GIBBS V TE RUNANGA O NGATI TAMA MLC 274 Aotea MB 47 [26 October 2011]

IN THE MAORI LAND COURT OF NEW ZEALAND

AOTEA DISTRICT

274 Aotea MB 47

(274 AOT 47)

A20040005718

A20070011279

UNDER Section 338(2), Te Ture Whenua Maori Act 1993

IN THE MATTER OF Part Lot 2 & Lot 1 DP 4866 (TNK 4/901) and

Section 1 SO 10359 CT TNK 4/792

BETWEEN RUSSELL GIBBS AND PARANI GIBBS

Applicants

AND TE RUNANGA O NGATI TAMA

First Respondent

AND NEW PLYMOUTH DISTRICT COUNCIL

Second Respondent

AND VECTOR GAS NZ LTD

Third Respondent

AND MAUI DEVELOPMENTS LTD

Fourth Respondent

Hearing: 230 Aotea MB 134, 23 April 2009

202 Aotea MB 62, 6 March 2008

198 Aotea MB 142, 13 December 2007

195 Aotea MB 249, 19 October 2007

190 Aotea MB 198, 13 August 2007

156 Aotea MB 142, 8 July 2005

150 Aotea MB 7, 25 February 2005

148 Aotea MB 8, 8 December 2004

(Heard at New Plymouth)

Counsel: M P Armstrong and M Taylor for the Applicants

J P Fergusson and L Poutu for Te Runanga o Ngati Tama

S Hughes QC for the New Plymouth District Council

C N Whata for Vector Gas Limited

R Devine for Maui Developments Limited

Judgment: 26 October 2011

RESERVED JUDGMENT OF JUDGE L R HARVEY

Solicitors: Aurere Law, Rotorua, for the Applicants admin@aurere.com

Kahui Legal, Wellington, for the First Respondent Liana@kahuilegal.com

Govett Quilliam, New Plymouth, for the Second Respondent susan@bankchambers.co.nz

Russell McVeagh, Auckland, for the Third Respondent info@russellmcveagh.com

Minter Ellison, Auckland, for the Fourth Respondent rachel.devine@minterellison.co

274 Aotea MB 48

Contents

Introduction [1]

The Applicants [3]

The Respondents [5]

Te Rūnanga o Ngāti Tama [5]

New Plymouth District Council [6]

Vector Energy Limited, Maui Gas Limited and the

Department of Conservation [8]

Background [12]

The Land [12]

Establishment of the urupā [14]

Procedural history [15]

Court supervised mediation [15]

Hearings and conferences [19]

Site inspection [23]

Further hearings [24]

Post hearing events [26]

Proposed public works taking [29]

Submissions for the New Plymouth District Council [29]

The Vector Agreement [33]

Post legislative conflict [36]

Summary of NPDC submissions [41]

Submissions for the Applicants in response [43]

Discussion [48]

The Law [53]

Discussion [59]

The nature of Māori reservations [61]

Who are tangata whenua of the district? [67]

Waitangi Tribunal reports [67]

Do tangata whenua support or oppose the applications? [70]

Applicants’ submissions [70]

Ngāti Tama’s submissions [73]

Discussion [74]

Ngāti Tama [74]

Nga Hapū o Poutama [78]

What is the purpose of the proposed reservation? [82]

274 Aotea MB 49

Applicants’ submissions [82]

Ngāti Tama’s submissions [95]

Discussion [98]

Village site, marae and meeting place, building site [100]

Burial ground [103]

Place of cultural, historical, or scenic interest [109]

Can the land have both Māori reservation and wāhi tapu status? [113]

What is the size of the proposed reservation and its relevance to the

statutory tests? [116]

Applicants’ submissions [116]

Ngāti Tama’s submissions [118]

Discussion [119]

Making the land inalienable [124]

Do the Applicants have a traditional customary connection to that land? [127]

Applicants’ submissions [127]

Ngāti Tama’s submissions [131]

Discussion [132]

Tūhoe customary connections to the land [132]

Land gifted between iwi [138]

Beneficiaries to be limited to the Gibbs’ whānau [145]

The Gibbs’ whānau urupā [150]

Conclusion [155]

Decision [160]

274 Aotea MB 50

Introduction

[1] Parani and Russell Gibbs, along with their accountant Leigh Horton, as trustees of

the Gibbs Family Trust, are the legal owners of approximately 227 hectares of General land

located on the picturesque North Taranaki coast south of Mokau. Much of the land is

currently farmed by the Gibbs family. The beneficiaries of the trust are Mr and Mrs Gibbs

and their children. Mrs Gibbs is Māori and affiliates to Ngāi Tuhoe iwi from the Urewera

and Eastern Bay of Plenty regions. Mr Gibbs is a New Zealander of European descent.

[2] It is said that the land which is the subject of the applications has been in the hands

of Mr Gibbs‘ family for over a century. Mr and Mrs Gibbs have several children. The

Applicants say that the beneficial owners of the land are therefore by a majority Māori, if

Mrs Gibbs and the children over 18 years of age are considered. It is contended that the land

is therefore General land owned by Māori.

The Applicants

[3] Mr and Mrs Gibbs have applied for the establishment of a Māori reservation over all

the land owned by the trust per s 338 of Te Ture Whenua Māori Act 1993 (―the Act‖). They

claim that, for historic, cultural, scenic, environmental and related purposes, the overlay of

the Māori reservation will ensure the land is protected for future generations.

[4] The Applicants further claim that they are attempting to live in ―te ao Māori‖ and

seek to operate their farm as a consistent and unified whole in terms of its productivity,

obligations according to tikanga Māori and practicalities in supporting their whānau on the

land, along with local hapū. They argue that the creation of a Māori reservation will ensure

these objectives are achieved and that the application, if granted, will further advance their

desires to live in a ―holistic‖ Māori environment consistent with tikanga Māori. The

Applicants are supported by tangata whenua including Ngā Hapū o Poutama and whānau

and hapū affiliating primarily with Ngāti Maniapoto and Tainui waka.

The Respondents

Te Rūnanga o Ngāti Tama

[5] Ngāti Tama of Taranaki, through Te Rūnanga o Ngāti Tama, opposes the

applications. They say that, if granted, the applications will set an unintended precedent in

274 Aotea MB 51

permitting ―non tangata whenua‖ to create large Māori reservations in areas that traditionally

fall within the domain of other iwi, in this instance Ngāti Tama. Such groups could then act

contrary to the wishes of tangata whenua across a range of environmental, cultural, social,

economic and political considerations.

New Plymouth District Council

[6] The New Plymouth District Council (―NPDC‖) has expressed their qualified

opposition to the applications to the extent that they may affect the Council‘s specific

interests. NPDC are anxious to preserve a right of access to Te Horo Tunnel which they say

is in dire need of repair for reasons of public safety. They seek an access agreement

supported by an easement from the applicants. NPDC also say that if the applications are

granted the Council‘s proposed taking of part of the Applicants‘ land under the Public

Works Act 1989 (―the PWA‖) would be thwarted.

[7] NPDC stress that the proposal to invoke the PWA is a last resort, borne from a

failure to reach agreement with the Applicants over access to the tunnel despite years of

efforts dating back to at least 2003. Those failed attempts have also included Court assisted

mediation and offers to pay compensation and costs.

Vector Energy Limited, Maui Gas Limited and the Department of Conservation

[8] Vector Energy Limited (―Vector‖) and Maui Gas Limited (―Maui‖) also seek to

ensure that rights of access to their facilities will not be adversely affected should the

application be granted. Vector has an agreement in place which includes an easement to

protect the company‘s pipes which run through the Applicants‘ land. The Department of

Conservation (―DOC‖) also made submissions particularly in the context of the possible

effect of a Māori reservation on DOC‘s existing easement over part of the Applicants‘ land.

[9] After a series of initial preliminary conferences, mediations and hearings, I directed

that the applications be dealt with in two parts. Firstly, the Applicants needed to satisfy the

Court that the applications for a Māori reservation over such a wide area and for such a

narrow group of beneficiaries should be granted in the first instance. Secondly, if the Court

was satisfied that the reservation applications should be granted, then what was the extent of

their effect on the interests of NPDC, Maui and Vector?

274 Aotea MB 52

[10] This hearing proposal was designed to ensure that NPDC, Maui and Vector were not

required to participate in the hearings until such time as the applications were likely to be

granted either in whole or in part. That would then trigger their involvement to the extent

that their interests are affected. That procedure was agreed to by counsel and so the hearings

proceeded on that basis.

[11] The issue for determination is whether or not a Māori reservation overlay should be

granted over approximately 227 hectares of General land owned by the Gibbs Family Trust.

Background

The Land

[12] Part Lot 2 DP 4866 being all that parcel of land contained in CT TNK4/901 is General

land, 173.8773 hectares in area. The legal owners are the Applicants and Leigh Horton as

trustees of the RV & PJ Gibbs Family Trust. The beneficial owners are the Applicants and

their children.

[13] Part Lot 1 DP 4866 and Section 1 SO 10359 being all that parcel of land contained

in CT TNK4/792 is also General land, 53.9497 hectares in area. The legal owners of this

land are the same as for Part Lot 2 DP 4866. The Applicants and their children are the

beneficial owners.

Establishment of the urupā

[14] In 2004 2.0300 hectares of the land was set apart as a Māori reservation for the

purpose of an urupā for the common use and benefit of Parani Josephine Gibbs, her parents,

her husband Russell Victor Gibbs and her descendents.1 The application was included in the

Māori Land Court National Panui and the Aotea District Panui in the usual way and no

meritorious objections were received by the Court. At the time Mrs Gibbs‘ father was

gravely ill and he passed away soon after and was buried in the urupā. The Applicants state

that their daughter Pearl is also buried there.

1 ―Setting apart General land as a Maori reservation‖ MO No 64/04 3 June 2004 NZG

274 Aotea MB 53

Procedural history

Court supervised mediation

[15] A judicial conference was held on 8 December 2004 by Judge Spencer to enquire

into the nature of the application and standing of the parties.2 He emphasised that the

discussions at the mediated hearing would take place on a ―without prejudice‖ basis. The

Court heard from the NPDC and DOC, along with the Applicants. Several issues including

access and walkways were discussed at length. The application was subsequently

adjourned.

[16] On 25 February 2005 I heard the application and with the consent of all the parties

stood the matter down for further discussion to take place between the participants on the

access and walkway issues but no resolution was agreed.3 I then adjourned the application

to allow Judge Spencer to mediate the matter further to attempt to resolve the issues.

[17] Judge Spencer convened a judicial conference on 8 July 2005.4 He made it clear

from the outset that he would not make a decision but rather would take on the role of

mediator. A consensus was reached between the parties on various terms and conditions

relating to access and the walkway. A new agreement was to be drawn up and signed to

determine how the Māori reservation application was to proceed. The application was

adjourned to allow an agreement to be finalised.

[18] There matters lay until 13 August 2007 when Judge Spencer issued a minute in

which he reiterated that his role was as mediator rather than as a judicial officer.5 Eventually

the parties were unable to come to an agreement on the issues, despite almost three years of

effort, and so the application was referred back to me for further directions.

Hearings and conferences

[19] The proceedings were heard before me on 19 October 2007 where Mr Taylor made

submissions and evidence was given by Mr and Mrs Gibbs, Haumoana White and Barbara

Marsh in support. Mr Hulbert also made submissions on matters concerning DOC and their

2 148 Aotea MB 8 (148 AOT 8)

3 150 Aotea MB 7 (150 AOT 7)

4 156 Aotea MB 142 (156 AOT 142)

5 190 Aotea MB 198 (190 AOT 198)

274 Aotea MB 54

easement.6 At the time of the hearing, further applications had been made to include

additional land in the Māori reservation. I agreed that these applications would be heard

together and raised two main issues for consideration. First, the significant size of the area

to be set aside as a Māori reservation and secondly, the fact that the Applicants are not

indigenous tangata whenua of the area. I also indicated that a procedural issue as to the

involvement of other groups in this process would need to be addressed before the

substantive hearing could proceed.

[20] Directions were then issued on 3 December 2007 in respect of several matters

including the issue of tangata whenua, the nature of the land, the PWA provisions and

several procedural points.7

[21] Following that on 13 December 2007 a hearing was held where Mr Taylor made

submissions and evidence was given by the Applicants, along with Hiramana Rua and Pat

Kingi. Ms Hughes and Mr Hulbert also provided submissions.8 At the conclusion of that

hearing I gave directions for the filing of additional evidence and adjourned the matter.

[22] A further hearing was held on 6 March 2008.9 Mr Taylor made submissions for the

Applicants and evidence was given by Mr and Mrs Gibbs, Haumoana White and Paul Silich.

Mr Hulbert and Ms Hughes also made submissions.

Site inspection

[23] A site inspection took place on 9 April 2008. The Applicants and their whānau were

present along with Haumoana White, Matehuirua Limmer, Hiramana Rua and others. The

Court party were formally welcomed onto the land with a powhiri at the Gibbs‘ whānau

wharenui. The inspection took place over several hours and included a visit to Te Horo

Tunnel and other sites of significance including Te Rua Taniwha.

Further hearings

[24] Further directions were issued on 28 August 2008 indicating that I would be unable

to attend the next hearing of the application. 10

I confirmed that Judge Milroy would preside

6 195 Aotea MB 249 and 198 Aotea MB 146 (195 AOT 249 and 198 AOT 146)

7 195 Aotea MB 216 (195 AOT 216)

8 198 Aotea MB 142 (198 AOT 142)

9 202 Aotea MB 62 (202 AOT 62)

274 Aotea MB 55

to hear evidence from the Respondents and rebuttal evidence from the Applicants. This

hearing did not go ahead and on 24 November 2008 I issued a direction following a

teleconference that the Applicants should address several points in relation to the size of the

proposed reservation and the tangata whenua issue.11

Timetabling directions were also made

for the filing of any further evidence.

[25] On 23 April 2009 a further and final hearing was held in New Plymouth.12

The

Court heard evidence from Mr Gibbs and Mr White and counsel for the Applicants made

submissions on the issues. Counsel for Ngāti Tama also made submissions in reply. The

application was then adjourned to allow counsel for the Applicants to respond to late

submissions filed by Ngāti Tama.

Post hearing events

[26] On 25 January 2011 a memorandum of counsel for the Applicants dated 18 January

2011 was submitted to me for consideration. That memorandum states that NPDC ―is not

waiting for the outcome of these proceedings‖ and instead is ―pushing ahead with an

application under the Public Works Act‖ to acquire land from the Applicants on a

compulsory basis. Counsel then requested that the Court issue a decision urgently as to

whether or not it would be necessary for the proposed second stage of this proceeding to

commence.

[27] Counsel enclosed with his memorandum a decision of the District Court dated 22

October 2010 concerning an application by NPDC seeking an interim injunction restraining

the Applicants from any further interference in the completion of a survey of their land by

agents of NPDC. While the learned Chief District Court Judge dismissed the application for

interim injunction, Mr Armstrong submits that nonetheless the events referred to in the

judgment confirm that NPDC intends to pursue its acquisition of the Applicants‘ land under

the PWA.

[28] For completeness I note that in April and May 2010 the Waitangi Tribunal, over

which I presided, heard claims concerning the management of the petroleum resource.

During those hearings evidence was filed on various issues including the land which is the

subject of the present applications by Haumoana White of Nga Hapū o Poutama. The

10

212 Aotea MB 106 (212 AOT 106) 11

219 Aotea MB 231 (219 AOT 231) 12

230 Aotea MB 134 (230 AOT 134)

274 Aotea MB 56

hearings were publicly notified and in response to the evidence of Mr White, Maui also filed

submissions and evidence. The Tribunal‘s final report was published on 29 March 2011. I

also note that the issue of this decision has been delayed which is regretted.

Proposed public works taking

Submissions for the New Plymouth District Council

[29] Ms Hughes submitted that NPDC had for some years endeavoured to negotiate

access to the Te Horo Stock Tunnel. Counsel noted that the tunnel through which people

used to drive cattle on the way to market is historic and forms part of the White Cliffs

walkway. More importantly, it has fallen into disrepair and become unsafe. The NPDC

obtained funding for the purposes of repairing the walkway. The only vehicular access to

the tunnel is along the paper road which passes through the Applicants‘ property and that of

their neighbours, the McKenzies. Due to erosion some portions of the road have collapsed

and the road has effectively moved inland and therefore away from the layout of the paper

road.

[30] Counsel contended that when NPDC sought to pass over the road to undertake

repairs they had been denied access through the Applicants‘ land and as a result the tunnel

remains in a state of serious disrepair. Efforts to negotiate a resolution have been entered

into over several years without success. Those efforts included mediation over a period of

approximately three years before Judge Spencer, however even that effort produced no

solutions.

[31] Given this impasse, counsel submitted that NPDC have, in the absence of any

alternatives, been forced to consider a taking under the PWA. In this context,

counsel noted that the initial public works application commenced between 2003 and

2004 and a notice of the desire to acquire land pursuant to s 8 of the PWA was

registered against the titles on 12 July 2004. Since then, no progress has been made

and in 2007 NPDC instructed its surveyors to resurvey the land for the purposes of

recommencing negotiations with the Applicants. Those negotiations have also

stalled and produced no outcome.

[32] Ms Hughes contended that the Applicants have indicated their desire to enter into an

agreement with NPDC comparable to that which they have with Vector. That agreement

assures Vector access to its pipeline. However, repeated requests for a copy of the Vector

agreement have been refused. The reason for such refusal is a dispute between the

274 Aotea MB 57

Applicants and the NPDC over payment of costs. NPDC had confirmed it was prepared to

meet the Applicants‘ reasonable legal costs but there has been debate about whether the

costs incurred so far are reasonable. NPDC have offered to agree on a set fee if that would

resolve matters but the Applicants do not accept this approach. Counsel made a further

proposal that NPDC would meet outstanding costs if there was a cap on additional fees. As

of the date of hearing on 6 March 2008, the Applicants do not agree with that proposal but

will try to keep the costs to a figure identified.

The Vector Agreement

[33] According to counsel, the Vector agreement relates to a pipeline that runs through

the Applicants‘ property. Access agreements and easements have been implemented to

protect the pipeline. As foreshadowed, NPDC are willing to consider a similar proposal

which in any case is comparable to a proposition put forward by counsel in 2003. The delay

appears to be over the payment of costs. The Applicants will not provide NPDC with a copy

of the Vector agreement until their costs are paid.

[34] Given the history of the matter and the significant delays in achieving resolution, a

legally enforceable agreement such as an easement was necessary from the Council‘s

perspective. Counsel submitted that if Vector has an agreement supported by an easement

then something similar for NPDC would not be unreasonable.

[35] Ms Hughes agreed that the present application has been filed per s 338 of the Act.

Subsections 11 and 12 provide that:

Except as provided in subsection (12) of this section, the land comprised within in a Māori

reservation shall, while the reservation subsists, be inalienable, whether to the Crown or to

any other person.

The trustees in whom any Māori reservation is vested may, with the consent of the Court,

grant a lease or occupation licence of the reservation or of any part of it for any term not

exceeding 14 years (including any term or terms of renewal), upon and subject to such terms

and conditions as the Court thinks fit.

Potential legislative conflict

[36] Counsel further submitted that the Land Act 1948 defines ―alienation‖ as

including:13

13

Section 2 Land Act 1948

274 Aotea MB 58

a limited disposal by lease or licence as well as an absolute disposal by sale or otherwise and

that to alienate has a corresponding meaning.

[37] If the PWA application were to succeed, that would result in an alienation of the

land currently held by the Applicants but sought to be reserved under s 338 of the Act. This

would create an immediate conflict between the PWA and the Act. - On the one hand the

PWA allows for compulsory acquisition of land whilst on the other hand the creation of a

Māori reservation per s 338 of the Act denies an entitlement to alienate. Counsel referred to

s 17 of the PWA which deals with acquisition by agreement. If the land sought is Māori

freehold land the local authority may apply to the Māori Land Court of the district in which

the land is situated for an appropriate order.

[38] Ms Hughes submitted that s 18 of the PWA deals with Māori freehold land and there

are further references throughout the PWA in relation to Māori freehold land or General land

owned by Māori. However there is no specific reference in the PWA to the application of

the PWA to land owned as a Māori reservation. Counsel contended that the acknowledged

statutory interpretation principle of generalia specialibus non derogant applies. This rule

provides that the specific dominates the general to which end if the PWA specifically

provided an ability to acquire land in a Māori reservation then there would be no

impediment to the creation of this Māori reservation and the continuation of the PWA

application. In practical terms, given the limitation provided in s338(3) of the Act, and the

absence of any ability reserved in the PWA, there is a real risk that the application by NPDC

to compulsorily acquire land forming part of the proposed reservation will be thwarted.

[39] Counsel emphasised that, but for the PWA issue, NPDC would have no opposition

to or interest in the applications presently before the Court. The only reason for the

involvement of NPDC is concern that this long vexed matter will ultimately be defeated by

the creation of a Māori reservation. The Te Horo Tunnel is on a public road and therefore

within the Council‘s domain of responsibility, and not within the control of DOC.

[40] Ms Hughes also contended that the Applicants are arguing that the PWA application

will not succeed and therefore this Court should not be troubled. That submission cannot be

sustained since it is the Environment Court that is ultimately charged with responsibility in

the context of a public works taking. Moreover, counsel argued that it is not for this Court

to second guess the outcome of that process. More importantly, granting the present

application would deny the Council any ability to pursue the PWA application. For this

274 Aotea MB 59

reason, and this reason alone, NPDC opposes the creation of the Māori reservation as

proposed unless the PWA issue is resolved satisfactorily.

Summary of NPDC submissions

[41] Ms Hughes submitted that the Council are entitled under the PWA to take the land.

They do not wish to do so. NPDC would prefer to negotiate an agreement for access

supported by an easement. This is because NPDC have no confidence that a mere

contractual agreement will suffice. History has shown, according to counsel that without a

legally enforceable easement NPDC will become embroiled in further lengthy, protracted,

and costly discussions with the Applicants over something that ought to be relatively

straightforward. If the Applicants were to agree to an access arrangement supported by an

easement NPDC would withdraw its opposition to the application in so far as it affects

access to maintain Te Horo Tunnel and the walkway, and would have no further interest in

the present proceedings.

[42] To add further detail to the requirements of NPDC, the Council would meet the costs

of forming and maintaining the road. The council will pay compensation for access. The

Council would allow the Applicants to bolt the gate to deny any other person access

provided NPDC are able, by way of easement, to protect their ability to get to the tunnel and

maintain it in the interest of public welfare and safety. Counsel also confirmed that her

advice to NPDC was that they did not need to acquire the land; they simply needed a right of

access.

Submissions for the Applicants in response

[43] Mr Taylor, then counsel for the Applicants, submitted, in essence, that NPDC were

persisting with the easement option which was ―cracking a walnut with a sledge hammer‖

and far too great an imposition upon their private property to be justified by the ends which

are sought. A legally enforceable contract for right of access should be sufficient. The

Applicants do not accept that an easement to enforce access is reasonable in the

circumstances. The Applicants are simply unwilling to grant an easement which counsel

contended was entirely unreasonable on the part of the NPDC.

[44] Mr Gibbs then gave evidence that Vector have a pipe through the Applicants‘

property supported by an easement to protect the pipe itself. That easement gives Vector the

ability to pass on top of the pipe so that periodically they can come in and maintain it.

274 Aotea MB 60

Vector has an access agreement with the Applicants called a remedial works agreement

signed in 2005. The Applicants, he said, were prepared to negotiate a similar agreement

with NPDC for a specific project.

[45] Mr Gibbs then said that Vectors‘ general access through the Applicants‘ property is

essentially informal since there is no formal access agreement with Vector for general

access, only for a specific project and for their pipe being in the ground. The easement is

designed to protect the pipe being in the ground otherwise the Applicants could dig it up and

return it to Vector.

[46] Mr Gibbs went on to state that in his view NPDC do not need an easement since the

Applicants grant people access to their land all the time. An easement is unnecessary, as is

compulsory acquisition of the land.

[47] Mr Taylor then submitted that a PWA application was unreasonable given the

Applicants‘ willingness to negotiate an access agreement by way of deed with NPDC.

Consequently, Mr Taylor further submitted that there could be no question of any such

application succeeding. In any event, he contended that while usually such a proposal

should not be considered by the Court when contemplating an application to create a Māori

reservation, in this instance, because NPDC were persisting with their threat of a public

works taking, it was necessary for the Court to receive submissions on the point.

Discussion

[48] In its landmark Turangi Township Report14

the Waitangi Tribunal articulated its

seminal principles on public work takings involving Māori freehold land. Even so, it would

appear that there are no legal impediments for the PWA being invoked in respect of Māori

freehold land. While it will always be preferable that, where land is required for a public

work, agreement is reached with the owners, the strict legal position is that where land is

needed for public works, the statutory processes that apply to General land also apply to

Māori freehold land.

14

(1995) Brookers, Wellington. In that case the land taken from individual owners affiliating to

hapū of Ngāti Tūwharetoa, namely Ngāti Turangitūkua, was used for the Tongariro power

project including the creation of Turangi Township. The Tribunal found that the taking of Māori

freehold land for public works purposes should be as a last resort and limited to projects in the

national interest. In its subsequent reports, the Tribunal has reaffirmed this general principle of

Public Works takings of Māori freehold land as a last resort and only in the national interest:

Wairarapa ki Tararua Report (Legislation Direct, Wellington, 2010) chapter 8 at p 801 which

provides a compendium of the public works recommendations made by previous Tribunals.

274 Aotea MB 61

[49] The only exception is where, as Ms Hughes has identified, the PWA and the Act

converge under s 338(11). That provision is unequivocal. Land that has received the

overlay of Māori reservation status is inalienable as against the Crown or any other person.

This is therefore a quite exceptional provision because, if invoked, it has the effect of

denying to the Crown one of its most important rights – the right to take private land for a

public work. Indeed, this is the very situation, according to Ms Hughes, that NPDC fear –

that the granting of the application will thwart the attempts of NPDC to secure enforceable

access to the land for the purpose of maintaining the walkway and Te Horo Tunnel in the

interest of public safety.

[50] Conversely, this provision could also be seen as something quite unexceptional in

that, given the significant importance of Māori reservations to their beneficiaries, and their

general scarcity compared to the number of existing titles of Māori freehold land, Parliament

has determined that such an exception is justified.

[51] There do not appear to be many cases on whether Te Ture Whenua Māori Act 1993

overrides the Public Works Act 1981. The Preamble, s2 and the principal purpose of the Act

are all relevant in this context in providing important considerations for the Court as the

Māori Appellate Court has recently held.15

The principles of utilisation, retention and

development are also applicable. The retention of Māori freehold land in the hands of the

owners, their whānau and hapū is a cornerstone, fundamental principle of the Act that

underpins the approach that the Court must take with every application.

[52] In any case, whether or not NPDC considers it has a right to take the land, in the

absence of agreement for an easement or other device agreed with the Applicants, is of

secondary importance to this Court. Similarly, whether or not the effect of the application, if

granted, will be to impede the NPDC‘s desire to take the land without an agreement is also

of secondary importance. The Applicants themselves may or may not have considered this

possibility if the application were granted, but that too is not a determinative consideration

for the Court. The impact of the applications if granted on the walkway referred to be DOC

in their submissions is also secondary. The critical issue is whether or not a Māori

reservation is appropriate for this area of land for the purposes claimed and for a confined

class of beneficiaries – in this instance limited to the Applicants and their children – in the

face of both opposition and support from tangata whenua.

15

Naera v Fenwick – Whakapoungākau 24 (2011) Māori Appellate Court MB 316 (2011

APPEALS 316) at para [58]

274 Aotea MB 62

The Law

[53] Section 338 of Te Ture Whenua Māori Act 1993 states:

(1) The Chief Executive may, by notice in the Gazette issued on the

recommendation of the Court, set apart as Māori reservation any Māori

freehold land or any General land—

(a) for the purposes of a village site, marae, meeting place, recreation ground,

sports ground, bathing place, church site, building site, burial ground, landing

place, fishing ground, spring, well, timber reserve, catchment area or other

source of water supply, or place of cultural, historical, or scenic interest, or for

any other specified purpose; or

(b) that is a wāhi tapū, being a place of special significance according to

tikanga Māori.

(2) The Chief Executive may, by notice in the Gazette issued on the

recommendation of the Court, declare any other Māori freehold land or General land

to be included in any Māori reservation, and thereupon the land shall form part of

that reservation accordingly.

(3) Except as provided in section 340 of this Act, every Māori reservation under

this section shall be held for the common use or benefit of the owners or of Māori of

the class or classes specified in the notice.

(4) Land may be so set apart as or included in a Māori reservation although it is

vested in an incorporated body of owners or in the Māori Trustee or in any other

trustees, and notwithstanding any provisions of this Act or any other Act as to the

disposition or administration of that land.

(5) On the recommendation of the Court, the Chief Executive, by notice in the

Gazette, may, in respect of any Māori reservation made under this section, do any

one or more of the following things:

(a) Exclude from the reservation any part of the land comprised in it:

(b) Cancel the reservation:

(c) Redefine the purposes for which the reservation is made:

(d) Redefine the persons or class of persons for whose use or benefit the

reservation is made.

(6) No notice under this section shall affect any lease or licence, but no land

shall be set apart as a Māori reservation while it is subject to any mortgage or

charge.

(7) The Court may, by order, vest any Māori reservation in any body corporate or

in any 2 or more persons in trust to hold and administer it for the benefit of the

persons or class of persons for whose benefit the reservation is made, and may from

time to time, as and when it thinks fit, appoint a new trustee or new trustees or

additional trustees.

(8) The Court may, on the appointment of trustees under subsection (7) of this

section, or on application at any time thereafter, set out the terms of the trust, and

subject to any such terms, the Māori reservation shall be administered in accordance

with[and be subject to]any regulations made under subsection (15) of this section.

274 Aotea MB 63

(9) Upon the exclusion of any land from a reservation under this section or the

cancellation of any such reservation, the land excluded or the land formerly

comprised in the cancelled reservation shall vest, as of its former estate, in the

persons in whom it was vested immediately before it was constituted as or included

in the Māori reservation, or in their successors.

(10) In any case to which subsection (9) of this section applies, the Court may make

an order vesting the land or any interest in the land in the person or persons found by

the Court to be entitled to the land or interest.

(11) Except as provided in subsection (12) of this section, the land comprised

within a Māori reservation shall, while the reservation subsists, be inalienable,

whether to the Crown or to any other person.

(12) The trustees in whom any Māori reservation is vested may, with the consent of

the Court, grant a lease or occupation licence of the reservation or of any part of it

for any term not exceeding 14 years (including any term or terms of renewal), upon

and subject to such terms and conditions as the Court thinks fit.

(13) The revenue derived from any such lease or occupation licence shall be

expended by the trustees as the Court directs.

(14) Any lease granted pursuant to subsection (12) of this section for the purposes

of education or health may, notwithstanding anything in that subsection, be for a

term exceeding 7 years (including any term or terms of renewal) and may confer on

the lessee or licensee a right of renewal for one or more terms.

(15) The Governor-General may from time to time, by Order in Council, make all

such regulations as, in the Governor-General's opinion, may be necessary or

expedient for giving full effect to the provisions of this section.

(16) Any such regulations may apply to any specified Māori reservation or to any

specified class of Māori reservations, or to Māori reservations generally.

(17) Where any Māori reservation (set apart under any Act repealed by this Act or

the corresponding provisions of any former Act) is subsisting at the commencement

of this Act, this Act, and any regulations made under this Act, have effect,—

(a) in relation to the Māori reservation, as if it were a Māori reservation set

apart under this section; and

(b) in relation to any vesting order made in respect of the Māori reservation

(under any Act repealed by this Act or the corresponding provisions of any

former Act), as if that vesting order were a vesting order made under this

section.

(Emphasis added)

[54] In a decision dated 18 April 2002 concerning Section 4C1 Block II Tuatini

Township’16

Judge Wickliffe, as she then was, undertook a review of earlier decisions of

this Court and the Māori Appellate Court concerning Māori reservations. The principles

identified in that judgment included the contention that the Court must have regard to Māori

customary concepts relating to tūrangawaewae and ancestry in determining the beneficiaries

16

Supra, fn 18

274 Aotea MB 64

of a Māori reservation. Only in very special circumstances will a Māori reservation be set

aside for anyone other than the whānau, hapū, and iwi traditionally associated with that

particular land. The distinction in customary terms between owners and invitees or hosts

and guests must be maintained. For examples, see Re Mount Tauhara Māori Reservation;17

Waipahihi Māori Reservation;18

and Pihema v Ngati Whatua of Orakei Māori Trust Board –

Section 722,790,792,793 and 794 Town of Orakei Blocks IX Rangitoto Survey District. 19

[55] When a Māori reservation is created over Māori freehold land, the rights of the

beneficial owners to the legal estate for exclusive use and enjoyment as beneficial owners

are suspended. The legal estate vests in the reservation trustees while the original owners

and their successors retain the beneficial estate. As long as the reservation status exists, the

reservation trustees possess a licence as to occupation, use and enjoyment of the land and the

benefits accruing there from until the reservation is cancelled: Re Mount Tauhara Māori

Reservation;20

Campbell v Mahuika – Rahui A1321

and Perenara v Te Runanga o Ngati

Rangitihi – Ruawahia 2B.22

[56] Māori are entitled to have recognition of the fact that the land is a Māori reservation,

that it may have some special tribal significance, that Māori usually control it, and that

others use it only for as long as they accepted and respected those facts: Waipahihi Māori

Reservation.23

[57] All trustees appointed to Māori reservations by the Court are governed by the rules

of trust, as are other types of trustees. The process of election merely provides evidence to

the Court of which candidates those at the meeting support for nomination. The Court then

takes into account a broad range of factors regarding who should be appointed as trustees,

including who the reservation has been set aside for, the characteristics of the proposed

trustees and other related matters: Pihema v Ngati Whatua of Orakei Māori Trust Board;24

and Walker – Section 1A Parish of Katikati.25

17

Supra, fn 19 18

(1978) 59 Taupō MB 184 (59 TPO 184) 19

(1990) 3 Taitokerau Appellate Court MB 44 (3 APWH 44) 20

Supra, fn 18 21

(1992) 32 Gisborne Appellate Court MB 370 (32 APGS 370) 22

(1992) 8 Waiariki Appellate Court MB 52 (8 AP 52) 23

Supra, fn 24 at 186 24

Supra, fn 24 25

(1995) 18 Waikato Maniapoto Appellate Court MB 260 (18 APWM 260)

274 Aotea MB 65

[58] An inclusive approach regarding the appointment of trustees that takes into account

the views of both the beneficial owners and the persons for whom the reservation was set

aside is consistent with the retention and utilisation principles of the Act, and is to be

preferred as much as possible: Section 4C1 Block II Tuatini Township.26

On matters relating

to the administration of a reservation, the trustees should consult with the persons for whom

use and benefit the reservation has been created: Re Mount Tauhara Māori Reservation.27

Discussion

[59] As foreshadowed, this is an unusual case. It is one of the most difficult I have had to

consider. With the benefit of hindsight, given its unique circumstances, it may have been

preferable to have referred these applications as a case stated to the Māori Appellate Court.

A Māori individual from a tribe that is resident outside of the district and her Pākehā spouse

seek Māori reservation status over their General land farm of 227 hectares that includes a

number of sites of significance to at least one of the tangata whenua groups of the area. The

reason the reservation status is sought the Gibbs‘ say is to facilitate their efforts to ―live in te

ao Māori,‖ to protect the land for future generations and to sustain themselves according to

tikanga Māori.

[60] Two neighbouring iwi who are recognised as having tangata whenua status over the

traditional area covered by this application since colonisation, are divided. That is

unsurprising given the history to the land and implications for iwi should the application be

granted. The key issue for the Court is whether there are grounds for granting a Māori

reservation of this size and nature for the benefit, in law at least, of a small whānau who do

not affiliate by whakapapa to the rohe in circumstances where traditional tangata whenua are

divided.

The nature of Māori reservations

[61] As a general proposition it is evident that Māori reservations come in all shapes and

sizes. Mr Taylor submits that a review of the New Zealand Gazette confirms this reality.28

Some are only a few hundred metres in area, without a management structure and suffer

from erosion from the elements to the point where they may become unrecognisable. A

26

Supra, fn 17 27

Supra, fn 18 28

Supra, fn 9 at 94-95

274 Aotea MB 66

much smaller number may be hundreds of hectares in size, can incorporate multiple sites

over a wide area of varying degrees of significance and importance, and with elaborate

administrative and support structures designed to protect and enhance that land on behalf of

the beneficiaries.29

It is also commonplace for land that is covered by a Māori reservation

overlay to pre-date colonisation in terms of its importance to hapū and iwi.30

[62] A review of the Māori reservations register found in the records of the Court and the

New Zealand Gazette suggests that the vast majority of Māori reservations have been set

aside for a class of beneficiaries that are usually hapū based. While there are Māori

reservations set aside for the benefit of iwi and whānau, the majority are for hapū or the

owners of the land. Where the land has been awarded to individuals according to a title

determination made in favour of hapū then the result is invariably the same. Put another

way, the majority of Māori reservations are set aside for hapū and kin based groups, or

groups thereof and usually for the purpose of burial grounds; marae or meeting places; sites

for traditional food gathering and accessing natural resources including rōngoa; places of

historic and cultural interest including waka landing sites, battle grounds, sites of worship

and customary observance.

[63] In other words, Māori reservations are usually set aside for communal purposes to

benefit a particular community of interest that is often hapū based, either for an individual or

a group of hapū. Equally importantly, the setting aside of areas for such purposes is not

common. To provide some context, the records of the Court confirm that there are

approximately 26,000 individual titles of Māori freehold land but only 2,000 Māori

reservation trusts or less than 10% of the total. In other words, the overlay of a Māori

reservation is a special status reserved as the name suggests for particular communal

purposes to benefit Māori communities of interest. It would be surprising therefore to find a

series of Māori reservations set aside for the benefit of individuals.

[64] Another important consideration is that usually, though not invariably, Māori

reservations are established by Māori who have held occupation as tangata whenua since

1840, or following the upheavals of nineteenth century land alienation and dispossession, or

29

Tauhara 4A2A block for example comprises 1,165.368 ha in area and includes Mt Tauhara and is

set aside as a Māori reservation on behalf of several hapū affiliating to Ngāti Tūwharetoa: 58

Taupō MB 168 (58 TPO 168). Māungapohatu, the sacred mountain of Ngai Tūhoe iwi, is also a

Maori reservation of significant size being 586 ha in area: 202 Aotea MB 94 (202 AOT 94). 30

For examples see Rangitāiki 27, Opihi-Whanäunga kore urupā at Whakatāne comprising over

25.144ha in area (1982) 73 Whakatäne MB 100 (73 WHK 100). The nearby Ohuirehe urupā,

Rangitāiki 28B1D consists of approximately 2 ha yet both sites are considered extremely tapu by

local hapū since burials predate colonisation: 238 Rotorua MB 70 (238 ROT 70).

274 Aotea MB 67

where migration patterns have necessitated creation of new Māori reservations where iwi

and hapū have moved to new locations over time. So an application like the present is not

commonplace in that the Applicants, Mr and Mrs Gibbs, are not members of the Taranaki

tribes and nor are they members of the Poutama or Ngāti Waiora and Tainui aligned groups

which support the applications.

[65] In addition, while it has become fashionable for persons who are not Māori by

descent to regard themselves as being tangata whenua it is important to underscore that the

term remains essentially Māori. And while Māori from another rohe who have married into

the local iwi and hapū may be regarded by those same tribes as belonging to the iwi, in strict

terms of whakapapa and descent from an eponymous ancestor, they do not. Their children

obviously will but they themselves cannot. This is the essence of the kin based relationships

that underpin Māori society – connection by blood.31

The fundamental principles of the Act

are the retention, development and utilisation of Māori land in the hands of its owners, their

whānau and hapū. These principles also underscore the primacy of whakapapa.32

[66] Following this general review of the nature of Māori reservations, there are five

questions I consider relevant to the determination of the applications, in no particular order.

First, who are tangata whenua of the district? Second, do they support or oppose the

applications and what is the relevance if any of their views? Third, what is the purpose of

the reservation? Fourth, what is the size of the proposed reservation and how is that relevant

to the statutory tests? Fifth, what customary connection in a Māori context do the

Applicants and the beneficiaries of the proposed reservation have to the land and to what

extent is this relevant?

Who are tangata whenua of the district?

Waitangi Tribunal reports

[67] As Mr Taylor submitted, the issue of overlapping interests between the Ngāti

Maniapoto and Taranaki tribes was canvassed by the Waitangi Tribunal in its reports on the

Taranaki confiscation claims generally, The Taranaki Report: Kaupapa Tuatahi.33

The

31

Mihinui - Maketu A100 (2007) 11 Waiariki Appellate MB 230 (11 AP 230) 32

(2011) Mäori Appellate Court MB 500 (2011 APPEAL 500) 33

GP Publications, Wellington, 1996. The Tribunal stated at 283 ―...We do not, however, infer

that Ngāti Tama was solely entitled to the whole of the lands to the Mokau River. Though Ngāti

Tama claims that right, we have not heard from the adjoining interest groups at this stage. ...

Until such time as other groups are given notice and are heard, or otherwise agree, we are

274 Aotea MB 68

overlap between the two sets of tribes was also highlighted in the Tribunal‘s report The

Ngāti Maniapoto/Ngāti Tama Settlement Cross Claims Report. 34

The Tribunal found that,

effectively, both Ngāti Tama and Ngāti Maniapoto could claim customary, historic and

cultural interests in the land between the Tongoporutu and Mokau Rivers. It was simply a

question of emphasis at any given point in time and depending on the particular

circumstances or events. In its report, the Tribunal noted that two lines had been referred to

as a boundary of significance. Firstly the ―Wahanui‖ line on behalf of Ngāti Maniapoto

which extended from Waipingao south of the Tongoporutu River. The other boundary was

the confiscation line which commences at Parininihi on the coast and cuts across most of the

Tongoporutu River, which falls in large part south of the confiscation line.35

[68] More importantly, the Ngāti Tama Claims Settlement Act 2003 provides exclusive

redress to Ngāti Tama south of the confiscation line. Put another way, non-exclusive redress

was provided to Ngāti Tama north of that line which confirms that both Ngāti Tama and

Ngāti Maniapoto can claim interests and associations with the land formally known as the

Mohakatino block. This is relevant to the claims of exclusive authority over the rohe

covered by the present application.

[69] My conclusion is that, while Ngāti Tama has a dominant if not the dominant interest

in the northern Taranaki rohe, it does not have exclusive rights in a customary or historic

sense to the area now relevant to the Gibbs‘ application. Those rights are shared with Ngāti

Maniapoto aligned groups including Nga Hapū o Poutama. Even so, as tangata whenua,

Ngāti Tama has important rights as part of this case, including the right to be heard over and

above that of the general public. Contrary to assertions made by counsel for the Applicants,

the present applications do affect Ngāti Tama, as they are tangata whenua. The creation of a

assuming the Ngāti Tama loss through the Native Land Court was probably equivalent to the

greater part of the Mohakatino-Parininihi block, say 66,000 acres.‖ 34

Legislation Direct, Wellington, 2001. In New Zealand Maori Council v Attorney General [1987]

1 NZLR 641 the Court of Appeal acknowledged that while reports of the Tribunal were not

binding on courts they were nonetheless important reference points. 35

Ibid. The Tribunal observed that while the blocks north of the confiscation line, principally the

Mokau-Mohakatino block, had been awarded by the Native Land Court to Ngāti Maniapoto it

did not accept that the Court awards were consistent with Māori custom at page 1: ―Among the

issues covered in the Taranaki Report was the 1882 Native Land Court determination of the

ownership of the Mōhakatino-Parininihi and Mōkau-Mohakatino Blocks. These blocks were

immediately to the north of the confiscation boundary, between the confiscation line and the

Mōkau River, within the area claimed by Ngāti Tama as their rohe (see location map). The

Native Land Court awarded the ownership of both blocks to Ngāti Maniapoto and rejected the

claims of Ngāti Tama. The Taranaki Tribunal criticised the Court‘s decision for being politically

motivated and having nothing at all to do with Māori custom.‖ (at 1).

274 Aotea MB 69

Māori reservation in a tribe‘s traditional rohe against their wishes will always be a matter of

concern.

Do tangata whenua support or oppose the applications?

Applicants’ submissions

[70] Counsel submitted that the Applicants consider themselves to be tangata whenua of

their land. For them the land is their turangawaewae, distinct from the concept of tangata

whenua of the rohe. The Applicants respect the association of Ngāti Maniapoto, Ngāti Tama

and Ngā Hapū o Poutama with the land.

[71] The application is also supported by Ngā Hapū o Poutama and Ngāti Maniapoto

(through Mokau ki Runga) and there is no evidence that Ngāti Tama will be affected by the

proposed reservation.

[72] According to Mr Armstrong the Court should consider the views of 1840 tangata

whenua as part of one of a number of matters to weigh in coming to a decision but he argued

that 1840 tangata whenua do not have a right to veto the application.

Ngäti Tama’s submissions

[73] It is undisputed that Ngāti Tama opposes the application, despite earlier claims that

they had initially been supportive. While the iwi had some sympathy for the applications

they were concerned at the effects on tangata whenua. At the hearing held on 8 March 2008

Paul Silich made the opposition of the iwi clear:36

Mr Silich: ...I represent Ngāti Tama rūnanga speaking on behalf of Greg White who isn't

available due to being overseas. I appear on behalf of the rūnanga of Ngāti Tama the identity

of Ngāti Tama in opposition to the Gibbs‘ application to create a reservation. Mrs Gibbs in

her brief of evidence says that I had previously agreed to the creation of a reservation. I

believe that she has taken my words out of context such that the statement made by her is

simply not correct. Mrs Gibbs probably acknowledges that she is not of Ngāti Tama and

therefore seeks the creation of a Māori reserve on land within our rohe when she is not of

Ngāti Tama. I sympathise with her aspirations but I believe that it creates a dangerous

precedent if Māori are permitted to create reservations in the rohe of iwi to which they do not

whakapapa. For this reason Ngāti Tama opposes the application before this Court.

36

202 Aotea MB 107 (202 AOT 107)

274 Aotea MB 70

Discussion

Ngāti Tama

[74] Ngāti Tama say that an unintended consequence of the applications being granted in

part or in whole would be permitting non-indigenous tangata whenua to gain rights that

ought to be the preserve of those tribes who have endured both pre- and post-colonisation.

This view is unsurprising. The wholesale dislocation of customary tribal interests through

the nefarious political and judicial policies and practices of the nineteenth century in

particular have caused considerable difficulties for iwi and hapū then and now.

[75] There are many examples of tribes awarded land for military service or through

Compensation Court or Native Land Court title determinations in the nineteenth century

where mana whenua remained a point of contention between neighbouring iwi, even though

the historically successful group may have had no or little direct connection to the area in

question. Over time, through Crown grants and title determinations, the imported or

successful tribes have gained recognition across a range of activities often at the expense and

to the detriment of the original tangata whenua. The latter then became a redundant force

for generations watching forlornly as their interests were further alienated by their traditional

rivals until the settlement process provided the necessary funding and infrastructure to

reassert customary interests.

[76] That said, I find nothing in the Act that provides Ngāti Tama with any right of veto

over an application to create a Māori reservation in an area that has been the subject of

considerable historical dispute between them and the Tainui aligned groups over several

generations. If the area sought for such an overlay was located at the centre of the

traditional Ngāti Tama tribal domain and included sites of seminal significance to the iwi,

then the position would be somewhat different and the approach would necessarily involve

alternatives as a first step including mediation and other forms of dispute resolution.

[77] For present purposes however, Ngāti Tama‘s interests must be taken into account

but they provide no determinative right of veto against the proposal, as counsel

acknowledged in any event. The legislative framework does not make any provision for a

veto but does require the views of tangata whenua to be take into account, consistent with

tikanga Mäori.

274 Aotea MB 71

Nga Hapū o Poutama

[78] Nga Hapū o Poutama have given their unqualified support to the Gibbs and the two

applications currently before the Court. Indeed, Haumoana White gave evidence endorsing

the applications and it is Mr White whom the Gibbs rely on for their evidence of customary

and historical Māori connection to the land. Mr White gives a succinct summary as to the

reasons for that support:37

To you Sir, you must make every effort to protect Mäori land. You must do that. Size is of

no consequence. There will be other reservation applications. If Treaty settlement tribes are

let lose to determine what tupuna lands are allowed to do then we are in a very very

dangerous situation. That is really all I need to say. This is a wonderful application. It is

unique. It sets a precedence [sic] and it retains land in New Zealand, in Aotea [sic]. It will

stop the sale of land to overseas interests.

[79] It is undisputed that Nga Hapū o Poutama have welcomed the Applicants into their

tribe. For many years both Poutama and the Applicants have worked together in their efforts

to act as kaitiaki over their respective lands. It is not difficult to understand that Poutama,

having witnessed the alienation of traditional lands, are excited by the opportunity for a real

partnership to work with the current land owners in protecting their sacred sites and wāhi

tapū.

[80] While it is more commonplace for iwi and hapū to often be in dispute with owners

of land once held in the tribal domain, the relationship between Poutama and the Gibbs

whānau is without doubt very strong. In this way, it is also not difficult to understand that

Poutama have given their approval to the Applicants to protect lands they regard as

traditional to the fullest extent practicable. The overlay of a Māori reservation is a natural

step toward realising the custodianship that Poutama and other tangata whenua have not

been able to exercise to the extent they consider appropriate through the Applicants and their

family trust.

[81] In short, I accept the submission that there is no legal impediment set out in the Act,

having regard to the Preamble and the principles, that one of the tangata whenua groups

claiming an interest in these lands has cloaked the current owners of those lands with the

responsibility of kaitiaki and custodian. But whether that is sufficient to enable the granting

of an order creating a reservation under s 338 of the Act for the exclusive benefit of the

Applicants and their whānau is a separate question.

37

202 Aotea MB 108 (202 AOT 108)

274 Aotea MB 72

What is the purpose of the proposed reservation?

Applicants’ submissions

[82] Counsel also contended that, in any event, special circumstances exist to justify the

land being set apart as a Māori reservation. The Applicants have a strong connection to this

land - it has been in their family over 110 years, pito are buried there, an urupā has been

established and the Applicants have erected a wharenui on the land.

[83] As foreshadowed, Mr Armstrong underscored that the Applicants wish to live in ―te

ao Māori‖ and want to create a Māori reservation so te ao Māori can be preserved over the

land at all times. Their commitment to this is demonstrated by the creation of the urupā, the

erection of the wharenui and their willingness to give up the opportunity to sell an extremely

valuable asset. The land contains wāhi tapū which the Applicants want to protect not only

for themselves but for local hapū and iwi. They also wish to preserve the special nature of

the land for future generations and seek the protection of the inalienable nature of a Māori

reservation to do this.

[84] Counsel also submitted that the purpose of the reservation justifies the whole of the

land being set aside. The continued operation of the farm does not contradict but rather

supports the purpose of the reservation. The operation of tikanga can support the two. In

any case it was argued that the Applicants wish to use the structure of a Māori reservation to

create a realm where they can live in ―te ao Māori.‖ The reservation status provides the

greatest protection with the inalienable provisions preserving the land for future generations.

Mr Armstrong also stressed that the Applicants also view their land holistically. They do

not want the land to be carved into separate pieces, each with a separate status and separate

management structure.

[85] Furthermore, according to counsel, the Applicants stress that the farm is not being

run as a commercial capitalist venture. They see this as a natural element of living in ―te ao

Māori‖ and being self sufficient. The farm is to sustain the needs of the Applicants,

manuhiri and others. The number of stock on the farm has been reduced to minimise the

impact on the land and to restrict production to what is required to meet those needs.

[86] Mr Armstrong then contended that whenua tōpu and ahu whenua trusts are not

appropriate for the Applicants. A whenua tōpu trust is for iwi and hapū. An ahu whenua

274 Aotea MB 73

trust does not recognise the significance of the land or have the same inalienable provisions

that a Māori reservation would provide.

[87] It was also argued that there will be no higher compliance burden on the trustees

under the Act and Regulations if the Māori reservation status were to be granted. There are

clear mechanisms in the Act intended to address unique circumstances.

[88] In summary, counsel contends that there is nothing in s338 of the Act that requires

the Applicants to be 1840 tangata whenua in order for the land to be set aside as a Māori

reservation. There are special circumstances which justify the granting of the application

and the purpose of the reservation justifies the whole of the land being set apart. The

continued operation of the farm will not contradict the purpose of the reservation.

[89] Mrs Gibbs provides a useful summary in her evidence as to the purpose of the

proposed reservation:38

57. Russell and I first progressed this application ourselves, without legal

representation. We therefore looked carefully at the reservation section of Te Ture Whenua

Māori, and the basis upon which you can get Māori reservation. We see nothing in the law

which limits the size of the reservation status.

58. I will go through the relevant purposes and explain why we feel they are

appropriate. They are not however individual considerations, but matters which work

together to produce an overall justification for a reservation:

village site, marae, meeting place, building site:

a) We regard the land as the base for our whänau in the future. It is family land in the

Gibbs side for over 100 years. We see it as being our whānau land for many

hundreds more, in the context of our Māori whānau as it now exists. As we have

noted above, we don‘t think that a living papakainga, or marae reservation should be

limited to the area necessary to place buildings. This risks cutting it off from its

economic base, from its context as part of a whānau (or larger) holding, and

spiritually, economically and physically from its support and benefit network.

b) We have already established the urupā and wharenui which we see as cornerstones

of this future.

burial ground:

c) As noted, our urupā is in existence. However, we do not see the urupā as limited to a

plot of land. Those who have passed before us are still with us and are within the

land as a whole, not just a tiny portion of it. They take from and give special

meaning to the whole of the land.

d) We ask the Court to understand this when looking at the whole area. The burial

ground aspect should not be ticked off as a goal already achieved, but should be

seen as supporting, sitting together with and infusing the other purposes.

38

Supra, fn 9 at 117-118

274 Aotea MB 74

place of cultural, historical, or scenic interest:

e) The land is a place of great beauty. The cliffs below, rolling into low hills, the

beautiful pastures, the native thickets, the nearby scenery and the amazing sky, light

and views all make this an unbelievably beautiful place. This is why there is a

walkway, why there are conservation covenants on the bush, why there is a special

provision for the station in the district plan, and why NPDC seems to be fighting

tooth and nail to gain access.

f) We take on the cultural and historic interest of the Gibbs side as part of our whānau

history. We are continuing to make our own cultural and whānau history on the

land.

g) This has always been a place where there has been important activity, and a coastal

passage for Māori. As I noted, the dead have been buried here. Also the area was a

place for food gathering both from the whenua and moana. We know that there have

been both settlements and battles on the land. A traditional Māori track came

through this land which was used extensively as tribes came and went.

wāhi tapu:

h) I have discussed above that this land is wāhi tapū.

59. There is no doubt in our minds that, taken as a whole, the land is a very special

place. We are the kaitiaki for this land in cultural, historic and environmental terms. We take

this role very seriously.

60. We have now chosen to protect the land for future generations by seeking

reservation status. This will achieve the recognition and protection it deserves and ensure that

our future generations are able to inherit a continuing base, touchstone, tūrangawaewae that

maintains its whānau associations, its cultural amenities, its holistic nature, and the pristine

qualities which we have enhanced and see in the land today.

[90] In addition, Mr Gibbs provided a brief dated 15 December 2008 which supports

much of the evidence of his wife. It should be noted that Mr Gibbs in part was responding

to an earlier direction that I had issued dated 24 November 2008. The relevant sections of

that direction are set out at paragraphs [5] and [6]:39

[5] The Applicants need to satisfy the Court that a Māori reservation should be created

over a large area of land, taking into account the fact that the Applicants are not tangata

whenua as that phrase is commonly applied in the context of applications for Māori

reservations. While it is accurate to note that Māori reservations have been established over

significant areas of land, in most instances the Māori reservation overlay has resulted in a

prohibition on the use of the land for any purpose other than burials, hikoi and related

cultural practices.

[6] I understand that in this case the applicants still intend to maintain parts of the land

affected by the proposed reservation as a working farm. If that is the intention then counsel

will need to make submissions on how that proposal squares with orthodox examples of

Māori reservations.

39

219 Aotea MB 232 (219 AOT 232)

274 Aotea MB 75

[91] Mr Gibbs in response to that direction states that it is the Applicants ―firm belief‖

that what they intend to do is entirely within ―orthodox Māori cultural practice.‖ The

relevant parts of his evidence are set out below:

[5] To state the obvious I am a Pākehā. However I am married to a Māori and my

children are Māori. Our family has a long and close association with many tangata whenua

in our area. We have regularly been involved and supported the tangata whenua in many

kaupapa that we all believe in and support. While we have had a close association with

many of the local tangata whenua, in particular we have a very close association with Nga

Hapū o Poutama. In fact, we have such a strong and close relationship with them that we are

honoured to be considered part of the Hapū.

...

[8] We want to establish an area that reflects and includes all aspects of Te Āo Māori.

This includes what Judge Harvey refers to as the conventional aspect such as the Wharenui

and Urupā. However we don‘t want this to be isolated from the rest of the whenua, where

we live, gather kai, and so on. We view this as one land and we want it to be preserved as

one land rather than different blocks with different ownership structures and so on.

[9] We see the land as one and we want to preserve it as one. The fact that this

reservation will include a working farm simply reflects all aspects of Te Āo Māori. There is

a need to generate kai to provide for our living expenses and to support both Manuhiri and

Tangata Whenua whether that be for hui on our land or other lands for which we provide

koha.

[10] To sever the Wharenui and Urupā from the rest of the land (ie the farm) is to cut of

those things from the source of kai, koha and manaakitanga that it needs in order to operate

and survive. That is what we don‘t want. We view this land as one and we want it to remain

as one and to be self sufficient. We don‘t want the existence and operation of Wharenui to

be dependent on grants and welfare from other blocks and administration structures. We

want this to be a self sufficient expression of Te Āo Māori. To us that is rangatiratanga.

That is our intention for seeking to set apart the land as a Māori reservation. We see this as

the best way to achieve that and to preserves this kaupapa into the future.

[92] In the same brief Mr Gibbs goes on to comment on the reference in my earlier

direction to the word ―orthodox‖:

A working farm and how that proposal squares with orthodox examples of Māori

reservations.

[12] I wish to comment on the topic of ‗orthodox.‘ From what point in time does

orthodox begin? If orthodox is measured from the time when Māori lived as Hapū on their

land the Hapū had a land and resource base for sustainment. This land and resource base

needed to conduct all the things that the whānau and Hapū needed to survive:

(a) water for drinking, bathing, fishing, cooking, rōngoa, kai, karakia;

(b) ngahere for timber, for fire and warm, cooking, tools, weapons, building, hunting,

kai and protection from the elements;

(c) land for the papakāinga, land for the marae, land for the urupā, land for cooking,

land for kai preparation, land for pa harakeke, land for mahinga kai, land for

orchards

...

274 Aotea MB 76

[15] Should orthodox be measured after the time of confiscation of most of these

resources and the land and the consequence displacement of the whānau and Hapū who were

then confined to the reserves and in many cases lived in poor health and poverty while the

new settlers harvested the fruits of the land?

[16] Maungapōhatu and Parihaka are two very good examples. Should orthodox be

measured from these, from the time these Hapū communities were vibrant and prosperous or

should orthodox be measured from after the time of the pahua?

[17] Should orthodox be measured from the time now when only the land left to some

whānau and Hapū is Urupā and marae?

[18] What we as a whānau and Hapū are trying to achieve is not unorthodox.

...

[20] Our farm is simply an extension of the papakāinga concept making the reservation

self sufficient and able to sustain ourselves, manaaki manuhiri and other tangata whenua.

This is the kaupapa that we want to promote and preserve, rather than the farm being seen as

separate lands under a separate trust or entity propping up the reservation.

...

[23] The whenua as a whole has mana, tapu and a mauri of its own. My understanding of

things Māori is that man is connected to Te Atua, connected to man, connected to whenua.

The is the whole and the balance, the tapu, the mauri and mana.

[24] Every part is connected to the whole. To divide that apart is to violate the whole.

[25] The Urupā, the marae, the land, the sea, the air, the river and all of the things that

grow and live there including the people are all inter-connected and are part of the whole.

[26] The wish and desire of the whānau and Hapū is to sustain, protect and enhance what

is effectively a traditional papakainga. A reservation will preserve this kaupapa for future

generations preventing sale and sub-division.

[93] Mr Taylor also made detailed submissions on the purposes of the applications:40

Mr Taylor: The Gibbs have repeatedly emphasised their desire to ensure that the reservation

is a sustainable and holistic legacy for themselves and future generations. They expressly

wish to ensure that the reservation is self-sustaining in terms of income, remains legally and

practically part of a whanau/hapū endowment, and will not end up being an isolated fixture

which is reliant on third parties or different legal entities for its maintenance and

development.

They also seek maximum protection of their land for future generations. The inalienability

inherent in reservation status is sought to be applied to this land.

[94] Counsel reiterates the ―holistic‖ nature of the application and the desire of the

Applicants to retain the land as a single entity rather than as separate parcels:41

Mr Taylor: Yes, Your Honour, you are correct there. The key point underlying the Gibbs‘

case is that these special attributes are not limited to specific spots on the land. They infuse

40

202 Aotea MB 101-104 (202 AOT 101-104) 41

Ibid

274 Aotea MB 77

the whole of the land in a manner which is very traditionally Māori. The Gibbs do not

separate one aspect or issue and see it as contained by a fence, a bush-line, or a paper title.

This applies whether it be the significance and sacredness which the urupā or whare tupuna

imparts to the whole of the land, or whether it be the wāhi tapu nature of the land generally.

This holism and sustainability extends to economic aspects. They accept and embrace the

commercial nature of the land, whilst putting reservation values as the foremost management

concern, and acknowledging that special values can and do co-exist with commercial

endeavour. Special sites to Māori have often been sources of sustenance in traditional times,

whether it be birdlife, fish, or other wild food. The modern context of farming has altered

the landscape, and changed the way sustenance is secured (through commerce), but has not

destroyed the special nature of the land to the Gibbs.

The continued desire to make an economic return on land is provided for by section 338. The

need for continued revenue for the expenses and maintenance of a reservation is a modern

day reality – this ranges from electricity for buildings etc, to pest control and so forth. That

is the approach which the Gibbs seek.

Ngäti Tama’s submissions

[95] Ms Poutu submitted that a Māori reservation is not the appropriate mechanism for

the nature and scale of this application. The fundamental issue is whether Parliament

intended s 338 of the Act to apply in the circumstances proposed by the Applicants. Section

338 should be interpreted in a purposive manner, the words being read in their fullest

context with a view to the purpose of the legislation. This approach is consistent with s 5 of

the Interpretation Act 1999.

[96] Applying a purposive interpretation to s 338 of the Act would mean that the

establishment of a Māori reservation in the present circumstances would be excluded.

Parliament did not intend that Māori reservations would be gazetted where the proposed

purposes of the reservation are not “communal purposes”. The scheme of the Act requires a

Māori reservation to be for a communal purpose. The preamble to the Act refers to a wider

community than the immediate family. The application is not for communal purposes nor is

it for the benefit of iwi or hapū or Māori generally. It is for the Gibbs whānau only.

[97] It was also important to recognise, Ms Poutu submitted, that Te Rūnanga o Ngāti

Tama do not assert a right to veto the application. In summary, counsel argued that Te

Rūnanga o Ngāti Tama do not consider that such a broad ranging Māori reservation, which

includes significant commercial activities which appear private, is appropriate under s 338

when there are other mechanisms available including ahu whenua trusts. Further, there is

insufficient detail on the practical effect and application of the Māori reservation on tangata

whenua and accordingly, the Court should not determine the applications until all matters

are clarified.

274 Aotea MB 78

Discussion

[98] The applications are in a number of respects unique. As foreshadowed the Gibbs are

seeking to have Māori reservation status over the 277 hectare General land property for a

variety of purposes as set out above by Mrs Gibbs. While it is not unusual for Māori

reservations to be established for a multiplicity of purposes, and clearly the legislation

contemplates that possibility, it is unusual for a Māori reservation to be established for such

numerous purposes – village site, marae, meeting place, building site, burial ground, place of

cultural, historical, or scenic interest and wāhi tapu – over the same land in the same

application. And by a family not from the area in terms of tikanga Māori whose proposals

are both supported and opposed by tangata whenua.

[99] Mention has also been made of commercial and farming activities and how the

legislative framework of the Act and the regulations do not prevent commercial ventures

being undertaken over Mäori reservations. This is not in dispute. Reference was made by

counsel to Mt Tauhara which is a sacred maunga but leased for farming purposes. Even so, I

do not accept that the comparisons between the present applications and the current status

and use of Mt Tauhara are relevant. The circumstances of that case are very different to the

present, especially in the context of tangata whenua.

Village site, marae and meeting place, building site

[100] While in time the area could become ―village site‖ at present it is not and I did not

understand that one was planned in the imminent or foreseeable future. There is certainly a

wharenui on the land and it is evident that the Applicants use this building as a meeting

place and for marae purposes. In time the Applicants may build all of the facilities usually

found at a marae including a dining hall and ablution blocks. There appears to be no definite

plan to do so yet that has taken any practical form in terms of buildings being constructed.

That said, since the close of the hearings that position may have changed.

[101] As to the claim of a meeting place then the wharenui is obviously a building for such

purposes but beyond that it is difficult to see, without additional new evidence, that the

village site and building site elements are relevant at this point of the process. Even if they

were, is that sufficient to grant the application for a reservation over the ―village site‖ and

―building site‖? It is difficult to see how an affirmative answer is appropriate.

274 Aotea MB 79

[102] For completeness in this context I note that the Gibbs have claimed in other fora that

Māori reservation status, if granted, may provide the Applicants with the ability to ignore

legislative building requirements. As the High Court has held that cannot be correct.42

The

overlay of a Māori reservation does not provide the beneficiaries with any immunity from

compliance with the relevant regulatory regimes for building, health and safety

requirements.

Burial ground

[103] As to the burial ground, this has been established. However Mrs Gibbs says that

―we do not see the urupā as limited to a plot of land‖ and that those who have passed on are

―within the land as a whole, not just a tiny portion of it.‖ Mrs Gibbs goes on to state that the

burial ground aspect should not be ―ticked off as a goal already achieved but should be seen

as supporting, setting together with and infusing the other purposes.‖

[104] In response to my questions, Mr Gibbs also made the point that he was opposed to

any concept of separating out the title or areas of the land into compartments for different

purposes when retaining the two blocks as a unified whole was necessary:43

Court: For example, at paragraph 10 of Mr Gibbs brief he says, “To sever the Wharenui and

the urupa from the rest of the land (i.e. the farm) is to cut off those things from the source of

kai, koha and manaakitanga that it needs in order to operate and survive.” I am not sure

that I follow that. What is meant?

...

Mr Gibbs: For example, if the haukaainga are to manaakitanga by providing kai to

manuhiri for example where would that come from other than from the land surrounding the

marae.

Court: Yes. I am trying to understand the distinction between doing that if this piece is a

Maori reservation and the piece next door where the kai comes from is either Mäori freehold

or general land. What is the difference?

Mr Gibbs: There is a difference in administration and there is a difference in obligation and

accountability. There is a long term difference in keeping that together to be able to have

that provision of kai to be ongoing. If there is separation now that separation is likely to

grow as time goes on.

42

Gibbs v New Plymouth District Council [2009] NZAR 344 43

230 Aotea MB 139 (230 AOT 139)

274 Aotea MB 80

[105] The area set aside for an urupā or burial ground is ―set aside‖ for a good reason.

That is to ensure there is no mixing of kōiwi with the productive parts of the land. It is

common knowledge that the remains of the dead are associated with the most extreme forms

of tapu. Food makes that which is tapu noa or common. As Mead points out, some places

such as urupā are always tapu but even so some urupā are more tapu than others. The

important variable he says is often the antiquity of the urupā and whose remains are buried

there.44

Urupā and wāhi tapu are often separated from other lands physically by their

location or by trees, fences and other impediments to unfettered access. For example, Mount

Putāuaki near Kawerau in the Eastern Bay of Plenty is acknowledged at the maunga tīpuna

for the Ngāti Awa tribe. According to the rangatira of the time, from its base to the summit

it is a burial ground. It would be unimaginable that food be purposely grown or cultivated

from this mountain.45

[106] It is well known, by way of further example, that sections of the Ngāi Tūhoe tribe of

the Eastern Bay of Plenty have burial caves in and around Mangapōhatu and at Lake

Waikaremoana. Their precise location and ability to gain access are not common knowledge

outside of the hapū connected with those lands. Like the Putāuaki example, it would be

inconceivable that any kind of food growing would be knowingly permitted near these sites.

Indeed, any such activity near the kōiwi would cause deep offence to the hapū concerned

and would result in immediate remedial action being taken.

[107] I also note Mr White‘s evidence that the real question is whether or not appropriate

tikanga has been observed rather than whether or not the practices and places are noa or

tapu. The Waitangi Tribunal in The Report on the Management of the Petroleum Resource

found: ―Where the tapu of such sites has been innocently transgressed, the appropriate

rituals need to be observed to render both the tangata whenua and the visitors free from any

unseen future difficulties.‖ 46

Even so, the short point is that, either by way of separate

severance of land by partition or by virtue of the geography of the land or by use of fences,

44

HM Mead Tikanga Māori – Living by Māori values (2003) Huia Publishers, Wellington at 65.

See also generally Michael King Te Ao Hurihuri – The world moves on – aspects of Maoritanga

(1975) Taylor & Sons Ltd, Wellington 45

―... Friend the Administrators of the Colony of New Zealand, this is our word representing

Putāuaki (Mount Edgecumbe) from the top of this mountain Putāuaki, right down to the its base

and encircling the whole of the mountain is a burial ground (our dead are buried under it). Let

this mountain be set apart for a burial ground the caves in which the thousands of the dead are

lying are the Te Piripiri, Te Takanga, Te Niho-o-te-Kiore, Pohaiturua and Rangitatau. Let the

Government be sure to give effect to this word of ours and let the Queen‘s seal be affixed to

make this mountain Putāuaki a burial ground...‖Apanui Te Hāmaiwaho, Te Rangitūkehu, Hoani

Tuhimata, Paora Patu 15 October 1879 46

Legislation Direct, Wellington, 2010 at 2.11.

274 Aotea MB 81

waterways and other forms of access impediment, or indeed by all of the above, it is not

uncommon for burial grounds to be set aside from other lands owned by Māori as a

consequence of the tapu nature of that land.

[108] The key point here is that there is already a burial ground now formally set aside as a

Mäori reservation for the benefit of the Applicants and their descendants. Any applications

to create Mäori reservations over burial grounds that belong to tangata whenua – as distinct

from the Applicants – would need to include tangata whenua within the beneficiary group.

Place of cultural, historical, or scenic interest

[109] Mrs Gibbs then says that the land is a place of great beauty. That is undisputed.

That the land is likely to be of scenic interest to the beneficiaries, to tangata whenua and to

the wider community can also not be in doubt. Mrs Gibbs goes on to say that the cultural

and historic interest of the Applicants to the land is as a consequence ―of the Gibbs side as

part of our whānau history.‖ She then says that the family are continuing to make ―our own

cultural and whānau history on the land.‖ I understand Mrs Gibbs to mean that she

acknowledges her Tūhoe whakapapa does not provide this historic and cultural connection

to the land. While I acknowledge she refers to being part of the tribes who welcomed the

great migration peoples, as I discuss later in this judgment, those claims have limited

relevance to the present applications.

[110] This is because invariably most if not all iwi can claim such connection back to the

pre-migration tribes that populated this land. In other words, such a connection does not

give Mrs Gibbs any particular status over and above that of tangata whenua of the district,

Ngāti Tama and the Ngāti Maniapoto and Tainui aligned hapū. In addition, as

foreshadowed, there is no generally accepted claim or recognition of a claim of tangata

whenua status by Ngāi Tūhoe iwi to the land covered by the present applications.

[111] This then means that, as Mrs Gibbs has confirmed, the Applicants‘ ―cultural and

historic interests‖ to the land is through her husband Mr Gibbs. I do not read section 338 of

the Act as providing an entry point for that history to have relevance to the applications to

set aside a Māori reservation. That possibility would only arise if section 340 of the Act was

invoked to create a Māori reservation for the benefit of the people of New Zealand but even

then, it is difficult at first blush to see how, taking into account the whole scheme of the Act

and its underlying fundamental principles, that non-Māori connections could be used to

274 Aotea MB 82

create Māori reservations for communal purposes where that community of interests has a

very narrow and confined focus.

[112] Mrs Gibbs refers to the land being important to Māori for access purposes and for

other reasons historically. That is not in dispute. It is however a history that is not

connected to the Applicants but forms part of the identity of tangata whenua. Unless the

beneficiary class is to be widened to include tangata whenua, I cannot see how the

provisions of section 338 can be used to create a Māori reservation for a group of individuals

who are relying on the traditions and customs of iwi and hapū to which they are not

connected by blood and on non-Maori history to support their application.

Can the land have both Māori reservation and wāhi tapu status?

[113] Reference has been made during the hearings to wāhi tapu on the land. Recently the

Waitangi Tribunal, in its Report on the Management of the Petroleum Resource,47

considered definitions of wāhi tapu and other sites of cultural and historic significance to

Māori. Coincidentally, during the course of those hearings, which were publicly notified,

Haumoana White, who gave evidence in support of the present Applicants, also underscored

the importance of the land that is the subject of the present applications. In his evidence Mr

White referred to the various events and incidents involving, amongst others, the Taranaki

Regional Council and Maui. The Taranaki Regional Council provided evidence and

submissions in response while counsel for Maui filed material in reply to the evidence and

submissions of Mr White.

[114] More importantly, the Tribunal made various findings and observations concerning

the nature of wāhi tapu:48

In his evidence to the Tribunal in 2000, claimant witness Thomas Ngātai gave a detailed list

of places which he considered wāhi tapu. Many of them fall under the restriction category of

tapu, and these included ruku kai, which is an activity, puke, rākau, tauranga waka, whare tū

tahanga, wai paru, paru kōkōwai, mahinga kai, whakaparu, pū harakeke, pū pīngao, pū

kiekie, pū rākau, pū oneone, takutai moana and kōhatu. The rest fell under the intrinsic tapu;

that is, they come with an inherent sacredness. However, all were wāhi tapu. Hence, wāhi

tapu is any place that is described as being of historical and cultural significance. The

operative concepts are wāhi (place) and tapu (sacred). Under these concepts, urupā or burial

grounds come to mind immediately. These burial grounds may come in the form of

traditional cemeteries, where a piece of ground has been set aside, fenced off, or surrounded

by a deep ditch, thus denoting it as a wāhi tapu. Some wāhi tapu, are extremely tapu, such as

the famous Opihi, across the Whakatāne River from the township. Many famous rangatira

47

Ibid 48

Ibid, at p 33

274 Aotea MB 83

are buried at Opihi, and the intensity of the site is marked by the saying ‗Opihi whanaunga

kore‘ (Opihi of no relatives, or Opihi without peer).

[115] In the context of the purposes of the proposed Māori reservations Mrs Gibbs refers

to the land being wāhi tapu. While I accept that both the Applicants and Nga Hapū o

Poutama maintain this view, in strict terms, taking into account section 338(1)(a) and (b) of

the Act, it would appear that land can be set aside either as a Māori reservation or as a wāhi

tapu but not both. That could only occur where separate applications concerning different

blocks of land were filed.

What is the size of the proposed reservation and its relevance to the statutory tests?

Applicants’ case

[116] Mr Armstrong argued that the size of the proposed reservation does not preclude its

approval. The Court must look at whether the purpose of the reservation justifies the area.

There are many examples of large Māori reservations. In the Mount Tauhara49

decision the

reservation was set aside over the mountain, which is significantly larger than the

Applicants‘ proposed reservation. There were also other examples that confirm that

reservations over large areas are not uncommon.

[117] Moreover, counsel contended that there is nothing in the Act that restricts the size of

a reservation or provides that it must be only for the benefit of hapū and iwi. The Act is

intentionally open to encapsulate any group. The preamble to the Act focuses on “owner,

whānau, hapū” and not iwi. These are smaller tangible groups. The Act makes numerous

references to immediate whānau.

Ngäti Tama’s submissions

[118] Ms Poutu contended that the proposed size of the Māori reservation is unusually

large and, almost invariably, the larger the reservation the wider the beneficiary class. More

importantly counsel stressed that the operation of a farm on a Māori reservation does not

accord with s 338 of the Act and the Māori Reservation Regulations 1994 which place

onerous responsibilities on the trustees which are not flexible enough for the operation of a

farm. Further, it is not clear how the family trust assets and responsibilities will co-exist or

interact with the separate trusteeship of the reservation.

49

Ibid

274 Aotea MB 84

Discussion

[119] As foreshadowed, the Applicants seek Māori reservation status for all of their land,

227 hectares. Their contention was that the size of the reservation was of secondary

concern. What was more important was its nature and purpose. Mr Armstrong addressed

this in his submissions:50

...That takes us to the next major issue, which is whether the reservation should the

reservation should be granted over such a large area. As you raised, most reservations are

restricted to a small area but there are clear, and [a] number of, examples where reservations

have been set up over a large area. The Re Mount Tauhara Reservation covers an area of

over 1,000 hectares. There are obviously significantly larger.

[120] In an exchange with counsel I pointed out that the larger reservations are without

doubt the exception. Moreover, there is no comparison to large mountain, bush or lake

reservations that hold special significance to numerous hapū and iwi who have had hundreds

of years of customary connection to the land when compared to an individual whānau and

their supporters.51

Mr Armstrong went on to further argue that the real issue for the Court to

consider is the purpose of the reservation, not necessarily its size. He also contended that

with larger areas of land, some would be subject to commercial arrangements including

leasing, farming and related activities. Counsel also submitted that the small number of

Māori reservations of significant size reflected reluctance on the part of owners to have large

areas set aside as Māori reservations. No authorities were cited in support of this claim.

[121] When questioned Haumoana White acknowledged that he could not think of any

Mäori reservations within Ngäti Maniapoto that were of the size now proposed in the present

applications.52

That could be viewed as a telling remark in the context of the area of land

sought to be covered with the Mäori reservation overlay in this case. This again highlights

the extraordinary nature of the present applications and how they fall outside of the usual run

of cases. In his evidence Mr White stated that the notion of severing and setting aside land

for marae and urupā was likely to be as a consequence of exposure to Christianity.

[122] In any event, I consider the size of the proposed reservation a relevant consideration,

along with the purposes and a range of other matters. The difficulty here is that there is

insufficient evidence to confirm that the special status of a Mäori reservation overlay should

apply to the entire 227 hectares. I accept that, during the site inspection, Mr White pointed

50

230 Aotea MB 154 (230 AOT 154) 51

Ibid 52

Ibid, at 142

274 Aotea MB 85

out a number of important areas that quite properly should be deserving of the overlay of a

Mäori reservation for the purposes set out in s338 of the Act. That said, the evidence of past

association and current day use of the land suggests that, while certain sites are appropriate

for the reservation to be granted over, the same cannot be said for the entire 227 hectares.

[123] At the risk of belabouring the point, Mäori reservations are special. They apply to

less than 20% of Mäori land titles. They have their own set of regulations that do not apply

to trusts constituted under Part 12 of the Act. Any application for the grant of a Mäori

reservation overlay must accordingly be assessed very carefully.

Making the land inalienable

[124] Counsel and the Applicants have argued consistently that their aim is to live

―holistically‖ on the land in ―te ao Māori.‖ Counsel also submitted that one of the reasons

for seeking Māori reservation status was to make use of the inalienability provisions to

ensure the land would not be sold.53

However, I put it to counsel that if a Māori reservation

were created, it could also be cancelled at any time. All that would be required was for the

beneficiaries of the reservation to meet and discuss the proposal and that there should be

sufficiency of support for any proposed cancellation.

[125] Equally importantly, when I put it to counsel that, if as claimed, the Applicants‘

principal concern was to protect the land from sale by use of the inalienability provisions of

s 338(12) of the Act, then an added protection would be to have the status of the land

changed from General land to Māori freehold land:54

Mr Armstrong: By seeking to have it put into a Māori reservation, which obviously brings

forth the inalienable provisions.

Court: The reservation could be cancelled at any time.

Mr Armstrong: It can, Sir. Although, as I understand it, from the Mount Tauhara case, in

doing that the Court has to look back at the original intentions of having it set apart. Those

factors of the original owners have to be considered and whether the current owners are

justified in doing so, which is part of the ongoing legacy that they want to leave.

Court: What I am saying to you is that a reservation could be granted today and the present

Applicants could in one, two, three, four, five years time, apply to have it cancelled for it to

be sold.

53

Ibid, at 154 54

Ibid, at 154

274 Aotea MB 86

Mr Armstrong: They could, Sir. In saying that there is no guarantee that their application

would be granted. It is just one of the points, Sir, that their motives aren‘t commercially

orientated.

Court: No, what you were saying was that the Māori reservation will restrict the ability of

the beneficiaries to alienate it. I put to you that is not strictly correct. An application for it to

be cancelled could be made at any time. If this issue of inalienability was to be pursued

further would it not strengthen that concept by changing the status of the land to Māori

freehold land and having a Māori reservation over the top. I am just putting the proposition.

Mr Armstrong: One thing, Sir, if it was sought to cancel the reservation in order to sell,

which I will come to, that was one of the reasons why Judge Durie refused the application in

the Mount Tauhara case. What they sort [sic] to do there, they were granting a 21 year lease

to TVNZ or the broadcasting council who were going to erect their mast on there. The

provisions under the Act, of course, made it inalienable, although there could be lease of 14

years. They couldn‘t under the current regime grant the lease so what they sought to do was

cancel the reservation, grant the lease and then set up the reservation anew over the block,

because a reservation didn‘t effect an existing lease. They saw that as a way that they could

get the lease in place and raise money that they were going to use for local tribal marae.

Judge Durie found in that decision that was an application specifically designed to thwart the

inalienable provisions of a Māori reservation. Based on that it was refused. Certainly the

ability is there, Sir. In my submission, based on that decision if that was the purpose for

seeking to cancel the reservation it would be very difficult to persuade the Court to do so.

[126] If safeguarding the land for future generations is paramount then a reversion to

Mäori land status with a reservation overlay would certainly provide the owners and

beneficiaries with a significant set of protections against any future efforts at alienation of

the land. Ultimately that is a decision for the Applicants.

Do the Applicants have a traditional customary connection to the land?

Submissions for the Applicants

[127] Both counsel for the Applicants have consistently submitted that the fact that the

Applicants are not ―1840‖ tangata whenua, or Mäori exercising mana over the land at the

time of colonisation, does not raise the threshold that must be met for the application to

succeed. The legislation specifically provides for Māori in a wide range of circumstances

and therefore the application should be considered in the normal way.

[128] Counsel for the Applicants submitted that s338 (3) of the Act is clear that a Māori

reservation can be set apart for the benefit of the owners or of Māori of any class. There is

no restriction that reservations are set apart only for 1840 tangata whenua. The Act

specifically contemplates that Māori reservations can be set apart for those outside the 1840

tangata whenua category as long as they are owners of the land or are Māori. The

Applicants, between them, are both, counsel submitted.

274 Aotea MB 87

[129] Mr Amstrong then contended that the Applicants do not need to show special

circumstances as set out in Section 4C1 Block II Tuatini Township55

to justify the land being

set apart as a Māori reservation. That decision stated that Māori reservations are generally

held for the whānau, hapū or tribe traditionally associated with it and very special

circumstances must exist before a Māori reservation should be set aside for the common use

and benefit of other groups.

[130] This principle, counsel noted, was first set down in Re Mount Tauhara Māori

Reservation.56

In that decision Judge Durie was referring to quite a specific issue. He was

saying in normal cases the class of beneficiaries of a reservation does not need to be

expanded to the public at large. Counsel argued that it is quite clear that the legislation is

specifically framed to embrace the needs of Māori people generally.

Ngäti Tama’s submissions

[131] As foreshadowed, Ngäti Tama opposes the applications. They do not accept that the

Applicants are tangata whenua. It was argued that they do not have a customary connection

to the land. Consequently they cannot see how the applications can succeed.

Discussion

Tūhoe customary connections to the land

[132] Mrs Gibbs refers in her evidence to belonging to the original tangata whenua who

welcomed the waka migration. She refers back to the pre-migration people who inhabited

these islands according to Māori tradition long before the arrival of the waka. Indeed, Māori

mythology records the procreation of humanity commencing with the children of Ranginui

and Papatuanuku.57

Despite what Mrs Gibbs asserts, she has identified herself as being a

person of Ngai Tūhoe descent. While in recent times the Waitangi Tribunal has also

recorded voluminous evidence from tribal witnesses in its Te Urewera inquiry which also

underscores the antiquity of Tūhoe whakapapa to many ancestors that pre-date the

migration, the short point is that Ngāti Tama and hapū affiliating with Ngāti Maniapoto have

been tangata whenua of the area in question for generations over several hundred years.58

55

(2002) 151 Gisborne MB 251 (151 GIS 251) 56

(1977) 58 Taupō MB 168 (58 TPO 168) 57

The Report on the Management of the Petroleum Resource para 2.2-2.2.3 58

Waitangi Tribunal Te Urewera (2009) Legislation Direct, Wellington p20-47

274 Aotea MB 88

The Waitangi Tribunal has recognised this reality in the north Taranaki-Mokau district

without reference to the Mātaatua iwi.

[133] It is well known that territorial authorities in their years of dealings with Mäori of

this district acknowledge the relevant tangata whenua in terms of iwi. More importantly, it

is common knowledge that the neighbouring tribes have also through their years of

interaction have affirmed the status of these two groups Ngäti Tama and the Ngäti

Maniapoto/Tainui aligned hapū. Te Puni Kōkiri on their website and the page entitled Te

Kāhui Māngai acknowledge the overlap and claims of Ngāti Tama and hapū affiliating with

Ngāti Maniapoto as tangata whenua to the area relevant to the present applications.59

[134] In this context, the other point to consider is that those iwi, like all other tribes in

Aotearoa can also connect themselves back to the original ancestors and their descendents.

This is commonly understood whether it be to Toi Te Huatahi and Te Tini o Toi, Te Tini o

Awa, Maruiwi, Te Hapuoneone, Nga Marama and a host of other ancient pre-migration

peoples. The utility of whakapapa provides for infinite connections between tribes.

[135] For the application to succeed as currently framed and encompassing such a large

area and for the purposes stated the Applicants would usually need to have the land set aside

as a Māori reservation on behalf of Nga Hapū o Poutama/Ngāti Waiora/Maniapoto or Ngāti

Tama or both. They are the iwi and hapū associated with the land in accordance with

tikanga Māori, not Tūhoe from whom Mrs Gibbs descends. Despite assertions to the

contrary, there is insufficient evidence before the Court to confirm a Tūhoe connection with

the land in a customary context to justify the creation of a Māori reservation for the benefit

of any individuals, whānau or hapū of that tribe. The real point is that the Applicants cannot

rely on the traditions and history of either of the tribes who are traditional tangata whenua to

this area in order to create a Māori reservation of such size and for such purposes

exclusively in their own favour when they do not whakapapa to those tribes.

[136] For example, Ngāti Tama could not succeed in attempting to create a Māori

reservation over, say, Ngā Rauru land even though the subject land was now owned by Ngāti

Tama – in other words land to which they have no direct and relevant historic or cultural

connection. Ngāti Tama would have to demonstrate a relevant link to the land in a

customary context to justify a claim for Māori reservation status. The only exception might

be where one of the tangata whenua tribes gave their consent for the Applicants to act as

59

http://www.tkm.govt.nz/map

274 Aotea MB 89

kaitiaki or custodians of those traditions and customs on behalf of those iwi and hapū. One

could see for example a situation where philanthropic present day owners of former tribal

land accept its importance to tangata whenua by agreeing to have their private land set aside

on their own terms or even as a Māori reservation for the benefit of either local hapū, or for

the people of New Zealand using s340 of the Act.

[137] In the Tuatini case referred to previously, an issue arose as to which were the hapū

relevant to the proposed Māori reservations of the Ngāti Porou tribe in that case. Questions

had been raised during those proceedings as to whether or not the hapū for whom the land

was to be set aside were in fact the relevant hapū associated with the land. This underscores

the importance of the customary association and link to the land through whakapapa in

accordance with tikanga Mäori.

Land gifted between iwi

[138] Another example in the context of customary connection to the land is where tribes

have gifted land, usually for a specific purpose, to others. According to the Court‘s records,

in the early twentieth century Te Ārawa hapū gifted land to the iwi of Mātaatua to enable

those tribes to have a place of rest and refuge in Rotorua and for use of the geothermal

springs for medicinal purposes. Ironically, Mrs Gibbs‘ own iwi, Tūhoe, have used such land

to build a marae in Rotorua, Mātaatua.60

The beneficiaries of that Māori reservation are the

Tūhoe tribe.61

[139] Te Ārawa also gifted land in this manner to Ngāti Awa in 1911 for camping

purposes, Section 1 Block LXXI.62

The land was eventually vested in the Ngäti Awa Māori

Executive Committee on 16 December 1980 and is set aside as a reserve for the benefit of

the Ngäti Awa tribe. The current trustee is Te Rūnanga o Ngäti Awa. Both of these iwi of

the Mātaatua waka are thus owners of Māori land in a rohe that is not their own. As

foreshadowed, it is undisputable that the tangata whenua tribes of the district are Te Ārawa.

60

Section 10, Block LI, Town of Rotorua was originally set aside for the Tūhoe tribe: NZG (1901)

p779. However this section was swapped for Sections 2 and 3 of Block LVII. Trustees were

appointed on 6 December 1927 namely Te Kapo Meketärana, Te Amo Kokouri, Taiwera Kairapu

and Te Hinga Täwhio: 79 Rotorua MB 100 (79 ROT 100). A marae had existed on the site since

1924. 61

(1962) 118 Rotorua MB 278 (118 ROT 278) 62

Rose DB 2693 (MA 15/13/67 Pt 1). Trustees were also nominated namely Te Hurinui Apanui,

Matutaera Hätua, Taake Tunui, Waata Rangikotua, Pouawha Meihana and Tiaki Rewiri.

274 Aotea MB 90

[140] It is common knowledge that Ngāti Awa also have a marae outside of their rohe

called Mātaatua in Mängere, South Auckland. Yet this marae operates within the tribal

domain of the Waikato iwi and with their consent. At no time would it be consistent with

tikanga Māori for Ngāti Awa to claim tangata whenua status in Mängere and seek Māori

reservation status without the approval of iwi.63

[141] It would be inconceivable for any of the Mātaatua iwi gifted land by their Te Ārawa

whanaunga in this way to assert a claim to tangata whenua status in a customary or

contemporary sense over any part of Rotorua. Save for the area provided by way of gift and

subsequently afforded a Māori reservation overlay, in a customary context, those iwi

provided with land remain under the traditional authority of the tangata whenua, Te Ārawa.

They would have no more right to be consulted in a resource consent context than the

general public or as a private landowner.

[142] The more important point is that the creation of a Māori reservation in favour of

Tūhoe iwi in Rotorua has still been achieved with the approval and support of tangata

whenua, who gifted the land to Tūhoe and Ngäti Awa in the first place. Taking into account

the fundamental principles of tikanga Māori concerning the concepts of tangata whenua and

ahi kaa, if Tūhoe or Ngäti Awa purchased land in Te Ārawa rohe and then sought to create a

Māori reservation for their exclusive benefit it is doubtful that Te Ārawa would do anything

other than oppose such an application.

[143] A further example, although not entirely comparable, is where educational facilities

at both secondary and tertiary level establish wharenui and functioning marae. However,

even in those examples the institutions will invariably defer to tangata whenua on matters of

tikanga and ensure that the customs and traditions of the host tribes are appropriately

recognised. This is often done by the naming of the marae and tipuna within the wharenui in

accordance with the traditions of tangata whenua. Once again, it would be surprising for

such institutions to persist with the creation of a marae or building of a wharenui in the face

of opposition from tangata whenua. More importantly it would be unusual for educational

bodies with marae to seek Māori reservation status.

[144] In any case, having carefully considered the evidence and submissions, my overall

conclusion is that the Applicants do not possess a customary connection to the land in terms

63

Ngäti Porou also have a marae in Wellington, a city well outside of their traditional rohe: 230

Aotea MB 162 (230 AOT 162)

274 Aotea MB 91

of tikanga Mäori sufficient to justify their claims to tangata whenua status to support the

applications for the creation of a large Mäori reservation for the benefit of a limited

beneficiary class.

Beneficiaries to be limited to the Gibbs’ whänau

[145] As I understand the applications, the beneficiaries of the proposed reservations will

be the owners of the land, the Gibbs‘ whänau and that this may include more than their

immediate family. While the Gibbs‘ whānau may invite Nga Hapū o Poutama to enjoy the

Māori reservation from time to time, if granted, there is no requirement that they do so. If

the application were granted as currently framed the beneficiaries would have the sole ability

to appoint trustees. If those beneficiaries are limited to the Gibbs‘ whānau then in effect

they will control who has right of access to the Māori reservation.

[146] Over time they may refuse access to tangata whenua. While that prospect may at

present seem remote, it is nonetheless a possibility. If tangata whenua are not included as

beneficiaries of the Māori reservation, then they will have no remedy in this Court. I cannot

see how it is consistent with the tenor of section 338 – Māori reservations for communal

purposes – that the beneficiary class for so wide an area in the present circumstances is

limited to the Gibbs‘ whānau.

[147] In summary, my conclusion is that for the creation of a Māori reservation for the

purposes claimed and to cover such a large area of land where the beneficiaries are limited

to the Gibbs family, the lack of a traditional customary connection to the land is fatal to the

application as it is currently framed. Māori reservations are special. They serve a unique

purpose. They have been granted for well over a century over relatively limited areas of

land, apart from a small number of tribal exceptions, to protect particular Māori interests and

values according to tikanga Māori. Central to those interests is whakapapa to the land in a

Māori sense. It is through that whakapapa that the customary connection is anchored. It is

over many generations of Māori being born, then living and dying on the land, and through

all of the events in between, that the crucial historical connection to the land is established to

create the status of tangata whenua.

[148] One obvious remedy for the Applicants would be for the beneficiaries of the

reservation to include tangata whenua, Ngāti Tama or Nga Hapū o Poutama or both. It

would be easy to appreciate the Gibbs‘ opposition to such a proposal given that they are the

owners of the land. Yet without a historical connection to the land in a Māori context, I do

274 Aotea MB 92

not see how the present applications satisfy the statutory requirements of the Act. That Mr

Gibbs family have owned the land for generations is acknowledged. But that fact does not

then make that non-Māori family - Mr Gibbs and his siblings, their parent and grandparents -

―tangata whenua‖ as that phrase is commonly understood and applied. It is the marriage of

Mr Gibbs to Parani Gibbs that adds the essential Māori element for any claim of tangata

whenua status, in the context of an application to create a Māori reservation, to have

currency.

[149] Another possibility would be for the area sought for inclusion to be confined to

particular locations of proven historic and customary significance to tangata whenua. That

possibility has been referred to previously even though I acknowledge the Applicants‘

reluctance to countenance separate titles. There is of course no requirement that the creation

of discrete Mäori reservations over the land means separate titles are necessary.

The Gibbs whänau urupā

[150] I distinguish this case from the creation of the urupā in 2004. That was for a small

and discreet area that did not rely on the customs or traditions of others to support its

establishment. Moreover, as foreshadowed, the application was notified in the national and

Aotea district Māori Land Court panui in the usual way and there was no opposition to its

creation. Indeed, I understand that there was general support from tangata whenua for the

urupā. In any case, it has been gazetted for approximately seven years and no steps have

been taken to seek a rehearing, appeal or a judicial review during that intervening period.

[151] The critical point is that the creation of this small whānau urupā was not opposed

and did not rely on the historical traditions of Ngāti Tama or Nga Hapū o Poutama for its

creation. It did not seek to protect particular sites of significance, historical interest or for

scenic purposes for example, but instead was premised on a basic proposition. Mrs Gibbs‘

father was terminally ill and wished to be buried on the land.

[152] That is a very different situation to the present applications which must inevitably

rely almost entirely on the traditions of Ngā Hapū o Poutama and Ngāti Tama. As this Court

has held, only in very special circumstances will a Māori reservation be set aside for anyone

other than the whānau, hapū, and iwi traditionally associated with that particular land.

[153] In this context, I acknowledge Mrs Gibbs‘ earlier assertions that Ngāti Tama were

not involved with, and by implication, are not tangata whenua of the land covered by the

274 Aotea MB 93

present applications.64

That position is contrary to the evidence. As I pointed out, the

Waitangi Tribunal both in its Taranaki and subsequent Ngāti Tama Claims Settlement

Report both conclude that the area north of the confiscation line is subject to claim by both

the Taranaki and Tainui related tribes. Accordingly, this contention of Mrs Gibbs is not

sustainable.

[154] For completeness, I note it is said that part of the land remains subject to a mortgage.

Section 338(6) of the Act states that any land subject to a mortgage cannot have the status of

a Mäori reservation until the mortgage it discharged.

Conclusion

[155] The Applicants have repeated continually through these proceedings that they wish

―to live in te ao Māori‖. Doubtless they have done so since they made that decision before

these proceedings commenced. There is nothing to stop them from continuing to do so with

or without Māori reservation status over their entire 277 hectare General land farm.

[156] Supported by Nga Hapū o Poutama, the Gibbs wish to protect their land because of

its important cultural and historic values. Having visited the site and listened to the evidence

of Haumoana White that desire is easy to understand. I have no doubt that it is entirely

appropriate for specific sites including Te Rua Taniwha to be protected using a Māori

reservation overlay. The several specific sites referred to by Mr White in the hills

overlooking the flat areas of the Gibbs‘ property were also replete with history and doubtless

would also be deserving of the reservation overlay. As Mr White submitted, the Court

should protect Mäori land. A further layer of protection would be to change the status of the

land from General to Mäori freehold but that is a decision for the Applicants.

[157] While the Applicants and their supporters have expressed opposition to the notion of

separate titles and severances for a series of Māori reservations, the concept is not

uncommon. Indeed, it is often the orthodox and conventional approach. The wharenui

might also be included. But for the reasons given I do not accept that the entire General land

farm owned by the Gibbs Family Trust can properly be subject to the very special status that

a Māori reservation overlay provides.

64

195 Aotea MB 259 (195 AOT 259)

274 Aotea MB 94

[158] There is simply insufficient evidence before the Court to satisfy the statutory criteria

for the grant of a Māori reservation over the entire area of 227 hectares as sought by the

Applicants. Equally importantly, Māori communal purposes as referred to in section 338 of

the Act for such a large area requires a community of interests to be the beneficiaries of the

Māori reservation beyond the Gibbs immediate whānau. As Mr Taylor acknowledged,

while in time the family will no doubt expand into a hapū this is a whänau based

application.65

Mr Gibbs also referred to the applications as being whänau based.66

While I

acknowledge that it is said the extended Gibbs whānau and their in-laws will also benefit

from the Māori reservation status, that is a very different scenario to the beneficiaries being

primarily based around hapū.

[159] That is not to say that every application for a Māori reservation must be anchored in

communal purposes for hapū. Rather, that the beneficiaries for whom ―communal purposes‖

must be relevant in the present circumstances, given the size of the proposed reservation, its

purposes and the lack of historic connection to the land in a Māori customary context, means

something more than a family.

Decision

[160] The applications are dismissed.

[161] Counsel for the First and Second Respondents may file memoranda in respect of

costs within 14 days from the date of this decision. Following that counsel for the

Applicants will have 14 days to respond.

Pronounced at 1.00 pm in Taumaranui on Wednesday the 26th day of October 2011

L R Harvey

JUDGE

65

202 Aotea MB 93 (202 AOT 93) 66

Ibid, 96-97