Minute Book: H 109 21

IN THE MAORI LAND COURT OF NEW ZEALAND W AIKATO-MANIAPOTO DISTRICT

A20060004384

Hearing:

Judgment:

UNDER Sections 19(1)(a) and 20(d) of Te Ture Whenua Maori Act 1993

IN THE MATTER OF Wharekawa 5B South 4Bl and Wharekawa 5B South 4B2B2B2 - Injunction and Recovery of Land

APPLICANT Mr Ian Brian Joe Thompson

7 March 2006

3 April 2006

RESERVED JUDGMENT OF JUDGE S TE A MILROY

[1] The trustees of Wharekawa 5B South 4B2B2B2 and Wharekawa 5B South 4Bl

applied to the Court for orders under section 19(1)(a) and section 20(d) ofTe Ture Whenua

Maori Act 1993 in respect of John Andre Oppert a beneficial owner of shares in the

abovementioned blocks. Wharekawa 5B South 4Bl is a block comprising 18.2108 hectares,

with a total of 1 share. Wharekawa 5B South 4B2B2B2 is a block comprising 99.4937

hectares, with a total of 2050.569 shares. Mr Oppert was a trustee of the block but he

resigned on 30 December 2005 and an order under section 239 in respect of his resignation

was made by the Court on 7 March 2006.

[2] Early in 2003 Mr Oppert moved a bus onto the land and began occupying it. Some

time in either December 2005 or January 2006 Mr Oppert moved a dwelling onto the land.

There is no dispute that he did not have the consent of the current trustees to the dwelling

being sited on the land. Nor did he obtain the required consents from the Franklin District

Council in respect of the Building Act and the Resource Management Act.

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[3] The trustees received a letter dated the 19th January 2006 from the Franklin District

Council requiring the trustees to take urgent action to remedy the situation by either removing

the dwelling or applying for and obtaining building permits and other consents.

[4] The trustees also received complaints from the current lessee of the land that Mr

Oppert's occupation of the land was disturbing the lessee's possession and use of it. In

particular the lessee complained that Mr Oppert's family resided in the middle of the farm and

that the level of traffic and number of people using the driveway to visit Mr Oppert's family

were causing delays and difficulties. The lessee refered to the fact that gates were not left as

they were found and that Mr Oppert had locked gates, intending to keep the stock and farm

secure, but that a misunderstanding occurred and trucks that were delivering pregnant stock to

the farm were locked out for a period of time until a key could be found to unlock the gates.

[5] The matter was heard on the i h March 2006. The Court became aware that the

trustees had not issued a formal notice to Mr Oppert asking him to vacate the land, although

Mr Oppert had been aware for some time that the trustees wished to remove him. Mr Oppert

also asserted that he had the consent of the previous trustees and beneficial owners to his

occupation of the block but he produced no documentary or other evidence of that at the

hearing. The trustees produced an e-mail from Te Aomarama Wilson, a previous and current

trustee, which set out her understanding of the context surrounding consent to Mr Oppert's

moving the bus on to the site.

[6] In the circumstances the Court issued directions to the trustees to obtain an affidavit

from Te Aomarama Wilson confirming her e-mail. Directions were given to Mr Oppert to

provide documentary evidence of the consent of the trustees and owners to his occupation.

The documents were required to be filed with the Court by the 21 st March 2006.

[7] I also note that the trustees have now served on Mr Oppert a formal notice requiring

him to leave the land.

Submissions for the Trustees

[8] The submissions for the trustees set out the grounds for the application as follows:-

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(a) Mr Oppert moved the dwelling and various sheds onto the property without the

knowledge or consent ofthe trustees.

(b) Te Aomarama Wilson who has been a trustee since 2001, provided an affidavit

confirming her e-mail advice that, as she recalled, the reason for Mr Oppert to

occupy the land was that it was short-term makeshift accommodation to monitor

the progress of the then lessee.

(c) The current trustees had leased the land to the current lessee in 2005 at an

extremely good rental and with no provision for occupation of the block by Mr

Oppert.

(d) The trustees were most concerned that the current lessee be left undisturbed in

his possession and use of the block.

(e) The trustees' long-term plan is to obtain sufficient finance from the leasing

arrangements in order to fund the purchase and development of land that could

be used for a papakainga.

(f) Other owners also wished to occupy the block and to allow one owner to occupy

was not in the best interests of all the other owners.

(g) Mr Oppert's moving of the building onto the block was illegal because he did

not obtain the necessary consents from the District Council for the erection of the

dwelling on the block.

Submissions for John Oppert

[9] John Oppert filed a document titled a "statement of defence", dated the 20th March

2006. His grounds for asking that the application be dismissed are as follows:-

(a) The grounds of the application do not pertain to section 19(1)(a) or section 20(d).

(b) He relies on his unextinguished native aboriginal right and native aboriginal title

for his right of occupation.

(c) The land has been registered with Te Wakaminenga 0 Nga Hapu 0 Nu Tireni on

the 6th February 2006 and that group has protectorate authority over the lands.

(d) He has the consent of two other owners besides himself, plus the consent of a

beneficiary under a whanau trust, and the son of one of the trustees to his

occupation of the block.

(e) Copies of minutes of meetings of the Trust showed consent to his occupation and

development of a papakainga.

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[10J Mr Oppert also applied for termination of the Trust for failing to uphold their

obligations in terms of the preamble of Te Ture Whenua Maori Act 1993. This application

was not accompanied by the necessary fee, nor were there any documents in support of the

application.

[11] I deal with Mr Oppert's submission regarding sections 19(1)(a) and 20(d) later on, but

his other submissions are discussed immediately below.

Native Aboriginal Right and Title & Te Wakaminenga 0 Nga Hapu 0 Nu Tireni

[12J Mr Oppert relies on unextinguished native aboriginal right or title to support his

occupation of the land. What ever his native aboriginal right or title might have been the land

was brought under the jurisdiction of what is now the Maori Land Court, when the original

investigation of title and determination of original owners of the land was done by the Native

Land Court. His native aboriginal right and title has therefore been subsumed by the Maori

Land Court title, and the rights and interests he now has stem from his shareholding in the

blocks and are defined in Maori land legislation, in particular Te Ture Whenua Maori Act

1993. Similarily the rights, authority and responsibilities of the trustees stem from their

appointment as trustees by the Maori Land Court pursuant to T e Ture Whenua Maori Act

1993.

[13] In respect of Mr Oppert's assertion that the land has been registered with Te

Wakaminenga 0 Nga Hapu 0 Nu Tireni, which he asserts has protectorate authority over the

land, Mr Oppert has given no legal basis upon which this Court can take into account this

registration or the protectorate authority ofTe Wakaminenga 0 Nga Hapu 0 Nu Tireni. Nor

has he made any arguments or shown any legal grounds that might alter his legal position in

respect of the land. The jurisdiction of the Maori Land Court is set out in Te Ture Whenua

Maori Act 1993 and there is no provision in it for recognition of any authority claimed by Te

Wakaminenga 0 Nga Hapu 0 Nu Tireni. This Court is therefore unable to take account of

Mr Opp ert , s assertions on these matters.

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Consent of Owners to Occupation

[14] The owners of Wharekawa 5B South 4Bl consenting to Mr Oppert's occupation of

this block, including himself, hold 0.0732 shares out of 1 share, not including shares of

whanau trusts where a majority of whanau trust trustees have not given consent. The owners

of Wharekawa 5B South 4B2B2B2 consenting to Mr Oppert's occupation of the block,

including himself, hold 143.541 shares out of 2050.569 shares, not including shares of

whanau trusts where a majority of the trustees have not given consent. In percentage terms

about 7% of owners consent to Mr Oppert's occupation. However the Court staff were

contacted by one of the consenting owners who advised that she had signed the consent

without knowing the full background and queried whether her consent could be withdrawn.

She has not withdrawn her consent in writing, but the Court must look at that consent as being

equivocal. I also note that these consents were given after the hearing on the 7th of March.

[15] The trustees opposing Mr Oppert's occupation are also shareholders in their own right

and/or as members of whanau trust shareholders. The shares owned by the trustees, not

including whanau trust holdings, amount to 0.08 in the 4Bl block and 269.994 in the

4B2B2B2 block. If consent or opposition by the owners to the occupation by Mr Oppert is

relevant to the decision in this case the trustees out-vote Mr Oppert and his supporters.

Minutes of Meeting

[16] Mr Oppert filed a series of minutes of trustee meetings dating back to the 13th May

2001 and finishing on the 23rd February 2003. In chronological order the minutes show the

following:

(a) Minutes of 13th May 2001 - noted that Mr Oppert has bought a bus and would

like to put it on the "bach site", on the land.

(b) Minutes of 12th August 2001 - a resolution moved that the bus be moved to the

bach site.

(c) Minutes of 8th December 2002 - Mr Oppert moved that the bus be moved to the

farm and "to have Wayne accommodate." These minutes also refer to the bach

site and make the statement that "proposals towards building should contain a

building plan e.g financing, consents etc."

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(d) Minutes of 23rd February 2003 - Minutes note that Mr Oppert has moved the bus

to the back of the farm and is presently occupying. The minutes also note a

request from Mr Oppert for rental and that a letter is to be written to him. No

such request or letter was produced to the Court and it appears this was not done.

[17] The other minutes annexed to Mr Oppert's statement of defence simply refer to the

fact that the Trust was considering the possibility of a papakainga being established on the

land. The references were very brief and showed no clear and definite plans for the

establishment of the papakainga, mainly due to the Trust's lack of finance.

[18J The minutes regarding Mr Oppert's occupation are scanty but it is clear that although

permission was given to Mr Oppert to move a bus onto the site there was no permission to

move a house onto the land. The minutes are insufficient to show that Mr Oppert was given

permission to occupy the land permanently and there is no documentary evidence of a lease or

licence to occupy having been formally prepared or signed.

[19] Three ofMr Oppert's supporters state that the minutes of meeting are incomplete and

Mr Oppert's occupation was agreed. However, one of these supporters admits he did not

attend the meeting, and one is not shown in the minutes as having attended the meeting in

which reference was made to Mr Oppert's occupation. Given the importance of the matter I

would have thought that if agreement was given to permanent occupation that would have

been noted in the minutes. It was not so noted and I therefore have grave doubts that consent

was given to permanent occupation by Mr Oppert.

The Law

[20] Section 19 sets out the Court's jurisdiction in respect of injunctions. It states:

19 (1) The Court, on application made by any person interested or by the Registrar

of the Court, or of its own motion, may at any time issue an order by way of injunction -

(aJ Against any person in respect of any actual or threatened trespass or other injury to

any Milorifreehold landf,Milori reservation, or wilhi tapuj; or

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(b) Prohibiting any person, where proceedings are pending before the Court or the

Chief Judge, from dealing with or doing any injury to any property that is the subject­

matter of the proceedings or that may be affected by any order that may be made in the

proceedings; or

(c) Prohibiting any owner or any other person or persons without lawful authority from

cutting or removing, or authorising the cutting or removal, or otherwise making any

disposition, of any timber trees, timber, or other wood, or any flax, tree ferns, sand,

topsoil, metal, minerals, or other substances whether usually quarried or mined or not,

on or from any Maori freehold land; or

(d) Prohibiting the distribution, by any trustee or agent, of rent, purchase money,

royalties, or other proceeds of the alienation of land, or of any compensation payable in

respect of other revenue derived from the land, affected by any order to which an

application under section 45 of this Act or an appeal under Part 2 of this Act relates.

(2) Notwithstanding anything in the Crown Proceedings Act 1950, any injunction made

by the Court under this section may be expressed to be binding on the Maori Trustee.

(3) Any injunction made by the Court under this section may be expressed to be of

interim effect only.

(4) Every injunction made by the Court under this section that is not expressed to be of

interim effect only shall be of final effect.

[21] Section 20(d) gives jurisdiction to the Court to hear actions for recovery ofland. It

states:

20 Notwithstanding anything to the contrary in the District Courts Act 1947, the Court

shall have jurisdiction to hear and determine any proceeding for the recovery of Ma.ori

freehold land in the following cases ...

d) Where any person without right, title, or licence is in possession of any Ma.ori

freehold land.

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Case Law

[22] In Proprietors of Parininihi ki Waitotara Blocks v Manuirirangi & Anor (CP 18/99

High Court, New Plymouth Registry 31 October 2003) the Court made statements concerning

ownership rights and obligations in Maori freehold land. These statements were adopted by

Judge Harvey in Waitara SD Section 6 & 91 (155 AOT 269-275), at 273 and are as follows:

"Ownership

[J5J The first issue is whether or not PKW has rights of occupation and possession of

the land superior to any other party. Mr Manuirirangi's statement of defence asserts a

statutory right to the land pursuant to Te Ture Whenua Maori Act 1993. He relies on his

membership of the Ngati Tu hapu and its ancestral rights of ownership and possession.

[J6J Mr Lawrence developed this argument in opening submissions. While accepting

that PKW has legal title to the land, he submitted that ss 260 and 261 Te Ture Whenua

Maori Act created an equal or superior beneficial interest in Mr Manuirirangi and all

other PKW shareholders in all pieces of land of which the incorporation is the legal or

registered owner. Both provisions are of a declaratory nature,· s 260 deems the shares in

a Maori incorporation ' .. for all purposes ... ' to be undivided interests in Maori freehold

land, and s 261(1) deems an alienation of shares in a Maori incorporation to be an

alienation of the shareholder's equitable interest in the land and other assets then vested

in the incorporation. Mr Lawrence placed particular emphasis on the breadth of s 260,

and its extension to 'all purposes " not just to those relevant to the Act. He submitted

also that an absolute statutory right to the land was consistent with the overall scheme of

the ownership arrangements and the fact that prior to PKW's incorporation all land was

held on trust for the various owners.

[J7J Mr Lawrence later acknowledged the practical anomalies inherent in his

proposition. The Winks Road farm is a small part of a total area of 277.48 hectares

throughout Taranaki contained in one certificate of title. If followed to its logical

conclusion, Mr Lawrence's argument would allow Mr Manuirirangi an absolute and

unfettered right of physical access to any of the other land contained within the same

title, regardless of whether or not he had ancestral links with it. That result could not

possibly conform with the relevant statutory regime.

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[18] Mr Lawrence did not maintain this argument in closing. In my judgment it was

unsustainable. SS 260 and 261 do no more than recognise that shares in a Maori

incorporation constitute undivided interests in Maori freehold land of an equitable

nature. They do not create in a shareholder rights of ownership or possession of a

particular piece of land and are consistent with PKW's status as trustee of the interests

of those shareholders, and as registered proprietor of all lands in that capacity. There

is no conflict between the relevant statutory provisions ... "(Emphasis added)

[23] I also refer to comments made by His Honour Judge Harvey earlier in that decision

which are as follows:

"[Ms Eriwata] believes that as an owner in the Land she has the right to remain there

without the consent of the trustees. Ms Eriwata has complained to the Court that the

trustees are responsible for the mal-administration of the Land and consequently should

be taken to taskfor what she considers are serious breaches of trust. In her view she has

a legal right to occupy, regardless of the views of the trustees and other owners, and

should not have to move on account of their directions. Ms Eriwata also stressed that

the current occupier of the land, Mr Honeyfield, was content for her to remain.

Conversely, the trustees belive that they have done all they can to accommodate her

requests but, like the owners, do not support her staying on the Land. In their view, the

steps they have taken are lawful, appropriate and in the best interests of all the beneficial

owners. They argue that the economic viability of the Land is being eroded by Ms

Eriwata's unlawful occupation. To permit her to remain, they contended, would not only

result in losses for the other owners but might act as encouragement to others to take

matters into their own hands and occupy the Land wihtout the approval of the trustees.

Disgruntled owners could then seek remedies against the trustees for failing to preserve

the trust property and ensure that it is being used properly and in the interests of all

beneficial owners, not just one. In addition, Mr Honeyfield had told them that he did not

want to enter into any long-term arrangement with the trustees without vacant

possession of the land. Having considered their respective positions I am satisfied that

the substance of each parties' case has now been put before the Court and that a final

decision is now appropriate.

One of the essential features of Maori land is its communal nature. This includes both

rights and obligations bound up in a community of interests linked primarily through

whakapapa and historical association with the land spanning several generations. I

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therefore do not accept Mr Allen's submissions that Ms Eriwata is entitled to carve out

her interests in the Land except through due process of law as set out in the Act. Those

steps have not been taken and until they are Ms Eriwata remains an owner of shares in

Maori freehold land, along with a number of her whanaunga. That ownership, as

mentioned, does not entitle her to occupy the Land without the consent of the trustees

and the other owners. Without that agreement, the inevitable outcome of these

proceedings is the granting of the application for injunction to remove Ms Eriwata, her

personal property and possessions from the Land.

Ms Eriwata has no right to occupy the Land without the consent of the trustees. The

trustees are the legal owners of the Land. They are the administrative representatives of

the beneficial owners and must act for the latter's benefit according to the general

principles of trust law and in terms of the trust order. That is their duty. If any person

holding shares in Maori freehold land were permitted to occupy or otherwise use Maori

land in the face of wholesale opposition from the trustees and other owners the result

would be chaos."

[24] Judge Harvey's decision was upheld on appeal to the Maori Appellate Court in In the

Matter ofWaitara SD sections 6 & 91 Land Trust, Eriwata v Trustees ofWaitara SD Sections

6 & 91 Land Trust, 15 WGAP 192-197. The Appellate Court said at folio 193:

U[5J When trustees are appointed to an Ahu Whenua Trust, they take legal

ownership. The owners in their shares, in the schedule of owners, have beneficial or

equitable ownership but do not have legal ownership, and do not have the right to

manage the land or to occupy the land. Trustees are empowered and indeed required to

make decisions in relation to the land and they are often hard decisions. Their power

and obligation to manage the land cannot be overriden by any owner or group of owners

or even the Maori Land Court, so long as the trustees are acting within their terms of

trust and the general law, and it reasonably appears that they are acting for the benefit

of the beneficial owners as a whole. A meeting of owners cannot override the trustees.

Decisions to be taken for the land are to be the decision of the trustees. They decide who

can enter and who can reside there and how the land is managed. JJ

[25] Later at folio 194-195 the Appellate Court said:

"Trustees' right to an Injunction

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[8] As a matter of general law, when legal ownership is vested in trustees they are

prima facie entitled to an injunction if the land is trespassed upon whether by beneficial

owner or not. It is for them to control the Land. They have a power to permit

occupation. That is the power that is vested in them. It is not vested in the Court, and so

long as they are acting within the terms of their Trust Order, then the Maori Land Court

will not interfere. The Appellant pointed to various provisions within the Trust

Order,that related to the power to permit occupation and enjoyment by the owners and

referred to the provisions in Te Ture Whenua Maori Act 1993, that relate to papakainga

housing. We remind ourselves that it is not every objective in a trust order, or power in

a trust order, or objective in legislation that can be met in any particular case.

Sometimes the circumstances of the owners or the nature of the land do not permit this

and sometimes it is the general political atmosphere that makes it unrealistic. It is not

sufficient for the Appellant to show that the Respondents have failed to exercise any

particular power. She would have to show that the Respondent Trustees had turned their

face from that possibility in an unreasonable and improper manner. There is no

evidence of that and the Trustees simply wish to let the block as a whole. The Trustees

are entitled to an injunction against the Appellant, unless there is some matter which

should have moved the Lower Court to exercise its discretion to the contrary. JJ

[26] In summary the trustees have the right and responsibility to decide whether an owner

or anyone else may occupy the land and the terms and conditions of that occupation. A

beneficial owner may not enter and occupy the land simply by virtue of his or her ownership

and that is not affected by the fact that a number of other owners consent to the occupation.

Discussion

[27] I accept as law the comments made by Judge Harvey and the Appellate Court in the

abovementioned case. The trustees are the legal owners of the land and have the right and

responsibility to administer the land in the best interests of all the beneficiaries. In this case

they have, as they are entitled to do, made a decision that the best interests of the beneficiaries

are served by leasing the land in order to obtain funds to finance further development in the

future for the beneficiaries. It is understandable that they have no wish to upset a lessee they

consider to be paying a good rental and to be a good lessee. The trustees are also entitled to

determine who may occupy the block, and in this case it is quite clear that the current trustees,

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while they may have accepted a temporary occupation of the block by Mr Oppert, certainly

have not agreed to a permanent occupation. That Mr Oppert intends his occupation to be

permanent is made very obvious by his actions in moving a dwelling onto the block and by

the stance he has taken in opposition to the applications.

[28J There is one significant difference between Mr Oppert's situation and that of the

respondent in the Waitara SD Section 6 & 91 case. Mr Oppert did have the permission of the

previous trustees to move a bus onto the land. While he asserts that the permission was for a

permanent occupation, the minutes of meetings where this matter was discussed do not show

an intention on the part of the trustees that the occupation be permanent. Moreover, the

consent was to a bus being moved onto the land. That in itself indicates a far from permanent

occupation was intended. I also accept the evidence of Te Aomarama Wilson, who was a

trustee at the time and present at the meetings, that the consent shown in the minutes of

meeting was to a temporary arrangement in order to supervise the then lessee.

[29] In respect of the owners' consents Mr Oppert has collected to support his occupation,

these represent only 7% of the shareholding of the block, and were not obtained an at owners'

meeting. The trustees on their own account represent a considerable shareholding and I am

by no means convinced that Mr Oppert would obtain a majority of shareholders' consents if a

meeting of owners was held.

[30] Despite the consent of the owners, the legal responsibility and authority for any

occupation of the block rests with the trustees by virtue of the trust order. They have not

granted a licence to occupy, nor has Mr Oppert obtained an occupation order from the Court.

That being the case Mr Oppert is not entitled to occupy the block or to erect a dwelling on it.

Any temporary licence he may have had terminated when the trustees gave him notice to

leave the property. He is therefore a trespasser on the land in the same way that Ms Eriwata

was a trespasser despite also being a shareholder in the block.

Decision

[31J That being the case the Court grants the application for an injunction under section

19(1)(a). The injunction is to be a permanent injunction. Mr Oppert is therefore required to

vacate the land. The application for an order under section 20( d) is not required, given that

the injunction has been granted. Mr Oppert's application for a termination of the trust is

Minute Book: H 109 33

dismissed on the grounds that the application was in the nature of retaliatory action against the

trustees for their application. The trustees have succeeded in their application and Mr

Oppert's application must therefore fail.

Pronounced at Hamilton this ~cJ day of AF'~\ 2006.

S Te A Milroy JlJDGE