KARAKA AND ANOR V NGAI TAI KI TAMAKI TRIBAL TRUST HC AK CIV 2003-404-6164

KARAKA AND ANOR V NGAI TAI KI TAMAKI TRIBAL TRUST HC AK CIV 2003-404-6164 13 November 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2003-404-6164BETWEEN PETER KARAKA First Plaintiff AND EMILY KARAKA Second Plaintiff AND NGAI TAI KI TAMAKI TRIBAL TRUST Defendant Hearing: 31 August 2007 Counsel: H T Sorensen for Applicants F J Thorp for Interim Trustee K Littlejohn for S M N Zister and L J Beamish No appearance by or on behalf of Respondent Judgment: 13 November 2007JUDGMENT (NO. 6) OF HEATH JThis judgment was delivered by me on 13 November 2007 at 2.30pm pursuant to Rule540(4) of the High Court Rules. Registrar/ Deputy RegistrarSolicitors: Sorenson Law, PO Box 7029, Wellesley Street, Auckland Counsel:KRM Littlejohn, PO Box 106215, Auckland F Thorp, PO Box 3995, Shortland Street, Auckland Copies to: Mr T W Taua, 517 Oruarangi Road, Mangere Mr P Turei, 30a Alexander Street, Kingsland Mr T Kirkwood, 41 Lauderdale Road, Birkdale Mr M Fleet email pitbullmotorcycles@xtra.co.nzIntroduction[1] The Ngai Tai ki Tamaki Tribal Trust (the Trust) was incorporated as a charitable trust on 17 August 1992. One of the objects for which it was incorporated was "to do whatever may seem to be helpful for the people of Ngai Tai ki Tamaki living within their ancestral lands": cl 2(e). By early 2004, a state of disharmony among those purporting to act as trustees was evident. Because the trustees had received a mandate from iwi to negotiate claims made by Ngai Tai to the Waitangi Tribunal, it was important that the problems be resolved promptly. [2] Mr Peter Karaka and Ms Emily Karaka, both of whom were trustees at the time of the application, sought directions from this Court under s 66 of the Trustee Act 1956 in relation to the management and administration of the Trust. I heard that application on 8 March 2004. On 9 March 2004, I made an order removing existing trustees and appointing Mr Mark Stevens of Wellington, chartered accountant, as interim trustee in their stead. Mr Stevens was given all powers conferred upon trustees by the trust deed. [3] Mr Stevens has been the steward of the Trust's affairs since that time. However, soon after his appointment, the fractious relationship among beneficiaries manifested itself again, in varying degrees of support for or opposition to Mr Stevens' role. Some members of the iwi have supported him throughout. Some have opposed his involvement in the Trust. Others have wavered between the two extremes. [4] Mr Stevens acknowledges that, although he has undertaken significant work, he can only receive fees if the Waitangi Tribunal claim is successful and the Court authorises reasonable fees and expenses to be paid. [5] Issues relating to the Waitangi Tribunal claim became more acute earlier this year. Ngai Tai ascertained, along with four other tribal groups, that (since 2003) Ngati Whatua o Orakei had been engaged in negotiations with the Crown in relation to settlement of Treaty grievances arising in Tamaki Makarau (Auckland). Anagreement in principle had been reached between Ngati Whatua and the Crown without the knowledge of those five tangata whenua groups. [6] Ngai Tai and the other four iwi complained about that state of affairs and, at their request, the Waitangi Tribunal (between 12 and 15 March 2007) embarked upon an inquiry into the circumstances in which the agremeent in principle had been reached: see The Tamaki Makarau Settlement Process Report (WAI 1362, June 2007). The Tribunal made a strong recommendation that the Crown's proposed settlement with Ngati Whatua not proceed. Instead, the Tribunal recommended that the Office of Treaty Settlements should work with other tangata whenua groups (including Ngai Tai) to negotiate settlements for them. Only then, the Tribunal concluded, might it be possible to determine appropriate redress, both cultural and commercial, to all Tamaki Makarau tangata whenua. The Tribunal considered that an overall settlement was required to uphold the mana of all tribes. [7] In those circumstances, the application for directions filed by the Karakas in early 2004 was set down for final disposition before me on 31 August 2007. No cross-examination on existing affidavits took place but, with the consent of all involved in the process, individual members of the iwi (whether represented by counsel or not) had an opportunity to address me from the back of the Court on any concerns. [8] Although I expressed some reservations about continued Court involvement because of the way in which some members of the iwi had responded to Mr Stevens' appointment, I was satisfied from observations made by those present that the overriding concern was for the Court to bring some order to the administration of the Trust, to enable the Waitangi Tribunal claims to be pursued.Should I hear the application?[9] On Saturday 12 May 2007, I conducted a "settlement conference" at Maungarei Marae. While the term "settlement conference" was used, it is in the nature of discussions on a Marae that they were never going to be regarded as confidential in the way, for example, settlement discussions in a commercial disputewould be. The underlying purpose of the hui was to inform those present of the issues in dispute and to endeavour to resolve them consensually, after considering views expressed by those present. [10] I raised with counsel and members of the iwi present on 31 August 2007 whether anyone had an objection to my hearing the application, given that I had presided at that conference. There was no objection. I proceeded to hear from counsel, the parties and others who wished to speak from the back of the Court. [11] The hearing of 31 August 2007 represents a watershed event because, if the prospects of obtaining cultural and commercial redress for historical grievances were to be addressed promptly, it is necessary for the five Tamaki Makarau iwi (other than Ngati Whatua) to determine individually questions of mandate and to persuade the Crown to accept that mandate.The nature of the issues[12] The application raises some unusual problems, in the context of the Court's supervisory jurisdiction over trusts. There are good constitutional reasons for approaching this application cautiously. [13] I must take care not to infringe jurisdictions enjoyed by other authorities; eg the Waitangi Tribunal. It is not my role to comment on the Tribunal's recommendations to the Crown or to express any view on the grievances for which Ngai Tai seeks redress. The Tribunal's report simply provides an immediate need to determine the present application. [14] I must also be careful, in the context of the constitutional principle of separation of powers, not to intrude upon the Executive's undoubted responsibility to determine whether to acknowledge any mandate to negotiate on behalf of a claimant group. The limits of the Court's jurisdiction, in those circumstances, has been considered recently by the Court of Appeal in New Zealand Maori Council v Attorney-General [2007] NZAR 569 (CA).[15] Since, at least, 1978 this Court has eschewed the need for a paternalistic approach to be taken by a Court when dealing with Mäori issues. I refer, in particular, to Alexander v Mäori Appellate Court [1979] 2 NZLR 44 at 51-52. In approaching my jurisdiction under the Trustee Act, I should not be seen as imposing the Court's will on members of the iwi. I am not exercising a guardianship function in respect of Mäori interests in land of a type previously common: cf Hakopa te Ahunga v Seth-Smit (1905) 25 NZLR 587 (SC) at 591 per Stout CJ, Pateriki Hura and Ngaroimata Mootu v Native Minister and Aotea District Mäori Land Board(1940) NZLR 259 (SC) at 261-262 and Re Committee of Management of the Proprietors of Mangatu Nos 1, 3, 4 Blocks (Incorporated) [1954] NZLR 624 (SC) at 627. Rather, I am exercising a supervisory jurisdiction over a trust, at the request of its beneficiaries, to assist in resolving an impasse over governance of the Trust. Put simply, the Court's role is to assist; not to dictate.Background to the disputes[16] One of the problems that led to the current division is a dispute between those associated with the Maungarei and Umupuia Marae about the identity of Ngai Tai's public voice on Treaty issues. [17] A separate Trust (Ngai Tai Umupuia Te Waka Totara Trust Inc) is associated with the Umupuia Marae and has incorporated its historical claims to the Waitangi Tribunal with larger claims brought by Hauraki whanau. It is for the Crown to determine which claims can be negotiated and by whom, for settlement purposes. [18] There have also been disputes among those associated with the Maungarei Marae, who, generally, regard the Trust as their representative for Waitangi Tribunal purposes. However, most seem to acknowledge (albeit some reluctantly) that the Trust is one of the claimants that has been granted standing in Waitangi Tribunal claims and that there is merit in trustees being appointed by the Court who can work on behalf of all beneficiaries to advance their grievances, with a view to concluding mandate and settlement issues as soon as practicable.[19] I emphasised to those present at the hearing of the present applications that the Court could not impose a workable solution upon them if they were not prepared to co-operate and put differences to one side in order to expedite resolution, in the best interests of all involved. Notwithstanding indications to that effect given to me at the hearing, I have little confidence (given what I saw and heard on the Marae) that a state of harmony and co-operation might suddenly emerge. But, that is one thing on which I would like to be proved wrong.The trusteeship issues[20] I am satisfied with Mr Stevens' performance as a Court appointed trustee. However, I do not consider that it is appropriate for Mr Stevens to remain as sole interim trustee. I reach that conclusion for two reasons. [21] First, it is inappropriate that he continue alone in a role which involves attempting to placate disputing parties while, at the same time, pursuing benefits for the iwi as a whole. Second, the time has come for members of the iwi to resume responsibility for running the Trust. If they cannot work together for their mutual benefit, they risk losing the prized redress they seek for past wrongs they believe have occurred. [22] My initial goal, when appointing Mr Stevens on 9 March 2004, was to restore the mana of the iwi through a process of kotahitanga. While I see scant evidence of progress in resolving differences among whanau, the Court should not, for the reasons given earlier, seek to impose paternalistic solutions on the beneficiaries. Subject to the need for some assistance from Mr Stevens, who has borne the burden of prosecuting the Tribunal proceedings in the meantime, it is time for members of the iwi to take responsibility for future actions. My response to the present application is to provide a short term solution pending the next Annual General Meeting. [23] Five people have consented to act as trustees; Tauke Kirkwood, Peter Karaka, Te Warena Taua, Emily Anne Karaka and Mark Stevens. Nobody else has filed a consent to act as a trustee.[24] My view is that fewer than five trustees would be better able to advance the cause of Ngai Tai through the settlement process and to achieve some degree of reconciliation among whanau groups. Both aspects are important. [25] From my own observations at the meeting at the Marae and the views expressed to me at that time and in Court, it is plain that, for good reason or for bad, the confidence of the group as a whole does not extend to Mr and Ms Karaka. It is clear that both have done good work in the past but I regret that I cannot appoint them when there is a real risk that the current state of disharmony might worsen as a result of the perception of others that they will not act impartially. A physical altercation that occurred towards the end of my Marae visit has influenced me considerably in reaching that view. [26] In those circumstances, my decision is to appoint two additional interim trustees, Mr Kirkwood and Mr Taua. From my interaction with them, I believe that they, in association with Mr Stevens, can act conscientiously for the benefit of iwi as a whole and promote the necessary reconciliation among members of the group. [27] I made it clear, at the end of the 31 August 2007 hearing that not all present would like any decision I made. I sought (and received) assurances from all present that they would support whatever decision was made, whether it accorded with personal views or not. I expect that everyone (including Mr and Ms Karaka) will do so.Conclusion[28] I make an order appointing, as additional interim trustees, Te Warena Taua and Tauke Kirkwood. Mr Stevens will remain as an interim trustee. All three have the powers conferred upon trustees by the Trust Deed. They shall appoint their chairman themselves. The appointment of all three is until the next Annual General Meeting, at which time trustees shall be elected. [29] Any persons presently purporting to be advisory trustees are removed. I reserve leave to the interim trustees to apply to the Court for an order appointing anyadvisory trustees whom they may consider appropriate. Any such application would need to be made on the basis of a signed consent to act as an advisory trustee. [30] No order as to costs is made on the present applications. [31] No payment of any fees to the trustees shall be made without Court approval. Leave is reserved for the trustees to seek approval. [32] Leave is reserved, generally, for the interim trustees to seek such further or other directions as they may think fit. ___________________________ P R Heath J Delivered at 2.30pm on 13 November 2007