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

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!



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.