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341 Aotea MB 164
IN THE MĀORI LAND COURT OF NEW ZEALAND
AOTEA DISTRICT
A20150003293
UNDER Sections 151 and 158 of Te Ture Whenua
Māori Act 1993
IN THE MATTER OF Owhaoko D 6 Subdn 3
BETWEEN HERBERT STEEDMAN, RAINA RAUMATI,
PETER STEEDMAN, PATRICIA CROSS,
TERENCE STEEDMAN, MERVYN
STEEDMAN, WENDY NICHOLSON and
DAVID STEEDMAN JUNIOR as trustees of
the KARARAINA STEEDMAN WHĀNAU
TRUST
Applicants
AND NATHAN APATU
Respondent
Hearings: 339 Aotea MB 274 - 295 dated 14 July 2015
Appearances: C Bennett for the Applicants
T Bennion for the Respondent
Judgment: 31 August 2015
RESERVED JUDGMENT OF JUDGE L R HARVEY
Solicitors: Ms Cara Bennett, Langley Twigg, PO Box 446, Napier [email protected]
Mr Tom Bennion, [email protected]
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Contents
Introduction [1]
Issues [6]
Background [7]
Procedural history [14]
The Law [16]
Has the instrument of alienation been executed and attested correctly? [19]
Applicant’s submissions [21]
Discussion [22]
Is the alienation in breach of any trust [26]
Applicant’s submissions [27]
Respondent’s submissions [29]
Discussion [30]
Is the consideration is adequate? [34]
Applicant’s submissions [34]
Respondent’s submissions [35]
Discussion [36]
Have the alienating owners discharged the obligations per s 147A of the Act? [37]
Applicant’s submissions [37]
Respondent’s submissions [42]
Discussion [47]
Descendant of a former owner who is or was a member of the hapū associated [66]
with the land
The family trust [68]
What regard should be had to the Apatu Whānau offer? [74]
Respondent’s submissions [74]
Applicant’s submissions [77]
Discussion [78]
Decision [95]
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Introduction
[1] By application dated 23 May 2015 the trustees of the Kararaina Steedman Whānau
Trust seek confirmation of the alienation of Owhaoko D 6 Subdn 3 to Richard Hall for $1.2
million, per s 151 of Te Ture Whenua Māori Act 1993.
[2] The trustees accepted a conditional offer from Mr Hall on 19 November 2014. The
agreement was conditional on purchaser due diligence and confirmation of the alienation. It
is said that Mr Hall has now satisfied the due diligence condition and the only remaining
condition is the confirmation of alienation. Mr Hall has nominated the Richard Hall Trust
(“the family trust”), by deed of nomination dated 21 April 2015, to complete the purchase.
[3] The application is opposed by Norman Apatu and whānau (“the Apatu Whānau”) on
the basis that they have been in negotiations with the applicants over access to the land and
have previously expressed an interest in purchasing.
[4] Richard Steedman also filed an objection concerning the proposed sale.
[5] A hearing was held on 14 July 2015, following which I adjourned the application to
give the Apatu Whānau one month to file written submissions and thereafter I would issue a
reserved decision on the matter. Submissions were received from the Apatu Whānau on 18
August 2015. They have also filed a counter offer to purchase the block.
Issues
[6] The issue for determination is whether the Court should grant the confirmation of
alienation, and in doing so it is necessary to consider a number of relevant questions:
(a) Has the instrument of alienation been executed and attested correctly?
(b) Is the alienation in breach of any trust?
(c) Is the consideration adequate?
(d) Have the alienating owners discharged the obligations per s 147A of the Act? and
(e) What regard should be had to the Apatu Whānau offer?
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Background
[7] The original Owhaoko block comprised approximately 163,000 acres situated in a
remote area of the central North Island between the Taihape region and Hawkes Bay.1 The
first investigation of title commenced in 1875 with a large part of the block being set apart as
a school endowment at the request of Renata Kawepo, a prominent Hawkes Bay chief. In
1885 further partitions were sought based on iwi and hapū affiliations. The bulk of the lands
were awarded to Renata Kawepo’s group of owners.
[8] Following that partition, Owhaoko was subject to political controversy with a
Parliamentary Committee being established to look into claims regarding the investigation of
title. The Committee concluded that a rehearing of the Owhaoko blocks was required. The
reinvestigation was heard in 1887 following which the block was divided into three
divisions: Owhaoko North was awarded to Ngāti Tūwharetoa, Owhaoko East to Ngāti Whiti
and Owhaoko West to Ngāti Tama.2
[9] On 10 October 1888 a rehearing was held and the block was partitioned for a third
time into four allotments: Owhaoko A to Ngāti Kurapoto and Ngāti Maruwahine of Ngāti
Tūwharetoa; Owhaoko B to Ngāti Tama; Owhaoko C to Ngāti Upokiri, Ngāti Hinemanu and
Owhaoko D to Ngāti Whiti and Ngāti Whititama.3 Orders to that effect were issued on 4
September 1893.
[10] Owhaoko D No 6 Subdn 3 was created by partition order on 15 June 1899 and
vested in Raumaewa Retimana solely.4 The block comprises 556.4427 hectares and is
landlocked with no formal access.
[11] Waina Pango, Rangimarie Pango and Whatu Pango subsequently succeeded to the
interests of their father Raumaewa Retimana also known as Raumaewa Te Rango in the
land.5 They then vested their shares in Kararaina Steedman who become the sole owner.
6
The minutes disclose that Kararaina Steedman was a first cousin of Waina, Rangimarie and
1 Richard Boast The Native Land Court A Historical Study, Cases and Commentary 1862-1887
(Brookers Ltd, Wellington, 2013) at p 1079 2 Ibid at p 1083
3 Ibid
4 41 Whanganui MB 110 (41 WG 110)
5 54 Tokaanu MB 382 (54 ATK 382)
6 8 Tokaanu Alienation MB 150 (80 ALTK 150) 59 Tokaanu MB ATK 211-212 (59 ATK 211-
212) and 60 Tokaanu MB 87 (60 ATK 87)
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Whatu Pango through the maternal line. Owhaoko D 6 Subdn 3 is derived through the
paternal line.
[12] The Kararaina Steedman Whānau Trust became the sole owner of the land upon
succession to Kararaina Steedman on 15 January 1996.7 The current trustees are Herbert
Winiata Steedman, Raina Mokopuna Raumati, Peter Wairehu Steedman, Patricia Anne Te
Kiriwai Cross, Terence Huia Steedman, Mervyn Renata Te Pua O Ti Rangi Steedman,
Wendy Patricia Nicholson and David Waka Steedman Jnr.8
[13] The trust operates with a standard wide powers trust order. Clause 3(b)(v) provides
that the trustees may, upon certain conditions, sell the land if they are unsuccessful in
securing unlimited unrestricted vehicular access.9
Procedural history
[14] The application was filed following a hearing held on 14 April 2015 regarding
proceedings to terminate the trust. Those proceedings were then adjourned to enable the
present application to be filed.10
[15] The substantive hearing was held on 14 July 2015.11
This application was heard
along with the application to terminate the trust. At the conclusion of the hearing I
confirmed that Mr Apatu would have one month to file submissions, following which a
decision would issue.
The Law
[16] Confirmation is sought per s 151 of the Act which provides as follows:
151 Application for confirmation
(1) An application to the court for confirmation of an alienation of any interest
in Maori freehold land may be made,—
(a) in the case of an instrument of alienation, by or on behalf of any
party to the instrument; or
(b) in the case of a resolution of assembled owners, by or on behalf
of any person interested or by the Recording Officer.
7 55 Aotea MB 97 (55 AOT 97)
8 315 Aotea MB 63 (315 AOT 63)
9 20 Tākitimu MB 230-234 dated 6 December 2012
10 335 Aotea MB 262 (335 AOT 262) see A20140012554
11 339 Aotea MB 274 (339 AOT 274)
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(2) The court may decline to consider an application for confirmation if it is
made,—
(a) in the case of an instrument of alienation, later than 3 months after
the date on which the instrument was executed by the alienor or,
where the land is situated in the Chatham Islands, later than 4
months after that date; or
(b) in the case of a resolution of assembled owners, earlier than 14
days or later than 12 months after the date on which the resolution
was passed.
(3) Notwithstanding subsection (2)(a), where an instrument of alienation is
executed at different times by different parties alienating, successive
applications for confirmation may be made in respect of the successive
executions of the instrument, and the alienation may be confirmed from
time to time accordingly.
[17] Section 152 provides:
152 Court to grant confirmation if satisfied of certain matters
(1) The court must grant confirmation of an alienation of Maori freehold land if
it is satisfied—
(a) that,—
(i) in the case of an instrument of alienation, the instrument
has been executed and attested in the manner required by
the rules of court; or
(ii) in the case of a resolution of assembled owners, the
resolution was passed in accordance with this Act or
regulations made under this Act; and
(b) that the alienation is not in breach of any trust to which the land is
subject; and
(c) that the value of all buildings, all fixtures attached to the land, all
things growing on the land, all minerals in the land, and all other
assets or funds relating to the land, has been properly taken into
account in assessing the consideration payable; and
(d) that, having regard to the relationship (if any) of the parties and to
any other special circumstances of the case, the consideration (if
any) is adequate; and
(e) that the purchase money (if any) has been paid to, or secured to
the satisfaction of, the Māori Trustee or court appointed agent or
trustees in accordance with section 159; and
(f) that, if section 147A applies to the alienation, the alienating
owners have discharged the obligation in that section.
(2) Before granting confirmation, the court may, with the consent of the
parties, vary the terms of the instrument of alienation or resolution.
(3) The Maori Land Court may confirm an alienation to a person of any Maori
freehold land that is, or is part of, an overseas investment in sensitive land
within the meaning of the Overseas Investment Act 2005 only if consent to
that investment has been obtained, or an exemption from consent applies,
under that Act.
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[18] The Court must therefore grant confirmation if the conditions are satisfied.12
Has the instrument of alienation been executed and attested correctly?
[19] Section 152(1)(a)(i) of the Act provides that in the case of an instrument of
alienation, the Court must be satisfied that the instrument has been executed and attested in
the manner required by the rules of court.
[20] Rule 11.10 of the Māori Land Court Rules 2011 (“the Rules”) provides:
11.10 How instrument of alienation of interest in Māori freehold land must
be signed and witnessed
(1) An instrument of alienation of an interest in Māori freehold land must—
(a) be signed by each of the parties to be bound by it; and
(b) state the date on which each of the parties signed it.
(2) If the instrument is signed on different dates by several alienors, the date of
execution for the purposes of section 151(2)(a) of the Act is the date on
which the instrument was first signed by an alienor.
(3) The signature of an alienor signing the instrument in New Zealand must be
witnessed by a person 20 years old or more who is not a member of the
alienor's immediate family and not an owner of the land alienated.
…
(6) The Court may confirm an alienation that has not been witnessed in
accordance with this rule if—
(a) the alienor appears before the Court and confirms that he or she has
signed the instrument of alienation; or
(b) suitable evidence is adduced in the Court that establishes that the
alienor has signed the instrument of alienation; or
…
Applicant’s submissions
[21] Ms Bennett for the applicant submitted that the requirements of s 152(1)(a)(i) have
been met. Counsel says that the standard Auckland District Law Society sale and purchase
agreement does not provide for witnessing and accordingly that agreement has not been
witnessed. However, counsel pointed out that the Authority & Instruction Forms (“A & I
Forms”) have been signed and witnessed consistent with r 11.10 of the Rules. Counsel
added that the trustee who signed the sale and purchase agreement did so with the authority
of the other trustees and both the applicant and the purchaser were legally represented.
12
Loach v Bidois – Matarikoriko No 7B2A (2015) 336 Aotea MB 182 (336 AOT 182) and Taueki
- Horowhenua X1B41 North A3A and 3B1 (2008) 16 Whanganui Appellate Court MB 30 (16
WGAP 30)
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Discussion
[22] The sale and purchase agreement is signed by only one of the trustees. Under s 227
of the Act, every instrument to be registered under the Land Transfer Act 1952 is required to
be executed by all the trustees.
[23] Given that LINZ now operates in an electronic environment the Court must
determine what “instrument/s” require confirmation. Requirements around instruments
considered alienations under the Act are provided for in issue 144 of the New Zealand
Gazette 2008.13
According to the Gazette, for proceedings per s 150 a confirmation
certificate per s 151 is required and the relevant instrument is the transfer instrument.
[24] In Short – Pukeroa Oruawhata the Māori Appellate Court noted that s 227(2) is
clearly aimed at clarifying what is needed for execution of land transfer documents in the
light of the somewhat novel or innovative provision for majority decision of trustees.14
Within the Land Transfer System all trustees are entered on the appropriate title as registered
proprietors thereof and are required to execute documents affecting that title. The subsection
reinforces this.
[25] Strictly speaking, the sale and purchase agreement has not been executed by all of
the trustees since only one of the trustees has signed. The remedy would be for all trustees
to sign or at least a majority. There is no dispute that the trustees supported by the great
majority of their beneficiaries wish to sell. The agreement contains the signature of Mr Hall
as purchaser when confirmation is sought to the family trust. With that in mind, I also have
regard to the LINZ requirements and consider that when the documents are viewed in its
entirety the sale and purchase agreement and A & I Forms provide evidence of the intention
of the parties to execute the sale. On balance I am satisfied that the condition set out in s
152(1)(a)(i) of the Act has been met.
Is the alienation in breach of any trust?
[26] Section 152(1)(b) of the Act requires that the Court be satisfied that the alienation is
not in breach of any trust to which the land is subject. As previously mentioned the trust is
the sole owner of the block.
13
New Zealand Gazette; 2008, Issue 144 Statutory Requirements, Forms of Electronic
Instruments, and Requirements for the Retention of Evidence at 3929-3930 14
Short – Pukeroa Oruawhata Trust (1997) 1 Waiariki Appellate Court MB 86 (1 AP 86) at 91
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Applicant’s submissions
[27] Ms Bennett submitted that per cl 3(v) of the trust order the trustees have the power
to sell. Counsel further contended that the purchase price is in excess of the current roll
valuation of the block and confirmed that there has been continual communication with the
beneficiaries of the whānau trust. Ms Bennett also submitted that the evidence confirmed a
meeting was held on 28 February 2015 to obtain beneficiary support for the sale. The hui
was duly advertised and 75 per cent of beneficiary consent to the sale was obtained. The
trustees also acknowledged the objection filed by Richard Steedman.
[28] Ms Bennett further submitted that the Court should have particular regard to the
support of those persons who would have succeeded to Kararaina Steedman but for the
establishment of the whānau trust.
Respondent’s submissions
[29] Mr Bennion submitted that the Court should consider that the Apatu Whānau have
offered to purchase the block for $60,000.00 more than Mr Hall. Counsel contended that the
trust has obligations to its beneficiaries and the trustees are subject to trust law requirements
and a choice of a lower offer might be subject to challenge by the beneficiaries.
Discussion
[30] It is not in dispute that the trustees have the power to sell. They have worked closely
with Mr Hall to complete the sale. I am satisfied that the instrument is not in breach of the
whānau trust. In addition, the evidence confirms that there is majority support for the sale
from the trust’s beneficiaries.
[31] According to the case manager’s report, evidence of beneficiary support for the sale
has been filed with reference to:
(a) Whānau trust meeting minutes of 28 February 2015 record at page 1 that “…of the 45
beneficiaries contacted only 2 don’t support the sale.” Meeting advertised in the
Wanganui Chronicle on 13 February 2015.
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(b) Whānau trust meeting minutes of 23 March 2015 record at page 1, (3)(a) that
“Amendment to change the number of beneficiaries not supporting sale of Owhaoko D6-
3 from 2 to 1.”
(c) List of beneficiaries supporting or opposing sale. This list indicates that 8 beneficiaries
did not provide a response, 1 beneficiary opposed and 36 beneficiaries supported the
sale.
[32] The case manager’s report also records that there were whānau trust meetings held
on 28 February and 23 March also discussed the termination of the trust. The beneficiaries
present at the meeting of 28 February resolved unanimously to terminate the trust. The
evidence also confirms that the meeting was advertised in the Wanganui Chronicle on 13
February 2015. A list of beneficiaries supporting or opposing the termination of the trust
confirmed that 8 did not provide a response, 1 was opposed and 36 supported termination.
[33] In any case, I note that the Apatu Whānau offer has not formally been put to the
trustees and therefore I have no evidence of their support or opposition to the agreement or
of any of the views of the beneficiaries. For completeness, I note that at the last hearing Mr
Apatu did confirm that his whānau would be making an offer at least comparable to that
proposed by Mr Hall and that the trust were adamant that, regardless of any future offer from
the Apatu whānau, the trust intended to sell to Mr Hall. There were also a number of
beneficiaries present at the last hearing.
Is the consideration is adequate?
Applicant’s submissions
[34] As foreshadowed, Ms Bennett submitted that the purchase price is in excess of the
current roll valuation and the block has been advertised on the open market for some time.
Counsel confirmed that the block is landlocked and as such is difficult to develop. Ms
Bennett also requested that the Court dispense with the requirement for a special valuation
per s 158 of the Act, in light of the circumstances.
Respondent’s submissions
[35] Mr Bennion submitted that the Court should have regard to the fact that Mr Hall is
purchasing the land with full knowledge that there is no legal access and, despite that, is
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prepared to pay a higher purchase price. Counsel added that the Court should also record
that the block is landlocked in fairness to future owners who may seek to understand why
this block lacks access even after alienation.
Discussion
[36] It is accepted that the offer for sale is in excess of the current capital value of the
land, which is $255,000.00. An exemption has been requested. I am satisfied as to the
valuation and the consideration, and grant the exemption. For completeness, I note the block
is being purchased with the proviso that there is no legal access to the block.
Have the alienating owners discharged the obligations per s 147A of the Act?
Applicant’s submissions
[37] Ms Bennett submitted that Mr Hall is a member of the preferred class of alienees
(PCA) and has provided evidence of this from Patrick Parsons. Mr Hall, according to that
evidence, is a member of the PCA on the basis that he is whanaunga of the alienating owner
associated in accordance with tikanga Māori with the land. It is said that he is also a
descendant of a former owner who is or was a member of the hapū associated with the land.
[38] Counsel added that the evidence of Mr Parsons confirmed Mr Hall has ancestral
links with the Owhaoko lands through Te Ohuake and Punakiao who will be readily
recognised by the tangata whenua of the area.
[39] Ms Bennett also submitted that if the Court determines Mr Hall to be PCA then the
requirement per s 147A can be dispensed with. Counsel argued that despite the fact the
Apatu Whānau suggest they may have a closer whakapapa connection there is no statutory
priority in terms of the PCAs. Ms Bennett contended that there is no pecking order and
those more closely related do not trump those more remotely related, citing in support
Northcroft v Northcroft – Tauhara Middle 4A1L1B1A.15
[40] In addition counsel contended that if there is more than one potential purchaser from
within the PCA then the alienor is able to select to whom they wish to give the first right of
15
(1995) 9 Waiariki Appellate Court MB 49 (9 AP 49)
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refusal. Counsel added that if the Apatu Whānau exercise a right of first refusal there is no
obligation on the trustees to sell to them over another member of the PCA.
[41] Ms Bennett submitted that Mr Hall has nominated his family trust to complete the
purchase. Counsel also contended that the definition of PCA specifically includes trustees of
persons referred to in paragraphs (a) to (c) of the definition. She argued that if the Court
accepted that Mr Hall is a member of the PCA then the trustees can fit within the PCA
definition.
Respondent’s submissions
[42] Mr Bennion submitted that Mr Hall made it abundantly clear at the hearing that he
knew nothing about the land, its history and connections. Counsel contends that in terms of
the definition of PCA in s 4, category (b) ‘associated in accordance with tikanga Māori with
the land’ association must include values and practices and must be more than a mere
whakapapa link.
[43] Counsel added that even if Mr Hall did satisfy the category (b) association, the
nominee family trust is not a trustee of a whanaunga of the alienating owner. Mr Bennion
argued that the family trust is a discretionary trust and pointed out that the beneficiaries
include any current or future spouse or spouse of Mr Hall’s children. Counsel also noted
that Mr Hall can remove and appoint trustees at his discretion. In addition, he pointed out
that when the trust terminates the new trust and beneficiaries are not limited to the PCA.
[44] Mr Bennion argued that, given the deficiencies in the application, the Apatu Whānau
is entitled to exercise the right of first refusal as PCA. Counsel further submitted that it is
arguable that the proposed alienation of land sparks a right in all PCA regardless of whether
the applicant has a preferred PCA in mind, because it is a ‘right’ and because of the
importance of the ‘right’ within the context of the Act. Mr Bennion also referred to the
authority Muraahi v Phillips - Rangitoto Tuhua 551B and 55B1A2 (Manu Ariki Marae).16
[45] Counsel submits that the scheme of the Act is that, regardless of whether an alienor
has selected in advance a favoured PCA to sell to, the intention to sell triggers notice to and
an opportunity to for all PCA to put in offers. The offers must be at least equivalent to the
16
[2013] Māori Appellate Court MB 528 (2013 APPEAL 528)
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terms of the alienation per r 11.7(3)(a). The alienor may then select any offer from any such
PCA.
[46] Counsel further submits that if the Court finds that the Mr Hall does not satisfy the
PCA requirement then the Apatu Whānau offer remains as the alternative offer in terms of r
11.7, which must be given the first right of refusal should the Hall offer not be completed.
Discussion
[47] There are several overlapping issues that require consideration. The first is whether
Mr Hall and/or the family trust fits within the definition of PCAs. The second issue is
whether the requirement for the first right of refusal has been satisfied.
[48] Preferred class of alienees is defined as:17
preferred classes of alienees, in relation to any alienation (other than an alienation
of shares in a Maori incorporation), comprise the following:
(a) children and remoter issue of the alienating owner:
(b) whanaunga of the alienating owner who are associated in accordance with
tikanga Maori with the land:
(c) other beneficial owners of the land who are members of the hapū
associated with the land:
(d) trustees of persons referred to in any of paragraphs (a) to (c):
(e) descendants of any former owner who is or was a member of the hapū
associated with the land
[49] In terms of Mr Hall, counsel for the applicant says that Mr Hall comes within
categories (b) and (e) of the definition of PCA.
Whanaunga of the alienating owner who are associated in accordance with tikanga Maori
with the land
[50] Category (b) contains two elements that are required to be satisfied. The first is
whether the Mr Hall is whanaunga of the alienating owner. The second is whether Mr Hall
is associated in accordance with tikanga Māori with the land.
[51] “Whanaunga” is defined in s 4 of the Act as being a person related by blood. In
Mihinui - Maketu A100, I was not persuaded that within the confines of the alienation regime
17
Te Ture Whenua Māori Act 1993, s 4
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341 Aotea MB 177
established by the Act, it was intended “whanaunga” should be construed to include
members of other hapū beyond that holding ownership of the land in question.18
To do so
would be to enable hapū with even a remote “association” to claim a right to purchase.
[52] On the definition of “whanaunga” Judge Savage also considered that:19
[12] …one could not imagine that it simply meant related by blood in a sense
that a common ancestor established by mitochondrial DNA testing was involved.
Also, it would certainly be contrary to the kaupapa of the Act if what is simply
meant, is a person associated by distant but important and well recognised
whakapapa links…
[13] On the other hand it must mean something more than the Pakeha concept of
nuclear family.
[14] When determining a whänaungatanga relationship, focussing on
associations with the land is unhelpful. That is a different hurdle that an applicant
must cross. In other words one could be a whanaunga, but not associated with the
land or associated with the land but not whanaunga…
[53] In Kameta v Nicholas the central issue was whether the Nicholas children were
persons related by blood to the testator and were members of the hapū associated with the
land.20
The Court below determined that the links between Mr Kameta and the Nicholas
children were “so tenuous” that the two could not be said to be related by blood.
[54] The Māori Appellate Court took a different route: 21
[45] The whakapapa in this case does not go back as far as the founding
ancestor of Waitaha tūturu before there is a common link, but it is not far from it.
What is important is that it records that the land was devolved as a taonga tuku iho
through a whakapapa line from which both the Nicholas children and Mr Kameta
descend. Whakapapa and blood descent are as much a taonga tuku iho as land is.
This whakapapa also demonstrates a blood relationship exists between these people
and it demonstrates membership of the hapū associated with the land.
[46] Where we believe the lower Court erred was in discounting the importance
of this whakapapa in establishing a blood relationship. Rather it engaged in counting
generations and measuring degrees of consanguity.... While we acknowledge that the
degrees of relationship through whakapapa will always be a relevant consideration,
in this case we do not consider the link to be so tenuous as to discount a connection
by blood which satisfies the statutory provisions.
[55] The Appellate Court acknowledged that its approach to this issue was constrained by
s 2 of the Act and its preamble, referring to the need to recognise land as a taonga tuku iho of
special significance to the Māori people and, for that reason, to promote its retention in the
18
Mihinui - Maketu A100 (2007) 11 Waiariki Appellate Court MB 230 (11 AP 230) 19
Ibid at 239 20
Kameta v Nicholas – Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348
ROT 282) 21
Nicholas v Kameta - Estate of Whakaahua Walker Kameta [2011] Māori Appellate Court MB
500 (2011 APPEAL 500)
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341 Aotea MB 178
hands of its owners, their whānau and their hapū. But it was also conscious of s 17(2)(a) of
the Act, requiring the Court to ascertain and give effect to the wishes of the owners of Māori
land to which any proceedings relate.
[56] The evidence provided by Mr Parsons demonstrates an ancestral connection to the
Owhaoko lands through Te Ohuake. At the hearing Ms Bennett stated that Mr Hall came
from Honomokai and the Steedman whānau come from Hinemanu. It was her submission
that they all descend through Ngāti Hinemanu to the land. Peter Steedman gave the
following evidence:22
Peter Steedman (sworn): The land Owhaoko D63 is part of the D Blocks which in
the original judgment went to Ngāti Whiti Tama. The C blocks went to Ngai Te
Ohuake which is mostly the people of Honomokai, Hinemanu (inaudible). The A
Blocks went to Tuwharetoa. So like I was saying is originally the Owhaoko Blocks
were one block. The claimants of those blocks were Ngāti Tuwharetoa, Ngāti
Hinemanu, Ngāti Ruak Ngāti Whiti and Ngāti Tama. It was the judgment that broke
them down into three different categories. What we are saying is that Richard is of
the Ngāti Hinemanu side, as are the Apatu's.
[57] The judgment of the Court, on 10 October 1888, dividing the original Owhaoko
lands into four allotments is consistent with Mr Steedman's evidence.
[58] In terms of whether Mr Hall is whanaunga associated in accordance with tikanga
Māori with the land, Mr Bennion argued that Mr Hall made it abundantly clear at the hearing
that he knew nothing about the land, its history and connections. Counsel argued that in
terms of category (b) in the definition of PCA ‘associated in accordance with tikanga Māori
with the land’ association must include values and practices and must be more than the mere
whakapapa link.
[59] In T F Hickling Family Trust – Nuhaka 2E3C8A2B Judge Isaac (as he then was)
dealt with an application for confirmation, which was opposed by the Aramatua Trust who
claimed to be a member of the PCA.23
Judge Isaac considered that the whakapapa evidence
demonstrated that the original owners of the block all descended from Te Rehu, including
the trustees of the Aramatua Trust. Judge Isaac said:24
According to Tikanga Māori, right to land is validated by whakapapa. The earlier
the ancestor the stronger the right to that land. Land was claimed by Whakapapa
because in accordance with Tikanga Māori all things were derived from the
ancestors and were passed on to future generations. If a person can whakapapa to an
original owner or occupier of that land that person has a right to the land.
22
339 Aotea MB 274 (339 AOT 274) at 278-279 23
T F Hickling Family Trust – Nuhaka 2E3C8A2B (1994) 92 Wairoa MB 214 (92 WR 214) 24
Ibid at 218
Page 16
341 Aotea MB 179
The Whakapapa presented to the Court does not lose strength because it traces back
for many generations. In terms of tikanga it gains strength.
[60] Judge Isaac further stated:25
The Court confirms the association does indeed go back a long time. It is an
association which links the Rakaipaka people with each other. It is an association
which in this Court’s view cannot be measured by a simple physical association with
the land. In accordance with Tikanga Māori the association is the knowledge that
Nuhaka 2EC8A2B is Rakaipaka land and that the original owners of that land are
whanaunga of the trustees and the beneficial owners of Aramatua. As stated in the
evidence, the Aramatua land and the block in question were all originally contained
in Nuhaka 2 block. It is only with partition through time that this block has now
become divided into separate blocks and although the physical boundaries now
exist, the association in accordance with Tikanga Māori of the Trustees of Aramatua
and the beneficial owners has always remained….
[61] He went on to underscore the importance of historical and spiritual links:26
Coupled with the spiritual and historical association with the land is the more
physical association with the land…Although the Court agrees the physical
connection is a tenuous one it did exist for most of the witnesses. Also when the
physical association is combined with the spiritual and historical association there is
no doubt that in the Court’s view that the Trustees of Aramatua are whanaunga of
the alienating owners and are associated in accordance with Tikanga Māori with
Nuhaka 2EC8A2B.
[62] In Kameta v Nicholas the Māori Appellate Court emphasised that hapū association is
founded on whakapapa or through ownership in hapū lands or both. The Court of Appeal
subsequently held that the Appellate Court correctly adopted a conjunctive approach to the
construction of s 108(2)(c) in finding that a blood relationship will be established where the
parties can show a whakapapa connection to the testator, even if distant, providing that that
connection satisfies what it called “the associational relationship” of shared bloodlines and
being part of the same hapū which once held collective ownership of the land.27
Notably, a
hapū consists of a number of whānau bound by strong kinship ties and the whakapapa
principle, where particular importance is attached to “being born into the group”.
[63] It was not enough in that case that Mr Kameta and the Nicholas children shared a
common ancestor; what was decisive was the devolution through a whakapapa link or
relationship by blood within a hapū which was relevant to the land in question.
[64] As foreshadowed, the original title determinations for the Owhaoko lands were the
subject of contention. In the final award Owhaoko A went to Ngāti Kurapoto and Ngāti
25
T F Hickling Family Trust – Nuhaka 2E3C8A2B (1994) 92 Wairoa MB 214 (92 WR 214) at 219 26
Ibid 27
Kameta v Nicholas [2012] 3 NZLR 573 (CA)
Page 17
341 Aotea MB 180
Maruwahine (Ngāti Tūwharetoa); Owhaoko B to Ngāti Tama; Owhaoko C to Ngāti Upokiri,
Ngāti Hinemanu and Owhaoko D to Ngāti Whiti and Ngāti Whititama.28
[65] The evidence demonstrates that Mr Hall is associated with the Owhaoko lands. He
has a historical connection to the lands and a relevant associational connection via his
whakapapa links. Although the physical connection is tenuous, on the whole I consider Mr
Hall to be whanaunga of the alienating owner who are associated in accordance with tikanga
Maori with the land and as such a member of the PCA.
Descendant of a former owner who is or was a member of the hapū associated with the land
[66] Mr Hall’s eligibility per category (d) of the PCA definition is also relevant for
completeness. It was submitted that Mr Hall is a descendant of a former owner who is or
was a member of the hapū associated with the land. It is accepted that Mr Hall is descended
from Te Ohuake whose interests were ultimately recognised in the neighbouring Owhaoko
C. Additional evidence was given of Mr Hall’s connection to the Owhaoko D Block via
Whitikaupeka the tipuna of Ngāti Whiti. The evidence confirms a link between Ngāti Whiti
and Hinemanu through marriage.
[67] There is no evidence of whakapapa by Mr Hall to the former owners of this block.
No tracing has been done of the ownership lists for Owhaoko D to Owhaoko D6 Subdn 3 to
further demonstrate that Mr Hall is a descendant of a former owner who is or was a member
of the hapū associated with the land. That said, it is evident that Mr Hall is descended from
Te Ohuake and Whitikaupeka. I am therefore satisfied that Mr Hall is a member of the PCA
per category (d) of the definition.
The family trust
[68] Mr Bennion submitted that the trustees are not ‘trustees of persons referred to in any
of paragraphs (a) to (c)’ of the definition as the trust is a discretionary trust, its beneficiary
class includes members outside of the PCA category and Mr Hall has the discretion to
change the trustees at will.
[69] The Richard Hall Trust was created by deed of trust on 20 January 1996 for the
benefit of the children of John Hall. The trustees are Richard James Hall, Henry Newcomb
28
Ibid
Page 18
341 Aotea MB 181
Hall and Simon John Hall. According to the trust deed ‘beneficiary’ and ‘beneficiaries’
mean and include any or all of:
(a) Richard James Hall;
(b) Any Child or Children or remoter issue of Richard James Hall;
(c) The Settlor’s wife Judith Hall;
(d) Any brother of Richard James Hall or Trust for the benefit of such brother
or any child or children or remoter issue of such brother;
(e) Any spouse of Richard or his children; and
(f) Any person or group of persons charity or body (incorporated or
unincorporated) whom the Trustees shall before the date of distribution by
deed appoint (revocably or irrevocably) as a Beneficiary PROVIDED
THAT no Trustee who is not already a Beneficiary may be so appointed
while such Trustee is a sole Trustee or one of only two Trustees.
[70] I note at the outset that none of the beneficiaries of the trust are children and remoter
issue of the alienating owner as in (a), nor are they beneficial owners of the land who are
members of the hapū associated with the land as in (b). The issue is whether the trustees are
trustees of whanaunga of the alienating owner who are associated in accordance with tikanga
Māori with the land. It is accepted Mr Hall is such a person.
[71] However, the beneficiary class under the family trust includes persons who may fall
outside of the PCA. They being:
(a) The Settlor’s wife Judith Hall;
(b) Any spouse of Richard or his children; and
(c) Any person or group of persons charity or body (incorporated or
unincorporated) whom the Trustees shall before the date of distribution by
deed appoint (revocably or irrevocably) as a Beneficiary
[72] In addition, it is evident that the trustees are not exclusively trustees for whanaunga
of the alienating owner who are associated in accordance with tikanga Māori with the land.
I consider therefore that the family trust does not meet the requirements of the definition of
PCA. If the parties wish to proceed with the sale then Mr Hall will have to amend his family
trust deed to exclude the non PCA members or create a category of sub trust for the land
within the family trust as contemplated in Mihinui - Maketu A100.
[73] Alternatively, he may wish to create a whānau trust for the benefit of his
descendants. The terms of such a trust could include the power to pay part of any income to
the whānau trust to family members who are not members of the PCAs including spouses
and adopted children where this is relevant. The short point is that the sale cannot be
Page 19
341 Aotea MB 182
completed if the family trust is to be the ultimate recipient of the land and it includes or has
the potential to include persons who are not members of the PCAs.
What regard should be had to the Apatu Whānau offer?
Respondent’s submissions
[74] Mr Bennion submitted that the Apatu Whānau have provided informal access to the
block to the applicants and have never suggested that it would withdraw such ability of
egress to the applicants. Counsel also submitted that the Apatu Whānau have been prepared
to agree to legal access on suitable terms. It is, he claimed, the insistence of the current
owners of the land that a strict exchange of land and nothing else that has ultimately
frustrated the negotiations over access. The Apatu Whānau, it was submitted, have also
incurred costs over the past four decades regarding access.
[75] Counsel submitted that the respondents are PCA and have made an offer to purchase
at $60,000.00 more than Mr Hall’s offer. Mr Bennion contended that Mr Apatu falls within
the PCA by being whanaunga of the alienating owner who are associated in accordance with
tikanga Māori with the land. Counsel confirmed that Mr Apatu is also a descendent of a
former owner who is or was a member of the hapū associated with the land.
[76] Mr Bennion then argued that Mr Apatu is of Ngāti Hinemanu, Ngāti Te Upokoiri and
Ngāti Whiti descent. He submitted that these hapū are closely related and that Mr Apatu has
a strong whakapapa link to the land and the hapū. Counsel added that Mr Apatu and his
whānau are associated with the land in accordance with Māori values and practices. For
example, it was said that Mr Apatu is involved with Omahu Marae and has close whānau
buried in the urupā. According to the evidence, Mr Bennion contended, the Apatu Whānau
accordingly have close connections to Owhaoko.
Applicant’s submissions
[77] When the alternative offer was discussed in open Court Ms Bennett confirmed that
even though there was another equivalent proposal the trustees were not inclined to entertain
the Apatu offer:29
29
339 Aotea MB 284 (339 AOT 284)
Page 20
341 Aotea MB 183
C Bennett: Not from the trustees’ perspective, Sir, we have had the opportunity to discuss
this just this morning. The purchase price is more than $1 million and 50 thousand in the
agreement for sale and purchase. It is $1.2 million. The trustees are united as are a number
of members of families. Mr Hall is of the preferred class of alienee. If they are dealing with
apples as in two members of the preferred class of alienee on identical terms they would
prefer to sell to Mr Hall.
Discussion
[78] The Apatu Whānau claim to be PCA per categories (b) and (d) of the definition.
They have also provided whakapapa demonstrating their ancestral connection to Ngāti
Hinemanu and Ngāti Whiti. They have a similar whakapapa connection to the Owhaoko
lands as to that of Mr Hall and clearly have an association with the rohe. As with Mr Hall I
note that there has been no evidence provided demonstrating actual and direct whakapapa
links through the land titles by way of title determinations and successions.
[79] Even so, this need not be fatal, given the chequered history of the Native Land Court
in the context of alienating hapū holding customary title in accordance with their traditions.
Given the similar whakapapa, I consider that the Apatu Whānau are members of the PCAs.
[80] The Apatu Whānau have filed an offer to purchase the block with their submissions.
It is unclear whether the beneficiaries have had an opportunity to consider this in any detail
following receipt. In any case, as Peter Steedman himself confirmed:30
Peter Steedman (sworn): I just would like to pick up one point which you brought up about
the Taihape Inquiry in which the land rating draft that came out. One of the things very
important in there was how the Māori owners have been forced to sell to adjacent land
owners because of not being able to get access. I would rather not be put in that line. I
would rather be able to choose who I sell it to. Not to sell it to the Apatu’s. They are there
and they control the access.
[81] Under s 147A of the Act, the applicants are required to give the right of first refusal
to prospective purchasers who belong to one or more of the PCA ahead of those who are not
members of the PCA. Additionally, r 11.7 provides for the exercise of the right of first
refusal, as follows:
11.7 Exercise of right of first refusal
(1) An alienor must give a preferred alienee who has given notice of his or her
intention to exercise the right of first refusal a reasonable opportunity to
exercise that right.
(2) If more than 1 preferred alienee has given notice of his or her intention to
exercise the right of first refusal, the alienor may select the alienee to
whom the opportunity of exercising the right of first refusal must be given.
30
339 Aotea MB 290 (339 AOT 290)
Page 21
341 Aotea MB 184
(3) The right of first refusal must—
(a) be on terms that are at least equivalent to the terms of the
alienation that is the subject of the application for confirmation;
and
(b) allow the preferred alienees a reasonable time, having regard to
the nature of the alienation, to exercise the right of first refusal.
(4) If the Court is not satisfied that the preferred alienee has been given a
reasonable opportunity to exercise the right of first refusal, the Court
may—
(a) extend the time for exercise of the right of first refusal:
(b) adjourn the application for confirmation to allow negotiation
between alienor and preferred alienee to occur.
(5) If the preferred alienee who exercises the right of first refusal is not the
alienee named in the original application, the Court may amend the
application and confirm the alienation without the necessity for a new
application.
(6) If a preferred alienee who is selected under rule 11.7(2) fails to complete
the alienation, the alienor must then offer the opportunity of exercising the
right of first refusal to any of the other preferred alienees who were
involved in the selection process under rule 11.7(2) and the provisions of
this rule continue to apply until—
(a) the right of first refusal has been exercised; or
(b) all preferred alienees who have given notice have been given the
opportunity to exercise the right of first refusal.
[82] In Muraahi v Phillips - Rangitoto Tuhua 551B and 55B1A2 (Manu Ariki Marae) the
Māori Appellate Court considered the first right of refusal:31
[113] An alienation by way of sale or gift has to be confirmed by the Māori Land
Court under s 152 of TTWMA. This section requires the Court to be satisfied as to a
number of preconditions including the proper discharge of the vendor’s obligation
under s 147A to grant the right of first refusal to the PCA.
[114] A right of first refusal is a procedural requirement of TTWMA. Where it
applies and an application is filed for confirmation, the application is referred to a
Judge and directions given as to public notice of the right of first refusal. Those
members of the PCA interested will be given a date to notify the Court of their
interest in exercising that right and will then be advised as to a date of hearing at
which they will be entitled to pursue the right of first refusal. Rules governing the
procedure are contained in the Māori Land Court Rules 2011.
[115] The right of first refusal differs from a contractual right given to an
individual. It is a right created by statute for the benefit of a group or classes of
people. There are procedures to identify those interested in exercising the right. If
there is more than one person interested, the vendor is entitled, by virtue of rule
11.7(2) of the Māori Land Court Rules 2011, to select the person he wishes he deal
with. If the selected member of the PCA fails to complete the alienation, the alienor
must offer the right to another member of the PCA who has given notice until either
the right of first refusal is exercised or all the members of the PCA who have given
notice have been given the opportunity to exercise the right of first refusal.
31
Muraahi v Phillips - Rangitoto Tuhua 55B1B and 55B1A2 (Manu Ariki Marae) [2013] Māori
Appellate Court MB 528 (2013 APPEAL 528)
Page 22
341 Aotea MB 185
[116] The procedure outlined above provides an opportunity for the PCA to
purchase the land by exercising the right of first refusal. It is not a right that they can
exercise unilaterally. It is a right that has to be exercised through the Court as part of
the application for confirmation. Until the process is completed and the person who
is to be offered the right of first refusal is selected, the procedure merely provides a
potential for a member of the PCA to be selected. At any stage prior to confirmation
the vendor may decline to go ahead with the alienation and withdraw his application.
[83] In Taueki - Horowhenua X1B41 North A3A and 3B1 that Court stated:32
[75] Section 147A is one of the key mechanisms in the Act to give practical
effect to the principle of retention of Māori land. It represents the final opportunity
for those associated with Māori land in terms of tikanga Māori to prevent the land
falling into outside ownership. Vendors cannot expect a hasty treatment of that right.
Equally, potential purchasers within the preferred class of alienees cannot expect a
drawn out process. The time allowed must be practical and reasonable, having
regard to the aim of retention of Māori land as expressed in the Preamble and
section 2 of the Act….
[84] It is evident that some of the beneficiaries are trustees are not well disposed to the
Apatu offer. In part, I apprehend that this is due to what might be described as past dealings
and difficulties. As one of the beneficiaries Ngaire Kauika –Stevens explained:33
The Court: Just so I understand you correctly, Ms Kauika-Stevens, what you are telling me
and I will be blunt, is that you do not like the Apatus?
N-A Kauika-Stevens: It’s not that I don’t like the Apatus. I don’t like what they have done
to our whānau. And I don’t like how we have been treated. The treatment. And that’s the
pain, the treatment. Never being allowed to act as owners. It’s like being, for want of a
word we’re not worthy, diminished. That’s how I see it. They may not know who I am but
what they’ll know is that I have always been in the trust from its inception and only just in
the last I think couple of years I resigned and my young brother took over. We have been in
close contact and kōrero as in my own brothers and sisters about this.
The Court: So are you saying the Apatus have been obstructive over generations?
N-A Kauika-Stevens: Yes if that is how you want to put it yes, Your Honour.
The Court: You have also used the word personal.
N-A Kauika-Stevens: Yes, it’s been hurtful, Your Honour. Hurtful. When you stand up,
when what we wanted to do and from a personal perspective from our family, my father’s
children. We enjoyed our fathers dream. Our father’s dream was to develop The Steedman
International Hunting and Fishing and then my father died. He has been gone over 40 years
now. We’ve lived that dream along with our aunties and uncles. We’ve sat back and seen
how hard they’ve worked to develop it. Yes we have made mistakes ourselves but as I’ve
said. We have been made criminals for the mistakes that we have made. Hard as it might be
that’s how it is.
[85] She was also supported by another beneficiary Terrence Steedman:34
32
Taueki - Horowhenua X1B41 North A3A and 3B1 (2008) 16 Whanganui Appellate Court MB 30
(16 WGAP 30) 33
339 Aotea MB 285-286 (339 AOT 285-286)
Page 23
341 Aotea MB 186
Terrence Steedman (sworn): I just want to say and back up my niece in what she had
kōrero. That is in the preference of who we sell too. Way back I can honestly say it didn’t
matter who we sold to as long we sold it for whatever we could get for it. I think over the
years in negotiations our family have been with the Apatu whānau and like Nathan has said,
since 1975. That’s 40 odd years. 40 odd years ago I was 30 and I’m the baby of the family.
When we came back from the South Island my brother Peter and I got into negotiations with
their mum and dad for years and years, as you are well aware of, Sir, with land exchanges
and all. Right up until their mother died we were really getting to the point where Margaret
was really thankful that we could both get together and we were nearly there on the verge of
signing an exchange. So we didn’t have to go down their laneway anymore and that we
could go to our new lands right on the same road, the main Taihape-Napier road.
That was something of a dream come true for us as well as saying we are out of their hair,
they are out of our hair. Everybody would be happy. Sadly Margaret died. The Apatu
whānau then still had the opportunity to carry their mothers wish on. But they decided no.
They developed that undeveloped exchanged lands themselves. We could see that was the
end of anymore negotiations as far as exchanges went. That was, according to Margaret, the
best deal possible between the two families.
[86] Nathan Apatu also provided, from his family’s perspective, some of the relevant
historical context to the proposed sale of the land and some of the prior dealings between the
whānau involved:35
It comes down that we feel slightly aggrieved by the process. We believe under section
147A as preferred class of alienee, they are on notice that we are preferred class of alienee.
We have made previous offers to purchase therefore we feel as part of the Māori Land Court
Rules in terms of going to Court and asking for possible process for that to have occurred is a
question that could have been asked or put to the trustees at the meeting confirming the sale
if there were two competing interests it could have been very simply done.
We don’t want to die wondering whether we could purchase the block. It has a very long
history from us. This file I have here which is my father’s dates back to 1975. In 1975 we
have a letter from the Steedman family asking our family to consider a land swap for the
same land. That happened in 1975. In 2001, I think we went through another round of
proposed exchanges, there were possibly three. We went through a later exchange and offer
of purchase in 2012 so we have a very long history with the family which at times obviously
has turned quite acrimonious.
What it boils down to is we haven’t been willing to offer what essentially amounts to a
public road through our land to offer access. We have continued to offer them limited access
to what we believe is appropriate. It has allowed them to continue to visit their land and
allow members of their family to visit the land for recreational and spiritual purposes. We
have allowed them to go through to construct a hut on their land. I know it always hasn’t
been a polite conversation. We feel we have allowed them appropriate access to their land
and still allow them to maintain contact with it and use it. We have not closed that door but
we understand now that if they wouldn’t really like us to purchase the land then it is an
awkward situation for us because if we did not take our present stance they would not be
looking to sell. I guess that leads us to the awkward situation we are in today.
[87] Bruce Bates, an in law to Mr Apatu, also provided comment on the relationships and
how there had been difficulties all round over access and proposals for the sale or exchange
of the land that had been considered from time to time:36
34
339 Aotea MB 287 (339 AOT 287) 35
Ibid, 282-283 36
Ibid, 290-291
Page 24
341 Aotea MB 187
Bruce Bates: Your Honour, my name is Bruce Bates, I manage the Hunting and Fishing on
Apatu Station. I am married to Kate. I have only been involved for 25 years so I am a
“Johhny come lately”. In my time access has never been denied when it’s been asked for. It
hasn’t been free and open access whenever you want, it has to be asked and that carried on
from the last Court case. I struggle a little bit with some of the things I hear. I can
understand the people’s loss of the land and those sorts of things.
…
Again with access we allow a lot of surrounding land owners to bring their beehives onto us.
They fly them off us they leave them on us. I don’t think we are that bad of a neighbour.
We’re really not. Everyone has their own point of view. Apart from having an open road I
think the access has been reasonable. I think Mr Hall has to know that you are buying into
something. I have done a lot of this out of respect to the Steedman family whether they
believe it or not.
I sat in on a lot of land meetings with my mother in law when she was trying to do the land
swap stuff. It wasn’t good for her health. She died at 60. There was a lot of stress. It’s not
only on your side that there has been stress. I think that is one thing Mr Hall may now
finally come to understand. You are not just buying a piece of land in the middle of
nowhere. There is a whole lot that goes with this on both sides and its hurt both sides. I’ve
seen that coming into it for the last 25 years. Don’t think the Steedman side has anymore
heartache than our side of the family has either. For Mr Hall to come into this and think “it’s
a block of land, it’s really cool, there’s a lot of deer and fish on it”. It’s not quite like that
and I just think he needs to know that before he rocks up.
[88] That there have been a range of interactions between the Steedman and Apatu
families over a considerable period of time is acknowledged. That said, the short point is
that the Apatu Whānau has offered to purchase the block for $1,260,000.00. In the absence
of relevant contrary authority I can see no reason why the trustees are bound to accept an
offer simply because it is higher than another, all things being equal between the competing
purchasers.
[89] Both proposed purchasers are members of the PCAs (if Mr Hall is considered as an
in person buyer), both have provided offers for sale that are far in excess of the roll valuation
and both are well aware, perhaps more so with the neighbouring Apatu owners, of the lack
of legal access to the land. Arguably, due to their proximity to the land and their history of
association with the area compared with Mr Hall the Apatu whānau have a strong, perhaps
stronger connection with the district in a practical sense. They are certainly well known to
the vendors and in their local community.
[90] Even so, given my finding that Mr Hall is a member of the PCA, I consider that the
requirements of s 147A are satisfied. This is because it is an expression of their autonomy
and rangatiratanga as the custodians of the land to elect which PCA they wish to sell the
block to, without the interference of anyone else, the legislative requirements having been
satisfied. It must also be remembered that, per s 17 of the Act, the Court is required to
Page 25
341 Aotea MB 188
ascertain and give effect to the wishes of the owners. Both the legal and beneficial owners
of the land have made those wishes perfectly plain.
[91] The only area of potential difficulty concerns the fact the owners of the land are
trustees. They have duties to act prudently and in the best interests of the beneficiaries as a
whole. While I consider that the increase in price by the Apatu offer is at the lower end of
the scale, being approximately 5%, if that offer were to increase, especially significantly,
then questions might arise as to whether the trustees were in fact acting in the best interests
of their beneficiaries.
[92] While there is no obvious rule or sliding scale as to what constitutes a tipping point
from prudent to imprudent, if for example, the trustees were offered 30% more than the
current price, (a figure raised purely hypothetically simply to underscore a point), then an
argument could be made that the trustees were acting imprudently. In any case, there is no
need for me to consider issues of trustee imprudence at this point as the hypothetical
example mentioned does not presently exist.
[93] For completeness I also acknowledge the objection of Richard Steedman. He is well
known as one of the leading coordinators of tribal claims to the Waitangi Tribunal in the
Taihape district. In that role he was had a long association with the historical research into
land alienation that makes up many of the claims presently before the Tribunal. It is
understandable that he, and those supporting him, would oppose the present application for
alienation of this land.
[94] One final point. The termination of the whänau trust was sought in connection with
the present proceedings. If the conditions of sale are met then the orders for termination can
be issued in chambers without the need for a further appearance.
Decision
[95] The application for the confirmation of the alienation of Owhaoko D 6 Subdn 3 by
the trustees of the Kararaina Steedman Trust is granted.
[96] This order is issued on condition that the purchaser is either:
(a) Mr Hall in person; or
Page 26
341 Aotea MB 189
(b) a whānau trust to be created with his uri as beneficiaries; or
(c) is the Richard Hall Trust which has had its terms of trust amended to either:
(i) exclude as beneficiaries to Owhaoko D 6 Subdn 3 any persons who are not
members of the preferred class of alienees; or
(ii) create a sub trust over Owhaoko D 6 Subdn 3 for the benefit of his uri.
[97] Leave is reserved for any party to apply for directions at any time.
[98] There will be no order as to costs.
A copy of this judgment is to be issued to counsel and all interested parties.
Pronounced at 4.00 pm in Rotorua on Monday this 31st day of August 2015
L R Harvey
JUDGE