May 1994 Contents

Tertiary Education and "Option B"

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

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

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

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

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


Maori Land Court and Appellate Court

Whakatohea Raupatu Claim Representatives

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

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

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


Waitangi Tribunal

The Muriwhenua land claims

Wai 45, Doc N2, 28 April 1994

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



Pepepe land claim

Wai 185, 6 May 1994, CJ Durie

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



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

Wai 128, April 1994. R Daamen

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



Crown Purchases of Maori Land in Early Provincial Hawkes Bay

Wai 201, A Ballara and G Scott. January 1994

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


Other Jurisdictions

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

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

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

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

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

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

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



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

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

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

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

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

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



Rural Management Ltd v Banks Peninsula District Council

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

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

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

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

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

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

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

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



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

A 25/94, 31 March 1994, Sheppard J

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

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



Results of the Maori Option

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

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



Draft Minerals Programme for Petroleum

May 1994, Energy & Resources Division, Ministry of Commerce

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

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

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

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



NZ Coastal Policy Statement 1994

5 May 1994, Department of Conservation/Te Papa Atawhai

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

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

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



Funding Growth in Tertiary Education and Training

Report of the Ministerial Consultative Group, 12 May 1994.

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

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

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

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

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



Employment. The Issues

Prime Ministerial Task Force on Employment, May 1994

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



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

Tabled on 29 March 1994

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

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