Minister of Conservation v Maori Land Court HC Wellington CIV 2001-485-000911

[2006] NZHC 1653

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2001-485-000911

UNDER  The Judicature Amendment Act 1972

IN THE MATTER OF     An application for review of orders of the Maori Land Court concerning the Wakapuaka Estuary (or Wakapuaka Mudflats, or Te Parumoana Ki Wakapuaka) made on 7 May 1986, 21 July 1992, and 8

September 1998

BETWEEN  THE MINISTER OF CONSERVATION Applicant

ANDTHE MAORI LAND COURT, A COURT CONSTITUTED UNDER TE TURE WHENUA MAORI ACT 1993

First Respondent

ANDTHE TRUSTEES OF THE TE HURIA MATENGA WAKAPUAKA TRUST, A TRUST CONSTITUTED UNDER S 216

TE TURE WHENUA MAORI ACT 1993
Second Respondent

ANDTHE REGISTRAR-GENERAL OF LAND Third Respondent

Hearing:         27 July 2005 and 27 July 2006

Appearances: FRJ Sinclair and A M Kerr for Applicant

C R Pidgeon QC for First Respondent
J Ferguson and J Johnson for Second Respondent
JAL Oliver for Third Respondent
W M Wilson QC - Amicus Curiae

Judgment:      21 December 2006

JUDGMENT OF FOGARTY J

THE MINISTER OF CONSERVATION V THE MAORI LAND COURTAND ORS HC WN CIV 2001-485-

000911  21 DECEMBER 200 21 December 2006

AApplication   for   Judicial   Review   against   the   Maori   Land   Court dismissed.

B        Costs reserved.

Table of Contents

Para No

Introduction   [1] Framing the issue   [7] Are the mudflats Maori freehold land?  [12] A different description as to the nature of title  [26]

A different area  [27] The District Plan  [28] Deletion of reference to Delaware and Tasman Bays   [29] Larger and different detailed diagram  [31] Different reference to the Chief Surveyor and draftsman  [32] Land Transfer Act certificate of title versus Native Land Court Act tiles [33]

Interpretation of Native Land Court Act certificate of title  [40] The character of the title  [62] Any ambiguity of the NLC title?  [71] Is the meaning of the title unambiguous, considering only the

document  itself?  [73] Was Judge Mair the ‘maker’ of the title?  [77] Is the blue painted boundary on the title a plain indicator of the

boundary?  [81]

“Bounded on ... the Northwestward by High Water mark of

Tasman and Delaware Bays”  [88] More than one meaning?  [91] Resolution of the latent ambiguity  [93]

The law does not resolve ambiguity to the detriment of a

property holder, without good reason  [94]

The Crown’s argument as to use of the Murray Plan  [107] Analysis  [108] Any assistance from the judgment?  [133] Can the LTA certificate be used to resolve the meaning of the NLC

Certificate?  [136]

Irrelevance of other extrinsic evidence  [150] Resolution of doubt  [166] The refusal of the Registrar-General to register the mudflats under

the LTA  [173]

Conclusion  [178]

Introduction

[1]      This dispute dates from 1986.   It had its beginning in coastal management proposals of the Nelson Bays United Council.   They led to an application to the Maori Land Court to vest the Wakapuaka mudflats to trustees on behalf of the Maori owners.  The dispute is whether or not the mudflats or estuary are owned by Maori, or are owned as absolute property of the Crown.

[2]      In 1998 the Maori Land Court interpreted an 1883 Native certificate of title as recognising that Mrs Huria Matenga owned in freehold the mudflats or estuary of an area of about 850 acres.  The decision was difficult to make because the plan of the Chief Surveyor, certified by a Native Land Court Judge, underpinning the certificate, is missing, lost in 1928, probably while in the custody of the Native Land Court. Parliament in 1880, when enacting the Native Land Court Act never anticipated that the certified survey plan would be lost.   In 1998 the Maori Land Court  Judge  relied  on  customary  control  of  the  mudflats  by  Maori,  after  the certificate issued, to aid the interpretation of the surviving original certificate of title. He interpreted the title as including the mudflats, relying principally on the word description and a painted boundary as enclosing the mudflats, as well as the land above high water.

[3]      The grounds asserted by the Crown for relief are:

Failure to take into Account Relevant Considerations

38.In 1986 and 1998, the Maori Land Court failed to take into account the relevant and  determinative  survey plans  underlying the titles issued subsequently.

Errors of Law in relation to the Status of the Mudflats

39.In 1986, the Maori Land Court made orders under s 438 of the Maori Affairs Act 1953 in the mistaken belief that the mudflats were Maori freehold land, or part of the Wakapuaka block.  Those orders are therefore invalid.

40.In 1998, the Maori Land Court made orders in the mistaken belief that   Wakapuaka   Mudflats   were   included   in   the   title   to   the

Wakapuaka Block and were therefore Maori freehold land.   Those orders are also invalid.

The relief the Crown seeks is:

41.      Declarations that:

41.1     the 1883 order or judgment of the Native Land Court, and

41.2the survey plans of the Wakapuaka block prepared in or around 1885, and

41.3     the Native Land Court title issued in 1892* and backdated to

20 November 1883, and

41.4     the certificate of title issued under the Land Transfer Act

1885 in 1901,

all  affecting  the  Wakapuaka  Block,  did  not  include  the  area  of mudflats below mean high water mark.

42.      An order quashing the order of the Maori Land Court dated 7 May

1986 and extended on 21 July 1992, purporting to vest the mudflats in the trustees mentioned in paragraph 14.1 above.

43.      An  order  quashing  the  order  of  the  Maori  Land  Court  dated  8

September  1998,  purporting  to  vest  the  mudflats  in  the  second respondent.

[4]      Whether the Maori Land Court was in error of law depends first on what evidence the Court could have taken into account to help interpret the certificate of title.   None of the counsel  considered this preliminary question before the first hearing.  When I raised it during the hearing in 2005 they were unable to assist.  But the resolution of this question is at the heart of this case. This question was argued at the second hearing this year, and subsequently, by written submissions.

[5]      The more evidence that can be taken into account, the more the Courts are being asked to retry the 1883 case, even assuming that ownership of the mudflats was in issue.  The less evidence that can be taken into account, the more acute is the loss of the certified survey plan, a consequence not contemplated by Parliament.

[6]      The ultimate problem is that Parliament in 1880 intended that the certified survey plan would be prepared before and so underpin and explain the certificate of

title.  Now that that plan has been lost, the question becomes whether there is any principled way, over 100 years later, of deciding reliably what the certificate of title means?  And if not, what should be done?

Framing the issue

[7]      Recently Parliament has enacted the Foreshore and Seabed Act 2004.   By s 13, “public foreshore and seabed” is vested in the Crown as its absolute property. “Public foreshore and seabed” is defined in s 5 as excluding any area that is subject to  a  “specified  freehold  interest”.    A  “specified  freehold  interest”  includes  the interest that a person may have as the owner of:

Maori freehold land within the meaning of section 4 of Te Ture Whenua

Maori Act 1993.

[8]      Unless the decisions of the Maori Land Court are disturbed by this Court the Wakapuaka mudflats are held under such a specified freehold interest, and so are not public foreshore and seabed.  If it is a specified freehold interest the Foreshore and Seabed Act preserves the public right of navigation.  But the general rights of access, referred to in s 7, including the right to include recreational activities, would not apply.

[9]      In a statement which is more British than Kiwi, the Crown introduced the case by saying of this determination:

This is not an idle or abstract question.

[10]     The consequences in terms of the public interest  from  resolution  of  this technical issue are very significant because the core purpose of the Foreshore and Seabed Act 2004 was to eliminate the prospect of there being further recognition of Maori ownership of foreshore and seabed, including mudflats.

[11]     It does not follow that the Court should favour the Crown’s argument that the uncertainty in the title should be resolved in favour of the Crown, thus securing a public foreshore and seabed.   On the contrary, Parliament has preserved existing freehold interests in foreshore and seabed.  There are a large number of such parcels

of land around New Zealand, including a few owned by Maori.  It is not the intent of Parliament that any persons who have a freehold interest be deprived of the same. Accordingly, no provision in the Foreshore and Seabed Act, nor the Act taken as a whole, displaces the law which applies to problems of uncertainty as to title.  This is a case as to the interpretation of a certificate of title, which is a type of deed.  The fact that its interpretation is of considerable public interest is a consequence only, not a factor influencing the merit of arguments, either way.

Are the mudflats Maori freehold land?

[12]     The finding that they were was made in the decision of Judge W W Isaac on

8 September 1998.  He reached that conclusion by an exercise of interpretation of the

1883 certificate of title issued in favour of Mrs Huria Matenga (Julia Martin) (see pages 9, 10 and 11 of the decision.)  That certificate followed an order of the Native Land Court, Judge Mair presiding, made on Tuesday 20 November 1883.

[13]     Some time in April of 1892 Judge Mair signed the certificate of title issued by  the  Native  Land  Court  of  New  Zealand  (NLC  title).    The  certificate  was backdated to 20 November 1883.

[14]     The NLC certificate of title is partly preprinted as a form and then completed by hand both pen and drawing.  The operative words are:

In the Matter of a PARCEL of LAND at Wakapuaka in the District of

Nelson, in the Provincial District of Nelson called Wakapuaka.

To all to whom these presents shall come:  IT IS HEREBY CERTIFIED that the person whose name is written within is the Owner according to Native Custom of all that Piece or Parcel of Land at Wakapuaka in the District of Nelson, in the Provincial District of Nelson and called or known by the name of Wakapuaka containing by admeasurement Seventeen thousand seven hundred and thirty nine acres be the same more or less: Bounded on the Northeastward partly by Section 2 and partly by the Wangamoa Harbour, on the Southeastward by the River Wangamoa, on the Southwestward (30,326 links,  63  links,  and  107.71  links)  partly  by  Crown  Land  and  partly  by Sections 4, 81, 3a, 3, 93, XVI, 39, 71, 11, 73, 10, VI and 36 and on the Northwestward by High Water Mark of Tasman and Delaware Bays. Excepting and excluding a Public Road one chain in width which crosses the South corner of the said piece of land.

[15]     The plan of the block is edged in blue pen with the exception of a gap where the river Wakapuaka exits from the estuary into Delaware Bay.   The map on the certificate of title is orientated north south so that Tasman Bay and Delaware Bay are to the north west.  The blue pen runs along the land boundary to the south west, the river boundary to the south east and along the land boundary with the sea.

[16]     A similar description by Judge Isaac is more detailed:

The Title shows the boundary line marked with the wide blue pen and if one reads the description given for the boundary,  you will see that at the north eastward end of the boundary, the block is bordered partly by Section 2 and partly by the Wangamoa Harbour.  This boundary is referred to as it shows that the broad dark blue line cuts inland and goes around Section 2.  Beyond Section 2 is the Wangamoa harbour which is not enclosed in the dark blue line.    When  the  dark  blue  line  is  followed  down  the  north  westward boundary, it shows that this wide dark blue line is inside Tasman Bay and Delaware Bay.  The dark blue line then goes across the Wakapuaka River and around Pepin Island.  It does not go inland and around the mudflat or estuary area which is shown in light blue as it did in the north eastern boundary around Section 2.  (at 9)

Notice that the Judge did not refer to the gap in the line of the river mouth.

[17]     The photocopy of the diagram does not show the detail of the public road in the southern corner.  Below the diagram is the following information:

Scale 2 Miles to an inch

Surveyed by W.D.B. Murray

I. S. Browning Chief Surveyor TKT [indecipherable]

And then in pen:

(Exd) [JNO] Pollock.  Draftsman

[18]     A copy of that certificate of title was provisionally registered under the Land

Transfer Act 1885, in January of 1895, as P.R. vol 2/193.

[19]     In August of 1901 a Land Transfer Act (LTA) certificate of title 23/219 was issued.  It was backdated (antevested) to 20 November 1883.

[20]     It is likely that the LTA title was issued by authority of s 73 of the Native Land Court Act 1894.  Certainly that was the purpose of the provisionally registered certificate. Section 73 provides:

73.       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.

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.

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.

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.

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.

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.

It shall not be necessary in any case to issue separate certificates to Native owners as tenants in common.

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.

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.

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.

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.

[21]     The Native Land Court Act 1880 (NCL 1880) was one of several statutes enacted over a period of time.  Although it is unclear when exactly the decision was made to transmute Native title into freehold title governed by the Land Transfer Act

1870, by 1880 one can certainly see the influence of the Torrens system.  The name of the deed is restored to ‘certificate of title’ (it had been ‘memorial of ownership’ for a period beginning 1873), and the general scheme of the Act is to issue title to defined areas of land based upon appropriately detailed and reliable surveys.   The Native Land Court certificate was issued off a survey plan deposited in the Native Land Court (see s 27).  The purpose of this legislation was described in a section of Introduction to the Native Land Act 1909 by Sir John Salmond entitled “Transformation of Customary into Freehold land”.

[22]     It is sufficient to set out one paragraph:

The Native title to the land of New Zealand has now for the most part been extinguished, and this has been effected in two chief ways:

(1) By the voluntary cession to the Crown of lands purchased from the

Native customary owners.  Such a cession extinguishes the Native

title, and leaves the land vested absolutely in the Crown as ordinary Crown lands, free to be disposed of by lease or Crown grant in accordance with the Land Acts.

(2)By the operation of the Native Land Court in ascertaining the title to customary land, whereupon a Crown grant or a certificate of title under the Land Transfer Act is issued to the native owners.   The land so dealt with, though it continues to be owned by the Native proprietors, ceases to be held under the Native title, and becomes freehold land held under English tenure in fee-simple from the Crown.

[23]     The LTA title is different from the NLC titles.    Recall there are two NLC titles, the original and a provisional copy lodged in 1895.   There was also a third copy identical to the first two, being Deeds index 18D/951 doc number 24266, erroneously issued in June 1892.

[24]     The LTA operative words are:

This Certificate, dated the twentieth day of November, one thousand eight hundred  and eighty-three,  under the  hand  and  seal  of  the  District  Land Registrar of the Land Registration District of Nelson, Witnesseth that Huria Matenga  of  Wakapuaka  in  the  Provincial  District  of  Nelson  Aboriginal Native is seised of an estate in fee-simple (subject to such reservations, restrictions, encumbrances, liens, and interests as are notified by memorial underwritten or indorsed hereon;   subject also to any existing right of the Crown to take and lay off roads under any Act of the General Assembly of New Zealand) in the land hereinafter described, as the same is delineated by the plan drawn hereon, bordered green, be the several admeasurements a little more or less, that is to say:  All that parcel of land containing Seventeen thousand five hundred and seventy five acres, more or less situated in the District of Wakapuaka and being sections numbered One (1) of Block 1, One (1) of Block II One (1) and Two (2) of Block III, Two (2) of Block IV, three (3) of Block VI, Seven (7) of Block VII and Four (4) of Block VIII on the plan of the said District deposited in the office of the Chief Surveyor at Nelson excepting thereout the roads each 100 links wide shown on the plan herein and the River Wakapuaka

[25]     The material differences are:

1.       A different description as to the nature of title.

2.A different area, 17,575 versus 17,739 acres, described as sections of several blocks.

3.Reference to the blocks on the plan:   “on the plan of the said District deposited in the office of the chief Surveyor at Nelson”.

4.No use of the words: “Bounded … on the Northwestward by High Water Mark of Tasman and Delaware Bay” being part of the NLC description.

5.Several larger and different diagrams, one of which paints a boundary around the inside of the estuary.

6.        Different persons being the then Chief Surveyor and draughtsman.

A different description as to the nature of title

[26]     As to title, it records:

Huria  Matenga   of  Wakapuaka   in   the   Provincial   District   of   Nelson

Aboriginal Native is seised of an estate in fee simple

(cf. according to Native Custom)

A different area

[27]     The area is described as 17,575 acres. The difference in area is of the order of about 160 acres.  The evidence of Mr Moulton, expert witness for the applicant,  was that it had been remeasured.

The District Plan

[28]     The certificate refers to sections of blocks on the plan of the District. This is plan WAK 103.  It is not a plan certified by the Chief Surveyor, nor by  a Judge of the Maori Land Court, pursuant to the NLC 1880, or its successors.

Deletion of reference to Delaware and Taxman Bays

[29]     The  reference  to  being  bounded  on  the  Northwestward  by  Tasman  and

Delaware Bays has gone completely.

[30]     The inclusion of the painted boundary around the inside of the estuary may have been thought to render it unnecessary to continue the written references to any high water marks for  at the time, s 41 of the Crown Grants Act 1883 provided:

Whenever in any grant the ocean, sea, or any sound, bay or creek, or any part thereof affected by the ebb or flow of the tide, shall be described as forming the whole or part of the boundary of the land to be granted, such boundary or part thereof shall be deemed and taken to be the line of high water mark at ordinary tides.

So by operation of law it might have been understood that the painted boundary around the estuary would be at the line of high water mark at ordinary tides.

A larger and different detailed diagram

[31]     The  diagram  contains  a  green  inked  boundary  which  clearly  traces  a boundary within the Wakapuaka Mudflat so as to exclude the Wakapuaka Mudflat from the title.  This also appears on the District Plan WAK 103.

Different reference to the Chief Surveyor and draftsman

[32]     The survey notes are scaled:

Scale, 80 Chains to an Inch. Surveyed by W.D.B. Murray. Chief Surveyor, T Humphries. Draughtsman, Walter S Curtis.

Land Transfer Act certificates of title versus Native Land Court Act titles

[33]     There  is  no  doubt  that  of  these  two  titles  Parliament  intended  that  the certificate of title under the Land Transfer Act be the final title in the long run, for the statutory scheme was to facilitate sale of Maori land to the European settlers. The

LTA title clearly excludes the Wakapuaka Mudflat from the fee simple title of Mrs

Huria Matenga.

[34]     Counsel for the Minister submitted that the Land Transfer Act certificate of title would have been issued following a request by the property owner, Mrs Huria Matenga.  He considers that s 73 of the 1894 Act would have been applied.

[35]     The first sentence of s 73 is plain.   It clearly intends that all land coming under the NLC title will be held by the native owner as proprietor under the LTA in fee simple.  This is made explicit by the first paragraph, particularly the words “be deemed to be the proprietor thereof”.   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:  Re Mangatainoka 1 BC No. 2 (1913) 33 NZLR 23.

[36]     The LTA certificate of title refers in its top left corner to the NLC certificate PR 2/193.  The sixth paragraph of s 73 beginning:  “Every person entitled” enables the District Land Registrar to retain the provisional register so long as the number of native owners shall exceed ten.  Clearly that is not the case here.   It then goes on:

… 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.

[37]     This LTA certificate appears to have deleted these words:

… being a certificate in lieu of grant, under warrant of His Excellency the

Governor, in exercise of the powers enabling him in that behalf.

[38]     It refers to the District Plan as we have seen but that plan obviously divides a larger area into sections of blocks of which there are at least eight.  These blocks had been delineated at the time the NLC title was drawn.  They are referred to in two plans predating the NLC title, ML 3574, and 3575.  These plans were drawn in May

1885 by Murray after the decision in 1883 but before the NLC title was issued.

[39]     This Court has no confidence in the LTA title.  By s 73 the LTA should have replicated the NLC title.  It differs in numerous respects.  It is drawn off a different

survey plan.    At  best  it  may assist  construction  of  the  NLC.    I  return  to  that possibility later in the judgment.  Because the LTA does not follow s 73, it becomes important to ascertain title by interpreting that   issued by the Native Land Court under  the  Native  Land  Court  Act  1880.  Indefeasibility  does  not  apply  in  this instance, as the Land Transfer Acts do not trump the specific provision of s 73.  If s

73 is not followed that is an error, which can be corrected.   See the counterpart reasoning in Re Mangatainoka at pages 37, 39.  Different issues would arise had the mudflats subsequently become the subject of an LTA certificate and especially if they had been onsold.   See Registrar-General of Land v Marshall [1995] 2 NZLR

189.

Interpretation of Native Land Court Act certificate of title

[40]     The Native Land Court Act of 1880 created a Court of record to be called the

Native Land Court for the investigation and determination of titles to native land.1

[41]     After receipt of an application and before the sitting to determine title the Court had to be provided with preliminary proof marking out the boundaries of the land.2   In this case this was a preliminary plan.  It too has been lost.  It was numbered

24/2.  The certified survey plan, also lost, was probably given the same number 24/2.

[42]     Native land was defined in the Act as meaning:

Lands in the Colony which are owned by Natives under their customs or usages.  (s 3)

The Court was given the power to decide the title of the applicant or any other natives to the land:

… according to Native custom or usage.3

1 Section 4 Native Land Court Act 1880 No. 38 – this Court had existed in earlier forms

2 Section 22

3 Section 24

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.

[44]     If a survey had been made prior to the hearing and a sufficient plan and description were in possession of the Court then s 26 provides that a certificate of title was to be issued forthwith.  Otherwise, s 27 provides:

In cases in which no such plan or 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.

[45]     It is apparent that the preliminary plan 24/2 was insufficient as Judge Mair required “production of an approved survey”.  Therefore he was applying s 27.

[46]     There are provisions in the Native Land Court Act for there to be notification of this survey plan and opportunities for objection to the boundaries.  When the plan is finally settled by the Court it is to be signed by one of the Judges and deposited in the Court as a record thereof.  Section 31 provides:

If no objection is made within a time to be fixed by the Court, or if objection is made and not substantiated, the plan as finally settled by the Court shall be signed by one of the Judges, and deposited in the Court as a record thereof.

[47]     Section 32 then provides:

The land delineated by the plan so settled shall be deemed to represent the land in respect of which the order has been made at the original hearing, and, if any amendment has been made in the description, an amended description shall be placed on the records at the Court. (Emphasis added)

[48]     There is no evidence in this case of any amended description.

[49]     Section 33 continues:

As soon as the time for an application for rehearing is provided by section forty-seven has expired and no rehearing is applied for, or if an application has been made and is refused, the Court shall then issue a certificate of title pursuant to the order the Court made at the original hearing.

Every certificate of title granted under this Act shall bear date on the day in which the order in Court is made directing the same to issue, and shall, for all purposes, have and be deemed to have had a force and effect on or after that day.  It shall be in duplicate, and shall be authenticated by the signature of one of the Judges and of the Assessor sitting with such Judge, and by the seal of the Court.  One of such duplicates shall be delivered to the Natives therein named or some person appointed by them to receive the same, and the other duplicate shall be filed as a record in the Court.

[51]     As ss 26 and 27 anticipate, these plans are produced from surveys.  There is a special section in the Native Land Court Act dealing with surveys and the relevant provision for this case is s 39 which  provides:

Surveys required by the Court shall be made by surveyors employed for that purpose by the Surveyor-General, and no survey shall be accepted or acted on by the Court unless it is made by a surveyor so employed, and certified correct by the Surveyor-General or a surveyor authorised by him in that behalf.  (Emphasis added)

[52]     This provision is of considerable importance. The certificates of title are drawn off that plan.  They are not drawn off any prior survey plans or field notes. Indeed these cannot be acted upon. However, the Court can alter the survey plan presented for approval as part of settling the plan.  See s 31.

[53]     It may be noted from this consideration of the provisions of the Native Land Court Act that the land delineated in the lost certified plan shall be deemed to represent the land in respect of which the order was made at the original hearing. See s 32 above.  This has an important consequence as to the legal method employed in this case to resolve the issue as to the scope of the title.   The certified plan displaces the judgment of the Court.

[54]     One of the principal difficulties in this case has been how the Court should go forward given the loss of this crucial certified plan.  Since the first hearing of this case considerable work has been done to try and ascertain how the second plan was lost.  The upshot of that research is that in all probability it was lost when released by the Chief Surveyor of the Nelson Survey Office to the Native Land Court at Wellington on 20 January 1928.

[55]     It  needs  to  be  kept  in  mind  that  the  loss  of  this  plan  is  an  event  not contemplated by Parliament.  It is akin to the loss of a deposited plan of subdivision under the Land Transfer Act.

[56]     Counsel for the Minister sought to minimise the consequence of the loss of this plan.  They relied upon being able to produce the field notes of Mr Murray and the two plans prepared by him from those field notes numbered ML3574 and ML3575.   The Crown’s principal ground of review is that the Maori Land Court failed to take these earlier plans and field notes into account. Yet s 39 says these materials cannot be acted upon.  (I also note that this was an argument not put to the Maori Land Court before Judge Isaac’s judgment in 1998.)

[57]     Plans 3574 and 3575 do not have a painted border indicating the intended legal boundaries.  Rule 49 of the Native Land Court Rules 1880 provides for a pink border.   There is some evidence that another colour, yellow, was used on other blocks.  Nonetheless, the Crown submitted that plan 3575 shows the boundary of the block as being the straight line boundary to the south east, the Wangamoa River boundary, both edged in green and the coast line and estuary boundary in blue wash.

[58]     There are two problems with this submission by the Crown.  First, plan 3575 is not certified by the Chief Surveyor.   Therefore, under the law pertaining at the time it could not be “acted upon” by the Court, s 39.  Second, the blue wash is not on any view of it visually a painted boundary.  For example, within the mudflat there is the same blue wash over the whole of the area of the mudflat.  The blue wash around the edges of Delware Bay and Mckays Bluff (the coast of Tasman Bay) and around Pepin Island, is simply a blue wash loosely painted to indicate water.  This plan does not depict intended legal boundaries.   That crucial step was taken later, on the missing certified plan.

[59]     However, by way of expert evidence, the Minister was able to prove that Mr Murray made measurements necessary to measure the area of land never covered by sea water, i.e. excluding the mudflats. For he surveyed around the internal boundaries of the mudflat.  From linear measurements from survey mark to survey mark he took lateral traverse measurements at right angles to the main measurement.

This was to measure the undulating depth of those edges of land which could not be otherwise measured easily by plotting rectangles on the map. Mr Murray was clearly embarking on an exercise of measuring the land area within the block as distinct from the acreage of the mudflat.  The Crown argument was that therefore Mr Murray was intending that the mudflat be excluded from the title.

[60]     Parliament  gave  no  authority  to  Mr  Murray,  an  Assistant  Surveyor,  to recognise the title of Mrs Huria Matenga.  That authority was given only to a Court of record, the Native Land Court.  By s 39 the Judge of the Native Land Court was authorised to act  only upon  a  survey certified  by the  Chief  Surveyor.    Neither ML3574 nor ML3575 is certified by the Chief Surveyor, nor are they signed by a Judge.

[61]     If plans ML3574 and 3575 and Mr Murray’s field notes are to be used they can only be so if they are admissible as extrinsic evidence, notwithstanding s 39 of the Native Land Court Act.  To decide whether they are admissible it is necessary to consider  further  the  principles  of  law  governing  the  interpretation  of  titles  to property.

The character of the title

[62]     The Crown  brought  to  the settlement  of  New  Zealand  the  English  legal system.  English property law is built upon certainty as to title.  Resolution of issues as to title to land are never resolved by surmise or speculation.

[63]     Title to land in the United Kingdom, at the time of the Treaty of Waitangi, was by way of the Courts recognising that subjects hold land from the Crown.  The land tenure documents were deeds, passing between buyers  and  sellers,  and,  in theory, tracing back to grants from the Crown.  Proof and description of title was by way of proof of deeds.

[64]     The principal legal method used by the Courts for determining the meaning of a deed is to take the meaning from the document.  Very strict rules apply to the admission of extrinsic evidence, that is, taking into account any material not to be

found by simply reading the document.   By this principal legal method the law achieves certainty of title.  Certainty of title to land goes to the heart of peace and good order in a nation.

[65]     Undoubtedly,  Parliament  intended,  by the  enactment  of  the  Native  Land Court legislation, to provide for reliable certificates of title of native owners akin to those it was providing for the European settlors who acquired land from the Crown. The first title was to be established by ascertaining the Native owners according to Native custom and usage.  From around 1885 once the title was issued it could be converted to a Land Transfer Act title, LTA 1885 ss 10 and 11.

[66]     In 1870 Parliament enacted the first Land Transfer Act.    This was a new system of land title promoted by Sir Robert Torrens in South Australia and now known as the Torrens System.

[67]     The   Torrens   System   of   land   registration   was   introduced   throughout Australasia about this time to remedy deficiencies in the deeds system.  Under the deed system proof of title to land required scrutiny of numerous deeds.  The seller of land had to prove that he had bought the land validly from an earlier seller, B, and demonstrate that B had purchased it validly from C and so on.

[68]     The Torrens System was radically different.  The core concept of the Torrens System is that the certificate of title was the title.  It was not just evidence of the title; it was the title.  It was accordingly not necessary for anyone to go beyond that title to look at the earlier history.  This conception of title to land is stated authoritatively by Chief Justice Barwick in  Breskvar v Wall (1971) 126 CLR 376 at 385-386.

[69]     The Land Transfer Act (Torrens System) relied then and now on good quality surveying.  Certificates of title under a Torrens System are drawn off the deposited plan.  The deposited plan is a crucial reference to aid the interpretation of certificates of title and to resolve doubts as to their meaning.  It is never to be lost.

[70]     That does not mean that certificates of title under the Torrens type Acts are of themselves subordinate to the deposited plans, and thereby to the survey.  In fact it is

the other way.   The certificate of title is paramount, as the dictum of Barwick CJ makes clear.   However, the presence of an underlying survey plan is essential to underpin the quality of title. This thinking is followed in the Native Land Court title process – hence the importance of the certified survey plan.  As noted, by s 39, it was only to be acted upon after being approved by the Chief Surveyor and a Native Land Court Judge.

Any ambiguity of the NLC title?

[71]     Crown counsel before the Maori  Land Court  in  1986  submitted  that  the meaning of the Native Land Court certificate was “unclear”.  However, in the High Court the Crown took a different position.  The Crown argued that if the title were construed in the context of the available earlier plans and field notes of Mr Murray there was no ambiguity, it being then abundantly plain that the diagram on the certificate did not intend to include the mudflats.   The principal argument for the Crown was firstly that it is apparent that Mr Murray was surveying the land to exclude the mudflats.  Second, the area of land recorded on the title plainly did not include the mudflats.

[72]     Mr Wilson QC, as amicus curiae, submitted that there is no ambiguity on the face of the document.   He then acknowledges there is a latent ambiguity in the boundaries.    The latent or hidden ambiguity follows from the fact that the area of

17,739 acres cannot include the mudflats.  It is appropriate to consider Mr Wilson’s first proposition that the meaning of the title is clear, on the face of the document. Consideration of that proposition may assist resolving the latent ambiguity.

Is the meaning of the title unambiguous, considering only the document itself?

[73]     Mr Wilson argued that the blue painted boundary self evidently intended to encompass  the  land  and  the  mudflats,  that  this  intention  is  reinforced  by  the reference in the word description to the land as being bounded to the Northwestward by Tasman and Delaware Bays.  Further to this, he argued that there is nothing on

the face of the title which indicates that the area of land described there does not include the mudflats.

[74]     However, Mr Wilson emphasised that the title issued by the Native Land Court depended upon being endorsed by a Judge of the Court, here Judge Mair, the same Judge who made the order.  Mr Wilson argued that the meaning of the Native Land Court certificate of title had to be the meaning intended by Judge Mair.  He submitted:

The test is the objective intention of the Court in issuing the title, not the intention  of  any surveyor  who  may have  prepared  a  plan  previously  or subsequently.

[75]      Mr Wilson pointed out that there was no way that Judge Mair could tell from perusing the certificate whether the stated acreage included the mudflats or not.  So therefore that was at best a latent ambiguity, i.e. a hidden ambiguity.  On the face of it, he argued, the title recognised Mrs Huria Matenga as the native owner of all the land inside the blue painted boundary, including the mudflats.   That submission of Mr Wilson avoids giving any weight to the phrase “containing by admeasurement”. For the word “containing” suggests that the title is confined to the area which has been so measured, be the measurement more or less.

[76]     Of  course we  do  not  know  what  Judge  Mair  saw  on  the  certified  plan. However, based on the earlier plans it is not likely that all the arithmetic adding up the land areas would be shown.  It is complicated.  Plans ML 3574 and 3575 state the areas per section.

Was Judge Mair the ‘maker’ of the title?

[77]     A certificate of title functions as a deed.   I am using the word “deed” as meaning a most formal instrument.  A deed need not be a conveyance.  A deed can be a statement by one person.  Be it a conveyance, a statement or an agreement, the common law looks to the document as an expression of the intention of the maker. Accordingly, the meaning of a deed is the understanding objectively of the intent

being communicated by the words and diagrams on the deed.  Mr Wilson submits the maker is the Judge and so the intent is of the Court.

[78]     However, Mr Wilson’s submission has to be tested against s 32 of the Native Land Court Act 1880 set out above.  That is a deeming provision whereby the land delineated by the plan so settled is deemed to represent the land of which the order had been made at the original hearing. Plainly the statutory intent was that the certificate of title would be drawn off that plan and reflect that plan.  Accordingly, the correct assumption is that the description appearing on the face of the certificate of title reflects the missing plan.   So it is a reliable inference that the land area appearing on the certificate of title is the land area that would have been on the certified plan.

[79]     Mr Wilson is correct to submit that when Judge Mair approved the certificate of title it would not have been apparent to him whether the land area included the mudflat or not.  However, by s 32 the content of the certified plan supplants the order of Judge Mair made at the original hearing.  So Judge Mair’s state of mind, after plan

24/2 is “settled”, by either he or another Judge of the Court, becomes irrelevant. However,  when  the  Judge  settled  the  plan  if  the  total  acreage  was  shown,  the certified plan without an explanation, would likewise contain the same latent ambiguity.

[80]     So Mr Wilson’s argument contains a truth as to Judge Mair being the maker, when tested against the missing plan.  The sole function of the certified plan was to reflect the order of the Court.  The word “deeming” is not here intended to make the plan trump the Court judgment, right or wrong.   For, as has been explained, the Court oversees the preparation of the plan and can amend it down to the point when the certificate of title is drawn off it.   So it is possible that a NLC Judge, very probably  Judge  Mair,  could  have  approved  the  certified  plan,  with  a  boundary painted on, exactly as on the title, without appreciating that the land area did not include the mudflats.  In that sense Mr Wilson’s argument, that Judge Mair made the title, and the title is not ambiguous on its face, applies equivalently to the making of the certified plan.

Is the blue painted boundary on the title a plain indicator of the boundary?

[81]     There can be no doubt about the inference that the acreage shown on the title is the same as the acreage that would show on the missing plan.   But the same inference  cannot  be  drawn  as  confidently  about  the  painted  boundary  detail appearing on the diagram on the title.

[82]     Mr Sinclair, for the Crown, argued that when drawing the plan on the title there would be a natural selection of detail.  By that he meant that some of the detail in the larger plan would be left behind.  However, Mr Moulton, the expert surveyor, agreed  that  there  was  sufficient  scale  in  the  diagram  to  have  enabled  the draughtsman to have painted the boundary line around the inside of the estuary on the diagram on the certificate of title.

[83]     Mr  Wilson  drew  attention  to  an  exhibit  which  indicates  that  the  sketch appearing on the certificate of title was first drawn separately, by a draughtsman, on another piece of paper, presumably for approval by a superior before it was redrawn onto the certificate of title.   That reinforces the common law and statutory presumption that the title would be very carefully drawn.

[84]     Mr Sinclair argued that the break in the blue border, where the river exits from the estuary, precludes an inference that the diagram is describing a border which includes the estuary.  Yet originally the Crown counsel before the Maori Land Court had agreed that the certificate of title is unclear.

[85]     It was common ground among counsel that there is no reason of property law preventing the recognition according to native custom and usage of ownership of seabed or riverbed or of land from time to time covered by water.  Nor is there any property law preventing such ownership pursuant to the law of tenure incorporated into New Zealand law by the British.  To make this point concrete Mr Wilson QC adduced in evidence a report to the Minister of Land Information dated 12 December

2003 entitled “Foreshore Project Final Report”.  This was a report by LINZ (Land Information New Zealand) counting, among other things, the number of parcels of land that adjoin the coast line.  These included 2,726 “seabed parcels”.   There were

2,511 owned by the Crown, 204 by territorial authorities, 27 generally, five were Maori land and 15 were unresolved.  These are parcels of land permanently wet or covered by the sea.

[86]     It is plain, however, that at that time in the nineteenth century seabed or quasi seabed parcels of land were very rare, particularly in New Zealand, and there was no evidence led as to any surveyor’s convention as to how those parcels should be marked.

[87]     The gap might well signify a reluctance to deny navigation rights to the Wakapuaka River draining from the estuary;  or it may reflect a natural reluctance to draw a line over water;  or it might indeed signal that the mudflats are not part of the title.

“Bounded on … the Northwestward by High Water Mark of Tasman and Delaware

Bays”

[88]     Counsel for the Registrar-General argued that the reference in the title to the land  being  bounded  on  the  northwestward  by high  water  mark  of  Tasman  and Delaware Bays must have meant being bounded by the high water mark within the estuary.  Because of s 41 of the Crown Grants Act 1883, (currently reflected in s 35 of the Crown Grants Act 1908 ) counsel for the Registrar General of Land submitted that as a matter of law the boundary in 1883 could not have been other than the line of the high water mark at ordinary tides.  Inasmuch as the boundary of the block is sea, and affected by the ebb or flow of tide, then that is right.  But it is not possible to infer as a matter of law that the high water marks of Tasman and Delaware Bays include the high water mark of the mudflats. If Delaware Bay is understood to be the sea bounded by the Delaware Beach and Pepin Island Coast, then it does not include the estuary.  There is a long and substantial sandspit separating the Delaware Beach from the estuary.  It is sufficiently substantial to have a cemetery on the far end of it where the river runs out.   One can think naturally of Delaware Bay being on the seaward side of that sandspit and the estuary being inland.

[89]     The  legal  description  smacks  of  a  law  clerk’s  drafting  rather  than  a surveyor’s text and indeed it is a legal instrument to be approved by a Judge.  It is, however, possible to construe the reference to the high water mark of Delaware Bay as including within Delaware Bay the estuary.   Delaware Bay itself is a sub-bay within Tasman Bay.  So that aspect of the word description is unclear.

[90]     Considered on its own the title reads as containing the mudflats.   Doubt is only raised  by bringing into  mind  the  historical  reluctance  to  recognise  private ownership of foreshore and seabed.   However, the analysis has to move on, as Mr Wilson accepted, to confront the latent ambiguity exposed by the difference in land areas.

More than one meaning?

[91]     The Crown demonstrated that that area does not include the mudflats in two ways.   First, they remeasured it using expert advice.   Second, they produced the working papers of Mr Murray showing him taking traverse measurements from line between survey marks for the purpose of assessing the undulating boundaries of the mudflats.

[92]     Once one knows how the land has been calculated the next question arises as to whether or not that knowledge completely dissipates the patent meaning of the document,  so  one  can  say,  clearly  the  certificate  of  title  does  not  include  the mudflats.

Resolution of the latent ambiguity

[93]     The common law presupposes that when a latent ambiguity is discovered the uncertainty of meaning will be resolved by the admission of extrinsic evidence as to the intention of the maker.  But if the admission of further evidence does not solve the meaning of the document then at common law the whole of the deed, or where the ambiguity occurs in a several part of the deed, is void for uncertainty.   At common law the Court strove against such an extraordinary outcome.   That is,

however, not an outcome possible here.  Fundamentally the NLC certificate of title is a document intended by Parliament to verify a pre-existing title according to Native custom and usage.  Where the application of common law would defeat the intention of Parliament, common law is put to one side.

The law does not resolve ambiguity to the detriment of a property holder, without good reason

[94]     The Native Land Court Act 1880 empowered the Native Land Court to find out who were the native owners of land which had not been sold by Maori to the Crown.  It was directed to do so by consideration of native custom and usage, s 4. That direction made irrelevant the English common law as to the ability to own seabed and foreshore, and the European settlors’ views on the merit of that custom and usage.

[95]     There is no doubt that by native custom and usage Maori could control, and in that sense, own, land such as mudflats from time to time covered by water.  This is particularly the case if the mudflats are enclosed and naturally defensible, as here. For all practical purposes this particular mudflat is enclosed by land except for a narrow break between Pepin Island and the end of the sandspit.

[96]     By the combination of original  common law principles, and  coincidental native  custom  of  the  time,  the  correct  starting  perspective  of  a  Court  when considering an attack on the ambit of a certificate of native title is to critically scrutinise any arguments which read down the extent of title.

[97]     Mr Wilson submitted:

To the extent that there is an ambiguity in a survey or series of survey prepared on behalf of the Crown using Crown assumptions, such ambiguity should be construed against the Crown under the contra proferentem rule, in the same way that the Waitangi Tribunal applied that principle in its Mohaka River report in 1992.  Invoking contra proferentem against the Crown would be particularly appropriate when by its agents it not only created the ambiguity but it also compounded it by losing the crucial plan.

[98]     The contra proferentem rule is a rule of construction against the party who drafts the legal  document.    It  applies  particularly in  the  case  of  standard  form contracts which tend to be imposed by one party on the other.  A common example is limitations to the cover provided by a policy of insurance.

[99]     Were the NLC title substantively a grant of land from the Crown, there would be room for applying the principle that the grant should not be construed against the Crown.  See Halsbury’s Vol 13, Deeds, at 178.

[100]  I do not think either the contra proferentem rule or the principle as to construction of grants by the Crown are applicable here.  The NLC title was drawn to recognise a pre-existing right, not acquired by grant.

[101]   This  native  certificate  of  title  is  not  a  grant  of  land  by  the  Crown  to Mrs Huria Matenga.  To the contrary, it is a recognition in words of Mrs Matenga’s right by reason of native custom and usage.   It is not a grant of title.   It is a recognition of title.  The technical grant of title came by reason of statute, when her native title was transmuted to a “grant” in fee simple by registration under the LTA. The “grant” is a legal fiction.

[102]   In this context it is relevant to take into account that Native Custom and usage would not materially distinguish between control of the land and control of the mudflats.  This is not taking into account that fact as aiding the interpretation directly but rather taking into account that fact in determining where the onus falls to contend for or against a narrower or broader interpretation of the NLC title.  In my view the common law lends against derogation of property rights and this is a principle also reflected in the Native Land Court Act 1880.

[103]   With this starting perspective the onus falls upon the Crown, in this case, to persuade the Court that the ambiguity can be resolved by admissible extrinsic evidence in favour of the narrow construction of the title.   If the Crown cannot discharge that burden, then the Court takes that interpretation of the certificate most favourable to the property owner, i.e. that it includes the mudflats.   That is the

consequence of applying the policy of the common law against any derogation of property rights.

[104]   I elaborate upon this perspective, as it is crucial to this analysis.  A certificate of title is the principal legal instrument evidencing a right of property.   The New Zealand legal system is a common law legal system.   The common law protects property rights.  Therefore any challenge to the extent of property rights is met with a starting presumption that property rights are not to be read down.

[105]   It is appropriate to go back to the commentaries of Sir William Blackstone, one of the Justices of the Court of the Common Pleas on the Law of England.  The first edition of this text was published in 1765 to 1769.  The fourteenth edition was published in 1803 and certainly reflected the law in the nineteenth century.  Indeed it reflects the current state of the law.  Sir William Blackstone said:

The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment and disposition of all his acquisitions, without any control or diminution, save only by the laws of the land. … The laws of England are therefore, in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised or diverted, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land.4 [Blackstone is obviously referring to Magna Carta, and to a part which is still law in New Zealand. See s 29 Magna Carta 1297 (Imp) 1297. 25 Edw 1 c 29: (Imperial Laws Application Act 1988 (First Schedule):

No freeman shall be taken or imprisoned, or be disseised of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed;  nor will we not pass upon him nor condemn him but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man, either justice or right.]

[106]   In the second volume, where he addresses the law of property, he said:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.5

4 Blackstone’s Commentaries, 14th ed, Book I, Chapter I, III, (at 138)

And:

Property, both in land and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it;  for it then becomes naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant.6

The Crown’s argument as to use of the Murray Plan

[107]   I now come to the central issue of this case which is  whether or not Plans ML3574 and ML3575 and Mr Murray’s field notes are admissible as extrinsic evidence in interpreting the NLC title.  The Crown argument is that, as in any case of disputed boundary, or to resolve the dimensions of a parcel described in a title document, it is essential to reconstruct what was defined in the underlying survey. The primacy of the survey in such situations is established by the common law.  The two Murray survey plans are authoritative because they correspond with his field notes and Murray was working under the supervision of the Chief Surveyor.  They are held by LINZ which is now the official repository of survey plans.  Mr Sinclair has gone so far as to submit that to rely on the certificate of title as the best evidence of the boundaries is:

… contrary to the orthodox legal technique for ascertaining the boundaries of a title.

Analysis

[108]   It is well established at common law that the description of a parcel of land on a deed can be interpreted by admitting evidence, perhaps including a site visit, as to the physical features, which may include survey pegs.   This extrinsic evidence may expose a latent ambiguity and/or resolve a misdescription in the deed and in so doing enable the Court to more reliably express the intention of the deed.

5 Vol 2, Chapter I, (at 2)

6 op.cit (at 9)

[109]   At common law the primary evidence of boundaries is as appearing in the document of title.7   Extrinsic evidence is not admissible to contradict, vary or add to the terms of the document of title but only to put before the Court the same knowledge of the subject matter of the title as was in possession of the parties to it at the time of its execution.  For that reason a Court can look at and accept a boundary which has been physically marked on the ground and agreed by the parties.8    Were the Court sure that the two Murray plans were certain evidence of the description of the boundaries of the property, on these common law principles these survey plans would be used to resolve the  problem.    However,  neither  of  these  plans  has  a boundary painted on it in respect of the block.   Moreover, as has been detailed above, s 39 of the Native Land Court Act 1880, the prevailing statute at the time, excluded  reliance  on  these  preliminary  plans  when  drawing  the  Native  land certificate.

[110]   Contrary to Mr Sinclair’s strongly worded submissions, it is his argument that is unorthodox.  He wants the Court to rely on two preliminary plans, neither of which have the boundary painted on them,  to be used as extrinsic evidence to either contradict the painted blue line on the title  around the outside of the block and not around  the  insides  of  the  estuary  or  to  add  to  the  description  in  the  NLC  by effectively drawing the inference that the blue pen line should run around the inside of the estuary.  He wants the Court to use plans that by law Judge Mair could not rely on.

[111]   The inescapable deficiency in Mr Sinclair’s argument is that the two plans he now seeks to rely upon are preliminary to the certified plan required by statute, which all counsel agree on the probabilities was settled and executed, and which has been lost.  That lost plan would have had the boundary painted on it.  The pink paint or whatever colour was used on that plan may have run around the inside of the estuary.  This Court does not know.

[112]   Mr Sinclair deals with this latter fact by arguing that the Court can be sure that that is how the line would be painted because it is clear from Mr Murray’s field

7 Halsbury’s Vol 4(1), Boundaries, at 927

8 Ibid 929

notes and the survey points appearing on these plans that he was preparing a survey to enable the painting of such a boundary around the inside of the estuary.  On the probabilities that was indeed the intention of Mr Murray.    However, Mr Murray is not the Chief Surveyor.  Of course, he was working on the instructions of the Chief Surveyor, but it cannot be inferred that the Chief Surveyor was supervising in detail what he was doing.  Finally, as already discussed, the statute provided that the final decision was that of a Native Land Court Judge, who would finally settle the plan to reflect the earlier judgment of the Court.

[113]   Mr Sinclair submits that the missing certified plan “must have been similar” to Mr Murray’s plans.   The statute does not assume that.  The Native Land Act 1880 makes it plain in s 27 that the surveyors will describe the property as required by the Court.   The opening words of s 28 say “As soon as the requirements of the next preceding section [s 27] are complied with”.   These words envisage that the Court will naturally approve the plan, as reflecting the Courts’ order, before it is publicly notified, s 28, and “finally settled”, s 31. Accordingly, the legislation anticipates that the surveyor might proceed initially upon a misunderstanding of what the Judge intends.     That being the case, it is not possible to admit Mr Murray’s work as evidence of the intended meaning of the certified plan.

[114]   Mr Sinclair submits that where an original plan has been lost a copy may be admitted in evidence.  That is true.  But the two plans of Mr Murray are not copies of the missing certified plan.   Mr Sinclair submits that undisturbed pegs will prevail over a conflicting plan.   That is possible as a plan might misdescribe where the undisturbed pegs are.  But again, that is in a situation where the pegs are the agreed or intended boundaries, so placed by or for the maker of the deed.  Mr Murray is not the maker of the certified plan or of the certificate of title.  There is also no evidence of any pegs.

[115]   In the case of latent ambiguity, as here, the law in certain circumstance allows evidence of intention of the maker of the document to be admitted in order to resolve which of the two or more possible meanings is correct.  (See Halsbury’s Vol

13, Deeds, at 208.)

[116]   The exception as to latent ambiguity applies to allow evidence of the author’s intention.  What Mr Murray surveyed and what Judge Mair intended could be two different matters.  What Mr Murray expected and what Judge Mair expected could be two different matters.

[117]   Mr Moulton the expert surveyor gave useful evidence in this regard.  He was questioned by Mr Wilson as to the significance of the gap of the boundary line at the mouth of the river:

q.Apart from the gap at the mouth of the river, would you agree it appears to enclose the mudflats?

a.Well all I can say to that is that the area of mudflats is coloured Russian blue as is normal and I do not know whether the diagram was intended to include the mudflats.  All I can say is that I believe that I’ve explained what Murray surveyed and only Judge Mair I think knows what was intended.

q.Indeed.  If I may say so Mr Moulton that’s a very fair answer and can I just put it to you from that that looking at and let’s come back to  your  exhibit  H,  [the  Native  Land  Court  title]  looking  at  the diagram on exhibit H do you accept that it is possible that that diagram was intended to include the mudflats?

a.Without looking at the area of the block and the fact that there is no boundary across the river mouth, it is possible to interpret it that way.

[118]   In  that  evidence  Mr  Moulton  drew  a  natural  distinction  between  what

Mr Murray surveyed from what Judge Mair intended.

[119]   The presence of the gap across the river mouth is a factor complicating the interpretation of the deed.  Mr Sinclair submits that although the Maori Land Court in 1986 purported to vest Wakapuaka Mudflats there is some lack of clarity about what this could mean.   The option to include the estuary as a whole implies a boundary across the mouth.   It could mean mudflats within the estuary between mean high and low water marks (with some question about the status of islands or sandbanks within the channels permanently covered by tidal waters).  In both cases a straight line is required to achieve a closure of the block.   He submitted that any Court wishing to direct the mudflats now be registered would have to invent a boundary that does not currently exist in any survey data relating to Wakapuaka

[120]   As Mr Sinclair’s submissions implicitly acknowledge there is a distinction between interpreting the NLC as including the estuary and the Registrar General of Land issuing a certificate of title under the Land Transfer Act in respect of the estuary.

[121]   There is no principle of native custom or usage, or common law, which pertained at the time, which prevented the Native Land Court from recognising the title of Maori to the mudflats, whether or not parts of them were permanently the bed the channels running across the mudflats.

[122]   The Registrar-General of Land submitted that as a matter of statute law the boundary in 1883 could not have been other than the line of the high water mark at ordinary tides.  He relies on s 41 of the Crown Grants Act 1883.

[123] This has been set out above in paragraph [31]. However, as the opening words of s 41 provide, it applies only in the case of a grant of title. The NLC certificate does not record a grant of title. Nor for that matter does the LTA certificate where the words “certificate in lieu of grant” have been deleted.   (See paragraph [38] above.)  Second, even if s 41 does apply it can be understood with respect to the NLC title as simply clarifying that the boundary against Delaware Bay is at the line of high water mark on the Delaware Beach, with Delaware Bay not being understood as including the Wakapuaka Estuary.   Third, s 41 came into force on 8 September, only a few weeks before the judgment of the Native Land Court on

20 November.  Though there was a Crown Grants Act 1866, see s XII.

[124]   In the final set of submissions the Crown submitted that the Native Land Court could not effectively create title over land that had not been surveyed.  The Crown submitted there is no evidence that any certified plan approved by Judge Mair included any area below mean high water mark.  This submission appears to be the obverse of their principal submission.  Their principal submission is the Court should presume that the certified survey plan followed the earlier Murray plans and so excluded  all  areas  below  mean  high  water  mark.    As  has  been  earlier  noted, Mr Murray did make extensive measurements and citings all around the estuary boundary.   It was originally argued he had made these measurements in order to

exclude the mudflats. There are certainly ample survey points to mark out every other aspect of boundary.  The Crown argued that even if Judge Mair had intended to include the mudflats his failure to obtain a certified plan including the mudflats cannot now be rectified in the face of the Foreshore and Seabed Act 2004.

[125]   Developing this argument the Crown submitted that to include the mudflats a series of decisions would have to be made as to whether they include the estuary as a whole, which implies a boundary across the mouth, or mudflats within the estuary between mean, high and low water marks (with some question about the status of islands or sandbanks  within  the  channels  permanently covered  by tidal  waters). Mr Sinclair submitted that any Court now wishing to direct the mudflats now be registered would have to invent a boundary that does not currently exist in any survey data relating Wakapuaka.   There is no survey boundary that extends across the mouth of the Wakapuaka Estuary.

[126]   Mr Sinclair’s argument has some weight were the title to be interpreted as including those mudflats within the estuary between mean,  high  and  low  water marks.

[127]   However, if the title includes the whole of the mudflats, and there is no common law or statutory provisions saying that title cannot be granted over land (below mean high water) then the  Crown’s  argument  on  this  point  depends  on whether there was an inadequate survey of the end of the sandspit and the coast of Pepin Island immediately opposite.  That is not a sustainable proposition.

[128]  As Mr Moulton fairly acknowledged only Judge Mair knows what was intended.  As explained, the Native Land Act 1880, s 31, allows the Judge to settle the final content of the proffered plan.  It is a very strong inference that the boundary was painted for the first time only on the proffered plan, the missing certified plan. It is true that Mr Murray’s plans, 3574 and 3574, were not prepared on the basis that the mudflats would be included in the title.   As it happens, Mr Murray did take survey points in the immediate vicinity of the “gap”.   But as already noted, there may be a natural reason for breaking the painted boundary to record the passage of the Wakapuaka River exiting the mudflat.

[129]   This Court received no expert evidence as to how a boundary would be painted when enclosing a mudflat having a river exiting to the sea, at the time.  Even if expert evidence had been given and it differed from the title, that would not be the end of the matter.  On the facts of this case there are a number of details showing less than complete compliance with the surveying standards.  For example, under the Native Land Court Act boundaries were supposed to be painted in pink, not blue.  As we have seen the Land Transfer Act title was supposed to be a certificate issued in lieu, and upon “a certified plan approved by a Judge of the Court”.  It was not.

[130]   The argument that further survey points across this gap would be needed, is not expressly made by Mr Sinclair.  Rather, as he develops his argument it reverts back to the fact that the Murray survey plans were plainly designed to lead to the painting of the boundary round the inside of the estuary.  On that basis it is another attempt to assert that Murray’s intention is that of the maker of the certificate.  He then submits:

The Land Transfer Act certificate of title, which by law was to be based on the plan endorsed by the Native Land Court Judge (the missing plan 24/2) does not support it.

Buried within that proposition is a legal assumption which is not founded in fact.  As already discussed, though the Land Transfer Act certificate of title was supposed to replicate the NLC title, it does not, and one of the reasons why it does not is that it is clearly based on another plan.

[131]   Finally, Mr Sinclair argues in this context that the colouration, acreage and high water mark reference on the Native Land Court certificate is also inconsistent with the idea that the boundary runs across the outlet.  On the NLC certificate in the gap between the blue painted title of the NLC including the provisionary registered title PR2/193 (separate document) the scale is such that there is no room for detail to indicate whether the blue painted line stops short of the Wakapuaka River itself coming out the mouth.  But on both plans the NLC title (light blue) and the PR2/193 title (dark blue) the river is shown exiting.

[132]   In conclusion, as Mr Moulton acknowledged, the fact that there is a gap in the blue pen marking at the mouth of the river cannot be determinative of what Judge Mair intended.

Any assistance from the judgment?

[133]   It is appropriate and relevant, once the latent ambiguity is identified, to look at the judgment of the Court giving rise to the certificate of title, as it is safe to presume Judge Mair also certified the missing plan.  The judgment may be evidence of this intent.

[134]   The judgment is handwritten.  It reads:

The evidence in this case has been perfectly clear.  It appears that Wi Katene came into possession before the great sale.  This land was reserved from sale at his insistence.  He and his heirs have enjoyed undisputed possession to the present time.  Even Ngati Koata who set up a counter claim admit the mana of Wi Katene. They argue that Huria ought to admit them, not they have any right.   With that aspect the Court has nothing to do with any promise she may have made.  When Huria gets her title she is free to do with it as she will.

Therefore the Court makes an order in favour of Huria Matenga for the Wakapuka Block as shown in the map excepting the 100 acres set apart for Ngati Koata and 10 acres for the Cable Station.  A certificate of title to issue upon production of an approved survey.

[135]   The word “Block” was obviously added in a very small hand, smaller than the rest of the text, after the word “Wakapuaka”.  There are two other alterations to the text.  The word “with” in the phrase “with any promise” was originally written as “of” and in the order it was originally written “Huria” and her surname “Matenga” has been added. The judgment is not signed by Judge Mair.   I do not think the judgment assists.

Can the LTA certificate be used to resolve the meaning in the NLC certificate?

[136]   As already explained, the first paragraphs of s 73 of the 1894 Act deem every native owner of customary land to be deemed to be the proprietor thereof under the Land Transfer Act of an estate of inheritance in fee simple possession.

[137]   By the second paragraph, such persons are entitled to be registered under the Land Transfer Act as proprietor of estates or interests acquired before the coming into operation of the Native Land Court Act 1894.

[138]   There is no doubt that Mrs Huria Matenga had, by reason of an order made under the Native Land Court Act 1880, in November 1883, acquired the interest as proprietor of the title described in the NLC certificate of title.

[139]   There is no doubt that by s 73 of the 1894 Act she was entitled to an estate of inheritance in fee simple possession of that estate or interest so acquired under the

1880 Act.

[140]   Therefore, in principle, the description of title in the LTA certificate of title issued in 1901 should be a mirror reflection of the NLC title, except that the estate was now in  fee simple rather than  as  owner  according to  native  custom.    The problem is that there are a large number of variations in both the word description of the land and in the diagrams, as has been explained.

[141]   There is nothing in s 73 of the Native Land Court Act 1894 which empowers the  District  Land  Registrar  under  the  Land  Transfer  Act  to  depart  from  the description of the title appearing in the plan deposited under the Native Land Court Act 1880 certified by the Chief Surveyor and a Judge of the Native Land Court.  The District Plan referred to in the Land Transfer Act certificate of title  WAK103 was brought into being after the Cable Station purchase because the Cable Station site shows on the title. It follows that it was brought into being after 1877. As previously noted, that plan is not certified by the Chief Surveyor nor by a Judge of the Native Land Court.

[142]   There is a curiosity, however, for the Native Land Court certificate could have used the same block and section numbers as WAK 103 .  This is because it is apparent from the survey work of Mr Murray in plans ML3575 and 3574 that these block and section numbers were available, presumably from another plan.

[143]   Counsel for the Crown submitted that the Nelson survey office appears to have been responsible for both the representative diagram on the Native Land Court certificate and the written description of the block.  For in his memorandum of 21

December 1885, the Chief Surveyor stated that he is returning the certificates of title forwarded the year before by the Native Land Court, “on which plans have been drawn, and draft descriptions given …”.

[144]   It would seem therefore that on this occasion, in 1885, the Nelson survey office described the boundaries of the title in the way they did rather than referring to the sections making up the block.  The office employed a graphic description that included certain physical features denoting the exterior of the block.

[145]   The Crown submits that the certified plan, certified by the Chief Surveyor, would have been a copy of ML3575.   If it was a copy, then it would not have contained the painted blue border appearing on the diagram on the NLC certificate of title, for that border is not on ML3575.  It follows that that painted border was either never on the missing certified plan and only on the diagram on the NLC title or was on the missing plan.  If it was on the missing plan then it was not a copy of ML3575.

[146]   The Crown submitted that the fact that the LTA certificate refers to block and section boundaries does not suggest that  it  was  drawn  without  reference  to  the certified plan.  The Crown submits that although there was the statutory requirement for the certificate to be issued on a plan approved by a Judge of the Court it did not mean that the NLC certificate had in all respects to mirror the Court’s survey plan.

[147]   It is not possible now to know exactly why the two land descriptions in the NLC and LTA titles differ.  But the differences in description make it unreliable to presume that the LTA certificate of title mirrors the NLC certificate of title.  This is particularly so when the LTA certificate refers to the District Plan, which is not certified by a Native Land Court Judge.

[148]   There is a real possibility that the District Land Registrar did not consider that s 73 obliged him to work off a certified plan approved by a Judge of the Native Land Court.   The sixth paragraph of s 73 provided a power to the District Land

Registrar to issue a certificate of title in lieu of grant on a certified plan approved by a Judge of the Native Land Court.  But this is not what happened here, for  the words “certificate of title in lieu of grant” are deleted from the LTA certificate.   That deletion suggests that the District Land Registrar wanted to eliminate any obligation to follow a certified plan approved by a Judge of the Native Land Court.  The Court is accordingly left in real doubt as to whether or not the LTA certificate of title mirrors the NLC certificate of title.  That being the case, the LTA certificate of title cannot be used as an aid to the construction of the NLC certificate.

[149]   This conclusion is reached simply upon analysis of the LTA certificate of title against s 73 of the Native Land Court Act.   The Court also has before it an affidavit of Mr Alexander, an experienced researcher who opined that the principal purpose in preparing the Land Transfer Act certificate of title may have been for the purpose of defining what area would receive the Government’s guarantee of title, this being one of the cornerstones of the Torrens system.   At that time the Registrar General of Land and the District Land Registrars may have regarded Government guaranteed title as generally excluding foreshore and seabed areas.

Irrelevance of other extrinsic evidence

[150]   The Crown sought to rely on the application for title to the Native Land Court as notified in August of 1883 in the New Zealand Gazette, by Mrs Huria Matenga as claimant, the name of the block being Wakapuaka and the boundaries being:

Bounded on the West and the North by the sea, commence at Waihi, thence to the Wangamoa Stream;  the eastern boundary is the Wangamoa Stream; bounded on the north 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.

[151]   This is a translation, the application  had  originally been  in  Maori.    The relevant  term  used  for  the  sea  in  the  Maori  version  was:  “Takutai  Moana”. Mr Alexander said that the Williams Dictionary of the Maori language “takutai” is translated as sea coast and “moana” as sea or lake.     It would be for a Maori language expert to define the meaning of the use of both words in 1883; it may be that they are used to describe the open sea coast including any enclosed or estuarine

area, or are an all encompassing term for the sea coast.  If the latter was the case then the mudflats would have been within the boundaries claimed by the applicant.

[152]   The Crown argued that the application by Mrs Huria Matenga was prepared by Mr Alexander Mackay (later Judge Mackay) who was present at the sitting to protect the Crown’s interest already purchased.   The Crown noted that in 1874

Mr Mackay had reported another claim to the foreshore of the Maori Reserve at

Riverton.  In his account of his discussions with the claimants he stated:

It was pointed out … that the custom hitherto respecting land between high and low water mark had been to consider that when the Native title was extinguished over the main land, that any supposed rights with the Native owners had over the tidal lands ceased.  The rumours that reached them from the North Island on the subject had reference to cases where the mainland was held under Native tenure;  but even then the usufructuary rights to the Natives  over the tidal lands  had  not  been  allowed  to interfere  with  the Crown’s prerogative, which included, inter alia, the dominion over the foreshore …

[153]   The Crown submitted accordingly that it was most unlikely that Mackay perceived any claim was being advanced for title below the high water mark.  The Crown also relied on the fact that Mackay also was involved in initiating the survey of the Wakapuaka Block.

[154]   There are two reasons why all of this evidence is inadmissible.  The first is that at the time in 1883-1884, the Native Land Court Act 1880 required the title to be drawn off the plan that by s 32 was deemed to represent the land in respect of which the order was made.  Second, s 39 required that plan to be a survey certified correct by the Surveyor General.  Section 31 required that plan to be signed by one of the Judges.    Therefore,  as  a  matter  of  law  at  that  time,  the  original  state  of  the application or scope of it is quite simply irrelevant.

[155]   Second, it cannot be presumed in any event that the intentions of Mrs Huria Matenga and Mr Mackay were the same intentions of the Native Land Court Judge. In respect of this point it is appropriate to mention here a further argument by the Crown.

[156]   The Crown essentially argued that no Judge of the Native Land Court at that time would have recognised Native title to land below the high water mark.   The Crown  relied  upon  a  judgment  of  Chief  Judge  Fenton  in  Kauwaeranga  (1870)

4 Hauraki MB 236 and another 1883 case dealing with the Porirua Mudflat (Parumoana (1883)) of Chief Judge MacDonald and Judge E W Puckey. In that case the Court held:

It is clear that the present applicants are entitled, not to the land, but to a right of fishery … Though this Court incidentally finds as above, i.e. that the applicants are entitled to an incorporeal hereditament, it yet remains to be shown that the Court has any jurisdiction to deal with the title thereto.

[157]   The Crown submitted that there appears to be no occasion in which the Native Land Court in the nineteenth century knowingly caused title to issue to an area below the high water mark. However, it is speculative to contend, as the Crown does, that Judge Mair would not have so recognised such title.  The argument does not depend on any superior Court decision or otherwise on law.   Second, the argument takes no account of the man.

[158]   It needs to be appreciated that the Judge in this case was a very famous man indeed, and not a lawyer.  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.    The  Arawa  peoples  are  the  peoples  of  the  Rotorua  Lakes. Parliament in 1881 (Thermal Springs Act District Act 1881 s 5(3)) recognised that tribe as the proprietors of those Lakes, and inferentially the beds of those Lakes.

[159]   Notwithstanding the personal history of Mair and academic opinion on the attitude of the Native Land Court to title below the high water mark, it is quite simply speculative for a Court in 2006 to try to enter into the mind of Judge Mair in

1883.

[160]   Both the Crown and the trustees of the Te Huria Matenga Wakapuaka Trust relied variously on the way the Matenga family did or did not treat the mudflats as their property.   The evidence conflicts.    As already noted, the Maori Land Court relied on evidence wherein the family treated the mudflats as their own to assist in interpreting the title.

[161]   The Crown relied on subsequent dealings with the land, as distinct from the mudflats as reflecting a view that the family did not have title over the mudflats. The land was leased by Mrs Matenga to her husband and he leased it to others.

[162]   The Mackay evidence, speculations as to the then jurisprudence of other Native Land Court Judges, and anecdotal and sporadic evidence of dealings associated with the mudflats and the lands by the Matenga family is all extrinsic evidence that cannot be relied on, as is evidence relating to other similar claims.

[163]   Essentially the Crown was inviting this Court to decide on the probabilities that the application never included the mudflats and that the Court would not have included it, by predisposition, even if it had.

[164]   Such evidence is simply not admissible, by well established common law, in construing certificates of title.

[165]   Even if I am wrong, at best it only establishes a probability that the Court did not have an intention to include the mudflats in the title.  It does not exclude the real possibility  that  Judge  Mair  would  have  regarded  the  mudflats  as  owned  by Mrs Huria Matenga “according to Native custom or usage”, see s 24 of the 1880

Act.

Resolution of doubt

[166]   The common law has never presumed to read down property rights according to probabilities.  On the contrary, as explained above the disposition of the common law is against any reading down of property law rights.  In short, even if somehow this extrinsic evidence is relevant, and I am wrong in this respect, still, according to

standard common law principles of the law of property, the successors of Mrs Huria

Matenga get the benefit of the doubt.

[167]   It  is  still  necessary,  with  the  law  favouring  the  interests  of  Mrs  Huria Matenga’s successors to resolve the meaning of the title.  The conflict between the painted boundary, and the area it is said to contain was not drawn to Judge Isaac’s attention in 1998.   To construe the title as including the mudflat does involve disregarding the stated area.  In that sense the stated area is a conflicting description of the parcel of land from the painted boundary.9     In principle the common law allows the false description to be rejected as surplusage.  The problem is which is the false description?

[168]   There are cases where an inaccurate map does not effect or vitiate a clear description of the parcel, but other cases where a map or survey may override a verbal description of the parcels.10

[169]   In this case the verbal description of the boundary and “on the northwestward by high water mark of Tasman and Delaware Bays” coincides with the blue painted boundary, treating the estuary inside the sandbank as not part of Delaware Bay.   But the area of measurement is to the contrary.  One way of looking at it, and the way preferred by the Crown is that the blue painted boundary and that verbal description just cited are themselves ambiguous but they can only have one meaning when set against the quantity of acres described in the same description.  But, as discussed, the problem with that proposition is that the maker of the document, Judge Mair, may not have appreciated that fact.

[170]   Essentially the Maori Land Court Judge gave primacy to the blue painted boundary.   We know from the Murray plans that the painting on of the boundary would have been the last step.   That was in truth the critical decision.   Although Murray was measuring the various sections of the plans he did not have the confidence to paint on the blue boundary.  That was clearly left as a final judgment to be made by the Chief Surveyor and the Judge of the Court.  The expert evidence

9 See Halsbury’s Vol 4(1), Boundaries, at 928

10 Ibid 939

supports the proposition that Judge Mair could have intended the painted boundary to enclose the estuary and not appreciated that the measurement affected the land excluding the estuary.

[171]   If  one  favours  the  Crown  argument  there  is  a  distinct  risk  that  that construction of the title will defeat the intention of the maker of the missing certified plan and the maker of the title, both likely to be the same person, Judge Mair, whose judgment gave rise to both the certified plan and the title.

[172]   In my view this is a case where the appropriate solution is to adapt the ancient principle of resolving doubts as to grants of title in favour of the grantor. Given that Mrs Huria Matenga’s rights were being recognised, not granted to her, and given that by Maori custom and usage there would have been no practical distinction between the mudflats and the land, the doubt as to title should go her way, and so to her successors.   Accordingly, the Maori Land Court reached the correct decision.  The Court should not have relied upon the history of control of the mudflats after the title.  But that was not a material error.

The refusal of the Registrar-General to register the mudflats under the LTA

[173]   The Registrar-General of Land refused to create an LTA certificate after the decision of the Maori Land Court in 1998.   The Registrar-General of Land relied upon s 43 of the Land Transfer Act 1952 which provides:

43     Where instrument lodged not in order for registration

(1)    Subject to any regulations under this Act, where any instrument lodged for registration with the Registrar is found not to be in order for registration, he may—

(a)        Return the instrument and all other instruments lodged in connection therewith, or such of them as he thinks fit, to the person by whom they were lodged or, where that person is not available, to such other person as may, in the opinion of the Registrar, be entitled to receive them; or

(b)      Retain the instrument in his office pending rectification of any matter required by the Registrar to be rectified.

One of the reasons was that there needed to be a survey.  However, the need for a further survey is allowed for in the Te Ture Whenua Maori Act 1993.  See s 124, which addresses special provisions where there is an insufficient survey plan.

[174]   After the 2005 hearing but before the second hearing the Court joined the Registrar-General of Land.   Principally, this was because the Registrar-General of Land by notice dated 2 November 1999 requisitioned the order of the Maori Land Court which had been lodged with the Registrar-General for registration.   The grounds of that requisition were that the land comprised in the Wakapuaka Mudflats or Estuary were not part of  the  land  comprised  and  described  in  PR2/193  (the provisional LTA title).  This Court understood that as indicating a contention on the part of the Registrar-General of the power to disagree with the Maori Land Court.

[175]   The Registrar submitted that he was not purporting to overrule the decision of the Maori Land Court, but rather was needing to be satisfied that the documents transmitted to him were registerable.   Principally, the reason he advances is his construction of the NLC title as not including the mudflats.  He plainly reaches that construction by giving weight to the area of 17,739 acres as specified in the title coupled with s 41 of the Crown Grants Act, as excluding the mudflats.

[176]   The Registrar-General of Land in my view was simply differing as a matter of interpretation as to the extent of the NLC title.

[177]   There is no formal application by anyone to direct the issue of an LTA

certificate.  There will be no order in these proceedings.

Conclusion

[178]   The application for judicial review fails. Costs are reserved.

Fogarty J

Solicitors:

Crown Law Office, Wellington, for Applicant

Kahui Legal, Wellington, for Second Respondent
C R Pidgeon QC, Auckland, for Maori Land Court

W M Wilson QC, Wellington (Amicus Curiae)