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Last Updated: 26 January 2018
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA595/2010
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BETWEEN LEN RIKIRANGI KAMETA, DUKE POIHIPI AND ROBINA
THOMPSON
Appellants |
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AND PHYLLIS RANGI NICHOLAS, JANE TIWHA, ANDRE NICHOLAS, CHARMAINE NICHOLAS,
MARSHALL NICHOLAS, BRUCE NICHOLAS AND THE CHILDREN OF
NESSIE ANGELINA
NICHOLAS
Respondents |
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Hearing: 4 April 2012
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Court: Harrison, Wild and White JJ
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Counsel: M P Armstrong for Appellants
L H Watson for Respondents |
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Judgment: 3 August 2012 at 10.30 am
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison
J)
Table of Contents
Para No
[1] The late Whakaahua Walker Kameta was the sole owner of two blocks of land in Te Puke. By his last will he granted his de facto partner, Phyllis Nicholas, a life interest in one or both blocks. On her death the remainder was to be divided between her adult children (the Nicholas children).
[2] However, both blocks of land are Māori freehold land and are therefore subject to Te Ture Whenua Maori Act 1993 (the Act). Under s 108(2) of that statute, a beneficial interest in Māori freehold land can only be passed to certain specified classes of people. One such class is those persons who are both “related by blood” to the testator and a member of the hapū[1] associated with the land.
[3] In upholding a challenge by Mr Kameta’s siblings (the appellants in this Court), the Māori Land Court found that the Nicholas children were not entitled to an interest in the land.[2] That was because they could not show they were related by blood to Mr Kameta or members of a hapū associated with the land. On appeal, the Māori Appellate Court reversed these findings, and made an order vesting the land in the Nicholas children.[3]
[4] Two issues arise on this appeal by Mr Kameta’s siblings. The first is whether the Māori Appellate Court was correct in holding that the Nicholas children are related by blood to Mr Kameta. The second is whether the parties agreed to reserve an issue about the interpretation of Mr Kameta’s will for determination in separate proceedings before the High Court.
[5] Mr Kameta was the sole owner of the two blocks of land: Te Puke 2A2A3B1 and Te Puke 2A2A3B2 (“the land”). The former is a section of 0.2023 hectares where Mr Kameta had his house; the latter is a considerably larger section of 23.7095 hectares used as a farm.
[6] Mr Kameta died on 27 October 2003. His last will dated 10 October 2000 relevantly provided:
Specific Bequests
....
(d) From the first point in time when I have died and my friend has died to hold my said residence in six (6) equal shares, with the first five of such shares to be held for the benefit of my friend’s children JANE TIWHA, ANDRE GEORGE NICHOLAS, CHARMAINE NICHOLAS, MARSHALL NICHOLAS and BRUCE NICHOLAS provided that if any of the said JANE TIWHA, ANDRE GEORGE NICHOLAS, CHARMAINE NICHOLAS, MARSHALL NICHOLAS and BRUCE NICHOLAS should die before me leaving a child or children living at my death, that child or children shall be entitled equally to their parent’s share as if that parent had been living at my death. The remaining share shall be held for the benefit of such of the children of my friend’s late daughter NESSIE ANGELINA NICHOLAS as survive me and attain the age of 21 years and if more than one in equal shares.
[7] A preliminary or threshold question arises about the nature and extent of this Court’s jurisdiction when determining appeals from the Māori Appellate Court. The Act confers a general right of appeal as follows:
58A Further appeal to Court of Appeal from Maori Appellate Court
(1) A party to an appeal under section 58 may appeal to the Court of Appeal against all or part of the determination of the Maori Appellate Court on the appeal.
(2) On an appeal under subsection (1), the Court of Appeal may make any order or determination it thinks fit.
[8] This Court is empowered to determine an appeal from the Māori Appellate Court as “it thinks fit”, suggesting a wide and unfettered power. On this appeal, the primary question appears to be one of statutory construction – that is, whether the Nicholas children were related by blood to Mr Kameta and members of the hapū associated with the land. However, as will become apparent, the question is in essence one of mixed fact and law. The factual element in turn raises the question of the weight to be given by this Court to the Māori Appellate Court’s findings when exercising its powers on a general right of appeal.
[9] The Māori Appellate Court is constituted to hear appeals from time to time by three or more members of the Māori Land Court.[4] Judges of that Court have been appointed having regard to their “knowledge and experience of te reo Maori, tikanga Maori and the Treaty of Waitangi”.[5] Its specialist nature and status is reinforced by s 61 of the Act, which enables the High Court to state a case to the Māori Appellate Court on any question of fact relating to the interest or rights of Māori in any land or on any question of tikanga Māori and provides that the opinion of the Māori Land Court, subject to any reference back, is binding on the High Court. In this case, the Māori Appellate Court’s decision was influenced significantly by its collective knowledge of tikanga or Māori customary values and practices. Its decision, being a unanimous judgment of three judges, represents the result of a factual enquiry within the relevant statutory framework.
[10] In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court acknowledged an appellate hesitancy to interfere where the lower court had a particular advantage in making findings of fact, or of fact or degree, while recording of course that the appellate court retains the ultimate responsibility of making its own assessment of the merits.[6] In an appeal such as this which raises a question of statutory construction we must reach our own view.[7] Nevertheless we are satisfied that the Māori Appellate Court enjoyed a particular advantage in determining the key issues by virtue of its expertise. We are satisfied also that factor merits respect when addressing the arguments advanced in support of this appeal.
Issue 1: Are the Nicholas children related by blood to the testator?
[11] Mr Kameta’s siblings challenge the entitlement of Ms Nicholas’ children to take an interest in the land under Mr Kameta’s will. Their claim is based on s 108(2)(c) of the Act, which materially provides:
108 Disposition by will
(1) Except as provided by subsections (2) and (3), no owner of any beneficial interest in any Maori freehold land has the capacity to dispose of that interest by will.
(2) An owner of a beneficial interest in Maori freehold land may leave that interest by will to any person who belongs to any 1 or more of the following classes:
...
(c) any other persons who are related by blood to the testator and are members of the hapu associated with the land.
(Emphasis added.)
[12] It is common ground between the parties that:
- (a) Ms Nicholas was neither Mr Kameta’s spouse nor related by blood to Mr Kameta and thus is not entitled to take any beneficial interest in the property;[8]
- (b) the Nicholas children are members of the hapū associated with the land (Waitaha Tūturu also known as Ngāti Haraki);and
- (c) the Nicholas children and Mr Kameta share certain ancestors. The most important is Te Kumikumi, an ancestor nine generations removed on Mr Kameta’s side and about 12 generations removed on the Nicholas side.[9]
[13] The Māori Land Court applied a two stage or disjunctive approach to the interpretation of s 108(2)(c), treating each of its two elements of relationship by blood and membership of the same hapū separately rather than as a composite. In reliance on the Māori Appellate Court’s decision in Mihinui – Maketu A100,[10] Judge Savage concluded on the first element of related by blood that:[11]
...“related by blood” meant something more than the European concept of the nuclear family, but something less than a distant historical link... .
[14] In applying this test the Judge found that the links between Mr Kameta and the Nicholas children were “so tenuous” that the two could not be said to be related by blood. His rationale was as follows:
[17] In my judgment the genetic relationship is distant indeed. We are talking about a common ancestor extremely distant in time, who must at least have been living in the 18th century and perhaps earlier. One only has to look at the matter in terms of mathematical dilution. If the dilution is to be nine times, then we are talking in the order of five hundred to one. The finding of links between Māori is a common experience and activity, for in traditional terms, we are dealing with a culture and a people for whom whakapapa and mana deriving therefrom, was everything. In the rituals of encounter, it would be extreme indeed to go back nine or thirteen generations to find a link.
[15] When considering the second element of membership of the same hapū, Judge Savage noted that in most cases persons related by blood to the testator will be members of the same hapū and vice versa but that is not necessarily always the case.[12] For that reason, a distinctive two stage approach was required by the section. In his view the main issue was the identification of the hapū associated with the land.[13]
[16] The Judge evaluated the expert evidence given on both sides. He concluded that there was no contemporary functioning hapū associated with the land in the sense required by s 108(2)(c).[14] In this respect, he rejected the evidence of Tame McCausland, called by Mr Kameta’s siblings. Mr McCausland is a respected elder of Waitaha, one of the principal iwi of Te Arawa. The Judge also appeared to reject the evidence of Monty Te Moni and Rereamanu Wihapi for the Nicholas family that Waitaha Tūturu is the appropriate hapū and includes the Nicholas whānau.
[17] In reversing both findings, the Māori Appellate Court gave particular weight to whakapapa links – that is, of genealogy lineage, identity or belonging – in determining the strength of a blood relationship when considering a person’s right to land; that strength is not diminished by the fact that the whakapapa might trace back for many generations – in terms of tikanga Māori the effect might be the opposite.[15] The Court’s emphasis was on the blood relationship relevant to the land in question.[16]
[18] The Māori Appellate Court concluded that:
[45] The whakapapa in this case does not go back as far as the founding ancestor of Waitaha tūturu before there is a common link, but it is not far from it. What is important is that it records that the land was devolved as a taonga tuku iho[17] through a whakapapa line from which both the Nicholas children and Mr Kameta descend. Whakapapa and blood descent are as much a taonga tuku iho as land is. This whakapapa also demonstrates a blood relationship exists between these people and it demonstrates membership of the hapū associated with the land.
[46] Where we believe the lower Court erred was in discounting the importance of this whakapapa in establishing a blood relationship. Rather it engaged in counting generations and measuring degrees of consanguity ... . While we acknowledge that the degrees of relationship through whakapapa will always be a relevant consideration, in this case we do not consider the link to be so tenuous as to discount a connection by blood which satisfies the statutory provisions.
[19] The Māori Appellate Court acknowledged that its approach to this issue was constrained by s 2 of the Act and its preamble, referring to the need to recognise land as a taonga tuku iho of special significance to the Māori people and, for that reason, to promote its retention in the hands of its owners, their whānau and their hapū.[18] But it was also conscious of s 17(2)(a) of the Act, requiring the Court to ascertain and give effect to the wishes of the owners of Māori land to which any proceedings relate.[19] The Court was satisfied that, by ascertaining and giving effect to Mr Kameta’s wishes as expressed in cl 4 of his will to the extent that they were consistent with the Act, it was promoting the statutory purpose.
[20] The Māori Appellate Court undertook a careful examination of the evidence on the second element of membership of the same hapū associated with the land. The Court concluded that Waitaha Tūturu is the hapū associated with the land and that the Nicholas children are members through Te Waata and Te Pokiha Taranui.[20] In reaching this conclusion the Court emphasised that hapū association is founded on whakapapa or through ownership in hapū lands or both.[21] It placed weight on the fact that Waitaha Tūturu was awarded original ownership of the land and was the hapū granted title to Te Puke 2A out of the Te Puke reserves, the parent block of the two land titles owned by Mr Kameta.[22]
[21] Mr Armstrong’s primary submission for Mr Kameta’s siblings is that the Māori Appellate Court’s approach collapsed the two limb test required by s 108(2)(c). That is because all members of the same hapū are by definition related by blood in some sense, as membership of a particular hapū is based on whakapapa links. Accordingly, the broad approach adopted by the Māori Appellate Court renders the first element of s 108(2)(c) meaningless; its effect, Mr Armstrong says, is that membership of the same hapū would negate the requirement for the parties to be related by blood. He supports Judge Savage’s conclusion that the blood relationship in this case was too tenuous to satisfy the statutory requirement. However, he accepts the Māori Appellate Court’s finding, reversing the Māori Land Court, that the Nicholas children are members of the hapū associated with the land, Waitaha Tūturu.
[22] Mr Armstrong’s submission must be addressed by reference to the legislative framework. The statutory purpose is to retain ownership of Māori land within whānau and hapū groups. As noted, the Act recognises that land is a taonga tuku iho. Consistently with the statutory preamble, s 2 directs:
... it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Maori land as taonga tuku iho by Maori owners, their whanau, their hapu, and their descendants, and that protects wahi tapu.[23]
[23] Section 108 must be read in this light. Section 108(1) starts with a qualified prohibition – the owner of a beneficial interest in Māori freehold land is deemed not to have the capacity to dispose of that interest by will except where expressly provided. This prohibition is consistent with the Act’s purpose. The exceptions are found in s 108(2), allowing the owner to leave his or her interests to somebody who belongs to defined classes including “persons who are related by blood to the testator and are members of the hapu associated with the land”.[24]
[24] In our judgment, this wording envisages a largely factual enquiry. While s 108(2)(c) has two separate elements, we are satisfied that Parliament intended that the words are to be read together and the enquiry is to be of a composite or conjunctive nature. We agree with Mr Watson for the Nicholas children that the second element necessarily informs the first.
[25] In particular, it is unhelpful in our view to consider the meaning of “related by blood” in isolation. That phrase is inherently indeterminate given that, in a literal sense, all humans share a blood connection. The words must draw meaning from the following phrase “are members of the hapu associated with the land” and from the Act as a whole. This approach accords with the purpose of s 2(2), requiring retention of ownership by owners, their whānau, hapū and descendents while also allowing ownership to be passed among these groups.
[26] So, consistently with this purpose, we consider that the phrase “related by blood” is not intended to be read narrowly. The words connote a much larger class of persons than the testator’s immediate family. But we accept that the class cannot be defined so broadly that the test is satisfied by identifying any common ancestor, no matter how remote. It is ultimately a question of degree, of drawing a line within the class of potential claimants by applying an objective touchstone which is consistent with the statutory purpose.
[27] In our judgment, the Māori Land Court erred in its approach to the question of blood relationship because its test lacked an objective touchstone. Judge Savage approached the question by applying a sliding scale, with the result based upon a subjective impression of extreme distance in the blood relationship and in isolation from the related element of membership of the same hapū. We agree with the Māori Appellate Court that the Judge’s approach failed to provide certainty or consistency[25] and was flawed because it omitted to take proper account of whakapapa.[26]
[28] It is in this respect that we pay particular weight to the Māori Appellate Court’s conclusion in applying the statutory test to the relevant facts. Its collective knowledge of tikanga and in particular the importance of whakapapa relationships to the land in question must be respected. Its approach is supported by a prominent Māori academic, who confirms that the whakapapa principle and the factor of birth into the hapū group is the fundamental criterion for membership of it.[27]
[29] In emphasising whakapapa, the Māori Appellate Court drew support[28] from this passage in Judge Isaac’s judgment in Re Nuhaka 2E3C8A2B:[29]
The earlier the ancestor the stronger the right to the land. Land was claimed by Whakapapa because in accordance with tikanga Māori all things were derived from the ancestors and were passed to future generations. If a person can whakapapa to an original owner or occupier of that land that person has a right to the land.
The whakapapa does not lose its strength because it traces back for many generations. In terms of tikanga Māori it can gain strength.
[30] Additionally, the Māori Appellate Court accepted[30] Mr McCausland’s evidence on the significance of whakapapa as being:[31]
Mixed in with tikanga and whenua is whakapapa. Whakapapa connection to your tupuna, Whānau, Hapū, Iwi and history. Inherent in your whakapapa is your identity (and history) of your tupuna. Whakapapa also provides you with mana over people, land, resources and other things both physical and spiritual.
On this basis, to try and put it simply, the land is a taonga, whakapapa provides the connection to, and to mana over, the taonga, and tikanga provides how this relationship is to exist, be exercised and preserved.
On this basis, the tikanga of Waitaha in relation to land, is primarily concerned with maintaining whakapapa. Because when this whakapapa is broken, everything comes undone. The connection to that taonga is lost, the connection to that tupuna is lost, and the connection to that history is lost. Therefore the primary role of tikanga in relation to land is to uphold whakapapa. This means that the land must be passed down in accordance with the whakapapa lines from which it was received.
[31] The Māori Appellate Court, correctly in our judgment, adopted a conjunctive approach to the construction of s 108(2)(c) in finding that a blood relationship will be established where the parties can show a whakapapa connection to the testator, even if distant, providing that that connection satisfies what it called “the associational relationship” of shared bloodlines and being part of the same hapū which once held collective ownership of the land.[32] Notably, a hapū consists of a number of whānau bound by strong kinship ties and the whakapapa principle, where particular importance is attached to “being born into the group”.[33] It was not enough in this case that Mr Kameta and the Nicholas children shared a common ancestor; what was decisive was the devolution through a whakapapa link or relationship by blood within a hapū which was relevant to the land in question. That conclusion is reinforced by the Māori Appellate Court’s finding, not challenged on appeal, that the Nicholas children were in fact members of the same functioning hapū as Mr Kameta.
[32] Before leaving this issue we refer briefly to the earlier decision of the Māori Appellate Court in Mihinui – Maketu A100.[34] In the Māori Land Court, Judge Savage treated that decision as authority for his conclusion on whether the Nicholas children were related by blood to Mr Kameta. However, the Māori Appellate Court distinguished the decision in Mihinui – Maketu A100 given its focus on the meaning of the term “whanaunga” where used in the context of s 148 of the Act. We agree and have not found the judgments of the three members of the Court in that case of particular assistance. It was, as the Chief Judge observed in Mihinui – Maketu A100,[35] a decision turning very much on its facts.
[33] Alternatively, Mr Armstrong submits that the approach taken by the Māori Appellate Court is in breach of tikanga. In relying on the evidence of Mr McCausland, Mr Armstrong submits that tikanga requires land to be passed smoothly along whakapapa lines; and that by accepting a whakapapa link tracing back to founding tupuna or very close to it, the Māori Appellate Court cut directly across Parliament’s intention. His argument is that passing the land to the Nicholas children would represent an abrupt shift in ownership from one whakapapa line to another, contrary to tikanga.
[34] We agree with Mr Watson that this ground does not establish an error of fact or law. As we have already concluded, the Māori Appellate Court is entitled to draw on its particular knowledge and experience of tikanga in reaching its conclusion. The Court was not bound to accept Mr McCausland’s opinion on an issue which fell within its specialist jurisdiction. We are satisfied that the Court’s finding had a sufficient evidential foundation. Mr Armstrong has failed to persuade us that Mr McCausland’s evidence provides a satisfactory basis for interfering.
[35] It follows that these grounds of appeal must fail.
Issue 2: Did the parties agree to reserve the will interpretation issue for separate proceedings before the High Court?
Competing arguments
[36] Additionally or alternatively, Mr Kameta’s siblings submit that the Māori Appellate Court was wrong to make an order affecting both blocks of land.
[37] Clause 4 of the will refers to “[Mr Kameta’s] property at 133 No 1 Road, Te Puke (“my residence”)”. Mr Armstrong submits that a question arises as to whether this provision refers to both blocks or only to the smaller residential block. He asserts that early in the proceedings before the Māori Land Court the parties agreed to reserve this question for determination by the High Court. Accordingly, he says, the Māori Land Court claim was to be limited to whether the Nicholas children were entitled to succeed under s 108(2)(c).
[38] Mr Armstrong accepts that the pleadings before the Māori Land Court did not explicitly reserve the interpretation question. The originating application read as follows:
Application is made to this Honourable Court to hear and determine whether at law or in equity the ownership or possession of the Maori Freehold land known as Te Puke 2A2A3B1 & Te Puke 2A2A3B2 has been properly dealt with to determine rights of ownership ... .
[39] However, Mr Armstrong submits that the true position was made clear in Te Para Kameta’s affidavit filed in support of the application in November 2004. Mr Kameta deposed:
Consideration needs to be given as to which property at No 1 Road Te Puke paragraphs 3, 4 and 5 of the will apply to as there is a residential section which is Te Puke 2A2A3B1 (“the house section”) as well as a farm property which is Te Puke 2A2A3B2 (“the farm property”).
[40] In addition, Mr Armstrong relies on two exchanges between himself, Mr Watson’s predecessor as counsel for the Nicholas children, and Judge Savage during case management conferences in the Māori Land Court on 29 April 2005 and 18 December 2007. He also points to an exchange during his cross examination of a witness in the Māori Land Court when the Judge referred to “subsequent proceedings”. He submits that this observation makes clear the Judge’s knowledge of Mr Kameta’s siblings’ intention to bring a separate claim in the High Court.
[41] Mr Watson disputes the existence of such an agreement, noting that Mr Kameta’s siblings had throughout referred to both blocks of land and indeed sought orders vesting each. In that vein, the Māori Land Court decision refers to both blocks without distinction and without any reference to an agreement between the parties. Mr Watson also points out that the notice of appeal to the Māori Appellate Court referred to both blocks, as does that Court in its decision.
[42] In our judgment the pleadings are decisive because the orders made in both lower courts were founded upon them. In particular:
- (a) The originating application made by Mr Kameta’s siblings was for a determination of rights of ownership of both blocks of land pursuant to s 18(1)(a). That provision confers express jurisdiction on the Māori Land Court to hear any claim, whether at law or equity, to ownership of Māori freehold land and must necessarily include a power to determine a dispute about the construction of the instrument purporting to pass ownership. Statements made at case management conferences, or in exchanges with the Court during the hearing, do not assist if they contradict the unequivocal terms of the application.
- (b) From the outset, consistent with the pleadings, the Kameta siblings sought orders reversing the original orders and vesting both blocks in themselves. The contest was of an all or nothing nature. There was no suggestion in the pleadings of a middle ground or a reservation of rights arising from a question of interpretation of Mr Kameta’s will.
- (c) Determination of the competing rights of ownership of both blocks remained the central question on appeal before the Māori Appellate Court. In annulling the Māori Land Court’s order, the Māori Appellate Court ordered that : (a) cl 4(d) of Mr Kameta’s will was to be given full force and effect in terms of succession to Te Puke 2A2A3B1 and 2A2A3B2 and (b) both blocks of land were to be vested in the Nicholas children.
[43] While we have a discretion in deciding this appeal – that is, to make such an order or determination as we think fit – we could only exercise it on a principled basis. Our acceptance of Mr Armstrong’s submission would necessarily require us to quash the vesting orders made by the Māori Appellate Court in favour of the Nicholas children in circumstances where we have upheld its substantive decision and reasons. A contingent challenge to cl 4(d) of the will, to be originated in a separate proceeding filed in the High Court against the trustees of Mr Kameta’s will more than seven years after this proceeding was filed in a Court which was competent to determine the question, could never suffice; if the interpretation question remained in issue, as forecast in Te Para Kameta’s affidavit, it should have been expressly reserved in the Māori Land Court, and raised and argued when the opportunity arose on appeal before the Māori Appellate Court.[36] The consequences of a further indeterminate delay should not be visited upon the Nicholas children.
[44] Alternatively, Mr Armstrong’s argument is answered by the principle of estoppel per rem judicatum. That rule applies to bar a party from disputing or questioning a decision on its merits by a Court of competent jurisdiction on a later claim between the same parties and relating to the same subject matter.[37] In this case the Māori Appellate Court has already determined the competition between these parties to ownership of Mr Kameta’s two blocks of land. His siblings cannot now reopen that issue by pursuing a new challenge to the decision on a different legal basis from that argued and available to them before the Māori Appellate Court.
[45] Accordingly, this ground of appeal must also fail.
[46] Our answers on both issues are adverse to the appellants. The appeal is accordingly dismissed.
[47] The appellants must pay the respondents costs for a standard appeal on a band A basis with usual disbursements.
[48] We wish to add our appreciation for the quality of the arguments presented by both counsel.
Solicitors:
Aurere Law,
Rotorua for Appellants
Leo Watson, Paekakariki for Respondents
[1] A section of a tribe or secondary tribe. See further at [31] below.
[2] Kameta v Nicholas – Te Puke 2A2A3B1 and 2A2A3B2 (2009) 348 Rotorua MB 282 (348 ROT 282) [Māori Land Court judgment].
[3] Nicholas v Kameta –
Te Puke 2A2A3B1 and 2A2A3B2 (2011) Māori Appellate Court MB 500 (2011
APPEAL 500).
[4] Te Ture Whenua
Maori Act 1993, s 51.
[5] Te
Ture Whenua Maori Act 1993, ss 7(2A) and
51(1).
[6] Austin, Nichols and
Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
[7] Attorney-General v Maori Land Court [1999] 1 NZLR 689 (CA); McGuire v Hastings District Council [2001] UKPC 43, [2002] 2 NZLR 577 at [7].
[8] This finding was made in the Māori Land Court and upheld by the Māori Appellate Court, and is not challenged on appeal.
[9] Mr Kameta’s
siblings claim that Te Kumikumi is 12 generations removed from the Nicholas
children, while the respondents claim
the correct figure is 11 generations. The
quality of the ancestor may also assume importance: Hirini Moko Mead Tikanga
Māori: Living by Māori Values (Huia, Wellington, 2003) at
219–220.
[10] Mihinui
– Maketu A100 (2007) 11 Waiariki Appellate MB 237 (11 AP
230).
[11] At
[13].
[12] At
[21].
[13] At
[22].
[14] At
[22]–[27].
[15] At
[40]–[45] applying Re Nuhaka 2E3C8A2B (1994) 92 Wairoa MB 214 (92
WR 214) at 218.
[16] At
[47].
[17] Treasures handed down by or
gifts of the ancestors; heirlooms: Mead, above n 11, at
367.
[18] At
[48].
[19] At
[49].
[20] At
[61].
[21] At
[57].
[22] At
[58].
[23] Sacred places.
[24] That phrase was not the
subject of discussion by the Select Committee which considered and reported on
the Act through its Bill
stages or in the House of Representatives when the Bill
was read.
[25] At
[55].
[26] At [46].
[27] Mead, above n 11, at
218–219.
[28] At
[42].
[29] Re Nuhaka,
above n 17, at
218.
[30] At [44].
[31] Māori Land Court
judgment, above n 2, at
[26]–[28].
[32] At
[56].
[33] Mead, above n 11, at
214–218.
[34] Mihinui
– Maketu A100, above n 12.
[35]
At [21].
[36] Re Real
(Deceased), McDowell v Real [1914] NZGazLawRp 108; (1914) 33 NZLR 1342 (SC) at
1346.
[37] Shiels v Blakeley
[1986] 2 NZLR 262 (CA).
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