IN THE MAoRI LAND COURT OF NEW ZEALAND AOTEA DISTRICT …€¦ · IN THE MAoRI LAND COURT OF NEW ZEALAND AOTEA DISTRICT Hearing: Present: IN THE MATTER IN THE MATTER IN THE MATTER

Minute Book: 123 AOT 159

IN THE MAoRI LAND COURT OF NEW ZEALAND AOTEA DISTRICT

Hearing:

Present:

IN THE MATTER

IN THE MATTER

IN THE MATTER

IN THE MATTER

30 October 2002

of an application by ANDREA WARDWILLIAMS pursuant to regulation 21 of the Maori Reservation Regulations 1994 seeking an inquiry into the administration of Ngati Tanewai 6A section 5 (A 19990006081) First Applicant

of an application by AROHA HOUSTON and Others pursuant to section 240 of Te Ture Whenua Maori Act 1993 seeking the Removal of certain trustees to Ngati Tanewai 6A section 5 (A 19990012572) Second Applicant

of an application by SPENCER TE WAEMURA CARR and Others pursuant to section 79 of Te Ture Whenua Maori Act 1993 for Security for Costs (A20000053091) Third Applicant

of an application by WILLY RANGIWHAIAO HEPI and Others pursuant to sections 239 and 338 of Te Ture Whenua Maori Act 1993 seeking the Appointment of Trustees to Ngati Tanewai 6A section 5 (A20000055514) Fourth Applicant

P J Radich, K L Rikihana, counsel for Third and Fourth Applicants

A Ward-Williams, A Houston, A Bublitz, W Stephens, First and Second Applicants

Judgement: 24 January 2003

RESERVED JUDGMENT OF JUDGE L R HARVEY

Solicitors: Bell Gully, Wellington


"The marae is probably the single most enduring institution within Maoridom. In cases where the language has been weakened the marae continues. In cities marae have been created and flourished. Interestingly new tribes have not been formed. The functioning of the marae can be seen as the expression of authority through customary practices. "

In the matter of Tararua District Council (1995) 138 Napier MB 89

INTRODUCTION

The Applications

Four applications are currently before the Court concerning Ngati Tanewai 6A section 5 (lithe Reservation"):

(a) A19990006081 - (lithe Investigation Application") - filed on 2 June 1999 by Andrea Ward-Williams pursuant to regulation 21 of the Maori Reservations Regulations 1994 (lithe Reservations Regulations") seeking an inquiry into the administration of the Reservation;

(b) A19990012572 - (lithe Removal Application") - filed on 18 January 2000 pursuant to section 240 of Te Ture Whenua Maori Act 1993 (lithe Act") by Aroha Houston, Andrea Ward-Williams, Rita Bublitz and Waveney Stephens seeking the removal of Spencer Carr and Willie Hepi as trustees of the Reservation;

(c) A2000053091 - (lithe Security for Costs Application") - filed on 2 May 2000 pursuant to section 79(4) of the Act by counsel for Spencer Carr and Willie Hepi, for security for costs against Aroha Houston, Andrea Ward-Williams, Rita Bublitz and Waveney Stephens in respect of the Removal Application;

(d) A20000055514 - (lithe Appointment Application") - filed 9 August 2000 by the current trustees of Wharepuni Marae (but excluding Aroha Houston and Rita Bublitz) pursuant to sections 239 and 338(7) of the Act for the appointment of all existing trustees to the Reservation with the exception of Aroha Houston and Rita Bublitz.

Procedure

A hearing was held on 30 October 2002 at Hawera where all parties and their supporters were present. The Hawera District Courtroom was filled to capacity. Counsel, Mr Radich and Ms Rikihana, represented Mr Hepi and a majority of the current trustees. The applicants in the Investigation and Removal applications represented themselves. Following the hearing leave was reserved for any party to file further submissions by 30 November 2002 on any of the applications before the Court. This was because not everyone had been served with some of the documents that were filed at the hearing. Mrs Ward-Williams, Ms Stephens and Mrs Houston availed themselves of that opportunity by filing further submissions on 12 and 25 November and 3 and 5 December 2002. Two of the submissions were thus received out of time, but have been accepted by the Court for consideration. During the hearing, additional documents were requested from counsel and they have now


been filed. Those documents included minutes, draft minutes, audited accounts and correspondence. In this decision the Appointment application is considered first, followed by the Investigation, Removal and Security for costs applications. The issue of costs is dealt with at the end.

BACKGROUND

Ngati Ruanui and Tangahoe

These matters have arisen against the background of ongoing Treaty settlement negotiations between Ngati Ruanui and the Crown. The issues, unresolved or otherwise, as between Ngati Ruanui on the one hand and Tangahoe and Pakakohe on the other have clearly had an impact on the state of relationships between the parties. The documents filed in these proceedings disclosed serious allegations of trustee impropriety and a long running dispute that appears to have preoccupied all concerned since at least 1997. They also revealed the attempts by some to relitigate issues of mandate and iwi affiliation that have been disposed of by both the Waitangi Tribunal and the High Court. Applications concerning the administration of Maori reservations are not an appropriate way to deal with concerns surrounding representation, mandate and settlement negotiations (see for example Re Matata 860- Umutahi Marae (1996) 3 Rotorua CMB 16-27). There are other remedies available that, as mentioned, have been availed of recently. Those Treaty settlement matters have not had any bearing on this decision where the principal issues for determination are twofold: first, to ensure that the election for the marae trustees was undertaken in strict accordance with the directions of His Honour Deputy Chief Judge Isaac. Secondly, that the Reservation has been administered in accordance with the Act and the Reservations Regulations.

The Reservation

By Order in Council dated 27 June 1962 pursuant to section 439 of the Maori Affairs Act 1953, a Maori Reservation was created over Ngati Tanewai 6A, comprising some two acres. According to the order, the land was set aside for the benefit of the members of Ngati Tupaia and Ngati Tanewai. There is no mention in these orders of either Ngati Ruanui or Tangahoe. 19 trustees were then appointed in 1974, at 80 Taranaki MB 172 - 173. The order vesting the Reservation in trustees states that the beneficiaries to the Reservation are Ngati Tupaia and Ngati Tanewai and again, there is no reference to Ngati Ruanui and Tangahoe. Then on 10 September 1981, additional trustees were appointed in substitution for deceased trustees, at 84 Taranaki MB 349 - 350. The total number of trustees was then raised to 20, an increase of one from the 19 appointed in 1974. Following that, on 8 August 1989, further additions and substitutions occurred bringing the total number of trustees to 22, at 9 Aotea MB 92.

Then on 2 May 1990, even more trustees were appointed to bring the total number to 24. Significant change in the trusteeship occurred on 6 June 1997 where some 13 trustees were replaced as they were either deceased or had failed to attend properly constituted meetings of the Reservation, at 73 Aotea MB 184 - 185. On that occasion, the total number of trustees was reduced to 11. Then in that same year, on 3 December 1997, two more trustees were appointed to bring the total number to thirteen, at 80 Aotea MB 26 - 45. Those thirteen persons are Ngakorowai Thomas Jonathan Rawiri, Matekitawhiti Carr, Te Waemura Spencer Carr, Mereana


Broughton, Rangiwhaiao Willie Hepi, Rita Bublitz, Robert Hikaka, Betty Houston, Norma Ordish, Sandra Bates, Patrick Hinga, Marlene Mauriri and Ngaio Josephine Tairawhiti who are the current trustees of the Reservation ("the Current Trustees"). However, Mereana Broughton passed away last year, which left 12 Current Trustees. For the avoidance of doubt, the definition "Current Trustees" means a majority of those trustees.

Four points emerge from a review of these orders. First, regarding the beneficiaries of the Reservation, the Court's record of formal orders appears to be silent on any reference to Ngati Ruanui or Tangahoe. As is common with Maori Reservations set aside for marae, the focus in terms of beneficiaries has been on the hapu, namely Ngati Tupaia and Ngati Tanewai. Secondly, there does not appear to have been any restriction on the number of trustees appointed to the Reservation by either the Court or the beneficiaries. The number of trustees has ranged from 11 to 24, although the practicality of appointing 24 appears to have resulted in the wholesale removal of 13 trustees at one time. Thirdly, many of the original trustees have survived to the present, over a period of almost thirty years, without any apparent concern over their right to stand for the office of trustee on account of their whakapapa. Challenges to the hapu affiliation of the trustees need to be considered, inter alia, in light of that fact. Fourthly, the Reservations Regulations, until their recent amendment, required an election of trustees for the Reservation by the end of 2000, being the year of the third annual general meeting since the appointment of the Current Trustees.

Previous hearings of the Applications

In summary, all four applications were in effect considered separately (but as part of a single connected proceeding) and subsequently adjourned, pending results from an election of the beneficiaries to the Reservation. That election was directed by His Honour Judge Marumaru following a teleconference by way of memorandum dated 22 August 2000. In the face of the four competing applications, Judge Marumaru considered that an election was the best way to deal with the issue of trusteeship over the Reservation. The Current Trustees then conducted a postal ballot, in accordance with "Protocols" or rules they had devised. Following that, on 5 November 2000 an annual general meeting of the Wharepuni Marae reservation beneficiaries was held where a motion was carried declaring the election out of order on the grounds that the Protocols had not been approved by the Court, according to the draft minutes of that hui.

Following the hui, the applications then came before Judge Marumaru in chambers on 21 September 2001 at 108 Aotea MB 79 - 81. On that occasion, he decided that a variation of the Protocols for the election should have first been referred to the beneficiaries for consideration. As this had not occurred he directed that a fresh election be held under the Court's guidance. Following that, on 4 October 2001, an application pursuant to sections 44 and 45 of the Act was filed by counsel for certain of the current Reservation trustees seeking cancellation of the order made to call a fresh election and requesting a hearing. Deputy Chief Judge Isaac dismissed that application on 29 October 2001 on the grounds that sections 44 and 45 of the Act relate to corrections of errors in orders and that no final order had been made from which an appeal was possible, at 2001 CJMB 200-202. He then suggested that further directions should be sought setting out a timetable to conclude all applications then extant.


CASE LAW

Maori Reservations

In a decision of 18 April 2002 concerning Section 4C1 Block /I Tuatini Township and others (2002) 151 Gisborne MB 250 - 261, Her Honour Judge Wickliffe undertook a review of earlier decisions of this Court and the Maori Appellate Court concerning Maori Reservations. The principles identified in that judgement included:

(a) the Court must have regard to Maori customary concepts relating to turangawaewae and ancestry in determining beneficiaries of a Maori Reservation. Only in very special circumstances will a Maori Reservation be set aside for anyone other than the whanau, hapu, 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 example, see Re Tauhara Maori Reservation (1977) 58 Taupo MB 168; Re Waipahihi Maori Reservation (1978) 59 Taupo MB 184; and Re Sections 722, 790, 792, 793, 794, Town of Orakei Blocks - Orakei Marae (1990) Appeal 1989/8);

(b) when a Maori Reservation is created over Maori 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 therefrom until the reservation is cancelled: (see Re Mt Tauhara Maori Reservation; Re Rahui A 13 Block (1992) 32 Gisborne MB 370; and Re Ruawahia 2B (1992) 6 Waiariki AMB 52);

(c) Maori were entitled to have recognition of the fact that the land was a Maori Reservation, that it may have some special tribal significance, that Maori usually control it, and that others use it only for as long as they accepted and respected those facts: (see Re Waipahihi Maori Reservation);

(d) all trustees appointed to Maori Reservations by the Court are governed by the rules of trust as other types of trustees. The process of election merely provides evidence of whom those at the meeting supported for nomination to the Court. The Court will then take into account a broad range of factors regarding who shall be appointed as trustees including who the reservation has been set aside for, the characteristics of the proposed trustees and other related matters: (see Re Section 722, 90, 792, 793 and 794 Town of Orakei Blocks - Orakei Marae; and Re Section 1A Parish of Katikati (1995) 18 WMAC 260);

(e) 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: (see Re Section 4C1 Block /I Tuatini Township & other lands (2002) 151 Gisborne MB 250);

(f) 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: (see Re Mt Tauhara Maori Reservation).

All of the above legal principles have particular application in the present case.

Removal of Trustees

Section 237 of the Act confers on the Court all of the powers of the High Court either under its inherent jurisdiction or pursuant to the Trustee Act 1956. Particular jurisdiction to remove a trustee is conferred under section 240 of the Act which provides:

"The Court may at any time, in respect of any trustee of a trust to which this section applies, make and order for the removal of the trustee, if it is satisfied

(a) that the trustee has failed to carry out the duties of a trustee satisfactorily; or

(b) because of lack of competence or prolonged absence, the trustee is or will be incapable of carrying out those duties satisfactorily. "

In an important decision concerning the removal of trustees Re Poripori Farm A Block - Toa Faulkner (1996) 57 Tauranga MB 7, His Honour Judge Carter considered the issue of whether an apparently recalcitrant trustee had failed to carry out his duties satisfactorily. Judge Carter considered that the issue was really a question as to whether when applying section 240, the Court is tied to an assessment of the standard duties of trustees under trust law or, can take a broader view having regard to the special nature of Maori land trusts and the provisions of the Act. He also stated that section 240 requires that a trustee has failed to carry out the duties of a trustee "satisfactorily" and consequently, the prerequisite for removal was not simply failure or neglect of duties, but failure to perform them satisfactorily. Therefore, an assessment of a trustee's performance was essential when applying section 240.

His Honour also noted that there had been considerable comment concerning the difficulty in removing trustees under previous legislation once appointed and contrasted that with the wider provisions of section 240. He considered that, along with those provisions, it was also important, per section 222, that trustees be broadly acceptable to the beneficial owners. Therefore, a wide interpretation of section 240 was necessary (at page 15):

"Under the new Act section 222 provides that a trustee must be broadly acceptable to the beneficiaries. The provisions of section 240 on removal of trustees are much wider than before. In all walks of life people are now required to be accountable and those that serve can readily change their minds and seek to have other representatives. I cannot see that it should be any different in the case of trustees who serve beneficial owners. If that trustee ceases to have the confidence of the beneficial owners then it is time that the trustee should stand down. As beneficial owners strive to have the performance of their Trusts improved there will be more and more calls for trustees to stand aside so that people with more drive or competence can be appointed. The Court believes that it is in the interest of the owners that the provisions of the Act allowing removal of trustees should be widely interpreted and that it should not be regarded as any stigma or loss in mana when a trustee is asked to stand down. "


These principles as identified by Judge Carter are respectfully adopted here.

THE APPOINTMENT APPLICATION

Proposed Election Process

In response to Deputy Chief Judge Isaac's minute, on 11 December 2001 counsel for the Current Trustees submitted a proposal for an election process by way of postal ballot. In summary, a register of beneficiaries for both hapu would be established by the Current Trustees for anyone affiliating to Ngati Tanewai and Ngati Tupaia over 18 years of age. Nominations would be received by the Current Trustees and reviewed by an independent returning officer to ensure compliance with the registration requirements. This process would elect eleven trustees, being those nominees polling the highest number of votes .. An election would be held every three years and considerable public notice would underscore the postal ballot procedure. At a telephone conference of counsel held on 12 April 2002, the proposal was agreed to by all parties present and so was formally approved by the Court. At this point, it is noted that during the hearing held at Hawera on 30 October 2002, Mrs Houston claimed that her then counsel had agreed to the election process contrary to her instructions. Without the benefit of having heard from Mr Hirschfeld, this stance appears to be consistent with correspondence filed by Mrs Houston and Mrs WardWilliams between themselves and their counsel. That claim will be considered later in this judgement. Then on 17 May 2002 Mrs Ward-Williams filed an application pursuant to section 58 of the Act appealing the 12 April 2002 directions issued by Deputy Chief Judge Isaac. His Honour Chief Judge Williams dismissed that appeal on the basis that the Maori Appellate Court has no jurisdiction to hear appeals against interlocutory orders and directions, at 2002 CJMB 264 -265. The postal ballot was thus the procedure by which the election for trustees to the Reservation would be conducted.

Counsel proposed a 3-month timetable for the election, commencing on 21 December 2001 and concluding on 18 March 2002. As the Court did not consider the timetable and voting procedure until April 2002, the timeframe needed to be enlarged. The parties had also agreed to appoint George Lawson of the South Taranaki District Council as Returning Officer and Sam Bishara of Te Puni Kokiri, Wanganui to oversee the process and to chair the general meeting in which the election outcome was to be announced. Peter Anderson, the new returning officer for the South Taranaki District Council, then replaced Mr Lawson who had retired. Counsel then also sought leave to amend the proposed process and in particular, reference to a "special" rather than "annual" general meeting at which Mr Bishara would preside to announce the election results. Those changes were formally approved on 23 April 2002, at 114 Aotea MB 84-85. The timing of advertising for the revised timetable was subsequently delayed because of the competing commitments of those responsible. However, the delay did not appear to materially affect the integrity of the election process.

The Reservation Trustee Elections

On 21 June 2002 the Returning Officer Mr Anderson provided the trustees elect with a report on the outcome of the election. That correspondence has been filed. According to him the results were:

HEPI, Rangiwhaiao Willie CARR, Spencer Waemura KORAU, Margaret Paeone HI KAKA, Robert George HIKAKA-TAIRAWHITI, Ngaio Josephine CARR, Matekitawhiti RAWI RI, Ngakorowai Thomas Jonathon HI NGA, Patrick HIKAKA, Toby Francis CARESWELL-NICHOLAS, Cia SOLE, Gordon McLinton ORDISH, Norma Teaohou RIWAKA-TUTEURUOHO, Parua Tanahoukura


258 236 234 233 230 227 227 212 199 196 187 184 154

The trustees thus elected, being the 11 trustees with the highest number of votes were those persons listed above, with the exception of Norma Ordish and Parua Riwaka-Tuteuruoho ("the New Trustees"). Therefore, 7 of the Current Trustees were re-elected. A special general meeting of the beneficiaries was then held on 12 July 2002 at Wharepuni Marae, chaired by Mr Bishara, who confirmed the outcome of the postal ballot. The minutes of this meeting have been filed and considered along with voluminous and detailed materials filed by counsel setting out evidence of compliance with the directions of Deputy Chief Judge Isaac. That evidence was then formally confirmed by Spencer Carr at Hawera on 30 October last.

Objections to the process and result

Unsurprisingly, the election process produced both certainty in terms of those elected as well as further objections. The essence of those objections focused on the postal ballot and were encapsulated by Mr Te Huirangi Waikerepuru in evidence at Hawera, 123 Aotea MB 140:

" ... 1 would like to respond at a later stage and if it is possible, a follow up hui so that we can respond to how the Judge or Judges will view this evidence because, the ballot system is, under tikanga Maori, an unacceptable system. It prejudices the people, tangata whenua at home. Those who leave the region or move out of your territory and you seek a lifestyle elsewhere, you are entitled to do that. Everyone has the right and entitlement to do that but the responsibility is to be at home. A ballot system prejudices those at home. We are not denying that people who go away, have a right to belong, but there are also responsibilities to that go with that to ensure that their roles are able to be carried out, and hence we continue to challenge the ballot and voting process because of the ability to manipulate and not be in charge in control under tikanga Maori for that process of re-electing. Confirmation can take place in the Court but, the business of securing people to represent the marae trustees is a matter for tangata whenua. "

These sentiments are acknowledged. There is considerable force in the proposition that while beneficiaries to a marae may number several thousand spread across the motu and even further, primary responsibility for its ongoing custodianship rests with the ahi kaa, those at home.


Discussion

The differences between a postal ballot and an election by the beneficiaries in person at a hui are obvious. Neither is necessarily ideal as both have their advantages and flaws. A postal ballot can give those who are not in the district a say out of proportion to their own potential contribution to the daily business of the marae. Once they have departed or cast their ballots, it is the ahi kaa that remain to actually look after the marae. Conversely, denying those who live away any say whatsoever in the election of trustees to what is also their marae will disenfranchise an essential part of the beneficiary community. In any case, as the Maori Appellate Court stated in Re Section 1A Parish of Katikati, elections by and of themselves are not necessarily determinative. After consideration of a range of matters, it is the Court that makes the appointment (at pages 2-3):

"Appointments are made by the Court. Meetings are simply to decide what evidence might be given by this particular group of persons to the Court. In the end it is the Court that affects rights and interests and it is at Court that legitimate expectations exist and the rules of natural justice apply __ _

___ Voting is something of a red herring for the meeting does not decide anything other than what evidence it might put before the Court"

The Current Trustees proposed the postal ballot, and as noted previously, those opposing the Appointment Application claimed their counsel agreed to the postal ballot contrary to instructions. However, Mrs Houston and her group did not take that matter further, apart from the unsuccessful appeal by Mrs Ward-Williams. Indeed, they even attempted to include a nomination in the process and Mrs Ward-Williams also tried, unsuccessfully, to vote without registering. It was subsequently claimed that counsel insisted on their participation in the postal ballot. That is an issue for those individuals and their counsel. In any event, surprisingly, the appeal documents filed on 17 May 2002 made no reference at all to the claim counsel acted contrary to instructions. Crucially, for those opposed to the process, Deputy Chief Judge Isaac had formally approved the postal ballot as the only way that the trustees for this specific election should be chosen. While it is acknowledged that genuine concerns have been expressed that a postal ballot process does not accord with Maori custom, nonetheless the principal determination is that the election process, as it occurred here, was satisfactory. It was clear, robust and transparent and several hundred of the beneficiaries cast votes. By way of comparison, at the 1997 election, 28 persons were present according to evidence provided by the Current Trustees. The postal ballot therefore produced a participation rate almost tenfold the previous election. The advertising was extensive and frequent. Candidates used a detailed and informative nomination form which was then endorsed by two beneficiaries. An independent returning officer was also sensible in the circumstances. It is difficult to imagine a more complete and detailed process for the election of marae trustees that was both comprehensive and thorough. It was arguably so thorough that it almost became excessive.

More importantly, the process complied with the directions of Deputy Chief Judge Isaac. While much was made of the "Ngati Ruanui" register, the Ngati Tanewai and Ngati Tupaia beneficiaries have now voted, following an exhaustive process. The Reservation was set aside for Ngati Tanewai and Ngati Tupaia, no one else, and the Court is satisfied that those two hapu have cast their votes for trustees to their marae. None of the advertising concerning the Postal Ballot Voting Procedure refers


to any iwi or hapO, other than Ngati Tanewai and Ngati Tupaia. That some chose not to participate, until the eleventh and inevitably unsuccessful hour, is unfortunate but is no real answer. It is also evident that the views of both the beneficiaries to the Reservation and the beneficial owners of the underlying freehold have been made clear on this issue of trusteeship. Both sets of views have been taken into account, consistent with the approach in Re Section 4C1 Block /I Tuatini Township & other lands. This contested election process has been a drain on the resources of Ngati Tanewai and Ngati Tupaia in every respect and has impeded the proper administration of the Reservation for too long. It must now come to an end. The result is that, as the directions of Deputy Chief Judge Isaac have been complied with, those elected in accordance with the Postal Ballot Voting Procedure are now appointed trustees for the Reservation for the next three years. Formal orders to that effect are made at the end of this decision.

Future issues for consideration

Of interest in the postal ballot election process was the proposal that the number of the trustees be limited to 11 and that the Chairman and Secretary/Treasurer be elected as part of the ballot. The Act and the Reservation Regulations do not stipulate that the number of trustees be limited to 11. Indeed, as foreshadowed, up to 24 trustees have previously been appointed to this Reservation. Ideally, the marae charter, having been approved by the beneficiaries at a properly constituted general meeting should set out the number of trustees required. However, when the Court approved the terms of the postal ballot, it also confirmed the proposal for only 11 trustees, as set out in paragraphs 7, 11, 12 and 13 of the Postal Ballot Voting Procedure document filed by counsel. 11 was therefore the correct number of trustees to be elected. However, the appropriate number of trustees for the Reservation will ultimately be a matter for the beneficiaries to resolve.

Regarding the executive officer positions, while the Postal Ballot Voting Procedure provided for the election of the Chairman and the Secretary/Treasurer, it is usual for the trustees themselves to make these appointments once the Court has confirmed them in their roles. It is also preferable, following basic principles of good governance, that the role of the Secretary and Treasurer are separated and not held by one person. These are also matters for the trustees and beneficiaries to consider.

A further issue for the beneficiaries' consideration is whether or not the process of postal ballot for the election of marae trustees is to continue. While the process was used on this occasion, that was only because Deputy Chief Judge Isaac had approved this procedure. It was not intended to apply for any further elections. The postal ballot mechanism has been subject to vociferous criticism from those opposing the Current Trustees. Whether or not a return to voting in person at the marae or a retention of the postal ballot occurs is a matter that only the beneficiaries can resolve when they approve the terms of a charter for Wharepuni Marae. For the avoidance of doubt, the Protocols do not constitute a charter and have not been approved by the beneficiaries at a properly constituted hui. Having said that, the beneficiaries may consider, in the absence of any alternative, that the Protocol are a useful starting point for the basis of a charter. The beneficiaries and the New Trustees must work together at a hui (or several hui) to prepare a charter in accordance with the latters' obligations under the Reservations Regulations. Orders to that effect are also made at the end of this decision. If further directions are required, then any party is free to seek guidance from the Court in due course.


THE INVESTIGATION APPLICATION

Regulation 21 (1) of the Reservations Regulations provides the Court with a discretion to conduct or order an inquiry into the administration of a reservation on the application of any beneficiary to that reservation. Regulation 21 (2) provides that the Court will conduct no inquiry unless:

(a) the applicant for such inquiry has filed with the Court a statement, signed by the applicant, containing the detailed grounds upon which the applicant requires the inquiry;

(b) the applicant has given to each trustee a copy of the application made to the Court under sub clause (1) of this Regulation;

(c) either- ij the Court received a written statement, in relation to the application, signed by or on behalf of the trustees; or

iij the Court has dispensed with compliance with sub paragraph i) of this paragraph. (Emphasis added)

Case for the Applicant

The allegations set out in the application refer to transgressions by the Current Trustees including the failure to hold hui, to prepare a charter for the beneficiaries and generally to be accountable. The application included claims that the trustees had not approved accounts for payment correctly and essentially had failed to fulfil their duties. The allegations were not, however, sufficiently serious to warrant an investigation at that stage. Accordingly, Judge Marumaru, when hearing this application on 4 August 1999, did not at that point order an investigation, at 94 Aotea MB 1-24. Equally importantly, having heard various allegations made against the Current Trustees, he also declined a request to remove them. However, he did not formally dismiss the application, as the hearing was terminated due to numerous interruptions, hence its relevance now.

The Applicant was provided with an additional opportunity to articulate her concerns at the hearing held on 30 October last, and that option was exercised. However, no new grounds of complaint emerged from the hearing. As mentioned previously, a further occasion was also given to all parties to file additional submissions regarding any of the applications before the Court by 30 November 2002. The Applicant provided further submissions which have now been considered. At the Court's request, Mr Carr arranged for the filing of annual accounts for the Reservation for the last three years. There was also a suggestion made at the hearing that the Court look into the accounts of bodies other than the Reservation on the grounds that funding for the marae may have come from them. That request is declined as the Investigation and Removal applications only concern the Reservation.

Case for the Current Trustees

Mr Carr, on behalf of the Current Trustees in response, noted that they had prepared a charter in the form of the Protocols which he said had been approved by the trustees themselves and a number of beneficiaries at a trustees' hui and by post. However, in evidence Mr Carr acknowledged that the Protocols may not have been approved by the beneficiaries at a properly constituted hui, 123 Aotea MB 143 - 144. A review of the draft minutes of the annual general meeting held on 5 November 2000 revealed that no such approval was forthcoming. It ought to be remembered that this was precisely the reason for Judge Marumaru ordering a further election. Mr


Carr also stated that hui of trustees, where beneficiaries attended, were also held regularly but acknowledged that annual general meetings as required by the Reservations Regulations had not been held, 123 Aotea MB 130. Mr Carr claimed that the failure to hold hui was due in large part to the litigation before the Court. There were also the contentious proceedings before the Waitangi Tribunal and the High Court, referred to by counsel in his submissions. Despite these omissions, Mr Carr emphasised that the Current Trustees had worked very hard, in difficult and trying circumstances, to achieve considerable progress in developing the marae and its facilities, 123 Aotea MB 128 -129.

Discussion

Following a review of the papers, it was evident that many of the allegations made by the Applicant were wanting. That preliminary view was then confirmed during the hearing. Two examples are sufficient to make the point. First, Mrs Ward-Williams persisted in the suggestion that as Spencer Carr had been involved in the decision to "employ" his brother Geoffrey Carr on marae building projects and as the latter's construction business had subsequently failed, there must have been some untoward or inappropriate activity on the part of Mr Spencer Carr. Mrs Ward-Williams continued to suggest that somehow there had been impropriety on the part of the Carr brothers, 123 Aotea MB 132 - 134. Yet in response to questions posed by the Court, Spencer Carr's explanation was as simple as it was complete: the Current Trustees had engaged Geoffrey Carr because his labour was voluntary. He had cost them nothing, apart from materials, 123 Aotea MB 146. Thus there was no impropriety as had been insinuated and in fact, the Reservation benefited from his free labour. The draft minutes of the annual general meeting of 5 November 2000 record that Mrs Ward-Williams was told of the voluntary nature of the labour provided by Geoffrey Carr. For completeness, it is noted that until those minutes are confirmed as a true and correct record at the forthcoming annual general hui of the Reservation, they remain simply draft.

A second example involved use of the Wharepuni Marae accounts with local suppliers for tribal business. These were trade accounts established by the Current Trustees with local businesses for the day to day administration of the Reservation. They permitted the pledging of credit for goods and services in the name of the marae. A document was produced which demonstrated that the Ngati Ruanui Iwi Authority appeared to be using an account set up in the name of Wharepuni Marae for newspaper advertisements that, strictly speaking, did not concern the marae or the Reservation. It goes without saying that the Reservation accounts should only be used for that body not for any other purpose. While it may have been convenient to do so, it was unwise and should not happen again. It might be argued that this amounted to inappropriate behaviour and even a possible breach of trust. However, as the Reservation accounts of the last three years and earlier confirm, no funds belonging to the Reservation account were used for tribal business. On the contrary, it would appear that the Reservation and Wharepuni Marae in particular benefited from funding obtained through the offices of the tribal authority for various initiatives and projects.

Having then carefully reviewed the application, the annual accounts for the last three years, the material filed by the Applicant and other parties and having heard evidence from both sides, the conclusion reached is that the "detailed grounds" required to trigger the Court's jurisdiction have not been made out. An investigation is therefore not possible. At best the Current Trustees have been less than


exemplary in their reporting to the beneficiaries and have on occasion used a Reservation account with local suppliers for iwi rather than Hapu business. Those actions were unwise and, as mentioned previously, should not be repeated. However, those incidents alone do not justify the investigation sought. It must also be remembered that the delay in reporting has been due in part to the various applications currently before the Court and the protracted proceedings that resulted. Annual accounts have now been filed and examined by the Court. The beneficiaries at the next annual general meeting of the Reservation will consider them in due course. The New Trustees will also need to produce annual reports for the relevant periods. If issues arise from the presentation of those accounts and reports then the beneficiaries can avail themselves of the appropriate remedies, should that be deemed necessary.

The Investigation Application is therefore dismissed.

THE REMOVAL APPLICATION

The present proceedings have also encompassed the Removal Application, filed pursuant to section 240 of the Act. That section provides:

"240. Removal of trustee - The Court may at any time, in respect of any trustee of a trust to which this section applies, make an order for the removal of the trustee, if it is satisfied-(a) That the trustee has failed to carry out the duties of a trustee

satisfactorily; or (b) Because of lack of competence or prolonged absence, the trustee is or

will be incapable of carrying out those duties satisfactorily. "

Case for the Applicant

The application seeks the removal of both Willie Hepi and Spencer Carr from all offices concerning the Reservation and Wharepuni Marae. The application also seeks facilitation by the Court of a hui to appoint new executive officers for the marae and requests that all documents and papers concerning Wharepuni Marae be in effect taken from Current Trustees and deposited with the Court, pending new elections. The grounds for removal included allegations of perjury, intimidation, verbal as well as physical abuse and other forms of improper behaviour. However, it is important to note that Judge Marumaru had already disposed of a number of these allegations in a previous hearing. Their revival in these proceedings needs to be considered in light of that fact.

Case for the Current Trustees

The work of the Current Trustees has been detailed in previous evidence. Amongst all the material provided and evidence adduced perhaps the most succinct articulation was that of Spencer Carr himself, 123 Aotea M B 129:

"The Wharepuni Marae Trustees have worked tirelessly over the past three years to renovate the marae extensively. We have been kaupapa driven, have set ourselves a strategic plan and have renovated and enlarged the meeting house, built a storage room for mattress storage, built a new modern meeting house and kitchen. The renovations were extensive requiring total


electrical rewiring of the building and the roof structures also required massive support work to make them safe as per the building code of compliance requirement. During this time the trustees did these renovations under duress amidst further Court applications and unpleasantness directed towards them. I would like to say that the judgement of the Maori Land Court came when we actually had the roof of the meeting-house off, so we had no roof and we did not know whether we were acting properly.

We boxed on successfully negotiating funding with Lotteries and are now at a point that we can be proud of our work and sure there is more to be done but the marae is now looking wonderful with a much larger working area and modern kitchen facilities. The labour for the building work was beneficiary driven and a donation to the marae. "

The evidence on the developments to Wharepuni Marae and the lead role played by the Current Trustees speaks for itself, as Judge Marumaru recognised previously when declining the earlier request to remove the Current Trustees. In their efforts they have been supported by a significant section of the beneficiaries to this marae, many of whom were present in Court. That some of their beneficiaries, including the applicants here, have concerns about the Current Trustees and their administration of the Reservation is also not in dispute. The task for the Court is to assess the accuracy and strength of these allegations in deciding whether or not to exercise the power of removal set out in section 240 of the Act.

Discussion

As a starting point, whenever allegations of trustee impropriety are made, the Court should always proceed with caution. The stigma of wrongful accusation can remain long after legitimate explanations have faded. Misinformation, rumour and speculation are powerful weapons that can unfairly erode (and even cause incalculable damage to) the best of reputations. That is not to say that there should be the slightest hesitation in taking the most vigorous measures permitted by law against trustees when real abuse, failure and malfeasance are obvious. However, a careful approach requires that the rules of natural justice have been observed, that the appropriate legal thresholds have been reached and that there is no positive defence before any intervention by the Court can be contemplated.

A considerable volume of material has been filed both prior to and following the hearing held on 30 October 2002 in support of this application. Much of that material is historical in nature, frequently repetitive and largely irrelevant to the allegations concerning grounds for removal. For example, there were references to "rebels" and "loyalists" but in more pungent terms. As foreshadowed, when this material is examined it becomes evident that some of the parties appear to be seeking to relitigate issues that have been determined in other courts and tribunals. They also, it would seem, seek to draw this Court into tribal and HapU politics under the cloak of allegations claiming mismanagement of the Reservation and Wharepuni Marae. Those are essentially internal HapU relationship matters for Ngati Tanewai and Ngati Tupaia, not the Court.

That these claims have been made in all sincerity and with genuine conviction cannot be in doubt. That they largely concern matters beyond the scope of an application for removal is also clear. For example, it is obvious that the Current Trustees should have secured the proper resource consents for all marae facilities prior to their


construction. However, equally obvious is the fact that now the territorial authority is by and large content with the quality of those buildings. Even some of the parties opposed to the Current Trustees had to admit that the marae has been improved by the works undertaken to date. In the context of the marae renovations, the Current Trustees could not then be said to be in breach of their duties sufficient to warrant their removal. Then there are the issues of the calling of annual general meetings and preparing a marae charter for approval by the beneficiaries. They should have attended to those tasks as the Reservations Regulations make them mandatory. While the majority of the Current Trustees and at least 60 of the beneficiaries approved the Protocols that had been developed for the Reservation, this could not amount to what is contemplated by regulation 7 of the Reservations Regulations. At the very least, a properly notified hui of the beneficiaries at Wharepuni Marae to discuss ar:'ld then approve the Protocols as the basis for a charter should have been held. This will need to occur at the earliest opportunity.

The question then becomes, are these and other failings on the part of the Current Trustees sufficient to justify the Court's intervention to remove them? As mentioned, a cautious approach is required, one that ensures natural justice is observed, legal thresholds have been met and that there are no positive defences available. When the allegations and evidence are confined to the grounds necessary for removal of a trustee, as set out in section 240 of the Act, regrettably for the Applicant, those grounds are not made out. Taking a complete overview of all the acts and omissions undertaken or otherwise by the Current Trustees for the benefit of Ngati Tanewai and Ngati Tupaia, the conclusion arrived at is that the requirements of section 240 have not been met.

The Removal Application is therefore dismissed.

THE SECURITY FOR COSTS APPLICATION

This application was not pursued with any vigour by counsel. It was not dealt with in subsequent conferences and hearings once filed. It has now been rendered redundant by these proceedings and their eventual disposal in this decision.

The Security for Costs Application is dismissed.

COSTS

The issue of costs has been mentioned on several occasions. It is important to distinguish between actual legal costs incurred by individuals defending claims made against them and the costs that have been incurred by the Current Trustees on behalf of the beneficiaries of the Reservation when either complying with the directions of the Court or undertaking the postal ballot that they wanted. It should be borne in mind that the election ordered by Judge Marumaru was as a result of his dissatisfaction with the actions of the Current Trustees in altering the voting process to a postal ballot without the consent of the beneficiaries given at a properly constituted hui. That omission of course found partial expression in the resolution passed at the annual general meeting held on5 November 2000.

The attention of the parties is drawn to the decision of the Maori Appellate Court in Riddiford v Te Whaiti 13 ACTK 184 and more recently, the decision of that Court in


Horitamakiterangi Manuirirangi 15 WGAP 64 of 21 February 2002. In the latter case the Maori Appellate Court acknowledged that a balance needs to be struck between the two situations where litigation is conducted on a relatively informal basis between whanau and hapu members, as contrasted with litigation that is prosecuted consistent with the practice in the ordinary civil courts (at 66):

"Much litigation before the Maori Land Court is conducted in a relatively informal atmosphere without the assistance of legal Counsel. The parties are usually individuals and are whanau to each other. Under circumstances like these, the Court will often take the view that an award of costs will be counter productive to the maintenance of ongoing amicable relations between the parties, and accordingly none is made.

The present case is, however, of a different character. On the one hand individual shareholders, and on the other the Incorporation, with its considerable financial resources. The parties were represented throughout, and there was an interlocutory process that was highly contested. The appellant's counsel went so far as to describe PKWas "relentless opponents" in the proceedings." (Emphasis added)

The present applications do not appear to fall within the category referred to in the second paragraph of the appellate decision quoted immediately above. Having said that, this litigation is simply not a whanau dispute either. Counsel were engaged by at least some of the parties from time to time and while it could not be said that the proceedings were vigorously contested by "relentless opponents", over time they began to expand into a more formal framework. Another important consideration is that neither party in the Appointment and Investigation series of disputes are completely free of responsibility for the current situation. There have obviously been criticisms of the Current Trustees and in fairness, some of those criticisms have been justified. Similarly, many of the allegations made against the Current Trustees have been without foundation. In the careful balancing required, consideration must be given to the reality that all the applicants and their respective whanau are intimately connected with Wharepuni Marae. The previous orders concerning trusteeship to this reservation spanning almost 30 years make this point abundantly clear. Neither "party" is going to go away, and nor should they. This is their marae. All who gave evidence made unequivocal submissions that the protection and enhancement of Wharepuni Marae was of critical importance. On this point at least, if on no other, there was unanimity.

A tentative view would be that, without having fully heard the parties on the matter, an award of costs in any direction would only serve to fuel existing tensions. What is needed now is an environment within which, over time, some new pathway to a position of understanding might be uncovered. Any award of costs would not assist that possibility at all.

CONCLUSION

With their appointments as a result of this decision, the New Trustees have been given the authority to administer and maintain the Reservation and Wharepuni Marae for the benefit of Ngati Tanewai and Ngati Tupaia hapu. Their responsibilities as trustees are onerous and should not be taken lightly. They are directed to familiarise themselves with the Wharepuni Marae Charter once it is approved by the


beneficiaries, as a matter of priority. They are also required to comply with the Act, the Reservations Regulations and any other statutory and regulatory regimes that concern the Reservation and the discharge of their duties as trustees.

They should also note that any failure to comply with their obligations to the beneficiaries will be treated seriously. The previous series of applications have had an almost paralysing effect on the community of Ngati Tanewai and Ngati Tupaia, a community that has at its centre Wharepuni Marae. The protection of that taonga is now placed in the hands of the New Trustees who, in the exercise of their custodianship, must ensure that they communicate regularly and effectively with their beneficiaries so that proceedings like these may be avoided. The Act and the Reservations Regulations clearly contemplate such consultation, as does the decision in Re Mt Tauhara Maori Reservation. The further enhancement of Wharepuni Marae and its facilities must now be at the forefront of the trustees. With the support of their hapu, there can be no doubt that this can be achieved for both the present generation of Ngati Tanewai and Ngati Tupaia and more importantly, for those yet to come.

SUMMARY

The Court makes the following orders:

(a) pursuant to section 338(7) of the Act, Rangiwhaiao Willie Hepi, Spencer Waemura Carr, Margaret Paeone Korau, Robert George Hikaka, Ngaio Josephine Hikaka-Tairawhiti, Matekitawhiti Carr, Ngakorowai Thomas Jonathan Rawiri, Patrick Hinga, Toby Frances Hikaka, Cia Careswell-Nicholls and Gordon McLinton Sole are appointed trustees of the Reservation for a period of three years only;

(b) pursuant to section 239 of the Act, Aroha Houston, Rita Bublitz, the late Mereana Broughton, Norma Ordish, Marlene Mauriri and Sandra Bates are replaced by those persons referred to in paragraph (a) above and are therefore removed as trustees of the Reservation;

(c) pursuant to regulation 14 of the Reservations Regulations, within three months from the date of this decision, the trustees are to call a properly convened and constituted general hui of the beneficiaries to the Reservation at Wharepuni Marae for the purposes of:

(i) receiving annual accounts, reports and minutes for the period 2000-2002; and

(ii) preparing and approving a marae charter as required by regulation 7(1) of the Reservation regulation. Such charter is to be filed with the Court within four months;

(d) pursuant to sections 37 and 237 of the Act, the trustees are directed to take all such steps as are necessary to ensure compliance with the requirements of territorial authorities regarding all facilities on Wharepuni Marae as a matter of urgency;

(e) pursuant to regulations 14 and 19 of the Reservations Regulations, the trustees are to hold the next annual general meeting of the beneficiaries to the


Reservation at Wharepuni Marae on or before 30 November 2003 where an annual report and audited accounts are to be presented;

(f) pursuant to regulations 14 and 19 of the Reservations Regulations, following the expiry of the three years, which will be the end of January 2006, a fresh election of trustees for the Reservation is to be held at Wharepuni Marae in accordance with the Wharepuni Marae Charter once it is approved by the beneficiaries;

(g) pursuant to section 37 of the Act, the Investigation, Removal and Security for Costs applications are all dismissed.

Dated at Wanganui this 23rd day of January 2003

L R Harvey JUDGE

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