Question and Answer Information Sheet Waihou A2A11

What is Waihou A2A1? In legal terms, the block described as Waihou A2A1: is Maori freehold land; was created by partition in 1914; comprises some 24 hectares; currently has 42 owners. In real (cultural) terms it is whenua tupuna, the original title being in the names of Pita Te Waiata and Ria Anihana. Whenua tupuna should be considered as different to other (general) land; what makes it different includes some of the things discussed below.

Where is it? The physical address is 2778 State Highway 1 Waihou-Mangamuka. It is located about 1km north of the Rangiahua bridge, Waihou Valley.

What is Maori Freehold Land? "Maori Land" comes under one of three categories: Maori customary land, which is land held "by Maori in accordance with tikanga Maori"2. Such land is alienable only to the Crown.
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This information sheet was prepared by Sam Napia on 1 August 2012 and is for information purposes only. It is not in the nature of legal advice. If required, whanau members are advised to seek their own independent legal or professional advice. 2 Te Ture Whenua Maori Act (TTWMA) s 129(2)(a)

Maori Freehold Land, is land "the beneficial ownership of which has been determined by the Maori Land Court by freehold order" 3. Maori reserved land4, is land of diverse historical origin set aside as reserve; for example, such is now the status of Pouerua.

In terms of "ownership", it is important to keep in mind that holdings comprise undivided shares in ownership of common property. That is to say, no single named owner irrespective of the size of shares - can lay claim to ownership of any specific portion of the block. Given this important stipulation, utilisation of the block - including occupation - can be a complex issue.

What about the occupation order application(s)? Occupation is only type of utilisation that the Maori Land Court is directed to promote and facilitate. Other types of utilisation include development; for example, forestry. An occupation order can be made by the Court that vests in any owner, or any person entitled to succeed interest in Maori freehold land, the exclusive use and or occupation of the whole or any part of the block, including an existing house. According to the information from the applicant(s), applications are soon to be made to the Court for occupation orders of this kind.

Why should we care about these occupation order application? Unless the interests and aspirations of all of the whanau are taken into account, there is a danger that only some or a few will benefit at the cost of the others. If occupation orders are granted, this will be the case here. That is because the Far North District Plan provisions provide for only one dwelling on the block as of right. Additional dwellings will require resource consent for a restricted discretionary activity. Obtaining such a consent is uncertain and follows a costly process for anyone that comes behind the currently proposed application(s). Neither can we afford allow ourselves to subscribe to the first up, best dressed philosophy. We should be able to, and past experience suggests that it is the case that we can, rely upon the Court to ensure that any such applications have gone through due process to ensure that the interests of all the owners are fairly considered before any occupation order application is granted. It is interesting to note that the Court has declined (at least) twice in recent years to grant such orders. In those cases, the Court encouraged the owners to determine whether to form an Ahu Whenua Trust to administer the block.

What can an Ahu Whenua Trust do? For one thing, the Trust can provide for occupation if such will be beneficial to the owners. That is to say, the present applicant(s) (and others) wouldnt need to apply to the Court because an Ahu Whenua Trust can itself be empowered to license occupation.
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TTWMA s 129(2)(b)

An Ahu Whenua Trust will administer the block in the best interest of all owners. There are generally two parts to an order establishing an Ahu Whenua Trust. One part is an order constituting the trust, appointing trustees and vesting the land in the trustees. The other part is an order setting out the terms of the trust (the Trust Deed). A trust order appoints responsible Trustees who become deemed owners of the block. Custodian trustees and advisory trustees may also be appointed. You know, heres an interesting thought. we often say we want our rangatiratanga; to have the power to make decisions for ourselves; to have the right to self-determination. And then we give that away and go to the Court to make a decision that we can actually have ourselves empowered to make! Then why not establish an Ahu Whenua Trust? Since no sensible or fair reason is apparent, that question wont be considered further.

Then, what is a Whanau Trust, and what can it do? Whanau trusts relate to land interests of a living or deceased owner. A Whanau Trust is not established to administer the block as a whole and therefore cannot provide for occupation and other ultilisations as can an Ahu Whenua Trust. Some whanau have found such a structure useful to consolidate the interests of an owner who is deceased. For example, Taringa Anihanas decedents now number in the hundreds, and each of these is entitled to succeed Taringas interest in Waihou A2A1. It makes no practical sense for that interest to be diluted hundreds-of-times. But it will preserve decision making capacity of Taringas whanau and maximise potential for beneficial use of all of Taringas decedents for her interest to remain intact under a Whanau Trust.

Is the block occupied at the moment? The block is occupied. There is a dwelling/shed already on the block. According to Far North District Council records, the dwelling is not consented. Unless the building is specifically exempted, under the Building Act 1991, it will be an illegal building5.

Can the District Council take enforcement action; and if yes, against whom? The Council can take enforcement action in respect of illegal buildings. This can range from Notices to Fix, through to Infringement Notice (an instant fine); or the Council can decide to prosecute. Enforcement action can be taken against any or all of the following parties: the land owners, the building owner, the builder. If the building is illegal, since it is unlikely that the Council would take action against 42 owners in common (some of whom are deceased), enforcement action (if any) would likely be taken against the dwelling/shed owner or the person(s) who placed the building on the block.

It is an offence under s 40 of the Building Act to undertake building work without first obtaining any necessary building consent.

Who owns or who placed this building on the block? This is currently being investigated.

What about the rates? The current years assessment is $1,447.70. The rates have not been paid. However, they have been remitted and there is currently no amount owing. It is assumed that the remission would have been granted in accordance with the Councils rates remissions policy relating to Maori freehold land. This is currently being looked into to confirm that this is the case.

What will be the outcome of the occupation order applications? That is for the Court to determine. In the course of so doing, when the application(s) come before the Court, it behoves us to assist the Courts understanding of what has occurred here.

What has occurred here? What appears to have occurred here is as follows: The current applicant(s) understood that the question of establishing (or not) an Ahu Whenua Trust would be information that the Court would require in hearing the occupation order applications; therefore, The applicant(s) organised a meeting of owners for the purposes of consulting the owners over the applications; and, to have the owners formally consider the question of an Ahu Whenua Trust; however, At the meeting held on 30 June 2012, the owners present passed a resolution that opposed making application for occupation orders in the absence further hui and a determination as to whether to establish an Ahu Whenua Trust; but subsequently, The applicant(s) have chosen to ignore that decision and have notified their intention to make the application(s); in the meantime, The applicant(s), who organised the 30 June 2012 meeting, have (thus far) refused to release the minutes of that meeting, which would document the very important whanau decision described above.

What happens next? Presumably, having gone to the extents that they have, the applicant(s) will lodge the applications with Court. Owners for whom the applicant(s) have contact details should/may be informed by the applicant(s) when this occurs. The applicant(s) in their email of 30 July 2012 advise that what pathway your whanau choose to take is your option and business. What the applicant(s) appear not to appreciate is, since we are owners in common of undivided interests, it is not as simple as that because the options and business of one impact on the others. But it is nevertheless good advice for particularly whanau of deceased named owners to determine what should be done with those interests. For example, the Taringa Anihana whanau is preparing to meet and determine whether to establish a whanau trust for the shares of Taringa. The Taringa Anihana whanau will also discuss and determine its position in respect of the application(s) for occupation order; and, whether there should be an Ahu Whenua Trust.