money with the Maori Trustee was better than the retention of the land.

(e) The Court also rejected an argument by counsel for the purchaser that the agreement could be treated as several separate sales of undivided interests and that confirmation could be granted in respect of the interests of some owners only.

Editor's Note

The provision in s. 227 (1) that the Court must be satisfied "that the alienation is not contrary to equity or good faith, or to the interests of the Maori alienating", was repealed in 1967.

IN RE PUKEKURA B, MAORI OWNERS v MINISTRY OF WORKS
(1959) 14 Auckland ACMB 39

Maori Appellate Court Auckland 14, 15 July 1959

Chief Judge Morison Judges Jeune Porter

(from decision of Judge Brook)

Compensation—assessment of value of land having important historical associations for Maori people.

The land in this case was taken under the Public Works Act for Hydro electric purposes. It comprised one acre, partitioned out in 1887 as having historic associations arising out of an important inter-tribal battle on the spot, and it had been kept in its natural state.

Under the then law (since repealed) compensation was to be fixed by the Maori Land Court. Compensation of $40 was allowed, the Court declining to allow any further sum for "historical value".

It was held on appeal that in fixing compensation the Court was required to follow the formula set out in s. 29 (1) (c) of the Finance Act (No 3) 1944 that "the value of land shall be taken as the amount which the land if sold in the

open market by a willing seller might be expected to realise." It considered, in upholding the lower Court's decision, that "No evidence was adduced to show that a purchaser in the open market would be prepared to pay anything for this land on account of its historic associations in the minds of the Maoris of the district. Therefore, in assessing the value the Court had to regard the land in the same way as other land in the locality would be regarded."

Quarterly for the appellants
Voice for the respondent

IN RE MAUNGATAUTARI 3A5J HOPA AND ORS v BOARD OF MAORI AFFAIRS
(1959) 14 Tokerau ACMB 58

Maori Appellate Court Auckland 13 August 1959
Chief Judge Morison Judges Prichard Porter

S. 330—declaration by Board of Maori Affairs that land subject to development under Part XXIV— whether declaration valid Appeals—matter not raised in lower Court not to be raised on Appeal

The Board of Maori Affairs issued a declaration under s. 330 declaring land subject to Part XXIV of the Act. It then applied for partition orders cutting out areas for a marae and a urupa.

This appeal was against the making of those partition orders. The main ground for appeal was that the declaration made by the Board was invalid as it had not taken adequate steps to ascertain the wishes of the owners as required by s. 330 (3). It was argued that the Court should have enquired into the validity of this declaration and having found that it was invalid, should not have made the partition orders.

HELD, dismissing the appeal

The Court was properly entitled to assume that the land had been validly declared to be subject to Part XXIV unless it was alleged by one of the parties that this was not so. If such an allegation had been made the proper course for the Court to have taken would have been to have adjourned the application for partition until the question of the validity of the declaration had been decided in the Supreme Court. However, no question as to the validity of the declaration was raised in the lower Court and therefore the lower Court was not wrong in proceeding with the application and making the orders which it did.

Piggins for the appellant

Hercus for the respondent Board

IN RE RUTENE (DECEASED), MAORI TRUSTEE v COMMISSIONER OF INLAND REVENUE AND ORS

[1959] NZLR 1394

Supreme Court Gisborne 25-27, 3 September 1959
Hardie-Boys J

Successions and succession duty—personalty passing with the land is subject to estate duty and not succession duty Debts—Maori land protected against debts—protection does not extend to personalty associated with the land—where debtor deceased recourse may be had to seeking administration of estate and delaying distribution—Administration Act 1952

"Rates or taxes" in s. 132 (1) means rates and taxes levied on the land and does not include income tax S. 132 (1)—Maori land protected against debts

HELD

(a) the interest of a deceased in personalty associated with Maori land (stock etc) is not to be assessed for succession duty but forms part of the dutiable estate, and

(b) is available for the payment of duties (s. 131 considered)

(c) S. 132 (1) provides that interests in Maori land are not available for the payment of debts other than "rates or taxes". "Rates or taxes" means rates or taxes levied on the land and does not include income tax.

(d) The protection of Maori land against debts does not extend to cover personalty associated with the land. 76

(e) Where a deceased Maori has unrecoverable debts but an estate comprised of Maori land interests, some relief is given by the fact that administration of the estate can be sought and distribution may be held over pending payment of debts from income. (Application of Administration Act 1952 to Maori land considered).

Burnard and Hercus for the plaintiff

Evans for the first defendant, the deceased's widow

D W Iles and N W Iles for the second and third defendants, deceased's children

Gillanders-Scott for the fourth defendant, Mangatu Inc.

Quill for the fifth defendant, the Commissioner of Inland Revenue

Editor's Note

(1) Refer also to Awarua v Commissioner of Inland Revenue referred to earlier.

(2) This case related to shares in an incorporation. While subsequent changes to the law render the decision obsolete in so far as it affects (and reviews) incorporations, the principles referred to above are still relevant to current "succession" and "debt recovery" cases.

IN RE KAHUMATE REUPENA DECEASED
(1959) CJMB

Maori Land Court Wellington 16 September 1959
Chief Judge Morison

Successions in accordance with Maori custom pursuant to s. 135 and 136—adopted children are regarded as children of the body of the deceased in Maori custom.

Adoptions—adopted children entitled to succeed in accordance with Maori custom.

R died intestate leaving only two legally adopted children one of whom had died without issue. A grandchild of R's brother claimed that the surviving adopted child should not be the sole successor as in accordance with Maori custom the half share of the deceased child should "revert to source" that is, to R's father, and pass from him to the issue of R's brother. The claim was upheld and an order was made accordingly. The adopted child applied to the Chief Judge under s. 452 to set aside the order.

The Chief Judge set aside the order and substituted an order appointing the adopted child as sole successor. The Chief Judge referred to a decision of 5.12.1900, In Re Pura Rera deceased, where the Maori Appellate Court rejected an argument that the interests of an adopted child reverted to source on the adopted child's death and did not pass to that childs issue, and where it was settled that adopted children were to be treated as birth children on successions in accordance with Maori custom.

Accordingly in this case the two adopted children were brothers in both law and Maori custom, and on the death of one of them without issue, the other was entitled to succeed solely.

HAWKE'S BAY COUNTY v PUNA AND ANOR
(1959) 9 MCD 397

Magistrate's Court Napier 14, 21 October 1959
Harlow SM

Rates due on Maori land—action for recovery of outstanding rates—Magistrate's Court has jurisdiction to hear and deter‑mine claim for rates on multiply-owned Maori land under the Rating Act 1925.

Editor's Note

There are now special provisions for rating and Maori land in the Rating Act 1967. Nothing therein appears to preclude an action in the District Court against an owner of Maori land but a charge against the land may only be had in the Maori Land Court.

TENETI v NGATA AND BROWN
(1959) Supreme Court, Gisborne M 1839

Supreme Court Gisborne 11 November 1959
Shorland J

S. 34 (10)—orders of Maori Land Court not to issue during appeal period except by leave of the Court—the section is equivalent to a stay on execution and suspension of judgment in other jurisdictions

Incorporations—committee of management—members appointed do not take office until order of appointment has been sealed and issued

Injunction to restrain persons appointed to committee of management from assuming powers

The two defendants N and B were appointed to the committee of management of an incorporation by an order of the Maori Land Court on 18 September 1959. At that time no appeal lay from such an order to the Maori Appellate Court. On 22 October the relevant legislation was amended to confer a right of appeal. The amendment was ret‑rospective in its operation and was deemed to have come into force on 1 September.

The plaintiffs appealed against the order appointing the two defendants to the committee. They also sought an injunction from the High Court restraining the defendants from exercising their powers of membership until such time as the Maori Appellate Court had duly disposed of the appeal.

HELD

(a) That pursuant to s. 34, where there is a right of appeal to the Maori Appellate Court no order can be issued from the office of the Maori Land Court before the time allowed for appeal has expired or before the appeal has been disposed of. In the present case the perfected and drawn up order had been issued from the Court before the legislation giving the right of appeal had been passed in Parliament. The Court considered that had the amending legislation giving a right of appeal been in force on 18 September when the order was pronounced, the defendants would not have obtained their warrant to sit on the committee until the time for appeal had expired, or if notice of appeal had been given within that time, until the matter had been determined by the Appellate Court.

(b) That the Maori Land Court should undertake the responsibility of deciding whether the defendants should sit on the committee pending the appeal. In order that that might be done the High Court made a limited order granting an injunction restraining N and B from exercising any powers in respect of the committee unless and until either

(i) the Maori Land Court gave leave to seal the order of appointment even before disposal of the appeal pursuant to s. 34 (10); or

(ii) the appeal was disposed of by the Maori Appellate Court, whichever first occurred.

(c) That the granting of an injunction in the terms stated was in no way based upon a consideration of any of the equities involved in the appeal itself.

Burnard & Bull for the plaintiffs

Nolan & Skeet for the first defendant

Gillanders Scott & Wilson for the second defendant

IN RE WAIHIRERE AND WAIHIRERE NO 2 INC., TE UA AND ORS v HALBERT AND ORS
(1960) 29 Gisborne ACMB 271

Maori Appellate Court Gisborne 2, 11 February 1960

Chief Judge Morison Judges Prichard Jeune

(from decision of Judge N Smith)

Incorporations—removal of members from Committee of Management Evidence—Maori Land Court may act upon its own knowledge of lands and persons and is not restricted to the evidence adduced Costs—whether costs should be awarded against the funds of the incorporation

RH and others applied for the removal of the members of a committee of management of an incorporation and the appointment of others in their stead. The Court removed the seven members and appointed a new committee com‑prised of three of the old committee and four others selected by the Court. The four not reappointed and one other appealed against the appointments.

The appellants contended that the application to remove was limited in its scope and did not include certain grounds which the applicants raised at the hearing, namely that there had been excessive and irresponsible payments to the

secretary and generally excessive administration costs, over substantial payments to the chairman, and payments and gifts to selected persons when there were no profits. It was also contended that the Court had gone beyond the evidence in making its orders.

HELD

(a) That although there were statutory provisions for the election of members of a committee of management, in reality the Court was given complete control over their appointment and had powers to remove members and to appoint others in their place.

(b) That the legislature has given the Court special powers and functions in these matters to protect the owners of the land by ensuring as far as possible that the committees of management should comprise persons who would administer the land to the best advantage of the owners as a whole.

(c) That from the very nature of its work in dealing with applications from time to time the Court acquires knowledge of various lands and incorporations and the character and ability of many of the persons involved with them. The Court is entitled to make use of this knowledge and to obtain such information as it thinks fit by reference to the records of the Court. This view is supported by the fact that the Court has power of its own motion to remove any member of a committee and to appoint another person.

(d) That in view of the special nature of the Maori Land Court and many of the powers given to it, it was necessary for the Court in exercising some of its powers to adopt procedures which would not be adopted in other Courts. S. 54 of the Act modifies the ordinary rules as to matters which may be accepted as evidence by the Court.

(e) There had been improvidence and inefficient running of the Incorporation and the chairman and secretary had raided the funds. The order removing the committee was affirmed. It was held that the order appointing a new committee had been made from the Courts own knowledge of the owners but that it was entitled to do so according to the principles enunciated above.

(f) There can be no assurance that costs will be awarded against the funds of an incorporation where the litigants are all owners therein. The Appellate Court declined a request that the costs of all parties be so awarded, and awarded costs against the appellants.

Burnard for certain appellants

Gillanders-Scott for certain appellants
Thorp for certain respondents

Editor's Note

The relevant sections of the Maori Affairs Act 1953 relating to incorporations were repealed and substituted by the Maori Affairs Amendment Act 1967.

IN RE MOTATAU 2 SECTIONS 19 AND 40, RUKA AND ORS v AUCKLAND FARMERS FREEZING

COMPANY LIMITED

(1960) 1 Tokerau ACMB 42

Maori Appellate Court Whangarei 3 March 1960
Chief Judge Morison Judges N Smith Brook
(from decision of Judge Porter)

Right of appeal—no appeal lies against an order confirming a resolution to sell (as distinct from an order confirming an instrument of alienation) "Order" as distinct from "decision"—orders to be pronounced in open Court—s. 224 (2) and 319 considered

Resolutions were passed by assembled owners for the sale of two blocks. The Court pasted into its minute book, a written decision confirming the resolutions. At the time of appeal, the orders of confirmation had not been drawn signed and sealed as required by s. 34 (2).

The appellant contended

(a) that s. 34 (1) requires that the substance of every final order be pronounced orally and in open Court. He contended that the decision had not been so pronounced and accordingly, there was a decision, but no valid orders;

(b) that although no appeal lies against an order of confirmation, form 304 of the Rules of Court, which prescribes the form of Notice of Appeal, provides for an appeal either from a final order, or, from a decision to grant confirmation, and accordingly, he was entitled to an appeal as his appeal was against a decision only.
HELD

That there was a right of appeal only where the Maori Affairs Act 1953 or any other Act expressly conferred such a right. A right of appeal could not be conferred by a form. The only rights of appeal conferred by the Maori Affairs Act are those contained in s. 42 (1), s. 224 (2) and s. 452 (6). The only right of appeal against a decision, as distinct from a final order, was provided by s. 224 (2). That section was contained in Part XIX of the Act and in particular that part which dealt with confirmation of instruments of alienation. The Court held that the definition of "alienation" did not expressly include a resolution of assembled owners that a proposed alienation be agreed to.

Further, the provisions for resolutions of assembled owners and the confirmation thereof were contained in Part XXIII of the Act. The Court cited s. 315, s. 319 (1) and s. 323 (1):

"It will be seen from this that the resolution itself is not an alienation. This Court is clearly of the opinion that a decision to confirm a resolution is not a decision to grant confirmation of an alienation within the meaning of

s. 224 (2).

The appeal was dismissed on the ground that there was no provision in the Act under which an appeal could be brought from a decision to confirm a resolution.

Draicevich for the appellants
Spring for the respondent

Editor's Note

(1) The Appellate Court did not find it necessary to determine whether the decision had been pronounced orally and in open court, or, if it had not been so pronounced, whether the orders of confirmation were therefore invalid.

(2) Strangely, neither the appellant nor the Appellate Court referred to s. 319 (4) which suggests that there is an appeal against an order confirming a resolution to sell.

IN RE PEHITAWA A2A AND TE HAU
(1960) 83 Otorohanga MB 259

Maori Land Court Auckland 11 April 1960
Judge Brook

Partition—combined partition under s. 182—whether consents required—relationship between s. 182 and 194—reparti-tioning under s. 182 and cancellation of partitions under s. 184 compared

Certain owners opposed the redivision of lands under s. 182 arguing that as the redivision involved the cancellation of certain partition orders certain consents as provided for in s. 184 were required.

It was held that the consents were not required.

S. 182 enables substantial title improvements to be effected. It enables the Court to treat several titles as one and then to re-divide the land amongst the owners.

S. 184 is intended to be of limited scope. Under this section the Court does no more than cancel partition orders so as to restore the land to what it was.

Cancellation under s. 182 can only be effected with the consent of the owner in any case where the land in the title sought to be cancelled has been acquired by any alienation. Consent is not required in such a case where a redivision of the land is proposed under s. 184. Although in the course of re-dividing land under s. 184 the Court may cancel old partition orders, the provisions in s. 182 for the cancellation of partition orders only with the consent of an owner in certain cases have no application. The two sections are independent and s. 182 (3) is not to be read as being subject to the provisions of s. 184 (2).

However, although under s. 184 consent was not specifically required in this case, consent or the lack of it was a relevant item for the consideration of the Court in the exercise of its discretion.

The Court specifically noted with regard to s. 182, as distinct s. 184

—the lands involved need not be contiguous

—the titles need not have been created by partition orders. They could also have been constituted, for example, by

a freehold order under s. 161 or a consolidated order under s. 202 (5)

Phillips for the applicants
Dix for the owners objecting

Editor's Note

Other matters considered are not reported owing to subsequent changes to the relevant sections by the Maori Affairs Amendment Act 1967.

IN RE MANGATU 1, 3 AND 4 INC., TE UA v HOOPER AND ORS
(1960) 29 Gisborne ACMB 287

Maori Appellate Court Gisborne 15, 20 May 1960
Chief Judge Morison Judges Prichard Brook
(from decision of Judge N Smith)

Refusal to appoint to committee of management—Court exercising a discretion to appoint independent persons rather than referring back for a further election—factors to be taken into account

The lower Court refused to appoint two elected members to the committee of management of an incorporation but appointed two other persons, who had not been elected, in their stead.

The appellants abandoned their appeal against the refusal to appoint the two elected, but argued that once the Court had determined not to appoint them, it should have called for a fresh election.

The Appellate Court noted that in terms of the legislation the Court could either have called for a new election, or appointed "such other persons as the Court thinks fit in the place of the person so elected". It had a discretion and the question was whether it had properly exercised that discretion.

It was noted

(a) that the Judge was familiar with the protracted litigation over several years regarding this Incorporation.

(b) the past record indicated that for some 10 years differences between two main groups of owners, and struggles for dominance had been the cause of much quarrelling, dissension and litigation.

(c) that both a hapu system of representation and election by majority vote system had been tried but had failed to resolve the dissension, and

(d) that voting had not resulted in much more than proxy wars.

In the circumstances the lower Court had felt it necessary to appoint two persons who were known to be both competent and independent, without tribal links to either faction. It considered the appointment of those two, to stand between the warring factions, necessary for progress. The Appellate Court considered that the lower Court had acted on proper and relevant factors and it could not be said to have wrongly exercised its discretion. The appeals were dismissed.

Burnard for appellant
Thorp for respondent

Editor's Note

The lower Court approach worked. The differences were resolved and "Mangatu" became one of the strongest and wealthiest incorporations in the country.

IN RE RENA BARTLETT DECEASED
(1960) 28 Gisborne ACMB 149

Maori Appellate Court Gisborne 17, 20 May 1960
Chief Judge Morison Judges Prichard Brook
(from decision of Judge N Smith)

Succession—persons entitled to succeed in terms of will—life tenant named but not remaindermen—partial intestacy—s. 135

The testator devised certain interests to five persons in equal shares with a provision "that the first two named shall be life interests only" but without specifying the remaindermen. On a construction of the Will the Appellate Court held that the three other persons named were not the remaindermen but rather that there was an intestacy as to the intests in remainder.

Sheehan for the appellants
Thorp for the respondents

Gillanders-Scott for the executor

IN RE LINDHURST HUNDRED BLOCK 1 SECTIONS 65, 66 AND BECK
(1960) South Island MB

Maori Land Court Christchurch 14 July 1960
Judge Jeune

Court declining to summon a meeting of owners to consider sale to lessee's son where several owners deceased, insufficient addresses and covenants of lease not performed

This case involved remote and neglected land. It was because the land has been unoccupied, neglected and infested with gorse that in 1960 it had been vested in the Maori Trustee to lease. The land had been leased for 21 years with a right of renewal for 21 years. There were no addresses for several owners and a large number of owners were shown as deceased. Shortly after the lease had been executed, the lessee's son applied for a meeting of owners to consider the sale of the land to him. The Court refused to direct a meeting of owners noting—

(a) further addresses would need to be supplied and further successions done before the Court could consider a meeting of owners to resolve upon a sale of the land.

(b) In terms of the lease the lessee was obliged to perform certain things within the first few years of the term including, clearing noxious weeds, fencing and top-dressing. It would be contrary to the interests of the owners to sell until the value had been increased by the enforcement of the lessee's covenants.

IN RE WHANGAWEHI 1B AND ORMOND DECEASED
(1960) Gisborne MB

Maori Land Court Gisborne 21 July 1960
Judge N Smith

Status of land—where Maoris form a company and transfer their shares in Maori land to that company, and the company becomes sole owner, the land ceases to be Maori land.

A number of Maoris who were co-owners in a block formed a company and transferred their shares to that company. The company partitioned out its shares to a separate title. The company later sold the land to one of the shareholders, M. On M's death, succession orders were sought.

HELD

That succession orders could not be granted as the land had ceased to be Maori land when a separate title for it became owned by the company. Although the shareholders may be Maori, a company as such is not a Maori. There is no provision for the land to be converted back to Maori land. Wi Te Ruke v NZ Land Settlement Co (1884) NZLR 387 applied.

IN RE WAIMA D40 AND DISTRICT COMMISSIONER OF WORKS
(1960) Rawene MB

Maori Land Court Whangarei 22 November 1960
Judge Porter

Compulsory acquisition—land taken for quarry—value of metal to be included in assessing compensation—metal valued on a royalty basis

In 1956 the Crown entered upon certain Maori lands and arranged for private contractors to quarry and cart metal therefrom. Some 20,000 yards of metal so quarried were variously used for public roading and sale to private interests. It was not until 1959 that a proclamation taking the land was gazetted.

On an application to fix compensation the Crown argued that no compensation was payable for the metal taken upon the ground that there was no private demand for metal at that time and that there had to be excluded from any compensation figure, any value resulting from the need for metal by the Crown and the local authority.

The Court rejected the argument and held that compensation had to be assessed on the basis of what a willing buyer might pay for the land having regard to any underlying deposits of metal and the possibility of the private sales of metal. In this case there was in fact a private demand. It was further considered that where land has been taken for the purposes of a quarry, the only fair basis on which the metal can be valued is on a royalty basis.

IN RE MATAHINA MD, KAURI TIMBER CO LTD v NGAPUNA TIMBER CO LTD
(1960) 4 Rotorua ACMB 280

Maori Appellate Court Rotorua 20, 24 November 1960

Chief Judge Morison Judges N Smith Porter

(from decision of Judge Prichard)

Confirmation of resolution of assembled owners—Court may review proceedings at meeting of owners—owner giving proxy but attending meeting may vote—competing resolutions to be separately put—whether an ill owner in a car outside the meeting hall is present at the meeting

N and K two independent timber companies, made identical offers to a meeting of owners to acquire the timber on their land. By a narrow majority, in which proxy votes became crucial, a decision was made in favour of K. N opposed confirmation of the timber grant to K submitting that the recording of the proxy votes was wrong. N's submission was upheld. Confirmation was refused but the Court directed a recall of the meeting.

HELD (in separate judgements dismissing the appeal)

(a) That the report of the Recording Officer is prima facie proof that a resolution reported as passed was passed, but such prima facie proof is rebuttable.

(b) That the Maori Land Court has jurisdiction to review the proceedings of a meeting of owners. Tonga Awhikau v Werder and Another [1949] NZGazLawRp 54; (1949) NZLR 590 applied.

(c) That an owner who has given a proxy but who arrives at the meeting during the proceedings is entitled to exercise his personal vote provided that his proxy has not previously exercised the proxy vote.

(d) Competing resolutions should not be put to a straight out vote to be determined according to the resolution polling the highest. The Maori assembled owners regulations require that the resolution lodged first is to be heard first and competing resolutions may be voted upon only if the first fails.

(e) An owner who, due to illness, remains in the car outside the place of meeting, can properly be regarded as being present, and the chairman is in order in going outside the hall to enable him to record his vote (per Morison and Smith but Porter dissenting).

Barry for Ngapuna Timber Co Ltd
Brewster for Kauri Timber Co Ltd

IN RE MAKETU A 102 AND MILNER
(1960) 4 Rotorua ACMB 300

Maori Appellate Court Auckland 24 November 1960
Chief Judge Morison Judges N Smith and Porter
(from decision of Judge Prichard)

Lease by resolution of assembled owners—lease executed by Maori Land Board as agent for owners—lessee entitled to compensation for improvements—claim under s. 251 for appointment of receiver to enforce a charge for compensation owing—application for appointment of receiver filed after six months from expiration of lease

In pursuance of a resolution of assembled owners a lease was executed by the Maori Land Board acting as agent for the Maori owners. The resolution had been confirmed by the Board under the provisions of Part XVIII of the Maori Land Act 1909. At the end of the term of the lease an application was made to the Maori Land Court under s. 251 to appoint a receiver to enforce a charge for compensation payable to the lessee for his improvements. (S. 251 provides for the appointment of a receiver to recover compensation monies due in respect of certain leases effected before 1950)

The appeal was against the decision of the Court dismissing the application.
HELD (Chief Judge Morison and Judge Porter)

That s. 251 Maori Affairs Act 1953 by reference to s. 286 of the Maori Land Act 1931 applies only to lease instruments confirmed by a Board or the Court. It did not apply to a lease executed by the Board as agent for the Maori owners in pursuance of a confirmed resolution. A lease executed by the Board in pursuance of a confirmed resolution did not have the same force and effect as a lease executed by the owners and confirmed by the Board and consequently no change was created by the statute to entitle the lessee to compensation.

Judge Smith (dissenting)

That the lease in question did not come within the provisions of s. 286 of the Maori Land Act 1931. The lease was an alienation by resolution of the assembled owners rather than by a signed instrument and the instrument required to give effect to the alienation could not be executed by the Board until it had first confirmed the resolution. Once the resolution had been confirmed the Board's judicial function became spent and it assumed an administrative function to act as the agent of the owners to give effect to the alienation. The instrument of alienation was effective without any further judicial act of confirmation on the part of the Board. The lease was executed because the resolution from which it obtained its efficacy as an alienation was confirmed.

HELD (by all)

That assuming s. 251 applied in this case the compensation became payable upon the expiration of the lease, and therefore the period of six months within which the lessee is required to make application for the appointment of a receiver was a period of six months from the expiration of the lease. As application was not made within this period, the charge had ceased and was determined by virtue ss. (3) of s. 251.

Burnard for the appellants

IN RE KAKEPUKU 9B3B2B1, TUKAWE v FRASER
(1960) 14 Waikato-Maniapoto ACMB 73

Maori Appellate Court Auckland 24 November 1960

Chief Judge Morison Judges N Smith Jeune

(from decision of Judge Brook)

S. 60—amendment of orders—to be used only to amend slips or errors in order to give effect to Court's decision—not to

be used to amend the decision

Partition—use of s. 60 to amend areas where subsequent survey shows areas incorrect

In 1946 T partitioned his shares in the land for an area of 29 acres 2 r 15.9 p bounded in part by a stream. The balance area awarded to the remaining owners contained by deduction an area of 84 acres which was subsequently sold to the respondent F who, in 1959, sought to survey the partitions. Upon survey it was found impossible to provide the area of 29 acres 2 r 15.9 p within the boundaries defined by the Court as the partition had been based upon a plan that did give a correct location for the stream. Using the Court's description of the boundaries, T would have 23 acres and F 91 acres, and these were the respective areas that they in fact occupied.

In 1960 F applied for fresh partition orders to show his entitlement as 91 acres and T's as 23 acres arguing that the description of boundaries should be followed. T opposed this arguing that the partition was based upon his being entitled to 29 acres 2 r 15.9 p and that the description of boundaries should be amended. The Court found itself unable to make fresh partition orders under s. 184 (as the lessee of T's land would not consent) but, taking the view that the physical division of the land accorded an agreement of owners in 1946 and should therefore be maintained, made an order under s. 60 amending the 1946 orders to show 23 acres as being awarded to T and 92 acres as passing to the residue.

On appeal it was HELD

(a) S. 60 is to be used only to amend slips or errors which are necessary to amend in order to give effect to the intended decision. In each case it must be clear "that the order sought to be corrected does not in fact record the adjudication of the Court". In this case however the Court went beyond the jurisdiction given by s. 60 to amend the decision itself.

(b) In any event, in the Appellate Court's view, the true intention of the Court in 1946 was to award T his exact entitlement of 29 acres 2 r 15.9 p.

The appeal was allowed and the s. 60 was annulled.

Hine for the appellant
Palmer for the respondent

Editor's Note

(1) In 1967, s. 34 (9A) and (9B) were enacted to enable the Court to amend partitions to accord subsequent survey plans "subject to the Court giving notice to such parties as it thinks necessary".

(2) This case illustrates the desirability of orders in partition being made conditional upon survey within a prescribed time.

MAORI TRUSTEE v BJERRING AND OTHERS
(1960) Supreme Court, Auckland A82/60

Supreme Court Auckland 2 December 1960
Turner J

Covenants in lease—lessee's covenant to lay down land in permanent pasture—topographical difficulties—impossibility of performance is no excuse—Supreme Court declining to rewrite contract

As agent for the owners pursuant to s. 239, the Maori Trustee brought an action for damages against a lessee for breach of covenants in a lease. The material clauses in the lease were as follows—

"3. The lessee will at all times during the continuance of the said term cultivate, use and manage in a proper and husbandlike manner all such parts of the land hereby demised as are or shall be broken up or converted into tillage and will not at any time waste or impoverish the said land or any part thereof."

"6. The lessee shall not less than two years before the expiration of the said term lay down the said land in good English grasses and shall leave the said land so laid down so that the said land shall be and remain laid down

in good English grasses during the two years immediately preceding the termination of the said term."

The lease related to an area of 2700 acres. Some 700 acres were ploughed, tilled and converted into permanent grass pasture, 1300 acres were at one time or another surface sown and top-dressed but had gradually reverted into manuka and secondary growth, and 700 acres were ridges and gullies which were not a practical farming proposition. The issue to be decided was the extent of the defendant's obligations as regards the 2,000 acres not left in permanent pasture.

Turner J considered that if he were permitted to construe the lease by contemplating what the original lessor and lessee had agreed to, it was clear they would never have entered into a contract obliging the lessee to lay down in grass every acre of the demised land. They would have agreed that the obligations of the lessee to grass should have been limited by sound agricultural practice. However the Courts could not rewrite the contracts of parties as they ought to have been drawn or even as the parties might have agreed one with the other. Elliot v Crutchley [1905] UKLawRpAC 60; (1906) AC 7 and May v Latilla [1937] 3 ALL ER 759 cited. In this case the lease stated in plain words, with or without due consideration of the topographical difficulties, that "the said land" should be laid down in grass. Turner J. said he could not construe this as "so much as a reasonable farmer would lay down." To do so would be to rewrite the contract of the parties.

The Court also rejected a submission that as the performance of the covenant was an impossibility, the covenant in the relevant clause was void.

It was held that a person who promises a thing is bound by his promise and must either perform it or pay damages for non-performance. That performance is impossible is no excuse. Woodfall on landlord and tenant 21 edn 589 and a passage in 3 Hallsbury's Laws of England Vol 8 page 178 were cited.

The measure of damages was assessed as the difference between the value of the land as handed back to the lessor and the value it would have had if it had, by some means or other, proved capable of being laid down and maintained in good English grasses for the two years before the expiry of the term.

Tompkins, Wake and Paterson for the plaintiff Boughton and Grant for the defendants.

IN RE PROPRIETORS OF TAHORA 2C1 INCORPORATED
(1961) Wairoa MB

Maori Land Court Gisborne 28 February 1961 Judge N Smith

Incorporations—an election not conducted in accordance with the law is invalid and the Court may appoint persons to fill the consequential vacancies—Court declining to appoint those purportedly elected following extensive "proxy gathering" and reinstating the former committee of management

Where an election of members of a committee of management of an incorporation has not been conducted in accord‑ance with the law (in this case a poll had been conducted although it had not been properly and lawfully demanded) the election is invalid and there has been a default in the election of the committee. Where there has been default the Court may appoint persons to fill any consequential vacancies and it is not bound to appoint the persons pur‑portedly elected.

The Court noted with concern that persons retiring by rotation had been "ousted" by proxy votes from the supporters of one group and after "considerable industry" had been shown in collecting them. The persons retiring had been good managers and the Court reinstated them as members of the committee of management.

Woodward for the body corporate

McHugh for those seeking appointment
Gillanders-Scott for those opposing

IN RE RANGIRUMAKI PERENIKI DECEASED
(1961) 77 Hauraki MB 77

Maori Land Court Auckland 25 March 1961
Judge Brook

Costs—as with other Courts the power of the Maori Land Court to award costs in any proceeding is in the absolute and uncontrolled discretion of the Court—costs normally follow the event unless substantial grounds shown

In a contested probate application the Court allowed costs against the estate in favour of those unsuccessfully con‑testing the grant. Subsequently the same objectors opposed the making of vesting orders pursuant to the will, although on different grounds from those raised earlier. They were again unsuccessful but on this occasion the administrator of the estate sought costs against the objectors.

HELD

(a) The Court has an absolute and uncontrolled discretion in awarding costs. Voyce v Lawrie [1952] NZGazLawRp 121; [1952] NZLR 984 cited.

(b) However, costs generally follow the event unless it would be more fair that some exception be made to the general rule Cates v Glass [1920] NZLR 37 cited.

(c) A recognised exception related to contested Probate cases Kerr v Keddie [1892] NZLR 558.

(d) But this case related to the making of vesting orders in terms of a will and there were no substantial grounds for defeating the "reasonable expectation" of the applicant for vesting orders that costs would follow the event.

An award of costs was made against the unsuccessful objectors.

IN RE TE TH (MANGONUI) C2A, MINISTER OF WORKS vAPERAHAMA
(1961) 1 Tokerau ACMB 106

Maori Appellate Court Gisborne 8, 9 November, 21 December 1960, 27 March 1961

Chief Judge Morison Judges Prichard Brook

(from decision of Judge Porter)

Acquisition of Maori land by Crown

Exchange of land with Crown where Crown seeks land for a public work—method of effecting

Jurisdiction—Maori Land Court cannot be given additional jurisdiction b.) consent

The Education Department required land for a school. The Ministry of Works as agent for the Department entered into an agreement with a Maori owner whereby his land would be taken by proclamation under the Public Works Act 1928 in exchange for certain Crown land. Both pieces of land were of equal unimproved value ($200), but as the Crown land included a house and other improvements, A was to pay $1600 by way of equality of exchange. The agreement was expressed to be "subject to confirmation by the Maori Land Court".

Upon an application to assess the compensation payable for the land taken, the Court treated the transactions as one of exchange. In its view however, the value of the house and improvements was $950, with the result that only $950 was payable for equality of exchange. The Ministry of Works appealed against that determination.

The Maori Appellate Court noted that even although the agreement was made subject to confirmation by the Court, by virtue of s. 212 an alienation of Maori land to the Crown did not require confirmation. The Court had only such jurisdiction as was given to it by statute and the parties could not by agreement extend that jurisdiction. It considered that the Maori owner would have been misled into thinking that they would have the protection of the Court upon confirmation, and that the adequacy of the consideration would be reviewed by the Court.

For the Crown it was contended that the agreement was entered into in accordance with the Crown's usual practice which included provision for the Court's confirmation. It was added, "The Department has, however, acted through‑out on the basis that the amount payable by A would be that specified in the agreement and it was never contemplated by it that the Crown should be obliged to accept from him anything less than this amount".

In its decision, the Appellate Court harshly criticised this practice and considered that it should be discontinued.

"If in fact the officers of the Ministry of Works at no time contemplated that the Crown should be obliged to accept from the Maori owner anything less than the amount specified in the agreement . . . then it was not proper that the Maori owner should have been invited to sign an agreement containing words which could have to him one meaning only—that he could rely upon the agreement being considered by the Maori Land Court and binding him only if approved by that Court in toto, or, with the bargain it embodied as reviewed and amended by that Court".

The Court however had no alternative but to find that the orders purported to be made by the lower Court were made without jurisdiction and those orders were annulled. It then went on to settle the compensation for the taking in terms of the Public Works Act and considered that the compensation for the land taken should be increased to $240, plus a sum to cover interest at 10% per annum from the date of the lower Court order to the date of the substituted order.

Haughey for appellant
Shepherd for respondent

Editors's Note

(1) S. 212 has now been repealed and alienations of Maori land to the Crown require the Court's confirmation, (unless the land is taken under the Public Works Act).

(2) Where Maori land is required for a public work and an exchange is proposed, it seems preferable that the matter be completed by application for exchange orders rather than by separate transfers. For one thing, land transferred to the Maori owners does not become Maori land.

IN RE WAIRAU NORTH 2C, TUORO v AMBLER BROS LIMITED
(1961) 1 Tokerau ACMB 125

Maori Appellate Court Whangarei 18, 19 April 1961

Chief Judge Prichard Judge O'Malley

(from decision of Judge Gillanders-Scott)

Appeal—appellant not represented by counsel in lower Court—failed to raise all objections or seek other relief available to her—request for rehearing declined

The appellant who had opposed confirmation of a resolution to sell, contended upon appeal that there ought to be a rehearing upon the grounds that she had not been represented by counsel, and had she been, she would have raised further grounds of possible objection and would have sought partition. The Appellate Court refused a rehearing noting—

"If the Court held that a rehearing should be granted in such circumstances, it would be giving an objector in such a case, a right to a second hearing because he had neglected to take prudent and proper steps at the original hearing."

It added—

"(The Appellate Court) does not agree that where a Maori objector appears in the Court without representation, the Court should act as if it were counsel for such an objector. Such an attitude would, in our opinion, be improper and a departure from the attitude of impartiality and freedom from bias which a Court should have."

Clarke for the appellant
Spring for the respondent

Editor's Note

S. 58, whereby a barrister, solicitor or agent can appear only with leave of the Court was not referred to. This section has sometimes been regarded as indicating that the Court is a People's Court where litigants need not appear with counsel (or be confronted by counsel). Where Maori people appear without counsel, are they entitled to special assistance from the Court?

IN RE TAUPO CENTRAL INC. AND WILLIAMS
(1961) 4 Rotorua ACMB 347

Maori Appellate Court Rotorua 20, 22 June 1961

Chief Judge Jeune Judge Brook

(From decision of Judge Prichard)

S. 438 order made of Court's own motion—notice and application of principles of natural justice—notice not a prerequisite—sufficient that Court's intentions clear and parties given an adequate opportunity to respond

Appeals—amendments thereto—curing of "defects" under s. 59 does not extend to enable the substitution of further appeals against further orders

Following its annual general meeting the incorporation sought the appointment of newly elected members to the committee of management. In the course of hearing that application the Court noted that full accounts had not been filed and from such accounts as were on record, serious management deficiencies were apparent. In protracted hear‑ings the Court required the filing of further particulars and reports and arranged for an investigation into the incor‑poration's affairs. It expressed dissatisfaction with the state of affairs and doubts as to the competence of certain members. Certain owners sought the winding up of the incorporation and the substitution of a trust.

The Court refused the appointments sought and of its own motion made orders winding up the incorporation and appointing the Maori Trustee under s. 438 to administer the lands and assets.

The appeal herein was lodged against the s. 438 order only. At the commencement of the appeal hearing the appellant sought an amendment to the proceedings under s. 49 to include in the appeal the orders for winding up. He further argued that the s. 438 orders were made without proper notice to owners and those affected and had therefore been made contrary to natural justice.

HELD

(a) The winding up orders could not be included in the appeal. S. 59 enabled the rectification of "defects of errors" in proceedings but "defects or errors" does not include "omissions" to enable substantially enlarged proceedings to be added.

(b) There had been no denial of natural justice in making the s. 438 orders. In the protracted proceedings the Court had clearly indicated its intention to investigate the state of the incorporation and indicated the prospect that it might be necessary to substitute trustees for the management of the incorporation's assets. It had allowed the parties an adequate opportunity to present submissions thereon. Although it did not specifically direct notice to owners of its proposal to appoint a trustee, there is no requirement that such notice be given. It was sufficient that no meritorious objection was raised in the course of the proceedings.

(c) The Court may appoint trustees even although this is contrary to the "wishes" of certain owners. The "wishes" of owners is not the same as a "meritorious objection."

Horsley for the appellant

Patterson for Maori Trustee (appearing amicus curiae)

Editor's Note

S. 438 provided at that time that an order thereunder shall not be made "if it appears to the Court that there is on the part of the beneficial owners, or any of them, a meritorious objection to the making of the order".

This was amended in 1967 to provide that the Court be satisfied "that the owners of the land have, as far as practicable, be given reasonable opportunity to express their opinion as to the person or persons to be appointed a trustee or trustees".

IN RE MAUNGATAUTARI 6B3C7B, PAKEHO v POIHAKENA
(1961) 14 Auckland ACMB 84

Maori Appellate Court Auckland 29 June 1961 Chief Judge Prichard Judges N Smith Sheehan (from decision of Judge Brook)

Confirmation of sale—survey showing neighbour's improvements included in sale—Court should not have confirmed with‑out hearing neighbour on repartitioning prior to confirmation of the sale—a stranger to the transaction may be heard

Cancellation of Partition Orders—Court may review partition orders and cancel them or repartition the land although appeal period has expired

The land was partitioned into two parts in 1933, one for R P and one for T P. Despite the partition, fences were erected on other than the boundary line and for 27 years R P and T P continued in occupation according to their own conveniences and with little regard for actual boundaries. R P sold his block. A survey showed that substantial improvements effected by T P would be included in the sale. T P opposed confirmation of the sale and sought the cancellation of the 1933 partition and a repartitioning of the land. The Court declined to deal with the partition ahead of the sale and confirmed the sale.

On appeal by T P it was HELD

(a) The Court should have heard the cancellation repartition proposals first. To hear it later would be "to import into the cancellation proceedings a third party for value".

(b) The object of the provisions for cancellation of partitions "is to enable the Court to review any partition although the time for appeal has gone by if any circumstances arise which would in its opinion justify such a course. Innumerable partitions have been so reviewed even though made by agreement in the first instance. The main points to be considered are whether the partition is an equitable one and if not can it be varied without prejudice to rights acquired under the partition by third parties." A Maori Appellate Court case recorded at (1930) 10 Whanganui ACMB 516 was cited with approval.

(c) A stranger may oppose confirmation. In re Whangawehi 1B3D3 (1953) 73 Gisborne MB 392 cited. A rehearing was directed.

Orr for the appellant

Davison for the respondent

IN RE AWARUA 2C13J3, IWIKAU AND CHASE v SHEPHERD
(1961) 12 Whanganui ACMB 82

Maori Appellate Court Wanganui 11, 13 July 1961

Chief Judge Prichard Judges Jeune Brook

(from decision of Judge O'Malley)

Partition sought by dissentients to a resolution to lease—Court refusing partition—matters that may be brought into account

A majority of owners resolved in favour of a lease. Certain dissentients sought to partition their shares. The Court refused partition orders and confirmed the resolution. The Court noted that the configuration of the land made partition difficult, that the block was not economic and partition would make its effective use even more difficult, that the applicants for partition sought house sites but it was unlikely that housing loans would be approved for this area, and that the costs of survey and fencing would be disproportionate to the values of the areas awarded on partition.

On appeal the Appellate Court held that none of the matters considered by the lower court were matters that it ought not to have taken into account and dismissed the appeal.

Jack for the appellants

O'Connor for the respondent

IN RE AWARUA 3D34B McCARTHY v COLLERTON
(1961) 12 Whanganui ACMB 75

Maori Appellate Court Wanganui 13 July 1961 Chief Judge Prichard Judges Jeune and Brook (from decision of Judge O'Malley)

Appeals—person "adversely affected" and therefore able to appeal need not be a party or a person directly bound by the order—s. 42 (2)

Confirmation of lease for 20 years by aged owner—lease opposed by owner's daughter

The land was solely owned by N an aged person in respect of whom a trustee insurance company had been appointed as trustee. Prior to the appointment of the trustee certain other lands owned by N had been leased to her son, but he had neglected to pay rent.

A lease of the land was proposed by the trustee for a term of 20 years. The lease was opposed by the appellant, one of eight of N's children, who intended that her son would occupy the land in about five years. Confirmation was opposed on the grounds that the long term lease would prejudice the appellant especially having regard to N's age and would amount to the "deprivation of Maoris of the use of Maori land".

(a) The appellant was a person entitled to appeal as a person "materially affected" in terms of s. 42 (2). A person "materially affected" by an order includes not only parties to the proceedings and persons bound by the order, but persons "affected by the order and affected more than the world at large would be affected thereby".

(b) However, the appellant did not have a defined interest but only a prospect of succeeding. The deprivation of Maoris of the use of Maori land was not one of the matters the Court was required to take into consideration in this case. It was the interests of the Maori owner alienating the land that the Court had to consider and here the lease provided the owner with the money she had lacked in the past. A lease at this stage of her life was justified.

Brodie for the appellant
Jack for the respondent

Editor's Note

But refer In re Hereheretau B7G1A (1963) 28 Gisborne ACMB 256 which is summarised later. Where the children have a legal estate vested in remainder, the position may be different.

IN RE THE PROPRIETORS OF ANAURA INC
(1961) Gisborne MB

Maori Land Court Gisborne 25 August 1961
Judge Sheehan

Incorporations—election and appointment of members—court may over-rule a declaration of the result of a poll which was erroneous through miscalculation of shares—method of electing members

In this case the court reviewed the conduct of an election of members to a committee of management of an incorporation.

It appears that there were certain irregularities but that as these irregularities did not affect the result the meeting was still valid. In particular, the chairman had wrongly called for a vote by show of hands or by poll. There is no provision for a show of hands in the regulations. The election must be in writing, either on a one person one vote basis or, if a poll is demanded, by a vote according to shareholding. A poll had been demanded however and voting had been in accordance with shareholding.

However, the scrutineers had not correctly counted the votes and the wrong persons had been declared elected. The court considered that it was not bound by the chairman's declaration as to the persons elected. The votes had been retained and after reviewing them it was clear who had in fact been elected. Accordingly, the court appointed the persons in fact elected.

Gillanders-Scott for the Body Corporate

NGAMOE A 1B2B, RANGI AND ANOR
(1961) Gisborne MB

Maori Land Court Gisborne 1 September 1961
Judge Sheehan

Confirmation of instruments—although confirmation is evidenced by a Certificate of Confirmation on an instrument of alienation, and that certificate does not issue until all conditions have been satisfied, the certificate relates back to the date that the order was pronounced in any case where the conditions are conditions subsequent, and accordingly, the time for bringing an application for rehearing runs from the pronouncement of the order and not from the date on which the certificate is executed

Rehearing—the time for applying for rehearing of an application for confirmation of an instrument of alienation runs from the date the order is pronounced and not from the date on which the Certificate of Confirmation is executed

R and W executed a transfer of their land to W Limited. The transfer was confirmed by the Court on 29 May 1961 subject to the consideration being increased to a certain figure. Payment of the total amount was made on 28 June 1961. A Certificate of Confirmation was endorsed on the instrument and executed by the Judge on 7 July 1961. On 19 July R and W applied for a rehearing claiming that they wished to oppose confirmation as they had not fully understood the nature of the transaction. It was argued that in the case of an instrument of alienation, confirmation is effected by the sealing of a Certificate of Confirmation and accordingly the 14 day period in which to apply for rehearing did not begin to run until 19 July.

A Certificate of Confirmation, although not given until all conditions have been satisfied, relates back to the date on which the order for confirmation was minuted where, as in this case, the condition was a condition subsequent. A rehearing was accordingly refused.

The Court considered

In re Maungarangi B3A, 4 Rotorua ACMB 300

In re Harawira XVII GLR 1452 (re Confirmation Certificates)

Harris v McGregor XIV GLR 761 (re Minute indicating an intention to confirm)

Hannan v Ikaroa District Maori Land Board XV GLR 378

In re Harrison's Settlement [1955] 1 A11 ER 185 (re Cancellation of confirmation)

Browne v Moody [1963] 2 A 1 1 ER 1695 (re contingent orders)

Risca Coal & Iron Company (1862) 31 LFCH 429 (re commencement of orders)

Egan for the applicants

Gillanders-Scott and Barber to oppose

IN RE TAUNGAURE, SWINTON v BARKER
(1961) 4 Rotorua ACMB 377

Maori Appellate Court Rotorua 28 September 1961

Judges N Smith Jeune and Davis

(from decision of Chief Judge Prichard)

Confirmation of lease—Whether confirmation should be given to a new lessee when the land is occupied by a tenant continuing in possession and paying rent after expiry of his lease and where that tenant is also a mortgagee and has effected improvements.

Undue aggregation—who may be heard thereon—Section 227.

The land herein was solely owned. A lease to the appellant expired in 1944 after he had failed to exercise a right of renewal. The appellant sought confirmation of a new lease, but, after a case had been stated to the Supreme Court, confirmation was refused. The appellant remained in occupation however. Rent was paid to and accepted by the Maori Trustee, the latest payment being made in September 1961 for rent to February 1962. Meanwhile a lease to another person had been confirmed by the Court to commence on 1 April 1961. This appeal was against the con‑firmation of that lease.

Counsel for the appellant relied on two grounds, that in equity the appellant should be allowed to continue in occupation until 1965, and that undue aggregation would result if the land was leased to a person other than the appellant.

The appellant claimed that an equity was created in his favour which entitled him to remain in occupation until 1965 because rent paid by him to the Maori Trustee was made for the purpose of repayment of a mortgage given by the owner to the appellant in respect of a loan to the owner's son in 1959 and because the appellant had effected improvements on the land.

HELD

(a) That the appellant had not established sufficient equities to make the confirmation of the alienation contrary to equity and good faith. The Court considered it undesirable to have the land in the occupation of one who could not be compelled by covenants in a lease to farm in a husbandlike manner or maintain the improvements as they should be.

(b) That the appellant was unable to oppose an application upon the ground of undue aggregation. That was a matter for the Court to assess in deciding whether or not it would oppose a transaction. However, notwithstanding the fact that the Crown (and not any party or stranger) could appeal on such a ground, the Court itself had a duty to satisfy itself that undue aggregation would not result—s. 227. The Court weighed up the information that it had before it and was satisfied that undue aggregation would not result.

The appeal against the decision to grant confirmation was dismissed.
Hodgson for the appellant

IN RE OPAWA-RANGITOTO 2B AND FLETCHER TIMBER COMPANY LTD
(1961) Tokaanu MB

Maori Land Court Taumarunui 11 October 1961
Chief Judge Prichard

Timber cutting rights—practice and procedure in Maori Land Court in confirming timber cutting rights

Amendment of orders—the authority to amend orders under s. 60 is an authority to amend orders and records of the Court, but evidence and minutes that are no more than notes of intention rather than orders, do not form part of the formal record and as such are not capable of amendment under s. 60

In 1954 the owners of land resolved to grant timber cutting rights to F Co over all millable timber on the land at a prescribed royalty "or Forest Service Valuation whichever is the higher." On an application for confirmation the Court minuted "to be confirmed subject to appraisal by State Forest Service." A Forest Service appraisal was sub‑sequently completed but the application was not referred back to the Court for the making of a final order. In fact, the Maori Trustee, presuming that a final order had been made, and purporting to act as statutory agent for the owners to implement the resolution, concluded a timber grant with F Co. In terms of that grant, F Co was to pay a prescribed royalty for all timber actually cut.

Subsequently F Co cut from the block considerably more timber than had been assessed in the State Forest Service appraisal. The Maori Trustee claimed a sum equivalent to the royalty value of the over-run. F Co claimed that it was usual practice to fix the amount payable in accordance with the Forest Service appraisal and that any over-run was to the advantage of the company just as it had to bear the loss if an under-run resulted. It claimed that the grant as executed did not reflect that. It claimed further that it was standard practice in the Maori Land Court to confirm resolutions in accordance with a Forest Service appraisal. The minute in this case was not clear and accordingly, F Co applied for an order under s. 60 amending the minute to show that the true intention of the Court was to fix the royalty payable in accordance with the Forest Service appraisal. The Court considered the usual practice with regard to timber cutting rights. It considered that in the Waiariki district the practice was to fix the price by a Forest Service appraisal.

"The price was determined by converting the log measure price in the resolution to board measure price and by then multiplying the number of feet as given by the State Forest Service appraisal by that price. The Court would then see whether the resultant sum was higher than the SFS Valuation . .. The Court would then fix the price at the calculated price (if reasonably higher than the SFS total price) or if it was not then at SFS total price . . . such fixing of price was final and if the miller obtained more timber than shown then it was either the result of his more than average efficient cutting or it was his good fortune while if he obtained less than shown it was his bad luck. As a matter of fact in the cases of under-run investigated by the State Forest Service that Department mostly claimed that there had been inefficient milling and/or trees in difficult places not extracted . . The Court would not adopt any price dependent on mill returns supplied by the grantee as such was operative against the large companies much more than against small unfinancial ones. This is putting the fact mildly. Also the State Forest Service would not (except in the Urewera) police any system of log tallying. The Court's reason for this fixing of a definite total sum was first that the timber industry is a long established one with set methods and that such should not be lightly changed and secondly that any log scaling by other than the State Forest Service is unsat‑isfactory. The State Forest Service itself always sells at appraisal except in the few places where they have an officer who can inspect and check regularly and often."

F Company traded in the Waiariki district and in the Court's view might reasonably have expected that the true intention of the Court was that the price would be fixed by the Forest Service appraisal method. This particular case however related to land in the Aotea district. There was evidence that the Court in Aotea in 1954 adopted a similar practice to that in Waiariki, but the Court was not prepared to presume that that was a standard practice in Aotea. Accordingly it did not consider it could amend the order to clarify the true intention of the Court.

In any event, in this case, there was no final order on record. No order of confirmation had been signed and sealed. The minute itself was not an order and was no more than a note of intention. As such, on the authority of Hami Paihana v Tokerau District Maori Land Board [1955] NZLR 315, the minute, like recorded evidence, was not part of the record of the Court and could not be amended under s. 60.

Dillon for Fletcher Timber Co Ltd

Patterson for the Maori Trustee to oppose

IN RE CARNARVON 387A SECTIONS 1B AND 2B
(1961) Wairarapa MB

Maori Land Court Masterton 25 October 1961
Judge Jeune

Confirmation—until sealed a decision to confirm may be reviewed and amended—condition that lessee pay the first year's rent in advance deleted as a condition precedent to the granting of confirmation

Confirmation and conditions—Court may amend by deleting conditions at any time prior to signing and sealing of a Certificate of Confirmation

The Court confirmed a lease subject to payment of the first year's rent in advance. The lessee had in fact already taken possession, had remained in possession and paid no rent, and had failed to perform certain other covenants of the lease. The owners proposed an action against the lessee but the lessee maintained that as confirmation was conditional only, and as the condition had not been fulfilled by payment of the first year's rent, there was no lease of force or effect on which they could sue.

Certain owners applied for an order under s. 60 to remove the condition.

It was held that confirmation is not completed until a Certificate of Confirmation has been signed and sealed. The Court can review and alter its decision at any time before then—Hanan v Ikaroa District Maori Land Board (SC) 15 GLR 378 relied upon. The Court thereupon deleted the provision that the first years rent be paid as a condition precedent to confirmation being granted.

IN RE MAKETU A4 AND OTHERS AND TAURANGA COUNTY COUNCIL
(1961) Rotorua MB

Maori Land Court Rotorua 3 November 1961
Judge N Smith

Maori roadways and traditional Maori villages—Maori owners wishing to retain under-width roads—road providing additional access to adjacent European subdivision—whether roads should be widened and upgraded

Maketu township, which has existed as a Maori village for some centuries, has particular significance for the Maori people of Te Arawa as it marks the landing spot of the Te Arawa canoe and is the first tribal village of the Te Arawa people in New Zealand. In the creation of freehold titles for the village in 1861, and subsequently on later consol‑idations, care was taken to preserve existing occupancies, existing walkways and access routes, tapu areas, ancient cultivations and places of historic and traditional significance. The result however was that certain of the Maori roadways that were laid off, were very narrow and provided no more than pedestrian access to certain of the homes.

In the 1950's a subdivision for European housing was effected on the hill above the village, access thereto being provided by a full width road along the top of the hill. However, an old and under-width Maori roadway serving the village provided de facto (but not legal) access from the new subdivision to the coastal inlet and township. The alternative access was shorter and more convenient for those living in the new subdivision.

The Maketu Town Committee, comprised principally of residents in the new subdivision area, urged the local county council to widen and upgrade the Maori roadway to enable it to be used as a regular vehicular access for the benefit of all.

The county applied to the Maori Land Court for an order widening the roadway. The application was opposed by the Maori owners of the sections fronting the roadway and by a large number of other Maoris of the village. They objected not only to the taking of additional land to widen the access, but to the change in the character of the village that the upgrading of the road would cause. The narrow and undeveloped nature of the present access restricted the use of cars and the Maori people preferred that restriction and considered the under-width roading to be preferable.

After carefully satisfying itself that traditional and sacred spots would not be affected by the roadway, the Court considered that the Maori owners as well as the general public would benefit by the new road and made the orders as sought, with compensation to those losing land.

The Court noted

(a) that the owners would be unable to partition existing sections along the road to provide house sites for their children unless the road were widened and upgraded; nor would they be able to obtain building permits or housing loans without roading improvements.

(b) "No one likes change or innovation but there must come a time when the circumstances of modern life require, for our own benefit or advantage, that an old order of things shall gradually give way to a new."

Morgan for the Tauranga County Council as applicant

Urqhart for owners in new subdivision in support

Barry for the Arawa Maori Trust Board and others to oppose

Kameta for other owners opposing

Kingi to oppose

IN RE WAIPAHIHI 6D1, TE WHETU AND OTHERS
(1961) Taupo MB

Maori Land Court Rotorua 18 November 1961
Judge N Smith

Life Interests—co-tenants—one co-tenant wishing to transfer her interest while yet securing to the other exclusive use of the whole of the land and the house thereon for her lifetime—how effected—s. 213 order vesting a life interest and transfer of interest in remainder

A and her niece B were the only two owners of the land in this case. A lived in a house on the land. B wished to sell her interest. A and B were agreed that B could sell her interest to C. At a hearing for confirmation of a transfer of B's shares to C however, the parties wished to find some way of ensuring that A would have the exclusive use and occupation of the land and the house for her lifetime. The Court and Counsel for all three parties settled upon an arrangement by consent—

(a) that a vesting order under s. 213 be made vesting in A a life interest in B's shares

(b) that the transfer be amended to a transfer to C of B's interest in remainder. An order pursuant to s. 213 was made accordingly and the Court confirmed an amended transfer.

Russell for all parties

IN RE TIHIOTONGA A AND HUNT
(1961) Rotorua MB

Maori Land Court 16 December 1961
Judge N Smith

Orders—amendment under s. 60—s. 60 cannot be used to amend an order of confirmation so as to determine an issue not considered at the hearing.

The land herein had been leased to the Maori Trustee. The Maori Trustee had failed to fence the land as required by the lease but, on expiry of the lease, had informally advised owners that he would ensure that the fencing was completed.

H sought and obtained a resolution of assembled owners for a lease of the land. The Court confirmed the resolution subject to a condition that the standard form of Maori Affairs lease be used. The standard form of lease provided that the lessee shall fence unfenced boundaries.

It was not until a draft of the lease was being considered that H realised that he would be obliged to fence the unfenced boundary. The period for re-hearing and appeal had then expired. H thereupon sought an order under s. 60 amending the order of confirmation to provide that the lessee be not obliged to fence having regard to the Maoris Trustee's undertaking.

HELD

(a) Although there was some evidence that owners had been advised that the Maori Trustee would arrange the completion of the fencing and that H was aware of that, and that the parties had negotiated on a presumption that that would be done, the issue was not specifically raised on the application for confirmation and accordingly it could not be said that the order of confirmation did other than correctly record the actual adjudication of the Court. S. 60 cannot be used to amend the actual adjudication of the Court and accordingly the application must be declined.

(b) In this particular case the requirement that the standard form of lease be used had not been recorded in the minute of the order of confirmation. That requirement was specifically referred to however in the order as signed and sealed. The order as signed and sealed prevails over the minute however, and the discrepancy in this case could not be relied upon to advance the proposition that the order as sealed did not give effect to the true intention of the Court.

Russell for the applicant

Foresell for the Maori Trustee to oppose

IN RE OHURA SOUTH G4L2B3A3 AND LAKE TIMBER COMPANY LIMITED
(1962) 12 Whanganui ACMB 109

Maori Appellate Court Wanganui 22 February 1962
Chief Judge Prichard Judges Sheehan Gillanders-Scott

(from decision of Judge Davis

Confirmation of sale—price fixed before Special Government Valuation available—Special Government Valuation for greater amount than anticipated—Court confirming at same percentage above Special Government Valuation as original price bore to the Special Government Valuation anticipated

Evidence—Court entitled to rely on its own knowledge of values and sales in an area

The owners agreed to a sale at $2,000 before a Special Government Valuation had been obtained but upon the purchaser's advice that the valuation would be about $1,200. The Special Government Valuation proved to be $1,670. The Court considered that since the owners signed on the understanding that they were to receive $2,000 for a $1,200 valuation they should, when the valuation was $1,670, receive the same proportion above Government Val‑uation, namely $2,800.

On appeal it was argued that the proposed price was excessive as in this area the Court had a practice of confirming at Government Valuation plus 20% (or $2,104 in this case).

The Appellate Court affirmed the lower Court decision. The practice was not in itself evidence that the lower Court was demonstrably wrong. The lower Court had an intimate knowledge of land values in the area, and without clear evidence that the lower Court was wrong in the particular case, the Appellate Court would not upset its findings. The appellant had been prepared to negotiate for a sale before the Government Valuation had been obtained and could not now complain about that.

Fergusson for the appellant

IN RE HAUTU 5B 2B2, R WHATAPUHOU v TRUSTEES ESTATE P WHATAPUHOU
(1962) 12 Whanganui ACMB 107

Maori Appellate Court Wanganui 23 February 1962
Chief Judge Prichard Judges Sheehan Gillanders-Scott
(from decision of Judge Davis)

S. 116—succession on intestacy—whether cheque for dividends from Maori Incorporation is personalty or an interest in land

Included in the deceased's estate was a cheque for dividends from a Maori Incorporation. S. 116 provides that on an intestacy assets other than interests in Maori land shall devolve as though the deceased were a European.

The Appellate Court determined that a dividend cheque from a Maori Incorporation was personalty and not an interest in Maori land. A personalty order (under s. 127) was made to suit.

Bergin for the appellant
Riddett for the respondent

Editor's Note

The power to make personalty orders was repealed in 1967.

ARAWA MAORI TRUST BOARD v COMMISSIONER OF INLAND REVENUE

10 MCD 391

Magistrate's Court Rotorua 3 July 1961, 30 April 1962
Donne SM

Trust Boards—Arawa Maori Trust Board—whether administering a charitable trust—whether a "Maori Authority"—

whether Board's farming income taxable

Charitable purpose of Maori Trust Boards

In this case it was HELD

(a) The trust administered by the Arawa Maori Trust Board is not limited to charitable objects and is therefore not a charitable trust.

(b) In any case the trust is not "beneficial to the community" in the sense which the law bestows upon such a trust the privileged position of a charitable trust, since the beneficiaries are a fluctuating body of private individuals.

(c) The Arawa Maori Trust Board is a Maori Authority within the meaning of s. 158 (1) of the Land and Income Tax Act 1954. The ejusdem generis rule is not to be applied in interpreting that section.

Dillon and Barry for the appellant
Orr for the respondent

Editor's Note

Subsequently, s. 3 of the Maori Trust Boards Amendment Act 1962 was enacted to enable Maori Trust Boards to complete a declaration of trust that they stand possessed of property for charitable purposes (subject to approval by the Commissioner of Inland Revenue.)

It needs to be noted however that like Trust Boards, certain Maori Land Trusts apply the whole of their income for the general welfare and benefit of a Maori whanau, hapu or tribal group. It appears that they would not have the benefit of the charitable tax exemptions.

IN RE THE BED OF THE WANGANUI RIVER
[1962] NZLR 600

Court of Appeal Wellington 10-12 August 1960, 2 March 1962
Gresson P Cleary Turner J J

This summary includes earlier proceedings as follows—Maori Land Court

1938-39 Judge Browne Maori Appellate Court

Decision of 20.12.44 Supreme Court (King v Morison), 26, 27 May 27 September 1949 Hay J [1949] NZGazLawRp 112; [1950] NZLR 247

Royal Commission on Bed of Wanganui River

1950, Sir Harold Johnston Court of Appeal (In re the Bed of the Wanganui River) 6-10, 15 July 1954, Northcroft, Hutchison, Cooke, FB Adams North JJ [1955] NZLR 419

Maori Appellate Court, Rotorua

Decision of 6.6.58 Judges Prichard, N Smith, O'Malley, Jeune and Brook.

As at 1840 the bed of the Wanganui River was Maori customary land held by Maoris under their customs and usages (Maori Land Court 1939, Maori Appellate Court 1944 and Court of Appeal 1955)—in the conversion of Maori customary titles to Maori freehold title, the ownership of a riverbed vests, ad medium filum, in the persons in whom the adjoining block is vested, there being no Maori custom or practice that the ownership of a river can be separate or different from the ownership of the banks of the river (per Court of Appeal 1962, upholding an opinion thereon from the Maori Appellate Court)—accordingly,

(i) On investigating Maori customary land, the Maori Land Court could not vest a riverbed in a tribe as a whole and the adjoining lands in individuals thereof

(ii) Where Maori freehold land adjoins a (non-navigable) river, the riverbed becomes ad medium filum a part of that block and the property of its respective owners

(iii) The ad medium filum rule applies to Maori lands and to title orders of the Maori Land Court—the incidents of titles issued by the Court are the incidents of English freehold titles

(iv) The fact that a whole tribe may have exercised a right of passage over the river and that eel weirs and fishing devices placed by individuals or hapus were not rigidly limited to the portion of the river immediately adjacent to the bank occupied by such individuals or hapus does not negate the application of the ad medium filum rule (per Court of Appeal 1962)

Accordingly also

(i) The bed of the Wanganui River was Maori customary land in 1840, but

(ii) On the issuing of freehold titles for the adjoining riparian lands by the Maori Land Court last century the riverbed became owned by the owners thereof for the parts adjacent to their lands, and

(iii) (per Supreme Court 1949) that part of the river as is capable of being used for navigation is vested in the Crown by virtue of s. 206 of the Coal Mines Act 1925, excepting those lands where the bed has been expressly granted by the Crown in issuing Crown Grants

Treaty of Waitangi—status and interpretation thereof—whether the Treaty gave merely a right to fish without recognising in the Maori people any property in land covered by waters.

Fishing rights and practices—Maori customary practices considered.

Customary land—principles applied and evidence required by the Maori Land Court in investigating title to customary land.

In the proceedings in the Courts, the length of the river in dispute was that portion of the river between the tidal limit at Raorikia and the confluence of the Wanganui and the Whakapapa Rivers above Taumarunui.

In 1927, a petition was presented to the House of Representatives on behalf of Piki Kotuku and others asking for a Commission to enquire into a claim for compensation in the sum of $600,000 for the Maori rights in the Wanganui River and its tributaries.

The petition was referred to the Government for enquiry, and in 1930 provision was made in the Native Purposes Act enabling the Chief Judge of the Maori Land Court to refer the petition to the Maori Land Court for enquiry and report.

The petition was never brought to hearing in the Court. The Maori claimants abandoned the petition in favour of an application to the Maori Land Court for an investigation of the title to the bed of the river. That application was filed by Titi Tihu in 1938.

The application for investigation of title was brought to hearing in 1938-39. It was agreed between counsel for the Maori claimants and counsel for the Crown that the investigation should proceed in stages, the first stage being an ascertainment of the Maori rights at the time of the signing of the Treaty of Waitangi.

In September 1939, the Maori Land Court (Judge Browne) determined that at the time of the signing of the Treaty of Waitangi the bed of the Wanganui River was land held by Maoris under their customs and usages.

The Crown appealed against this decision to the Maori Appellate Court. The appeal was brought to hearing in 1944, and resulted in a judgment to the effect that the Maori Land Court's decision was right. The appeal was dismissed (20 December 1944).

The Maori Land Court then proceeded to the second stage of its inquiry, that is to say, whether or not the bed of the river had remained Maori land. However, the Crown moved in the Supreme Court for Writs of Certiorari and Prohibition to prohibit the Maori Land Court from proceeding any further with the investigation of title upon the grounds

(i) That the Maori customary title to the bed, if it ever existed, had been extinguished by the application of the doctrine of the middle thread, the titles to the riparian lands carrying the title to the bed ad medium filum aquae.

(ii) That the bed was vested in the Crown by virtue of s. 206 of the Coal Mines Act 1925 (re-enacting provisions which originally appeared as s. 14 of the Coal Mines Act Amendment Act 1903)

The Supreme Court decision, given by Hay J on 27 September 1949 is reported as The King v Morison 119501 NZLR 247. It was held that that part of the river as is capable of being used for navigation is vested in the Crown by virtue of s. 206 of the Coal-Mines Act 1925 excepting those cases where the bed has been expressly granted by the Crown.

It is to be noted that it was also considered

(a) that where there are land transfer titles for the lands on a bank of the river, and there is a claim on the part of the Crown that the registered proprietors are presumptively entitled to half the riverbed by virtue of those titles, the matter is one of law and not fact, and should therefore be determined in the Supreme Court and not the Maori Land Court. The question in issue is not an investigation of title by the Maori Land Court in the ordinary sense. Dicta of Edwards J in Tamihana Korokai v Solicitor General (1912) 32 NZLR321, 349 applied, Nireaha Tamaki v Baker (1901) NZPCC 371 and Tamihana Korokai v Solicitor General [1912] NZGazLawRp 230; (1912) 32 NZLR 321 distinguished, Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 referred to.

(b) the doctrine ad medium filum aquae applies to title orders of the Maori Court for lands adjoining non navigable rivers.

(c) the Maori Land Courts jurisdiction to determine whether any land is Maori land or General land is to be read as not conflicting with the Land Transfer Act, and ownership of a riverbed is to be determined in the Supreme Court. (What however is the effect of s. 36 (2) of the Maori Purposes Act 1951 which removed the action herein to the Court of Appeal "as if no judgment had been given"—Ed)

The Maori claimants complained to the Government that an injustice had been inflicted upon them by the provisions in the Coal Mines Act, because it had, in 1903, virtually confiscated their customary title to the bed of the river, without compensation.

Sir Harold Johnston was appointed as a Commission to inquire whether it was established that, but for the provisions of s. 14 of the Coal Mines Act Amendment Act 1903, any Maori or any group or class of Maoris would have been the owner or owners, according to Maori custom and usage, of the relevant length of the Wanganui River; whether it was established that any Maori or any group or class of Maoris had, by reason of the enactment of that section, suffered such loss or deprivation in respect of the relevant length of the Wanganui River as would in equity and good con‑science entitle him or them to compensation; and if so, to recommend what compensation should be paid and for whose benefit and in what manner the amount of such compensation should be appropriated and applied.

The Commission found:—

(a) That the bed of the river would, but for the provisions of s. 14 of the Coal Mines Act Amendment Act 1903, have been owned by the Wanganui Maoris as it was at the time of the signing of the Treaty of Waitangi. It rejected the contention that the customary title, if it ever existed, had been destroyed by any other means, whether by the Harbours Act 1878 or the Wanganui River Trust Act, 1891 or by the application of the ad medium filum rule.

(b) That the Maoris were entitled to compensation for loss of rights in the bed of the river as on a taking in 1903, but they were entitled to compensation on one head only, i.e., for the loss of the bed as a source of gravel supply.

The Commission recommended:—

(a) That, as the evidence before it did not provide the Commission with a sufficiently secure ground for a finding, a Compensation Court should be set up to determine the compensation payable in the usual manner.

(b) That it was essential, if the matter was to be disposed of finally, that before any proceedings to ascertain com‑pensation were started, the Maori owners of the bed of the river at the time of the passing of the 1903 Act, or their successors, should be determined by the Maori Land Court.

The Government considered the report unsatisfactory in a number of respects particularly on the ad medium filum point, and enacted s. 36 of the Maori Purposes Act, 1951 to confer jurisdiction on the Court of Appeal to determine the following questions:

(a) Whether immediately prior to the passing of s. 14 of the Coal Mines Amendment Act 1903, the bed of the Wanganui River was held by Maoris• under their customs and usages, or what (if any) other rights in the riverbed were then possessed by Maoris.

(b) To what Maori or Maoris, hapu, tribe or other group or class of Maoris (if any) did the riverbed or the rights then belong.

The matter came before the Court of Appeal in July 1953 upon a motion filed on behalf of the Crown asking the Court to declare either that immediately prior to the passing of the 1903 Act:—

(a) The bed of the Wanganui River had ever since the time anterior to the date of the Treaty of Waitangi been a main navigable public highway and not land held by the Maoris under their customs and usages.

(b) That any rights possessed by Maoris in respect of the river consisted only of rights of fishing and of ordinary domestic uses of water exercisable in respect of each settlement only by Maoris occupying that settlement, and rights of navigation exercisable in common with all other persons.

(c) That upon the acquisition of British sovereignty over New Zealand, the bed of the river became the property of the Crown subject only to the rights mentioned in the previous sub-paragraph.

or, alternatively, that, immediately prior to the passing of the 1903 Act—

(d) If any part of the bed had ever been land held by Maoris under their customs and usages, then when the title to any riparian block fronting the river had been investigated the bed adjoining that block had become ad medium filum aquae a part of that block and that, where such block had been acquired by or through the Crown, such bed has become the property of the Crown.

(e) If any part of the riverbed had ever been land held by the Maoris under their customs and usages, it had, by the passing of the Wanganui River Trust Act, 1891, been recognised by law as not having been, immediately before the passing of the Act, Maori land the title to which had not been investigated by the Maori Land Court.

On 15 July 1954 the Court of Appeal decided (In re the Bed of the Wanganui River [1955] NZLR 419):

(a) That the first three declarations asked for by the Crown be declined and that it be declared that the bed of the river was, at the time of the Treaty of Waitangi and upon the acquisition of British sovereignty, then held by Maoris, namely, the Wanganui Tribe, under their customs and usages.

(b) As to question (d) above, and by a majority decision, the Court was not prepared to reach any final conclusion on the material which had been placed before it. The Court of Appeal expressed a desire that further facts should be furnished, and suggested the expediency of referring the relevant questions of fact to the Maori Appellate Court for a report.

In accordance with this expression of opinion the Maori Appellate Court was empowered by s. 6 of the Maori Purposes Act 1954, to take evidence on questions submitted to it by the Court of Appeal by way of a case stated. Under these provisions a case was stated by the Court of Appeal to the Maori Appellate Court, the questions going largely to matters of Maori custom and usage and the possible conflict between the application of those customs and usages and of the ad medium filum rule.

In a decision of 6 June 1958 the Maori Appellate Court, in reply to the questions asked, considered (amongst other things) that the ancestral or customary right to a river, was not separate or different from the ownership of the adjoining lands. In effect there was no Maori custom or practice whereby the Court, on investigating titles, might issue a separate title to the river for the tribe as a whole, or leave the river as customary land while issuing titles for the riparian lands. In the result, the ad medium filum principle applied to the riparian titles.

In In re the Bed of the Wanganui River [1962] NZLR 600 the Court of Appeal adopted the opinion of the Maori Appellate Court and held in effect that the titles to the land on the banks of the river carried the title to the bed ex adverso ad medium filum. (For a summary of the findings, refer to the headnote above).

Before Supreme Court 1949, Attorney General, Hon H G R Mason K. C. and Harding for the Crown Spratt for the defendant

Before Court of Appeal 1954, Solicitor General, Evans Q.C. and Haughey for the Crown Spratt and Stone for the Maori claimants

Before Maori Appellate Court 1958, Haw;hey for the Crown

Spratt and Barton for Titi Tihu

Before Court of Appeal 1962, Solicitor General Wild Q.C. and Haughey for the Crown Spratt and Barton for the Maori claimants

Editor's Note

(1) As the judgments of the High Court and Court of Appeal have been reported in the New Zealand Law Reports, they are not fully summarised here.

(2) It followed that the Maori claim for a separate Maori title for the bed of the river could not be pursued further through the Courts (other than by an appeal to the Privy Council, but such an appeal was not taken). Similarly there was no basis on which the tribe as a whole could seek compensation for the "taking" of the riverbed by the Coal Mines Act in 1903. Following the Court of Appeal decision, any claim for compensation would have to be made by the owners of the various riparian blocks, although, special legislation would have been necessary to enable that (as recommended by the Royal Commission in 1950).

(3) Compensation does not appear to have been urged by the various Maori owners. Instead the original applicant in 1938 (Titi Tihu, now 100 years old) continued to urge that a separate title fcr the river be issued for the tribe as a whole. Various petitions were lodged with the Queen, the Governor-General and the Minister of Maori Affairs. Eventually, in 1979, Titi Tihu lodged with the House of Representatives a formal petition seeking that a title issue for the Wanganui River in the names of nine named Wanganui river tribes. The petition stands referred to the Select Committee on Maori Affairs.

(4) Many modern anthropologists might well disagree with the Maori Appellate Court finding, which appears to have been crucial in this case, that as a matter of Maori custom, a major river might be seen as vesting in the whole tribe as distinct the various tribal individuals occupying lands along its banks.

(5) Valuable historical evidence on the Maori use of the Wanganui river is recorded in the 1939 decision of Judge Brown, the 1955 Court of Appeal decision, and in the transcript of the proceedings before the Maori Appellate Court in 1958. The 1958 Maori Appellate Court decision also contains useful commentaries on the principles to be applied and the evidence to be given on claims in respect of Maori Customary land. The Treaty of Waitangi and matters of fishing rights are considered in some detail in the 1955 and 1962 Court of Appeal decisions.

IN RE MARANGAIROA A29 AND MARANGAIROA A31 INC
(1962) 28 Gisborne ACMB 155

Maori Appellate Court Gisborne 10 April 1962
Chief Judge Prichard Judges Brook Davis
(from decision of Judge Sheehan)

Right of appeal—s. 42—whether person is materially affected by final order

Leases—renewal of—owners refusing to execute instrument of renewal—lessee applying to Court for an order under s. 237 directing Maori Trustee to execute renewal as agent of the owners

At the end of the term of his lease, the respondent lessee sought to exercise his right of renewal. The owners refused to renew the lease. The respondent applied to the Maori Land Court pursuant to s. 237 and the Court made an order directing the Maori Trustee to execute a renewal of the lease as if he were the duly appointed agent of the owners.

The appellants, the incorporated owners of adjoining land, appealed against the Court order. They claimed that contrary to certain covenants in the lease there was scrub on the respondent's land which, if it spread into their land, would create a problem. Further, there was a charge against the lease in favour of the appellants for certain costs in respect of boundary fencing and leave to call evidence thereon was sought.

It was also alleged that the respondent had not complied with all the covenants of the lease and that the right of renewal was conditional on observing all such covenants.

Counsel for the respondent submitted that the order appealed from was not a final order from which an appeal under s. 42 (1) could properly lie. He argued that s. 237 was merely a machinery provision, a means by which a lessee could

get renewal of a lease. If the Court refused the order there were still other ways in which he could get a renewal and therefore the rights of the parties were not finally disposed of. It was also argued that the appellant incorporation was not a person "materially affected" by the order.

HELD

(a) That the test of whether an order is a final order was expressed by Lord Alverston CJ in Bozon v Altrincham District Council [1903] UKLawRpKQB 44; [1903] 1 KB 547 as

"Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order".

The Court considered that the present order under s. 237 did finally dispose of the particular rights of the parties which were under consideration by the lower Court, by directing the Maori Trustee to sign a renewal of the lease. It was therefore a final order from which an appeal could properly lie under s. 42 (1).

(b) That the appellant incorporation was a person "materially affected" by the fact that payment of the boundary fencing required a charging order and payment by instalments from the respondent, and on this account the incorporation was entitled to appeal.

(c) That the appellant's duty was to lodge, prior to the hearing, an application to call further evidence with details of the evidence to be adduced so that the respondent could be given time to call rebutting evidence. This had not been done and leave to call further evidence was accordingly refused.

(h) That the respondent had not complied with para 6 of r 99 which required him to serve a copy of his application under s. 237 on the appellant, being a person holding a charge order over the interest of the lessee.

(e) The Court considered that in all the circumstances the proper course was to refer the application to the lower Court for a re-hearing. At that hearing the respodent would be required to adduce independent evidence of compliance with the covenants of the lease. The Court made an order under s. 45 (1) (e) directing a re-hearing of the original application.

Kohn for appellant
Egans for respondent

Editor's Note

S 21 of the Maori Affairs Amendment Act 1962 subsequently amended the original s. 237. Now, a lessee who claims that he is entitled to a renewal may apply directly to the Maori Trustee to execute an instrument of renewal. Any decision of the Maori Trustee under s. 237 is final and binding on all persons concerned and cannot be called in question in any Court.

IN RE HAMUERA NGARIMU DECEASED
(1958) 28 Gisborne ACMB 32

AND

IN RE MOANANUI NGARIMU DECEASED
(1962) 28 Gisborne ACMB 226

Maori Appellate Court Girborne 18 September 1958
Chief Judge Morison Judges O'Malley Brook

(from decision of Judge N Smith

Maori Appellate Court Gisborne 11, 12, 13, 19 April 1962

Chief Judge Prichard, Judges Brook Davis
(from decision of Judge N Smith)

Appeals—appeal from determination under s. 135—lower Court determining that a child whose paternity was in dispute was a person entitled to succeed but not determining the other persons entitled to succeed—not a final determination or final order to support an appeal under s. 42 (Hamuera Ngarimu)

Successions—in completing successions the Court must determine the whole of those entitled to succeed and not merely one or some only of those entitled—a determination that a child of disputed paternity is a child and therefore entitled to succeed is not a final determination for the purposes of s. 135 and the Court must go on to determine the total successors (Hamuera Ngarimu)

Successions—the Court does not recognise any alleged Maori custom that recognition of a child by a putative father or grandfather is determinative of paternity, or, that paternity may be established by a grandfather acknowledging a child as his grandchild and by the acceptance of that acknowledgement by the people of the tribe generally—the ordinary rules of evidence apply to Maori people in disputed paternity cases where succession to land is involved (Moananui Ngarimu)

By Will, H left the whole of his estate to be divided equally between all his children, with substitution of issue for those of his children predeceasing him. M, a son of the deceased, was killed in action in military service before his father's death. It was claimed that T was the son of M and was therefore entitled as a beneficiary under the Will.

The lower Court found as a fact that T was the son of M and under s. 135 determined that T was one of those entitled to share in the testator's estate in terms of the Will. The widow and one of the testator's children appealed against that order seeking to have the finding of paternity overruled.

In 1958 the Appellate Court held that it did not have jurisdiction to hear the appeal. It considered that an order under s. 135, in respect of any piece of Maori land, must determine all the persons legally entitled to succeed and must define the shares or interests of each person. The finding by the lower Court that T was a person entitled to share in the estate was one step in the determination of the persons entitled to succeed and insofar as it constituted a determination within the definition of "order" in s. 2, it was not, in the Court's opinion, a final order. By s. 42 Appellate Court was empowered to hear and determine appeals from any final order of the lower Court, and as the determination under consideration was not a final order the Court found that it was unable to give a decision on the question in issue.

The matter went back to the Maori Land Court. In 1961, the Court determined the total number of those entitled to succeed, and in reliance upon its earlier finding that T was the son of M, it included T as a successor for a defined share. The result was that there was now a final order from which an appeal could be brought, and an appeal disputing that T was the son of M was duly brought and heard.

In the lower Court there was evidence to show that while M was overseas at the time of T's birth and may have been unaware of T's birth before his death, H was aware of T's birth, publicly acknowledged T as his grandchild, and that the members of the tribe generally accepted H's acknowledgement.

It was held that the lower Court's finding that T was the son of M could not be sustained on the evidence.

(a) As to the evidence to support a finding on paternity

(i) The lower Court had the advantage of seeing and hearing the witnesses and had recorded its impressions of some of them and the truth of what they said. However, while paying due regard to the views expressed, the Appellate Court was entitled to form its own conclusions as to the correct inferences to be drawn from the evidence.

(ii) The Appellate Court referred to In re Ueroa Ngarangi 10 Whangarei ACMB 437 in which it was stated:

"From time immemorial it had been considered unsafe to depend upon general talk or even suspicion in finding parentage and even the mother's evidence, except in the case of a recognised marriage will not in most cases be accepted without some corroboration".

(iii) It referred also to s. 10 of the Destitute Persons Act 1910 which provided that no person is to be adjudged the father of a child upon the evidence of the mother unless her evidence is corroborated in some material particular. There was no sufficient corroboration in this case, and the appeal succeeded on the ground that the lower Court's finding was against the weight of evidence.

(b) As to the evidence of Maori custom to support a finding on paternity

(i) The Appellate Court considered whether there was a Maori custom which determined the question of paternity and which overrode all standards of proof. The custom relied upon by the respondent was essentially that a father had a right to acknowledge or otherwise repudiate a child as his own offspring and that no rules could nullify such an acknowledgement.

The appellants challenged that there was a custom as between father and child in disputed paternity or alter‑natively, if there was such a custom, challenged that it could extend to the situation of a grandfather and grandson. M was overseas at the time T was born and as far as the Court could ascertain was unaware of the birth before his death. H, on the other hand, had publicly acknowledged the child to be his grandson and had treated him as such.

The Court held that there was no custom at the present day which was determinative, notwithstanding what the true parentage of the child might be, and that the ordinary rules of evidence applied in disputed paternity cases.

(ii) Counsel for the respondent argued that there was also a custom whereby the tribe could ratify the recognition by a grandfather that a child was his grandson.

The Court knew of no prior case where a grandfather had in a disputed paternity case successfully placed a child in the position of being the offspring of a deceased son. It pointed out the danger of such a custom if it meant that irrespective of whether T was the son of M or not, H the grandfather could make him a son for the purposes of successions.

1958—

Burnard and Kohn for the appellants

Gillanders Scott for the respondent

1962—

Kohn and Thorp for the appellants

Cull for the respondent

IN RE RANGATIRA 8A AND TAYLOR
(1962) Taupo MB

Maori Land Court Taupo 9 May 1962
Chief Judge Prichard

Maori roadways—the Court is not bound to cancel a Maori roadway upon evidence that there is now alternative access if the roadway serves some other useful purpose—if a roadway is so cancelled the Court is not bound to vest the land in the adjoining section owners

A large block of Maori land had for its eastern boundary the Waikato River at a point where it left Lake Taupo. In 1911, the court subdivided a part of the land for the Maori owners and provided access to the sections by a 15 link right-of-way along the river. The right-of-way was used not only as an access road, but as a place from which the several section owners could have access to the river, and as a landing place for the owners' boats, boats providing the most practicable means of transport at that time to the township of Taupo on the opposite bank of the river.

Subsequently, the owners sold three adjoining sections at the northern end of the subdivision to members of the T family.

In 1955 the unsold sections were included in a new Court subdivision of the balance lands to the west. Nternative access was provided under the new scheme. Accordingly those parts of the old 1911 right-of-way as fronted the unsold sections were cancelled and brought into the new subdivision to provide a river frontage for certain of the new sections. At the same time the balance lands to the north were subdivided and a new roadway put in to provide access to the new sections. The new roadway also provided access to the northern boundary of the first section owned by the T family and linked to the old 1911 right-of-way to provide access to the remaining two sections. The new roads were then made public roads. The land for the new roadways was provided by the Maori owners and they also met all costs of formation.

In 1962 the T family applied to cancel the old right-of-way opposite their sections and to have that land vested in their adjoining properties to the intent that each section would now run to the river, upon the ground that the combined titles now had access from the northern road. The county opposed this on the ground that while it was no longer necessary to have access to the river in order to reach the town, the old right-of-way provided access for the public and the section owners to the river for general recreational purposes.

In the 1953 Maori Affairs Act, a right-of-way laid off under any earlier provisions of preceeding Acts is deemed to be a Maori roadway.

HELD

(a) The Court is not bound to cancel a Maori roadway under s. 423 upon evidence that the roadway is no longer required for access. It was legitimate to say that the roadway serves some other useful purpose, and in this case, the roadway provided river access to the owners of the nearby Maori sections.

(b) If the roadway were to be cancelled the Court was not bound to vest it in the adjoining section owners. It could for example vest it as a reserve for the benefit of all, and that seemed to be an appropriate course in this case. In addition, the T family had not contributed in any way to the roading costs and would now be receiving, without payment, an area of land that would add substantially to the value of their titles.

(c) However, in 1955 the Court had closed parts of the roadway and vested those parts in the Maori owners where they adjoined Maori land and although, in the court's view, the Court ought not to have done that in 1955 but ought to have retained a river frontage area for the benefit of the owners as a whole, it would now be unreasonable to refuse to do for the European owners in 1962, that which the Court had done for the Maori owners in 1955.

Accordingly the Court closed and vested the road in the T family's adjoining sections, but made that order conditional upon them first paying a sum fixed by the Court as a contribution to roading costs borne by the owners in 1955.

Palmer for Taylor family

Brewster for Taupo County Council

IN RE WEST COAST SETTLEMENT RESERVES AND ERIWATA
(1962) Taranaki MB

Maori Land Court Wanganui 11 May 1962
Judge Davis

Transfer of individual interests pursuant to s. 213—a "whangai" not legally adopted is not entitled to take

Until 1960, interests in Maori Reserved Land, which includes the West Coast Settlement Reserves, could not be disposed of by will or any other means, but passed on death to the successors in accordance with Maori custom. The law was amended in 1960 to enable the disposition of interests by will, or by vesting order under s. 213, provided the transferee was a person who would have been entitled on an intestacy.

In this case it was proposed to transfer interests in certain West Coast Settlement Reserve Lands to a whangai or a child who has been only informally adopted.

It was held in this case, (determined in 1962), that an informally adopted child was not a "child" for the purposes of this section and an order was refused.

Since 1962 the provisions affecting the disposition of interests in both Maori Reserved Land and Maori land have been substantially amended, but as at 1983, the provision in respect of both lands is that interests can be disposed of only to a limited class of persons, including "a child or remoter issue." It appears that this case is still good authority for the proposition that a "child" does not include a whangai.

M C Smith for applicant

IN RE WHANGAROA B20B, MAITAI AND HINAKI (1962) 3 Tolaga Bay MB

Maori Land Court Gisborne 25 May 1962
Chief Judge Prichard

Transfer of individual interests pursuant to s. 213—Court may decline a transfer under s. 213 where the transferee, while a member of the kin group, is a person who earlier partitioned out, especially where other owners object to the transfer

M agreed to sell her shares in an incorporation to H. The chairman of the incorporation and numerous owners objected. The Court, after noting that it had a discretion under s. 213, upheld as valid an objection to H being able to acquire the shares upon the ground that the H family had two years earlier partitioned out their very substantial interests in the block, to some detriment to the farming of the balance of the land. They had thereby severed their interest in the land from the balance owners and should not now be allowed back in.

Editor's Note

Since this case was decided in 1962 the law has been substantially altered and transfers of shares in an incorporation are no longer effected by a s. 213 vesting order of the Court. The case is important however. Under the law as it now stands it is provided, in effect, that individual interests in Maori land cannot be transferred by s. 213 orders to other than members of the kin group. The Court still has a discretion however, and it is further specifically provided that other owners may be heard on the application and may object to it. There are no reported cases to determine what might be a valid ground of objection by other owners where the sale is within the kin group. This case would appear to offer some authority for the proposition that owners who have earlier partitioned out, ought not to be able to come back in again and that the Court may sustain an objection on that ground.

IN RE THE PROPRIETORS OF TAHORA 2C1 SECTION 3 INC.
(1962) 66 Wairoa MB 83

Maori Land Court Wairoa 20 July 1962
Judge Sheehan

Incorporations—elections to committee of management at annual general meetings—a proxy vote is not invalidated by an error in the date of the proxy or by the lack of a date

Certain individuals were elected to the committee of management of the incorporation as a result of the counting of several proxy votes in their favour. The evidence was that certain members had shown considerable industry in gathering proxies and that the proxy vote was crucial as the majority of those present in person at the annual general meeting favoured the appointment of alternative nominees.

The appointment of those elected was challenged on the ground that certain proxies were invalid as they were not correctly dated. Evidence was given to establish that the witness to the proxies was in another part of the country on the date shown.

It was held, after an extensive review of the law relating to proxies, that there was no law requiring the completion of a proxy by dating it. It followed that an error in the date given will not invalidate the proxy. It was sufficient that the intention of the proxy was otherwise clear.

(The Court went on to hold that there was nothing in the Maori Affairs Act enabling voting by proxies and there was nothing in that Act authorising the provision for proxy voting as contained in the Maori Incorporations Regu‑lations. After a review of the case authorities it was held that there is no common law right to a vote by proxy and

a vote by proxy could not therefore be admitted. Accordingly, the Court disregarded the proxy to determine the persons elected. It is to be noted however that subsequently the Maori Affairs Amendment Act 1967 made specific provision to enable proxy voting at meetings, of incorporations).

Woodward for the body corporate

Egan for shareholders opposing

Kohn for two persons seeking appointment

IN RE AORANGI 1 SUB 4B, DURIE v MAORI TRUSTEE
(1962) 8 Ikaroa ACMB 271

Maori Appellate Court Palmerston North 26, 27 July 1962

Chief Judge Prichard Judges Brook Sheehan

(from decision of Judge Jeune)

Partition—co-owner seeking partition to enable him to farm a part of the land rather than allow the whole block to be leased to an outsider—whether an economic unit—principles to be applied

Appeals from discretionary orders

The block herein was comprised of 100 acres of flat valuable land. The title was vested in the Maori Trustee as administrator of an estate in which the appellant and his sister were entitled to life estates as to one half each, with remainder to the survivor of them leaving children or to both if both left children.

The Maori Trustee had received an offer from an outside party to lease the block. The appellant sought to partition his interest to one half of the block so that he could personally farm that part. The Court, after accepting that the appellant was entitled to a vested interest and able to seek partition nonetheless considered that partition should not be granted. It considered that to make the 50 acre area economic would require capital and drive. The appellant had neither, and that in this district "an end must be made to further subdivision" of Maori land.

In separate judgments and by a majority, the Appellate Court affirmed the lower Court's decision.

Chief Judge Prichard considered that there was insufficient evidence to enable the lower Court to come to any decision on the matter and that it should have refused partition on that ground. The Chief Judge proposed that to clarify matters, the land should be vested in the Maori Trustee under s. 438 to lease.

Judge Brook noted that partition under s. 174 was discretionary. He considered after reviewing authorities on appeals against orders involving the exercise of a discretion, (relying in particular on Charles Osenton & Co v Johnston [1942] AC 130) that the lower Court had not given insufficient weight to any relevant consideration and that he should therefore not interfere with the conclusion to which it had come.

Judge Sheehan (dissenting) also considered the principles applicable on a review.

While Chief Judge Prichard appears to have presumed that the onus was on the appellant to establish that the partition would create an economic unit, Judge Sheehan (dissenting) considered that in order to refuse partition there needed to be evidence to show that the partition would not produce an economic unit. In his view, participation in this case represented "a demand by a legal owner for possession". Given that the appellant was entitled to possession, if that were practicable, then the Court ought to have given greater weight to evidence on the possibilities of alternative forms of farming, and to evidence that even 50 acres could be leased for the same rent as the 100 acres. It should have given no weight to the view that the appellant might be better off as a lessor rather than as a farmer, and there was insufficient evidence that the 50 acre unit would be uneconomic. He would have directed a rehearing.

By majority the appeal was dismissed. The Appellate Court ordered that the land be vested in the Maori Trustee under s. 438 to lease.

Todd for the appellant

Hercus and MacKinnon for the respondent.

IN RE UMUTAHI A3 AND McCALLUM
(1962) Hawera MB

Maori Land Court Hawera 3 September 1962
Judge Brook

Lease—surrender of lease by instrument—must be by Deed and must be executed by both lessors and lessee—cannot be made conditional upon confirmation of a new lease to a particular named person

M, the lessee of Maori land owned by three persons, endorsed on the lease a notation "surrendered, all my estate and interest in the within lease." That endorsement was signed by M but not by the lessors.

In applying for confirmation of the surrender of the lease M maintained that the surrender was conditional on a new lease to P being confirmed. The remaining owners opposed the surrender unless it was made unconditionally enabling them to relet the land to whomsoever they preferred.

HELD

(a) A surrender of lease consists of the yielding up of the term to those with the immediate estate in reversion. It cannot therefore be made in futuro or conditional upon the granting of a new lease to a particular person.

(b) It must in any event be effected by Deed and the Deed must in any case be executed by the lessors. Confirmation of the surrender of the lease was refused.

STUBBING v ASHFORD

(1962) Magistrate's Court, Wanganui

Magistrate's Court Wanganui 30, 31 October, 27 November 1962 Barry SM

Consumption of liquor on a marae—it is not an offence against s. 33 of the Maori Community Development Act 1962 for a number of people to drink liquor on a marae unless there is a dance, meeting, tangi, hui or similar function in progress—persons may be charged before Tribal Committee or Magistrate's Court

Twelve voluntary workers erected a community hall at a marae during weekends. On the completion of the works they gathered at the site to celebrate the occasion. Only the twelve voluntary workers were present. Certain marae elders had expressed concern with the amount of liquor being consumed at the marae and on this occasion the Tribal Committee summoned the twelve to appear before it as is provided for under (now) s. 36 of the Maori Community Development Act 1962. Three elected to be dealt with by the Committee and eight by the Magistrate's Court. The Tribal Committee authorised proceedings against the eight in the Magistrate's Court whereby they were charged, under (now) s. 33 (3) of the Act, with drinking liquor at "a gathering of Maoris" held in a marae.

HELD in the Magistrate's Court, in dismissing the charges—

(a) The fact that the Tribal Committee may not have been properly elected did not matter as proceedings can be brought under that Act by any individual and without authorisation by a Tribal Committee. However—

(b) The liquor had not been consumed at "a gathering of Maoris." Those words, as used in the Act, were intended to refer to gatherings in the nature of a tangi, hui, dance or meeting. As a result of an amendment in 1951 it was clear that it was no longer an offence to take liquor into a Maori village area, and to constitute an offence now, the liquor had to be introduced at a general public or tribal gathering. Accordingly "the drinking of liquor in a marae, of itself, no matter how many are present, is not within the mischief which the Act is designed to

remedy. The mischief is the interference with other functions The type of gathering which (the section) is
intended to deal with is something in the nature of an occasion when gatherings for reasons other than the drinking of liquor are being held in the marae."

Brown for the informant
Clayton for the defendent

IN RE HIMATANGI 2A1 AND KEREHOMA
(1962) Otaki MB

Maori Land Court Levin 13 December 1962
Chief Judge Jeune

Status of land—statutory provisions (since repealed) for Maoris to be declared Europeans—Maori land held by a Maori at the time that he is "Europeanised" becomes European land and remains so unless and until the Europeanisation order is revoked—but, Maori lands of which he was not then an owner but to which he (or his successors through him) sub‑sequently succeed remains Maori land

R was the sole owner of Maori land which he had inherited by succession. Under statutory provisions then in force he had himself declared a European. He was succeeded to on his death by his son, a Maori. On the death of the son a question arose whether the land was Maori land. It was held that it was not as the land became European land when R was declared a European. The Order in Council declaring R a European was not revoked and accordingly the land remained general land even although it was later succeeded to by a Maori. The position would be otherwise however if R had inherited the land after he had been declared a European. The Europeanisation provisions related only to land held by a Maori at the time of Europeanisation.

IN RE PAPANGAIO J, CROWN v MAORI OWNERS
(1962) 9 Ikaroa ACMB 317

Maori Appellate Court Palmerston North 25, 26, 27 September, 13 December 1962

Chief Judge Prichard Judges Davis N Smith Sheehan

(from decision of Judge Jeune)

Accretion to land—change in course of river—accretion denotes increase which land bordering on a river undergoes through the silting up of soil and other substances, or the permanent retiral of water—accretion must be so slow and gradual as to be in a practical sense imperceptible

Whether there was accretion or not is a question of fact to be determined from evidence.

Papangaio was situated on the coast at the mouth of the Manawatu River at a point opposite the township of Foxton Beach and the endowment lands of the Foxton Harbour Board. In about 1900 the land was severed when the Manawatu River changed its course, leaving a northern severance separated from the township by only the old riverbed.

The old riverbed and an area of accretion at the old river mouth were claimed by both the Maori owners of Papangaio J and the Foxton Harbour Board. S. 21 of the Reserves and other Lands Disposal Act 1956 abolished the Foxton Harbour Board and vested its endowment lands, and the area in dispute, in the Manawatu County Council. There was, nonetheless, reserved to the Maori Land Court the authority to determine whether any part of that land was in fact accretion properly belonging to the owner of Papangaio J.

The Maori Land Court determined that the area to the middle line of the "old river" and the area accrued at the old river mouth were both accretions belonging to Papangaio J. The Crown appealed and claimed that it owned the old river. The Appellate Court held (Judge Sheehan dissenting) that no part of the old river was accretion as the change had not been imperceptible. (The lower Courts finding as to the area at the river mouth was upheld).

Per Chief Judge Prichard, Judges Smith and Davis

(a) The principles relating to accretion as established by the authorities are set out in the decision of Humphrey v Burrell [1951] NZLR 262, where, at page 267, Attorney-General of South Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599, 612 is cited with approval as follows:—

"Accretion denotes the increase which land undergoes through the silting-up of soil and other substances or the permanent retiral of the water. It is necessary that it should have been brought about by a process so slow and gradual as to be in a practical sense imperceptible, by which is meant that the addition cannot be observed in its actual progress from moment to moment or from hour to hour, although after a certain period it may be possible to observe that there has been a fresh addition to the bank. It is necessary, therefore, that the increase should have resulted from the action of the water in the ordinary course of the operation of nature and not from some unusual or unnatural action by which a considerable quantity of soil is suddenly severed from the land of one man and deposited on, or next to, the land of another."

(b) The question of whether there was an accretion or not was a question of fact to be determined from the evidence. The Appellate Court was as well placed as the lower Court to consider documentary evidence (which in this case consisted mainly of survey and title plans). With regard to oral evidence the Appellate Court was not as well placed, because it did not have the benefit of seeing and hearing the witnesses. However it was in as good a position as the lower Court to draw proper inferences from both written and oral evidence.

(c) It was common ground between the Crown and the Maori owners that the Manawatu River made a sudden break through the Papangaio Block in or about the year 1900. The conflict in evidence lay in what subsequently occurred in respect of the old riverbed, the Maori owners claiming that the river had formed two channels with the old channel gradually and imperceptibly drying out to form an accretion to the adjoining Block, and the Crown alleging that the change was sudden and perceptible.

(d) The Appellate Court considered the evidence established conclusively that the old river mouth closed almost immediately and that the drying out process and formation of dry land and sandhills continued very rapidly. It concluded that the drying up of such a large area over a period of seven years or less could not have been so gradual and imperceptible in its progress as to justify a finding that there was accretion to Papangaio I of any part of the old riverbed. Therefore the claim to accretion had not been established and the appeal succeeded in respect of this part.

(e) Different considerations applied to the area at the mouth of the old riverbed. There was true accretion along the coast as shown by the Plan.

In a dissenting judgement Judge Sheehan made an exhaustive review of the authorities on accretion. It appeared to him that the cases referred to were properly distinguishable on the facts. He considered—

(a) The terms "avulsion" and "accretion" were words used to contra-distinguish a sudden visible disruption of a piece of ground from one man's land to another, or the sudden alteration of the rivers channel, from the gradual increment imperceptibly deposited from one man's land to another. Burrell v Humphrey (1949) GLR 625 per Gresson J, and Halsbury's Laws of England 2nd Edition Vol 33, P 522 referred to.

(b) The vital issues were whether the Crown had title because

(i) the river had been a tidal or navigable river and was formerly part of the very fundus maris (Attorney-General v Reeve 1 TRL 675), or

(ii) it was accretion occurring to the Crown as the owner of the highway on the eastern bank of this arm of the sea. (Mayor etc of Eastbourne v Sullivan)

(c) Against this it had to be considered whether there was a gradual and imperceptible drying out of this arm of the sea and if so whether the bed or any part of it should be accretion to Papangaio J Block.

(d) Judge Sheehan then considered the principal N.Z. authorities on accretion

Auty v Thomson [1903] NZGazLawRp 99; (1903) 5 GLR 541 (Held by Edwards J that where by an alteration in the course of a stream there had been accretions to the land as originally included in the Certificate of Title such accretions followed the Title to the land of which they had become part)

Frost v Palmerston North Kairanga River Board (1916) GLR 392

Attorney-General v Findlay (1919) GLR 207

Burrell v Humphrey (1949) GLR 625 and Humphrey v Burrell (1951) NZLR 281.

He concluded—

"My examination of the law has produced no case parallel to this extensive and comparatively rapid dereliction and no effective authority thereon and I regard this issue as largely turning on the rate or tempo of the dereliction

of the areas

(e) On a review of the evidence he considered—

"In 1881 the time of the investigation of title to Papangaio there was no land above high water mark north or east of the block as far as the left bank of the arm of the sea which was the Manawatu River. There was therefore no land of which there would be a Maori owner. In 1900 or about that year the river changed course at its mouth to cross the top of Papangaio J Block, but the change of course of the river did not leave a dry former bed. According to the decision in Palmerston North Kairanga River Board v Frost (1916) GLR 720 a claim for accretion would not be available until the permanent retiral of the water."

(f) The dereliction occurred over a period of 16 years and this complied with the "imperceptible" test applied in Moore on Foreshore which states:

"A jury might reasonably find that accretion was imperceptible in a case where no witness had testified
that it could be perceived either in progress or at the end of a week or month, and witnesses did say

that the increase was 5¹/₂ years a year, and 150 yards in 15 years, 30-50 yards in 5 years

(g) He considered

(a) That the dereliction in this case did not offend the rate of imperceptibility accepted in Gifford v Yarborough (1828) 5 Bing 163 and in Moore on Foreshore.

(b) That on the basis of fact the award of the lower Court of the area of accretion was tenable and that the Crown had failed to show that the lower Court erred in law or in fact.

(c) That no further finding was necessary on the part of the lower Court or the Appellate Court

Haughey and Heenan for the appellant
Simpson and Bergin for the respondents

Editor's Note

It appears that this case was determined only upon a consideration of the law relating to accretion. The question of whether the Crown's title to a riverbed depends upon a navigable river continuing to flow across it, was either not in issue or was not raised.

For a commentary on this case refer Accretions to Title to Land—Riverbed and Foreshore E C Adams (1964) NZLJ 58.

IN RE OPUATIA 17B2A1 AND R H TAUROA II
(1963) 14 Auckland ACMB 86

Maori Appellate Court Auckland 24 January 1963
Chief Judge Prichard Judge Gillanders-Scott
(from decision of Judge Brook)

The Maori Appellate Court has no jurisdiction to extend the time for lodging an appeal

The appeal was outside the prescribed two month period. The Appellate Court held that it had no inherent power to grant leave to bring an appeal out of time.

Simpson for the appellant

Editor's Note

Many owners are unaware of Court decisions affecting them until after the two month period has expired, the fact being that in the Maori Land Court, owners not parties to an application may still be bound by the order. In other cases, the parties themselves may be unaware of the decision. Compare Taylor v Taylor [1981] 1 NZLR where a reserved decision of the District Court was not made known to one of the parties and where the High Court granted leave to appeal out of time.

IN RE NGATIMANUHIAKAI 18A AND ALEXANDER
(1963) 12 Whanganui ACMB 117

Maori Appellate Court Wanganui 22, 25 January 1963

Chief Judge Prichard Judge Gillanders-Scott

(from decision of Judge Davis)

Confirmation—sale of half interest to co-owner—whether contrary to interests of alienor
Adequacy of consideration—sale at slightly less than Government Valuation

The land, which had been leased by the appellant for several years, was owned equally by the appellant and M. The appellant had come into the title by purchase.

On the expiry of the lease M executed a memorandum of transfer of her half share to the appellant for a consideration slightly under the Government Valuation thereof. The Court refused confirmation on the grounds that the sale was contrary to the interests of the alienor and the consideration was inadequate.

The lower Court's finding was upheld on appeal.
It was argued (inter alia)

(a) that it was better at that time to have money than land; and

(b) that the alienor wished to sell and the alienee already held a half interest.
The Appellate Court commented

(a) "The happenings over centuries past fortify this Court in the view that the ownership of land is preferable to a sum certain in money."

(b) "There are few cases (and then only in special circumstances) where sales of farm land are confirmed at bare Government Valuation". Archer J in Vile v Manawatu County [1959] NZLR 337, 340 cited.

(c) "The will of the alienor is still subject to the overriding discretion of the Maori Land Court" and "The appellant brought the present position about by her own action in buying her moiety knowing full well that she thereby acquired only the rights of an owner in common of an undivided interest. The present alienor should be (as he is at law) able to alienate to his best interest having regard not only to the incidences of co-ownership but to any special circumstances that, whilst being in his interests, may well be disadvantageous to the alienee. The Court is embounded to ensure that a truly competitive price in the circumstances is secure ..."

Taylor for the appellant

IN RE MANUAITU A2, TURNBULL v NICHOLSON
(1963) 14 Auckland ACMB 93

Maori Appellate Court Whangarei 29 January 1963

Chief Judge Prichard Judge Gillanders-Scott

(from decision of Judge Brook)

S. 445—declaratory consolidated orders—must be for benefit of owners

S. 213—Court should consider effect of s. 213 orders on owners as a whole

In the course of time many orders may be made transferring interests in Maori land and these orders may remain unregistered. S. 445 is a procedure that facilitates registration by enabling the Court to declare the ownership position and to register only one order.

At the time of this appeal s. 445 was also a procedure for reducing the number of owners. It was provided that in the course of making an order under s. 445 the Maori Trustee could acquire uneconomic interests. In this case the Maori Trustee would have been able to acquire all of the interests. He would then have sold the land to any former owner, and if none would buy, then, and then only, on the open market.

While the Court was in the course of considering orders under s. 445 (which would have the effect of vesting the whole of the land in the Maori Trustee), N, a "stranger" to the title, sought and obtained vesting orders for the acquisition of certain of the shares. After the orders had been made, two alienees purported to withdraw and sub‑sequently appealed.

HELD

(a) That s. 445 is a vehicle for title improvement, and "by inference, title improvement in favour of existing owners"

(b) The effect of the acquisitions was that N would become entitled to buy the land without a prior opportunity to buy being given to former owners

(c) S. 213 vesting orders to other than existing owners should not be made while s. 445 proceedings are extant the

Court.

The s. 213 orders were cancelled.

Aubin for the appellants
Kirk for the respondent

Editor's Note

The rather draconian provisions for the compulsory conversion of small interests (in this case, all the interests in the block) were repealed in 1974. It is still to be noted however that the Appellate Court read into s. 445 a provision that it should be construed in favour of the owners. It seems that the same approach might well be taken to other sections of the Act.

The appeal also suggests that in making orders under s. 213 the Court should consider the interests of the owners as a whole.

IN RE MOTATAU 5J2B TE HAKI AND ORS v BOARD OF MAORI AFFAIRS
(1963) 1 Tokerau ACMB 182

Maori Appellate Court Whangarei 29-31 January, 1, 6 February 1963

Chief Judge Prichard Judge N Smith

(from decision of Judge Gillanders-Scott)

Amalgamation for Part XXIV development—circumstances in which lands might be excluded from the amalgamation Appeals—leave given to call further evidence—circumstances in which leave so given

The Board of Maori Affairs proposed the development of numerous blocks of Maori land under Part XXIV of the Act. It was a condition to the expenditure of any monies for development that the lands be first combined into one composite title. The Board sought and obtained an amalgamation order.

Certain owners appealed against the inclusion of three blocks. The Appellate Court held

(a) That a solely owned block be excluded upon the grounds that its inclusion would make little difference to the scheme, it was an economic unit, and the sole owner objected, and

(b) That the adjoining block be excluded because it was small, the owners objected to its inclusion, and it could be farmed in conjunction with the first block mentioned.

(c) The third block with 36 owners presented the Appellate Court with considerable difficulty. It listed 11 reasons why it should be excluded, 14 reasons why it should not and finally decided that it should not be excluded from the amalgamation. It is to be noted that the decision not to exclude was given in the face of evidence that the land was subdivisible for house sites (several house sites having been partitioned from it for owners in the past). There were proposals to farm the land with adjoining lands, the block "constitutes the family home", and it was claimed that the owners were generally agreed that it should be independantly farmed. Against that were doubts that the appellants would be able to adequately farm the land, the Appellate Court apparently favouring best land utilisation to use of the land by owners or their relatives with unproven capabilities.

In this case the Appellate Court allowed the introduction of further evidence.

"As to the application for leave to call further evidence the Court was of opinion that if it followed the established princples of the Maori Appellate Court the application should be refused. Nevetheless it granted the leave in this case for these reasons

(1) That the Court was aware that the bringing of the land under a development scheme would result in the loss of its possession to the general body of Maori owners for over 50 years and that in this case they felt strongly on being dispossessed for such a lengthy period; and

(2) That as this hearing in the Appellate Court would probably be a final determination of their rights the appellants felt they should, in justice, be given the opportunity to say in this Court anything that by mischance had been omitted in the Lower Court."

Gerard for the appellants
Paki for the respondents

IN RE HEREHERETAU B7G1A, TAMATEA v TINWORTH
(1963) 28 Gisborne ACMB 256

Maori Appellate Court Gisborne 1 March 1963
Chief Judge Prichard Judges Brook Davis
(from decision of Judge Sheehan)

Confirmation of lease—lease by life tenant—interests of remaindermen also to be considered

W was the life tenant of the land herein and the appellant was one of four remaindermen. As trustee for W, a person under a disability, the Maori Trustee executed a lease of the land to the respondent without consulting the remain‑dermen. The appellant opposed confirmation of the lease submitting that while acting for the life tenant the Maori Trustee owed a duty not only to the life tenant but also to the remaindermen.

HELD (on appeal)

"Where there is a trustee of any land, that trustee must, in the exercise of his powers, act within the terms of his trust and with due regard to the interests of all beneficiaries involved. Where a life tenant and remainderman are affected he must administer the trust property in the interests of the remainderman as well as those of the life tenant."

Similarly, a life tenant leasing land was bound to have regard to the interests of the remaindermen (and, semble, a trustee for a life tenant was similarly so bound).

The Maori Trustee should have consulted the remaindermen in respect of the proposed lease and given them an opportunity of being heard on the application for confirmation. The Appellate Court directed a rehearing to enable the remaindermen to be heard.

McHugh for the appellant
Hardman for the respondents

IN RE WHAKAPAUPAKIHI 3, HODGSON AND ORS v BAYLEY
(1963) 28 Gisborne ACMB 260

Maori Appellate Court Gisborne 28 February; 1 March 1963

Chief Judge Prichard Judges Brook Davis

(from decision of Judge Sheehan)

Confirmation of resolution of assembled owners—right of dissentients to be heard

R 104 (9) Maori Land Court Rules—application thereof

Notice to owners—to what extent notice should be given

Panui—whether constructive notice

"Person interested"—s. 28

"Person bound by the order or materially affected thereby"—s. 42

A resolution for the lease of land was passed at a meeting of assembled owners with some dissents. The dissentients, who filed memorials of dissent, were not given notice of the hearing for confirmation. They appealed against the order granting confirmation upon the grounds that they were not given notice and were deprived of an opportunity to be heard.

In a single judgment the Appellate Court held that the dissentients were entitled to be heard on the application for confirmation and directed a rehearing. It noted

(a) A dissentient owner could claim to be "a person interested" for the purpose of seeking a rehearing (s. 28) and a "person bound by the order or materially affected thereby" for the purposes of appeal (s. 42). It follows that he is also a person entitled to be heard on an application for confirmation.

(b) R 104 (9) of the Maori Land Court Rules requires that the Registrar advise the applicant of the names and addresses of dissentients. That was not done in this case. It also provides that the Court may decline to proceed with confirmation if any dissentients have not been given reasonable notice. The Appellate Court considered that the lower Court ought to have so declined in this case.

(i) "Where a common law rule of natural justice is in some way limited by a statutory provision, the latter must be construed strictly . . . this Court should recognise no greater limitation of the common law rule than is set out in the statute in clear terms."

(ii) "The Maori Land Court continually exercises its powers without notice to the persons concerned, and without their being heard—it is a matter of degree in each case. The chief reason is of course that the Court deals with titles with many owners and an application for partition might well be heard though few owners were present provided the Court were satisfied as to the values of the different areas. The Court commonly deals with applications to confirm resolutions where an owner of a small interest lodges a memorial of dissent but it is so small compared with those voting for the resolution that the Court hears the application to confirm without calling for evidence of notice.

In this case however the Court considers that the voting for and against being almost equal and more than half of those opposing having lodged dissents a case exists for the dissentients to be heard."

In re Kakepuku 11C2DA1 (1955) 13 Auckland ACMB 3 and 7 overruled
In re Kakepuku 11C2DA I (1955) 13 Auckland ACMB 38 affirmed

(c) That the distribution of the panui to the solicitor for the dissentients, notifying the application for confirmation, did not amount to "even constructive notice" in this case.

Thorp for the appellants
Cull for the respondent

IN RE WHAREROA 2E AND ORS, MAORI TRUSTEE v MINISTRY OF WORKS

Court of Appeal Wellington 11, 12 April, 19 December 1956

Gresson FB Adams Shorland JJ

[1957] NZLR 284

Judicial Committee of the Privy Council: 7-10 July, 2 October 1958

Viscount Simonds Morton Keith Sommerville Denning LL

[1959] NZLR 7

Maori Land Court Tauranga 20 March 1959

Chief Judge Morison

(1959) 18A Tauranga MB1

Maori Appellate Court Rotorua 20 June 1961 (1961) 4 Rotorua ACMB 313
Judges N Smith Jeune Brook

Maori Appellate Court Rotorua 27, 18 November 1962, 22 March 1963

Judges N Smith Jeune Brook

(1963) 5 Rotorua ACMB 136

Compulsory acquisition—assessment of compensation—land in undeveloped state but with subdivisional potential—the land must be valued in the state in which it is on the date of taking—any potentialities must be taken into account but if the land had not in fact been subdivided to a point where separate allotments could have been sold as at the date of taking, and if in fact there was only a scheme plan that had not been finally approved, then the land must be valued as a whole, on the basis of what a purchaser might pay having regard to any subdivisional potential—whether onus of proof on Crown to establish full compensation payable—whether duty on Crown to apply and prosecute applications in compensation cases—admissibility of evidence of negotiations to acquire parts of the land after the date of taking

S. 54 not to be applied to give a Maori a greater advantage than a non-Maori in assessing compensation Costs—matters to be considered in assessing the quantum of costs in compensation claims

In 1948 a plan was prepared for the subdivision of 242 acres of Maori land on the shores of Tauranga harbour. To effect the subdivision, the land was vested in the Waiaraki District Land Board (later the Maori Trustee) as trustee.

Under the then law that trust could not be made operative until approval had been given by the Minister of Maori Affairs.

In September 1951, and before approval had been given by the Minister of Maori Affairs, the Minister of Works gave notice of an intention to take about 91 acres of land for the purpose of constructing a deep-water port at Tauranga. The Minister of Maori Affairs gave his consent to the trust order in November 1951. In September 1952 a Procla‑mation was gazetted taking 91 acres and vesting that area in the Crown as from 15 September 1952 (hereafter called "the specified date").

In 1954 an application by the Minister of Works for the ascertainment of compensation came before the Maori Land Court. The Court stated a case for the opinion of the Supreme Court, and by consent, the Case Stated was moved to the Court of Appeal.

HELD (in the Court of Appeal)

(a) That in accordance with s. 29 (1) (b) of the Finance Act (No 3) 1944 the function of the Maori Land Court was to ascertain the value as "the amount which the land if sold in the open market by a willing seller on the specified date might be expected to realise". The specified date was 15 September 1952.

Turner v Minister of Public Instructions [1956] HCA 7; [1956] ALR 367 applied.

(b) The valuation must be of the land in the state in which it was on the specified date, but any potentialities must be taken into account in assessing its value.

"The land must be valued for what it in fact was on the specified date—a tract of land capable as to some, perhaps all of it, of subdivision into building allotments, and of being sold at some time and over some period in that form.

That circumstance would influence a purchaser in his determination of price. In estimating what price a purchaser would be willing to pay, recourse may be had to an examination of the estimated gross yield from a subdivision as yet notional only, and the estimated deductions that a purchaser would have to take into account; but that is the extent to which a notional subdivision can be regarded. There must be excluded from the Court's contemplation retention by the claimant and an assessment of what in his hands it would yield if subdivided, because that course is not open to him. At the time the value has to be determined, the land was in fact not—legally speaking—subdivided so as to permit of sale piecemeal."

(c) That the Court must contemplate the sale of the land as a whole, unless on the specified date there could have been separate sales of particular portions, and there was a market for such separate portions. Only if the land had been legally subdivided at that date so that particular lots might have been sold and title given, can it be said that there could have been separate sales of particular portions.

St John's College Trust Board v Auckland Education Board [1947] NZLR 507 distinguished.

(d) If the land has to be valued as a whole, the Court in assessing the potentialities may take into account the suitability of the land for subdivision, the prospective yield from subdivision, the costs of effecting such a subdivision, and the likelihood that a purchaser acquiring the land with that object would allow some margin for unforeseen costs, contingencies, and profit or himself.

Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] UKPC 15; [1939] AC 302 and Turner v Minister of Public Instructions [1956] HCA 7; [1956] ALR 367 cited.

The Maori Trustee appealed to the Privy Council. There.

(a) The Privy Council confirmed the opinion of the Court of Appeal that the land had to be valued in its state at the time of the taking. Under the Finance Act (No 3) 1944 that value was assessed as the amount which a willing seller might be expected to realise if the land were sold on the open market at the date of the taking.

(b) In the view of the Privy Council there were three material factors that had to be considered. First, the consent of the Minister of Maori Affairs had to be given to any sale of the land by the trustee under s. 8 (9) (a) of the Maori Purposes Act 1943. Secondly, the plan could not be carried into execution without the consent of the Minister of Maori Affairs or his delegate as required by the Land Subdivision in Counties Act 1946. However, it was clear that as a scheme of land development the plan, if it had ever reached the stage of consideration by the Minister, might have been materially modified as to roads, drainage, accesses, the establishment of reserves and in other respects. The plan may well have been entirely rejected and written anew. Thirdly, there were in fact no subdivided lots as shown on the plan, no roads, fences, accesses, drainage or other facilities.

In the case of the first of the above factors, the Maori Land Court could assume that the consent of the Minister would have been given, but the second factor raised different considerations. The question whether, but for the notice to take and the subsequent taking by proclamation, the Minister would have approved the proposed scheme was something on which a Court could only speculate. It was for the Maori Land Court to consider the likelihood of the proposed scheme being approved by the Minister. As to the third factor, the task of the Maori Land Court was to estimate how far the land was ready for subdivisional development at the date of taking and how soon the land would in fact, but for the taking, have been fully developed, and to value it accordingly.

(c) The Privy Council overruled the decision in St John's College Trust Board v Auckland Education Board (supra). In that case the Court had allowed land with a subdivisional potential to be treated as though it had actually been subdivided so as to assess the value of the proposed sections. It was held that the Court must contemplate the sale

of the land as a whole unless it appears that the necessary legal consents to a subdivisional plan had been given and a survey on the ground at the specified date would have disclosed that the land or some part of it was in fact so far subdivided that the subdivided parts could at that date have been immediately sold and title given to individual purchasers, in which case the parts so subdivided may be separately valued, for the purpose of arriving at the total amount of compensation.

The rulings of the Court of Appeal and the Privy Council as to the principles to be applied in the assessment of compensation were referred to the Maori Land Court which, after hearing further evidence and arguments as to value, issued a decision on 20 March 1959. The Maori Trustee appealed against that decision to the Maori Appellate Court and sought an order directing a rehearing.

(a) Counsel for the appellant claimed that the Maori Land Court had misdirected itself in its application of the opinion of the Privy Council in Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam (supra) in determining the value of the land on the basis of a hypothetical sale of the land as a whole to one purchaser. Counsel submitted that as the taking was in respect of part of five separate pieces of land of more than ten acres each, the land should not have been valued as a whole.

The Appellate Court noted that it had not been stated at the hearing, or in the Case Stated, that the land had been held in five separate lots. However, the parts taken from each could not be separately valued unless each such part had been separately subdivided at the time of the taking.

(b) It was claimed that the lower Court had placed an onus of proof on the appellant to establish a case, with the respondent required to rebut it. It was submitted that s. 104 (1) (a) of the Public Works Act placed the onus on the Crown to establish full compensation and that the Crown had to bring the application and to prosecute it.

It was held that there was no onus of proof in compensation cases. There was a duty on the Crown to produce all possible evidence to assist the Court to arrive at the amount of full compensation, but either party could bring the application for compensation. In this case, the application had been brought by the appellant (the Maori Trustee).

(c) The appellant sought leave to call evidence of what had actually been obtained from industrial users of the land up to the date of the appeal hearing. Counsel relied upon the case of Poverty Bay Catchment Board v Forge [1956] NZLR 811 which allowed valuers to have regard to sales up to the date of the hearing in determining the market value at the specified date.

The Appellate Court held that evidence was usually given as to market value at the date of the hearing of first instance. Further evidence was admitted in the case referred to only because that appeal in the Land Valuation Court was by way of rehearing while an appeal from the Maori Land Court to the Maori Appellate Court was not. In the case cited the appeal took place within two and one-half years of the taking and the Court there accepted as reliable guides only three of the many sales referred to because of their nearness to the specified dates (all within three months). To extend the time until the present appeal which was being heard six years after the taking would be unreasonable even if it were legally possible.

(d) It was further submitted that as the Crown had acquired the land for the purposes of a port and intended to dispose of parts thereof for industrial development by private enterprise, the Crown should have given full par‑ticulars of the negotiations with those seeking industrial land and that evidence of dealings since then should have been admitted as further evidence.

The Court held that until those enquiries or offers had been accepted and become firm contracts evidence of them would not have been admissible. As there were no concluded contracts for sale or lease of the land at the date of hearing any evidence of negotiations could not be admitted.

Metropolitan Asylum Distric v Hill 47 LT 2 cited.

(e) The appellant argued that the Court was not bound by the abovementioned rule against admissibility. He relied upon s. 54 which enables the Maori Land Court to receive as evidence any information which may assist it to deal effectively with the matters before it whether legally admissible or not.

The Appellate Court read s. 54 with s. 104 (1) (c) of the Public Works Act 1928 and concluded that as there was only a difference in the tribunal for the assessment of compensation for land owned by a Maori as against that owned by a non-Maori, it was inconceivable that an amount could be ascertained as a result of admission of evidence denied to a non-Maori that would give a Maori owner a greater amount of compensation.

(f) The Appellate Court held further that the lower Court was correct in finding that calculation on a residential basis as opposed to industrial subdivision gave the higher amount, and that the value should be taken to be the amount which the land if sold on the open market by a willing seller might be expected to realise. However, the Court did find that the lower Court had erred in its calculations on the amount for risk and profit. It followed the statement of Adams J in Randall v Licensing Control Commission [1956] NZLR 37 that in cases of expropriation while it was wrong to give excessive compensation it was a greater wrong to award an inadequate sum. Accordingly it reduced the allowance for risk and profit from 30% to 25%.

(g) Pursuant to the power granted to it by s. 45 (1) (c) of the Act, the Court varied the lower Court order by increasing the amount payable as compensation to the Maori Trustee from $71,692 to $87,164.

Costs had been awarded against the Maori Trustee in both the Court of Appeal and the Privy Council. Costs on the Appeal to the Maori Appellate Court were allowed in favour of the Maori Trustee in an amount to be settled by agreement. The parties failed to reach an agreement and the matter was referred back to the Maori Appellate Court. In a decision of 22 March 1963 the Maori Appellate Court held

(a) That the Maori Appellate Court could not alter the award of costs in the Court of Appeal and the Privy Council, by including in the award any amounts to reimburse the Maori Trustee for the sums paid by him to the Crown in those proceedings.

(b) That costs in claims for compensation are provided for by s. 64 of the Statutes Amendment Act 1939. It is there provided that costs shall be in the discretion of the Court, but that unless for special reasons the Court thinks it proper not to do so, the Court should order the respondent to bear his own costs and to pay the costs of the claimant.

The Court considered that in the fixing of the costs in the exercise of its discretion under s. 64 (1) it should take into consideration the following factors

the size, nature and importance of the proceedings

the results obtained for the client

the difficulties encountered and the responsibilities undertaken

the time spent

the standing and reputation of Counsel, and

special considerations such as comparable charges in other Courts.

(c) After an examination of the bill of costs the Court considered that the most appropriate course would be to fix a lump sum commensurate with the work involved to cover all charges in both the Maori Land Court and the Appellate Court.

The Court ordered.

the Crown to pay to the Maori Trustee the sum of $8,760 in full satisfaction of the liability of the Crown for costs and disbursements of and relative to the enquiry to assess compensation.

the Maori Trustee to pay to his solicitors the sum of $6,986 in full settlement of all costs and disbursements of the enquiry.

that each party bear its own costs relative to the present proceedings under s. 64.
In the Court of Appel
Cooney and Lees for the Maori Trustee
Sir Vincent Meredith and Sandford for the Minister of Works
In the Privy Council
Blundell and O'Connor for the Maori Trustee
Solicitor-General Wild QC and Moylan for the Minister of Works
In the Maori Land Court

In the Maori Appel‑late Court
Morgan for the Maori Trustee Dillon for the Minister of Works

Morgan for the Maori Trustee Sandford for the Minister of Works

Editor's Note

(1) For commentaries on the decisions herein refer "Compensation for land taken under the Public Works Act 1928—Decision of the Judicial Committee" M Buist [1958] NZLJ 359 and "The fallacy of Whareroa" E D Morgan [1963] NZLJ 643.

(2) The Maori Land Court's jurisdiction to assess compensation for land taken under the Public Works Act was removed by the Public Works Amendment Act 1962. S. 12 of the Maori Purposes Act 1974 however conferred on the Maori Land Court jurisdiction to hear and determine claims for compensation arising from "takings" prior to 1 January 1975 as if the Public Works Amendment Act 1962 had not intervened.

The present position is contained in Part IX of the Maori Affairs Amendment Act 1972. Where Maori land is not already vested in a trustee, the Court may appoint agents to take any necessary action on behalf of the owners to oppose or agree to any taking and to settle compensation or to bring claims with regard thereto.

IN RE AWARUA 4C9C AND POTAKA
(1963) Wanganui MB

Maori Land Court Wanganui 11 April, 3 May 1963
Judge Davis

Status of land—solely owned Maori land does not cease to be Maori land when it is vested in a European trustee in terms of a will—or when it is vested in a European life tenant with prescribed remaindermen one of whom is a Maori

S. 30 (1) (b) can be used only to determine relative interests and cannot be used to vest land in the persons determined to be entitled

Relationship with Land Transfer System—where a person has come onto the title through an apparently defective Court order, but the order has not been challenged or declared void, the Court must accept the land transfer title as it stands

(At the time of this decision, a "Maori" was defined as a person of the half blood or more—Ed)

A was of ³/₄ Maori blood. He was the sole owner of Maori land. He died testate appointing his wife, a European, as trustee to hold the land for her for her life with remainder to his children surviving him and attaining 21 years. The deceased left 7 children each of whom attained the age of 21.

In 1921 the land was vested in the wife as trustee in terms of the will.

In 1926, and by Deed of Assignment, one child assigned his interest in remainder to B, a Maori.

In 1961 the Court made an order under s. 30 (1) (b) determining that the wife was entitled to the land for life with remainder to six named children and B in certain prescribed shares. Although that order was only a determination, it had been drawn as though it were a vesting and had been registered as such in the Land Transfer Office.

On the widow's death the remaindermen proposed a sale of the land. An application was brought to the Court for a determination that the land had ceased to be Maori land and accordingly that confirmation of the sale was not required.

HELD

(a) That the land did not cease to be Maori land in 1921 when it was vested in the wife as trustee. "The fact that the trustee is a European does not change the status—it is still Maori land being land owned in the estate of a Maori."

(b) Although s. 30 (1) (b) cannot be used to vest an interest, it had in fact been treated as though it vested an interest and the Court had to accept the land transfer title for the land which showed it to be vested in the widow for life with prescribed remaindermen. The vesting in the life tenant, a European, did not change the status however and it was necessary to look also at the remaindermen. Six of the remaindermen were of less than half blood and accordingly (at that time) were not "Maori". However B was a Maori and that being so, the land continued to be Maori land.

McGregor for the Applicant

IN RE WAITETI 2A1A2A5 SEC 17 AND MATTHEWS
(1963) 121 Rotorua MB 147

Maori Land Court Rotorua 16 May 1963
Judge N Smith

Amendments under s. 60—s. 60 may be used to rectify errors in a certificate of confirmation

The Court confirmed an instrument of alienation with five modifications. The modifications were omitted on the certificate of confirmation.

HELD (in amending the certificate to include the modifications)

(a) In Waimanu Sawmilling Co Ltd v Maori Trustee [1963] NZLR the Supreme Court held that neither s. 60 nor s. 452 could be used to rectify an actual contract between parties. The rectification sought here however was a rectification of an adjudication of the Court with regard to a contract so as to record the true intention of the Court.

(b) While a certificate of confirmation is not an "order", s. 60 applies not only to orders but to a variety of other documents as well and accordingly could be used to rectify a certificate of confirmation.

IN RE POUAKANI D2B1B AND ANDREWS
(1963) Rotorua MB

Maori Land Court Rotorua 22 May 1963
Judge N Smith

Confirmation—cancellation of order of confirmation under s. 325—where an agreement has been executed the Court will not cancel the order of confirmation upon the grounds of an alleged mistake or error in a material term in the agreement.

The Forest Service had assessed that 1,200,000 ft H D timber remained to be cut on a block of Maori land. The owners of the land resolved to grant timber cutting rights to A but with a minimum payment on the basis that 1,200,000 ft H D remained to be cut as assessed by the Forest Service. The resolution was confirmed and a timber grant was executed. In the course of operations however it appeared to A that much less timber than that assessed by the Forest Service in fact remained on the land. He paid for the timber extracted and then applied to the Court under s. 325 to annul the confirmation order upon the ground that the resolution had been based on incorrect data.

The Court took the view that the purpose of s. 325 was primarily to enable the cancellation of resolutions that had not been acted upon and not to enable, in effect, the amendment of contracts. If there had been an error (and the Court made no finding thereon) then relief should be sought in other proceedings.

IN RE MARANGAIROA D2A WAIKARI
(1963) 28 Gisborne ACMB 282

Maori Appellate Court Gisborne 20, 22 May 1963

Judges Brook Davis

(from decision of Judge Sheehan)

Cancellation of partition orders—circumstances in which partitions may be cancelled—Court making partition to enable a meeting of owners in respect of part of land in title—cancellation of partition upon failure of lease proposal—s. 184

Appeals—whether evidence of circumstances arising after appeal may be admitted

The appellant and certain of his forebears had for many years occupied a part of Marangairoa D2. He had consistently opposed efforts to have that part included in a major development scheme proposed by the Board of Maori Affairs and instead had sought to lease it himself. In 1961 the Court partitioned out the area occupied by the appellant to enable a meeting of owners to determine whether the appellant should be permitted to lease it but reserving the right to cancel the partition should that be necessary. A resolution to lease was passed primarily as the result of a preponderance of proxy votes that the appellant had obtained. In 1962 the Court refused confirmation of the lease upon the ground that it was not satisfied with the appellant's financial ability to meet his commitments, pay the rent and develop the land.

The Registrar applied to cancel the partition orders. In a lengthy decision the Court traced the history of the lands in the area and of the various family occupations, considered the alternatives of individual leases and large scale development, expressed the view that having regard to existing charges and the undeveloped state of the land, large scale development appeared to be the preferred option. It then considered that as the Court had declined confirmation of the lease, the partition should be cancelled.

This appeal was against the cancellation of the partition under s. 184. It was submitted that the financial position of the appellant had changed materially since the partition orders had been cancelled and that the matter should be referred back to the Court for evidence thereon.

HELD

(a) The issue before the Appellate Court whether the lower Court Judge was wrong on the evidence then before him. There was nothing in the submissions made or from the record of the appeal to show that he was wrong.

Viscount Sankey in Powell & Anor v Streatham Manor Nursing Home [1935] All ER 58, 60, and Viscount Simonds in Benmax v Austin Motor Company Limited [1955] A11 ER 326, 327 cited

(b) Evidence of circumstances arising after the order could not be taken into consideration to determine whether the Judge was wrong in making the order as at the date thereof.

Barber for the appellant

Hardman for the Board of Maori Affairs

Editor's Note

(1) It is necessary to read the lower Court decision with the Appellate Court decision in this case.

(2) The lower Court decision contains interesting information on the history and occupation of lands in the Maraehara Valley near Ruatoria. The Judge also expresses interesting views on the competing merits of large scale develop‑ment and individual settlement.

IN RE TOWNSHIP OF RICHMOND LOT 126 AND THE CROWN
(1963) Whakatane MB

Maori Land Court Rotorua 29 May 1963
Judge N Smith

Status of land—land in Crown grant to Maoris is Maori land unless the grant is made for a pecuniary consideration—land subsequently sold—sale not confirmed but transfer registered—upon registration the land became general land—Maori Land Court subsequently making vesting orders—did not change the status of the land to Maori land

The Crown applied for an order under s. 30 (1) (i) for a determination of whether the land herein was Crown land or European land.

The Court noted

(a) There was originally a Crown grant in favour of certain Maoris. The Crown grant did not state whether it was made for a pecuniary consideration, but it appeared that there was none. The land appeared to be one of several sections vested in Maori people as reparation for an error in the confiscation of tribal lands following the Maori land wars. Presuming then that no pecuniary consideration had been involved, the land was Maori land following the Crown grant.

(b) The land was subsequently sold to a European. The sale was never confirmed by the Maori Land Court but the transfer had been registered under the Deeds system and could not now be challenged. Upon registration the land became European land. Assets Co. Ltd v Mere Roihi 1905 NZPCC 275 referred to.

(c) Subsequently the Maori Land Court made various orders vesting the lands. Those orders could be made in respect of general land however but the orders of the Maori Land Court did not affect the status of the land as general land. A Maori Land Court order can only change the status of the land where that is specifically provided for in the Act, as upon combined partition, exchange or consolidation.

It was determined that the land was European land.

IN RE TAURANGA-TAUPO 2B2L45, GOEBEL v TAWHIRAU
(1963) 12 Whanganui ACMB 135

Maori Appellate Court Wanganui 2, 3, 4 July 1963
Chief Judge Prichard Judges Sheehan Gillanders-Scott
(from decision of Judge Davis)

Confirmation of sale—occupier under informal tenancy who has erected cottage on lakeside section applying to purhcase at value of land without improvements—occupier not to be given the benefit of such improvements

Informal alienations not confirmed of no force or effect
Admission of further evidence on appeal

G, (and three other non owners) erected cottages on Maori land near Taupo in about 1948. T was one of several owners in the block. In 1948 and 1954 T executed agreements with G enabling him to use the land for a term of years and to erect and remove buildings. Those agreements were not confirmed by the Court as required by s. 224 and s. 225 of the Act and in any event, lands owned by more than ten (as here) can only be leased by the meeting of owners procedure (s. 215 and Part XXIII).

In 1956 the block was partitioned and T became sole owner of the part containing the cottages. In 1961 T agreed to sell the land to G for a price that did not include the value of the cottages. On an application for confirmation G claimed he had an arrangement with the others who had erected cottages on the land but did not take up an opportunity to call them in evidence. The lower Court refused to confirm the transaction.

On appeal G sought leave to call the other cottage "owners" in evidence. In declining leave the Appellate Court held

(a) Where it is sought to introduce fresh evidence on appeal notice must be given to the other side.

(b) If it is sought to examine fresh witnesses, an application should be made to the Court prior to the hearing.

(c) The proposed evidence should be reduced to affidavit form.

It is only in exceptional cases that such evidence will be admitted. It must have a strong and distinct bearing on the case and must be such as could not have been known or given at the lower Court hearing. S. 44 merely acknowledges the common law position.

Hastie v Hastie [1876] UKLawRpCh 47; (1876) 1 ChD 562, Dicks v Brooks [1880] UKLawRpCh 57; (1880 13 ChD 652, Sanders v Sanders [1881] UKLawRpCh 254; (1885) 19 ChD 373, Evans v Benyon [1887] UKLawRpCh 210; (1888) 37 ChD 329, Union SS Co v Hobbs (1894) 12 NZLR 98 (CA), Te Raihi v Grice (1886) NZLR 4 CA 219 (CA), Sargood v Corp of Dunedin (1888) 6 NZLR 489 (CA) cited

It was then considered, in dismissing the appeal

(a) Although there was some evidence that buildings had been erected on skids there was insufficient evidence to establish that the current buildings did not form part of the fee simple and had been wrongly included in the valuation.

(b) That the informal agreements were invalid and without force or effect for all purposes. They could not be used to support a claim that in equity G ought to be able to remove the cottages or, to have the value thereof discounted in any sale of the land to him; nor could it be said that the court could recognise a custom enabling those erecting cottages in such circumstances to have the benefit of them. Te Peehi Te Opetini v Pakihi Sawmilling Co Ltd (1913) 15 GLR 480 distinguished

On the contrary, the law was clear that such agreements had to be confirmed by the Court. In this respect ignorance of the law was no excuse and the Court had a duty to uphold the law.

(The Court also considered a number of authorities on the inquisitorial and paternal nature of the Court's jurisdiction as applied to the provision that alienations shall not be "contrary to equity or good faith" but the equity and good faith provision was repealed in 1967.)

The Appellate Court then recited a number of instances of holiday homes being built by Europeans on Maori land and reviewed a number of issues arising therefrom. It considered, inter alia, that those erecting cottages without proper authority and without the payment of a proper rent ought not to be allowed any benefit commensurate with or greater than that given to others who have obtained proper leases, paid a proper rental and who are subject to specific provisions covering compensation for improvements.

Palmer for the appellant

IN RE OPAPE 3D2B AND ORS, CAMPBELL v PENE
(1963) Opotiki MB

Maori Land Court Rotorua 5 July 1963
Judge N Smith

Fencing and Maori land—the Maori Land Court may refuse to make orders for a fencing contribution where the applicant is an informal occupier who has taken no steps to obtain a legal lease of Maori land

C occupied 11 blocks of Maori land. He had no formal tenancy and was not an owner, but claimed a right to succeed to a deceased owner in certain (only) of the blocks. P occupied certain adjoining blocks of Maori land but also had no formal tenancy. C sought to recover fencing costs from P and to charge the freehold of the land occupied by P with the amount of any award.

The Court refused orders taking the view that without legal or formal tenancies there was nothing on which any civil right could be based, and above all, there was no basis for the charging for the freehold of land as a result of the actions of persons having no legal estate or interest in them.

Harvey for the applicant
Hodgson for the respondent

IN RE HAUAURU AND HARDIMAN
(1963) 1 Tokerau ACMB 201

Maori Appellate Court Auckland 10, 11 July 1963

Chief Judge Prichard Judge N Smith

(from decision of Judge Gillanders-Scott)

S. 60—amendment of decisions—not to be used in cases where a rehearing would be required in order to introduce further material

S. 32—an owner seeking payment of costs for work done for benefit of all owners is able to apply under s. 32 for an order against funds held from proceeds of sale of block

The Court confirmed a sale to X. In order to enable a meeting of owners to be held, the appellant H, who was one of several owners, had undertaken considerable work in completing successions, and correcting incorrect successions. After the order for confirmation had issued H applied for an order under s. 60 varying the order of confirmation to provide for a direction that his costs be paid from the proceeds of sale. The lower Court determined that it was unable to make an order under s. 60.

The lower Court view was affirmed on an appeal by H. It was considered that the power under s. 60 to make amendments necessary to give effect to an intended decision, did not extend to enable it to rehear a case and thereafter to make additions to its decision. In this case a rehearing would have been necessary, but a rehearing under s. 28 had not been sought.

The Appellate Court went on to consider however (obiter) that it was proper that where one owner had undertaken considerable work for the benefit of his co-owners, provision be made to secure his costs. It considered that the appellant should seek an order under s. 32 for payment of costs from the proceeds of sale.

McCowan for the appellant

IN RE WAIPA 66B3B AND DELTA TIMBER CO LIMITED
(1963) Waikato MB

Maori Land Court Hamilton 2 August 1963
Judge Brook

Meetings of assembled owners—it is not necessary that the proposed resolution in respect of which the meeting is called be moved and seconded at the meeting—non-owner participating at meeting—resultant invalidity of resolution

DT Co Ltd sought and obtained a direction for a meeting of owners to consider a proposed resolution that the company be given certain timber cutting rights in respect of the land. There was some opposition at the meeting from several owners who considered that competing proposals should be sought from at least one rival company that had shown an interest. Eventually, P moved the resolution proposed by DT Co Ltd and the resolution was carried by a majority vote. P however was not an owner. His father was an owner and P had answered the roll call and had acted in all respects at the meeting as though he were his father or his representative, although he had no proxy from his father.

The dissentients opposed confirmation of the resolution upon the ground, amongst others, that P was not entitled to be heard and had no right to move the resolution.

The Court held, after an extensive review of the relevant provisions of the Act and of the Maori Assembled Owners Regulations 1957

(a) That it mattered not that the resolution had been moved by P as a resolution proposed by an applicant for a meeting of owners does not have to be moved or seconded at the meeting at all, but

(b) although P's fathers shares were minor and the inclusion of those shares in the vote did not affect the result, P's presence at the meeting may have affected the result. The dissentients were not required to prove affirmatively that by his statements and actions P had affected the result. It was sufficient that his presence may have affected the result. Accordingly, although clause 31 of the regulations enabled some departure from the strict adherance to the rules, this was not an appropriate case to grant that departure.

Accordingly, confirmation was refused. The Court directed a recall of the meeting of owners after first allowing a rival timber company to submit a competing resolution.

O'Shea for the applicant

Verschaffelt for the dissentients

IN RE NGARARA WEST A78B3, GRAHAM AND WILLIAMS
(1963) 43 Wellington MB 239

Maori Land Court Wellington 23 October 1963
Judge Jeune

Confirmation and conditions—power of Court to cancel modifications and conditions to which the alienee refuses to consent HELD

Where an intending alienee refuses to accept any modifications or conditions imposed by the Court in granting confirmation, and the certificate of confirmation has not been signed or sealed, the Court may review the position and grant confirmation without those modifications and conditions.

IN RE THE NINETY-MILE BEACH
[1963] NZLR 461

Court of Appeal Wellington 12, 13 November 1963 Gresson P North TA Gresson JJ

Freehold order of Maori Land Court—land bounded by ocean—whether Maori Land Court has jurisdiction to deal with claims extending to low water mark

S. 161

Crown Grants Act 1908 s. 35

Harbours Act 1950 s. 150

Treaty of Waitangi

Investigation of title to Maori Customary Land

In 1957 an application was filed in the Maori Land Court under s, 161 of the Maori Affairs Act 1953 for investigation of title to land described as the foreshore of the Ninety-Mile Beach between high and low water marks. It was contended for the applicant that the Te Aupouri and Te Rarawa tribes were entitled to freehold orders in respect of the northern and southern portions of the beach.

The application for freehold orders was opposed by the Crown on the grounds

(a) that immediately prior to the Treaty of Waitangi the Te Aupouri and Te Rarawa tribes did not own this foreshore under their customs and usages and,

(b) that the land was now vested in the Crown and could not be the subject of a freehold order.

The Maori Land Court determined that the tribes were the owners of the territories over which they were able to exercise exclusive dominion and control according to their customs and usages. The remaining ground of opposition by the Crown raised a substantial question of law and a Case Stated by the Chief Judge of the Maori Land Court sought the opinion of the High Court on the question

"Does the jurisdiction of the Maori Land Court conferred by s. 161 of the Maori Affairs Act 1953 to investigate the title to customary land and to issue Freehold Orders in respect thereof extend to the investigation of title to and the issue of Freehold Orders in respect of land lying between mean high water mark and mean low water mark which was at the time of the cession of New Zealand to her Majesty the Queen under the Treaty of Waitangi owned and occupied by Maoris according to their customs and usages."

In the Supreme Court (reported at [1960] NZLR 673) Turner J referred to the exclusive jurisdiction of the Maori Land Court under s. 161 to investigate the title to customary land and the determination of interests therein according to the ancient customs and usages of the Maori people. By s. 162 it is provided that a freehold order shall have the effect of vesting the land in the persons named for an estate in fee simple and s. 164 provides that on the making of such an order the land shall become subject to the Land Transfer Act 1952. However Turner J held that these provisions had to be read collaterally with s. 150 of the Harbours Act 1950 and s. 34 of the Crown Grants Act 1908. S. 150 of the Harbours Act prohibits the grant or conveyance of any part of the shore or sea, where and so far up as the tide flows and reflows, except as may already have been authorised by any Act or Ordinance. S. 35 of the Crown Grants Act prevents a Crown Grant from being construed as extending title from the landward side past high water mark.

The answer to the question in the Case Stated was accordingly "No". The section in the Harbours Act was an effective restriction upon the jurisdiction of the Maori Land Court since it prohibited all Courts, all officials and every person, from doing acts the effect of which would purport to grant to any person any part of the foreshore.

On an appeal from the judgment of Turner J to the Court of Appeal it was held

(a) "Once an application for investigation of title to land having the sea as one of its boundaries was determined, the Maori customary communal rights were then wholly extinguished. If the Court made a freehold order or its equivalent fixing the boundary at low water mark and the Crown accepted that recommendation, then without doubt the individuals in whose favour the order was made or their successors gained a title to low water mark. If, on the other hand, the Court thought it right to fix the boundary at high water mark, then the ownership of the land between high water mark and low water mark remained with the Crown, freed and discharged from the obligations which the Crown had undertaken when legislation was enacted giving effect to the promise contained in the Treaty of Waitangi." (North J)

(b) In this case the ocean was described as being the boundary of the land. Therefore, by virtue of the provisions of s. 35 of the Crown Grants Act 1908, the ownership of the land between high water and low water mark remained in the Crown. (per North J)

(c) If it so happened that there still remained on the coast line of the Ninety-Mile Beach uninvestigated Maori customary land then the title to the land between high and low water marks remained vested in the Crown by virtue of s. 150 of the Harbours Act 1950 (per North J)

(d) S. 150 of the Harbours Act 1950 provided that grants of the foreshore should only be made by authority of a special Act. No Act or Ordinance had been cited to the Court authorising the grant or conveyance of any part of the foreshore of the Ninety-Mile Beach, and there had been no special Act pursuant to this section. In the face of the prohibition contained in this section it was not competent for the Maori Land Court to investigate title to or to issue any freehold order in respect of the foreshore (per T A Gresson J)

The judgement of Turner J was affirmed and the appeal dismissed.

Sinclair and Dragicevich for the appellants

Solicitor-General Wild QC and Haughey for the respondent

IN RE AOTEA SOUTH 3D AND ORS, ORMSBY v BOARD OF MAORI AFFAIRS
(1963) 14 Waikato-Maniapoto ACMB 119

Maori Appellate Court Hamilton 11, 12 December 1963

Chief Judge Jeune Judge Sheehan

(from decision of Judge Brook)

Amalgamation—s. 435—while it may be convenient to amalgamate several titles to form one. Court should still consider alternatives such as a more limited amalgamation by creating two or more titles where each would still be economic, especially where a predominant owner seeks to retain her interest in a particular area

Development under Part XXIV—amalgamation to one title to facilitate subsequent re-division may be desirable but is not essential—title re arrangement to create not one but two titles (from ten) for joint development held to be preferable in this case

O was a major owner in X and Y blocks. In order to overcome problems with multiple ownership his family had gifted shares to stand in his name.

In the face of local authority concern with noxious weeds and outstanding rates in the area the Board of Maori Affairs resolved to place ten adjoining blocks of Maori Land under Part XXIV of the Act for development. These included Blocks X and Y. The Board's concern was that no title was an economic development unit by itself. It sought the amalgamation of all the blocks to be developed and farmed as one title. It intended that the title could be subdivided into economic farms for individual settlement by Maoris when the lands were fully developed.

O did not oppose development under Part XXIV. He was opposed to the amalgamation however as the predominant interest he had acquired in blocks X and Y would be "submerged" if his interest was included with the several owners in the several other blocks upon amalgamation.

The Court granted the amalgamation sought by the Board and 0 appealed.

The Appellate Court considered that while the lower Court had sufficient cause to be satisfied that the lands could be more conveniently worked or dealt with if they were held in common ownership under one title, it ought in the circumstances to have considered whether that was the only option open to it, and in particular whether the land could still be conveniently dealt with under Part XXIV if it were held in two (or more) titles. Accordingly it allowed further evidence from the appellant to show that blocks X, Y and one other would constitute an economic unit and could conveniently be developed together leaving the remainder blocks to be developed as one title and subdivided later. For the Board it was argued that development and re-division "can best be done after land is developed and consolidated and knowledge gained of its carrying capacity and suitability for the various types of farming."

The Appellate Court noted however that s. 383 and s. 454 specifically envisaged that land might be developed and farmed as joint undertakings under Part XXIV without amalgamation of all the titles. In the circumstances where the appellant had taken active steps to do "battle with multiplicity of ownership" it was reasonable that her interests should be located in a smaller amalgamation centering upon her family lands.

The amalgamation order was cancelled and orders amalgamating 3 titles to one, and seven titles to one were substituted.

Phillips for the appellant Carter for the respondent

IN RE WHAREKAHIKA Al, DEWES v MAORI TRUSTEE
(1963) 28 Gisborne ACMB 335

Maori Appellate Court Gisborne 5-7, 14 May 1964

Chief Judge Jeune Judges Brook Davis

(from decision of Judge Sheehan)

Receivers—s. 33—discharge of receivers—whether Maori Trustee should be discharged through alleged inability to perform his statutory duties

Natural justice—Court should not refer to matters on departmental files at least without enabling the parties to peruse the material and be heard thereon

A lease of Maori land provided that at the end of the first term the lessee could either seek renewal or claim compensation for improvements: In the event of compensation being not paid he had a right to continue in possession and to offset rents against the sum due. there was also a statutory right (under the 1931 legislation that then applied) to a statutory land charge for the amount of compensation and to seek the appointment of a receiver to lease the land and apply rents in satisfaction of the debt.

In 1932 the lessee elected not to take a renewal. Compensation was set at $15,088 and was not paid. The lessee continued in possession. He also sought and obtained the appointment of a receiver (the Maori Land Board).

In 1936, the receiver sought to lease the land by public tender. The lessee replied that before relinquishing his possessory rights he required payment of the balance of compensations due.

The matter was not further advanced and the lessee remained in possession.

In 1952, and by statutory enactment, the Maori Trustee was substituted as receiver. In 1963 the Maori Trustee applied for an order under s. 33 that he be discharged upon the grounds that possession had been denied and he was unable to perform his statutory duties.

The lower Court decision discharging the receiver was reversed on appeal. As a preliminary point the Appellate Court determined that the Court had jurisdiction to discharge a receiver appointed under the 1931 Act (which had been repealed and substituted in 1953). It was then held that in electing to have a receiver appointed, the lessee had abandoned the right to continue in occupation. He may not have fully appreciated this in seeking compensation before delivering up possession but on the facts the lessee had not specifically denied possession nor could it be said that the receiver was prevented by lack of possession from exercising his power and duty to lease. "Whether such duty was and is easy or difficult to perform is beside the point—it was and is not impossible of performance, wholly or in part . ."

The Appellate Court also noted that the only evidence that the lessee had denied possession was gleaned from correspondence on the Maori Trustee's file and which was perused by the Court. The Appellate Court considered "it was undesirable that the lower Court should take into account in reaching its conclusion the contents of letters, copies of which were not at any time tendered as evidence, either during the hearing of the application or in support of written submissions—the originals of which were on a Trust File not available for searching—for the reasons given in this ground viz that Counsel had had no opportunity of examining them and that Counsel had had no opportunity of addressing the Court upon them."

Cull for the appellant

Hercus and Hardman for the respondent

McHugh for H Potatau (an owner)

WAIMANU SAWMILLING CO LTD v PRICHARD AND THE MAORI TRUSTEE AND

MAORI TRUSTEE v WAIMANU SAWMILLING CO LTD
[1963] NZLR 295

Supreme Court Wellington 12 August 1962, 4 February 1963

Supreme Court Wellington 7-16 April, 27 May 1964
Tompkins J (unreported)

S. 452-power of Chief Judge thereunder—not available to rectify certificates of confirmation S. 60—to be used only for slip orders

Confirmation—"confirmation" of an instrument of alienation is evidenced not by an order but by a certificate of confir-mation—s. 226 (1) and s. 227 (4)

Timber grants—interpretation of grants—forestry appraisal and actual production methods assessed

In 1955 the Maori Land Court confirmed a timber grant subject to a modification that a royalty be payable based upon the amount of sawn timber actually produced. The timber had been cut by 1959, but a dispute arose between the grantee timber Company and the Maori Trustee (as agent for the owners), as to whether the total amount payable had been paid, the Maori Trustee contending that the order of confirmation had been incorrectly drawn as it had always been agreed between the owners, the timber company and by the Court that royalties were to be based on a forest service appraisal.

The Maori Trustee sought rectification of the contract in the Supreme Court and sued for what he considered to be the balance owing. He applied at the same time to the Maori Land Court under s. 60 and to the Chief Judge under s. 452 to amend the order and certificate of confirmation. The appellant timber company applied for a writ of pro‑hibition to prevent the Court and the Chief Judge from considering the matter.

Hutchison J dealt with the claim for writs of prohibition and held

(a) S. 60 was unavailable as it confers on the Maori Land Court only a power to make a "slip order". Bardebs v Upham [1927] NZGazLawRp 18; [1927] NZLR 273 and [1927] NZGazLawRp 87; [1927] NZLR 722 relied on.

(b) S. 452 was unavailable. That section relates only to an order of the Court and confirmation of an instrument of alienation is not an order of the Court. Confirmation is given, not by a decision (or order) to grant confirmation, but by the endorsement of a certificate of confirmation on the instrument of alienation as provided for in s. 226 (1) and s. 227 (4), and the certificate itself is conclusive. The power of rectification in s. 452 relates only to orders and that does not include a certificate of confirmation.

It was added "It is important to remember that what the second defendant asks the Maori Land Court to do is to rectify not only some record of the Court but the actual contract between the parties".

Tompkins J dealt with the actions for rectification and to recover monies owing, and held

(a) On a construction of the documents as a whole it appeared that royalties were to be based on an appraisal rather than upon the amount of sawn timber actually produced and so rectification was unnecessary. Re Goldstone [1916] NZGazLawRp 47; [1916] NZLR 489, 502 cited.

(b) However, on the evidence there had been a substantial "overcruise" by the Forest Service, and the sampling method of apraisal used did not comply with the terms of the grant which required a full appraisement. Accordingly the principle in Dean v Prince 1 All ER 749 where the Court set aside a valuation containing errors was applied to set aside the Forest appraisal with the result that the amount claimed as owing by the Maori Trustee was substantially reduced.

Barnett Corry Watts & Patterson for Maori Trustee

Morrison Taylor & Co for Waimanu Sawmilling Co Ltd

Crown Law Office for Prichard
Editor's Note

(1) It is doubtful that this case is authority for the proposition that a decision to confirm an instrument of alienation is not an "order" for the purposes of s. 42 relating to appeals.

(2) The case relates to confirmation of an instrument of alienation. The position would appear to be different in respect of confirmation of a resolution of assembled owners.

(3) Tompkins J's decision contains important commentaries on the assessment of timber grants, the assessment of royalties based on appraisals, and the effect of assessment by the Haakon Dahl log measurement system.

IN RE WAIOHIKI 1D2B11, MORRISON AND GORDON
(1964) 97 Napier MB 366

Maori Land Court Napier 21 June 1964
Judge M C Smith

Leases—concurrent leases—Court may confirm both leases the second being a concurrent lease to take effect on the expiration of the former lease

P the sole owner of the land, executed a lease of the same to M. Subsequently, P executed a lease of the same land to G on substantially the same terms but for a greater term of years. Both leases came up for confirmation at the same time. P argued that the second only should be confirmed, the lease to M being not in P's best interests.

The court considered that both leases were capable of being confirmed, following Wilson v Herries [1913] NZGazLawRp 229; (1913) 33 NZLR 417, and that on the facts, both were entitled to confirmation. The second lease however was to be treated as a concurrent lease, that is, to take effect on the expiration of the earlier lease. Both were confirmed on that basis.

Editor's Note

Leases of solely owned land are no longer confirmed by the Maori Land Court. It is possible and occasionally happens however, that a meeting of owners resolves in favour of more than one lease.

IN RE WAIPU 4A3E3B4B AND McCALMAN
(1964) 12 Whanganui ACMB 171

Maori Appellate Court Wanganui 25, 26 June 1964

Judges Jeune Brook

(from decision of Judge Davis)

Confirmation of instrument of sale—the fact that the purchaser has been in informal occupation of the land creates a particular relationship and special circumstance and the applicant should bring evidence that he has paid an adequate rental for his occupation—the Court should not however refuse confirmation on the ground of inadequacy of consideration without stating its reasons for coming to that conclusion and without affording the applicant an opportunity to be heard on matters relevant thereto

This was an appeal against a refusal to confirm an instrument of sale. In directing a rehearing the Maori Appellate Court held.

(1) There is an onus on an applicant for confirmation of an instrument of sale to satisfy the Court that the consid‑eration is adequate "having regard to the relationship (if any) of the parties and to any other special circumstances of the case." This includes, where the purchaser has been in informal occupation, evidence that he has paid an adequate rental for the period of his occupation. But—

(2) Where, in considering an application for confirmation in respect of an instrument of alienation the Court considers the land to be "worth more than the amount signed for" and to have a special value to the applicant, it is necessary for the Court to set out its reasons for coming to that conclusion (special local knowledge or the like) and it should afford the applicant an opportunity to be heard on those aspects that the Court considers important.

(3) The requirement (since repealed) that the Court be satisfied that the alienation is not contrary to the interests of the Maori alienating is not to be interpreted as meaning that the applicant must affirmatively prove that the sale is in his interests. That is to import a higher standard of proof than the Act requires.

McGregor for the Appellant

IN RE KOHEROA 89B1, 3 AND 4 DIZDALE FARMS LTD AND ANOR v WOOTTEN
(1964) 2 Auckland Tokerau ACMB 17

Maori Appellate Court Auckland 22, 24 September 1964

Chief Judge Jeune, Judges N Smith Brook

(from decision of Judge Gillanders-Scott)

Roadways—recommendation for public road pursuant to s. 421—whether land is "roadway" as defined in s. 414—Appel-late Court upholding decision not to recommend even although land had been formed as road with public monies and shown as such on Crown plans—common law doctrine of implied dedication not applicable

In effecting partitions in 1941 the Court ordered that Lot A "be subject to a right of private access for the owners of (Lot B)" along a defined route 50 links wide. The lands subsequently ceased to be owned by Maoris.

In 1963 the appellants sought a recommendation under s. 421 that the access in question be declared a road to vest in the local authority arguing that it had been used as a public road, had been formed and maintained as such by the local authority, and was shown as public road on cadastral survey plans.

The lower Court refused the recommendation sought.

On peal, it was considered whether the 1914 order in fact constituted a roadway for the purposes of s. 421, having

regard to the definition of "roadway" in s. 414. In terms of that definition it needed to be shown in this case that the land was either (a) "land that is in fact used as a roadway" or (b) "land that is authorised to be used as a roadway".

It was held that it could be neither as

(a) land used as a roadway must be used as such as at the date of the application. Although it may have been used as a roadway in the past, the owner of the servient tenement had, upon acquiring the land, taken "definite steps to ensure that the strip of land was not used as a roadway, but only as a right of way".

(b) "The wording of the 1914 order . . . shows clearly that this strip of land was not authorised to be used as a roadway."

The Appellate Court also rejected the view that the common law doctrine of implied dedication had application, adopting the view of the lower Court that Part XXVII of the Act relating to roads and streets was a complete code in itself.

The appeal was dismissed.

Clarke and Thomas for the appellants
Keyte for the respondent

Editor's Note

It is to be noted

(1) that the Court dealt with the matter although the lands were no longer Maori lands, and

(2) that no comment was made on the fact that the land was shown as public road on Crown survey maps.

IN RE WAIWHARIKI 1D1B AND ORS AND NOEL
(1964) 1 Auckland ACMB 213

Maori Appellate Court Whangarei 22, 24 September 1964

Chief Judge Jeune Judges N Smith Brook

(from decision of Judge Gillanders-Scott)

Trust Orders under Section 438—standard notice to owners required—Registrar failing to adequately search records for addresses

Outstanding rates and consequential trust orders—when dealing collectively with numerous blocks Court must still ascertain position with regard to each block

Upon hearing evidence of a rate collector in respect of numerous blocks of Maori land in the Bay of Islands county as to outstanding rates and the growth noxious weeds, the Court arranged that the Registrar bring applications under s. 438 to vest 74 of those blocks in the Maori Trustee to lease the same for 44 years to certain persons named for each block. Directions were given for service of notices of the applications and hearing on principal owners for each block (where they could be found) and for the display of notices at eight Post Offices and other places in the district. S. 438 orders were subsequently made in respect of several of the blocks.

The appellant was a major owner in three of the blocks. He appealed against the order in respect of those blocks claiming that he had not received notice. He had a house on one of the blocks.

The Appellate Court found (amongst other things) that no individual notices had been issued to owners in any of the three blocks in the appeal. The Registrar ought reasonably to have ascertained addresses for those owners as they had been involved in substantial proceedings affecting those blocks in the previous year. Moreover reference to one block had been ommitted entirely from the general notice and there was no concrete evidence that rates were out‑standing in respect of the other two blocks.

It was held (allowing the appeal)

(a) The Court purported to base its decision to make trust orders on the non-payment of rates and neglect of the land but this could not be substantiated from the record in respect of two blocks.

(b) In the circumstances there had been insufficient enquiry as to the whereabouts of the owners in the three blocks. Clarke for the appellant

HATA v HATA
(1964) 11 MCD 222

Magistrate's Court Opotiki 8 October 1964 Ritchie SM

Jurisdiction—whether Magistrate's Court has jurisdiction to state case for Maori Appellate Court—s. 42 Magistrate's Courts Act 1947 and s. 50 Maori Affairs Act 1953.

HELD

S. 42 of the Magistrates Courts Act 1947 does not empower a Magistrate to state a case for the Maori Appellate Court on a question of fact or of Maori custom or usage under s. 50 of the Maori Affairs Act 1953.

Bunkall, Clay and Patterson for the plaintiff
Potts and Hodgson for the defendant

KEEPA AND WIKI v INSPECTOR OF FISHERIES
[1965] NZLR 322

Supreme Court Auckland 15 July, 21 November 1964 Hardie-Boys J

Fishing rights—customary fishing rights on foreshore—whether Maoris protected—Fisheries Act 1908 s. 77 (2)