TITO v THE MAORI LAND COURT, TAITOKERAU DISTRICT [2022] NZHC 1030

TITO v THE MAORI LAND COURT, TAITOKERAU DISTRICT [2022] NZHC 1030 [13 May 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2022-488-23[2022] NZHC 1030IN THE MATTER of He Whakaputanga O Te Rangatira 1835,Te Tiriti o Waitangi 1840, and Her MajestiesTrustee Ship and Fiduciary Duty to theBeneficial Owners to the Fee Title to landdeemed Crown land for certain purposesIN THE MATTER of New Zealand Supreme Court Wakatu vsAttorney General SC13/2015 [2017] NZSC17IN THE MATTER of Te Ture Whenua Maori Maori Land Act1993 Preamble S2(3), S5, S19(1); TheJudicial Review Procedural Act 2016, TheBill of Rights 1990 S27, and Imperial LawsApplication Act 1988 S5, S6BETWEEN KEVIN-JOHN TITO and TUI-DOROTHYTITONative Inhabitant/Beneficiary/Applicant(s)AND THE MAORI LAND COURT,TAITOKERAU DISTRICTRespondentJudgment:(On the papers)13 May 2022JUDGMENT OF BREWER JThis judgment was delivered by me on 13 May 2022 at 10 ampursuant to Rule 11.5 High Court Rules.Registrar/Deputy Registrar[1] The Registrar has referred this proceeding to me pursuant to r 5.35A becausehe believes that, on its face, it is plainly an abuse of the process of the Court.[2] The document intituled1 (in part) "Statement of Claim on behalf of theApplicant(s)" identifies "Kevin-John & Tui-Dorothy Tito" as "Native Inhabitant/Beneficiary/Applicant(s)". I will refer to them as "the Applicants".[3] The document identifies "The Maori Land Court, Taitokerau District" as theRespondent.[4] The document is filed by the Applicants personally and has clearly not beendrafted by a lawyer.[5] The document begins with five-and-a-half pages of what amounts to anasserted history of the legal basis for the British settlement of New Zealand and thebasis for the government's dealings with "Native Title". Key paragraphs appear to be:[19] That: This first act of the settlers and immigrants, General Assembly(parliament) Land Court over the Land of the Native Inhabitants/Beneficiaries/Applicants, was an unlawful attempt to extinguish Native Titleand was a breach of the fiducial duty owed to the NativeInhabitants/Beneficiaries/Applicants by (the settlers and immigrants)Sovereign Her Majesty, the Trustee, however it was not by the TreatyPartner the Crown (UK), but Her Majesties subjects, (Agents) the Settlerand Immigrants General Assembly/Legislative Body (parliament) whomthrough Governorship became Her Majesties, Crown (UK) agency, and;[20] That: These statements being called into being by the NativeInhabitants/Beneficiaries/Applicants are known to them as the Sovereign ofthe United Kingdoms Solemn Promises to the Native Inhabitants/Beneficiaries/Applicants and as such take the claim by them of the applicationto the High Court of New Zealand into Equity (Sovereign's Conscience) andthe Equitable fiducial duty of the Crown (UK) to the NativeInhabitants/Beneficiaries/Applicants of the Nation now known asNew Zealand.[6] The document goes on to quote passages it says are taken from the judgmentof the Supreme Court in Wakatu v Attorney-General.21 I have intituled this Judgment as per the intituling on the Notice of Proceeding accepted for filing.I do not endorse it.2 I infer the case referred to is Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017]1 NZLR 423.[7] The document then asserts:[25] That: This would mean that not only is the land which the respondentclaims Freehold title to, not cleared of the Customary title by either of theabove methods but also that jurisdiction for this case would be in HerMajesties Supreme Court of New Zealand and;[26] That: Furthermore, the Maori Land Court and its predecessor theNative Land Court being Courts of the General Assembly/Legislative Body(parliament) of Her Majesties Subjects in New Zealand, had issued title(Attached Marked "I") that is not equitable, nor lawful according toEnactments of the Sovereign Parliament Westminster (UK) and the decisionof Her Majesties Supreme Court of New Zealand and;[27] That: The British subjects settlers and immigrants GeneralAssembly/Legislative Body (parliament) Maori Land Court continues torepeatedly stand by its previous decisions that the Land has been investigated,title has been issued and that this process extinguished the Customary Title tothe Land, and;[28] That: It is not possible for the Native Inhabitants/Beneficiaries/Applicants to expect an unbiased and unprejudiced hearing in the Maori LandCourt that having breached the fiduciary duty of its Sovereign, Her Majestythe Queen of the United Kingdom, the Treaty Partner and Trustee, and nowprotecting its own unlawful act using its own case law which is based on thatsame unlawful act.[8] The document then asks the Court to transfer the proceedings to the SupremeCourt.[9] The only relief claimed (in apparent contradiction to [8]) seems to be:[32] That: The decisions and orders of the Maori Land Court, the MaoriAppellate Court and the High Court, Whangarei Registry, be subject to anurgent and immediate injunction of all said orders, pending the outcome ofreview under the Judicial Review Procedural Act 2016 and Bill of Rights 1990S27, in Her Majesties High Court, of the matters in attached Memorandumand Exhibits.[10] The document is accompanied by what I estimate to be over 200 pages of"exhibits".[11] As it happens, I think I have some knowledge of the background to thisproceeding. On 21 May 2020, I delivered a judgment imposing a penalty on Mr KevinTito for contempt of the Maori Land Court.3 A copy of my judgment is exhibit "Z4"to the document. In my introduction I say:[1] Mr Kevin Tito owns 65 per cent of the shares in the Mangakahia 2B2No 2A1A block (the whenua). It is administered by an Ahu Whenua Trust(the Trust). Mr Tito is one of the three trustees.[2] The whenua is 41.1843 ha in area. There are currently 30 ownersholding a total of 1020 shares. The whenua is leased by the Trust toneighbouring dairy farmers, Mr and Mrs Booth.[3] For over a decade there has been repeated litigation in the Maori LandCourt, and in higher Courts, about the management of the whenua. Mr Titohas repeatedly tried to terminate the Trust. His latest attempt was rejected byJudge MJ Doogan in the Maori Land Court on 20 August 2018.[4] Mr Tito believes the Trust lacks legitimacy and he should have thesole right to decide what happens on the whenua. He bases this on his viewof tikanga.[5] I set out this background because it sets the scene for why Mr Tito isbefore me today.[12] Other exhibits to the document include decisions of the Maori Land Court inrelation to the whenua, all pre-dating my judgment.[13] The proceeding cannot continue in its present form. It is too unclear. On theface of the document, the Court does not have jurisdiction to entertain the claims, tothe extent they can be identified.[14] Rule 5.17(1) has not been complied with:Distinct causes of action founded on separate and distinct facts, must ifpossible be stated separately and clearly.[15] There is, for example, no application for injunction.[16] Judicial review is a jurisdiction to examine process. The document does notsufficiently identify the decisions which are sought to be reviewed. There are nogrounds put forward as to why the decisions to be reviewed are in error.3 Booth v Tito [2020] NZHC 1071.[17] If, as I suspect, the basis of the proceeding is that because of the historicalnarrative asserted in the earlier part of the document the Maori Land Court and thisCourt do not have jurisdiction to give judgments in respect of the whenua, then thatbasis cannot found the proceeding. It would be an abuse of process for it to continue.[18] But, if there are specific decisions to which the injunction and/or the judicialreview jurisdictions might attach then perhaps the proceeding can go ahead. I willgive the Applicants a chance to regularise their pleading rather than strike it out at thisstage.[19] I make the following directions pursuant to r 5.35B:(a) The proceeding is stayed until further order of the Court.(b) Documents for service are to be kept by the Court and not be serveduntil the stay is lifted.(c) No application to lift the stay should be heard until the applicants filean amended statement of claim which complies with r 5.17(1), withsuch compliance having been first certified by a Judge.(d) If no amended statement of claim is received by 16 June 2022 theproceeding will be deemed to be struck out without further order of theCourt.[20] I have not given the Applicants an opportunity to be heard. I record for theirbenefit that they have a right to appeal my decision.________________________________Brewer J