21 DECISION - Māori Land Court | Māori Land Court...Wiremu Ruru (Secretary) made appearances during the hearings. At later hearings, Mr Watene Horsfall raised the issue of the trustees

IN THE MAoRI LAND COURT OF NEW ZEALAND TE TAIRAWHITI DISTRICT

Place: Gisborne

Present: Judge CL Wickliffe K Lardelli, Clerk of the Court

Date: 22 December 2003

Application No: A20020003345

Subject: Repongaere 4G (Part)

Minute Book: 157 GIS 43

Section: Maori Reservation Regulations 1994, rr 15 & 21

DECISION

Introduction

This application concerns Rongopai Marae, one of the oldest and most famous meeting places within the Gisborne District. The meeting-house was built and completed on 24 October 1887 after being erected by members of the Ringatu Faith. They built the marae in preparation for the return of Te Kooti after he received a pardon by Queen Victoria. For various reasons, Te Kooti did not return and the marae was left tapu for many years. It was not until the 1960s before the tapu was lifted. According to the trustees, the marae is of historical significance encompassing tikanga Maori and the spiritual, cultural, and birth right of the whanau of the marae.

The issues giving rise to the application while specific to the whanau of Rongopai Marae, are not uncommon to those affecting other marae throughout the district. They concern the different roles of Maori reservation trustees and Marae Committees, namely who has legal responsibilily for the marae and what is the extent of the rights and obligations of reservation trustees viz a viz the Marae Committee.

It seems that the Rongopai Marae Committee was once responsible for the general administration of the marae. In addition, the Marae Committee was also making decisions concerning activities on or use of the marae. According to law, both these areas are the responsibility of the reservation trustees and it is inconsistent with the Maori Reservation Regulations 1994 for any other body to be delegated responsibility for dealing with these activities.


The trustees must keep accounts and they are the only people able to determine activities and use of the reservation .

The system that was implemented has been central to the way things have been done at Rongopai. The system worked while there was a good rapport between the Marae Committee and the Maori Reservation Trustees. Historically, this was facilitated by the Chairman of the Marae Committee who was also a trustee. But that was not the case when this application was filed. The situation at filing was that the Marae Committee chairman was different to the Chairman of the Marae Trustees.

As can be seen by what is detailed below, the administration of the marae by the Marae Committee did not work as a system once there was acrimony between that Committee and the reservation trustees.

The Application & Allegations

The original application concerning this matter was filed by Ms Melissa Wai Joanna Horsfall on 21 May 2002. It was an application filed under the Maori Reservation Regulations 1994, rr 15 & 21. The applicant was supported by a number of people, including Mr Watene Horsfall, Chairman of the Rongopai Marae Committee. Essentially, the grounds for bringing the application were:

1. That a trustee had been allowed to occupy a building within the marae complex, and that when told to vacate, damage was caused to the building;

2. That meetings held by the trustees for the purpose of upgrading the marae were illegal because:

• the meetings were not advertised as required by the Maori Reservation Regulations 1994; and

• there was never a legal quorum of trustees at the meetings to validate decisions regarding plans, expenditure and recruitment of contractors and workers;

3. That the Whanau never had the opportunity to see the plans and discuss them;

4. That the Whanau did not agree with the plans (as they understood them to be at the time of filing) for the update.


The applicant also produced correspondence, which were requests from her for information concerning expenditure by the trustees on the marae upgrade project. During proceedings, the applicant asserted further that the trustees have been acting with a total lack of accountability, transparency and with possible conflicts of interests.

The applicant was a temporary member of the Marae Committee and she was supported by the Chairperson of that committee, Mr Watene Horsfall. The other members of the Marae Committee, Mrs Anne Horsfall (treasurer) and Mr Wiremu Ruru (Secretary) made appearances during the hearings.

At later hearings, Mr Watene Horsfall raised the issue of the trustees not meeting regularly or attending Marae Committee meetings. He also questioned the propriety of a trustee benefiting directly or indirectly from their fiduciary position as a trustee by receiving the benefit of:

• Occupancy of the kauta on the marae which was then vacated, allegedly leaving damage;

• Personal use of the telephone on the Marae;

• Payment for project management fee for the restoration project.

Mr Watene Horsfall alleged an absence of reasonable financial management and financial reporting by the treasurer for the trustees (Ms Carol Marino) on all the above counts, particularly in relation to the refurbishment project. He was also concerned that requests for the access to the Marae Committee records were restricted by Ms Marino.

In terms of relief, both the applicant and Mr Watene Horsfall sought directions from the Maori Land Court on how to deal with the issues raised by the application. Mr Watene Horsfall also raised the possibility of the Court issuing an injunction to prevent the refurbishment project continuing. He went on at a later hearing to request that all the trustees be removed . No application for removal was ever filed.

The Trustees

The following people were recorded as trustees of this reservation at the time the application was made:

Alan Te Kauru Haronga

Albert Horsfall (Chairman)

Caesar John Pere

Caroline Marino

Hana Edwards (deceased)

Hiraina Riria Pere Wilson

Joseph Anaru Hetekia Te Kani Pere

Kura Whaanga Beech (deceased)

Martin John Baker Jnr

Norma Harema (deceased)

Olive Pani Tamatea

Peter Tupara

Potatutatu Bill Ruru

Puku or Uenuku Smiler (deceased)

Riperata Pere (deceased)

Riria (Lillian) Williams


As can be seen five trustees were deceased and had to be replaced. The majority that are alive are kaumatua/pakeke, and only 3 were under 65 years of age. According to the Chairperson of the reseNation trustees, Mr Albert Horsfall, not only did these people act as trustees, they were also being called upon to support the younger generation and tribal organisations during Waitangi Tribunal Hearings, tangi and other special functions. Although not present for all meetings given their health and age, there was always at least one trustee present at most meetings held on the marae. It was clear from the evidence that many of these trustees had over the years contributed a significant amount of their time to the marae and to the Rongopai Marae whanau and I note in particular the evidence of Mr Caesar Pere, Mr Sid Inhimaera, and Mr Peter Tupara.

Maori Land Court Conference and Hearings

Initially this application was dealt with by way of a judicial conference convened under section 67/93 on 5 July 2002 (152 GIS 189-213). At the end of that very acrimonious session, I adjourned the application for two months and I directed the following:

• That the Maori ReseNation trustees (trustees) produce audited accounts;

• That the Chairman of the trustees produce a report on the general administration of the reseNation and supporting resolutions by way of minutes of major decisions relating to the funding of the marae generally and in relation to the refurbishment project;

• That the applicant pay $100 as security for costs, to be refunded if the application were successful;

• That the applicant further particularise the allegations that would justify the Court undertaking the enquiry.

• That the applicant advertise notice of the Court sitting in the Gisborne Herald .

Minute Bool<: 157 GIS 47

The first hearing of the application was held on 4 October 2002 (153 GIS 76-84) .

The applicant complied with the above directions. The Trustees were unable to comply because the audited accounts and the report of the Chairperson depended on the records held by the Marae Committee being made available. As the systems in place in large measure placed the administration of the marae in the hands of the Marae Committee, only the accounts for the refurbishment project were made available to the Court as these were directly under the control of the Chairman of the trustees. It was also obvious that correspondence and documents filed in the Maori Land Court had not been circulated to all parties so the matter was adjourned for a further month. I also directed that all documents held by the Marae Committee pertaining to the marae be delivered to the Chairperson of the trustees to enable him to complete his report. That report was filed in the Court on or around 20 October 2002.

The next hearing was held on 25 November 2002 (153 GIS 265-323) . At this hearing all the evidence was heard and it was obvious that a tension exists between those of a younger generation of leaders who want to operate the marae in accordance with western law and those of older generation or ways of thinking who want to respect tikanga and the unique position held by kaumatua/pakeke trustees as taonga and as the fountains of knowledge for the whanau. The latter say in response to the application that to be a trustee is a birth-rite that should not be vacated for people who have no knowledge of marae kawa and tikanga.

Valid points were made from both sides and I was convinced that the only answer to the intractable positions being taken by both those who represented the Marae Committee and those who represented the reservation trustees was to obtain a clear view of how the whanau of Rongopai wanted to progress into the future . Consequently, I directed the following:

"This matter will stand adjourned to April 2003 to allow the application under S.338/93 for the redefinition of the class of beneficiaries for whom this reservation is set aside to be heard in this Court in the month of February or March. At least one week following the hearing of the application and no later than 2 weeks, the Registrar is directed to convene a meeting of beneficiaries of the Wi Pere whanau who will by then be the class or group of people for whom the reservation is set aside to convene that meeting at Rongopai Marae to discuss the following agenda items. That direction to the Registrar is made pursuant to S.40 Te Ture Whenua Maori Act 1993. The agenda items for the meeting will be:-

1. A discussion of the charter for the reservation .

2. Financial accounts for the period 2002 to 2003 up to the time that the meeting is called . The accounts don't have to be audited.


3. The audited accounts for the period 2001-2002.

4. Whether or not there should be an election of trustees or whether or not whanau members should merely nominate their representatives on to the trust.

5. Whether or not there should be a marae committee for the reservation .

6. The procedures that should be adopted for meetings of marae trustees.

7. The marae upgrade.

The agenda items need not be in that order but all of those topics need to be discussed at the meeting.

The Registrar is then directed to file a report to the Court within 7 days of the meeting and to have that report circulated to all parties so that by April when the Court sits, they all have an opportunity to respond to points raised in the report .

The meeting at Rongopai should be advertised no later than 7 days before the meeting to allow the beneficiaries of the reservation to participate in the election and discussions that will take place during the day.

Mr Murray MacGregor if he is not the facilitator, should also attend the meeting."

No proxy votes were to be used. After being advertised in the Gisborne Herald on 24 January 2003, the meeting was held on 15th February 2003 at Rongopai Marae.

At the meeting the people present resolved that:

• Each whanau associated with the marae would elect the representative for their whanau . At the AGM that member is announced as the whanau representative. It was the general view that trustees should only to be replaced where they resign or where they are deceased. I note that a trustee may also be removed by the Court for failure to comply with their responsibilities as trustees;


+ There should be a marae committee for the marae;

+ Procedures for all meetings on the marae would be included in the Charter of the Marae.

The meeting also considered the audited accounts of the reservation for the years ending March 2002 and March 2003. There was a discussion on the marae upgrade. Finally, it was agreed to conduct the AGM of the Marae Reservation before returning to Court.

That AGM was conducted on 11 May 2003. The names of those to be trustees were announced and a working party to develop a Charter for the Marae was established. The AGM was attended by Maori Land Court staff, namely Mr Murray MacGregor and Ms Coralie Kihi.

I should note for completion of the narrative, that on 3 February 2003 the Maori Land Court made an order recommending to the Chief Executive of Te Puni Kokiri to redefine the class of persons for whom the reservation Ropongaere 4G and 6 was set aside from Te Whanau a Kai to Te Whanau a Wi Pere.

The names to be appointed as trustees are drawn from those whanau who descend from Wi Pere.

The final Court hearing was held on 19 May 2003. At that hearing, and with the consent of all parties, I made orders under section 239/93 removing, replacing or adding to the trustees. (See 155 Gis MB 78-92)

The names of the following trustees were removed as they are deceased:

+ Riperata Pere

+ Norma Harema

+ Hana Edwards

+ Kura Whaanga Beech

The following people were appointed as replacement or additional trustees:

+ Pania Anne Tamatea Tuhaka to replace Olive Pani Tamatea

+ Pukepuke Alfred Thomas Peawini to replace Puku Uenuku Smiler (deceased)

+ Wi Pere Jrn to replace Caesar John Pere

+ Teina Whaanga-Mita

+ Norma Chambers

Confirmed existing trustees are:

+ Riria (Lillian) Williams

+ Peter Tupara

+ Joseph Anaru Hetekia Te Kani Pere

+ Martin John Baker Jnr

+ Wiremu Ruru

+ Carol Marino

+ Hiraina Pere-Wilson

+ Albert Horsfall

+ Alan Te Kauru Haronga


After these orders were made I reserved judgment on the application under the Maori Reservation Regulations 1994, r 21 .

Relevant Law & Findings

I have been guided in my decision by the Preamble of Te Ture Whenua Maori Act 1993, and sections 2,17, 222 and 338. In addition, the Maori Reservation Regulations 1994 were considered.

Two sections of Te Ture Whenua Maori Act 1994 (sections 2 and 17) noted above, have been regularly analysed and their importance affirmed in a number of Maori Appellate Court decisions including Re Mangaporou TrustAn Appeal by Mr David Churfon 15 WGAP 120 (13 May 2003). In that decision the Maori Appellate Court approved the process of the Maori Land Court referring matters concerning trust administration to the owners and beneficiaries of the trust for discussion and resolution at a properly convened meeting. In doing so, the Maori Appellate Court affirmed that sections 2 and 17/93 require that the decisions made by owners andlor beneficiaries of a trust should as far as possible be given effect to by the Maori Land Court. While that case concerned an ahu whenua trust, the principles thereby espoused apply with equal force to a Maori reservation.

It is clear from the minutes of the hui held at Rongopai that the issues concerning the administration of the reservation were thoroughly considered . Despite the previous failure to comply with the Maori Reservation Regulations 1994, nearly all the existing Maori Reservation Trustees have been confirmed as trustees. That in itself speaks volumes. Clearly the beneficiaries and the


owners of this reservation want these people, in addition to the new or additional trustees to continue in office.

Consequently, guided by the decision of the Maori Appellate Court in Re Mangaporou Trust (2003) the issues raised by the applicant under regulation 21/94 have in large measure been addressed and need not be taken any further as regards nearly all the trustees in office at the time the application was filed. All the trustees now know what their legal obligations are. They must now comply with the Maori Reservation Regulations 1994. They must develop a Charter and they must at all times exercise their responsibilities without delegation to the Marae Committee. Any future failure to comply with the regulations will result in possible removal of trustees, depending on the nature and extent of the breach .

The only trustee for whom concerns remain, is Ms Carol Marino. On a review of the evidence I find she has not performed her role as a trustee adequately for the Maori reservation . I therefore, accept the evidence tendered by the applicant and Mr Watene Horsfall concerning the kauta, phone account and marae upgrade agency payment. I find that she or her organisation (Puangi Hau of which she is intimately connected) did directly and inappropriately receive a pecuniary advantage from her position as a trustee. I make this finding despite her express denial because the evidence against her was of sufficient weight that she was unable to respond adequately.

However, I am not prepared to remove her because, no application for removal is before me and I suspect that what transpired was based on a confused understanding of the law on her part and on the part of all the trustees.

I will, however, direct that she is not to act as an office holder or agent for the reservation trustees. All future arrangements concerning the marae upgrade should be negotiated and contracted by the Chairperson, the Secretary and Treasurer only after duly authorised resolutions of the trustees have been passed at properly convened meetings.

Order and Directions

1. The application is dismissed on the grounds that the issues regarding the marae administration have been resolved by the owners and beneficiaries in a manner acceptable to the Maori Land Court;

2. The Trustees appointed at 155 Gis 78-92 are directed pursuant to section 238/93 to ensure that the following milestones have been achieved and reported on to the Maori Land Court by way of report (with the relevant documents attached) from the Chairman within one year of this judgment:


• Completion of the Marae Charter - if assistance is required Mr Murry MacGregor is available to assist. It will be up to the trustees to contact him;

• Report for beneficiaries on Marae Upgrade;

• Full Unqualified Audited Accounts for the year ended March 2004.

3. So long as this direction is satisfactorily complied with, there will be no need for a further hearing and the matter will be at an end;

4. Pursuant to Section 238/93, Ms Carol Marino is not to be an office holder or agent for the trustees.

5. Costs are to lie where they fall. Security for costs of $100.00 to be refunded to the applicant.

JUDGE

21 DECISION - Māori Land Court | Māori Land Court...Wiremu Ruru (Secretary) made appearances during the hearings. At later hearings, Mr Watene Horsfall raised the issue of the trustees

Documents