November 1994 Contents

Who represents Maori groups?

The Government is preparing to announce new proposals for the resolution of claims, but there is no sign that the fundamental issue of representation has yet been considered in a comprehensive way. According to the newspapers, Cabinet papers provide that tribes will be required to file a "deed of mandate". This has some similarity with proposals of the Treaty of Waitangi Fisheries Commission (Discussion Material on Allocation Models for Consultation with Iwi Te Ohu Kai Moana August 1994) which would require iwi to undergo a registration procedure before fishing quota would be allocated to them.

The procedure to determine representation attracting most interest is section 30(1)(b) of Te Ture Whenua Maori 1993, which provides that any person may apply to the Chief Judge of the Maori Land Court for him to request the Court to determine "the most appropriate representatives" of any group of Maori for the purposes of any consultations, negotiations or other matter. The latest decision under that section,In Re Tararua District Council (138 Napier MB 85, 1 November 1994, reviewed in this issue), has laid out some important principles for considering modern representation. The court has indicated it will not rely heavily on the disposition of iwi at 1840, or on Native Land Court determinations in the last century, but will rather look to recent arrangements which have developed from old principles. In addition, the court will place a premium on unity. Until now, divisiveness has had legal "rewards"; in claimant status before the Waitangi Tribunal, research funding, hearings before local authorities and the like, although the ultimate result has been the present confusion and gridlock over representation.

However, s30 may face a conflict with the Treaty of Waitangi Act 1975, which allows any Maori to bring a claim (s6). If a group secures a s30 order for negotiations over a claim and the right to lay future claims, what happens if another group from the same iwi lays a claim before the tribunal? The Government is said to be considering an amendment to the 1975 Act, allowing the tribunal to determine whether claimants before it adequately represent those on whose behalf the claim is made. Hopefully there will be some tie up with s30 to prevent overlap, or worse, conflicting decisions.

Ultimately, given the dynamic nature of Maori society and institutions, a policy for determining representation which is too rigid would be undesirable and might even be regarded as a breach of the Treaty. There should always be an allowance for new situations to produce new models and leaders, as the experience of the past few decades have shown.


Maori Land Court and Appellate Court

In Re Tararua District Council

138 Napier MB 85, 1 November 1994. Hingston J, with H Hohepa, S Jones as additional members

The district council applied under s30(1)(b)/1993 for a determination of the appropriate representatives of Maori in the district with whom it should consult over any matters requiring consultation, notice, negotiations etc. The request stemmed from a difficulty in determining between two groups, Tamaki Nui a Rua (Kahungunu), and Rangitane O Tamaki Nui A Rua, each claiming primacy in the district.

Held: neither group could claim to exclusively represent tangata whenua in the district. Both Rangitane and Kahungunu descended from common ancestors and had enjoyed historical rights of occupancy and use in the area. The matter should be adjourned to allow discussion between the groups, with the assistance of a facilitator if required, with a view to suggesting a common list of persons to be appointed as representatives. The court laid out principles it believed should be adopted in such proceedings:

- He ritenga ano: Maori society is not uniformly endowed with cultural resources. History has not had a uniform effect on Maori society, language and traditions, which in some areas are stronger than in others or have been adapted through the influence of religion. Historic circumstances of the claimant seeking representation rights need to be assessed.
- He rourou: Representation is about obligations rather than being simply an assertion of rights. The Court will seek to avoid models which lead to a growth in adversarialism, instead using those that provide scope for all parties to find that their interests have been addressed and acted upon.
- He au rere tonu: The court should not consider itself bound by the exact manner in which title was determined in the 19th century. Ascertainment of tangata whenua status requires a far more dynamic approach.
- Marae: The court should look to local marae in matters of customary authority, because it is probably the single most enduring institution in Maoridom. Change has not seen the creation of new tribes, but marae have continued, and new marae have been established and flourished in cities. The functioning of the marae can be seen as the expression of authority through customary practices.
- Customary authority: Authority which loses a legitimate basis becomes naked power or pokanoa, unsanctioned. Too much discussion about the future is focused on the situation of Maori during the 1840s (ahikaroa and customary take, while important, were not and are not definitive). The Maori politico-social structure was never static. The Maori Appellate Court in In re Henare Rakiihia Tau & Ngai Tahu Trust Board (4 South Island ACMB 673) determined that changes in tribal boundaries could not be brought about by warfare or force after the Treaty had been accepted, but other incidences of traditional change remained intact. Many hapu were assimilated or integrated with other hapu and their separate identity submerged by Crown dealings and actions of the Native Land Court. Some now seek their former status. The court will accept this re-emergence only when there is acceptance by all, particularly the hapu which have harboured them. In the absence of war, re-emerging hapu should adopt a consensual process relying on customary concepts such as whanaungatanga. There should be a deliberate process to ascertain the reasons for contemporary divisions. Existing entities, which have provided in the past for emerging groups, need to be part of any process leading to new groups.

Accordingly, the court found it odd that Rangitane people, claiming tangata whenua status in the area, failed to acknowledge their whakapapa links with Kahungunu. Inclusiveness ought to characterise strategies for iwi development such as those being pursued by the Rangitane group. For the Kahungunu group, which relied on current land ownership and argued that Rangitane were seeking to overturn longstanding arrangements, the court observed that Native Land Court determinations presented in evidence would not be seen as the sole or even major arbiter of current tangata whenua status. Existing marae are a more important factor which show a willingness to uphold the obligations that go with authority. Legal body corporates created in response to the government's iwi devolution policy and accompanying transfer of funding to iwi, do not necessarily have customary authority. Rather, authority is rooted in institutions which continue to exist such as marae.

Rangatiratanga should not be used as a weapon to exclude others, the emphasis should be on duties and obligations involved in the concept. Underpinning rangatiratanga are values such as whanaungatanga, manaakitanga and kaitiakitanga which raise the importance of reciprocity, stewardship and cohesiveness.

[ed: this is the first judgment to set out principles which may be followed in making s30(1)(b) determinations. It will be interesting to watch the further development or adoption of these principles in forthcoming judgments. The court noted that it retained the ability to appoint a mixture of representatives in an effort to force unity if the parties fail to agree a common set of representatives]


Waitangi Tribunal

Directions, memoranda on procedure, evidence and issues in the inquiry into the Ngati Awa, Tuwharetoa, and other claims of the Eastern Bay of Plenty as at end October 1994

Wai 46 & Ors, Doc #2.59, 11 November 1994

A lengthy memoranda concerning procedural and research issues affecting 11 claims and 9 other parties. Matters dealt with were:

- Order of hearing: where there are conflicting claims the tribunal seeks to have each group first appear to outline their claims on their own marae or other places of their choosing in order to satisfy the need to present claims in their own way and clarify issues and any conflicting interests. The alternative procedure of seriatim presentations by rival groups at the one place has been tried but found wanting. Statements of claim may be altered and the degree of support for any claim sounded out by preliminary hearings. Those groups with research completed first and otherwise ready to proceed will be the first heard.
- Procedure at hearings: extensive cross examination is discouraged, particularly in relation to historical evidence (which can be dealt with by written questions) and kaumatua evidence. The right to recall witnesses at a later stage after issues have been defined may be exercised. Where "binding recommendations" are sought a higher standard of proof will be required and a more court-like process adopted. The tribunal appears to have a power to adjourn its inquiry while parties undertake private mediation between themselves (this is apart from the mediation power provided in the 2nd schedule, Treaty of Waitangi Act 1975). Attempts to secure agreements on boundaries by mediation have not been successful in the past, but the tribunal encourages private mediation on selected issues and will give serious weight to agreements reached. Compulsory settlement conferences (a court practice) are not favoured as the 1975 Act contemplates that groups should air their grievances fully in the manner and place they choose unless special circumstances suggest otherwise.
- Referral of a "boundaries question" to the Maori Appellate Court: the tribunal "is not entirely convinced that iwi were [historically] arranged as state-like institutions with borders of approximate definition fuzzed only by contestable zones." Overlaps between groups could be extensive. The meanings of mana and mana whenua are also not certain. Loss of mana, and not just land, may have been a key factor in the impact of confiscations. There are doubts whether the issue for the MAC to consider under s6A/1975, which assumes the existence of definite boundaries, is the correct one in any event.
- Other matters: past settlement precedents suggest Maori groups are not limited to seeking reparation from Crown lands in their own area (assuming no competing claims on Crown land elsewhere).

Prima facie claims had been made out in respect of the Rotoehu forest and Te Mahoe village lands.

[ed: this lengthy memo is the most current and detailed statement on tribunal procedure for dealing with complex overlapping claims. The tribunal re-iterates its preference for limited cross-examination and a less court-like procedure generally. How far this preference can be realised remains to be seen. As an example of the adversarial nature of the proceedings, the memo also dealt with an allegation of bias on the part of one tribunal member (it found no real likelihood of bias and that any right to object had been waived). For a discussion of recent tendencies in tribunal procedure see R Boast "The Waitangi Tribunal: `Conscience of the Nation', or Just Another Court?" Uni NSW Law Journal vol 16 1993 p223]



Hazardous Substances and New Organisms Bill

No 48, 1994

This bill is intended to provide a comprehensive and consistent approach to the management of all hazardous substances and new organisms (including genetically modified organisms). It proposes that the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga, and kaitiakitanga are matters which must be recognised and provided for by all persons exercising functions and powers under the Act (cl5). The principles of the Treaty of Waitangi are also to be 'taken into account' when exercising power under the proposed Act (cl6). When choosing members for the 5 to 7 member Environmental Risk Management Authority, which will control the manufacture or importation of new hazardous substances and new organisms, the Minister may consider, among other things, knowledge and experience of the Treaty of Waitangi or kaupapa Maori to be relevant (cl10). Not only must the authority consider the impact of new and existing substances or organisms on native organisms (which includes organisms introduced by Maori before European settlement), but also on exotic species valued for Maori traditional harvest or recreation (cl27).

[ed: a special select committee will hear submissions on the bill. Closing date for submissions is 3 February 1995. The pesticide sodium fluoroacetate (also known as 1080), is covered by the Bill. It is interesting to speculate how this proposed Act might have affected the current debate among Maori groups over the use of 1080 in Northland]



Deed between Her Majesty the Queen and Ngati Koata No Rangitoto Ki Te Tonga Trust and James Hemi Elkington

29 November 1994

This island, gifted by Ngati Kuia to Ngati Koata in 1824, was taken by the Crown for a lighthouse site in 1891. Compensation was ordered to be paid to the native owners in 1895. This deed records the settlement of a claim to the Waitangi Tribunal (Wai 95) complaining about that taking.

Ngati Koata and the Crown agree that the protection of the island and the conservation interests of Ngati Koata will be best achieved by declaring the island (currently a wildlife sanctuary) a reserve under the Reserves Act 1977. The Crown undertakes to consult Ngati Koata over management of the reserve. A remnant area of lighthouse reserve remains outside these consultation arrangements. In exchange, Ngati Koata, in exercise of their mana over the island and their role as kaitiaki, "as a free gift and symbol of partnership with the Crown" agree that their claim is satisfied by the deed and will withdraw it from the Waitangi Tribunal. The Crown does not admit the claim, but entered the deed to protect threatened species living on the island and to acknowledge Ngati Koata mana.

[ed: this settlement has been represented as "in effect" the return of the island to Ngati Koata who have gifted it to the Crown (Dominion 30 November 1994). The wording of the deed suggests something quite different. The Crown has agreed to create a nature reserve of what was formerly a wildlife sanctuary. The Crown will consult Ngati Koata about management - something it would have done in any event. Under the Reserves Act 1977, Ngati Koata preferences for management may not, as of right, be given any greater weight than those of, say, the Royal Forest and Bird Protection Society. In addition, the deed greatly simplifies future Crown consultation with Maori over the island. It is therefore difficult to see that Ngati Koata have gained from the Crown any tangible legal rights to better protect their interest in the island in exchange for relinquishing the legal right to pursue their claim]



Appointment to Office of Treaty Settlements

Department of Justice, 14 November 1994

Belinda Clark, presently a policy manager at Te Puni Kokiri, has been appointed to head the Office of Treaty Settlements, now being formed out of the Treaty of Waitangi Policy Unit.



Law Commission Annual Report 1994

NZLC R32, Parliamentary Paper E31

The commission has adopted a Maori name, Te Aka Matua O Te Ture, derived from the legend of Tawhaki who was exhorted to climb to the heavens by a main vine (with its roots in the earth) and not by the less secure tendrils. The commission has established a standing Maori committee of Bishop Manuhuia Bennett, Judge Michael Brown, Professor Mason Durie and Whetu Wereta to assist it in the "development of a bicultural framework for the law of New Zealand". A consultation strategy with Maori which has been developed is outlined, which may include limited financial assistance to assist groups to collect and present material. Guidelines for applications for this assistance are available on request. Two projects where Maori input will be sought are reports on reforming the laws of succession and the law of tenure and estates.



The Sealord Fishing Settlement. An International Perspective

Michael Robinson. Auckland University Law Review 7(3) 1994 p557

This article considers whether or not Maori who are aggrieved by the Sealords settlement could successfully make a complaint to the Human Rights Committee of the UN that, by passing legislation which extinguished Maori fishing rights, the NZ Parliament acted in breach of its international obligations as expressed in the International Covenant on Civil and Political Rights. Article 27 of the Covenant provides that "persons belonging to ... minorities shall not be denied the right in community with other members of their group, to enjoy their own culture". The complaint would be made to the Human Rights Committee under the "Optional Protocol" procedure which allows complaints from individuals where domestic remedies have been exhausted. The article concludes that it is difficult to predict the likelihood of success of such a complaint, but the potential for success exists. Notes that the Optional Protocol makes individuals subjects of international law, where formerly only states were, but that indigenous groups have yet to be recognised and presently must rely on "hybrid rights" such as those in article 27.



The Phenomenon of Agreement: a Maori Perspective

Mina Wharepouri. Auckland University Law Review 7(3) 1994 p603

Quotes Macneil (The New Social Contract 1980); "never has contract occurred without society; ... and never can its functioning be understood isolated from its particular society", as the background to a discussion of koha or the "gift exchange process" as underlying transactions between Maori and early Pakeha settlers. Utu and tika (etiquette) are important concepts underlying koha exchanges. Features of koha are; an obligation to give, an obligation to receive, and an obligation to repay. The concept of hau, which holds that possessions contain part of the essence of a person, underlies the obligation to repay. Although possession may be ceded, hau means that a portion of ownership of the good is retained. Repayments accordingly acknowledge and strengthen links between people. Before 1840 Maori did not have a word meaning full and permanent extinguishment of all rights for consideration amounting to a sale. This affected the understanding of early land transactions in the Muriwhenua region. The Treaty of Waitangi can be considered as a special contract, with Maori transferring the hau of their lands, but not the mana.

[ed: the view that different expectations existed for early land transactions in Muriwhenua is presently under consideration by the Waitangi Tribunal in its hearing of the claim Wai 45]



Australian National Native Title Tribunal ruling

Aboriginal Law Bulletin, October 1994

The tribunal has made its first decision under the Commonwealth Native Title Act 1993, ruling that native title does not exist on 3.7 hectares of land in a proposed residential subdivision 165 km north of Brisbane. This was an unopposed non-claimant application brought by the owners of the affected land. The decision was on the basis that Crown dealings with the land have been wholly inconsistent with continued aboriginal title (it was designated as a roadway). The land is in the traditional country of the Gubbi Gubbi people, whose other claims are not affected.



Restitution of Land Rights Act (South Africa) 1994

South African Financial Mail 18 November

The Act allows any person or community to claim restitution for dispossession of land rights under apartheid laws since 19 June 1913. However, restitution will not be given in cases of "bona fide" expropriation under the Expropriation Act where "just and equitable" compensation was paid. Claims are advanced by a 2 step process. A Commission on the Restitution of Land Rights will investigate the merits of claims and may mediate a settlement. Where claims remain unsettled, the commission will present evidence to a Land Claims Court which may order the State to restore the land where this is "just and equitable". This can be achieved by handing over land if it is in State hands or purchasing the land if it is in private hands. Where restoration is not feasible (the interests of all parties, including any private landowner, and present use, are considered), equivalent State-owned land or compensation may be ordered. Ninety five rural communities and about 110,000 urban families affected by apartheid laws are expected to have claims. Claims must be lodged within 3 years, and it is hoped to complete the entire process within 5 years.

[ed: in South African terms, the Act affects few people and is expected to cost little to implement, but is seen as an important symbolic gesture. Experience with claims processes here and in other countries suggest the estimates as to cost and time are optimistic]