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.