July 1994 Contents

Assessing Performance

Tau Henare (MP for Northern Maori) has asked each government minister: "In each year since the Act became law, what information, if any, has [the relevant department] provided on request to the Ministry of Maori Development to assist in its statutory monitoring role under section 5(1)(b) of the Ministry of Maori Development Act 1991?" (Replies Supplement 12 July 1994). Section 5(1)(b) provides that the Ministry is responsible for "Monitoring, and liaising with, each department and agency that provides or has a responsibility to provide services to or for Maori for the purpose of ensuring the adequacy of those services." The Act gives no other guidelines on this function. Nor is it spelt out what must occur if services are found to be inadequate.

Responses from most departments referred to ongoing liaison and consultation on a number of issues. For some departments, no formal request for information had been received, although liaison was occurring. No department provided information about the particular measures it was using to determine whether its services to Maori were adequate, or how it was performing against those measures. Undoubtedly, this was in part because answers had necessarily to be brief. However, this also reflects the vagueness of the 1991 Act.

The Hon Tirikatene-Sullivan (MP for Southern Maori) has asked each of the government ministers "Is the Treaty of Waitangi referred to in the mission statement of any department or ministry under the minister's jurisdiction; if so, how is this reflected in the recent Budget?" (Replies Supplement 19 July 1994). The Budget appears to have contained little directed specifically towards Maori. The answers to this question are not yet in, but promise to make interesting reading.

The government in the coming weeks will, under the new Fiscal Responsibility Act 1994, be called to answer difficult and quite specific questions about its financial performance. Judging from the questions of the Maori MPs, in assessing government performance on Maori issues, perhaps a Treaty Responsibility Act would be helpful.


Maori Land Court and Appellate Court

In re Orokawa 3B Block and Dovey Erena Regeling

Appeal 1994/7, 4 July 1994, Deputy CJ Smith, Hingston, Carter

Appeal from a decision setting aside land as a reserve under s338/1993 (old s439/1953). In the course of disposing of an application under s173/1953 concerning the vesting of certain land in beneficial owners, the court directed the applicant (the Maori Trustee) to convene a meeting of all beneficial owners to consider placing residue land in a reservation. The court subsequently, without further application, reopened the matter and ordered the residue land be reserved under s338/1993.

Held: allowing the appeal, there was no application for reservation before the court, and it therefore lacked jurisdiction to make the s338 order. Section 37(1)/1993 provides that jurisdiction may be exercised only on the application of any person having an interest in a matter, the Minister, Chief executive, or a registrar of the court. The only situation in which the court can make orders on a matter about which there has been no application is in the course of hearing an original application on a matter, and the need for additional orders arises (s37(3)/1993). In this case, the original application had been disposed of when the court reopened the matter.

It was also noted that the appellant had advanced this ground of appeal at the hearing. It had not been stated in the notice of appeal. Although the Maori Land Court Rules forbid such a proceeding, the court would permit the new ground to be advanced. As a "titles Court", the MLC has a responsibility to remedy `patent deficiencies' in lower court proceedings (In Re Ngapuna 4 v H Allen Mills and Son Ltd[1972] 5 Waiariki ACMB 332 and In Re Maungatatari 5B1A v Baillie [1976] 15 Waikato Maniapoto ACMB 188 applied).



In Re Matiu Rata and Committee of Management for Muriwhenua Incorporation

Appeal 1994/8, 22 June 1994, Deputy CJ Smith, Hingston, Carter

In 1991, at the instruction of the court, the registrar filed an application under s61/1967 to investigate the incorporation after it had failed to file audited accounts. A long sequence of hearings followed. An examiners report was filed and considered. There were several adjournments as the court sought to have up to date accounts presented, culminating in a hearing in December 1993 at which the court made an order under s61(6)/1967 appointing 7 new members to the committee of management, impliedly replacing the existing members. It then dismissed the s61 application since further investigation was unnecessary. It was argued that the court lacked jurisdiction to make the order replacing committee members, and made it in breach of natural justice in not giving notice to existing members.

Held: the court undoubtedly had power to direct the registrar to file an application and to order an inquiry under s61/1967 given the failure to file audited accounts up to 1991. However, a fresh application, and fresh notice, would have been required to investigate the late filing of accounts after 1991. Consequently, directions relating to the filing of later accounts moved beyond investigation and towards a monitoring of the continuing activities of the incorporation. There was no jurisdiction under s61 to do this.

The orders flowing from this wrongful exercise of jurisdiction were therefore flawed. The order replacing committee members also failed because no notice was given as required under s61(5) and by principles of natural justice.

The failure to file accounts nevertheless established a prima facie case for removal of some or all of the committee. This issue was therefore referred back to the lower court to consider action not only under s61(5) but also s61(6) which gives wide powers to remedy any deficiencies or problems experienced by an incorporation.

Finally, the order dismissing further proceedings under s61 after appointing new committee members was a nullity, as the court disposed of all matters under the s61 application on the making of the appointments.



In Re Ongarahu B and Eriapa Maru Uruamo

4 July 1994, Deputy CJ Smith, Hingston, Carter

Appeal against an order appointing trustees to replace existing trustees. It was argued that inadequate notice was given and the court lacked jurisdiction to make the orders.

Held: allowing the appeal, that the notice of meeting did not specify what the meeting would be about. That many people might have been aware of the subject of the meeting was not sufficient. Presumed notice is not adequate notice (Jennings v Scott (1984) High Court Rotorua A1 83/79 applied). In addition, there is no jurisdiction to remove trustees under s338(7)/1993, but only power to vest land in trustees and appoint new or additional trustees. Trustees may only be removed under s240/1993, which requires prior notice to be given to those trustees affected.

[ed: as to the power to remove trustees under s240/1993, see In re AMP Perpetual Trustee Company NZ Ltd and Faulkner and the Poripori Farm Trust 53 Tauranga MB 132, 12 April 1994, Carter J, reviewed in MLR June 1994 p2]



New Maori Land Court Judge

Minister of Maori Affairs press release 20 July 1994

Patrick John Savage, a Rotorua solicitor, has been appointed a Judge of the Maori Land Court. He will sit on the Rotorua court serving the Waiariki District. He is of Ngati Porou descent through Te Whanau-a-Ruataupiri and is married with 3 children. At the time of his appointment he was a partner in the Rotorua firm Davys Burton.



Te Ture Whenua Maori Amendment Act 1994

This Act was assented to on 1 July 1994 and amends the law relating to:
- cross leases of Maori freehold land
- payments of proceeds of alienation of Maori freehold land

- termination of agency by the court
- acquisition of land by incorporations for investment purposes
- amendments to constitutions of incorporations by special resolution, including adjustment of share capital
- minor drafting errors in the principal Act.

It is substantially the same as the bill reported at MLR April 1994 p4 apart from minor changes in wording.


Waitangi Tribunal

Whanganui River claim

Wai 167, D18, 27 July 1994, counsel for claimants

In closing submissions, remedies sought by the claimants were outlined. The major recommendations sought being that the Crown reject the application for a water conservation order for the river and recognise the Whanganui River as having legal personality, as the tupuna awa of the Whanganui iwi (reference made to English cases concerning Hindu religious institutions recognised as 'juristic entities', Mullick (1925) 52 LR Indian Appeals 245, Bumper [1991] 4 All ER 638). Under such a regime, the iwi would manage and control use of the river for the benefit of the river, the Whanganui iwi and the wider community in accordance with the Treaty of Waitangi. From December 1998 or an earlier agreed date, Whanganui iwi would be given sole right to make laws for management and control of the river (including repeal of s354 RMA saving Crown rights to the river bed under the Coal Mines Act/Mining Act). Existing rights would continue until that date. The claimants also seek, if required, Crown assistance to enable the rehearing of the 1962 Court of Appeal decision dismissing a claim to legal title to the bed of the Whanganui River (the Court of Appeal in Te Runanga o Te Ika Whenua v A-G [1994] 2 NZLR 20, 26-27 made obiter comments that the approach in the 1962 case may have been limited, since the aboriginal title doctrine was not raised). Crown counsel argued that the claim in its current form is a recent development, and that, in the past, interests in the river have been alienated as riparian lands were sold. The ad medium filum rule applies and accords to an extent with Maori custom regarding interests in rivers.

[ed: hearings in this claim have now been completed and the tribunal report is expected later this year]


Other Jurisdictions

Waitutu Inc v Southland District Council and Minister of Conservation

C68/94, 15 July 1994, Skelton J & commissioners NJ Johnson, R Grigg

The Maori incorporation, Proprietors of Waitutu, appealed against the refusal of the district council to issue certificates of compliance enabling the incorporation to fell indigenous timber on the 2145 hectare Waitutu block. The block had originally been set aside for Maori under the South Island Landless Natives Act 1906.

The incorporation made two applications for certificates of compliance under s139 RMA. It first sought approval for the logging of trees on the block for commercial sale, then for the clearing of trees to permit grazing by deer. In each case the council would not approve the tree felling aspect of the proposals.

Held: as to the first approval sought, if the clearance of existing trees and planting of a production forest could be seen as one linked and continuous activity, then a certificate might issue under the existing district plan, but clearing the existing indigenous forest was a significant activity in its own right, and not permitted by the plan. As to the approval sought to permit clearance for grazing, similarly, the clearance of trees constituted a significant activity in its own right and was not merely incidental to the preparation of the land for grazing.

Regarding Part II s8 and the principles of the Treaty of Waitangi; if this were an application for a resource consent Part II would be relevant. It is doubtful whether Part II has to be considered when simply interpreting the provisions of a district plan, even though the purpose is to grant a certificate of compliance which is deemed to be a resource consent. Accordingly, evidence about the history of the land and its setting aside for landless Maori did not assist in determining the appeals.

In any case, the felling of this indigenous forest might well fail to achieve "sustainable management" as set out in s5 RMA (managing in a sustainable way while avoiding, remedying or mitigating adverse effects).

It was noted that the Crown, which owns the former Waitutu State Forest adjacent to the Waitutu block, and may add the former state forest land to the Fiordland National Park, had an interest in seeing that the forest on the Waitutu block remains untouched, but has no present intention to acquire it. On the basis of these interests in the adjacent land, the Department of Conservation was permitted to be heard (it had an interest greater than the general public - s274). Although the Department had been late by several days in filing notices of intention to be heard, this requirement was waived (there was no prejudice to other parties, the delay was small - s281).

[ed: The district plan was prepared under the Town and Country Planning Act 1977 which did not contain significant references to Maori values and the Treaty of Waitangi as does the RMA. Consequently, Maori values could not have been extensively taken into account in the preparation of that plan. This decision therefore potentially affects all areas where old district plans remain and have not been reviewed or replaced.

George McMillan has been appointed by the Crown to negotiate with the incorporation over protection of the forest. No deadline has been set for those negotiations (Replies Supplement 12 July 1994 p80).]



Simon Luxton & Ors v Bay of Plenty Regional Council & J Wirepa

A49/94, 14 June 1994, Sheppard J, commissioners IG McIntyre, F Easdale

Mr Wirepa applied to the regional council for consents to establish a paua farm. He consulted with, and obtained letters of support from, local Maori groups. Consents were issued by the council. Appeals against the consents were lodged by Maori persons in the district. These appeals were sent directly to the Registrar of the Planning Tribunal and were not notified to Mr Wirepa or the regional council. Mr Wirepa applied to have the appeals struck out.

Held: the appeals should be struck out. The RMA only allows the time for service to be waived when service has occurred late, not when it has not occurred at all. In any event, the RMA would not allow service to be given now because Mr Wirepa had spent considerable sums on the understanding that there were no appeals and would therefore be prejudicially affected (s281).

It was accepted that the appellants failure to serve their appeal was a result of "muddlement". They lived in a remote locality, but could have obtained advice by telephone. The Registrar had written to the appellants advising them of the need to serve their appeals, but had received no response.

The appellants were concerned about whether Mr Wirepa had backing from the appropriate tribal authorities, his claimed interests along with his whanau as tangata whenua, possible control of the paua farm by "undesirable elements" and the omission to consult "outside a formal confrontational situation". These were not matters the tribunal could consider. The tribunal would "avoid, if possible, making any findings about the status of a particular tribal authority, or about the scope of a whanau's rights as tangata whenua, or about which hapu might have traditional or customary interests in a particular area. Questions of "undesirable elements" could also not be considered. "It is the law that any person is entitled to apply for resource consents. .... an appeal against a grant of resource consent has to be decided on whether the proposal will promote the sustainable management of natural and physical resources, not on whether it might involve Maori failing to observe customary areas of interest of a particular whanau, hapu or iwi."

Regarding costs, it was noted that most of the proposed appellants were unemployed. However, this was not the tribunal's concern, and Mr Wirepa had incurred legal expenses in answering the appeals. The appellants should therefore make a contribution to costs. [ed: the "muddlement" and unexpected costs in this case might have been avoided had an iwi management plan existed in the region. Such plans must be taken into account by territorial authorities (see s61(2)(a)(ii), s66(2)(b)(ii) and s74(2)(b)(ii)). They also provide at an early stage the wider consultation the appellants thought was needed in this case. Procedures for the service of notices are strict under the RMA because of the legal and financial implications of appeals. These procedures may not be helpful to those living in remote localities without money or legal advice (who may often be Maori). Perhaps an amendment is needed requiring that all reasonable assistance be given by persons such as the Registrar on receiving appeal notices (in this case by passing a copy of the notice on to the regional council and asking them to further advise the objectors of the need to formally serve their objection on the council and Mr Wirepa). The Official Information Act contains a requirement for reasonable assistance to be given. The general procedure of the Waitangi Tribunal and the Maori Land Court is to give all reasonable assistance.]



Ngati Kahu Trust Board v Northland Regional Council & Lewis Lands Ltd

A48/94, 23 June 1994, Sheppard J

Lewis Lands applied for 2 resource consents for the taking and discharge of water for a camp ground. The board lodged a submission objecting to the applications, but withdrawn that submission after receiving written assurances about the location of the wastewater discharge, and restrictions on access by campers to sensitive sand dune and coastal areas (waahi tapu and rare species were present). The regional council accordingly issued the resource consents without a hearing. The consents included the board's condition about the location of the discharge. The board became concerned that the assurances about access by campers were not being upheld, and lodged an appeal to the tribunal against the regional council decision to issue the consents, asking that the tribunal make it a condition of the consents that access be restricted to the sand dune and coastal areas.

Held: the appeal should be dismissed. The consents given by the council related to water use and not access. Consequently, the tribunal could only look to the part of the agreement between the board and Lewis Lands which related to water use. The board withdrew its objection on the basis of an assurance about the location of the wastewater discharge. It thereby lost standing to appeal against the consents. Submitters should not in any event be able to cancel their withdrawal once the period for submissions has closed and a resource consent has been issued (the tribunal on appeal would be put in the situation of conducting a primary hearing).

A separate letter to the council from the board, stating that it did not wish to be heard, but reserving the right to appeal any decision of the council, was ineffective. The agreement with Lewis Lands contained no such reservation or qualification.

The intended appeal was also 'vexatious' because it would require the council and Lewis Lands to answer water discharge issues that had already been settled, and there would be no practical result from the hearing.

The fact that the board was currently the subject of a winding-up order did not preclude it from continuing proceedings under the RMA.



Reserves under negotiation

Replies Supplement 19 July 1994

The Minister in Charge of Treaty negotiations advised the following as current proposals to transfer ownership of reserves to Maori as part resolution of Treaty claims: Woodend lagoon/Tutaepatu Wildlife Management Reserve, Waikuku Beach/Karikari Recreation Reserve, and Crown Titi Islands in Ngai Tahu. Oke Bay (Hauai) Scenic Reserve in a northern Maori group (see Reserve and Other Lands Disposal Bill No 2). There is a proposal for joint management of Codfish Island/Whenua Hou Nature Reserve between the Crown and Ngai Tahu. These and any future proposals (others are under discussion) have been and will be subject to a process of public consultation determined on a case by case basis.


Australian Native Title Tribunal

Aboriginal Law Bulletin June 1994

As at 30 May 1994 the National Native Title Tribunal had received 21 applications for determination of native title. Seventeen had been "accepted" - that is, they were of sufficient particularity and prima facie value to be considered by the tribunal. Four remain "under assessment".