Moore v Maori Land Court
[2023] NZHC 697
•31 March 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2022-485-419
[2023] NZHC 697
UNDER the Judicial Review Procedure Act 2016 BETWEEN
KEVIN MOORE
Applicant
AND
THE MĀORI LAND COURT
First Respondent
AND
SHELDON NGATAI, GEORGINA TE OTIANA JOHANSEN,
ROSELLE TAYLOR, BRIDGET TAYLOR AND VINCENT GEORGE BROWN as
trustees of Waitara East Section 81B (Rohutu) TrustSecond Respondents
Hearing: 7 February 2023 Counsel:
G E Minchin for Applicant
No appearance for First Respondent (abiding) S W Hughes KC for Second Respondents
Judgment:
31 March 2023
JUDGMENT OF ISAC J
[Application for judicial review]
MOORE v THE MAORI LAND COURT & ORS [2023] NZHC 697 [31 March 2023]
Background
[1] Mr Kevin Moore has applied for judicial review of two decisions of the Māori Land Court. To understand the issues raised it is useful to begin with some history.
[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 trustees1 or a lease. He subsequently constructed a whare and, according to the trustees, has entertained members of the Black Power gang there.2 One of the trustees deposed that:
1 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.
2 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”.
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 2018.3 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 a 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.4 He therefore dismissed the application.
3 Trustees of Waitara East 81B (Rohutu) Trust v Moore (2018) 384 Aotea MB 113 (384 AITT 113).
4 Moore v Trustees of Waitara East 81B (Rohutu) Trust [2022] Chief Judge’s MB 191.
[10] Mr Moore seeks review of both these decisions of the Māori Land Court. The common theme running through his case is that the original error or omission stems from the 1884 Crown grant. That alleged error has then affected the subsequent 1958 and 1960 orders excluding Mr Moore as a beneficiary of the Rohutu Trust or an owner of the block.
The issues for consideration
[11]Mr Moore’s statement of claim advances four grounds of review:
(a)The first is that Judge Harvey was wrong in law to find that Mr Moore’s claim fell within s 44 for the reasons set out in the Chief Judge’s decision.5
(b)The second ground of review alleges an error of law in the Chief Judge’s decision. Mr Moore pleads that s 44 of the Act enables the Chief Judge to correct mistakes and omissions “in the presentation of the facts of the case”. However, the Chief Judge erred “in his reading” of s 44 in that he found the section did not apply to the original Crown grant and orders based upon it.
(c)The third ground of review is said to be based on a mistake of fact. In particular, it is alleged that the Chief Judge’s decision is affected by the underlying assumption that the Trust has been properly vested with the legal and beneficial title to the land by the Māori Land Court. Mr Moore pleads:
If the Crown grant’s list of owners was inaccurate, the presentation of [the grant] in support of a Partition Order, as being in fact the proper beneficiaries, was either mistaken and/or contained omissions and s 44 was engaged.
(d)The fourth ground of review is a further error of law affecting the Chief Judge’s decision. The Chief Judge found that Mr Moore had failed to
5 While the pleading refers to s 45 of Te Ture Whenua Māori Act 1993 in relation to the first cause of action, the relevant empowering provision is s 44 of the Act. For clarity and consistency I refer to s 44 in this judgment when dealing with the first cause of action.
prove on the balance of probabilities an error in the order of the Court, and therefore that there was no need for him to then go on to consider whether to exercise the Court’s discretion in the interests of justice to cancel or amend the partition order.6 Mr Moore claims that the Chief Judge was wrong to fail to consider the interests of justice factors notwithstanding his factual finding that the order contained no error.
[12] The relief sought in relation to each ground of review is a declaration of illegality and an order remitting the matter to the Māori Land Court to determine “whether the Partition Order was vitiated by mistake or omission in the underlying Crown grant”.
[13] At the hearing Mr Moore through his counsel, Mr Minchin, raised a fifth challenge. Mr Moore now claims 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. This represented a radical departure from the pleaded claims, which are advanced on an irreconcilably different premise: that Mr Moore’s tupuna were wrongly excluded from the Crown grant.
Mr Moore’s late claim to an interest in the Rohutu block based on whakapapa
[14]It is convenient to deal with Mr Moore’s last claim first.
[15] Mr Moore’s claim to whakapapa to the original owners in the Crown grant was raised in oral submissions at the hearing before me. Mr Minchin did not identify which of the original owners Mr Moore is said to be descended from. The claim was not advanced before the Chief Judge and so it forms no part of the Chief Judge’s decision. It is unpleaded. The evidence Mr Moore sought to rely on during submissions was an affidavit dated 2 March 2018 of Ms Pikikore Moore, Mr Moore’s sister. The affidavit was part of the material considered by the Chief Judge, and it is implicit in his decision that he did not find anything in it sufficient to establish a mistake or omission in an order of the Court. In any case, there is nothing apparent from the affidavit or its
6 At [37] of his decision.
attachments to suggest Mr Moore was claiming whakapapa with the original owners in the Crown grant.7
[16] Judicial review involves a check on the legality of decisions made by those exercising public power. Its focus is on the process by which a decision has been made. In the present case, there has been no decision by the Māori Land Court capable of review by this Court. I have readily concluded that this late challenge should be dismissed accordingly. Given this conclusion, it is unnecessary to consider the obvious prejudice caused to the respondents by the manner in which the issue was raised.
The first ground of review – error of law in Judge Harvey’s decision?
[17] The first pleaded challenge is to the legality of the “determination” by Judge Harvey that Mr Moore’s claim fell within the scope of s 44 of the Act. Mr Minchin argued that decision must be wrong in law because the Chief Judge found that he did not have jurisdiction. He went on to submit that as a result of Judge Harvey’s decision, Mr Moore’s s 18 application was never determined on its merits.
[18] The short answer to this claim is that having reviewed the evidence, I am satisfied that there was never any determination or decision of the kind alleged.
[19] The transcript reveals that at the hearing of the applications the Judge raised with Mr Moore’s then counsel, Mr Sharrock, a difficulty with the s 18 application. The Judge pointed out that “in the here and now” the Court and Mr Moore were faced with a title which identified the registered proprietors—the Trustees. Mr Moore’s application sought to have him added, in effect, as an owner on the basis of an error in the Crown grant. The Judge suggested to Mr Sharrock that a more appropriate procedural pathway might be to advance a claim under s 44 of the Act to the Chief Judge on the basis that there had been an error or misdescription in the original owners list that needed to be corrected. After some back and forth between counsel and the Bench the following exchange occurred:
7 To the contrary, one of the documents appended to the affidavit was an annotated genealogy report prepared by a Te Miringa Hohaia. That report indicated that Mr Moore is a descendant of Ngaia Paake, an adopted child of Wiremu Kingi Te Rangitaake, who was not named in the Crown grant.
THE COURT: I just wonder if a Chief Judge application is a more
fruitful pathway, I mean it is up to him [Mr Moore] to decide of course not me.
MR SHARROCK: Sir, would it be appropriate at this moment to take a
short adjournment so I may take some instructions?
[20] The Court then adjourned for just over quarter of an hour. On resuming the hearing, Mr Sharrock advised Judge Harvey that he first sought an adjournment of the hearing so he could pursue an application to the Chief Judge under s 44. An adjournment was opposed but counsel for the Rohutu Trust, Ms Hughes KC, constructively indicated that her clients would not oppose a stay of the injunction they were seeking in order to provide Mr Moore with a window to pursue a s 44 application.
[21] As a result, the Court granted the trustees’ application for an injunction, but immediately stayed its effect pending a determination of Mr Moore’s application to the Chief Judge.
[22] It follows from this outline that Mr Moore’s first challenge to the lawfulness of Judge Harvey’s “determination” must fail. 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. It follows that there was no decision by Judge Harvey which can be the subject of judicial review much less one affected by an error of law.
[23]I therefore dismiss the first pleaded ground of review.
Second and third grounds of review – error of law and mistake of fact in Chief Judge Isaac’s s 44 decision?
[24] Mr Moore’s second and third grounds of review can usefully be dealt with together. They are a challenge to the Chief Judge’s decision under s 44 of Te Ture Whenua Māori Act.
[25] Mr Moore first argues that Chief Judge Isaac erred in his application of s 44 when he found that it did not apply beyond “orders of the Court or the Registrar”. Mr Moore argues that s 44 explicitly applies to the correction of mistakes and
omissions “in the presentation of the facts of the case”. And in this case, the mistake that arose in the presentation of the facts was, as Mr Minchin put it, the erroneous owners list “appended to the Crown grant and reliance on this list by the Māori Land Court in the subsequent dealings”.
[26] The third ground of review is a mistake of fact by the Chief Judge based on the same contention, namely the alleged inaccuracy of the Crown grant’s list of owners.
The decision under review
[27] Chief Judge Isaac began his decision of 6 May 2022 by recording that Mr Moore’s application was advanced on the basis of an error that was said to have occurred due to the Court’s reliance on an incorrect Crown grant dated 28 October 1884:8
… which wrongfully omitted the children of Wiremu Kingi Te Rangitake as owners of the block. He submits that the subsequent orders compounded the incorrect Crown grant, including the order made on 6 December 1960 … which established the Waitara East 81B (Rohutu) Trust …
The applicant submits that because of the Court’s error, he and his whānau risk losing their connection to the block. He submits that he should be recognised as a beneficiary of the block, and consequently permitted to reside there.
[28] After setting out the procedural history and addressing a detailed report of the Registrar’s research of the Māori Land Court file and the history of the block, the Judge turned to consider the nature of his jurisdiction under s 44(1) of the Act, the relevant parts of which provide:
44 Chief Judge may correct mistakes and omissions
(1) On any application made under section 45, the Chief Judge may, if satisfied that an order made by the court … was erroneous in fact or in law because of any mistake or omission on the part of the court … in the presentation of the facts of the case to the court … , cancel or amend the order … or make such other order … as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission.
8 Moore v Ngāti & Ors 6 May 2022, A20180007424, CJ 2018/44.
[29] Having set out the applicable principles governing the power, the Chief Judge turned to the decision of the Court of Appeal in Inia v Julian which set out a two-step approach to applications under s 44:9
(a)The first is an evaluative decision as to whether the order made was “erroneous in fact and law because of any mistake or omission the part of the court or the Registrar or in the presentation of the facts of the case to the court or the Registrar”.
(b)Second, if the initial jurisdictional threshold is met, the court should move on to consider the exercise of its discretion to cancel or amend the order, which requires a consideration of the interests of justice.
[30] Turning to the first issue, Chief Judge Isaac noted that Mr Moore’s submission was that the partition order is based on the Crown grant which identifies owners of the land but omits Mr Moore’s whānau. This was essentially the only basis on which the application had been advanced.10 As Mr Moore’s case really amounted to a challenge to the Crown grant itself, it was outside the power in s 44, which is limited to the correction of errors or omissions in orders of the Court or the Registrar. As the Chief Judge observed:11
… In terms of ss 44 and 45 of the Act, my jurisdiction relates to orders of the Court or the Registrar. A Crown grant is not an order of the Court or the Registrar. Therefore, I have no jurisdiction in respect to a Crown grant.
As a result of the above, I find that no error was made by the Court or the Registrar regarding the 1958 partition order.
[31] The Chief Judge considered that the partition order itself “is not in question”. In fact, no evidence had been produced to persuade him that the partition order was wrong in law or in fact.12 It followed that he did not need to consider whether it was in the interests of justice to cancel or amend the partition order.13 He therefore declined to exercise his jurisdiction under s 45 to amend or cancel the order.14
9 Inia v Julian [2020] NZCA 423 at [10].
10 At [32].
11 At [35]–[36].
12 At [33].
13 At [37].
14 At [38].
Was it an error of law to conclude that an error in the Crown grant fell outside s 44?
[32] As I have noted, underlying all of Mr Moore’s challenges is a complaint about the propriety of the list of original owners contained in the original 1884 Crown grant. The lawfulness of the grant was not itself directly challenged by Mr Moore in this proceeding.
[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.
[34] For these reasons, I have concluded there is no error in the approach of Chief Judge Isaac to his power under ss 44 and 45 of Te Ture Whenua Māori Act. The error that Mr Moore alleges is not one “in the presentation of the facts” to the Court. It is rather an indirect challenge to the lawfulness of the 1884 Crown grant. The Māori Land Court simply does not have jurisdiction to set aside or vary that statutory instrument. Accordingly, the second ground of review must be dismissed.
Mistake of fact on the same grounds?
[35] For the same reasons, the alleged error is not a mistake of fact. There is no mistake about the 10 owners listed in the Crown grant. Nor is there any error in the Māori Land Court’s 1958 partition order which is based upon it. Mr Moore’s alleged error in the ownership list is instead a collateral challenge to the lawfulness of the statutory instrument itself, which I have found is clearly outside the jurisdiction of the Chief Judge under s 44.
[36]For these reasons the third ground of review is also dismissed.
Fourth ground of review – was the failure to consider the interests of justice limb of s 44 an error of law?
[37] Mr Moore’s fourth and final ground of review is that it was an error of law for the Chief Judge not to consider the interests of justice when making his decision under s 44.
[38] There is nothing in this point. The Judge correctly noted the two-stage approach outlined in the Court of Appeal’s decision in Inia v Julian. As the Court of Appeal found, the broad consideration of the interests of justice as part of the exercise of the Chief Judge’s discretion only arises if the first limb—a mistake or omission in an order of the Court—has been made out. As the Judge had found there was no mistake or omission in the partition order, and he had no jurisdiction to vary or amend the Crown grant, there was no basis on which he could proceed to consider the interests of justice in the second stage. The Judge correctly identified the relevant legal test and applied it faithfully. No criticism can be made of his approach or his conclusion.
[39]I therefore dismiss the fourth ground of review.
Relief?
[40] The applicant has lived rent free on property which he has unlawfully occupied since 2013. The evidence indicates that his presence on the Rohutu block has caused upset for the block’s lawful occupiers. The evidence also indicates that in 2015 the Trustees were prepared to offer Mr Moore a lease, albeit on terms that Mr Moore did not find acceptable. It seems obvious that the Trustees made a serious effort, despite the illegality of Mr Moore’s occupation, to regularise the position and provide him with the opportunity to become a leaseholder. That opportunity has moved on.
[41] Finally, as Ms Hughes submitted, even if Mr Moore were a beneficiary of the Rohutu Trust, it would not provide him with an entitlement to a lease. Rather, the matter would always remain one for the discretion of the Trustees. Their assessment is that Mr Moore is not a suitable person to introduce to an established and quiet seaside community.
[42] For these reasons, even if I had found that there was an error of approach by the Māori Land Court, I would not have exercised the discretion to grant relief.
Conclusion and Result
[43]Mr Moore’s application for judicial review is dismissed.
[44] My understanding is that Mr Moore is legally aided. If he is not, my preliminary view is that he should be liable for the Trustee’s costs on a 2B basis. If the Trustees seek costs, they have leave to file memoranda. I will then deal with the issue on the papers. In the interim, leave to apply is reserved.
Isac J
Solicitors:
Exeo Legal, Wellington for Applicant Crown Law, Wellington for Respondent
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