THE TRUSTEES OF THE TAUWHAO TE NGARE TRUST v SHAW [2016] NZCA 405

THE TRUSTEES OF THE TAUWHAO TE NGARE TRUST v SHAW [2016] NZCA 405 [24 August 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA54/2015[2016] NZCA 405BETWEEN THE TRUSTEES OF THE TAUWHAOTE NGARE TRUSTAppellantsAND DONALD SHAWRespondentHearing: 14 June 2016Court: Randerson, Cooper and Winkelmann JJCounsel: J P Koning for AppellantsRespondent in PersonJudgment: 24 August 2016 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants must pay the respondent's reasonable disbursementsincluding travel, accommodation, photocopying and incidental expenses, to be fixed if necessary by the Registrar.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] This appeal from a decision of the Māori Appellate Court relates to a roadway established by order of the Māori Land Court in 1976 on Rangiwaea Islandin Tauranga Harbour.1 The roadway traverses land owned by the appellants (the Trustees) who are the principal landowners on the island. The respondent Mr Shaw and other property owners on the island had enjoyed access over the roadway for many years until 2003 when the Trustees denied access to Mr Shaw after a disagreement with him over whether he would sell his property.[2] The roadway is important because it provides access to the only wharf and barge ramp on the island. In 2003 Mr Shaw obtained an interim injunction from theMāori Land Court restraining the Trustees from denying him access over theroadway. That injunction remains in place. Mr Shaw also applied soon after for adetermination of his interest in Māori freehold land under s 18(1)(a) of Te TureWhenua Māori Act 1993 (the 1993 Act).2[3] In response, the Trustees applied under ss 44 and 45 of the 1993 Act for an order cancelling the roadway order. Under s 44 the Chief Judge has special powers to correct mistakes of fact or law by the Court or by a Registrar. Amongst other things, the Trustees asserted that the roadway order was made without jurisdictionbecause it traversed a Māori reservation which was said to be inalienable unders 439(9) of the Maori Affairs Act 1953 (the 1953 Act).[4] At the request of the Chief Judge,3 Judge Clark provided a report dated 8 July 2009 in which he recommended the roadway be cancelled on the ground of errors of fact and law. Then, on 9 August 2013, the Chief Judge made an order under s 44 of the 1993 Act cancelling the roadway, subject to the creation of a new roadway order to be agreed between the parties and others entitled to use the existing roadway.4[5] The Trustees appealed to the Māori Appellate Court. By a majority,5 the appeal was allowed in part.6 The roadway order was amended rather than cancelled.1 The Trustees of the Tauwhao Te Ngare Trust v Shaw – Tauwhao Te Ngare Block and preliminary decision of the Chief Judge at 2013 CJ 567 [2014] Māori Appellate Court MB 394 (2014 APPEAL 394) [Māori Appellate Court decision].2 This was the subject of a decision by Judge Milroy on 23 May 2005 which is no longer in issue.3 Made pursuant to s 46(1) of the 1993 Act.4 The Trustees of Tauwhao-Te Ngare Trust v Shaw – Tauwhao-Te Ngare Block (2013) 2013 Chief Judge's MB 567 (2013 CJ 567).5 Deputy Chief Judge Fox and Judge Doogan.6 Māori Appellate Court decision, above n 1.The amendments were to restrict the use of the roadway to defined persons and to provide that an amended roadway plan be prepared. This could differ from the original route envisaged in the 1976 order but had to ensure comparable access from the wharf to property owners.[6] The Trustees' appeal to this Court raises two essential issues:(a) Was the roadway order made without jurisdiction because itconstituted an alienation of a Māori reservation?(b) Should the Māori Land Court have determined that the roadway order be cancelled by reason of errors of law or fact?[7] For reasons we later describe, we have not found it necessary to determine the first of these issues. The judgment will focus on the second issue.Background facts[8] The summary of the relevant facts that follows is largely drawn from themajority judgment in the Māori Appellate Court and is not in dispute. Rangiwaea Island comprises some 370 hectares most of which is Māori land. In the early 1970s, the Department of Māori Affairs, with assistance from the Māori Land Court, beganexploring ways to encourage the development of the island. The focus was on the creation of roadways and title improvements, particularly consolidation of the 72 blocks of land then in existence. We refer to the Māori Land Court as the Courtunless otherwise stated.[9] On 25 May 1973 a meeting of owners was called to discuss laying down a roadway from the existing wharf to a proposed crossing to Matakana Island at the other end of Rangiwaea. The minutes of the meeting record that some 55 persons were present almost all of whom were owners associated with the affected land. There was agreement in principle to the proposal and seven people were elected as"trustees".[10] On 14 December 1973 the Court made an order under s 418 of the 1953 Act laying out a roadway for the purpose of giving access to blocks of land described in the order. The roadway was to be one chain in width and was delineated on plans attached. There is no issue in relation to the 1973 order which we understand ran the length of the island to an existing but unusable wharf.[11] Matters progressed and by 1975 the Tauranga County Council had approved the siting of a new wharf to be located on the eastern point of a block known as Rangiwaea 1A2C comprising 2.20040 hectares (the 1A2C block). The Registrar of the Court wrote to interested parties advising it would be necessary for an additional roadway order to be made which would run from the eastern boundary of the 1A2C block and thence in a westerly direction traversing the adjoining Rangiwaea 1A1 (the 1A1 block), thus linking up with the road on the western boundary of that block.[12] At that time, the whole of the 1A1 block comprising 6.0702 hectares was thesubject of a Māori reservation made in 1966 under s 439 of the 1953 Act. This area was reduced in 1982 to include only part of the 1A1 block comprising 1.9100hectares. The purpose of the Māori reservation was for a marae, cemetery, recreationground and village site for the common use and benefit of the Ngai Tauwhao Hapū and Māori of the locality.7 The Registrar's letter pointed out that no trustees had ever been appointed for the Māori reservation on the 1A1 block.[13] The Registrar's letter to interested parties was also addressed to the seven persons whom the Registrar described as having been appointed as advisory trustees at the meeting of owners in 1973. In response, these seven persons later provided a letter to the Registrar, signed by each of them, in these terms:8We the undersigned Trustees of the Rangiwaea 1A1 Reservation endorse our consent to the Roadway Order that is sought to service the new wharf sited on the Eastern boundary of the Rangiwaea 1A 2C Block.As this roadway is going to benefit all owners on Rangiwaea Island we do not seek any form of compensation for the land that is set aside.7 Order of the Māori Land Court made on 14 May 1982.8 The letter was received by the Court on 11 March 1976 after an application for a roadway was made to the Court by the Deputy Registrar.[14] One of the persons signing the consent as a trustee of the 1A1 Reservation was Mrs Ihipera Tawhiti. She was also one of two owners of the 1A2C block and held the majority share. Mrs Tawhiti wrote separately to the Court confirming her consent and support for the roadway application in respect of the Rangiwaea Island blocks concerned.9 The other owner of the 1A2C block, Mr Takiri Taikato, was invited to provide his consent to the proposal but there is no record of his consent being received.[15] On 21 August 1975 the Deputy Registrar of the Court applied under s 418 of the 1953 Act for a roadway order over the 1A1 and 1A2C blocks for the purpose of giving access to the proposed new wharf. The application was made on the ground that this had been agreed to at the meeting of owners on 25 May 1973. The application stated that the consents of the owners of the land and of every other person having any stake or interest therein were filed with the application, although this was in error since some consents were not filed until later.[16] The application was presented to the Court on 3 November 1975. The Court reserved its decision and later directed that the consent of the Tauranga County Council under s 415(3)(c) of the 1953 Act be obtained. That consent was provided by 17 March 1976. A formal order was made by the Court on 18 March 1976 layingout a roadway under ss 415 and 418 of the 1953 Act "for the purpose of givingaccess to the proposed new wharf sited on the Eastern point of Rangiwaea 1A2Cblock". The terms of the order were further described in a schedule forming part ofthe order and in a diagram attached to the order (the 1976 roadway order).[17] It is common ground that the 1976 roadway was never formally surveyed nor properly formed and that its route does not conform precisely to the diagram appended to the court order. Nevertheless, for over 25 years between 1976 and 2003, the roadway has been used by the Trustees and other landowners on the island without apparent difficulty. Mr Shaw acquired land on the island in 1982 and from 1984 onwards has used the roadway on an unrestricted basis to transport building materials, tractors and other equipment.9 By letter dated 22 August 1975.[18] Since 1976 the Trustees have developed the 1A1 block for the purpose ofpapakāinga housing despite the 1976 roadway traversing the block. The Trusteeshave also benefitted substantially from the use of the roadway including for the purposes of their forestry and kiwifruit operations on the island. Significantly, theroadway traverses only a very small corner of the Māori reservation land, distant from the urupā, marae and associated buildings.Analysis[19] Both the 1993 and 1953 Acts preclude challenges to orders made by the Court after a period of`10 years from the date of the order. Section 77 of the 1993 Act provides:77 Orders affecting Maori land conclusive after 10 years(1) No order made by the court with respect to Maori land shall, whether on the ground of want of jurisdiction or on any other ground whatever, be annulled or quashed, or declared or held to be invalid, by any court in any proceedings instituted more than 10 years after the date of the order.(2) Where there is any repugnancy between 2 orders each of which would otherwise, by reason of the lapse of time, be within the protection of this section, then, to the extent of any such repugnancy, the order that bears the earlier date shall prevail, whether those orders were made by the same or different courts.(3) Nothing in this section shall limit or affect the authority of the Chief Judge to cancel or amend any order under section 44.[20] Two points may be made. First, the prohibition against challenges to the validity of an order after the expiry of the 10-year period is expressed in broad terms:whether the challenge is made for "want of jurisdiction or on any other ground whatever". Second, the prohibition against challenges to orders of the Court afterthe 10-year period does not limit the Chief Judge's special powers to cancel oramend the order under s 44 of the 1993 Act. Under the 1953 Act, a prohibition identical to s 77 of the 1993 Act was provided by s 68. This similarly preserved the special powers of the Chief Judge under s 452 of the 1953 Act.[21] It follows that, but for the special powers of the Chief Judge under s 44, the 1976 roadway order could not be challenged. We accept it would be possible for theChief Judge to consider under s 44 whether the making of the 1976 roadway orderconstituted an alienation of the Māori reservation over the 1A1 block. But theChief Judge's powers under that section are discretionary and orders may only bemade where, in the opinion of the Chief Judge, it is necessary in the interests of justice to remedy identified mistakes or omissions.[22] Section 44 relevantly provides:44 Chief Judge may correct mistakes and omissions(1) On any application made under section 45, the Chief Judge may, if satisfied that an order made by the court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160, was erroneous in fact or in law because of any mistake or omission on the part of the court or the Registrar or in the presentation of the facts of the case to the court or the Registrar, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission.(2) Subject to section 48 but notwithstanding any other provision of this Act, any order under this section may be made to take effect retrospectively to such extent as the Chief Judge thinks necessary for the purpose of giving full effect to that order.(5) The Chief Judge may decline to exercise jurisdiction under this section in respect of any application, and no appeal shall lie to the Maori Appellate Court from the dismissal by the Chief Judge of an application under this section.[23] The majority in the Māori Appellate Court concluded that the 1976 roadwayorder was for a private roadway and could see no reason why it could not be laid outover a Māori reservation. However, the majority observed that because of thespecial status of Māori reservations, it would only be in the rarest of cases that theCourt would lay out a roadway over such a reservation without the consent of the beneficiaries. The minority judge10 strongly disagreed on this point and with themajority's decision more generally.10 Judge Harvey.[24] As we have already indicated, we do not consider it is necessary or desirable to enter into the debate on the alienation issue. First, we agree with the majority inthe Māori Appellate Court that a cancellation of the 1976 roadway order is not necessary in the interests of justice under s 44 of the 1993 Act. We reach that conclusion whether or not the 1976 roadway order constituted an alienation of the reservation at the time it was made. The lapse of time since the order was made andthe Trustees' acquiescence in the use of the roadway over a lengthy period of timecount strongly against cancellation. Second, the roadway crosses only a small cornerof the Māori reservation and amounts to a minimal intrusion that is capable of beingremedied since the order made by the Māori Appellate Court allows for a variationof the route which could avoid the area of the reservation. Third, the issue is now of historical importance only because the 1993 Act has adopted a different definition of"alienation" than its predecessor in the 1953 Act. In particular, a disposition effectedby order of the Court does not amount to an alienation under the 1993 Act.11[25] We now address the remaining grounds upon which the 1976 roadway order was challenged in the lower courts. These are summarised in the majority decisionin the Māori Appellate Court in these terms:12(a) The application and submissions made by the Deputy Registrar wrongly referred to consents having been obtained at a meeting of owners in 1973;(b) Regarding Rangiwaea 1A2C, only one of the two owners' consentshad been obtained;(c) The Court wrongly assumed that "trustees" had been appointed to Rangiwaea 1A1. The seven persons who provided "consent" were nomore than an informal committee. In total only seven out of 277 owners consented;(d) An error of law in that there is no evidence that one of the two owners in the Rangiwaea 1A1 block, Takiri Taikato, knew of the 1976 hearing. There was a further error of law in that there is noevidence that other than the seven "trustees" that the remainingowners in Rangiwaea 1A1 were notified of the application and hearing.[26] We accept there were some errors of fact in respect of the 1976 roadway application as identified by Judge Clark in his recommendations made to the11 Te Ture Whenua Māori Act 1993, s 4(c)(ii).12 Māori Appellate Court decision, above n 1, at [17].Chief Judge. These focused on the extent to which consents were obtained before the 1976 roadway order was made and the status of those purporting to give consent.We agree with the majority of the Māori Appellate Court that none of these errors affords sufficient grounds to justify a cancellation of the 1976 roadway order.[27] It is not in dispute that s 418(1) of the 1953 Act did not require such consents to be obtained. However, as this Court decided in Coles v Miller, natural justice requires the giving of notice to persons known to be affected by the roadway order.13Mr Koning's argument was that the Trustees appointed at the meeting of May 1973were no more than an informal group who did not have any status to represent thebeneficiaries of the Māori reservation or the 277 owners of the 1A1 block. He alsosubmitted there was no evidence that Mr Takiri Taikato, as part-owner of the 1A2C block, knew of the roadway proposal or consented to it.[28] Addressing the 1A1 block, we note first there were no trustees appointed inrespect of the Māori reservation at the time the 1976 roadway order was made. Norwas the appellant trust established or trustees appointed. This happened in January 1981 in the context of the amalgamation and vesting in the Trustees of a number of blocks of land on the island.[29] Second, the seven persons appointed at the May 1973 meeting as Trustees of the reservation on the 1A1 block all signed the letter of consent we have set out at[13] above. In doing so, they described themselves as the trustees of the Rangiwaea 1A1 Reservation. In the absence of evidence to the contrary, the Court was entitled to treat the signatories to the letter as having authority to represent the beneficiaries of the reservation which then extended to the whole of the 1A1 block. We also consider the Court was entitled in the circumstances to treat the signatories as having the authority to represent the beneficial owners of the 1A1 block since the signatories had been elected at the meeting of the owners called in May 1973.[30] Third, the onus was on the Trustees to demonstrate that the signatories to the letter did not have the authority to represent the owners. There is no evidence to show the owners did not consent.13 Coles v Miller CA25/01, 8 November 2001 at [43].[31] As to the 1A2C block, Mrs Tawhiti, as the majority owner of the block, gave her consent. The onus is on the Trustees to show that the other owner, Mr Taikato, did not consent. No evidence to that effect has been provided.14[32] Mr Koning also submitted that the 1976 roadway order did not encumber the foreshore reservation. However, the 1976 roadway order affects the equitable title to the land comprising the 1A2C block pending registration of the roadway.15 The later registration of the foreshore reservation over this block cannot defeat the prior equitable interest arising from the 1976 roadway order, the existence of which must have been known by the owners of this block and other relevant parties at the time the foreshore reservation was established.[33] In summary, the alleged errors of fact are not established on the evidence.Even if they were, the majority of the Māori Appellate Court were right to conclude that the interests of justice did not warrant cancelling the 1976 roadway order.[34] We also agree with the majority of the Māori Appellate Court that widerconsiderations supported the conclusion that the 1976 roadway order should not be cancelled. In brief, these were the lapse of time since the 1976 roadway order wasmade without any challenge by the Trustees or otherwise; the Trustees' acquiescencein the use of the roadway over a lengthy period until the dispute with Mr Shaw arose in 2003; the fact that the Trustees had developed papakāinga housing in the fullknowledge of the existence of the roadway; the ability to establish a new route that would avoid the small corner of the reservation on the 1A1 block currently traversed by the roadway; the benefits of the roadway hitherto enjoyed by the Trustees; the fact that other owners on the island including Mr Shaw would be denied use of the only wharf and barge ramp on the island, contrary to the original intention that the roadway would be for the benefit of all owners on the island; the Trustees' offer of alicence to Mr Shaw for a defined time period does not meet the long term needs of Mr Shaw and his successors; the absence of effective practical access for Mr Shaw to14 No issue of alienation of a Māori reservation arises in relation to the 1A2C block. A foreshorereservation gazetted in July 1993 affected the 1A2C block but it was not in place at the date of the 1976 roadway order.15 Maori Affairs Act 1953, s 36(3) and Te Ture Whenua Māori Act 1993, s 123(5).his property; and his willingness to pay for the costs of any necessary survey toimplement the Māori Appellate Court orders.Result[35] For these reasons:(a) The appeal is dismissed.(b) The appellants must pay the respondent's reasonable disbursements including travel, accommodation, photocopying and incidental expenses, to be fixed if necessary by the Registrar.Solicitors:Koning Webster, Papamoa for Appellants