November 1994 Contents

Who represents Maori groups?

The Government is preparing to announce new proposals for the resolution of claims, but there is no sign that the fundamental issue of representation has yet been considered in a comprehensive way. According to the newspapers, Cabinet papers provide that tribes will be required to file a "deed of mandate". This has some similarity with proposals of the Treaty of Waitangi Fisheries Commission (Discussion Material on Allocation Models for Consultation with Iwi Te Ohu Kai Moana August 1994) which would require iwi to undergo a registration procedure before fishing quota would be allocated to them.

The procedure to determine representation attracting most interest is section 30(1)(b) of Te Ture Whenua Maori 1993, which provides that any person may apply to the Chief Judge of the Maori Land Court for him to request the Court to determine "the most appropriate representatives" of any group of Maori for the purposes of any consultations, negotiations or other matter. The latest decision under that section,In Re Tararua District Council (138 Napier MB 85, 1 November 1994, reviewed in this issue), has laid out some important principles for considering modern representation. The court has indicated it will not rely heavily on the disposition of iwi at 1840, or on Native Land Court determinations in the last century, but will rather look to recent arrangements which have developed from old principles. In addition, the court will place a premium on unity. Until now, divisiveness has had legal "rewards"; in claimant status before the Waitangi Tribunal, research funding, hearings before local authorities and the like, although the ultimate result has been the present confusion and gridlock over representation.

However, s30 may face a conflict with the Treaty of Waitangi Act 1975, which allows any Maori to bring a claim (s6). If a group secures a s30 order for negotiations over a claim and the right to lay future claims, what happens if another group from the same iwi lays a claim before the tribunal? The Government is said to be considering an amendment to the 1975 Act, allowing the tribunal to determine whether claimants before it adequately represent those on whose behalf the claim is made. Hopefully there will be some tie up with s30 to prevent overlap, or worse, conflicting decisions.

Ultimately, given the dynamic nature of Maori society and institutions, a policy for determining representation which is too rigid would be undesirable and might even be regarded as a breach of the Treaty. There should always be an allowance for new situations to produce new models and leaders, as the experience of the past few decades have shown.

 

Maori Land Court and Appellate Court

In Re Tararua District Council

138 Napier MB 85, 1 November 1994. Hingston J, with H Hohepa, S Jones as additional members

The district council applied under s30(1)(b)/1993 for a determination of the appropriate representatives of Maori in the district with whom it should consult over any matters requiring consultation, notice, negotiations etc. The request stemmed from a difficulty in determining between two groups, Tamaki Nui a Rua (Kahungunu), and Rangitane O Tamaki Nui A Rua, each claiming primacy in the district.

Held: neither group could claim to exclusively represent tangata whenua in the district. Both Rangitane and Kahungunu descended from common ancestors and had enjoyed historical rights of occupancy and use in the area. The matter should be adjourned to allow discussion between the groups, with the assistance of a facilitator if required, with a view to suggesting a common list of persons to be appointed as representatives. The court laid out principles it believed should be adopted in such proceedings:

- He ritenga ano: Maori society is not uniformly endowed with cultural resources. History has not had a uniform effect on Maori society, language and traditions, which in some areas are stronger than in others or have been adapted through the influence of religion. Historic circumstances of the claimant seeking representation rights need to be assessed.
- He rourou: Representation is about obligations rather than being simply an assertion of rights. The Court will seek to avoid models which lead to a growth in adversarialism, instead using those that provide scope for all parties to find that their interests have been addressed and acted upon.
- He au rere tonu: The court should not consider itself bound by the exact manner in which title was determined in the 19th century. Ascertainment of tangata whenua status requires a far more dynamic approach.
- Marae: The court should look to local marae in matters of customary authority, because it is probably the single most enduring institution in Maoridom. Change has not seen the creation of new tribes, but marae have continued, and new marae have been established and flourished in cities. The functioning of the marae can be seen as the expression of authority through customary practices.
- Customary authority: Authority which loses a legitimate basis becomes naked power or pokanoa, unsanctioned. Too much discussion about the future is focused on the situation of Maori during the 1840s (ahikaroa and customary take, while important, were not and are not definitive). The Maori politico-social structure was never static. The Maori Appellate Court in In re Henare Rakiihia Tau & Ngai Tahu Trust Board (4 South Island ACMB 673) determined that changes in tribal boundaries could not be brought about by warfare or force after the Treaty had been accepted, but other incidences of traditional change remained intact. Many hapu were assimilated or integrated with other hapu and their separate identity submerged by Crown dealings and actions of the Native Land Court. Some now seek their former status. The court will accept this re-emergence only when there is acceptance by all, particularly the hapu which have harboured them. In the absence of war, re-emerging hapu should adopt a consensual process relying on customary concepts such as whanaungatanga. There should be a deliberate process to ascertain the reasons for contemporary divisions. Existing entities, which have provided in the past for emerging groups, need to be part of any process leading to new groups.

Accordingly, the court found it odd that Rangitane people, claiming tangata whenua status in the area, failed to acknowledge their whakapapa links with Kahungunu. Inclusiveness ought to characterise strategies for iwi development such as those being pursued by the Rangitane group. For the Kahungunu group, which relied on current land ownership and argued that Rangitane were seeking to overturn longstanding arrangements, the court observed that Native Land Court determinations presented in evidence would not be seen as the sole or even major arbiter of current tangata whenua status. Existing marae are a more important factor which show a willingness to uphold the obligations that go with authority. Legal body corporates created in response to the government's iwi devolution policy and accompanying transfer of funding to iwi, do not necessarily have customary authority. Rather, authority is rooted in institutions which continue to exist such as marae.

Rangatiratanga should not be used as a weapon to exclude others, the emphasis should be on duties and obligations involved in the concept. Underpinning rangatiratanga are values such as whanaungatanga, manaakitanga and kaitiakitanga which raise the importance of reciprocity, stewardship and cohesiveness.

[ed: this is the first judgment to set out principles which may be followed in making s30(1)(b) determinations. It will be interesting to watch the further development or adoption of these principles in forthcoming judgments. The court noted that it retained the ability to appoint a mixture of representatives in an effort to force unity if the parties fail to agree a common set of representatives]

 

Waitangi Tribunal

Directions, memoranda on procedure, evidence and issues in the inquiry into the Ngati Awa, Tuwharetoa, and other claims of the Eastern Bay of Plenty as at end October 1994

Wai 46 & Ors, Doc #2.59, 11 November 1994

A lengthy memoranda concerning procedural and research issues affecting 11 claims and 9 other parties. Matters dealt with were:

- Order of hearing: where there are conflicting claims the tribunal seeks to have each group first appear to outline their claims on their own marae or other places of their choosing in order to satisfy the need to present claims in their own way and clarify issues and any conflicting interests. The alternative procedure of seriatim presentations by rival groups at the one place has been tried but found wanting. Statements of claim may be altered and the degree of support for any claim sounded out by preliminary hearings. Those groups with research completed first and otherwise ready to proceed will be the first heard.
- Procedure at hearings: extensive cross examination is discouraged, particularly in relation to historical evidence (which can be dealt with by written questions) and kaumatua evidence. The right to recall witnesses at a later stage after issues have been defined may be exercised. Where "binding recommendations" are sought a higher standard of proof will be required and a more court-like process adopted. The tribunal appears to have a power to adjourn its inquiry while parties undertake private mediation between themselves (this is apart from the mediation power provided in the 2nd schedule, Treaty of Waitangi Act 1975). Attempts to secure agreements on boundaries by mediation have not been successful in the past, but the tribunal encourages private mediation on selected issues and will give serious weight to agreements reached. Compulsory settlement conferences (a court practice) are not favoured as the 1975 Act contemplates that groups should air their grievances fully in the manner and place they choose unless special circumstances suggest otherwise.
- Referral of a "boundaries question" to the Maori Appellate Court: the tribunal "is not entirely convinced that iwi were [historically] arranged as state-like institutions with borders of approximate definition fuzzed only by contestable zones." Overlaps between groups could be extensive. The meanings of mana and mana whenua are also not certain. Loss of mana, and not just land, may have been a key factor in the impact of confiscations. There are doubts whether the issue for the MAC to consider under s6A/1975, which assumes the existence of definite boundaries, is the correct one in any event.
- Other matters: past settlement precedents suggest Maori groups are not limited to seeking reparation from Crown lands in their own area (assuming no competing claims on Crown land elsewhere).

Prima facie claims had been made out in respect of the Rotoehu forest and Te Mahoe village lands.

[ed: this lengthy memo is the most current and detailed statement on tribunal procedure for dealing with complex overlapping claims. The tribunal re-iterates its preference for limited cross-examination and a less court-like procedure generally. How far this preference can be realised remains to be seen. As an example of the adversarial nature of the proceedings, the memo also dealt with an allegation of bias on the part of one tribunal member (it found no real likelihood of bias and that any right to object had been waived). For a discussion of recent tendencies in tribunal procedure see R Boast "The Waitangi Tribunal: `Conscience of the Nation', or Just Another Court?" Uni NSW Law Journal vol 16 1993 p223]

 

General

Hazardous Substances and New Organisms Bill

No 48, 1994

This bill is intended to provide a comprehensive and consistent approach to the management of all hazardous substances and new organisms (including genetically modified organisms). It proposes that the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga, and kaitiakitanga are matters which must be recognised and provided for by all persons exercising functions and powers under the Act (cl5). The principles of the Treaty of Waitangi are also to be 'taken into account' when exercising power under the proposed Act (cl6). When choosing members for the 5 to 7 member Environmental Risk Management Authority, which will control the manufacture or importation of new hazardous substances and new organisms, the Minister may consider, among other things, knowledge and experience of the Treaty of Waitangi or kaupapa Maori to be relevant (cl10). Not only must the authority consider the impact of new and existing substances or organisms on native organisms (which includes organisms introduced by Maori before European settlement), but also on exotic species valued for Maori traditional harvest or recreation (cl27).

[ed: a special select committee will hear submissions on the bill. Closing date for submissions is 3 February 1995. The pesticide sodium fluoroacetate (also known as 1080), is covered by the Bill. It is interesting to speculate how this proposed Act might have affected the current debate among Maori groups over the use of 1080 in Northland]

 

 

Deed between Her Majesty the Queen and Ngati Koata No Rangitoto Ki Te Tonga Trust and James Hemi Elkington

29 November 1994

This island, gifted by Ngati Kuia to Ngati Koata in 1824, was taken by the Crown for a lighthouse site in 1891. Compensation was ordered to be paid to the native owners in 1895. This deed records the settlement of a claim to the Waitangi Tribunal (Wai 95) complaining about that taking.

Ngati Koata and the Crown agree that the protection of the island and the conservation interests of Ngati Koata will be best achieved by declaring the island (currently a wildlife sanctuary) a reserve under the Reserves Act 1977. The Crown undertakes to consult Ngati Koata over management of the reserve. A remnant area of lighthouse reserve remains outside these consultation arrangements. In exchange, Ngati Koata, in exercise of their mana over the island and their role as kaitiaki, "as a free gift and symbol of partnership with the Crown" agree that their claim is satisfied by the deed and will withdraw it from the Waitangi Tribunal. The Crown does not admit the claim, but entered the deed to protect threatened species living on the island and to acknowledge Ngati Koata mana.

[ed: this settlement has been represented as "in effect" the return of the island to Ngati Koata who have gifted it to the Crown (Dominion 30 November 1994). The wording of the deed suggests something quite different. The Crown has agreed to create a nature reserve of what was formerly a wildlife sanctuary. The Crown will consult Ngati Koata about management - something it would have done in any event. Under the Reserves Act 1977, Ngati Koata preferences for management may not, as of right, be given any greater weight than those of, say, the Royal Forest and Bird Protection Society. In addition, the deed greatly simplifies future Crown consultation with Maori over the island. It is therefore difficult to see that Ngati Koata have gained from the Crown any tangible legal rights to better protect their interest in the island in exchange for relinquishing the legal right to pursue their claim]

 

 

Appointment to Office of Treaty Settlements

Department of Justice, 14 November 1994

Belinda Clark, presently a policy manager at Te Puni Kokiri, has been appointed to head the Office of Treaty Settlements, now being formed out of the Treaty of Waitangi Policy Unit.

 

 

Law Commission Annual Report 1994

NZLC R32, Parliamentary Paper E31

The commission has adopted a Maori name, Te Aka Matua O Te Ture, derived from the legend of Tawhaki who was exhorted to climb to the heavens by a main vine (with its roots in the earth) and not by the less secure tendrils. The commission has established a standing Maori committee of Bishop Manuhuia Bennett, Judge Michael Brown, Professor Mason Durie and Whetu Wereta to assist it in the "development of a bicultural framework for the law of New Zealand". A consultation strategy with Maori which has been developed is outlined, which may include limited financial assistance to assist groups to collect and present material. Guidelines for applications for this assistance are available on request. Two projects where Maori input will be sought are reports on reforming the laws of succession and the law of tenure and estates.

 

 

The Sealord Fishing Settlement. An International Perspective

Michael Robinson. Auckland University Law Review 7(3) 1994 p557

This article considers whether or not Maori who are aggrieved by the Sealords settlement could successfully make a complaint to the Human Rights Committee of the UN that, by passing legislation which extinguished Maori fishing rights, the NZ Parliament acted in breach of its international obligations as expressed in the International Covenant on Civil and Political Rights. Article 27 of the Covenant provides that "persons belonging to ... minorities shall not be denied the right in community with other members of their group, to enjoy their own culture". The complaint would be made to the Human Rights Committee under the "Optional Protocol" procedure which allows complaints from individuals where domestic remedies have been exhausted. The article concludes that it is difficult to predict the likelihood of success of such a complaint, but the potential for success exists. Notes that the Optional Protocol makes individuals subjects of international law, where formerly only states were, but that indigenous groups have yet to be recognised and presently must rely on "hybrid rights" such as those in article 27.

 

 

The Phenomenon of Agreement: a Maori Perspective

Mina Wharepouri. Auckland University Law Review 7(3) 1994 p603

Quotes Macneil (The New Social Contract 1980); "never has contract occurred without society; ... and never can its functioning be understood isolated from its particular society", as the background to a discussion of koha or the "gift exchange process" as underlying transactions between Maori and early Pakeha settlers. Utu and tika (etiquette) are important concepts underlying koha exchanges. Features of koha are; an obligation to give, an obligation to receive, and an obligation to repay. The concept of hau, which holds that possessions contain part of the essence of a person, underlies the obligation to repay. Although possession may be ceded, hau means that a portion of ownership of the good is retained. Repayments accordingly acknowledge and strengthen links between people. Before 1840 Maori did not have a word meaning full and permanent extinguishment of all rights for consideration amounting to a sale. This affected the understanding of early land transactions in the Muriwhenua region. The Treaty of Waitangi can be considered as a special contract, with Maori transferring the hau of their lands, but not the mana.

[ed: the view that different expectations existed for early land transactions in Muriwhenua is presently under consideration by the Waitangi Tribunal in its hearing of the claim Wai 45]

 

 

Australian National Native Title Tribunal ruling

Aboriginal Law Bulletin, October 1994

The tribunal has made its first decision under the Commonwealth Native Title Act 1993, ruling that native title does not exist on 3.7 hectares of land in a proposed residential subdivision 165 km north of Brisbane. This was an unopposed non-claimant application brought by the owners of the affected land. The decision was on the basis that Crown dealings with the land have been wholly inconsistent with continued aboriginal title (it was designated as a roadway). The land is in the traditional country of the Gubbi Gubbi people, whose other claims are not affected.

 

 

Restitution of Land Rights Act (South Africa) 1994

South African Financial Mail 18 November

The Act allows any person or community to claim restitution for dispossession of land rights under apartheid laws since 19 June 1913. However, restitution will not be given in cases of "bona fide" expropriation under the Expropriation Act where "just and equitable" compensation was paid. Claims are advanced by a 2 step process. A Commission on the Restitution of Land Rights will investigate the merits of claims and may mediate a settlement. Where claims remain unsettled, the commission will present evidence to a Land Claims Court which may order the State to restore the land where this is "just and equitable". This can be achieved by handing over land if it is in State hands or purchasing the land if it is in private hands. Where restoration is not feasible (the interests of all parties, including any private landowner, and present use, are considered), equivalent State-owned land or compensation may be ordered. Ninety five rural communities and about 110,000 urban families affected by apartheid laws are expected to have claims. Claims must be lodged within 3 years, and it is hoped to complete the entire process within 5 years.

[ed: in South African terms, the Act affects few people and is expected to cost little to implement, but is seen as an important symbolic gesture. Experience with claims processes here and in other countries suggest the estimates as to cost and time are optimistic]


October 1994 Contents

Proposed Maori Electoral Districts

1994 Representation Commission

The Maori seats proposed by the commission, Te Tai Tokerau, Te Tai Hauaru, Te Tai Rawhiti, Te Puku O Te Whenua, Te Tai Tonga are based on existing Maori electoral boundaries, the community of interest among Maori people and members of Maori tribes, communications, topographical features, projected population changes (these criteria are in the Electoral Act 1993). Te Puku O Te Whenua district is said to be "a symbolic reference to the centre", and "in spite of an apparent diversity of Iwi within this electorate the territorial integrity of each has for the most part been accommodated." The Maori electoral population of the Chatham Islands is included in Te Tai Tonga. Boundaries go to the limit of the territorial sea to avoid questions regarding eroded or accreted or reclaimed areas. Maori members of the Commission are W Gardiner (TPK), J Brown (government rep), W Wereta (opposition rep). Objections must be received by 21 November 1994. After hearings, the final boundaries are expected to be gazetted on 27 April 1995.

 

Maori Land Court and Appellate Court

Maioro lands Case stated

1990/1, Waikato-Maniapoto ACMB, 12 September 1994. Hingston J, Carter J, Marumaru J

While hearing a claim concerning Maioro lands on the northern side of the Waikato river mouth, lodged by a Ngati Te Ata group, the Waitangi Tribunal became aware of a "cross claim" from a group identified as Ngati Karewa/Ngati Tahinga. The tribunal referred a case stated to the Maori Appellate Court under s6A Treaty off Waitangi Act 1975 to determine which Maori according to customary law principles of "take" and occupation or use had rights of ownership in the area, and if more than one, what were the tribal boundaries. Held: Although not permanently occupied by any group, Ngati Te Ata held rangatiratanga and ownership according to customary law over the Maioro lands from 1840 to 1865, when the lands were Crown granted to Ngati Te Ata. The court rested its analysis on the classic grounds of discovery, take tupuna (ancestry), take raupatu (conquest) and take tuku (gift), used in the past by the court and most recently in In re Henare Rakiihia Tau & Ngai Tahu Trust Board (4 South Island ACMB 673). These principles were applied to whakapapa evidence from the claimants and historical reports about land dealings prepared by the Crown and Ngati Te Ata researchers. The case included discussion of kaitiakitanga and its relationship to ownership for the purpose of determining customary rights. The court was concerned that other hapu of Tainui might have an interest, but on receiving no submissions from other hapu determined the ownership in Ngati Te Ata. [ed: Judged by this and the Ngai Tahu Trust Board decision, the present land court judges are happy with the criteria developed by the old Native Land Court when determining customary issues, although recent research (most notably A Ballara Origins of Ngati Kahungunu) and comments of the Chief Judge (see below) suggest those criteria may need modification]

 

Section 30 applications update

Office of the Chief Judge, 1994

Seven applications received by the Chief Judge under s30(1)(b)/1993 have now been referred to the Maori Land Court to determine who are the appropriate representatives of Maori groups in particular areas for particular purposes. The purposes include consultation under the Resource Management Act, consultation over sacred sites and traditional fisheries, negotiations over Treaty claims settlements, receipt of benefits allocated by the Treaty off Waitangi Fisheries Commission. In the North Island, applications are from Whakatohea, Pahauwera, Ngati Paoa,, and Ngati Toarangatira groups (see Ngati Toarangatira Manawhenua case below), and one from Tararua District Council (seeking to know who to deal with between Kahungunu and Rangitane groups under the RMA). In the South Island, applications concern representation for the Arahura and Mawhera regions of Te Tai Poutini and the region between the Hapuku and Clarence rivers on the east coast. In two cases, Whakatohea and Ngati Pahauwera, final orders have now been made. The court did not issue a written judgment giving reasons in each case but simply issued orders naming the representatives. [ed: In comments made when referring these matters to the Maori Land Court, the Chief Judge has noted that s30(1)(b) confers a discretionary power and he must act extra judicially in making referrals, subject to the usual rules of administrative law. Accordingly, his discretion has been advanced by letters and inquiries (with copies to all parties, and an opportunity to respond etc) and not by formal memoranda or sittings. The major concerns at this discretionary stage have been: - Finalising the proposed terms of reference ie for what purposes the representatives shall act - Satisfying the Chief Judge that reasonable steps have been taken to determine representatives and that these have been unsuccessful (s30(2)) - Consultation over the skills required of additional members (not nominations) appointed by the Chief Judge to the court to hear the application (s33(3).]

 

Ngati Toarangatira Manawhenua ki te Tau Ihu Trust v Te Runanga o Toa Rangatira Inc & Maori Land Court

CP 228/94, 16 August 1994. Neazor J

Ngati Toa groups had sought a determination by the MLC under s30/1993 as to appropriate representatives off Toarangatira for the purposes of; receiving certain fisheries quota, consultation with territorial authorities, and negotiating with the Crown over surplus lands disposal in the South Island. The plaintiffs challenged, by way off judicial review, a decision of the MLC setting an early fixture date, arguing that they required further time for preparation. Held: the MLC in deciding on a date for hearing is exercising a statutory power affecting rights which is amenable to review. The power to fix dates is discretionary however. On the facts of this case the court had considered all relevant matters and natural justice was not denied by the court in fixing a date earlier than the plaintiffs desired. Waitangi Tribunal Maori Tertiary Education claim Wai 431, 23 September 1994. JR Morris After a conference, the tribunal deferred inquiry into this claim on the basis that the Todd report on the funding off tertiary education was not yet part of government policy, and it would not be possible to determine whether there was any likely prejudice to Maori when total arrangements as to tertiary funding changes have not yet been decided. Leave was given to reintroduce the claim if required when a government decision on funding is made (likely before the end of the year according to Crown counsel), or in 1995 if no decision has been made by then (at which time an inquiry might focus on the delay). Memorandum re jurisdiction in the Chatham Islands claims Wai 64 & others, 5 October 1994. CJ Durie, Prof G Orr Counsel for claimants sought a determination that the tribunal could consider, under s6 Treaty of Waitangi Act 1975, whether the "1840 rule", a judge made rule of the Native Land Court, was inconsistent with the principles of the Treaty of Waitangi, being a rule made by the court acting by or on behalf of the Crown. Held: the tribunal has yet to determine the precise content of the 1840 rule. As to whether the land court acted on behalf of the Crown, "the Crown" formerly referred to the monarch but now commonly means the executive government. It does not include Parliament. Past legislation establishing the land court reflected measures for the general courts which emphasised the doctrine of the separation of powers. If the land court were found to be part of the Crown, it would follow that other courts were also the Crown. The Crown when used in contemporary statutes without other embellishment refers to the executive and not to Parliament or the courts. Arguments that the Treaty of Waitangi Act 1975, because of the special matters it seeks to address, might use the term differently, were rejected. It was accepted however that the tribunal is not concerned with the legality of actions of the Crown, but whether they are consistent with the principles of the Treaty. It is unlikely therefore that the legal sufficiency of Crown actions alone will necessarily constitute Treaty compliance. Arguments were also rejected that this matter should be decided by reference to the Treaty itself and "kawanatanga". That word does not suggest that less than full sovereignty was ceded by Maori, as earlier tribunal reports make clear. The supremacy, if not the precise nature, of the new governorship was understood. The tino rangatiratanga retained by Maori was necessarily altered from that of olden times to allow for the Queen's pre-eminence. Read as a whole the Treaty does not describe a continuing relationship between sovereign states. It is arguable that since Maori at 1840 were unaware of the separation of powers they may have viewed any act of the British, including actions of the land court, as acts of the Crown. Passages in the Te Roroa report suggest this. However, the present issue must be determined by looking to the intention of the legislature in passing the 1975 Act, not the understanding of Treaty participants at 1840. It is significant that the 1975 Act specifically provides that the tribunal may consider statutes, which are not normally considered acts by or on behalf of the Crown, yet is silent about the courts. Submissions that the NZ Bill of Rights Act 1990 and international instruments are relevant were rejected. Agreeing with comments in the High Court in the Te Runanga o Wharekauri Rekohu Inc v Waitangi Tribunal (CP M8/94, 12 May 1994), the tribunal may however look at land court decisions to see if they are consistent with the Treaty, and where they are inconsistent, whether the Crown omitted to take action to remedy the situation. A finding that a decision of the courts is inconsistent with the Treaty in no way impugns the legality of the court decision. [ed: many of the arguments of counsel suggested that unless the tribunal could review land court judgments as Crown actions no remedy would exist for claimants. The tribunal believes that it may still provide a remedy by reviewing Crown actions pursuant to court decisions. The tribunal decision is not surprising. In the High Court it was suggested that this would be an appropriate finding, and a contrary approach may have carried an implication that the tribunal itself is an agent of the Crown] Preliminary views on the meaning of "manawhenua" for the Chatham Islands claims Wai 64 & others transcripts, 13 October 1994. Chief Judge Durie At the recent Chatham Islands hearing the Chairperson expressed preliminary views on the meaning off "manawhenua". The term may have 2 meanings; long term ancestral connections with the land, or status and authority held at any particular time. Historically it seems to have attached to persons. The operation of the land court may have distorted the concept so that it applied to the ownership of defined land areas by groups. There may be doubt whether the words "mana whenua" and "tangata whenua" as defined in the Resource Management Act accord with Maori custom. "Tangata whenua" may mean the home people of a marae, those with ancestral association with land, or those who have come into the land through intermarriage, or even "Maori people off NZ". Words must be used carefully so they do not develop a "tyranny" of their own, especially where the Maori thinking behind them is not explored. It is not certain that the land court in fact determined mana whenua and tangata whenua status or had any authority to do so. Moriori and Ngati Mutunga may both have manawhenua inn the Chathams but of a different type, and both may be tangata whenua.

 

Other jurisdictions

Atawhai Taiaroa and others v The Minister of Justice and others

CP 99/94, 4 October 1994, McGechan J

The plaintiffs claimed that the "Maori Option" exercise of February to April 1994, which permitted Maori in that period to choose between the Maori roll and General roll, was unlawful because it was held without adequate notice or Crown resources. Maori had in fact 3 options. To be on the General roll identified as Maori, on the General roll and not identified as Maori, or on the Maori roll. The option was conducted under ss76-79 Electoral Act 1993. Its outcome determined, by a technical calculation, the number of Maori seats. This calculation is particularly sensitive to Maori on the General roll and identified as Maori shifting to the Maori roll. A group off Maori making this shift would have more impact on the number of Maori seats than a similar sized group coming fresh on to the Maori roll (eg using present figures, 50,000 new electors on the Maori roll would result in 6 Maori seats, but 50,000 Maori switching from the General to the Maori roll would result in 7 seats). Conversely, it was not "neutral" for Maori to remain on the general roll identified as Maori. The option came about after representations from pan-Maori organisations in 1993 seeking retention of the Maori seats under the proposed MMP system. This, and the MMP proposal generally, were provided for in the Electoral Act passed in August 1993. In November 1993 a nationwide referendum chose MMP as the preferred electoral system. Maori voted for MMP in a higher proportion (2/3) than the general population. The election result required the Minister off Justice to set a date "as soon as practicable" for the Maori option. From September 1993 publicity about the option had been available. The Minister set the date for the option as February 1994, but did not consider ann extensive publicity campaign, including television advertising, was required. Immediately prior to the option the Waitangi Tribunal reported on a claim seeking further resources to inform Maori, and recommended further funding be made available. Cabinet subsequently rejected a proposal t spend an additional $250,000 on publicity. The result of the option had been an increase from 4 to 5 Maori seats.

Held: the Minister had not acted unlawfully in exercising his discretion as to the timing of the option and its conduct. The discretion arose under the Electoral Act 1993 (the treaty itself could not give rise to rights, nor could international law unless incorporated by statute, nor did the NZ Bill of Rights provide especially for Maori rights). Before setting the option date the Minister had to be satisfied that as far as reasonably achievable under all prevailing circumstances, "target" Maori were sufficiently informed of the option implications to make a meaningful choice. Reasonableness would take account of the importance of the issue, the desirability in principle of fullest information to all, qualified by issues of time, expense, cost benefit and expectations. Among reasons for rejecting the many heads of claim:

- There was no absolute duty to consult with Maori before making the decision. The Minister was only required to be adequately self informed on these issues

- The Minister could take account of the recent close election in setting the date for the option in as far as it suggested a fresh election might soon be held and the MMP system needed to be in place as soon as possible

- There was no requirement to inform Maori not yet enroled. The option was only to those enroled on the Maori roll, or enroled on the General roll and identifying as Maori (the 'target" group)

- While there was a partnership obligation of good faith, it would be stretching fiduciary duty principles to find a fiduciary duty here

- There was no legitimate expectation that an education campaign would be undertaken. No government statement or well established practice was in evidence. There must be more than a "reasonable" expectation

- As to the conduct of the option, the publicity was incomplete (in particular not giving details of the technical calculation of the number of Maori seats) but not significantly misleading overall (but noted that it was not pointed out that the number of Maori seats could be reduced if enough Maori chose the General roll)

- As to the rejection of Waitangi Tribunal advice, such advice was not mandatory, although highly respected. The Crown was entitled to look at financial constraints (as it did) a matter on which the tribunal report was weak. Rejection of the tribunal view might be wrong, but not beyond reason

- The Minister did not have to go beyond a direct mail out of the option applications, since this was the method provided by the legislation.

The final ground pleaded of substantive unfairness caused the most difficulty. The test was whether in all the circumstances, the conduct of the option unfairly deprived Maori of a proper opportunity to make an informed choice. The court considered affidavits providing anecdotal evidence that many Maori might not have had adequate information, as well as the Waitangi Tribunal report predicting further resources would be required. Most significant were final figures for the option which showed that up until the beginning of the option, Maori coming onto the rolls were not aware of the implication of choosing to go on the General as opposed to the Maori roll (despite publicity on MMP up to that point, which the Minister considered made Maori informed and ready for the option exercise). There was a sharp increase during the option period in the Maori roll, but most of this increase came from new Maori enrolments and not any switch of existing enroled Maori. All this suggested a "worrying degree of ignorance within a portion of eligible Maori" not cured by mailouts or written material. The approach of Cooke P in Thames Valley EPB v NZFP Pulp and Paper Ltd (1994) 2 NZLR 641 was followed. Where a procedure is marginally adequate a matter might survive review, but fail where the decision was also marginal. In this case the Minister's decision as to resources narrowly survived. The procedural side had tolerable strength, but the decision, while not irrational, was to some degree wrong in hindsight. There was not therefore substantive unfairness, but the Crown should feel "some concern" at what had occurred.

As to the Treaty, while treaty obligations are not directly enforceable by the court, the creation of the 4 Maori seats was consistent with the Treaty (whatever the political reasons for their creation originally). The Crown is under a Treaty obligation to protect and facilitate Maori representation. It would not for example be consistent with the Treaty to now deny separate Maori representation. In this light the Crown should reflect on the resource decision made, which was based on an important underlying misconception as to the degree of Maori understanding of the implications of the option. Maori were significantly disadvantaged. An "extensive effort" might be considered when the option is next exercised in 1997.

[ed: the court focused on the complexity of the choice Maori had to make under the option and the decision to use what were described as "minimal" resources to explain it. Whether increased resources would have brought more new Maori electors onto the rolls was irrelevant. As the court explained, the option, by law, was aimed only at Maori already on the rolls (Yet the efforts of Maori groups before and during the option, and submissions by counsel, made much of census figures showing a "lost tribe" of up to 50,000 Maori not on any roll). This was a close decision. The appeal (now proceeding) is awaited with interest]

 

KM Grace v WG Grace

CA 211/93, 26 October 1994. Cooke P, Richardson J, Tipping J

A wife, on separating from her husband, sought a half share in his interests in Maori freehold land claiming that,, because of conduct and intentions during the marriage, there was a resulting trust or a constructive trust in herr favour. These trusts existed quite apart from the Matrimonial Property Act 1976 which does not apply too interests in Maori land (s6). The wife sought to have the trust proceedings dealt with in the High Court. Thee husband objected, arguing that the Maori Land Court had exclusive jurisdiction to consider the matter. The Highh Court determined that it could consider the matter. The husband appealed. Held: Although Te Ture Whenua Maori 1993 failed to carry over a provision of the Maori Affairs Act 1953 giving the High Court concurrent jurisdiction and therefore the ability to exercise its inherent jurisdiction in relation to trusts (compare s18/1993 and s30/1953), that concurrent jurisdiction nevertheless remained under the 1993 Act (although it was noted that the 1993 Act spelt out more explicitly those areas where the MLC has exclusive jurisdiction). Noted that the High Court, or MLC if it considered this case, would have to have regard to the policy and provisions of the 1993 Act designed to promote the retention of Maori freehold land in the hands of its owners, their whanau and hapu and restricting spousal interests to life interests in matters of succession. Further noted that, in view of these considerations the wife here sought only the monetary equivalent of Maori freehold interests and not a vesting order for the interests themselves. If a question of tikanga Maori arose it could be referred by way of case stated to the Maori Appellate Court.

[ed: a brief but important judgment. The general courts are to retain a potentially important role in the development of Maori land law. It also suggests that non-owning spouses, on separation, may sue for the monetary equivalent of part of their partner's interests in Maori freehold land]

 

Auckland Casino Ltd v Casino Control Authority & Others

CA 181/94, 20 October 1994. Cooke P, Hardie Boys J, McKay J

An appeal from a High Court decision in July 1994 (see MLR Aug 1994) dismissing an application for review off the decision of the Casino Control Authority to grant the Auckland casino licence to Sky Tower Casino Ltdd rather than a consortium which included the Maori Congress backed company, Aohou Ltd. The appeal raisedd only two grounds from the High Court proceedings, presumptive bias and apparent bias by reason of certainn shareholdings and activities of some authority members. An argument that the authority displayed an anti-Maori bias in certain of its actions was not pursued. Held: there was at most a borderline case of presumptive or apparent bias but there was a waiver by the appellants in failing to raise these matters at an earlier stage and in failing to move quickly after the authority decision was delivered. The Maori aspect of the failed bid, including the desire to enhance the welfare of Maori, was not to be "overlooked", but also noted was the considerable expenditure already undertaken by the successful applicant, and doubts the authority had had about details of the proposal of the Maori backed consortium. [ed: this would appear to bring to an end the Maori Congress interest in the first Auckland casino] Te Runanganui o Ngati Kahungunu Inc v Gemmell and others CP 21/94, 6 October 1994. Grieg J An application for variation of receivership orders, notable for the rejection by the court of an argument that thee current receivers be replaced by a senior officer from Te Puni Kokiri who, it was argued, would bring ann important "Maori dimension" to the receivership exercise.

 

Ngati Kahu and others v Pacific International Investments Ltd & Tauranga District Council

A72/94, 20 September 1994. Bollard J & commissioners Dr AH Hackett, Mr IG McIntyre

The council notified a change to its transitional district plan to allow for future urban development in an areaa previously zoned for rural use and the site of a river important to local Maori and of two hapu communities withh longstanding links with the area. The change reflected an urban growth strategy developed during 1991-91. Thee appellants challenged the basis of the plan change. Held: the council had failed to adequately consult with Maori in terms of the RMA when developing the urban growth strategy. Subsequent consultation was misconceived, being aimed at minimising the impact of a policy already decided. Previous cases concerning consultation under the RMA with Maori which held that there should be no direct consultation by councils over resource consents (Ngatiwai, Hanton et al) could be distinguished as they did not deal with the development of plans. Comments in Wellington Airport Ltd v Air NZ [1993] 1 NZLR 671 re consultation were quoted with approval. Consultation does not necessarily produce consensus, but it must continue for a reasonable time so that all reasonable planning options can be explored. Repeat consultations may be required even after plans have been approved. Councils cannot provide guarantees of unalterability however, but must step back once plans are notified in order to judicially consider submissions on the plan. [ed: a significant case on consultation requirements when developing district and regional plans. The court noted that this council was to some extent "caught out" in the transition between the loose requirements under the Town and Country Planning Act 1977 and the much tighter requirements of the RMA]

 

General Report of the Reserved Lands Panel 1993

Te Puni Kokiri, January 1994 (released October 1994). P Trapski, G Kirby, R Cooper

A report of a panel appointed by the Minister of Maori Affairs to consult on proposals to resolve Maori reserved lands issues contained in A Framework for Negotiation - Toitu Te Whenua 1993. The panel, after hearing submissions, broadly supported the proposals but recommended, among other things: - Greater emphasis on the proposal that owners and tenants reach their own solutions, with the Crown playing a role of facilitation by providing financial and legislative assistance, professional advice, and possibly purchasing properties as required - Leases should terminate after 2 further 21 year renewal periods (the Framework document recommended 3 renewal periods) - Rents to be reviewed at market levels in 3 years, then every 3 years following (the Framework proposed 14 years). This rent to be assessed using benchmark values provided by Valuation NZ that bear some relation to the "land value" approach, and not just "unimproved value" wIn the remaining term of leases, owners to be given the first right of purchase at a market value - Owners be empowered to sell their interests at market value - The Maori Trustee to be gradually phased out of the administration of reserved lands. The proposal of the Framework document that tenants not be compensated for changed arrangements, but merely assisted in case of hardship, was supported. Compensation should not be payable to those who had received the benefit of an unjust contract, whose injustice was known in general terms before and certainly after the 1975 review of reserved lands. [ed: the panel recommended giving power to owners to sell their interests on the basis that to deny this would be contrary to the Treaty and, as economic benefits from the land grow, the likelihood of sales "for survival purposes" will be minimised. Te Ture Whenua Maori 1993 is more stringent, requiring consent from 75% of shareholders before incorporation lands can be sold, which is difficult to obtain (the panel noted this point twice)]

 

Mana Tangata. Draft Declaration on the Rights of Indigenous Peoples 1993.

Background and discussion on key issues Te Puni Kokiri 1994

Seeks further views on the draft declaration, because of changes to it since 1990. Major issues are outlined, inn particular the meaning of "self-determination" (which the NZ government takes to mean "self-management" andd not secession), and the definition of "indigenous people". Includes also the text of the "Mataatua Declaration" onn cultural and intellectual property rights. Submissions are due by 31 October 1994. Native Title Re-established. Paper to International Bar Association 25 Biennial Conference, Melbourne Office of the Chief Judge, 13 October 1994. E T Durie Deals with the nature, extent and limitations of native title. The Native Land Court simplified Maori land tenuree and ignored a complex web of overlapping use rights. Three levels of rights existed, use rights by individuals,, political rights of the tribe, and associational rights. The actions of the land court "confiscated" political andd associational rights, and, in some cases, individual rights (eg where names were left off ownership lists). Alienationn and extinguishment of native title are also considered. In "strict terms" the Treaty seems to forbid compulsoryy acquisition, and place a restriction on the sovereignty ceded by it, which is not "readily diminished" by the balancee of convenience (the Te Maunga report, which came to a contrary opinion, is mentioned as one which "otherr divisions of the Tribunal may not be inclined to follow"). Expresses surprise that the Australian Native Title Act 1993 places the onus on Aborigines to establish their right to land while the Crown may rely on legall presumptions and fictions, but hopes that the Act will provide a new form of title built on a customary base andd facilitate pragmatic arrangements for future management.


September 1994 Contents

New Zealand

A bill sponsored by the Hon Graeme Lee, and currently before a select committee (the Flags, Anthems, Emblems, and Names Protection Amendment Bill), seeks to ensure that the NZ flag, and the anthems "God Save the Queen" and "God Defend NZ" (declared in the bill to be "National Anthems of NZ") shall remain the national symbols, unless 65% of the members of the House or a majority in a national referendum agree otherwise (Her Majesty retains power to alter her own anthem however).

This proposal is in stark contrast to the current discussion about changing the name of New Zealand to Aotearoa. Some commentators have suggested that "Aotearoa" is not useful because it is a recent invention. This may be a little academic however since the place of Aotearoa in common usage seems assured. Many government departments and private agencies happily use it in their titles. It appears in all new passports. The Maori Language Commission has sanctioned its use. Thousands of documents produced every day contain it. Maori elders have been suggesting a name change for some time (most recently at Waitangi this year - Mana News 13 September 1994).

Perhaps the NZ Geographic Board Act 1946 could be useful here. One of the functions of the board is to "collect original Maori place names for recording on official maps" (s8(1)(f)). The current proposal would surely get support from the 2 persons appointed to the board as "representatives of the Maori race" (s3(2)). Unfortunately, the Board may only consider altering names to any place in NZ (the title to the Act gives it away). A pity, when another function of the Board seems particularly suited to this debate, namely s8(1)(e): "To determine what alien names appearing on official maps should be replaced by Maori or British names".

 

Maori Land Court and Appellate Court

In Re Nuhaka 2E3C8A2B

92 Wairoa MB 214, 22 August 1994, Isaac J

This case concerned the new provisions of the 1993 Act requiring that alienating owners give the first right of refusal to persons belonging to preferred classes of alienees. An application for confirmation of an alienation of Maori freehold land was opposed by trustees of an adjoining block of Maori land who claimed to be members of the preferred class of alienees who had not been given first right of refusal. The alienating owners questioned whether these persons did indeed belong to the preferred class.

Held: that the trustees and the beneficiaries they represented were of the preferred class, being whanaunga of the alienating owners associated with the land in accordance with tikanga Maori, and trustees of such whanaunga (s4(b) & (d)/1993). The reasons being:

- The court may only rely on the evidence before it, but must also consider the preamble to the 1993 Act, principles for interpreting the Act generally in s2 and general objectives in s17 which favour retention of land in Maori hands as far as possible.
- The adjoining trustees and the beneficiaries they represented could whakapapa back to an ancestor who was common to the owners in the block which was being sold.
- It did not matter that the common ancestor was some generations removed. "According to Tikanga Maori, right to land is validated by Whakapapa. The earlier the ancestor the stronger the right to that land. Land was claimed by Whakapapa because in accordance with Tikanga Maori all things were derived from the ancestors and were passed on to future generations. If a person can Whakapapa to an original owner or occupier of the land that person has a right to the land. The Whakapapa presented to the Court does not lose strength because it traces back for generations. In terms of Tikanga Maori it gains strength."
- The physical association with the land was a tenuous one (taking horses to it, walking across it to go to school, picking mushrooms), but tikanga Maori looks beyond a simple physical association to consider also historical and spiritual links. These links remain despite partitioning which has split up the original block. Although the trustees and their beneficiaries may not have used the land for many generations, their "inchoate rights" remained by reference to past association and whakapapa.

[ed: an important decision, perhaps the first of many, which sets out the principles on which the court will operate in this difficult area. Most importantly, the court has decided that the individualisation of title to land in the last 100 years is to some extent in Maori terms an artificial process, and physical links with a particular small block will not be the key criteria for membership of the preferred class. There may be implications in this approach for matters before the Waitangi Tribunal, and Te Ohu Kai Moana, where historic links with resources are under debate]

 

 

Waiohau B Section II and Oputea B2 Blocks

Tauranga MB 8 September 1994

This decision concerned the extent to which the land court may make orders when no party before it has applied for the orders made. In the course of disposing of 2 applications affecting a s438 trust, the court, of its own volition, made an order under s438(3)(a)/1953 replacing two existing s438 trustees with the Maori trustee. The jurisdiction to do this was s27(2)/1953 which provided that in the course of proceedings on any application the court may exercise any other part of its jurisdiction as it deems necessary. Section 27(2)/1953 has now been replaced by s37(3)/1993.

The order was appealed. The Appellate Court noted that the order had been made without giving notice, and, with the agreement of the parties, referred the matter back to the lower court for a rehearing.

In the course of rehearing, one of the parties requested the court, using its jurisdiction under s37(3)/1993, to appoint additional trustees.

Held: the request should be declined. Section 37(3) provides that further orders may be made only in the course of proceedings on an application. The rehearing had not arisen from an application, but from an exercise of the predecessor of s37(3) in the hearing of an earlier application that was now disposed of. The rehearing was therefore limited to the matter referred by the Appellate Court, removal of existing trustees and appointment of the Maori Trustee.

It was also noted that s438(3)(a)/1953 does not give jurisdiction to the court to remove a trustee who disputes that removal (Alexander v Maori Appellate Court & Ors [1979] 2 NZLR 44 followed).

 

 

Re Ngamanawa Incorporation

53 Tauranga MB 293, 24 August 1994, Carter J

A brief judgment which suggests that because the Maori Incorporations Constitution Regulations 1994 take effect from 1 June 1994, applications for appointment to committees of management filed prior to this date should follow the old procedure under s52(4)/1967. That procedure requires the forwarding of nominations to the court for it to make the appointment (the 1993 Act and new regulations do not require application to the court. See s269(5) & s284(2)(l)/1993 and cl 22-23/1994)

 

 

The Maori Occupation Orders Regulations 1994

1994/201, 12 September 1994

These set out the information to be contained (including a sketch map) in applications and the notice of applications required for the making of occupation orders under Part XV of the 1993 Act. The regulations come into force on 13 October 1994 (Part III of the Maori Land Court Rules 1994 also applies to occupation orders).

 

 

Maori Appellate Court Appeals 1990-1993

Maori Land Court September 1994

This compilation of judgments in typescript form contains 60 separate judgments and 433 pages and is available from the office of the Deputy Chief Judge of the Maori Land Court, Wellington.

 

Waitangi Tribunal

New tribunal member

Waitangi Tribunal press release 21 September 1994

The Hon Dr Michael Bassett has been appointed to the tribunal. He is a historian with several published works and a former Labour member of Parliament. The appointment gives the tribunal its full compliment of 16 members.

 

 

Te Maunga Railways Land Report

Wai 315. August 1994. Judge HK Hingston, P Ringwood, E Stokes, M Temara

This is a report of an urgent hearing concerning the offer back to the original Maori owners of 6070 square metres of Maori freehold land known as Te Maunga railway land. The land was taken in 1955 for railway purposes under the Public Works Act 1928 and used for housing for railway employees.

Nga Potiki hapu of Ngai Te Rangi owned lands at Mt Maunganui which were confiscated under the NZ Settlements Act 1863 and their customary title extinguished. Several blocks were returned as Maori freehold land. The Te Maunga land was part of one of these blocks, the Papamoa block. From 1913-61 various takings occurred in the Papamoa No 2 block for railway related purposes including the taking of the Te Maunga land in 1955.

Negotiations for the taking were undertaken with only 3 shareholders (holding 56%) out of 22 shareholders in the land. Compensation was assessed by the Maori Land Court and paid in the normal manner. The evidence suggests the owners would have perceived the taking was compulsory and a matter out of their control (there had been other takings in the area at the time), ie they were not willing sellers. Crown policy in such situations was for taking the freehold title. Accordingly, options such as leasing, which would have preserved the parent title in Maori hands, were not considered.

In 1985 Railways sought to dispose of the land. Section 40(1) Public Works Act 1981 and s23 NZ Railways Corporation Restructuring Act 1990 required the land be offered back to the original owners unless it was impractical, unreasonable or unfair to do so or there had been a significant change in the character of the land. After failing to get consent to create a subdivision, Railways entered negotiations with a Maori incorporation owning adjoining land, but did not, as the law required, seek to identify the former owners or make a formal offer back to them.

In 1991 Railways entered a sale and purchase agreement with a local businessman conditional on "offer back" procedures being satisfied. The businessman began construction of a concrete plant on the land. Another local businessman began negotiations for a lease over part of the land. Railways eventually made an application under s436 Maori Affairs Act 1953 to the Maori Land Court for it to determine in whom the land should now be vested. The court in 1993 made an order vesting the land in the original owners but conditional on payment of the market value of $70,000 within 4 months (the court commented in a preliminary determination that, because of the Treaty, Maori owners ought to be given preferential treatment in offer back situations, possibly by deferred payment over a reasonable period of the market price). The former owners objected to the condition and sought an urgent hearing before the Waitangi Tribunal.

The tribunal considered briefly the history of public works legislation in NZ, noting there has been no specific reference to Crown obligations under the Treaty in this legislation. It was also noted with regard to valuation that, for Maori, land has distinctive values.

There was no suggestion made that Maori land should not be used for the public benefit where required. But problems arise where the freehold is taken when something less would suffice. The land was also taken from unwilling sellers. It is inherent in the fiduciary obligation of the Crown under the Treaty that when it uses its discretion to offer back land, it should use it positively, and the full market price should not be required if this would prevent Maori having their ancestral land returned. Comments in the Court of Appeal in NZ Maori Council v A-G [1987] 1 NZLR 664 re fiduciary duty were considered and also comments re compulsory acquisition in Waitangi Tribunal Orakei, Mangonui Sewage, Ngati Rangiteaorere and Mohaka River reports.

Compulsory acquisition of Maori land raises the issue of whether kawanatanga (Article 1) overrides the guarantee of tino rangatiratanga (Article 2). In exercising its discretions to take land and to return it when no longer required, the Crown should be guided by its fiduciary obligations as a Treaty partner. These obligations override normal national and commercial considerations. The obligation in respect of return may be greater than previously because so little land remains in Maori ownership. The Privy Council in NZ Maori Council v A-G Appeal 14/1993 spoke of "especially vigorous action" being required for the protection of vulnerable taonga. Consequently, where a taking is necessary (kawanatanga permits the Crown to seek the use of the land for the public benefit), a more consultative approach to negotiation is required which acknowledges Maori rangatiratanga, and does not extinguish Maori title.

In this case the taking of the land did not involve willing sellers. A Crown submission that the taking by proclamation was a matter of convenience was rejected. Offer back provisions place the onus on the Crown to find the former owners. Railways confused the issue by failing to do this and by agreeing to a sale to a third party. Nga Potiki have had other lands in the area taken for public works. This taking, although small, should be considered in that context. The Crown has exercised its discretion to have other compulsorily acquired land in the area returned at a lower than market price. Offerback procedures need to be streamlined. Costs were high in this case because of inept handling by Railways officials. This was an appropriate situation for the Crown to exercise a discretion and return the land at no cost, without prejudice to other public works takings.

The tribunal recommended:
- That the Crown revest the land, at no cost, in the former owners - That a moratorium be imposed on all dealings with lands compulsorily acquired from Maori and no longer required, until legislation is in place to return these to Maori
- When land is no longer required the Crown should be given discretion to negotiate in each case the return at no cost, or less than market value - Where negotiations fail, the Maori Land Court should decide what compensation should be paid on the basis of a fair return to Maori for the use of the land by the Crown. Where Maori might owe compensation, this would be a charge on the land.

[ed: although concerning a small area, the report has major implications. In effect, it suggests all public works takings of Maori land be treated as if they were leases when an offer back is required. Hundreds of sites may be affected. The tribunal recorded, but presumably did not agree with, suggestions in the Mangonui Sewage and Orakei reports that the Treaty may forbid compulsory acquisition in any situation. In another report released this month (Environmental Information and the Adequacy of Treaty Settlement Procedures - reviewed below) the comment is made that the Crown has not decided whether the Takapourewa (Stephen's Island) claim, involving a public works taking, is valid, and this is stalling negotiations. This report may give some idea of how the tribunal might view the Takapourewa claim if it is called to report on it. A political factor: the report mentions that the Hon Peter Tapsell has actively intervened on several occasions for the Nga Potiki people in efforts to secure the return of this and other compulsorily acquired lands]

 

Other jurisdictions

The Maori Trustee v Rogross Farms Ltd and Another

CA 175/91. 7 September 1994. Cooke, Casey, Tipping

The Maori Trustee sued a lessee, Rogross, for breach of covenant in returning land at the end of a lease in poor condition. The lower court held that there had been a breach, but that, because the court did not consider that the trustee had suffered any actual loss (the land had been leased again without difficulty), awarded only nominal damages ($10). The rule in the English case of Joyner v Weeks [1891] 2 QB 31 CA was held not to apply in NZ. This would have required the lessee to pay the sum (in this case $19,570) needed to leave the land in the condition anticipated by the covenants.

Held: that the rule of Joyner v Weeks applies in NZ as a prima facie measure of loss unless the lessee can show by "sufficiently cogent evidence" that in both the short and long term the lessor will definitely suffer no loss or a loss that can definitely be assessed at less than the prima facie measure. The evidence in this case did not suggest the prima facie measure should not apply. Accordingly the trustee was entitled to $19,570 damages. Other cases dealing with breach of covenant and assessment of damages which used a different approach (Maori Trustee v Bjerring (1960) 1 NZCPR 565 Maori Trustee v Bolton [1971] 1 NZLR 226 and Maori Trustee v Clark [1984] 1 NZLR 578) were distinguishable either because the lessee was entitled to compensation for improvements (Bolton and Clark) or the covenants were impossible to perform (Bjerring).

[ed: the Court of Appeal noted that this case concerned an issue of considerable importance to those who own and lease farmland. Maori are particularly affected, as the names of the previous cases suggest]

 

General

Environmental Information and the Adequacy of Treaty Settlement Procedures

Office of the Parliamentary Commissioner for the Environment. September 1994

This report was prepared in response to concerns expressed to the commissioner and through the media that negotiations to settle Treaty claims are failing to address environmental issues. The report examines how far procedures for settling claims ensure that adequate information on environmental matters is available to those involved. The concern of the commissioner is the protection of environmental values, not whether the Crown or Maori can best ensure that the quality of the environment will be maintained.

Procedures for settling Treaty claims are evolving and those involved may not have full information about the environmental implications (in the broadest sense) of settlement options. The report looks at the settlement process in relation to Crown owned lands under the Conservation Act 1987, Reserves Act 1977, Wildlife Act 1953 and Land Act 1948. Useful tables are included showing consultation requirements under these Acts.

The major options of settlements in relation to the environment are; a change in the managers, change of ownership, change of use, or compensation. The report looks at 3 case studies: Takapourewa (Stephen's Island), Tutae Patu lagoon and pastoral lands (Routeburn, Greenstone, Elfin Bay) purchased for settlement of the Ngai Tahu claim.

There is confusion about different parts of the process - particularly the difference between negotiation and consultation and that the public provide information but are not negotiating with Maori. There is also confusion about the different functions of government departments and ministers, and conflicts for ministers between advocacy for their departments and their role as negotiators.

Adequate environmental information (including information about possible social implications) at an early stage would assist negotiations and settlements, for example by allowing for the identification of other affected Maori groups, and the future effect of conditions which might be placed on settlements. The public at large have no general entitlement to be consulted except where provided in statutes, although the potential exists for an argument for involvement because of a "legitimate expectation". It would have to be shown that there was an express or implied undertaking to consult either through Crown statements or because of the status of the group or the existence of a tradition of consultation.

In 2 of the case examples public consultation had come, by accident rather than design, through government requests for input from conservation boards, who had in turn sought public submissions.

In British Columbia an independent Treaty Commission has been established which structures negotiations through distinct stages and ensures at each stage that parties are properly prepared, and have adequate information, including on the government side, through consultation with third parties. The BC government has established a Treaty Negotiation Advisory Committee to advise it including business and environmental groups. Such a commission would be useful in NZ to clarify the roles of parties, and would increase Maori and public confidence in the process (A background report by Caren Wickliffe on settlements in Australia, United States and Canada is in production).

Presently, necessary environmental information is incidental to the process. This is a serious omission. Consultation required by statutes comes too late - after options have been considered. The use of Environmental Enhancement and Protection Procedures is advocated as part of a systematic attempt to assess environmental implications at the inception of a settlement proposal when real choices can still be made, including the choice to do nothing. The Treaty of Waitangi Policy Unit is the appropriate body to ensure this is done, being responsible for the exercise of a discretion with environmental consequences.

[ed: The report is concerned about outcomes for the environment. Issues of Crown versus Maori ownership are secondary to this. As it states, the fundamental problem with information is to enable the confidential processes of negotiation and mediation to take place alongside the public and consultative process of planning without prejudice to one another.

Appendix I is a legal opinion on Crown obligations too consult in negotiations with Maori. It includes useful discussion of what consultation requires, and when there may be a legal obligation on government to consult not only with environmental groups, but also other Maori groups affected by a claim. The suggestion is made that should the "fiscal envelope" policy be adopted the ability for Maori groups not immediately involved in a settlement to question it may be legally extended, since any settlement will have an direct impact on the size of settlements for other groups.

The report also comments that since the Wildlife Act gives absolute protection to wildlife it may override the Treaty (see editorial, MLR Aug 1994)]

 

 

Treaty of Waitangi Policy Unit

Press statement 6 September 1994

Cabinet has approved restructuring of the Treaty of Waitangi Policy Unit (TOWPU) into an Office of Treaty Settlements (OTS). The director of OTS will be accountable directly to the Minister in Charge of Treaty Negotiations regarding Treaty policy, negotiations and implementation. OTS will be funded under a separate vote. The Department of Justice will provide support services, with the Secretary of Justice being responsible to the Minister of Justice for the financial management, performance and reporting of the unit. The restructuring will not affect present relationships with Maori groups.

[ed: No date for the change is given, but the process of appointing a director will begin "shortly". The restructuring suggests the OTS will be more independent than TOWPU, which is fully within the Justice Department. However, for the moment the Minister in Charge of Negotiations remains the Justice Minister, the Hon D Graham]

 

 

Indigenous Land Corporation and Land Fund Bill 1994

Aboriginal Law Bulletin August 1994

The federal House of Representatives is presently considering the Aboriginal and Torres Strait Islander Commission Amendment (Indigenous Land Corporation and Land Fund) Bill 1994. The bill establishes a corporation with power to buy land for aboriginal groups. Most groups are not able to bring claims based on common law aboriginal title under the Native Title Act 1993, because the Australian High Court has interpreted that doctrine to require that groups must demonstrate a continuous association to have a valid claim. Many aboriginal groups were dispossessed at an early date.

The bill provides that around $100 million will be credited each year to a land fund for the next ten years. For the first 3 years of its existence, the land corporation will have available around $20 million to begin purchasing. After this period it will rely on investments made by the land fund. The corporation is expected to begin work on 1 January 1995.

Meanwhile, the High Court is hearing 2 actions from Western Australian aboriginal groups challenging the validity of that state's native title legislation (which is less generous than the federal legislation), and one action from the Western Australian government challenging the validity of the federal Native Title Act 1993.

 

 

Community Safety: Mental Health and Criminal Justice Issues

Law Commission report no 30 August 1994

This report considered, in the light of recent serious offending by 2 former psychiatric patients, whether the Criminal Justice Act 1985 or any other enactment should be amended to confer extra powers of detention. The commission concluded that community safety did not require powers of detention beyond those already in mental health legislation. This conclusion was reached after weighing the community right to be protected against the right not to be arbitrarily detained. One reason for urging "caution" about any change was the concern that broader detention powers may have a greater effect on some sectors of the community, particularly Maori. A submission from Te Puni Kokiri was noted, that more than half of those placed in psychiatric hospitals by the courts under the Criminal Justice Act 1985 are Maori.

 

 

Assisted Human Reproduction. Navigating Our Future. Report of the Ministerial Committee on Assisted Reproductive Technologies

July 1994. Bill Atkin, Dr Paparangi Reid

The report deals with all major issues surrounding assisted reproductive technologies (ART). After considering approaches in other countries, the committee adopted as a basic principle the view that all human tissue has mana. Sale of it would therefore be disrespectful. Human tissue is also tapu and sacred. This includes the products of ART such as embryos and gametes. They should be treated with dignity when considering issues surrounding their storage and ownership. One practical implication of this approach is the suggestion that where a Maori gamete provider dies, respect for cultural practices might require the burial of that tissue with the deceased.

Another principle adopted by the committee was consideration of the partnership in the Treaty of Waitangi in the development of ART. It was noted that, for Maori, knowledge of whakapapa is vital and secrecy about genetic origins is antithetical to Maori values and may conflict with Treaty principles.

[ed: a document which puts a distinctive NZ stamp on the ART debate]


August 1994 Contents

Customary Use and Conservation

A debate is currently taking place between the Department of Conservation and Non Government Organisations (NGOs) about wildlife, the meaning of "conservation" and Treaty of Waitangi obligations.The Conservation Act, which came into force in April 1987, was designed to promote the conservation of NZ's natural and historic resources. "Conservation", in the Act, is defined as "the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations." Section 4 requires the department to give effect to the principles of the Treaty of Waitangi. One interpretation is that this requires the Crown to allow iwi continued rights of access to their taonga, including continued customary usage.

Some NGOs are concerned about section 4, believing that it should not allow continued taking of endangered species, particularly birds like the kereru (wood pigeon), toroa (albatross) and titi (mutton bird). They point out that the Conservation Act does not mention sustainable use. It is said that the words "preservation and protection" do not envisage the killing of wildlife. However, the Wildlife Act 1953, also administered by the department, already allows for some native species to be hunted or killed. Protected species may be taken for authorised purposes, including traditional and cultural uses. The harvesting of some bird species on off-shore islands is permitted, for example, by descendants of the tangata whenua of the islands.

This duality is in line with the current international approach. In June 1992 over 150 countries, including NZ, signed the Biological Diversity Convention which was developed under the Auspices of the United Nations Environment Programme (UNEP). Its objectives are the conservation of biological diversity (which includes species and their habitats, and ecosystems) and the sustainable use of these component parts. Particularly relevant to the customary use debate is article 10(c) which requires countries party to the convention to "protect and encourage customary uses of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements." NZ ratified this convention in September 1993.

Internationally, therefore, customary uses - rather than being seen as a threat to a preservationist ideal - are, within an overall scheme of conservation, positively encouraged.

 

Maori Land Court and Appellate Court

Waihi Kahakaharoa 1Z2B2B block

14 Aotea ACMB 38, 1 August 1994. Hingston J, Carter J, Isaac JAn appeal against a decision dismissing a partition application, in part because the court found the land had spiritual and cultural significance to the hapu, being untouched since its original partition.

Held: the appeal should be disallowed. Partitions are to be refused if the court is of the opinion that they are "inexpedient" in the interest of the public, owners or other persons interested in the land (s174/1953). In approaching s174:

- the court should go beyond the strict wording and take an overview of the partition sought;
- partition is not an automatic right for a shareholder, but a discretion of the court;
- the court may adopt an inquisitorial approach taking account of all relevant factors;
- s174 is to be read disjunctively. Inexpediency for one of the 3 groups mentioned is enough to refuse an order;
- inexpediency for one group ipso facto must be inexpedient in the overall interest of all owners.
(See In Re Manawatu-Kukutauaki (1981) 13 Whanganui ACMB 76, In Re Motukawa (1981) 13 Whanganui ACMB 20, Part Kaikoura No 4 1993 Waiariki ACMB 10).

The Appellate Court will intervene only where the lower court has decided upon a wrong principle or taken into account an irrelevant consideration, given the wrong weight to relevant considerations, or if there would be injustice if the Appellate Court did not intervene (Re Tarawera C6 (1982) 9 Takitimu ACMB 286, Re Kairakau 2C5B, Kapiti Farm 10 Takitimu ACMB 64, Part Kaikoura No 4 1992 1 Waiariki Appellate MB 10). None of these grounds had been made out on the appeal.

On an application to introduce further evidence in the appeal, In re Whareongaonga 5 and Skuse [1973] 30 Gisborne ACMB 158 (Tai Whati p167) establishes that evidence can be introduced which 1) could not have been obtained with reasonable diligence at the trial, 2) would have an important influence on the case, 3) was not controversial as to the belief which might be placed in it.

[ed: Te Ture Whenua Maori s288/1993 sets out specific criteria to be considered by the court before approving partitions, including the opinion of the owners as a whole, the effect of the proposal on the interests of the owners, the best overall use and development of the land. Sufficient notice must be given and there must be a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. The court must also be satisfied that the partition is necessary to facilitate the effective operation, development, and utilisation of the land. The Explanatory Note on the Bill as introduced in 1987 (this clause was not significantly amended) stated that the new provisions follow the approach of the Motukawa case]

 

 

Tuaropaki E block

66 Taupo MB 156, 13 July 1994, Hingston JUnder the Geothermal Energy Act 1953 the Crown had in the 1980s entered onto this block and, without granting compensation (none being required by the Act), drilled 5 bores for the investigation of geothermal energy. Application was now made under s18(1)(a)/1993 for a determination of ownership of the bores and associated well-head structures.

Held: the court had jurisdiction to determine the issue under s18 (a re-enactment of s30(1)(a)/1953). Since 1982 an amendment to s30(1)(a)/1953 provided that the court should determine disputes in respect of Maori freehold land irrespective of ethnic origin of the parties. The Geothermal Energy Act and associated regulations had not created a statutory profit a prendre as contended, but instead envisaged that any investigation of geothermal potential would be followed by a decision whether to take the land. No decision had been made to take or vacate after the exploratory work, accordingly the Crown's continued involvement with the wells might be ultra vires or at least a trespass. Section 354(1) RMA (Crown's existing rights to continue) merely preserved rights and did not create them. Common law rules regarding fixtures to land had not been overridden by statute. The bores and well-head structures were fixtures and therefore part of the land and owned by Tuaropaki E block.

The court expressed disquiet at being told not to proceed with this matter as legislation was intended to confirm Crown ownership.

[ed: The Finance (No 2 Bill) Part VI Geothermal Wells Vesting and Empowering is intended to confirm Crown ownership of these wells without compensation to landowners. Submissions have closed on the bill and the Government Administration Select Committee is preparing its report. Several commentators have questioned the constitutional appropriateness of the bill (The Independent 29 July, 19 August 1994). Approximately 120 wells are affected in the geothermal fields at Whakatane, Te Kopia, Waiotapu, Tauhara, Ruahine, Reporoa, Rotokawa, Ngawha, Orakeikorako, Ngatamariki, Mokai, Mangakino, Atiamuri, Horohoro, and Kawerau (2nd Schedule)]

 

Waitangi Tribunal

Sir Graham Latimer and Others re Broadcasting

Wai 176, 22 July 1994The report noted that this claim concerned Crown proposals re broadcasting said to be contrary to the Treaty. Many of the issues had been covered in the tribunal Te Reo Maori (Wai 26) and Radio Frequencies (Wai 150) reports. The issues had also been litigated in the High Court, Court of Appeal and Privy Council. Accordingly unless the claimants indicate otherwise, the tribunal will not make further inquiry into the claim.

 

 

Waitangi Tribunal and Maori Land Court Budgets 1994-5

Replies Supplement 2 August 1994The tribunal budget is $3,408,000 comprised of research ($1,402,000), administration ($743,000), hearing costs and members fees ($962,000), specialist advisory and information services ($301,000). This is an increase of $862,000 over the previous financial year. The Maori Land Court budget is $6,630,00 including $200,000 to cater for s30/1993 hearings (power to determine appropriate representatives of a group for any proceedings or negotiations).

 

Other Jurisdictions

Auckland Casino Ltd v Casino Control Authority & Ors

M81/94, 13 July 1994, Robertson JAn application for judicial review of the decision of the Casino Control Authority to grant a licence to a company (STCL) in preference to other applicants, including Auckland Casino Ltd (ACL), a company half-owned by Aohou Ltd in trust for the Maori Congress and its iwi members, and half-owned by a Hong Kong based subsidiary of a multi-national conglomerate. Held: dismissing the application, that most of the allegations concerned apparent (not actual) bias, and none of these had been made out. Of particular interest: ACL had waived the right to object because they failed to object during the hearing when they had knowledge of matters now put forward as evidence of bias. The argument of ACL that they could not have objected at the hearing without undertaking consultation as required by tikanga Maori was not supported by "one skerrick of material". However the court agreed that because the Treaty partnership is part of the "philosophical and cultural core" of NZ, courts should endeavour to interpret activity so that recognition is given to the Treaty, and might reach a different conclusion in cases where, because of tikanga Maori, a response was not forthcoming from Maori which might otherwise have been expected.

In response to various allegations that apparent bias existed because the authority inappropriately dealt with Maori witnesses and issues, it was found: - the lack of a Maori person on the authority was a statutory matter and not one for court review;
- the Maori Language Act 1987 applied to the proceedings. Section 2 providing that bodies with the powers of a Commission of Inquiry are subject to the Act, and this was a matter "of particular interest to the Maori people" because of Maori involvement in the ACL bid.
- there was however no evidence that any witness "triggered" the Act by seeking to present evidence in Maori requiring translation;
- failure to meet the requirements of the Act might be an error in law rather than evidence of bias;
- the authority had sought to accommodate ACL in the presentation of their case, and any breach of protocol was innocent.

[ed: while many of the grounds in this application do seem to have been, as the court put it, "post hoc rationalisations" by the disappointed applicant, the finding that "there was no occasion on which there was evidence presented in Maori which required translation" followed by the admission that Maori was used "in areas of formal Maori protocol" suggest that the authority may have missed entirely the significance of any Maori greetings. Surely any authority making a determination with significant legal consequences should ensure that it has the means to understand all that is said before it?]

 

 

Panekiri Tribal Trust v Wairoa District Council & Bay Kayaks Ltd

W62/94, 25 July 1994, Kenderdine JThe trust sought to appeal out of time against a consent given to operate a kayaking business on Lake Waikaremoana.

Held: the appellants had failed to comply with any of the requirements of notice of an appeal under s121/1991. As to allegations re lack of consultation, the council had been "exemplary" in its approach. Members of the trust had been at consultation meetings, making this aspect of the proposed appeal almost vexatious. Procedures for issuing notices might seem complicated, but are in the same legislation from which Treaty references were quoted by the trust.

 

 

Whakarewarewa Village Charitable Trust v Rotorua District Council

W61/94, 25 July 1994, Kenderdine J & commissioners J Rowan, F EasdaleAn appeal against the Rotorua District Council for refusing land use consents to the Whakarewarewa Village Charitable Trust for the marketing of tourist items from 9 of 89 lots in the Whakarewarewa village. One million tourists visit the area each year. Houses had been erected on the lots in 1988-89 as part of a scheme to have people seen making crafts in their residences. To provide funding, leases over the lots were mortgaged to the Housing Corporation. The scheme was now in financial strife. It was proposed to sell items directly from the houses. This was said to be the continuation of a commercial tradition from the early days of tourism.

Other families in the village objected that it had not been envisaged that sales would occur from the houses or that monies from retail sales would not be shared. The council considered the proposal under a special residential zone of its existing and proposed plans, allowing for the creation of crafts in houses where this was incidental to residential use, but not sale from houses. Officers of the council fully consulted with the villagers before the application was heard and rejected.

Held: allowing the appeal and the sale of crafts, but with conditions, the tribunal reviewed briefly the traditional history of the geothermal area, the advent of tourism, including the acquisition by the Crown of much of the valley in 1896.

Kaitiakitanga properly required control of the village to be vested in an iwi authority. Since this had not occurred, others (the council) had to assume that role to balance the demands of different groups. Until an iwi authority was formed village development would be subject to an examination of the commercial minutiae of proposals. Noted that kaitiakitanga is broader than a focus purely on economic viability needed to sustain a development. In the long term a formal plan would be needed for managing and preserving the resources of the village.

The Treaty envisaged a share for Maori in the commercial development of the country and a right to develop their own resources. Article II includes the right to use, manage and dispose of property and make profit by common agreement, but not the right to be protected from any commercially perceived risk. Planning law has merely to ensure that commercialism is managed at a sustainable rate, avoiding, remedying or mitigating adverse effects.

Each proposal was considered in detail, the tribunal noting that it could not consider commercial viability, including competition from other like businesses. Nor could it consider the objection that returns would go to individuals rather than the village as a whole. It sought only to mitigate the "adverse commercial effect" on the social fabric of the village which might arise if the craft outlets became merely a series of souvenir shops with little or no input from indigenous craft-makers of the village or elsewhere. Accordingly, retailing was to be limited to traditional craft (with 2 minor exceptions).

Regarding consultation, councils (not applicants) are required to undertake consultation with Maori prior to hearing applications for resource consents, but only through council officers, so that the hearing of consents by council in its quasi-judicial capacity is not compromised. Quarantine Wastes (NZ) Ltd CP 306/93 followed. The Gill decision [1993] 2 NZRMA 604 did not intend to suggest otherwise when it said that the "council" needed to consult prior to hearing a resource consent. This might not necessarily apply to consultation by councils in relation to duties under s32 (duty to consider alternatives etc before adopting objectives, policies, rules etc) prior to notifying a plan change or new plan. As to whether greater weight should be given to existing plans as opposed to proposed plans under the RMA, in cases such as this a "pragmatic approach" should be adopted in view of the significant Maori concepts such as kaitiakitanga and the promotion of Treaty principles in the RMA (JJ Hanton and others v Auckland City Council A10/94, 1, 33-34 followed).

Regarding the ability of a local authority to transfer functions (including the hearing and granting of resource consents) to an iwi authority (s33/1991): here the council, having made a decision on the resource consent application, had no residual ability to refer the matter to an iwi authority. Section 290(1) (Planning Tribunal on appeal to have the same powers and discretions as the original decider), might allow referral of a matter to an iwi authority under s33. But earlier decisions have shown that the tribunal will only grant the relief expressly sought or contemplated by appellants, and the appellants here did not contemplate in their appeal the implementation of an iwi management plan. The tribunal might not decide of its own accord to initiate an iwi development plan, as this did not generally fall within its function as an appellate authority. A fresh application would be required.

The tribunal noted with concern, but could not itself consider, the possibility that, as financial arrangements now stood, leases of the lots might be forfeited to occupiers with no traditional ties with the village. This would "seriously erode" the cultural character of the village.

[ed: this decision shows that if provisions under the RMA for iwi management plans are not taken advantage of, iwi can find planning authorities and the tribunal controlling the minutiae of their lives. One decision of the tribunal in this case was that a particular lot could sell walking sticks of wood, but not plastic! Not surprisingly, the tribunal thought this a prime case for iwi to plan and manage their own affairs within the district plan. In the meantime, they face the ignominy of the local authority performing the role of kaitiaki for their village. The comments clarifying consultation requirements will be welcomed by councils]

 

 

Tauranga District Council v Toa Haere Faulkner & Another

Plt No 1110/93, 15 August 1994, IB Thomas JA claim for payment of rates in respect of Maori freehold property. The defendant replied that the land remained customary land under Te Ture Whenua Maori 1993 (whose definition differs from that under the 1953 Act); alternatively that, historically, the Maori Land Court with regard to this block had merely passed on by its succession orders an unextinguished customary title.

Held: that these defences were estopped by an earlier decision of the MLC assuming this block was Maori freehold land. The 1953 definition was in force when the rating orders were sought. The MLC had dealt with the land as Maori freehold land since 1921.

 

General

Discussion Material on Allocation Models for Consultation with Iwi

Te Ohu Kai Moana - Treaty of Waitangi Fisheries Commission, August 1994Sets out 3 models for allocation to iwi of pre-settlement fisheries assets, including over 57,000 tonnes of quota. The models are 1) Manamoana (proportion of the Total Allowable Catch occurring off-shore from landward boundaries of each iwi at 1840), Population, Progressive Allocation (staged allocation using the manamoana approach). The model finally chosen must be consistent with tikanga Maori, with legislation, meet social and economic needs, be financially viable, technically feasible and politically sustainable. After consultation, Te Ohu Kaimoana will, later in the year, recommend a model (with or without unanimous iwi support) to the Government, which will have 30 days to respond with any changes.

Each model incorporates a common process for registration of iwi and resolving disputes among iwi about their respective allocations. The manamoana and progressive allocation models would use 1840 as the date when an iwi coastline is determined, but the commission recognises that "some flexibility" might be required in its application.

[ed: the preferred model of Te Ohu Kai Moana is manamoana. For each model, except the population model, the origin of the model in the Treaty and Waitangi Tribunal reports is discussed. This is significant since the first criteria for selection of a model is its accord with "tikanga Maori". The procedures for registering iwi revive elements of the repealed Runanga Iwi Act. The dispute resolution process, when applied to the manamoana model, might see the commission acting in some respects as the land court did last century, applying an '1840 rule'.]

 

 

Notification of Proposals to Establish Taiapure-Local Fisheries

NZ Gazette, 4 August 1994Three Taiapure-Local fishery proposals have been notified as agreed in principle by the Minister of Fisheries. Objections are to be lodged by 4 October 1994. The proposed fisheries are:
- Nga Taonga o Ngati Kere (near Cape Turnagain)
- Waikare Inlet, Waikino and Manawaora Creeks
- Maketu and Waihi Estuaries, and a coastal strip from Wairakei to Otamarakau.

 

 

Keynote Address to Hui Whakapumau - Maori Development Conference

Chief Judge ET Durie, 10 August 1994In this hard hitting speech commenting on the decade of Maori development since the Maori Economic Development Summit of 1984, the Chief Judge noted that, on the basis of human rights and Treaty jurisprudence, a compelling case exists for an independent and adequately funded Maori agency to formulate Maori policy and development proposals. A proposal in 1985 that a largely independent Maori body replace the then Department of Maori Affairs was rejected by Cabinet. This compared unfavourably with the Aboriginal and Torres Strait Islander Commission created around the same time with extensive aboriginal representation and with Canadian efforts at tribal self government. Consequently, Maori now face a proliferation of competing organisations in districts, rivalry between districts and the unilateral development of a claims resolution policy by government with no significant Maori input. Lack of funding for solutions generated by Maori reflects disturbing elements of the colonial era. Lack of an independent body answerable to Maori means current Ministry of Maori Development policy is state policy, no matter how benign. Consultation by the state is insufficient in that it elicits a response but denies Maori initiative. Important positions in Maori policy formation, including positions in the Maori Land Court and Waitangi Tribunal, are filled by state nominees according to criteria the State judges to be important.

 

 

Maori and the Law in the Light of the Life, Works and Legacy of Sir Apirana Ngata

Chief Judge ET Durie. Opening address on the centenary of the graduation of Sir Apirana Ngata, University of Canterbury, 24 June 1994.Ngata's achievements as a lawmaker stemmed from the view that the true art of law is not the maintenance of prescriptive rules but the delivery of substantive justice. There is a need for Maori lawyers to develop skills in statutory drafting, parliamentary mechanics and lobbying to provide the technical expertise to Maori politicians to promote and advance legislation under the MMP system.

Maori jurisprudence needs development. Ngata argued in 1937 against a proposal to vest all petroleum in the Crown, contending that whether Maori knew about oil in 1840 was irrelevant. There is no sound basis in law that rights of indigenous people must be locked into such as existed at the time of colonisation, although this approach appears to have been followed in Tainui Maori Trust Board [1989] 2 NZLR 513, 527 (Maori knew about coal) and Te Runanga o Te Ikawhenua v A-G CA 124/93 17 December 1993 (Maori did not know about electricity generation). Ikawhenua claimants might have been better to have used Ngata's line, that if they owned the river, they had the right to any development of it. What is required from Maori lawyers today is not an interpretation of the law but "a vision of how it should be developed".

 





July 1994 Contents

Assessing Performance

Tau Henare (MP for Northern Maori) has asked each government minister: "In each year since the Act became law, what information, if any, has [the relevant department] provided on request to the Ministry of Maori Development to assist in its statutory monitoring role under section 5(1)(b) of the Ministry of Maori Development Act 1991?" (Replies Supplement 12 July 1994). Section 5(1)(b) provides that the Ministry is responsible for "Monitoring, and liaising with, each department and agency that provides or has a responsibility to provide services to or for Maori for the purpose of ensuring the adequacy of those services." The Act gives no other guidelines on this function. Nor is it spelt out what must occur if services are found to be inadequate.

Responses from most departments referred to ongoing liaison and consultation on a number of issues. For some departments, no formal request for information had been received, although liaison was occurring. No department provided information about the particular measures it was using to determine whether its services to Maori were adequate, or how it was performing against those measures. Undoubtedly, this was in part because answers had necessarily to be brief. However, this also reflects the vagueness of the 1991 Act.

The Hon Tirikatene-Sullivan (MP for Southern Maori) has asked each of the government ministers "Is the Treaty of Waitangi referred to in the mission statement of any department or ministry under the minister's jurisdiction; if so, how is this reflected in the recent Budget?" (Replies Supplement 19 July 1994). The Budget appears to have contained little directed specifically towards Maori. The answers to this question are not yet in, but promise to make interesting reading.

The government in the coming weeks will, under the new Fiscal Responsibility Act 1994, be called to answer difficult and quite specific questions about its financial performance. Judging from the questions of the Maori MPs, in assessing government performance on Maori issues, perhaps a Treaty Responsibility Act would be helpful.

 

Maori Land Court and Appellate Court

In re Orokawa 3B Block and Dovey Erena Regeling

Appeal 1994/7, 4 July 1994, Deputy CJ Smith, Hingston, Carter

Appeal from a decision setting aside land as a reserve under s338/1993 (old s439/1953). In the course of disposing of an application under s173/1953 concerning the vesting of certain land in beneficial owners, the court directed the applicant (the Maori Trustee) to convene a meeting of all beneficial owners to consider placing residue land in a reservation. The court subsequently, without further application, reopened the matter and ordered the residue land be reserved under s338/1993.

Held: allowing the appeal, there was no application for reservation before the court, and it therefore lacked jurisdiction to make the s338 order. Section 37(1)/1993 provides that jurisdiction may be exercised only on the application of any person having an interest in a matter, the Minister, Chief executive, or a registrar of the court. The only situation in which the court can make orders on a matter about which there has been no application is in the course of hearing an original application on a matter, and the need for additional orders arises (s37(3)/1993). In this case, the original application had been disposed of when the court reopened the matter.

It was also noted that the appellant had advanced this ground of appeal at the hearing. It had not been stated in the notice of appeal. Although the Maori Land Court Rules forbid such a proceeding, the court would permit the new ground to be advanced. As a "titles Court", the MLC has a responsibility to remedy `patent deficiencies' in lower court proceedings (In Re Ngapuna 4 v H Allen Mills and Son Ltd[1972] 5 Waiariki ACMB 332 and In Re Maungatatari 5B1A v Baillie [1976] 15 Waikato Maniapoto ACMB 188 applied).

 

 

In Re Matiu Rata and Committee of Management for Muriwhenua Incorporation

Appeal 1994/8, 22 June 1994, Deputy CJ Smith, Hingston, Carter

In 1991, at the instruction of the court, the registrar filed an application under s61/1967 to investigate the incorporation after it had failed to file audited accounts. A long sequence of hearings followed. An examiners report was filed and considered. There were several adjournments as the court sought to have up to date accounts presented, culminating in a hearing in December 1993 at which the court made an order under s61(6)/1967 appointing 7 new members to the committee of management, impliedly replacing the existing members. It then dismissed the s61 application since further investigation was unnecessary. It was argued that the court lacked jurisdiction to make the order replacing committee members, and made it in breach of natural justice in not giving notice to existing members.

Held: the court undoubtedly had power to direct the registrar to file an application and to order an inquiry under s61/1967 given the failure to file audited accounts up to 1991. However, a fresh application, and fresh notice, would have been required to investigate the late filing of accounts after 1991. Consequently, directions relating to the filing of later accounts moved beyond investigation and towards a monitoring of the continuing activities of the incorporation. There was no jurisdiction under s61 to do this.

The orders flowing from this wrongful exercise of jurisdiction were therefore flawed. The order replacing committee members also failed because no notice was given as required under s61(5) and by principles of natural justice.

The failure to file accounts nevertheless established a prima facie case for removal of some or all of the committee. This issue was therefore referred back to the lower court to consider action not only under s61(5) but also s61(6) which gives wide powers to remedy any deficiencies or problems experienced by an incorporation.

Finally, the order dismissing further proceedings under s61 after appointing new committee members was a nullity, as the court disposed of all matters under the s61 application on the making of the appointments.

 

 

In Re Ongarahu B and Eriapa Maru Uruamo

4 July 1994, Deputy CJ Smith, Hingston, Carter

Appeal against an order appointing trustees to replace existing trustees. It was argued that inadequate notice was given and the court lacked jurisdiction to make the orders.

Held: allowing the appeal, that the notice of meeting did not specify what the meeting would be about. That many people might have been aware of the subject of the meeting was not sufficient. Presumed notice is not adequate notice (Jennings v Scott (1984) High Court Rotorua A1 83/79 applied). In addition, there is no jurisdiction to remove trustees under s338(7)/1993, but only power to vest land in trustees and appoint new or additional trustees. Trustees may only be removed under s240/1993, which requires prior notice to be given to those trustees affected.

[ed: as to the power to remove trustees under s240/1993, see In re AMP Perpetual Trustee Company NZ Ltd and Faulkner and the Poripori Farm Trust 53 Tauranga MB 132, 12 April 1994, Carter J, reviewed in MLR June 1994 p2]

 

 

New Maori Land Court Judge

Minister of Maori Affairs press release 20 July 1994

Patrick John Savage, a Rotorua solicitor, has been appointed a Judge of the Maori Land Court. He will sit on the Rotorua court serving the Waiariki District. He is of Ngati Porou descent through Te Whanau-a-Ruataupiri and is married with 3 children. At the time of his appointment he was a partner in the Rotorua firm Davys Burton.

 

 

Te Ture Whenua Maori Amendment Act 1994

This Act was assented to on 1 July 1994 and amends the law relating to:
- cross leases of Maori freehold land
- payments of proceeds of alienation of Maori freehold land

- termination of agency by the court
- acquisition of land by incorporations for investment purposes
- amendments to constitutions of incorporations by special resolution, including adjustment of share capital
- minor drafting errors in the principal Act.

It is substantially the same as the bill reported at MLR April 1994 p4 apart from minor changes in wording.

 

Waitangi Tribunal

Whanganui River claim

Wai 167, D18, 27 July 1994, counsel for claimants

In closing submissions, remedies sought by the claimants were outlined. The major recommendations sought being that the Crown reject the application for a water conservation order for the river and recognise the Whanganui River as having legal personality, as the tupuna awa of the Whanganui iwi (reference made to English cases concerning Hindu religious institutions recognised as 'juristic entities', Mullick (1925) 52 LR Indian Appeals 245, Bumper [1991] 4 All ER 638). Under such a regime, the iwi would manage and control use of the river for the benefit of the river, the Whanganui iwi and the wider community in accordance with the Treaty of Waitangi. From December 1998 or an earlier agreed date, Whanganui iwi would be given sole right to make laws for management and control of the river (including repeal of s354 RMA saving Crown rights to the river bed under the Coal Mines Act/Mining Act). Existing rights would continue until that date. The claimants also seek, if required, Crown assistance to enable the rehearing of the 1962 Court of Appeal decision dismissing a claim to legal title to the bed of the Whanganui River (the Court of Appeal in Te Runanga o Te Ika Whenua v A-G [1994] 2 NZLR 20, 26-27 made obiter comments that the approach in the 1962 case may have been limited, since the aboriginal title doctrine was not raised). Crown counsel argued that the claim in its current form is a recent development, and that, in the past, interests in the river have been alienated as riparian lands were sold. The ad medium filum rule applies and accords to an extent with Maori custom regarding interests in rivers.

[ed: hearings in this claim have now been completed and the tribunal report is expected later this year]

 

Other Jurisdictions

Waitutu Inc v Southland District Council and Minister of Conservation

C68/94, 15 July 1994, Skelton J & commissioners NJ Johnson, R Grigg

The Maori incorporation, Proprietors of Waitutu, appealed against the refusal of the district council to issue certificates of compliance enabling the incorporation to fell indigenous timber on the 2145 hectare Waitutu block. The block had originally been set aside for Maori under the South Island Landless Natives Act 1906.

The incorporation made two applications for certificates of compliance under s139 RMA. It first sought approval for the logging of trees on the block for commercial sale, then for the clearing of trees to permit grazing by deer. In each case the council would not approve the tree felling aspect of the proposals.

Held: as to the first approval sought, if the clearance of existing trees and planting of a production forest could be seen as one linked and continuous activity, then a certificate might issue under the existing district plan, but clearing the existing indigenous forest was a significant activity in its own right, and not permitted by the plan. As to the approval sought to permit clearance for grazing, similarly, the clearance of trees constituted a significant activity in its own right and was not merely incidental to the preparation of the land for grazing.

Regarding Part II s8 and the principles of the Treaty of Waitangi; if this were an application for a resource consent Part II would be relevant. It is doubtful whether Part II has to be considered when simply interpreting the provisions of a district plan, even though the purpose is to grant a certificate of compliance which is deemed to be a resource consent. Accordingly, evidence about the history of the land and its setting aside for landless Maori did not assist in determining the appeals.

In any case, the felling of this indigenous forest might well fail to achieve "sustainable management" as set out in s5 RMA (managing in a sustainable way while avoiding, remedying or mitigating adverse effects).

It was noted that the Crown, which owns the former Waitutu State Forest adjacent to the Waitutu block, and may add the former state forest land to the Fiordland National Park, had an interest in seeing that the forest on the Waitutu block remains untouched, but has no present intention to acquire it. On the basis of these interests in the adjacent land, the Department of Conservation was permitted to be heard (it had an interest greater than the general public - s274). Although the Department had been late by several days in filing notices of intention to be heard, this requirement was waived (there was no prejudice to other parties, the delay was small - s281).

[ed: The district plan was prepared under the Town and Country Planning Act 1977 which did not contain significant references to Maori values and the Treaty of Waitangi as does the RMA. Consequently, Maori values could not have been extensively taken into account in the preparation of that plan. This decision therefore potentially affects all areas where old district plans remain and have not been reviewed or replaced.

George McMillan has been appointed by the Crown to negotiate with the incorporation over protection of the forest. No deadline has been set for those negotiations (Replies Supplement 12 July 1994 p80).]

 

 

Simon Luxton & Ors v Bay of Plenty Regional Council & J Wirepa

A49/94, 14 June 1994, Sheppard J, commissioners IG McIntyre, F Easdale

Mr Wirepa applied to the regional council for consents to establish a paua farm. He consulted with, and obtained letters of support from, local Maori groups. Consents were issued by the council. Appeals against the consents were lodged by Maori persons in the district. These appeals were sent directly to the Registrar of the Planning Tribunal and were not notified to Mr Wirepa or the regional council. Mr Wirepa applied to have the appeals struck out.

Held: the appeals should be struck out. The RMA only allows the time for service to be waived when service has occurred late, not when it has not occurred at all. In any event, the RMA would not allow service to be given now because Mr Wirepa had spent considerable sums on the understanding that there were no appeals and would therefore be prejudicially affected (s281).

It was accepted that the appellants failure to serve their appeal was a result of "muddlement". They lived in a remote locality, but could have obtained advice by telephone. The Registrar had written to the appellants advising them of the need to serve their appeals, but had received no response.

The appellants were concerned about whether Mr Wirepa had backing from the appropriate tribal authorities, his claimed interests along with his whanau as tangata whenua, possible control of the paua farm by "undesirable elements" and the omission to consult "outside a formal confrontational situation". These were not matters the tribunal could consider. The tribunal would "avoid, if possible, making any findings about the status of a particular tribal authority, or about the scope of a whanau's rights as tangata whenua, or about which hapu might have traditional or customary interests in a particular area. Questions of "undesirable elements" could also not be considered. "It is the law that any person is entitled to apply for resource consents. .... an appeal against a grant of resource consent has to be decided on whether the proposal will promote the sustainable management of natural and physical resources, not on whether it might involve Maori failing to observe customary areas of interest of a particular whanau, hapu or iwi."

Regarding costs, it was noted that most of the proposed appellants were unemployed. However, this was not the tribunal's concern, and Mr Wirepa had incurred legal expenses in answering the appeals. The appellants should therefore make a contribution to costs. [ed: the "muddlement" and unexpected costs in this case might have been avoided had an iwi management plan existed in the region. Such plans must be taken into account by territorial authorities (see s61(2)(a)(ii), s66(2)(b)(ii) and s74(2)(b)(ii)). They also provide at an early stage the wider consultation the appellants thought was needed in this case. Procedures for the service of notices are strict under the RMA because of the legal and financial implications of appeals. These procedures may not be helpful to those living in remote localities without money or legal advice (who may often be Maori). Perhaps an amendment is needed requiring that all reasonable assistance be given by persons such as the Registrar on receiving appeal notices (in this case by passing a copy of the notice on to the regional council and asking them to further advise the objectors of the need to formally serve their objection on the council and Mr Wirepa). The Official Information Act contains a requirement for reasonable assistance to be given. The general procedure of the Waitangi Tribunal and the Maori Land Court is to give all reasonable assistance.]

 

 

Ngati Kahu Trust Board v Northland Regional Council & Lewis Lands Ltd

A48/94, 23 June 1994, Sheppard J

Lewis Lands applied for 2 resource consents for the taking and discharge of water for a camp ground. The board lodged a submission objecting to the applications, but withdrawn that submission after receiving written assurances about the location of the wastewater discharge, and restrictions on access by campers to sensitive sand dune and coastal areas (waahi tapu and rare species were present). The regional council accordingly issued the resource consents without a hearing. The consents included the board's condition about the location of the discharge. The board became concerned that the assurances about access by campers were not being upheld, and lodged an appeal to the tribunal against the regional council decision to issue the consents, asking that the tribunal make it a condition of the consents that access be restricted to the sand dune and coastal areas.

Held: the appeal should be dismissed. The consents given by the council related to water use and not access. Consequently, the tribunal could only look to the part of the agreement between the board and Lewis Lands which related to water use. The board withdrew its objection on the basis of an assurance about the location of the wastewater discharge. It thereby lost standing to appeal against the consents. Submitters should not in any event be able to cancel their withdrawal once the period for submissions has closed and a resource consent has been issued (the tribunal on appeal would be put in the situation of conducting a primary hearing).

A separate letter to the council from the board, stating that it did not wish to be heard, but reserving the right to appeal any decision of the council, was ineffective. The agreement with Lewis Lands contained no such reservation or qualification.

The intended appeal was also 'vexatious' because it would require the council and Lewis Lands to answer water discharge issues that had already been settled, and there would be no practical result from the hearing.

The fact that the board was currently the subject of a winding-up order did not preclude it from continuing proceedings under the RMA.

 

General

Reserves under negotiation

Replies Supplement 19 July 1994

The Minister in Charge of Treaty negotiations advised the following as current proposals to transfer ownership of reserves to Maori as part resolution of Treaty claims: Woodend lagoon/Tutaepatu Wildlife Management Reserve, Waikuku Beach/Karikari Recreation Reserve, and Crown Titi Islands in Ngai Tahu. Oke Bay (Hauai) Scenic Reserve in a northern Maori group (see Reserve and Other Lands Disposal Bill No 2). There is a proposal for joint management of Codfish Island/Whenua Hou Nature Reserve between the Crown and Ngai Tahu. These and any future proposals (others are under discussion) have been and will be subject to a process of public consultation determined on a case by case basis.

 

Australian Native Title Tribunal

Aboriginal Law Bulletin June 1994

As at 30 May 1994 the National Native Title Tribunal had received 21 applications for determination of native title. Seventeen had been "accepted" - that is, they were of sufficient particularity and prima facie value to be considered by the tribunal. Four remain "under assessment".


June 1994 Contents

Maori Science and Law

In a recent paper, "Maori Science. Can Traditional Maori Knowledge be Considered Scientific" (NZ Science Monthly, May 1994, Mike Dickison), and at a recent lecture in Wellington organised by the Skeptics Society, it was argued that Maori did not 'do science' because "Maori knowledge acquisition was neither objective (relying as it did on religious faith), rational (it mixed supernatural with mundane explanations), nor co-operative (it relied on authority rather than challenge and consensus)." Science is about questioning the mechanisms behind the workings of the world. Simply having knowledge and applying it to create technology is not enough.

This sort of argument seems to make as much sense as a Maori chief observing an atom bomb test and remarking, "but this is merely technology". Perhaps the missionary Richard Taylor had something like this in mind when he said, on observing eel weirs on the Whanganui river, that these constructions were too ingenious to have been made by Maori! As for reliance on religion, many important scientific discoveries were made by devout European Christians (I was always taught that a monk discovered the basic principles of genetics).

In 1967 the English born African academic Robin Horton suggested another approach ("African Traditional Thought and Western Science" Africa v37 p50). By concentrating on the similarities rather than the differences between Western and African thought, he concluded that "like atoms, molecules, and waves, ... the [African] gods serve to introduce unity into diversity, simplicity into complexity, order into disorder, regularity into anomaly". The essential difference between African thought and Western science was not a Western monopoly on the ability to rationalise or inquire, but rather a tendency towards 'depersonification' of the thinking process. Literacy had a large part to play in this movement. Horton believed that once this point was grasped, seemingly irrational traditional thinking and action became comprehensible to the Western mind. His argument, despite revisions, is still widely respected today (see Times Literary Supplement 2 July 1993).

Horton's analysis has an obvious application to law. Any tendency to view Maori traditional law and ideas as essentially "irrational", "spiritual" and "other", prevents a proper appreciation of their jurisprudential value.

 

Maori Land Court and Appellate Court

In re AMP Perpetual Trustee Company NZ Ltd and Faulkner and the Poripori Farm Trust

53 Tauranga MB 132, 12 April 1994, Carter J

An application for the Court to exercise its jurisdiction under s240(a) to remove a trustee for failing to carry out his duties satisfactorily.

Held: s240 provides wider grounds for removal than the 1953 Act, adding the ground of failure to carry out duties satisfactorily (the 1953 Act referred to powers under the Trustee Act 1953 allowing removal for particular matters only). Natural justice principles apply and the trustee must have full notice of any allegations made.

If the Court determines to remove a trustee under s240 it can proceed under s239 (addition, reduction and replacement of trustees) and make a consequential order reducing the number of trustees.

The test of satisfactory performance need not be solely objective. The Court can consider the nature of the trust, its performance, and views and expectations of the owners. Section 17(1) directs the Court to have regard to the primary objectives of retention of land in the hands of the owners and the effective use, management and development of the land. If the owners believe that discord between trustees is hindering the work of the trust, the Court may have regard to those views. Where trustees are "fighting" the primary objective of administering land is sometimes diminished.

This factor and lack of attendance at meetings, general argumentativeness and difficulty working with other trustees gave grounds for removal for unsatisfactory performance in this case. In this case the discretion would not be exercised because of the failure to accord natural justice in the allegations made by the trust against the trustee, and because of the failure to follow trust provisions in dealings with the trustee and in coming to the resolution to remove him (a decision not to send notice of meetings to the trustee was a course "fraught with danger").

Noted that a trustee cannot be criticised for exercising the right to seek directions from the Court on any matter. Section 17(1) seems to provide room for the Court to remove a trustee who cannot "work reasonably" with fellow trustees, although holding merely different or opposing views would not be sufficient grounds.

 

Waitangi Tribunal

The Whanganui River claim. Opening Submissions of Counsel for the Crown

Wai 167, 20 June 1994

At the hearing in June, Crown counsel made the following submissions. Negotiations in this claim are paused because the Crown is developing an approach to negotiations with respect to natural resources policy generally. The claimants frustration at this approach is acknowledged. The Crown has title to the beds of navigable rivers, including the Whanganui river, by virtue of the Coal Mines Act 1979, its predecessors, and s354 Resource Management Act 1991. The sale of riparian lands implied a relinquishment of any property rights located in the adjacent river. There is no evidence of an expectation that exclusive rights would persist after sale. The ad medium filum principle is acceptable in Treaty terms as "giving a formal legal expression to property interests associated with land." In this sense, the principle is consistent with Maori perspectives. While the process of the application of the principle may give rise to a breach of Treaty principles, the principle itself does not.

The spiritual relationship with the river has not been communicated to the Crown until relatively recently. It would be inappropriate to convert this to a property right.

 

 

The Native Land Court in the Chatham Islands

Bryan D Gilling, Wai 64 document A10

A 113 page report detailing Native Land Court operations in the Chatham Islands in the last century including the application of the 1840 rule.

 

Other Jurisdictions

M Sadd and Te Runanga A Rangitane ki Wairau Inc v The Waitangi Tribunal and others

CP 322/93, Wellington, 13 May 1994, Greig J

An application by the third defendant (Ngai Tahu Maori Trust Board) to dismiss proceedings brought by the plaintiffs seeking judicial review of the Waitangi Tribunal and Maori Appellate Court for their handling of a case stated to the Maori Appellate Court on the question of tribal boundaries in the South Island (the decision on the case stated was appealed unsuccessfully to the Privy Council).

Held: that the proceedings should be dismissed. The allegation that the plaintiffs were not consulted over the form of the case stated drawn up by the Waitangi Tribunal was contrary to the facts, but, in any event, the Tribunal had the right under s6A(3) Treaty of Waitangi Act 1975 to settle the terms of the case stated. Allegations that the Maori Appellate Court failed to proceed in accord with Maori custom could not be upheld, that Court having discretion to order its own procedures and with knowledge of the relevant customs to be adopted. As to the allegation that the MAC had accepted the "1840 rule" as binding, the rule appears to be a "well accepted principle" arising from the need for the Court to fix a date from which raupatu or "conquest" and inter-tribal warfare, being contrary to public safety and repugnant to English law, could no longer be condoned. In any event, the 1840 rule was not decisive to the MAC decision, which referred to peaceful reoccupation of land in that case.

 

 

Southern Scallop Fishery Quota Holders v Tasman District Council and another

W24/94, 15 June 1994, Judge Treadwell

In this appeal, local iwi gave evidence in support of an application for a shellfish farm, stressing their involvement with the applicant company and the Maori historical association with fisheries in the area. This evidence was rejected by the Tribunal. The Maori interest in this case was a commercial interest, and consequently something which could not be considered because of the provisions of the "Treaty of Waitangi Fisheries Settlement Act 1993".

[ed: presumably the reference is to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Section 9(b) provides that, in view of the fisheries settlement with Maori, no court or tribunal has jurisdiction to inquire into the validity of claims or the rights or interests of Maori in commercial fisheries. "Claims" refers to rights under common law, the Waitangi Tribunal, statute, "or otherwise" (s9(a)(i)). This decision appears to be a very broad reading of that section and the effect of the 1992 Act. The section is very broadly drafted. The alternative view would be that the 1992 Act was never intended to have such a drastic effect on the RMA, and that it relates only to legal claims to the ownership or control of the commercial fishing resource.]

 

General

Maori Purposes (Wi Pere Trust) Act 1994

9 June 1994

Retrospectively amends the Maori Purposes Act 1991 to enable trustees of the Wi Pere trust to exercise powers under Part II of the Trustee Act 1956.

 

 

Closing dates for submissions on bills

Te Runanga o Ngai Tahu Bill: extended to 3 September 1993. Queen's Chain Protection Bill: 16 February 1994.

 

 

Parliamentary Commissioner Report on Treaty Negotiations

Replies Supplement 7 June 1994 p84

Sandra Lee: "What procedure, if any, does [the Minister] propose to apply to consider the report currently being prepared by the Parliamentary Commission [sic] for the Environment on consultation in relation to the Waitangi Treaty negotiations and settlements?"
Hon D Graham (Minister in Charge of Treaty of Waitangi Negotiations): "I will read it and then call for officials to prepare a report for the Cabinet Committee on Treaty of Waitangi issues."

[ed: the report is being prepared on the initiative of the Parliamentary Commissioner. It is expected to be available before the end of July.]

 

 

Public consultation

Replies Supplement 28 June 1994 p31

Hon D Graham: "Because of the variety of issues that ... a claim may raise, there is no standard public consultative process. As a general rule, negotiations are held in camera ... Third parties affected by a proposed settlement are then consulted as appropriate. .... Government is presently considering a number of generic policy issues on the settlement of Treaty claims and in the course of that consideration will address the appropriate extent of public consultation required on those policies."

 

 

Natural Resources

Replies Supplement 14 June 1994 p15

Hon K T Wetere: "Has [the Minister] received the reports reviewing the effect of Maori land claims on natural resources; if so, what do those reports say?"
Hon John Luxton (Minister of Maori Affairs): "In my capacity as Minister of Maori Affairs, I have no knowledge of any report which specifically reviews the effect of Maori land claims on natural resources. Perhaps the honourable member will elaborate ... in order that I can satisfy his request."

[ed: this question would appear to refer to the resource policy which is under development and which was noted in Crown submissions to the Waitangi Tribunal hearing the Whanganui river claim (see above).]

 

 

Government Position Regarding the Conservation Estate

Ministers of Conservation and Treaty Negotiations, 24 June 1994

This Cabinet paper sets out the government position on the settlement of claims affecting conservation land. The "conservation estate" is "held by the Crown on behalf of all New Zealanders" and is not "readily available" for the settlement of claims. "Discrete sites" (but including river and lakebeds and mountains where special significance is demonstrated) could be considered for settlements. Before any conservation lands are considered, government must be satisfied that a settlement will not affect the strength of existing legal mechanisms protecting:
- conservation values;
- public access;
- the rights of existing concessionaires.

Three possible legal regimes are outlined:
- vesting in Maori, in "rare cases", possibly with legislative encumbrances;
- vesting in Maori, subject to conditions, and the return of title on non-compliance;
- continued Crown ownership, with a significant Maori management role.

[ed: Maori groups probably already know that conservation land (or any land) is not "readily available" for settlements. They may be disappointed with this apparent closing off of options without consultation. Conversely, conservation groups will not be reassured by the general language used. One commentator has already claimed that the policy broadens the grounds for using conservation lands in settlements (Evening Post 29 June 1994 p20). The lack of definition is a difficulty. What is the "conservation estate" and what are the values which that phrase embodies?]

 

 

Ngai Tahu settlement

Replies Supplement 28 June 1994 p31

John Blincoe: "What further processes will be carried out before the Government makes a decision on the future tenure of the Greenstone, Elfin, and Routeburn Stations; will such processes include public consultation?"
Hon D Graham (Minister in charge of Treaty of Waitangi negotiations): "The decision on further processes ... is ultimately one for the Minister of Lands to make. The ... Minister of Lands and Minister of Conservation [Hon Denis Marshall] will, however, consult with me before making his decision. ... the Department of Conservation is currently completing an assessment of the conservation and recreation values of the properties to ensure that such values are sufficiently safeguarded in an possible settlement with Ngai Tahu ..."

 

 

Claims to National Parks

Replies Supplement 28 June 1994 p31

Hon D Graham (Minister in charge of Treaty of Waitangi negotiations): "... there are no claims which specifically relate to National Parks. Most claims are general in nature [with] no indication of whether or not a National Park is being claimed until the matter comes to formal hearing ... As an example, the Taranaki Raupatu claim refers to all land confiscated under the Native Settlements Act [ed: NZ Settlements Act 1863] which would include the Mount Egmont National Park. ... until final submissions are made, it is not known whether the park itself will be subject to claim. A similar situation exists with the Urewera National Park and the Tuhoe claim ...".

 

 

Policy on approvals for customary taking

Replies Supplement 7 June 1994 p40

Graham Kelly: "Why did the Ministry of Agriculture and Fisheries refer a Samoan church group to a local kaumatua for a permit to harvest seafood for a feast?"
Hon Doug Kidd (Minister of Fisheries): "In keeping with the intent of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 my ministry sets the uses for which fish may be taken. It has no part now, nor has it had in the past, in giving out individual approvals for Maori customary harvest. That role has been provided in regulation to Maori since 1986. There are differing views in Maoridom as to whether customary uses includes not only the right to take fish in a traditional manner, but also the right to approve other groups who may harvest fish in a customary way.
The issue will be clarified and defined in the customary fisheries regulations that will arise from the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
In this case the kaumatua concerned considered that he was allowed by custom to approve people other than Maori to harvest under his authority. His right both to grant a permit in the area concerned and to grant it to a non-Maori group has been challenged."

 

 

Annual access fee

Replies Supplement 21 June 1994 p13

In answer to questions from Pete Hodgson MP, the Ministers for the Environment, Maori Affairs, Finance, Conservation, Fisheries and State Services confirmed that the advice from officials in each of their departments had been in favour of an annual access fee for fishing quota.

[ed: the government dropped the idea of a fee mainly because of concern about the legal impact on the Sealord settlement. The Treaty of Waitangi Fisheries Commission opposed the fees (Tangaroa no 19 June 1994)]

 

 

Resignation of chairperson

Replies Supplement 28 June 1994 p19

Hon Maurice Williamson (Minister of Broadcasting): "Mr Brown advised me that his reasons for resigning ... were that he felt that Te Mangai Paho should be given a policy advice role and should operate with a greater level of autonomy. The relevant section of the Broadcasting Act defines Te Mangai Paho's sole function as being to 'promote Maori language and Maori culture by making funds available, on such terms and conditions as [Te Mangai Paho] thinks fit, for broadcasting and the production of programmes to be broadcast.'"

The Minister continued that the Ministry of Commerce is to report by the 30 November 1994 on the new Maori broadcasting policies. This review is to provide Maori broadcasters and others with an opportunity to express their views on the policies and how they have operated.

 

 

Effect of Todd report on Maori

Replies Supplement 14 June 1994 p15

Hon Dr Lockwood Smith (Minister of Education): "The Todd Report is ... not a statement of Government policy. Government will be considering the recommendations contained in the report over the next few months. ... It will be necessary to give careful consideration to the various arguments alongside the impact of each proposal, particularly in relation to the likely participation in tertiary education and training of various groups, including Maori."

 

 

The Maori Land Legislation Manual - Te Puka Ako Hanganga Mo Nga Ture Whenua Maori

Crown Forestry Rental Trust, June 1994

A computer database containing details of 1,166 enactments and ordinances affecting Maori from 1840 to 1993 (276 of the most important are contained in an accompanying printed manual). For each enactment the database provides the dates of assent, commencement and repeal, lists all amendments, analyses major sections, and provides commentary and references from Parliamentary debates and papers (AJHRs), secondary sources, law reports and Waitangi Tribunal reports. Records are also arranged around subject headings including; the Maori Land Court - structures and jurisdiction, land boards, Maori trustee, alienation, status of land, confiscation, waste lands, development schemes, survey issues, public works, reserves, fisheries, lakes, rivers, foreshores. Also included are lists of statutes in 3 subject areas, harbours (704 acts), waste lands (51 acts), goldfields (69 acts).

Claimant groups before the Rental Trust will receive free copies. The database is publicly available through GP Print for $500. It runs on an Apple/System 6 or PC/Windows 3.0 system and requires Claris Filemaker Pro 2.0. The data takes 4-6mb of disk space.

[ed: this database is "user friendly" and will be an invaluable aid to researchers and lawyers in the field of Maori claims. Its prime achievement is to order and make sense of the large number of statutes which affected Maori through the colonial period. It is in its own right a fascinating study of colonisation through law. Researchers are able to approach an issue through dates, subjects, type of act (public, local, provincial etc) and key words such (including block names in some cases), and quickly map out the relevant law. By way of example, the keywords "Treaty of Waitangi" produce 51 records, including the Thorndon Reclamation Act 1882, still in force, and a commentary recording the statement of the Maori MP Tawhai that he felt sorry for the fish that would be driven from their homes by the act, and "By the Treaty of Waitangi it was supposed that the Maori were to retain all their goods and property whether above or below the earth, and the Europeans bought only the surface."]

 

 

The Next Three Years on the Path to 2010

National Government, June 1994

A document providing "specific objectives and a work programme for achieving the vision set out in Path to 2010". Under the heading Maori development, two objectives are outlined:
- to reach fair settlements to claims, including settling all major claims by 2000
- tackling Maori disadvantage through employment and education initiatives.

Specific strategies for employment and education include awaiting the Employment Task Force report and giving careful consideration to its recommendations, the gradual phasing in of an obligation on young people to be in training or work, and maintenance of current TOPs and similar programmes.

[ed: described by one economist as a document "studded with platitudes" (Dominion 24 June 1994).]


May 1994 Contents

Tertiary Education and "Option B"

Education, its funding and its future is an area of strong emotions and ready opinions (no apologies for adding another). The Report of the Ministerial Consultative Group on Funding Growth in Tertiary Education and Training is notable for the controversy surrounding "Option B", which, on its face, appears to be a vigorous attempt to upskill poorly performing groups such as Maori by increasing payments from students who in later years will have high earnings, and directing the savings to groups presently under-represented in tertiary education.

Already, a claim has been filed with the tribunal alleging, mainly, a lack of consultation (Wai 431. The tribunal is seeking further details of the Treaty principles involved and how the claimants have been affected). The taskforce notes in the report that it was asked to state that there was insufficient time to fully consult with Maori.

Option B is specific about the sums of money which could be redirected to under-represented groups ($100 million per annum plus $200 million over the next 6 years), and about the criteria to be used for targeting grants. But, while attractive, there are several concerns. Was enough consideration given to the natural slowing in the numbers reaching tertiary age over the coming decade? Option B talks about a "significant expansion in demand", but admits that the growth in the number of 18-24 year olds in the next decade "will be modest".

"Fairness" is a key criteria, leading Option B proponents to suggest that those eventually achieving high lifetime earnings should pay up to 50% of tuition costs. It is also admitted that upfront "costs" such as loans are most discouraging to people on low incomes - something the student representatives on the taskforce gave practical examples of, and Maori submissions made particular complaint about. This effect would be partly, but possibly not fully, addressed by targeted assistance programmes.

Unquestionably, as the report shows, the loans scheme and other recent changes have increased Maori participation in tertiary education. It is also helpfully suggested that there should be continuing research on factors affecting Maori educational achievement. Maori unemployment (at 25%) is a continuing national scandal and significant steps need to be taken. But it should hardly be surprising that some Maori groups view with caution the idea that a "user pays" approach will deliver the goods.

 

Maori Land Court and Appellate Court

Whakatohea Raupatu Claim Representatives

69 Opotiki MB 11-26, 2 February 1994, Hingston J

This order names 14 persons to act as negotiators for and on behalf of Whakatohea in all matters connected with achieving a settlement of the Whakatohea raupatu claim before the Waitangi Tribunal. Claude Edwards was named claim manager.

[ed: this appears to be the first order under s30(1)(b)/1993 providing for the Chief Judge to refer an application for determination of the most appropriate representatives of a group involved in negotiations. Court minutes show that the hearings became a forum for an extended discussion of authority within the tribe. Two additional members of the court, who were not judges and were chosen for their expertise, were appointed by the Chief Judge to assist in hearing the application.]

 

Waitangi Tribunal

The Muriwhenua land claims

Wai 45, Doc N2, 28 April 1994

Closing the substantive case for the claimants, counsel asked that the tribunal in its report recommend that the Aupouri State Forest be returned to Maori ownership under the Crown Forest Assets Act 1989. This is the first forest claim where the tribunal has heard almost all the evidence and can properly consider such a recommendation. Further hearings follow in June. The tribunal report is expected later in the year.

 

 

Pepepe land claim

Wai 185, 6 May 1994, CJ Durie

Retired Deputy Chief Judge Ashley McHugh has been appointed to mediate a settlement of this claim concerning around 4 hectares of land in Huntly taken for education purposes (an intermediate school) and allegedly not used for this purpose.

 

 

Exploratory Report on Wai 128 filed by Dame Whina Cooper on behalf of Te Rarawa Ki Hokianga

Wai 128, April 1994. R Daamen

A 140 page report with document bank by a tribunal researcher examining Crown activities in the area from the north side of the Hokianga harbour to Whangape harbour, in the 19th and 20th centuries, covering old land claims, Native Land Court activity, Crown purchases, state forest development, scenic reserves takings, foreshore issues.

 

 

Crown Purchases of Maori Land in Early Provincial Hawkes Bay

Wai 201, A Ballara and G Scott. January 1994

A two volume report accompanied by 4 volumes of primary documents, by claimant commissioned researchers, discussing Crown actions in the purchase of 38 blocks, with references to over 230 blocks. The 202 page introduction contains an analysis and conclusions about the adequacy and appropriateness of Crown actions in relation to purchases generally. The purchase history of each of the 38 blocks is then separately considered.

 

Other Jurisdictions

Te Runanga o Wharekauri Rekohu Inc v The Waitangi Tribunal and others

CP 118/94, Wellington, 12 May 1994, Heron J

An application seeking interim orders restraining the tribunal from hearing claims by Moriori groups. Groups of Taranaki Maori invaded the Chatham Islands in 1837 and killed and enslaved the Moriori population. Later Native Land Court hearings to determine customary title to land in the Chathams awarded 97% to Taranaki Maori on the basis of the "1840 rule", which upheld all conquests prior to 1840. Moriori claims before the tribunal allege, among other matters, that the Crown breached the principles of the Treaty in failing to prevent this result before the Native Land Court, and in failing to respond to Moriori protests about the court determination. They also allege that the Crown responsibility is direct, because the court acted as a "statutory agent" of the Crown. The claims directly attack the court application of the 1840 rule.

Applicants representing descendants of Taranaki Maori with interests in the Chatham Islands sought to prevent the tribunal hearing these claims. The interim orders were sought just days before the tribunal was due to fly to the Chatham Islands to being hearings. An initial submission seeking to prevent any tribunal inquiry was modified, with the applicants seeking merely to restrict the scope of the inquiry to be undertaken. The major ground being that the tribunal could not investigate allegations that the Native Land Court acted as a statutory agent of the Crown, and could not therefore investigate the determinations of the Native Land Court and the application of the 1840 rule. Such an investigation might threaten holders of freehold title who traced that title back to Land Court determinations. The tribunal should not investigate matters which were essentially a dispute between tribes and not about Crown actions. The motive behind the Moriori claim was a desire to boost their entitlement to fishing quota.

Held: that the tribunal should proceed with the inquiry:
- the Maori applicants did not question that Moriori were Maori in terms of Tribunal jurisdiction to hear claims of Maori;
- s6 Treaty of Waitangi Act 1975 gives the tribunal a broad jurisdiction;
- allegations in the Moriori claim related mainly to Crown actions and largely circumvented direct complaints about the workings of the Native Land Court;
- "procedural commonsense" suggested that the Court should not direct the tribunal not to hear any particular sort of evidence in advance;
- historical background to the claims would be an inevitable topic in any investigation undertaken. There was no practical way of "ring fencing" tribunal jurisdiction in advance of an inquiry;
- the tribunal had shown itself well aware of the jurisdictional issues that might arise (tribunal memorandum quoted noting jurisdictional issues and the tribunal powers to defer or end its inquiry on particular issues if this was warranted);
- as to inter-tribal disputes: if the Crown had in the past treated one group differently to another that may be the subject of a finding and recommendations;
- motives are generally irrelevant where statutory rights are being exercised;
- a proper investigation could not avoid discussion of what the Native Land Court did. Without deciding the issue, there would seem to be a "strongly arguable case" that the actions of the Land Court were not the actions of the Crown. The statement of claim was at present "unhappily worded" in this respect. "I am quite confident the argument relating to the separation of the powers and the functions of the Court as opposed to Parliament will be apparent enough to the Tribunal and will no doubt be a consideration when or if the Tribunal makes recommendations."

Commenting on the procedure adopted, the applicants were criticised for raising fundamental questions of jurisdiction by way of informal and unilateral letters to the tribunal. The onus was on the applicants seeking to challenge jurisdiction to request a formal hearing before the tribunal on the matters at issue.

[ed: as noted in an earlier Review (March 1994), Whanganui River claimants have asked the tribunal to "review" the Native Land Court on the basis of a 'Treaty test' rather than a strictly legal one (although how these differ is not specified in detail), and make findings accordingly. The issue has constitutional importance since it goes to the separation of powers, as Heron J has mentioned in this case. The outcome may not be as straightforward as his Honour suggests. The tribunal in it's Te Roroa report (Wai 38, 1992) said that the Native Land Court was an agent of the Crown (p153-154). Another example is the period of the Maori Land Boards after 1900, where the functions of Native Land Court judges were virtually indistinguishable from their role as presidents of those boards.]

 

 

Quarantine Waste (NZ) Ltd v Waste Resources Ltd & Another

CP 306/93, Auckland, 2 March 1994, Blanchard J

Waste Resources Ltd operate an incinerator at Auckland International Airport to dispose of waste from aircraft. They sought a consent to use its excess capacity to incinerate waste from outside the airport. This was granted by the local council, subject to certain restrictions, and without notification or hearings under s94(2) of the RMA (where the consent authority is satisfied that the adverse effect on the environment will be minor, and written approval has been obtained from all persons the authority thinks may be adversely affected). Quarantine Waste brought an application for judicial review of that decision.

Among other matters, it suggested that the council had not taken into account Maori concerns because it had not consulted directly with Maori groups. Further evidence at the hearing showed that Waste Resources was involved in ongoing consultation with local Maori interests about the incinerator, particularly in relation to the destruction of medical waste and body parts. There were no concerns expressed about the consent and a kaumatua worked at the incinerator site. The council was aware that the Airport Authority (joint owner of Waste Resources Ltd) was in "continuous consultation" with the Maori about airport developments and Waste Resources advised the council that consultation had occurred about this consent. The council considered this indirect consultation adequate, and also thought there were no matters in this consent which needed to be raised with Maori interests.

Held: on the matter of consultation, the statutory and Treaty obligation of consultation with Maori is placed on the consent authority, not on an applicant for a resource consent. Section 7 (s8 surely?) imposes a duty on the consent authority to be on inquiry - Gill v Rotorua District Council (1993) 2 NZRMA 604. In other circumstances, there would be "very real qualms" about "second hand consultation", which carries the potential for distortion by the applicant of Maori views. In this case, the failure to directly consult did not lead to the council failing to take into account a relevant factor.

[ed: This case endorses the view that territorial authorities must take an active approach to consultation and cannot leave the issue to applicants for resource consents. The case does not directly address the issue raised in the Hanton case (Planning Tribunal A10/94) that consent authorities would be seen to be biased by actively consulting Maori prior to deciding on a consent. The correct approach may be that suggested in the Rural Management case (W35/94), reviewed below.]

 

 

Rural Management Ltd v Banks Peninsula District Council

W 35/94, 5 May 1994, Treadwell J, with commissioners Johnson & McIntyre

The appellant had taken over a subdivision scheme begun some years prior to the passing of the RMA. A right to discharge sewage into the sea was cancelled by the advent of that Act. Under s372, a ministerial directive had been issued that sewage discharge directly into the sea without passage through soil or wet land was a restricted coastal activity. The cultural sensitivities of Maori were the justification for the reference to passage through soil. Applications for restricted activities required a report and recommendation from the relevant regional council to the Minister of Conservation, who, as the consent authority, made a final decision. The tribunal considered in this case appeals against the regional council report recommending the grant of a right to discharge sewage into the sea after treatment, including passage through sand filters. Among other issues, the tribunal considered concerns expressed by local Maori about the physical and spiritual implications of the sewage scheme, and an alleged lack of consultation.

Held: the ministerial directive was indeterminate, in particular leaving uncertain whether passage of sewage through 'soil' included sand filtration. Maori objections should not prevent the sewage discharge proposal proceeding. Effluent would be treated to a quality where kaimoana would be unaffected physically. It would pass through several treatment stages, including sand filters, before discharge into the sea. While appreciating the Maori view that discharge into the sea offends against mana, and that land based systems are therefore preferable, nearby land based systems were experiencing problems (eg overflow into streams), giving some cause for alarm.

As to the responsibility of local Maori as kaitiaki, kaitiakitanga is not a concept restricted to Maori. The council in recommending the sewage scheme was guarding and improving taonga. The scheme should proceed provided it remained under council and not private control. Regarding consultation with the developers, earlier Maori acquiesence, after discussions, in a long outfall proposal was noted. While failing to attend consultation meetings arranged by the developers could be a way of signifying disapproval, there was no breach of a Treaty duty to consult if the Maori side withdrew in this way without giving reasons.

Regarding consultation with the council, a consent authority should not consult unilaterally with one party. The Treaty did not set aside the fundamental principle against the appearance of bias. Ngatiwai (A 7/94) and Hanton (A3/94) decisions support this view. Gill ((1993) 2 NZRMA 604) and Haddon (A77/93) should be read in the context of their own facts. However, consent authorities can refer an application back to parties before hearing for further consultation. Officers of the consent authority can consult prior to hearing, but for the purpose of relaying information only.

[ed: The danger of loosely drafted provisions in the resource law area is highlighted. This particularly affects Maori concepts in resource law (see comments on the Coastal Policy Statement reviewed below). Traditional views about the spiritual impact of sewage discharges into the sea face an interesting dilemma where such systems are less polluting than land based systems, and use sand/soil filtration processes.

There now appear to be differing opinions over the approach to "kaitiaki". Most tribunal decisions have assumed it is a Maori-only concept. In NZ Rail Ltd & Ors v Malborough District Council (C36/93) the tribunal doubted a submission suggesting it might apply to non-Maori. This view seems to be supported by the coastal policy statement comment that "tangata whenua are the kaitiaki of the coastal environment" (see below), and the lengthy discussion of the term as a Maori concept in the board of inquiry report on the statement (Report and Recommendations, February 1994, under "Definitions").

The suggestion that council planning officers undertake consultation and relay the results to the council may resolve the apparent differences between the Gill/Haddon and Ngatiwai/Hanton decisions. The comments of Blanchard J in the Quarantine Waste case (reviewed above) suggest however that the consultation issue may not yet be finally settled.]

 

 

Te Tii (Waitangi) A-Marae & Others v Northland Regional Council & Another

A 25/94, 31 March 1994, Sheppard J

A land-use consent was granted to a local council to establish a cemetery. Submissions from local Maori were considered at the hearing. Submitters were notified of the decision and of the 15 day period in which to lodge appeals. The applicants sought a waiver of the time restriction on filing an appeal. The council had purchased the land for the cemetery relying on the lack of appeal and argued that it would be unduly prejudiced were the time requirement waived.

Held: rejecting the application, that s281(2) and (3) RMA required the tribunal to be satisfied that no party would suffer prejudice greater than that which might be reasonably expected and unavoidable if the waiver were allowed. A capital commitment had been entered into so that the council would suffer considerably more than just the delay were the waiver given.

 

General

Results of the Maori Option

Minister of Justice 22/4/1994, Government Statistician 4/5/1994

There will be 5 Maori seats under MMP. The Maori option increased the Maori roll from 104,414 to 136,708 (by 31%), there now being more Maori on the Maori roll than the general roll. The Auckland region has the largest Maori electoral population (63,053).

 

 

Draft Minerals Programme for Petroleum

May 1994, Energy & Resources Division, Ministry of Commerce

This document outlines government policy for managing petroleum, a Crown-owned mineral under the Crown Minerals Act 1991, throughout NZ, including the seabed to the 200 mile limit. The CMA states that persons exercising functions under the Act shall "have regard" to the principles of the Treaty. The draft suggests this requires that the Crown act reasonably and in good faith, make informed decisions, and consider if any decision will impeded the settlement of outstanding Maori grievances. At the request of an "iwi" (a term which is not defined), designated areas of land of particular importance to the mana of the iwi may be excluded from the programme (s15(3)). No such requests have yet been received.

It is proposed to allocate rights to exploit petroleum, in the main, via "Petroleum Exploration Permit Block Offers". This involves competitive tendering for permits which would give the right to explore defined areas or "blocks". Maori will be consulted before any particular block offer is made and will be given not less than 1 month to comment. Again, "iwi" may request that areas of particular importance to their mana within a proposed block be excluded from an offer. Details are given of the types of matters the Minister would consider in determining whether to exclude an area (para 3.13). These include the existence of a claim to the Waitangi Tribunal, iwi management plans for the area, whether other legislation already places protection over the area eg resource management and historic places legislation.

Seven hui, including one national hui, were held in 1992 to consider Maori viewpoints on minerals programmes generally (notice of this draft must be sent to "all iwi" (s16(1)(b))). Submissions must be filed with the Ministry of Commerce by the 11 July 1994.

[ed: there is dispute about the Crown nationalisation of petroleum in 1937. In the Taranaki claims before the Waitangi Tribunal, evidence has been produced that Maori politicians raised Treaty issues before the 1937 legislation was passed. The requirement for officials to "have regard" to the principles of the Treaty (CMA s4) can be compared to the stricter requirement on authorities to "take into account" Treaty principles under the Resource Management Act 1991 (s8). There remains the perennial problem of just what constitutes an iwi and who has the authority to seek the exemption of areas from minerals programmes and permits. The draft interprets "iwi" as "tangata whenua hapu and iwi" - no doubt deriving assistance from definitions in the RMA (s2(1) "tangata whenua", "iwi authority", "mana whenua"). Maori submissions involving sensitive issues receive some protection under CMA s17(7) which provides that notwithstanding the Official Information Act 1982, the Minister may refuse to make information in submissions available if satisfied that a serious offence to tikanga Maori or disclosure of the location of waahi tapu might result, and this consideration outweighs the public interest in making the information available.]

 

 

NZ Coastal Policy Statement 1994

5 May 1994, Department of Conservation/Te Papa Atawhai

This is the final statement, to which regional policies and regional and district plans must conform, affecting land and sea areas below high water springs, and the land backdrop to the coast. A board of inquiry investigated the draft and received submissions. Large parts of the draft were reworded. Almost all of these changes appear to have been incorporated. Points of interest:

- "tangata whenua are the kaitiaki of the coastal environment" (General Principle 9);
- a requirement that, in relation to identified "characteristics" of special value to tangata whenua (ie waahi tapu and the like) local authorities consider delegation of management to iwi authorities, or a special committee of the local authority including iwi representatives (under ss33 & 34 RMA) (Policy 2.1.3);
- restrictions may be imposed on public access to the coastal marine area where it is necessary to "protect Maori cultural values" (Policy 3.5.1(b));
- in relation to land of the Crown in the marine coastal area, Maori customary knowledge about the coastal environment is to be incorporated in policy statements and plans and in the consideration of resource consent applications (Policy 4.2.2(e));
- discharges of human sewage directly into water, without passing through land, shall occur only where this better meets the purpose of the RMA than disposal on land, and Maori viewpoints have been fully considered (Policy 5.1.2).

[ed: the policy providing for restrictions, where necessary, on public access to the coast to better protect Maori cultural values does not give guidance on the sort of situations in which this policy would apply. The board of inquiry simply referred to s6(e) and s8 of the RMA. It will perhaps dovetail with forthcoming fishing regulations providing for Maori management of some coastal areas.]

 

 

Funding Growth in Tertiary Education and Training

Report of the Ministerial Consultative Group, 12 May 1994.

A report considering how the substantial and continuing growth in tertiary education should be funded in the face of ongoing fiscal constraints. 71,000 places in tertiary education were funded in 1985 costing $580 million, this figure was 132,000 places costing $1986 million in 1993. The group recommended consideration of 2 funding options, A and B (2 members abstaining), both including rises in private contributions.

Maori participation in tertiary education is growing but at a rate substantially lower than for the rest of the population. In 1993 there were 18,527 Maori in tertiary courses (9.6% of total tertiary places). Of these, 10,573 were full time students. Compared with non-Maori, Maori students were more likely to be in polytechnics taking full-time courses, or, if at university, taking part-time courses. They were less likely to enter a formal assessment process, tended to sit fewer papers, and on average were awarded lower grades. The growing Maori population is experiencing significantly higher rates of unemployment than non-Maori (25% vs 10%) and lower rates of education generally (50% having no school or tertiary qualification, 31% for non-Maori). Maori submissions were noted which stressed; a recognition that the history and politics of education affect Maori participation (eg ethnocentrism), greater Maori control in education was required, student fees and loans act as a considerable disincentive, and special funding assistance is required.

Option A notes that all predictions for tertiary participation after 1994 show growth will not be as great as from 1990-94, and argues that maintaining and building on recent reforms is the best course. The appropriate funding split is 75% public to 25% private contribution. No specific measures for greater Maori participation were noted.

Option B similarly notes modest growth in numbers of 18-24 year olds in the coming decade, but seeks to address the needs of those presently unskilled. Financial barriers should not deny access to education. Fairness demands that those who benefit most should bear some costs. By the year 2000, students whose lifetime earnings exceed a threshold level should make a contribution not exceeding 50% of tuition costs. This greater contribution will allow $100 million per annum to be reallocated to pre-school and compulsory education and $200 million over 6 years to tertiary education and training of under-represented groups.

The two dissenting members proposed that growth in tertiary education be funded from general taxation, present costs to students should not be increased, the discouraging effect of fees increases should be considered.

 

 

Employment. The Issues

Prime Ministerial Task Force on Employment, May 1994

The first report of the taskforce resulting from the joint party agreement to address employment issues. Contains an uninspiring analysis of the unemployment situation, and the assertion that "The Treaty of Waitangi is the founding document of our nation. Article III in particular guarantees the rights and privileges of citizenship to all New Zealanders". The extraordinarily high rate of joblessness among Maori does not receive separate analysis. Submissions are now sought, and an Options paper will follow in September 1994.

 

 

Report of Te Ohu Kai Moana/Treaty of Waitangi Fisheries Commission for the year ended September 1993

Tabled on 29 March 1994

The first report of the reconstituted commission formerly known as the Maori Fisheries Commission. Outlines activities of the new commission in the period to September 1993 including work on a new fisheries act, which is ongoing.

[ed: Te Ohu Kai Moana recently announced it has been unable to begin allocation of fishing assets directly to iwi in 1994 (consultation is ongoing), and it will again lease its wetfish holdings for the 1994/95 season. Iwi have until 10 June 1994 to comment on lease proposals, including inshore wetfish quota being assigned on the basis of coastline, and deep-water quota being assigned on a combined coastline (50%) and population (50%) basis (Panui 20 Haratua 1994). The Minister of Fisheries has announced the scrapping of a proposal to impose a catch levy, which would have been opposed by Maori as a breach of the Treaty. Instead, fishing operators will pay the costs incurred by government in managing commercial fisheries. How this will be charged to operators has not yet been finalised.]


April 1994 Contents

Maori Electoral Rights

The February issue of the Review commented on the Waitangi Tribunal report on the electoral option. Proceedings have now been issued seeking to judicially review the Crown's decision not to provide further funding. The writers have not viewed the statement of claim, but issues of reasonableness and fiduciary obligations stand out as matters for consideration by the Court.

Both the Treaty principles and the Wednesbury principles may call into question the reasonableness of the Crown's actions. On the Treaty based analysis, "vigorous action" should have been taken by the Crown to protect Maori electoral rights. The Treaty approach is, in this context, limited by the lack of statutory incorporation of the Treaty. But, if recent judgments are anything to go by - as Cooke P stated inTe Runanganui O Te Ika Whenua Inc Society & Ors v A-G (CA 124/93) - "the Treaty of Waitangi has been acquiring some permeating influence in New Zealand law ..."

The Wednesbury approach may yet provide the answer. Lord Bridge of Harwich in a case concerning human rights (Regina v Brind [1991] 1 AC 696) suggested that Wednesbury principles permit the courts to ask whether a decision maker could "reasonably" decide that competing public interests justified a restriction on the right in question. Applying that test here - has the Minister of Justice or the relevant decision maker justifiably limited the funding in light of the fundamental constitutional right at risk?

Perhaps this is also a case where the Courts can rule on the fiduciary duty question. Maori cession of sovereignty in exchange for kawanatanga, the historical failure to provide resources to encourage electoral participation and the vulnerable position of Maori due to the Crown's failure, arguably provide a basis for the "fiduciary" obligation to protect Maori constitutional/electoral rights. Recent case law both here and overseas confirm that the fiduciary duty exists. We await the outcome of the judicial review application.

Christian Whata
Sharon Shea
(Kensington Swan)
Disclaimer: This editorial is legal comment of a general nature only.

 

Maori Land Court and Appellate Court

New Deputy Chief Judge

From the 11 April 1994, Judge Norman Smith took up his appointment as the new Deputy Chief Judge of the Maori Land Court. He replaces former Deputy Chief Judge Ashley McHugh who retired on the 31 March 1994, after more than 6 years in that post. Judge Smith has been a MLC judge in Rotorua (Waiariki District).

 

Case Stated re Pakiri R Block and Rahui Te Kuri Incorporation

Case Stated 1/93, 23 March 1993, Deputy Chief Judge McHugh, Smith, Carter

The Maori Affairs Act 1953 s2(2)(f) provides that Maori freehold land, where it is transferred otherwise than by MLC order, is deemed to be General land, unless the instrument of transfer states on its face that the land remains Maori freehold land. Where it is not the intention that the land become general land, a determination by the MLC may later be sought that the land remains Maori land (s30(1)(i)). Section 233 provides that alienations of Maori freehold land are to have no force or effect until the instrument of alienation is endorsed with a memorial stating that the alienation has been noted in the records of the MLC.

These provisions reflect a legislative tension between the desire to prevent unwitting changes to the status of Maori land, while also providing certainty as to title to purchasers acting in good faith. This case stated considered the effect of registration under the Land Transfer Act on these sections. More strongly worded provisions in Te Ture Whenua Maori 1993 were also considered.

Held: s2(2)(f)/1953 means that upon registration of a transfer an irrebuttable presumption applies that the land is general land irrespective of its true status. An order may be sought subsequently under s30(1)(i)/1953 determining the land to be Maori land, but the consent of the registered proprietor would be required before any such order was made. In Re Kopua Deceased [1987] 15 Ruatoria MB 238 and In Re Haumingi 9B2A [1984] 210 Rotorua MB 106 followed, In Re Otorohanga A4A [1984] 63 Waikato MB 246 dissented from. Section 130/1993 however, now provides that the status of land is definitely not affected by registration.

Section 233(1)/1953 affects an alienation only until it is registered under the Land Transfer Act, at which point an indefeasible title is gained. Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 followed (where it was said that s233(1) was a matter of "administrative convenience" and not of "deep legal or social importance"). In Re Estate Mana Hunter (1993) 135 Napier MB 165 dissented from.

Section 126/1993 (District Land Registrar shall not register any instrument affecting Maori land unless it has been confirmed) suggests that where a transfer is registered without confirmation, s81 of the Land Transfer Act 1952 providing for correction of titles would be used to correct the title. This would be so despite previous authority suggesting s81 is for slips or minor errors in the record only.

[ed: a decision with important implications. Does the protection of Maori land through the strongly worded mechanisms provided in Te Ture Whenua Maori 1993 now stand as an exception to the principle of indefeasibility? The High Court decision in the Housing Corporation case was reluctantly followed. Their honours thought it "understandable" in light of the Treaty guarantee of full exclusive and undisturbed possession to Maori of their lands, and specific provisions protecting Maori title in the 1953 legislation, that judges of the MLC should question whether they are required to follow the principle of indefeasibility. They also noted that since the High Court decision "a feeling has arisen among some Judges that the Land Transfer Office has adopted a somewhat cavalier attitude towards Maori land and the protective mechanisms of the Maori Affairs Act 1953." Approval was expressed of procedures being put in place by the Land Transfer Office to ensure compliance with the 1993 Act. If their honours' views about the effect of the 1993 Act on indefeasibility are correct, such compliance now assumes considerable importance]

 

 

 

The Maori Reservations Regulations 1994

SR 1994/57, commencing 23 May 1994

These revise the archaic regulations of 1963 which were concerned largely with health and sobriety (eg trustees to prevent prolongation of hui or tangi which might become a menace to health). The new regulations concentrate on administrative structures and procedures and accountability. For marae reservations a separate charter governing the administration is to be drawn up (cl7). A specific power is provided for trustees to employ advisors to assist with administration (cl8(e)). In a small change to perhaps better reflect custom, tangi hanga are specifically exempted from the requirement that prior written authorisation of the trustees is required before major activities are held on the reservation (cl9(2)).

 

 

The Maori Incorporations Constitution Regulations 1994

SR 1994/60, commencing 1 June 1994

Revises the old regulations of 1969 to bring them into line with the 1993 Act. A notable change is cl27 under which shareholders by special resolution may fix a specified number of shares as a "minimum share unit", and shareholders may not engage in transfers which would cut into their minimum unit. Trading is forbidden in numbers of shares below the number set as the minimum unit. The exception is where a transfer consists of all the transferor's shares and they are offered to an existing shareholder or the incorporation or trustee on behalf of a putea or whanau trust.

In keeping with the times, cl26 permits a "teleconference" meeting of committees of management. Described as "The contemporaneous linking together by telephone or other means of instantaneous audio (or audio and visual) communication" of a quorum of the committee, it includes overseas telephone links. All committee members entitled to be at the meeting are entitled to a telephone or other link, and all present must be able to hear every other member throughout the meeting.

These regulations revoke the Maori Incorporations Regulations 1969/49 and amendment 1976/108.

 

 

Te Ture Whenua Maori Amendment Bill 1994

This contains numerous "fine tuning" amendments, but also more substantial amendments concerning some dealings with Maori land. Several clauses giving greater flexibility to the operation of incorporations. Clause 14 clarifies the intention of the 1993 Act that corporations may acquire land purely for investment purposes, in which case it is held by the incorporation rather than the shareholders and may be dealt with as general land. Clause 16 provides that incorporations may by special resolution make their own constitutions, subject to general guidelines by regulation, rather than having the form absolutely prescribed by regulation. They may also adjust their overall shareholding (cl17).

Leasehold interests in Maori freehold land under cross-leases are to be treated as a beneficial interest in Maori freehold land (cl2 & 4). A certificate of title in respect of a cross lease may be issued (cl4). This is an exception to the rule that certificates may not issue for undivided interests in Maori freehold land).

Matters where a certificate of confirmation from the Registrar only is required are to be adjusted. The transfer or discharge of a mortgage now requires full confirmation, but alienation of a sublease and renewal of a sublease or licence are to be matters where only the Registrar's confirmation is required.

 

 

 

 

Waitangi Tribunal

Ngati Motai lands claim

Wai 254, 31 March 1994, CJ Durie

Tribunal member John Kneebone has been appointed to mediate this claim concerning, inter alia, an old meeting house site called Renga Renga. The appointment of a mediator is made under clause 9A of the second schedule of the Treaty of Waitangi Act 1975. The mediator is required to use his best efforts to effect a settlement, but if this is not possible, to report back to the tribunal on issues agreed and those unresolved. Other matters referred to a mediator have included the Takaporewa (Stephens) Island claim (Wai 91), a claim to lands at Waitomo (Wai 51), and a claim over the Waikareao estuary roadway proposal in Tauranga (Wai 86).

 

Other Jurisdictions

Cook Island Community (HB) Inc v Hastings District Council and T Kaui & G Ruwhiu

W19/94, 31 March 1994, Treadwell J, with commissioners Bishop & Rowan

Two Maori applicants sought to establish a funeral parlour business in a suburb with a large Maori population, to cater in an appropriate way for mainly Maori funerals. This was an appeal against a decision by the council granting permission to construct the parlour opposite a Cook Island community centre which had been in operation for 14 years. The major objection was that Cook Island customs of respect of the dead would restrict activities (weddings, birthdays, cabarets, sports, cultural nights etc) in the community centre whenever bodies were present in the proposed parlour. For the Maori applicants it was argued that s6 (Maori relationship with their ancestral lands a matter of national importance) and s8 (principles of the Treaty to be taken into account in decisions) should be weighted against the objections of the appellants. The application had support from local Maori organisations and one of the applicants was a descendant of an original owner of the land in the area of the proposal.

Held: allowing the appeal, that Maori concerns did not take precedence in this case. Another location could be used. It was further commented that any other decision would result in "irreparable cultural divisiveness unacceptable in our multi-cultural society and contrary to the thrust of the RM Act." Although the appellants had been uncompromising in their approach, beliefs if sincerely held "are not capable of compromise."

 

General

Naming of Maori Electorates

Replies Supplement 22 March 1994

The government is seeking legal advice whether there is power under the Electoral Act 1993 to name the Maori electoral districts.

[ed: The 1993 Act provides at s40(1)(a) that for general electoral districts, a representation commission, after due inquiry, is to report the names and boundaries of districts to the Governor-General. For Maori electoral districts, the Act provides that boundaries only are to be reported on (s45(9)(a).

Also of interest is the presence of the Chief Judge of the MLC on the independent Electoral Commission, a body empowered to maintain the register of political parties, refusing registration where a proposed party name is offensive or misleading. The Commission is also to promote public awareness of electoral matters and consider and report on any electoral issues as it sees fit (see Electoral Act 1993 ss10A-E and Part IIA inserted by the Electoral Amendment Act 1993). Other members of the Commission are the Secretary of Justice, and the Hon Justice Wallace (President). The Commission will begin work as soon as its last member is appointed. Arrangements are in train for this (see Replies Supplement 5 April 1994)]

 

 

The General Agreement on Tariffs and Trade

Concerns about the effect of the recent GATT agreement have been expressed in two main areas; whether the power remains to intervene to ensure provision of services specifically for Maori, and the patenting of important cultural items eg plants, medical practices, and even DNA. The Ministry of Foreign Affairs and Trade/Manatu Aorere (MoFAT) says NZ has made no commitments under the GATT on these issues.

The two documents involved are the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

GATS provides (article 1) that, with respect to sectors covered by the agreement, countries may not discriminate against providers of private services from other countries (the government service sector is entirely excluded from the agreement). Sectors covered in NZ's case include advertising, computers, real estate, services incidental to agriculture, hunting & forestry, audio-visual, education, financial, transport, professional services (eg law, accounting). Sectors excluded include postal, environmental, health & social services, recreational & cultural services, research & development.

There are two specific Maori exemptions in schedules to the agreement. NZ is generally "Unbound for current and future measures ... according more favourable treatment to any Maori person or organisation in relation to the acquisition, establishment or operation of any commercial or industrial undertaking." Under "Audiovisual Services" and the heading "Limitations on national treatment" it is noted that the Broadcasting Commission is required to allocate a minimum of 6% of its budget to Maori programming, and that a Maori Broadcasting Funding Agency (Te Reo Whakapuaki Irirangi) exists. Exemptions are subject to review after 5 years (article 2).

TRIPS provides that nationals of other countries are to receive the same treatment in respect of protection of intellectual property as nationals of NZ, and enjoy equal rights where new advantages or immunities are granted to NZlanders (articles 3 & 4). Article 27 provides that patents are to be made available for new inventions in all fields of technology, but members may exclude from patentability "diagnostic, therapeutic and surgical methods for the treatment of humans or animals" and "plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes". The exemption re plants and animals is to be reviewed 4 years after the agreement comes into force (subparagraphs (a) and (b)). Patentability may also be excluded where commercial exploitation would harm public order or morality. This includes the protection of human, animal or plant life [therefore it presumably covers any DNA patenting].

Implementation of the agreements in NZ requires enactment. The Ministry of Commerce hopes that legislation will be introduced to Parliament in July, coming into effect during 1995.

[ed: Government officials point to the flexibility the Crown in NZ retains in implementing any GATT measures. They also stress that plenty of time is available to discuss any further commitments by NZ which might directly raise Treaty related concerns. Those concerns are increasing. The Waitangi Tribunal has before it a claim concerning, among other things, patent rights over indigenous flora and fauna (Wai 262). The Plant Variety Rights Act 1987 providing for patenting of hybrids is particularly objected to (TRIPS article 27 mentioned above endorses a regime for plant patents). The central issue of how far rights of indigenous groups can be protected in a free market environment is illustrated by the visit this month of Body Shop officials to Rotorua to investigate the possibility of using manuka oil in their product line. That company adopts a consultative approach and seeks to create employment opportunities for indigenous groups. Under GATT free market principles, could the NZ government legislate for such results, and avoid allegations of protectionism? Given the commitment to GATT, would any NZ government have the will to legislate in this way?

There are also benefits of unfettered trade to consider. The agriculture, forestry and fishing industries, which have many Maori participants, will all gain under the GATT. Sealord Products Ltd, for example, has endorsed the latest agreement because of gains achieved for fish exports (Trading Ahead, April 1994 p46)]

 

 

Mana Enterprises

NZ Gazette 1994 p1250

From 29 April 1994, nineteen named authorities running MANA enterprise schemes are subject to ss5-7 of the Maori Purposes Act 1993. Those provisions are designed to make it clear that the assets (mostly loans) which these authorities gained under the MANA enterprise scheme are not assets of the Crown, but rather assets of the authorities themselves (see also 1993 NZ Parliamentary Debates vol 536 p16535. The tax implications are spelt out in IRD Tax Information Bulletin vol 5 No 10 March 1994).

 

 

International Briefs

This section will appear from time to time providing information on indigenous groups worldwide, using material mainly from the Internet newsgroup alt.native. The computer address/source for each item is acknowledged.

 

 

Uprising in Chiapas, Mexico

New Internationalist February 1994, Internet: mail.lmi.org!gwelker

The insurgency which began on New Years Day 1994 in the Chiapas region of Mexico was timed to coincide with the signing of the North American Free Trade Agreement (NAFTA). Indigenous people form the majority of the population in the region. The insurgents were concerned about cheap grain imports under NAFTA which might affect their livelihood, and also amendments to the Mexican constitution allowing foreign ownership of their lands.

 

 

Clinton Invites Indian Leaders to Talks

Internet 14 April: vms.cis.pitt.edu!LMITTEN

Leaders of 545 Indian tribes are being invited to meetings with President Clinton at the White House in late April, and with the Attorney General and Interior Secretary on May 5-6 in Albuquerque, New Mexico. The Albuquerque conference will focus on issues involving the Justice and Interior Departments, including tribal jurisdiction, Indian gaming, religious freedom and tribal courts. The administration has been recently criticized for a proposed 13 percent cut in the 1995 budget for the Indian Health Service which provides medical care to 1.3 million Indians as required by treaties with the federal government.

 

 

Controversial Dam Project in Malaysia

Internet 18 April: jym@remarque.berkeley.edu

The Malaysia government is embarking on a dam building project which will involve clearcutting 80,000 hectares of forest and the forced resettlement of 5000 people. Much of the forest area is claimed by indigenous communities as their Native Customary Land. Indigenous people in Long Geng have already been jailed for their part in demonstrating and blockading logging roads in an attempt to protect their land from other logging projects there. Hydro-Quebec (which includes the Quebec State Government) will serve as a consultant on the dam project.

 

 

Zinc-Copper Mine Proposed near Indian Reserves

Internet 22 April: cls@truffula.sj.ca.us

Exxon Minerals and a Canadian mining company, have entered into a joint venture to mine one of the world's largest zinc-copper sulfide deposits. The proposed mine is to be situated at the headwaters of Wisconsin's Wolf River and adjacent to the Mole Lake Indian Reservation, covering an area of 866 acres, of which more than 10% are wetlands. There is concern that sulfuric mining wastes will harm trout fishing in the Wolf River, wild rice beds on the Mole Chippewa Reservation, and water quality for humans and wildlife.

 

 

Mescalero Apache Nuclear Waste Dump

Internet 21 April: milo@scicom.AlphaCDC.COM

The Mescalero Apache tribe and the Minnesota-based Northern States Power Company signed an agreement last month to negotiate building a temporary storage complex on tribal land in south-central New Mexico. Spent fuel from nuclear power plants would be stored at the site.

 

 

Peruvian Initiative for Conservation

Internet 15 April: perezoso@igc.apc.org

A representative body of the Aguaruna and Huambisa peoples of Peru's northeastern Amazon has recently initiated "Proyecto Ikam Ayamjut" ("Project We Defend the Jungle"), an initiative that links the conservation concerns of Western environmentalists with the autonomous, ecologically sustainable development concerns of Amazonian peoples. The project seeks to establish several scientific centers in Peru's Upper Maranon Basin which will join indigenous groups and Western scientists in research on the ecology of the Amazon in a cooperative mode that emphasizes the value of traditional knowledge, the development desires of it's indigenous people, and the conservation priorities that environmentalists and the indigenous groups share.


March 1994 Contents

Consultation and Resource Management

Several decisions have now been made by the Planning Tribunal concerning consultation with Maori under the Resource Management Act 1991. They suggest the Act is not as clear on this subject as it might be. In the most recent decision, Hanton & Ors v The Auckland City Council & BP Oil NZ Ltd (A10/94, 1 March 1994, reviewed below) Judge Sheppard held that, for councils, there was no obligation to consult with Maori interests before hearing a resource consent application. His reasoning, in part, was that a council, not being the Crown, could not take on the Treaty duty of consultation which had been spelt out for the Crown by the Court of Appeal. Also, a council would fail to act judicially as the RMA intended if it consulted with one section of the community prior to a hearing. Judge Sheppard did not rule out consultation in special cases, although it is hard to see how the argument of fairness would not apply in every case.

In an earlier decision, Gill v Rotorua District Council ((1993) 2 NZRMA 604) the tribunal ruled that consultation may occur. Judge Kenderdine stated that the council in that case by doing no more than passing on information had not satisfied its duties to Maori under the RMA. No distinction was made between Crown and council obligations. It was assumed that Crown obligations of consultation were now laid on councils by the Act. The duty under the Act, Judge Kenderdine said, is a high one, requiring special regard to be had to Maori interests. The Act itself imposes a "duty to be on enquiry" on councils. Judge Sheppard, distinguished this decision on the ground that a "special background of Maori significance" existed which the council could not have been unaware of. In doing this he followed a decision inNgatiwai Trust Board v Whangarei District Council & Ors (A7/94, reviewed in the previous issue)). But again, if a council would be acting unfairly to consult just one section of the community, is this distinction valid? Judge Kenderdine did not consider a further point raised in Ngatiwai and Hanton, that the RMA provides specifically for consultation with Maori in some contexts (eg the making of policies and plans), but not in decisions over resource consents. Is this because Parliament foresaw precisely the concern about fairness now raised? Perhaps the bigger issue however, is how far the RMA intended for Maori to be given a special status in resource management. Further decisions will be awaited with interest.

 

Maori Land Court and Appellate Court

In re Kotene Pihema

53 Tauranga MB 105, 18 February 1994, Carter J

The applicant bought a hayshed and had it relocated onto land under a s438/1953 trust of which he was chairman. The relocation was at the cost of the trust. It was used for a training programme. He sought an order under s18(1)(a)/1993 determining ownership.

Held: the building was a fixture to land (the intention was that it remain on the land). Consequently legal ownership was with the shareholders in the land. Section 18(1)(a) allows consideration of equities. The court considers matters such as evidence of exclusive occupation of a building, consultation with other owners, acceptance by other owners that a building belongs to the applicant. Court jurisdiction could be said to flow from tikanga Maori where families built homes on tribal lands. In Re Tikouma No 5 Block (92 Hauraki MB 1) was considered (where lessees who were major owners in a block were held not to have ownership of buildings erected and exclusively used by them). No evidence suggested any equitable ownership remained in the applicant in this case (the trust and not the applicant paid the relocation costs, there had been no consultation with trustees, a conflict of interest would exist if ownership of the building remained in the chairperson after his unilateral decision to use trust money to relocate it).

 

 

The Maori Land Court Rules 1994

SR 1994/35, effective from 18 March 1994

The new rules attempt to comprehensively codify Maori Land Court practice (as was envisaged by s95/1993 which replaced the much briefer s25/1953). For example, Part III dealing with Notification of Applications sets out in 19 detailed clauses the procedure for drawing up the Panui (the old rules dealt with notification in one clause). Similarly, Part V details the Disposal of Proceedings over 13 clauses. A new Part XIX is added concerning the making and maintenance of the records of the court.

Other features include details of the powers of the registrar to conduct uncontested cases and inquire and report on proceedings generally where the court refers them (clauses 46-51 and 87). Particulars of applications to form each of the 5 new types of trusts are included under Part XIII. Clause 15 provides that applications may be in the Maori language. Of particular interest are the rules dealing with the preferred classes of alienees who must be given first right of refusal to proposed alienations of Maori freehold land. The rules provide for potential members of the class to be notified by a combination of newspaper notices, personal service and any other directions of the court (clauses 112 and 117). The new rules replace the rules of 1958/162 and amendments.

 

 

Regulations under Te Ture Whenua Maori Act 1993

Hon J Luxton reply to Hon K T Wetere, Replies Supplement 22 March 1994

There are 5 sets of regulations required for Te Ture Whenua Maori Act 1993:

- Fees Regulations came into force prior to 1 July 1993
- Maori Incorporation Regulations will be finalised before the end of March 1994
- Maori Reservation Regulations have been drafted and remain to be finalised
- Powers of Assembled Owners Regulations; draft awaited from Parliamentary Counsel Office
- Maori Occupational Orders Regulations; draft awaited from Parliamentary Counsel Office

 

Waitangi Tribunal

Whanganui River Claim

Wai 167, A77. Opening Submissions of Counsel for Claimants, S Elias QC, 18 March 1994

Under "preliminary issues which need resolution", counsel challenged the view put forward by the Crown that the tribunal may only examine actions or policies of the Crown and consequently:

- has no function to determine whether the common law is in accordance with the principles of the Treaty (in this claim the issue being the application of the ad medium filum rule to the Whanganui river);
- has no jurisdiction to make recommendations in relation to the actions of a regional council (the issue here being a proposed regional plan affecting the river).

It was argued that these views are wrong in law (despite earlier tribunal reports stating that courts and local authorities do not act "by or on behalf of the Crown"). The focus should not be on the body of law discussing the liability of the Crown, but rather on the transfer of the whole bundle of sovereign rights under the Treaty of which the power to do justice is a significant part. The status of local authorities as delegates is clear in the legislation under which they operate. The tribunal has a distinct function and does not review the courts, but rather applies a Treaty test as opposed to a legal one. It should not therefore defer to bodies exercising entirely different functions. It would be absurd to think that it had power to review legislation, to which common law is subordinate, but no power to review common law itself. The tribunal was invited to state a case to the High Court if it had any doubts on these points.

 

 

Waikura lands claim

Wai 422, 28 February 1994, CJ Durie

Privately-owned land which was central to the area under claim had come up for sale. The claimants had raised funds to purchase the land, but sought an urgent hearing and recommendation to have the Crown assist in the completion of the purchase. The tribunal was unable to give the matter urgency but suggested to the Minister of Maori Affairs and Justice that the land might be bought and the Crown share held pending a final determination of the claim by hearing or negotiation. The tribunal was aware of the sensitivities involved in the acquisition of private land for such purposes, but pointed out that there was international precedent for such private land purchases in the buy-back scheme operating in New South Wales to re-establish the landholdings of dispossessed aboriginal groups.

 

 

Current Membership of the Waitangi Tribunal

Hon J Luxton reply to Hon D Caygill, Replies Supplement 22 March 1994

The current members of the Waitangi Tribunal and the expiry dates of their respective terms of office:

Name Present term expires
Chairperson
Chief Judge Edward Durie: not applicable
Members
Right Reverend Manu Bennett: 30 June 1994
Mary Boyd: 30 June 1995
Brian Corban: 30 June 1996
John Ingram, CBE: 30 June 1995
Professor Sir Hugh Kawharu: 30 June 1994
John Kneebone, CMG: 30 June 1995
Joanne Morris, OBE: 30 June 1996
Professor Gordon Orr: 30 June 1996
Pamela Ringwood: 1 September 1996
Professor Keith Sorrenson: 30 June 1995
Associate Professor Evelyn Stokes: 30 June 1995
Georgina Te Heuheu, QSO: 30 June 1995
Makarini Temara: 1 July 1996
Keita Whakato Walker: 1 July 1996
Hepora Young, JP: 30 June 1995

 

Other Jurisdictions

Wikeepa v Police

AP 62/93, HC Tauranga. 2 February 1994. Hillyer J

This was an appeal against convictions for resisting arrest and assaulting a constable on the grounds that the law prohibiting such actions did not bind the convicted because of the Treaty of Waitangi. In a brief oral judgment the appeals were dismissed, the court holding that it could not sustain any submission that the Treaty prevented citizens, Maori or Pakeha, from being subject to the law.

 

 

JJ Hanton & Ors v The Auckland City Council & BP Oil NZ Ltd

A10/94, 1 March 1994, Sheppard J

This was an appeal against a consent to build a service station, to be located on former Auckland Area Health Board land. Ngati Whatua o Orakei Trust Board (owning adjacent land) raised several objections including the effect of the proposal on the heritage value of the land and Maori links with their ancestral land, and that the land was regarded as part of the public estate.

Held: there was no evidence of any "particular relationship" of Maori to the site, or of any effect of the proposal on heritage values or Maori links to ancestral land. As to claims to the Waitangi Tribunal in the area, they are general, were lodged after the land was sold by the Area Health Board, had not been heard or reported on by the tribunal, and the land is subject to the section preventing the tribunal from recommending the purchase of private land by the Crown. The private status of the land at the time the application for a consent was lodged, the fact the council knew of no waahi tapu or archaeological features on the site, nor any special effect on adjacent land meant there was no duty on the city council to separately notify the trust board.

Further, there is no obligation on a consent authority to consult Maori over a resource consent application:

- s8 requires consent authorities to take into account the principles of the Treaty, but not themselves to be subject to obligations which fall on the Crown (where the consent authority is the Crown the situation is different eg Haddon case);
- consent authorities are not deciding on the disposal of Crown assets in a manner which might affect the resolution of Treaty claims. Court of Appeal comments on Treaty principles are therefore not directly applicable ;
- the RMA provides a detailed code in which Maori are included (eg Maori must be consulted about policies and plans), but omits any express duty of consultation for consent applications;
- consent authorities would fail to act judicially by consulting with one particular community interest prior to public hearings.

Tribunal decisions in Gill v Rotorua District Council ((1993) 2 NZRMA 604) and Haddon v Auckland Regional Council (A77/93, 11 August 1993) were distinguished, and the reasoning in Ngatiwai Trust Board (A7/94, 11 February 1994, see February issue) adopted.

[ed: on the basis of this decision, the position when considering Maori interests in resource consents now seems to be as follows: If the Crown is the consent authority, there is usually a duty of consultation (Haddon and Hanton). In other cases, there is no obligation to consult. Council planning officers in preparing reports on applications should carefully consider if there are Maori interests (Ngatiwai). Something more than a general Maori interest in the land affected must be evident (Ngatiwai and Hanton). All consent authorities likewise should carefully consider if there are Maori interests when requiring information or further information to make decisions and in deciding who to notify (Ngatiwai). Consent authorities in finally deciding on an application must have regard to any Maori interests (Ngatiwai). Claims by Maori to the ownership of resources are not issues planning authorities can consider under the RMA (Haddon).]

 

General

Press Statement from Minister of Fisheries

3 March 1993

Regulation 27 of the Fisheries (Amateur Fishing) Regulations will be repealed and replaced with comprehensive Maori traditional fishing regulations. The current regulation was always intended as an interim measure until more detailed regulations were passed. Over 120 submissions have been received on proposed new regulations with equal numbers from Maori and non-Maori. The new regulations are expected to be in place by the middle of the year.

[ed: Presently under regulation 27, the Ministry of Agriculture and Fisheries (MAF) has approved generally takings for hui or tangi held on a marae. Kaumatua approval is all that is required, and a written report on what is taken must be supplied to the nearest MAF office within 2 weeks of the taking. However for takings for hui or tangi at venues other than marae, and for traditional non-commercial purposes other than hui or tangi, only kaumatua or Maori authorities nominated by Maori and approved by the Director-General of MAF can give approval. A written report is again required. Special conditions exist for rock lobster (MAF letter of 3 November 1993).

The more comprehensive regulations under discussion would provide a regular system of appointment of kaitiaki and spell out their powers, probably including the power to make bylaws to manage non-commercial fisheries. They would also provide for the establishment of mataitai reserves.(Discussion document, Treaty of Waitangi Fisheries Commission)]

 

 

Report and Recommendations of the Board of Inquiry into the NZ Coastal Policy Statement

Department of Conservation, 14 February 1994

This was a report required under the RMA where the Minister has proposed a NZ coastal policy statement (NZCPS). The board heard and received public submissions on the proposed statement. Among the changes recommended:

- Kaitiakitanga is inadequately expressed in the English used in the RMA. This has serious implications for the successful implementation of the NZCPS. While stressing that some terms could only be understood in Maori, a fuller definition in English of the concepts behind kaitiakitanga was provided;
- a principle of the plan should be that "the tangata whenua are the kaitiaki of the coastal environment" (new clause 12);
- the protection of features of significance to Maori should be in accordance with tikanga Maori which may involve non-disclosure of locations (chapter 2);
- where special features are identified local authorities are to consider the transfer of management functions to iwi authorities and/or delegation to a committee of the local authority comprising representatives of the tangata whenua (chapter 2);
- "papakainga housing" to be provided for "in appropriate places" and redefined to include all types of "residential occupancy on any ancestral land owned by Maori" (policy 3.2.7);
- the policy providing for the Minister to anticipate Treaty claim settlements by providing for Maori only uses in parts of regional coastal plans should be deleted as ultra vires the RMA (policy 4.1.1);
- the lack of funding for Maori for the regular consultation which the proposed statement requires, needs to be addressed;
- a set of working guidelines on Treaty issues should be drawn up for those exercising functions and powers under the RMA;
- a special Maori task force, separately funded, and comprising equal numbers of Crown/Maori appointees, should be established to oversee all Department of Conservation work in relation to Maori.

The view of the NZ Maori Council, that the proposed statement and the RMA did not provide rangatiratanga as envisaged by the Treaty and that the consultation process should begin anew, was noted. It was hoped that the proposed task force might address these concerns. Members of the Board of Inquiry were Arnold Turner, Dr Margaret Mutu, Denis Nugent, Colin Mcnab, Maui Solomon.

 

 

Maori Claims. How to Research and Write a Report

Jane Tucker. Waitangi Tribunal occasional publication 1/1994. 43pp

A guide to research for claims before the Waitangi Tribunal. It is a compilation of information provided in a 13 day introductory course piloted in 1991. The booklet contains information on research planning, finding sources, note taking and writing up a final report. Copies are available from the Waitangi Tribunal.

 

 

Extract from address of Hon JHB Bolger to Newspaper Publishers Association Annual Conference

Blenheim, 16 March 1994

Let me answer the question raised by the Leader of the Labour Party - will a move to an elected head of state affect the obligations that flow from the Treaty of Waitangi. My clear view is no.
The obligations that flow from the Treaty for all practical purposes have been and will be given effect by the elected Government - and that will continue.
I am pleased to see Dr Robert Mahuta the chief adviser to the Maori Queen taking a very sensible view of the matter by saying he has long expected such a move and suggesting that "Progression from a relationship with the Crown to a republic may be part of the process" of reconciling past wrongs.
On the question of having the final Court of Appeal in Wellington rather than in London we must first satisfy ourselves that the current appeal processes are adequate - or take steps to make them so.
That shouldn't take forever.
We really don't want issues relating to unique New Zealand cases - such as the Treaty of Waitangi - dealt with in a distant court.

 

 

Law Commission appointment

Waitangi Tribunal member Joanne Morris has been appointed to the Law Commission.

 

 

Te Ture Whenua Maori Amendment Bill

This bill was introduced into the House on 29 March 1994, given its first reading, and referred to the Maori Affairs select committee (more details will be provided next month).

 

 

Extract from Maiden Speech of Hon Tau Henare, MP Northern Maori

15 March 1994

Maori in the North have had to struggle with some bleak realities. ....
The reality of knowing that your forebears, a proud people of substance and energy, witnessed the gradual erosion of all their rights guaranteed by the Treaty as laws were enacted to asset strip the Maori people. In the Northern Maori Electorate examples of this are legendary.
The reality of listening to politicians telling New Zealand that they are preparing to settle Treaty Claims while Maori know that no serious attempt is being made to even identify what those claims actually are and what the cost has been to Maori.
The reality of knowing that Maori culture and heritage today is up for interpretation and definition by those administrators of the law who deal with such words in legislation as tangata whenua, wahitapu, kaitiakitanga and taiapure. And that Maori have become passive as the outer world bears down to define and limit their culture, inherent in which lie the values that keep Maori strong. ....
The reality of being at the brunt end of the free market unprepared, unresourced and unable to do much about that in the short term except to exercise their vote.
And vote they did...

 

 

Dame Whina Cooper

Northern Maori elder Dame Whina Cooper died on 26 March 1994 aged 98. Haere, e Kui, haere.


February 1994 Contents

The End of the Recession?

At first glance the report of the Waitangi Tribunal this month on electoral reform does not appear groundbreaking. Maori groups complained that the money so far spent on advertising of the Maori electoral option was inadequate to fully inform Maori voters of their options. The tribunal, as might have been expected, found that electoral rights are protected by the Treaty (article 3 in particular which talks of the rights and privileges of British subjects) so this was a legitimate matter for the application of Treaty principles. The tribunal then considered the funding provided to date and concluded that more was required, without naming a specific figure.

What makes the report interesting is the debate surrounding the scope of the tribunal inquiry, and the effect of the Privy Council comments from the Broadcasting Assets case of last December (see Review Jan 1994). The Privy Council said that: "[W]hile the obligation of the Crown [to protect taonga] is constant, the protective steps which it is reasonable for the Crown to take change depending on the situation which exists at any particular time. For example, in times of recession the Crown may be regarded as acting reasonably in not becoming involved in heavy expenditure in order to fulfil its obligations although this would not be acceptable at a time when the economy was buoyant." It is this statement which the Crown seized on in submissions to the tribunal, warning it to be cautious when assessing the Crown's funding efforts to date. The argument proved to be a double edged sword. The tribunal independently entered in evidence a recent Prime Ministerial "state of the nation" address discussing the end of the recession, and effectively dismissed that part of counsel's argument. The government obviously disagrees with the tribunal conclusion. It turned down the tribunal recommendation that more money go into the electoral process, citing limited funding and other more urgent priorities.

So is the recession over or not? And what might this mean for claim settlements and the sum currently being debated to go into the "fiscal envelope"? Will that sum be a recessionary one, or one reflecting the coming boom the Prime Minister is talking about?

 

Maori Land Court and Appellate Court

No cases this month.

 

Waitangi Tribunal

Maori Electoral Option Report

Wai 413, 10 February 1994, Orr (Presiding Officer), Corban, Sorrenson, Temara, Walker, Young. 46 pp

This was an urgent hearing and report to consider 1) whether funding promoting the "Maori electoral option" (MEO) is adequate, and 2) whether Maori agencies independent of government should undertake the promotion.

For two months from 15 February 1994 Maori electors will decide whether to register on the Maori or General roll. The numbers registering on the Maori roll will affect the number of Maori constituency seats under the MMP system. The claimants, supported by major iwi and Maori organisations, alleged that funding to promote the MEO was inadequate, and that any promotion should be organised through national Maori organisations.

Found: this was an issue to which the Treaty obviously applied. Article 2 guarantees tino rangatiratanga, a term whose meaning is not fully captured by "English constitutional" ideas such as sovereignty, self-determination and self-management, and "a term that is eminently adaptable to time and circumstance". Approached broadly, the Treaty suggests tino rangatiratanga, like kawanatanga, is not unfettered - the two concepts must be reconciled. Maori are entitled to a measure of autonomy, but not full independence outside the nation state. This "qualified autonomy" can include separate parliamentary representation. The right to vote is also a matter coming under article 3 (rights and privileges of British subjects).

Maori were deemed disqualified from voting through property restrictions (Maori land being owned communally) until the Maori Representation Act 1867, which provided for an adult male franchise, free of property qualifications (some years before this was allowed to Pakeha) and established the 4 Maori seats. The secret ballot was not applied to the Maori seats until 1937. From 1967 Maori were allowed to stand in European electorates (and vice versa). The Electoral Amendment Act 1975 briefly provided for the possibility that the number of Maori seats might reflect the numbers on the Maori roll (thus the present Maori option in essence revives the 1975 situation). Maori have come to see the 4 seats as a important symbolically, as a surviving expression of their constitutional position under the Treaty. The 1986 Royal Commission on the Electoral System proposed abolishing the seats under an MMP system, but Maori lobbying in 1993 saw them retained in the Electoral Act of that year, giving rise to the present option.

Recent comments of the Privy Council on the nature of the Treaty relationship (NZ Maori Council v A-G (broadcasting assets) PC 14/93, 13 December 1993) confirm the conclusion that the Crown has an obligation to protect Maori rights to political representation by taking reasonable action in the prevailing circumstances. Whether the provisions of the Electoral Act, which potentially enhance rangatiratanga, might be considered in themselves as a taonga worthy of protection was not argued, but might have been.

The Crown has made efforts in the past to enhance Maori participation in electoral reform by advertising and face to face or "kanohi ki te kanohi" campaigns. Prior to the MEO, $904,341 was spent informing Maori of general reforms, $652,063 has been set aside for the forthcoming MEO exercise (most of this, $431,000, to be spent on mailouts). However, limited regard should be had to past expenditure since its focus was not specifically the MEO. Significant numbers of Maori are still not enroled as electors (potentially up to 60,000). There is evidence of the need, in addition to mailouts, for separate funding for kanohi ki te kanohi and mass media campaigns (particularly television).

While the recent Privy Council judgment suggests that the level of resources provided by the Crown to protect taonga must necessarily be constrained in a recession, this must be set against other comments in that judgment that "especially vigorous action" is needed in some cases. This is such a case, where highly prized rights of a fundamental constitutional importance are involved. As to economic circumstances, the Prime Minister in a recent speech has stated that an economic recovery is underway and that Maori issues are a special focus for government.

The present funding provided is "substantially less" than is required for Maori to effectively exercise the MEO. As a matter of urgency funding should be increased to ensure maximum enrolment of Maori and adequate information on the MEO.

Consultation should be undertaken with representatives of the National Maori Congress, NZ Maori Council and Maori Women's Welfare League to settle the programme and funding required (no specific figure named, but several estimates examined suggested around $1 million would be required, inclusive of mailouts).

Funding levels should be considered against the $47 million spent in this election cycle on maintenance of the electoral rolls. It would be "consistent with tino rangatiratanga', for responsibility for the implementation of any campaign to be vested in the Maori representatives of the 3 pan-Maori organisations.

[ed: this report provides the first detailed consideration of the Privy Council judgment of last December. The statements about rangatiratanga show that that concept still has room to develop. The Government has since announced it is rejecting the tribunal recommendation, citing other spending priorities. This was the first hearing and report for several tribunal members - namely Corban, Temara and Walker].

 

 

Chatham Islands claims

Wai 65 and others, 22 February 1994, CJ Durie

At a conference to consider progress with these claims counsel for Nga Iwi o Wharekauri Rekohu advised they were contemplating High Court action regarding jurisdictional issues eg whether the tribunal can depart from historic MLC decisions on customary entitlement, whether the MLC should be the place to decide issues of customary status. The tribunal noted that special jurisdiction for the MLC under s27/1993 could possibly be sought; s30/1993 is not relevant since it refers to finding the appropriate representatives of customary groups, not determining which customary groups are entitled; and voiced its own view that it should proceed with a broad inquiry as this may clarify any jurisdictional questions requiring answer. "An important objective of the Treaty of Waitangi Act 1975 is that long outstanding grievances should have a forum, that the Tribunal should provide a forum, and that a comprehensive report, as appropriate to a commission of inquiry, should provide public awareness of the concerns. It must be borne in mind that the Moriori grievance has been the subject of petitions from last century but, it would appear, the Moriori people have consistently lacked the benefit of an impartial examination of their concerns, unhindered by technicalities." Hearing date set for 9 May 1994, in the Chatham Islands.

[ed: this will be an important hearing, raising questions about the "1840 rule" applied by the Maori Land Court to determine customary ownership]

 

Other Jurisdictions

Glass Murray v Frank Alexander Geddes

High Court Whangarei M 93/93, Thorp J, 6 December 1993

This was an application by Mr Murray on behalf of Ngati-haua hapu that a caveat over the property of Mr Geddes under the Land Transfer Act 1952 not lapse. Murray claimed to be a beneficiary under a trust, with Mr Geddes as trustee. No details of the trust were given or how it arose. It was claimed that either a trust arises with a hapu whenever an individual member of a hapu takes an individual title in the hapu land (on a subsequent transfer of the land any new owner with knowledge of the trust would be bound by it). Alternatively, a constructive trust had been created with this particular land owner since individualisation with the particular persons in the hapu who had transferred the land to him.

Held: the onus is on the caveator to show an arguable case or a serious question to be tried. The first trust proposed was "revolutionary". There was no authority for it and it was difficult to see how the courts would enforce it. The second trust failed for lack of evidence - none was presented. In addition, inadequate notice had been given to the landowner of the reasons for lodging the caveat (ie general explanations were not adequate).

[ed: this case concerned the disputed land at Whangape claimed by Ngati-haua hapu. It is a good illustration of the difficulties (detailed research; difficult legal argument about trust law) which claimant groups may face if they use this particular avenue to prevent sales of land under claim].

 

 

Sea-Tow Ltd & L P Haddon and GR Brown & others v Auckland Regional Council & another

A 129/93, Sheppard J, 14 December 1993

5 applications for coastal permits to extract sand from Mangawhai-Pakiri were recommended for approval by the Minister of Conservation by the Auckland Regional and Northland Regional Councils. The sand would mainly be used in ready-mix concrete for building purposes in the Auckland region. All parties except Haddon and Brown representing Ngatiwai interests had agreed to extraction for a 10 year period, and a full review after a technical study was completed on long term sustainable sand extraction. The study would have supervision from tangata whenua among others; they would also assist in drawing terms of reference for it. The other parties acknowledged that tangata whenua concerns had not been fully met but had been answered as far as was possible under the RMA. Ngatiwai claimed they had never given up ownership of the sands, had mana over them and were kaitiaki of them and had a claim before the Waitangi Tribunal. They sought modifications to the permits in light of those claims.

Recommended: that the Minister should approve the permits with modifications but not those sought by Ngatiwai. Arguments about ownership of resources or past historical grievances are not matters to be addressed under the RMA. Ngatiwai would be actively protected by the safeguards proposed. There is no legal authority to delegate powers to Ngatiwai to manage the resource. The RMA provides ample opportunities for participation by Maori in the planning process. These have been taken up here. The applications should not be deferred pending any Waitangi Tribunal investigation - the duty to take into account the Treaty does not require giving effect to it a if it were a law applying to everyone, therefore it is not necessarily required to delay every application until a Waitangi Tribunal report (it was also unlikely there would be a tribunal report in the near future). Inclusion of a representative on the working party for the sand study recognised the kaitiaki role. Potentially Ngatiwai could be involved in inspections to ensure compliance, if the regional council choose to transfer such functions under s33 RMA. No "Maori share" in the form of royalties or other benefits from sand extraction could be provided for within the RMA, this could be achieved by Ngatiwai themselves obtaining a permit to take sand, or by a political decision to give a royalty.

[ed: once again the limits of the RMA to address deeper issues is made clear. As was apparent from the objections raised, the role of kaitiaki of the resource implies control and responsibilities to the immediate group and the wider community eg "they would also want to explain to sand extractors the history and spirituality of the sand to the tangata whenua as part of their inheritance and way of life". A consultative role, no matter how intense, will always fall short of these sort of aspirations].

 

 

Save the Chelsea Playground Committee v Wellington City Council & Te Motukairangi Kohanga Reo

W 10/94, Kenderdine J, 18 February 1994

The Council had granted to the applicants a land use consent to construct a pre-school facility for 25 children on a Council reserve. The appellants raised several grounds including "undue weight" given to Treaty of Waitangi issues in the Council decision.

Held: section 8 of the RMA is a relevant consideration. It was appropriate for the Council to see the proposal as fulfilling an obligation to protect Maori culture and reflecting concern that Maori were the lowest users of Council facilities. The proposal was not promoted by Council "at any cost".

[ed: A largely unexceptional decision apart from the odd nature of some of the objections raised by the appellant committee. For eg noise from the 25 children, effect on painters at the nearby art club and, "the implications of Te Kohanga Reo as providing a focus for the Maori community of Miramar, [being] at odds with those already utilising the current facilities at the site" - namely the local art club and community centre. The tribunal pointed out that the kohanga reo would be open to both Maori and Pakeha children of Miramar and would benefit the wider community].

 

 

Ngatiwai Trust Board v Whangarei District Council & Another

A 7/94, Bollard J, 11 February 1994

Ngatiwai Trust Board appealed against approval for a camping ground development including sewage disposal. The appeal raised a waahi tapu issue not referred to in original submissions to the Council which granted the approval. The area was also under a claim before the Waitangi Tribunal

Held: The RMA does not intend that in all cases where Maori reside in the vicinity of a development, or have registered a concern, they must be actively consulted with by a council before a matter is heard (although the council planning officer may be under a duty in suitable circumstances to consult to provide a comprehensive planning report). Long standing cultural issues of which councils are aware are a different matter (Gill 2 NZRMA 605 and Haddon Unrep A77/93 distinguished).

In approaching s8, first the obligations and responsibilities of the Treaty outlined in well know cases of high authority are to be considered to determine if a Treaty matter arises in the exercise of the function, then if such a matter does arise relevant principles are to be taken into account to ensure the intent of the Treaty is maintained as far as practicable having regard to the purpose of the Act under s5.

Subject to general notification requirements (persons directly affected by application to be notified, s93(1)(e)), in this case no duty to consult was required before hearing. Persons objecting also have a responsibility to clearly express their concerns (no mention of waahi tapu in original objections in this case). The Trust Board, despite any reservations it might have had should have raised the waahi tapu issue in formal submissions. This failure had to be regarded in weighing the overall background to the case. Whether or not the camping ground proposal proceeded would not affect the merits of a claim to the Waitangi Tribunal. A requirement that the sewage disposal system be relocated to adjoining land would recognise waahi tapu concerns.

[ed: this case contains thoughtful consideration of the requirements of section 8 and consultation provisions of the RMA. The tribunal noted that it was possible that at the council hearing of the application waahi tapu may have been mentioned by kaumatua. The implication being that this reference was missed, perhaps because there were no interpreters present. It is often the case that sensitive issues or historical points about an area are spoken of in Maori. If essential information is not finding its way into formal submissions, there is perhaps a need to consider strategies to sensitively draw out such matters, either at hearings or in the consultative or planning report phase]

 

General

Greenprint. Brief to the Incoming Government.

Department of Conservation, November 1993

There are 48 known claims which include land in the conservation estate, with the possibility of others. Two papers are being developed with other departments on policy principles concerning claims to natural resources and those to the conservation estate. Specific issues facing the department include cultural harvest (permits to use protected species); mahinga kai (potential of iwi to manage some food gathering areas). Also the Ngai Tahu claim (tribunal recommendations for the return of conservation areas in Arahua Valley, Waihora (Lake Ellesmere), Crown Titi Islands, part Kaitorete Spit, and a management interest in Whenua Hou (Codfish Island), and assessment of conservation values of Greenstone, Elfin Bay and Routeburn Stations "landbanked" for return). Also conservation lands connected with the Tainui claim, and Takapourewa (Stephens Island) claims.

The "ownership debate" is diverting attention from efforts to develop a "conservation partnership" between the Crown and Maori which recognises Crown conservation responsibilities while acknowledging real grievances. Maori will not necessarily be equal managers but will equally participate in determining "what is an appropriate level of shared management" for particular situations. Notes difference in approaches - Maori ethic is for sustainable management across the entire resource; Pakeha seek protection of some areas (public conservation lands), sustainable management for others.

[ed: the NZ Conservation Authority has delivered a report to the Minister on cultural harvest which should be released shortly]

 

 

Native Title and the TransTasman Experience

Deputy Chief Judge A G McHugh, delivered to conference in Sydney 24-25 February 1994

The Australian Native Titles Act 1993 recognises native title as a part of Australian law. NZ courts have yet to provide such a clear recognition that aboriginal title is part of NZ common law. Te Weehi [1986] 1 NZLR 680, and Te Runanganui o Te Ika Whenua Unrep 1993 CA 124/93, come close. The NZ Court of Appeal may lean towards recognition also of a fiduciary duty, where the majority rejected this in Australia. However the Treaty of Waitangi Act and references to the Treaty in NZ statutes has allowed progress with little need for NZ courts to use the aboriginal title doctrine.

Concerning Maori land, "there is a strong case in New Zealand for a return to tribal body corporate ownership of all multiply owned land with some safeguards to protect existing successful trusts and incorporations. The cost of maintaining the separate Maori land recording system is high and its security is also presently suspect as government shows some fiscal reluctance to move into more secure data processing and recording." The NZ government is working on a fiscal envelope for claim settlements. The time is opportune to restructure Maori organisations to cope with the dynamics of change following Treaty settlements. Existing Maori bodies overlap, leading to a waste of resources, particularly leadership. There may be a preponderance of policy making bodies without operational arms; eg Te Puni Kokiri. A Maori Commission may provide an answer.

 

 

The Fiscal Envelope

From the same speech

"The NZ government has set itself a target date of 2000 to complete the hearing process and is also working on a fiscal "envelope" or settlement fund which represents the total sum the New Zealand government proposes to apply in settlement of all claims. It is to be gathered and set aside over a period of 10 years and used to make cash payments or buy land from the State Departments or State owned enterprises for settlement of claims. The amount in the envelope is to be a government assessment of what it can or should pay after it has assessed its obligations. It is in no way related to actual loss suffered by Maori."

[ed: as this address suggests, policy on the size and details of the fiscal envelope is well advanced. Discussions have been held with some Maori leaders]

 

 

Post Election Briefing for the Minister for the Environment

Ministry for the Environment, November 1993

A government overview policy on Treaty claims would help secure equity and consistency, not only between claims but also for government policy reflected in legislation like the RMA. The Ministry is working to advance such an overview policy, but lacks resources to give time to all specific claim issues, or assist in developing resource management options leading to durable settlements. The Ministry is examining the "exchange of rights" inherent in the Treaty to work towards solutions meeting environment objectives of government and Maori, recognising that Maori are not only guardians of certain resources but potential developers also.


January 1994 Contents

The Year Ahead

The new year is a time for reflection and consideration of what lies ahead. This issue contains statements of intent from various quarters for the coming months.

The Speech from the Throne promised in this Parliamentary term bills to modernise the laws relating to Maori trust boards and reserved lands, but otherwise it would be "steady as she goes".

The holiday period was more interesting. Pre-Christmas, Chairperson Chief Judge Durie published a full "state of the Waitangi Tribunal", referring repeatedly to funding constraints. The Minister of Justice in early January promised more funding for the claims process, from within the Justice vote, and a publicity campaign on Treaty grievances conducted personally through the pages of the Dominion (shouldn't a professionally organised PR campaign be a priority?). But with 2 new prisons to build and now night courts, will Justice find the money? And who gets it and in what proportions; the tribunal, or the Treaty Policy Unit, government's negotiating arm? In this regard the Justice Department briefing papers were revealing for the emphasis they put on negotiations, and little mention of the tribunal's funding concerns (this from the Department which services the Waitangi Tribunal). Te Puni Kokiri asked its Minister to consider whether direct negotiation is really a fast track to claim settlements, and pondered the difficulties and durability of "global settlements" (ie Sealords) and "fiscal envelopes". Professor Alan Ward (Evening Post 20 January) stepped back and puts things in a useful historical perspective. He suggested slowing down, forgetting the year 2000 as a date to settle major claims (a date the tribunal says it can meet) and establishing an accumulative settlement fund. The fund building up for Crown forest settlements is a good illustration of this approach.

Overshadowing all of this is the electoral reform debate (the tribunal heard a claim this week), which makes a change of policy in this whole area extremely likely at the next election. In light of that, academic Mai Chen has suggested multi-party talks. Certainly the present party based approach means that the Treaty of Waitangi Cabinet Committee has a very homogeneous look (see page 9) and maybe could do with some assistance?

 

Maori Land Court and Appellate Court

New Maori Land Court Judge

Wilson Isaac, a partner from Burnard Bull & Co, Gisborne, was appointed a judge of the Maori Land Court in December. Burnard Bull & Co has an extensive Maori land practice, including among its clients major runanga, trusts and incorporations on the East Coast. The Judge is a committee member of one incorporation. He has also undertaken Family Court work acting mainly for Maori families in custody and access matters. Judge Isaac has roots in Ngati Kahungunu and Tuhoe through his father and Scotland and Ngati Porou through his mother. Aged 40 years, he is married with 3 children, and competes as a triathlete and runner. He will begin working from Rotorua pending his appointment to a district (Tairawhiti (Gisborne court) and Takitimu (Hastings court) have no appointed judge at present).

 

In re Tokata Roadline and Trustees of Te Rimu Trust

Appeal 1993/15, 33 ACMB 126, Smith, Hingston, Marumaru 7pp

The legislative intent of s416/1953 is clear and unequivocal that roadways laid off before 1953 are not burdened with a right of public use.

 

In Re part Whangaruru-Whakaturia 4 Block

Appeal 1993/20, 1993 Tai Tokerau ACMB 87, 16 December 1993, McHugh, Smith, Carter, 9pp

In 1989 an elderly Maori man signed a transfer document allegedly gifting land to a woman claiming to be his niece, and her husband. The man died in 1990. For various reasons an application for confirmation of the transfer was not filed in the MLC until May 1992. By this time the immediate family had notified an objection. Further delays followed. In August 1993 the application was finally heard. The family raised several serious grounds against confirmation, including unconscionable bargain and constructive fraud. These were not tested in court (the court had requested attendance of witnesses for examination, but only affidavits were filed). Counsel for the niece and her husband sought an adjournment to prepare further submissions. The court instead noted the allegations made and allowed the family to withdraw the application for confirmation, then dismissed the matter.

Held: the appeal should be allowed on 2 grounds. First, the MLC was wrong to allow one party to withdraw the application. Section 225(1)/1953 (now s151(1)(a)/1993) entitles any party to an instrument of alienation to apply for confirmatio. This and associated MLC Rules recognise the peculiar nature of many Maori land applications, where rights of many persons might be affected. All have rights to be heard, including on questions as to withdrawal of applications. Second, given the serious nature of the allegations made, the refusal of an adjournment was a breach of natural justice; Ani Masefield Pihema and Orakei Marae 1990 ACMB 37 referred to (re natural justice requirements when adjournments sought). A rehearing was ordered. The MAC noted decisions in Re Papatupu 5A2 and Pirikau (1969) 12 Whanganui ACMB 317 and in Re Tikitiki D7B Tibble v Tibble (1983) 30 Gisborne ACMB 310 as to matters to consider in confirmation applications.

 

Waitangi Tribunal

1993 End of year statement

Te Manutukutuku No 26 December 1993

A succinct statement of the nature of the tribunal and its present approach. Contains some obvious messages for politicians and claimant groups. Concern about inadequate resourcing ($2.5 million annum and over 320 outstanding claims) appears throughout the document, which mentions several times the need for more than the present one full time tribunal member. Under "Resources", the statement questions whether Maori have proper access to the legal process in this area. Other comments made:
- the tribunal could hear all historical claims by the year 2000 (some 30 separate inquiries, hearing groups of claims, are needed to cover more than 320 claims)
- it is "regrettable" that claims about contemporary matters are now rarely considered because of the workload of historical claims
- "The Tribunal does not grant urgency to accommodate illegal occupations and will not intervene on matters that are or could be the subject of court proceedings"
- $400,000 annum is a "very small fund" for researching claims
- there is a need for statutory power to fund "claim managers"
- a strong research unit within the Crown Law Office is essential
- The Maori Land Information Office should be enabled to act directly on tribunal requests rather than just claimant requests
- there has been very little unnecessary duplication of research
- because it is not possible to sever the collection of facts from issues of interpretation the tribunal needs its own expert research staff
- the Rangahau Whanui project (broad historical survey of all historic claims in the country by districts) is needed to avoid inequities of a seriatim approach to hearings which advantages significantly those first heard
- on present evidence, all tribal groups probably have a valid claim of some sort and therefore practical programmes to restore the tribal economic base seems the most practical course - representation issues are a major impediment to claim resolution. The tribunal s preferred approach, judicious use of the Maori Land Court, is canvassed. Queried whether the law should be altered to allow the tribunal to decline to hear tribal claims where tribal support is lacking
- under "Servicing", the constraints of the State Sector Act and Justice Department management programmes on an independent tribunal are noted
- In 1994 the tribunal expects to produce 12 reports including reports on the Taranaki raupatu and Muriwhenua lands groups of claims, also Ngai Tahu ancillary claims, Orotu (Napier Inner Harbour), Chathams, Turangi lands, Wellington Tenths, Otamarakau mining, Tinui forests, Te Arawa geothermal, Ikawhenua power generation, Te Maunga public works [ed: an ambitious programme, already under threat from urgent matters; ie the Maori electoral option hearing this week (reviewed next issue), and a Whanganui river hearing in March].

 

Re claims by Ngati Awa and Tuwharetoa Te Atua Reretahi ki Kawerau

Wai 46 & 62, 17 December 1993, Durie CJ

Ngati Awa sought a determination of customary rights over areas claimed by Tuwharetoa ki Kawerau. They requested that the tribunal refer these issues by case stated to the Maori Appellate Court under s6A/1975.

The Chairperson declined to refer the matter for the time being, noting that if Ngati Awa contentions as to the extent of their rights were upheld, Tuwharetoa ki Kawerau would fall entirely within their territory and thus have no independent status. On the basis of research before the tribunal: section 6A may itself not accord with customary law in that it fixes narrowly the customary principles applicable, also; Maori Appellate Court and Land Court approaches to customary interests and developed precedent should be questioned. The issue of limitations as to evidence and expert assistance before the Appellate Court as opposed to a more flexible tribunal inquiry needs to be considered. The tribunal has a discretion whether or not to refer a case stated, and may choose not to do so if such a referral is not essential to the tribunal hearing and report on a claim. The real issue may not be the precise customary position, but rather how far customary interests have a place in a contemporary settlement.

[ed: the tribunal is clearly signalling a reluctance to use s6A, fearing the Appellate Court may be too bound by precedent based on challengeable views of customary law. The research referred to may include the PhD thesis of Angela Ballara Origins of Ngati Kahungunu which raises questions about Native Land Court views and distortions of customary law. Also see the note on Bryan Gilling s article below].

 

Other Jurisdictions

NZ Maori Council and Others v A-G and Others

Judicial Committee of the Privy Council, Appeal no 14/1993, 13 December 1993, Templeton, Mustill, Woolf, Lloyd of Berwick, Eichelbaum. 17pp

Background
The Maori language is "in a state of serious decline . In 1988 the Crown restructured its broadcasting operations. The Broadcasting Act 1989 put in place many features of those changes. It was intended to use the State Owned Enterprises Act 1986 to transfer television assets to a new state enterprise. The appellants alleged the proposed transfer would breach section 9 of the 1986 Act, as an action inconsistent with the principles of the Treaty of Waitangi, without further safeguards first being put in place to protect Maori language in television broadcasting. The High Court deferred consideration of the issue pending the preparation of a scheme of protection. In July 1991 the Crown approved an offer of $13 million for Maori programming over three years, managed by a specialist Maori broadcasting funding agency. The appellants sought amendments which the Crown did not agree to. The High Court considered the scheme and granted a declaration permitting transfer, the appellants appeal of that decision was dismissed. The issue here was whether the transfer of assets could now or in the foreseeable future impair to a material extent the Crown ability to take reasonable action to fulfil its Treaty obligations.

Crown s Treaty obligations
The Maori language is a taonga. The Crown is under a solemn Treaty obligation to protect Maori property. The relationship between the Crown and Maori should be founded on reasonableness, mutual cooperation and trust. In protecting taonga the Crown need not go beyond what is reasonable in the prevailing circumstances". The obligation is constant but the protective steps required may vary eg in an economic recession it may be reasonable not to engage in heavy expenditure. How vulnerable the taonga is, is relevant, especially if vulnerability has arisen from past Crown actions. This would increase Crown responsibility.

Maori language
The failure to achieve any material exposure for Maori language on television has serious implications for continuation of the language. The obligation of protection is shared and Maori are also required to take reasonable action, in particular in the home.

Nature of State Owned Enterprises
The 1986 Act s4(1) requires SOEs as successful businesses to be profitable, good employers and exhibit social responsibility. The first objective, creation of profit, is of no greater importance than the other two objectives. Therefore, if it has the financial resources, an SOE is perfectly entitled to be involved in loss or non-profit making activities. Subject to financial constraints, a state enterprise could run Maori programmes at a loss and still fulfil its statutory objective of being a successful business. In the foreseeable future Maori programming may not be profitable but there is no reason why it cannot be presented in an efficient and businesslike manner. A Crown protective ability remains through s7/1986 (Crown agreements to fund all or part of the cost of non-commercial activities). State enterprises remain creatures of the Crown. Through statements of corporate intent and the like the Crown can exercise a substantial degree of indirect control over the manner in which assets are employed. It is unlikely a state enterprise would seek to frustrate the Crown intent once made clear. The law-making powers of the Crown also remain. The transfer of assets would make control less direct and immediate, but otherwise only lessen the Maori ability to bring pressure to bear on the Crown. Section 9 is not a lever to compel the Crown to take positive action, but operates indirectly, in that it prevents transfers inconsistent with the principles of the Treaty, which in turn may force the Crown to come to arrangements to achieve the transfers it desires.

Effect of a transfer
Section 9 does not require the Crown to establish as a precedent fact that a transfer would not be inconsistent with the principles of the Treaty, the onus is on the appellants to show a transfer is not permitted in the normal manner. The fact that fulfilment of Treaty obligations by the Crown is a policy matter does not limit a court to considering only whether a policy is unreasonable in the Wednesbury sense (if this is what the Court of Appeal was suggesting they were mistaken). It is relevant to read s9 in the light of other legislation (here the Broadcasting Act 1989, already putting much of te restructuring in place). If assets are readily substitutable then it is less likely s9 will apply. The courts should approach these questions with a firm grip on reality as a matter of practical politics if assets are unlikely to be replaced once transferred, replacement in theory is of little significance. In practice the Crown can exert considerable control over state enterprises. Therefore a transfer would have little if any effect on Crown obligations to preserve the language. Ministerial powers of intervention in state enterprise operations should be used sparingly, but, if required, are fully justified in this case given what is at stake. The present statement of corporate intent providing for Maori programming under Social Objectives makes Crown intervention less likely. The Crown assurance that existing offers would be honoured was taken into account and creates a legitimate expectation the Crown will act on its assurance.

[ed: The judgment contains no comments on the constitutional position of the Treaty. The case was argued strictly within the bounds of s9. Previous Privy Council findings that the Treaty is unenforceable until incorporated into NZ law (Hoani Te Heuheu Tukino case) were not challenged.

While acknowledging that SOEs were primarily established to clarify sometimes competing and incompatible social and economic objectives , it was thought they could still voluntarily engage in non-profit activities (of a considerable scale presumably) while receiving only partial or conceivably no reimbursement from the Crown. This interpretation of the successful business objective of SOEs under the 1986 Act might make directors nervous. They may also be nervous about the judgment s emphasis on the Crown ability to intervene in SOE operations to protect an important Maori taonga.

Given that there is an economic recession, that SOEs are intended primarily to be profit making, and that Maori language broadcasting requires considerable capital, have the Judicial Committee, in relying heavily on the Crown ability to indirectly control SOE behaviour, ignored practical politics themselves? Are Maori now able to use s9 to raise issues about the use assets are put to after they have been transferred to SOEs?

A key problem for the appellants was the finding that, in asset transfers, s9 does not require the Crown to directly consider its Treaty obligations to the language, but only whether, after transfer, it could still reasonably protect the Maori language. Their Honours appeared to be impressed with Crown efforts to date, and noted that the assets in contention were already informally being used by the new broadcasting SOE (but on a without prejudice basis surely?). Overall, perhaps not a victory for Maori, but rather a recognition that, once the Crown has decided on a policy, s9 is only of limited use as a lever to compel the Crown to address its broad Treaty obligations.]

 

Te Runanganui o Te Ika Whenua Inc Society & Another v A-G & Others

CA 124/93, 17 December 1993, Cooke P, Richardson, Casey, Hardie Boys, McKay, 13pp

Under the Energy Companies Act 1992, it was proposed to transfer the undertakings of the Bay of Plenty Electric Power Board and the Rotorua Electricity Authority to energy companies. The principal objective of these companies is to operate as successful businesses. The undertakings included, for the Bay of Plenty Board, the Aniwhenua dam on the Rangitaiki river, and for the Rotorua Authority, the Wheao dam on the Wheao river. The appellants, representing iwi and hapu having interests in these rivers, sought interim relief preventing the transfer on the grounds that the Minister of Energy, in deciding to proceed to approve the transfers, had failed to make adequate inquiry of affected Maori interests, had failed to consult, and to await a substantive report of the Waitangi Tribunal (the Tribunal in an interim report dated 1 April 1993 had recommended the transfer not proceed until a substantive claim to the rivers had been heard). It was also alleged that common law aboriginal title rights had been interfered with under te Electricity Act 1968 in giving consent for and in the construction of the dams.

Held: Interim relief should not be granted. The Crown has only limited powers over electric power boards and authorities, which in general are not agents of the Crown. While an ability exists under the Electric Power Boards Act 1925 to compulsorily purchase electric works, in light of the nature of Maori customary title, Treaty rights and the history of electricity generation in NZ, this is not a realistic prospect.

Aboriginal title, locally Maori customary title , consists of rights over land and water enjoyed by indigenous inhabitants prior to colonisation. If extinguished by less than fair conduct or terms, there is likely to be a breach of a fiduciary duty falling on the colonising power. Free consent may yield sometimes by necessity to compulsory purchase for specific public purposes - but proper compensation would be paid.Even on the most liberal construction, Maori customary title and Treaty rights were never conceived as including a right to generate electricity from water. It was not argued in this case that the dams were taonga. Specific Maori interests are mentioned in debates on the Water-power Act 1903, but there was no recognition of any general customary rights to electricity generation. Consequently Maori interests would not be affected by a transfer to energy companies of the dams and other undertakings. Redress for Maori for other rights which might have been affected cannot realistically lie in modifications to the ownership of the power generating assets serving wider communities - despite a Waitangi Tribunal suggestion to the contrary in its interim report.

There may be valid claims about interference with fishing rights or more fundamentally, control of the river itself. But a practical remedy for such claims would lie before the Tribunal or through negotiations, there being no substantial prospect of relief affecting the ownership of the dams.

Regarding claims about rights to river control, the Maori Affairs Act 1953, s155, is not clear whether the bar on raising customary title against the Crown extends to water. The Waitangi Tribunal in 2 reports (Te Ika Whenua - Energy Assets and Mohaka River reports) has viewed rivers as taonga. This includes the concept that they are not separable into constituent parts of bed, banks, and water. It is odd that, in the Wanganui River litigation (In Re the Bed of the Wanganui River [1962] NZLR 600), it was not argued that this concept survived the passing of the Coal-mines Act Amendment 1903 (vesting beds of navigable rivers in the Crown). This is perhaps because of the emphasis placed in counsel s argument at that time on the river bed and banks rather than the flow of water - perhaps an instance where aboriginal title was rendered into strictly English law concepts, an approach to be guarded against (Privy Council judgment in Amodu Tijani [1921] 2 AC 399 referred to). Similarly, the ad medium filum aquae rule is inconsistent with this concept (Waitangi Tribunal Mohaka River report rejecting that approach for the Mohaka river referred to), and may be unreliable in determining what Maori have agreed to part with .

Concluding comments; the Treaty of Waitangi has been acquiring some permeating influence in New Zealand and Treaty rights and Maori customary rights tend to be partly the same in content .

[ed: this judgment provides the latest and most succinct summary of the application of common law aboriginal title in NZ, placing it firmly alongside the developing Canadian and Australian jurisprudence and confirming the Court of Appeal approach in earlier cases in this area, reading aboriginal title and Treaty rights together. Comments about fiduciary duty perhaps extend that aspect slightly.

In finding that aboriginal rights do not include a right to generate electricity from water the Court did not mention the right to development which has been upheld by the Waitangi Tribunal in relation to fisheries (Muriwhenua Fishing and Ngai Tahu Sea Fisheries reports). But in those reports the Tribunal was concerned with a resource about which there was some knowledge already in 1840. Lack of knowledge at 1840 seems to have been central to the Court decision here (but see the argument in the Waitangi Tribunal Radio Frequencies report, suggesting Maori may still have a Treaty interest in a resource unknown in 1840, but central to cultural survival now).

The judgment contains a strong hint that the Court might, given the opportunity, revisit its precedent setting decision in 1962 that the bed of the Wanganui river was lost by Maori when they sold land along the banks. The Waitangi Tribunal has already rejected the application of that approach to the Mohaka river. It will hear the Wanganui river claim commencing March 1994.]

 

Huakina Development Trust v The Waikato Regional Council (formerly Waikato Valley Authority)

C4/94, 12 January 1994, Judge Skelton

Remember this? The dairy shed discharge permit which resulted in a ground breaking High Court decision about Maori values and water consents ([1987] 2 NZLR 188). In this judgment the Planning Tribunal cancelled the permit which created all the fuss. The original applicant has sold the farm and the new owners do not require a consent. The decision is however without prejudice to the new owners right to seek a fresh consent under the RMA!

 

General

Extract from Speech from the Throne

Opening of 44th Parliament, 22 December 1994

My Government will continue to use established processes to address legitimate historic grievances and will continue to deal with disparities in current outcomes for Maori. It will promote Bills to modernise the law relating to Maori trust boards and Maori reserved lands. Obligations under fisheries settlement legislation will also be fulfilled.

 

 

Cabinet Committee, Treaty of Waitangi issues

Announced in December: Graham (chair), Falloon, Creech, McKinnon, East, Kidd, Upton, Marshall, Luxton, Cooper, Meurant. Treaty issues spokesperson for the Labour Party: David Caygill

 

 

Post-election briefing to the Minister of Maori Affairs

Te Puni Kokiri, November 1993

Wira Gardiner: After nearly a decade of far-reaching reforms in State administration, Te Puni Kokiri finds itself established as a new entity no longer charged with delivering programmes and services to Maori but cast in the role of watching what others do for Maori and offering policy advice. In the absence of a clear statement of what is required, it is vulnerable to what St Paul called being blown about by every wind of doctrine . What the Government sees as the outcomes for Maori urgently needs to be clarified . Other highlights:

- iwi require funding to participate fully in decision making under the Resource Management Act
- the usefulness of generic iwi personality legislation, possibly incorporating elements from the repealed Runanga Iwi Act, is being examined
- Claim settlements should not be regarded as discharging all Treaty obligations by making Maori self sufficient. There may still be obligations under article 3 to achieve equity
- Achieving settlements solely by negotiation can be as lengthy a process as full hearings before the tribunal
- the Treaty claims area is generally poorly resourced
- global settlement of claims may make it harder to achieve durability
- Treaty principles require a case by case approach to settlement negotiations
- the responsibilities for negotiation of settlements should be reviewed.

[ed: the briefing generally reflects the unfortunate role this Ministry has been cast into, able to comment on everything and implement nothing. The resulting impression, that it is continually fault-finding, will not make it any friends. In this respect perhaps it inherits something of the character of its creator].

 

 

The Pakeha Constitutional Revolution . Five Perspectives on Maori Rights and Pakeha Duties. By Paul Havemann

(1993) 1 Waikato Law Review (Taumauri) 53

The significance of the changing constitutional rhetoric, benign or malign? Several schools of thought and the views of the major protagonists examined. Prendergast-ians (belief in one law for all Guy Chapman, David Garrett), Tino Rangatiratanga-ists (Maori nationalism Moana Jackson, Annie Mikaere), Marxists (Jane Kelsey), Orthodox Legal Position-ists (Paul McHugh). Havemann finds contradictions in the Prendergast school, and for the rest notes that if there is a movement to a post-assimilationist and ultimately post-colonial society, we cannot afford to forego the political resources that social rights, parliamentary democracy and citizenship offer.

 

 

By Whose Custom? The Operation of the Native Land Court in the Chatham Islands

Bryan D Gilling, Victoria University of Wellington Law Review vol 23 No 3 Oct 1993 p45

Examines the (dubious) origins of the 1840 rule, and notes that it was modified in rare instances where it was felt to be too arbitrary in its operation. Investigates its harsh application in the Chathams. Questions the extent to which the government encouraged Taranaki people to remain in the Chathams, so that they would not disturb the uneasy situation on the mainland.

[ed: The Chatham Islands claim is one of the matters the tribunal expects to report on in 1993. Bryan Gilling will be publishing further articles on the Native Land Court in 1994. As to the 1840 rule, see above the tribunal memorandum re Wai 46 and 62].

 

 

Expert at Victoria University

Under a scheme to promote discussion on Maori and the law, lawyer Moana Jackson has been appointed a research fellow at Victoria University for 1994, where he will write on legal issues concerning Maori.