August 1994 Contents

Customary Use and Conservation

A debate is currently taking place between the Department of Conservation and Non Government Organisations (NGOs) about wildlife, the meaning of "conservation" and Treaty of Waitangi obligations.The Conservation Act, which came into force in April 1987, was designed to promote the conservation of NZ's natural and historic resources. "Conservation", in the Act, is defined as "the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations." Section 4 requires the department to give effect to the principles of the Treaty of Waitangi. One interpretation is that this requires the Crown to allow iwi continued rights of access to their taonga, including continued customary usage.

Some NGOs are concerned about section 4, believing that it should not allow continued taking of endangered species, particularly birds like the kereru (wood pigeon), toroa (albatross) and titi (mutton bird). They point out that the Conservation Act does not mention sustainable use. It is said that the words "preservation and protection" do not envisage the killing of wildlife. However, the Wildlife Act 1953, also administered by the department, already allows for some native species to be hunted or killed. Protected species may be taken for authorised purposes, including traditional and cultural uses. The harvesting of some bird species on off-shore islands is permitted, for example, by descendants of the tangata whenua of the islands.

This duality is in line with the current international approach. In June 1992 over 150 countries, including NZ, signed the Biological Diversity Convention which was developed under the Auspices of the United Nations Environment Programme (UNEP). Its objectives are the conservation of biological diversity (which includes species and their habitats, and ecosystems) and the sustainable use of these component parts. Particularly relevant to the customary use debate is article 10(c) which requires countries party to the convention to "protect and encourage customary uses of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements." NZ ratified this convention in September 1993.

Internationally, therefore, customary uses - rather than being seen as a threat to a preservationist ideal - are, within an overall scheme of conservation, positively encouraged.


Maori Land Court and Appellate Court

Waihi Kahakaharoa 1Z2B2B block

14 Aotea ACMB 38, 1 August 1994. Hingston J, Carter J, Isaac JAn appeal against a decision dismissing a partition application, in part because the court found the land had spiritual and cultural significance to the hapu, being untouched since its original partition.

Held: the appeal should be disallowed. Partitions are to be refused if the court is of the opinion that they are "inexpedient" in the interest of the public, owners or other persons interested in the land (s174/1953). In approaching s174:

- the court should go beyond the strict wording and take an overview of the partition sought;
- partition is not an automatic right for a shareholder, but a discretion of the court;
- the court may adopt an inquisitorial approach taking account of all relevant factors;
- s174 is to be read disjunctively. Inexpediency for one of the 3 groups mentioned is enough to refuse an order;
- inexpediency for one group ipso facto must be inexpedient in the overall interest of all owners.
(See In Re Manawatu-Kukutauaki (1981) 13 Whanganui ACMB 76, In Re Motukawa (1981) 13 Whanganui ACMB 20, Part Kaikoura No 4 1993 Waiariki ACMB 10).

The Appellate Court will intervene only where the lower court has decided upon a wrong principle or taken into account an irrelevant consideration, given the wrong weight to relevant considerations, or if there would be injustice if the Appellate Court did not intervene (Re Tarawera C6 (1982) 9 Takitimu ACMB 286, Re Kairakau 2C5B, Kapiti Farm 10 Takitimu ACMB 64, Part Kaikoura No 4 1992 1 Waiariki Appellate MB 10). None of these grounds had been made out on the appeal.

On an application to introduce further evidence in the appeal, In re Whareongaonga 5 and Skuse [1973] 30 Gisborne ACMB 158 (Tai Whati p167) establishes that evidence can be introduced which 1) could not have been obtained with reasonable diligence at the trial, 2) would have an important influence on the case, 3) was not controversial as to the belief which might be placed in it.

[ed: Te Ture Whenua Maori s288/1993 sets out specific criteria to be considered by the court before approving partitions, including the opinion of the owners as a whole, the effect of the proposal on the interests of the owners, the best overall use and development of the land. Sufficient notice must be given and there must be a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. The court must also be satisfied that the partition is necessary to facilitate the effective operation, development, and utilisation of the land. The Explanatory Note on the Bill as introduced in 1987 (this clause was not significantly amended) stated that the new provisions follow the approach of the Motukawa case]



Tuaropaki E block

66 Taupo MB 156, 13 July 1994, Hingston JUnder the Geothermal Energy Act 1953 the Crown had in the 1980s entered onto this block and, without granting compensation (none being required by the Act), drilled 5 bores for the investigation of geothermal energy. Application was now made under s18(1)(a)/1993 for a determination of ownership of the bores and associated well-head structures.

Held: the court had jurisdiction to determine the issue under s18 (a re-enactment of s30(1)(a)/1953). Since 1982 an amendment to s30(1)(a)/1953 provided that the court should determine disputes in respect of Maori freehold land irrespective of ethnic origin of the parties. The Geothermal Energy Act and associated regulations had not created a statutory profit a prendre as contended, but instead envisaged that any investigation of geothermal potential would be followed by a decision whether to take the land. No decision had been made to take or vacate after the exploratory work, accordingly the Crown's continued involvement with the wells might be ultra vires or at least a trespass. Section 354(1) RMA (Crown's existing rights to continue) merely preserved rights and did not create them. Common law rules regarding fixtures to land had not been overridden by statute. The bores and well-head structures were fixtures and therefore part of the land and owned by Tuaropaki E block.

The court expressed disquiet at being told not to proceed with this matter as legislation was intended to confirm Crown ownership.

[ed: The Finance (No 2 Bill) Part VI Geothermal Wells Vesting and Empowering is intended to confirm Crown ownership of these wells without compensation to landowners. Submissions have closed on the bill and the Government Administration Select Committee is preparing its report. Several commentators have questioned the constitutional appropriateness of the bill (The Independent 29 July, 19 August 1994). Approximately 120 wells are affected in the geothermal fields at Whakatane, Te Kopia, Waiotapu, Tauhara, Ruahine, Reporoa, Rotokawa, Ngawha, Orakeikorako, Ngatamariki, Mokai, Mangakino, Atiamuri, Horohoro, and Kawerau (2nd Schedule)]


Waitangi Tribunal

Sir Graham Latimer and Others re Broadcasting

Wai 176, 22 July 1994The report noted that this claim concerned Crown proposals re broadcasting said to be contrary to the Treaty. Many of the issues had been covered in the tribunal Te Reo Maori (Wai 26) and Radio Frequencies (Wai 150) reports. The issues had also been litigated in the High Court, Court of Appeal and Privy Council. Accordingly unless the claimants indicate otherwise, the tribunal will not make further inquiry into the claim.



Waitangi Tribunal and Maori Land Court Budgets 1994-5

Replies Supplement 2 August 1994The tribunal budget is $3,408,000 comprised of research ($1,402,000), administration ($743,000), hearing costs and members fees ($962,000), specialist advisory and information services ($301,000). This is an increase of $862,000 over the previous financial year. The Maori Land Court budget is $6,630,00 including $200,000 to cater for s30/1993 hearings (power to determine appropriate representatives of a group for any proceedings or negotiations).


Other Jurisdictions

Auckland Casino Ltd v Casino Control Authority & Ors

M81/94, 13 July 1994, Robertson JAn application for judicial review of the decision of the Casino Control Authority to grant a licence to a company (STCL) in preference to other applicants, including Auckland Casino Ltd (ACL), a company half-owned by Aohou Ltd in trust for the Maori Congress and its iwi members, and half-owned by a Hong Kong based subsidiary of a multi-national conglomerate. Held: dismissing the application, that most of the allegations concerned apparent (not actual) bias, and none of these had been made out. Of particular interest: ACL had waived the right to object because they failed to object during the hearing when they had knowledge of matters now put forward as evidence of bias. The argument of ACL that they could not have objected at the hearing without undertaking consultation as required by tikanga Maori was not supported by "one skerrick of material". However the court agreed that because the Treaty partnership is part of the "philosophical and cultural core" of NZ, courts should endeavour to interpret activity so that recognition is given to the Treaty, and might reach a different conclusion in cases where, because of tikanga Maori, a response was not forthcoming from Maori which might otherwise have been expected.

In response to various allegations that apparent bias existed because the authority inappropriately dealt with Maori witnesses and issues, it was found: - the lack of a Maori person on the authority was a statutory matter and not one for court review;
- the Maori Language Act 1987 applied to the proceedings. Section 2 providing that bodies with the powers of a Commission of Inquiry are subject to the Act, and this was a matter "of particular interest to the Maori people" because of Maori involvement in the ACL bid.
- there was however no evidence that any witness "triggered" the Act by seeking to present evidence in Maori requiring translation;
- failure to meet the requirements of the Act might be an error in law rather than evidence of bias;
- the authority had sought to accommodate ACL in the presentation of their case, and any breach of protocol was innocent.

[ed: while many of the grounds in this application do seem to have been, as the court put it, "post hoc rationalisations" by the disappointed applicant, the finding that "there was no occasion on which there was evidence presented in Maori which required translation" followed by the admission that Maori was used "in areas of formal Maori protocol" suggest that the authority may have missed entirely the significance of any Maori greetings. Surely any authority making a determination with significant legal consequences should ensure that it has the means to understand all that is said before it?]



Panekiri Tribal Trust v Wairoa District Council & Bay Kayaks Ltd

W62/94, 25 July 1994, Kenderdine JThe trust sought to appeal out of time against a consent given to operate a kayaking business on Lake Waikaremoana.

Held: the appellants had failed to comply with any of the requirements of notice of an appeal under s121/1991. As to allegations re lack of consultation, the council had been "exemplary" in its approach. Members of the trust had been at consultation meetings, making this aspect of the proposed appeal almost vexatious. Procedures for issuing notices might seem complicated, but are in the same legislation from which Treaty references were quoted by the trust.



Whakarewarewa Village Charitable Trust v Rotorua District Council

W61/94, 25 July 1994, Kenderdine J & commissioners J Rowan, F EasdaleAn appeal against the Rotorua District Council for refusing land use consents to the Whakarewarewa Village Charitable Trust for the marketing of tourist items from 9 of 89 lots in the Whakarewarewa village. One million tourists visit the area each year. Houses had been erected on the lots in 1988-89 as part of a scheme to have people seen making crafts in their residences. To provide funding, leases over the lots were mortgaged to the Housing Corporation. The scheme was now in financial strife. It was proposed to sell items directly from the houses. This was said to be the continuation of a commercial tradition from the early days of tourism.

Other families in the village objected that it had not been envisaged that sales would occur from the houses or that monies from retail sales would not be shared. The council considered the proposal under a special residential zone of its existing and proposed plans, allowing for the creation of crafts in houses where this was incidental to residential use, but not sale from houses. Officers of the council fully consulted with the villagers before the application was heard and rejected.

Held: allowing the appeal and the sale of crafts, but with conditions, the tribunal reviewed briefly the traditional history of the geothermal area, the advent of tourism, including the acquisition by the Crown of much of the valley in 1896.

Kaitiakitanga properly required control of the village to be vested in an iwi authority. Since this had not occurred, others (the council) had to assume that role to balance the demands of different groups. Until an iwi authority was formed village development would be subject to an examination of the commercial minutiae of proposals. Noted that kaitiakitanga is broader than a focus purely on economic viability needed to sustain a development. In the long term a formal plan would be needed for managing and preserving the resources of the village.

The Treaty envisaged a share for Maori in the commercial development of the country and a right to develop their own resources. Article II includes the right to use, manage and dispose of property and make profit by common agreement, but not the right to be protected from any commercially perceived risk. Planning law has merely to ensure that commercialism is managed at a sustainable rate, avoiding, remedying or mitigating adverse effects.

Each proposal was considered in detail, the tribunal noting that it could not consider commercial viability, including competition from other like businesses. Nor could it consider the objection that returns would go to individuals rather than the village as a whole. It sought only to mitigate the "adverse commercial effect" on the social fabric of the village which might arise if the craft outlets became merely a series of souvenir shops with little or no input from indigenous craft-makers of the village or elsewhere. Accordingly, retailing was to be limited to traditional craft (with 2 minor exceptions).

Regarding consultation, councils (not applicants) are required to undertake consultation with Maori prior to hearing applications for resource consents, but only through council officers, so that the hearing of consents by council in its quasi-judicial capacity is not compromised. Quarantine Wastes (NZ) Ltd CP 306/93 followed. The Gill decision [1993] 2 NZRMA 604 did not intend to suggest otherwise when it said that the "council" needed to consult prior to hearing a resource consent. This might not necessarily apply to consultation by councils in relation to duties under s32 (duty to consider alternatives etc before adopting objectives, policies, rules etc) prior to notifying a plan change or new plan. As to whether greater weight should be given to existing plans as opposed to proposed plans under the RMA, in cases such as this a "pragmatic approach" should be adopted in view of the significant Maori concepts such as kaitiakitanga and the promotion of Treaty principles in the RMA (JJ Hanton and others v Auckland City Council A10/94, 1, 33-34 followed).

Regarding the ability of a local authority to transfer functions (including the hearing and granting of resource consents) to an iwi authority (s33/1991): here the council, having made a decision on the resource consent application, had no residual ability to refer the matter to an iwi authority. Section 290(1) (Planning Tribunal on appeal to have the same powers and discretions as the original decider), might allow referral of a matter to an iwi authority under s33. But earlier decisions have shown that the tribunal will only grant the relief expressly sought or contemplated by appellants, and the appellants here did not contemplate in their appeal the implementation of an iwi management plan. The tribunal might not decide of its own accord to initiate an iwi development plan, as this did not generally fall within its function as an appellate authority. A fresh application would be required.

The tribunal noted with concern, but could not itself consider, the possibility that, as financial arrangements now stood, leases of the lots might be forfeited to occupiers with no traditional ties with the village. This would "seriously erode" the cultural character of the village.

[ed: this decision shows that if provisions under the RMA for iwi management plans are not taken advantage of, iwi can find planning authorities and the tribunal controlling the minutiae of their lives. One decision of the tribunal in this case was that a particular lot could sell walking sticks of wood, but not plastic! Not surprisingly, the tribunal thought this a prime case for iwi to plan and manage their own affairs within the district plan. In the meantime, they face the ignominy of the local authority performing the role of kaitiaki for their village. The comments clarifying consultation requirements will be welcomed by councils]



Tauranga District Council v Toa Haere Faulkner & Another

Plt No 1110/93, 15 August 1994, IB Thomas JA claim for payment of rates in respect of Maori freehold property. The defendant replied that the land remained customary land under Te Ture Whenua Maori 1993 (whose definition differs from that under the 1953 Act); alternatively that, historically, the Maori Land Court with regard to this block had merely passed on by its succession orders an unextinguished customary title.

Held: that these defences were estopped by an earlier decision of the MLC assuming this block was Maori freehold land. The 1953 definition was in force when the rating orders were sought. The MLC had dealt with the land as Maori freehold land since 1921.



Discussion Material on Allocation Models for Consultation with Iwi

Te Ohu Kai Moana - Treaty of Waitangi Fisheries Commission, August 1994Sets out 3 models for allocation to iwi of pre-settlement fisheries assets, including over 57,000 tonnes of quota. The models are 1) Manamoana (proportion of the Total Allowable Catch occurring off-shore from landward boundaries of each iwi at 1840), Population, Progressive Allocation (staged allocation using the manamoana approach). The model finally chosen must be consistent with tikanga Maori, with legislation, meet social and economic needs, be financially viable, technically feasible and politically sustainable. After consultation, Te Ohu Kaimoana will, later in the year, recommend a model (with or without unanimous iwi support) to the Government, which will have 30 days to respond with any changes.

Each model incorporates a common process for registration of iwi and resolving disputes among iwi about their respective allocations. The manamoana and progressive allocation models would use 1840 as the date when an iwi coastline is determined, but the commission recognises that "some flexibility" might be required in its application.

[ed: the preferred model of Te Ohu Kai Moana is manamoana. For each model, except the population model, the origin of the model in the Treaty and Waitangi Tribunal reports is discussed. This is significant since the first criteria for selection of a model is its accord with "tikanga Maori". The procedures for registering iwi revive elements of the repealed Runanga Iwi Act. The dispute resolution process, when applied to the manamoana model, might see the commission acting in some respects as the land court did last century, applying an '1840 rule'.]



Notification of Proposals to Establish Taiapure-Local Fisheries

NZ Gazette, 4 August 1994Three Taiapure-Local fishery proposals have been notified as agreed in principle by the Minister of Fisheries. Objections are to be lodged by 4 October 1994. The proposed fisheries are:
- Nga Taonga o Ngati Kere (near Cape Turnagain)
- Waikare Inlet, Waikino and Manawaora Creeks
- Maketu and Waihi Estuaries, and a coastal strip from Wairakei to Otamarakau.



Keynote Address to Hui Whakapumau - Maori Development Conference

Chief Judge ET Durie, 10 August 1994In this hard hitting speech commenting on the decade of Maori development since the Maori Economic Development Summit of 1984, the Chief Judge noted that, on the basis of human rights and Treaty jurisprudence, a compelling case exists for an independent and adequately funded Maori agency to formulate Maori policy and development proposals. A proposal in 1985 that a largely independent Maori body replace the then Department of Maori Affairs was rejected by Cabinet. This compared unfavourably with the Aboriginal and Torres Strait Islander Commission created around the same time with extensive aboriginal representation and with Canadian efforts at tribal self government. Consequently, Maori now face a proliferation of competing organisations in districts, rivalry between districts and the unilateral development of a claims resolution policy by government with no significant Maori input. Lack of funding for solutions generated by Maori reflects disturbing elements of the colonial era. Lack of an independent body answerable to Maori means current Ministry of Maori Development policy is state policy, no matter how benign. Consultation by the state is insufficient in that it elicits a response but denies Maori initiative. Important positions in Maori policy formation, including positions in the Maori Land Court and Waitangi Tribunal, are filled by state nominees according to criteria the State judges to be important.



Maori and the Law in the Light of the Life, Works and Legacy of Sir Apirana Ngata

Chief Judge ET Durie. Opening address on the centenary of the graduation of Sir Apirana Ngata, University of Canterbury, 24 June 1994.Ngata's achievements as a lawmaker stemmed from the view that the true art of law is not the maintenance of prescriptive rules but the delivery of substantive justice. There is a need for Maori lawyers to develop skills in statutory drafting, parliamentary mechanics and lobbying to provide the technical expertise to Maori politicians to promote and advance legislation under the MMP system.

Maori jurisprudence needs development. Ngata argued in 1937 against a proposal to vest all petroleum in the Crown, contending that whether Maori knew about oil in 1840 was irrelevant. There is no sound basis in law that rights of indigenous people must be locked into such as existed at the time of colonisation, although this approach appears to have been followed in Tainui Maori Trust Board [1989] 2 NZLR 513, 527 (Maori knew about coal) and Te Runanga o Te Ikawhenua v A-G CA 124/93 17 December 1993 (Maori did not know about electricity generation). Ikawhenua claimants might have been better to have used Ngata's line, that if they owned the river, they had the right to any development of it. What is required from Maori lawyers today is not an interpretation of the law but "a vision of how it should be developed".