Moore v M�ori Land Court
[2024] NZCA 112
•16 April 2024 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA220/2023 [2024] NZCA 112 |
| BETWEEN | KEVIN MOORE |
| AND | MĀORI LAND COURT |
| AND | SHELDON NGATAI, GEORGINA TE OTIANA JOHANSEN, ROSELLE TAYLOR, BRIDGET TAYLOR AND VINCENT GEORGE BROWN AS TRUSTEES OF WAITARA EAST SECTION 81B (ROHUTU) TRUST |
| Hearing: | 13 March 2024 |
Court: | Gilbert, Whata and Churchman JJ |
Counsel: | G E Minchin for Appellant |
Judgment: | 16 April 2024 at 9.30 am |
JUDGMENT OF THE COURT
A The application to admit further evidence is granted.
B The appeal is dismissed.
C There is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
Mr Moore is unlawfully occupying Māori land known as the Waitara East 81B (Rohutu) Block (“the Block”). The trustees of the Block obtained an injunction to remove him. The injunction was stayed by agreement pending the resolution of Mr Moore’s application pursuant to s 44 of Te Ture Whenua Maori (Maori Land) Act 1993 (the Act) to have the list of owners of the block amended to include his tipuna.[1] That application was rejected by the Māori Land Court.[2] His application to review the decision of the Māori Land Court was also rejected.[3] This is his appeal.
Application to adduce further evidence
[1]Trustees of Waitara East 81B (Rohutu) Trust v Moore – Waitara East Section 81B (Rohutu) (2018) 384 Aotea MB 113 (384 AITT 113).
[2]Moore v Trustees of Waitara East 81B (Rohutu) Trust – Waitara East Section 81B (Rohutu) [2022] Chief Judge’s MB 191 (2022 CJ 191) at [38].
[3]Moore v Māori Land Court [2023] NZHC 697 [High Court decision].
Mr Minchin sought leave to admit evidence of a lease of land within the Block offered by the trustees to Mr Moore. The lease was referred to in affidavit evidence already before the Court, but a copy was not attached. Given this was simply an omission, the application to adduce the further evidence is granted.
Background
The background to this matter is helpfully set out in the High Court judgment. We adopt it:
[2] On 30 October 1884, Lieutenant General Sir William Jervois, the then Governor of New Zealand, made a Crown grant of land to 10 named Māori proprietors. The grant was issued under the West Coast Settlement (North Island) Act 1880 and the West Coast Settlement Reserves Act 1881 and concerned 22 acres situated at the mouth of the Waitara River known as the Waitara East 81B Block.
[3] In 1958 a partition order was made by the Māori Land Court in respect of the same block. The relevant beneficiaries identified in the partition order were the descendants of most of the original Māori owners named in the Crown grant, but do not include Mr Moore or his tupuna. Then, on 6 December 1960, by further order of the Māori Land Court, the respondent to this proceeding, the Waitara East 81B (Rohutu) Trust (the Rohutu Trust), was established and legal ownership of the block vested in its trustees.
[4] Since that time until recently the Rohutu Trust has leased sections to various leaseholders on behalf of the beneficiaries—some who whakapapa to the whenua and some who do not. There are 30 leaseholders in total. A condition of the leases is that none of the houses are permitted to be permanent and all must supply their own electricity, water and sewerage.
[5] Fast forward to 2013, and the applicant, Mr Moore, took up occupation of part of the Trust’s land without the prior permission of the trustees[4] or a lease. He subsequently constructed a whare and, according to the trustees, has entertained members of the Black Power gang there.[5] One of the trustees deposed that:
From my observation, prior to Mr Moore taking up residency, the community at Rohutu was low key and harmonious, and now it is a community which I categorise as anxious and afraid. That is all the more so, as Mr Moore has now built a substantial dwelling on the site…
[6] Proceedings then ensued before the Māori Land Court. Following a hui facilitated by the Māori Land Court in 2015, the Trust held out an olive branch to resolve the impasse. It proposed a three month interim lease. The Trust’s proposal did not find favour with Mr Moore and so, down to this day, he continues to occupy an area of trust property unlawfully. I was also advised that unlike the other occupiers of leasehold sites owned by the Rohutu Trust, Mr Moore has not paid any rent.
[7] By February 2016 the trustees had had enough. They applied to the Māori Land Court for an order determining that Mr Moore had no right to ownership or possession of the Trust’s land, and that he was trespassing. They sought an injunction requiring him to vacate the property and to remove all his possessions. In response, Mr Moore filed an application under s 18 of Te Ture Whenua Māori Act 1993 to determine his status as tangata whenua on the block and determine that he is a beneficiary (or owner) accordingly.
[8] The applications came before Judge Harvey (as he then was) in the Māori Land Court on 20 April 2018.[6] During the hearing, and as a response to a suggestion from the bench, Mr Moore chose not to pursue his s 18 application and instead resolved to pursue an application under s 44 of the Act seeking the correction of a mistake in the 1958 partition order, being the omission of Mr Moore’s tupuna from the list of beneficiaries. Having heard argument, his Honour granted an injunction in favour of the Rohutu Trust requiring Mr Moore to permanently vacate the land, but also granted a stay of enforcement of the injunction so that Mr Moore could pursue an application under s 44 to the Chief Judge.
[9] In a decision of 6 May 2022, Chief Judge Isaac concluded that there had been no mistake or omission in the partition order that was capable of correction.[7] He therefore dismissed the application.
[4]Mr Moore provided an unsworn affidavit by a Mr Ray Tito, who is described as a kaumatua and
Mr Moore’s uncle. The document indicates that Mr Tito gave Mr Moore his permission to settle
on the block. From the records available, it does not appear that Mr Tito is a trustee of the Rohutu
Trust, so it is unclear on what basis he was able to give Mr Moore permission to occupy the land.
[5]In evidence is a newspaper article which appeared on the front page of the Taranaki Daily News
on 12 September 2015 about Mr Moore’s occupation of the Trust’s land, entitled “Residents afraid
for their lives”. The trustee swearing the affidavit deposes that the concerns expressed in the article
“are consistent with concerns expressed to me”.
[6]Trustees of Waitara East 81B (Rohutu) Trust v Moore, above n 1.
[7]Moore v Trustees of Waitara East 81B (Rohutu) Trust, above n 2.
Mr Moore then applied for judicial review of what happened in the Māori Land Court, advancing four grounds of review:[8]
(a)Judge Harvey (as he then was) erred in finding that the applicant’s claim fell under s 44 of the Act.
(b)Chief Judge Isaac erred when he held that he had no jurisdiction to review the Crown grant as s 44 of the Act only provided for jurisdiction in regard to “orders of the Court or the Registrar”. Mr Moore submited that s 44 provides the ability for the Chief Judge to correct mistakes and omissions in the list of owners because any errors therein would be errors “in the presentation of the facts of the case”.
(c)Chief Judge Isaac erred by failing to consider whether or not the Crown grant’s list of owners was inaccurate and if so whether or not this vitiates the partition order (upon which ownership of the block is currently based).
(d)Chief Judge Isaac erred in his s 44 assessment by not considering the “interests of justice” enquiry notwithstanding his factual finding that the order contained no error.
[8]High Court decision at [11].
Mr Moore also raised a fifth challenge at trial, namely that he shares whakapapa with four of the original owners identified in the Crown grant and is entitled to recognition of his status as a beneficiary or owner on that basis.[9] This challenge was dismissed on the basis that there was no decision by the Māori Land Court capable of review by the High Court.[10]
[9]At [13].
[10]At [16].
As to these grounds of review:
(a)Justice Isac found that Mr Moore’s challenge to the lawfulness of Judge Harvey’s “determination” must fail because there was no such determination.[11] The transcript reveals that faced with some judicial headwinds, Mr Moore did not pursue the s 18 application and instead elected to pursue an application to the Chief Judge.
(b)Justice Isac noted:
[33] The Chief Judge was correct to find that s 44 did not empower him to “correct” the Crown grant, and therefore the 1958 partition order, as Mr Moore sought. It is quite clear from the language of the provision that it is limited to the correction of errors and omissions in orders of the Māori Land Court. There was no error in the 1958 partition order, as the Judge found. The real issue—an alleged error in the Crown grant—clearly falls outside the scope of the provision.
(c)For the same reason the Judge found that there cannot be any claimed mistake of fact as there is no mistake about the 10 owners listed in the Crown grant.[12]
(d)The Judge also concluded that since there was no mistake capable of being corrected by the Chief Judge under s 44, there could be no issue of whether he should have exercised discretion in the interests of justice.[13]
Grounds of appeal
[11]At [18].
[12]At [35].
[13]At [38].
Mr Minchin advanced two main grounds of appeal in oral argument:
(a)Judge Harvey’s suggestion to Mr Moore that he commence a s 45 application amounted to officially induced error that was relied on by Mr Moore to his detriment.[14]
(b)Chief Judge Isaac and Isac J were wrong to find that s 44 did not extend to reviewing the owners list.
[14]Judge Harvey presumably referred to s 45 as an application must be made under s 45 in order for the Chief Judge to be able to exercise their power to amend or cancel the relevant order under s 44. Section 44 is the relevant empowering provision. Both are referred to in this judgment.
If these grounds are made out, Mr Minchin submits that we should refer the matter back to the Māori Land Court for reconsideration on the alternate basis that:
(a)If Judge Harvey officially induced Mr Moore to wrongly make a s 45 application, the Māori Land Court should examine his position afresh with regard to his evidence of a whakapapa connection to the block.
(b)If Chief Judge Isaac was wrong, and s 44 is properly engaged, the Māori Land Court should re-consider Mr Moore’s substantive application pursuant to s 44.
We will address each ground in turn.
No officially induced error
Mr Minchin submits that Judge Harvey’s comments about s 45 led Mr Moore to believe that he had to pursue an application under s 44 while at the same time maintaining that Judge Harvey was in fact right about the availability of relief pursuant to that section. Nonetheless, he says that if his s 45 argument fails Judge Harvey’s comments amounted to officially induced error. This type of error is ordinarily associated with a defence to criminal liability. As explained in Parkes v R:[15]
[33] There has been some discussion in New Zealand case law surrounding the so-called doctrine of “officially induced error of law”. The accepted position is that it is best treated as a relevant consideration in an application for discharge without conviction. However, it seems that where it is made out, it is a highly convincing factor. That is appropriate because underpinning the doctrine is the idea that it would not be just to punish citizens for relying on advice given, or representations made, by an official.
[15]Parkes v R [2018] NZHC 2752 (footnotes omitted).
We doubt this doctrine has any application in the present context as a matter of law. None of the authorities cited in submissions support such a startling proposition in relation to a Court purpose built to facilitate the administration of Māori land. In this regard, resort need only be had to s 17 of the Act:
(1)In exercising its jurisdiction and powers under this Act, the primary objective of the court shall be to promote and assist in—
(a) the retention of Maori land and General land owned by Maori in the hands of the owners; and
(b) the effective use, management, and development, by or on behalf of the owners, of Maori land and General land owned by Maori.
(2)In applying subsection (1), the court shall seek to achieve the following further objectives:
(a) to ascertain and give effect to the wishes of the owners of any land to which the proceedings relate:
(b) to provide a means whereby the owners may be kept informed of any proposals relating to any land, and a forum in which the owners might discuss any such proposal:
(c) to determine or facilitate the settlement of disputes and other matters among the owners of any land:
(d) to protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority:
(e) to ensure fairness in dealings with the owners of any land in multiple ownership:
(f) to promote practical solutions to problems arising in the use or management of any land.
Moreover, like the High Court, there is no basis for finding as a matter of fact, that Judge Harvey induced Mr Moore into error. The salient passages of the transcript on this point are:[16]
The Court: I understand your submission Mr Sharrock, the fact remains that in the here and now we have to deal with the title as we find it and the title has a number of names on it, those people have legal rights that they can enforce. Persons whose names may have been on the title back in the day or ought to have been I accept that the processes of allocating land are fraught with difficulty and in many instances clearly wrong, that does not change the title today.
And I mean I have not inquired into how these titles came about in a practical sense whether they were a Crown grant or a Native Land Court determination or a combination of the two but if it was the latter then I would have thought one of the possible remedies to pursue would be a Chief Judge application if a land was determined by virtue of the Native Land Court deciding who the owners are.
…
The Court: Thank you, Ms Hughes. In addition, Mr Sharrock, my recollection of the application of section 18 and its predecessor provisions was in a different context to the one that you are arguing which as I say is more a Chief Judge application that somewhere in time incorrect and erroneous evidence was presented to the Court or omitted to be given which resulted in this particular outcome.
Whereas section 18(1)(a) and its predecessor sections are applied in the context of ownership of dwellings rather than anything to challenge the title itself.
…
The Court: As I say Mr Sharrock, I am not sure why you have not pursued a Chief Judge application I would have thought that might have been a more fruitful pathway, notwithstanding [Ms Hughes’] submission that and even so if Mr Moore were an owner there is nothing to compel the trustees.
…
The Court: - I just wonder if a Chief Judge application is a more fruitful pathway, I mean it is up to him to decide of course not me.
[16]Trustees of Waitara East 81B (Rohutu) Trust v Moore, above n 1.
As can be seen the Judge disavows any direct knowledge of the basis for the order, notes that the Chief Judge application is one of the “possible” remedies, that it “might” have been a more fruitful pathway, and makes clear that any final decision is for the Chief Judge. It must have been obvious to Mr Moore’s counsel that the s 45 process may, or may not, provide a remedy for him. Furthermore, realistically, Mr Moore had no serious basis for asserting an ownership interest in the property other than through the s 45 process as the owners were listed on the partition order.
Finally, we cannot see how advancing this claim assists Mr Moore. Mr Moore is in no worse position today than when he was before Judge Harvey in 2018. If anything, Mr Moore has wholly benefited from the Judge’s suggestions, having enjoyed a further five years of unauthorised occupation.
We therefore dismiss this ground of appeal.
Scope of s 44
Mr Minchin’s “scope” argument can be reduced to the following core propositions:
(a)The central issue for the purposes of s 44 is whether there was a mistake “in the presentation of the facts of the case” which the Māori Land Court order is based upon.
(b)Those key words should be interpretated and applied in a manner that gives full effect to the purposes and principles of the Act including the core principle that whenua Māori is taonga tuku iho.
(c)This supports a construction that possible errors in the “presentation of the facts” for the purpose of s 44 include assertions about the owners identified in the list of owners annexed to the Crown grant.
(d)This construction of s 44 is supported by legislative history as well as the broader legislative context including:
(i)The historical role of the Māori Land Court’s predecessor, the Native Land Court, in determining land rights according to custom, exemplified by the Native Lands Act 1865.
(ii)Longstanding legislative policy enabling correction of Crown grants, including s 21 of the Crown Grants Act 1883 which conferred a power of repeal on the Supreme Court and s 12 of the Crown Grants Act 1908 which remains in force. Section 12 confers power on the Governor-General to cancel erroneous Crown grants:
(1)Where it appears to the satisfaction of the Governor‑General that there is an error in any name inserted in a Crown grant as the name of the intended grantee, the Governor-General may cancel such grant, and may issue a new grant of the land comprised in the cancelled grant in the correct name of the intended grantee.
(2)Prior to the cancellation of such grant a statutory declaration shall be made by the Chief Surveyor to the effect that the name in the grant to be cancelled is erroneous, and that the correct name of the person to whom such grant was intended to be and should be issued is as stated in the declaration.
(3)In the case of grants issued under any order of a Māori Land Court, or under any law heretofore in force providing for the issue of such grants, the declaration aforesaid may be made by the Minister, the Chief Surveyor, or any Judge of such Court or other officer upon whose award or decision the grantee became entitled to the grant in which such error occurs.
(iii)The historic power of the Governor under s 25 of the Native Lands Act 1909 to confer special jurisdiction on the Native Land Court “in any matter or question” affecting the rights of Māori in any real or personal property.
(e)In light of the current power of the Governor-General to cancel Crown grants, the historic power of the Governor to confer specialist jurisdiction on the Native Land Court,[17] and the specialist nature of the Māori Land Court and its predecessor, it can be inferred that the Māori Land Court should request special jurisdiction to be conferred by the Governor-General to review the Crown grant.
(f)If the Chief Judge finds that the owners list is wrong, comity demands that the Governor-General take steps pursuant to s 12 of Crown Grants Act 1908 to correct the position.
[17]Mr Minchin’s submissions do not mention s 27 of the Act. Under s 27 the Governor-General has the power to confer jurisdiction upon the Māori Land Court to determine matters affecting the rights of Māori in any real or personal property.
Ms Hughes noted that this iteration of the s 44 argument was not advanced in the High Court and was in any event dismissive of it. She contends that s 44 is plainly concerned only with error by the Registrar or the Court, not errors in the Crown grant.
Assessment
As a preliminary point, the arguments now advanced by Mr Minchin in relation to scope were not advanced in the High Court. We have considered whether Mr Moore should be allowed to advance them. We have come to the view that as the main arguments do nothing more than rely on legislative history and context, the respondent is not unfairly prejudiced by doing so.[18] We turn then to consider their merits.
[18]McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106 at [53]–[54].
Section 44(1) of the Act states:
On any application made under section 45, the Chief Judge may, if satisfied that an order made by the court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160, was erroneous in fact or in law because of any mistake or omission on the part of the court or the Registrar or in the presentation of the facts of the case to the court or the Registrar, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission.
Plainly s 44 is only concerned with errors of fact or law by the Court or the Registrar, or errors in the presentation of facts to the Court or the Registrar. The power exercised in 1958 was a power to partition pursuant to s 176 of the Māori Affairs Act 1953. The partition order was based on a Crown grant that included a list of owners. There is no challenge by Mr Moore to the correctness of the Māori Land Court partition order in terms of the accurate identification of the owners by reference to that owners list. Put another way, the presentation of the relevant facts, the owners listed in the Crown grant, was correct.
We also see nothing in the legislative history advanced by Mr Minchin that supports an extended jurisdiction pursuant to s 44, or on any other basis, to revisit the terms of the Crown grant pursuant to that section, including the owners listed in and annexed to the Crown grant. On the contrary, the legislation cited by Mr Minchin strongly suggests that insofar as Crown grants are amenable to challenge, the proper vehicle for that is the High Court (formerly the Supreme Court) or by the intervention of the Governor-General either by conferral of special jurisdiction on the Māori Land Court (not exercised here) or pursuant to s 12 of the Crown Grants Act 1908. This is not the occasion to make any definitive ruling about the availability of these avenues for correction. It need only be said that the broader legislative history and framework offers no obvious support for Mr Minchin’s contentions about the scope of s 44.
In the result, we dismiss this ground of appeal.
Result
The application to admit further evidence is granted.
The appeal is dismissed.
Mr Moore is legally aided. Costs were not sought. In those circumstances, we make no order as to costs.
Solicitors:
Exeo Legal, Wellington for Appellant
Crown Law Office ǀ Te Tari Ture o te Karauna, Wellington for First Respondent
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