KEY POINTS:
Ownership of the disputed Wakapuaka Estuary near Nelson remains unclear after a majority decision issued yesterday by the Court of Appeal.
In May, Justices Robert Chambers, Bruce Robertson and David Baragwanath heard an appeal from the Crown over the disputed foreshore land northeast of Nelson.
The case was about the ownership of the mudflats below the mean high water mark and, in reserving the decision, Justice Chambers said the case was "fascinating and disturbing".
Local iwi Ngati Tama claimed ownership, officially dating back to a Native Land Court decision in 1883 and before that, unofficial ownership based on customary use of the land.
In decisions made in 1986 and 1998, the Maori Land Court concluded the mudflats were part of the Wakapuaka Block and made orders vesting ownership in the Te Huria Matenga Wakapuaka Estuary Trust.
But the Crown disputed the trust's claim, saying the estuary was not included in the Land Transfer Certificate issued in 1901.
That certificate granted ownership over land surrounding the estuary, which was not contested by the Crown.
The Crown sought a judicial review of the Maori Land Court decision but was turned down by the High Court in December 2006.
The Minister of Conservation contested that decision in the Court of Appeal. The court yesterday issued a majority decision by Justices Chambers and Robertson.
They discussed Mrs Huria Matenga's application to the Native Land Court in 1883 which resulted in a certificate of title being issued to her as owner of the block at Wakapuaka "according to Native custom".
A composite plan of the 1885 survey plan was produced in 1885, but the copy of the 1885 survey plan which underpinned the Native Land Court certificate of title was lost.
The certificate of title was then converted into a title under the Land Transfer Act which was registered in 1901.
Justices Chambers and Robertson said the Land Transfer Act certificate and the plan underpinning it were clear that the mudflats were not included in the block.
Because of the lost plan, the Maori Land Court in 1986 treated the scope of the Native Land Court certificate of title as uncertain and relied on evidence of the oral history of the area to ascertain ownership of the mudflats.
It concluded the mudflats were included in the freehold title for the Wakapuaka. The 1998 Maori Land Court decision was to similar effect.
But Justices Chambers and Robertson said they had looked at the documents underpinning the certificates of title, in particular the 1885 survey plan, which did not include the mudflats as part of the block.
They held that the Maori Land Court had erred in relying on the Native Land Court certificate of title.
Justices Chambers and Robertson said the Land Transfer Act title based on the 1885 survey was, however, definitive and the Maori Land Court was bound to treat it as conclusively fixing the boundaries of the land.
The Maori Land Court had no jurisdiction, the majority held, to alter the boundaries on the survey plan underlying the Land Transfer Act certificate of title.
In line with the majority's reasons, the court made declarations that the orders by the Maori Land Court in 1998 were wrongly made and the certificate of title issued under the Land Transfer Act did not include the mudflats below the mean high water mark.
The effect of the court's decision is that the status of the estuary was not determined, save to the extent that it was not included in the Land
Transfer Act certificate of title issued in 1901.
- NZPA
