September 1994 Contents

New Zealand

A bill sponsored by the Hon Graeme Lee, and currently before a select committee (the Flags, Anthems, Emblems, and Names Protection Amendment Bill), seeks to ensure that the NZ flag, and the anthems "God Save the Queen" and "God Defend NZ" (declared in the bill to be "National Anthems of NZ") shall remain the national symbols, unless 65% of the members of the House or a majority in a national referendum agree otherwise (Her Majesty retains power to alter her own anthem however).

This proposal is in stark contrast to the current discussion about changing the name of New Zealand to Aotearoa. Some commentators have suggested that "Aotearoa" is not useful because it is a recent invention. This may be a little academic however since the place of Aotearoa in common usage seems assured. Many government departments and private agencies happily use it in their titles. It appears in all new passports. The Maori Language Commission has sanctioned its use. Thousands of documents produced every day contain it. Maori elders have been suggesting a name change for some time (most recently at Waitangi this year - Mana News 13 September 1994).

Perhaps the NZ Geographic Board Act 1946 could be useful here. One of the functions of the board is to "collect original Maori place names for recording on official maps" (s8(1)(f)). The current proposal would surely get support from the 2 persons appointed to the board as "representatives of the Maori race" (s3(2)). Unfortunately, the Board may only consider altering names to any place in NZ (the title to the Act gives it away). A pity, when another function of the Board seems particularly suited to this debate, namely s8(1)(e): "To determine what alien names appearing on official maps should be replaced by Maori or British names".


Maori Land Court and Appellate Court

In Re Nuhaka 2E3C8A2B

92 Wairoa MB 214, 22 August 1994, Isaac J

This case concerned the new provisions of the 1993 Act requiring that alienating owners give the first right of refusal to persons belonging to preferred classes of alienees. An application for confirmation of an alienation of Maori freehold land was opposed by trustees of an adjoining block of Maori land who claimed to be members of the preferred class of alienees who had not been given first right of refusal. The alienating owners questioned whether these persons did indeed belong to the preferred class.

Held: that the trustees and the beneficiaries they represented were of the preferred class, being whanaunga of the alienating owners associated with the land in accordance with tikanga Maori, and trustees of such whanaunga (s4(b) & (d)/1993). The reasons being:

- The court may only rely on the evidence before it, but must also consider the preamble to the 1993 Act, principles for interpreting the Act generally in s2 and general objectives in s17 which favour retention of land in Maori hands as far as possible.
- The adjoining trustees and the beneficiaries they represented could whakapapa back to an ancestor who was common to the owners in the block which was being sold.
- It did not matter that the common ancestor was some generations removed. "According to Tikanga Maori, right to land is validated by Whakapapa. The earlier the ancestor the stronger the right to that land. Land was claimed by Whakapapa because in accordance with Tikanga Maori all things were derived from the ancestors and were passed on to future generations. If a person can Whakapapa to an original owner or occupier of the land that person has a right to the land. The Whakapapa presented to the Court does not lose strength because it traces back for generations. In terms of Tikanga Maori it gains strength."
- The physical association with the land was a tenuous one (taking horses to it, walking across it to go to school, picking mushrooms), but tikanga Maori looks beyond a simple physical association to consider also historical and spiritual links. These links remain despite partitioning which has split up the original block. Although the trustees and their beneficiaries may not have used the land for many generations, their "inchoate rights" remained by reference to past association and whakapapa.

[ed: an important decision, perhaps the first of many, which sets out the principles on which the court will operate in this difficult area. Most importantly, the court has decided that the individualisation of title to land in the last 100 years is to some extent in Maori terms an artificial process, and physical links with a particular small block will not be the key criteria for membership of the preferred class. There may be implications in this approach for matters before the Waitangi Tribunal, and Te Ohu Kai Moana, where historic links with resources are under debate]



Waiohau B Section II and Oputea B2 Blocks

Tauranga MB 8 September 1994

This decision concerned the extent to which the land court may make orders when no party before it has applied for the orders made. In the course of disposing of 2 applications affecting a s438 trust, the court, of its own volition, made an order under s438(3)(a)/1953 replacing two existing s438 trustees with the Maori trustee. The jurisdiction to do this was s27(2)/1953 which provided that in the course of proceedings on any application the court may exercise any other part of its jurisdiction as it deems necessary. Section 27(2)/1953 has now been replaced by s37(3)/1993.

The order was appealed. The Appellate Court noted that the order had been made without giving notice, and, with the agreement of the parties, referred the matter back to the lower court for a rehearing.

In the course of rehearing, one of the parties requested the court, using its jurisdiction under s37(3)/1993, to appoint additional trustees.

Held: the request should be declined. Section 37(3) provides that further orders may be made only in the course of proceedings on an application. The rehearing had not arisen from an application, but from an exercise of the predecessor of s37(3) in the hearing of an earlier application that was now disposed of. The rehearing was therefore limited to the matter referred by the Appellate Court, removal of existing trustees and appointment of the Maori Trustee.

It was also noted that s438(3)(a)/1953 does not give jurisdiction to the court to remove a trustee who disputes that removal (Alexander v Maori Appellate Court & Ors [1979] 2 NZLR 44 followed).



Re Ngamanawa Incorporation

53 Tauranga MB 293, 24 August 1994, Carter J

A brief judgment which suggests that because the Maori Incorporations Constitution Regulations 1994 take effect from 1 June 1994, applications for appointment to committees of management filed prior to this date should follow the old procedure under s52(4)/1967. That procedure requires the forwarding of nominations to the court for it to make the appointment (the 1993 Act and new regulations do not require application to the court. See s269(5) & s284(2)(l)/1993 and cl 22-23/1994)



The Maori Occupation Orders Regulations 1994

1994/201, 12 September 1994

These set out the information to be contained (including a sketch map) in applications and the notice of applications required for the making of occupation orders under Part XV of the 1993 Act. The regulations come into force on 13 October 1994 (Part III of the Maori Land Court Rules 1994 also applies to occupation orders).



Maori Appellate Court Appeals 1990-1993

Maori Land Court September 1994

This compilation of judgments in typescript form contains 60 separate judgments and 433 pages and is available from the office of the Deputy Chief Judge of the Maori Land Court, Wellington.


Waitangi Tribunal

New tribunal member

Waitangi Tribunal press release 21 September 1994

The Hon Dr Michael Bassett has been appointed to the tribunal. He is a historian with several published works and a former Labour member of Parliament. The appointment gives the tribunal its full compliment of 16 members.



Te Maunga Railways Land Report

Wai 315. August 1994. Judge HK Hingston, P Ringwood, E Stokes, M Temara

This is a report of an urgent hearing concerning the offer back to the original Maori owners of 6070 square metres of Maori freehold land known as Te Maunga railway land. The land was taken in 1955 for railway purposes under the Public Works Act 1928 and used for housing for railway employees.

Nga Potiki hapu of Ngai Te Rangi owned lands at Mt Maunganui which were confiscated under the NZ Settlements Act 1863 and their customary title extinguished. Several blocks were returned as Maori freehold land. The Te Maunga land was part of one of these blocks, the Papamoa block. From 1913-61 various takings occurred in the Papamoa No 2 block for railway related purposes including the taking of the Te Maunga land in 1955.

Negotiations for the taking were undertaken with only 3 shareholders (holding 56%) out of 22 shareholders in the land. Compensation was assessed by the Maori Land Court and paid in the normal manner. The evidence suggests the owners would have perceived the taking was compulsory and a matter out of their control (there had been other takings in the area at the time), ie they were not willing sellers. Crown policy in such situations was for taking the freehold title. Accordingly, options such as leasing, which would have preserved the parent title in Maori hands, were not considered.

In 1985 Railways sought to dispose of the land. Section 40(1) Public Works Act 1981 and s23 NZ Railways Corporation Restructuring Act 1990 required the land be offered back to the original owners unless it was impractical, unreasonable or unfair to do so or there had been a significant change in the character of the land. After failing to get consent to create a subdivision, Railways entered negotiations with a Maori incorporation owning adjoining land, but did not, as the law required, seek to identify the former owners or make a formal offer back to them.

In 1991 Railways entered a sale and purchase agreement with a local businessman conditional on "offer back" procedures being satisfied. The businessman began construction of a concrete plant on the land. Another local businessman began negotiations for a lease over part of the land. Railways eventually made an application under s436 Maori Affairs Act 1953 to the Maori Land Court for it to determine in whom the land should now be vested. The court in 1993 made an order vesting the land in the original owners but conditional on payment of the market value of $70,000 within 4 months (the court commented in a preliminary determination that, because of the Treaty, Maori owners ought to be given preferential treatment in offer back situations, possibly by deferred payment over a reasonable period of the market price). The former owners objected to the condition and sought an urgent hearing before the Waitangi Tribunal.

The tribunal considered briefly the history of public works legislation in NZ, noting there has been no specific reference to Crown obligations under the Treaty in this legislation. It was also noted with regard to valuation that, for Maori, land has distinctive values.

There was no suggestion made that Maori land should not be used for the public benefit where required. But problems arise where the freehold is taken when something less would suffice. The land was also taken from unwilling sellers. It is inherent in the fiduciary obligation of the Crown under the Treaty that when it uses its discretion to offer back land, it should use it positively, and the full market price should not be required if this would prevent Maori having their ancestral land returned. Comments in the Court of Appeal in NZ Maori Council v A-G [1987] 1 NZLR 664 re fiduciary duty were considered and also comments re compulsory acquisition in Waitangi Tribunal Orakei, Mangonui Sewage, Ngati Rangiteaorere and Mohaka River reports.

Compulsory acquisition of Maori land raises the issue of whether kawanatanga (Article 1) overrides the guarantee of tino rangatiratanga (Article 2). In exercising its discretions to take land and to return it when no longer required, the Crown should be guided by its fiduciary obligations as a Treaty partner. These obligations override normal national and commercial considerations. The obligation in respect of return may be greater than previously because so little land remains in Maori ownership. The Privy Council in NZ Maori Council v A-G Appeal 14/1993 spoke of "especially vigorous action" being required for the protection of vulnerable taonga. Consequently, where a taking is necessary (kawanatanga permits the Crown to seek the use of the land for the public benefit), a more consultative approach to negotiation is required which acknowledges Maori rangatiratanga, and does not extinguish Maori title.

In this case the taking of the land did not involve willing sellers. A Crown submission that the taking by proclamation was a matter of convenience was rejected. Offer back provisions place the onus on the Crown to find the former owners. Railways confused the issue by failing to do this and by agreeing to a sale to a third party. Nga Potiki have had other lands in the area taken for public works. This taking, although small, should be considered in that context. The Crown has exercised its discretion to have other compulsorily acquired land in the area returned at a lower than market price. Offerback procedures need to be streamlined. Costs were high in this case because of inept handling by Railways officials. This was an appropriate situation for the Crown to exercise a discretion and return the land at no cost, without prejudice to other public works takings.

The tribunal recommended:
- That the Crown revest the land, at no cost, in the former owners - That a moratorium be imposed on all dealings with lands compulsorily acquired from Maori and no longer required, until legislation is in place to return these to Maori
- When land is no longer required the Crown should be given discretion to negotiate in each case the return at no cost, or less than market value - Where negotiations fail, the Maori Land Court should decide what compensation should be paid on the basis of a fair return to Maori for the use of the land by the Crown. Where Maori might owe compensation, this would be a charge on the land.

[ed: although concerning a small area, the report has major implications. In effect, it suggests all public works takings of Maori land be treated as if they were leases when an offer back is required. Hundreds of sites may be affected. The tribunal recorded, but presumably did not agree with, suggestions in the Mangonui Sewage and Orakei reports that the Treaty may forbid compulsory acquisition in any situation. In another report released this month (Environmental Information and the Adequacy of Treaty Settlement Procedures - reviewed below) the comment is made that the Crown has not decided whether the Takapourewa (Stephen's Island) claim, involving a public works taking, is valid, and this is stalling negotiations. This report may give some idea of how the tribunal might view the Takapourewa claim if it is called to report on it. A political factor: the report mentions that the Hon Peter Tapsell has actively intervened on several occasions for the Nga Potiki people in efforts to secure the return of this and other compulsorily acquired lands]


Other jurisdictions

The Maori Trustee v Rogross Farms Ltd and Another

CA 175/91. 7 September 1994. Cooke, Casey, Tipping

The Maori Trustee sued a lessee, Rogross, for breach of covenant in returning land at the end of a lease in poor condition. The lower court held that there had been a breach, but that, because the court did not consider that the trustee had suffered any actual loss (the land had been leased again without difficulty), awarded only nominal damages ($10). The rule in the English case of Joyner v Weeks [1891] 2 QB 31 CA was held not to apply in NZ. This would have required the lessee to pay the sum (in this case $19,570) needed to leave the land in the condition anticipated by the covenants.

Held: that the rule of Joyner v Weeks applies in NZ as a prima facie measure of loss unless the lessee can show by "sufficiently cogent evidence" that in both the short and long term the lessor will definitely suffer no loss or a loss that can definitely be assessed at less than the prima facie measure. The evidence in this case did not suggest the prima facie measure should not apply. Accordingly the trustee was entitled to $19,570 damages. Other cases dealing with breach of covenant and assessment of damages which used a different approach (Maori Trustee v Bjerring (1960) 1 NZCPR 565 Maori Trustee v Bolton [1971] 1 NZLR 226 and Maori Trustee v Clark [1984] 1 NZLR 578) were distinguishable either because the lessee was entitled to compensation for improvements (Bolton and Clark) or the covenants were impossible to perform (Bjerring).

[ed: the Court of Appeal noted that this case concerned an issue of considerable importance to those who own and lease farmland. Maori are particularly affected, as the names of the previous cases suggest]



Environmental Information and the Adequacy of Treaty Settlement Procedures

Office of the Parliamentary Commissioner for the Environment. September 1994

This report was prepared in response to concerns expressed to the commissioner and through the media that negotiations to settle Treaty claims are failing to address environmental issues. The report examines how far procedures for settling claims ensure that adequate information on environmental matters is available to those involved. The concern of the commissioner is the protection of environmental values, not whether the Crown or Maori can best ensure that the quality of the environment will be maintained.

Procedures for settling Treaty claims are evolving and those involved may not have full information about the environmental implications (in the broadest sense) of settlement options. The report looks at the settlement process in relation to Crown owned lands under the Conservation Act 1987, Reserves Act 1977, Wildlife Act 1953 and Land Act 1948. Useful tables are included showing consultation requirements under these Acts.

The major options of settlements in relation to the environment are; a change in the managers, change of ownership, change of use, or compensation. The report looks at 3 case studies: Takapourewa (Stephen's Island), Tutae Patu lagoon and pastoral lands (Routeburn, Greenstone, Elfin Bay) purchased for settlement of the Ngai Tahu claim.

There is confusion about different parts of the process - particularly the difference between negotiation and consultation and that the public provide information but are not negotiating with Maori. There is also confusion about the different functions of government departments and ministers, and conflicts for ministers between advocacy for their departments and their role as negotiators.

Adequate environmental information (including information about possible social implications) at an early stage would assist negotiations and settlements, for example by allowing for the identification of other affected Maori groups, and the future effect of conditions which might be placed on settlements. The public at large have no general entitlement to be consulted except where provided in statutes, although the potential exists for an argument for involvement because of a "legitimate expectation". It would have to be shown that there was an express or implied undertaking to consult either through Crown statements or because of the status of the group or the existence of a tradition of consultation.

In 2 of the case examples public consultation had come, by accident rather than design, through government requests for input from conservation boards, who had in turn sought public submissions.

In British Columbia an independent Treaty Commission has been established which structures negotiations through distinct stages and ensures at each stage that parties are properly prepared, and have adequate information, including on the government side, through consultation with third parties. The BC government has established a Treaty Negotiation Advisory Committee to advise it including business and environmental groups. Such a commission would be useful in NZ to clarify the roles of parties, and would increase Maori and public confidence in the process (A background report by Caren Wickliffe on settlements in Australia, United States and Canada is in production).

Presently, necessary environmental information is incidental to the process. This is a serious omission. Consultation required by statutes comes too late - after options have been considered. The use of Environmental Enhancement and Protection Procedures is advocated as part of a systematic attempt to assess environmental implications at the inception of a settlement proposal when real choices can still be made, including the choice to do nothing. The Treaty of Waitangi Policy Unit is the appropriate body to ensure this is done, being responsible for the exercise of a discretion with environmental consequences.

[ed: The report is concerned about outcomes for the environment. Issues of Crown versus Maori ownership are secondary to this. As it states, the fundamental problem with information is to enable the confidential processes of negotiation and mediation to take place alongside the public and consultative process of planning without prejudice to one another.

Appendix I is a legal opinion on Crown obligations too consult in negotiations with Maori. It includes useful discussion of what consultation requires, and when there may be a legal obligation on government to consult not only with environmental groups, but also other Maori groups affected by a claim. The suggestion is made that should the "fiscal envelope" policy be adopted the ability for Maori groups not immediately involved in a settlement to question it may be legally extended, since any settlement will have an direct impact on the size of settlements for other groups.

The report also comments that since the Wildlife Act gives absolute protection to wildlife it may override the Treaty (see editorial, MLR Aug 1994)]



Treaty of Waitangi Policy Unit

Press statement 6 September 1994

Cabinet has approved restructuring of the Treaty of Waitangi Policy Unit (TOWPU) into an Office of Treaty Settlements (OTS). The director of OTS will be accountable directly to the Minister in Charge of Treaty Negotiations regarding Treaty policy, negotiations and implementation. OTS will be funded under a separate vote. The Department of Justice will provide support services, with the Secretary of Justice being responsible to the Minister of Justice for the financial management, performance and reporting of the unit. The restructuring will not affect present relationships with Maori groups.

[ed: No date for the change is given, but the process of appointing a director will begin "shortly". The restructuring suggests the OTS will be more independent than TOWPU, which is fully within the Justice Department. However, for the moment the Minister in Charge of Negotiations remains the Justice Minister, the Hon D Graham]



Indigenous Land Corporation and Land Fund Bill 1994

Aboriginal Law Bulletin August 1994

The federal House of Representatives is presently considering the Aboriginal and Torres Strait Islander Commission Amendment (Indigenous Land Corporation and Land Fund) Bill 1994. The bill establishes a corporation with power to buy land for aboriginal groups. Most groups are not able to bring claims based on common law aboriginal title under the Native Title Act 1993, because the Australian High Court has interpreted that doctrine to require that groups must demonstrate a continuous association to have a valid claim. Many aboriginal groups were dispossessed at an early date.

The bill provides that around $100 million will be credited each year to a land fund for the next ten years. For the first 3 years of its existence, the land corporation will have available around $20 million to begin purchasing. After this period it will rely on investments made by the land fund. The corporation is expected to begin work on 1 January 1995.

Meanwhile, the High Court is hearing 2 actions from Western Australian aboriginal groups challenging the validity of that state's native title legislation (which is less generous than the federal legislation), and one action from the Western Australian government challenging the validity of the federal Native Title Act 1993.



Community Safety: Mental Health and Criminal Justice Issues

Law Commission report no 30 August 1994

This report considered, in the light of recent serious offending by 2 former psychiatric patients, whether the Criminal Justice Act 1985 or any other enactment should be amended to confer extra powers of detention. The commission concluded that community safety did not require powers of detention beyond those already in mental health legislation. This conclusion was reached after weighing the community right to be protected against the right not to be arbitrarily detained. One reason for urging "caution" about any change was the concern that broader detention powers may have a greater effect on some sectors of the community, particularly Maori. A submission from Te Puni Kokiri was noted, that more than half of those placed in psychiatric hospitals by the courts under the Criminal Justice Act 1985 are Maori.



Assisted Human Reproduction. Navigating Our Future. Report of the Ministerial Committee on Assisted Reproductive Technologies

July 1994. Bill Atkin, Dr Paparangi Reid

The report deals with all major issues surrounding assisted reproductive technologies (ART). After considering approaches in other countries, the committee adopted as a basic principle the view that all human tissue has mana. Sale of it would therefore be disrespectful. Human tissue is also tapu and sacred. This includes the products of ART such as embryos and gametes. They should be treated with dignity when considering issues surrounding their storage and ownership. One practical implication of this approach is the suggestion that where a Maori gamete provider dies, respect for cultural practices might require the burial of that tissue with the deceased.

Another principle adopted by the committee was consideration of the partnership in the Treaty of Waitangi in the development of ART. It was noted that, for Maori, knowledge of whakapapa is vital and secrecy about genetic origins is antithetical to Maori values and may conflict with Treaty principles.

[ed: a document which puts a distinctive NZ stamp on the ART debate]