June 1994 Contents

Maori Science and Law

In a recent paper, "Maori Science. Can Traditional Maori Knowledge be Considered Scientific" (NZ Science Monthly, May 1994, Mike Dickison), and at a recent lecture in Wellington organised by the Skeptics Society, it was argued that Maori did not 'do science' because "Maori knowledge acquisition was neither objective (relying as it did on religious faith), rational (it mixed supernatural with mundane explanations), nor co-operative (it relied on authority rather than challenge and consensus)." Science is about questioning the mechanisms behind the workings of the world. Simply having knowledge and applying it to create technology is not enough.

This sort of argument seems to make as much sense as a Maori chief observing an atom bomb test and remarking, "but this is merely technology". Perhaps the missionary Richard Taylor had something like this in mind when he said, on observing eel weirs on the Whanganui river, that these constructions were too ingenious to have been made by Maori! As for reliance on religion, many important scientific discoveries were made by devout European Christians (I was always taught that a monk discovered the basic principles of genetics).

In 1967 the English born African academic Robin Horton suggested another approach ("African Traditional Thought and Western Science" Africa v37 p50). By concentrating on the similarities rather than the differences between Western and African thought, he concluded that "like atoms, molecules, and waves, ... the [African] gods serve to introduce unity into diversity, simplicity into complexity, order into disorder, regularity into anomaly". The essential difference between African thought and Western science was not a Western monopoly on the ability to rationalise or inquire, but rather a tendency towards 'depersonification' of the thinking process. Literacy had a large part to play in this movement. Horton believed that once this point was grasped, seemingly irrational traditional thinking and action became comprehensible to the Western mind. His argument, despite revisions, is still widely respected today (see Times Literary Supplement 2 July 1993).

Horton's analysis has an obvious application to law. Any tendency to view Maori traditional law and ideas as essentially "irrational", "spiritual" and "other", prevents a proper appreciation of their jurisprudential value.


Maori Land Court and Appellate Court

In re AMP Perpetual Trustee Company NZ Ltd and Faulkner and the Poripori Farm Trust

53 Tauranga MB 132, 12 April 1994, Carter J

An application for the Court to exercise its jurisdiction under s240(a) to remove a trustee for failing to carry out his duties satisfactorily.

Held: s240 provides wider grounds for removal than the 1953 Act, adding the ground of failure to carry out duties satisfactorily (the 1953 Act referred to powers under the Trustee Act 1953 allowing removal for particular matters only). Natural justice principles apply and the trustee must have full notice of any allegations made.

If the Court determines to remove a trustee under s240 it can proceed under s239 (addition, reduction and replacement of trustees) and make a consequential order reducing the number of trustees.

The test of satisfactory performance need not be solely objective. The Court can consider the nature of the trust, its performance, and views and expectations of the owners. Section 17(1) directs the Court to have regard to the primary objectives of retention of land in the hands of the owners and the effective use, management and development of the land. If the owners believe that discord between trustees is hindering the work of the trust, the Court may have regard to those views. Where trustees are "fighting" the primary objective of administering land is sometimes diminished.

This factor and lack of attendance at meetings, general argumentativeness and difficulty working with other trustees gave grounds for removal for unsatisfactory performance in this case. In this case the discretion would not be exercised because of the failure to accord natural justice in the allegations made by the trust against the trustee, and because of the failure to follow trust provisions in dealings with the trustee and in coming to the resolution to remove him (a decision not to send notice of meetings to the trustee was a course "fraught with danger").

Noted that a trustee cannot be criticised for exercising the right to seek directions from the Court on any matter. Section 17(1) seems to provide room for the Court to remove a trustee who cannot "work reasonably" with fellow trustees, although holding merely different or opposing views would not be sufficient grounds.


Waitangi Tribunal

The Whanganui River claim. Opening Submissions of Counsel for the Crown

Wai 167, 20 June 1994

At the hearing in June, Crown counsel made the following submissions. Negotiations in this claim are paused because the Crown is developing an approach to negotiations with respect to natural resources policy generally. The claimants frustration at this approach is acknowledged. The Crown has title to the beds of navigable rivers, including the Whanganui river, by virtue of the Coal Mines Act 1979, its predecessors, and s354 Resource Management Act 1991. The sale of riparian lands implied a relinquishment of any property rights located in the adjacent river. There is no evidence of an expectation that exclusive rights would persist after sale. The ad medium filum principle is acceptable in Treaty terms as "giving a formal legal expression to property interests associated with land." In this sense, the principle is consistent with Maori perspectives. While the process of the application of the principle may give rise to a breach of Treaty principles, the principle itself does not.

The spiritual relationship with the river has not been communicated to the Crown until relatively recently. It would be inappropriate to convert this to a property right.



The Native Land Court in the Chatham Islands

Bryan D Gilling, Wai 64 document A10

A 113 page report detailing Native Land Court operations in the Chatham Islands in the last century including the application of the 1840 rule.


Other Jurisdictions

M Sadd and Te Runanga A Rangitane ki Wairau Inc v The Waitangi Tribunal and others

CP 322/93, Wellington, 13 May 1994, Greig J

An application by the third defendant (Ngai Tahu Maori Trust Board) to dismiss proceedings brought by the plaintiffs seeking judicial review of the Waitangi Tribunal and Maori Appellate Court for their handling of a case stated to the Maori Appellate Court on the question of tribal boundaries in the South Island (the decision on the case stated was appealed unsuccessfully to the Privy Council).

Held: that the proceedings should be dismissed. The allegation that the plaintiffs were not consulted over the form of the case stated drawn up by the Waitangi Tribunal was contrary to the facts, but, in any event, the Tribunal had the right under s6A(3) Treaty of Waitangi Act 1975 to settle the terms of the case stated. Allegations that the Maori Appellate Court failed to proceed in accord with Maori custom could not be upheld, that Court having discretion to order its own procedures and with knowledge of the relevant customs to be adopted. As to the allegation that the MAC had accepted the "1840 rule" as binding, the rule appears to be a "well accepted principle" arising from the need for the Court to fix a date from which raupatu or "conquest" and inter-tribal warfare, being contrary to public safety and repugnant to English law, could no longer be condoned. In any event, the 1840 rule was not decisive to the MAC decision, which referred to peaceful reoccupation of land in that case.



Southern Scallop Fishery Quota Holders v Tasman District Council and another

W24/94, 15 June 1994, Judge Treadwell

In this appeal, local iwi gave evidence in support of an application for a shellfish farm, stressing their involvement with the applicant company and the Maori historical association with fisheries in the area. This evidence was rejected by the Tribunal. The Maori interest in this case was a commercial interest, and consequently something which could not be considered because of the provisions of the "Treaty of Waitangi Fisheries Settlement Act 1993".

[ed: presumably the reference is to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Section 9(b) provides that, in view of the fisheries settlement with Maori, no court or tribunal has jurisdiction to inquire into the validity of claims or the rights or interests of Maori in commercial fisheries. "Claims" refers to rights under common law, the Waitangi Tribunal, statute, "or otherwise" (s9(a)(i)). This decision appears to be a very broad reading of that section and the effect of the 1992 Act. The section is very broadly drafted. The alternative view would be that the 1992 Act was never intended to have such a drastic effect on the RMA, and that it relates only to legal claims to the ownership or control of the commercial fishing resource.]



Maori Purposes (Wi Pere Trust) Act 1994

9 June 1994

Retrospectively amends the Maori Purposes Act 1991 to enable trustees of the Wi Pere trust to exercise powers under Part II of the Trustee Act 1956.



Closing dates for submissions on bills

Te Runanga o Ngai Tahu Bill: extended to 3 September 1993. Queen's Chain Protection Bill: 16 February 1994.



Parliamentary Commissioner Report on Treaty Negotiations

Replies Supplement 7 June 1994 p84

Sandra Lee: "What procedure, if any, does [the Minister] propose to apply to consider the report currently being prepared by the Parliamentary Commission [sic] for the Environment on consultation in relation to the Waitangi Treaty negotiations and settlements?"
Hon D Graham (Minister in Charge of Treaty of Waitangi Negotiations): "I will read it and then call for officials to prepare a report for the Cabinet Committee on Treaty of Waitangi issues."

[ed: the report is being prepared on the initiative of the Parliamentary Commissioner. It is expected to be available before the end of July.]



Public consultation

Replies Supplement 28 June 1994 p31

Hon D Graham: "Because of the variety of issues that ... a claim may raise, there is no standard public consultative process. As a general rule, negotiations are held in camera ... Third parties affected by a proposed settlement are then consulted as appropriate. .... Government is presently considering a number of generic policy issues on the settlement of Treaty claims and in the course of that consideration will address the appropriate extent of public consultation required on those policies."



Natural Resources

Replies Supplement 14 June 1994 p15

Hon K T Wetere: "Has [the Minister] received the reports reviewing the effect of Maori land claims on natural resources; if so, what do those reports say?"
Hon John Luxton (Minister of Maori Affairs): "In my capacity as Minister of Maori Affairs, I have no knowledge of any report which specifically reviews the effect of Maori land claims on natural resources. Perhaps the honourable member will elaborate ... in order that I can satisfy his request."

[ed: this question would appear to refer to the resource policy which is under development and which was noted in Crown submissions to the Waitangi Tribunal hearing the Whanganui river claim (see above).]



Government Position Regarding the Conservation Estate

Ministers of Conservation and Treaty Negotiations, 24 June 1994

This Cabinet paper sets out the government position on the settlement of claims affecting conservation land. The "conservation estate" is "held by the Crown on behalf of all New Zealanders" and is not "readily available" for the settlement of claims. "Discrete sites" (but including river and lakebeds and mountains where special significance is demonstrated) could be considered for settlements. Before any conservation lands are considered, government must be satisfied that a settlement will not affect the strength of existing legal mechanisms protecting:
- conservation values;
- public access;
- the rights of existing concessionaires.

Three possible legal regimes are outlined:
- vesting in Maori, in "rare cases", possibly with legislative encumbrances;
- vesting in Maori, subject to conditions, and the return of title on non-compliance;
- continued Crown ownership, with a significant Maori management role.

[ed: Maori groups probably already know that conservation land (or any land) is not "readily available" for settlements. They may be disappointed with this apparent closing off of options without consultation. Conversely, conservation groups will not be reassured by the general language used. One commentator has already claimed that the policy broadens the grounds for using conservation lands in settlements (Evening Post 29 June 1994 p20). The lack of definition is a difficulty. What is the "conservation estate" and what are the values which that phrase embodies?]



Ngai Tahu settlement

Replies Supplement 28 June 1994 p31

John Blincoe: "What further processes will be carried out before the Government makes a decision on the future tenure of the Greenstone, Elfin, and Routeburn Stations; will such processes include public consultation?"
Hon D Graham (Minister in charge of Treaty of Waitangi negotiations): "The decision on further processes ... is ultimately one for the Minister of Lands to make. The ... Minister of Lands and Minister of Conservation [Hon Denis Marshall] will, however, consult with me before making his decision. ... the Department of Conservation is currently completing an assessment of the conservation and recreation values of the properties to ensure that such values are sufficiently safeguarded in an possible settlement with Ngai Tahu ..."



Claims to National Parks

Replies Supplement 28 June 1994 p31

Hon D Graham (Minister in charge of Treaty of Waitangi negotiations): "... there are no claims which specifically relate to National Parks. Most claims are general in nature [with] no indication of whether or not a National Park is being claimed until the matter comes to formal hearing ... As an example, the Taranaki Raupatu claim refers to all land confiscated under the Native Settlements Act [ed: NZ Settlements Act 1863] which would include the Mount Egmont National Park. ... until final submissions are made, it is not known whether the park itself will be subject to claim. A similar situation exists with the Urewera National Park and the Tuhoe claim ...".



Policy on approvals for customary taking

Replies Supplement 7 June 1994 p40

Graham Kelly: "Why did the Ministry of Agriculture and Fisheries refer a Samoan church group to a local kaumatua for a permit to harvest seafood for a feast?"
Hon Doug Kidd (Minister of Fisheries): "In keeping with the intent of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 my ministry sets the uses for which fish may be taken. It has no part now, nor has it had in the past, in giving out individual approvals for Maori customary harvest. That role has been provided in regulation to Maori since 1986. There are differing views in Maoridom as to whether customary uses includes not only the right to take fish in a traditional manner, but also the right to approve other groups who may harvest fish in a customary way.
The issue will be clarified and defined in the customary fisheries regulations that will arise from the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
In this case the kaumatua concerned considered that he was allowed by custom to approve people other than Maori to harvest under his authority. His right both to grant a permit in the area concerned and to grant it to a non-Maori group has been challenged."



Annual access fee

Replies Supplement 21 June 1994 p13

In answer to questions from Pete Hodgson MP, the Ministers for the Environment, Maori Affairs, Finance, Conservation, Fisheries and State Services confirmed that the advice from officials in each of their departments had been in favour of an annual access fee for fishing quota.

[ed: the government dropped the idea of a fee mainly because of concern about the legal impact on the Sealord settlement. The Treaty of Waitangi Fisheries Commission opposed the fees (Tangaroa no 19 June 1994)]



Resignation of chairperson

Replies Supplement 28 June 1994 p19

Hon Maurice Williamson (Minister of Broadcasting): "Mr Brown advised me that his reasons for resigning ... were that he felt that Te Mangai Paho should be given a policy advice role and should operate with a greater level of autonomy. The relevant section of the Broadcasting Act defines Te Mangai Paho's sole function as being to 'promote Maori language and Maori culture by making funds available, on such terms and conditions as [Te Mangai Paho] thinks fit, for broadcasting and the production of programmes to be broadcast.'"

The Minister continued that the Ministry of Commerce is to report by the 30 November 1994 on the new Maori broadcasting policies. This review is to provide Maori broadcasters and others with an opportunity to express their views on the policies and how they have operated.



Effect of Todd report on Maori

Replies Supplement 14 June 1994 p15

Hon Dr Lockwood Smith (Minister of Education): "The Todd Report is ... not a statement of Government policy. Government will be considering the recommendations contained in the report over the next few months. ... It will be necessary to give careful consideration to the various arguments alongside the impact of each proposal, particularly in relation to the likely participation in tertiary education and training of various groups, including Maori."



The Maori Land Legislation Manual - Te Puka Ako Hanganga Mo Nga Ture Whenua Maori

Crown Forestry Rental Trust, June 1994

A computer database containing details of 1,166 enactments and ordinances affecting Maori from 1840 to 1993 (276 of the most important are contained in an accompanying printed manual). For each enactment the database provides the dates of assent, commencement and repeal, lists all amendments, analyses major sections, and provides commentary and references from Parliamentary debates and papers (AJHRs), secondary sources, law reports and Waitangi Tribunal reports. Records are also arranged around subject headings including; the Maori Land Court - structures and jurisdiction, land boards, Maori trustee, alienation, status of land, confiscation, waste lands, development schemes, survey issues, public works, reserves, fisheries, lakes, rivers, foreshores. Also included are lists of statutes in 3 subject areas, harbours (704 acts), waste lands (51 acts), goldfields (69 acts).

Claimant groups before the Rental Trust will receive free copies. The database is publicly available through GP Print for $500. It runs on an Apple/System 6 or PC/Windows 3.0 system and requires Claris Filemaker Pro 2.0. The data takes 4-6mb of disk space.

[ed: this database is "user friendly" and will be an invaluable aid to researchers and lawyers in the field of Maori claims. Its prime achievement is to order and make sense of the large number of statutes which affected Maori through the colonial period. It is in its own right a fascinating study of colonisation through law. Researchers are able to approach an issue through dates, subjects, type of act (public, local, provincial etc) and key words such (including block names in some cases), and quickly map out the relevant law. By way of example, the keywords "Treaty of Waitangi" produce 51 records, including the Thorndon Reclamation Act 1882, still in force, and a commentary recording the statement of the Maori MP Tawhai that he felt sorry for the fish that would be driven from their homes by the act, and "By the Treaty of Waitangi it was supposed that the Maori were to retain all their goods and property whether above or below the earth, and the Europeans bought only the surface."]



The Next Three Years on the Path to 2010

National Government, June 1994

A document providing "specific objectives and a work programme for achieving the vision set out in Path to 2010". Under the heading Maori development, two objectives are outlined:
- to reach fair settlements to claims, including settling all major claims by 2000
- tackling Maori disadvantage through employment and education initiatives.

Specific strategies for employment and education include awaiting the Employment Task Force report and giving careful consideration to its recommendations, the gradual phasing in of an obligation on young people to be in training or work, and maintenance of current TOPs and similar programmes.

[ed: described by one economist as a document "studded with platitudes" (Dominion 24 June 1994).]