341 Aotea MB 164

IN THE MĀORI LAND COURT OF NEW ZEALAND

AOTEA DISTRICT

A20150003293

UNDER Sections 151 and 158 of Te Ture Whenua

Māori Act 1993

IN THE MATTER OF Owhaoko D 6 Subdn 3

BETWEEN HERBERT STEEDMAN, RAINA RAUMATI,

PETER STEEDMAN, PATRICIA CROSS,

TERENCE STEEDMAN, MERVYN

STEEDMAN, WENDY NICHOLSON and

DAVID STEEDMAN JUNIOR as trustees of

the KARARAINA STEEDMAN WHĀNAU

TRUST

Applicants

AND NATHAN APATU

Respondent

Hearings: 339 Aotea MB 274 - 295 dated 14 July 2015

Appearances: C Bennett for the Applicants

T Bennion for the Respondent

Judgment: 31 August 2015

RESERVED JUDGMENT OF JUDGE L R HARVEY

Solicitors: Ms Cara Bennett, Langley Twigg, PO Box 446, Napier cara@langleytwigg.co.nz

Mr Tom Bennion, tom@bennion.co.nz

341 Aotea MB 165

Contents

Introduction [1]

Issues [6]

Background [7]

Procedural history [14]

The Law [16]

Has the instrument of alienation been executed and attested correctly? [19]

Applicant’s submissions [21]

Discussion [22]

Is the alienation in breach of any trust [26]

Applicant’s submissions [27]

Respondent’s submissions [29]

Discussion [30]

Is the consideration is adequate? [34]

Applicant’s submissions [34]

Respondent’s submissions [35]

Discussion [36]

Have the alienating owners discharged the obligations per s 147A of the Act? [37]

Applicant’s submissions [37]

Respondent’s submissions [42]

Discussion [47]

Descendant of a former owner who is or was a member of the hapū associated [66]

with the land

The family trust [68]

What regard should be had to the Apatu Whānau offer? [74]

Respondent’s submissions [74]

Applicant’s submissions [77]

Discussion [78]

Decision [95]

341 Aotea MB 166

Introduction

[1] By application dated 23 May 2015 the trustees of the Kararaina Steedman Whānau

Trust seek confirmation of the alienation of Owhaoko D 6 Subdn 3 to Richard Hall for $1.2

million, per s 151 of Te Ture Whenua Māori Act 1993.

[2] The trustees accepted a conditional offer from Mr Hall on 19 November 2014. The

agreement was conditional on purchaser due diligence and confirmation of the alienation. It

is said that Mr Hall has now satisfied the due diligence condition and the only remaining

condition is the confirmation of alienation. Mr Hall has nominated the Richard Hall Trust

(“the family trust”), by deed of nomination dated 21 April 2015, to complete the purchase.

[3] The application is opposed by Norman Apatu and whānau (“the Apatu Whānau”) on

the basis that they have been in negotiations with the applicants over access to the land and

have previously expressed an interest in purchasing.

[4] Richard Steedman also filed an objection concerning the proposed sale.

[5] A hearing was held on 14 July 2015, following which I adjourned the application to

give the Apatu Whānau one month to file written submissions and thereafter I would issue a

reserved decision on the matter. Submissions were received from the Apatu Whānau on 18

August 2015. They have also filed a counter offer to purchase the block.

Issues

[6] The issue for determination is whether the Court should grant the confirmation of

alienation, and in doing so it is necessary to consider a number of relevant questions:

(a) Has the instrument of alienation been executed and attested correctly?

(b) Is the alienation in breach of any trust?

(c) Is the consideration adequate?

(d) Have the alienating owners discharged the obligations per s 147A of the Act? and

(e) What regard should be had to the Apatu Whānau offer?

341 Aotea MB 167

Background

[7] The original Owhaoko block comprised approximately 163,000 acres situated in a

remote area of the central North Island between the Taihape region and Hawkes Bay.1 The

first investigation of title commenced in 1875 with a large part of the block being set apart as

a school endowment at the request of Renata Kawepo, a prominent Hawkes Bay chief. In

1885 further partitions were sought based on iwi and hapū affiliations. The bulk of the lands

were awarded to Renata Kawepo’s group of owners.

[8] Following that partition, Owhaoko was subject to political controversy with a

Parliamentary Committee being established to look into claims regarding the investigation of

title. The Committee concluded that a rehearing of the Owhaoko blocks was required. The

reinvestigation was heard in 1887 following which the block was divided into three

divisions: Owhaoko North was awarded to Ngāti Tūwharetoa, Owhaoko East to Ngāti Whiti

and Owhaoko West to Ngāti Tama.2

[9] On 10 October 1888 a rehearing was held and the block was partitioned for a third

time into four allotments: Owhaoko A to Ngāti Kurapoto and Ngāti Maruwahine of Ngāti

Tūwharetoa; Owhaoko B to Ngāti Tama; Owhaoko C to Ngāti Upokiri, Ngāti Hinemanu and

Owhaoko D to Ngāti Whiti and Ngāti Whititama.3 Orders to that effect were issued on 4

September 1893.

[10] Owhaoko D No 6 Subdn 3 was created by partition order on 15 June 1899 and

vested in Raumaewa Retimana solely.4 The block comprises 556.4427 hectares and is

landlocked with no formal access.

[11] Waina Pango, Rangimarie Pango and Whatu Pango subsequently succeeded to the

interests of their father Raumaewa Retimana also known as Raumaewa Te Rango in the

land.5 They then vested their shares in Kararaina Steedman who become the sole owner.

6

The minutes disclose that Kararaina Steedman was a first cousin of Waina, Rangimarie and

1 Richard Boast The Native Land Court A Historical Study, Cases and Commentary 1862-1887

(Brookers Ltd, Wellington, 2013) at p 1079 2 Ibid at p 1083

3 Ibid

4 41 Whanganui MB 110 (41 WG 110)

5 54 Tokaanu MB 382 (54 ATK 382)

6 8 Tokaanu Alienation MB 150 (80 ALTK 150) 59 Tokaanu MB ATK 211-212 (59 ATK 211-

212) and 60 Tokaanu MB 87 (60 ATK 87)

341 Aotea MB 168

Whatu Pango through the maternal line. Owhaoko D 6 Subdn 3 is derived through the

paternal line.

[12] The Kararaina Steedman Whānau Trust became the sole owner of the land upon

succession to Kararaina Steedman on 15 January 1996.7 The current trustees are Herbert

Winiata Steedman, Raina Mokopuna Raumati, Peter Wairehu Steedman, Patricia Anne Te

Kiriwai Cross, Terence Huia Steedman, Mervyn Renata Te Pua O Ti Rangi Steedman,

Wendy Patricia Nicholson and David Waka Steedman Jnr.8

[13] The trust operates with a standard wide powers trust order. Clause 3(b)(v) provides

that the trustees may, upon certain conditions, sell the land if they are unsuccessful in

securing unlimited unrestricted vehicular access.9

Procedural history

[14] The application was filed following a hearing held on 14 April 2015 regarding

proceedings to terminate the trust. Those proceedings were then adjourned to enable the

present application to be filed.10

[15] The substantive hearing was held on 14 July 2015.11

This application was heard

along with the application to terminate the trust. At the conclusion of the hearing I

confirmed that Mr Apatu would have one month to file submissions, following which a

decision would issue.

The Law

[16] Confirmation is sought per s 151 of the Act which provides as follows:

151 Application for confirmation

(1) An application to the court for confirmation of an alienation of any interest

in Maori freehold land may be made,—

(a) in the case of an instrument of alienation, by or on behalf of any

party to the instrument; or

(b) in the case of a resolution of assembled owners, by or on behalf

of any person interested or by the Recording Officer.

7 55 Aotea MB 97 (55 AOT 97)

8 315 Aotea MB 63 (315 AOT 63)

9 20 Tākitimu MB 230-234 dated 6 December 2012

10 335 Aotea MB 262 (335 AOT 262) see A20140012554

11 339 Aotea MB 274 (339 AOT 274)

341 Aotea MB 169

(2) The court may decline to consider an application for confirmation if it is

made,—

(a) in the case of an instrument of alienation, later than 3 months after

the date on which the instrument was executed by the alienor or,

where the land is situated in the Chatham Islands, later than 4

months after that date; or

(b) in the case of a resolution of assembled owners, earlier than 14

days or later than 12 months after the date on which the resolution

was passed.

(3) Notwithstanding subsection (2)(a), where an instrument of alienation is

executed at different times by different parties alienating, successive

applications for confirmation may be made in respect of the successive

executions of the instrument, and the alienation may be confirmed from

time to time accordingly.

[17] Section 152 provides:

152 Court to grant confirmation if satisfied of certain matters

(1) The court must grant confirmation of an alienation of Maori freehold land if

it is satisfied—

(a) that,—

(i) in the case of an instrument of alienation, the instrument

has been executed and attested in the manner required by

the rules of court; or

(ii) in the case of a resolution of assembled owners, the

resolution was passed in accordance with this Act or

regulations made under this Act; and

(b) that the alienation is not in breach of any trust to which the land is

subject; and

(c) that the value of all buildings, all fixtures attached to the land, all

things growing on the land, all minerals in the land, and all other

assets or funds relating to the land, has been properly taken into

account in assessing the consideration payable; and

(d) that, having regard to the relationship (if any) of the parties and to

any other special circumstances of the case, the consideration (if

any) is adequate; and

(e) that the purchase money (if any) has been paid to, or secured to

the satisfaction of, the Māori Trustee or court appointed agent or

trustees in accordance with section 159; and

(f) that, if section 147A applies to the alienation, the alienating

owners have discharged the obligation in that section.

(2) Before granting confirmation, the court may, with the consent of the

parties, vary the terms of the instrument of alienation or resolution.

(3) The Maori Land Court may confirm an alienation to a person of any Maori

freehold land that is, or is part of, an overseas investment in sensitive land

within the meaning of the Overseas Investment Act 2005 only if consent to

that investment has been obtained, or an exemption from consent applies,

under that Act.

341 Aotea MB 170

[18] The Court must therefore grant confirmation if the conditions are satisfied.12

Has the instrument of alienation been executed and attested correctly?

[19] Section 152(1)(a)(i) of the Act provides that in the case of an instrument of

alienation, the Court must be satisfied that the instrument has been executed and attested in

the manner required by the rules of court.

[20] Rule 11.10 of the Māori Land Court Rules 2011 (“the Rules”) provides:

11.10 How instrument of alienation of interest in Māori freehold land must

be signed and witnessed

(1) An instrument of alienation of an interest in Māori freehold land must—

(a) be signed by each of the parties to be bound by it; and

(b) state the date on which each of the parties signed it.

(2) If the instrument is signed on different dates by several alienors, the date of

execution for the purposes of section 151(2)(a) of the Act is the date on

which the instrument was first signed by an alienor.

(3) The signature of an alienor signing the instrument in New Zealand must be

witnessed by a person 20 years old or more who is not a member of the

alienor's immediate family and not an owner of the land alienated.

…

(6) The Court may confirm an alienation that has not been witnessed in

accordance with this rule if—

(a) the alienor appears before the Court and confirms that he or she has

signed the instrument of alienation; or

(b) suitable evidence is adduced in the Court that establishes that the

alienor has signed the instrument of alienation; or

…

Applicant’s submissions

[21] Ms Bennett for the applicant submitted that the requirements of s 152(1)(a)(i) have

been met. Counsel says that the standard Auckland District Law Society sale and purchase

agreement does not provide for witnessing and accordingly that agreement has not been

witnessed. However, counsel pointed out that the Authority & Instruction Forms (“A & I

Forms”) have been signed and witnessed consistent with r 11.10 of the Rules. Counsel

added that the trustee who signed the sale and purchase agreement did so with the authority

of the other trustees and both the applicant and the purchaser were legally represented.

12

Loach v Bidois – Matarikoriko No 7B2A (2015) 336 Aotea MB 182 (336 AOT 182) and Taueki

- Horowhenua X1B41 North A3A and 3B1 (2008) 16 Whanganui Appellate Court MB 30 (16

WGAP 30)

341 Aotea MB 171

Discussion

[22] The sale and purchase agreement is signed by only one of the trustees. Under s 227

of the Act, every instrument to be registered under the Land Transfer Act 1952 is required to

be executed by all the trustees.

[23] Given that LINZ now operates in an electronic environment the Court must

determine what “instrument/s” require confirmation. Requirements around instruments

considered alienations under the Act are provided for in issue 144 of the New Zealand

Gazette 2008.13

According to the Gazette, for proceedings per s 150 a confirmation

certificate per s 151 is required and the relevant instrument is the transfer instrument.

[24] In Short – Pukeroa Oruawhata the Māori Appellate Court noted that s 227(2) is

clearly aimed at clarifying what is needed for execution of land transfer documents in the

light of the somewhat novel or innovative provision for majority decision of trustees.14

Within the Land Transfer System all trustees are entered on the appropriate title as registered

proprietors thereof and are required to execute documents affecting that title. The subsection

reinforces this.

[25] Strictly speaking, the sale and purchase agreement has not been executed by all of

the trustees since only one of the trustees has signed. The remedy would be for all trustees

to sign or at least a majority. There is no dispute that the trustees supported by the great

majority of their beneficiaries wish to sell. The agreement contains the signature of Mr Hall

as purchaser when confirmation is sought to the family trust. With that in mind, I also have

regard to the LINZ requirements and consider that when the documents are viewed in its

entirety the sale and purchase agreement and A & I Forms provide evidence of the intention

of the parties to execute the sale. On balance I am satisfied that the condition set out in s

152(1)(a)(i) of the Act has been met.

Is the alienation in breach of any trust?

[26] Section 152(1)(b) of the Act requires that the Court be satisfied that the alienation is

not in breach of any trust to which the land is subject. As previously mentioned the trust is

the sole owner of the block.

13

New Zealand Gazette; 2008, Issue 144 Statutory Requirements, Forms of Electronic

Instruments, and Requirements for the Retention of Evidence at 3929-3930 14

Short – Pukeroa Oruawhata Trust (1997) 1 Waiariki Appellate Court MB 86 (1 AP 86) at 91

341 Aotea MB 172

Applicant’s submissions

[27] Ms Bennett submitted that per cl 3(v) of the trust order the trustees have the power

to sell. Counsel further contended that the purchase price is in excess of the current roll

valuation of the block and confirmed that there has been continual communication with the

beneficiaries of the whānau trust. Ms Bennett also submitted that the evidence confirmed a

meeting was held on 28 February 2015 to obtain beneficiary support for the sale. The hui

was duly advertised and 75 per cent of beneficiary consent to the sale was obtained. The

trustees also acknowledged the objection filed by Richard Steedman.

[28] Ms Bennett further submitted that the Court should have particular regard to the

support of those persons who would have succeeded to Kararaina Steedman but for the

establishment of the whānau trust.

Respondent’s submissions

[29] Mr Bennion submitted that the Court should consider that the Apatu Whānau have

offered to purchase the block for $60,000.00 more than Mr Hall. Counsel contended that the

trust has obligations to its beneficiaries and the trustees are subject to trust law requirements

and a choice of a lower offer might be subject to challenge by the beneficiaries.

Discussion

[30] It is not in dispute that the trustees have the power to sell. They have worked closely

with Mr Hall to complete the sale. I am satisfied that the instrument is not in breach of the

whānau trust. In addition, the evidence confirms that there is majority support for the sale

from the trust’s beneficiaries.

[31] According to the case manager’s report, evidence of beneficiary support for the sale

has been filed with reference to:

(a) Whānau trust meeting minutes of 28 February 2015 record at page 1 that “…of the 45

beneficiaries contacted only 2 don’t support the sale.” Meeting advertised in the

Wanganui Chronicle on 13 February 2015.

341 Aotea MB 173

(b) Whānau trust meeting minutes of 23 March 2015 record at page 1, (3)(a) that

“Amendment to change the number of beneficiaries not supporting sale of Owhaoko D6-

3 from 2 to 1.”

(c) List of beneficiaries supporting or opposing sale. This list indicates that 8 beneficiaries

did not provide a response, 1 beneficiary opposed and 36 beneficiaries supported the

sale.

[32] The case manager’s report also records that there were whānau trust meetings held

on 28 February and 23 March also discussed the termination of the trust. The beneficiaries

present at the meeting of 28 February resolved unanimously to terminate the trust. The

evidence also confirms that the meeting was advertised in the Wanganui Chronicle on 13

February 2015. A list of beneficiaries supporting or opposing the termination of the trust

confirmed that 8 did not provide a response, 1 was opposed and 36 supported termination.

[33] In any case, I note that the Apatu Whānau offer has not formally been put to the

trustees and therefore I have no evidence of their support or opposition to the agreement or

of any of the views of the beneficiaries. For completeness, I note that at the last hearing Mr

Apatu did confirm that his whānau would be making an offer at least comparable to that

proposed by Mr Hall and that the trust were adamant that, regardless of any future offer from

the Apatu whānau, the trust intended to sell to Mr Hall. There were also a number of

beneficiaries present at the last hearing.

Is the consideration is adequate?

Applicant’s submissions

[34] As foreshadowed, Ms Bennett submitted that the purchase price is in excess of the

current roll valuation and the block has been advertised on the open market for some time.

Counsel confirmed that the block is landlocked and as such is difficult to develop. Ms

Bennett also requested that the Court dispense with the requirement for a special valuation

per s 158 of the Act, in light of the circumstances.

Respondent’s submissions

[35] Mr Bennion submitted that the Court should have regard to the fact that Mr Hall is

purchasing the land with full knowledge that there is no legal access and, despite that, is

341 Aotea MB 174

prepared to pay a higher purchase price. Counsel added that the Court should also record

that the block is landlocked in fairness to future owners who may seek to understand why

this block lacks access even after alienation.

Discussion

[36] It is accepted that the offer for sale is in excess of the current capital value of the

land, which is $255,000.00. An exemption has been requested. I am satisfied as to the

valuation and the consideration, and grant the exemption. For completeness, I note the block

is being purchased with the proviso that there is no legal access to the block.

Have the alienating owners discharged the obligations per s 147A of the Act?

Applicant’s submissions

[37] Ms Bennett submitted that Mr Hall is a member of the preferred class of alienees

(PCA) and has provided evidence of this from Patrick Parsons. Mr Hall, according to that

evidence, is a member of the PCA on the basis that he is whanaunga of the alienating owner

associated in accordance with tikanga Māori with the land. It is said that he is also a

descendant of a former owner who is or was a member of the hapū associated with the land.

[38] Counsel added that the evidence of Mr Parsons confirmed Mr Hall has ancestral

links with the Owhaoko lands through Te Ohuake and Punakiao who will be readily

recognised by the tangata whenua of the area.

[39] Ms Bennett also submitted that if the Court determines Mr Hall to be PCA then the

requirement per s 147A can be dispensed with. Counsel argued that despite the fact the

Apatu Whānau suggest they may have a closer whakapapa connection there is no statutory

priority in terms of the PCAs. Ms Bennett contended that there is no pecking order and

those more closely related do not trump those more remotely related, citing in support

Northcroft v Northcroft – Tauhara Middle 4A1L1B1A.15

[40] In addition counsel contended that if there is more than one potential purchaser from

within the PCA then the alienor is able to select to whom they wish to give the first right of

15

(1995) 9 Waiariki Appellate Court MB 49 (9 AP 49)

341 Aotea MB 175

refusal. Counsel added that if the Apatu Whānau exercise a right of first refusal there is no

obligation on the trustees to sell to them over another member of the PCA.

[41] Ms Bennett submitted that Mr Hall has nominated his family trust to complete the

purchase. Counsel also contended that the definition of PCA specifically includes trustees of

persons referred to in paragraphs (a) to (c) of the definition. She argued that if the Court

accepted that Mr Hall is a member of the PCA then the trustees can fit within the PCA

definition.

Respondent’s submissions

[42] Mr Bennion submitted that Mr Hall made it abundantly clear at the hearing that he

knew nothing about the land, its history and connections. Counsel contends that in terms of

the definition of PCA in s 4, category (b) ‘associated in accordance with tikanga Māori with

the land’ association must include values and practices and must be more than a mere

whakapapa link.

[43] Counsel added that even if Mr Hall did satisfy the category (b) association, the

nominee family trust is not a trustee of a whanaunga of the alienating owner. Mr Bennion

argued that the family trust is a discretionary trust and pointed out that the beneficiaries

include any current or future spouse or spouse of Mr Hall’s children. Counsel also noted

that Mr Hall can remove and appoint trustees at his discretion. In addition, he pointed out

that when the trust terminates the new trust and beneficiaries are not limited to the PCA.

[44] Mr Bennion argued that, given the deficiencies in the application, the Apatu Whānau

is entitled to exercise the right of first refusal as PCA. Counsel further submitted that it is

arguable that the proposed alienation of land sparks a right in all PCA regardless of whether

the applicant has a preferred PCA in mind, because it is a ‘right’ and because of the

importance of the ‘right’ within the context of the Act. Mr Bennion also referred to the

authority Muraahi v Phillips - Rangitoto Tuhua 551B and 55B1A2 (Manu Ariki Marae).16

[45] Counsel submits that the scheme of the Act is that, regardless of whether an alienor

has selected in advance a favoured PCA to sell to, the intention to sell triggers notice to and

an opportunity to for all PCA to put in offers. The offers must be at least equivalent to the

16

[2013] Māori Appellate Court MB 528 (2013 APPEAL 528)

341 Aotea MB 176

terms of the alienation per r 11.7(3)(a). The alienor may then select any offer from any such

PCA.

[46] Counsel further submits that if the Court finds that the Mr Hall does not satisfy the

PCA requirement then the Apatu Whānau offer remains as the alternative offer in terms of r

11.7, which must be given the first right of refusal should the Hall offer not be completed.

Discussion

[47] There are several overlapping issues that require consideration. The first is whether

Mr Hall and/or the family trust fits within the definition of PCAs. The second issue is

whether the requirement for the first right of refusal has been satisfied.

[48] Preferred class of alienees is defined as:17

preferred classes of alienees, in relation to any alienation (other than an alienation

of shares in a Maori incorporation), comprise the following:

(a) children and remoter issue of the alienating owner:

(b) whanaunga of the alienating owner who are associated in accordance with

tikanga Maori with the land:

(c) other beneficial owners of the land who are members of the hapū

associated with the land:

(d) trustees of persons referred to in any of paragraphs (a) to (c):

(e) descendants of any former owner who is or was a member of the hapū

associated with the land

[49] In terms of Mr Hall, counsel for the applicant says that Mr Hall comes within

categories (b) and (e) of the definition of PCA.

Whanaunga of the alienating owner who are associated in accordance with tikanga Maori

with the land

[50] Category (b) contains two elements that are required to be satisfied. The first is

whether the Mr Hall is whanaunga of the alienating owner. The second is whether Mr Hall

is associated in accordance with tikanga Māori with the land.

[51] “Whanaunga” is defined in s 4 of the Act as being a person related by blood. In

Mihinui - Maketu A100, I was not persuaded that within the confines of the alienation regime

17

Te Ture Whenua Māori Act 1993, s 4

341 Aotea MB 177

established by the Act, it was intended “whanaunga” should be construed to include

members of other hapū beyond that holding ownership of the land in question.18

To do so

would be to enable hapū with even a remote “association” to claim a right to purchase.

[52] On the definition of “whanaunga” Judge Savage also considered that:19

[12] …one could not imagine that it simply meant related by blood in a sense

that a common ancestor established by mitochondrial DNA testing was involved.

Also, it would certainly be contrary to the kaupapa of the Act if what is simply

meant, is a person associated by distant but important and well recognised

whakapapa links…

[13] On the other hand it must mean something more than the Pakeha concept of

nuclear family.

[14] When determining a whänaungatanga relationship, focussing on

associations with the land is unhelpful. That is a different hurdle that an applicant

must cross. In other words one could be a whanaunga, but not associated with the

land or associated with the land but not whanaunga…

[53] In Kameta v Nicholas the central issue was whether the Nicholas children were

persons related by blood to the testator and were members of the hapū associated with the

land.20

The Court below determined that the links between Mr Kameta and the Nicholas

children were “so tenuous” that the two could not be said to be related by blood.

[54] The Māori Appellate Court took a different route: 21

[45] The whakapapa in this case does not go back as far as the founding

ancestor of Waitaha tūturu before there is a common link, but it is not far from it.

What is important is that it records that the land was devolved as a taonga tuku iho

through a whakapapa line from which both the Nicholas children and Mr Kameta

descend. Whakapapa and blood descent are as much a taonga tuku iho as land is.

This whakapapa also demonstrates a blood relationship exists between these people

and it demonstrates membership of the hapū associated with the land.

[46] Where we believe the lower Court erred was in discounting the importance

of this whakapapa in establishing a blood relationship. Rather it engaged in counting

generations and measuring degrees of consanguity.... While we acknowledge that the

degrees of relationship through whakapapa will always be a relevant consideration,

in this case we do not consider the link to be so tenuous as to discount a connection

by blood which satisfies the statutory provisions.

[55] The Appellate Court acknowledged that its approach to this issue was constrained by

s 2 of the Act and its preamble, referring to the need to recognise land as a taonga tuku iho of

special significance to the Māori people and, for that reason, to promote its retention in the

18

Mihinui - Maketu A100 (2007) 11 Waiariki Appellate Court MB 230 (11 AP 230) 19

Ibid at 239 20

Kameta v Nicholas – Estate of Whakaahua Walker Kameta (2009) 348 Rotorua MB 282 (348

ROT 282) 21

Nicholas v Kameta - Estate of Whakaahua Walker Kameta [2011] Māori Appellate Court MB

500 (2011 APPEAL 500)

341 Aotea MB 178

hands of its owners, their whānau and their hapū. But it was also conscious of s 17(2)(a) of

the Act, requiring the Court to ascertain and give effect to the wishes of the owners of Māori

land to which any proceedings relate.

[56] The evidence provided by Mr Parsons demonstrates an ancestral connection to the

Owhaoko lands through Te Ohuake. At the hearing Ms Bennett stated that Mr Hall came

from Honomokai and the Steedman whānau come from Hinemanu. It was her submission

that they all descend through Ngāti Hinemanu to the land. Peter Steedman gave the

following evidence:22

Peter Steedman (sworn): The land Owhaoko D63 is part of the D Blocks which in

the original judgment went to Ngāti Whiti Tama. The C blocks went to Ngai Te

Ohuake which is mostly the people of Honomokai, Hinemanu (inaudible). The A

Blocks went to Tuwharetoa. So like I was saying is originally the Owhaoko Blocks

were one block. The claimants of those blocks were Ngāti Tuwharetoa, Ngāti

Hinemanu, Ngāti Ruak Ngāti Whiti and Ngāti Tama. It was the judgment that broke

them down into three different categories. What we are saying is that Richard is of

the Ngāti Hinemanu side, as are the Apatu's.

[57] The judgment of the Court, on 10 October 1888, dividing the original Owhaoko

lands into four allotments is consistent with Mr Steedman's evidence.

[58] In terms of whether Mr Hall is whanaunga associated in accordance with tikanga

Māori with the land, Mr Bennion argued that Mr Hall made it abundantly clear at the hearing

that he knew nothing about the land, its history and connections. Counsel argued that in

terms of category (b) in the definition of PCA ‘associated in accordance with tikanga Māori

with the land’ association must include values and practices and must be more than the mere

whakapapa link.

[59] In T F Hickling Family Trust – Nuhaka 2E3C8A2B Judge Isaac (as he then was)

dealt with an application for confirmation, which was opposed by the Aramatua Trust who

claimed to be a member of the PCA.23

Judge Isaac considered that the whakapapa evidence

demonstrated that the original owners of the block all descended from Te Rehu, including

the trustees of the Aramatua Trust. Judge Isaac said:24

According to Tikanga Māori, right to land is validated by whakapapa. The earlier

the ancestor the stronger the right to that land. Land was claimed by Whakapapa

because in accordance with Tikanga Māori all things were derived from the

ancestors and were passed on to future generations. If a person can whakapapa to an

original owner or occupier of that land that person has a right to the land.

22

339 Aotea MB 274 (339 AOT 274) at 278-279 23

T F Hickling Family Trust – Nuhaka 2E3C8A2B (1994) 92 Wairoa MB 214 (92 WR 214) 24

Ibid at 218

341 Aotea MB 179

The Whakapapa presented to the Court does not lose strength because it traces back

for many generations. In terms of tikanga it gains strength.

[60] Judge Isaac further stated:25

The Court confirms the association does indeed go back a long time. It is an

association which links the Rakaipaka people with each other. It is an association

which in this Court’s view cannot be measured by a simple physical association with

the land. In accordance with Tikanga Māori the association is the knowledge that

Nuhaka 2EC8A2B is Rakaipaka land and that the original owners of that land are

whanaunga of the trustees and the beneficial owners of Aramatua. As stated in the

evidence, the Aramatua land and the block in question were all originally contained

in Nuhaka 2 block. It is only with partition through time that this block has now

become divided into separate blocks and although the physical boundaries now

exist, the association in accordance with Tikanga Māori of the Trustees of Aramatua

and the beneficial owners has always remained….

[61] He went on to underscore the importance of historical and spiritual links:26

Coupled with the spiritual and historical association with the land is the more

physical association with the land…Although the Court agrees the physical

connection is a tenuous one it did exist for most of the witnesses. Also when the

physical association is combined with the spiritual and historical association there is

no doubt that in the Court’s view that the Trustees of Aramatua are whanaunga of

the alienating owners and are associated in accordance with Tikanga Māori with

Nuhaka 2EC8A2B.

[62] In Kameta v Nicholas the Māori Appellate Court emphasised that hapū association is

founded on whakapapa or through ownership in hapū lands or both. The Court of Appeal

subsequently held that the Appellate Court correctly adopted a conjunctive approach to the

construction of s 108(2)(c) in finding that a blood relationship will be established where the

parties can show a whakapapa connection to the testator, even if distant, providing that that

connection satisfies what it called “the associational relationship” of shared bloodlines and

being part of the same hapū which once held collective ownership of the land.27

Notably, a

hapū consists of a number of whānau bound by strong kinship ties and the whakapapa

principle, where particular importance is attached to “being born into the group”.

[63] It was not enough in that case that Mr Kameta and the Nicholas children shared a

common ancestor; what was decisive was the devolution through a whakapapa link or

relationship by blood within a hapū which was relevant to the land in question.

[64] As foreshadowed, the original title determinations for the Owhaoko lands were the

subject of contention. In the final award Owhaoko A went to Ngāti Kurapoto and Ngāti

25

T F Hickling Family Trust – Nuhaka 2E3C8A2B (1994) 92 Wairoa MB 214 (92 WR 214) at 219 26

Ibid 27

Kameta v Nicholas [2012] 3 NZLR 573 (CA)

341 Aotea MB 180

Maruwahine (Ngāti Tūwharetoa); Owhaoko B to Ngāti Tama; Owhaoko C to Ngāti Upokiri,

Ngāti Hinemanu and Owhaoko D to Ngāti Whiti and Ngāti Whititama.28

[65] The evidence demonstrates that Mr Hall is associated with the Owhaoko lands. He

has a historical connection to the lands and a relevant associational connection via his

whakapapa links. Although the physical connection is tenuous, on the whole I consider Mr

Hall to be whanaunga of the alienating owner who are associated in accordance with tikanga

Maori with the land and as such a member of the PCA.

Descendant of a former owner who is or was a member of the hapū associated with the land

[66] Mr Hall’s eligibility per category (d) of the PCA definition is also relevant for

completeness. It was submitted that Mr Hall is a descendant of a former owner who is or

was a member of the hapū associated with the land. It is accepted that Mr Hall is descended

from Te Ohuake whose interests were ultimately recognised in the neighbouring Owhaoko

C. Additional evidence was given of Mr Hall’s connection to the Owhaoko D Block via

Whitikaupeka the tipuna of Ngāti Whiti. The evidence confirms a link between Ngāti Whiti

and Hinemanu through marriage.

[67] There is no evidence of whakapapa by Mr Hall to the former owners of this block.

No tracing has been done of the ownership lists for Owhaoko D to Owhaoko D6 Subdn 3 to

further demonstrate that Mr Hall is a descendant of a former owner who is or was a member

of the hapū associated with the land. That said, it is evident that Mr Hall is descended from

Te Ohuake and Whitikaupeka. I am therefore satisfied that Mr Hall is a member of the PCA

per category (d) of the definition.

The family trust

[68] Mr Bennion submitted that the trustees are not ‘trustees of persons referred to in any

of paragraphs (a) to (c)’ of the definition as the trust is a discretionary trust, its beneficiary

class includes members outside of the PCA category and Mr Hall has the discretion to

change the trustees at will.

[69] The Richard Hall Trust was created by deed of trust on 20 January 1996 for the

benefit of the children of John Hall. The trustees are Richard James Hall, Henry Newcomb

28

Ibid

341 Aotea MB 181

Hall and Simon John Hall. According to the trust deed ‘beneficiary’ and ‘beneficiaries’

mean and include any or all of:

(a) Richard James Hall;

(b) Any Child or Children or remoter issue of Richard James Hall;

(c) The Settlor’s wife Judith Hall;

(d) Any brother of Richard James Hall or Trust for the benefit of such brother

or any child or children or remoter issue of such brother;

(e) Any spouse of Richard or his children; and

(f) Any person or group of persons charity or body (incorporated or

unincorporated) whom the Trustees shall before the date of distribution by

deed appoint (revocably or irrevocably) as a Beneficiary PROVIDED

THAT no Trustee who is not already a Beneficiary may be so appointed

while such Trustee is a sole Trustee or one of only two Trustees.

[70] I note at the outset that none of the beneficiaries of the trust are children and remoter

issue of the alienating owner as in (a), nor are they beneficial owners of the land who are

members of the hapū associated with the land as in (b). The issue is whether the trustees are

trustees of whanaunga of the alienating owner who are associated in accordance with tikanga

Māori with the land. It is accepted Mr Hall is such a person.

[71] However, the beneficiary class under the family trust includes persons who may fall

outside of the PCA. They being:

(a) The Settlor’s wife Judith Hall;

(b) Any spouse of Richard or his children; and

(c) Any person or group of persons charity or body (incorporated or

unincorporated) whom the Trustees shall before the date of distribution by

deed appoint (revocably or irrevocably) as a Beneficiary

[72] In addition, it is evident that the trustees are not exclusively trustees for whanaunga

of the alienating owner who are associated in accordance with tikanga Māori with the land.

I consider therefore that the family trust does not meet the requirements of the definition of

PCA. If the parties wish to proceed with the sale then Mr Hall will have to amend his family

trust deed to exclude the non PCA members or create a category of sub trust for the land

within the family trust as contemplated in Mihinui - Maketu A100.

[73] Alternatively, he may wish to create a whānau trust for the benefit of his

descendants. The terms of such a trust could include the power to pay part of any income to

the whānau trust to family members who are not members of the PCAs including spouses

and adopted children where this is relevant. The short point is that the sale cannot be

341 Aotea MB 182

completed if the family trust is to be the ultimate recipient of the land and it includes or has

the potential to include persons who are not members of the PCAs.

What regard should be had to the Apatu Whānau offer?

Respondent’s submissions

[74] Mr Bennion submitted that the Apatu Whānau have provided informal access to the

block to the applicants and have never suggested that it would withdraw such ability of

egress to the applicants. Counsel also submitted that the Apatu Whānau have been prepared

to agree to legal access on suitable terms. It is, he claimed, the insistence of the current

owners of the land that a strict exchange of land and nothing else that has ultimately

frustrated the negotiations over access. The Apatu Whānau, it was submitted, have also

incurred costs over the past four decades regarding access.

[75] Counsel submitted that the respondents are PCA and have made an offer to purchase

at $60,000.00 more than Mr Hall’s offer. Mr Bennion contended that Mr Apatu falls within

the PCA by being whanaunga of the alienating owner who are associated in accordance with

tikanga Māori with the land. Counsel confirmed that Mr Apatu is also a descendent of a

former owner who is or was a member of the hapū associated with the land.

[76] Mr Bennion then argued that Mr Apatu is of Ngāti Hinemanu, Ngāti Te Upokoiri and

Ngāti Whiti descent. He submitted that these hapū are closely related and that Mr Apatu has

a strong whakapapa link to the land and the hapū. Counsel added that Mr Apatu and his

whānau are associated with the land in accordance with Māori values and practices. For

example, it was said that Mr Apatu is involved with Omahu Marae and has close whānau

buried in the urupā. According to the evidence, Mr Bennion contended, the Apatu Whānau

accordingly have close connections to Owhaoko.

Applicant’s submissions

[77] When the alternative offer was discussed in open Court Ms Bennett confirmed that

even though there was another equivalent proposal the trustees were not inclined to entertain

the Apatu offer:29

29

339 Aotea MB 284 (339 AOT 284)

341 Aotea MB 183

C Bennett: Not from the trustees’ perspective, Sir, we have had the opportunity to discuss

this just this morning. The purchase price is more than $1 million and 50 thousand in the

agreement for sale and purchase. It is $1.2 million. The trustees are united as are a number

of members of families. Mr Hall is of the preferred class of alienee. If they are dealing with

apples as in two members of the preferred class of alienee on identical terms they would

prefer to sell to Mr Hall.

Discussion

[78] The Apatu Whānau claim to be PCA per categories (b) and (d) of the definition.

They have also provided whakapapa demonstrating their ancestral connection to Ngāti

Hinemanu and Ngāti Whiti. They have a similar whakapapa connection to the Owhaoko

lands as to that of Mr Hall and clearly have an association with the rohe. As with Mr Hall I

note that there has been no evidence provided demonstrating actual and direct whakapapa

links through the land titles by way of title determinations and successions.

[79] Even so, this need not be fatal, given the chequered history of the Native Land Court

in the context of alienating hapū holding customary title in accordance with their traditions.

Given the similar whakapapa, I consider that the Apatu Whānau are members of the PCAs.

[80] The Apatu Whānau have filed an offer to purchase the block with their submissions.

It is unclear whether the beneficiaries have had an opportunity to consider this in any detail

following receipt. In any case, as Peter Steedman himself confirmed:30

Peter Steedman (sworn): I just would like to pick up one point which you brought up about

the Taihape Inquiry in which the land rating draft that came out. One of the things very

important in there was how the Māori owners have been forced to sell to adjacent land

owners because of not being able to get access. I would rather not be put in that line. I

would rather be able to choose who I sell it to. Not to sell it to the Apatu’s. They are there

and they control the access.

[81] Under s 147A of the Act, the applicants are required to give the right of first refusal

to prospective purchasers who belong to one or more of the PCA ahead of those who are not

members of the PCA. Additionally, r 11.7 provides for the exercise of the right of first

refusal, as follows:

11.7 Exercise of right of first refusal

(1) An alienor must give a preferred alienee who has given notice of his or her

intention to exercise the right of first refusal a reasonable opportunity to

exercise that right.

(2) If more than 1 preferred alienee has given notice of his or her intention to

exercise the right of first refusal, the alienor may select the alienee to

whom the opportunity of exercising the right of first refusal must be given.

30

339 Aotea MB 290 (339 AOT 290)

341 Aotea MB 184

(3) The right of first refusal must—

(a) be on terms that are at least equivalent to the terms of the

alienation that is the subject of the application for confirmation;

and

(b) allow the preferred alienees a reasonable time, having regard to

the nature of the alienation, to exercise the right of first refusal.

(4) If the Court is not satisfied that the preferred alienee has been given a

reasonable opportunity to exercise the right of first refusal, the Court

may—

(a) extend the time for exercise of the right of first refusal:

(b) adjourn the application for confirmation to allow negotiation

between alienor and preferred alienee to occur.

(5) If the preferred alienee who exercises the right of first refusal is not the

alienee named in the original application, the Court may amend the

application and confirm the alienation without the necessity for a new

application.

(6) If a preferred alienee who is selected under rule 11.7(2) fails to complete

the alienation, the alienor must then offer the opportunity of exercising the

right of first refusal to any of the other preferred alienees who were

involved in the selection process under rule 11.7(2) and the provisions of

this rule continue to apply until—

(a) the right of first refusal has been exercised; or

(b) all preferred alienees who have given notice have been given the

opportunity to exercise the right of first refusal.

[82] In Muraahi v Phillips - Rangitoto Tuhua 551B and 55B1A2 (Manu Ariki Marae) the

Māori Appellate Court considered the first right of refusal:31

[113] An alienation by way of sale or gift has to be confirmed by the Māori Land

Court under s 152 of TTWMA. This section requires the Court to be satisfied as to a

number of preconditions including the proper discharge of the vendor’s obligation

under s 147A to grant the right of first refusal to the PCA.

[114] A right of first refusal is a procedural requirement of TTWMA. Where it

applies and an application is filed for confirmation, the application is referred to a

Judge and directions given as to public notice of the right of first refusal. Those

members of the PCA interested will be given a date to notify the Court of their

interest in exercising that right and will then be advised as to a date of hearing at

which they will be entitled to pursue the right of first refusal. Rules governing the

procedure are contained in the Māori Land Court Rules 2011.

[115] The right of first refusal differs from a contractual right given to an

individual. It is a right created by statute for the benefit of a group or classes of

people. There are procedures to identify those interested in exercising the right. If

there is more than one person interested, the vendor is entitled, by virtue of rule

11.7(2) of the Māori Land Court Rules 2011, to select the person he wishes he deal

with. If the selected member of the PCA fails to complete the alienation, the alienor

must offer the right to another member of the PCA who has given notice until either

the right of first refusal is exercised or all the members of the PCA who have given

notice have been given the opportunity to exercise the right of first refusal.

31

Muraahi v Phillips - Rangitoto Tuhua 55B1B and 55B1A2 (Manu Ariki Marae) [2013] Māori

Appellate Court MB 528 (2013 APPEAL 528)

341 Aotea MB 185

[116] The procedure outlined above provides an opportunity for the PCA to

purchase the land by exercising the right of first refusal. It is not a right that they can

exercise unilaterally. It is a right that has to be exercised through the Court as part of

the application for confirmation. Until the process is completed and the person who

is to be offered the right of first refusal is selected, the procedure merely provides a

potential for a member of the PCA to be selected. At any stage prior to confirmation

the vendor may decline to go ahead with the alienation and withdraw his application.

[83] In Taueki - Horowhenua X1B41 North A3A and 3B1 that Court stated:32

[75] Section 147A is one of the key mechanisms in the Act to give practical

effect to the principle of retention of Māori land. It represents the final opportunity

for those associated with Māori land in terms of tikanga Māori to prevent the land

falling into outside ownership. Vendors cannot expect a hasty treatment of that right.

Equally, potential purchasers within the preferred class of alienees cannot expect a

drawn out process. The time allowed must be practical and reasonable, having

regard to the aim of retention of Māori land as expressed in the Preamble and

section 2 of the Act….

[84] It is evident that some of the beneficiaries are trustees are not well disposed to the

Apatu offer. In part, I apprehend that this is due to what might be described as past dealings

and difficulties. As one of the beneficiaries Ngaire Kauika –Stevens explained:33

The Court: Just so I understand you correctly, Ms Kauika-Stevens, what you are telling me

and I will be blunt, is that you do not like the Apatus?

N-A Kauika-Stevens: It’s not that I don’t like the Apatus. I don’t like what they have done

to our whānau. And I don’t like how we have been treated. The treatment. And that’s the

pain, the treatment. Never being allowed to act as owners. It’s like being, for want of a

word we’re not worthy, diminished. That’s how I see it. They may not know who I am but

what they’ll know is that I have always been in the trust from its inception and only just in

the last I think couple of years I resigned and my young brother took over. We have been in

close contact and kōrero as in my own brothers and sisters about this.

The Court: So are you saying the Apatus have been obstructive over generations?

N-A Kauika-Stevens: Yes if that is how you want to put it yes, Your Honour.

The Court: You have also used the word personal.

N-A Kauika-Stevens: Yes, it’s been hurtful, Your Honour. Hurtful. When you stand up,

when what we wanted to do and from a personal perspective from our family, my father’s

children. We enjoyed our fathers dream. Our father’s dream was to develop The Steedman

International Hunting and Fishing and then my father died. He has been gone over 40 years

now. We’ve lived that dream along with our aunties and uncles. We’ve sat back and seen

how hard they’ve worked to develop it. Yes we have made mistakes ourselves but as I’ve

said. We have been made criminals for the mistakes that we have made. Hard as it might be

that’s how it is.

[85] She was also supported by another beneficiary Terrence Steedman:34

32

Taueki - Horowhenua X1B41 North A3A and 3B1 (2008) 16 Whanganui Appellate Court MB 30

(16 WGAP 30) 33

339 Aotea MB 285-286 (339 AOT 285-286)

341 Aotea MB 186

Terrence Steedman (sworn): I just want to say and back up my niece in what she had

kōrero. That is in the preference of who we sell too. Way back I can honestly say it didn’t

matter who we sold to as long we sold it for whatever we could get for it. I think over the

years in negotiations our family have been with the Apatu whānau and like Nathan has said,

since 1975. That’s 40 odd years. 40 odd years ago I was 30 and I’m the baby of the family.

When we came back from the South Island my brother Peter and I got into negotiations with

their mum and dad for years and years, as you are well aware of, Sir, with land exchanges

and all. Right up until their mother died we were really getting to the point where Margaret

was really thankful that we could both get together and we were nearly there on the verge of

signing an exchange. So we didn’t have to go down their laneway anymore and that we

could go to our new lands right on the same road, the main Taihape-Napier road.

That was something of a dream come true for us as well as saying we are out of their hair,

they are out of our hair. Everybody would be happy. Sadly Margaret died. The Apatu

whānau then still had the opportunity to carry their mothers wish on. But they decided no.

They developed that undeveloped exchanged lands themselves. We could see that was the

end of anymore negotiations as far as exchanges went. That was, according to Margaret, the

best deal possible between the two families.

[86] Nathan Apatu also provided, from his family’s perspective, some of the relevant

historical context to the proposed sale of the land and some of the prior dealings between the

whānau involved:35

It comes down that we feel slightly aggrieved by the process. We believe under section

147A as preferred class of alienee, they are on notice that we are preferred class of alienee.

We have made previous offers to purchase therefore we feel as part of the Māori Land Court

Rules in terms of going to Court and asking for possible process for that to have occurred is a

question that could have been asked or put to the trustees at the meeting confirming the sale

if there were two competing interests it could have been very simply done.

We don’t want to die wondering whether we could purchase the block. It has a very long

history from us. This file I have here which is my father’s dates back to 1975. In 1975 we

have a letter from the Steedman family asking our family to consider a land swap for the

same land. That happened in 1975. In 2001, I think we went through another round of

proposed exchanges, there were possibly three. We went through a later exchange and offer

of purchase in 2012 so we have a very long history with the family which at times obviously

has turned quite acrimonious.

What it boils down to is we haven’t been willing to offer what essentially amounts to a

public road through our land to offer access. We have continued to offer them limited access

to what we believe is appropriate. It has allowed them to continue to visit their land and

allow members of their family to visit the land for recreational and spiritual purposes. We

have allowed them to go through to construct a hut on their land. I know it always hasn’t

been a polite conversation. We feel we have allowed them appropriate access to their land

and still allow them to maintain contact with it and use it. We have not closed that door but

we understand now that if they wouldn’t really like us to purchase the land then it is an

awkward situation for us because if we did not take our present stance they would not be

looking to sell. I guess that leads us to the awkward situation we are in today.

[87] Bruce Bates, an in law to Mr Apatu, also provided comment on the relationships and

how there had been difficulties all round over access and proposals for the sale or exchange

of the land that had been considered from time to time:36

34

339 Aotea MB 287 (339 AOT 287) 35

Ibid, 282-283 36

Ibid, 290-291

341 Aotea MB 187

Bruce Bates: Your Honour, my name is Bruce Bates, I manage the Hunting and Fishing on

Apatu Station. I am married to Kate. I have only been involved for 25 years so I am a

“Johhny come lately”. In my time access has never been denied when it’s been asked for. It

hasn’t been free and open access whenever you want, it has to be asked and that carried on

from the last Court case. I struggle a little bit with some of the things I hear. I can

understand the people’s loss of the land and those sorts of things.

…

Again with access we allow a lot of surrounding land owners to bring their beehives onto us.

They fly them off us they leave them on us. I don’t think we are that bad of a neighbour.

We’re really not. Everyone has their own point of view. Apart from having an open road I

think the access has been reasonable. I think Mr Hall has to know that you are buying into

something. I have done a lot of this out of respect to the Steedman family whether they

believe it or not.

I sat in on a lot of land meetings with my mother in law when she was trying to do the land

swap stuff. It wasn’t good for her health. She died at 60. There was a lot of stress. It’s not

only on your side that there has been stress. I think that is one thing Mr Hall may now

finally come to understand. You are not just buying a piece of land in the middle of

nowhere. There is a whole lot that goes with this on both sides and its hurt both sides. I’ve

seen that coming into it for the last 25 years. Don’t think the Steedman side has anymore

heartache than our side of the family has either. For Mr Hall to come into this and think “it’s

a block of land, it’s really cool, there’s a lot of deer and fish on it”. It’s not quite like that

and I just think he needs to know that before he rocks up.

[88] That there have been a range of interactions between the Steedman and Apatu

families over a considerable period of time is acknowledged. That said, the short point is

that the Apatu Whānau has offered to purchase the block for $1,260,000.00. In the absence

of relevant contrary authority I can see no reason why the trustees are bound to accept an

offer simply because it is higher than another, all things being equal between the competing

purchasers.

[89] Both proposed purchasers are members of the PCAs (if Mr Hall is considered as an

in person buyer), both have provided offers for sale that are far in excess of the roll valuation

and both are well aware, perhaps more so with the neighbouring Apatu owners, of the lack

of legal access to the land. Arguably, due to their proximity to the land and their history of

association with the area compared with Mr Hall the Apatu whānau have a strong, perhaps

stronger connection with the district in a practical sense. They are certainly well known to

the vendors and in their local community.

[90] Even so, given my finding that Mr Hall is a member of the PCA, I consider that the

requirements of s 147A are satisfied. This is because it is an expression of their autonomy

and rangatiratanga as the custodians of the land to elect which PCA they wish to sell the

block to, without the interference of anyone else, the legislative requirements having been

satisfied. It must also be remembered that, per s 17 of the Act, the Court is required to

341 Aotea MB 188

ascertain and give effect to the wishes of the owners. Both the legal and beneficial owners

of the land have made those wishes perfectly plain.

[91] The only area of potential difficulty concerns the fact the owners of the land are

trustees. They have duties to act prudently and in the best interests of the beneficiaries as a

whole. While I consider that the increase in price by the Apatu offer is at the lower end of

the scale, being approximately 5%, if that offer were to increase, especially significantly,

then questions might arise as to whether the trustees were in fact acting in the best interests

of their beneficiaries.

[92] While there is no obvious rule or sliding scale as to what constitutes a tipping point

from prudent to imprudent, if for example, the trustees were offered 30% more than the

current price, (a figure raised purely hypothetically simply to underscore a point), then an

argument could be made that the trustees were acting imprudently. In any case, there is no

need for me to consider issues of trustee imprudence at this point as the hypothetical

example mentioned does not presently exist.

[93] For completeness I also acknowledge the objection of Richard Steedman. He is well

known as one of the leading coordinators of tribal claims to the Waitangi Tribunal in the

Taihape district. In that role he was had a long association with the historical research into

land alienation that makes up many of the claims presently before the Tribunal. It is

understandable that he, and those supporting him, would oppose the present application for

alienation of this land.

[94] One final point. The termination of the whänau trust was sought in connection with

the present proceedings. If the conditions of sale are met then the orders for termination can

be issued in chambers without the need for a further appearance.

Decision

[95] The application for the confirmation of the alienation of Owhaoko D 6 Subdn 3 by

the trustees of the Kararaina Steedman Trust is granted.

[96] This order is issued on condition that the purchaser is either:

(a) Mr Hall in person; or

341 Aotea MB 189

(b) a whānau trust to be created with his uri as beneficiaries; or

(c) is the Richard Hall Trust which has had its terms of trust amended to either:

(i) exclude as beneficiaries to Owhaoko D 6 Subdn 3 any persons who are not

members of the preferred class of alienees; or

(ii) create a sub trust over Owhaoko D 6 Subdn 3 for the benefit of his uri.

[97] Leave is reserved for any party to apply for directions at any time.

[98] There will be no order as to costs.

A copy of this judgment is to be issued to counsel and all interested parties.

Pronounced at 4.00 pm in Rotorua on Monday this 31st day of August 2015

L R Harvey

JUDGE