Minister of Conservation v Maori Land Court
[2008] NZCA 564
•18 December 2008
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA61/07
[2008] NZCA 564BETWEENTHE MINISTER OF CONSERVATION
Appellant
ANDTHE MAORI LAND COURT
First RespondentANDTHE TRUSTEES OF TE HURIA MATENGA WAKAPUAKA TRUST
Second RespondentsANDREGISTRAR-GENERAL OF LAND
Third Respondent
Hearing:27 and 28 May 2008
Court:Chambers, Robertson and Baragwanath JJ
Counsel:F R J Sinclair, C R W Linkhorn and C D Tyson for Appellant
J P Ferguson for Second Respondents
Judgment:18 December 2008 at 2 pm
JUDGMENT OF THE COURT
A The appeal is allowed.
B The orders made by the first respondent on 8 September 1998 are declared to have been wrongly made.
C A declaration is made that the certificate of title 23/219, issued under the Land Transfer Act 1885 in 1901, did not include the mudflats below the mean high-water mark.
D No order as to costs.
E Liberty to apply for further orders.
REASONS
Chambers and Robertson JJ[1]
Baragwanath J (dissenting in part) [113]CHAMBERS AND ROBERTSON JJ
(Given by Chambers J)
Table of Contents
Para No
Ownership of an estuary [1]
The relevant background to this appeal [10]
Proceedings before the Maori Land Court [39]
The High Court proceedings [53]
Issues on the appeal [56]
Was it open to the Maori Land Court in 1986 to find the estuary was
Maori freehold land by virtue of the diagram on the NLC CT? [58]
Was it open to the Maori Land Court in 1998 to find the estuary was
Maori freehold land?[77]
[85]
Fogarty J’s decisionWhat we are not deciding [98]
Result [103]Tailpiece: Baragwanath J’s opinion [107]
Ownership of an estuary
[1] The Wakapuaka Estuary is a beautiful inlet not far from Nelson. It is shaped like a V, with Pepin Island dividing its two arms. At the top of the left arm, across a narrow boulder bank, is Cable Bay, where the first telegraph cable between New Zealand and Australia opened for business in 1876. At the top of the other arm is Delaware Bay. The brig Delaware was wrecked here in 1863. The crew were rescued by a young Maori woman, Huria Matenga, and her husband, winning Huria the title of “New Zealand’s Grace Darling”.
[2] In the early 1980s, the then Nelson‑Bays United Council began to formulate policies and propose management plans for the administration, development, and preservation of its coastal districts. Among the proposals suggested was gazetting certain areas for commercial exploitation (marine farming and other aquacultural pursuits). Other interest groups proposed that marine reserves be established in localities such as the Wakapuaka Estuary. Neither of those extremes was particularly appealing to the majority of whanaunga with interests in the Wakapuaka district. Nor did they appeal to a large number of Pakeha residents living at Delaware Bay and around the Wakapuaka Estuary. In 1986, public meetings on the issues were called and the residents elected representatives to frame objections to the mooted proposals and to make submissions on their behalf. At this time, it came to light that local Maori had long considered the estuary as theirs and, indeed, they claimed there was a “native title” proving their ownership of the estuary. Local residents, on learning of this claim, resolved to support the whanaunga’s assertion of native title.
[3] Iwi in the area developed a two-pronged approach. First, the Nelson Maori Committee appointed Jim Elkington and Ratapu Hippolite to ensure that general iwi concerns could be voiced to the council. Secondly, Mr Elkington applied to the Maori Land Court for an order determining ownership of the estuary. Judge Cull heard the application on 7 May 1986. He was satisfied the estuary was Maori freehold land. He accordingly determined, under s 438 of the Maori Affairs Act 1953, that the land should be vested in trustees for a period of five years, their principal task being to investigate and determine the rightful owners of the estuary and to prepare a management plan. In 1992, the life of the trust was extended.
[4] In 1998, the question of ownership of the estuary came back before the Maori Land Court. On this occasion, Judge Isaac presided. By this time, the Maori Affairs Act 1953 had been replaced by Te Ture Whenua Maori Act 1993 (Maori Land Act 1993). Judge Isaac had to determine two applications. The first was an application under s 18(1)(a) of the 1993 Act to determine ownership of the estuary. The other was an application under s 216 to constitute a whenua topu trust. The judge concluded the estuary was Maori freehold land, relying principally on his interpretation of a Native Land Court certificate of title issued in 1883. This title, on Judge Isaac’s interpretation, had recognised Mrs Matenga as owner of not only the Wakapuaka block but also the estuary itself. Judge Isaac concluded it was appropriate to constitute a whenua topu trust, the beneficiaries of which were the descendants of ancestors who had lived and were buried at Wakapuaka.
[5] The Crown’s involvement in the proceedings up to this time had been indecisive. (We do not use that epithet pejoratively.) But Judge Isaac’s decision spurred the Crown into action. It disputed that the estuary was Maori freehold land, the premise upon which the 1986 and 1998 orders were based. The Crown pointed to the fact that Mrs Matenga’s Native Land Court certificate of title (the NLC CT) had, in 1901, been effectively superseded by a title under the Land Transfer Act 1885 (the LTA CT), which undisputedly showed her land ending at high-water mark. The Crown contended the earlier NLC CT had been misinterpreted by the Maori Land Court.
[6] The Department of Conservation, as the agency responsible for coastal management, sought judicial review of the Maori Land Court’s decisions on the grounds that the Maori Land Court had erred in law as to the status of the estuary and had failed to take into account the relevant and determinative preliminary survey plans underlying the titles subsequently issued. The Minister of Conservation sought orders quashing the orders of the Maori Land Court of 1986 and 1998 and declarations that none of the orders of the Native Land Court nor the LTA CT included the area of the mudflats below mean high‑water mark.
[7] The application was heard by Fogarty J. The hearing took a somewhat unusual and protracted course. As a result of a series of minutes issued by the judge, more evidence was called and many more issues than the parties had identified became the subject of submission. Midway through the case, the judge joined the Registrar-General of Land as a party, even though neither the Minister of Conservation nor the trustees of Te Huria Matenga Wakapuaka Trust (the trustees), the second respondents, sought any relief affecting him. On 21 December 2006, the judge dismissed the minister’s application: Minister of Conservation v Maori Land Court [2007] 2 NZLR 542. He held that the NLC CT was to be preferred to the LTA CT. In so far as the NLC CT was ambiguous, the court was required to interpret the certificate in a way most favourable to the property owner. He rejected the minister’s argument that the Maori Land Court had erred in failing to take into account the preliminary survey plans underlying the title; he considered such extrinsic evidence inadmissible.
[8] Effectively, the outcome of the High Court hearing was a win for Mrs Matenga’s successors. An unresolved question, however, was whether the NLC CT could now be recognised as a certificate of title under the Land Transfer Act 1952. Fogarty J left that matter unresolved as there had been “no formal application by anyone to direct the issue of an LTA certificate”: at [177].
[9] From this decision, the Minister of Conservation has appealed. He seeks orders setting aside the High Court judgment and declaring that the relevant titles did not include the estuary below high-water mark. He also seeks orders quashing the Maori Land Court’s decisions vesting the estuary in the trustees.
The relevant background to this appeal
[10] Before we turn to the issues that arise on this appeal, we need to set out in more detail the relevant background to this appeal so that the issues can be seen in context.
[11] The Crown obtained title to the majority of land in the South Island by a series of large-scale Crown purchases, mainly in the 1850s. The Crown did not purchase the Wakapuaka block. It remained owned by Maori.
[12] In 1856, the Nelson Survey Office prepared a plan (SO930), dated 28 August 1856. The title to that plan reads:
Outline map of the New districts from which the Native title has been extinguished extending from the Native Reserve at Wakapuaka Blind Bay to the North of the River Wairau including the Pelorus, Queen Charlottes Sound and Port Underwood.
[13] The note above the title states:
The pink colour shows the Native Reserves, yellow land claimed by Europeans.
[14] The Wakapuaka Native Reserve is coloured pink and as shown excludes the mudflats; the blue sea wash (colour) covers the estuary.
[15] In 1864, the Nelson Survey Office prepared Maori Land Plan 1290, entitled “Native Reserve at Wakapuaka”. That reserve is coloured solid in green and goes around the periphery of the estuary, distinctly excluding the mudflats from the reserve. Again, the blue sea wash covers the internal estuary boundary.
[16] The Survey Office prepared a plan of Cable Station in 1877: SO1289. That showed the estuary, of course, and depicted the estuary boundary as “High-Water Mark”. Another survey plan, prepared before 1885, the Wakapuaka District Roll Plan SO102, again showed the mudflat excluded from the Native block.
[17] In August 1883, Huria Matenga and others applied to the Native Land Court for title to the Wakapuaka block. Mrs Matenga’s application was made pursuant to s 16 of the Native Land Court Act 1880. The application was prepared by Commissioner of Native Reserves Alexander Mackay. According to David Alexander, an expert witness called in the High Court on behalf of the Maori Land Court, a large number of Maori in the South Island made application in 1883, as a consequence of the passing of the Native Reserves Act 1882. This Act removed certain limitations on the Native Land Court’s powers concerning reserved lands, with the consequence that, he says, “the Court was freed up to work in the South Island”. Indeed, in June 1883, the court advised, by notice in the New Zealand Gazette, that “numerous applications [had] been received from natives interested in lands in the Middle [South] Island to have their claims determined” and urged further applications to be lodged “at once” before a sitting was arranged. It would appear that Mrs Matenga’s claim followed that exhortation.
[18] Mrs Matenga’s actual application is not in evidence, but the nature of it was summarised in the Gazette Notice the court caused to be published on 22 August 1883. Section 20 of the Native Land Court Act required the Chief Judge of the Native Land Court to publicise any application he had received to have title investigated. Section 21 provided that, in the same notice, he was to notify the date and place when and where the court would sit for hearing the applications which had been notified. The Gazette Notice of 22 August 1883 specified a large number of applications, of which Mrs Matenga’s was number 42. The notice specified that the court would sit at Nelson, beginning on 15 November that year.
[19] The Gazette Notice was published in English. It specified that Mrs Matenga’s application was in respect of “Wakapuaka … block”. Presumably, the dots indicated that this was a summary of the block description given in the actual application. The notice specified the “boundaries”, as set forth in the application as follows:
Bounded on the West and North by the sea, commence at Waihi, thence to the Wangamoa Stream; the eastern boundary is the Wangamoa Stream; bounded on the North [South] by European land; one portion of this has been excluded, being the 10 acres at Rotokura disposed of to the Government for a cable station.
[20] It was common ground before us that the Gazette Notice was in error in describing the European land as being to “the north” of the claimed land; the European land was to the south. According to Mr Alexander, the original application was in Maori. There is some doubt as to whether the Maori term “te takutai moana”, used in the application, has been correctly translated as “the sea”. As Mr Alexander said in his affidavit, it would require evidence from “a Maori language expert to define the meaning of the use of both words as at 1883”, which evidence is lacking. But, for the reasons we later give, that is not a matter which we need to resolve.
[21] Mrs Matenga’s application was heard by the court on 17 and 19 November 1883. Judge Mair presided. Fogarty J, in his judgment, said of Judge Mair that he was “a very famous man indeed, and not a lawyer”. He continued at [158]:
He is better known as Major William Gilbert Mair. He is the brother of the even more famous Captain Gilbert Mair and the son of another famous Gilbert Mair of the Bay of Islands. The two brothers were brought up in the Bay of Islands among Maori. They were fluent in Maori. Both were officers of the Crown in the Maori Wars fighting alongside Te Arawa militia. They both had an intimate understanding of Maori custom. They were both held in the highest regard by Maori tribes.
[22] Judge Mair kept “minutes” of the hearing and of his decision. He recorded that the land in question had been “reserved from sale at his (Wi Katene) instance”. (Wi Katene was Mrs Matenga’s father.) Judge Mair recorded his 20 November 1883 decision as follows:
The Court makes an order in favour of Huria Matenga for the Wakapuaka Block, as shown in the map, excepting the 100 acres set apart for Ngati Koata, and 100 acres the Cable Station … A certificate of title to issue upon production of an approved survey.
[23] Unfortunately, the “map” referred to by Judge Mair has been lost. We know, from Land Information New Zealand’s old Native Reserve Register, that Judge Mair signed a plan on 19 November 1883. We also know that, by January 1884, that plan had been given a number by the Survey Office in Wellington. That number was WD679. (“WD” was an abbreviation for “Wellington District” and was the prefix used in the early years of the Survey Office in Wellington to identify Maori land plans registered in that office.) We also know that on 26 January 1884 the Chief Surveyor, Wellington, sent plan WD679 to the Surveyor-General for “action”. The plan, and two others sent with it, were noted: “Approved surveys required”. On 25 March 1884, the Surveyor-General’s Office forwarded plan WD679 to the Chief Surveyor, Nelson, for deposit in his district. At some stage, the Survey Office in Nelson renumbered the plan “24/2 (old drawer number)”.
[24] But what did the plan WD679 – 24/2 look like? Ross Moulton, an expert witness called by the minister, has expressed the view that the plan referred to was probably a tracing of ML1290, referred to at [15] above. He noted that ML1290 has the drawer number 24/1. Mr Moulton set out his reasons for thinking that was probably the plan to which the judge was referring; we agree with his conclusion, for the reasons he gave. There is no evidence contrary to Mr Moulton’s on this point. In particular, we note that, at that time, court maps or plans were tracings from plans held in the Survey Office and it is significant that the only plan recorded in the register for the Wakapuaka block, prior to November 1883, is ML1290. If the plan Judge Mair signed was a copy of ML1290, then it would seem clear he was not including the mudflats within the order.
[25] It is true that neither the minutes nor the order expressly referred to the mudflats or estuary. But it is instructive to note what the Crown’s general attitude was to the 98 applications before the court at this sitting. According to Mr Alexander, Commissioner Mackay’s primary role at the sitting was to uphold the Crown’s claim to title to most of the northern South Island as a consequence of purchase arrangements made in the 1850s. He seems to have been most successful in that regard as, of the 98 applications for title set down for hearing, title was ordered in only three, namely Wakapuaka, Taitapu and Rangitoto (D’Urville Island). These were the only claims, according to Mr Alexander, “which the Crown was prepared to accept as having any validity”. Commissioner Mackay, as well as having official involvement, appears to have acted unofficially as Mrs Matenga’s agent in her claim to Wakapuaka block; whether he became involved in that role because of the Crown’s acknowledgement of the validity of Mrs Matenga’s claim from the outset or whether her claim got preferential treatment because it had Mr Mackay’s support is unclear on the evidence. But, given the Crown’s generally niggardly stance to the applications, one would have expected some mention, either in the minutes or the decision or both, to the estuary, if it were part of the claim. It is also significant that, in a lengthy newspaper article reporting the proceedings in detail, there was no mention of the estuary forming part of the claim.
[26] Judge Mair’s decision was made pursuant to s 25 of the Native Land Court Act:
If the Court is satisfied as to the title of the applicants or of any other Natives to the land, or any part thereof, it shall order the names of those so entitled to be placed on the register as owners, and a certificate of title to issue.
[27] The next two sections are also relevant:
26In cases in which a survey has been made prior to the hearing, and a sufficient plan and description are in possession of the Court, a certificate of title shall be issued forthwith.
27In cases in which no such plan and description are in possession of the Court, it shall require a survey, if not already made, to be made, and a sufficient plan and description to be deposited in Court.
[28] It is clear from the judge’s order that a satisfactory survey was not then available. Mr Mackay, as Commissioner of Native Reserves for the South Island, made application for the survey of the Wakapuaka block on 29 November 1883, following Judge Mair’s decision of the previous week. The surveyor entrusted with the task was W D B Murray, an Assistant Surveyor working under the supervision of the Chief Surveyor: see reg 39 of the Regulations and Instructions of the Survey Department 1879. It is not clear exactly when Mr Murray began his survey work, but he was certainly underway by December 1884, when his survey notes show that the first of his survey plans was signed as being completed. By May 1885, he had completed his survey and created a composite plan of the entire block. He produced four large scale (ten chains to one inch) detail plans – ML3572, 3573, 3574, and 3576 – together with a smaller scale plan (40 chains to one inch), ML3575, showing the whole block. ML3574 was the detailed plan showing the bulk of the Wakapuaka mudflats. That plan shows the blue sea wash of the Delaware Bight coming through the entrance and covering the entire estuary. That plan shows the boundary to the sections allocated to the block as being bounded by the estuary. Further, the plan carries a notation “Sand banks not included”.
[29] ML3575 shows all the sections in the Native Reserve with their respective areas. As with ML3574, the sections are bounded by the estuary, which is coloured in the blue sea wash. The plan shows the area of each section and the total area of the block. Mr Murray gave the total area as 17,575 acres. As it happens, that is extremely close to the area derived by modern surveying equipment, provided the estuary area is excluded. The estuary area, according to Land Information New Zealand technical staff, is 850 acres, more or less. It is inconceivable that Mr Murray could have made an error as to land area of that magnitude, had he intended to include the estuary area as part of the surveyed land.
[30] There is another important piece of evidence indicating the estuary was not part of the surveyed land. Mr Murray’s field notes show the survey traverse and offset measurements used to fix the boundary around the estuary, and such measurements are to cadastral boundary standards. As Mr Moulton observed in his affidavit, if Mr Murray had intended the title to include the estuary, there would have been no need for detailed survey of that area. Indeed, the laborious task of establishing mean high-water would have been irrelevant. Given that, at that time, establishing mean high-water involved observation “over some months”, according to Mr Moulton, it would seem very unlikely Mr Murray would have gone to that trouble for no reason.
[31] Neither ML3574 nor ML3575 shows a boundary line across the outlet between Pepin Island and Delaware Bay. Had the estuary been included in the surveyed land, a boundary across that outlet would have had to be established.
[32] In our view, there can be no doubt that Mr Murray’s survey plans did not include the mudflats as being within the Wakapuaka block. He has shown that in a number of ways: the use of blue sea wash throughout the estuary; the notation “Sand banks not included”; the land area, which is consistent only with exclusion of the estuary area; the field notes, indicating the fixing of a boundary around the estuary to cadastral boundary standards; and the absence of a boundary line on the outlet.
[33] In December 1885, the Chief Surveyor, Nelson, sent to the registrar of the Native Land Court certificates of title for Wakapuaka and D’Urville Island. It is clear from contemporary correspondence that the registrar must have immediately inquired as to the whereabouts of the supporting survey plans. The Chief Surveyor sent them to the registrar on 5 January 1886. The following day the registrar wrote to Judge Mair, enclosing the “draft Certificates in duplicate, also papers and plans relating to D’Urville’s Island and the Wakapuaka Block”. Judge Mair, after receiving and considering the documents, wrote on the registrar’s letter: “Certificates signed and returned”. The registrar himself then noted the judge’s endorsement, writing “Noted”, initialling his name, and adding a date, namely 23 January 1886.
[34] In due course, the Native Land Court issued a certificate of title recording Mrs Matenga as “the Owner, according to Native Custom, of all that Piece or Parcel of Land at Wakapuaka”. In accordance with s 35 of the Native Land Court Act, the title was backdated to “the day on which the order in Court [was] made directing the same to issue”. The title contained the area of the block, its boundaries, a diagram of the land, and a notation indicating the land had been surveyed by W D B Murray. The diagram was merely representative of the underlying survey plan, which was the definitive document: see Native Land Court Act, s 32. The problem is, of course, that that survey plan is also missing! It was lost in 1928. We shall refer to this (missing) plan as “the 1886 survey plan”.
[35] Thus, the NLC CT presents without its underlying survey plan. On its face, it is ambiguous. It could be interpreted as including the estuary within the boundaries described. Whether that is the correct interpretation of it is a matter we shall consider later in these reasons.
[36] At some point, the Survey Office prepared the Wakapuaka District Plan (SO103). This plan was prepared from ML3572-3576. Like those plans, it clearly shows the section boundaries abutting the estuary. The respective areas of the sections listed collectively produce Mr Murray’s total area of 17,575 acres: see [29] above.
[37] In 1894, Parliament passed the Native Land Court Act 1894. In essence, that Act provided, inter alia, that existing Native Land Court certificates of title could be converted into titles under the Land Transfer Act 1885. Until such time as a Land Transfer Act certificate of title issued, the existing Native Land Court certificate was to be embodied in what was termed the Provisional Register: see s 73. Mrs Matenga’s NLC CT was entered in the provisional register as vol 2/193. Essentially, both the title and the diagram on it appear to be copies of the NLC CT.
[38] In August 1901, the District Land Register, Nelson, issued Mrs Matenga with the LTA CT. The title was backdated to the date of Judge Mair’s decision, namely 20 November 1883: see s 73. The plan underlying the LTA CT is explicit: the estuary is not part of the title.
Proceedings before the Maori Land Court
[39] On 4 April 1986, Mr Elkington applied to the Maori Land Court for an order vesting the estuary in himself, Tarawara Katene, Ratapu Hippolite, and Janice Manson, as trustees. He made the application under s 438 of the Maori Affairs Act 1953, subs (1) of which read as follows:
(1)For the purpose of facilitating the use, management, or alienation of any Maori freehold land, or any customary land or any General land owned by Maoris, the Court, on being satisfied that the owners of the land have, as far as practicable, been given reasonable opportunity to express their opinion as to the person or persons to be appointed a trustee or trustees, may, in respect of that land, constitute a trust in accordance with the provisions of this section.
[40] Mr Elkington did not have a lawyer. We are not sure whether that application was formally served on the Crown. What we do know is that, at the sitting on 7 May 1986 before Judge Cull, a Ministry of Transport lawyer appeared. It is unclear the extent to which he was properly briefed on the matter; certainly at this stage the Crown Law Office knew nothing of Mr Elkington’s application.
[41] The evidence before Judge Cull was very skimpy. Of the titles and plans referred to in the previous section of these reasons, he had only the NLC CT. He knew nothing of the history to Mrs Matenga’s 1883 application. Nor was he referred to the relevant 19th century legislation. (That last point should not be taken too far, however. Judge Cull was a lawyer and judge with a long and deep knowledge of Maori land law and may well have been familiar with the detail of the 19th century legislation.)
[42] Judge Cull made two orders on 7 May. First, purporting to act under s 438(2), he vested the estuary in Mr Elkington and the others named in the application. The land (the estuary) was said to be “Maori freehold land”. In the second order, purportedly made under s 438(5), he ordered that the trustees were to hold the land “upon and subject to this being an Investigatory Trust for a period of five (5) years”. The order continued:
The Trustees shall have such powers and authorities as are necessary for the effective performance of the trusts herein contained including power:
1To investigate and determine the rightful owners of the Estuary area or mudflats in the said block.
2To provide the best possible means of administering the same.
[43] We have considerable doubt as to whether orders of that sort were possible under s 438 even if the estuary were “Maori freehold land”. But the real issue is whether the court was right in finding it had been established the estuary was “Maori freehold land”. Judge Cull gave no reasons for his decision.
[44] On 21 July 1992, Deputy Chief Judge McHugh extended the Investigatory Trust for a further period. It was not now to “expire” until 7 May 2001.
[45] The matter came back before the Maori Land Court in 1998. This time the Crown was properly represented, although it is obvious from the transcript of the hearing that Crown counsel was not in a position to argue the matter. She sought an adjournment to enable further investigation to be made as to the estuary’s status, but Judge Isaac refused it. There was still considerable confusion on the applicants’ side as to the estuary’s status. Mr Williams, who appeared for them, contended the 1986 order resolved the issue that the estuary was “Maori land”; the only issue remaining, he said, was whether it was Maori freehold land or customary land. The application had been framed on the basis it was customary land, but Mr Williams, following interchanges with the judge, amended the application so as to assert the estuary was Maori freehold land.
[46] Judge Isaac made two orders. First, he terminated the investigatory trust set up in 1986, pursuant to s 241 of the 1993 Act. Secondly, the court established a whenua topu trust under s 216 of the 1993 Act. By this order, “the Maori freehold land” – the estuary – was vested in Selwyn Katene, Keri Stephens, Moetu Stephens, and Janice Manson. The terms of the trust were fixed under s 219, and were attached to the trust order as a schedule.
[47] In the supporting reasons, Judge Isaac concluded that the estuary had been included in the 1883 order. His Honour said that “the minutes of the Court in 1883” did not assist as to whether the estuary was included in the order. But what he did find useful was a statement by Jack Harvey, which was annexed as an exhibit to a Crown affidavit in the case before him. The judge summarised Mr Harvey’s evidence as follows:
Mr Harvey was born in March 1928 and his statement explains his family’s association with the Wakapuaka Maori back to the 1850s with the arrival at Wakapuaka of his great-grandfather. He says that the tribe moved back to the Coast before his time and iron gates were erected and kept locked “even after the Matenga Estate sold the property. If you wanted to go fishing … you had to get permission from Mrs Martin (Huria Matenga) … That was for fishing in the inlet and out in the Bay too … In my Dad’s time, he and his brothers used to do a lot of fishing down there and they always went and got permission … I was born in 1928. I worked at the Pa for the Hemi Matenga Estate … When the Matenga Estate sold up, … one of the Trustees came to me and offered to sell me that mudflat for a shilling an acre. The whole mudflat. I didn’t have the money to buy it. But it’s actually Maori property, that mudflat …”
[48] With that “historical background in mind”, Judge Isaac said, he then turned to consider the NLC CT, and in particular the diagram on it. He interpreted that diagram as including the mudflats within the title. He concluded:
This being so, it appears that the historical reports referred to and the factual analysis are not contradictory and as a result, this Court is of the view that the Wakapuaka Mudflats are included in the 1883 title.
[49] In any event, Judge Isaac considered that the Crown could not challenge now either the 1883 order or the Maori Land Court’s 1986 decision. This was because challenge was rendered impossible by s 77 of the 1993 Act.
[50] Judge Isaac considered it clear that the estuary had had “the status of Maori freehold land prior to the 1993 Act”. It continued to have that status, he said, by virtue of s 129(3) of that Act.
[51] He then went on to consider whether it was appropriate to constitute a whenua topu trust. He considered it was. He also thought that the trustees were, in terms of s 222, “broadly acceptable to the beneficiaries”.
[52] Before leaving Judge Isaac’s judgment, we should make clear that, while he had more evidence available to him than Judge Cull enjoyed, he had much less evidence before him than we have had before us.
The High Court proceedings
[53] As we have explained above, the Minister of Conservation sought judicial review of the Maori Land Court’s decisions. Fogarty J found against the Crown. His Honour noted that the Native Land Court Act 1880 empowered the Native Land Court to ascertain the owners of land that had not been sold to the Crown by considering native custom and usage. That direction, His Honour thought, made irrelevant the English common law as to the ability to own seabed and foreshore. By native custom and usage, Maori could control land such as mudflats, particularly where the area, as in this case, was enclosed and naturally defensible. His Honour considered that the NLC CT issued in 1883 was drawn to recognise pre-existing rights by virtue of custom and usage. Any challenge to read down the application of a certificate of native title had to be read subject to the principle that the common law did not derogate from property rights. In light of this, given the ambiguity in the NLC CT, the court was required to interpret the certificate in the way most favourable to the property owner.
[54] His Honour held that extrinsic evidence of the preliminary plans, some of which we have set out earlier, was not admissible to aid the interpretation of the defective NLC CT. At common law, the primary evidence of boundaries was the documented title and extrinsic evidence was not admissible to contradict, vary, or add to the terms of the title. The only extrinsic evidence admissible was evidence of the same knowledge about the title as was in the possession of the parties at the time when the title was drawn up. In His Honour’s view, that principle was effectively included in s 39 of the Native Land Court Act 1880, the prevailing statute of the time, in its express exclusion of reliance on preliminary plans when drawing the NLC CT.
[55] His Honour then turned to consider the LTA CT, which Judge Isaac had not mentioned at all. In Fogarty J’s view, the LTA CT did not comply with the requirements of s 73 of the Native Land Court Act 1894, as in his view an LTA title issued in relation to Maori freehold land had to replicate the NLC certificate issued off a survey plan under the Native Land Court Act. The LTA CT differed in a number of material aspects from the NLC CT, including the area of land within the title and the description of the boundaries. In his view, the NLC CT prevailed and the LTA CT could be corrected. No one had actually sought such an order in the present proceeding, so exactly what was now to happen to the LTA CT was left unresolved.
Issues on the appeal
[56] With that rather lengthy background to the current appeal, we turn to the issues on this appeal.
[57] Mr Sinclair, for the Minister of Conservation, advanced a number of grounds on which he said the Maori Land Court and the High Court had erred. In the end, we find it necessary to discuss only one of them, on which the Crown must win. That crucial issue relates to the effect of the LTA CT.
Was it open to the Maori Land Court in 1986 to find the estuary was Maori freehold land by virtue of the diagram on the NLC CT?
[58] Before the Maori Land Court could exercise powers under s 438 of the Maori Affairs Act, the land in question had to be either Maori freehold land or customary land or General land owned by Maoris: see subs (1). Mr Elkington and his colleagues pitched their case on the basis that the estuary was Maori land, but were unspecific as to whether it was Maori freehold land or customary land. They relied on the oral history of the estuary and on the diagram which formed part of the NLC CT. Although the court did not give reasons, it is clear from the terms of the orders made that Judge Cull found the estuary was Maori freehold land, a conclusion which must have been based on his interpretation of the diagram on the NLC CT.
[59] In our respectful view, the court was wrong so to find. That course was not open because of the LTA CT and its underlying survey plan. In fairness to Judge Cull, however, we should point out that it seems the LTA CT and its survey plan were never shown to him. He may well not have realised that the NLC CT had been registered under the Land Transfer Act.
[60] We need now to explain how there came to be a certificate of title under the Land Transfer Act and what its significance is.
[61] The LTA CT came into being by virtue of s 73 of the Native Land Court Act 1894. Section 73 was the principal section of Part VIII of the 1894 Act, a part headed “All titles to land to be under the Land Transfer Act”. Because of the section’s importance, we set it out in full. The section contained a number of discrete paragraphs, which, in the original, are unnumbered. For ease of discussion, we treat each of those paragraphs as if it were a subsection and number them accordingly:
(1)All land which is customary land at the date of the coming into operation of this Act shall thenceforth be and become subject to the provisions of the Land Transfer Act, and every Native owner of such land shall, subject to all equities affecting his estate or interest therein, and to all existing restrictions on alienation thereof, be deemed to be the proprietor thereof under the said Act for an estate of inheritance in fee-simple in possession.
(2)Any person claiming to have acquired an interest in any such land by virtue of any alienation prior to the coming into operation of this Act may apply to the Court to have such alienation confirmed. And upon confirmation thereof the claimant shall be entitled to be registered under the Land Transfer Act as proprietor of the estate or interest acquired.
(3)Every order hereafter made by the Court whereby the title to any Native land shall have become ascertained shall be forwarded by the Registrar of the Court to the District Land Registrar, who shall as soon as may be thereafter issue a certificate of title in lieu of grant to the persons in such order expressed to be entitled, subject to such restrictions (if any) as may have been imposed by the Court, and shall in the meantime embody such order in the Provisional Register as a folium thereof, and the land the subject thereof shall as from the date of the inclusion of such order in the Provisional Register be subject to the provisions of the Land Transfer Act.
(4)Until the issue of a certificate of title in lieu of grant all dealings with land which shall become subject to the provisions of the Land Transfer Act by virtue of this Act shall be provisionally registered, and the existing Native Land Court certificate, memorial of ownership, or other instrument of title under the seal of the Court or a duplicate or certified copy thereof, shall for that purpose be embodied in the Provisional Register as a folium thereof. The Chief Judge shall from time to time cause to be forwarded to the several District Land Registrars, for the purpose of constituting such Provisional Register, all necessary documents which shall be in his custody or control or in that of any officer of the Court.
(5)No estate or interest existing by virtue of any deed registered in the Native Land Court at the date of the coming into operation of this Act shall be capable of being transferred or otherwise dealt with under the Land Transfer Act until the same has been confirmed by the Court, but such registration shall operate as a caveat for the protection of the estate or interest expressed to be created by such instrument, subject to any order which may be made in relation thereto by the Court or a Judge thereof.
(6)Every person entitled to be registered under the provisions of this Act for an estate of inheritance in fee-simple in possession shall be entitled to a certificate of title for the same, and no warrant other than the authority of this Act shall be necessary to enable the District Land Registrar to issue such certificates in lieu of grant or otherwise as may be necessary for giving effect to the provisions of this Act: Provided that the District Land Registrar may at his discretion retain any title on the Provisional Register so long as the number of Native owners shall exceed ten, and shall in no case issue a certificate of title in lieu of grant except on a certified plan approved by a Judge of the Court.
(7)It shall not be necessary in any case to issue separate certificates to Native owners as tenants in common.
(8)The Registrar-General of Land may from time to time, by regulation, with the approval of the Governor in Council, make such alterations and modifications in the mode of registration hereinbefore prescribed, and make such other provisions for the same, as may be necessary or expedient.
(9)The Chief Judge shall, at the request of the Registrar-General of Land, refer to the Native Land Court for inquiry and decision any question which may be necessary for the purpose of ascertaining the persons entitled to be registered as aforesaid, and of defining their estates and interests respectively.
(10)Every certificate of title issued under the Land Transfer Act, in pursuance of the provisions of this Act, may be antevested to such date as the Chief Judge shall fix for that purpose when forwarding the title to the District Land Registrar.
(11)So long as the title to land under the provisions of this Act shall remain on the Provisional Register, the Court or a Judge may exercise all the powers of amendment hereinbefore given; and the District Land Registrar shall, on being notified thereof, do all things necessary to give effect to the same.
[62] There is no doubt that the land coming within the NLC CT was “customary land at the date of the coming into operation of this Act”: see subs (1). (We put to one side for the moment whether the NLC CT did include the mudflats as part of the land encompassed by that title.) We should make clear that “customary land” had a different meaning in the 1894 Act from its meaning under the Maori Affairs Act and Te Ture Whenua Maori Act. Under the 1894 Act “customary land” referred to “land which immediately before the coming into operation of this Act is owned by Natives under their customs and usages, the owners whereof have been ascertained by the Court or other duly-constituted authority”. (We have added the emphasis.) The land coming within the NLC CT was “customary land” within that definition.
[63] The effect of subs (1) was that, from the date the 1894 Act came into effect, the land became subject to the provisions of the Land Transfer Act 1885 and Mrs Matenga, as the “Native owner of such land”, became, subject to all equities affecting her estate and to all existing restrictions on alienation of it, the proprietor of the land under the Land Transfer Act for an estate of inheritance in fee simple in possession. In other words, her interest was converted into a standard land transfer interest in the land. That did not mean, however, the land became General land. It was freehold land for the purposes of land transfer legislation but still Maori freehold land within the jurisdiction of the Native Land Court.
[64] Since the land was coming under the Land Transfer Act, clearly land transfer titles would have to issue. That would take time, especially since the District Land Registrar would need to check the titles and also what interests should be recorded on the new titles. Subsection (4) dealt with this situation. It provided for existing Native Land Court certificates and other relevant documents to be “embodied” in what was termed in the legislation “the Provisional Register”. The Chief Judge of the Native Land Court was required to forward to the relevant District Land Registrar the relevant documents so that the latter could constitute the provisional register. As the evidence in this case shows, Mrs Matenga’s NLC CT was forwarded to the relevant District Land Registrar and was entered in that register under vol 2/193: see [37] above.
[65] Subsection (5) dealt with estates or interests in customary land “existing by virtue of any deed registered in the Native Land Court”. That subsection was not applicable to Mrs Matenga’s interest, as her interest arose by court order, not by registration of a deed.
[66] Subsection (6) provided that everyone entitled to be registered for an estate of inheritance in fee simple in possession was entitled to a certificate of title under the Land Transfer Act recording that estate.
[67] Subsection (10) provided for certificates of title to be backdated. That occurred in Mrs Matenga’s case. By virtue of that provision, her interest in the land was backdated, as a land transfer interest, to 20 November 1883, the date on which Judge Mair had first recognised her entitlement.
[68] Subsection (11) is interesting. While title to land remained on the provisional register, the Native Land Court retained jurisdiction to exercise powers of amendment, to which the District Land Registrar was then obliged, in due course, to give effect. But, of course, once title moved from the provisional register to the actual land transfer register, the court’s powers with respect to the title, including the boundaries of the land, ceased. The Native Land Court retained certain powers with respect to the land, but they were now restricted. What those powers were back in 1894 (or 1901) is irrelevant for current purposes, as the focus of our enquiry is on the Maori Land Court’s powers and jurisdiction in 1986.
[69] Once the NLC CT was converted into a land transfer certificate of title, the latter was definitive so far as, among other things, the boundaries of the land were concerned. If an error had been made under s 73 of the 1894 Act, with the consequence that the land or its boundaries were misdescribed in the LTA CT, then the correct procedure in 1986 would have been an application to the relevant District Land Registrar under s 81 of the Land Transfer Act 1952 for a correction of the title. If the registrar refused to correct the title, then those claiming the LTA CT was in error could have made an appropriate application to the High Court under s 85 of the Land Transfer Act. Neither of those steps had been taken by 1986 or have subsequently been taken.
[70] Until the LTA CT was corrected, the Maori Land Court was bound to treat it as definitive so far as the boundaries of the land concerned were fixed by it. The NLC CT, in so far as it fixed boundaries, ceased to be definitive. The Maori Land Court had no jurisdiction under the Maori Affairs Act to alter boundaries on survey plans underlying land transfer certificates of title. This is obvious when one considers that, almost invariably, Maori land is adjacent to General land, the boundaries of which are State-guaranteed. The Maori Land Court had and has no jurisdiction to adjust such boundaries if wrong; only the District Land Registrar (now the Registrar‑General of Land) had such jurisdiction. The fact that the “adjoining land” in this case was the estuary (without a specific land transfer title) makes no difference.
[71] Had Judge Cull been aware of the LTA CT, he almost certainly would have recognised its supremacy and his inability to make orders contrary to it. It is inconceivable that a judge of Judge Cull’s seniority within the Maori Land Court would have been unaware of the supremacy of the land transfer title where Maori land had been brought under that system. That supremacy is highlighted in cases such as Assets Co Limited v Mere Roihi [1905] AC 176 (PC), InRe Mangatainoka1BC No 2 (1913) 33 NZLR 23, and Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 (decided in 1987). Since Judge Cull’s decision, Hammond J, in conformity with these earlier decisions, has held that land transfer titles “trump” Maori Land Court records: Registrar-General v Marshall [1995] 2 NZLR 189 at 198. There is an excellent discussion on the relationship of Maori land statutes and the Land Transfer Act by Associate Professor Richard Boast in Boast and Others Maori Land Law (2ed 2004) at [15.2]. See also his helpful article, “The Implications of Indefeasibility for Maori Land” in Grinlinton (ed) Torrens in the Twenty-first Century” (2003) 101.
[72] Judge Cull probably assumed that the NLC CT in this case was a title that, notwithstanding s 73 of the Native Land Court Act 1894 and its successors, had never moved beyond the provisional register (if it even reached there). Registration of Maori Land Court titles and orders was still optional in 1986. That state of affairs was changed by the 1993 Act: see s 123. The evidence before us indicates, however, that 12 years after the 1993 Act, there were still about 15,000 title orders, made by the Maori Land Court or its predecessor, that should have been registered under the Land Transfer Act but had not been. In addition, there were another 42,000 Maori Land Court orders requiring registration against those titles. This has been an endemic problem for decades. Finally, the problem is being tackled. In recent years, the Maori Land Court has initiated, in conjunction with Land Information New Zealand, a five year project, called the Registration Project, the aim of which is to register all existing Maori freehold land titles and orders under the Land Transfer Act.
[73] The bringing of Maori land under the land transfer system does not rob the Maori Land Court of all jurisdiction. The most important aspect of the court’s continuing jurisdiction is its recording of interests in land. Indeed, somewhat ironically, it has been and still is the Maori Land Court recording system which has a fuller record of title than does the land transfer system, albeit the interests recorded by the Maori Land Court are all equitable interests. (The land transfer system does not record and never has recorded equitable interests.)
[74] We have surmised, based on the evidence before us, that Judge Cull undertook his exercise of interpreting the diagram on the NLC CT in ignorance of the LTA CT and its survey plan. If, contrary to our surmise, he did know about the LTA CT, then he was in error in ignoring it and attempting to interpret the NLC CT’s diagram. The survey plan which underlay the NLC CT and which is now missing has been interpreted by the District Land Registrar, whose view prevails until corrected either by him or his successor or by order of the High Court.
[75] It further follows it was not open to the Maori Land Court to make orders under s 438 of the Maori Affairs Act. The 1992 order, extending the 1986 order, was for the same reason beyond the Maori Land Court’s jurisdiction.
[76] We do not consider, however, that any declaratory relief is necessary with respect to either the 1986 order or the 1992 order extending it. That is because the two orders made in 1986 are both spent. The order vesting the estuary in Mr Elkington and the others named in the application has gone. So too has the Investigatory Trust on which they were ordered to hold the estuary. Those orders were superseded by the 1998 orders.
Was it open to the Maori Land Court in 1998 to find the estuary was Maori freehold land?
[77] Judge Isaac in 1998 reinvestigated the status of the estuary. He too concluded it was Maori freehold land. His decision must be looked at separately from the 1986 decision for three reasons:
(a)The Maori Land Court now operated under Te Ture Whenua Maori Act rather than the Maori Affairs Act;
(b)Additional evidence was before the court;
(c)Judge Isaac considered the 1986 decision could not be challenged by virtue of s 77 of the 1993 Act.
[78] We deal with those matters in turn. First, even though the 1993 Act has made some changes to the Maori Land Court’s jurisdiction and powers, it is still not within that court’s power to correct the boundaries on a land transfer title. Nor is it open to that court to rely on an old Native Land Court certificate of title to define boundaries where that title has been converted into a land transfer title.
[79] Secondly, it does appear Judge Isaac had more evidence before him than Judge Cull had had in 1986. He had the evidence from Mr Harvey referred to at [47] above. Notwithstanding that, it is clear from the decision itself that it was primarily based on his interpretation of the diagram on the NLC CT. He recorded his interpretation of where the “dark blue lines” ran and decided that the estuary must have been included in the NLC CT. He made no reference to the fact the diagram was merely descriptive of an underlying survey plan. Nor did he refer to the LTA CT and the survey plan underlying it. It is possible he, like Judge Cull, did not realise this title had become a land transfer title.
[80] Thirdly, we turn to s 77 of the 1993 Act, which reads as follows:
Orders affecting Maori land conclusive after 10 years
(1)No order made by the Court with respect to Maori land shall, whether on the ground of want of jurisdiction or on any other ground whatever, be annulled or quashed, or declared or held to be invalid, by any court in any proceedings instituted more than 10 years after the date of the order.
(2)Where there is any repugnancy between 2 orders each of which would otherwise, by reason of the lapse of time, be within the protection of this section, then, to the extent of any such repugnancy, the order that bears the earlier date shall prevail, whether those orders were made by the same or different courts.
(3)Nothing in this section shall limit or affect the authority of the Chief Judge to cancel or amend any order under section 44 of this Act.
[81] It was perhaps a little inconsistent for Judge Isaac to refer to this section in circumstances where he had himself received further evidence as to the status of the land and had himself drawn conclusions as to whether the estuary was Maori freehold land. In any event, the hearing before him was just a continuation of the proceeding that had been commenced back in 1986. Judge Cull’s orders had been, in effect, interim orders; effectively, the 1998 hearing was concerned with whether the arrangement instituted by the 1986 order should become permanent or another solution devised. Further, Judge Cull’s “finding” that the estuary was Maori freehold land was not an “order” as such but simply a noting that he had jurisdiction to consider Mr Elkington’s application under s 438 of the Maori Affairs Act.
[82] In any event, we have concluded no relief is required with respect to Judge Cull’s decision. Neither side relied on s 77 before us, and we suspect they did not before the High Court either, as Fogarty J makes no reference to the section. Clearly s 77 could not prevent a challenge to Judge Isaac’s decision, as the Crown commenced its High Court proceeding within ten years of that decision.
[83] The 1998 order is wrong for the same reason the 1986 order was wrong. The position remains under the 1993 Act that, until the LTA CT is corrected, the Maori Land Court was bound to treat it as definitive so far as the boundaries of the land concerned were fixed by it.
[84] We are satisfied that the Minister of Conservation should have in his favour an order declaring the 1998 orders to have been wrongly made.
Fogarty J’s decision
[85] We have in this opinion engaged very little with Fogarty J’s decision. He in turn engaged only peripherally with Judge Isaac’s decision. That was because Fogarty J did not really approach this case as an application for judicial review of Judge Isaac’s decision, but rather as if it were an application to have the boundaries shown on the LTA CT corrected. Yet neither the Crown nor the trustees had ever sought that, and indeed neither sought that even after the judge joined the Registrar‑General of Land as a party.
[86] Fogarty J set about interpreting the diagram on the NLC CT. He concluded it was ambiguous. In reaching that conclusion, he considered it impermissible to resolve the ambiguity by looking at the LTA CT. He also ruled inadmissible certain other extrinsic evidence. He held the law to be that any ambiguity had to be resolved in favour of “the property holder”. For this reason, he considered Mrs Matenga had been shown to be the owner of the estuary.
[87] His Honour then went on to consider the Registrar-General of Land’s refusal to register the Maori Land Court’s 1998 order. The Registrar-General had refused because he thought that, on the correct construction of the NLC CT, the mudflats were not included. Fogarty J, of course, disagreed with that conclusion, but since there had been “no formal application by anyone to direct the issue of an LTA certificate”, he said there would be “no order in these proceedings”: at [177].
[88] Thus, Fogarty J’s approach was quite different from that which we have adopted. We see the LTA CT as decisive, until corrected by an appropriate Land Transfer Act procedure. Fogarty J, on the other hand, saw it as irrelevant. What is more, he considered it was open to him to declare he had “no confidence in the LTA title”: at [39].
[89] In our respectful view, Fogarty J fell into error in the section of his judgment under the heading “Land Transfer Act certificates of title versus Native Land Court Act titles”: see at [33]-[39]. At [35], His Honour referred to what we have called subs (1) in s 73 of the 1894 Act and went on:
These words make it clear that the native owner acquires a title in fee simple to that land in respect of which he or she or they have been declared to be the native owner. It follows that Parliament never intended or allowed the LTA certificate of title to derogate from the NLC certificate. If so it can be corrected (In re Mangatainoka 1BC No 2 (1913) 33 NZLR 23).
[90] It is true that, generally speaking, one would expect the land transfer title to replicate the Native Land Court title it replaced. The Crown accepts that; so too does the Registrar-General of Land. (As we have already indicated, he considers, in the present case, the LTA CT did replicate the NLC CT and that the underlying survey plans were or must have been the same.) It is also common ground that a land transfer title with misdescribed boundaries “can be corrected”. But where we part company with Fogarty J is that, in our view, only the Registrar-General of Land or the High Court on a Land Transfer Act application can order such correction. The Maori Land Court has no jurisdiction to correct a land transfer title; nor does the High Court on an application for judicial review of a Maori Land Court decision.
[91] Fogarty J cited the Mangatainoka case. This was a decision of the Full Court of the then Supreme Court. The facts were complicated; the following summary will suffice for present purposes. In 1885, the Native Land Court had made a divisional order, directing that a certificate of title under the Land Transfer Act should issue in favour of certain Maori, the land to be subject to the following restriction: “That the land the subject thereof may be leased for any term not exceeding twenty-one years, but shall be otherwise inalienable except with the consent of the Governor.” A certificate of title duly issued, but the District Land Registrar, when issuing it, endorsed the following restriction upon it: “The above land is inalienable by sale or lease beyond twenty-one years except with the consent of the Governor.” This erroneous restriction was also entered on the register. The restriction appearing on the certificate of title allowed alienation by will, while the restriction as set out in the Native Land Court’s order and in the Governor’s warrant did not.
[92] One of the Maori named in the certificate of title, Huru Te Hiaro, died in 1894 and left the land under his will to certain Maori. On 24 December 1901, a transmission to Mr Te Hiaro’s executor, George Smith, was registered against the land and recorded upon the certificate of title.
[93] Certain Maori who claimed an interest in the land and who were not named as beneficiaries in Mr Te Hiaro’s will challenged in the Native Land Court Mr Te Hiaro’s right to alienate his interest by will without the Governor’s consent. Eventually, the Native Appellate Court stated a case for the Supreme Court as to the Native Land Court’s jurisdiction in cases where the land transfer title, by error, did not reflect the Native Land Court’s order. By the time of the hearing in the Supreme Court, the District Land Registrar had corrected the certificate of title, so as to make the restriction on alienation conform with the Native Land Court’s order: at 33 and 53. In making that correction, the District Land Registrar acted pursuant to s 68 of the Land Transfer Act 1885: at 37. Section 68 is the forerunner of s 81 of the Land Transfer Act 1952. But he had not taken any steps by then to cancel the registration of transmission. Apparently, he was unsure whether to do so, Mr Smith having become registered at a time when the title purportedly allowed alienation by will without the Governor’s consent.
[94] The Supreme Court held that the Native Land Court had no jurisdiction to question what the District Land Registrar had done. It further held that the District Land Registrar had had power to alter the register on discovering the error and that the alteration applied retrospectively. The court also held the District Land Registrar had power to cancel the registration of the transmission to Mr Smith. He was “not a purchaser for valuable consideration” and “as an executor…he [held] subject to the equities on which the deceased held the land”: at 37 per Stout CJ. If the District Land Registrar failed to cancel the registration, then the register could be rectified “by appropriate proceedings under the Land Transfer Act”: see the questions set out at 35 and answered at 38 of Stout CJ’s judgment.
[95] We agree with that decision. It is authority for the proposition that a land transfer title “can be corrected”, but only by the District Land Registrar (now the Registrar-General of Land) or by the High Court on appropriate proceedings under the Land Transfer Act. With respect, the case is not authority for the sort of exercise Fogarty J undertook; indeed, its emphasis on the conclusiveness of the land transfer title (unless and until corrected under the Land Transfer Act) is completely at odds with Fogarty J’s approach.
[96] Fogarty J did not refer to the other cases on which we relied: see [71] above.
[97] There were many other parts of Fogarty J’s reasoning that Mr Sinclair respectfully challenged. We find it unnecessary to explore those, as they fall by the wayside once the supremacy of the LTA CT is recognised.
What we are not deciding
[98] We wish to make clear what we are not deciding in this case.
[99] First, we are not deciding whether a Maori iwi or hapu could now advance a customary claim to the estuary based not on Judge Mair’s order but rather on undisturbed customary possession. This would require a completely different approach by those Maori who consider the estuary is theirs from that taken to date. So far, the claims advanced in the Maori Land Court have been based on an assumption that Mrs Matenga did claim the estuary and Judge Mair agreed with her. A possible claim might still be open on an entirely different basis, namely that she did not claim the estuary, though could have. It may be, for instance, that Mr Mackay, who appears to have prepared the application for her, told her that a claim to the estuary would never succeed before the Native Land Court, perhaps because it was not at that stage recognising Maori claims to the foreshore.
[100] We do not know whether there is any evidence to substantiate such an approach. Nor do we know whether such an application would be barred by the Foreshore and Seabed Act 2004 or any other statute.
[101] The second point we are not deciding is whether the Registrar-General of Land should now be correcting the relevant land transfer titles on the basis that the survey plan underlying the LTA CT did not accurately reflect the survey plan Judge Mair had approved in 1886. No such application has yet been made. We know the Registrar-General will not voluntarily change the title and its successor titles, as he believes it was and they are correct. If Maori want to challenge his decision, they will have to do so by appropriate application under the Land Transfer Act in the High Court.
[102] The fact we have emphasised we are not deciding the correctness of the land transfer title should not be taken by the second respondents or local Maori as encouragement to make such an application or as an indication of the likely success of an application. Because of the way this case has been presented, we have had voluminous evidence as to the history of the estuary and land dealings with respect to the Wakapuaka block. We have set out some of that evidence (but by no means all of it) earlier in these reasons. We have also expressed conclusions on the evidence presented to us. Based on the evidence we have heard, we can indicate that, if we were High Court judges sitting on a Land Transfer Act application to have the boundaries redrawn so as to include the estuary, we would have found against the Maori claimants. But it is possible, of course, that different evidence might come to light were a Land Transfer Act challenge to be made.
Result
[103] For the reasons given above, we allow the appeal.
[104] We have declared the Maori Land Court’s 1998 decision to have been wrongly made. We do not go further than that, at least at this stage, as we appreciate that the trustees of Te Huria Matenga Wakapuaka Trust, the second respondents, have acted in reliance on the 1998 order. We are not sure what they have done since 1998 in reliance on the order; we would not want to invalidate any actions they have taken, without hearing further from the parties. We suspect the declaration we have made will suffice from the Crown’s point of view.
[105] The Crown also sought a declaration that the LTA CT, issued in 1901, did not include the mudflats below the mean high-water mark. We cannot think that is in dispute, but, for what it is worth, we are prepared to make such a declaration.
[106] The Crown, if it won, did not seek costs. There will be no order as to costs.
Tailpiece: Baragwanath J’s opinion
[107] Since preparing the above, we have read Baragwanath J’s opinion. It is hard to know where to begin in engaging with it, as it presents an argument that has never been advanced at any stage of the proceeding. In the circumstances, we confine ourselves to five comments.
[108] First, the Maori claimants have pursued this case throughout – in the Maori Land Court, the High Court, and here – on the basis that Judge Mair did include the estuary as part of the NLC CT. They have never suggested that Mrs Matenga had claimed the estuary but Judge Mair declined to include it. Nor has that ever been the Crown’s position. No party has ever suggested that the decision under review is or should be Judge Mair’s decision wrongly to exclude the estuary, although we acknowledge Baragwanath J raised it as a concern he had during the hearing. If Maori want to advance such a proposition for the first time, it is our view they will have to do that in an appropriate fresh proceeding. There is no way in which this current proceeding, a judicial review of Judge Cull’s and Judge Isaac’s decisions, can, at the eleventh hour, on what is effectively a second appeal, be converted into an application for review of Judge Mair’s decision. Indeed, we do not even know whether the trustees want to advance such an argument. It should not be overlooked that the trustees have been represented by very experienced specialist lawyers: first by Mr Williams, prior to his appointment as Chief Judge of the Maori Land Court, and in the High Court and here by Mr Ferguson.
[109] Secondly, it is not correct that we are conferring title to the estuary on the Crown: at [120]. All we are saying is that the estuary was not included in the LTA CT (and accordingly not included in its successor titles) and, almost certainly, was not included in the NLC CT. The limit of our decision is that the Maori Land Court erred in failing to accord the LTA CT the primacy which statute confers on it.
[110] Thirdly, it would be wrong to decline the Crown a remedy to which it is clearly entitled in this proceeding. Baragwanath J would decline a remedy on the basis that this is a judicial review action and there has been to date “no determination by any court” of what he sees as “two essential questions”: at [114]. Those questions are whether the estuary was claimed in the application before Judge Mair and secondly, if it was claimed, whether Judge Mair could lawfully have excluded it from the NLC CT granted to Mrs Matenga. We agree those questions have not been determined by either the Maori Land Court or the High Court (or indeed by us) for the simple reason they have never been in issue in this proceeding. No one else has seen these as “questions” arising for determination, let alone as the “essential questions” that must be answered. The Crown should not be deprived of a remedy to which it is currently entitled because, at some future time, the trustees may want to advance a completely different case from that advanced so far.
[111] Fourthly, it is not correct that our opinion is premised on the basis that Mrs Matenga’s application excluded the estuary: at [124]. That is irrelevant to what we have concluded: the result of this proceeding is the same whether her application did include the estuary or excluded it.
[112] Finally, we note that Mr Ferguson advanced no argument to the effect that, if we found in favour of the Crown, relief should, in our discretion, be denied or deferred, whether on the basis now advanced by Baragwanath J or on any other basis.
BARAGWANATH J
Introduction
[113] This appeal concerns the estuary of Wakapuaka, one of only two areas of what Maori know as Te Tau Ihu o Te Waka a Maui (the Prow of the Waka of Maui) and others know as the northern South Island where native title was not extinguished by Crown purchase. It resolves into whether this Court may properly exercise discretion in favour of the Crown, with the effect of dispossessing Maori, without knowledge of essential facts.
Judicial review requires exercise of judicial discretion
[114] The majority judgment at [110] describes the relief claimed by the Crown as something to which it is “clearly entitled”. But the cardinal rule, which applies to all decision-makers, is that no discretion may be lawfully exercised unless essential facts are known. The Crown asks this Court to exercise its discretion to confirm the Crown’s claim to Wakapuaka Estuary. There are two essential questions that must be answered before that discretion can be exercised. First, whether the estuary was claimed in the application before Judge Mair, and second, if it was claimed, whether Judge Mair could lawfully have excluded it from the Native Land Court title granted to Huria Matenga. But there has been no determination by any court whether a judgment giving rise to such exclusion could be right in law. So there should be no exercise of discretion until the point has been resolved by a fact finder following due process. That has never happened.
Perspective and context
[115] The majority judgment states that “[no] party has ever suggested that the decision under review is or should be Judge Mair’s decision wrongly to exclude the estuary the point raised in this judgment”: at [108]. But as that judgment records, the respondents’ argument was that we should support the factual premise, accepted below, that the order of Judge Mair included the estuary. For the reasons stated by Chambers J, I also agree that such premise was erroneous and that in fact it excluded the estuary. But because the approach below focused on the contrary proposition, the experienced counsel who there represented the respondents ([108] above) appear not to have considered what the consequence of such conclusion should be. If Judge Mair was legally right in deciding to exclude the estuary there could be no reason for this Court to decline to exercise discretion in favour of the Crown. But how should the issue of discretion be approached if he was wrong? In the Maori Land Court the issue did not arise, because only the courts of general jurisdiction – here the High Court and this Court – have authority to grant judicial review.Now that that premise has been rejected, it is necessary to consider the consequence and how this Court’s discretion should be exercised. That point was raised squarely during argument in this Court and requires an answer.
[116] It is essential to see the issues in perspective. There is first the question how the Court should approach its task. In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 131 (HL) Lord Hoffmann said of legislation:
… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
A similar approach is to be taken to claims by the Crown that rights of Maori, carrying the protection of Article 2 of the Treaty of Waitangi, should be set at naught by an unproved assumption about a dubious decision of a lay colonial judge. Maori are entitled to the same rigorous protection of their property rights as other New Zealanders. The facts must be examined with care and with regard to the fact that, because the estuary was never acquired by the Crown, it should not lightly be permitted now to pass to the Crown by exercise of judicial discretion.
[117] There is then the legal effect of the decision. The majority disclaim making any decision having final effect in relation to the estuary. But that disregards the plain effect of the Foreshore and Seabed Act 2004, namely that a decision now to exercise discretion in favour of the Crown will confer upon it a title to the estuary which it has never previously enjoyed and to which there is much reason to believe it has no right, because it belongs to Maori.
[118] The status quo includes two challenged judgments of the Maori Land Court in 1986 and 1998. The Crown claims that the latter entailed an erroneous finding that Judge Mair included the estuary in a Native Land Court certificate of title issued in 1883. It wishes to have that error corrected on the basis of what Judge Mair actually determined – that the title excluded the estuary. But inherent in a claim to restoration of the position determined by the Judge is that his determination was lawful; since, if it was not, there can be no reason to allow the Crown, with its Treaty obligations, to take advantage of the wrongful act. Unless this Court can be satisfied that it was lawful, to exercise discretion to set aside the challenged judgments begs a critical question.
[119] The question might not have been critical until the enactment of the Foreshore and Seabed Act. Prior to that it could have been said “to set aside the inclusion of the estuary in the title derived from Mrs Matenga says nothing about who owns the estuary. Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) recognises that ownership is a question of fact, and there is nothing to stop the Trust from bringing a claim to ownership.” But ss 10, 33 and 38 of the Foreshore and Seabed Act have removed the jurisdiction of the High Court to hear and determine such claims.
[120] The majority judgment states:
[99]… [W]e are not deciding whether a Maori iwi or hapu could now advance a customary claim to the estuary based not on Judge Mair’s order but rather on undisturbed customary possession. This would require a completely different approach by those Maori who consider the estuary is theirs from that taken to date. So far, the claims advanced in the Maori Land Court have been based on an assumption that Mrs Matenga did claim the estuary and Judge Mair agreed with her. A possible claim might still be open on an entirely different basis, namely that she did not claim the estuary, though could have. It may be, for instance, that Mr Mackay, who appears to have prepared the application for her, told her that a claim to the estuary would never succeed before the Native Land Court, perhaps because it was not at that stage recognising Maori claims to the foreshore.
It does not address the further and critical possibility that Mrs Matenga did claim the estuary and that Judge Mair was wrong to exclude it from the title. The effect of the majority judgment, coupled with the Foreshore and Seabed Act, will be to confer on the Crown title to the estuary, to which in all probability it has no right, without enquiry whether, by a decision of this Court, the Trust is being wrongly deprived of it.
First question
[121] Because Judge Mair’s decision is of prime importance, I cannot agree with the majority’s conclusion that it is not necessary to determine whether Mrs Matenga’s application included the estuary. If the estuary was included in the application, as explained below, there is no lawful basis upon which Judge Mair could have excluded it from the title. On the basis of the evidence presented here there is no reason to conclude that Mrs Matenga’s title application in August 1883 did not include the area which includes the estuary. The Gazette Notice describes it as:
Bounded on the West and North by the sea, commence at Waihi, thence to the Wangamoa Stream; the eastern boundary is the Wangamoa Stream; bounded on the North [South] by European land; one portion of this has been excluded, being the 10 acres at Rotokura disposed of to the Government for a cable station.
That embraces the estuary and does not exclude it.
[122] The majority judgment tends to assume a contrary answer to the question whether the application included the estuary, referring at [20] to an issue about the correct translation of “te takutai moana”, stating at [25] “given the Crown’s generally niggardly stance to the applications, one would have expected some mention, either in the minutes or the decision or both, to the estuary, if it were part of the claim”, while at [99] treating the point as potentially open and at [102] acknowledging that “different evidence might come to light”.
[123] But since there has been no factual finding on the issue of whether the application included the estuary, the case cannot be disposed of on a contrary assumption. At the most there are factual arguments available in each direction and there is a need for the issue to be resolved following a hearing on the facts.
[124] There is a dilemma for the majority judgment, which it fails to address. Because there has been no lawful finding whether the estuary was excluded from the application, the judgment cannot be premised on the proposition that it was. The Trust has had no opportunity to respond to such proposition at a trial of the facts. As was spelt out by the Privy Council in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662, natural justice requires that it receive such opportunity before any decision relying on such finding is made.
Second question
[125] Yet if the estuary was included in the application, Ngati Apa puts beyond doubt that it was Mrs Matenga’s right to receive a Native Land Court title for the whole. North J stated in Re Ninety Mile Beach [1963] NZLR 461 at 470 (CA):
I do not consider that there is any effective answer to Mr Sinclair's submission, that it is obvious that prior to 1840 Maoris would regard the foreshore as part of the lands over which they exercised dominion and control and in respect of which they exercised such rights of occupancy as were consistent with the ebb and flow of the tide. Indeed the foreshores provided the Maoris with one of their principal sources of food. In my opinion, the prerogative rights of the Crown to the foreshore is a thing apart from the question of the jurisdiction which Parliament thereafter conferred on the Maori Land Courts …
Giving judgment only eleven years after the Kauwaeranga judgment of Chief Judge Fenton of the Native Land Court (delivered in 1870, published in (1984) 11 VUWLR 229) which held the contrary, it is highly likely that, if the question was before him, Judge Mair would have directed himself that he could not issue a title which included the estuary. If so, he was wrong.
[126] Judge Mair’s decision was delivered four years after Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, by which he is likely to have regarded himself as bound. That judgment, excoriated by this Court in Ngati Apa, described the Crown as having been:
… compelled to assume in relation to the Maori tribes, and in relation to Maori land titles, those rights and duties which, jure gentium [under the law of nations], vest in and devolve upon the first civilised occupier of a territory thinly peopled by barbarians without any form of law”;
held that the acts of the Crown “cannot be examined or called in question by any tribunal”; stated “it cannot be questioned, but must be assumed, that the sovereign power has properly discharged its obligations to respect … all native proprietary rights”; and referred to the statement in the Native Rights Act 1865 as follows:
The act speaks … of the ‘Ancient Custom and Usage of the Maori people,’ as if some body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being … the proceedings of the British Government and the legislation of the colony have at all times been practically based on the contrary proposition, that no such body of law existed.
It was fundamentally at odds with the rule of law.
[127] Wi Parata is now known to all law students as a case in which a court, which included a Chief Justice who had been Attorney-General at the time of the land wars, unjustly deprived Maori of their legal rights. A century and a half removed from that era we see the Crown’s role differently and as subject to the rule of law. In Attorney-General v Miss Alice [2007] 2 NZLR 783 at 796 a later Full Court of the High Court discussed the obligations of the Crown:
[42] It is the constitutional role of the state, represented by the Crown, to safeguard and promote the interests of its citizens. It has no other justification. …
[43] The commentators are unanimous in characterising the duty of the law officers, the Attorney-General and the Solicitor-General as being to act in the public interest in the administration of justice. In Constitutional and Administrative Law in New Zealand (2nd ed, 2001), para 25.8.2, Professor Joseph notes that “[the] Attorney-General is obliged to act always in the public interest”. Paul East QC says “[the] Attorney-General represents the public interest in the administration of justice and can, where appropriate take legal action to see that the law is observed and justice done” (“The Role of the Attorney-General” in Joseph (ed), Essays on the Constitution, p 186).
[44] That obligation must equally lie upon other elements of the Crown involved in the administration of justice. In Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at p 342 Griffith CJ stated:
“I am sometimes inclined to think that in some parts . . . of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.”
That dictum was cited by the Full Federal Court of Australia in SCI Operations Pty Ltd v Commonwealth of Australia (1996) 139 ALR 595 at p 613 to support the proposition that:
“. . . it is well established that the Crown must act, and be seen to act, as a model litigant.”
[45] Likewise, in England in Sebel Products Ltd v Commissioners of Customs and Excise [1949] 1 Ch 409 at p 413, Vaisey J stated:
“. . . the defendants being an emanation of the Crown, which is the source and fountain of justice, are in my opinion bound to maintain the highest standards of probity and fair dealing, comparable to those which the courts, which derive their authority from the same source and fountain, impose on the officers under their control . . .”
[46] Similarly, in Canada, Estey J in giving the decision of the majority of the Supreme Court in Skogman v R [1984] 2 SCR 93 at p 109 cited with approval the dictum of Schroeder JA in City of Toronto v Polai (1969) 8 DLR (3d) 689 at p 697:
“The Attorney-General is in a different position from the ordinary litigant, for he represents the public interest in the community at large . . .”
…
[48] The theme overall is that the Crown as Executive must be an exemplar of high standards of conduct in litigation before the Courts. …
[49] There is no justification for any lower standard of Crown conduct in New Zealand.
[128] It is to be emphasised again that the relief sought by the Crown in this case is discretionary, by way of judicial review; that the application for review is premised upon errors by the Maori Land Court in 1986 and 1998, on the latter occasion for wrongly finding that Judge Mair included the estuary in a Native Land Court certificate of title issued in 1883.
[129] The Crown cannot have the fruit without the rind. If it is to secure a decision of this Court based upon the judgment of Judge Mair, it must also accept enquiry into the validity of that judgment. To do otherwise would apply differential standards to Maori and Crown, which nowadays is unthinkable.
[130] The Crown has accepted that there was never confiscation of Maori rights in relation to the estuary, at least before the Foreshore and Seabed Act.It follows that if, as Chambers J has reasoned and I accept, Judge Mair issued a NLC title which excluded the estuary, in doing so he erred unless the application to him excluded the estuary.
[131] The onus of proof that it did rests upon the Crown. Natural justice requires that any attempt to discharge it be at a trial of the facts at which the Trust have due opportunity to challenge that claim. That has not yet occurred.
[132] While sometimes an unlawful decision may be accorded effect rather than being treated as a simple nullity (see A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at 4-5 (CA)), that is never done without very careful consideration of the competing policy factors. Here there has been no such consideration. If there were, it is inevitable that (subject to whatever may be the effect on this case of the Foreshore and Seabed Act, which has not been argued) the dominant factor would be the Crown’s obligation to protect Maori rights. There can be no justification for assumption that, following argument, the Crown would necessarily succeed.
[133] The point that to date there has been no inquiry into the validity of Judge Mair’s judgment is crucial. There can be no justification for making an assumption, contrary to the probabilities, that the judgment was valid, so as to allow the Crown to succeed in its claim; and yet depriving the Trustees of the opportunity to challenge that proposition. Still less can there be any justification for this Court to take the affirmative step of exercising its discretion to give final judgment to that effect.
Conclusion
[134] This Court should deliver interim judgment, stating simply that there can be no final decision in the case until the validity of Judge Mair’s decision (and arguments against considering its validity) have been considered and directing counsel to confer as to the terms of future directions.
Solicitors:
Crown Law Office, Wellington
Kahui Legal, Wellington, for Second Respondents
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