place: gisborne present: judge c.l. wickliffe panui no ... · minute book: 81 opo 178 place ......

Minute Book: 81 OPO 178

Place: Gisborne

Present: Judge C.L. Wickliffe

K W Lardelli, Clerk of the Cou rt

Date: 8 May 2003

Panui No: Application No: A20010004954

Subject: Parekura Hei Roadway (Pt Te Kaha Block)

Section: 318(2)/93

Counsel Mr Kinder Mr Handley

DECISION

Although I deal with three issues in this decision, they essentially give rise to one broad question and that is whether this Court should restrict access to use a roadline created when the original subdivision of the Te Kaha Block was ordered by the Native Land Court in 1915. The reason why I am considering this issue relates to an application bought by Te Whanau a Ehutu Iwi Authority attempting to restrict the use and control of the road to hapu members and descendants of the original owners.

BACKGROUND

The genesis of this matter relates to the partitioning of the Te Kaha Block into several smaller blocks following Native Land Court hearings held in 1915. It also directly concerns the land block known as Te Kaha 41A, comprising 2.27 hectares. The original title Te Kaha 41 was created on 9 June 1915 and the subsequent titles of Te Kaha 41 A and 41 B were created on 22 March 1920 declaring Harawira AkuhatalAugust the owner of Te Kaha 41A. His descendants succeeded him to the land and at least one of them remained an owner until 1990. In 1972, status of this block was changed from Maori freehold land to General land in accordance with Part I of the Maori Affairs Amendment Act 1967. At that time George Patene August and Lovey August as Joint Tenants held 0.5 shares, Moewaka Dewes held 0.17 shares and Mita Harawira held 0.33 shares. Under the relevant provisions of the 1967 Amendment, Maori land owned by 4 owners or less could by declaration of the Registrar be declared General land.

The land subsequently passed, by way of transfer, to Mr Livesey who became the owner in 1990. He is a successor in title. In 1995, he applied for and was granted subdivision consent from the Opotiki District Council for the creation of several residential sites on Te Kaha 41A. Access was to be via the formed Parekura Hei Road, formerly the Old Iwiroa Road. Over the years, it had been assumed that the road was a Council road.


That is not the case. Parekura Hei Road was originally laid off by order of the Maori Land Court in 1915 to service the large number of Maori land blocks partitioned from the original Te Kaha Block and to gain access to the large Iwiroa block. The blocks serviced include what are now:

Te Kaha 40 Te Kaha 41A Te Kaha 41 B Te Kaha 87,88 Te Kaha 89-106 (Formerly Te Kaha 73) Te Kaha 72 Te Kaha 78 Te Kaha 53, 53B2B, 54A Te Kaha 74 Te Kaha 56A Te Kaha 56B1 Te Kaha 56B2B Livesey Subdivision blocks

Research into access required for the subdivision, uncovered the fact that no Native Land Court order existed for the formation of what is now Parekura Hei Road. To secure access for the subdivision, Mr Livesey was advised by staff at the Maori Land Court to make an application under section 316(2)/93 for a formal road-line order over the road. He made that application on 31 May 1996. The application was brought for the purpose of providing access to Te Kaha 38, Te Kaha 45, Te Kaha 36, Te Kaha 37, Te Kaha 40 and Te Kaha 41.

Although the Opotiki District Council has no obligation to undertake work on Parekura Hei Road, it had regularly maintained at least part of the road so to ensure its access to a Te Kaha Township water supply pump.

COURT HEARINGS ON THE LIVESEY APPLICATION

The application for a roadway order came before the Court for the first time in 1996. On that day and on several successive occasions thereafter, the matter was adjourned:

• 71 Opotiki MB 122-124, 23 January 1997;

• 70 Opotiki MB 399-401, 4 November 1996;

• 70 Opotiki MB 350-352, 2 September 1996;

• 70 Opotiki MB 330-331, 2 August 1996;

• 70 Opotiki MB 302, 1 July 1996.

During this period, further research on the original Te Kaha Block partitions was completed by the Registrar who then reported to the Court that thirteen road-lines, including the road which in contemporary times is called Parekura Hei Road, had in fact been laid off by order made in 1915. (See 4 Te Kaha MB 224-226 & 258).


In 1997, and as the road-line had been properly laid out by order of the Court, His Honour Judge Hingston dismissed the application with Mr Livesey's consent. (See 71 Opotiki MB 8-15 (5 May 1997»

An order was then drawn pursuant to section 48 of the Native Land Amendment Act 1913 and signed by Judge Hingston.

LOCAL MAORI

Mr Livesey's application regarding the Parekura Hei Road led to some consternation among members of the local iwi (tribe) which has also been referred to as a hapu (subtribe). The tribe is Te Whanau a Te Ehutu and they are traditionally associated with the Te Kaha area. At a meeting of the hapuliwi on 1 December 1996, those who attended resolved unanimously that:

There be no change to the status of the Parekura Hei Road. The applicant, Galfred Livesey is welcome to use the road in its present form.

This position that the use of the road should be restricted to hapuliwi members and Mr Livesey was not consistent with the views of the trustees of Te Kaha 73, also of the same hapuliwi. On 5 February 1997, the Maori Land Court received a letter from LS Martin advising that these trustees wished Parekura Hei Road declared an unrestricted Maori roadway. The grounds for making the request were that:

(a) Their current title and the titles to the blocks created by the Hapu Partition will not have legally secured access.

(b) The proposed roadway within the block to service a proposed Hapu Partition for papakainga sites will not be able to be created.

(c) Access to the Te Kaha township water supply will be denied to the Opotiki District Council.

(d) The Opotiki District Council will not be able to expend monies on upgrading or even maintaining the Roadway (pursuant to Section 324A of the Local Government Act 1974) until such time as the roadway is created.

All of the above matters, the trustees of Te Kaha 73 claimed, would seriously disadvantage them.

At the final hearing on the Livesey application in May 1997, Judge Hingston did not restrict access in the way sought by the hapu and he told Mr Matchitt and Mr Waititi that there was nothing he could do. As a road-line had been laid out by order of the Court in 1915, it was up to the hapu to file their own applications for restricting access. As noted above, Judge Hingston then dismissed the Livesey application by consent. (See 71 Opotiki MB 8-15 (5 May 1997»

THE CURRENT APPLICATION

On 20 June 2001, Mr Edward Matchitt filed an application under section 318(2)/93 to limit the class of persons entitled to use Parekura Hei Road to the Maori owners on the grounds that:


"A sub-division has occurred off Parekura Hei Road. Consent to include this road as access was not confirmed by the owners; It is a Maori road set down in 1915-1916 and we [the] people or Hapu of Te Kaha view [it] as their private property. Purchase of subdivision land has affected our rates plus extra use. Developer has sign on their road "Private Road" and helps self to our road."

In support of the application he filed the Minutes of the Hapu Hui held on 1 December 1996. He later filed more minutes from a further hapu hui held on 26 July 2001. Those minutes record the concern of those present that the mana of the hapu was being ignored.

As can be seen from the list identified above, including now the Livesey subdivision, there are a large number of blocks affected by this application. To ensure that all issues where adequately identified before requiring a hearing, I directed that a conference be held. A section 67/93 conference for the parties, including the applicant, the Opotiki District Council, affected land owners and the hapu was held on 2 August 2001 at Tukaki Marae in Te Kaha. (See 76 OPO 167-194)

Mr Eddie Matchitt representing the iwi authority for T e Whanau a Te Ehutu was supported at the conference by a large number of hapu members, including spokespeople such as Mr William Rata (affected owner and hapu member), Messrs Charles and Rangi Tiatoa (affected owners and hapu member), Mrs Mihi Paora (affected land owner and hapu member), Mr Kevin Kingi (affected owner and hapu member), Mr Patu Kerei (hapu member), Mrs Ora Anderson (affected owner and hapu member), Mr Ted Ruwhiu (affected owner and hapu member), Mr Haki McRoberts (Te Whanau a Apanui and Councilor on the Opotiki District Council), Mr Hira Keepa (hapu member), and Mr Erueti (hapu member). The Court was advised that the following people either were opposed to the application or concerned about its implications:

+ Mr and Mrs Coatham - and other owners in the Livesey subdivision with the exception of Mr McGee and a second resident, Mr Lamb. Mr McGee and Mr Lamb were happy to let the law take its course;

+ Mr Alfred Livesey;

+ Mr Wharton for the Opotiki District Council. He advised that the Council supported the retention of the status quo of an unrestricted road to ensure continued access to and from the Livesey subdivision. In addition, Council required access from the road to Te Kaha 73 and over that block to the Te Kaha water supply for maintenance and construction purposes;

+ Mrs Korara Erickson and her whanau including John Erickson - affected land owners and hapu members; and

+ Mr Robert Selwyn - hapu member and descendant of an original owner.

At that conference the residents of the subdivision, who had not realised that they were causing offence, offered and subsequently did take down the "Private Road" sign. That left only four issues for hearing. (See 76 OPO 193)

Following the conference on 2 August 2001, I also conducted a site visit to Parekura Hei Road, and I also visited the former block known as Te Kaha 73 and the Livesey subdivision.


COURT HEARINGS

The first full hearing on the application was held on 29 October 2001. Mr Matchitt submitted that the owners of Parekura Hei Road were the original owners of Te Kaha block. In his view it was a "Maori road" and once a block serviced by the road was sold out of Maori ownership, rights to use and enjoyment of the road ceased. This he submitted was because the road was a Maori road and it can not be alienated. He was prepared to concede that Mr Livesey and those who had purchased Lots in his subdivision could continue to use the road but that all other users would have to obtain Hapu consent. Mr Kinder for the residents of the Livesey subdivision, requested that no restriction be placed on his clients, their invitees and their successors. He also wanted no restriction imposed on the Opotiki District Council, to ensure their access could continue for road maintenance purposes. Mr Kinder stated in legal submissions that the roadway was a legal roadway and that his clients relied on section 62 of the Land Transfer Act 1952. As these submissions raise legal issues, I deal with them more fully later in this judgment.

Given that the issue of ownership raised historical as well as legal issues, and to expedite the hearing of the application, I directed the Registrar to provide a historical report for the next hearing of the application. Dr Bryan Gilling, an expert in the history of Maori Land, was commissioned.

Mr Matchitt also expressed the concern of the hapuliwi that they had not been consulted by the Opotiki District Council regarding the Livesey subdivision and that their rates had been raised as a consequence of the subdivision. They were also concerned that while the Livesey subdivision was well serviced by the Opotiki District Council with a partially tar-sealed road, the homes of other residents abutting the road were not. They claimed their stretches of the road were merely graveled and poorly maintained. Although there was evidence that the tar-sealing was only possible because of a contribution by Mr Livesey as part of the consent for subdivision, the hapuliwi residents believed that they should have received some equal benefit. They believed the Council also had some obligation to undertake proper roading maintenance. Prior to the Livesey application in 1996 it had been thought that Parekura Hei Road was a Council road. As it turns out it is not. Mr Wharton for the Council pointed out that roading maintenance for a road on Maori land could not be done without the written consent of the Maori owners as required by section 324A(2) of the Local Government Act 1974. The Council was undertaking measures to try to obtain that consent.

I will record that this Court has no jurisdiction to unsettle decisions made by the Opotiki District Council concerning the Livesey subdivision or roading maintenance. What I will note is that the Opotiki District Council may benefit from giving official recognition to and generally meeting with the Te Whanau a Ehutu Iwi Authority. In this way they could try and respond to the concerns of the hapuliwi as a way of building a better and more enduring relationship with those who have the "rangatiratanga" (chiefly authority) to the area. That authority, the hapuliwi believe, has been preserved and guaranteed by the Treaty of Waitangi.

The hapu representatives who spoke also raised their concerns regarding compensation for the use of the road for access to the former Te Kaha 73 Block so they could continue to service and maintain the Te Kaha water supply pump station. That issue depends on whether I should grant the application to restrict the use of this road to hapu members, Mr Livesey and the Livesey subdivision residents.


HISTORICAL REPORT

The matter was before the Court again on 1 May 2002 to consider the content of the report produced by Dr Gilling and in that report he came to the following conclusions:

1. The original 1913 Act provided that when the Native Land Court laid out a Maori roadway the land would remain Maori freehold land, held in common ownership, as if the block had never been partitioned. No subsequent legislation sighted has overridden the conditions under which existing roadways are owned, so this ownership appears to stand;

2. In the case of Parekura Hei Road, this would appear to mean that the owners are the successors to the original owners of the Te Kaha Block, not the successors to the owners of the subdivisions immediately adjoining or affected by the roadway;

3. There is thus a distinction to be made between the blocks affected by dealings with the roadway (and their trustees), and the owners affected. The owners of the roadway are today perhaps broadly equivalent to Te Whanau aTe Ehutu as a whole. It would thus be this broader group that the court will presumably now need to define in such a way that the roadway can be effectively managed by them;

4. The 1913 legislation provided that the court would determine just what conditions people other than the owners would have access under. There was no overt blanket right of access assumed as if it were a public road. Since Parekura Hei Road was originally created with that proviso, and the 1997 order laying it off was issued under the 1913 Act, that assumption of restrictions may still apply. Furthermore, the language used in the current dealings seems to carry the assumption that there is an existing public right of access, whereas this line of argument says that there is not. This reversal of assumption may have implications for the court's handling of the current issue of access relative to Mr Livesey's subdivision;

5. The original creation of Iwiroa/Parekura Hei Road seems to have been supported without objection by the Maori owners of the Te Kaha Block. It was asked for by tribal members during the partition process and was not imposed on them by the Native Land Court, although the Court appears to have had that power if it so chose;

6. The Opotiki District Council created the town water supply and assumed its own access to it without, by its own admission, completing negotiations with the roadway owners, or any group that might have been thought to be them. It then contributed to the maintenance of the road for its own benefit, that of the owners, and 'the wider community' although the 'wider community' did not necessarily have any access rights, and the owners seem again not to have been consulted about community access over their private land;

7. There were several years of activity on Mr Livesey's application for a resource consent, and approval was given by the Opotiki District Council, prior to there being any meaningful consultation with the Maori owners of Parekura Hei Road. When that consultation took place, it was largely at the insistence of Judge Hingston, invoking s 317 of Te Ture Whenua Maori;

8. It is hard to see in the approval process through which the Opotiki District Council went in approving Mr Livesey's application for a resource consent that, although the documentation before it stated that the road was a Maori roadway, the Council did indeed have any regard for the actual owners of ParekuraHei Road. In this omission, the Council did not have regard for the 'actual and potential effects of allowing the activity' as required in s 104(1) of the Resource Management Act, or the relationship of Maori with their ancestral lands or observing the principles of the Treaty of Waitangi - such as active protection of Maori interests - as required in s 104(4)(g); and

9. Although it is debatable whether a local authority can commit a breach of the Treaty, an authority can certainly fail to observe its statutory obligations, and the Opotiki District Council appears not to have met its obligations in this aspect of the case.


No submissions were made by the applicant other than that the hapu/iwi supported the conclusions reached in the report. However, detailed legal submissions were received from Mr Kinder in the following manner:

1. That his clients had never sought to claim ownership or governance of the land, and have always acknowledged its status as Maori land, while of course maintaining their right to use it for the purpose of access to their own lands within the Livesey subdivision;

2. That Judge Hingston observed that Mr Livesey is not an owner of the road, but has the right to pass and repass, and those rights run with the land. (See 71 OPO 124);

3. That the order of the Court laying out Parekura Hei Road dated 5 June 1915 and made pursuant to section 48 of the Native Land Act 1913 has been memorialised on the Land Transfer Titles to each of the lands within the Livesey subdivision as follows:

"See PR6C/122 for the Court orders laying out a roadway to give access to the subdivisions of the Te Kaha block."

4. That as bona fide purchasers of land within the Te Kaha block, and in the absence of fraud (see Assets Co Ltd v Mere Roihi [1905] AC 275), and subsequent decisions regarding indefeasibility of title (see Fraser v Walker [1967] 1 AC 569), and the Australian decision (see Rock v Todeshino [1983] Qd 356) which affirms that once registration has taken place, the validity or even the existence of an instrument that determines a question of title is resolved on the basis that under the Torrens system it is registration itself which is decisive;

5. That Hauhangaroa 2C Block v The Attorney-General & Anor [1973] NZLR 389 (CA) is distinguishable and does not apply in the context of this case;

6. That the Court could make a formal order limiting user rights, provided those rights did not fall short of the general intention of a right of way easement as expressed by the Seventh Schedule of the Land Transfer Act 1952; and

7. That Mr Kinder's clients will endorse any decision made by this Court vesting the lands based on the findings and recommendations made by Dr Gilling so long as no compensation is sought from clients for the continuation of access.

On that date I reserved my decision and the file was transferred from the Rotorua office to me on 22 July 2002 for judgment.

ISSUES

The issues identified at 76 OPO 193 have been adjusted for the purposes of this judgment as:

1. Whether ownership of Parekura Hei Road can be determined; 2. Whether there is a role for Tikanga Maori and the Treaty of Waitangi/Te Tiriti 0

Waitangi; and 3. Whether or not the order signed by Judge Hingston can be limited to the class

known as Te Whanau a Ehutu who are the descendants of the original owners of the T e Kaha Block.


RELEVANT LAW AND APPLICATION IN THIS CASE

Issue One: Whether ownership of Parekura Hei Road can be determined

The original Te Kaha block was partitioned into 50 new titles over the period 1915-1922. The order laying out Parekura Hei Road was made during the subdivision/partition hearings in 1915. In total 13 road-lines including old Iwiroa Road, now known as Parekura Hei Road, were laid out by the Court. The road-lines were laid out under section 48 of the Native Land Amendment Act 1913. The relevant provision of the Native Land Amendment Act 1913 provides for the laying out of roadlines where a block is partitioned and the provision reads:

"(1) Upon any partition the Court may layout upon the land partitioned such road-lines (if any) as the Court thinks necessary or expedient for the use of the several parcels and for giving access or better access thereto.

(2) In lieu of or in addition to laying out road-lines under this section, the Court may, if it thinks fit, in and by partition orders made by it, create private rights of way over any parcels of the land partitioned and appurtenant to any other of those parcels; and in any such case every partition order made in respect of any such parcel shall set forth any right of way to which that parcel is so subject or which is appurtenant thereto.

(3) The Governor may, by Proclamation, proclaim any road-line laid out under sUbsection one hereof to be a public road, and the same shall thereupon vest in the Crown as a public road accordingly.

(4) Unless and until such a Proclamation is made, the lands so set apart as road-lines shall remain Native land held in common ownership as if no partition order had been made, but subject to such rights of way thereover (if any) as shall be stated in the orders made on partition and specified in the manner provided by subsection two hereof."

Ownership in this case is not contested by either the Opotiki District Council, Mr Livesey or Mr Kinder's clients but in my view it is important for the parties that I record what I understand to be the legal position.

No proclamation envisaged in section 48(3)/1913 was ever made in this case because the order was never drawn and signed until 1997. Therefore, the Iwiroa/Parekura Hei Road is still Maori land held in common ownership. As most of the original owners of the Te Kaha block would be deceased, it is their heirs and successors who would now be the owners of Iwiroa/Parekura Hei Road. This is because the situation is treated "as if the partition order had never been made." No legislation appears to have overridden or altered the status of the road since the order laying out Iwiroa/Parekura Hei Road was made. On its face, the impact of section 48/1913 would be that no successors in title to the partitioned blocks could claim an interest. Only the heirs and successors to those who held title in the original Te Kaha block could claim an interest.

The order relating to Iwiroa/Parekura Hei Road was made in 1915 and signed by Judge Hingston in 1997. It is reproduced here for convenience:


4 Te Kaha MB 258

ORDER LAYING OUT ROADWAY

The Native Land Amendment Act 1913, Section 48

In the Native Land Court of New Zealand Waiariki District

IN THE MATTER of a partition of Te Kaha Block and of

a roadline laid off to provide access

to the subdivisions thereof

AT a sitting of the Court held at Te Kaha on the 5th day of June 1915 before James Wakelin Browne, Esquire, Judge.

WHEREAS the Court upon partition of Te Kaha block, in order to give access to the subdivisions thereof, has deemed it necessary and expedient to layoff a roadline:

NOW THEREFORE the Court being satisfied as to all things it is required to be so satisfied, DOTH HEREBY ORDER, pursuant to section 48 of the Native Land Amendment Act 1913, that the land described in the schedule hereunder, be and the same, is hereby set apart as a roadline:

AS witness the hand of Heta Kenneth Hingston, a Judge, and the seal of the Court.

SCHEDULE

A roadline 100 links wide, as the same is shown on plan ML 2596/3 and ML 2597 deposited in the office of the Chief Surveyor, Gisborne Land District, and more particularly delineated on the diagram attached hereto.

Whether or not this order created a right of access to the use of Parekura Hei Road in 1915 depended on the effect of section 48 subsections (1) (2) & (4). Under subsection (1) the Court could layout road-lines for the use of the several parcels that were within the Te Kaha subdivision and for giving access or better access thereto. The order reproduced above does that. But the purpose for which the order was made could not be translated into a legal right of way. This is because the common ownership that is described in subsection 4 was subject only to such rights of way as those described in any orders made on partition. The relevant orders for partition in this case do not record the necessary rights of way as required by subsections (2) and (4). To this extent the conclusion reached by Dr Gilling that the 1913 Act left the ownership in the original owners of the Te Kaha block is correct.

However, the effect of section 427 of the Maori Affairs Act 1953 or section 326 of Te Ture Whenua Maori Act 1993 was not considered in argument before me or by Dr Gilling in his report to the Court. Those sections provide as follows:

Maori Affairs Act 1953

427 Alienation of Land To Include Alienation Of Interest In Roadway Giving Access To That Land

(1) Where any roadway which is comprised in a separate instrument of title has, whether before or after the commencement of this Act, been laid out by the Court over any Maori


freehold land, the transfer by sale or otherwise of any land to which the roadway gives access shall, unless the instrument of alienation expressly provides to the contrary, be and be deemed to have been a transfer by the alienor to the alienee of his interest (if any) in the roadway. If any such instrument of title is registered under the Land Transfer Act 1952, the alienee may apply for registration under that Act of any interest to which he has become entitled under this section, and the District Land Registrar may register the same accordingly.

(2) In any case to which subsection (1) hereof does not apply, the alienee of any land to which any roadway gives access (whether or not a separate title exists in respect of the roadway) shall have the same rights of access and be subject to the same obligations as were enjoyed by or imposed on the alienor in respect of the roadway prior to the transfer.

Te Ture Whenua Maori Act 1993

326 Alienation of land to include alienation of interest in roadway giving access to that land:

(1) Where any roadway that is comprised in a separate instrument of title has, whether before or after the commencement of this Act, been laid out by the Court over any Maori freehold land, the transfer by sale or otherwise of any land to which the roadway gives access shall, unless the instrument of alienation expressly provides to the contrary, be and be deemed to have been a transfer by the alienor to the alienee of the alienor's interest (if any) in the roadway.

(2) If any such instrument of title is registered under the Land Transfer Act 1952, the alienee may apply for registration under that Act of any interest to which the alienee has become entitled under this section, and the District Land Registrar may register the same accord ing Iy.

(3) In any case to which sUbsection (1) of this section does not apply, the alienee of any land to which any roadway gives access (whether or not a separate title exists in respect of the roadway) shall have the same rights of access and be subject to the same obligations as were enjoyed by or imposed on the alienor in respect of the roadway before the transfer.

I find that because of sections 427/53 and 326/93, Mr Livesey did become an owner in the road when he acquired title to Te Kaha 41A in 1990. This is despite the title to Te Kaha 41A existing independent of the original title to the Te Kaha block. As stated in section 48/1913, the Court must treat the situation as if the partitions had never taken place. The consequence of that was to leave the remnant of the Te Kaha Block following the partitions in 1915 including the Iwiroa/Parekura Hei Road, in the ownership of the original owners including Harawira Akuhata. His interest in the Te Kaha block, and therefore in the Parekura Hei Road, passed to his heirs and successors. They do not appear to have reserved any aspect of their interest in the Te Kaha Block when they entered into the transfer of the Te Kaha 41A block. Mr Livesey, because of the operation of section 427/53 and 326/93, was a successor in title to Te Kaha 41A and to the ownership interest held in the Parekura Hei Road. That means those who acquired title from him within the Livesey subdivision became owners in common with the Maori owners of the road.

If I have misapprehended the meaning and intent of the 1953 and 1993 provisions, section 326(3)/93 still gives to the owners in the Livesey subdivision the same rights of access subject to the same obligations as were enjoyed by or imposed on Mr Livesey (and before him the Akuhata successors in title) before they sold their interests. That means that at the least the current lot holders have a perpetual right of access.

Mr Kinder has rightly pointed out that the order of the Court laying out Parekura Hei Road dated 5 June 1915 and made pursuant to section 48 of the Native Land Act 1913, has been memorialised on the Land Transfer Titles to each of the lands within the Livesey subdivision as follows: "See PR6C/122 for the Court orders laying out a


roadway to give access to the subdivisions of the Te Kaha block." His clients brought their properties on the expectation that they would have access to their sections. They are bona fide purchasers for value. They have not acted fraudulently, (see Assets Co Ltd v Mere Roihi [1905] AC 275) and they have registered titles with a right of access memorialised on those titles. Their title is now good as against all others. (see Fraser v Walker [1967] 1 AC 569; Rock v Todeshino [1983] Qd 356; Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662; RegistrarGeneral of Land v Marshall [1995] 2 NZLR 189; and also see Bruce v Edwards [2003] 1 NZLR 515) That means I accept the submission made by Mr Kinder that once registration in the Land Office has taken place, the validity or even the existence of his clients' titles have been resolved on the basis that registration of those titles is sufficient to establish their entitlement. That would have been the case even without registration.

Issue Two: Whether there is a role for Tikanga Maori and the Treaty of WaitangilTe Tiriti 0 Waitangi

The Preamble to Te Ture Whenua Maori Act 1993 affirms that the Treaty of Waitangi established the special relationship between the Maori people and the Crown. It also declares that it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed and that it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people.

In these words Parliament has signaled its recognition of the rangatiratanga of Maori, including Te Whanau a Ehutu. The Waitangi Tribunal has found that the guarantee of rangatiratanga in Article II was a promise to protect the right of Maori to possess and control that which is theirs. (See inter-alia Orakei Report (Wai 9, Wellington, 1987) 134-135; Ngai Tahu Report (Wai 27, Wellington, 1991). In relation to Maori land that guarantee is consistent with the requirement of this Court to give effect to the principles in Te Ture Whenua Maori Act 1993 of retention and utilisation of Maori land in the hands of Maori owners, their whanau and their hapu. That being the case, the Treaty and tikanga Maori are important in ascertaining whether or not this Court should give effect to the wishes of the applicants as representatives of T e Whanau a Ehutu to have some control over the Parekura Hei Road. Although I do not grant the application for the reasons given below, the applicants have still achieved the result that in practical terms they are seeking through this judgment. They have established who are the owners. They also indicated that they do not want to prevent the owners in the Livesey subdivision having access. The result as I have described in this judgment is one that all parties should be able to live with if they demonstrate goodwill in the way they did during the Court hearings.

Issue Three: Whether or not the order granted by Judge Hingston can be limited to the class known as Te Whanau a Ehutu who are the descendants of the original owners of the T e Kaha Block.

The application before the Court is an application under section 318 of Te Ture Whenua Maori Act 1993, which provides:

318 Effect of laying out roadway

(1) Subject to the provisions of subsection (2) of this section, the laying out of a roadway over any land shall confer on all persons the same rights of user as if it were a public road.


(2) In any order laying out a roadway or in any subsequent order, the Court may define or limit the persons or classes of persons entitled to use the roadway, and may define or restrict their rights of user in such manner and to such extent as it thinks fit.

(3) In any order laying out a roadway or in any variation of that order, the Court may impose conditions as to the formation or fencing of the roadway or as to any other matter that it thinks fit, and may suspend or limit the right to use the roadway until those conditions have been complied with.

(3) The laying out of a roadway over any land shall not affect the ownership of the land comprised in the roadway, or its description as Maori land, or Crown land, or General land (as the case may be).

(5) Notwithstanding anything in this Part of this Act, no private road or private way shall be laid out within the district of a territorial authority otherwise than in accordance with sections 347 and 348 of the Local Government Act 1974.

A reading of this section indicates that I could not make an order as requested because the section does not apply to the order made in 1915 under section 48 of the Native Lands Act 1913 signed by Judge Hingston.

An example of why it can not apply concerns sUbsection 318(1)/93. That provision makes it clear that where the Maori Land Court makes an order for laying out a roadway, subsection 318(1)/93 confers on all persons the same rights of user as if it were a public road. That result is quite different to the result of laying out a road-line by order made under section 48 of the Native Land Amendment Act 1913. The 1913 Act declared the opposite intent providing that the road-line does not automatically become a public road and nor does it confer on all persons the same rights of user as if it were a public road. Furthermore, under section 52 of the 1913 Act, the position that this is not a public road, is underscored by the requirement of written consent from the owners before the land can be dedicated as a public road.

Another example of why section 318(2)/93 can not apply in this case relates to the requirement to comply with the Local Government Act 1974 as set out in subsection 318(5)/93. That is not a requirement for an order made under section 48/1913.

However, the fact that I can not make the order should not concern the applicants representing Te Whanau a Ehutu, as they have effectively established the point they were attempting to make that the original owners or their successors in title are the owners of Parekura Hei Road.

CONCLUSION

In conclusion, Parekura Hei Road is a private road and not a public road. To that extent Hauhangaroa 2C Block v The Attorney-General & Anor [1973] NZLR 389 (CA) applies. This is because in that case the Court of Appeal recognised that a Maori roadway remains just that unless properly proclaimed otherwise. The roadway is Maori land and it is owned by the heirs and successors in title to the original owners of the T e Kaha block. That effectively means members of Te Whanau a Ehutu who are heirs to the original Te Kaha Block owners. It also means Mr Kinder's clients.

As it is not a public road, there is no legal right of access for any members of the public or the Opotiki District Council. Arrangements for such access, for the public and/or to access the Te Kaha Water Supply Pump Station will need to be negotiated with all owners.

ORDERS

1. The application is dismissed. 2. There will be no order for costs.


C L Wickliffe JUDGE

place: gisborne present: judge c.l. wickliffe panui no ... · minute book: 81 opo 178 place ......

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