Winitana v Attorney-General
[2019] NZHC 381
•8 March 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2017-485-1067
[2019] NZHC 381
BETWEEN VERNON WINITANA
Applicant
AND
ATTORNEY-GENERAL
First Respondent
AND
THE WAIROA-WAIKAREMOANA
MĀORI TRUST BOARD
Second RespondentAND
TŪHOE TE URU TAUMATUA
Third Respondent
AND
GENESIS ENERGY LTD
Fourth Respondent
AND
TŪHOE CHARITABLE TRUST
Fifth Respondent
Hearing: 11–12 October 2018 Counsel:
P T Harman and R Zwaan for Applicant A K Irwin for First Respondent
S T Webster for Second Respondent
M G Colson and D W Ballinger for Third and Fifth Respondents P Beverley and A O’Connor for Fourth Respondent
Judgment:
8 March 2019
JUDGMENT OF ELLIS J
WINITANA v ATTORNEY-GENERAL [2019] NZHC 381 [8 March 2019]
[1] Lake Waikaremoana is a taonga of immense importance to Tūhoe, Ngāti Ruapani and Ngāti Kahungunu. But in its 2017 Te Urewera Report, the Waitangi Tribunal noted that the Lake1 had been the subject of one of the longest battles in New Zealand legal history.2
[2] Some might have thought that the battle ended almost 50 years ago, with the passage of the Lake Waikaremoana Act 1971 (the LWA). That Act validated a lease of the Lake that had earlier been agreed between a Committee3 authorised to represent the beneficial Māori owners of the Lake and the Crown.4 The object of the lease was to formalise the Crown’s historical and ongoing use of the Lake for National Park and other purposes and, for the first time, to require the Crown to pay rent.5
[3] The LWA did more than validate the lease. It vested ownership of the freehold in the lakebed in two existing Māori Trust Boards6 and provided that the rent was to be paid to those Boards in shares to be determined after the former owners had exercised a choice as to whether they wished to be on the Tūhoe “list” or the Ngāti Kahungunu “list”. But because the beneficiaries of these pre-existing Trust Boards were not limited to the former owners of the Lake, the LWA recognised that the rent received by the Boards could be applied for their more general purposes. That is what has happened.
[4] As recorded in the Te Urewera Report, it seems tolerably clear that at least some of the Lake owners in 1971 did not know either that the ownership of the Lake was to be transferred to the Boards or that the rent would be able to be applied for the Boards’ wider purposes. But the Tribunal found no breach of the Treaty of Waitangi (the Treaty) by the Crown either in relation to the process of negotiating the lease or
1 I use the words “Lake” and “lakebed” interchangeably in this judgment, which seems to accord with historical practice, including in the Lake Waikaremoana Act 1971 itself.
2 Waitangi Tribunal Te Urewera Report (Wai 894, 2017) vol 6 at 2739 [the Report]. I refer to the Report in more detail later in this judgment.
3 The Committee comprised Sir Turi Carroll, John Rangihau, Wiremu Matamua, Turi Tipoki, Te Okanga Huata, Canon Rimu Hamiora Rangiihu, Tikitu Tepoono, William Waiwai, Kahu Tihi and Rodney Gallen (as he then was).
4 These “owners” being the descendants of the owners as first determined by the Native Land Court in 1918 and later amended by the Native Appellate Court in 1946 and 1947.
5 The rent was backdated to 1967.
6 The second respondent and the predecessor of the fifth respondent. The fifth respondent was added as a party during the hearing before me, and represented by counsel for the third respondent.
in enacting the LWA. Rather, the Tribunal found that the owners had been well served by the Committee and that the Committee had taken the lead in negotiations with the Crown about both those matters. While acknowledging that some of the former owners of the Lake might have expected that they would become the sole beneficiaries of the rental monies, the Tribunal noted that, on one analysis, the holding of those monies on trust for a wider group of beneficiaries came closer to restoring matters to the earlier (pre-Native Land Court) position. As well, there was potentially some wider and additional benefit in the Lake owners in becoming beneficiaries of the two Trusts.
[5] Regrettably, the Tribunal’s thorough investigation and report has brought no peace or closure to some of the descendants of the former Lake owners. One such is the present applicant, Mr Winitana.7 He and others have previously sought the assistance of the Māori Land Court (the MLC)8 in restoring matters to the way they think they should be. Those endeavours have not succeeded. Mr Winitana tries again. He asks for declarations that there are continuing fiduciary relationships between the former Lake owners (and their descendants) on the one hand and the Crown and the Trust Boards on the other. He also seeks a declaration that there are constructive trusts over the rental income such that that income should have been and must be held by the Boards for the sole benefit of the descendants of the former Lake owners.
[6] But before turning to consider the merits of his claims, it is important to set out the background in a little more detail.
A brief history of the ownership of Lake Waikaremoana
Evidentiary matters
[7] Although Mr Winitana filed an affidavit in support of his claim he was not directly involved in many of the critical historical events and so is unable to give anything but a hearsay account of them. So, prior to the hearing of the claim, his counsel, Mr Harman, formally applied to have Chapter 20 of the Tribunal’s Te
7 Mr Winitana identifies as Ruapani ki Waikaremoana and, on behalf of the Panekire Tribal Trust Board, was involved in the Wai 144 claim which formed part of the Te Urewera inquiry.
8 Discussed further, below.
Urewera Report admitted into evidence. Chapter 20 is over 300 pages long and is devoted entirely to issues around Lake Waikaremoana.
[8] Two of the then respondents opposed Mr Harman’s application, one consented and the other abided. Although only admitted at the hearing on a de bene esse basis, I am now of the clear view that it should formally be admitted. The Te Urewera Report plainly falls within s 129 of the Evidence Act 2006 and, as Mr Irwin reminded me, the Court of Appeal has said that although the Tribunal’s reports are not binding on the courts, the findings of the Tribunal are of great value.9 Moreover, the reality is that without the Report I would be operating in a contextual and evidential void which would make determination of Mr Winitana’s claim impossible.10
[9] What this means, however, is that the remainder of this judgment proceeds almost exclusively on the basis of the facts as found by the Tribunal. To the extent those findings differ from Mr Winitana’s position I am unable to engage. Not only would such engagement be impossible as a practical matter,11 it would be wholly inapt in a declaratory judgment context. But to the extent Mr Winitana has raised any additional matters that seem uncontroversial or refers to documents which are not relied on for the truth of their contents, I do try to take them into account.
[10] Accordingly, the following (abridged) historical account is taken largely from the Te Urewera Report.
Facts
[11] I begin my largely chronological narrative at around the point the Crown began to take a serious interest in the Lake.
[12] In 1896 Parliament enacted the Urewera District Native Reserve Act which created the Urewera District Native Reserve (UDNR). The northern shores of Lake
9 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 661-662 and
New Zealand Maori Council v Attorney-General [1992] 2 NZLR 576 (CA) at 590.
10 As noted above, although Mr Winitana did file an affidavit in support of his application it was limited in scope.
11 The Tribunal’s inquiry lasted over 10 years. Two days were allocated for the hearing before me.
Waikaremoana formed the southern boundary of the UDNR but the Lake itself fell outside it.
[13] In 1903 the Tourist and Health Resorts Department opened Lake House, which marked the beginning of the Crown’s tourism enterprise at Lake Waikaremoana. And the following year began the first serious investigation of the Lake and the upper Waikaretaheke River catchment for hydroelectricity purposes.12
[14] In 1905 Te Reneti Hawira met with the manager of Lake House and wrote to Native Minister James Carroll, objecting to Pākehā fishing on the Lake without permission, and stating that the Crown did not own the Lake. The Minister rejected those representations and refused further requests that the Crown pay for tourists’ use of Lake Waikaremoana.
[15] In 1912, after the Court of Appeal’s decision in Tamihana Korokai v Solicitor-General (where it was held that the Native Land Court (NLC) had jurisdiction to hear Māori claims over lakes and determine whether Māori had title to lakebeds),13 Waikaremoana leader Hurae Puketapu and 84 others petitioned Parliament to change the boundary of the UDNR so as to include Lake Waikaremoana within the reserve.
[16] After the Native Affairs Committee responded by saying that Maori had not exhausted their legal remedies, Rawaho Winitana, Mei Erueti and Matamua Whakamoe filed a claim with the NLC for ownership of the Lake. A similar claim was filed by Ngāti Kahungunu leaders in 1914.
[17] There were hearings in the NLC in 1915 and 1916 which the Crown did not attend. In August 1917 the NLC approved lists of individuals from Tūhoe, Ngāti Ruapani and Ngāti Kahungunu as the owners of Lake Waikaremoana and, on 6 June 1918, the NLC awarded title to the lakebed of the Lake to 274 named individuals. Of these, 182 were Tūhoe and Ngāti Ruapani and 92 were Ngāti Kahungunu.
12 Lake Waikaremoana’s role in hydroelectricity explains the involvement in these proceedings of the fourth respondent, Genesis Energy Ltd. Genesis owns two easements over the lakebed and pays the Trust Boards for those.
13 Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321, (1912) 1 NZLRLC 192 (CA).
[18] The Crown and a number of Māori appealed the NLC decision. For reasons that were explored in depth by the Tribunal it took more than a quarter of a century to determine those appeals. But:
(a)in 1944 the Native Appellate Court dismissed the Crown’s appeal; and
(b)during 1946 and 1947 the Native Appellate Court determined the remaining appeals by Māori and made some changes to the lists of owners.
[19] In the intervening period the Crown had continued to use the Lake for tourism and purposes and as part of the Lake Waikaremoana power scheme.
[20] In 1949, the lakebed owners approached the Prime Minister, Peter Fraser, seeking an arrangement for the future use of the Lake for hydroelectricity, fishing and tourism. But no agreement was then reached.
[21] In 1954, the Crown established Te Urewera National Park, which included Lake Waikaremoana.
[22] In 1957, Māori leaders approached the Government seeking payment for past and present use of Lake Waikaremoana. None was forthcoming.
[23] The Government made offers to purchase the Lake in 1961, 1965 and 1966. Each time, a hui of the owners declined to sell. On the last occasion the owners agreed to appoint a committee to deal with the Crown on their behalf.
[24] In 1967, the committee sought help from Whetu Tirikatene-Sullivan, who facilitated a meeting in November with the new Minister of Lands (Duncan MacIntyre) and senior officials. For the first time, the Crown agreed that the Lake should be formally valued.
[25] In 1968, on the basis of legal advice that the value of the Crown’s use of the waters of the Lake for hydroelectricity should not be included in the valuation, the Lake was valued at $147,000.14 This was considerably more than the purchase prices previously offered by the Crown.
[26] In 1969, Cabinet authorised the Minister to offer to buy the Lake for $143,000 (excluding the value of improvements), with capacity to go up by 15 per cent if necessary. The proposal was that payment would be spread over 10 years, with interest at five per cent.
[27] A hui of owners on 26 September 1969 voted to reject the Crown’s offer. The owners proposed instead a 50 year lease with a perpetual right of renewal, backdated to 1957, with rent reviews every 10 years and a rental fixed at six per cent of the valuation. The owners appointed a new Committee, chaired by Sir Turi Carroll, to negotiate the lease.15
[28] The Minister agreed in principle to a perpetual lease and was given negotiating parameters by Cabinet. Cabinet also approved the validation of any lease by special legislation.
[29] In May 1970, officials met with the owners to hammer out terms. They negotiated a rental set at a 5.5 per cent of value, backdated only to 1967, and that the Crown would pay the rent to a specially constituted trust board for the benefit of the owners. After the agreement was reached, the Minister issued a press statement which stated:
The Maori owners of the bed of Lake Waikaremoana have agreed to lease the area in perpetuity…
This is a very happy outcome to many years of negotiation” said Mr MacIntyre. “Under the agreement the Maori owners will continue to own the land and the lake, which have so any associations for them, but all the people of New Zealand will be able to use the area for all time”.
…
14 That sum consisted of $73,000 for the marketable exposed lakebed, $70,000 for the submerged bed, and $4,000 for buildings and improvements on the bed.
15 For the membership of this Committee, see fn 3 above.
The area will in future be administered in conjunction with the adjoining Urewera National Park.
[30] After this meeting, it was left to the Crown (in the first instance) to draft the lease and the validating legislation.
[31] It seems that by mid-1970, the Crown had proposed that the lakebed itself would be vested in a new Trust entity. This was reflected in a draft Bill that was provided to the owners’ Committee in July 1970. When the Committee met in September to consider the draft, one of the members, Mr Rangihau, proposed that, instead of creating a new Trust to own the Lake and administer the rent, the Lake should be vested in two existing Māori Trust Boards (the Tūhoe Māori Trust Board and the Wairoa Māori Trust Board). It seems that this proposal was largely motivated (at least at the outset) by concerns about cost and administrative efficiency. Mr Rangihau’s proposal was endorsed by the Committee and conveyed to officials.
[32] The “two Board” option raised new question about the basis on which it should be decided that a particular existing owner should be made a beneficiary of one or the other Board. The Crown favoured an automatic allocation process in accordance with the much earlier determinations made by the NLC, but the Committee favoured letting the owners choose. In turn, this latter option raised process questions about how to facilitate that choice and what should be done if a particular owner failed to exercise it. As well, there was a reluctance by the Crown to proceed with validating the lease and vesting title to the lakebed before the allocation process was complete. The resolution of these issues took some considerable time.
[33] By May 1971, however, the wording of the lease had been agreed between the Crown and the Committee. The Te Urewera National Park board approved it for signing on 14 June.
[34] The parties to the lease were the Committee (on behalf of the owners as Lessor), the Queen (as Lessee) and the Urewera National Park Board (constituted under the National Parks Act 1952). It recorded that the Lessee had applied to the Lessor for a lease of the demised land (ie the lakebed) under s 13 of the National Parks Act 1952 “as and for an extension of the Urewera National Park, to which the Lessor
had agreed. Under the lease’s terms and conditions, the Lessee and the Park Board
covenanted to:
(a)pay the rent under the lease; and
(b)administer control and maintain the land in accordance with the powers and provisions of the National Parks Act 1952.
[35] Clause 5 preserved certain access rights in relation to Reserves and clause 6 of the lease provided for a right of renewal after 50 years that was contingent on the Lessee and the Park Board observing and performing all covenants conditions and agreements contained in the lease. Subclauses 6(3) and (4) provided notice periods with which the lessee was required to comply in order to obtain a renewal.
[36] On 21 August 1971, people gathered at Taihoa Marae in Wairoa to witness the signing of the lease by the Minister and the Committee members. Although there is no documentary record of the detail of what occurred, the Tribunal heard evidence from Sir Rodney Gallen16 and others who were present that day.
[37] As to the proposal to vest the ownership of the land in the new trust entity or entities, the Tribunal recorded that:17
Sir Rodney Gallen’s recollection of this meeting was that these matters were debated without the official party present. He had explained the proposed arrangements in English, including the vesting of title in the two boards, but could not recall who gave the explanation in Maori. ‘The explanation in Maori’, he noted, ‘was important as that was the first language for many of those present’. Sir Rodney commented:
I have since learned that some Waikaremoana people did not understand that their interests were to be transferred to the Tuhoe Trust. I was not aware of such a misunderstanding at the time and cannot say what explanation was given in Maori at the meeting.
16 Sir Rodney was the only surviving member of the Committee at the time of the Tribunal inquiry.
17 The Report, above n 2, at 2980.
[38] The Tribunal also noted that there was intense debate amongst owners about whether there should be a single new Waikaremoana trust board or use made of the Tūhoe and Wairoa Trust Boards.18 Ngāti Kahungunu representatives preferred setting up a new trust with all the Waikaremoana owners as beneficiaries, whereas Tūhoe leaders preferred the “existing trusts” option which would provide an opportunity for the Waikaremoana owners who were not previously beneficiaries of the Tūhoe Trust Board would become so and “for Tuhoe to thereby be united”.
[39] But the meeting was unable to reach a consensus and (the Tribunal recorded) “eventually it was moved from the floor that the issue be decided by the committee”. Then Sir Turi Carroll then made the decision that the existing trusts should be used:19
He did not further consult the committee and there was no further discussion after he had spoken. Sir Turi made the decision he did, as he later explained to me, because he felt that there would be difficulty in the two peoples working together administering one trust, and in making the decision that he did, he went against the views of his own people.
[40]In that respect Sir Rodney had said:20
When the question was referred back to the committee I believe most people expected Sir Turi to make the decision. He was the Chairman and a Rangatira of great status. It would not have been proper for anyone else to speak after him let alone question his decision. It is important that the decision was not his personal preference. I know that he would have preferred one new trust but as I said before, he later told me that he had made the decision as he did because he thought there would be difficulty in reaching agreement on administration of one trust bearing in mind the differing views of the two tribal groups.
[41] The lease was signed that afternoon by Duncan MacIntyre and the Committee members. On Monday 23 August 1971, the Wairoa Star quoted what the Minister had said at the ceremony:21
As Minster of Lands I am delighted that Lake Waikaremoana has become part of the Urewera National Park but at same time remains the property of the owners.
18 There was also disagreement as to how the rent (and owners) should be divided in the event that the two existing Trust Boards were used.
19 The Report, above n 2, at 2980.
20 At 2981.
21 ‘Joint Ministerial Report – Lake Waikaremoana: Report to the Minister of Maori Affairs, Hon Tau Henare, Minister of Conservation, Hon Dr Nick Smith’, 27 August 1998, at 3.16.
The Lake Waikaremoana Act 1971
[42] On 17 December 1971 the Lake Waikaremoana Act 1971 (the LWA) was passed and came into force. The LWA comprises a preamble, 14 sections and a schedule containing the lease of the lakebed by the two Trusts Boards to the Crown. Of some relevance to Mr Winitana’s claim is the preambular statement that:
… it was further agreed between the committee and the Crown representatives that the rent payable under the lease should be administered by certain Maori Trust Boards for the benefit of the owners of Lake Waikaremoana and their descendants…
[43]Also, of present note:
(a)s 2 defined “Lake Waikaremoana or the lake” as:
… all that piece of Maori freehold land known as Lake Waikaremoana, situated in the Gisborne Land District, and containing 12 875 acres, more or less, and being all the land comprised and described in a Freehold Order of the Maori Land Court dated 6 June 1918 and registered in the Provisional Register, Volume 1B, folio 861, Gisborne Registry
(b)s 3 validated the lease;
(c)s 4 authorises the registration of the lease under the Land Transfer Act 1952;
(d)ss 5 and 6 renamed the two existing trust boards the Tūhoe-Waikaremoana Maori Trust Board and the Wairoa-Waikaremoana Maori Trust Board;
(e)s 7 declared that each of the original lists of the lakebed owners ascertained by the NLC were either to be a Ngāti Kahungunu list or a Tūhoe list;
(f)s 8 required a list of all owners to be compiled and divided into two portions, comprising the Ngāti Kahungunu and Tūhoe owners and that this list was to be made available for inspection;
(g)s 9 stipulated that current owners had 6 months to choose whether to be on the Ngāti Kahungunu or Tūhoe list, after which time the Registrar of the Māori Land Court was to certify a final list of owners showing the Ngāti Kahungunu and Tūhoe owners;
(h)ss 10 and 11 declared:
(i)the owners on the Ngāti Kahungunu list to be beneficiaries of the Wairoa-Waikaremoana Māori Trust Board;
(ii)the owners on the Tūhoe list to be beneficiaries of the Tūhoe-Waikaremoana Māori Trust Board;
(i)s 12 empowered the Governor-General to appoint three additional members to each Board to represent the new beneficiaries added by ss 10 and 11;
(j)s 13 provided for the vesting of title of the Lake in the two Trust Boards by:
(i)directing the Registrar to calculate the aggregate share in the land of each of the 2 groups of owners after the final list of owners had been prepared (in accordance with s 9): s 13(1);
(ii)directing the Registrar then to make an order vesting the Lake in the two trust boards “for an estate in fee simple (but subject to the lease to the Crown validated by section 3) as tenants in common” in the shares as calculated under s 13(1): s 13(2); and
(iii)declaring that the vesting order was to have effect as if it were an order of the Māori Land Court: s 13(3).
(k)s 14 concerned the rent payable under the lease and any other money paid in respect of the lake. The money was to be paid to the two Trust Boards in accordance with their respective shares and was to constitute an asset of the Boards for the purposes of s 24 of the Maori Trust Boards Act 1955 (the MTBA55).22
[44] It is also relevant to note that, on the same day the LWA commenced (17 December 1971), s 24C was inserted into the MTBA55. Section 24C provided:
24C Maori Trust Board may accept trusts
Notwithstanding anything in any other provision of this Act, a Board may accept and hold or otherwise deal with any property upon trust for the benefit of the Board’s beneficiaries or any of them or for the benefit of any group of persons which includes any such beneficiaries. Any property held by a Board pursuant to this section shall be dealt with in accordance with the terms of the trust and shall not constitute an asset of the Board for the general purposes of this Act.
POST-LWA EVENTS
[45] The following year, the Registrar completed the division of owners between the two lists and vested the lakebed in the Boards as tenants in common accordingly. Based on the lists, 148,000 shares went to the Wairoa-Waikaremoana Māori Trust Board and 387,000 shares went to the Tūhoe-Waikaremoana Māori Trust Board.
[46] As the Tribunal’s report makes clear, however, it quickly became apparent that, in some quarters at least, there was confusion about what had been effected by the Act. The Registrar consulted Judge Gillanders Scott, who responded in a memorandum, dated 2 May 1973, in which he said:23
22 Section 24 of the Maori Trust Boards Act 1955 [MTBA55] set out the functions of Māori Trust Boards. Section 24(1) provided:
The functions of each Board shall be to administer its assets in accordance with the provisions of this Act for the general benefit of its beneficiaries, and, for that purpose, a Board may, in its discretion, provide money for the benefit or advancement in life of any specific beneficiary, or of any class or classes of beneficiaries.
23 The Report, above n 2, at 2989.
A large section of the Maori persons whose names appeared in the Maori Land Court Title schedules of ownership prior to implementation by Registrar’s order of the vestitive provisions of the Lake Waikaremoana Act 1971 firmly expect to be paid out each half year their entitlement of the rent in direct proportion to the shares now held by them in the present Tuhoe and Kahungunu lists. Another section of the Maori persons hold the view that the 1971 Act precludes such individual distributions of rent, and that the Lake bed alike the rents form part of the assets of the two respective Trust Boards. Another section of the Maori persons hold the view that the land comprising the bed of the Lake is still owned by them subject only to the lease, whereof the rents go to the Trust Boards for its general purposes and not for individual distribution. In addition there are variations of these understandings . . .
Put broadly, but I think accurately, the only thing certain is the uncertainty of thinking and understanding on the part of probably the majority of the Maori persons concerned with Lake Waikaremoana.
The sooner all questions (not merely the question of Status of land) are cleared up the better.
[47] The Judge’s view was that the courts were the preferable route for resolving these issues but considered that legislation might be necessary to fix them.
[48] As the Tribunal noted, however, officials were puzzled by this advice because their view was that the statute had clearly vested ownership of the lakebed in the Boards, at the request of the owners’ Committee. Officials at that time appear to have been united in thinking that, in light of the vesting, status did not matter but, in any event, the lakebed had become “European” land, by virtue of s 2 of the Maori Affairs Act 1953 (the MAA).
[49] Section 2(1) of the MAA defined “Maori freehold land” as “land other than General Land which, or any undivided share in which, is owned by a Maori for a beneficial estate in fee simple, whether legal or equitable”.24 Officials considered that this definition excluded the Lake (once it had been vested in the Boards) because the Boards were not “a Maori”, which was defined at the time as “a person belonging to the aboriginal race of New Zealand; and includes a half-caste and a person intermediate in blood between half-castes and persons of pure descent from that
24 Section 2(1) also defined “General land” as “any land other than Maori land which has been alienated from the Crown for a subsisting estate in fee simple and includes any land which, pursuant to the provisions of Part I or Part IV of the Maori Affairs Amendment Act 1967, ceases to be Maori land.”
race”.25 Nor did they think the Lake’s former Māori freehold status was “saved” by virtue of s 2(2)(f), which provided:
(2) Unless expressly provided in this or any other Act with respect to any specified or defined area, and notwithstanding anything in the foregoing definition of the term “land” or in any of the subsidiary definitions included therein,—
…
(f)Maori freehold land the legal fee simple in which has been transferred otherwise than by an order of the Court or of a Registrar shall, except where it appears on the face of the instrument of transfer that the land has remained Maori freehold land, be deemed to be General Land until either—
(i)An order is made by the Court under paragraph (i) of subsection (1) of section 30 of this Act determining that the land is Maori freehold land; or
(ii)Any other order is made by the Court as a consequence of which the land becomes Maori freehold land.
[50] Officials considered that although s 13(3) of the LWA provided that a vesting order made by the Registrar under s 13(2) would have effect as if it were an order of the MLC, it was not in fact such an order. So s 2(2)(f) did not operate to prevent the Lake from becoming General Land. Section 2(2)(e) (as to which more, anon) did not feature in their analysis.
[51] The Tūhoe-Waikaremoana Māori Trust Board did not share the officials’ view. In correspondence with the Crown the Board said that the lakebed continued to be Māori freehold land and, as such, was still subject to vesting orders on succession:26
Our view is that the correct interpretation of the Lake Waikaremoana Act 1971 is that the owners intended that only the revenues from the Lake should go to the Trust Boards and not the ownership of the lake itself. It was this intention of the owners to which the statute gives effect.
A European lay person might well think that since the Lake is let on perpetual lease there is nothing left to the owners. However, because of the special feeling that Maori people have for their ancestral land it is quite understandable that they should wish to retain ownership of the land itself
25 The definition was amended the following year so that the reference to “blood” and “half-castes” was replaced simply by “descendants”.
26 The Report, above n 2, at 2991.
even though neither they nor any of their descendants would ever derive any monetary benefit from such ownership.
From a legal point of view we think that it is clear that the Act did not intend to take away the owners’ interest in the land because if this was the intention of the Legislature then the Act would have made the Lake itself an asset of the Board and not just the income.
If our views set out above are correct then the owners are still the equitable owners of the land itself subject only to the Trust in respect of all revenues derived from the land.
[52]But officials responded:27
We cannot, of course, say definitely why the law is, but it does seem to us clear that the intention was to vest the land in the Trust Boards absolutely, ie, not in trust. In our view this is what has been done. The former owners, after the passing of the Act, became beneficiaries of the Boards, whose prime object is to deal with the income (ie, rental) from the Boards’ share of their ‘asset’ for the benefit of their respective beneficiaries (as decided by the Act) and their descendants. This follows the usual practise [sic] of boards and their beneficiaries.
If anyone wishes to argue the matter it is suggested that they raise it with Mr R G Gallen of the legal firm of Lusk, Willis, Sproule and Gallen . . .
[53] It is not clear whether the Board ever took up the officials’ suggestion. But the Tribunal acknowledged that years later, both during the 1998 ministerial inquiry,28 and in claims made to the Tribunal, many people still believed that the LWA was to be interpreted as doing no more than vesting the administration of the rentals in the Boards, because any other interpretation did not give effect to what had been agreed in 1971. I come back to the Tribunal’s findings about that, later in this judgment.
27 At 2991 – 2992.
28 In 1998 there had been a lakebed “occupation” by Māori who considered that the Department of Conservation (DOC) was not managing the Lake properly under the terms of the National Parks Act 1980. An inquiry was set up, resulting in the Joint Ministerial Report cited at n 21 above. The Trust Boards were supportive of DOC at the time of the inquiry.
The two MLC decisions
[54] These ongoing issues about ownership and status were squarely placed before the MLC in two separate applications in 2000. In the decisions that followed, the MLC did not agree with the view expressed by officials in the late 1970s but nor did it wholly agree with the view expressed by the Tūhoe-Waikaremoana Maori Trust Board.
The first decision
[55] In February 2000, the Court was faced with an application under s 241 of Te Ture Whenua Maori Act 1993 (the 1993 Act) for an order that:29
… the Trusteeship of the Wairoa-Waikaremoana Trust Board and the Tuhoe Waikaremoana Trust Board in Lake Waikaremoana be terminated and the Lake vested in the Trusteeship of such other persons or entity as the beneficial owners may direct.
[56] Judge Savage recorded that there were a number of grounds set forth in the application, which (he said):30
… in general terms allege a failure to pay rental moneys obtained from the Crown to the beneficial owners of the Lake and the jumbling of rental moneys from the Lake with other moneys of those Trust Boards.
[57]Judge Savage began his analysis by noting that:
(a)the applicant had conceded for the purposes of the application that the trusts were constituted in respect of Maori land and, so, that the Court had jurisdiction to make an order terminating the trusts under s 241 of the 1993 Act; but
(b)s 241 does not confer jurisdiction over the general assets of a Māori Trust Board, which are not amenable to the jurisdiction of the Court; and
29 Lake Waikaremoana (2000) 253 Rotorua MB 1 (241/93) at 1.
30 At 1.
(c)in light of s 35 of the MTBA55,31 the Trust Boards’ position was that the former owners no longer had an interest in Lake Waikaremoana which was an asset of the Boards but, rather, were simply beneficiaries of the Boards.
In granting the Trust Boards’ application to strike out the claim, the Judge said:
(a)those preambular words set out at [42] above do not form part of the operative provisions in the LWA;
(b)even if those words might suggest that the Trust Boards had a duty to keep the rental monies for the beneficial owners they do not indicate that the beneficial owners were to retain an interest in the Lake or assist them in establishing a Trust in relation to the land upon which the Court’s jurisdiction is founded;
(c)there was not, in any event, a specific Trust in relation to rental monies;
(d)s 13(2) of the LWA (which required the Registrar to vest the fee simple in the Lake in the Boards) cuts across any claim of a continuing fiduciary relationship with the former owners;
(e)the use of the word “owners” in the LWA does not connote continuing ownership but is adopted for convenience and clarity for a specific purpose (ie the calculation and vesting of shares based on past ownership);
(f)while s 24C of the MTBA55 provides that a Māori Trust Board may accept Trusts, it does not impose a Trust and the two Trust Boards here have not “accepted and held” the lakebed in terms of that section;32 and
31 Section 35 provides that “[n]o beneficiary shall acquire or be deemed ever to have acquired any interest, whether vested or contingent, or legal or equitable, in the assets of the Board of which he is a beneficiary”.
32 Section 24C is set out at [44] above.
(g)s 14 of the LWA, which provides that the rentals received constitute assets of the Board and are thus not held on trust for the owners, further supported the Trust Boards’ position.
[59]So, the Judge concluded:
… it is clear that Lake Waikaremoana is vested in the two Trust Boards for an estate in freehold in fee simple clear of any Trust that might be subject to the jurisdiction of this Court. There is therefore no prospect of success by the applicant, for the Lake is part of the general assets of a Maori Trust Board.
The second decision
[60] The second MLC decision dealing with Lake Waikaremoana that year was also authored by Judge Savage.33 It was issued less than a month after the first. That decision concerned an application to determine the status of the Lake and, in particular, whether it was General land or Maori freehold land. This was, of course, precisely the issue that had been debated between the Tūhoe-Waikaremoana Māori Trust Board and officials, 25 years before.
[61] The Court observed that, until the passing of the LWA, the Lake was unquestionably Māori freehold land but that the question raised by the application was whether the interplay between the LWA (and orders made pursuant to it) and s 2 of the MAA had the effect of changing the Lake’s status to general land.
[62]In the course of his decision, Judge Savage noted:
(a)the Lake is referred to in s 2 of the LWA as Maori freehold land (although s 2 was not an operative part of the Act);
(b)the LWA does not expressly or implicitly indicate a legislative intent
to change the Lake’s status;34 and
33 Lake Waikaremoana (2000) 253 Rotorua MB 1 (131/93).
34 The Judge observed that “[t]he position and importance of the lake for Tuhoe and Ngati Kahungunu and the honour of the Crown in this matter, casts strong doubt on the proposition that a change was intended to be effected by a side wind”.
(c)it nonetheless appeared that a number of departmental officers and the Trust Boards had assumed that the land had become general land.
[63] The Court then set out s 13 of the LWA, noting that subs (3) (which declared that the vesting of the Lake in the two Trusts Boards was to have effect as if it were an order of the MLC) was pivotal. The Court noted that, based on the general definitions of land in the MAA35 (set out earlier in this judgment), the Lake would be general land (because a Trust Board is not “a Maori”). But in terms of the s 2(2) “savings” provisions, the Court focused on s 2(2)(e), rather than s 2(2)(f) as had the officials. Section 2(2)(e) provided:
(2) Unless expressly provided in this or any other Act with respect to any specified or defined area, and notwithstanding anything in the foregoing definition of the term “land” or in any of the subsidiary definitions included therein,—
…
(e) Maori freehold land which has been vested in any person by an order of the Court or of a Registrar for a beneficial freehold interest shall, except where it appears on the face of the order that the land has become General Land, be deemed to remain Maori freehold land until either—
(i) An order is made by the Court under paragraph (i) of subsection (1) of section 30 of this Act determining that the land is General Land; or
(ii) Any other order is made by the Court as a consequence of which the land becomes or is deemed to have become General Land:
[64] The Court said the issue was whether the Registrar’s Order under s 13 of the LWA has the full status of an order of the MLC in terms of this provision. And as to that, Judge Savage again differed from the officials. He held that, in light of the reference in s 2 of the LWA to the land being Māori freehold land and the wider legislative and political context, the words in section 13(3) must mean that the
35 Although the Maori Affairs Act 1953 had, by then, been repealed, s 129(3) of the Te Ture Whenua Maori Act 1993 (the 1993 Act) provides “[n]otwithstanding anything in subsection (2) of this section, where any land had, immediately before the commencement of this Act, any particular status (being a status referred to in subsection (1) of this section) by virtue of any provision of any enactment or of any order made or any thing done in accordance with any such provision, that land shall continue to have that particular status unless and until it is changed in accordance with this Act.”
Registrar’s Order was to be regarded as an order of the MLC for all purposes, including s 2(2)(e). He concluded:36
I now determine pursuant to Part VI of Te Ture Whenua Maori Act 1993 in terms of the application that Lake Waikaremoana being all that land comprised and described in Certificate of Title 4A/485 in the Gisborne Land Registry is Maori freehold land.
The easements granted to the Fourth Respondent
[65] As the Tribunal’s report makes clear, the use of Lake Waikaremoana for electricity generation purposes has a long and vexed history. The Tribunal found that claimants had legitimate grievances as a result of the Crown failure to pay for such use or to consult with iwi, and as a result of consequential environmental damage to the Lake and surrounding areas.
[66] The agencies responsible for the power scheme has changed over the years, from the Hydro-electric Branch of the Public Works Department in 1911 to the State-owned enterprise, Genesis Energy Limited (Genesis) today. For the purposes of operating the Waikaremoana Power Scheme, Genesis presently holds easements in gross for the purpose of:
(a)granting the right to convey and drain water and to convey electricity and telecommunications signals, waves and impulses over part of Lake Waikaremoana; and
(b)granting a right to store water from time to time on or about certain land, together with incidental rights and powers.
[67] These easements were granted by order of the MLC in December 2000. Genesis pays the Second and Fifth respondents an annual licence fees for the easements.
[68] Because these proceedings largely focus on the lease, however, matters relating to Genesis the power scheme have little relevance to this judgment. As I understand
36 Lake Waikaremoana, above n 33, at 3.
it, Genesis was initially named as a party to the claim as originally filed sought declarations that had the potential to affect its interests, in particular a declaration that Lake Waikaremoana is not Maori Freehold land but General land. That declaration is no longer specifically sought, although the issue remains “live”.37
[69] In any event, it suffices to note that Genesis appeared at the hearing but abides the decision of the Court unless a declaration is made that might affect its interests.
The Tūhoe settlement in 2014
[70] One of the planks in the 2014 settlement of Tūhoe’s Treaty grievances was an acknowledgement by the Crown that its failure to respect Tūhoe mana motuhake and adequately provide for the interests of Tūhoe in the establishment and governance of Te Urewera National Park breached the Treaty of Waitangi and its principles. Central to redress under the settlement deed was that Te Urewera national park land was to be vested in a Te Urewera legal entity and protected under new standalone legislation.
[71] In terms of the effect of the settlement on the ownership of the Lake it is useful to begin by referring to the report back on the Te Urewera–Tūhoe Bill (which was later to be divided into the Te Urewera Act 2014 (the TUA) the Tūhoe Claims Settlement Act 2014 (the Settlement Act)) by the Māori Affairs Select Committee. The Committee said:38
Waikaremoana lakebed
As part of the settlement, the bill will provide for the dissolution of the Tūhoe Waikaremoana Māori Trust Board and the vesting of its assets. The Board’s charitable assets will be amalgamated with two other existing Tūhoe entities to form a single charitable trust. Any other assets will be transferred to the Tūhoe governance entity, Te Uru Taumatua. Among the Board’s charitable assets are 72 percent of the shares in the bed of Lake Waikaremoana. These shares were vested in the Board by the Lake Waikaremoana Act 1971. The previous individual owners became beneficiaries of the Trust Board, and do not hold direct ownership rights in the lake-bed. The amalgamation of the three charitable entities was voted on as part of the ratification of the Tūhoe deed of settlement. We note that the resolutions to dissolve the Trust Board and amalgamate the charitable entities were supported by approximately
37 Although the second declaration now sought is (in part) to the effect that the Second and Fifth respondents hold the licence money from the easements on trust for the descendants of the original Lake owners that does not affect Genesis’ interests.
38 Te Urewera-Tūhoe Bill 2014 (146-2) (select committee report) (emphasis added).
86 percent of voters. Lake Waikaremoana will not become part of Te Urewera, but remain separate, with a continuing obligation for the Crown, under the lease, to manage it in accordance with the National Parks Act 1980.
Wairoa Waikaremoana Māori Trust Board
We considered whether this change to the lake-bed ownership would infringe the rights of the Wairoa Waikaremoana Māori Trust Board, which owns the remaining 28 percent of shares in the lake-bed. The board represents the Ngāti Kahungunu interests in Lake Waikaremoana. We are satisfied that the change in the ownership arrangement for the Tūhoe shares of the lake-bed will not change the Wairoa Waikaremoana Māori Trust Board’s ownership of its shares in the lake-bed. We also note that the new governance structure for Te Urewera does not extend to the bed of Lake Waikaremoana, which will remain private land. We are advised that this arrangement preserves the Crown’s ability to provide redress to Ngāti Kahungunu groups with interests in the Lake Waikaremoana area, including Te Tira Whakaemi o Te Wairoa, in the future as part of their Treaty settlements. We note that part of that solution was to seek representation on the Te Urewera Board for the purposes of expressing their interests in the management of Te Urewera.
Ngāti Ruapani
We acknowledge that Ngāti Ruapani ki Waikaremoana’s interests overlap with those of Tūhoe. We are advised that members of Ngāti Ruapani ki Waikaremoana were consulted in the overlapping claims process. We acknowledge that Ngāti Ruapani expressed concern about the extent of the consultation. The bill requires Te Urewera Board to consider and provide appropriately for the relationship and the culture and traditions of iwi and hapū who have interests in Te Urewera. This includes requiring under clause 243 that the board and Ngāti Ruapani ki Waikaremoana reach a memorandum of understanding setting out how they will work together on matters relating to the Waikaremoana area. The arrangements of the memorandum of understanding can be superseded by a future Ngāti Ruapani ki Waikaremoana Treaty claims settlement. The bill also provides for national park land within the former Onepoto Military Reserve to become a conservation area. The land will not be transferred to the Te Urewera legal entity, so that redress in relation to the land can be considered in Ngāti Ruapani ki Waikaremoana’s future Treaty settlement negotiations.
[72] And so it was that the Settlement Act dissolved the Tūhoe-Waikaremoana Māori Trust Board.39 As noted by the Committee, the Tūhoe Charitable Trust Board and the trustees of Tūhoe Te Uru Taumatua (the Tūhoe Post-Settlement Governance Entity, or PSGE) replaced the former Trust Board and its charitable trust.40 This involved a simple substitution of the new entities for the old, with the same proportion of shareholding being retained. But because of those changes to the governance
39 Tūhoe Claims Settlement Act 2014, s 89(1) [the Settlement Act].
40 Section 89(2). Since 1982, the Tūhoe share of the freehold in the lakebed had been held as a charitable asset by the Tūhoe-Wakaremoana Māori Trust Board Charitable Trust, which had been established by way of declaration under s 24B of the MTBA55.
organisation of Tūhoe, s 90 provided that the charitable assets and liabilities of the Tūhoe-Waikaremoana Māori Trust Board merge and vest in the Tūhoe Charitable Trust, and assets and liabilities not held for charitable purpose vest in the PSGE. 41
[73] The status of the Lake, owned by Tūhoe and Ngāti Kahungungu interests in the agreed shares, continued. Section 109 and sch 4 of the Settlement Act amended the LWA, but only to reflect the change of entity from the Tūhoe-Waikaremoana Māori Trust Board to the new Tūhoe Charitable Trust and to provide that the rent currently paid under the LWA to the Tūhoe-Waikaremoana Māori Trust Board would be paid to the Tūhoe Charitable Trust. Lake Waikaremoana did not vest in the new entity, Te Urewera. But by virtue of ss 12 and 14 of the TUA, the Urewera National Park was effectively removed from the national parks regime.
[74] And s 137 of the TUA made specific provision for the interests of Ngāti Ruapani ki Waikaremoana in the Waikaremoana area, by providing:42
137 Interests of Ngāti Ruapani Ki Waikaremoana in Waikaremoana area
(1) As soon as practicable after the settlement date, the Board and Ngāti Ruapani ki Waikaremoana must commence discussions for the purpose of entering into a memorandum of understanding that records how the Board will work with Ngāti Ruapani ki Waikaremoana in undertaking processes under this Act that affect the interests of Ngāti Ruapani ki Waikaremoana in the Waikaremoana area.
[75] In short, however, the Tūhoe portion of the lakebed is now held subject to the conditions of the Tūhoe Charitable Trust and is no longer held subject to duties under the MTBA55.
41 It is the combined effect of these provisions that means that it is the fifth rather than the third respondent that is the entity responsible for the matters which are the subject of these proceedings. It is the third rather than the fifth respondent that became the Tūhoe entity which owned the Lake and also became the Tūhoe “Lessor” entity.
42 The section goes on to provide that legislation enacted to give effect to a settlement of the historical claims of Ngāti Ruapani ki Waikaremoana may (if the Crown and Ngāti Ruapani ki Waikaremoana agree that redress provided to Ngāti Ruapani ki Waikaremoana under other legislation supersedes the matters set out in the memorandum of understanding) provide for the memorandum of understanding to terminate.
The 2017 MLC decision
[76] In 2012, Mr Winitana and others applied to the MLC under s 45 of the 1993 Act for a reconsideration of the first of Judge Savage’s 2000 decisions.
[77] After taking various steps which are not presently relevant, the Chief Judge of the MLC delegated the determination of the application to the Deputy Chief Judge. She, in turn, asked another MLC Judge, Judge Coxhead, to inquire and report on the matter under s 46(1). There was a hearing on 28 June 2016 which resulted in a Report dated 22 December 2016.43
[78]The Judge began this Report by noting
[3] The Court now has three applications claiming that the Court was wrong to dismiss the 1999 application and find that Lake Waikaremoana was vested in the Wairoa-Waikaremoana Māori Trust Board and the Tuhoe-Waikaremoana Māori Trust Board for an estate of freehold in fee simple, clear of any trust that might be subject to the jurisdiction of the Court. They argue that the Court misinterpreted the provisions of the Lake Waikaremoana Act 1971, which they say show that the equitable beneficial ownership of the original owners was continued and a constructive or resulting trust created. The applicants say that the dismissal of the application seeking to terminate the trust has led to the alienation of their rights of ahi kaa and their right to succeed.
[79] After noting a number of procedural issues, summarising the submissions of the parties and the general approach to applications under s 45 the Judge said:
[77] I acknowledge the history of matters prior to the enactment of the LWA, however I do not believe the applicants’ arguments are borne out in the legislation. I find that the provisions of the LWA are clear – the lake was to be vested in the Trust Boards for an estate of freehold in fee simple, subject only to the lease to the Crown. The applicants argued that the LWA does not expressly state that beneficial ownership was transferred and the Court could not therefore conclude that it had. That position however cannot be sustained. I consider the words “an estate of freehold in fee simple” to be generally understood as conveying absolute title. To find in the alternative would be to stretch the plain and ordinary meaning of that phrase. If a different meaning was to be given to those words and a trust intended, then I would expect it to be expressly provided for in the legislation. I do not believe that Parliament would leave its intention to be cobbled together and inferred from minutiae present in various provisions throughout the Act.
43 The report is set out in the subsequent MLC decision Morrell v Wairoa-Waikaremoana Māori
Trust Board (2017) Chief Judge’s MB 342-370 (2017 CJ 342-370).
[78] Once the lake was vested in the Trust Boards, the provisions of the Māori Trust Boards Act 1955 became relevant. The function of the Trust Boards is to administer their assets in accordance with the provisions of the Māori Trust Boards Act 1955, for the general benefit of their beneficiaries. Importantly, s 24C allowed the Trust Boards to accept and hold property on trust for the benefit of their beneficiaries, or for any group of them.
[79] I note that while the LWA provides for the “owners” on the final lists to become beneficiaries of the Trust Boards, there is no mention of the Trust Boards holding the lake in accordance with s 24C. In other words, there is no reference to the Trust Boards holding the lake on trust. The only conclusion is therefore that the lake was vested absolutely, to be held as assets of the Trust Board. Lending weight to this conclusion is s 35 of the Māori Trust Boards Act 1955 which states:
Beneficiaries not to acquire vested interest
No beneficiary shall acquire or be deemed ever to have acquired any interest, whether vested or contingent, or legal or equitable, in the assets of the Board of which he is a beneficiary.
[80] The Judge said that in order for a separate trust to have been constituted, there would need to have been an express provision in the legislation, an order of the Court, an agreement setting up a trust, or a decision of the Court finding the existence of a constructive trust or resulting trust. None of these existed in the case of Lake Waikaremoana.
[81] Judge Coxhead also agreed with Judge Savage that there was no separate trust in respect of the rental monies. He said:
[86] In my view the provisions of s 14 make it clear that the rent and other money payable in respect of Lake Waikaremoana must be paid to the Trust Boards and thereafter will constitute assets of those Trust Boards. While now only applicable to the Wairoa-Waikaremoana Māori Trust Board, when originally enacted, s 14 referred to the rent and other money being held for the purposes of s 24 of the Māori Trust Boards Act 1955. Section 24, sets out the purposes to which funds can be applied for the general benefit of the beneficiaries, but it also gives the Trust Boards discretion to provide money for the benefit or advancement of a specific beneficiary or class of beneficiaries.
[87] Accordingly, it appears contemplated by the LWA that the rent and other money payable in respect of Lake Waikaremoana could be used for the general benefit of all beneficiaries of the Trust Boards. While the Trust Boards clearly have the ability to make provision for specific classes of beneficiaries, this is not provided for further by the LWA. No provision was made for the lease rental money to be held for the original owners and their descendants distinct from the general beneficiaries of the Trust Board. I therefore conclude that no trust exists in relation to the lease rental money.
[82] Accordingly Judge Coxhead found that there was no legal or factual error in Judge Savage’s decision. Subsequently, Judge Fox agreed.44
The Waitangi Tribunal’s 2017 Te Urewera Report
[83] I have referred in some detail to aspects of the Tribunal’s factual account earlier in this judgment. But its substantive conclusions are also important. Amongst other things, the Tribunal found:
(a)Tūhoe, Ngāti Ruapani and Ngāti Kahungunu all have ancestral rights to the Lake;
(b)the Crown breached the principles of the Treaty by establishing a system whereby customary title to the lakebed was vested in individuals;
(c)at the 21 August 1971 hui, the owners “intensely” debated whether there should be a single new Waikaremoana trust board or use made of the existing Trust Boards;
(d)the meeting was unable to reach consensus and it was decided that the Committee would decide the point;
(e)the chair of the Committee, Sir Turi Carroll, made the decision to use the existing trusts alone, which accorded with tikanga:45
Nonetheless, an owners’ hui in 1969 had entrusted the negotiations to a committee of representatives, and now a second hui had agreed in 1971 that the final decision would be made by this committee. The decision was made immediately by the committee chairperson and announced to the hui, and acquiesced to by all according to custom. From the beginning - or at least since its first discussion of a draft Bill in September 1970 – the committee had agreed that the lakebed should be vested in a board or boards, which would then become the lessor(s) of the lake. We accept, therefore, the submissions of the Wai 36 Tuhoe and Wai 621 Ngati Kahungunu claimants that the vesting of the lakebed in the
44 Morrell, above n 43.
45 At [12].
boards was a deliberate decision by the owners’ representatives. We also accept Crown counsel’s submission that the vesting of the lakebed in the boards was not an action or decision of the Crown, and that the Government of the day was entitled to rely on the committee's decisions as the body appointed by the owners to represent them. The owners had quite deliberately chosen their own committee in 1969, and had resisted any idea that the Maori Trustee should be their negotiator. There had also been a long period of discussion (from September 1970 to August 1971), a number of consultation hui throughout the district to consider the proposals (led by tribal leaders such as John Rangihau), a great deal of conflict and discussion, and finally a resolution which was binding on the honour of the two sides in these negotiations: the Crown and the Maori owners of Lake Waikaremoana.
[84] The Tribunal specifically considered an argument that many of the former owners did not intend or agree to transfer their legal ownership to the trust boards. Its conclusions on that issue are worth setting out in full:46
In our view, the evidence is compelling. The committee of owners’ representatives intended that the lakebed should be vested in the boards, and this intention was given effect by the Lake Waikaremoana Act. But the revelation immediately afterwards in 1973 and 1974 that many owners saw it differently, the Tuhoe Waikaremoana Trust Board understood it differently, and that Judge Gillanders Scott thought that there were serious issues in need of resolution, raised a major quandary. Two paths were identified at the time; the Government or the boards could issue statements (and inform the beneficiaries fully) about the legal position; or the matters could be clarified and resolved in the courts, and mended by legislation if necessary. The Government chose the first path, explaining the legal position to the Tuhoe-Waikaremoana Maori Trust Board and leaving it to the board or former owners to take whatever action they thought necessary. As far as we are aware, the board took no action – presumably it accepted the Government’s explanation of the meaning and effect of the Act, although it continued to resist any suggestion that the lakebed had become ‘European’ or general land. Individual owners continued to apply to the Maori Land Court for successions, and continued to be referred to the trust board. While the Government could, perhaps, have done more to assist in the resolution of this matter, it was properly an internal issue for the trust boards and the Waikaremoana peoples to resolve.
It was very clear to the Tribunal that this has not happened. Claimant witnesses spoke on both sides, some arguing that the lake is a tribal taonga that rightly belonged to all and should be administered as such, while others maintained that ownership and authority should be vested in those who lived on the lake’s shores, and that benefits should flow directly to them. We note this ongoing division and the bitterness it has caused. Both, in our view, had their origins decades before in the Native Land Court’s decision to award
46 At 2992–2993.
shares in the lakebed to individuals, which was the only option available to it under the native land laws of that time.
…
The court had no means of awarding tribal title to a lake. In 1918, Judge Gilfedder thus awarded ownership of the lakebed to lists of individual owners, specifying their relative shares. On the one hand, this meant that those awarded shares in accordance with the court’s criteria had – by 1971 – waited a very long time for any benefits that might accrue, and had defended those shares as representing the only tangible legal recognition of the rights of their tupuna. Many owners of very small shares in land throughout the country found themselves in exactly that position by the mid-twentieth century. On the other hand, many belonging to the hapu and the wider iwi who had not been afforded any form of legal recognition of their relationship with and their rights to the lake may have considered the vesting of Waikaremoana in trust as finally offering benefits to the wider tribal communities. We understand the positions of those on both sides, and we reiterate that both positions, ultimately, were the result of the limitations of the native land legislation, and its failure to provide for collective, tribal titles for taonga such as Lake Waikaremoana.
[85] The Tribunal also stated that the Crown’s obligation, in introducing the 1971 Act to Parliament, was to give effect to the express wishes of the owners who sought to restore tribal ownership and control through the vesting in the two Trust Boards. The Tribunal found no breach of the Treaty by the Crown in relation to the negotiations over the Lake, the lease or the enactment of the LWA.
Renewal of the lease?
[86] Because the lease was backdated to 1967, its first 50 year term expired in 2017. There was no evidence before me about what steps (if any) have been taken to effect a renewal although I was advised by counsel for the Wairoa-Waikaremoana Māori Trust Board, Mr Webster, that notice under cl 6 had been given by the Crown to the Trust Boards. There have been (post-hearing) newspaper reports that suggest that the lease will not be renewed.47 It may well be that the impact of the Tūhoe settlement on the Urewera National Park has some bearing on its continuation. Such matters fall outside the scope of Mr Wintana’s application and so, of this judgment.
47 Mr Harman recently provided these to the Court.
THE MATTERS NOW TO BE DECIDED
[87] The two specific declarations sought by Mr Winitana in his pleadings are that there exists, since 1971:48
(a)a fiduciary relationship between the Applicant, as a descendant of named beneficial owner as at 1971, and the First, Second and Third Respondents, such that any alteration of the terms of the lease enacted at sch 1 of LWA require the descendants of the 1971 named owners to be notified and their consent sought; and
(b)“statutory institutional constructive trusts” over the rental income generated by the lease and the income from the easements granted to the Fourth Respondent, and fiduciary obligations owed exclusively for the benefit of those beneficiaries who are beneficiaries of the Boards by virtue of ss 10 and 11 of the LWA by the Second and Fifth Respondents in relation to that income.
[88] In light of the affirmative defences pleaded, however, it is not simply a matter of considering whether those declarations can or should be made. In particular, it is necessary to consider as a threshold issue whether this Court is barred from making the declarations by s 77 of the 1993 Act and/or whether the legal questions raised by this proceeding otherwise res judicata.49 I therefore consider that issue first.
[89] As well, at the hearing before me, Mr Harmon also asked the Court to make findings or declarations as to other matters, including:
48 I have altered the wording of the pleaded declarations in an attempt to make them more readily comprehensible. Mr Winitana also sought “such other declaratory relief as the court thinks fit”.
49 Prior to the hearing, the parties agreed to reframe the subsequent issues as well. But I prefer simply to consider the question of s 77 and then to deal with the substance of the declarations, to the extent that I am not barred from doing so.
(a)the meaning of “person” in s 2(2)(e) of the MAA;
(b)the identity of the lessor under the LWA and in the lease; and
(c)whether any notice of renewal served under the lease is valid under cl 6(1) given that Lake Waikaremoana is no longer part of a National Park.
[90] But I propose to deal with those matters only if and when they arise, in the context of my wider analysis of the principal issues.
Does section 77 of the 1993 Act bar this Court from making the declarations sought?
[91] The respondents all contend that both the specific declarations sought run hard up against the earlier two MLC decisions, by virtue of s 77 of the 1993 Act. Section 77 provides:
77 Orders affecting Maori land conclusive after 10 years
(1) No order made by the Court with respect to Maori land shall, whether on the ground of want of jurisdiction or on any other ground whatever, be annulled or quashed, or declared or held to be invalid, by any court in any proceedings instituted more than 10 years after the date of the order.
(2) Where there is any repugnancy between 2 orders each of which would otherwise, by reason of the lapse of time, be within the protection of this section, then, to the extent of any such repugnancy, the order that bears the earlier date shall prevail, whether those orders were made by the same or different courts.
(3) Nothing in this section shall limit or affect the authority of the Chief Judge to cancel or amend any order under section 44 of this Act.
[92]And s 4 provides that the word “order”, in relation to the court:
(a)means—
(i)an order, judgment, decision, or determination of the Maori Land Court or the Maori Appellate Court; and
(ii)an order made by a Registrar in the exercise of a jurisdiction or power pursuant to section 39(1); and
(iii)an order made by the Chief Judge under section 44; and
(iv)an order or decision made by a Judge, the Chief Judge, or the court under sections 26B to 26ZB; and
(b)includes a refusal to make an order, judgment, decision, or determination of a kind referred to in paragraph (a)(i) or paragraph (a)(ii) or paragraph (a)(iii)
Discussion
[93] There can be no question that s 77 reflects not only the importance placed on finality in litigation generally, but also the particular importance of certainty in relation to issues surrounding the status of Māori land. And while s 77 is subject to the Chief Judge’s power of review and amendment under s 44 (outside the 10 year time limit), s 48 also provides (inter alia):
(1)No order made by the Chief Judge under section 44 of this Act, or made by the Appellate Court on appeal from any such order, shall take away or affect any right or interest acquired for value and in good faith under any instrument of alienation registered before the making of any such order.
[94] In an attempt to avoid the operation of s 77, Mr Harman submitted that s 77 is subject to s 131 of the 1993 Act. Section 131 relevantly provides:
(1) The Maori Land Court shall have jurisdiction to determine and declare, by a status order, the particular status of any parcel of land, whether or not that matter may involve a question of law.
…
(3) Nothing in subsection (1) of this section shall limit or affect the jurisdiction of the High Court to determine any question relating to the particular status of any land.
[95] But I agree with Mr Irwin that the purpose and effect of s 131 is simply to make clear that the MLC’s jurisdiction to determine the status of any parcel of land does not remove the jurisdiction of this Court to determine any question relating to the particular status of any land. In other words, the MLC does not have the sole jurisdiction to determine the status of land. But it does not mean that this Court is not bound by or can ignore s 77 (a point underscored by the use of the words “any court” in s 77(1)).
[96] Nor do I consider that Mr Winitana is assisted by the fact that he had no, or limited, involvement in the proceedings giving rise to the two 2000 MLC decisions. The fact that he may not have been notified of the proceedings or was not a party to them did not preclude him from bringing an application under s 45. The signal point is that the fundamental purpose of s 77 would be defeated if it were found to operate only against those who were parties to the decision sought to be revisited or impugned.
[97] The next question is whether, as a result of the two MLC decisions in 2000, s 77 does, indeed, operate to bar the Court from entertaining some or all of Mr Winitana’s application.
[98] It is necessary to begin by considering what “orders” were made by the MLC in the two decisions.50 The definition of “order” suggests that this simply requires inquiry into those core matters determined by Judge Savage – the answers to the questions he was called upon to decide. So those “orders” were that:
(a)Lake Waikaremoana was vested absolutely in the two Trust Boards, free of any constructive or resulting trust whereby the beneficial ownership by the original owners of the Lake was continued;
(b)the rental monies are held by the Trust Boards for the benefit of all the
Boards’ beneficiaries; and
(c)Lake Waikaremoana has the status of Maori freehold land;
[99]In my view, those “orders” leave little room for the declarations sought.
[100] Mr Harman was adamant, however, that the first declaration does not seek a declaration of trust. Rather, he said there was some other kinds of fiduciary relationship between the owners on the one hand and the Crown and Trust Boards on the other. As the terms of the first declaration sought make clear, he said that the consequences of those relationships are that the lease cannot be altered without first
50 I note a distinction between an “order” of the MLC and a mere “finding” was drawn by the Court of Appeal in Minister of Conservation v Maori Land Court [2008] NZCA 564, [2009] 3 NZLR 465 at [81].
notifying, and obtaining the consent of, the descendants of the 1971 named owners. The existence and effect of such relationships had not (he said) been considered by the MLC. I am prepared to consider the issue on that basis.
[101] At the outset, a distinction must be drawn between the relationship between the owners and the Attorney-General, and the relationship between the owners and the Trust Boards. I did not understand Mr Harman to say the relationships were the same and it defies common sense that they would be.
[102] So far as the Attorney-General is concerned, the claim that some kind of independent fiduciary relationship still existed between the former Lake owners and the Crown was said by Mr Harman to be based on the Supreme Court’s decision in Proprietors of Wakatū v Attorney-General.51 In that case the Court found that the circumstances in which land in Nelson was cleared of native title52 (namely an understanding by the owners and by Commissioner Spain that one tenth of the relevant land would be reserved for the former owners as part of the consideration for their sale of the remainder) gave rise to fiduciary and Trust relationships between the former owners and the Crown. Here, as I understand it, Mr Harman contends that the statements made by then Minister of Lands, Mr MacIntyre in 1970 and 1971 (that ownership of the Lake was to remain with the existing owners) gave rise to a similar understanding and fiduciary obligation.
[103] There is, however, a fundamental difference between Mr MacIntyre’s statements and the undertakings upon which the fiduciary relationship in Wakatū were based. As the factual narrative set out above makes clear, the Minister’s statements were made in the context of an iterative negotiation process which (at the time the statements were made) was not yet complete. And, the intended audience for the statements was the general public, not the owners. The Minister was recording (his understanding of) what had come to pass, not promising the owners that the Crown would, in future, act in a particular way.
51 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.
52 Thereby making it available for sale by the Crown.
[104] More importantly, and as the Tribunal has found, the lease as executed and the LWA as enacted did reflect the intentions of the owners as determined by their Committee. Moreover, in light of the factual findings made by the Tribunal (and as explained earlier there is simply no basis on which I could or would depart from them) it could not fairly be concluded that there was any material inequality of bargaining power or reliance by the owners on the Minister. There is, accordingly, no basis for holding that statements or conduct by the Crown participants might give rise to a fiduciary relationship of the kind now asserted. And in any event, the Crown was only ever going to be the lessee of the land. It was never going to be in a position to influence how the lessor (the Trust Boards) might deal with former owners over future amendments to the lease.
[105] The alleged fiduciary relationship between the owners and the second and fifth respondent seems equally vexed. As I understood it, Mr Harman’s contention that there was such a relationship is based on the proposition that there was (first) a fiduciary relationship between the Lake owners and the Committee. The proposition was that upon the passage of the LWA, the Boards essentially stepped into the shoes of the Committee and the Boards assumed the same fiduciary role.
[106] I would be inclined to accept that some kind of fiduciary relationship might have existed between the owners and their Committee. The Committee undoubtedly acted as their agent in the negotiation of both the lease and the LWA with the Crown and the owners trusted the Committee to act in their best interests. That said, however, (and as the Tribunal’s report made clear) the content and effect of such a relationship could not be said to be one of simple agency. In particular, tikanga plainly had a powerful influence on the processes adopted by the Committee. By way of example only, the fact that Sir Turi Carroll (rather than the Committee as a whole) made the critical decision (to use the two existing Trust Boards used rather than to create a new, bespoke, Trust Board) seems to have been a matter grounded in tikanga, and one in which any traditional fiduciary obligations which might have been owed to owners by the wider Committee had no role to play.
[107] But even assuming that some more orthodox fiduciary relationship existed between the owners and the Committee, I am unable to accept that the Committee’s fiduciary role and obligations was somehow transferred from the Committee to the Trust Boards in 1971. Any fiduciary relationship between the Committee and the owners was centred on the negotiation process; the Committee acted as the owners’ agent in that context only. While the Committee was, in terms of the lease, the lessor, as a matter of law that was never so (the Lake was never vested in the Committee) and the Committee never acted in that capacity. Indeed, that was why validating legislation was needed.
[108] The inescapable reality is that the relationship between the owners and the Trust Boards was created by the LWA. The relationship did not exist before and the Boards played no part in the events leading up to its enactment. No promises were made by the Boards to the owners because the LWA spoke for them. There was a fiduciary relationship between the owners and the Boards, but it was the one created by ss 10 and 11 of that Act.
[109] I turn now to whether s 77 might leave room for the second declaration sought. That declaration seeks to have confirmed the existence not just of fiduciary obligations but a “statutory institutional constructive trust” over the income generated by the lease and the easements such that the rental and other monies are held by the Second and Fifth Respondents for the exclusive benefit of those beneficiaries who are descended from the former owners.
[110] Putting the easement income to one side for the moment, the fundamental difficulty with that proposition is that it is at odds with the wording of the LWA and with the first MLC decision (which, in turn, activates the bar in s 77). In my view that is really the end of the matter. But for completeness, I attempt to address the merits as best I can.
[111] It must, I think, now be accepted that it is possible, now, in New Zealand, to find the existence of a constructive trust over the assets of an express trust.53 That view is not, however, without its critics.54
[112] But assuming for now that the principles from the decided cases could be applied equally in the context of a trust created by statute, what would be required is something that obliges the conscience of the trustees to depart from the terms of the express trust or, conversely, something which creates a reasonable expectation on the part of the claimant for an equitable interest in the trust property.
[113]Those requirements, too, constitute insuperable obstacles here.
[114] First, there is the point that the applicant is, in fact, already a beneficiary of one of the Trust Boards.55
[115] Secondly, s 35 of the MTBA55 made it clear that such beneficiaries could not have or be deemed ever to have acquired any interest (whether vested or contingent or legal or equitable) in the assets of the relevant Board.56
[116] And thirdly, there is no evidential basis for a finding of the relevant expectation or obligation. The facts of the matter simply do not show that the 354 former owners intended the rental monies would be kept and applied for their sole benefit. Rather, the decision that the lakebed would vest in the two existing Boards was a deliberate one, and one that was intended in part to restore to wider iwi members a form of “interest”57 in the Lake and in the income generated by the lease. The Tribunal held that the earlier vesting of beneficial title to the Lake in certain named individuals was, itself, the result of a Treaty breach. And as the Tribunal identified, there were also benefits to the former owners in becoming beneficiaries of those existing Boards.
53 See the discussion in Vervoort v Forrest [2016] NZCA 375, [2016] 3 NZLR 807.
54 Charles Rickett “Instrumentalism in the Law of Trusts: The Disturbing Case of the Constructive Trust Upon an Express Trust” (2016) 47 Victoria U Wellington L Rev 463.
55 As I understand it, Mr Winitana was a beneficiary of the Tūhoe-Waikaremoana Maori Trust Board and I assume he remains a beneficiary of the new post-settlement entity.
56 As noted earlier, however, the Fifth Respondent is not governed by the MTBA55.
57 In light of s 35 of the MTBA I necessarily use that term broadly.
[117] For these reasons, it is just not possible to conclude that the conscience of the Boards should somehow have obliged them to act in a way that was contrary to what the owners themselves decided (through their Committee), by holding the rentals on trust for those owners alone.
[118] As far as the easements are concerned, there was no evidence before the Court about them or the circumstances of their granting.58 While I accept that the licence monies generated from them have not been the subject of a MLC decision (and so s 77 is not an impediment) there is simply no factual basis upon which I could make the declaration. It seems highly likely that those monies are held on the same basis and the same terms as the rental income.
[119] For completeness, and notwithstanding s 77, I conclude by recording that, like the MLC, I consider that:
(a)the wording of s 13 of the LWA and s 35 of the MTBA55 makes it clear that Lake Waikaremoana was vested absolutely in the two Trust Boards;
(b)by virtue of the LWA the two Trust Boards became the lessor under the lease and (to the extent the lease remains on foot) they, or their successors, remain so; and
(c)the combination of s 14 of the LWA and s 24(1) of the MTBA55 makes it clear that the rentals are held by the Trust Boards for the benefit of all the Boards’ beneficiaries.
[120] I also record my agreement with the MLC’s conclusion that the Lake continues to have the status of Māori freehold land, although I am not all together persuaded by the Court’s reasoning. More particularly, I am not sure that the matter turns on s 2(2)(e) of the MAA.59 Rather, I would be inclined to the simpler view that upon transfer to the Boards the lakebed continued to be owned by “a Maori”, on the
58 As far as I could ascertain they are not referred to in The Report.
59 Nor do I think that s 2(2)(f) readily applies. The wording of neither provision fits with what occurred here and, as Mr Harman submitted, it appears that those provisions were enacted with a somewhat different purpose.
orthodox interpretive basis that the singular includes the plural,60 and the lessor Trustees were, themselves, Māori. And I do agree with the MLC that, as a matter of principle, the status of the lakebed should not have changed in the complete absence of any clear contractual or legislative intention to the contrary.
[121] Lastly, it is simply not possible for me to engage with where the future of the lease may lie. It appears that the lease has expired and not in fact (or yet) been renewed. What that means for the future is beyond the purview of this judgment and is (I would think) a matter for the Trust Boards to determine.
Result
[122] In formal terms, however, the applications are denied. The declarations are largely bared by s 77 of the 1993 Act and, in any event, do not conform with the view I have taken of either the law or the facts.
[123]If costs are sought and cannot be agreed, memoranda may be submitted.
Rebecca Ellis J
60 Acts Interpretation Act 1924, s 4; Interpretation Act 1999, s 3.
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