JAN MATUKU MLC A2007001203 15 January 2010

IN THE MAORI LAND COURT

OF NEW ZEALAND

AOTEA DISTRICT

245 AOTEA MB 15

A20070001203

UNDER Section 216, Te Ture Whenua Maori Act

1993

IN THE MATTER OF Ngati Maru Wharanui Pukehou Trust

JAN MATUKU

Applicant

Hearing: 188 Aotea MB 159, 15 June 2007

195 Aotea MB 80, 19 October 2007

198 Aotea MB 178, 13 December 2007

202 Aotea MB 48-57, 5 March 2008

205 Aotea MB 136, 15 May 2008

214 Aotea MB 130, 21 August 2008

218 Aotea MB 206, 23 October 2008

221 Aotea MB 208, 5 December 2008

226 Aotea MB 38, 27 February 2009

230 Aotea MB 194, 24 April 2009

237 Aotea MB 183, 27 July 2009

Appearances: Mr N R Milner for the trustees

Mssrs R Pue, E Ngeru and D Patuwairua in person

Judgment: 15 January 2010

RESERVED JUDGMENT OF JUDGE L R HARVEY

Solicitors:

Kahui Legal, Wellington

245 Aotea MB 16

CONTENTS

Introduction [1]

Background [7]

High Court Proceedings [10]

Section 30 proceedings [11]

Enforcement of obligations of trust proceedings [12]

Application to create a whenua tōpu trust [14]

Submissions in support [25]

Registration process [26]

Notices, nominations and voting [30]

Results [34]

Disclaimers [37]

Payments to trustees [39]

Further submissions in support [41]

Submissions in opposition [44]

The Law [51]

Section 222, Te Ture Whenua Maori Act 1993 [56]

Discussion [57]

Whenua topu trusts [61]

The present proceedings [64]

The status quo [69]

Establishment of Te Rünanga o Ngäti Maru (Taranaki) Trust [71]

The election of trustees [76]

Improper disclosure [80]

Interim trustees [84]

Decision [ [97]

245 Aotea MB 17

Introduction

[1] In April 2004 at the request of the High Court an application per s30 of Te Ture Whenua

Māori Act 1993 was heard before this Court concerning a representative body for Ngäti Tama and

Ngāti Maru in the context of representation on Te Whare Punanga Korero Trust, a pan tribal Maori

health advisory body working with the Taranaki District Heath Board. Ngäti Maru Wharanui Pukehou

Trust sought recognition as the interim mandated body for Ngäti Maru. That claim by NMWPT was

challenged by individuals from what became known as the Ngāti Maru Claims Progression Trust or as

it is commonly known, the CPT.

[2] By a minute dated 16 July 2004 (141 Aotea MB 29) this Court noted that Te Runanga o

Ngäti Tama was the appropriate body to represent Ngäti Tama while acknowledging that the

issue was for Ngäti Maru was ―more problematic‖. The proceedings were then adjourned for

two years to enable the iwi to decide what kind of entity was appropriate and to then take the

necessary steps to create a mandated body. In the interim NMWPT was given transitional

recognition as the representative of Ngāti Maru for the purpose of the High Court proceedings.

Te Ohu Kaimoana has also recognised the mandate of NMWPT on an interim basis pending the

conclusion of more permanent arrangements.

[3] Jan Matuku and the trustees of NMWPT have applied for the creation of a whenua

tōpu trust to be styled Te Rūnanga o Ngäti Maru (Taranaki) Trust. They say that the

beneficiaries of NMWPT, being the iwi of Ngāti Maru, wish to have a whenua tōpu trust

established to act as a representative entity for the tribe for a number of purposes. Those

purposes include dealing with central and local government and other parties. Running

parallel to this application has been the creation of a private trust for the purpose of treating

with Te Ohu Kaimoana under the Māori Fisheries Act 2004. According to the trustees the

views of the beneficiaries have been sought through a series of hui and consultations over

several years.

[4] The trustees also say that the terms of trust have been approved by the iwi and that

the only remaining task is for the Court to create the trust and appoint trustees. An election

was held over the first quarter of 2009, which included a postal ballot and culminated in a

hui a iwi at Tarata Marae on 14 March 2009. Valid nominations were received from 17

individuals. At the request of the trustees Te Puni Kokiri oversaw the election. Mr Milner,

245 Aotea MB 18

counsel appointed to assist the trustees, was also present at the 14 March meeting and provided advice to

the trustees throughout the process.

[5] Since the election several submissions have been filed challenging the election process. In

essence, those objecting claim the election result was flawed and consequently the Court cannot rely

upon its outcomes. Others implored the Court to dismiss the application and allow the iwi to embark on

its own mandating process free of external influences. While the majority of current trustees of

NMWPT confirmed their desire for progress and for the Court to appoint trustees, at least one of their

number preferred a further period of consultation and discussion.

[6] The principal issue for determination is whether or not the sufficiency of notice, opportunity for

discussion and support tests have been satisfied for firstly, the creation of the trust and its terms and

secondly, the appointment of trustees.

Background

[7] According to the Court’s records, NMWPT administers Kerikeringa 5A2, Kerikeringa 5A3

and Pukehou Lots 1 & 2 DP 16751, three blocks of Māori freehold land comprising 6.8796, 12.3429

and 7.4641 hectares respectively. The lands were set aside as Māori reservations for the purposes of a

meeting place for the common use of the Ngāti Maru tribe. Notices to such effect were published in the

New Zealand Gazette on 26 June 1947 (No 35 p782), 15 June 1989 (No 102 p2614), 27 June 1991 (No

96 p2116), and 3 February 2005 (No 32 p782).

[8] The lands were originally vested in Te Hekenui Whakarake, Te Amo te Patu, Miki Nuku,

Henare Nuku, Ripeka Patu, Ngawai Patu and Ngarongo te Amo (56 Taranaki MB 336) as trustees. The

current trustees are Jan Jacob Matuku, Ron Puata, Michael Kopu, Toby Patu, Rowena Henry, Robert

Maxwell and Kawhena Otto Meri Jill Brand.

[9] It is important to record that the land used to establish the Māori reservation was given by

individual whänau and I am told the Kōpu family in particular have contributed significantly to the

marae lands.

245 Aotea MB 19

High Court proceedings

[10] As foreshadowed, an issue of representation for Ngāti Tama and Ngāti Maru arose in the High

Court in 2003 as to the mandate of those two independent tribes on Te Whare Pūnanga Körero Trust.

By oral judgment dated 15 December 2003 Venning J sought the advice of this Court as to the

appropriate representatives for Ngāti Tama and Ngāti Maru on the board of Te Whare Pūnanga Körero

Trust. These proceedings were subsequently adjourned pending this Court’s determination of the s30

application.

Section 30 proceedings

[11] By direction dated 15 April 2004 (2004 Chief Judge’s MB 213) Chief Judge J V Williams

issued a minute appointing Professor Hirini Mead and Mrs Areta Köpu as additional members of the

Court to hear the s30 application. As foreshadowed, this Court then issued a minute recognising

NMWPT as interim representative while adjourning the application for two years to enable the

establishment of an appropriate representative entity for Ngāti Maru.

Enforcement of obligations of trust

[12] In 2006 Rata Pue, a trustee of NMWPT, filed an application for enforcement of obligations of

trust. Mr Pue alleged that his fellow trustees had failed to be accountable, to have proper accounts

prepared, to deal with payment of creditors as and when they fell due and had lost the support of the

tribe. Mr Pue had been a witness for NMWPT in the s30 proceedings against the CPT but had

evidently fallen out with his colleagues by 2006. In a judgment dated 10 March 2006 Mr Pue’s

application was dismissed, 166 Aotea MB 290. Subsequently, it emerged that Mr Pue had been

declared bankrupt and so he resigned as a trustee.

[13] At the conclusion of the decision I noted that, given that the expiry of the two year adjournment

of the s30 proceedings was looming, and in light of obvious continuing difficulties over mandate issues,

the application might properly be brought on for hearing. Firstly, to assess progress with the creation of a

properly mandated body for the iwi and secondly, to check whether this Court’s preliminary advice to

the High Court remained accurate. A conference per s67 of the Act was to be arranged by the Registrar

at the New Plymouth sitting of the Court in February or April 2007.

245 Aotea MB 20

Application to create a whenua tōpu trust

[14] On 9 February 2007 (181 Aotea MB 137) I appointed Mr Nathan Milner, solicitor of

Wellington to represent the trustees for the purpose of establishing a whenua tōpu trust as a

representative entity for the iwi. I further directed Mr Milner to meet with Mr Matuku and other trustees

at their earliest convenience to discuss progressing the application in time for a conference scheduled for

20 April 2007. The purpose of the conference was to provide an update as to progress and to consider

any further timetabling directions that might be required.

[15] On 15 June 2007 (188 Aotea MB 159) Mr Milner informed me that he needed more time to

discuss the whenua töpu trust proposal with all NMWPT trustees. Moreover Mr Matuku was unable to

attend this hearing due to work commitments. I then adjourned the application until October.

[16] At the 19 October (195 Aotea MB 80) and 13 December 2007 (198 Aotea MB 178) hearings

Mr Milner provided the Court with further updates concerning the trust proposal. He stated that a draft

trust deed had been drawn up for consultation with the NMWPT trustees, Ngāti Maru beneficiaries and

other interested agencies including the Office of Treaty Settlements and Te Ohu Kaimoana.

[17] In addition, at the December hearing, Mr Pue raised performance issues and the

representativeness of the NMWPT trustees while Mrs Maria Kingi voiced concerns about the trustees’

running of an AGM. Mr Ngeru again challenged the standing of NMWPT to represent Ngāti Maru’s

interests as an iwi, (198 Aotea 184).

[18] A judicial conference was then held on 5 March 2008 (202 Aotea MB 48-57) where it became

clear that the trustees and the CPT remained at odds over mandate for the iwi. In an effort to confine the

relevant issues and to make progress I issued directions on 2 April 2008 (202 Aotea MB 58-60) that the

trustees attend a special sitting of the Court along with up to six representatives of the CPT for the

following purposes:

(a) to ascertain why the CPT continued to persist with its attempt to gain recognition from Te

Ohu Kai Moana as a mandated iwi organisation for the purposes of the Māori Fisheries Act

2004;

245 Aotea MB 21

(b) to explore the apparent inability of the trustees and the CPT to work cohesively toward the

goal of securing support for a single mandated body for the iwi of Ngāti Maru;

(c) to discuss practical issues surrounding establishing at least on a temporary basis some

infrastructure for the iwi to support the mandating process currently in train;

(d) to explore possible options for agreeing on a process by which all claiming an interest in the

mandating exercise can effectively participate to minimise the risk of future challenges and

other destabilising events; and

(e) to consider and agree on a procedural pathway forward to achieve the creation of a Ngāti

Maru whenua tōpu trust for the purpose of acting as a representative body of the iwi separate

from but acting, where appropriate, in concert with related tribal organisations.

[19] At the hearing held on 15 May 2008, (205 Aotea MB 136-139), in an attempt to move matters

forward, I appointed CPT representatives Edward Ngeru, Haimoana Maruera, Maria Kingi and Tony

Whareaitu as advisory trustees to NMWPT for six months pending the achieving of the objective of

creating a whenua tōpu trust and a common law trust for fisheries matters. The trustees were also to

report to the Court by way of minutes or letter on a monthly basis on progress in achieving the

aforementioned objectives.

[20] At a hearing held on 21 August 2008 (214 Aotea MB 130) the resignation of Mr Ngeru was

accepted and the application was adjourned to October for a progress report from the trust. Mr Ngeru

and others had claimed that the process was being frustrated by the NMWPT trustees’ deliberate failure

to work cooperatively and to secure the interests of the iwi over, for example, land banking of properties.

On 23 October 2008 (218 Aotea MB 206) the proceedings were before the Court again where the issue

of circulation of the trust terms and the holding of an AGM for NMWPT beneficiaries in November

were discussed. The application was then adjourned to December to determine whether there was

endorsement of the terms and concept of the trust, and the appointment of trustees.

[21] On 5 December 2008 (221 Aotea MB 208) a hearing was held to discuss the outcome of an

AGM held on 15 November 2008. The application was then adjourned to 27 February 2009 (226

Aotea MB 38) to further discuss particulars relating to the election process.

245 Aotea MB 22

[22] The proceedings were adjourned until April 2009 to receive a report on the outcome of the

voting process. At the conclusion of the hearing held on 24 April 2009 (230 Aotea MB 194) I

adjourned the application for three weeks to receive further submissions from any party. Nominees

were also invited to submit their resumes and supporting documents to the Court.

[23] The final hearing was held on 27 July 2009 (237 Aotea MB 183) to discuss the election

process and the nominees. After hearing from all interested parties I adjourned the application to

chambers for a reserved decision on the following basis, 237 Aotea MB 229:

―Having carefully considered the submissions of Mr Milner, the evidence given today and at previous

hearings, the numerous submissions that have been filed, the resumes and other supporting documents that

are on the Court file, I intend to move this proceeding forward by the appointment of trustees on an interim

basis for 12 months with a clear set of objectives to achieve within that window for and on behalf of Ngāti

Maru. Inevitably those persons who will carry the burden of trusteeship will be a mixture. I say this simply

because an interim arrangement is necessary for the here and the now. That there should be a further election

in due course, that goes without saying. But in the circumstances and taking into account all of the

submissions that have been made I am not convinced that the status quo should remain. It is clear to me that

aspects of the election process are as I have mentioned irretrievably tainted and the beneficiaries can have no

confidence in any process whereby the outcome was clearly unfair to at least one candidate. The activities of

the trustees and trustees elect have also excited some disquiet from amongst the parties and the beneficiaries

and that too will need to be taken into account.

These are serious and important matters for Ngāti Maru and I intend to consider very carefully whom I

should appoint. So regrettably I must prolong your agony and name the trustees in due course. After I have

reviewed again the resumes that have been provided, the evidence of our hearing today and my three Court

files on this matter. That people will be dissatisfied with the eventual outcome is certain. All I can tell you

now is that I will consider very carefully the appropriate mix of trustees to move these proceedings forward

to a conclusion taking into account section 222 of the Act, that the trustees must be broadly acceptable and

that the Court should take into account their expertise and knowledge and of course their ability. I should

stress that because objections have been raised as to the process, the candidates and so forth, a cautious

approach is necessary. ‖

[24] Since then several submissions have been filed by various individuals, most notably Mr Ngeru.

The Deputy Registrar then advised all participants that no further submissions would be received after 6

November 2009. Despite that, both Mr Ngeru and Mr Rata Pue decided to file submissions after this

date. In any event, those submissions are essentially repetition of earlier comments made both in writing

and at the hearings.

Submissions in support

[25] Mr Milner submitted, in summary, that:

245 Aotea MB 23

(a) While there are criticisms of the process on various levels there might be some way to

find a balance between accepting in entirety the election result and giving some

consideration to the process in light of the various comments that have been made;

(b) it is clear from the ratification and election process that the establishment of a whenua

töpu trust has not been a subject of any significant criticism. There has instead been

overwhelming support for the whenua töpu trust however it is the election of the trustees

that has drawn the most adverse comments;

(c) in any event the Court is not bound by the results of an election. Under s222 the Court

is required, in terms of support to be satisfied that there is a reasonable level of support for

the appointment of a trustee;

(d) several options are possible. Firstly, the Court could specify a more limited term for

the first set of initial trustees, different from that provided in the draft trust order and place

limits on those trustees such as a higher support level required at meetings of trustees rather

than a simple majority. Second, the trustees might have certain tasks prescribed for them

in that initial period such as the development and review of a comprehensive and robust

register of Ngäti Maru uri and a voting procedure encompassing hui not just in Taranaki

but wider areas. Third, that an independent person or someone with a sufficient degree of

separation from the factions be appointed in an advisory trustee role;

(e) in order to find a balance between a range of competing factors these variations would

be proposed for a limited period. Corresponding variations should be made to the

proposed fisheries trust in order to obtain mandatory iwi organisation recognition without

too onerous a burden; and

(f) the appointment of trustees should be completed by the Court at the earliest possible

opportunity.

Registration process

[26] As to the detail of the process counsel submitted that the trustees were all responsible

for the administration of the election and ratification process but the evidence confirms that

day to day management was carried out by Maria Kingi, Cynthia Kingi-Brown and Tony

Whareaitu. The Taranaki regional office of Te Puni Kokiri agreed to perform the

245 Aotea MB 24

role of chief returning officer for the election. In accordance with the terms of the draft trust order for the

whenua tōpu trust, participation involved a beneficiary being registered on either the new Ngāti Maru

register of beneficiaries that was to be established or to complete a registration form, along with the

nomination or voting form, and have that registration confirmed by a whakapapa validation committee.

The new Ngāti Maru register was to comprise the existing CPT register plus those individuals

submitting registration forms.

[27] Mr Milner also noted that the draft trust order provides for the establishment of a whakapapa

validation committee to review applications for registration and determine whether applicants have a

whakapapa to Ngāti Maru. The draft trust order lists the initial members of the committee as Kawhena

Brand, Ronald Puata, Noreen Kirkwood and Pat Kingi. It is important to note that Jill Brand and Ron

Puata were candidates in the election while Pat Kingi is the husband of Maria Kingi, and the father of

Cynthia Kingi-Brown, both candidates in the election. While it is evident that members of the

whakapapa validation committee reviewed applications for registration, no evidence was presented to

confirm that there was any review of eligibility for those already registered on the CPT register.

[28] According to counsel’s submission, prior to the advertising for eligible members to apply for

inclusion on the new Ngāti Maru register there were 635 individuals listed on the CPT register with 392

being over the age of 18. In addition, according to counsel, there were 173 new applications for

registration with 70 over the age of 18 years. However, some of those applications were from

individuals already registered on the CPT register and aside from those application, all of the ―new‖

applications were approved by the whakapapa validation committee.

[29] Counsel confirmed that the trustees had agreed that the Ngāti Maru register be provided to the

chief returning officer, Te Puni Kokiri and counsel also advised the trustees that this was necessary. On

several occasions Te Puni Kokiri requested that the hardcopy of the Ngäti Maru register be delivered

into their custody. Mr Milner further submitted that depositing the Ngāti Maru register with Te Puni

Kokiri and out of the control of two of the candidates would have provided a greater degree of

transparency to the process and would have minimised if not eliminated any suggestion of impropriety.

It was said that Te Puni Kokiri were satisfied with an electronic copy of the register. In any event, the

register was held at all times by Maria Kingi and Cynthia Kingi-Brown. A hard copy was eventually

provided to Te Puni Kokiri on 9 March 2009, four days prior to the end of the voting period.

245 Aotea MB 25

Notice, nominations and voting

[30] Mr Milner’s submission’s pointed to evidence confirming that public notices advising that

nominations were open, that voting had commenced and that a hui a iwi would take place on 14 March

2009 were placed in national, regional and local newspapers. Private notices containing similar details

were issued to beneficiaries for whom addresses were known as well as a number of individuals known

to be members of Ngāti Maru who were not recorded on the CPT register. In addition, relevant

information was posted on the Ngāti Maru website ngātimaru.co.nz.

[31] Counsel noted that nomination forms for 17 candidates were duly received and accepted as

eligible. All candidates were listed on the voting papers but only one took the opportunity to file

background or biographical information with their nomination form. Voters were asked to select up to

seven trustees. The voting paper included a resolution which stated that Te Runanga o Ngāti Maru

(Taranaki) trust order be adopted and ratified, that the trust would serve as the representative entity for

Ngāti Maru Taranaki and that the Pukehou Marae reservation be vested in and administered by the trust.

Voters were asked to tick agree or disagree. A second resolution related to the Maori Fisheries Act

2004.

[32] Voting packs containing background information and voting papers were sent out by the chief

returning officer to all those registered on the new Ngāti Maru register and who had provided their

addresses. These notices confirmed that voting papers were due with the chief returning officer by 13

March 2009 by post or could be presented in person at a hui a iwi to be held on 14 March 2009. It

should be noted that there have been suggestions that multiple voting packs, meaning voting papers for a

number of different individuals, were sent to the addresses of one or two of the candidates. This

suggestion is based on two of the candidates having custody of the Ngāti Maru register.

[33] Mr Milner attended the hui a iwi that was held on 14 March 2009 at Pukehou Marae and

confirmed that there were approximately 25-30 people in attendance. At the hui opportunity was given

for those in attendance to ask any questions of the trustees, candidates or counsel assisting however only

a brief discussion took place. Only a small number approximately 3-5 individuals in attendance

indicated that they had not yet voted. At 11:30am an announcement was made that voting would close

at 12:15 and an opportunity was given for those who had not yet participated to cast a vote.

245 Aotea MB 26

Results

[34] The chief returning officer according to Mr Milner had received the majority of the votes cast

by 5pm on Friday 13 March 2009. Provisional or special votes received were reviewed and validated

by members of the whakapapa validation committee. Prior to the hui a iwi the chief returning officer

conducted a count of the votes received at that point. Both the responsible and advisory trustees were

provided with an opportunity to have a representative present to scrutinise the account. The advisory

trustees nominated Mr Whareaitu as a scrutineer while the responsible trustees made no nomination.

Mr Whareaitu, with knowledge of the provisional vote and of the closeness of the vote between two of

the candidates, then arranged for beneficiaries to attend the hui a iwi and advised them to vote for

Haimoana Maruera a member of the CPT.

[35] The votes were counted by the chief returning officer and the results were announced. In

respect to the first resolution, 297 votes were in the affirmative while 12 were in the negative.

[36] The results for the election of trustees were:

Candidate

Vote Résumé submitted post election

Maria Kingi 182 Yes

Cynthia Kingi-Brown 144 Yes

Rona Hancock 131 Yes

Paul Carr 115 Yes

Ron Puata 85 Yes

Rangi Tapatu 81 Yes

Haimoana Maruera 79 Yes

Jan Matuku 77 Yes

Tony Pue 75 Yes

Tamzyn Pue 59 Yes

Denis Patuwairua 59

Kawhena Mere Jill Brand 59

Michael Kopu 54

Brenda Pue 54 Yes

Tahupotiki Rawiri 49

Rowena Henry 45 Yes

Joanne Teika 21

245 Aotea MB 27

Disclaimers

[37] For completeness Mr Milner noted that prior to the 14 March hui a iwi a number of

advertisements were placed in the Taranaki Daily News in the name of Dennis Patuwairua. Those

advertisements were entitled ―Ngāti Maru Claims Progression Trust Disclaimer‖ and the main point of

Reverend Patuwairua’s notices was his criticism that the CPT register was being used without the

permission of CPT trustees. Despite his objection, Reverend Patuwairua stood as a candidate in the

election along with Rona Hancock, another CPT trustee.

[38] Counsel also noted that prior to the hui a iwi, Mr Ngeru wrote two letters dated 20 February

and 17 March 2009 to the chief executive of Te Ohu Kaimoana and copy to the Court and others

making criticisms at the process being administered by the trustees. Like Reverend Patuwairua Mr

Ngeru claimed that the CPT register and been obtained ―illegally and illicitly‖ by theft and without the

permission of the CPT trustees. In the second letter Mr Ngeru claimed the CPT had hijacked and

manipulated the election process and as a result six CPT members had been elected. Mr Ngeru claimed

that an orchestrated attempt to manipulate the process was carried out successfully by way of electing

CPT members. However, despite this outcome he still wished to challenge the process because of the

comprehensive vote in favour of the decision that he opposed, namely the adoption of a whenua tōpu

trust to represent Ngāti Maru.

Payments to trustees

[39] Mr Milner submitted that there was evidence that before the hui a iwi the trustees reached an

agreement amongst themselves that they would receive payment for work completed in relation to the

ratification and election process. The relevant activities that included in the trustees rationale for

payment involved:

(a) attendance at trustee meetings where the ratification and election processes were discussed;

(b) administrative duties relating to answering phone enquiries registration of beneficiaries and

the ratification and election process; and

(c) acting as validation committee for applications for registration and expenses.

245 Aotea MB 28

[40] Counsel confirmed his instructions were that while some trustees declined to accept payments,

payments were sought and paid to some of the trustees, members of the whakapapa validation

committee and a non trustee involved in administrative duties namely Cynthia Kingi-Brown.

Following disclosure of this information the trustees were advised by counsel that there was no authority

to pay themselves fees or salaries. In addition, the trustees were advised that the close family connection

between Maria Kingi and Cynthia Kingi-Brown would excite suspicions of conflict of interest in the

absence of robust and transparent processes. On receipt of that advice the trustees concerned have

subsequently agreed to repay those amounts.

Further submissions in support

[41] Mr Matuku for the majority of the trustees endorsed Mr Milner’s submissions while noting

concerns over the voting process and in particular the custody of the register despite advice from counsel

and requests from Te Puni Kokiri that the hard copy be surrendered into their custody. Mr Matuku

underscored the need for the Court to now make a decision based on what evidence was available. Mr

Köpu submitted that further time was needed to enable the candidates a proper opportunity to be

scrutinized by the beneficiaries and answer their questions. He suggested that the current trustees simply

remain in office for a further 18 months or so while that process could unfold.

[42] Mrs Kingi made it plain that the election was held in accordance with the Court’s earlier

directions and that Te Puni Kokiri had overseen the process. The Court should now move to appoint

trustees, taking into account all of the comments that had been made since the election. Mrs Kingi

argued that it was for the Court to assess the suitability of the candidates and their conduct before

making a decision. She also expressed concerns at the actions of Messrs Maruera, Whareaitu and to

some extent, Mr Carr, in attempting, it was claimed, to put her name to resolutions without approval

to borrow money and proceed with other actions Mrs Kingi considered inappropriate.

[43] In similar vein Mr Maruera claimed that the process was, despite criticisms, fair

and transparent. He did however comment that he was surprised to have prevailed in the

election since this was unexpected. Mr Maruera also expressed frustration with any

further delay and stressed that the creation of the trust and the appointment of trustees was

necessary to enable Ngäti Maru to progress forward as an iwi. Mr Maruera also rejected

criticisms from Mrs Kingi that he had acted improperly during the first purported meeting of

245 Aotea MB 29

trustees where she had claimed Mr Maruera had behaved in an intimidating and inappropriate

manner.

Submissions in opposition

[44] It was also submitted, in summary, that:

(a) contrary to counsel’s advice and despite repeated requests from Te Puni Kokiri two of the

candidates refused to deliver up the hard copy register of Ngäti Maru members created by the

CPT. By a majority the trustees of NMWPT also requested on several occasions that the hard

copy register be delivered up to Te Puni Kokiri for the election;

(b) the process of validation of iwi membership was unsafe because candidates for the election

were part of the validation committee or had a spouse or parent on the committee;

(c) the trustees failed and/or refused to hold meetings of Ngäti Maru tribal members in regions

outside of Taranaki where the prospective nominees could be present to answer questions and

explain the terms of trust when they knew that the majority of Ngäti Maru tribal members live

outside of the tribal domain;

(d) the perception of potential conflict of interest, undue influence and inappropriate behaviour

has been created by the foregoing, namely the refusal of the two most successful candidates to

deliver up the register contrary to advice and the repeated requests of both the trustees and Te

Puni Kokiri, and the possibility that candidates received voting papers to their postal or their

residential addresses for registered members who did not reside at those addresses. Inevitably

this excited suspicion that candidates or their supporters may have voted en mass on behalf of

themselves;

(e) without appointment by the Court several of the nominees who polled highest during the

election held a meeting on 19 March to pass resolutions that included an intention to borrow

funds when they had no authority to pass such resolutions. In any event, the record of the

meeting is disputed by two of the nominees who claimed that they were intimidated and were

asked to resign when they challenged activities they considered were, without authority;

245 Aotea MB 30

(f) by their subsequent conduct of presuming authority when they possessed none the highest

polling candidates have proven themselves ineligible for appointment to such a responsible

position;

(g) a number of nominees including those who polled the highest votes, paid themselves and

used funds held in trust for the iwi on expenses when they had no right or authority to do so and

they too by their actions have rendered themselves ineligible for appointment; and

h) Mr Whareaitu, as a scrutineer on behalf of the CPT, disclosed to Ms Kingi the results of the

postal ballot before the hui a iwi vote had concluded with the remark that Mr Maruera was

―struggling.‖ Following that, Mr Whareaitu admitted that he then took three voters to the

Marae and encouraged them to vote for Mr Maruera in particular and other CPT candidates.

Mr Whareaitu acknowledged that he had advised Ms Kingi that the vote between Mr Matuku

and Mr Maruera was seven in favour of the former. The final outcome was Mr Maruera

received two more votes than Mr Matuku with the result that the whole vote was now

tarnished beyond repair.

[45] Mr Pue, in characteristically forceful terms, exhorted me to dismiss the application as he

claimed all of the current and prospective trustees were completely unsuitable. By their own actions and

past history he asserted all candidates were inappropriate appointees given their failure to being the tribe

together and even attempt to maintain its support. In his view the iwi had to go back to the drawing

board and start afresh. These individuals Mr Pue claimed could not take the iwi forward since they

lacked vision, experience and credibility in the eyes of Ngäti Maru. The only solution, he argued, was

dismissal of the application.

[46] Mr Ngeru was opposed to the concept of a whenua tōpu trust since he believed that a more

appropriate pathway for the iwi was to create its own structure free of any outside influences like the

Court. A tireless advocate for the CPT Mr Ngeru remained opposed to the whenua tōpu trust but when

the CPT candidates appeared to prevail he noted in one submission that he would accept the wishes of

the majority as it was necessary to participate in the process in order for the CPT to mount a takeover

from within. Despite that, in later submissions Mr Ngeru then repeated his original argument that the

application should be dismissed. Mr Ngeru also made criticisms of Mr Pue noting that the latter’s

support was negligible, implying that Mr Pue spoke for no one other than himself.

245 Aotea MB 31

[47] Mr Ngeru also made it plain in his voluminous correspondence to the Court and to outside

agencies including Te Ohu Kaimoana and various Ministers that members of the CPT were determined

to ensure by whatever means available an outcome favourable to the CPT. For example in a letter

dated 17 March 2009 to Te Ohu Kaimoana and copied to the Court, Mr Ngeru made the following

statements:

―Voting has taken place in Ngätimaru and fortuitously six of the seven trustees elected are

Ngätimaru Claims Progression Trust members. It was necessary to ―hijack‖ the Pukehou

TOKM waka because no notice was being taken of NCPT requests to re-examine the process

being followed. With the Maori Land Courts Judge’s consent some NCPT members were

able to climb aboard the Pukehou waka, throw Pukehou Trustees out, and take command of

the waka. There is more sense of relief rather one of victory in achieving this result. It was

necessary for NCPT to use this planned process to eliminate the opposition but this need not

have occurred if TOKM had been more aware of NCPT calls for accountability, experience,

capability, and Iwi support.‖

[48] The letter then states:

―Was NCPT’s action necessary? Yes. Was it devious? Yes. Was it fair? Hell no!‖

[49] Then another letter to the Court dated 12 July 2009 Mr Ngeru again criticised the process and in

particular the Court’s involvement. He was particularly concerned over the registration process:

―The recent voting process held in March 2009 was flawed and has created issues that now

need to be addressed

1. Names of registrants were used without their consent to meet required criteria

numbers.

2. The Maori Land Court confirmed that the names of these registrants could be used

to aid the voting process.

3. Only one hui was held to inform the Iwi of what they were voting for, held at

Pukehou Marae on the final day of voting March 14 2009.

4. The anomalies in the voting process and the vote counting requires auditing.

5. Ngäti Te Ika Hapu did not participate as a recognised hapu in the voting process

because there was no acknowledgement that there was a place for hapu. Only

individuals who volunteered to become trustees were accepted. The majority of those

who volunteered were from Taranaki.

6. The Ngäti Maru people have voted for trustees and there is no way they will vote

again if no notice is taken of their vote count. If the democratic process is rejected

they will see that there is no point in participating in any future Ngäti Maru election.

[50] At the hearing held on 27 July 2009 Mr Ngeru was present and did not deny those

statements or attempt to retract them in any way. On the contrary, Mr Ngeru seemed to be

advancing two positions. Firstly, that the process was flawed, beyond redemption and

unreliable. Secondly, he argued that if the Court did not endorse the highest polling

candidates then Ngäti Maru would have even less confidence in the Court’s processes for

election of trustees to create a representative entity for the iwi. Mr Ngeru’s letters reflect

245 Aotea MB 32

the lengths to which one of the groups was prepared to go to secure an outcome favourable to that

faction. I imagine in the future, Ngäti Maru beneficiaries will read the comments made in that

correspondence, in meetings of the iwi and indeed in some of the hearings, with dismay.

The Law

[51] Section 216 of the Act provides the Court with exclusive jurisdiction to establish a whenua

tōpu trust. Then in s216(2) the purpose of such a trust is defined:

(2) A whenua tōpu trust may be constituted where the Court is satisfied that the

constitution of the trust would promote and facilitate the use and administration of the

land in the interests of the iwi or hapū.

(Emphasis added)

[52] Section 216(3) sets out the requirements of an application for creating a trust:

(3) An application for the constitution of a whenua tōpu trust under this section—

(a) Shall be made in respect of all the beneficial interests in 1 block or in 2 or

more blocks of land; and

(b) May be made by or on behalf of any of the owners or the Registrar of the

Court.

[53] The exercise of the Court’s jurisdiction requires under s216(4) that the sufficiency of notice and

opportunity for discussion tests have been satisfied and that there is no ―meritorious‖ objection to the

application, having regard to the nature and importance of the matter. The sufficiency of notice, of

opportunity for discussion and of support tests have been considered in a number of decisions including

Brown – Kairakau 2C5B (1996) 11 Taitokerau Appellate MB 43 (11 ACTK 43), Karu o te whenua

B2B5B1 (1996) 19 Waikato Maniapoto Appellate MB 40 (19 WMACMB 40) and Brown v Māori

Appellate Court [2001] 1 NZLR 87 and Reid v Kaiwaitau (2006) 34 Gisborne Appellate Court MB

168 (34 APGS 168) at p172.

[54] The assets of a whenua tōpu trust are then held, per s216(5) in accordance with

Maori community purposes defined in s218 for the general benefit of the members of the

iwi. Sections 216(6)-(8) are not immediately relevant to the present application since they

deal with issues of shareholding in the underlying freehold title and the need to make

separate provision for large shareholders. This is particularly pertinent where dividends are

245 Aotea MB 33

payable to owners of Mäori freehold land but in this case as the land is subject to the overlay of a Mäori

reservation issues of dividends are not relevant.

[55] In terms of case law decisions concerning whenua tōpu trusts include Taipari v Gordon –

Waiheke Station (1999) 19 Waikato Maniapoto Appellate MB 156 (19 WMAC 156) and Sargent –

Ngatekawa (2008)126 Whangārei MB 134 (126 WH 134).

Section 222, Te Ture Whenua Maori Act 1993

[56] The appointment of trustees requires consideration of section 222:

(1) Subject to subsections (2) and (3) of this section, the Court: may appoint as trustee of any

trust constituted under this Part of this Act-

(a) An individual; or

(b) A Māori Trust Board constituted under the Māori Trust Boards Act 1955 or any

other enactment, or any body corporate constituted by or under any enactment; or

(c) A Māori incorporation ; or

(d) The Māori Trustee; or

(e) Public Trust;

(f) A trustee company within the meaning of the Trustee Companies Act 1967.

(2) The Court in deciding whether to appoint any individual or body to be a trustee to be a trustee

of a trust constituted under this Part of this Act, -

(a) Shall have regard to the ability, experience, and knowledge of the individual or

body; and

(b) Shall not appoint an individual or body unless it is satisfied that the appointment of

that individual or body would be broadly acceptable to the beneficiaries.

(3) The Court: shall not appoint any individual or body to be a trustee of any trust constituted

under this Part of this Act unless it is satisfied that the proposed appointee consents to the

appointment.

(4) Subject to subsection (5) of this section, the Court may appoint any such individual or body

as a responsible trustee, or an advisory trustee, or a custodian trustee.

(5) For every trust constituted under this Part of this Act the Court shall appoint 1 or more

responsible trustees, and may appoint 1 or more advisory trustees and 1 or more custodian

trustees.

Discussion

[57] When the question of the mandate of Ngäti Maru first arose before the High Court,

this Court’s advice in 2004 was that representation for the iwi in the context of those

proceedings was ―more problematic‖. This Court considered that a further two year period

was needed to enable the tribe to determine for itself its own representative structure. Many

hearings, conferences and hui have been held since 2004 in an effort to find a solution to the

issue of mandate for Ngäti Maru. The determination of a properly constituted and mandated

245 Aotea MB 34

body for the iwi has thus been before this Court for over five years. Some solutions then, even if only on

an interim basis, are overdue.

[58] Almost all of the participants in this case have implored me to make a decision as soon as

possible, preferably in the submitter’s favour, to end the mandate impasse and create the whenua töpu

trust without any further delay. They stress the unsuitability of opponents and underscore the

appropriateness of their own appointment to further the interests of the iwi. Some have even suggested

adding further persons as trustees even though they did not stand for election. Much was then made of

the necessity to advance the Treaty settlement process with the Crown and the desirability of achieving

mandate recognition and agreeing terms of negotiation with the Crown by March 2010. For

completeness, while I note that the application per s30 of the Act remains adjourned, it should be

emphasised that s30H(2) provides that no determination by this Court as to mandate in the context of

Treaty settlements can bind the Crown unless the Crown agrees to be bound.

[59] I am also told that the decision on the present application has implications for recognition of a

mandated iwi organisation for the purposes of the Mäori Fisheries Settlement Act 2004. NMWPT is

the current registered iwi organisation or RIO and I am aware that the CPT have been seeking to oust

the mandate of NMWPT and gain for itself recognition from Te Ohu Kaimoana. The short point is that

the stakes are high for the iwi both in terms of Treaty settlement negotiations and fisheries matters,

notwithstanding that for fisheries at least interim arrangements are currently in place.

[60] So in a number of critical areas of tribal activity a more permanent solution as to whom has the

mandate for Ngäti Maru needs to be found, in the absence of some sensible solution agreed between all

parties and with the endorsement of the iwi. The present application to create a whenua töpu trust for the

tribe therefore needs to be considered in this context. As to whether or not such a trust is suitable for

present purposes, a brief review of the utility of the whenua töpu trust by iwi and hapū is appropriate.

Whenua töpu trusts

[61] It has been said that whenua töpu trusts, or indeed any trusts established under Te Ture

Whenua Māori Act 1993, like trusts created under the Charitable Trust Act 1956, are

inappropriate entities for the purposes of receiving redress from the Crown in settlement of

Treaty claims. Yet in this district alone I note that in recent times at least three whenua tōpu

trusts have been established by iwi and hapū to receive property from the Crown, a territorial

245 Aotea MB 35

authority or a private party. Those trusts established in this and other districts for Treaty settlement

purposes include:

(a) the Pakaitore Whenua Tōpu Trust created by the tribes of Whanganui to receive firstly

Pakaitore (Moutoa Gardens), the Whanganui Courthouse lands and in due course, the interests

of the tribes of Whanganui in the Kaitoke Prison and the Lismore State Forest;

(b) Puke Ariki and Bayly Road whenua töpu trusts established for the benefit of the Ngäti Te

Whiti hapü of Te Atiawa in Taranaki to receive lands from private parties;

(c) Rotoehu Forest whenua töpu trust created to receive former Crown forest licensed lands as

part of the Ngäti Awa settlement for the benefit of two particular hapü, Ngäti Hikakino and

Ngai Te Rangihouhiri II.

[62] Clearly then the device of the whenua tōpu trust has been used for receiving, inter alia,

settlement properties while acknowledging that the trusts so established play more of a custodianship

role rather than strictly speaking, a representative role for the iwi and hapū concerned. They have not

however been given the authority to conduct Treaty settlement negotiations with the Crown, a

responsibility left to other bodies mandated by iwi. Indeed, there is no reference to mandate or

representation in s216. The purpose of a whenua tōpu trust is set out, rather briefly, in s216(2) which

provides that such a trust may be established if the Court is satisfied that this would ―promote and

facilitate‖ the ―use and administration‖ of the land in the ―interests of the iwi or hapū.‖ That said, it is

obvious from the public notice sections of major daily newspapers that the Crown has recognised the

mandates of a range of organisations and individuals for such purposes.

[63] A whenua tōpu trust need not be the post settlement governance entity for the iwi if

Ngäti Maru decides to settle its historical claims in the near future. Indeed, if a private trust

or similar body is created as a post settlement governance entity to act as the mandated body

of the tribe it may be that the whenua tōpu trust simply becomes a land holding entity,

permanent or temporary, or reverts to acting as the custodian of the marae. For present

purposes, in the absence of any viable alternative, a whenua tōpu trust may act as

coordinator of the activities of the iwi until such time as a more durable solution can be

found. The key point is that if the beneficiaries, being the iwi of Ngäti Maru, decide to

mandate a whenua tōpu trust to act for them on any matter, including negotiations, then that

245 Aotea MB 36

is a matter for the tribe and for the party they are dealing with. All the Court needs to be concerned with

is whether the tests for the creation of such a body have been satisfied.

The present proceedings

[64] When Mr Pue’s application against the trustees for enforcement of obligations of trust was

dismissed in 2006, I made the following comments at paras [27]-[29] of that decision:

―[27] Mr Pue and his supporters contend that they have the support of the

beneficiaries. He implored the Court to set aside its orders of 22 December and

declare the hui invalid. He further contended that the meeting was inherently

unsound because of the irregularities concerning voting. In his view the hui was

farcical and the result so tainted by improper behaviour that no Court could rely on

its outcomes. For his part Mr Matuku says that his group has the support of the

beneficiaries and simply want to get on with the task of administering the

reservation for their benefit.

[28] While both factions stood together against the mandate claims of yet another

group in section 30 proceedings before this Court in 2004, it would appear that that

fragile unity has fragmented. The factions simply cannot work together. As a

result, its bankers have frozen its accounts, creditors are unpaid and there remains,

despite my directions, either confusion or an uncooperative attitude towards the

continuing proper administration of the affairs of this trust. Then there are the

allegations of abuse, intimidation and violence, which it was claimed were now

regular features at general meetings of the beneficiaries. This hostile atmosphere is

complicated further by overlays of tikanga Māori concerning elders of the marae and

the consideration of whakapapa that some of the parties say have clouded the issues

even more. It is thus an understatement to observe that personal animosities and

continuing acrimony, between trustees, even displayed at Court, have rendered the

proper functioning of this Trust, as it is presently constituted, problematic.

[29] That there were objections by Mr Pue and his supporters to the processes

adopted by the hui facilitator cannot be in doubt. Whether or not non beneficiaries

voted, beneficiaries voted more than once or potential voters were intimidated into

leaving reinforces the fact that increasingly, the struggle for mandate often

precipitates serious unpleasantness between those whom are close whänau. The

intense heat created in the cauldron of iwi politics ensures disruption and ill will

sometimes to the point of paralysis. The tribe becomes distracted by mandate

sideshows which then enable external parties to avoid any dealings with the iwi.

Tribal hui can become highly charged as angry exchanges predominate and

positions become more polarised with the result that such enmity turns gaps into

chasms.‖

[65] Regrettably, when the minutes and evidence of the last three years since that

decision are reviewed, it appears that the hostilities and animosity apparent then have

remained. That said, Mrs Kingi and some of the CPT trustees at least, like their NMWPT

counterparts, by their actions have recognised the reality and necessity of compromise. Mr

Pue speaks of more suitable candidates to replace the current and prospective nominees

whom he claims are discredited and unsuitable. Yet when pressed even he admitted that

245 Aotea MB 37

some individuals he had suggested had already declined nomination for fear of being drawn into the

clearly polarised positions between NMWPT and CPT.

[66] In short, Ngäti Maru does not appear at present to have a deep pool from which to draw fresh

and willing candidates for nomination to representative entities for the iwi. A practical approach would

suggest that, as the election result has borne out, a mix of candidates from both the NMWPT and CPT

will be necessary, in the absence of a more credible process that has involved a higher degree of notice,

consultation, discussion and participation by Ngäti Maru individuals.

[67] When the minutes of the earlier hearings are considered it is obvious that those members of

Ngäti Maru who have participated in these processes have become frustrated by the lack of progress in

having the question resolved. While it would have been preferable that the issue was settled without the

involvement of the Court, the Crown or any other outside influence, the trustees have filed an application

for the creation of a whenua töpü trust. They are entitled to have that application determined, and if any

of the beneficiaries are dissatisfied with any outcome ordered by this Court, then they have remedies

available to them.

[68] Four obvious options are available to the Court. First, the status quo - the application for

establishment of a whenua tōpu trust could simply be dismissed. Second, the trust could be established

and the seven highest polling candidates from the recent election could be appointed to the trust. Third,

if it is determined that the election was irredeemably tainted and its outcomes rendered unsafe, a fresh

election could be ordered under the control of the Court or some other independent scrutinising

authority. Fourth, the whenua tōpu trust could be constituted and trustees appointed with a limited

tenure, with specific objectives to achieve within that defined timeframe, and they may not necessarily

be the highest polling candidates in the election. These possibilities are now considered in turn.

The status quo

[69] In my assessment the evidence is clear that many members of the iwi have

participated in the various hui, postal ballots and meetings to consider the creation of the

trust and the need for a mandated body to deal with Ngäti Maru tribal business across a

range of fronts. The evidence confirms support from the iwi for the establishment of the

trust. I have not seen any alternative material that any rival organisation can muster of a

similar track record of engagement with Ngäti Maru at their sole remaining marae, Tarata,

245 Aotea MB 38

for this purpose. Apart from Messrs Ngeru and Pue there did not seem to be significant opposition from

Ngäti Maru to the creation of the whenua tōpu trust. It was the names of the proposed trustees that

generated the discussion. Even Mr Patuwairua, who opposed the process, still allowed his name to go

forward as a candidate for election.

[70] That there have over the years been allegations of intimidation, threats and violence during the

process is acknowledged. Indeed, as foreshadowed in 2006, at one meeting to discuss these issues the

local Māori liaison officer, Gordon Rongonui and another member of the police were present to ensure

the hui proceeded properly and even that meeting was labelled suspect by some. The critical point is

that those efforts over the last five years involving many Ngäti Maru members, including the publicly

notified election process in the first quarter of 2009, should count for something.

Establishment of Te Rūnanga o Ngäti Maru (Taranaki) Trust

[71] The participants in the process have voted resoundingly for the trust, with 297 out of a potential

500 plus eligible voters endorsing the whenua tōpu trust and the proposed trust order. It will be

remembered that the CPT register at the time of the election had 392 members recorded over 18 with a

further 173 new registrants, while noting there was degree of overlap between the two. Making some

reasonable allowance for such duplication, over half of potential eligible voters supported the creation of

the trust. It must also be noted that of the participating beneficiaries only 12 voted against the resolution.

Mr Ngeru had argued that the CPT register had been used improperly and that its membership would

not support the trust.

[72] I suggested that if this were correct then no doubt the CPT beneficiaries would vote against the

resolution to create the whenua tōpu trust. Clearly they did not and instead almost 300 adult members of

the iwi, principally registered through the CPT, have endorsed the whenua tōpu trust. I have not seen, in

the six years these proceedings have been before this Court, voter participation within Ngäti Maru even

approaching this level of engagement and support. The objections made are noted but I find them

unmeritorious against the background of support for the process and for the trust itself in the vote that

occurred. While some may argue that there are many more members of the iwi that should have

participated, they were never denied that opportunity. Indeed, as I mentioned at the hearings, if there

was such a groundswell of opposition then the registered members could vote against the trust proposal.

In the end, only 12 did so – hardly a compelling argument for dismissing the application.

245 Aotea MB 39

[73] In summary, I accept that the sufficiency of notice, opportunity for discussion and the

sufficiency of support tests have been satisfied to enable the establishment of a whenua tōpu trust to be

known as Te Rūnanga o Ngäti Maru (Taranaki) Trust as a representative entity for the iwi. For

completeness I note that there has more than adequate notice not only of the election and the

establishment of the trust, but also of the hearings held to discuss the issues surrounding the very concept

of whenua tōpu trust since June 2007. I do not accept therefore any criticism that this process has been

progressed – and I use that word carefully – with indecent haste or without providing all parties with the

opportunity to put their arguments forward and to respond to other parties’ submissions.

[74] In addition, at the risk of belabouring the point I must underscore that this outcome is for

present and immediate purposes, in the absence of a legitimate and viable alternative. In due course the

iwi will need to consider more permanent arrangements for a durable tribal authority that properly

represents all beneficiaries of Ngäti Maru. However, to move the business of the iwi forward, including

the proposed Treaty settlement negotiations and fisheries allocations, a new vehicle incorporating

elements from the competing factions is necessary.

[75] Consequently, I consider any argument for retention of the status quo by Messrs Köpu, Pue

and Ngeru untenable. The issue of mandate has occupied the Ngäti Maru tribe and its beneficiaries for

over five years before this Court alone. While some have argued strenuously for either dismissal of the

application or a re-run of the election from scratch, I consider a dismissal of the present application to be

both inappropriate and counter-productive. Such an action would serve no useful purpose and would

have the effect of pushing the issue back to Ngäti Maru where, regrettably it would seem, the prospects

of resolution of the mandate issue appear remote at best. I am therefore not persuaded by the arguments

of Mr Pue and others that the application should be dismissed and the process commence afresh. What

then of the election process itself?

The election of trustees

―Voting by beneficiaries is not orthodox in general trust law. It has been grafted onto the

Trust system by this Court to make the structure conform to an extent with the Incorporation

mode and to give owners the opportunity to have their say. The result however except in

some very specific circumstances does not decide anything. Voting is a device for making

the views and the strength of those views known to the Trustees and the Court. It gives the

owners a venue and structure for discussion... There is provision for voting by show of

hands and the use of proxies. The Trust order is however silent as to what may be voted on

and the effect of that vote... While the Court is bound to appoint only those it considers

245 Aotea MB 40

qualified and broadly acceptable to the owners, it is the Court that must make the final

decision and make the appointment. The voting is a method of indicating to the Court who

might be broadly acceptable but in the end the law is the Court must make the decision.‖

Proprietors of Mangakino Township (1999) 73 Taupo MB 30 at 32, Judge P J Savage

[76] It is plain from the evidence that the election process was far from perfect. The CPT register

was the only available list of beneficiaries that could be used for the voting. Some of the CPT supporters

objected to its use without the consent of the individual beneficiaries. Others who were themselves

candidates in the election argued that it was appropriate to use the CPT register since Ngäti Maru had to

make progress and the two factions needed to work co-operatively rather than against each other. While

those sentiments are endorsed, I consider that it was inappropriate for the register to have been retained

by candidates in the election process.

[77] Counsel had advised those whom held the register to deliver it into the custody of Te Puni

Kökiri for at least the duration of the election process but that this advice went unheeded. While I accept

that Te Puni Kökiri were provided with an electronic copy of the register, I still consider in all the

circumstances that it was necessary for any candidates in the election process to deliver up to Te Puni

Kökiri the hard copy original of the register. It was Te Puni Kökiri who would retain oversight of the

process and to ensure that the election maintained credibility in the eyes of the beneficiaries.

[78] Then there was the issue of the validation committee members being either, not members of

Ngäti Maru as has been claimed, or candidates in the elections themselves, or both. Once again, a

perception of the potential for conflict of interest to arise was very real, taking into account the particular

circumstances of these proceedings. It would have been better that those standing as candidates were at

arms length and removed from any aspect of the election process other than accepting nomination,

campaigning and voting. Those whom had offered themselves for election as candidates should not

have participated in the validation committee process to determine who would or would not be eligible

to vote.

[79] For those two reasons alone - failure to deliver up the hard copy of the register to Te

Puni Kokiri, and the participation by members of the whakapapa validation committee in the

process as candidates - the election has already been tainted by a perception of improper

process. Then there are the CPT claims of Mr Ngeru and Reverend Patuwairua that the CPT

register was used by the trustees ―illegally‖ without the approval of the CPT trustees and that

245 Aotea MB 41

―theft‖ had occurred. If these claims are to be pursued then the appropriate authorities should be

involved. It will be remembered that CPT trustees including Reverend Patuwairua also stood for

election. In my assessment, despite these claims, there is still insufficient evidence to render the election

outcome unsafe to the point where the votes in their totality can be disregarded. A more focused review

of the evidence is therefore appropriate to ascertain whether or not the allegations made can withstand

scrutiny.

Improper disclosure

[80] The most serious flaw in the election was Mr Whareaitu’s disclosure to Mrs Kingi of the

closeness of the postal vote between Mr Maruera and Mr Matuku. Mr Whareaitu gave evidence that he

inappropriately disclosed to Mrs Kingi the fact that on a count of the postal votes Mr Matuku led Mr

Maruera by seven votes. Mr Whareaitu, armed with the knowledge of the closeness of the result,

confirmed that he then took voters to the hui a iwi at Tarata Marae on 14 March 2009 and told them to

vote for Mr Maruera and other CPT candidates, 237 Aotea MB 205:

“Court: So you’re saying that Mr Matuku was leading by seven votes, you disclosed to Ms

Kingi.

Mr Whareaitu: I was actually Sir, and I’ll say I was ringing to tell her she wouldn’t be

surprised about her result. Then I said Mr Maruera is struggling.

Court: What did she say?

Mr Whareaitu: I would say that she was not surprised at my point of how easily she would

have got in and I didn’t disclose the numbers about the easiness of which she was winning by

and that something had to be done.

Court: When you say something had to be done, what did you mean?

Mr Whareaitu: To try and influence any votes we’ve missed, because CPT was the vote

count and it was too late on that Friday afternoon to do anything, so I turned up with three

people in the car.

Court: I’ll ask you this Mr Whareaitu. Did you discuss with them who they should vote for?

Mr Whareaitu: Yes I did.

Court: What did you tell them?

Mr Whareaitu: I said the current role was CPT representatives. They had gone out in terms

of a memorandum prior in terms of lobbing for CPT votes.

Court: Perhaps, I will put it to you this way Mr Whareaitu. The three people with you in the

car, did you tell them to vote for Mr Maruera?

Mr Whareaitu: Yes and others, including Mrs Kingi.‖

245 Aotea MB 42

[81] The final outcome was that Mr Maruera then prevailed over Mr Matuku for the seventh

position on the trust by a margin of two votes. Mr Whareaitu admitted in open Court that this is in fact

what occurred and he expressed regret in acting inappropriately by disclosing provisional results and

then encouraging voters to ensure Mr Matuku would not prevail. In response to my questions, even Mr

Ngeru, hardly a Matuku supporter, acknowledged that such behaviour was inappropriate and had led to,

in effect, a rendering of the contest between Messrs Matuku and Maruera compromised, 237 Aotea

MB 218:

“Court: You were sitting in here when Mr Whareaitu said he disclosed the results of the election, the postal

ballot to Ms Kingi and he also told three voters going to the marae hui how to vote, which resulted in the

outcome for Mr Matuku and Mr Maruera being reversed.

Mr Ngeru: I don’t condone that. I don’t support that process. It has to be fair to everybody.

Court: Indeed. So when you say that the people have voted and would want their vote taken into account,

you would agree with me that that aspect of the vote is irretrievably tainted?

Mr Ngeru: Yes, I would have to agree with you.‖

[82] Even if I were to overlook the problematic aspects of the election process, including the

custody of the register and the participation by candidates on the whakapapa validation committee and

in the election, I cannot see how the result of Mr Maruera as against Mr Matuku could stand. Without

the interference and inappropriate disclosure by Mr Whareaitu, Mr Matuku would have prevailed. Mr

Whareaitu disclosed information that was entrusted to him as a scrutineer to affect in a most deliberate

and improper way, the success of the CPT candidates generally and of Mr Maruera over Mr Matuku in

particular. I find that because of the actions of Mr Whareaitu the vote for Mr Maruera is irredeemably

tainted. In the context of s222, and whether Mr Matuku was more ―broadly acceptable‖ to the

beneficiaries than Mr Maruera, I find in favour of Mr Matuku.

[83] In summary, I consider that there is justification to order a fresh election. The next question for

consideration however is would that be in the best interest of Ngäti Maru at this juncture, taking into

account everything that has transpired to date in the context of these proceedings, and the earlier

applications before this and the High Court? Put another way, given the costs involved, the inevitable

delays and the state of relationships between the various factions, and the general desire for progress,

would a fresh election result in an outcome that is substantially different to that rendered by the March

2009 election process? It is difficult to know. Certainly the parties and those who made submissions

urged me to make a decision based on the election results to enable progress to be made. A related

245 Aotea MB 43

question might be – would another election be appropriate now or at some time in the near future,

assuming progress has been made on several of the key issues facing the iwi?

Interim trustees

[84] In my assessment, a pragmatic solution for present circumstances is necessary. The current

impasse must be overcome if Ngäti Maru is to move forward. As mentioned previously, many of the

beneficiaries wish to progress settlement negotiations with the Crown for resolution of the tribe’s

outstanding historical claims. The iwi also seeks to make progress in having its fisheries assets properly

managed by an appropriately constituted legal entity. Then there are the day to day issues of resource

consents, consultation with Government agencies, ministries and departments, tribal development

initiatives, and the essential activities that consume the time and resources of tribal authorities. In other

words, the strongest submission made consistently by the participants in these proceedings has been the

desire for progress and movement across a range of important initiatives of considerable significance to

Ngäti Maru.

[85] That call should not go unheeded and as foreshadowed a practical approach is necessary.

While I agree that a fresh election should be held, it is simply a question of timing and how to deal with

immediate challenges facing Ngäti Maru. So out of the four options referred to in paragraph [68], I

favour a mixture of the second and the fourth –the trust should be constituted and an interim set of

trustees should be appointed based in large part on the election result with a specific list of objectives to

be achieved within a set timeframe. Following that, a new election can then be held, properly

supervised, for the appointment of more permanent trustees to a tribal authority.

[86] As to the election outcome, at the 27 July hearing Mr Ngeru expressed the view that while

there had been difficulties with the process of election, nonetheless the outcome needed to be taken into

account, 237 Aotea MB 219:

Court: Yes. Do you think I should simply appoint the highest polling candidates now?

Mr Ngeru: It is not for me to say, Your Honour I am undecided on that...

Court: Okay. You’re telling me that there has been a vote, it should be taken into account. Where there have been

anomalies and aspects of the vote tainted, that should be set to the side. But that overall Ngäti Maru should decide itself

what it wants to do.

Mr Ngeru: Yes.‖

245 Aotea MB 44

[87] Mr Ngeru had submitted that if the vote was not taken into account then it was unlikely the iwi

would want to participate in these processes further, 237 Aotea MB 217:

“Mr Ngeru: Our people have voted. If there’s no acknowledgement they’re not going to vote again. Because they’re

going to say it’s a waste of time. This is not the best pathway and where it goes, I don’t know. I just want to be a player

in the field rather than be the one who is leading the charge.‖

[88] I am satisfied, taking into account the terms of s222(2)(b) of the Act that Paul Carr, Rona

Hancock, Maria Kingi, Cynthia Kingi Brown, Jan Matuku, Ron Puata and Rangi Tapatu are broadly

acceptable to the beneficiaries based on evidence from the election including the postal ballot and the

hui-a-iwi, and taking into account previous general meetings. The result is that the election outcome is

affirmed, with the exception of the vote for Mr Maruera.

[89] Then there is the matter of the unauthorised payments. Trustees are entitled to reimbursement

of expenses properly incurred in the exercise of their office: in re: O’Donoghue [1998] 1 NZLR 116.

But the overarching principle is that trustees must act gratuitously and must not profit from their position:

Peach v Jagger (1910) 30 NZLR 423. Given their fiduciary role they cannot allow their personal

interests and their duty to others to conflict: Boardman v Phipps [1967] 2 AC 134. Trustees who do

profit must then account to the trust for that unauthorised retention of trust capital: in re Macadam [1945]

2 All ER 644.

[90] All nominees should have known that they needed approval from the Court before paying

themselves, in the absence of the trust order being confirmed by constitution of the trust. They had no

authority to make any decisions as trustees elect until they had been appointed, least of all a decision to

pay themselves. Just as the trustees of NMWPT had no power to authorise payments to any of their

number without the Court’s approval. That the affected individuals have either repaid those funds or are

in the process of doing so is acknowledged. Taking into account the circumstances and the submissions

made I am prepared to overlook this lapse of judgment on this occasion but the trustees now appointed

should be aware that they must adhere to the trust order without exception. Where they are in doubt on

any matter then they should apply to the Court for directions.

[91] In any case, I accept that trustees are entitled to be reimbursed legitimate costs and

expenses properly authorised and undertaken. This issue should be discussed at the first

trustees’ hui. If costs and reimbursements are to be sought then a schedule supported by

245 Aotea MB 45

invoices, receipts and claim forms should be submitted to the Registrar for approval. Thereafter, a

suitable fee can then be approved on an annual basis with mileage and related expenses set at orthodox

rates. In this way the trust can then regulate its own processes without the need for the Court’s regular

oversight of trustees’ fees and expenses. Any alteration to trustees’ fees and expenses would then need

to go to general meetings of the beneficiaries for consideration.

[92] As to their experience, per s222(2)(a) the resumes that have been provided disclose different

skills and expertise. Yet it must be said that, based on the resumes, that experience is overlapping as

between the highest polling candidates rather than being complementary. Put another way, much of the

experience of the candidates is very similar. It will need to be augmented, and so this issue is discussed

further in this judgment. In the meantime, I appoint Paul Carr, Rona Hancock, Maria Kingi, Cynthia

Kingi Brown, Jan Matuku, Ron Puata and Rangi Tapatu as responsible trustees for a period of 12

months.

[93] While this trust will be the first of its kind for the iwi, the business of this tribe in a modern

context commenced some time ago. Institutional knowledge has been developed and remains an

important element of the iwi asset base in a broad sense. I understand that Ms Henry has been secretary

for NMWPT for many years and is currently a representative for the iwi on the Taranaki Maori Trust

Board. Her institutional memory and knowledge as to the affairs of the iwi should not during this

interim period be lost to the new Rünanga during its initial start up period of operation. I appoint

Rowena Henry an advisory trustee for a period of 12 months.

[94] The views of the owners of the underlying freehold land to a Māori reservation are always

important: Section 4C1 Block II Tuatini Township & other lands (2002) 151 Gisborne MB 250. Mr Köpu

is a representative of the whänau that provided land for the marae and continued to do so after its initial

creation according to the Court’s records. He has also been a trustee of NMWPT for some years and like

Ms Henry possesses important institutional knowledge as to the affairs and business of Ngäti Maru. Until

the establishment of a more permanent representative entity for the iwi, I consider it appropriate that Mr

Köpu as a member of the ownership group, and a NMWPT trustee of some standing lend his support to

the new Rünanga. I appoint Michael Köpu an advisory trustee for 12 months.

[95] Taking into account the nature of a whenua töpu trust and the tasks confronting the iwi,

it is evident, with respect, that there are knowledge gaps that will need to be filled. For example,

there appears to be limited experience in relevant governance and management at a

245 Aotea MB 46

high level. Given the current challenges facing the iwi that deficit needs to be remedied. The trustees

and beneficiaries will also need to turn their minds to the issue of settlement negotiations where

particular expertise will be required, preferably from within the iwi membership. An independent

perspective not aligned with either faction will also provide fresh insights into the work of the trust. To

that end I consider it appropriate that Jamie Tuuta be appointed as advisory trustee.

[96] Mr Tuuta is currently chairman of Parininihi ki Waitotara Incorporation, the largest Mäori land

authority in Taranaki. He was until recently chairperson of Te Rünanga o Ngäti Mutunga and serves on

several other tribal governance bodies as well as advisory committees and boards with local and central

government. He was directly involved in the settlement negotiations for Ngäti Mutunga and has been

included as an adviser for Ngäti Mutunga, Wharekauri and for the iwi of Taranaki. Mr Tuuta’s

involvement with claims to the Waitangi Tribunal and in settlement negotiations was also due to his

employment with leading Mäori issues law firms. Equally importantly, Mr Tuuta has a whakapapa to

the iwi. In short, I am confident the Ngäti Maru whenua töpu trust will benefit from the input of Mr

Tuuta who will bring some much needed objectivity, rigour and expertise to bear on the trust’s business.

I appoint Jamie Tuuta an advisory trustee for 12 months.

Decision

[97] In accordance with s216 of Te Ture Whenua Mäori Act 1993, Te Rünanga o Ngäti Maru

(Taranaki) Whenua Töpu Trust is constituted. The trust order is annexed to this judgment. For the

avoidance of doubt the beneficiaries of the trust are the members of the Ngāti Maru iwi of Taranaki.

[98] I appoint Paul Carr, Rona Hancock, Maria Kingi, Cynthia Kingi Brown, Jan Matuku, Ron Puata

and Rangi Tapatu responsible trustees for a period of 12 months. Michael Köpu, Rowena Henry and

Jamie Tuuta are appointed advisory trustees for 12 months. The quorum for trustee meetings is set at

four responsible trustees.

[99] The trustees are directed to:

(a) convene a meeting of trustees and attend to the election of officers within 14 days from the

date of this judgment and advise the Registrar of the outcome;

245 Aotea MB 47

(b) prepare a list of priority tasks for the next 6 months and a draft strategic plan for the next 12

months for consideration by the beneficiaries at a properly constituted hui-a-iwi within 60 days;

(c) prepare a draft budget relevant to the activities of the trust generally and the draft strategic

plan in particular and file a copy with the Registrar for the Court’s information;

(d) undertake a review of the register to determine whether any duplication has occurred, to

update addresses and to consider further refinements as to the custody and care of the register;

and

(e) provide a written report on their activities to the Registrar on a quarterly basis for the Court’s

information.

[100] The trustees are also directed to attend a chambers conference to provide a progress report at the

April sitting of the Court in New Plymouth.

[101] The Registrar is to provide a copy of this judgment to:

(a) the Hon Justice Venning, High Court, Auckland;

(b) the Chief Executive, Te Puni Kokiri, Wellington

(c) the Chief Executive, Te Ohu Kaimoana, Wellington

[102] The application for creation of a whenua töpu trust is now concluded. Mr Milner is discharged

from his appointment as counsel assisting.

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

Pronounced in open Court at 5.05 pm in Rotorua on Friday this 15th day of January 2010

L R Harvey

JUDGE