October 1994 Contents

Proposed Maori Electoral Districts

1994 Representation Commission

The Maori seats proposed by the commission, Te Tai Tokerau, Te Tai Hauaru, Te Tai Rawhiti, Te Puku O Te Whenua, Te Tai Tonga are based on existing Maori electoral boundaries, the community of interest among Maori people and members of Maori tribes, communications, topographical features, projected population changes (these criteria are in the Electoral Act 1993). Te Puku O Te Whenua district is said to be "a symbolic reference to the centre", and "in spite of an apparent diversity of Iwi within this electorate the territorial integrity of each has for the most part been accommodated." The Maori electoral population of the Chatham Islands is included in Te Tai Tonga. Boundaries go to the limit of the territorial sea to avoid questions regarding eroded or accreted or reclaimed areas. Maori members of the Commission are W Gardiner (TPK), J Brown (government rep), W Wereta (opposition rep). Objections must be received by 21 November 1994. After hearings, the final boundaries are expected to be gazetted on 27 April 1995.


Maori Land Court and Appellate Court

Maioro lands Case stated

1990/1, Waikato-Maniapoto ACMB, 12 September 1994. Hingston J, Carter J, Marumaru J

While hearing a claim concerning Maioro lands on the northern side of the Waikato river mouth, lodged by a Ngati Te Ata group, the Waitangi Tribunal became aware of a "cross claim" from a group identified as Ngati Karewa/Ngati Tahinga. The tribunal referred a case stated to the Maori Appellate Court under s6A Treaty off Waitangi Act 1975 to determine which Maori according to customary law principles of "take" and occupation or use had rights of ownership in the area, and if more than one, what were the tribal boundaries. Held: Although not permanently occupied by any group, Ngati Te Ata held rangatiratanga and ownership according to customary law over the Maioro lands from 1840 to 1865, when the lands were Crown granted to Ngati Te Ata. The court rested its analysis on the classic grounds of discovery, take tupuna (ancestry), take raupatu (conquest) and take tuku (gift), used in the past by the court and most recently in In re Henare Rakiihia Tau & Ngai Tahu Trust Board (4 South Island ACMB 673). These principles were applied to whakapapa evidence from the claimants and historical reports about land dealings prepared by the Crown and Ngati Te Ata researchers. The case included discussion of kaitiakitanga and its relationship to ownership for the purpose of determining customary rights. The court was concerned that other hapu of Tainui might have an interest, but on receiving no submissions from other hapu determined the ownership in Ngati Te Ata. [ed: Judged by this and the Ngai Tahu Trust Board decision, the present land court judges are happy with the criteria developed by the old Native Land Court when determining customary issues, although recent research (most notably A Ballara Origins of Ngati Kahungunu) and comments of the Chief Judge (see below) suggest those criteria may need modification]


Section 30 applications update

Office of the Chief Judge, 1994

Seven applications received by the Chief Judge under s30(1)(b)/1993 have now been referred to the Maori Land Court to determine who are the appropriate representatives of Maori groups in particular areas for particular purposes. The purposes include consultation under the Resource Management Act, consultation over sacred sites and traditional fisheries, negotiations over Treaty claims settlements, receipt of benefits allocated by the Treaty off Waitangi Fisheries Commission. In the North Island, applications are from Whakatohea, Pahauwera, Ngati Paoa,, and Ngati Toarangatira groups (see Ngati Toarangatira Manawhenua case below), and one from Tararua District Council (seeking to know who to deal with between Kahungunu and Rangitane groups under the RMA). In the South Island, applications concern representation for the Arahura and Mawhera regions of Te Tai Poutini and the region between the Hapuku and Clarence rivers on the east coast. In two cases, Whakatohea and Ngati Pahauwera, final orders have now been made. The court did not issue a written judgment giving reasons in each case but simply issued orders naming the representatives. [ed: In comments made when referring these matters to the Maori Land Court, the Chief Judge has noted that s30(1)(b) confers a discretionary power and he must act extra judicially in making referrals, subject to the usual rules of administrative law. Accordingly, his discretion has been advanced by letters and inquiries (with copies to all parties, and an opportunity to respond etc) and not by formal memoranda or sittings. The major concerns at this discretionary stage have been: - Finalising the proposed terms of reference ie for what purposes the representatives shall act - Satisfying the Chief Judge that reasonable steps have been taken to determine representatives and that these have been unsuccessful (s30(2)) - Consultation over the skills required of additional members (not nominations) appointed by the Chief Judge to the court to hear the application (s33(3).]


Ngati Toarangatira Manawhenua ki te Tau Ihu Trust v Te Runanga o Toa Rangatira Inc & Maori Land Court

CP 228/94, 16 August 1994. Neazor J

Ngati Toa groups had sought a determination by the MLC under s30/1993 as to appropriate representatives off Toarangatira for the purposes of; receiving certain fisheries quota, consultation with territorial authorities, and negotiating with the Crown over surplus lands disposal in the South Island. The plaintiffs challenged, by way off judicial review, a decision of the MLC setting an early fixture date, arguing that they required further time for preparation. Held: the MLC in deciding on a date for hearing is exercising a statutory power affecting rights which is amenable to review. The power to fix dates is discretionary however. On the facts of this case the court had considered all relevant matters and natural justice was not denied by the court in fixing a date earlier than the plaintiffs desired. Waitangi Tribunal Maori Tertiary Education claim Wai 431, 23 September 1994. JR Morris After a conference, the tribunal deferred inquiry into this claim on the basis that the Todd report on the funding off tertiary education was not yet part of government policy, and it would not be possible to determine whether there was any likely prejudice to Maori when total arrangements as to tertiary funding changes have not yet been decided. Leave was given to reintroduce the claim if required when a government decision on funding is made (likely before the end of the year according to Crown counsel), or in 1995 if no decision has been made by then (at which time an inquiry might focus on the delay). Memorandum re jurisdiction in the Chatham Islands claims Wai 64 & others, 5 October 1994. CJ Durie, Prof G Orr Counsel for claimants sought a determination that the tribunal could consider, under s6 Treaty of Waitangi Act 1975, whether the "1840 rule", a judge made rule of the Native Land Court, was inconsistent with the principles of the Treaty of Waitangi, being a rule made by the court acting by or on behalf of the Crown. Held: the tribunal has yet to determine the precise content of the 1840 rule. As to whether the land court acted on behalf of the Crown, "the Crown" formerly referred to the monarch but now commonly means the executive government. It does not include Parliament. Past legislation establishing the land court reflected measures for the general courts which emphasised the doctrine of the separation of powers. If the land court were found to be part of the Crown, it would follow that other courts were also the Crown. The Crown when used in contemporary statutes without other embellishment refers to the executive and not to Parliament or the courts. Arguments that the Treaty of Waitangi Act 1975, because of the special matters it seeks to address, might use the term differently, were rejected. It was accepted however that the tribunal is not concerned with the legality of actions of the Crown, but whether they are consistent with the principles of the Treaty. It is unlikely therefore that the legal sufficiency of Crown actions alone will necessarily constitute Treaty compliance. Arguments were also rejected that this matter should be decided by reference to the Treaty itself and "kawanatanga". That word does not suggest that less than full sovereignty was ceded by Maori, as earlier tribunal reports make clear. The supremacy, if not the precise nature, of the new governorship was understood. The tino rangatiratanga retained by Maori was necessarily altered from that of olden times to allow for the Queen's pre-eminence. Read as a whole the Treaty does not describe a continuing relationship between sovereign states. It is arguable that since Maori at 1840 were unaware of the separation of powers they may have viewed any act of the British, including actions of the land court, as acts of the Crown. Passages in the Te Roroa report suggest this. However, the present issue must be determined by looking to the intention of the legislature in passing the 1975 Act, not the understanding of Treaty participants at 1840. It is significant that the 1975 Act specifically provides that the tribunal may consider statutes, which are not normally considered acts by or on behalf of the Crown, yet is silent about the courts. Submissions that the NZ Bill of Rights Act 1990 and international instruments are relevant were rejected. Agreeing with comments in the High Court in the Te Runanga o Wharekauri Rekohu Inc v Waitangi Tribunal (CP M8/94, 12 May 1994), the tribunal may however look at land court decisions to see if they are consistent with the Treaty, and where they are inconsistent, whether the Crown omitted to take action to remedy the situation. A finding that a decision of the courts is inconsistent with the Treaty in no way impugns the legality of the court decision. [ed: many of the arguments of counsel suggested that unless the tribunal could review land court judgments as Crown actions no remedy would exist for claimants. The tribunal believes that it may still provide a remedy by reviewing Crown actions pursuant to court decisions. The tribunal decision is not surprising. In the High Court it was suggested that this would be an appropriate finding, and a contrary approach may have carried an implication that the tribunal itself is an agent of the Crown] Preliminary views on the meaning of "manawhenua" for the Chatham Islands claims Wai 64 & others transcripts, 13 October 1994. Chief Judge Durie At the recent Chatham Islands hearing the Chairperson expressed preliminary views on the meaning off "manawhenua". The term may have 2 meanings; long term ancestral connections with the land, or status and authority held at any particular time. Historically it seems to have attached to persons. The operation of the land court may have distorted the concept so that it applied to the ownership of defined land areas by groups. There may be doubt whether the words "mana whenua" and "tangata whenua" as defined in the Resource Management Act accord with Maori custom. "Tangata whenua" may mean the home people of a marae, those with ancestral association with land, or those who have come into the land through intermarriage, or even "Maori people off NZ". Words must be used carefully so they do not develop a "tyranny" of their own, especially where the Maori thinking behind them is not explored. It is not certain that the land court in fact determined mana whenua and tangata whenua status or had any authority to do so. Moriori and Ngati Mutunga may both have manawhenua inn the Chathams but of a different type, and both may be tangata whenua.


Other jurisdictions

Atawhai Taiaroa and others v The Minister of Justice and others

CP 99/94, 4 October 1994, McGechan J

The plaintiffs claimed that the "Maori Option" exercise of February to April 1994, which permitted Maori in that period to choose between the Maori roll and General roll, was unlawful because it was held without adequate notice or Crown resources. Maori had in fact 3 options. To be on the General roll identified as Maori, on the General roll and not identified as Maori, or on the Maori roll. The option was conducted under ss76-79 Electoral Act 1993. Its outcome determined, by a technical calculation, the number of Maori seats. This calculation is particularly sensitive to Maori on the General roll and identified as Maori shifting to the Maori roll. A group off Maori making this shift would have more impact on the number of Maori seats than a similar sized group coming fresh on to the Maori roll (eg using present figures, 50,000 new electors on the Maori roll would result in 6 Maori seats, but 50,000 Maori switching from the General to the Maori roll would result in 7 seats). Conversely, it was not "neutral" for Maori to remain on the general roll identified as Maori. The option came about after representations from pan-Maori organisations in 1993 seeking retention of the Maori seats under the proposed MMP system. This, and the MMP proposal generally, were provided for in the Electoral Act passed in August 1993. In November 1993 a nationwide referendum chose MMP as the preferred electoral system. Maori voted for MMP in a higher proportion (2/3) than the general population. The election result required the Minister off Justice to set a date "as soon as practicable" for the Maori option. From September 1993 publicity about the option had been available. The Minister set the date for the option as February 1994, but did not consider ann extensive publicity campaign, including television advertising, was required. Immediately prior to the option the Waitangi Tribunal reported on a claim seeking further resources to inform Maori, and recommended further funding be made available. Cabinet subsequently rejected a proposal t spend an additional $250,000 on publicity. The result of the option had been an increase from 4 to 5 Maori seats.

Held: the Minister had not acted unlawfully in exercising his discretion as to the timing of the option and its conduct. The discretion arose under the Electoral Act 1993 (the treaty itself could not give rise to rights, nor could international law unless incorporated by statute, nor did the NZ Bill of Rights provide especially for Maori rights). Before setting the option date the Minister had to be satisfied that as far as reasonably achievable under all prevailing circumstances, "target" Maori were sufficiently informed of the option implications to make a meaningful choice. Reasonableness would take account of the importance of the issue, the desirability in principle of fullest information to all, qualified by issues of time, expense, cost benefit and expectations. Among reasons for rejecting the many heads of claim:

- There was no absolute duty to consult with Maori before making the decision. The Minister was only required to be adequately self informed on these issues

- The Minister could take account of the recent close election in setting the date for the option in as far as it suggested a fresh election might soon be held and the MMP system needed to be in place as soon as possible

- There was no requirement to inform Maori not yet enroled. The option was only to those enroled on the Maori roll, or enroled on the General roll and identifying as Maori (the 'target" group)

- While there was a partnership obligation of good faith, it would be stretching fiduciary duty principles to find a fiduciary duty here

- There was no legitimate expectation that an education campaign would be undertaken. No government statement or well established practice was in evidence. There must be more than a "reasonable" expectation

- As to the conduct of the option, the publicity was incomplete (in particular not giving details of the technical calculation of the number of Maori seats) but not significantly misleading overall (but noted that it was not pointed out that the number of Maori seats could be reduced if enough Maori chose the General roll)

- As to the rejection of Waitangi Tribunal advice, such advice was not mandatory, although highly respected. The Crown was entitled to look at financial constraints (as it did) a matter on which the tribunal report was weak. Rejection of the tribunal view might be wrong, but not beyond reason

- The Minister did not have to go beyond a direct mail out of the option applications, since this was the method provided by the legislation.

The final ground pleaded of substantive unfairness caused the most difficulty. The test was whether in all the circumstances, the conduct of the option unfairly deprived Maori of a proper opportunity to make an informed choice. The court considered affidavits providing anecdotal evidence that many Maori might not have had adequate information, as well as the Waitangi Tribunal report predicting further resources would be required. Most significant were final figures for the option which showed that up until the beginning of the option, Maori coming onto the rolls were not aware of the implication of choosing to go on the General as opposed to the Maori roll (despite publicity on MMP up to that point, which the Minister considered made Maori informed and ready for the option exercise). There was a sharp increase during the option period in the Maori roll, but most of this increase came from new Maori enrolments and not any switch of existing enroled Maori. All this suggested a "worrying degree of ignorance within a portion of eligible Maori" not cured by mailouts or written material. The approach of Cooke P in Thames Valley EPB v NZFP Pulp and Paper Ltd (1994) 2 NZLR 641 was followed. Where a procedure is marginally adequate a matter might survive review, but fail where the decision was also marginal. In this case the Minister's decision as to resources narrowly survived. The procedural side had tolerable strength, but the decision, while not irrational, was to some degree wrong in hindsight. There was not therefore substantive unfairness, but the Crown should feel "some concern" at what had occurred.

As to the Treaty, while treaty obligations are not directly enforceable by the court, the creation of the 4 Maori seats was consistent with the Treaty (whatever the political reasons for their creation originally). The Crown is under a Treaty obligation to protect and facilitate Maori representation. It would not for example be consistent with the Treaty to now deny separate Maori representation. In this light the Crown should reflect on the resource decision made, which was based on an important underlying misconception as to the degree of Maori understanding of the implications of the option. Maori were significantly disadvantaged. An "extensive effort" might be considered when the option is next exercised in 1997.

[ed: the court focused on the complexity of the choice Maori had to make under the option and the decision to use what were described as "minimal" resources to explain it. Whether increased resources would have brought more new Maori electors onto the rolls was irrelevant. As the court explained, the option, by law, was aimed only at Maori already on the rolls (Yet the efforts of Maori groups before and during the option, and submissions by counsel, made much of census figures showing a "lost tribe" of up to 50,000 Maori not on any roll). This was a close decision. The appeal (now proceeding) is awaited with interest]


KM Grace v WG Grace

CA 211/93, 26 October 1994. Cooke P, Richardson J, Tipping J

A wife, on separating from her husband, sought a half share in his interests in Maori freehold land claiming that,, because of conduct and intentions during the marriage, there was a resulting trust or a constructive trust in herr favour. These trusts existed quite apart from the Matrimonial Property Act 1976 which does not apply too interests in Maori land (s6). The wife sought to have the trust proceedings dealt with in the High Court. Thee husband objected, arguing that the Maori Land Court had exclusive jurisdiction to consider the matter. The Highh Court determined that it could consider the matter. The husband appealed. Held: Although Te Ture Whenua Maori 1993 failed to carry over a provision of the Maori Affairs Act 1953 giving the High Court concurrent jurisdiction and therefore the ability to exercise its inherent jurisdiction in relation to trusts (compare s18/1993 and s30/1953), that concurrent jurisdiction nevertheless remained under the 1993 Act (although it was noted that the 1993 Act spelt out more explicitly those areas where the MLC has exclusive jurisdiction). Noted that the High Court, or MLC if it considered this case, would have to have regard to the policy and provisions of the 1993 Act designed to promote the retention of Maori freehold land in the hands of its owners, their whanau and hapu and restricting spousal interests to life interests in matters of succession. Further noted that, in view of these considerations the wife here sought only the monetary equivalent of Maori freehold interests and not a vesting order for the interests themselves. If a question of tikanga Maori arose it could be referred by way of case stated to the Maori Appellate Court.

[ed: a brief but important judgment. The general courts are to retain a potentially important role in the development of Maori land law. It also suggests that non-owning spouses, on separation, may sue for the monetary equivalent of part of their partner's interests in Maori freehold land]


Auckland Casino Ltd v Casino Control Authority & Others

CA 181/94, 20 October 1994. Cooke P, Hardie Boys J, McKay J

An appeal from a High Court decision in July 1994 (see MLR Aug 1994) dismissing an application for review off the decision of the Casino Control Authority to grant the Auckland casino licence to Sky Tower Casino Ltdd rather than a consortium which included the Maori Congress backed company, Aohou Ltd. The appeal raisedd only two grounds from the High Court proceedings, presumptive bias and apparent bias by reason of certainn shareholdings and activities of some authority members. An argument that the authority displayed an anti-Maori bias in certain of its actions was not pursued. Held: there was at most a borderline case of presumptive or apparent bias but there was a waiver by the appellants in failing to raise these matters at an earlier stage and in failing to move quickly after the authority decision was delivered. The Maori aspect of the failed bid, including the desire to enhance the welfare of Maori, was not to be "overlooked", but also noted was the considerable expenditure already undertaken by the successful applicant, and doubts the authority had had about details of the proposal of the Maori backed consortium. [ed: this would appear to bring to an end the Maori Congress interest in the first Auckland casino] Te Runanganui o Ngati Kahungunu Inc v Gemmell and others CP 21/94, 6 October 1994. Grieg J An application for variation of receivership orders, notable for the rejection by the court of an argument that thee current receivers be replaced by a senior officer from Te Puni Kokiri who, it was argued, would bring ann important "Maori dimension" to the receivership exercise.


Ngati Kahu and others v Pacific International Investments Ltd & Tauranga District Council

A72/94, 20 September 1994. Bollard J & commissioners Dr AH Hackett, Mr IG McIntyre

The council notified a change to its transitional district plan to allow for future urban development in an areaa previously zoned for rural use and the site of a river important to local Maori and of two hapu communities withh longstanding links with the area. The change reflected an urban growth strategy developed during 1991-91. Thee appellants challenged the basis of the plan change. Held: the council had failed to adequately consult with Maori in terms of the RMA when developing the urban growth strategy. Subsequent consultation was misconceived, being aimed at minimising the impact of a policy already decided. Previous cases concerning consultation under the RMA with Maori which held that there should be no direct consultation by councils over resource consents (Ngatiwai, Hanton et al) could be distinguished as they did not deal with the development of plans. Comments in Wellington Airport Ltd v Air NZ [1993] 1 NZLR 671 re consultation were quoted with approval. Consultation does not necessarily produce consensus, but it must continue for a reasonable time so that all reasonable planning options can be explored. Repeat consultations may be required even after plans have been approved. Councils cannot provide guarantees of unalterability however, but must step back once plans are notified in order to judicially consider submissions on the plan. [ed: a significant case on consultation requirements when developing district and regional plans. The court noted that this council was to some extent "caught out" in the transition between the loose requirements under the Town and Country Planning Act 1977 and the much tighter requirements of the RMA]


General Report of the Reserved Lands Panel 1993

Te Puni Kokiri, January 1994 (released October 1994). P Trapski, G Kirby, R Cooper

A report of a panel appointed by the Minister of Maori Affairs to consult on proposals to resolve Maori reserved lands issues contained in A Framework for Negotiation - Toitu Te Whenua 1993. The panel, after hearing submissions, broadly supported the proposals but recommended, among other things: - Greater emphasis on the proposal that owners and tenants reach their own solutions, with the Crown playing a role of facilitation by providing financial and legislative assistance, professional advice, and possibly purchasing properties as required - Leases should terminate after 2 further 21 year renewal periods (the Framework document recommended 3 renewal periods) - Rents to be reviewed at market levels in 3 years, then every 3 years following (the Framework proposed 14 years). This rent to be assessed using benchmark values provided by Valuation NZ that bear some relation to the "land value" approach, and not just "unimproved value" wIn the remaining term of leases, owners to be given the first right of purchase at a market value - Owners be empowered to sell their interests at market value - The Maori Trustee to be gradually phased out of the administration of reserved lands. The proposal of the Framework document that tenants not be compensated for changed arrangements, but merely assisted in case of hardship, was supported. Compensation should not be payable to those who had received the benefit of an unjust contract, whose injustice was known in general terms before and certainly after the 1975 review of reserved lands. [ed: the panel recommended giving power to owners to sell their interests on the basis that to deny this would be contrary to the Treaty and, as economic benefits from the land grow, the likelihood of sales "for survival purposes" will be minimised. Te Ture Whenua Maori 1993 is more stringent, requiring consent from 75% of shareholders before incorporation lands can be sold, which is difficult to obtain (the panel noted this point twice)]


Mana Tangata. Draft Declaration on the Rights of Indigenous Peoples 1993.

Background and discussion on key issues Te Puni Kokiri 1994

Seeks further views on the draft declaration, because of changes to it since 1990. Major issues are outlined, inn particular the meaning of "self-determination" (which the NZ government takes to mean "self-management" andd not secession), and the definition of "indigenous people". Includes also the text of the "Mataatua Declaration" onn cultural and intellectual property rights. Submissions are due by 31 October 1994. Native Title Re-established. Paper to International Bar Association 25 Biennial Conference, Melbourne Office of the Chief Judge, 13 October 1994. E T Durie Deals with the nature, extent and limitations of native title. The Native Land Court simplified Maori land tenuree and ignored a complex web of overlapping use rights. Three levels of rights existed, use rights by individuals,, political rights of the tribe, and associational rights. The actions of the land court "confiscated" political andd associational rights, and, in some cases, individual rights (eg where names were left off ownership lists). Alienationn and extinguishment of native title are also considered. In "strict terms" the Treaty seems to forbid compulsoryy acquisition, and place a restriction on the sovereignty ceded by it, which is not "readily diminished" by the balancee of convenience (the Te Maunga report, which came to a contrary opinion, is mentioned as one which "otherr divisions of the Tribunal may not be inclined to follow"). Expresses surprise that the Australian Native Title Act 1993 places the onus on Aborigines to establish their right to land while the Crown may rely on legall presumptions and fictions, but hopes that the Act will provide a new form of title built on a customary base andd facilitate pragmatic arrangements for future management.