IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT … · 2017. 8. 8. · 2017 Chief Judge’s MB 269 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A20070002188 CJ 2007/007

2017 Chief Judge’s MB 269

IN THE MĀORI LAND COURT OF NEW ZEALAND

AOTEA DISTRICT

A20070002188

CJ 2007/007

UNDER Section 45, Te Ture Whenua Māori Act 1993

IN THE MATTER OF RANGIWAEA-TĀPIRI (Formerly known as

RANGIPŌ NORTH 8) – Application to Chief

Judge

BETWEEN RANGI BRISTOL, AIDEN GILBERT & MATIU

HAITANA

Applicants

AND NGĀTI RANGI TRUST

Respondent

Hearings: 302 Aotea MB 51-64, dated 29 April 2013

326 Aotea MB 165-238, dated 25 August 2014

326 Aotea MB 239-315, dated 26 August 2014

329 Aotea MB 103-138 dated 28 October 2014

329 Aotea MB 139-207 dated 29 October 2014

329 Aotea MB 208-245 dated 17 November 2014

Appearances: Tom Bennion for Rangi Bristol and Aiden Gilbert

Mark McGhie for Matiu Haitana

Nathan Milner & Paranihia Walker for Ngāti Rangi Trust

Bernadette Arapere for Ngāti Waewae

Judgment: 13 June 2017

JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX

Solicitors: T Bennion, Bennion Law, P O Box 25 433, Wellington [email protected] M McGhie, P O Box 91, Whakatāne [email protected] N Milner, Kāhui Legal, P O Box 1654, Wellington [email protected] P Walker, Kāhui Legal, P O Box 1654, Wellington [email protected] Wackrow Williams & Davies Limited, DX Box CP20503, Auckland

mailto:[email protected]:[email protected]:[email protected]:[email protected]


Introduction

[1] This application filed by Rangi Bristol, Aiden Gilbert and Matiu Haitana (“the

Applicants”) pursuant to s 45 of Te Ture Whenua Māori Act 1993 (“the Act”) seeks to

amend or cancel an order dated 28 April 2001 at 105 Aotea MB 127-131 determining that

Part 8 Rangipō North, now known as Rangiwaea-Tāpiri, is Māori Customary land and that

the persons entitled to succeed are Rangituhia, Rangiteauria and Uenuku Manawawiri o

Ngāti Rangi. The Court also determined that Rangiwaea-Tāpiri is papa tuku iho mo Ngāti

Rangi.

[2] Judge Harvey has presided over several hearings to inquire into the matter and hear

evidence from the parties. On 12 August 2016 Judge Harvey produced a Report for the

Chief Judge’s consideration which is set out in full below:

REPORT OF JUDGE L R HARVEY TO CHIEF JUDGE W W ISAAC

CONTENTS

Introduction [1]

Background [7]

Procedural history [16]

The Law [23]

What is the omission relied on by the applicants per s 45? [27]

Applicants’ case [27]

Respondents’ case [34]

Issues [38]

Did Ngāti Uenuku receive notice? [42]


Respondents’ case [44]

The Law [53]

Discussion [54]

Does the evidence support a separate Ngāti Uenuku legal interest in the land? [56]


Respondent’s case [75]


Discussion [84]

The Native Land Court [86]

The evidence in this case [92]

Does Ngāti Rangi acknowledge that the Ngāti Uenuku has an interest in the land? [103]

Submissions for Ngāti Rangi [103]

Discussion [104]

Should a de novo hearing have been held? [113]

Applicants’ submissions [113]

Respondents’ submissions [118]

Discussion [120]

Should the application be granted? [132]

Contrasting customary traditions [135]

Recommendation [137] ------------------------------------------------------------------------------------------------------ Introduction

[1] Aiden Gilbert, Rangi Bristol and Matiu Haitana seek the amendment to or

cancellation of an order issued on 28 April 2001 determining that Part 8 Rangipō

North, now known as Rangiwaea-Tāpiri, is Māori Customary land and that the

persons entitled to succeed are Rangituhia, Rangiteauria and Uenuku Manawawiri o

Ngāti Rangi.1 The Court also determined that Rangiwaea-Tāpiri is papa tuku iho mo

Ngāti Rangi.2

[2] Mr Haitana submitted that the order issued on 28 April 2001 was erroneous in

fact or in law. The grounds include: the failure by the Court to give Ngāti Uenuku

proper notice of hearings held between 1997 and 2001; that Ngāti Rangi does not

represent Ngāti Uenuku; that hapū interests in blocks adjoining the subject land were

misrepresented; and that there was a mistake in the evidence regarding Uenuku

Manawawiri. Counsel contended that the order complained of should be amended

either by a properly facilitated negotiation between the parties or, failing that, by

order of the Court.

1 105 Aotea MB 127-131 (105 AOT 127-131)

2 Ibid


[3] Messers Gilbert and Bristol also submitted that the order issued on 28 April

2001 was erroneous in fact or in law. The grounds indicated were that the hearings

and decision on Ngāti Rangi’s interest in the block were procedurally unusual and

unsafe; that Ngāti Rangi does not have exclusive customary interests in the land and

that the Court made a mistake in accepting that Ngāti Uenuku could be represented

only as individuals who whakapapa to the ancestor Uenuku Manawawiri. Counsel

argued that the Court should order a de novo hearing or, in the alternative, make an

order directing that Ngāti Uenuku be included as a group with customary interests.

[4] Ngāti Rangi rejected these arguments and submitted that the applicants have

not proven any mistake or omission by the Registrar regarding notice between 1997

and 2001. Counsel submitted that the applicants have not proven on the balance of

probabilities any mistake or omission in the presentation of the facts to the Court in

the original proceedings. Counsel maintains that the evidence from the 1997-2001

hearings remains accurate and has generally not been questioned by the applicants.

Mr Milner contended that the applicants have failed to identify any errors, flaws or

inaccuracies in the original evidence to demonstrate that that material should now be

disturbed. Nor have they identified any specific evidence relating to Ngāti Uenuku

use, occupation, place names, history, or activities in respect of the block, or even in

areas of close proximity, that they would have presented to the Court in 1997 or the

subsequent hearings.

[5] In addition, counsel submitted that there is no evidence that the 1997-2001

hearings were procedurally unsafe, and that the applicants’ evidence has failed to

demonstrate why, in the interests of justice, the Court should amend the 2001 order.

[6] Further, Mr Milner submitted that there has been significant delay on the part

of the applicants and that this application is an inappropriate attempt at a rehearing

per s 43 of the Act.

Background

[7] On 16 February 1960 the Deputy Registrar filed an application seeking an

investigation of title under s 161 of the Māori Affairs Act 1953 in respect to

‘unnamed land adjoining Rangiwaea 4F19, Rangipō North Part No 6C and Rangipō

Waiu 1B blocks.’ The Chief Surveyor had sought the application because the Crown


was seeking to use the land for a National Park. On 1 June 1960 the application was

dismissed on the request of the Chief Surveyor.3

[8] Less than a week later, on 7 June 1960, the application was reinstated.4 At the

17 August 1960 hearing, evidence was given on behalf of Ngāti Waewae that they

owned all the surrounding land and laid claim to the block on behalf of the three

hapū of Ngāti Waewae, namely Ngāti Matangi, Ngāti Rongomai and Ngāti Pouroto.

There were no objections to this claim. Judge O’Malley subsequently determined

that:5

The Court is satisfied that the whole of the said lands to be called Rangipō

North No 8 block containing 6,577 acres was Māori customary land prior to the

taking of 5,100 by proclamation under the Tongariro National Park Act 1894

and that the whole of the land was owned by three hapū of Ngāti Waewae

namely Ngāti Matangi, Ngāti Rongomai and Ngāti Pouroto.

The Court will in the future make a freehold order in respect of the balance of

Rangipō North No 8 containing 1,397 acres after the proper lists of owners

under the said hapū have been filed by Mr Asher and approved by the Court.

Adjourned to next sitting at Tokaanu.

[9] On 22-23 March 1966 a further hearing was held in relation to an application

for a rehearing of the 17 August 1960 order.6 The adjournment sought by

Whanganui claimants allow them further time to present their claims was denied on

the basis that the matter had been in the Pānui for years. The Court proceeded to

confirm the decision made on 17 August 1960. The Judge considered that the

evidence produced by the Whanganui claimants could not disturb the evidence in

favour of Ngāti Tūwharetoa, which was unequivocal. The matter was adjourned so

that lists of owners could be submitted to the Court for consideration.

[10] A series of lists were compiled and filed between 1969 and 1971.7 In 1972 the

Chief Judge published a notice to the claimants stating that a freehold order would

be made in accordance with the lists as amended by the Court and called for

inspection of the lists of owners.8 A number of further adjournments were granted

up until 22 March 1983 when an order issued vesting the land in the Māori Trustee

3 39 Tokaanu MB 80 (39 ATK 80)

4 39 Tokaanu MB 84 (39 ATK84)

5 39 Tokaanu MB 185 (39 ATK 185)

6 45 Tokaanu MB 345-371 (45 ATK 345-371)

7 49 Tokaanu MB 41 (49 ATK 41); 49 Tokaanu MB 196 (49 ATK 196); 50 Tokaanu MB 245 (50 ATK

245) 8 52 Tokaanu MB 52-65 (52 ATK 52-65)


per s 438 of the Māori Affairs Act 1953.9 That order was subsequently set aside as

having been made without jurisdiction.10

[11] On 28 August 1989 a Chief Judge’s application was filed by Robert Gray

seeking to set aside the order made on 17 August 1960. On 6 October 1992 Deputy

Chief Judge McHugh confirmed that, prima facie, sufficient material had been filed

with the application to justify a further inquiry into the 1960 determination. He then

directed that the application be referred to this Court for inquiry and report.11

[12] After a period of delay, on 27-30 January 1997 Judge Savage heard the

application.12

At the hearing, Ngāti Tūwharetoa gave notice that it would not take

any further part in the proceedings. During those hearings the Court made an order

suppressing the evidence presented by Ngāti Rangi. Following the hearing, counsel

for Ngāti Tūwharetoa filed written submissions stating that Ngāti Waewae relied on

the evidence before the Court in 1960 and subsequent hearings. On 25 August 1998

Deputy Chief Judge Smith held that the order of 17 August 1960 should be cancelled

and ordered that the adjourned application now be brought forward de novo.13

[13] Judge Savage then heard from the parties on 13 December 1999.14

Robert

Gray informed the Court that discussions had been held with the relevant parties and

it had been agreed that Ngāti Rangi had mana over the block. The Court confirmed

that a final hearing would be held and noted that if no objections were received it

would accept the evidence given at the 1997 hearings.

[14] On 26 February 2001 a conference was held to receive an update on the

ownership lists for the block. Mr Gray presented a resolution from a hui a iwi with

the names of the tupuna in whom the block should be vested. There was also a

request to change the name of the block to Rangiwaea-Tāpiri. Judge Savage

adjourned the proceeding for a further hearing where, he confirmed, final orders

would be pronounced.15

9 55 Tokaanu MB 156 (55 ATK 156)

10 8 Aotea MB 76 (8 AOT 76)

11 1992 Chief Judge’s MB 406 (1992 CJ 406)

12 70 Aotea MB 1-123 (70 AOT 1-123)

13 Gray – Rangipō No 8 [1998] Chief Judge’s MB 207 (1998 CJ 207)

14 95 Aotea MB 271-276 (95 AOT 271-276)

15 102 Aotea MB 297-302 (102 AOT 297-302)


[15] On 28 April 2001 the final order was duly pronounced where Judge Savage

determined the land Māori customary land, vested it in Rangitutia [sic], Rangiteauira

and Uenuku Manawawiri and declared the land papa tuku iho mo Ngāti Rangi.16

Procedural history

[16] A s 45 application was filed on 6 February 2006 asserting that the suppression

order made by the Court in 1997 did not apply to counsel and representatives of

legitimate parties. That application was heard in conjunction with a request for

rehearing of the 1997 and subsequent hearings. Those applications were heard by

me on 23 May 2006 by way of judicial conference.17

At the conclusion of which I

adjourned the matter for further directions.

[17] On 29 November 2006 I issued a decision dismissing the application for

rehearing on the basis that sufficient notice had been given for the hearings. I

signalled to the applicants that they may wish to file a s 45 application to further

address the issues raised in their application for rehearing.18

They subsequently did

so.

[18] On 12 December 2006 I furnished a report and recommendation to the Chief

Judge in relation to the suppression order. In my report I agreed that the suppression

order should be enforced so as to exclude the general public but recommended that it

need not apply to Tamahaki and their counsel for the purposes of the s 45

proceedings.19

[19] A long interlocutory process then ensued for some six years over which time

the parties have engaged in extensive preparation. On 12 December 2012 I heard

from counsel with a view to finally setting the proceedings down for hearing.20

Directions were issued on 18 April 2013 addressing evidentiary matters.21

16

105 Aotea MB 127-131 (105 AOT 127-131) 17

170 Aotea MB 51-60 (170 AOT 51-60). On 3 November 2006 at 177 Aotea MB 208-209 (177 AOT

208-209) the Court clarified with Mr McGhie the suppression of evidence 18

Bristol – Rangipō North 8 (2006) 178 Aotea MB 80 (178 AOT 80) 19

178 Aotea MB 164-165 (178 AOT 164-165) 20

295 Aotea MB 218-221 (295 AOT 218-221) 21

300 Aotea MB 225-229 (300 AOT 225-229)


[20] A hearing was held on 29 April 2013.22

Counsel for the applicants presented

evidence in support. At the conclusion of the hearing I adjourned the proceedings to

allow the parties to attempt to find a resolution without the intervention of the Court.

[21] On 18 September 2013 I held a teleconference with counsel where Mr

McGhie asked that the Court continue to hear the application as attempts to resolve

the issues had been unsuccessful.23

Additional directions were then issued on 18

September 2013, 20 February 2014, and 18 March 2014.24

[22] Further interlocutory steps occurred before the case was finally heard at a two

day hearing on 25 and 26 August 2014.25

Submissions were presented and witnesses

gave evidence. The application was adjourned for further evidence to be received at

the next hearing which was held on 28 and 29 October 2014.26

Closing submissions

were heard on 17 November 2014.27

The Law

[23] In accordance with s 44 of Te Ture Whenua Māori Act 1993, the Chief Judge

may cancel or amend an order made by the Court or a Registrar, if satisfied that the

order was erroneous in fact or in law because of any mistake or omission on the part

of the Court or the Registrar, or in the presentation of the facts of the case to the

Court or the Registrar. The Chief Judge may also make such other order as, in the

opinion of the Chief Judge, is necessary in the interests of justice to remedy the

mistake or omission.

[24] In Tau v Nga Whānau o Morven & Glenavy – Waihao 903 Section IX block the

Māori Appellate Court held that the Chief Judge must exercise his jurisdiction by

applying the civil standard of proof of the balance of probabilities having regard to

that standard’s inherent flexibility that takes into account the nature and gravity of

the matters at issue.28

22

302 Aotea MB 51-64 (302 AOT 51-64) 23

308 Aotea MB 191-196 (308 AOT 191-196) 24

308 Aotea MB 205-207 (308 AOT 205-207), 315 Aotea MB 241 (315 AOT 241) and 317 Aotea MB

16-22 (317 AOT 16-22) 25

326 Aotea MB 165-238 (326 AOT 165-238) and 326 Aotea MB 239-315 (326 AOT 239-315) 26

329 Aotea MB 103-138 (329 AOT 103-138) and 329 Aotea MB 139-207 (329 AOT 139-207) 27

329 Aotea MB 208-246 (329 AOT 208-246) 28

[2010] Māori Appellate Court MB 167 (2010 APPEAL 167) at [61]


[25] In Ashwell – Rawinia or Lavinia Ashwell (nee Russell) you summarised the

core principles relating to s 45 applications:29

(a) First, when considering s 45 applications, the Chief Judge needs to

review the evidence given at the original hearing and weigh it against

the evidence provided by the Applicants (and any evidence in

opposition).

(b) Second, s45 applications are not to be treated as a rehearing of the

original application.

(c) Third, the principle of Omnia Praesumuntur Rite Esse Acta applies to s

45 applications. Therefore, in the absence of a patent defect in the order

made, the order is presumed to be correct.

(d) Fourth, evidence given at the time the order was made, by persons more

closely related to the subject matter in both time and knowledge, is

deemed to have been correct.

(e) Fifth, the burden of proof is on the applicants to rebut the presumptions

above.

[26] Finally, you confirmed that as a matter of public interest, the Chief Judge

should uphold the principles of certainty and finality of decisions. These principles

are reflected in s 77 of the Act, which states that Court orders cannot be declared

invalid, quashed or annulled more than 10 years after the date of the order. Parties

affected by orders made under the Act must be able to rely on them. For this reason,

the Chief Judge’s special powers are used only in exceptional circumstances.

What is the omission relied on by the applicants per s 45?

Applicants’ case

[27] Mr McGhie submitted that that the orders made on 28 April 2001 (including

the hearings held on 27-30 January and following) were erroneous because of

mistakes and omissions, or in the presentation of the facts of the case to the Court.

29

[2009] Chief Judge’s MB 209 (2009 CJ 209) at [15]


[28] He argued that the Registrar failed to give notice of the 1997 hearing and

subsequent hearings to Ngāti Uenuku, which breached the principles of natural

justice. Ngāti Uenuku had serious interest in any decision concerning Rangipō North

8, but as they were not notified, they could not make any representations to the

Court.

[29] In addition, counsel contended that the Court failed to hold a de novo hearing

per Deputy Chief Judge Smith’s 1998 direction following the overturning of the

1960 decision. More importantly, Mr McGhie argued that the presentation of the

facts to the Court was erroneous because Ngāti Rangi did not represent Ngāti

Uenuku. He said that there was also an error concerning hapū interests in blocks

adjoining Rangipō North 8 because, contrary to the evidence presented to the Court

in 1997, Ngāti Rangi was not the only hapū with interests in the area. Mr McGhie

also submitted that the evidence concerning Uenuku Manawawiri’s whakapapa was

incorrect, amounting to a mistake in the facts presented to the Court.

[30] Counsel submitted that the applicants have met the tests in ss 44 and 45 of the

Act and ask for a finding that there were mistakes in the Court orders concerning

ownership of the land. and that the orders be amended either by proper facilitated

negotiation between the parties or, failing that, by Court order. Counsel submitted

that the case presents exceptional circumstances, namely that the evidence relied on

was not credible, which justify the Chief Judge exercising his powers.

[31] Mr Bennion contended that the orders made on 27-30 January 1997 and

following were erroneous in fact or in law on the same grounds. In particular, Mr

Bennion argued that the hearing and decision on Ngāti Rangi interests in the block

were procedurally unusual and unsafe. When the 1960 decision was set aside the

Deputy Chief Judge directed that the application for investigation of title to the block

be heard de novo. No such hearing took place.

[32] Equally importantly, counsel argued that Ngāti Rangi does not have exclusive

customary interests in the land. Accordingly, the Court erred in accepting that the

Ngāti Uenuku people could be represented on the block only as individuals who

whakapapa to the ancestor Uenuku Manawawiri.


[33] Mr Bennion argued that the appropriate remedy was for the Court to order a

de novo hearing or, alternatively, make an order directing that Ngāti Uenuku be

included as a customary group.

Respondents’ case

[34] As foreshadowed, Ngāti Rangi rejected these claims and argued that the

applicants have not proven any mistake or omission regarding notice on the part of

the Registrar between 1997 and 2001.

[35] Counsel also contended that the applicants have not proven on the balance of

probabilities any mistake or omission in the presentation of the facts to the Court in

the original proceedings, and have failed to demonstrate any errors in the original

evidence including any reason why that evidence should be disturbed or was flawed

or incorrect.

[36] Mr Milner submitted that the evidence remains accurate and has generally not

been questioned by the applicants. He also argued that the applicants have failed to

identify any specific evidence relating to Ngāti Uenuku use, occupation, place

names, history or activities in respect of the land, or even in areas of close proximity,

that they would have presented to the Court in 1997 or the hearings that followed.

Furthermore, there is no evidence that the 1997-2001 hearings were procedurally

unsafe.

[37] Finally, counsel contended that the applicants had failed to demonstrate why,

in the interests of justice, the Court should amend the 2001 order. There has been

significant delay on the part of the applicants. This is an inappropriate attempt at a

rehearing per s 43.

Issues

[38] The issues for determination are:

(a) Did Ngāti Uenuku receive notice?

(b) From which tupuna do Ngāti Uenuku have an interest in the land?

(c) Should a de novo hearing have been held?


(d) Should the application be granted?

[39] It is evident that these proceedings have been mired in delay. The applicants

in particular have sought numerous adjournments as they continued to research and

refine (although expand is probably more accurate) the key elements of their case.

That they then decided on separate representation, as is their right, simply added to

the already elongated process and its inevitable delays. The respondents were then

required to reply to the applicants’ cases.

[40] Time was also spent during the adjournments attempting to uncover a pathway

toward resolution that might have avoided adjudication, but without success. As a

result I am now required to make recommendations to you on whether or not the

present application should be granted, wholly or in part, in the absence of agreement

between the parties.

[41] I am satisfied that the parties have now had more than ample opportunity to

state their cases and responses. The Waitangi Tribunal’s report Te Kāhui Maunga,30

which counsel referred to during these proceedings, has also been of assistance.

Did Ngāti Uenuku receive notice?

Applicants’ case

[42] Mr McGhie argued that the Court order is erroneous because the applicants

did not receive notice for the hearings held in 1997 through to 28 April 2001.

Counsel says that this breached the principles of natural justice as the applicant and

their hapū had a serious interest in any decision concerning Rangipō North 8.

However, given that they were not notified of the proceedings, they were unable to

make any representations to the Court.

[43] Counsel further submitted that the applicants should have been given specific

notice of the proceedings and/or specific notice should have been given to the Māori

organisations that the applicants were involved with at the time. In particular, Mr

McGhie noted that the Court did not refer to the Waitangi Tribunal inquiry process

underway in the area, nor were the claimants involved in that inquiry notified.

30

Waitangi Tribunal Te Kāhui Maunga: The National Park District Inquiry Report (Wai 1130, 2013)


Respondents’ case

[44] Mr Milner contended that the applicants have not proven any mistake or

omission on the part of the Court or the Registrar in relation to the notification

process for the original proceedings in 1997 through to 2001. The Court’s

notification processes, as outlined in the Act and the Māori Land Court Rules 1994,

through the Pānui, were complied with at all relevant times. Furthermore, counsel

pointed out that the application itself notes that the original proceedings were

notified in the Pānui.

[45] In addition, Mr Milner submitted that, in relation to the 1997 application, the

notice in the Pānui and the parties’ compliance with broader processes actually

exceeded the requirements set out in the Rules, and that all affected parties,

including the Whanganui confederation more broadly, were notified. This point is

evidenced by the presence of hapū representatives from tupuna rohe on the

Whanganui River in support, at the 2001 proceedings.

[46] Counsel contended that the original proceedings were well known amongst the

wider community and beyond throughout the Whanganui region, including those that

the applicants claim to speak for. For example, a number of hui a iwi were held over

several years to discuss the original application and appropriate course of action,

including with knowledgeable kaumātua of Ngāti Uenuku and those who were

considered part of the tribal leadership. Counsel added that the evidence in the

original proceedings demonstrates that a number of hapū from the wider Whanganui

confederation, including Ngāti Uenuku, attended those proceedings.

[47] Mr Milner also argued that the evidence provided by Don Robinson and Rangi

Bristol demonstrates the significant relationships and interaction between the parties.

For example, he submitted that Don Robinson and Rangi Bristol were both involved

with the Whanganui Whare Wānanga Trust.

[48] In addition, counsel submitted that the Court had already determined, during

the rehearing application, that the publicity was extensive, that the proceedings

attracted considerable interest, and that any party claiming an interest should have

been aware of the application at the time.


[49] Mr Milner contended that the applicants’ argument that they or their hapū

organisations ought to have received personal notice of the claim cannot be accepted

because it brings into question the adequacy of the Rules, as well as the Pānui

procedure, and introduces significant uncertainty over the Court’s processes. In

particular, counsel argued that the Tamakana Council could not have received notice

as it was not established until 2002. Regarding the claimants before the Waitangi

Tribunal, it was submitted that Rangi Bristol and Robert Cribb were substituted as

claimants in 1999. Robert Cribb attended the 2001 hearing.

[50] Mr Milner challenged the contention that the present application is analogous

to the 1997 proceedings, arguing that it differs significantly from the earlier case.

The hearing in 1960 had not been notified in the Pānui and no members of the

Whanganui counter claimants were aware of the proceedings. In 1966 the Court

refused to adjourn the proceeding when presented with a possible counter claim,

effectively excluding the claimants from presenting any evidence at that time.

Counsel contended that this scenario is quite different to the present.

[51] Counsel also distinguished the Brown v Christchurch Disputes Tribunal case

relied on by the applicants. That case concerned a failure to notify parties in

accordance with the particular rules of that Tribunal, which he argued, is clearly not

the case in these proceedings.

[52] Mr Milner contended that the requirements of natural justice necessitate that

the Court ought not to reward parties who have sat on their hands when they were

aware of original proceedings, only to come forward and make a claim some 15-20

years later. Ngāti Rangi should not be penalised for the applicants’ delay and failure

to notify the Court of a Ngāti Uenuku interest. Mr Milner submitted that no breach

of natural justice occurred in relation to the notification of the original proceedings

to those groups that might have had an interest.

The Law

[53] In Ham v Ham – Hohotaka 1B1 the Māori Appellate Court stressed the

importance of notice to affected parties.31

Referring to Kennelly and Sons Ltd v

Board of Māori Affairs,32

that Court confirmed that a failure to provide notice to

31

(1989) 13 Aotea Appellate MB 164 (13 APWG 164) 32

(1985) 3 Te Waipounamu MB 88 (3 APTW 88)


those affected would be sufficient to justify the quashing of earlier orders.33

Similar

views were also expressed in Perenara v Pryor – Matatā 930.34

Discussion

[54] As foreshadowed, the applicants claim a lack of notice of the hearing and

assert that their interests, not having been heard, were not recognised in the final

orders of the Court which determined those entitled to succeed were Rangituhia,

Rangiteauria and Uenuku Manawawiri o Ngāti Rangi. This very issue was

considered in my decision of 2006 on the application for rehearing. For convenience

the relevant parts of that judgment are reproduced:35

Standing

[15] The applicants claim ancestral associations in the land. They point to

evidence of their interests and those of related tupuna being recognised in

awards of blocks surrounding the subject land. No one has said that they do

not have an interest in the land. Ngāti Rangi did of course argue that whatever

interest the present applicants might claim, they have been in some way

subsumed under the former’s mantle for the purposes of the original

proceedings. Unsurprisingly, the applicants dispute this and claim a right to

separate representation. At the very least I consider they have an arguable case.

I accept therefore that they do have standing.

Notice

[16] A review of the files confirms that notice of the hearing was given in the

usual way and that panui were issued as for every other application heard by

the Court. The panui would have been issued to several thousand recipients

throughout the country in every Māori Land Court district. Publicity was

extensive and the proceedings attracted considerable interest. I am satisfied

therefore that any party claiming an interest in the proceedings should

have been aware of the application.

Representation

[17] Regarding the possibility that any interests the applicants might have

claimed were in fact represented by Ngäti Rangi, clearly that is disputed. But

the real issue is would the applicants have advanced arguments any different to

those of Ngäti Rangi? The answer to that question can only be speculative in

the absence of the actual arguments the applicants may have wished to put

before the Court. In any case they do not appear to have given any mandate to

Ngāti Rangi.

(Emphasis added)

33

At 184 34

(2004) 10 Waiariki Appellate MB 233 (10 AP 233) at 244 35

Bristol – Rangipō North 8, above n 18, at [15] – [17]


[55] This decision, and my finding on notice, has never been subject to appeal or

review. Accordingly, that finding stands unchallenged. The time has long passed

where an appeal might have been filed.36

And the parties were represented by

experienced counsel. In any event, there has been nothing submitted by counsel or

by any of the unrepresented persons to justify any change in my earlier

determination, notwithstanding the lack of jurisdiction to entertain any change via a

further rehearing or otherwise. My conclusion is that the notice was sufficient and

further, that the time for any challenge or appeal against my 2006 decision has long

since passed.

Does the evidence support a separate Ngāti Uenuku legal interest in the land?

Applicants’ case

[56] The applicants claim that the Court made a mistake in accepting that Ngāti

Uenuku could be represented in the land only as individuals who whakapapa to the

ancestor Uenuku Manawawiri. They submitted that Ngāti Rangi are wrong in

claiming that Ngāti Uenuku interests were specifically intended to be accommodated

by the inclusion of Uenuku Manawawiri in the title. There is no evidence to support

that claim they argued. In all the proceedings up to and including the sitting in 2001,

Uenuku Manawawiri is discussed only as an ancestor of Ngāti Rangi. There is no

evidence that this ancestor was specifically chosen to accommodate Ngāti Uenuku

interests in the land.

[57] Mr Bennion submitted that there is also no evidence that Ngāti Uenuku were

informed that Uenuku Manawawiri was being included so as to accommodate Ngāti

Uenuku interests. The claim that Ngāti Uenuku voluntarily subsumed their

customary interests in this land in order merely to come in via whakapapa is unlikely

because the traditions which Ngāti Rangi assert for the mountain and which Ngāti

Uenuku are said to be subsumed within are dramatically different and distinct. The

proceedings up to 2001 only discuss Uenuku Manawawiri as an ancestor of Ngāti

Rangi. The Court should have been cognisant of all evidence before making a

decision for customary interests. It cannot be implied that Ngāti Uenuku could be

subsumed under Uenuku Manawawiri.

36

See Naera v Fenwick - Whakapoungakau 24 (Tikitere Trust) [2011] Maori Appellate Court MB 316

(2011 APPEAL 316) at [32]-[41]

http://www.justice.govt.nz/courts/maori-land-court/documents/judgments/pdfs-maori-appellate-court-sittings/2011/Whakapoungakau%2024%20-Tikitere%20Trust-%202011%20APPEAL%20316.pdfhttp://www.justice.govt.nz/courts/maori-land-court/documents/judgments/pdfs-maori-appellate-court-sittings/2011/Whakapoungakau%2024%20-Tikitere%20Trust-%202011%20APPEAL%20316.pdf


[58] Regarding the claim that Ngāti Rangi also represented Uenuku and that a

mandate to that effect was given to them at the Whare Wānanga, the evidence is that

only four persons comprised the Whare Wānanga. The discussions were in-house

and not widely publicised. It was accepted in the 2006 rehearing that no mandate

had been given. In addition, the 1997 hearings do not include anyone affiliating with

Ngāti Uenuku. There is no evidence that the three tupuna were set up to represent

anyone beyond Ngāti Rangi.

[59] The applicants further submitted that there was a mistake in the facts

presented to the Court and contended that Ngāti Uenuku of Manganui o te ao is a

separate group from Uenuku Manawawiri. They suggest that the “story” of Uenuku

Manawawiri was part of the “myth creation” in the years leading up to the 1997

hearing. They provided evidence supporting the fact that Uenuku Manawawiri does

not have the same whakapapa as Ngāti Uenuku of Manganui o te ao. There is no

evidence that Uenuku Manawawiri was chosen to be included in the title to

accommodate all Ngāti Uenuku interests.

[60] Mr McGhie submitted that there is a clear mistake in relation to the evidence

of Uenuku Manawawiri substituting for a Ngāti Uenuku presence on the mountain.

He further argued that it is highly questionable in a customary sense to say that

known groups may ‘whakapapa in’ in some manner as individuals and not as groups

to their ancestral land. Counsel submitted that the use of Uenuku Manawawiri as a

deliberate point of inclusion for an entire distinct customary group is wrong in

tikanga. He also argued that in all the hearings Uenuku Manawawiri is discussed

only as an ancestor of Ngāti Rangi.

[61] Mr Bennion further argued that Mr Gilbert’s evidence is that Uenuku

Manawawiri cannot serve as Ngāti Uenuku. There are differences in the whakapapa

and Ngāti Rangi witnesses themselves talked about Uenuku Manawawiri and Ngāti

Uenuku as two distinctly things. Counsel referred to Te Kahui Maunga report as

evidence that Ngāti Uenuku and Uenuku Manawawiri are closely related but distinct

identities. Counsel argued that the only proof that Ngāti Uenuku agreed to be

incorporated into the block under Uenuku Manawawiri is the fact that people of

Ngāti Uenuku whakapapa were present at the 1997 hearings.

[62] Added to these submissions is the fact that Ngāti Rangi traditions for Ruapehu

and Ngāti Uenuku traditions are distinctly different, which also indicates that an


agreement in 1997 that Ngāti Uenuku could be “subsumed” under Uenuku

Manawawiri cannot be implied. Counsel reiterated that it is inherently unlikely that

Ngāti Uenuku voluntarily subsumed their customary interests in this land to merely

“come in” via whakapapa, given the differences between Ngāti Rangi and Ngāti

Uenuku traditions regarding Ruapehu. Mr Bennion pointed to the claims that Ngāti

Rangi were present before Ngatoroirangi and saw his party arrive. That has not been

a tradition of Ngāti Uenuku or, so far as Mr Gilbert is aware, any other groups

around the mountains. Another example referred to was the claim that the Crater

Lake was used by Ngāti Rangi as a burial site. This is not something Ngāti Uenuku,

as represented by counsel, identify with.

[63] Mr Bennion argued that although the political landscape in 1997 was different

and Ngāti Rangi was growing at that time, it is the Court’s role, under s 132 of the

Act, to carefully check that it has the necessary evidence and processes to ensure that

long-standing customary interests are protected. It is important to appreciate the

claim that Ngāti Rangi alone has the entire customary interests in this block to the

exclusion of other interests of any other Whanganui group. Ngāti Rangi claims

others may only have an interest via whakapapa links through Ngāti Rangi. They

therefore claim full and exclusive possession via full and exclusive customary

interests.

[64] Mr Bennion referred to the da Silva case where, despite the apparent large

disparities in the strength of interests in the land, the Court found customary interests

for both groups and that some take were held exclusively and some were not.37

Counsel contended that no one disputes that Ngāti Uenuku have lived in this locality

for hundreds of years adjoining Ngāti Rangi and that this land (high on the mountain

and in plain view) has been part of the ancestral landscape of both iwi in all of that

time. He also argues that all parties accept that the boundaries of the block were not

set by custom. Further, he added that the name Rangiwaea Tāpiri does not appear to

be an ancient name, by all accounts. Counsel contended that it is merely a name

seeking to attach this land to older blocks on the Western side.

[65] Counsel referred to the evidence of Mr Harawira and submitted that the

contention that Ngāti Rangi and Ngāti Uenuku each knew the mountain from their

respective sides is problematic given that Ngāti Uenuku leaders such as Topia Turoa

37

John da Silva v Aotea Maori Committee & Hauraki Maori Trust Board (1998) 25 Taitokerau MB 212

(25 AT 212)


used the block for hunting and made a broad claim through raupatu. Despite the fact

that Mr Harawira disputed the worth of these claims, counsel submitted that the

Tribunal’s report disclosed Topia Turoa’s significant role in the Native Land Court

proceedings around the mountain, which was accepted by the Court. In addition, he

added that seasonal hunting is the sort of use that will support a claim to common

law aboriginal title and relies on Tsilhqot’in Nation v British Colombia.38

[66] Mr Bennion argued that the historical evidence as recorded by the Tribunal is

that all Whanganui groups having interests around and about the southern reaches of

Ruapehu moved back and forwards from the Manganui o te ao. There is no evidence

that they considered particular groups to have entirely exclusive interests so high on

the mountain that they all looked upon. Rather, all had interests but of a different

nature and strength.

[67] Mr Bennion argued that the Ngāti Rangi traditions with respect to this land

related very much to Wai a Moe and to the whole of Rangipō North 8. He submitted

that no specific wāhi tapu are claimed on this particular block. Regarding the claim

that this part of the block is important as a source of streams relevant only to Ngāti

Rangi, he submitted that the headwaters are mostly located in the main block. In

addition, counsel submitted that his clients did not doubt that Whare Wānanga

existed in the region. He contended that the existence of a Whare Wānanga on the

land is evidence of the fact that it was a place of interest to other Whanganui groups.

In addition, Mr Bennion submitted that his clients did not see why Ngāti Rangi

kaitiakitanga responsibilities should be exclusive of any other groups having any

other sort of interest in the land.

[68] Olive Roach gave evidence of living under Ruapehu all her life, of travelling

the mountain with her father and of using the mountain to gather rongoa. Patricia

Henare considered Ruapehu to be a sacred tupuna to whom Uenuku tangata look for

identity and right of occupancy. Karina Williams gave evidence of her spiritual

connection and whakapapa to the land. She spoke of how the mountain provided a

food source for the people. Don Robinson provided evidence of the mountain being

used as a food source. He considered that Ngāti Uenuku had significant interests in

the Ruapehu region.

38

(2014) SSC 44, [2014] 2 SCR 257


[69] Pani Te Hore and Rangi Bristol also spoke of the connection of Manganui o te

ao and the mountain. Te Kura Tahana gave evidence of the origins of the name

Patutokotoko and noted that in a census undertaken in the 1870s, Patutokotoko is

named as the tribe for all the hapū on the river: Uenuku, Ngāti Pare, Ngāti Tara,

Ngāti Ruakopiri, Ngāti Hekeawai and Ngāti Tamakana. Tira Pehi recounted a story

of the Uenuku people being the “true” owners of the mountain by whakapapa and

ahi ka through the chief Te Pehi Turoa. Ron Perigo also spoke of his tupuna Topia

Turoa and his exploits around Ruapehu. He notes that Topia Turoa is the owner of a

block adjoining Rangipō North 8.

[70] Mr McGhie submitted that many of the witnesses gave evidence of hunting

and gathering food on the mountain in a similar fashion to the evidence given by

their tupuna in the nineteenth century. He also submitted that the evidence

demonstrated that the people of Manganui o te ao travelled widely over the summer

months and that there is evidence of seasonal camps high on the mountain.

[71] Counsel contended that the claim of occupation rights is explicit: the people of

Manganui o te ao used to come on to the land to procure food, which was the

practice of all Whanganui. He pointed to Che Wilson’s evidence to support the

contention that the Rangiwaea block was also a large food source for Ngāti Rangi

and all of Whanganui.

[72] Counsel referred to claims of seasonal occupation in Murimotu and

Raketapauma and says that they established an interest for the people of Manganui o

te ao in these lands close to Rangiwaea-Tāpiri.

[73] In addition, Mr McGhie submitted that the Central Claims Charitable Trust

Oral and Traditional History Report39

makes it clear that the Uenuku people had

rights and interests in the blocks adjoining Rangipō North 8. It is accepted that

Ngāti Uenuku have lived in the locality for hundreds of years and the boundaries of

the block were not formally set. There is evidence of use of the whole of the

mountain therefore, he argued, Ngāti Rangi do not have an exclusive claim.

[74] Counsel contended that his clients refute the claim by Ngāti Rangi that Ngāti

Uenuku have no distinct customary interests in the land that can be recognised.

39

Central Claims Charitable Trust Oral and Traditional History Report (Wai 903, A152)


Ngāti Rangi say that the existence of whare wānanga within the boundaries of the

land strengthens its case that the area is customarily exclusive to Ngāti Rangi.

However, counsel contended that the existence of these wānanga supported the idea

that it was a place of interest to other Whanganui groups. The wānanga were not

exclusively for those of Ngāti Rangi descent. Counsel submitted that despite Ngāti

Rangi’s position that they have sole kaitiakitanga of that part of the mountain, it

should not be exclusive to the point of exclusion.

Respondents’ case

[75] As foreshadowed, Mr Milner argued that the applicants have failed to identify

any specific evidence relating to Ngāti Uenuku’s use, occupation, place names,

history, and activities in respect of the block, or even in areas of close proximity to

the block, that they would have presented to the Court in the 1997 and subsequent

hearings. Counsel further argued that the applicants’ witnesses also acknowledged

that recognised experts in Ngāti Uenuku were present at the original proceedings.

Evidence from these said experts in Ngāti Uenuku traditions have explicitly rejected

a separate or distinct Ngāti Uenuku claim to the block.

[76] Mr Milner contended that the evidence put before the Court in the original

proceedings was provided by tohunga and pahake who were considered

knowledgeable within Ngāti Rangi and Whanganui nui tonu including Ngāti

Uenuku. The evidence was correct and appropriate and met the Act’s requirements

for identifying how the land had been held in accordance with tikanga Māori in the

period up to 1997. The approach taken in the original proceedings was not intended

to be exclusionary and was fully cognisant of the connections with, and interests of,

Whanganui nui tonu. Mr Milner submitted that the three tupuna identified were

appropriate in tikanga Māori and were identified to be inclusive. The appropriate

tupuna for the block was Rangiteauria. His siblings were included as a mechanism

to maintain connections and whānaungatanga with those who also have connections

to Ruapehu, including Ngāti Uenuku and Whanganui nui tonu.

[77] Counsel submitted that there is no evidence to support the applicants’

contention that they would have presented better evidence to the Court in the original

proceedings. Moreover, Mr Milner reiterated that Ngāti Uenuku experts have

explicitly rejected a separate or distinct claim to the block.


[78] Mr Milner argued that the claims regarding the Native Land Court

proceedings are flawed and lack significant context. He submitted that the applicant

had failed to provide all the relevant context regarding the Native Land Court

hearings, namely that Topia Turoa made claims on behalf of a number of hapū not

just Ngāti Uenuku. He further added that Turama Harawira, Toni Waho and Che

Wilson all maintained that there are no distinct rights of Ngāti Uenuku to the area of

Rangiwaea Tāpiri.

[79] Counsel contended that in relation to the disposal of kōiwi in the Crater Lake,

Don Robinson and Rangi Bristol both agreed that they had heard of the tradition. He

also argued that counsel had failed to provide any evidence to support his

contentions concerning the ‘creation myth’ and “invented whakapapa” assertions.

Mr Milner argued that accordingly these submissions can be given no weight.

[80] Mr Milner then submitted that none of the evidence referred to by counsel for

Mr Haitana goes beyond broad statements of association to Ruapehu generally. Nor

are any of the statements of relevance to Rangiwaea-Tāpiri.

[81] Counsel points out that the evidence filed by Olive Roach and Karina

Williams simply referred to Ruapehu generally. The evidence of Don Robinson

related to the area to the south west to North West of the mountain rather than to

Rangiwaea-Tāpiri. The evidence of Pani Te Hore and Rangi Bristol referred to

Manganui o te ao and other blocks.

[82] Mr Milner acknowledged that Ngāti Uenuku have rights and interests in the

areas referred to by most of the witnesses. The areas of Manganui o te ao and

Waimarino are the traditional rohe of Ngāti Uenuku. The trust’s witnesses also

acknowledged shared interests in the area south east of Ngapākihi and Raetihi.

Counsel says however that these areas are located some distance from Rangiwaea-

Tāpiri. He submitted that the trust’s witnesses have explicitly rejected a separate or

distinct Ngāti Uenuku interest in the area of Rangiwaea-Tāpiri. Those witnesses

acknowledged the mountain as a food bowl, but only in certain areas.

[83] Mr Milner then submitted that none of the knowledgeable and respected Ngāti

Uenuku, Ngāti Rangi and Whanganui people involved considered that there was a

distinct Ngāti Uenuku claim to be made in the area of Rangiwaea-Tāpiri. Counsel

argued that the most reliable source of information for hapū and iwi rights and


interests are the respected kaumātua and repositories of knowledge within hapū and

iwi, not Native Land Court records or technical reports.

Discussion

[84] To say that Te Kāhui Maunga, the principal mountain trio of Tongariro,

Ngauruhoe and Ruapehu, are the iconic centre of Te Ika a Maui (the North Island) is

an understatement. These sentinels of te iwi Māori have endured for millennia

standing silently, and not so silently, watching the ebb and flow of hapū and tribal

dynamics as well as the more recent impacts of colonisation and the irreversible

changes it wrought to the landscape. That they have been grouped together in close

proximity according to tradition by their primeval parents, Ranginui and

Papatuanuku, and as a result of subsequent events, simply adds to their mystique.

Those traditions that have gathered around them over generations provide a diverse

framework of customary interests and associations that affect a number of tribes then

as now. In short, they are mountains of whakapapa, of history, of oratory and of

poetry. Little wonder then that their uri (descendants) sometimes compete for their

attentions.

[85] In any event, for current purposes, when considering the alleged omission

relied on by the applicants to activate the s 45 jurisdiction, a brief review of the

background to this proceeding since the 1960s is necessary. Moreover, as some of

the parties place almost singular reliance on the records of the Native Land Court, it

is necessary to provide some context as to the processes of that body and the varying

perspectives of those who have had to endure its functions over preceding

generations.

The Native Land Court

[86] Māori are understandably ambivalent about both the institution of the Native

Land Court and its processes given its pivotal role in the extinguishment of Māori

customary land and the wholesale alienation from collective title through the device

of individualisation.40

The consequent impoverishment of hapū and iwi as a direct

result of the Native Land Court processes has long been decried by claimant

40

See for example Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the

Turanganui a Kiwa Claims (Wai 813, 2004) and Waitangi Tribunal, Report of the Waitangi Tribunal

on the Orakei Claim (Wai 9, 1987) [Orakei Report]


communities.41

Despite the assurances acknowledged in the Treaty of Waitangi,

history attests to the destruction of customary land tenure, the loss of the majority of

the Māori land base and the resulting erosion of tribal autonomy and cohesiveness.42

By the beginning of the early 20th century well over 12 million acres of Māori

customary land had passed through the Court by 1909.43

Undoubtedly, the

disposition and resulting disempowerment of hapū through the loss of lands has had

a profound and ongoing impact. Invariably, the outcome was the impoverishment of

the tribes and their economic, social and political marginalisation.

[87] As foreshadowed, it is hardly surprising that Māori have maintained a

suspicion of the Court and its motives while at the same time acknowledging, albeit

reluctantly on occasion, the value of some of its record of proceedings. Along with

Williams, Boast has written extensively on the difficulties created by the Court and

its records.44

These realities have not endeared the Court and its conduct to Māori

over the generations and in many rohe that ambivalence, if not outright opposition,

remains to this day. The short point is that the Native Land Court is often viewed

with unease, uncertainty and suspicion. However, that is not to say that all of its

decisions were incorrect every time.45

[88] The reality is that, as claimant communities can attest, the records that have

survived provide a rich source of material on the historical overlays of Māori custom

and tradition relating to land. As Ballara and other experts point out, not all of the

evidence before the Court was correct and not all of it was wrong either.46

Context

was everything. For example, it is unsurprising that unsuccessful claimants in a

Native Land Court hearing would bitterly protest the fact that those iwi and hapū

41

See Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997); Orakei Report, above n 41, ; and He

Maunga Rongo: Report on Central North Island Claims, Stage One (Wai 1200, 2008) 42

Richard Boast The Native Land Court 1862-1887: A Historical Study, Cases and Commentary

(Brookers, Wellington, 2013) [The Native Land Court 1862-1887, Volume 1]; Richard Boast The

Native Land Court 1888-1909: A Historical Study, Cases and Commentary, Volume 2 (Brookers,

Wellington, 2015); Tom Bennion The Māori Land Court and Land Boards, 1909 to 1952 (Rangahaua

Whanui Series, Waitangi Tribunal, 1997); Richard Boast Buying the Land, Selling the Land:

Governments and Maori Land in the North Island 1865-1921 (Victoria University Press, Wellington,

2008) [Buying the Land, Selling the Land] 43

David Williams Te Kooti Tango Whenua: The Native Land Court 1864-1909 (Huia Publishers,

Wellington, 1999) at 58-60 44

Boast The Native Land Court 1862-1887, Volume 1, above n 42; Bennion, above n 42,; Boast Buying

the Land, Selling the Land, above n 42 45

See Boast The Native Land Court 1862-1887, Volume 1, above n 42 46

Angela Ballara Iwi: The Dynamics of Māori Tribal Organisation from c.1769 to c.1945 (Victoria

University Press, Wellington, 1998)


who did succeed had entered into sale or long term leasing agreements with the

Crown in the months and years preceding the hearing.47

In other words, it is not

unusual for unsuccessful claimants to land in the Native Land Court to maintain their

opposition to a decision where it subsequently emerged that the claimants who did

succeed had agreed to sell the land prior to the Court hearing.

[89] Another flaw in the process was notice and the location of hearings. There are

many examples of Native Land Court proceedings being held outside of the rohe in

question. An added complication was the hearing of two different blocks at the same

time.48

Fraud was not uncommon and in one hearing the Court described the

evidence presented as nothing but the “grossest perjury.”49

Multiple overlapping

agendas were commonplace and witnesses were not beyond tailoring their evidence

to suit particular circumstances and objectives that might have been contrary to their

earlier evidence in another case.

[90] In summary therefore, while the records of the Court do provide an important

and often unique source of history, whakapapa, tikanga and customary land tenure,

its evidence is not always entirely reliable. Moreover, history has shown that if a

particular whakapapa line or right of a specific iwi or hapū has been emphasised at

an early stage, it was not uncommon for that perspective, once legitimised by a

Native Land Court judgment, to be simply repeated both in subsequent hearings or

appeals and in other fora. Generations later, individuals would copy whakapapa out

of early Native Land Court decisions and pass that information onto succeeding

generations which might result in a separate manuscript or set of private papers

decades after the original hearings.

[91] If, for example an “error” had been made in the original Native Land Court

hearing, affirmed in a rehearing or appeal, and then copied down from the Native

Land Court source and entered into a private journal or manuscript decades later, the

original error would have been repeated several times over several decades. The key

point is that the repetition of an earlier error, no matter how many times repeated,

47

Boast The Native Land Court 1862-1887, Volume 1, above n 42 48

See for example Matahina (1881) 1 Whakatāne MB 267 (1 WHK 267); Putāuaki (1881) 1 Whakatāne

MB 270 (1 WHK 270) and Pokohū (1881) 1 Whakatāne MB 274 (1 WHK 274) in Boast The Native

Land Court 1862-1887, Volume 1, above n 42, at 905, 911 and 916 49

Matahina (1881) 1 Whakatāne MB 267 (1 WHK 267) in Boast The Native Land Court 1862-1887,

Volume 1, above n 42, at 905


can never make that first inaccuracy correct. So while it is important to cross

reference for the purposes of corroborating Native Land Court materials with

external sources, care also has to be taken that the external source relied on is not

simply a variation of the original Native Land Court record.

The evidence in this case

[92] The Native Land Court and its records have been referred to extensively

during these hearings. They have also been referred to and relied on by some

claimants during the Waitangi Tribunal hearings in the Whanganui and Te Kāhui

Maunga Inquiries. My conclusion is that the records of the Native Land Court

provide an important, if sometimes tainted, source of information on Māori history

and custom. A cautious approach is therefore necessary when dealing with some of

the historical records of the Court, its decisions and orders, especially where the case

was highly contested or where, due to absences, the decision was not subject to

serious and expected challenge.

[93] It is almost trite to record that the preferred and indeed most appropriate venue

for any determination of questions of history, tikanga and whakapapa is the marae.

The Court should only ever be the last destination on a long list of possibilities. The

risk in asking a Court to determine such questions is that, inevitably, as such matters

involve the customs and history of iwi and hapū, all the Court can do is attempt to

assess the complex overlapping sets of relationships in its efforts to determine

whether or not an application should be granted or dismissed.

[94] As a preliminary observation I note that the Tribunal attempted to grapple with

this issue but does not appear to have made a conclusive determination one way or

the other. In its report Te Kāhui Maunga the Tribunal simply underscores the

complex relationships and overlays between those groups who can claim descent

from an ancestor from this region who has the name, wholly or partly, Uenuku.50

To

provide some relevant context, it is important to note that the Tribunal commented:51

Another challenge for this Tribunal during the hearings was learning who was

the eponymous ancestor of Ngāti Uenuku. Several Uenuku identities were put

before us by various claimants and their counsel each suggested theories as to

the derivation of the name Uenuku. The matter was made more complex when

the several claimant groups at Te Puke Marae, Raetihi, acknowledged that they

all belonged to Ngāti Uenuku. It is unusual in any district for people not to

50

Waitangi Tribunal Te Kāhui Maunga, above n 30 51

Ibid at pp 70-112


know the founding ancestor of their hapū or iwi, but Aiden Gilbert suggested

this was the case. He proposed a number of tipuna as potential progenitors even

including the Uenuku of Hawaiki fame (father of Paikea and Ruatapu) as a

possibility. Wati Taurerewa, in a line of descent from Turi of the Aotea waka to

herself, supplied the names of various Uenuku – Uenuku o Whatikura, Uenuku

Rau, and Uenuku Poroaki – while stating her pepeha (tribal identifier) thus:

‘Ko Ruapehu te maunga, Whanganui te awa, Āti Haunui-a-Pāpārangi, Uenuku

te hapū, Aotea te waka.’ Uenuku nui a Whatihua, Uenuku Popoti, Uenuku

Tutee and Uenuku Potahi were some of the other names mentioned.

Some witnesses were adamant they knew which Uenuku it was. Arin Matamua,

who gave evidence for Ngāti Hinewai, told us Uenuku was a child of Hinewai.

Wati Taurerewa supplied a whakapapa chart showing her connection to that

Uenuku who she called Uenuku- Tūwharetoa. This was Ngāti Hinewai II, she

said, who was referred to in the Waimarino list of non-sellers.202 Clearly,

Uenuku-Tūwharetoa, who received interests in several blocks in the nineteenth

century, was too recent to have been the eponymous ancestor of the Ngāti

Uenuku hapū who were then living in large numbers at Manganuioteao. In fact,

he referred to himself in the court hearings as Ngāti Tamahaki.

Others suggested the name Uenuku was not a human tupuna, but instead

referred to a metaphorical ancestor, namely, the rainbow existing as a korowai

in the spiritual realm. They suggested that the upper Whanganui hapū and

whānau living in its embrace made up the Uenuku people.

There is enough evidence to suggest the Uenuku, from whom derives the hapū

Ngāti Uenuku, was indeed an ancestor and not a supernatural phenomenon.

…

From all the evidence put before this Tribunal, the explanation for Ngāti

Uenuku seems to be this: the hapū name refers to two separate but related

Uenuku – Uenukumanawawiri and Uenuku, son of Tūkaihoro. Obviously,

Ngāti Uenuku and Ngāti Rangi have lived side by side for a very long time.

This is because of common blood ties – they are all descendants of Paerangi,

through Uenukumanawawiri or her first cousin, Tamatuna. Their two major

settlements were Murimotu and Manganuioteao (where they were well

established in the nineteenth century) and the people would seasonally migrate

from one settlement to the other. ‘They also joined the yearly migration to the

sea coast for the kahawai fishing at the river mouth, and saltwater fishing out to

sea.’

…

In the case of Ngāti Uenuku, after sifting through the blurred and sometimes

veiled evidence, we believe the progenitor of the hapū that resided during the

nineteenth century in the Manganuioteao valley, was the daughter of Tūkaihoro

and also the nephew of Tamahaki. These two were the grandson and son

respectively of Tamatuna (see whakapapa chart, section 2.4.4(2)). However, the

descendants of Uenukumanawariri also carry the name Ngāti Uenuku and the

close connection between the two groups is self-evident (for example, Uenuku-

manawariri is Tamatuna’s first cousin). Ngāti Uenuku’s land interests in this

inquiry district through Uenuku (nā Tūkaihoro) are in Waimarino while

interests derived through Uenuku-manawawiri lie generally between the

Mangawhero and Whangaehu rivers.

[95] Evidence for the applicants referred to multiple individuals from different

generations and regions bearing the name Uenuku. In contrast, evidence for the


respondents contended that reference to a multiplicity of ancestors called Uenuku

from different tribes, different rohe and with distinct whakapapa, was more a sign of

uncertainty and confusion.52

Even so, all three witnesses for Ngāti Rangi, Messrs

Waho, Wilson and Hāwira, accepted that Ngāti Uenuku are a group distinct from

Ngāti Rangi. Nevertheless, they all emphasised the significant overlaps between

them. However, they did not accept that any group known as Ngāti Uenuku had a

right to assert an individual and distinct legal claim, separate from Ngāti Rangi, to

Rangiwaea Tāpiri.53

[96] It is acknowledged that while the founders of tribes often have only one

principal tupuna, many ancestral figures share names. This is not uncommon.

During the hearings I referred to the example of Waitaha and how in the Waiariki

region, at least three tupuna bear that name: Waitaha Ariki-kore, Waitaha Turāuta and

Waitaha-a-Hei.54

All were referred to at some point, depending on the context, as

Waitaha-nui or Waitaha-ariki-nui.55

They, like their progeny, also lived in the same

region, Te Moananui a Toi (Bay of Plenty), which extended inland into the Rotorua

lakes district. Given that it is not unusual for multiple ancestors to bear the same or

similar names, a key task is to distil from the available evidence which, if any, are

the tupuna relevant to the land.

[97] Reference was also made to whether or not particular iwi or hapū could see

Ruapehu and the areas they asserted customary rights or interests over. However, it

is not uncommon for iwi and hapū to have an obscured, limited and in some cases,

no view of their ancestral mountain. For example, Maungapohatu is regarded as the

principal maunga tipuna of Ngai Tūhoe. Yet many of its hapū, particularly those in

the Waimana and Ruatoki Valleys, do not have a line of sight to the maunga, which

is itself part of mountainous terrain in the interior region of Te Urewera. Similarly,

for the hapū of Te Aitanga a Māhaki in Tūranganui a Kiwa (Gisborne), only a

handful of the hapū and marae have line of sight to Maungahāumi.

52

329 Aotea MB 139-207 (329 AOT 139-207): See Turama Hāwira in reference to the evidence of

Aidan Gilbert at 146 53

Ibid at 145 54

Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims, Stage One, Volume 1

(Wai 1200, 2008) 55

Ibid


[98] During the hearings references were also made to apparent confusion over

whether the particular ancestors were male or female. As I pointed out at the

hearing, this is also not uncommon.56

The example mentioned was the difference of

opinion between the majority of the Mātaatua tribes and their Ngai Te Rangi

whanaunga at Tauranga. The former regard the parent of Toroa, the leader of the

Mataatua waka when it arrived in Aotearoa, as Irakewa, a male. However, Ngai Te

Rangi acknowledges that Toroa’s parent was a woman named Wairākewa. So even

between closely related iwi from the same waka confederation, there are separate

traditions on such points. In evidence Mr Wilson also referred to the well known

Ngāti Kahunungu kaumātua and member of the Waitangi Tribunal, the late Tuahine

Northover. It is well understood that the word “tuahine” can mean sister. So once

again, it is not uncommon for there to be differences over the gender of a particular

ancestor or a particular tupuna.

[99] As foreshadowed, in Tau v Nga Whānau o Morven & Glenavy – Waihao 903

Section IX block the Māori Appellate Court held that the Chief Judge must exercise

his jurisdiction by applying the civil standard of proof of the balance of probabilities

having regard to that standard’s inherent flexibility that takes into account the nature

and gravity of the matters at issue.

[100] In the present case, a principal, (although not exclusive) point of contention

was that, according to the applicants, Uenuku, from whom they claim to derive

interests in the land, is not Uenuku Manawawiri. I accept that there is no evidence to

confirm that Uenuku Manawawiri was intended to represent all Ngāti Uenuku’s

interests, to the extent that they are legally distinct in terms of a right to the land. Nor

is their evidence showing that Ngāti Rangi was intended to represent all of Ngāti

Uenuku’s interests. Even so, from the available evidence, it would appear that no

objections were made by those of Ngāti Uenuku at the time these matters were being

dealt with by the Court. Given the Tribunal’s findings that Ngāti Rangi, Ngāti

Uenuku and Ngāti Tamahaki are all closely related, it is perhaps unsurprising that no

objections were received at the time of the earlier proceedings, notwithstanding the

claims over notice.

[101] That said, in my assessment, the applicants have not provided any further and

compelling evidence that, although they have an interest in the land of some kind

56

329 Aotea MB 139-207 (329 AOT 139-207) at 207


(through the Ngāti Uenuku that they claim affiliation), that this interest is so distinct

as to require separate recognition in the nature of a legal right to the freehold of the

land or as a beneficiary of a trust in the same manner as the present custodians.

[102] Having regard to evidence outlined above, I find that on the balance of

probabilities the applicants have not proven an individual and distinct legal claim to

the land, through an ancestor named Uenuku, which would be separate and exclusive

from the claim of Ngāti Rangi. It is evident that Ngāti Uenuku, in its various forms,

has a close association with Ruapehu and has utilised its resources for seasonal

purposes, including camping and hunting. The extent to which this may have

included the occupation or use of Rangipō North 8 or Rangiwaea Tāpiri is unclear.

What is known is that both tribes have a close association and to that extent an

interest of some kind in the land.

Does Ngāti Rangi accept that the Ngāti Uenuku has an interest in the land?

Submissions for Ngāti Rangi

[103] Mr Milner argued that the separate existence of Ngāti Uenuku or Uenuku was

not denied in the original proceedings. Each of the trust’s witnesses freely

acknowledged the separate existence of Ngāti Uenuku or Uenuku. In addition, the

Tribunal report does no more than suggest a general interest of Ngāti Uenuku in the

mountain. Counsel contended that attempting to interpret Native Land Court records

in isolation ought to be undertaken with caution and that it is a matter for the Court

to determine what weight to give these documents.

Discussion

[104] At the hearing held in Ohakune on 25 and 26 August 2014, Mr Waho made an

important, if qualified, concession:57

Our message as Ngāti Rangi was that we acknowledge Ngāti Uenuku on the

mountain, absolutely. We acknowledge Ngāti Uenuku fully in the National

Park area. But we don’t acknowledge Ngāti Uenuku, as the applicants have

submitted, in this part.

...

the bulk of the ski field is Uenuku.

57

326 Aotea 239-315 (326 AOT 239-315) at 311-312


[105] Even so, he did not appear to acknowledge that such an interest amounted to

any form of legal ownership of the land. Similarly, at the 29 October hearing, Mr

Hāwira also confirmed that Ngāti Uenuku was indeed a separate identity to Ngāti

Rangi and that whakapapa to the ancestor Uenuku Manawawiri did not mean

exclusive connection to the land through that line.58

[106] Put another way, I understood Mr Hāwira to say that Ngāti Uenuku comprised

a number of tupuna that included Uenuku Manawawiri and at least two others

referred to in the evidence. Even so, he was equally emphatic that the Uenuku who

hails from the Tainui confederation was definitely not an ancestor from whom Ngāti

Uenuku derives a connection in the context of interests in Rangiwaea Tāpiri.59

[107] Equally importantly, Te Kahui Maunga Report says:60

We did not get the full picture of Ngāti Rangi because not all their evidence

was available to this Tribunal. But again their whakapapa clearly demonstrates

that Ngāti Rangi, Ngāti Uenuku, and Ngāti Tamahaki are all closely related and

their whakapapa are so intertwined that it appears almost impossible that

members could be one and not the other. This was demonstrated during the

hearing at Te Puke Marae when all parties acknowledged their Ngāti Uenuku

connection.

[108] It is evident therefore, on the available evidence, that Ngāti Uenuku has an

“interest” in Ruapehu. The evidence also confirms that Ngāti Rangi and Ngāti

Uenuku are closely related and as the Tribunal found their whakapapa are so

intertwined that it appears almost impossible that individuals could be one and not

the other. I consider that Ngāti Rangi does not dispute that Ngāti Uenuku have an

interest in Ruapehu generally. Rather, it is the extent to which they have an interest

in Rangiwaea Tāpiri and the exact nature of that interest in the land - both of which

remain unclear, in the absence of more compelling evidence.

[109] This approach is consistent with that of the Māori Appellate Court when

considering the meaning of “whanaunga” in the context of associations with land in

Mihinui - Maketu A100.61

In that judgment the majority considered, in obiter

comments, that interests and associations, while important, do not necessarily equate

to rights to acquire undivided interests in the freehold:

58

329 Aotea MB 139-207 (329 AOT 139-207) at 143-144 59

Ibid at 146, 188-189 60

Waitangi Tribunal, Te Kāhui Maunga, above n 30 at 112 61

(2007) 11 Waiariki Appellate MB 230 (11 AP 230)


[14] For example the boundaries of the Mataatua iwi are defined as Mai i Ngā

Kuri a Whārei ki Tihirau. There is no doubt that Tihirau falls within the rohe of

Te Whānau a Apanui tribe and Te Whānau a Kauaetangohia hapū. While the

comparison is not completely identical, it would be unthinkable that any of the

Mataatua iwi and hapū, could claim a right to acquire shares in Māori freehold

land held by Te Whānau a Kauaetongohia simply because they are whanaunga

associated in accordance with tikanga Māori with the land.

[110] Put another way, while overlays of interests between iwi and even hapū are

not unusual, an interest does not always mean a legal right to enter into the title as a

beneficial owner or as the beneficiary of any trust created over the land. Indeed, the

statements of association and areas of interest maps now common place in Treaty

settlements are a more contemporary acknowledgment of this reality.

[111] Moreover, I am unsure that it is indeed the role of any Court to conclusively

determine such matters in the twenty-first century. Surely such conduct properly

belongs in another time now past? I suggest that a possible process in the present

circumstances would be for the relevant parties to explore and define – if such

definition is both necessary and appropriate – the nature and extent of the Uenuku

interest via traditional processes of hui and wānanga on the marae, not the

courtroom. Whether or not such a process might be assisted by independent external

support would be a matter for the parties to consider and, ideally, agree.

[112] My conclusion is that Ngāti Rangi witnesses acknowledged Ngāti Uenuku

have an interest in the land that can be derived in customary terms from lines other

than Uenuku Manawawiri. They do not appear to accept that such an interest

translates into legal title to the freehold. I agree, since there appears to be

insufficient evidence to support such an assertion as to ownership interests in the

freehold. More importantly, the nature and extent of those interests is more properly

matters for wānanga at the relevant marae under the combined authority and

guidance of the kaumatua and pūkenga of the affected iwi and hapū.

Should a de novo hearing have been held?

Applicants’ submissions

[113] Mr Bennion argued that the hearings and decision on Ngāti Rangi interests in

the block were procedurally unsafe as the formal investigation of title on a true de

novo basis, as ordered by the Court in 1998, never took place.


[114] Counsel contended that the principal error was that the Court did not hold a de

novo hearing under s 132 of the Act as directed in 1998. Mr Bennion referred to the

1997 hearing where counsel for Ngāti Rangi confirmed that they had filed customary

evidence at that time to illustrate the inadequacy and injustice of the 1966 hearing.

Rather than seeking a definitive ruling on their ownership, they sought to reopen the

question of who had title to the block. Mr Bennion argued that no such

reinvestigation has occurred and pointed out that s 132 of the Act changed the

approach to investigations of Māori customary land. The Court was therefore

required to determine title and interest in Māori customary land according to tikanga

Māori.

[115] Mr Bennion added that, instead, the Court received advice without Ngāti

Tuwharetoa’s formal evidence that they no longer wished to contest their interest in

the land. The Court made no further inquiry as to withdrawal. The Court then

moved to consider the evidence to describe the Ngāti Rangi interest in the land

whether to issue orders. The sitting held at Maungarongo Marae fell well short of a

formal investigation of title. The Court appeared to essentially confirm the Ngāti

Rangi tupuna as owners. The Court did not explain the process nor did it hear

submissions from parties or consider the change in wording under the Act. Rather,

there was a brief call for objections, followed by an adoption of the 1997 evidence,

then the orders were issued.

[116] Counsel argued that tikanga Māori means Māori customary values and

practices. He relies on the decision in John da Silva v Aotea Māori Committee &

Hauraki Māori Trust Board which held that the new approach under the Act required

an emphasis on tikanga and relationships between iwi.62

Mr Bennion also

emphasised that the Act had a focus on group identity rather than individuals.

Counsel submitted that the Court should vigilantly preserve group customary

interests where they exist and should not be satisfied with seeing them subsumed

into mere individual whakapapa interests without good evidence.

[117] Mr McGhie submitted that his clients had not formally sought a de novo

hearing while noting that the present process was “somewhat of a substitute for a de

novo hearing.”63

62

(1998) 25 Taitokerau MB 212 (25 AT 212) 63

329 Aotea MB 208-245 (329 AOT 208-245) at 223


Respondents’ submissions

[118] Mr Milner argued that there is no evidence to support the proposition that the

2001 proceedings were procedurally unsafe nor is there any evidence as to some of

the matters “theorised” by counsel on this point. The applicants’ late development of

this argument simply underscores the changeable and unreliable nature of the

application.

[119] Mr Milner emphasised that this argument is characteristic of the application as

a whole which is unclear and changeable. He further argued that this argument is

more akin to a fishing exercise by the applicants.

Discussion

[120] As foreshadowed, on 28 August 1998 Deputy Chief Judge Smith issued orders

concerning the 1960 decision to vest the block in three hapū of Ngāti Waewae. He

determined that the actions of the Court in excluding the Whanganui people from

adequately presenting their case constituted a sufficient omission for the Chief Judge

to exercise his power. He made the following order:64

Accordingly in terms of section 44 Te Ture Whenua Māori Act 1993 there is an

order setting aside the determination by His Honour Judge Morrison at 39

Tokaanu MB 185-191 on the 17th

August 1960 to the [intent] that the

application currently standing adjourned sine die may now be brought on de

novo.

[121] Butterworth’s Law Dictionary defines “de novo” as:65

…to begin de novo is to begin again from the beginning.

[122] Following the 1998 hearing Judge Savage held a conference on 13 December

1999 to discuss the proceedings. He confirmed that notice had been sent to Mr Feist,

Mr Tumu Te Heuheu and Mr Gray:66

The reason for calling the conference was to find out what was really going to

happen, whether we now commence the second round or whether there was an

amicable solution.

64

Gray – Rangipō No 8, above n 13, at 218 65

Peter Spiller Butterworths New Zealand Law Dictionary (7th ed, LexisNexis, Wellington, 2011) at 79 66

95 Aotea MB 271 (95 AOT 271)

Documents

IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT … · 2017. 8. 8. · 2017 Chief Judge’s MB 269 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A20070002188 CJ 2007/007