Toni Colin Reihana v Maori Land Court

[2002] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND CA80/01

BETWEEN	TONI COLIN REIHANA
Appellant

AND	MAORI LAND COURT
First Respondent

AND	DIRECTOR-GENERAL OF CONSERVATION
Fourth Respondent

Hearing:	19 March 2002
Coram:	Gault J Tipping J Chisholm J
Appearances:	Appellant in person B H Arthur for Fourth Respondent R Brown for Te Runanga O Ngai Tahu
Judgment:	25 March 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The issue in this appeal is whether the Maori Land Court has any power of decision in relation to the matters which are primarily for decision by the Director-General of Conservation under Regulation 6(2) of the Titi (Muttonbird) Islands Regulations 1978.  The appellant, Mr Reihana, and other members of the Davis whanau, to which he belongs, have for many years laboured under a sense of grievance concerning the boundary between their manu (bird catching area) on the island of Taukihepa and an adjacent manu.  Mr Reihana has endeavoured to have the Maori Land Court entertain his complaint that the boundary line has been wrongly fixed in a way which diminishes the size of the Davis whanau’s manu.  The Maori Land Court has decided it has no jurisdiction in the matter.  That view was upheld by the Maori Appellate Court.  Panckhurst J on judicial review proceedings came to the same conclusion, and now Mr Reihana appeals to this Court.  The extensive background to the case and a variety of other issues are lucidly and comprehensively reviewed in Panckhurst J’s judgment.  It is not necessary in this judgment to cover the same ground in order to examine the confined issue with which this Court is concerned.

2. Regulation 6(2) provides that failing agreement on any dispute arising out of the Regulations, and hence failing agreement in respect of a boundary dispute of the present kind, the Director-General shall make the decision “which shall be final and binding on all parties”.  This finality is subject only to the capacity of the Director‑General to reconsider his own decision under Regulation 9.  It is essentially the combination of these provisions which led the Maori Land Court, the Maori Appellate Court and the High Court to conclude that the Maori Land Court has no jurisdiction to enter into a matter in respect of which the Director‑General’s decision is declared to be final and binding.  The Judges below have taken the view that the Regulations are a code providing exclusively for the way in which disputes arising under them are to be resolved. 

3. Despite the apparently clear words of the Regulation, Mr Reihana has argued that certain other provisions empower the Maori Land Court to declare what he asserts to be the correct boundary, Regulation 6(2) notwithstanding.  These other provisions are either or both of s18(1)(a) of the Te Ture Whenua Maori Act 1993 and s6(4) of the Maori Purposes Act 1983.  Section 18(1)(a) provides:

   General jurisdiction of Court

   (1)       In addition to any jurisdiction specifically conferred on the Court otherwise than by this section, the Court shall have the following jurisdiction: 

   (a)      To hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest:

4. Although the Titi Islands are Maori freehold land pursuant to s6(3) of the Maori Purposes Act 1983, the right to catch muttonbirds in a manu and hence the delineation for that purpose of a manu, is not a question of ownership or possession of Maori freehold land.  Nor does it relate to “any right, title, estate or interest in any such land” within the meaning of s18(1)(a).  Hence there is no jurisdiction in the Maori Land Court under that provision which might be capable of co-existing with the Director-General’s Regulation 6(2) jurisdiction.  The relationship between the Maori Land Court’s jurisdiction and the apparent exclusiveness and finality of the Director-General’s jurisdiction, does not therefore arise under s18(1)(a).  We agree with Panckhurst J who said that a right to bird (ie. to catch birds in a manu) was not a right or interest in land.  As the Judge said, at its highest, the right or entitlement is to take something from the land.

5. Section 6(4) of the Maori Purposes Act 1983 provides that the Maori Land Court shall have exclusive jurisdiction

   to determine relative interests and succession to such interests of deceased owners and appoint trustees for persons under disability in respect of the beneficial ownership of the islands; and in determining any such succession the Court may exercise its jurisdiction in the same manner as it did before the commencement of this section, notwithstanding any of the provisions of the principal Act relating to succession on intestacy to undivided beneficial freehold interests in common in Maori freehold land.

6. This provision is significantly more remote from the present issue than s18(1)(a).  It certainly does not support the appellant’s contention that the Maori Land Court has jurisdiction to embark on a matter in respect of which Regulation 6(2) vests the final power of decision in the Director-General.  Again we agree with the conclusion to which Panckhurst J came and there is nothing more which can usefully be said on the point. 

7. Mr Reihana suggested that an earlier boundary should be regarded as the correct one and that the Maori Land Court had power to declare that to be so, as that would not be “creating” a new boundary but simply declaring where the true boundary lay.  He also argued that the manu with which he is concerned was an “ancestral” manu and was therefore somehow outside the compass of the Regulations.  In addition Mr Reihana contended that even if his case was covered by Regulation 6(2) there was an alternative jurisdictional route open to him in the Maori Land Court.

8. None of these arguments can prevail against the clear intent of Regulation 6(2) which is to give the Director-General exclusive jurisdiction.  There is a corresponding lack of any alternative jurisdiction for resolving the kinds of dispute with which Regulation 6(2) is concerned.  There is no basis under the Regulations for the view that there are different types of manu, with some being outside the reach of the Regulations.

9. In summary, for these reasons and those given by Panckhurst J, and notwithstanding all that Mr Reihana urged upon us, we are satisfied the Maori Land Court has no jurisdiction, whether parallel or overriding, in respect of matters which the Director-General is empowered finally to decide by Regulations 6(2) and 9 of the Titi (Muttonbird) Islands Regulations 1978.  The appeal is therefore dismissed.  Mr Reihana must pay costs to the Director-General in the sum of $2000 plus disbursements including the reasonable travel and accommodation expenses of counsel to be fixed if necessary by the Registrar.  Te Runanga O Ngai Tahu, who were given leave to file written submissions, is to pay its own costs.

Solicitors
Crown Law Office, Wellington for Fourth Respondent