December 1993 Contents

Maori Law Review December 1993

Tena Koutou

Welcome to the first issue of the monthly Maori Law Review. The reasons for publishing the review are two-fold.

First, the perennial demand among Maori land law practitioners for a better decisions service. The need is possibly greater now because of the recent introduction of Te Ture Whenua Maori (Maori Land Act) 1993.

Second, the imperative which is emerging for general practitioners to keep abreast of developments in what might be termed "general Maori law". References to Maori concepts and the Treaty of Waitangi now appear in many major statutes and decisions of the general courts. Consequently, practitioners face Maori law problems in a surprising (and growing) number of areas.

Specifically, the review will report on:

Maori Land Court

  • Land Court and Appellate Court decisions of interest
  • Te Ture Whenua Maori and related law; legislative, regulatory and rule changes Waitangi Tribunal
  • Reports
  • Practice notes
  • Directions/memoranda of interest

General Courts and law

  • Decisions impacting on Maori land and other resources eg Resource Management Act, Rating Powers Act, Maori fisheries legislation
  • Law changes in areas impacting on Maori land and other resource use.

An index will also be provided annually.

The review also offers a "Stop Press" option - immediate faxed information on important decisions made within any month eg the forthcoming Privy Council judgment on Maori broadcasting.

Guest writers will provide an editorial comment each month.

The editor is a consultant on Treaty issues. He has worked with the Waitangi Tribunal as legal officer for 5 years and been an adviser to the Maori Land Court, Head Office.

Maori Land Court and Appellate Court

Application by Public Trustee re Te Omeka Manunui

1993 CJ MB 516, 23 September 1993, McHugh Deputy CJ

Whether land of an intestate was General land or Maori freehold land at the time of death. If the land was Maori freehold land on intestacy the widow had a life interest only with the children taking the remainder. Confusion had arisen because of a sale to Europeans registered against the certificate of title, thrown into doubt by a subsequent retransfer and later Court orders as to status.

Held; that upon registration of a transfer to a European Maori freehold land becomes General land. No further order is necessary. Earlier orders made on the assumption the land was Maori freehold land should therefore be cancelled under s452. Principle of ex abundante cautela applied; the children of the deceased who held the remainder under the orders made in error were to be given an opportunity to lodge objections before final correcting orders made.

Rangi Kaata or Cotter Deceased

135 Gisborne MB, 28 October 1993, McHugh Deputy CJ

Dispute over succession. Held; that despite the kaupapa of the 1993 Act that succession be restricted to blood-lines and preferred classes within kinship groups, s100(2) permits no discretion and requires that where administration is granted prior to the commencement of the 1993 Act the prior law applies. Agreed that the applicant as a blood descendant had a strong moral claim but "howsoever the application of the law may run contrary to present Kaupapa until it is amended the Court must simply apply that law." Section 76/1967 requiring succession on intestacy to be determined as if the deceased were European, was applied.

Mana Manuera Cracknell v The Treaty of Waitangi Fisheries Commission & A-G

Tairawhiti MB, 26 October 1993, McHugh Deputy CJ (a more explicit statement of reasons for oral judgment of 13 October 1993)

The applicants had under s30(1)(b)/1993 petitioned the Chief Judge to request the Maori Land Court to determine the appropriate group within Ngati Kahungunu to receive certain quota from the Commission. This case concerned an interim injunction sought under s19(1)(b)/1993 to prevent distribution by the Commission until a MLC determination had been made [ed: or, presumably, a decision by the CJ declining to request an MLC determination].

Held; that an interlocutory order under s19(1)(b) must relate to pending proceedings for hearing before the MLC or CJ. Because the CJ had not yet acted on the petition and formally requested a MLC determination no proceedings were pending before that Court. The filing of the petition was sufficient for there to be proceedings pending before the CJ. Cases concerning meaning of "proceedings" were considered.

Orders under s19(1)(b) must concern property. While the 1993 Act intended property to have a meaning wider than land, determinations under s30(1)(b) concern only the appointment of persons to represent Maori and not the actual division of or dealing with any property. Determinations under s30(1)(b) are binding only on the CJ and do not bind any other party. The purpose of s30(1)(b) is to determine the most appropriate group with whom the Crown, a state enterprise or local authority might deal and avoid later claims from disaffected groups. The section is not intended to give the MLC jurisdiction to review actions of the Fisheries Commission.

Although it did not have to be decided, the balance of convenience "leans so heavily in favour of the first respondent and Ngati Kahungunu that it would be harsh and inequitable to grant the order". The applicant group (Rongomaiwahine) would take part in the quota distribution anyway under the proposed distribution via taiwhenua. There was no evidence of exclusion or financial loss [ed: the Court noted at an early stage the applicants assertion that this case was a matter of mana and not money - can mana be a consideration in the "balance of convenience"?] Noted that, in appropriate circumstances (recent High Court litigation between Maori re fisheries referred to) the MLC might copy the High Court approach and use s73/1993 (empowering the MLC to attach conditions to any order) to require an undertaking as to damages as a condition of granting an interim injunction.

Application re Hopuhopu and Te Rapa

1993 CJ MB 583, 10 November 1993, McHugh Deputy CJ

An unusual case in which, on an appeal against certain vesting orders of the Hamilton MLC the Registrar of that Court was directed by the Maori Appellate Court (MAC) to apply to the Chief Judge to exercise his special powers to cancel the orders. The Registrar made the application but queried whether it was appropriate.

Held; dismissing the application, that the MAC appeared to be acting outside jurisdiction since the appeal against the vesting orders was out of time. While s45/1993 provides a new ability for the Registrar to apply for the exercise of the CJ's special powers, this is a matter of practical convenience to correct straightforward errors and should be exercised sparingly. The MAC was mistaken in thinking the vesting orders had been wrongly made under s437(1) & (7)/1953 (Crown lands set aside for the benefit of Maori) and should have been made under s436 (land formerly taken for public works). There had been no public works taking. This was a rare instance of the CJ reviewing an MAC decision, and such power should be carefully exercised, or referred to the High Court if outside the CJ's competence.

[ed: the case is also of interest as an illustration of a mechanism for the return of Crown lands to Maori. The lands concerned had been returned in recognition of raupatu (confiscation) related claims and vested in an eponymous ancestor, Potatau Te Wherowhero. The Deputy CJ also noted an alternative mechanism s437(4)/1953 allowing for vesting in trustees and wide powers under s437(4A) to vary the trust on application of interested persons.]

In re Tauranga District Council and Ohuki No 1C Section 2 Block

52 Tauranga MB 97, 11 June and 9 August, Carter J

The District Council sought a charging order under s186/1988 on the block.

Held; that there is no legislative provision conferring on the Court jurisdiction to make the order. The Rating Powers Act fails to make specific provision for such an order (the equivalent provision of the Rating Act 1967, s153(6), was omitted from the 1988 Act). The decision relates to charges only, councils may still levy and collect rates on Maori freehold land [ed: the problems with rating Maori land continue.]

Re an application by Haana Johnson concerning Tame Rotini and Maraeroa B3B2B and other blocks

1993 CJ MB 525, 27 September 1993, McHugh Deputy CJ

The applicant sought to amend or cancel a succession order of 1936 relating to Tame Rotini's interests, claiming a child adopted customarily in 1905 by Rotini had been overlooked when the order was made.

Held; the evidence provided in support (school record and letters of support) was "weak". There were no persons alive who could give direct evidence of the alleged adoption. Stronger prima facie evidence from the applicant requested (this was not forthcoming and the application was dismissed 1993 CJMB 647). Noted, in addition, after reviewing adoption law since 1901, that to be relied upon in proceedings, customary adoptions must have been registered in the MLC before 31 March 1910. Even this evidence would be capable of rebuttal.

[ed: a case where the possibilities of the Chief Judge special powers under s44/1993 confront the practical evidential difficulties]

Waitangi Tribunal

Maori Development Corporation Report

7 WTR (Wai 350), 15 October 1993, Hingston J, Morris, Young, Ingram

This is a report of two claims concerning the Crown decision to sell on the open market its 49.9% shareholding in the MDC. The MDC and associated Poutama Trust were established in 1987 to provide development banking on a profit making basis for large scale Maori business ventures. Poor returns in 1989-90 resulted in a shift from lending to "financial packaging" services for ventures and a subsequent return to profitability. It was claimed: the Crown investment in MDC was Treaty based; $5 million of the Crown investment capitalised from a 1986-7 appropriation for Maori purposes should belong to Maori; the proposed sale would place the original mission of the MDC in jeopardy; a minority of iwi might benefit from the sale; before any sale the Crown ought to return the MDC to its original mission of development banking. In separate proceedings during the hearing the High Court ordered specific performance of a contract for sale of the Maori Trustee's substantial MDC shareholding (37%) to a Maori incorporation of Tainui descendants (proprietors of Taharoa C Block), see The Maori Trustee v The Proprietors of Taharoa C Block CA 238/93, 1 December 1993 (reviewed below). Found, that tribalism is an essential and dominant feature of Maori life and identity. There is a Treaty principle requiring the Crown to act equitably between tribes when promoting projects for the benefit of Maori generally so as not to unfairly advantage particular iwi (positive discrimination in particular cases an exception). The Crown purpose in establishing and investing in MDC as a development bank for Maori was Treaty related. The Crown had failed (by co-operation with another major shareholder or other means) to retain this Treaty related objective. The present market would allow return to a lending role without undue risk to continued profitability. The Crown was obliged to "actively promote" the MDC original mission before divesting itself of its shareholding. Five million of the Crown shares were held on behalf of all Maori and should be transferred without consideration to a pan Maori body. The Poutama Trust was such a pan Maori body. Concentration of MDC shares in a few iwi (as a result of High Court proceedings or otherwise) would affect the present perceived "neutrality" of the MDC operation among iwi. Recommended that 5 million shares be transferred without charge to Poutama Trust. Should the High Court decision stand, the Crown should retain its MDC shares until a pan-Maori entity acquire its interest and retain pan Maori control of MDC. Should the decision be successfully appealed, the Crown should use its influence to entrench the MDC Treaty based objectives and limit ownership by individual iwi. The 127 page report contains over 60 pages in 8 appendices setting out most of the detailed evidence and argument.

[ed: the appeal was not successful, see below CA 238/93, 1 December 1993].

Taranaki claim

Wai 143 doc 2.79, 6 October 1993, Orr

Counsel representing "various of Te Atiawa" applied for urgent findings and a recommendation in respect of local authority land ("Pukeariki Reserve") under conditional sale to a private developer. By memorandum of 12 August 1993 (Wai 143 doc 2.72) the Chairperson referred the application to an urgent conference with certain questions to be addressed. In this memo, following the conference, it was concluded that the phrase "the Crown" in s6(4A) as inserted by the Treaty of Waitangi Amendment Act 1993 does not include local authorities. However, considered in light of s6(3) (compensation) and s6(4) (scope of recommendation), the new subsection does not prevent the tribunal recommending that the Crown pay compensation sufficient to enable the purchase by Maori of land presently on the market. The amendment seeks to prevent pressure being placed on private owners with no present intention to sell land. The conditional purchase agreement in this case however had taken the land off the market. Leave was granted to renew the application should circumstances alter [ed: the Chairperson's memo of 12 August gives the history of the land].

Tainui claim

Wai 30 doc 2.12, 7 October 1993, Durie CJ

The Tribunal considered a request for procedural directions re a potential application under the Crown Forest Assets Act 1989 for return of two Crown forests (Onewhero and Maramarua). The Tribunal noted that whether a formal application to the Tribunal should be made is a decision for the claimants and such application "may not be essential". Research requirements prior to the hearing of any application were outlined. It was noted that research could assist negotiations as well as any Tribunal proceeding.

[ed: the Tribunal appears to be adopting a flexible approach to the Crown Forest Assets Act 1989 to facilitate settlements].

Whanganui River claim

Wai 167 doc A18, 19 November 1993, Durie CJ, Orr, Walker

The claimants had been involved in negotiations with the Crown. These had been deferred, in the meantime various initiatives affecting the river, including an application for a water conservation order under Part IX Resource Management Act 1991 were proceeding. The claimants sought various recommendations and a priority hearing of the claim.

Found; in this case the 1991 Act was inconsistent with the Treaty in its approach to resource issues, because it allowed rights to be determined before outstanding Maori claims to a resource are investigated. Claimants were further prejudiced in being put to a form of proceedings whose very propriety was in issue. There was scope under the ministerial discretion in s202/1991 (whether to appoint a special tribunal to hear application), to delay that decision pending a Waitangi Tribunal report. While the discretion does not allow consideration of river ownership, it does encompass cultural concerns on which the Tribunal would presumably report.

Accordingly recommended the Minister take no steps to appoint a special tribunal until the Waitangi Tribunal reports. Priority hearing set down for early 1994.

[ed: illustrates the difficulty of divorcing Maori claims to the ownership of resources from management issues, as the 1991 Act has sought to do, and the Tribunal disquiet with this approach].

Undoing History. Chief Judge Eddie Taihakurei Durie. Land tenure conference, New Caledonia

Office of the Chief Judge, MLC, October 1993

A wide ranging speech reflecting on the approach to the work of the Waitangi Tribunal and the MLC. The central thesis: "... custom is seen to constrain development in some Pacific places but many Maori present custom and tradition as fundamental to the action taken, as a hedge against assimilation and as the justification for an independent political stance and commercial methodology. The issue for them is not whether custom and tradition should be maintained, but how it can be managed to uphold Maori identity and how it can be modified and capitalised upon to promote the people's material advance." Lists types of hapu grievances advanced in claims, and the WT's task "... to assess the impact of ... changes against customary tenure, contemporary Maori preferences and the constraints of the time." Issues of custom arise in the delivery of compensation, where custom and modern management co-mingle. This generates debate about relative roles of hapu and iwi, where "[t]he proponents for each claim custom on their side, but the issue is in fact about modern political exigencies." Speculates on possible reversal of British and Maori philosophical approaches, with British law now adopting broad norms of fairness etc, while Maori are converting former broad principles to rules. Fisheries settlement disputes discussed. Importance of comprehending the underlying Maori ethos, in which ancestors and their links to the land are central, and implications of this for early land purchases. Notes difficulties for lawyers in handling kaumatua evidence and the need for the development of lego-anthropological opinions (also for MLC work). Discusses principles adopted by WT in its approach to claims, and by government, Maori and the courts in seeking settlements, including effective tribal restoration if full compensation is impracticable, no "final" settlements but rather review of settlements against stated goals, negotiations to be public where practicable with direct dialogue between Maori and interest groups (conservation, farming etc). Examines the changed role of the MLC over time, it now being a "facilitator, mediator and impartial adjudicator". Reforms which allow the reintegration of uneconomic interests have not however addressed the wider Maori desire for tribal control; in the absence of a clear policy of tribalisation, the claims process provides the best opportunity for this.

Ngati Paoa Whanau Trust and others

Wai 72, 16 November 1993, Durie CJ

In this memo concerning hearing arrangements for Auckland-Hauraki claims the tribunal suggests that the perennial problem of overlapping claims may be resolved by a two step process. Each affected group proving substantial loss, then referral of questions of representation not settled consensually to the Maori Land Court. It also notes that piece-meal claims to compensation from Crown lands as they appear on the market is "inefficient" in that it promotes inter-tribal rivalry.

Other Jurisdictions

The Maori Trustee v The Proprietors of Taharoa C Block

Court of Appeal, CA 238/93, 1 December 1993, Cooke P, Casey J, Hardie Boys J (appeal from CL 41/93, 30 September 1993)

In which the Maori Trustee appealed a High Court decision giving the respondents (Taharoa C) a decree of specific performance of a contract whereby the Maori Trustee would sell his 7,000,004 shares in the Maori Development Corporation (MDC) and shares in Te Maori Lodges Ltd to the highest bidder.

Taharoa C and the Tainui Maori Trust Board had formed a consortium to buy the shares. A conditional contract between them foundered and the Maori Trustee outlined in a letter to both parties a sale process by way of competing bids between the two. Taharoa C offered money to the Tainui Board not to bid. The Maori Trustee received a letter from Tainui stating that it was interested in bidding, but that the sale process had been 'contaminated' by the Taharoa action which would not obtain the best price for the Maori Trustee. Such action was against the "kaupapa of Tainui". The Maori Trustee then sought to stop the sale process.

Held; that the Trustee's letter contained no implied term that both parties would bid competitively. There was not proper evidence before the Court to consider the nature and extent of the offence alleged against the kaupapa of Tainui Maori and whether the Maori dimension in statute law now be imported into equitable remedies, but noted that such dimension would presumably be confined to disputes between Maori.

Area 1 Consortium Ltd & Another v The Treaty of Waitangi Fisheries Commission & Others

Court of Appeal, CA 224/93, 29 September 1993, Cooke P, McKay J, Gallen J (appeal from M 1357/93 & others, 27 September 1993)

This was a challenge to the distribution of quota from the Sealord settlement. The Commission had decided on a temporary compromise for the 1993-94 season allocating 50% of deepwater quota on a mana whenua mana moana basis, and 50% on a population basis. The former allocation was challenged in the High Court, which required undertakings as to liability for damages from the challengers. That requirement was appealed.

Held; denying the appeal, that there was no evidence the Commission had not properly addressed criteria it was required to, including Maori custom, economic and social considerations and equity, fairness and reasonableness between iwi. Since the compromise was temporary it does not appear to be open to a legal attack of any strength.