Tito v Maori Land Court, Taitokerau District

[2022] NZHC 1030

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-23

[2022] NZHC 1030

IN THE MATTER

of He Whakaputanga O Te Rangatira 1835, Te Tiriti o Waitangi 1840, and Her Majesties Trustee Ship and Fiduciary Duty to the
Beneficial Owners to the Fee Title to land deemed Crown land for certain purposes

IN THE MATTER

of New Zealand Supreme Court Wakatu vs Attorney General SC13/2015 [2017] NZSC 17

IN THE MATTER

of Te Ture Whenua Maori Maori Land Act 1993 Preamble S2(3), S5, S19(1); The

Judicial Review Procedural Act 2016, The Bill of Rights 1990 S27, and Imperial Laws Application Act 1988 S5, S6

BETWEEN

KEVIN-JOHN TITO and TUI-DOROTHY TITO

Native Inhabitant/Beneficiary/Applicant(s)

AND

THE MAORI LAND COURT, TAITOKERAU DISTRICT

Respondent

Judgment:

(On the papers)

13 May 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 May 2022 at 10 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

TITO v THE MAORI LAND COURT, TAITOKERAU DISTRICT [2022] NZHC 1030 [13 May 2022]

[1]        The Registrar has referred this proceeding to me pursuant to r 5.35A because he believes that, on its face, it is plainly an abuse of the process of the Court.

[2]        The document intituled1 (in part) “Statement of Claim on behalf of the Applicant(s)” identifies “Kevin-John & Tui-Dorothy Tito” as “Native Inhabitant/ Beneficiary/Applicant(s)”. I will refer to them as “the Applicants”.

[3]        The document identifies “The Maori Land Court, Taitokerau District” as the Respondent.

[4]        The document is filed by the Applicants personally and has clearly not been drafted by a lawyer.

[5]        The document begins with five-and-a-half pages of what amounts to an asserted history of the legal basis for the British settlement of New Zealand and the basis for the government’s dealings with “Native Title”. Key paragraphs appear to be:

[19]      That: This first act of the settlers and immigrants, General Assembly (parliament) Land Court over the Land of the Native Inhabitants/ Beneficiaries/Applicants, was an unlawful attempt to extinguish Native Title and was a breach of the fiducial duty owed to the Native Inhabitants/Beneficiaries/Applicants by (the settlers and immigrants) Sovereign Her Majesty, the Trustee, however it was not by the Treaty Partner the Crown (UK), but Her Majesties subjects, (Agents) the Settler and Immigrants General Assembly/Legislative Body (parliament) whom through Governorship became Her Majesties, Crown (UK) agency, and;

[20]      That: These statements being called into being by the Native Inhabitants/Beneficiaries/Applicants are known to them as the Sovereign of the United Kingdoms Solemn Promises to the Native Inhabitants/ Beneficiaries/Applicants and as such take the claim by them of the application to the High Court of New Zealand into Equity (Sovereign’s Conscience) and the Equitable fiducial duty of the Crown (UK) to the Native Inhabitants/Beneficiaries/Applicants  of   the   Nation   now   known   as New Zealand.

[6]        The document goes on to quote passages it says are taken from the judgment of the Supreme Court in Wakatu v Attorney-General.2

1      I have intituled this Judgment as per the intituling on the Notice of Proceeding accepted for filing. I do not endorse it.

2      I infer the case referred to is Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.

[7]        The document then asserts:

[25]      That: This would mean that not only is the land which the respondent claims Freehold title to, not cleared of the Customary title by either of the above methods but also that jurisdiction for this case would be in Her Majesties Supreme Court of New Zealand and;

[26]      That: Furthermore, the Maori Land Court and its predecessor the Native Land Court being Courts of the General Assembly/Legislative Body (parliament) of Her Majesties Subjects in New Zealand, had issued title (Attached Marked “I”) that is not equitable, nor lawful according to Enactments of the Sovereign Parliament Westminster (UK) and the decision of Her Majesties Supreme Court of New Zealand and;

[27]      That: The British subjects settlers and immigrants General Assembly/Legislative Body (parliament) Maori Land Court continues to repeatedly stand by its previous decisions that the Land has been investigated, title has been issued and that this process extinguished the Customary Title to the Land, and;

[28]      That: It is not possible for the Native Inhabitants/Beneficiaries/ Applicants to expect an unbiased and unprejudiced hearing in the Maori Land Court that having breached the fiduciary duty of its Sovereign, Her Majesty the Queen of the United Kingdom, the Treaty Partner and Trustee, and now protecting its own unlawful act using its own case law which is based on that same unlawful act.

[8]        The document then asks the Court to transfer the proceedings to the Supreme Court.

[9]The only relief claimed (in apparent contradiction to [8]) seems to be:

[32] That: The decisions and orders of the Maori Land Court, the Maori Appellate Court and the High Court, Whangarei Registry, be subject to an urgent and immediate injunction of all said orders, pending the outcome of review under the Judicial Review Procedural Act 2016 and Bill of Rights 1990 S27, in Her Majesties High Court, of the matters in attached Memorandum and Exhibits.

[10]      The document is accompanied by what I estimate to be over 200 pages of “exhibits”.

[11]      As it happens, I think I have some knowledge of the background to this proceeding. On 21 May 2020, I delivered a judgment imposing a penalty on Mr Kevin

Tito for contempt of the Maori Land Court.3 A copy of my judgment is exhibit “Z4” to the document. In my introduction I say:

[1]        Mr Kevin Tito owns 65 per cent of the shares in the Mangakahia 2B2 No 2A1A block (the whenua). It is administered by an Ahu Whenua Trust (the Trust). Mr Tito is one of the three trustees.

[2]        The whenua is 41.1843 ha in area. There are currently 30 owners holding a total of 1020 shares. The whenua is leased by the Trust to neighbouring dairy farmers, Mr and Mrs Booth.

[3]        For over a decade there has been repeated litigation in the Maori Land Court, and in higher Courts, about the management of the whenua. Mr Tito has repeatedly tried to terminate the Trust. His latest attempt was rejected by Judge MJ Doogan in the Maori Land Court on 20 August 2018.

[4]        Mr Tito believes the Trust lacks legitimacy and he should have the sole right to decide what happens on the whenua. He bases this on his view of tikanga.

[5]        I set out this background because it sets the scene for why Mr Tito is before me today.

[12]      Other exhibits to the document include decisions of the Maori Land Court in relation to the whenua, all pre-dating my judgment.

[13]      The proceeding cannot continue in its present form. It is too unclear. On the face of the document, the Court does not have jurisdiction to entertain the claims, to the extent they can be identified.

[14]Rule 5.17(1) has not been complied with:

Distinct causes of action … founded on separate and distinct facts, must if possible be stated separately and clearly.

[15]      There is, for example, no application for injunction.

[16]      Judicial review is a jurisdiction to examine process. The document does not sufficiently identify the decisions which are sought to be reviewed. There are no grounds put forward as to why the decisions to be reviewed are in error.

3      Booth v Tito [2020] NZHC 1071.

[17]      If, as I suspect, the basis of the proceeding is that because of the historical narrative asserted in the earlier part of the document the Maori Land Court and this Court do not have jurisdiction to give judgments in respect of the whenua, then that basis cannot found the proceeding. It would be an abuse of process for it to continue.

[18]      But, if there are specific decisions to which the injunction and/or the judicial review jurisdictions might attach then perhaps the proceeding can go ahead. I will give the Applicants a chance to regularise their pleading rather than strike it out at this stage.

[19]I make the following directions pursuant to r 5.35B:

(a)The proceeding is stayed until further order of the Court.

(b)Documents for service are to be kept by the Court and not be served until the stay is lifted.

(c)No application to lift the stay should be heard until the applicants file an amended statement of claim which complies with r 5.17(1), with such compliance having been first certified by a Judge.

(d)If no amended statement of claim is received by 16 June 2022 the proceeding will be deemed to be struck out without further order of the Court.

[20]      I have not given the Applicants an opportunity to be heard. I record for their benefit that they have a right to appeal my decision.

Brewer J