URLICH v ATTORNEY-GENERAL [2022] NZCA 38

URLICH v ATTORNEY-GENERAL [2022] NZCA 38 [4 March 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA292/2020[2022] NZCA 38BETWEEN ROBERT MATTHEW URLICHAppellantAND ATTORNEY-GENERALRespondentHearing: 1 June and 20 August 2021Court: Kós P, Miller, Cooper, Clifford and Gilbert JJCounsel: P M Hoskins and J K Harper-Hinton for AppellantN C Anderson and N G Julian for RespondentM J Sharp for Zhan UrlichJudgment: 4 March 2022 at 3 pmJUDGMENT OF THE COURTA Leave is granted to the respondent to adduce further evidence.B Leave is granted to Zhan Urlich to adduce further evidence.C The appeal is dismissed.D There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)Table of ContentsPara NoBackgroundStatutory frameworkHistory of s 40(5) of the PWAOther relevant PWA provisionsSection 134 of TTWMAJudgment appealedIs Robert his father's "successor" under s 40 of the PWA?SubmissionsDiscussionConclusionWhat effect does s 134 of TTWMA have?History of s 134SubmissionsDiscussionWhat happens now?Result[7][16][18][25][30][32][37][46][52][66][67][68][70][73][79][82][1] Robert and Zhan Urlich are descendants of two brothers, Simon and RichardUrlich, who in 1953 gifted land on the Karikari Peninsula, Northland, to the Crownfor use as a Māori school. The school closed in 2016 and the land is being offeredback to former owners or successors under the Public Works Act 1981.1 Simon andRichard have died. Robert, Simon's son, was not offered the land because he was notthe residuary beneficiary under his father's will. Zhan, Richard's grandson andRobert's first cousin once removed, is the residuary beneficiary under Richard's will.The land was offered to him alone.[2] Robert protests. He says he too is the successor of a person from whom theland was acquired under s 40(5) of the PWA. He lodged a caveat over the land.Application was made to the Registrar that the caveat lapse. Robert then applied foran order that his caveat not lapse, under s 143(4) of the Land Transfer Act 2017.[3] Associate Judge Andrew held it was not reasonably arguable that Robert is a"successor" given the terms of s 40(5) and prior case law.2 Accordingly, the caveatwould lapse, but the Judge made interim orders sustaining the caveat pending appeal.31 The PWA herein.2 Urlich v Attorney-General [2019] NZHC 2783 [High Court judgment] at [55].3 At [56] and [58].[4] Robert now appeals. An attempt to leapfrog this Court by appealing directlyto the Supreme Court was refused by that Court.4[5] At the hearing on 1 June 2021 we raised with counsel the potential, alternativeapplication of s 134 of Te Ture Whenua Māori Act 1993.5 We also suggested the needfor Zhan to be represented.[6] At the resumed hearing on 20 August 2021, Mr Sharp appeared for Zhan.In essence, Zhan's position is that he would be happy if the land was split 50/50between Simon's whānau and himself (as Richard's successor). Indeed, he states inhis affidavit that if the land is transferred to him by the Crown, he will retransfer halfof it to Simon's whānau.Background[7] Robert and Zhan are of Ngāti Kahu descent. We will start with theirwhakapapa, so far as we have evidence of it:Not shown above is that Zhan is the son of Marlaine Urlich, Richard's daughter.4 Urlich v Attorney-General [2020] NZSC 11.5 TTWMA herein.[8] The land concerned is 1.82 ha of general land on the Karikari Peninsula, beingpart of the Parakerake No 576N block and first sold into European ownership in 1872after investigation by the Native Land Court. The Parakerake block was originallypurchased by Simon and Richard in 1952. In 1953, part of the Parakerake block wasgifted to the Crown to be used for a Māori school, Rangiāwhia Māori School and laterTe Kura Kaupapa Māori o Rangiāwhia.6 Although gifted in substance (in exchangefor one shilling), in legal form it was taken by proclamation made under thePublic Works Act 1928. The remainder of the Parakerake block was sold to adevelopment company in March 1954.[9] Simon died in November 2002. His wife, Olivia, Robert's mother, died inDecember 2010. The property was not the subject of any express bequest inSimon's will. That means that had the property been in Simon's ownership at the timeof his death, it would have passed as part of his residual estate to Olivia. Nor was itthe subject of any express bequest in Olivia's will. On the same basis, had it been inOlivia's ownership at the time of her death, by her will it would have passed to herresiduary beneficiaries, Robert and his two sisters, Ere and Rata.[10] Richard died in 2008. Under his will, the residue of his estate passed to hisgrandson, Zhan. Zhan was a whāngai child of Richard and Eva, his grandparents, andwas brought up by them.[11] During the time of the events just related, the property was held for a publicwork pursuant to the PWA. The omission to provide for the land in Simon, Richardand Olivia's wills is hardly surprising. Doubtless no one had thought the school wouldclose and the land might be offered back to them.[12] However, the school did close, in December 2016. In March 2018 the propertywas declared by the Ministry of Education to be no longer required for educationalpurposes. Nor was it required for any other public work or land exchange.6 The school replaced the now-outgrown Rangiāwhia Native School, established in 1902. It wasthe first school in New Zealand to have a Māori headmaster, Mr Wiremu Hoani Taua: Robin CMcConnell "Taua, Wiremu Hoani" in Claudia Orange (ed) The Dictionary of New ZealandBiography (Auckland University Press, Auckland, 1996) vol 3, 502 at 502–503.[13] Land Information New Zealand,7 the responsible agency, with the assistanceof an accredited supplier, analysed the wills of the former owners. An affidavit byJanine Stocker, a LINZ employee, explains the analysis done:Simon Urlich's will bequeaths specific properties and Māori blocks, none ofwhich are the property. Simon Urlich's rights to the property form part of hisresidual estate. Simon Urlich's residual estate was given to Olivia Urlich,his wife. Olivia Urlich died on 16 December 2010. As the s 40 process onlydeals with immediate successors, any right to offer back of Simon Urlich'sinterest in the property ended with the death of Olivia Urlich.Richard Urlich's will also bequeaths specific properties and Māori blocks,none of which are the property. Richard Urlich's rights to the property formpart of his residual estate. Richard's residual estate was given to hisgrandchild [Zhan] Howard Urlich, who is alive.[14] In February 2019 the property was offered to Zhan, the successor to Richard'sresidual estate under s 40 of the PWA, at a price of $125,000. That price reflects thefact that the land was gifted rather than taken and paid for, and relates only toimprovements thereafter made to the land. A registered valuation prepared for theCrown as at November 2018 values the land and buildings at $800,000. Zhan hasaccepted the offer-back.[15] Robert lodged the caveat at issue over the property on 12 July 2019. He sayshe is beneficially entitled to the land as a successor to one of the original owners unders 40(2) of the PWA and is also entitled to have the land offered back to him. He acceptsthat his sisters Ere and Rata may also be entitled on that basis.Statutory framework[16] Section 40 of the PWA provides:40 Disposal to former owner of land not required for public work(1) Where any land held under this or any other Act or in any othermanner for any public work—(a) is no longer required for that public work; and(b) is not required for any other public work; and(c) is not required for any exchange under section 105—7 LINZ herein.the chief executive of the department within the meaning of section 2of the Survey Act 1986 or local authority, as the case may be, shallendeavour to sell the land in accordance with subsection (2), if thatsubsection is applicable to that land.(2) Except as provided in subsection (4), the chief executive of thedepartment within the meaning of section 2 of the Survey Act 1986 orlocal authority, unless—(a) he or it considers that it would be impracticable,unreasonable, or unfair to do so; or(b) there has been a significant change in the character of the landfor the purposes of, or in connection with, the public work forwhich it was acquired or is held—shall offer to sell the land by private contract to the person from whomit was acquired or to the successor of that person—(c) at the current market value of the land as determined by avaluation carried out by a registered valuer; or(d) if the chief executive of the department within the meaning ofsection 2 of the Survey Act 1986 or local authority considersit reasonable to do so, at any lesser price.(2A) If the chief executive of the department within the meaning ofsection 2 of the Survey Act 1986 or local authority and the offeree areunable to agree on a price following an offer made under subsection(2), the parties may agree that the price be determined by the LandValuation Tribunal.(3) Subsection (2) shall not apply to land acquired after 31 January 1982and before the date of commencement of the Public WorksAmendment Act (No 2) 1987 for a public work that was not anessential work.(4) Where the chief executive of the department within the meaning ofsection 2 of the Survey Act 1986 or local authority believes onreasonable grounds that, because of the size, shape, or situation of theland he or it could not expect to sell the land to any person who didnot own land adjacent to the land to be sold, the land may be sold toan owner of adjacent land at a price negotiated between the parties.(5) For the purposes of this section, the term successor, in relation to anyperson, means the person who would have been entitled to the landunder the will or intestacy of that person had he owned the land at thedate of his death; and, in any case where part of a person's land wasacquired or taken, includes the successor in title of that person.[17] The focus here is on s 40(5) and the definition it gives to "successor". To beeligible to receive an offer under s 40(2), Robert must be successor to either his father,Simon, or Simon's brother, Richard. Only the former is in issue in this appeal.History of s 40(5) of the PWA[18] We start with the Public Works Act 1876. Section 29(2) of that Act provided:The Minister, County Council or Road Board, as the case may be, shall causethe land proposed to be sold to be valued by one or more competent valuers,and shall offer such land at the price fixed by such valuation, first to the personthen entitled to the land from which such land was originally severed; and, ifhe refuse it, or cannot after due inquiry be found, then to the owner of theadjacent lands, or, if there be more than one such owner, then to each of suchowners, in such order as the Minister, County Council or Road Board thinksfit; and, if no such owner accepts such offer, may cause the land to be sold bypublic auction.There was no discussion in the parliamentary debate of the general rationale for theintroduction of an offer-back provision, or the specific words "to the person thenentitled to the land from which such land was originally severed". The provision itselfis drawn from s 100 of the Lands Clauses Consolidation Act 1863. Parliamentarydebate on that provision merely noted that the legislation was an adoption of theequivalent English Act, modified to reflect specific local conditions.[19] The same provision was carried through into s 29(2) of the Public Works Act1894 (but with the word "severed" replaced with "taken"), s 30(b) of the Public WorksActs Compilation Act 1905, s 30(b) of the Public Works Act 1908 and s 35(b) of thePublic Works Act 1928.[20] The Public Works Amendment Act 1954 then changed who was entitled to anoffer-back. Section 4(1) amended s 35 of the 1928 Act so that the Minister orlocal authority might only offer the land to the owner of any adjacent lands by privatecontract or to a member of the public at large by way of public auction — removingaltogether rights of a successor to an offer-back.8 In the parliamentary debate there isno reference to the reason for this change.9 So from 1954, both Robert and Zhan wouldbe out of the picture.[21] The exclusion of successors lasted from 1954 to 1981. Clause 39(2)(a) of thePublic Works Bill 1980 as introduced allowed for optional offer back to "the person8 See Aztek Ltd v Attorney-General [2020] NZCA 249, [2020] 3 NZLR 698 at [49]; and WaitakereCity Council v Bennett [2008] NZCA 428, [2009] NZRMA 76 at [25].9 See generally (30 September 1954) 304 NZPD 2088–2089.from whom the land was acquired or to the descendant or successor in title of thatperson, or to the owner of any adjacent land".10 The explanatory note to the 1980 Billstated cl 39 introduced a new provision that land "may also be sold to the person fromwhom it was originally acquired or to his descendant or successor in title".11 Thatterminology would mean Robert and Zhan would have both qualified, but only at theoption of the Crown.[22] In select committee, the Lands and Agriculture Committee recommended cl 39be revised in the form ultimately adopted as s 40. That is, mandatory offer back to"the person from whom [the land] was acquired or to the successor of that person",with successor defined by cl 39(5) in terms now found in s 40(5). The Lands andAgriculture Committee appears to not have provided a written report explaining thechange. But it did report back to Parliament in debate. One member stated that cl 39made it mandatory for land surplus to requirements to be offered back to the"former owner".12 Another member stated cl 39 "tidies up the Bill in relation to thedisposal of land" and requires land to be offered back to the "previous owner".13 Therewas also some limited mention of Māori land. He stated cl 39A dealt with concernsabout the disposal of Māori land:14If there is difficulty in defining the ownership of Māori land, the matter caneither be dealt with under [clause 39] of the Act, or be referred to the MāoriLand Court for definition.[23] In the Bill's second reading the Minister of Works and Development,the Hon Bill Young, stated that one of the "most significant" changes recommendedby the select committee was the rewriting of cl 39:15That clause will now give effect to the general principle that when land hasbeen acquired by the Government or by a local authority for a public work,and subsequently ceases to be required for a public work in respect of whichthere is a power of compulsory acquisition, the land should be offered back tothe original owner, or his representative, except in circumstances when therewas no element of compulsion at the time the land was originally acquired.10 Public Works Bill 1980 (153-1).11 At v.12 (10 July 1981) 438 NZPD 1478 (Leo Schultz MP).13 (10 July 1981) 438 NZPD 1485 (Bruce Townshend MP).14 (10 July 1981) 438 NZPD 1485. Clause 39A became s 41: see [25] below.15 (2 September 1981) 440 NZPD 3165.[24] Clause 39 was not then discussed in the Bill's third reading.16 The essentialquestion we will need to consider, under the first issue below, is whether the definitionof "successor" in s 40(5) encompasses second-line successors such as Robert —the residuary of the original owner's residuary. The Crown's argument before us isthat s 40(5) is narrower; it includes Zhan, a first-line residuary, but excludes Robert,a second-line one.Other relevant PWA provisions[25] Sometimes relevant in the case of former Māori land that is no longer requiredis s 41(1) of the PWA. That section provides:41 Disposal of former Māori land when no longer required(1) Notwithstanding anything in sections 40 and 42, where any land towhich section 40(2) applies was, immediately before its taking oracquisition,—(a) Māori freehold land or General land owned by Māori(as those terms are defined in section 4 of Te Ture WhenuaMāori Act 1993); and(b) beneficially owned by more than 4 persons; and(c) not vested in any trustee or trustees—the chief executive of the department within the meaning of section 2of the Survey Act 1986 or local authority, as the case may be, shall—(d) comply with the requirements of section 40; or(e) apply to the Māori Land Court for the district in which theland is situated for an order under section 134 of Te TureWhenua Māori Act 1993.[26] Section 41(1) does not apply in this case. Although the land taken was generalland owned by Māori, not vested in trustees, it was not, when taken, beneficiallyowned by more than four persons. Just by Simon and Richard.[27] Also relevant is s 42(1) of the PWA. It provides:42 Disposal in other cases of land not required for public work(1) Where—16 See (25 September 1981) 441 NZPD 3641–3643.(a) any offer to sell land under section 40(2) has not beenaccepted within 40 working days or such further period as thechief executive of the department within the meaning ofsection 2 of the Survey Act 1986 or local authority considersreasonable; or(b) any land is no longer required for a public work andsubsections (2) and (4) of section 40 do not apply,—the chief executive of the department within the meaning of section 2of the Survey Act 1986 or local authority may—(c) cause the land to be offered for sale to the owner of anyadjacent land at a price fixed by a registered valuer; or(d) cause the land to be offered for sale by public auction, publictender, private treaty, or by public application at a specifiedprice.[28] Section 42(1) therefore carries forward the former (non-mandatory) power tosell the land to owners of neighbouring land or at public auction. But two importantchanges are made. First, the chief executive may only choose to do so if not obligatedto under s 40(2) or a s 40(2) offer is not accepted within the requisite time period.Secondly, the chief executive may offer the land for sale to the public at large by meansother than public auction, including — importantly — by private treaty.[29] Relevant to the operation of s 42(1) is the Gifted Land Policy.17 Ms Stockerfor LINZ deposes that that policy requires that, where land was originally gifted to theCrown and no former owner or successor can be identified, the chief executive willconsider whether there are other individuals the land should be offered to unders 42(1). This may include beneficiaries of wills who are not successors under thePWA, but to whom the Crown owes a moral obligation.Section 134 of TTWMA[30] As noted earlier, at the initial hearing in June we drew counsel's attention tos 134 of TTWMA. That provides:17 Cabinet State Sector Committee "Facilitating the Return of Gifted Lands" (22 August 1995) STA(95) M 11/3E.134 Change to Māori freehold land by vesting order on change ofownership(1) This section applies to—(a) any land (other than Māori freehold land) that the beneficialowner wishes to have vested in or held in trust for any Māorior any group or class of Māori, or any Māori incorporation;and(b) any land (other than Māori freehold land) acquired for or onbehalf of any Māori or any group or class of Māori or anyMāori incorporation; and(c) any Māori land or General land owned by Māori that has atany time been acquired by the Crown or by any local authorityor public body for a public work or other public purpose andis no longer required for that public work or other publicpurpose; and(d) any Crown land reserved for Māori; or(e) any Crown land (other than Crown land reserved for Māori).(2) The Māori Land Court shall have jurisdiction in accordance with thesucceeding provisions of this section to make a vesting order inrespect of any land to which this section applies and to declare in thatorder that the land shall become Māori freehold land.(3) An application to the court for the exercise of its jurisdiction underthis section shall be made,—(a) in any case to which subsection (1)(a) applies, by or on behalfof the beneficial owner of the land; or(b) in any case to which subsection (1)(b) applies, by or on behalfof the person who has acquired the land; or(c) in any case to which subsection (1)(c) applies, by or on behalfof—(i) the Minister of the Crown under whose control theland is held or administered; or(ii) the chief executive within the meaning of section 4 ofthe Cadastral Survey Act 2002; or(iii) the local authority or public body by which the landwas acquired; or(d) in any case to which subsection (1)(d) applies, the Minister ofMāori Affairs; or(e) in any case to which subsection (1)(e) applies, any Ministerof the Crown.(4) Notwithstanding anything in subsections (1) to (3), any Minister ofthe Crown having responsibility in regard to the matter may apply tothe court for the exercise of its jurisdiction, and on such an applicationthe court may exercise its jurisdiction, under this section in respect ofany Crown land that has not been formally set aside for the benefit ofMāori.(5) An application may be made to the court, and the court may exerciseits jurisdiction, under this section notwithstanding the provisions ofany Act to which the land is subject, and notwithstanding any termsand conditions imposed by the Act on the sale or other disposition ofthe land.(6) In any application under this section, the applicant may specify—(a) the person or persons in whom it is proposed the land shall bevested; and(b) the price to be paid for the land, and the terms and conditionsof payment; and(c) any other conditions to which it is proposed the order shall besubject.(7) On an application under this section, the court may make an ordervesting the land in—(a) such person or persons as the court may find to be entitled tothe land or otherwise in accordance with the terms of theapplication, in such shares as may be specified in the order;or(b) a Māori incorporation or a Māori Trust Board or trustees foror on behalf of such person or persons, and on such terms oftrust, as the court may specify in the order.[31] Section 134 of TTWMA also raises a question as to the interrelationshipbetween that provision and s 41 of the PWA. We address that when the second issueis considered in the judgment.18Judgment appealed[32] The High Court identified the critical issue to be whether it is reasonablyarguable that Robert is a successor for the purposes of s 40(5) of the PWA. That wouldgive him a caveatable interest with which to sustain the caveat.1918 From [67] below.19 High Court judgment, above n 2, at [3].[33] The Associate Judge noted that in Robertson v Auckland Council theHigh Court interpreted "successor" as meaning the persons benefiting under the willof the former owner or on his or her intestacy but excluding beneficiaries of thosebeneficiaries.20 In that case, Fogarty J relied on this Court's decision in Port GisborneLtd v Smiler confining "successor" to the former owner's immediate beneficiaries.21The Judge however held a contingent beneficiary of the former owner's estate underhis or her will (who had not become an absolute beneficiary by the time of the formerowner's death) was an immediate beneficiary and therefore a successor.22[34] However, on appeal this Court did not accept that extended interpretation ofs 40(5) — in what was now Williams v Auckland Council:23The s 40(5) test is plainly formulated, even though its application may proveproblematic in a particular case — it is whether a person would have beenentitled to the land under the will or intestacy of the person who owned theland at the time of acquisition had that person owned it at the date of his orher death. There is an assumption that ownership of the land has not changedbetween the dates of acquisition and the owner's death, meaning thatParliament intended only one level of succession.A contingent entitlement that had not become absolute at the time of the formerowner's death was therefore insufficient.24[35] The Associate Judge noted in the present case there is some support for theproposition that s 40(5) should extend to contingent beneficiaries of the originalowner's estate,25 and that the Supreme Court in denying leave to appeal in Williams atleast expressed some doubt about whether this Court's interpretation of s 40(5) was20 At [21], citing Robertson v Auckland Council [2014] NZHC 765 at [209].21 Robertson v Auckland Council, above n 20, at [210] and [212], citing Port Gisborne Ltd v Smiler[1999] 2 NZLR 695 (CA) at [45].22 At [230].23 Williams v Auckland Council [2015] NZCA 479, (2015) NZ ConvC 96-013 at [65] (footnoteomitted).24 At [79].25 High Court judgment, above n 2, at [27]–[29], citing Port Gisborne Ltd v Smiler, above n 21, at[35]; Deane v Attorney-General [1997] 2 NZLR 180 (HC) at 192–193; Aztek Ltd vAttorney-General [2018] NZHC 1839 at [55] and [100]; and Williams v Auckland Council [2016]NZSC 20 [Williams v Auckland Council (SC)] at [9].correct.26 (In fact the Supreme Court simply noted that the point was arguable if asecond appeal were permitted, which is not the same thing.27)[36] The Associate Judge noted that Robert had substantial personal, familial andcultural ties to the property. But his case was "on all fours" with that of the appellantin Williams.28 As the Associate Judge put it:29 the decisive factor against Robert is that he would not have been entitledto the land on the death of his father, Simon. The residual estate of Simon wasbequeathed to his wife, the mother of Robert, Olivia. Robert is thus not asuccessor under s 40(5) of the PWA.Is Robert his father's "successor" under s 40 of the PWA?[37] We turn first to further evidence filed in support of the appeal. Leave hadearlier been granted to Robert to adduce further evidence on appeal in this Court inthe form of an updated affidavit from himself, and an affidavit from aProfessor Margaret Mutu. The Crown and Zhan also seek to adduce further evidence.No objection was taken to its admission, and we are satisfied it should be received.Leave is granted accordingly.30[38] Evidence filed for the Crown has been summarised already in the backgroundsection of this judgment.[39] Turning to Robert's evidence, Professor Mutu is a professor of Māori Studiesat the University of Auckland. Her whakapapa is to Ngāti Kahu, Te Rarawa andNgāti Whātua. Her Ngāti Kahu hapū is Te Whānau Moana — to which Robert,her cousin, also belongs. Professor Mutu gives evidence that the Crown offer of theland to only Zhan contravenes Te Whānau Moana and Ngāti Kahu tikanga in tworespects.26 At [32], referring to Williams v Auckland Council (SC), above n 25, at [16]. Leave to appeal wasrefused due to the issue not affecting the overall outcome in that case.27 Williams v Auckland Council (SC), above n 25, at [16].28 High Court judgment, above n 2, at [30].29 At [31].30 Court of Appeal (Civil) Rules 2005, r 45(1).[40] First, that tikanga requires decisions as to important matters of land andsuccession be made in hui on the marae of the hapū. In the course of preparing for thesettlement of the Treaty claims of Ngāti Kahu, many hui-ā-iwi were held between 1995and 2000. At these, the hapū determined the land should be offered back to both theprevious owners — Richard and Simon, both then still living. Now that Richard andSimon have died, tikanga dictates the property should be offered to their descendants.[41] Secondly, the gift of the land was a tuku whenua.31 Tuku whenua involves theallocation of particular use rights to a person and his or her whānau for a particularpurpose. When the land is no longer to be used for that purpose, it reverts back tothose who gave it or their descendants. Richard and Simon gifted the land to theCrown for the purpose of using it for a school. When that purpose was served,the Crown should have offered the land back to their descendants — Robert and Zhan.[42] Professor Mutu states that tuku whenua is a well-known part of the tikanga ofTe Whānau Moana/Te Rorohuri, of Ngāti Kahu, and of all the Far North iwi, as wellas throughout New Zealand and the Pacific.[43] Zhan also filed an affidavit in this Court prior to the resumed hearing.He explains that, when contacted about an offer-back in late 2018, he had assumedthat the land would be offered back to his mother (as Richard's descendant), alongwith Simon's children. But in February 2019 he was told he was the only personentitled to an offer-back, which he then accepted. When contacted by Randolph —Simon's son who occupied the schoolhouse — Zhan explained that he felt entitled tohis grandfather's share of the land, but wanted Simon's share to go to his whānau.Further discussions with Randolph and Matt — another of Simon's sons — led to themputting forward options including subdivision (with Zhan taking the schoolhouse) andSimon's whānau contributing to subdivision costs.[44] But before any agreement could be finalised, Robert caveated the property.Zhan and Robert had not previously had discussions about the property. On 16 June2021 Zhan made an offer to Robert and the Crown under which half of the land wouldbe returned to Simon's whānau. Robert rejected that offer.31 Strictly speaking, the allocation of use rights associated with the land, rather than the land itself.[45] Zhan's present position is that he does not mind if the land is returned tohimself and Simon's children. He is however opposed to the land being dealt with inthe Māori Land Court where there may be uncertainty as to who would get the landand in what shares. If the land is transferred from the Crown to him, he intends totransfer half the land to Simon's whānau.Submissions[46] Mr Hoskins, appearing for Robert, argues first that the Williams approach isinconsistent with a purposive interpretation of s 40. References to "representative"and "descendant" in the parliamentary debates and explanatory note show Parliamentcontemplated a broad class of relevant offerees, "arguably including contingentbeneficiaries such as Robert". The Williams interpretation undermines the remedialpurpose of s 40. It fails to vindicate the rights of the former owner by ensuring landacquired for public works is offered back to its previous or equivalent ownership.It also produces manifestly unjust results contrary to its remedial purpose, giventestators are unlikely to specifically bequeath inchoate rights in their wills when theyno longer own the land. The likely effect then is to extinguish the ownership rights ofall of a previous owner's descendants. Instead, s 40 should compensate for the loss ofpersonal interests in land. Robert has substantial personal, familial and cultural ties tothe property. Offer back to Robert is consistent with the s 40 purpose.[47] Secondly, Mr Hoskins submits that while the approach taken by the High Courtin Robertson may have been too broad, this Court in Williams defines "immediatebeneficiaries" too narrowly.32 A possible interpretation on the present facts would beto construe "immediate beneficiaries" as persons entitled to the land under the will ofthe former owner, including contingent beneficiaries, or on the former owner'sintestacy — but excluding beneficiaries of those beneficiaries. This definition couldbe further restricted in application to only land acquired from Māori.[48] Thirdly, at the resumed hearing, Mr Hoskins suggested a second possibleinterpretation of s 40(5), whereby this Court was to read in a proviso that where the32 The terminology "immediate beneficiaries" was adopted by this Court in the Port Gisborne case:see [33] above.person entitled is deceased or not of sound mind at the date the land is surplus torequirements, "successor" means the person who would be entitled under intestacy ifthe person had no will. This interpretation is highly problematic, as we explain in duecourse.[49] Fourthly, and relying on the evidence of Professor Mutu, Mr Hoskins submitsthe Williams interpretation is inconsistent with the Ngāti Kahu tikanga of tuku whenua.Under tuku whenua, land use rights are allocated to a person for a particular purposeand once the land is no longer used for that purpose, it reverts back to those who gaveit or their descendants. Richard and Simon gifted the land to the Crown for a particularuse. It should revert back to both owners — or in this case, the descendants of both.Tikanga is part of the values and common law of New Zealand. "Successor" shouldbe interpreted as consistently as possible with tikanga.[50] Mr Hoskins also submits "successor" should be interpreted as consistently withthe Treaty of Waitangi as possible. Treaty principles place on the Crown an activeduty to protect Māori use of their whenua. The Treaty guarantees exclusive andundisturbed possession of whenua which naturally includes tikanga associated withthat whenua. The PWA interferes with Māori whenua rights and the tikanga governingsuccession attached to that whenua. Generally, courts favour Treaty-consistentinterpretations where possible. This is particularly so given the PWA, and its 1928predecessor, facilitated the alienation of whenua Māori. Section 40 should beinterpreted as broadly as possible to facilitate the return of ancestral whenua Māoriconsistent with its remedial purpose.[51] Mr Sharp, appearing for Zhan, takes a neutral stance on this issue. He acceptsthat if Robert's argument is upheld, the Crown's offer to his client must be set aside.He records that will not cause prejudice inasmuch as Zhan has already accepted that ahalf-share of the property should be transferred to Simon's (Robert's) whānau.Discussion[52] We are unable to accede to Mr Hoskins' argument. We make five points.[53] First, we start with the wider purpose underlying s 40. In Aztek Ltd vAttorney-General this Court emphasised the section's remedial purpose.33We traversed the authorities in relation to the purpose of s 40, beginning with thisCourt's earlier statement in Port Gisborne that:34 The background to the offer-back concept is that land is being acquiredfrom a private person for a public work purpose, possibly under the threat orcontemplation of compulsion. The rationale must be that it is only fair, if thatpurpose disappears, the land should so far as practicable revert to the previousor equivalent private ownership.[54] We then noted the approval of that rationale in Waitakere City Council vBennett, stating that the land should, "so far as practicable, revert to the previous orequivalent private ownership".35 We concluded in Aztek that:36 the statutory provisions are designed to ensure that, so far as practicable,the land is offered back to the persons from whom it was taken or theirsuccessors on the basis that that is the right thing to do where it has beeninitially acquired from a private landowner for public interest purposes whichhave ceased to exist. The statute should be construed and applied in a waywhich best reflects that objective.That is our starting point here.[55] Secondly, substantially coincident with those stated purposes is thepresumption that Parliament intended to legislate in terms consistent with the Treaty.The duty of active protection of rangatiratanga over whenua Māori must be borne inmind in the interpretation of "successor", but without doing violence to parliamentarypurpose or the words Parliament adopted.37 Specific provision is made for whenuaMāori in s 41 of the PWA. There is also s 134 of TTWMA, which we discuss in moredetail under the second issue.38 As Mr Anderson accepts for the Crown,the Waitangi Tribunal has held that the manner in which offers-back are made under33 Aztek Ltd v Attorney-General, above n 8, at [45].34 At [47], quoting Port Gisborne Ltd v Smiler, above n 21, at [35].35 At [51], quoting Waitakere City Council v Bennett, above n 8, at [33].36 At [53].37 See [62] below.38 See [67]–[78] below.ss 40–42 of the PWA is inconsistent with the Crown's obligation to actively protectrangatiratanga over ancestral lands.39[56] The conclusion we ultimately reach under the second issue — that s 134 couldand should have been engaged in this case — suggests however that a more flexibleapproach is open to the Crown to do justice to tangata whenua under ss 41 and 134than hitherto has been taken. And one more flexible than was taken here, where thepotential in s 134 to effect a broader offer-back, consistent with tuku whenua,was simply overlooked. It also suggests, therefore, that s 40(5) may bear its ordinarymeaning without offending either the general purposes identified above or the duty ofactive protection of rangatiratanga over whenua Māori.[57] We will return to these points shortly.[58] Thirdly, the legislative history of the PWA is illuminating. Indeed we considerit determinative, inasmuch as it demonstrates clearly Parliament's intention inadopting the meaning expressed in s 40(5). The history is discussed above at [18]–[24]. The 1876 formulation — "person then entitled to the land" — encompassed abroad target group of potential successors where land had been severed for a publicwork. There was no limit to the number of lines of succession. In the absence ofspecific devise, it would be a matter of tracing residual beneficiaries, potentiallythrough a succession of wills and intestacies.[59] But when successor offer-back was resumed in 1981, after a quarter-centuryintermission, that formulation was not resumed. As we have seen, in the Bill anoptional offer-back in similar terms — to "the person from whom the land wasacquired or to the descendant or successor in title of that person, or to the owner ofany adjacent land" — was proposed. But it was not proceeded with. Instead we haves 40: mandatory, but narrower in scope. Hansard illuminates the shift to a mandatoryoffer-back, but does not illuminate the redrafting of the qualifying "successor" in39 Waitangi Tribunal Turangi Township Report 1995 (Wai 84, 1995) at 320–323. The Tribunal didnote that ss 40–42 of the PWA make no allowance for the fact that the land taken was often inmultiple ownership, nor for the offer back of land to iwi or hapū groups.s 40(5).40 But we may proceed on the basis that the change made was deliberate.41The inference that there was something of a trade-off between the impulse to make theoffer-back mandatory and the potential subjects of that offer is difficult to resist.[60] Fourthly, the wording of s 40(2) and (5) is we think very clear. The qualifyingsubjects entitled to an offer-back are the original owner from whom the land was taken,and (if deceased) "the successor of that person" — being the further person or personsentitled to the land under the will or intestacy of the original, now deceased, owner(and proceeding on the fiction that the land had not been taken). That is the conclusionthis Court reached in Williams and we think it right because of the legislative history,words adopted and contextual further provision made for whenua Māori in ss 41 ofthe PWA and 134 of TTWMA. It is the second consideration we focus on here:the wording.[61] Had Parliament intended to encompass second-line succession, it could eitherhave resumed the previous statutory formulation ("person then entitled to the land")or persisted with the drafting in the 1980 Bill ("the person from whom the land wasacquired or to the descendant or successor in title of that person"). As we have seen,deliberately it did not. That s 40(5) excludes second-line succession (that is, personsin Robert's position, as opposed to Zhan), seems to us the clear effect of the texteventually settled upon by Parliament.[62] The question then becomes one of whether, irrespective of the clear meaningof the words it chose to adopt, Parliament intended s 40(5) to have the broadermeanings Robert argues for. There is no equivalent to the doctrine of rectification inthe construction of legislation. Courts may notionally "correct" obvious errors inlegislation where the wording does not properly express what was properly intended.As Lord Nicholls explained in Inco Europe Ltd v First Choice Distribution, a courtmay add, omit or substitute words where the court is abundantly clear as to theintended purpose of the provision in question, that Parliament failed to give effect tothat purpose through inadvertence, and the substance of the provision Parliament40 See [22] above.41 See Diggory Bailey and Luke Norbury Bennion, Bailey and Norbury on Statutory Interpretation(8th ed, LexisNexis, London, 2020) at [11.3].would have enacted had the error been noticed.42 This process has been likened tocontractual rectification.43 A more active approach to construction may be compelledwhere the plain or literal meaning produces an outcome repugnant to fundamentalhuman rights or to duties arising under the Treaty of Waitangi, provided it neither doesviolence to the text nor contravenes discernible parliamentary intention.44Construction in any context must remain tenable in light of the text and inferredstatutory purpose.45[63] This is not that case. Fundamental human rights are not in issue, and given theconclusions we reach under the second issue, Treaty repugnancy can be avoided.History and text suggest single-line succession is exactly what Parliament intendedwhen, in 1981, it reintroduced successor offer-back entitlement. We infer Parliamentintended s 40(2) and (5) to work in a relatively simple manner. Identification of thoseentitled to an offer-back would require a measure of analysis, either finding theoriginal owner or the person mandated by the owner as his or her successor to thatright. But it would not then encompass further, multi-generational research into whoultimately was mandated by those successors to receive the land. The texthypothesises the offer back of land to the original owner prior to death, and asks, if heor she is deceased, who then would have received it under the original owner's will orintestacy? The relevant timeframe is confined to the immediate aftermath of theoriginal owner's death. Section 40(2) in the first instance comprehends offer to aliving person; s 40(5) likewise, a single act of transmission.[64] We acknowledge, as does Mr Anderson, that the Williams approach may leadto arbitrary outcomes — as this case demonstrates. But if Parliament had intended toinclude second-line succession, alternative drafting to that effect would easily havebeen feasible. Parliament may not have foreseen this exact situation at hand, but42 Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 (HL) at 592. See alsoAir New Zealand Ltd v McAlister [2009] NZSC 78, [2010] 1 NZLR 153 at [96]–[97] per Tipping J;Securities Commission v Midavia Rail Investments BVBA [2005] 3 NZLR 433 (CA) at [55]; andSheehan v Watson [2010] NZCA 454, [2011] 1 NZLR 314 at [32]–[39].43 R I Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021)at 403.44 Fitzgerald v R [2021] NZSC 131, (2021) 12 HRNZ 739 at [63]–[65] per Winkelmann CJ; andNew Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 655–656 perCooke P.45 Fitzgerald v R, above n 44, at [181] per O'Regan and Arnold JJ.equally it may have considered the right to an offer-back should focus on the originalowner and his or her choice of successor only — rather than introducing a series ofmore distant determinations by other persons and generations. It has focused on thewill of the former owner, in both senses of that word. The provision is clear, and thereis no warrant based on evident or presumptive parliamentary intent warranting awholesale rewrite of s 40(5) under the guise of construction. If revision is required,that is Parliament's task.[65] Fifthly, the primary interpretation Mr Hoskins advances falls into an essentialerror. It seeks to construe (and enlarge) the expression "immediate successors"adopted in Williams, rather than the statutory wording in s 40(5).46 The former is anapt description of Parliament's apparent intent, but it does not and cannot replace thewords Parliament used. For the same reasons, Mr Hoskins' alternative suggestion ofan interpretive proviso extending the rules of intestacy even where the original ownerhad a valid will — noted at [48] above — is untenable. Even if tenable on the wordingof s 40(5), the proposed proviso, as we foreshadowed, lacks internal coherence.The rules of intestacy cannot determine succession entitlements where the originalowner executed a valid will. That the land is not devised specifically is of no matter.To hold otherwise confuses residual entitlements with entitlements under intestacy.Conclusion[66] For these five reasons we are not persuaded the reasoning of this Court inWilliams was erroneous such that we ought to revisit it. Robert is not a "successor"within the meaning of s 40(5). That is not, however, the end of this appeal.What effect does s 134 of TTWMA have?[67] This provision we set out at [30] above. At the initial hearing of this appeal wenoted this provision had not been adverted to by counsel. We suggested it offered analternative mechanism to the s 40 offer-back procedure where Māori-owned generalland taken for a public work is no longer required for that purpose. It was not limitedby owner numbers in the way s 41 is. We noted, as our provisional view, that s 13446 Williams v Auckland Council, above n 23, at [100].ought to have been considered by the Crown in this case before electing to proceedunder s 40. Having now heard from counsel, we are confirmed in that view.History of s 134[68] The explanatory note to the Māori Affairs Bill 1987 (later renamed Te TureWhenua Māori Bill) explained that what became s 134:47 gives the Māori Land Court jurisdiction to make a vesting order having theeffect of converting certain land to Māori freehold land. This clause applieswhere the owner wishes to have the land vested in or for the benefit of anyMāori, where land is acquired for any Māori, where land that has been takenfor a public work or other public purpose is to be returned to any Māori, andto the Crown land reserved for Māori. In large part, the clause brings togetherthe jurisdiction of the Court conferred by sections 436 and 437 of the present[Māori Affairs Act 1953].There was no discussion of the provision in the parliamentary debate, but the key tothat lies in the last sentence of the extract: the provision largely replicated provisionsin the preceding Māori Affairs Act. And, it may be noted, in ss 7 and 9 of theNative Purposes Act 1943 before that.48 The explanatory note to what became s 7 ofthat Act stated:49From time to time cases arise where it is desired to return to Natives landacquired from or gifted by them for public works, Native school sites and soforth. This clause is a general one, designed to obviate the necessity forspecial legislation in particular cases, giving the Native Land Court power tomake, on the application of the Minister or other authority who controls theland, an order vesting the land in the persons determined as being entitled toit, subject, in proper cases, to payment for it.[69] To make an obvious point, those provisions were extant at the time (1) the landhere was gifted and taken in 1953, and (2) the PWA was enacted in 1981.Submissions[70] Robert contends that if he falls within neither ss 40 nor 41, then s 134 ought tohave been considered by the Crown before electing to make an offer under s 40(2) to47 Māori Affairs Bill 1987 (124-1) (explanatory note) at xxiv.48 There are drafting differences. For instance, s 7 of the 1943 Act expressly contemplated return ofland to descendants, a qualification omitted from the 1953 and 1987 revisions, which enablenomination by the Crown and determination by the Court.49 Native Purposes Bill 1943 (29-1) (explanatory note) at i.Zhan only. Mr Hoskins submits we should set aside the decision to offer to Zhan, andthe ensuing agreement for sale, and direct reconsideration.[71] Zhan accepts that if this Court finds the Crown should have considered theoption of making an application under s 134, but failed to do so, we may set theagreement aside and refer the matter back for reconsideration. However, Mr Sharpsuggests the Court not exercise its discretion to do so on the premise that Zhanundertakes to transfer half the land to Simon's whānau.[72] The Crown accepts the decision maker in this case proceeded on the basis s 134was inapplicable. It acknowledges the force of the contrary argument, acceptedprovisionally by us. But it would still contend otherwise. In particular, Mr Andersonsubmits ss 40 and 41 are specifically directed provisions; that s 41 is intended to limitthose who may have recourse to the Māori Land Court; and that if s 134 still applied,s 41 is redundant and robbed of any meaningful effect.Discussion[73] Our view does not accord exactly with any of these submissions.[74] This appeal arises in the context of an application for orders that a caveat notlapse. The matter in issue is whether Robert has a caveatable interest in the land.This pleading point is important and has a number of consequences. One is that thisis not a judicial review; we shall not be setting aside decisions by the Crown oragreements entered into by it. To do so would be entirely premature; it is for the Crownto reassess its position in light of this judgment, as far as it goes. A secondconsequence is that s 134, even if applicable here, does not create a caveatable interestin the land on Robert's part. If s 134 is applicable, Robert has a legitimate expectationthat the Crown will correct the error it made and reconsider its position. The Crownhas in effect undertaken to do so. But that expectation does not create a legal orequitable interest in land; it cannot support a caveat, and it makes no difference to theformal outcome of this appeal.[75] We are satisfied s 134 is applicable here, in the sense that it was an availableoption requiring consideration by the Crown. We reject the suggestion that such anapproach renders s 41 redundant and robs it of meaningful effect. There are a numberof reasons for these conclusions, which we now explain.[76] Section 134 in effect both predated and post-dated the PWA. Section 41 of thePWA was enacted against the background of s 436 of the Māori Affairs Act, andexpressly referred to that provision in s 41(2)(e) at the original time of enactment.Section 436 (and s 7 of the Native Purposes Act before that) served an importantenabling function: in exactly the circumstances arising in this case, it enabled theCrown to apply to the Māori Land Court for orders vesting the land in personsnominated by it, or otherwise determined by the Court. At the time these provisionswere introduced, the Public Works Act 1928 did not require sale of surplus land, butif sale was to be undertaken, then required offer back to persons "then entitled".50The history suggests ss 7 and 436, interweaving independently with the Public WorksAct, created an alternative path, albeit one not explicitly mandatory. This enablingjurisdiction given the Māori Land Court by s 134 to make vesting orders in place ofgoing down the Public Works Act offer-back and sale process is now of longstanding.51 It ought not be read down restrictively unless it is plain Parliamentintended that consequence.[77] The question here is whether s 41 has such limiting intent. In our view it doesnot. It does not do so explicitly, when to do so would have been straightforward.Section 134 — following s 41 in time, but substantially re-enacting s 436 — remainedin general terms without any s 41 counterpart inserted in subs (1)(c). Nothing in theparliamentary debate indicates Parliament's wish to exclude the alternative s 134pathway in cases beyond s 41. Should we nonetheless infer that intention from thedrafting alone? That rather depends on whether limitation of the pathway makescompelling sense in the context of TTWMA. There is here a link to s 40(2)(a) of thePWA, which permits the Crown not to offer back where to do so would beunreasonable or unfair. Let us then imagine a case where that is so, but s 41 does notapply. Perhaps, because the land was taken from two persons, rather than five or more.50 Public Works Act 1928, s 35(b).51 It may well be, as Mr Sharp submitted to us, that some members of Parliament wrongly perceiveds 41 as giving the Māori Land Court jurisdiction to determine successors under the PWA,as opposed to creating a separate pathway altogether: see here the remarks quoted at the end of[23] above.Perhaps, this case. If the Crown is right as to the effect of s 41, then the former ownersand their descendants may gain no offer-back preference. The Crown may keep theland, or it may sell it to an adjacent owner, or to any person at all by public auction orprivate treaty: s 42(2). It is not obvious to us why the long-standing option ofapplication to the Māori Land Court in such a case should now be forestalled. As adeterminative mechanism to avoid dispute, there seems every reason why it shouldstill exist, enabling a reasonable and fair outcome among hapū to be resolved by theCourt rather than the Crown. And above all, as Mr Anderson had to concede,maintaining unfettered access to the Court will better achieve one of the guidingpurposes of TTWMA in securing the retention of whenua Māori in the hands of hapūand whānau.52[78] For these reasons we find s 134 remains available as an alternative statutorypathway to s 40 disposal procedures, in any case falling within s 134(1)(c).What happens now?[79] Because no caveatable interest is held by Robert, his appeal must be dismissed.[80] Formally, we do not set aside the decision made by the Crown to offer back toZhan. However, in light of our decision it is clear (and accepted by the Crown) thatthe decision maker erred in disregarding s 134. As noted earlier, Robert has alegitimate expectation that the Crown will now correct the error it made and reconsiderits position. The Crown has in effect undertaken to do so. In doing so, it will need toconsider, first, whether this is a case where — under s 40(2)(a) — it is unreasonableor unfair to offer back to the s 40(5) successor only and, secondly, whether applicationshould be made to the Māori Land Court under s 134(1)(c) of TTWMA.[81] We express our appreciation to counsel, and in particular to Mr Sharp, latelyengaged for Zhan. Given the responsible approach taken by his client in these52 TTWMA, preamble: "whereas it is desirable to recognise that land is a taonga tuku iho of specialsignificance to Māori people and, for that reason, to promote the retention of that land in the handsof its owners, their whānau, and their hapū, and to protect wahi tapu: and to facilitate theoccupation, development, and utilisation of that land for the benefit of its owners, their whānau,and their hapū".proceedings, we doubt further orders will be required. Should the position evolveotherwise, any further application should be made to the High Court.Result[82] Leave is granted to the respondent to adduce further evidence.[83] Leave is granted to Zhan Urlich to adduce further evidence.[84] The appeal is dismissed.[85] The appellant being legally aided, there is no order as to costs.Solicitors:Corban Revell, Auckland for AppellantCrown Law Office, Wellington for Respondent