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.