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2004-2005 Maori L. Rev. 1 (2004-2005)

handle is hein.journals/maori2004 and id is 1 raw text is: February 2004 0ao La 0 *~ e CONTENTS MAORI LAND COURT & APPELLATE COURT Waitomo caves settlement - successions OTHER COURTS High Court - hapo occupation of Maori incorporation land - damages award High Court - meaning of taonga - use of term by non-Maori High Court - sale of land with land transfer title - effect of Maori land claim High Court - Mataurai X - Maori land under mortgage - validity of mortgage PARLIAMENT Foreshore and seabed debate Disclaimer: The information contained in this publication is a summary only. You should seek professional advice before taking any action in relation to matters dealt with in this publication. No responsibility is accepted for any loss arising from reliance on information in this publication. Tom Bennion PO Box 23280 Cable Car Lane Wellington, New Zealand Phone (04) 473 5755 Fax (04) 473 5751 Email tom@bennion.co.nz Researdc Rebecca Paton, Malcolm Birdling Pulbhe. Tom Bennion PO Box 23280 Cable Car Lane Wellington, New Zealand NarthAw iSal Gaunt Publishers 3011 Gulf Drive Holmes Beach Florida 34217-2199, USA Fax (813) 778 5252 Phone (813) 778 5211 InternetWeb Site: www.bennion.co.nz © Copyright Tom Bennion 2003 This issue may be cited as: Maori LR Feb 04 ISSN 1172-8434 MAORI LAND COURT & APPELLATE COURT Re Hauturu East Section 8 Block 20 APWM 158. 30 May 2003. Deputy CJ Isaac, Wickliffe, 2 MilroyJJ This case concerned disputed succession orders over the Hauturu East Block Section 8 containing the Waitomo 5 Caves, a major tourist destination. The land (formerly in 2 blocks) was taken compulsorily under the Public Works Act in 1905 and 1911. A claim was lodged with the Waitangi Tribunal seeking the return of the land. 8 The claim was referred to mediation and the parties agreed on a settlement involving the return the land. The Crown filed applications with the Maori Land Court in 1990 to vest the land in the original owners at the date of taking by the Crown. Immediately after the vesting occurred, an order was made vesting the block in a trust known as the Ruapuha Uekaha Hapo Trust, and the beneficiaries were defined as all descendants of the owners at the time the blocks were taken by the Crown. This was all done under s438 Maori Affairs Act 1953. Several descendants applied for succession orders. The Maori Land Court dismissed the application, finding that, while the land was vested in the original owners it was never intended that they be regarded as absolute owners and subject to rights of succession. The applicants appealed. Held: it is clear that the lower Court was influenced in its decision by the context in which the settlement was made. Waitangi Tribunal claims are often claims ranging over various breaches of the principles of the Treaty, and the settlements made may be intended as global settlements, rather than settlements of particular grievances. The Ngai Tahu settlement and the fisheries settlements are examples of such settlements. Land may be returned as compensation for grievances suffered by the hapu or iwi as a whole. In such cases, if the land were vested in tupuna, and if there was no specific indication that they were to take as full owners, it is reasonable to assume that the land is vested in trust for the hapu or iwi as a whole. This case involved a particular grievance which personally affected the original owners of the land. The claimants had advised the land court through their lawyer that the land was to be re-vested in the 4 original owners who were 'non-sellers' (ie owners would not part with the land under any conditions) to hold the land for the benefit of the Ruapuha and Uekaha hapia. However, the terms of settlement referred to the land being vested in the

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