59 Tākitimu MB 227

IN THE MĀORI LAND COURT OF NEW ZEALAND

TĀKITIMU DISTRICT

A20170002287

UNDER Section 43 of Te Ture Whenua Māori Act 1993

IN THE MATTER OF An application to determine the most

appropriate representatives for the hapū of

Ahuriri

PETER NEE HARLAND

Applicant

AND PIRINIHA PRENTICE, BARRY WILSON,

TERRY WILSON, JOINELLA MAIHI-

CARROLL, BEVERLEY KEMP-HARMER,

TANIA HUATA, EVELYN RATIMA, RANGI

SPOONER AND HEITIA HIHA

Respondents

AND THE CROWN

Interested Party

Hearing: On the papers

Appearances: P Nee Harland in person

M von Dadelszen for the Respondents

G Melvin for the Crown

Judgment: 12 June 2017

JUDGMENT OF JUDGE L R HARVEY

Solicitors:

P Nee Harland, C/- 719 Ngaio Street, Mahora Hastings 4120 llmhons@gmail.com M von Dadelszen, Bannister & von Dadelszen, PO Box 745 Hastings 4156; mark.vondadelszen@bvond.co.nz

G Melvin, Crown Law, PO Box 2858 Wellington 6140; Geoffrey.Melvin@crownlaw.govt.nz

59 Tākitimu MB 228

Introduction

[1] By judgment dated 16 February 2017, the application by Peter Nee Harland,

regarding the appropriateness of the members of the Komiti for Mana Ahuriri Incorporated

Society (MAI) to represent Ahuriri hapū, was dismissed.

[2] Mr Nee Harland now seeks a rehearing. He submits that he was denied a hearing

and his issues were misunderstood by the Court such that it is in the interests of justice that a

rehearing be granted.

[3] The Komiti members, Mana Ahuriri Incorporated, and the Crown oppose the

application and maintain that the Court’s decision was correct and that the applicant has

failed to establish that the circumstances justify a rehearing.

Issue

[4] The issue for determination is whether a rehearing should be granted, in particular:

(a) Was Mr Nee Harland denied the opportunity to be heard?

(b) Did the Court misunderstand the application?

Background

[5] MAI was established for the purpose of representing Ngāti Hinepare, Ngāti Mahu,

Ngāti Matepu, Ngai Tawhao, Ngai Te Ruruku, Ngāti Paarau (which includes Ngai Tahu Ahi)

and the claims of Marangatuhetaua (Ngāti Tu) in negotiations with the Crown for a

comprehensive settlement of the historical claims of all seven hapū under Wai 55 (Te

Whanganui a Orotu), Wai 692 (Napier Hospital Claims) and all other historical claims of

Ngāti Hinepare, Ngāti Mahu, Ngāti Matepu, Ngāti Parau and Ngai Tawhao in respect to the

rohe of those hapū.1

[6] In 2009, by way of a postal vote, it is said that Ahuriri Hapū gave MAI a mandate to

negotiate a deed of settlement with the Crown. The evidence confirms that mandate proposal

was accepted by 98.8 per cent of registered adult members. The Crown recognised this

mandate on 29 January 2010.

1 Nee Harland v Prentice - Mana Ahuriri Incorporated Society (2017) 57 Tākitimu MB 1 (57 TKT

1) at [6] – [10]

59 Tākitimu MB 229

[7] MAI and the Crown, by terms of negotiation dated 22 June 2010, agreed the scope,

objectives, and general procedures for the negotiations and on 19 December 2013 agreed, in

principle, that Ahuriri Hapū and the Crown were willing to enter into a deed of settlement.

[8] On 19 December 2013, the Crown and MAI signed an Agreement in Principle which

formed the basis for the Ahuriri Hapū Deed of Settlement which was initialled on 19 June

2015 and signed on 2 November 2016.

[9] Ahuriri Hapū have, since that initialling, by a majority of 76 per cent, ratified the

deed of settlement and approved its signing on their behalf by Mana Ahuriri Trust (MAT)

the post-settlement governance entity for Ahuriri Hapū, and by a majority of 71 per cent,

approved MAT receiving the redress. As is customary, the settlement will be implemented

by legislation.

Procedural history

[10] The application for rehearing was filed on 16 March 2017. I then issued a direction

to advise the respondent parties that they had three weeks to file submissions in reply.

Counsel for MAI and the Komiti members responded on 12 April 2017. Counsel for the

Crown also filed a submission in reply on 12 April 2017.

[11] In addition, correspondence was received from Catherine McIntosh on behalf of the

Bank of New Zealand advising that all times the Bank has acted in good faith in its dealings

with the named committee members of MAI and with the trustees of Mana Ahuriri Trust.

She confirmed that the Bank’s dealings have been on the basis that the committee members

and trustees have the authority to represent MAI and Mana Ahuriri Trust respectively. Ms

McIntosh wishes to ensure that any orders made in response to the application do not

adversely impact the Bank.

Evidence

[12] Hawea Moananui filed an affidavit in support of the application. Mr Moananui is of

Ahuriri descent and supports the applicant’s submissions. He takes issue with the actions of

the Komiti and says he was present at the teleconference and his understanding was that

submissions would be filed following which a direction would issue. Mr Moananui sets out

a list of names to be considered by the Court for inclusion in the MAI registry.

59 Tākitimu MB 230

The Law

[13] The process for an application per s 30(1)(b) is set out in s 30C of the Act:

30C Powers of Judge in addressing applications for determination

(1) The jurisdiction in section 30(1)(b) is exercised on written application to the

Chief Judge.

(2) Within 20 working days of receiving an application under subsection (1), the

Chief Judge must allocate the application either to him or herself or to another Judge

to address.

(3) The Judge addressing an application for a determination may (but is not obliged

to) do 1 or more of the following things:

(a) determine the most appropriate representatives of a class or group of

Māori, and order accordingly, if subsection (5) applies:

(b) refer the application to the Māori Land Court for hearing and

determination:

(c) exercise the powers in section 67 for the purpose expressed in that

section:

(d) refer some or all of the issues arising from the application to a mediator

for mediation:

(e) dismiss or defer consideration of the application, if subsection (6)

applies.

(4) The Judge may choose not to address an application if the Judge is satisfied that

the issues it presents are governed by another enactment, or another part of this Act,

or are more appropriately addressed in another forum.

(5) The Judge may make a determination under subsection (3)(a) if the Judge is

satisfied that—

(a) the applicant has taken reasonable steps to notify those persons affected

by the application of the application; and

(b) those persons do not oppose the application.

(6) The Judge may dismiss or defer consideration of an application under subsection

(3)(e) if—

(a) it is vexatious, frivolous or an abuse of the Māori Land Court, or fails to

satisfy rules of court; or

(b) it does not present serious issues for determination; or

(c) the Judge considers it appropriate to dismiss or defer consideration of

the application for another reason.

[14] Section 43 of the Act states:

43 Rehearings

(1) Subject to subsection (2), on an application made in accordance with the

rules of court by any person interested in any matter in respect of which the

court has made an order, the Judge by whom the order was made or any

other Judge may order a rehearing upon such terms as the Judge thinks

reasonable, and in the meantime may stay the proceedings.

(2) A rehearing under this section shall not be granted on an application made

more than 28 days after the order, unless the Judge is satisfied that the

application could not reasonably have been made sooner.

59 Tākitimu MB 231

(3) An application under this section shall not operate as a stay of proceedings

unless the Judge so orders.

(4) The rehearing need not take place before the Judge by whom the

proceedings were originally heard.

(5) On any rehearing, the court may affirm its former determination, or may

vary or annul that determination, and may exercise any jurisdiction that it

could have exercised on the original hearing.

(6) When a rehearing has been granted, the period allowed for an appeal to the

Māori Appellate Court shall not commence to run until the rehearing has

been disposed of by a final order of the court.

[15] Henare v Māori Trustee - Parengarenga 3G sets out the principles for rehearing:2

[18] Section 43(1) contemplates that the Court has a discretion to grant a rehearing

in circumstances which might otherwise give rise to a miscarriage of justice.

[19] While the circumstances in which a rehearing may be granted are many and

varied, Courts have held that a rehearing is justified in cases where:

a) A judgment has been obtained by any unfair or improper practice of the successful

party to the prejudice of the opposite party; or

b) Material evidence has been discovered since the hearing which could not

reasonably have been foreseen or known before the hearing; or

c) Any witness has been guilty of such misconduct as to affect the result of a

hearing; or

d) A rehearing appears necessary in order to avoid possible injustice to the applicant

and there is no injury or prejudice to the opposing party.

[20] An application for a rehearing will not be allowed merely for the purposes of

repairing omissions in the presentation of an earlier case or for reshaping that case.

[21] Even where it is established that there has been a miscarriage of justice such

that a rehearing is justified, the jurisdiction is discretionary, and a Court may very

occasionally consider it inappropriate to grant a rehearing.

…

[24] While a rehearing will normally be granted where there are procedural defects

denying natural justice and in instances where further evidence becomes available,

these are not the only grounds for a rehearing.

[25] In terms of section 43(1), the ultimate question in the case of an application for

a rehearing is whether the applicant has established circumstances which, in their

totality, amount to a miscarriage of justice that justifies a rehearing. The onus is on

the applicant to establish circumstances having those attributes.

[16] Then in White v Potroz - Mohakatino Parininihi No 1C West 3A2 the Māori

Appellate Court determined that these factors are relevant to the Court’s exercise of its

discretion. They are not, however, prerequisites to the granting of a rehearing under s 43 of

the Act. The ultimate issue is where the interests of justice lie.3

2 [2012] Māori Appellate Court MB 1 (2012 APPEAL 1)

3 [2016] Māori Appellate Court MB 143 (2016 APPEAL 143)

59 Tākitimu MB 232

Was Mr Nee Harland denied an opportunity to be heard?

Applicant’s submissions

[17] Mr Nee Harland argues that he was not aware that the teleconference held on 9

December 2016 was the hearing. He says that as far as he understood things the parties were

to file submissions and wait, which he did. Mr Nee Harland states that it would have been

unrealistic to expect that in five days he could have prepared and filed evidence such as

witness briefs and affidavits because two of those days would have been taken up by the

weekend. He also says he would have also had to reconvene a meeting of the Ahuriri Hapū

which he had done twice previously. The first of which was publically advertised.

[18] Mr Nee Harland argues that s 30(1)(b) grants the Court a discretionary power to hear

the application. He says he would like in the first instance an opportunity to present

argument at a meeting of the parties and if necessary at a subsequent hearing, not via

submissions called for at a teleconference.

[19] He further points to s 30A which he says is intended to enable and encourage

applicants and persons affected by an application under s 30 to resolve their differences

concerning representation, without adjudication. The intent of s 30A of the Act is to enable

and encourage discussions to take place in order to try and avoid adjudication. He sees that

intermediate step as having been negated by the Court proceeding straight to adjudication.

Respondents’ submissions

[20] Mr von Dadelszen submits that if the Court intended there to be hearing it would

have said so at the teleconference, and the subsequent email from the case manger to the

parties. In addition, he pointed out that Mr Nee Harland filed additional submissions on 18

January 2017 but did not raise the issue of the necessity of an oral hearing.

[21] In addition, counsel argues that the onus is on Mr Nee Harland to establish

circumstances which in their totality establish a miscarriage of justice that justifies a

rehearing. Mr Nee Harland has not done so.

[22] In terms of the Court’s jurisdiction, Mr von Dadelszen submits that s 30C of the Act

sets out the process for dealing with an application. Per s 30C(2) the Court has a discretion

as to whether it is appropriate for the application to be referred for hearing and

59 Tākitimu MB 233

determination. To interpret s 30C as allowing an oral hearing would allow the full merits of

an application to be considered twice. First, when considering the options under s 30C and

second, if the application went to hearing.

[23] Mr von Dadelszen contends that s 30C(3)(b) enables a Judge to triage applications

and decide whether they should be allocated for hearing and determination. It would only be

if the Judge decided to refer the application to Court for hearing and determination that Mr

Nee Harland would have any grounds to consider that he has a right to an oral hearing.

Crown submissions

[24] Mr Melvin submits that there is no basis for granting a rehearing in this case. He

adds that, contrary to Mr Nee Harland’s submission, there has been no unfairness to the

applicant such that he has been denied natural justice.

[25] Counsel contends that it would only be if the Judge decided to refer the application

to Court for hearing and determination that Mr Nee Harland would have any grounds to

consider that he has a right to an oral hearing.

[26] Moreover, counsel argues that Mr Nee Harland is dressing up deficiencies in his

application as instances of procedural unfairness. Counsel says that Mr Nee Harland chose

to make the application in the way that he did. Mr Nee Harland failed to specify the purpose

for which the order under s 30 was sought and this was his responsibility alone. It is not the

result of any defect in the procedure the Court followed.

[27] Counsel further submits that Mr Nee Harland had the full opportunity to present his

case for the exercise of the Court’s jurisdiction per s 30. The Court addressed the

application per s 30C and was empowered to dismiss the application if one of the grounds in

s 30C(6) applied. Mr Nee Harland failed to persuade the Court that there was a proper basis

for the Court to make the orders sought. No miscarriage of justice occurred and a rehearing

is not justified so the present application should be dismissed.

Discussion

[28] I am satisfied that the application was filed within the 28 day time frame per s 43(2)

of the Act. The next step to consider is whether a rehearing should be granted. As

foreshadowed, s 43(1) provides that the Court has discretion to grant a rehearing in

59 Tākitimu MB 234

circumstances which might otherwise give rise to a miscarriage of justice. The ultimate

issue is where the interests of justice lie.

[29] The term “natural justice” has a long-established meaning. The two key principles

of natural justice are that the parties be given adequate notice and opportunity to be heard

(audi alteram partem) and that the decision maker be disinterested and unbiased (nemo debet

esse judex in propria sua causa). The extent of the requirements of natural justice, however,

depends on the circumstances and the nature of the decision, assessed in light of any relevant

statutory provisions.4

[30] In Maxwell v Parata – Maruata 2B2, the Māori Appellate Court confirmed that if

the Māori Land Court exercises jurisdiction of its own motion, then it must give notice to the

persons affected so that they are able to appear and be heard on the proposed exercise of

such jurisdiction.5

[31] Section 30C(3) sets out the options available to a Judge determining such

applications:

(a) determine the most appropriate representatives of a class or group of Māori, and

order accordingly, if subsection (5) applies:

(b) refer the application to the Māori Land Court for hearing and determination:

(c) exercise the powers in section 67 for the purpose expressed in that section:

(d) refer some or all of the issues arising from the application to a mediator for

mediation:

(e) dismiss or defer consideration of the application, if subsection (6) applies.

[32] In disposing of the original application, I determined that the allegations may be the

cause for some concern but confirmed that I could not see how they related to a s 30 order,

that is for ascertaining the most appropriate representatives for a specified purpose. The

applicant had not pointed to any current proceedings, negotiations, consultation, and

allocation of property or other matters which required the input of the Court in this context.

In fact, the only matters that are current are those concerning the Treaty settlement. As the

Crown had confirmed that it would not be bound by the outcome, as it has done in similar

cases, there seemed little point in making any decision on the application.

4 Combined Beneficiaries Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2

NZLR 56 at [11]. See also Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at

141 5 (1994) 4 Taitokerau Appellate MB 18 (4 APWH 18)

59 Tākitimu MB 235

[33] The present case can be distinguished from Maruata on the basis that by invoking

the discretion per s 30C(3) I was not exercising the Court’s jurisdiction of my own volition.

Rather, as the judgment makes plain, I was exercising option (e) as provided in s 30C(3) of

the Act. The parties were thus on notice and had been given the opportunity to be heard at

the teleconference as well as by way of written submissions, which the applicant filed on 14

December 2016. All of the relevant arguments and submissions were clearly before the

Court.

[34] My conclusion is that the applicant has not established that there has been a breach

of natural justice sufficient to warrant a rehearing.

Did the Court misunderstand the application?

Applicant’s submissions

[35] Mr Nee Harland argues that, in retrospect, he would have worded his application

more clearly. His intention was to have the Court exercise its jurisdiction per s 30(1)(b) of

the Act to determine whether in the given circumstances a named list of individuals were the

most appropriate representatives for the Ahuriri hapū.

[36] He says that at the teleconference he addressed the claim by Mr von Dadelszen that

the application was targeting MAI. Mr Nee Harland argues that there is a clear legal

distinction between the separate legal status of individuals in personam in contrast to the

separate legal status of an incorporated society. His application looks only at the individual

respondents and not at MAI. Part of the mix up he says can be attributed to the Māori Land

Court forms which require an applicant to name affected parties.

[37] Mr Nee Harland explains that he named MAI as an affected party because it is a

separate legal entity to the individuals named as respondents and MAI is an affected party.

Mr Nee Harland says he also might have mentioned the BNZ as an affected party and takes

issue with the intituling of the judgment which says in the matter of Mana Ahuriri

Incorporated Society.

Respondents’ submissions

[38] Mr von Dadelszen argues that, if as the applicant suggests, he misunderstood the

facts or misconstrued the issues, this does not establish any reason to grant a rehearing.

59 Tākitimu MB 236

Counsel submits that the applicant’s submissions (at [10]-[28]) are a repetition of issues

raised in the original application, at the teleconference and in the further submissions filed.

Accordingly, he contends that the application for rehearing is misguided, deficient and futile.

Crown submissions

[39] Mr Melvin submits that the applicant is dressing up deficiencies in his application as

instances of procedural unfairness. He argues that the applicant chose to make the

application in the way that he did. The applicant’s failure to specify the purpose for which

he sought the order under s 30 was his responsibility alone. It is not the result of any defect

in the procedure the Court followed.

[40] Counsel further submits that the Court was justified in finding contrary to the

applicant’s submissions that the application did relate to the Ahuriri Hapū Treaty settlement.

Discussion

[41] The applicant argues that the Court misunderstood the application and in doing so

has created a miscarriage of justice where the only viable remedy is the grant of a rehearing.

This argument is misconceived. In the original judgment it was stated:6

[31] In the present case Mr Nee Harland contends that the principal purpose of the

application is for the Court to determine that the respondents are not the most

appropriate representatives for MAI. The applicant takes no issue with the MAI

entity nor does he seek to challenge MAI’s mandate. His concern is with the acts and

or omissions of the respondents in their role as committee members of MAI.

[32] Mr Nee Harland says he is concerned that the respondents have breached

several rules contained in the MAI constitution particularly regarding the election of

committee members and the holding of annual general meetings. The applicant also

says that has real concerns about a loan some of the respondents’ authorised to be

taken out against MAI. He is opposed to that debt being transferred to the Post

Settlement Governance Entity – MAT and is also opposed to the respondents being

appointed as the initial trustees of MAT.

[33] While those allegations may be the cause for some concern I do not see how

they relate to a s 30 order. The Court’s jurisdiction is to be exercised for the purpose of determining who the most appropriate representatives are for a specified purpose.

The applicant has not pointed to any current proceedings, negotiations, consultation,

and allocation of property or other matters which require the intervention of the

Court. In fact the only matters that are current are those concerning the Treaty

settlement.

6 [2012] Māori Appellate Court MB 1 (2012 APPEAL 1) at [31] – [33]

59 Tākitimu MB 237

[42] I made it clear that as the applicant had not pointed to any current proceedings,

negotiations, consultation, and allocation of property or other matters which require the

intervention of the Court, the only current matter was the Treaty settlement. I further found

that the proper forum for establishing impropriety or unlawfulness about the operation of

societies or trusts not established under the Act is not the Māori Land Court but by way of

review or other civil proceedings in the High Court. So Mr Nee Harland’s arguments were

squarely before me.

[43] More importantly, in Henare v Māori Trustee - Parengarenga 3G it was confirmed

that an application for rehearing will not be permitted merely for the purposes of repairing

omissions in the presentation of an earlier case.7 By this process it appears that Mr Nee

Harland is, in effect, seeking to amend his original pleadings by resubmitting further

material concerning his substantive application. Mr Nee Harland has not established that the

Court has misunderstood the application and in so doing caused a miscarriage of justice.

Where do the overall interests of justice lie?

[44] As the Māori Appellate Court in White v Potroz - Mohakatino Parininihi No 1C West

3A2 stated, the overarching consideration is where the interests of justice lie.8 I consider that

Mr Nee Harland’s case remains directed against the respondents. As I found in my earlier

judgment, the proper forum for establishing impropriety or unlawfulness about the conduct

of societies or trusts not established under the Act is not the Māori Land Court but by way of

proceedings in a court of competent jurisdiction. There is accordingly no detriment to the

applicant in declining to grant the rehearing.

[45] On the other hand, the respondents and the Crown have been put to the effort of

having to respond to both the s 30 application and the rehearing application. This may well

become relevant to any costs application that may be considered.

[46] Having regard to these circumstances I consider that the interests of justice lie with

the respondents. My conclusion is that the applicant has not established circumstances

which, in their totality, amount to a miscarriage of justice that justifies a rehearing.

7 Ibid at [20]

8 [2016] Māori Appellate Court MB 143 (2016 APPEAL 143)

59 Tākitimu MB 238

Decision

[47] The application for rehearing is dismissed.

[48] In the absence of submissions my preliminary view is that costs should lie.

[49] If counsel disagree then they should exchange submissions within 1 month.

These orders are to issue immediately, per r7.5, Māori Land Court Rules 2011

Pronounced in Wellington at 2.15pm on Monday this 12th day of June 2017.

L R Harvey

JUDGE