49 Waikato Maniapoto MB 223
IN THE MĀORI LAND COURT OF NEW ZEALAND
WAIKATO-MANIAPOTO DISTRICT
A20090011664
Hearing:
UNDER
Section 18(1)(a), Te Ture Whenua Māori
Act 1993
IN THE MATTER OF
Harataunga West 2B2A1
BETWEEN
NGA URI A MAATA NGAPO
CHARITABLE TRUST
Applicant
AND
JOHN THORNTON MCLEOD and
TE RŪNANGA O NGĀTI POROU KI
HAURAKI
Respondents
19 October 2011 (held at Thames)
29 March 2012 (held at Hamilton)
Appearances: Mr P F Majurey, Counsel for the Applicant
Mr J Kahukiwa, Counsel for the Respondent, Mr J T McLeod
Mr J Tamihere, for the Respondent, Te Rūnanga o Ngāti Porou Ki
Hauraki
Judgment:
18 December 2012
RESERVED JUDGMENT OF JUDGE S TE A MILROY
Copies to:
Mr P F Majurey, Atkins Holm Majurey, P O Box 1585, Shortland Street, Auckland 1140,
Paul.Majurey@ahjmlaw.com
Mr J Kahukiwa, Corban Revell Lawyers, DX DP92558, Auckland, JKahukiwa@corbanrevell.co.nz
Mr J Tamihere, Te Rūnanga o Ngāti Porou Ki Hauraki, P O Box 21 081 Henderson, West Auckland,
John.Tamihere@waiwhanau.com
49 Waikato Maniapoto MB 224
Introduction
[1]
Harataunga West 2B2A1 is an area of land of 2,670 square metres situated at
Kennedy Bay on the Coromandel (“the land”). The land was set aside as a Māori
reservation by Gazette Notice dated 21 March 2002. The gazettal provides that the
land is to be a marae for the common use and benefit of the Ngapo whānau and
Kennedy Bay community and to be known as the Te Paea o Hauraki Māori Reserve.
[2]
The Nga Uri a Maata Ngapo Charitable Trust (“the Charitable Trust”) was
established to obtain funding and undertake the building of a marae on the land and
by 2007 considerable progress had been made towards completion of a wharenui,
ablution block and dining hall on the land.
[3]
On 4 June 2007 John McLeod applied for a recommendation to redefine the
purpose of the reservation as a Ngāti Porou marae, and to change the name to the
Maata Te Ao Whakatere Ngapo Māori Reserve (A07/7619).
Attached to the
A07/7619 application were minutes of a meeting dated 28 April 2007. The minutes
are headed up “Hui of Owners and Beneficiaries of Harataunga West 2B2A1 Māori
Reserve”. For the purposes of this application it is sufficient to say that the minutes
showed that there was some concern expressed about the layout of the buildings on
the land and that a resolution was passed that the reserve be a marae, “but as a Ngāti
Porou marae”.
[4]
As the application to redefine the purposes of the Māori reservation
progressed the Charitable Trust continued with the building project on the land until
Mr McLeod filed an application for an interim injunction on 11 December 2009.
The injunction application was filed because Mr McLeod was concerned to see that
the buildings were being finished prior to the determination of the A07/7619
application, and included the hanging of carvings on the wharenui which indicated
an association with Ngati Tamatera. Mr McLeod also made an application under s
45 to the Chief Judge alleging that a mistake or error had occurred in the
49 Waikato Maniapoto MB 225
proceedings pursuant to which the land was recommended to be a Māori reservation,
and seeking changes to the purposes and beneficiaries of the reservation.1
[5]
Mr McLeod’s arguments in favour of the interim injunction were that if the
buildings were completed it might affect the consideration of whether they are
temporary buildings, and therefore moveable, or whether they are considered to be
permanent fixtures. In respect of the redefinition of the reservation Mr McLeod
submitted that completion of the decoration would affect considerations relating to
whether any cultural activities could be undertaken on the reservation in accordance
with the tikanga and kawa of Ngāti Tamaterā in addition to or in substitution for that
of Ngāti Porou. An interim injunction was issued prohibiting the Charitable Trust
from completing the buildings in order to maintain the status quo pending the final
resolution of the various proceedings.
[6]
In response to these other proceedings the Charitable Trust filed this
application pursuant to s 18(1)(a) on 22 July 2009 to determine ownership of the
buildings the Charitable Trust had erected on the land.
[7]
After further discussion with the parties it was agreed that this s 18(1)(a)
application could be dealt with separately to the other proceedings, which were
expected to take more time as a consequence of the filing of the s 45 application.
[8]
Some delay was occasioned by the need for the Charitable Trust to find
another counsel. Also Mr Tamihere, acting for Te Rūnunga o Ngāti Porou ki Hauraki
had applied for and was granted leave to take part in the proceedings in opposition to
the application.
[9]
In due course the matter was set down for hearing on 19 October 2011 to
receive evidence from the parties. At the end of the hearing respondent counsel
indicated that they wished to put questions to Ms Josie Anderson, the CEO of the
Hauraki Māori Trust Board (“the Trust Board”), as the Trust Board had provided some
funding to the Charitable Trust for the purposes of building the marae complex.
1
A20090019724
49 Waikato Maniapoto MB 226
I directed that such questions should be put in writing, and that Ms Anderson could
respond in writing.
[10]
Following on from the written responses from Ms Anderson, counsel for the
respondents indicated that they wished to have the opportunity to cross-examine Ms
Josie Anderson in person.
[11]
Due to difficulties arising from availability of the various parties and Ms
Anderson the Court arranged for her cross-examination to take place via telephone
conference on 29 March 2012.
[12]
Initial closing submissions were then filed by Mr Majurey on 10 June 2012.
Mr Tamihere provided an e-mail with closing submissions on 22 June 2012, and Mr
Kahukiwa for Mr McLeod provided formal closing submissions dated 27 June 2012.
Mr Majurey’s reply submissions were received on 8 July 2012.
Marae buildings
[13]
Korohere Ngapo gave evidence on behalf of the Charitable Trust as follows:
a)
the marae buildings were built on the land as a result of the
significant voluntary efforts of people supporting the Charitable Trust,
and from funding received from various funding agencies.
The
wharenui was not yet fully completed, nor are utilities connected to
the wharenui;
b)
prominent elders in the Ngapo whānau who wished to lie in state on
the land were unable to do so because the buildings were not finished;
c)
the land in Kennedy Bay was gifted to Ngāti Porou but Ngati
Tamatera and Patukirikiri retained interests due to their continuing
occupation of some blocks;
49 Waikato Maniapoto MB 227
d)
the Ngapo whanau were clearly connected to the land, which was not
denied by the respondents;
e)
Mr McLeod had every opportunity to participate in the project and the
wānanga that were held by the Ngapo whānau regarding their
whakapapa and the reservation;
f)
the reservation and the buildings were intended to be for both Ngāti
Tamatera and Ngāti Porou – the Charitable Trust wished to be
inclusive in terms of those who could use the marae.
[14]
Mr Ngapo queried why Mr McLeod had not filed an injunction earlier to stop
the building as he would have been well aware that the buildings were being built.
[15]
The chair of the Charitable Trust, Robert Pine Ngapo gave evidence relating
to the funding of the building project. In short approximately $30,000.00 was raised
by donations and fundraising activities by the Charitable Trust. The balance of the
funds came from various funding agencies including Trust Waikato, the Department
of Internal Affairs (Lotteries Commission), Marae Heritage, Creative New Zealand,
Hauraki Maori Trust Board and Pub Charity. The total amount of funds used to erect
the buildings was $400,000.00.
[16]
Pine Ngapo also gave evidence as to the construction of the buildings as
follows:
a)
each building sits upon wooden piles which have a concrete footing
dug into the ground. The buildings sit on the piles by way of bearers
and each bearer is strapped to the piles by way of metal strap;
b)
the electricity, water, wastewater and sewage will be connected to the
buildings by way of a modular system, which will mean that any one
of the buildings can be readily disconnected from any utility. The
wharenui will only have electricity connected;
49 Waikato Maniapoto MB 228
c)
the buildings were built so as to be moveable, because there was a
possibility that the wharenui might need to be moved from where it
currently sits to further towards the rear of the land. If that were to
happen the trustees wished to ensure that the wharekai and ablution
block were able to be relocated as well;
d)
the wharenui is anchored to the ground by a steel brace beam, which
is anchored by a floor plate that is bolted to the piles. The bolts are
fixed with nuts, and these can be undone by hand;
e)
the water tanks and sewage system is installed underground and
would not be easy to remove;
f)
a temporary power box has been installed and is located adjacent to
the wharekai.
[17]
I also undertook a site visit and inspected the buildings. This visit confirmed
Pine Ngapo’s evidence as to how the buildings were constructed.
[18]
Pine Ngapo referred to obligations the trustees owed to funding agencies in
respect of the use of the buildings and their situation. He considered that vesting the
buildings in the trustees of the Charitable Trust would incur no loss for the beneficial
owners of the land, whereas if the buildings were vested in the beneficial owners of
the land then descendants of Maata Ngapo who are not beneficial owners will lose
any right they have to enjoy and use the buildings.
[19]
Finally Pine Ngapo agreed under cross-examination that the intentions of the
charitable Trust trustees for the land was that it be a Ngati Tamatera marae, but
recognising Horouta, Ngāti Porou and Tainui.
[20]
Mr McLeod gave evidence that his understanding of the whakapapa and the
title to the land, as shown by the Māori Land Court records, was that the land came
from Ropata Wahawaha of Ngāti Porou. He also referred to a meeting about the land
in December 2000 where the majority present decided to re-establish a papakāinga
49 Waikato Maniapoto MB 229
on the land, rather than a marae, because there was already a marae on Harataunga
2C1. Mr McLeod said that the only approval for a building on the land was for an
ablution block, not a wharenui or a wharekai. Mr McLeod attended some meetings
from 2001 to 2004 relating to the development on the land. However, the McLeod
whānau pulled out of the project in February 2005 because they felt the whakapapa
being used was not of “our Maata”.2 Mr McLeod opposed the s 18(1)(a) application
because the funding applications showed the marae was to be a Ngati Tamatera
marae. Mr McLeod was also named in the funding applications as a reference
person for drainage and sewage – this was done without his approval or knowledge.
[21]
The essence of Mr McLeod’s objection was a concern that ownership of the
buildings would give the Charitable Trust some ownership interest in the land and he
objected to any claim by the Charitable Trust on the land.
[22]
In cross-examination Mr McLeod agreed that he did not want ownership of
the buildings, so long as the Charitable Trust took them away. In a later passage Mr
McLeod answered the following question:3
Mr Majurey: ... so the follow up question to that then is if the Court makes it
absolutely clear that ownership in the buildings gives no right in the land, I take it
from that you don’t oppose ownership of the buildings going to the Charitable Trust?
John McLeod: No.
Evidence from Josie Anderson
[23]
Ms Anderson gave evidence on behalf of the Hauraki Māori Trust Board
(“the Board”). As part of her evidence she confirmed that the Board acts in a trustee
role for all twelve iwi, which make up the composition of the Board members. The
Board does not determine disputes between iwi.
[24]
Ms Anderson was questioned about the sum of $28,000.00 which was paid to
the Nga Uri a Maata Ngapo Charitable Trust. She advised that the money came from
fisheries funds and that this grant was part of a new policy that the Board was
looking to introduce. Anyone from across Hauraki could apply to the fund, but at the
2
3
33 Waikato Maniapoto MB 75 (33 WMN 75)
33 Waikato Maniapoto MB 77 (33 WMN 77)
49 Waikato Maniapoto MB 230
time this particular grant was made the policy around use of the fund was still in
development. Access to the marae grant was by application from each marae and the
funding had to be used for the marae.
[25]
Ms Anderson went on to say that the policy was that $100,000.00 a year
would be set aside for the marae development fund but that there were no controls to
ensure fairness of allocation as between the twelve iwi. The only rules related to the
closing date for making application and that the focus was on the marae. In any one
year marae affiliated to a particular iwi could apply for the entire $100,000.00 fund.
[26]
In respect of the particular grant of $28,000.00 to Nga Uri a Maata Ngapo
Charitable Trust, the Board convened a meeting on 18 February 2009 at which the
application was discussed and a resolution was moved. Ms Anderson brought the
application back to the Board at its 1 April 2009 meeting after discussion with the
Chair of the Trust Board4 “to ensure that the Board was fully aware of this
application because it was before the Court”. Ms Anderson confirmed that the Board
was aware of issues between Ngāti Tamaterā and Ngāti Porou and the Board was
also aware that Ngāti Porou and the Charitable Trust shared whakapapa links to other
tribes within Hauraki, including Ngāti Tamaterā.
[27]
In answer to the question as to whether the Board members, in signing off the
grant, would have considered the marae a Ngāti Porou initiative, Ms Anderson
answered as follows:5
Josie Anderson: I think that the Board’s considerations were perhaps broader than
that in terms of we have a Hauraki marae here where there has been a lot of
investment that’s already been made into the marae and that the amount being
requested was really quite small and I guess their desires to actually see the marae
finished and used by Hauraki became the motivating factor here...
[28]
In a later passage the following evidence was given:6
Mr Kahukiwa: And part of that motivating factor would have included the
intention to help out Ngāti Porou wouldn’t it?
4
38 Waikato Maniapoto MB 264 (38 WMN 264)
38 Waikato Maniapoto MB 266 (38 WMN 266)
6
38 Waikato Maniapoto MB 267 (38 WMN 267)
5
49 Waikato Maniapoto MB 231
Josie Anderson: Well the intention was to assist in getting the marae completed
and finished and used by the people.
Mr Kahukiwa: And that... they are people inclusive of Ngāti Porou?
Josie Anderson: Well certainly, and inclusive of Ngāti Tamaterā.
[29]
Later on Ms Anderson said:7
Josie Anderson: The intention of the Board was to get the marae completed and it
was being left to those parties to determine the purpose of the reserve and the name.
Mr Kahukiwa: Right, because again, the Board was very aware of the dispute...
Josie Anderson: [Sounds like] Everybody is aware Mr Kahukiwa of the
tukuwhenua relationship that exists between Ngāti Porou and Ngāti Tamatera.
Mr Kahukiwa: Meaning?
Josie Anderson: Meaning that the relationship issues, in this instance as a marae
was for them to determine. And our purpose was only to provide a small amount of
funding for them to complete the marae and to allow them to complete their
discussions.
Findings of Fact
[30]
My findings of fact are as follows:
a)
The Nga Uri a Maata Ngapo Charitable Trust raised all the funds and
paid for the building of the marae complex (this is not challenged by
the respondents);
b)
The sum of $28,000.00 paid as a grant from the Hauraki Māori Trust
Board to the Charitable Trust was for the purpose of assisting with
completion of the marae buildings, and was not from a fund
specifically allocated by the Trust Board to Ngāti Porou as an iwi.
Rather, the money came from a fund intended to assist marae, of
whatever iwi, to complete marae renovations or developments;
7
39 Waikato Maniapoto MB 267-268 (38 WMN 267-268)
49 Waikato Maniapoto MB 232
c)
The intention of the Charitable Trust in building the buildings was that
they would be permanently located on the land, although provision
was made in the construction of the buildings to be able to move them
around on the site if necessary;
d)
There was consent from the beneficial owners of the land to the
erection of buildings that were consistent with a papakainga
development but there was no clear consent to the building of the
wharenui;
e)
While members of the Charitable Trust are beneficial owners in the
land, the Charitable Trust itself does not hold shares in the land.
Applicant’s submissions
[31]
Counsel for the Charitable Trust made the following submissions:
a)
Mr McLeod does not actually oppose the ownership of the marae
buildings by the Charitable Trust so long as the Court makes it clear
that ownership in the buildings gives no right in the land;
b)
the buildings were established and constructed through the work of
the Charitable Trust and the Charitable Trust should have the benefit
of its efforts;
c)
the marae buildings are moveable.
The Court is not entitled to
undertake its own assessment of the annexation of the buildings to the
land by way of the site visit either to supplement or supplant the
evidence;
d)
the conditions prescribed in the Trust Board funding grant were
fulfilled by the Charitable Trust;
49 Waikato Maniapoto MB 233
e)
Mr McLeod has opposed the application for a collateral purpose – to
prevent any right of ownership in the land being conferred upon the
Charitable Trust.
This issue can be addressed by granting the
application on the basis that the ownership of the buildings confers no
right to ownership of the underlying land;
f)
contrary to Mr Tamihere’s arguments there is no evidence to support a
mixture of funds. Monies paid by the Hauraki Māori Trust Board for
the purposes of the marae project were not channelled through the
Ngāti Porou representative on the Trust Board nor the Ngāti Porou
Rūnanga. There is also no evidence that the Rūnanga contributed any
funds to the marae project;
g)
the buildings are not affixed to the land;
h)
the Court has jurisdiction to grant the application – s 18(1)(a) is clear
that the Court has jurisdiction to “determine” “any right” “or interest
in any such land”. Buildings can be chattels and the direct evidence
here is that the buildings are moveable. The independent building
report of Mr Apers filed with the Court confirmed that the buildings
are on timber piles not concrete or steel piles, and this evidence was
not challenged by the respondents.
Mr McLeod’s submissions
[32]
Counsel for Mr McLeod made the following submissions:
a)
the application is misconceived because the Court does not have
jurisdiction if the buildings are chattels. Section 18(1)(a) of Te Ture
Whenua Māori Act 1993 (“the Act”) cannot apply since:
(i)
it requires a subject that is of or in Māori freehold land, which
a chattel by definition is not; and
49 Waikato Maniapoto MB 234
(ii)
it is, in any event, declaratory in nature and cannot be used to
create new rights;
b)
if the buildings are part of the land then s 18(1)(a) cannot apply since:
(i)
there is no “ownership” or “possession” to find because the
land was made inalienable in 2002 on its being set aside as a
Māori reservation; and
(ii)
the section is declaratory in nature and cannot be used to create
new rights;
c)
the applicant is not kin to the owners of the land, lacks any freehold or
fee simple estate in the land, and lacks any other interest in the land.
The buildings are intended to be permanently on the land for the
purposes of a Ngati Tamatera marae;
d)
the applicant’s case relies on the buildings, sewage and water system
being chattels and if not then the case fails. The evidence is clear that
the buildings are fixtures, not chattels;
e)
the definition of “land” in s 4 of the Property Law Act 2007 refers to a
type of land interest now commonly known as leasehold, and once
known as chattels or chattels real. The definition does not include
moveable chattels such as a car, stock or other such object.
Runanga o Ngati Porou ki Hauraki (“the Runanga”)
Counsel for the Runanga submitted that funds paid by the Hauraki Maori Trust
Board were intended to benefit Ngati Porou at Harataunga. The marae was not
intended to be solely or mainly a Ngati Porou marae so that funds from the Trust
Board were effectively misappropriated. This gives rise to a Ngati Porou interest in
the buildings and the Charitable Trust should be required to account for the funds.
49 Waikato Maniapoto MB 235
Law
[33]
Section 18(1)(a) of the Act provides as follows:
18
General jurisdiction of court
(1)
In addition to any jurisdiction specifically conferred on the court otherwise
than by this section, the court shall have the following jurisdiction:
(a)
[34]
to hear and determine any claim, whether at law or in equity, to the
ownership or possession of Maori freehold land, or to any right,
title, estate, or interest in any such land or in the proceeds of the
alienation of any such right, title, estate, or interest:
Case law makes it clear that the Court’s jurisdiction is declaratory in nature –
the Court may declare existing ownership rights at law or in equity but cannot create
new ownership rights.8 It follows from the wording of the section that the Court
may also determine that a building is not part of the land and that the beneficial
owners of the land as a group are not the owners of the building.
[35]
Although common law provides that the owners of the land own any fixtures,
s 18(1)(a) enables the Court to recognise that one or more of the owners may
separately own a particular improvement. In determining these matters the Court has
equitable jurisdiction and may recognise constructive trusts.9
[36]
The Māori Appellate Court has expressed differing views as to the effect of a
s 18(1)(a) order, in particular whether, on making the order, a house remains a fixture
or becomes a chattel. There are also conflicting authorities on whether a s 18(1)(a)
order can be made in favour of a non-owner and, if not, whether the Court can grant
some other remedy in favour of a non-owner.
8
Williams v Williams – Matauri 2F2B (1991) 3 Taitokerau Appellate MB 20 (3 APWH 20), McCann
– Waipuka 3B1B1 and 3B1B2B1C2A (1993) 11 Takitimu Appellate MB 2 (11 ACTK 2) and Paki –
Matauri X Inc (1996) 5 Taitokerau Appellate MB 16 (5 APWH 16)
9
Matenga v Bryan – Parish of Tahawai Lot 18C-F and 18I (2003) 73 Tauranga MB 150 (73 T 150)
and Brokenshaw – Te Kaha B6X2 (2003) 81 Opotiki MB 18 (81 OPO 18)
49 Waikato Maniapoto MB 236
[37]
The Māori Appellate Court in Tohu – Te Horo 2B2B2B Residue10
commented:
[18]
An order under section 18(1)(a)/93 appears to separate the house from the
title to land and to treat it as a chattel. There is no ability to succeed to any such
order, it not being an interest in land and the order is treated as being personal to the
holder and lapsing on death. Anyone who wishes to sustain a further claim for the
house needs to apply for another order.
[38]
I note that the learned Judge in the decision Stock v Morris – Wainui 2D2B11
took a different view of the law and considered that when the Court makes a
s 18(1)(a) order the nature of the improvement as a fixture and the legal ownership
of the land remains unchanged, although as a result of the Court’s equitable
jurisdiction the house may be owned separately by those specified in the order. As
the learned Judge put it:12
... The Court is merely declaring the co-existence of legal and equitable interests in
land. That is what s 18(1)(a) expressly empowers the Court to do. In my view, there
is no need to conceptualize the house as a chattel.
[39]
In the Stock decision the learned Judge set out the history of the preceding
sections to s 18(1)(a) and came to the view that there is no restriction on who may
apply for an order under s 18(1)(a) – the applicants are not restricted to the legal
owners. In reaching that conclusion the Judge relied on the case of Sadlier – The
Proprietors of Anaura13 which considered s 30(1)(a) of the Māori Affairs Act 1953,
the predecessor section to s 18(1)(a).
[40]
I have also made a s 18(1) order in favour of a non-owner in the Matenga v
Bryan case. I note however that in Matenga the decision was that on making the s
18(1)(a) order the house was treated as a chattel and able to be removed by the
person in whose favour the order was made.
[41]
The leading case in New Zealand on the question of whether an improvement
is a fixture or not is Auckland City Council v Ports of Auckland14, which adopted the
10
(2007) 7 Taitokerau Appellate MB 34 (7 APWH 34)
(2012) 41 Taitokerau MB 121 (41 TTK 121)
12
Ibid at [48]
13
(1987) 24 Ruatoria MB 61 (24 RUA 61)
14
[2000] 3 NZLR 614
11
49 Waikato Maniapoto MB 237
approach set out by the House of Lords in Elitestone Ltd v Morris and Anor15. In
Elitestone the House of Lords proposed a broader, common sense approach to the
question of whether an improvement could properly be said to have become part and
parcel of the land. The main indicators that an improvement is a fixture are the
degree of annexation and the purpose of annexation.
Discussion
[42]
There are five issues in relation to this matter:
a)
What use can be made of the information obtained from the site visit?
b)
Are the buildings, or part of the buildings subject to an equitable
remedy in favour of the Rūnanga o Ngāti Porou Ki Hauraki?
c)
Are the buildings on the land fixtures taking into account the intention
or purpose of locating the buildings on the land, and the degree of
annexation to the land;
d)
If the buildings are fixtures are there orders the Court can make in
order to do justice between the parties?
e)
If the buildings are not fixtures what order can be made?
Site visit
[43]
Mr Majurey for the applicant referred to the decision of the High Court in
Matukituki v Queenstown Lakes District Council16 for authority that a decision
maker is to consider and weigh the evidence as presented, and not to either
supplement or supplant the evidence. It is not unusual for the Māori Land Court to
undertake site visits in relation to applications involving title reconstruction and
improvement. While plans, maps and photographs give some sense of the subject
15
16
[1997] 1 WLR 687, [1997] 2 All ER 513
HC Christchurch CIV-2006-412-733, 19 December 2006, Fogarty J
49 Waikato Maniapoto MB 238
matter of the applications, there is no substitute for the Court visiting the site in order
to get a proper understanding of the lay of the land, the existence of improvements,
buildings and services on the land, and to understand issues such as access and so on.
Normally, a site visit should be undertaken prior to the hearing so that parties can
receive the site visit report and provide evidence and submissions in response to such
a report.
[44]
In this case I was unable to undertake a site visit until after the hearing of
evidence in October 2011. For my part the site visit did no more than confirm the
evidence given at hearing as to the manner of construction of the buildings. In the
circumstances there is no need for me to supplement or supplant the evidence
provided at hearing.
Hauraki Māori Trust Board funding
[45]
Counsel for the Runanga submitted that funds from the Hauraki Māori Trust
Board should have been allocated to Ngāti Porou Ki Hauraki and/or should have
been approved by the Ngāti Porou member of the Trust Board if payment was to be
made to another group. No such approval was given. Counsel argued that the
funding grant was a wrongful use of money because the funds were used for a Ngati
Tamatera marae rather than one which should be entirely Ngāti Porou. He also
argued that the Charitable Trust was aware of this wrongful allocation of funds and
the Court should therefore find that the funding was required to be for a Ngati Porou
marae and/or the Charitable Trust ought to account for the monies.
[46]
The evidence from Ms Anderson on behalf of the Hauraki Māori Trust Board
made it clear that the $28,000.00 grant came from a marae development fund. That
fund was not tagged to any particular iwi in the Hauraki confederation, nor was there
any intent that the fund be used equally amongst the 12 different iwi. Rather, Ms
Anderson’s evidence was clear that the fund was on a marae basis and grants were
on application by marae. The only tag on the funds was that they were to be used for
completion of a marae so that the marae could be used by the people.
49 Waikato Maniapoto MB 239
[47]
I found Ms Anderson’s evidence to be comprehensive and reliable. As a
consequence I hold that there is no basis for any claim in equity relating to
traceability of the funds or any other claim based on fiduciary obligations owed by
either the Trust Board or the Charitable Trust.
Are the buildings fixtures?
[48]
The intention or purpose of constructing these buildings on Harataunga West
2B2A1 was to provide the usual marae buildings, so that the land could be used for
the purpose of a marae. Indeed Korohere Ngapo’s evidence was that prominent
elders had been unable to lie in state at the marae because of the injunction which
prevented completion of the buildings. That is a clear indication that the buildings
were intended to be permanently situated on the land so that the land could be used
as a marae. While the manner of construction allows the buildings to be relocated if
necessary, the evidence shows that the relocation was only to be to another position
on the land, not to another piece of land all together.
[49]
In terms of the degree of annexation I note that the buildings were not placed
on skids, but rather were affixed to timber piles. While I accept the independent
building report of Mr Apers that there would be little difficulty in moving the
buildings, that is only one factor which the Court must take into account in
determining whether the buildings are chattels, fixtures or part and parcel of the land.
[50]
In my view the evidence provided at Court regarding the intentions of the
Charitable Trust as to the use and purpose of the buildings in siting them on the land,
combined with the way the buildings were attached to piles, means that these
buildings are fixtures.
[51]
For the sake of completeness I note that the sewage and water tanks were
built into the ground, and there was no attempt by the applicant to suggest that these
were not fixtures.
[52]
Given my finding it is clear that the buildings are part of the land.
49 Waikato Maniapoto MB 240
Should an order be made under s 18(1)(a)?
[53]
Mr Kahukiwa’s submission was that an order pursuant to s 18(1)(a) can only
be made in favour of one of the co-owners of Māori freehold land, and cannot be
made in favour of a non-owner. The Charitable Trust is not an owner in the land,
although some of its members are owners in the land. Mr Kahukiwa went on to
submit that the Court cannot create new rights but can only declare existing rights.
Following the logic of this submission that would mean the Court could not
recognise the Charitable Trust as an owner of the buildings because that would be to
create an ownership right in the Trust which was not previously in existence.
[54]
Mr Kahukiwa also called in aid s 338(11), which provides that land
comprised within a Māori reservation is inalienable. The definition of “alienation” is
given in section 4 of Te Ture Whenua Maori Act 1993. Section 4 provides that the
definition of alienation does not include dispositions of Maori land that are effected
by order of the Court. Thus the Court is able to make a s 18(1)(a) order to determine
ownership of the buildings. Moreover the current context is one where the applicant
for this order has taken the stance that the building are moveable and are therefore
chattels. That is quite different from a situation where there is a transaction intended
to change ownership of the actual earth. If Mr Kahukiwa’s argument was correct is
might mean that trustees could not demolish or renovate old marae buildings as that
would be an alienation.
[55]
The Court is also able to recognise and give effect to equitable principles in
relation to property, by use of the constructive trust doctrine or principles relating to
unjust enrichment in order to do justice between the parties.
[56]
Again I must consider the context in which this application has been made. If
the supporters of the Charitable Trust are successful in opposing the redefinition of
the Māori reservation and are able to use the land as a marae then there is not much
point in making a s 18(1)(a) order in favour of the Charitable Trust. The application
is really to protect the position of the Trust should the proceedings as to the
definition and purposes of the reservation go against the Charitable Trust’s
49 Waikato Maniapoto MB 241
supporters. If that eventuated then the Charitable Trust may well wish to remove the
buildings from the land and relocate them to another spot. Moreover the Charitable
Trust may well need to take such action in order to maintain good faith in terms of
obligations owed to the funding agencies. Given Mr McLeod’s expressed view that
he would be happy for the buildings to be removed or alternatively that a s 18(1)(a)
order could be made so long as the Charitable Trust did not gain an ownership
interest in the land, the real question for the Court is how to give effect to the parties’
wishes in a valid way.
[57]
To allow the owners of the land who do not support the Charitable Trust’s
aims to have the benefit of the buildings on the land without some recompense to
those who donated time and money to the project would be an unjust enrichment.
The evidence shows that at least $30,000 was raised from individual donations, and
considerable time and energy was expended by members of the trust in making
funding applications, and organising and completing the building works. Given the
reservation status of the land it is unlikely that the beneficial owners will ever have
the wherewithal to repay a charge over the land in favour of the Charitable Trust, and
a charge would, in fact, be an alienation unless the Court were to make relevant
orders.
[58]
A viable compromise is for the Charitable Trust to be able to remove the
buildings, if that is required in the future. I am reinforced in this view by the fact that
the buildings are easily removable. The water tanks and sewage system, however, are
not. As it would cause considerable damage to the land to remove these items they
must fall into a different category to the buildings.
[59]
In these circumstances and in order to provide a practical solution as required
by s 17(2)(f) I consider that the Court is entitled to make an order in favour of a nonowner upon certain conditions.
In this case the condition would be that the
Charitable Trust would be required to remove the buildings from the land within 12
months if Mr McLeod is successful in the other proceedings relating to this land.
49 Waikato Maniapoto MB 242
Order
[60]
For the reasons given above there is an order pursuant to s 18(1)(a)
determining that the owner of the wharekai, ablution block and wharenui, but not the
water tanks and sewage system, on Harataunga West 2B2A1 Block is Nga Uri a
Maata Ngapo Charitable Trust. This order is conditional upon the Charitable Trust
removing the buildings from the land if Mr McLeod is successful in other current
proceedings relating to the land, being application number A20070007619 and
application number A20090018262. The buildings are to be removed within 12
months of completion of those other proceedings if necessary.
Pronounced in open Court at 4.10 pm in Hamilton on the 18th day of December
2012.
S Te A Milroy
JUDGE