Land court allows whānau to apply for whenua, overturning 50-year-old ruling

By Contributor

By Sarah Curtis, Open Justice multimedia journalist, Te Tai Tokerau

Some of the descendants of a wahine Māori who died 50 years ago will now be able to apply for a share in her land, following a victory in the Māori Land Court.

Deciding the case, Judge Caren Fox noted provisions in Te Ture Whenua Māori Act 1993 that recognise land as a taonga tuku iho and that the court has a "responsibility to facilitate and promote the retention of land by the owners, their whānau, hapū and their descendants".

One of three blocks of land involved in this case was a papakāinga, yet a number of children of the deceased were excluded from it and the other blocks due to mistakes by the court, when orders were made in 1975, the judge said.

That raised significant issues of tikanga, which also had to be taken into account, she said.

"Access to turangawaewae goes to the essence of cultural identity," Fox said.

Winika Hawe, also known by the surnames Haku and Hawa, died in November, 1972, without leaving a will and with undivided interests in Māori freehold land in the Far North:
Herekino-Manukau 2C (9.07 hectares, which is now listed as having 196 shares split across 79 owners), Waitaha C (150ha, in which 134 shares are currently divided among 1058 owners), and Kaimaumau A2C (10.98ha, which now has 16.67 shares across 67 owners).

Second husband granted land

Hawe was married twice and had seven children.

In 1975, her second husband Paenga Wikitera applied for and was granted all her land interests to the exclusion of her children.

Court orders transferring Hawe's land to Wikitera were made under a section of the Māori Affairs Amendment Act 1967 that essentially treated the situation as if Hawe had been a Pākehā.

Later that year and in 1976 the court made further orders enabling Wikitera to transfer his interests in Kaimaumau and Herekino-Manukau to one of the children from Hawe's first marriage, Annie Lloyd, and the sole succession of his 0.063 shares in Waitaha C to his granddaughter Ririana Wikitera.

But two of Hawe's children by her first husband - the original applicants in the case - said they were unfairly left out of succession to the land, which originally belonged to their father and which they only found out about 38 years later.

Because of the orders, some of Hawe's mokopuna were excluded from the land.

Descendants continue case

They applied in 2010 to have the orders cancelled.

But those applicants died before the case was heard. The application was continued by one of their daughters, Kathryn Wheeler, and a niece of the other, Raelene Koha.

At a hearing before Judge Fox last year, Wheeler said the Herekino-Manukau block was particularly important because it is the family's papakainga. Her grandmother (Hawe) was born and raised there.

After Hawe's first husband died, she built a house on the land and when she later met Wikitera, he moved in with her.

Wheeler said her mother also lived on that land until she was 28. She was buried in the family urupa (graveyard) there, where Hawe and Wheeler's grandfather are also buried.

Counsel for the applicants Coral Linstead-Panoho said the orders granting succession to Wikitera were wrong in law. If the correct law was applied, Hawe's interests would have been vested in her children, with Wikitera at best only entitled to a life interest.

46 years later

The court granted succession to Wikitera without any evidence of a legally-required family agreement or arrangement.

It was necessary and just to correct what happened to provide for Hawe's other descendants.

Respondents to the application, Celia Tatana and whānau, and Maria Mathews - the only surviving child of Hawe - claimed all Hawe's children were involved in the decision to sign the land over to Wikitera.

Their counsel Hugh Ammundsen said the succession orders were rightly made according to the law at the time and Wikitera was entitled to his wife's land interests.

The court needed to consider the passage of time - 46 years had passed since the orders were made and several further succession orders had been made. Not upholding the orders would affect the certainty of succession by later generations.

There was also a possibility one of the interests came through Wikitera's family, Ammunsden said.

In a recently-released reserved decision, the judge found in favour of the applicants.

The court mistakenly applied the wrong legislation when it made the orders, the judge said. The land interests should have gone to Hawe's children, albeit not all could have been included due to the low value of some of the shares.

Even so, all the interested parties should have been given a chance to have a say in who should hold the interests in the land.

There was no evidence the applicants received formal notice of the court hearing either from the court or Wikitera. That was a breach of natural justice, the judge said.

It was in the interests of justice to cancel the 1975 orders and all consequential ones, she said.

The court did not need to decide any financial matters in relation to the land.

There were never any trusts formed over the blocks and they had not produced any revenue.