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.