2017 Chief Judge’ s MB 46 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO A20090018262 UNDER Section 45 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF Harataunga West 2B2A1 Block and orders made to set aside Harataunga West 2B2A1 as a Māori Reservation at 104 Hauraki MB 4 BETWEEN JOHN THORNTON MCLEOD Applicant AND NGA URI A MAATA NGAPO CHARITABLE TRUST Respondent Hearing: 15 December 2016, 2017 Chief Judge's MB 12-30 (Heard at Hamilton) Appearances: Natalie Coates, for the applicant Paul Majurey, for the respondent Judgment: 08 February 2017 RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC Copies to: Kahui Legal, PO Box 1654, Wellington Paul F Majurey, PO Box 1585, Shortland Street, Auckland 1140
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2017 Chief Judge’s MB 46
IN THE MĀORI LAND COURT OF NEW ZEALAND
WAIKATO MANIAPOTO
A20090018262
UNDER
Section 45 of Te Ture Whenua Māori Act 1993
IN THE MATTER OF
Harataunga West 2B2A1 Block and orders made
to set aside Harataunga West 2B2A1 as a Māori
Reservation at 104 Hauraki MB 4
BETWEEN
JOHN THORNTON MCLEOD
Applicant
AND
NGA URI A MAATA NGAPO CHARITABLE
TRUST
Respondent
Hearing:
15 December 2016, 2017 Chief Judge's MB 12-30
(Heard at Hamilton)
Appearances:
Natalie Coates, for the applicant
Paul Majurey, for the respondent
Judgment:
08 February 2017
RESERVED JUDGMENT OF CHIEF JUDGE W W ISAAC
Copies to: Kahui Legal, PO Box 1654, Wellington Paul F Majurey, PO Box 1585, Shortland Street, Auckland 1140
2017 Chief Judge’s MB 47
Introduction
[1] The applicant, John McLeod, pursuant to s 45 of Te Ture Whenua Māori Act 1993
(the Act), seeks to amend a 3 December 2001 order of the Court recommending that
Harataunga West 2B2A1 be set aside as a Māori reservation for the benefit of the Ngapo
whānau and Kennedy Bay community (to be known as Te Paea o Hauraki Reserve).1 This
recommendation was subsequently gazetted, and the reservation established, in 2002.2
[2] Section 44 of the Act sets out that when a s 45 application is received, the Chief
Judge can amend the order complained of if it was erroneous in fact or in law because of
any mistake or omission by the Court or Registrar or in the presentation of the facts of the
case to the Court, if it is in the interests of justice to do so.
Background
[3] The Case Manager’s preliminary Report and Recommondation (“the Report”),
dated 20 December 2011, sets out the background to the application. The Report is
produced in full as follows:
1 104 Hauraki MB 4 (104 H 4).
2 “Setting Apart Maori Freehold Land as a Maori Reservation” (21 March 2002) 26 New Zealand Gazette
743.
2017 Chief Judge’s MB 48
2017 Chief Judge’s MB 49
2017 Chief Judge’s MB 50
2017 Chief Judge’s MB 51
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2017 Chief Judge’s MB 52
Case for the Applicant
[4] In summary, the case for the applicant is that the Court erred for the following
reasons:
(a) The Court recommended the reservation without inquiry into the sufficiency
of support amongst the landowners, such that the Court failed to recognise
that landowner support was insufficient.
(b) Neither the 2001 Court hearing, nor the preceding hui in December 2000
(the hui) at which shareholders discussed and voted on a proposed
application for a reservation, were sufficiently notified.
(c) The Court exceeded its jurisdiction by including the Kennedy Bay
Community as a beneficiary of the recommended reservation because such a
class of beneficiary is too broad and could include non-Māori.
[5] The applicant argues that the order recommending the reservation has adveresly
affected him and other landowners, and so the interests of justice support the order’s
cancellation or amendment.
Case for the Respondent
[6] The case for the respondent can be briefly stated as follows:
(a) sufficiency of support and notice go to the weight to be given to the
application, not fact or law;
(b) the facts relied on by the Court were not factually incorrect;
(c) the hui was not challenged until nine years later;
(d) the hearing was not challenged;
(e) the applicant has not proved that the class of beneficiary was not referring
exclusively to Māori in Kennedy Bay; and
2017 Chief Judge’s MB 53
(f) it is not in the interests of justice to amend or cancel the order.
Discussion
[7] The principles relating to the exercise of jurisdiction under s 45 are well known and
set out in the Ashwell case.3 These principles include the need to examine the original
hearing, which I have done. I have also examined the hui and the notice around both the
hui and the Court sitting complained of. I refer to these matters when discussing the
applicant’s main submissions. However, I wish to deal first with what is, in my view, the
primary obstacle to the applicant’s case.
[8] Applications to the Chief Judge under s 45 are the exception rather than the rule
and the Act’s other review provisions should be utilised before an application to the Chief
Judge is made.4 Such applications are unique to the Māori Land Court’s jurisdiction.
5 This
exceptionality demands that the Chief Judge’s discretion is exercised with care,6 and sets s
45 applications apart as distinct from appeals made to appellate courts throughout the
judicial system. Accordingly, applications raising issues akin to those raised in an appeal or
rehearing, as opposed to those highlighting a patent defect in the order, are not
appropriately raised in a s 45 application.7
[9] In response to my questions, Ms Coates submitted that the case was exceptional
because not enough landowners attended the hui, and so the Court could not have known
whether support was sufficient when it recommended the reservation. Furthermore, the
building of a marae on the land was a serious development that, when accompanied with
the issue of sufficiency of support and lack of notification, cumulatively provides the
exceptional circumstances that warrant exercising the s 45 jurisdiction.
[10] I do not accept this reasoning, which essentially reiterates the applicant’s arguments
about sufficiency of support, rather than addressing the question of exceptionality in light
of the other avenues for judicial review, or how this application might be distinguished
from an appeal or rehearing. In this case, neither the applicant nor any other owner chose
3 Ashwell – Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209 (2009 CJ 209).
4 Estate of Amos – Horahora 1A4B, 1A4E and 1A4F [2002] Chief Judge’s MB 54 (2002 CJ 54) at [3.2].
5 At [3.2].
6 Ellis – Matapihi No 1B No 2C No 2D [2010] Chief Judge’s MB 25 (2010 CJ 25) at [12].