TASMAN DISTRICT COUNCIL V THE PROPRIETORS OF WAKATU HC NEL CIV-2008-442-442

TASMAN DISTRICT COUNCIL V THE PROPRIETORS OF WAKATU HC NEL CIV-2008-442-442 2 November 2009IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY CIV-2008-442-442UNDER the Land Transfer Act 1952 IN THE MATTER OF an application pursuant to section 143 of the Act BETWEEN TASMAN DISTRICT COUNCIL Plaintiff AND THE PROPRIETORS OF WAKATU DefendantCIV-2008-442-548BETWEEN THE PROPRIETORS OF WAKATU Plaintiff AND TASMAN DISTRICT COUNCIL First Defendant AND THE MAORI TRUSTEE Second Defendant Hearing: 7 October 2009 Counsel: J C Ironside and S M Chadwick for Tasman District Council K Palmer and G W Allan for The Proprietors of Wakatu Judgment: 2 November 2009RESERVED JUDGMENT OF DOBSON JContents Factual background...........................................................................................................................[4] The issues..........................................................................................................................................[19] Area not "endowed" in the sense contemplated by s 140? ...........................................................[20] Endowment status lost?...................................................................................................................[26] Section 40 PWA "trumps" ss 140 and 141 LGA? .........................................................................[47] Prior decisions on application of s 40 of the PWA ........................................................................[62] Predecessors of Wakatu the person from whom the mud-flats were acquired in 1905?...........[83] Identity of "successor".....................................................................................................................[97] Wider recognition of Wakatu .......................................................................................................[112] Summary ........................................................................................................................................[117][1] Both these sets of proceedings arise out of the signalled intention on behalf of the Tasman District Council (the Council) to sell eight properties in the vicinity of the Motueka Wharf of which it is presently the registered owner. [2] The Proprietors of Wakatu, acting by the Wakatu Incorporation (Wakatu), have lodged caveats to prevent dealings with the properties. Wakatu argues for an entitlement to be offered the properties, claiming that the provisions of s 40 of the Public Works Act 1981 (PWA) apply. The Council's proceedings constitute an originating application for an order that the caveat be removed. Wakatu's proceedings seek:• declarations that all of the eight properties are subject to the provisions of s 40 of the PWA;• a declaration that Wakatu is "the successor" within the meaning of that section; and• an order that the Council offer the eight properties to Wakatu pursuant to s 40 or, in the alternative, that the parties be directed to apply to the Mäori Land Court pursuant to s 41 of the PWA for appropriate orders as to valuation. [3] Wakatu's proceedings joined the Mäori Trustee as second defendant. This was partly because, in respect of two of the eight properties, the Council accepts an obligation to offer back under s 40 of the PWA, but treats the Maori Trustee, as the successor to the Public Trustee, as the relevant owner from whom those twoproperties were originally acquired. Wakatu disputes that the Maori Trustee is the appropriate offeree and seeks a declaration that if the Council offers the properties to the Mäori Trustee, he is to accept and hold the properties for the benefit of Wakatu. Shortly before the hearing, the solicitor for the Maori Trustee filed a Memorandum seeking leave to be excused attendance at the hearing, on terms reserving the position of the Maori Trustee depending on the outcome on certain of the issues to be argued. That leave was granted, on terms.Factual background[4] Reviewing the history of the properties chronologically, a starting point is to note that the process of acquisition of land for settlers in the 19 th century, as managed originally from England by the New Zealand Company, included the reservation for "the natives" of "tenths", intended to reserve 10 percent of the land being dealt with for native interests. One such reservation for native purposes in the area around the Motueka Wharf was Section 144 of the Motueka Survey District, which included dry land bordered by mud-flats in the area considered in these proceedings. [5] In 1905, Parliament passed the Motueka Harbour Board Act. Section 5 of the 1905 Act provided:The Board is hereby endowed with: (a) All wharfage, pilotage, and port charges in the Harbour of Motueka: (b) All foreshore, mud-flats, and sandbanks within the Motueka Electoral District as constituted on the passing of this Act between the southern boundary-line of section numbered ninety-one of Block I on the plan of the Moutere Survey District and a point at high-water mark of Tasman Bay due east of Trig A in the Kaiteriteri Survey District, including the Moutere Mud-flats, the flats within the Motueka Harbour, and part of the Riwaka Mud-flats, as described in the Schedule to this Act.[6] A schedule to the 1905 Act described the endowed area as being to the seaward side of the high-water mark, going three miles out to sea and covering a part of the coastline including the Motueka Harbour. Errors in the description of the landendowed in that schedule were later corrected by notice in the Gazette published in 1906. [7] In addition to the endowment, in 1911 and 1913 parts of Section 144 of the Motueka Survey District were compulsorily taken under the PWA 1908 for harbour purposes. These comprise two arms of a peninsula, one being a relatively regular finger-shaped piece of land described on survey maps at the time as sand hills, and then to the west of that, separated by mud-flats, a fish tail shaped piece of land comprising a little more than six acres. Two of the properties in issue in the proceedings are treated as being located on "dry land" and come substantially within the areas of these two parts of the peninsula as it was at the time of those proclamations (the two properties). [8] The remaining six properties in issue are located on reclaimed land that was within the mud-flats below high-water mark and more or less between the two arms of the peninsula at the time of the 1905 endowment. The original case for Wakatu was that these reclaimed areas were within the boundaries of Section 144 of the Motueka Survey District. However, after the exchange of relatively detailed historical evidence on the point, Wakatu accepts that the reclaimed area was not within Section 144. A diagram, not to scale, of the relevant area and the location of the eight properties within it that I have distilled from various maps and plans that were exhibited is annexed at the end of this judgment. [9] The case for the Council is that the circumstances of the original endowment on the Harbour Board of the area below high-water mark now dictates the nature of the Council's obligations on any disposal of those properties. The Council treats the obligations as arising under ss 140 and 141 of the Local Government Act 2002 (LGA), which regulates the ability of local authorities to deal with property that has been endowed upon them. [10] Reclamation of the area between the two parts of Section 144 was undertaken sometime before 1917. In that year, the holdings by the Motueka Harbour Board were addressed further in the Reserves and Other Lands Disposal and Public Bodies Empowering Act 1917 (ROLD). That vested in the Harbour Board the reclaimedarea, as well as the dry land areas that had been the subject of the 1911 and 1913 proclamations. In 1918, the first titles issued in its name for the reclaimed area between the two parts of Section 144. [11] For a relatively long time, the six properties have been private residential properties. They have all been subject to perpetually renewable 21 year leases. The essence of the practical difference between the parties is that the Council wishes to offer the premises to the existing lessees, so that the disposal process would amount in practical terms to "freeholding" of those residential properties. (My impression was that at least some of the lessees have been in the properties for substantial periods.) On the other hand, Wakatu pursues the entitlement to be offered the properties under s 40 of the PWA as a matter of principle, seeking to protect the entitlement to buy as reflected in s 40 of the PWA. [12] Wakatu's pleading included the proposal that the Council ought to be required to offer the properties to Wakatu at less than their current market value, whereas the PWA does not specify any situation in which an offeree can require that, notwithstanding a discretion in certain circumstances for an offeror to do so. Submissions for Wakatu did not include any argument that the circumstances ought to require the Council to offer the properties to Wakatu at less than market price, if indeed s 40 of the PWA does apply. Counsel suggested that there ought not to be any financial difference between negotiating on an offer made under s 40 of the PWA, and competing in an open market situation. Both ought to be governed by the market price. However, if there was strong interest in a property it is easy to imagine that the "open" market might generate a higher price than the notional projection applying in the "closed" situation created by a s 40 offer. The circumstances in which offers under s 40 are made will often connote an obligation to be fair, if not generous, on the terms on which private ownership is being restored. [13] Since the issue of the first title in 1918, there have been numerous changes in the status of the owner of the land. In 1966, the Motueka Harbour Board Order was gazetted as an Order in Council, abolishing that Board. The Waimea County Council was thereafter to exercise all the powers of a harbour board within the limits of the jurisdiction of the Motueka Harbour Board. The Order provided that theWaimea County Council was to be deemed a harbour board as if constituted as such under the Harbours Act 1950. [14] Then in 1968, the Nelson Harbour Board Order transferred all powers, functions, property rights and obligations of the Waimea County Council in relation to the Motueka Harbour District to the Nelson Harbour Board. A specific exception from this transfer was clause 6 of the Order in Council which dealt with endowments in the following terms:6 Endowments(1) Subject to subclause (3) of this clause, on the commencement of this order all land vested in the Corporation of the County of Waimea (hereinafter referred to as the said Corporation) as an endowment in respect of the Motueka Harbour, and all money (whether in cash or in any bank account) and investments of the Waimea County Council in its capacity as the Motueka Harbour Board, shall remain vested in the said Corporation. (2) All such endowment land, money, and investments and the income thereof shall be controlled by a joint committee established under section 76 of the Counties Act 1956, and comprising two persons appointed by the Waimea County Council and one person appointed by the Motueka Borough Council. (3) All such money and the income from time to time derived from any endowment land or investments vested in the said Corporation by virtue of this clause or from the investment of the proceeds of any realisation of any such land or investments shall be applied- a) First, in the maintenance and improvement of any of that endowment land vested in the said Corporation; b) Second, as to such part thereof as is not for the time being required for the purposes specified in paragraph (a) of this subclause, to any maintenance and development of the Motueka Harbour required by the Nelson Harbour Board; and c) Third, as to such part thereof as is not for the time being required for the purposes specified in paragraphs (a) and (b) of this subclause, towards payment of any levies payable to the Board pursuant to the Harbours Act 1950 or any other Act by the local authorities whose district or any part thereof formed part of the Motueka Harbour District immediately before the commencement of this order. Any amount payable on behalf of those local authorities pursuant to this subclause shall be apportioned to those several local authorities in the proportions that the levy required to bepaid by each of them bears to the total amount of the levies required to be paid by all of them.[15] In 1988, a further Order in Council dissolved the Waimea County Council and united it with two other local authorities as the Tasman District Council. That Order transferred rights and obligations so that references to the former Waimea County Council "in any instrument or other document whatever" were to be read as references to the new Tasman District Council. [16] Subsequently the Local Government Amendment Act 1999 repealed the Harbours Act 1950 and the functions of harbour boards passed to regional councils, so that for the Motueka Harbour such functions were to be conducted by the Tasman District Council, it being a unitary authority. [17] The Council has proceeded on the basis that the directions in respect of endowments in clause 6 of the Nelson Harbour Board Order 1968 continue to apply. [18] Accordingly, the Council has dealt with the six properties on reclaimed land as an endowment to be disposed of in accordance with the provisions in the LGA that deal specifically with disposal of "endowment property". Sections 140 and 141 of that Act provide:140 Restrictions on disposal of endowment property(1) In this section and section 141, property— (a) means real property of every type; and (b) includes every type of estate and interest in property. (2) This section and section 141 apply to property or part of a property vested in a local authority in trust or as an endowment. (3) The property must be retained by the local authority for the purpose for which the property was vested in the local authority. (4) However,— (a) the Minister may approve in writing additional or different purposes— (i) for which the property may be used; or(ii) for which income derived from the property may be used; or (b) unless expressly prohibited by the instrument that vested the property in the local authority, the local authority may sell or exchange the property and use the proceeds of the sale or exchange for a purpose identified by the local authority in accordance with section 141.141 Conditions applying to sale or exchange of endowment property(1) A local authority must not exercise the power in section 140(4)(b) unless— (a) the proposed use of the proceeds of sale of the property, or of the property received in exchange, is consistent with the purpose of the endowment; and (b) the local authority has first— (i) included in its draft long-term council community plan a statement of— (A) its intention to sell or exchange the property; and (B) the use to which the proceeds of the sale or exchange will be put; and (ii) adopted the long-term council community plan in accordance with the requirements of Part 6; and (c) in a case where the Crown was the donor of the property, the local authority has notified the Minister for Land Information and the Minister in Charge of Treaty of Waitangi Negotiations of the local authority's proposal to sell or exchange the endowment land; and (d) in other cases, the local authority has— (i) made a reasonable attempt to notify the donor of the property, or his or her successor, as the case may be, that the local authority intends to sell or exchange the property; and (ii) provided the donor with a reasonable opportunity to comment on the intended sale or exchange. (2) To avoid doubt, notification of a proposal to sell or exchange a property under subsection (1)(c) does not oblige a Minister to take any action in relation to the proposal to sell or exchange the property. (3) If the local authority is subject to reorganisation, the proceeds of a sale or exchange of property must be applied to the district ordistricts of the new local authority or authorities arising from the reorganisation of which the local authority formed part.The issues[19] Wakatu's challenge to the course proposed by the Council raised a series of propositions that would exclude the application of ss 140 and 141 of the LGA, and instead require the Council to deal with all the properties pursuant to the provisions of s 40 of the PWA. The following sequence of issues arises on the challenge to the Council's reliance on ss 140 and 141 of the LGA: a) Was the land "endowed" in the sense contemplated by ss 140 and 141 of the LGA? b) Have the six properties remained endowment land? c) If it is endowment land, does s 40 PWA nonetheless override ss 140 and 141 of the LGA? d) Even if the land was endowed, can Wakatu establish some form of customary title that constrains the Council's entitlement to dispose of the property, or require recognition in some way? e) If s 40 PWA does apply to the disposal of the six properties, and in any event in relation to the two properties that were compulsorily acquired, is Wakatu (rather than the Mäori Trustee) the "successor" for the purposes of s 40 of the PWA?Area not "endowed" in the sense contemplated by s 140?[20] Wakatu argued that the circumstances in which the Moutere mud-flats were endowed on the Motueka Harbour Board by the terms of the 1905 Act take it outside the scope of s 140 of the LGA which deals with property "...vested in a local authority in trust or as an endowment". Wakatu argues that the context of s 140 onlycontemplates property that has been vested in a local authority for a specific purpose, generally contemplating that the property will be used to generate income on a long term basis, for certain specific purposes. The decision of the Supreme Court inRoyal New Zealand Foundation of the Blind v Auckland City Council [2008] 1 NZLR 141 at [13] was cited:...in common usage the term "endowment" connotes, essentially, land held in order to produce income, even though it may also connote a gifted provenance.[21] Wakatu argued that Parliament had used "endowed" in an inappropriate or unnecessary sense when all it intended to do was vest the mud-flats in the Harbour Board rather than endowing the Harbour Board with that area for a specific purpose such as the generation of income to fund the Board's other activities. The mud-flats comprised the landward edge of an "endowment" going out three miles from the coast. One inferred purpose for passing control of the vast majority of that area would be to reinforce the Harbour Board's control of maritime activities. However, reclamation of mud-flats would be an equally predictable initiative for the Harbour Board. [22] Although there is not a lot of background to the terms of the 1905 Act, I am not prepared to find that Parliament did not intend the natural and ordinary consequences of use of the word "endowed" to follow from its having used the word. I am prepared to infer an awareness at the time, that mud-flats endowed on the Harbour Board were likely to be reclaimed, and thereafter used in furtherance of the Harbour Board's business. [23] If "endowment" was intended to be confined to private gifts or the settlement of property, say, by other local authorities, then something explicit to reflect that narrowing of the notion would be expected. Further, s 141(1)(c) of the LGA explicitly contemplates situations where the Crown was the donor of the property. [24] Nor is there anything in the difference suggested by Wakatu between an endowment as a noun, defining the scope of property to which ss 140 and 141 of the LGA would apply, and the verb "to endow" or "endowed", as describing the manner of transfer that is reflected in the terms of the 1905 Act.[25] On this point, I accordingly find that terms of the 1905 statute constituted the mud-flat land an endowment, and, subject to any subsequent alteration in that status, that renders it land to which ss 140 and 141 of the LGA can apply because it constitutes "an endowment".Endowment status lost?[26] Wakatu's next argument (although raised in its reply submissions) was that the terms of the ROLD in 1917 deprived the land of its original status as "endowed". The long title to that Act was:An act to provide for the exchange, sale, reservation, and other disposition of certain reserves, Crown lands, endowments, and other lands, to validate certain transactions, and to confer certain powers on certain public bodies.[27] Section 73 of the ROLD had a marginal heading "Validating reclamation and leasing of lands by Motueka Harbour Board". The section begins with a series of recitals, the first recording that the Motueka Harbour Board Act 1905 had endowed on the Motueka Harbour Board, inter alia, areas of foreshore and mud-flats. A further recital recorded the 1913 proclamation by which the eastern arm of the peninsula that had been in Section 144 of the Motueka Survey District was a taking "for the purposes of beacons and other harbour works". The recitals further recorded that the Motueka Harbour Board had reclaimed part of the lands "vested in it" (cf endowed upon it) by the 1905 Act and had extended such reclamation partly below low-water mark, which reclamation was not carried out in accordance with the provisions of the Harbours Act 1908. Further, that the Harbour Board had subdivided the reclaimed area and leased sections of the subdivided land for periods of 21 years each with perpetual rights of renewal. The concluding recital stated that "whereas doubts have arisen as to the validity of the aforesaid reclamation and the aforesaid leases, and it is desired to validate the same respectively". [28] The device then used by s 73 was to vest each of the areas, the status of which was recognised as being in contention in the recitals, in the Harbour Board in fee simple, and authorising and empowering the District Land Registrar at Nelson to issue a Certificate of Title for the vested land.[29] The analysis undertaken in a thorough affidavit by Mr James Frater, the Property Service Manager of the Council, confirms that one of the areas dealt with by this means under s 73 of the ROLD corresponds with the reclaimed area that includes the six properties in question. The first Certificate of Title that issued in 1918 includes an area of some 21 acres that had obviously been reclaimed, and has "Moutere Mud Flat" endorsed on its outer, southern boundary. [30] On the one hand, Parliament's clear intention of validating what had occurred required a further step by the Crown. Section 73 is not cast in retrospective terms; it does not deem the past acts of the Harbour Board as lawful or within the terms of the original endowment. Instead, it removes any doubts of the lawfulness of those acts by vesting the endowed land in the Harbour Board in a fee simple title, effectively substituting the terms of the 1905 Act and allowing the Board to deal with the area addressed in s 73 as it wished. Section 73 of ROLD did not deal with all the area endowed on the Harbour Board by the 1905 Act. Rather, it dealt only with the part of the mud-flats that were, by that time, reclaimed. That approach suggests that the vesting of the area in fee simple superseded what occurred in 1905; instead of being endowed – with the restrictions that entailed – the land was now vested in fee simple in the Harbour Board. [31] Consistently with this approach, Mr Palmer invited the inference that Parliament appreciated that the Harbour Board had gone beyond merely operating a port into municipal purposes, and vesting the land in fee simple removed any restrictions associated with the endowment. [32] On the other hand, it is arguable that the wording of the section suggests that Parliament did not intend to end the endowment, but merely clarify that the endowment was one in fee simple. Had Parliament wanted to withdraw that endowment status, it would have done so explicitly. [33] Solely on the analysis of the effect of the terms of the ROLD, there is substantial force in Wakatu's argument. The land originally endowed under the terms of the 1905 Act – mud-flats – had significantly changed in character after reclamation, allowing them to be used for commercial purposes by the HarbourBoard. The terms of the 1905 Act were anachronistic and did not reflect the reality of how the Harbour Board dealt with the land after it was reclaimed. The ROLD validated this dealing by freeing the Harbour Board from the restrictions of endowment by vesting it in fee simple; the ROLD represented a change in status. [34] There is a dearth of any authority considering whether to vest and to endow are complete synonyms, or whether the latter conveys a refinement not present in the former. Its usage generally conveys transferring for a purpose, or on conditions as to its use. Certainly, the donor/transferor's concerns as to future use constitute the rationale for the constraints on disposal of endowed land in ss 140 and 141 of the LGA. In the requisite sense, to vest is to bestow upon, or transfer, property or powers to another. Here, it would have been incomplete, without the specification of fee simple title, as the legal nature of the transfer effected. Although I would be reluctant to determine the effect of s 73 of the ROLD on fine distinctions of semantics, these distinctions tend to support the interpretation that s 73 effected a substantive change. [35] My conclusion is corroborated by the language of the ROLD. By and large, Parliament is assumed to intend the consequences of every word being deliberately used or omitted. I note that other provisions, eg s 31, in the same Act cancel reserves and vest "an estate in fee-simple as endowments". If Parliament had intended the endowment of the 1905 Act to prevail, but with fee-simple title, then it would have used the same terms in s 73. The omission of 'endowment' from s 73 suggests that Parliament intended to remove the classification of the 1905 Act, so that the endowment status would henceforth be lost. [36] However, Parliament has subsequently addressed the status of the area again, so it is necessary to consider also the subsequent terms on which this has occurred. First, in terms of local government reorganisation, there was the Nelson Harbour Board Order 1968, as described in [14] above. That contemplated the continuation of existing Motueka Harbour endowments without defining the extent of them. The 1917 ROLD had only dealt with a modest portion of the areas endowed in 1905, so that the 1968 Order might be interpreted as dealing only with the balance of the areas, not dealt with in ROLD.[37] In 1991, Parliament passed the Harbour Boards Dry Land Endowment Revesting Act (the Dry Land Act). That Act was described as one "to provide for certain endowments of dry harbour land to be re-vested in the Crown or reserved for certain purposes, and to amend certain enactments". Section 4 of that Act provided that any part of the areas of land specified in a schedule to the Act may from time to time be declared to be re-vested in the Crown and held for conservation purposes, or to be declared a reserve and be classified for such purposes under the Reserves Act 1977. [38] Section 5 of the Act also placed restrictions on the sale of endowments of dry harbour land in that they are not to be sold without the approval in writing of the Minister of Conservation. A schedule to the Dry Land Act includes under the heading "Motueka Harbour Lands" all the land referred to in s 5(b) of the Motueka Harbour Board Act 1905. [39] There is no definition of "dry harbour land" and nor is the concept of "endowment" defined. Perhaps understandably, counsel did not refer me to the complementary measure enacted on the same day as the Dry Land Act, namely the Foreshore and Seabed Endowment Revesting Act 1991. The latter Act has been repealed by the Foreshore and Seabed Act 2004. It was described as an Act to revoke certain endowments of foreshore and seabed, and re-vest those endowments in the Crown. The Act re-vested in the Crown all foreshore and seabed that had been alienated from the Crown and vested in Harbour Boards. There was a saving for areas that were subject to existing contractual arrangements between harbour boards or local authorities, and third parties. Interestingly, the scope of land deemed to be alienated from the Crown included those where the original legal authority concerned "endowed the land in the board or local authority, or vested the land in the board or local authority as an endowment" (s 4(3)(c)). The terms of that provision recognise the prospect of an endowment occurring either if the statutory provision purported to endow, or if it vested on terms constituting an endowment. [40] The Foreshore and Seabed Endowment Revesting Act was cast in general terms, and did not have a schedule identifying the areas to which it related. However, its contemporaneous enactment in relation to foreshore (ie areas belowhigh-water mark) supports a distinction between the areas it dealt with, and those dealt with by the "dry harbour land" companion measure as relating only to areas above high-water mark. That conclusion renders the reference to Motueka harbour lands in the schedule to the Dry Land Act inaccurate, or at least incomplete, because at the time of its enactment there were still substantial portions of the area referred to in s 5(b) of the 1905 Act that were below high-water mark and accordingly not "dry land". The reference could be rationalised by confining it to only those parts of the land referred to in s 5(b) of the 1905 Act that currently constitute "dry land". [41] The provisions of the Dry Land Act might avail the Council in two respects. First, the reference in the schedule to the land endowed on the Motueka Harbour Board by s 5(b) of the 1905 Act tends to suggest that Parliament treated those lands as still enjoying "endowed" status in 1991. Secondly, but less likely, is that even if the ROLD had the effect of transforming the land held by the Harbour Board from endowed to vested status, then arguably the terms of this 1991 Act might have restored its status as "endowed" land. [42] Interpreting the term "dry harbour land" as applying to land above high-water mark, then it could not apply to any of the area as it was when endowed by the 1905 Act because all of that area was below high-water mark. On this basis, there could only be an endowment of dry land upon the Motueka Harbour Board by the terms of the ROLD in 1917, but that Act dealt with the dry land in terms of vesting the fee simple, rather than endowment. An alternative is that the endowment of areas below high-water mark was implicitly on terms contemplating reclamation, so that if that occurred, the endowed status inured in respect of the parts that became dry land. Attributing to Parliament an awareness of that prospect means that the reference to the schedule to the Dry Land Act is to be read as applying only to the part of the area endowed that is now dry land. [43] Mr Ironside submitted that the means of rationalising the treatment accorded Motueka Harbour Board land as being "endowed" in the 1991 Dry Land Act is to interpret the provisions of the 1917 Act as not affecting the endowed status of the land, notwithstanding the terms on which that Act purported to deal with that land. Unless that stance is adopted, the 1991 Act purports to constrain the ability of theHarbour Board to deal with this land, when the justification for that constraint, ie its endowed status, did not in fact exist. [44] A review of all the legislative references to the reclaimed land since the ROLD in 1917 does not dissuade me from the view that the ROLD was intended to, and did, effect a substantive change in the status of the land that it dealt with. This does mean that the 1991 Dry Land Act purports to deal with land that was beyond the assumed justification for doing so. Such an error cannot be attributed to Parliament lightly. However, I consider the alternative, of denying that the ROLD had any substantive effect when it was enacted to address potentially unlawful activity, would be the greater error. Nor can the fact that the Council and its predecessors appear to have dealt with the income from the properties as endowment income, transform the underlying status of the area. [45] The consequence of the land having lost its endowed status in 1917 is that the issue then arises as to whether it has been held for "public works". That phrase has been given a very wide interpretation (see, for example, the Ngati Awa decision discussed in [71] below, at [23], [82], [100]-[102]) – using land for the purpose of generating income for other activities of a local authority has been treated as within the notion of public works. That characterisation of land as being held for public works would then apply and the basis for the Council declining to deal with the properties in accordance with s 40 of the PWA would fall away. [46] However, in the event that I am wrong in interpreting the ROLD as bringing the endowed status of the relevant area to an end, it is appropriate to record the range of other arguments advanced for Wakatu as to why the land, even if it still enjoyed endowed status, should still be dealt with pursuant to s 40 of the PWA.Section 40 PWA "trumps" ss 140 and 141 LGA?[47] The next argument raised on behalf of Wakatu was that s 40 of the PWA is a comprehensive provision in relation to any land held for public works, and that it therefore overrides the provisions in ss 140 and 141 of the LGA.[48] Section 40 of the PWA provides as follows: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 other manner 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 of this Act— the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, as the case may be, shall endeavour to sell the land in accordance with subsection (2) of this section, if that subsection is applicable to that land. (2) Except as provided in subsection (4) of this section, the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local 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 land for the purposes of, or in connection with, the public work for which it was acquired or is held— shall offer to sell the land by private contract to the person from whom it was acquired or to the successor of that person— (c) At the current market value of the land as determined by a valuation carried out by a registered valuer; or (d) If the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority considers it reasonable to do so, at any lesser price. (2A) If the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority and the offeree are unable to agree on a price following an offer made under subsection (2) of this section, the parties may agree that the price be determined by the Land Valuation Tribunal. (3) Subsection (2) of this section shall not apply to land acquired after the 31st day of January 1982 and before the date of commencement of the Public Works Amendment Act (No 2) 1987 for a public work that was not an essential work. (4) Where the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority believes on reasonable grounds that, because of the size, shape, or situation of the land he or it could not expect to sell the land to any person whodid not own land adjacent to the land to be sold, the land may be sold to an owner of adjacent land at a price negotiated between the parties. (5) For the purposes of this section, the term successor, in relation to any person, means the person who would have been entitled to the land under the will or intestacy of that person had he owned the land at the date of his death; and, in any case where part of a person's land was acquired or taken, includes the successor in title of that person.[49] It was argued for the Council that ss 140 and 141 of the LGA (set out in [18] above) are a specific code that governs the circumstances of a proposed disposal of land endowed on a local authority. The rationale is that land endowed is likely to have been transferred to a local authority in circumstances where the reason for the endowment was expected by the donor of the land to be respected in the long term. Different considerations apply when a local authority seeks to dispose of such gifted land, when compared with land acquired by the use of, or threat to use, compulsory powers from a private owner for public works purposes. [50] The definitions of "public work" and "work" in s 2 of the PWA include the notions, relevant to the present situation, of:every use of land for anylocal work whichany local authority is authorised toundertake, manage, operate or maintain by or under this or any other ActThat is sufficiently broad to capture at least a fair proportion of what local authorities would do in respect of land endowed on them, and there will be frequent instances of land endowed on local authorities that has been used in ways coming within the broad notion of "public works". Certainly, it is most unlikely that the provisions in s 40 of the PWA and ss 140 and 141 of the LGA can be treated as entirely mutually exclusive. [51] The predecessor of the 2002 LGA was the Local Government Act 1974. It did not separately recognise obligations on local authorities in respect of their dealings with land endowed on them. Section 230 of the 1974 Act spelt out the procedure that was to apply where a council wished to sell or exchange land. Subsection (8) contained a number of exceptions, one of which was that s 230 didnot authorise a council to deal with land taken or otherwise acquired under the Public Works Act then in force, except in accordance with that Act. [52] Accordingly, under the 1974 Local Government Act, any land taken or otherwise acquired under public works legislation was to be dealt with solely by reference to that legislation. [53] Sections 140 and 141 of the 2002 LGA have no corresponding acknowledgement of an exception for land used for public works. If consistency of drafting style can be assumed, this difference leads to the inference that ss 140 and 141 do indeed provide a separate code for land that has been endowed, with that characteristic, rather than any subsequent use of the land for public works, dictating the statutory process that is to govern any disposal of it by a council. However, the presumption of consistency between the drafting of the two Local Government Acts in 1974 and 2002 is not entirely reliable, and I would accordingly not rely entirely on this point of distinction to resolve the relationship between s 40 of the PWA on the one hand, and ss 140 and 141 of the LGA on the other. [54] The policy rationale evident from the heading and content of s 40 reflects an expectation that land for public works has been acquired compulsorily, or in the shadow of the prospect of use of such powers. The justification for exercise of powers of compulsion is that land is needed for public work and the natural corollary is that if land is no longer needed for that or another public work purpose, then it ought to be offered back to the private owner or successor of the private owner from whom it was acquired (see, for example, the Port Gisborne decision, discussed below, [33]-[35], and Ngati Awa, [87]). That rationale does not apply when the land had not been compulsorily acquired, or acquired under the threat of resort to powers of compulsory acquisition. See Port Gisborne at [33]. Section 40(1) extends to any land held under either the PWA or any other Act for any public work so does extend to situations where landowners have voluntarily negotiated a sale to the Crown or a local authority. To that extent, the offer-back provision is of wider scope than the rationale being the use or threat of powers of compulsory acquisition.[55] Section 40(2) provides for the qualified obligation to offer land that has been held for a public work and is no longer required for such purposes, back to the person from whom it was acquired or to the successor of that person. The obligation does not arise if a local authority considers it would be "impracticable, unreasonable or unfair to do so". The notion of unreasonableness may conceivably extend to the consequences for persons including present occupiers of the land in question. The second exception in s 40(2)(b) is where there has been a significant change in the character of the land for the purposes of, or in connection with, the public work for which it was acquired or is held. In the present circumstances, Mr Ironside indicated that the Council has not yet turned its mind to whether these exceptions might apply. The Council wished to challenge the caveat on the basis that s 40 did not apply to the six properties, rather than conceding that it did and addressing the alternatives presented by the section, to an offer to whomever is determined to be the successor of any owner established as holding the property prior to the original endowment on the Harbour Board. [56] Section 40 does not create any unqualified rights. The exclusions from subs (2) recognise two specific situations in which the local authority would have a discretion not to make an offer back. This counts against the section having the all- pervasive and mandatory status that Mr Palmer argued for on behalf of Wakatu. [57] In contrast, s 140 of the LGA is cast in the terms of a code imposing restrictions on disposal of any property vested in a local authority either in trust, or as an endowment. The restrictions are intended to require a local authority to respect, on an ongoing basis, the purpose for which the property had been vested in it. Such properties may only be used for additional or different purposes if the Minister of Local Government approves, and may only be sold if the local authority commits the use of proceeds to a purpose identified in accordance with the procedure under s 141 of the LGA. That contemplates a use of the proceeds that is consistent with the purpose of the endowment and a prior process of notification in a local authority's long term community plan. There is also a requirement for notification to the Minister for Land Information and the Minister for Treaty of Waitangi Negotiations where the Crown had been the donor of the property.[58] The processes provided for under ss 140 and 141 are substantially more specific, being tailored to a protection of the purposes for which land has been endowed on local authorities, than is the case with s 40 of the PWA. The latter provision addresses an entirely different mischief, which is a concern to attempt to redress the adverse consequences of appropriation of privately owned land for public works, when the land is no longer required for any public work. Where land was acquired for public works, it is generally unlikely that it would have been endowed. Accordingly, the circumstances of acquisition where the classic taking for public works had occurred are distinguishable from the initiative freely taken by a donor (whether a private donor or the Crown) to endow land. It is generally unlikely that a donor would want the land back, but donors do have a legitimate interest in seeing the rationale for the endowment reflected in its on-going use. This distinction only becomes blurred where, because of the breadth of the definition of public works, land endowed is subsequently held for public works, so comes within the broader definition in s 40(1) of the PWA, even although such circumstances are not within the rationale for a requirement that the property be offered back, once it is no longer being used for any public work. [59] So too, when reflecting on the rationale for s 140 in protecting the wishes of those who endow lands, that rationale also becomes blurred where it was the Crown, rather than a philanthropist, who was responsible for the endowment. [60] As a matter of statutory construction, I do not consider that s 40 "trumps" ss 140 and 141 of the LGA. If the Council could bring itself within s 140 by establishing the land in question was, and remains, "endowed" on the Council, then the terms of ss 140 and 141 would take it outside the scope of the obligations in s 40 of the PWA. [61] Apart from the terms of the statutory provisions in the PWA and the LGA, the parties urged that the reasoning in two previous Court decisions provide guidance on the Council's case against the application of s 40 of the PWA in the present circumstances, and for Wakatu in favour of that proposition.Prior decisions on application of s 40 of the PWA[62] The first of the decisions is that of the Court of Appeal in Port Gisborne Ltd v Smiler [1999] 2 NZLR 695. In that case, the Crown had negotiated with Mäori owners to acquire substantial blocks of land north of Gisborne, between 1874 and 1879 when an agreement was concluded. In 1881, an order was granted vesting the land in the Crown and it was declared to be "wastelands" of the Crown, that term denoting that the land was held for no defined purpose. [63] Then in 1884, the Gisborne Harbour Board Act of that year endowed the land on the Gisborne Harbour Board for the purpose of providing an income stream to support the funding of the port. Port Gisborne Limited was the successor of the Harbour Board and the lands were transferred to it pursuant to the Port Companies Act 1988. In 1998, Port Gisborne offered the land for sale by public tender. Mäori interests, asserting standing as successors to the original owners, sought declarations that the port company was obliged to offer the land to them pursuant to s 40 of the PWA. Further, they asserted that it was reasonable for the port company to offer the land at less than market value in accordance with the discretion to do so under s 40(2)(d) of the PWA. [64] The Court of Appeal reflected on the policy rationale for requiring land that was no longer needed for public work to be offered back to a previous private owner:There is, however, no discernable reason for extending the offer-back concept to cover land which had not been obtained from private ownership for a public work. [33] The Act clearly has no application to land which has been acquired, and is currently being used, for purposes other than public work. It is difficult to see why, or in which ways, it should or could apply to land which has been acquired outside any contemplation of the Act, but then subsequently and quite independently of the provisions of the Act, is used for a public purpose. The background to the offer back concept is that land is being acquired from a private person for a public work purpose, possibly under the threat or contemplation of compulsion. The rationale must be that it is only fair, if that purpose disappears, the land should so far as practicable revert to the previous or equivalent private ownership. [35][65] What was critical to the Court of Appeal was that the provisions of public works legislation had played no part in the original acquisition of the land fromprivate owners. Rather, it had been acquired after commercial negotiations resulted in an agreement for sale and purchase. In these circumstances, the first occasion on which it was used for public works purposes was on its transfer to the Gisborne Harbour Board. The transferor in that transaction was the Crown and the Crown was accordingly the appropriate offeree, not the previous Mäori owners. [66] At the time when Smiler was argued, conduct by a harbour board or their successor port companies was still regulated by provisions in the Harbours Act 1950 that had been amended relevantly in 1977. That amendment inserted ss 143A to 143C. Those provisions empowered boards to sell land on certain terms. The power to sell could not be exercised in respect of:Any land which is held by a board on trust for a particular purpose, unless the land is vested in the board as an endowment for the general purposes of the harbour district and is not subject to any express prohibition or restriction as to sale or exchange. (s 143C(3)(c))[67] These provisions had a specific exclusion in s 143A(1)(b) to the effect that they did not authorise a board to deal with land taken or acquired under the PWA otherwise than in accordance with the provisions of that Act. [68] It was argued in the Court of Appeal that the provisions in s 40 of the PWA did not apply to land acquired by way of endowment. In the present case, the Council relied on the following observations:[42] It can also be said that the provisions of the Harbours Act 1950 raise doubts as to whether the offer-back provisions in s 40 were intended to apply to endowment lands granted to harbour boards by the Crown. Section 143C of the Harbours Act, inserted by s 26(1) of the Harbours Amendment Act 1977, provides a power of sale in respect of endowment land. This power is subject to s 143A. Section 143A specifies that Harbour Boards are not authorised "to deal with land taken or acquired under the Public Works Act 1981 otherwise than in accordance with the provisions of that Act". Endowment land is not land "taken or acquired" under public works legislation and the restriction in s 143A would not therefore seem to apply. The endowment in the present case (Tauwhareparae) was subject to an express prohibition on sale, contained in s 12(1) of the Gisborne Harbour Act 1905 and before that in s 13 of the Gisborne Harbour Act 1884, and could not therefore be sold pursuant to s 143C (see s 143C(3)(c)) but the provisions of s 143A nevertheless indicate that Parliament did not intend s 40 to apply to endowment land.[69] Mr Ironside submitted that the observation by the Court of Appeal distinguishing endowment land as not being "taken or acquired" under public works legislation meant that endowed land was outside the scope of what Parliament intended s 40 of the PWA to apply to. Since the circumstances of acquisition are critical to the policy behind the offer-back concept reflected in s 40 of the PWA, it is understandable that in the generality of cases where an acquisition arose because of an endowment, that would signal quite distinct circumstances from an acquisition for PWA purposes. However, I am not persuaded that the Court of Appeal's observation is applicable if the circumstances of an endowment constitute a taking or acquiring of interests in land akin to those that apply when public works legislation is invoked. It must depend on whether the property endowed belonged to the donor in the conventional way or, in the case of the Crown, involved asserting rights that might cut across those of others. [70] In Smiler, the distinction between previous acquisition by the Crown, and then endowment on the Harbour Board, reflected different purposes in the two transactions. In the present circumstances, there was no antecedent transaction by the Crown. It simply treated itself as entitled to endow the area below high-water mark on the Harbour Board because it did not recognise any private property rights in that area. Had such rights been recognised at the time, then the endowment would have reflected a form of taking or acquisition from such private interests. Accordingly, I am not persuaded that the observation in the context addressed by the Court of Appeal is necessarily applicable in all circumstances to exclude endowment land from the provisions in s 40 of the PWA. [71] The second decision that considers the scope of s 40 of the PWA is that inTe Runanga O Ngati Awa v Attorney-General and Whakatane District Council[2004] 2 NZLR 252. That case related to areas that had formerly been part of the bed and foreshore of the Whakatane River. They had been within lands confiscated by the Crown in 1866 under the New Zealand Settlements Act 1863, subsequently reclaimed and then transferred to the Whakatane Harbour Board. It was common ground that the reclamation constituted a public work.[72] The reclamation was commenced by the Whakatane County Council in 1910 and completed by the Whakatane Harbour Board between 1912 and 1919. Once the reclamation was completed, the Crown vested the land in the Whakatane Harbour Board pursuant to s 14 of the Whakatane Harbour Act 1912. Since its reclamation, the area in question had been leased on a relatively long-term basis. In 1929, the land was leased by the Harbour Board to a local winter show association for perpetually renewable 21 year terms. The income from the lease was applied by the Harbour Board in the manner authorised by its governing legislation. [73] In 1952, the winter show association sold its leasehold interest in what had become known as the "Army Hall land" to the Defence Department and in 1953 the Harbour Board agreed to sell the fee simple in the land to the Crown. In 1999, the Defence Department declared the land surplus to its requirements and, after numerous steps considering the appropriate application of s 40 of the PWA, the Crown made an offer back to the successor of the Whakatane Harbour Board, namely the Whakatane District Council, treating it as the entity from whom the land had been acquired for public works purposes, in terms of s 40. [74] In the meantime, the area had been identified by Ngati Awa as among those it sought to acquire as part of a settlement of historical grievances in the eastern Bay of Plenty. Ngati Awa commenced proceedings seeking judicial review of the decision by the Chief Executive of Land Information New Zealand (LINZ) to offer to sell the land, pursuant to s 40, to the local authority. Ngati Awa contended that the relevant area was first taken for public works purposes at the time it was confiscated, so that the appropriate offeree under s 40 was the successor of the original Mäori owners from whom the land was first acquired. [75] Wakatu invited an analogy with several aspects of the reasoning of Goddard J in Ngati Awa. First, on the breadth of the definition of what constitutes public works for the purposes of the PWA. There, the lease of the land where the income was applied to the Harbour Board's account was within the broad definition. By analogy, it was submitted for Wakatu that the activity of the Harbour Board, and more recently the Council, in leasing the property to generate income for the purposes ofthe Harbour Board and subsequently the Council ought similarly to be recognised as a public work. The Council did not seriously dispute that characterisation. [76] Further, Wakatu submitted that the definition was so broad that it "could include a lease for endowment purposes". To the extent that this raised an argument that the use made of the land, if within the broad definition of a "public work" could constitute the purpose of the original endowment to be an endowment for the purposes of public works, then the argument confuses two different notions. It may be relevant for the purposes of s 40 that, at some time after its acquisition, a piece of land is held for public works purposes. Here, leasing to generate income for the successive local authority owners qualifies that as public work. However, in assessing the character of an acquisition by a local authority, the use subsequently made of the land cannot affect the validity of any distinction drawn between acquisition by way of endowment, when contrasted with acquisition involving the taking or acquisition of land for PWA purposes. [77] In contrast to the facts in Smiler, in Ngati Awa the land had been acquired by exercise of a statutory power of confiscation. Goddard J found that the confiscation was for purposes that fell within the broad rubric of public works. When the land ultimately was determined not to be required for public works purposes, that occurrence, in the context of an original taking from private owners by statutory force, triggered the application of s 40 which the Judge saw as having the intention:to provide a prior right to a private person to re-acquire land taken or acquired from him or her for public use and thus to remedy a wrong done to a private person. [87][78] Whilst, with respect, it sometimes may be difficult to justify the exercise of powers under the public works legislation to compulsorily acquire land where it is needed for a public works purpose, the resort to compulsion in the interests of the state is the rationale for the offer-back obligation. Characterising the original conduct as a "wrong", however understandable in the context of the confiscation from Ngati Awa, in other cases will be neither necessary nor appropriate. [79] Wakatu also drew an analogy with the acceptance of Ngati Awa in its corporate form as qualifying within s 40(5) as a "successor" notwithstanding it wasnot a natural person. If the other requirements to establish its standing as successor were made out, I would not consider the corporate form in which Wakatu pursues the right to be the offeree under s 40 of the PWA to be an obstacle to it. [80] In Ngati Awa, the Crown accepted the application of s 40 of the PWA, and the issue was the identity of the offeree who would receive the offer to "re- purchase". In those circumstances, there appears to have been no reason for the Crown to consider whether an offer ought not to be made because of either of the contingencies in s 40(2) which remain to be considered if s 40 of the PWA does apply in the present circumstances. [81] Accordingly, the approach in Ngati Awa reflects the different circumstance in which that land was acquired, namely by a form of compulsory taking. The terms of endowment here occurred in circumstances where there was no recognition by the Crown of the need to compulsorily acquire an area below high-water mark because no one else was seen as having any proprietary interest in it. [82] This analysis is obviously confined to factors potentially influencing the application of s 40 of the PWA, or ss 140 and 141 of the LGA. The analysis has no bearing on the scope for criticisms of the historical conduct of the Crown that might be raised in claims before the Waitangi Tribunal and nor can the prospect of any such claims influence the analysis I am presently required to undertake.Predecessors of Wakatu the person from whom the mud-flats were acquired in 1905?[83] Once the s 40 PWA process applies, then a series of further considerations arise as to who the "successor" is for the purposes of identifying the offeree in respect of any land where its disposal is governed by the section. [84] In respect of the two properties that were dry land when acquired, the Council has identified the Mäori Trustee as "the successor" entitled to receive the offer. This is because tenths reserves were registered originally in the name of the Public Trustee, holding on behalf of appropriate Mäori interests. The PublicTrustee's role in that regard was subsequently transferred and vested in the Native Trustee in 1920, and subsequently in the Mäori Trustee in 1947. [85] Wakatu has challenged the Council's choice of successor, and I deal separately with that, so far as it relates to the two properties, at [108] to [111] below. [86] In respect of the six properties that were below high-water mark when the area was endowed in 1905, the Council denies that anyone can have standing as "successor" for the purposes of s 40(5) of the PWA. Wakatu asserts such status by virtue of some sufficient form of customary rights or aboriginal title that it claims ought to be recognised in respect of the foreshore in the relevant area. [87] It is a fair inference that Parliament did not contemplate in 1905 that it was appropriating any ownership interests when it endowed the area below high-water mark on the Harbour Board. Nor would it have considered there was any appropriation when it addressed the vesting of the reclaimed land in 1917. The prevailing view in 1905 and 1917 appears to have been that the Crown could exercise domain over such areas without invoking any notion of compulsory acquisition of the property rights of others. [88] Wakatu argues that it can now rely on the approach to analysis of customary title in Attorney-General v Ngati Apa [2003] 3 NZLR 643(CA). That decision upheld the non-exclusive jurisdiction of the Mäori Land Court to recognise customary property rights for Mäori interests that might have undefined effects upon the Crown's underlying title to foreshore or seabed. [89] In the present case, Wakatu submits that the process of enquiry leading to potential recognition of such rights is available to them in respect of the area including the six properties. However, the effect of Ngati Apa in respect of recognition of rights to areas of foreshore was reversed by the passing of the Foreshore and Seabed Act 2004. That vested full legal and beneficial ownership of the public foreshore and seabed in the Crown, as well as providing mechanisms for the recognition and protection of customary rights where those were able to beasserted and recognised by whanau, hapu or iwi making out such customary rights to particular areas. [90] Mr Palmer argued that the approach to recognition of customary rights inNgati Apa remains applicable because the area in question is no longer part of the foreshore or seabed, and is therefore not regulated by the terms of the 2004 Act. There are a number of logical difficulties with the notion that customary rights for Wakatu should be recognised by application of the reasoning dealing with foreshore areas in Ngati Apa, notwithstanding that the area in question is no longer foreshore, so that the statute which effectively precludes the application of the reasoning inNgati Apa should not apply. [91] Wakatu produced a relatively thorough historical analysis of the connections between certain of the ancestors of those presently beneficially entitled to shares in the Incorporation, and the dry and wetlands in the area in question. It was by way of an affidavit from Hilary Anne Mitchell and Maui John Mitchell, experienced researchers of Mäori historical issues. Whilst Mr Mitchell holds shares in Wakatu, both deponents acknowledged the obligation as experts to comply with the Code of Conduct in Schedule 4 to the High Court Rules. [92] Their historical analysis covers the frustrations at various alienations, in particular in relation to parts of Section 144 of the Motueka Survey District that originally had been set aside as a Tenths Trust area. They also refer to the ancestors of some of those with beneficial interests in Wakatu practising shellfish gathering and possibly other fishing activities in the tidal area that was below high-water mark between the two dry land parts of the peninsula. These proceedings cannot constitute a definitive determination on the identity of those entitled to any customary rights, or the extent of them. It is sufficient in evaluating the argument to recognise the prospect that some among the current beneficiaries of Wakatu may be able to establish that their ancestors exercised some form of customary rights to the area below high-water mark between the two dry land parts of the peninsula that was included in the 1905 endowment, for a period up to that point in time.[93] There is, however, a substantial disconnect between any form of customary rights reflecting the gathering of shellfish, and perhaps fishing, in a period up to 1905, and that reflecting some right to reclaimed land in the area that has long since been settled for residential use. There is no prospect of recognition of rights for the purpose of enabling them now to be exercised. Mr Ironside submitted that customary rights could only be made out where those asserting them had continuously exercised such rights, down to the time at which they were claimed. Without deciding as a principle of general application that long-standing usage needed to persist to the present day, I do accept that the length of the period in which the land has been used for an entirely separate purpose in its different, reclaimed form is very likely to count against the recognition of customary rights. The Chief Justice's judgment in Ngati Apa recognised as seemingly inarguable that legislation conferring freehold interests extinguishes pre-existing Mäori customary rights inconsistent with that ([58]). That observation was made in circumstances where the terms of the relevant legislation had not been the subject of argument in that case. Here, the 1917 vesting of the area that had by then been reclaimed, but which at the time of the 1905 endowment was below high-water mark, must come within the contemplation of this observation. [94] The immediate issue is whether, notwithstanding these various points against recognition of customary rights, some form of such rights different from a title in fee simple has to be recognised by a local authority when considering the disposal of land that has been held for a public work. The words in s 40(2) contemplate an offer "to the person from whom it was acquired", and in s 40(5) the successor is "the person who would have been entitled to the land". In respect of land under the Land Transfer Act 1952, these notions contemplate the persons entitled to be registered as owner of the fee simple. Although the words used may be capable of extending to other forms of interest, I consider that it is not intended to recognise lesser forms of interest in the land. In Ngati Awa, there was no issue but that the predecessors of the claimants had enjoyed all manifestations of ownership prior to the statutory confiscation, but Wakatu's argument on the present issue cannot be cast in the same terms.[95] Other observations in Ngati Apa recognise difficulties in rationalising various sources of rights that may be relevant to a caveatable interest. The Court was careful to emphasise in the separate judgments that theirs was an abstract analysis, with no attempt to identify the incidence of any customary title that might be made out, and an inability on the limited facts to determine whether Mäori customary title below high-water mark could be made out ([8] and [129]). Further, the Chief Justice recognised uncertainties in whether the Te Ture Whenua Act 1993 equips the Mäori Land Court to recognise interests according to custom which do not translate to fee simple ([46]). [96] Accordingly, I would not recognise the prospect of Wakatu establishing some form of customary right in the now reclaimed land, as sufficient to make out its standing as the successor of the person from whom the area was acquired. The practicality that the Harbour Board as owner "created" the land by reclamation must influence this enquiry which is effectively as to prior ownership.Identity of "successor"[97] Section 40(5) of the PWA creates two separate concepts of who should be entitled to receive an offer where land has been held for a public work but is no longer required for any such purpose. First, where all of the private owner's land had been taken, then it is the person entitled to acquire that former owner's property on his or her death who is treated as the successor for the purposes of being entitled to receive an offer back. [98] In contrast, if only part of a property had been taken for public works purposes, and is now available to be offered back, then the offer is to be made to the current owner of the balance of the property. This distinction is an entirely sensible one. This second provision recognises the desirability of restoring land holdings that had been disrupted by the Crown imperative of use of part of the land for public works. Typically, the preferment of the current owner of the balance of the property makes commercial sense and is equitable such as when part of a farming property has been taken for public works. There is a higher economic rationale, and more equitable recognition of rights, in seeking to reinstate a previous property, rather thanmaking an offer to the successor of the person whose farm had been diminished, but whose successors may no longer be interested in the balance of it. [99] Where the taking was of the whole of the property, no such consideration arises and the "restoration of rights" that s 40 seeks to effect is to be addressed by offering the property back to the successors to the estate of the original owner. [100] The parties in the present case did not give any close attention to which of these situations arises. The Council has proceeded, in relation to the two properties it recognises as necessarily dealt with in terms of s 40, on the assumption that the whole of the property had been acquired so that the offer was to be made to the successor of the person who would have been entitled on the death of the owner at the time of the acquisition. The proclamations in 1911 and 1913 were of less than the holding for Mäori interests, so an issue could arise as to whether an enquiry ought to be undertaken as to the identity of the successor of the owner of the balance of the property from which those areas were excluded. Neither party seeks that. I understand that both properties are stand-alone residential ones, so that there is not the rationale of restoring them to the ownership of the remainder of the property as it was at the time of the taking. [101] In relation to the two properties, the Council has traced the history of the successors to the Public Trustee which was registered as legal owner of Section 144 at the time parts of it were taken in 1911 and 1913. The Council's analysis assumes that enquiries to identify a "successor" should focus on those entitled to legal ownership, leaving legal owners who have any obligations as trustees (ie to different persons having beneficial interests in the land) to deal with those in accordance with their trustee obligations. I agree with that approach. [102] Wakatu adopts the analysis undertaken in submissions for the Council as to the line of succession from the Public Trustee. Section 144 of the Motueka Survey District constituted native reserve for the purposes of the Native Reserves Act 1882 and that Act vested such reserves in the Public Trustee. Accordingly, it was the Public Trustee from whom the two dry land parts of Section 144, transferred by the proclamations in 1911 and 1913, were acquired. The Native Trustee Act 1920transferred all such lands and vested them in the Native Trustee. Later, the Mäori Purposes Act 1947 made amendments to various references to "native" in legislation, changing them to "Mäori". Among the changes was that the former Native Trustee Act 1930 was to be cited as the Mäori Trustee Act 1930 and the Native Trustee was to be known as the Mäori Trustee. [103] The Mäori Reserved Land Act 1955 provided that land subject to the Mäori Reserves Act 1882 or the Westland and Nelson Reserves Act 1887 was to become reserves subject to the 1955 Act and all such land was to vest or continue to be vested in the Mäori Trustee. On the basis of this analysis, the Council considers its obligation under s 40(2) of the PWA in respect of the two properties is to make the offer, as it has, to the Mäori Trustee. [104] Whilst accepting the analysis to that point, Wakatu argues that it is now entitled to be substituted for the Mäori Trustee for the purposes of identifying "the successor" to the position originally held by the Public Trustee. This entitlement begins with s 15A of the Mäori Reserved Land Act 1955 which empowers Mäori incorporations to administer reserved land. Subsection (1) provides as follows:15A Constitution of Maori incorporations to administer reserved land(1) The Governor-General may from time to time, by Order in Council, constitute the beneficial owners of any one or more parcels of reserved land, a Maori incorporation under Part 13 of Te Ture Whenua Maori (Maori Land) Act 1993, from a date to be specified in the Order. Every such Order in Council shall specify the objects for which the incorporation is constituted and shall take effect according to its tenor as if an order of incorporation under section 247 of that Act had been made in respect of the land by the Court, and, except as otherwise provided in this section, all the provisions of Part 13 of Te Ture Whenua Maori (Maori Land) Act 1993 shall, with all necessary modifications, apply accordingly.[105] That provides a means by which the often diverse beneficial owners of Mäori land might be consolidated in corporate form. It does not address a mechanism for changes in registration of legal ownership. [106] The provisions of the section also include:(4) Notwithstanding the provisions of Part 13 of Te Ture Whenua Maori (Maori Land) Act 1993, the fee simple of the land specified in any Order in Council made under subsection (1) of this section shall not by reason of that Order or the constitution of the incorporation pass to the incorporation, but the incorporation shall be entitled to have that land transferred to it in accordance with subsection (6) of this section. All land so transferred shall, on the registration of the transfer, cease to be reserved land within the meaning of this Act. (5) Where the beneficial owners of any reserved land are constituted under this section as a Maori incorporation, the Maori Trustee shall, until that land is transferred by him to the corporation pursuant to subsection (6) of this section, continue to hold it and to receive and deal with all money payable to him in respect of it, but shall do so as trustee and agent of the incorporation as so constituted. The Maori Trustee may continue to charge fees, expenses, and commission in respect of his administration of the land and money. (6) The Maori Trustee, at the request of the committee of management of any Maori incorporation constituted pursuant to this section, shall transfer to the incorporation all the incorporation land, subject to all leases, licences, charges, and other encumbrances, and shall pay to the incorporation any money held by him and arising from the incorporation land, whether the money is held in gross as it has been received or is on behalf of an individual beneficial owner to whom it has been allocated. The Maori Trustee shall at the same time hand over to the incorporation all records held by him relating to the land and to any dealings therewith, and all necessary records relating to the money paid over by him to the incorporation.[107] Those subsections make it clear that there is no deemed transfer, or automatic process by which it was to occur. A further step was required to actually effect the transfer of any relevant piece of land. [108] In the case of Wakatu, its incorporation was dealt with by way of an Order in Council, the Wakatu Incorporation Order 1977. The land, the beneficial owners of which were to be constituted a Mäori incorporation, includes parts of Section 144 of the Motueka Survey District. Whilst the objects of the Incorporation recorded in its Order in Council included the object of receiving from the Mäori Trustee all land transferrable by him to the Incorporation in accordance with the provisions of s 15A(6) of the Mäori Reserved Land Act 1955, the terms of that Order in Council cannot constitute the request contemplated by s 15A(6) of the 1955 Act. [109] The Order in Council issued in August 1977. In their affidavit, Mr and Mrs Mitchell depose:What remains of Sections 144-147 was transferred to Wakatu Incorporation in December 1977. Had parts of Section 144 not been taken under the Public Works Act for harbour purposes in 1911 and 1913, those lots would have remained under the administrative control of the Public Trustee, Native Trustee and Mäori Trustee until 1977 when they, along with the remnant of Section 144 and the other Native Reserve lands in Motueka, were transferred to Wakatu Incorporation.[110] Although this evidence is not precise, and no current Certificates of Title were exhibited showing transfer of legal ownership being registered in the name of Wakatu, this evidence was not challenged. I take "transfer" to mean registration on the Title of transfers from the Mäori Trustee to Wakatu. Accordingly, the registered ownership of the fee simple that was previously attributed to the Public Trustee, then the Native Trustee, then the Mäori Trustee, has now devolved on the Wakatu Incorporation. [111] In those circumstances, Wakatu is entitled to claim status, in lieu of the Mäori Trustee as "the successor", to the interests recognised by the Council as triggering the obligations to make an offer under s 40 of the PWA, for the two properties. Against the prospect that my assumption in the last paragraph about what the Mitchells' affidavit refers to as "transferred" is incorrect, I reserve leave to any party to apply to vary this determination if Wakatu is not the registered owner of the parts of Section 144 that were formerly registered in the names of the identified predecessors.Wider recognition of Wakatu[112] The relief sought by Wakatu extended to a declaration that it is the entity representing Mäori interests that is entitled to the benefit of any rights under s 40 of the PWA, including rights in respect of the six properties. On this different issue of the identity of Mäori interests, rather than the extent and nature of any rights, the Council has no interest and the proceedings were not served on any other Mäori interests.[113] The Memorandum of Counsel for the Mäori Trustee was cautious in not endorsing Wakatu as representing those Mäori who might be beneficially entitled to any rights or interests recognised in the judgment. The Memorandum specified:12. If the Court determines that all or any of the 'six properties' are subject to section 40 of the Public Works Act, and further determines that the Mäori Trustee (and not the Crown or Wakatu) is the 'successor' of the person from whom the land was acquired, then the Mäori Trustee confirms that it will act as trustee for those persons the Court determines to be beneficial owners of the relevant land on such terms as the Court considers appropriate. (italics provided) 13. In that event, the Mäori Trustee would wish the owners to be clearly identified and to have an opportunity to be heard prior to settling any implementation orders.[114] Certainly, in the absence of any evidence to challenge the analysis, Mr and Mrs Mitchell's work provides a sound foundation for the claim that Wakatu constitutes the appropriate representative of beneficial Mäori interests, to pursue on such owners' behalves whatever rights or entitlements are claimed in the present circumstances. Despite decimation by European diseases, familial links are identified between prominent Mäori who led dealings in respect of the property in the 19 th Century, and those who are beneficiaries in Wakatu. Similarly, there are direct connections between Mäori recipients of net rentals from properties in Section 144 during its administration by the Public Trustee, and current beneficiaries of Wakatu. [115] The standing of Wakatu in relation to the two properties derives from its status as successor to the earlier registered owners of the parts of Section 144 of the Motueka Survey District from which those properties were acquired. It does not have the same connection in relation to the reclaimed land between the arms of the peninsula that were excluded from Section 144. Although unlikely, there may be other claimants to pre-1905 rights in those areas excluded from Section 144. [116] On the view I have taken on the various preceding issues, it is not necessary to make a determination of Wakatu's standing vis-à-vis representatives of any other Mäori groups in the area. In the absence of any real opportunity for any other Mäori entities to contest Wakatu's version, I am reluctant to make any such orders.Summary[117] In summary, my findings are: a) The 1905 endowment of an area below high-water mark was superseded by the 1917 vesting of the fee simple in the then reclaimed land, so that the area containing the six properties was not thereafter "endowed" land. b) The six properties have been used for a public work so that the process under s 40 of the PWA applies to them. c) The nature of any customary interest enjoyed by the predecessors of Wakatu in relation to the endowed area below high-water mark is not sufficient to constitute a form of interest that would give Wakatu standing as "successors" for the purposes of entitlement to an offer under s 40 of the PWA in respect of the six properties. d) The creation of the land by reclamation by the Motueka Harbour Board means that, in these particular circumstances, it has no predecessor for the purposes of s 40. e) In the event I am wrong in a), and the land remains "endowed", then: i) s 40 of the PWA does not override ss 140 and 141 of the LGA and the procedure under the latter sections could apply notwithstanding use of the properties for a public work; ii) the process for recognition of rights in foreshore or seabed that was upheld in Attorney-General v Ngati Apa [2003] 3 NZLR 643 could not avail Wakatu, to attain sufficient status to qualify as an offeree in respect of sale of the six properties.f) Local authorities offering land under s 40 are to deal with the registered legal owners. On the state of the evidence, that appears to qualify Wakatu as offeree in respect of the two properties. If Wakatu is not the registered owner as contemplated in paragraphs [110] and [111] above, then leave is reserved to vary this finding. g) The consequence of these findings is that Wakatu cannot sustain its caveat in respect of the six properties. I order that that is to be discharged. On the basis that Wakatu is now the registered owner of the parts of Section 144 Motueka Survey District that were originally registered in the name of the Public Trustee, Wakatu can make out standing as the appropriate successor, and that is sufficient to make out a caveatable interest in the two properties, pending receipt of an offer under s 40 of the PWA. [118] There will be no order as to costs.Dobson JSolicitors: Fletcher Vautier Moore, Richmond for Tasman District Council Pitt & Moore, Nelson for The Proprietors of WakatuAnnexure