November 1995 Contents

Maori Land Court and Appellate Court

Tauhara Middle 4A1L1B1A and Northcroft

9 Waiariki ACMB 49, 27 October 1995. Hingston, Spencer, Isaac JJ

A husband willed his interest in Maori land to his wife. Under s164/1993 she made a gift of the land to one of the children of her husband s brother. The executor of the brother s estate argued that the gift should have been in trust to all of his children and that the court should not have approved the gift.

Held: the appellant, being the son of the husband s brother, was a member of the preferred class of alienees and was materially affected by the order and therefore had standing to bring the appeal under s58/1993. The meaning of materially affected was discussed in Awarua 3D34B McCarthy v Collerton (1961) 12 Whanganui ACMB 75.

The fact that the MLC had dealt with the application by telephone conference (the donor had arthritis) did not affect the outcome. Section s69/1993 enables the MLC to receive any information which in its opinion will assist proceedings. The judge was satisfied he was dealing with the donor. The donor was aware of the dispute among the children but still intended the gift for the one child. Consequently the appeal failed.

When alienations are subject to preferred class preference, being of the class does not give a person rights against others in the preferred class. The provision is a shield protecting all the preferred class from outsiders entering the title. For the appellant to succeed in this case he would have to have established grounds exclusive of preferred class considerations, although the court would take account of remoteness from the alienor where close relatives of a donor object to a gift to a more distant relative. Being of the preferred class is a condition precedent to the exercise of jurisdiction by the court and not a cause of action.

Directions for service of applications under s164/1993 should take account of the value of the gift, the relationship of the donor and donee, the age of the donor and the views of the donor s immediate family. Few family members would require to be notified of a proposed gift of low value to one child, as opposed to a large value gift exclusively to one child.

 

 

Walker and Section 1A Parish of Katikati

18 Waikato Maniapoto ACMB 260, 27 September 1995. Deputy CJ Smith, Marumaru, Savage JJ

This was an appeal against an order under s338(7)/1993 appointing new trustees to a Maori reservation. The court noted that Mount Tauhara Maori Reservation (1977) 58 Taupo MB 168 and reg 7 Maori Reservations Regulations 1994 establish that, in matters relating to the administration of a reservation, trustees should consult with the beneficiaries. The rules of natural justice do not however apply to meetings to discuss proposed new trustees because there is no right or interest affected by meetings (as determined by the test in Durayappah v Fernando [1967] 2 AC 337 (PC) at 349). Appointments are made by the court. Meetings simply decide the evidence which will be put to the court. It is in court that interests are affected and natural justice and legitimate expectations issues may arise. The complicated rules of administrative law ought not to be imposed on the workings of Maori reservations. There remains however a duty to act fairly, although different consequences flow from a breach of this duty. Unfairness at a meeting will affect the weight the court will place on the evidence coming from it - see Ongarahu B and Eriapa Maru Uruamo 3 Tok ACMB 230. There was nothing on the face of the evidence from the meeting to suggest the court should inquire further, and the court cannot be put on inquiry in every case where the evidence contains no hint of discord, impropriety or lack of representation. Nor had the lower court itself acted unfairly or failed to address issues in terms of ss17(2)(a) and (e) (concerning empowerment of owners and unfairness). The present appellant had not taken the opportunity to question or oppose the evidence before the lower court. Although one trustee had not been voted on by the beneficial owners, voting is a "red herring" where the meeting has no power to decide. The trustee had been discussed and was acceptable to those 'involved with the reservation'.

 

 

Thomas and Coates and Rangiuru 2B9

9 Waiariki ACMB 47, 15 August 1995. Deputy CJ Smith, Spencer, Isaac JJ

The Maori Land Court refused an application to call a meeting of owners to consider a proposal to sell a block of land. The majority ownership were non-hapu and the proposed purchaser was thought not to be of the preferred class of alienees. In an oral judgment the court noted that, when the court is considering under s173/1993 whether to call a meeting of owners it should not, by virtue of s2/1993 (which refers to the control of Maori land being retained by Maori owners), give undue weight to the needs of Maori owners. The provisions of Part IX/1993 and the Maori Assembled Owners Regulations 1995, cl2 of which defines 'owners' to include all those with an interest, legal or equitable, in Maori land, are a special code and take precedence for the purposes of s173.

During the hearing the court also noted, although made no decision on the issue, the finding of Isaac J (in Re Nuhaka 2E3C8A2B, Maori LR September 1994 p2) that when considering whether a person falls within the preferred class of alienees, one may look beyond the immediate block and consider whether a person is a descendant of those in the original land block prior to partition. The proposed purchaser in this case was from a "well known" local Maori family.

 

Waitangi Tribunal

Kiwifruit Marketing Report 1995

Wai 449. 6 October 1995. Judge PJ Savage (presiding), MR Bassett, JT Kneebone, JJ Turei

This report concerned a claim that the right to export kiwifruit is a taonga enjoying the protection of Article 2 of the Treaty of Waitangi. The claimants were Marata Norman of Ngati Moko, a hapu of Tuhourangi iwi in the Bay of Plenty, and Wi Parera Te Kani of the Ngai Tukairangi hapu of the Ngai Te Rangi iwi.

Firstly, the tribunal rejected the view that the claim could be ruled out as frivolous and vexatious. Had there been a greater appreciation within the industry of the Treaty and cultural issues, this expensive claim would not have been needed. It raised important issues.

The tribunal expressed concern that the claim appeared to proceed in the name of a limited liability company and some Maori land trusts. Claims must be made by Maori only (s6(1) Treaty of Waitangi Act 1975). Claims need to be framed with care to avoid these problems. A claim may however in reality be made by Maori even though a Pakeha vehicle is chosen to advance it. In such cases the tribunal might look behind the corporate veil. In other cases Maori may only be affected as shareholders, in which case the trust or incorporation itself would be advancing the claim. Each case has different factors and the decision is a matter of balance and perception. This was a claim by Maori, but might easily have been held otherwise.

The basic claim was that the right to export kiwifruit is a taonga enjoying the protection of Article 2 of the Treaty. The evidence heard was unnecessarily wide in some areas, but established that Maori grew and traded a variety of foods prior to 1840 with the clear understanding that some would find their way overseas.

The claimants had been involved in the kiwifruit industry for some years, with financial encouragement in the early stages from the Department of Maori Affairs. After a fall in returns for nearly all growers in 1987, a referendum was held in 1988 in which over 80% of orchards voted for a marketing board to be established. Those who voted 'yes' included Marata Norman s orchard. The NZ Kiwifruit Marketing Board (NZKMB) was established in September 1988 as a result of that referendum.

Among other things, the claimants alleged they were encouraged to enter an industry with unreliable returns, were not consulted separately in 1988, that Maori kiwifruit farming required special consideration before policies were set by the NZKMB, and that current regulations allowing selling only through the board prevent the claimants exercising their rangatiratanga.

The tribunal found that the NZKMB is an agent of the Crown - although this finding was not essential to the central finding of the report. The central issue was whether the right to export is a taonga under Article 2. Pre-contact exchanges of treasures by iwi and hapu might be regarded as taonga. But it would be "an unjustified straining of Treaty principles to hold that the right to develop such a treasure could extend all the way to the modern kiwifruit trade." There was insufficient evidence before the tribunal that post-contact trade in the period prior to 1840 was a taonga. There was no evidence that Maori themselves exported - although they did trade with others who onsold overseas. The right to export would if anything be an Article 3 right. But even if these findings were wrong this also did not affect the central finding.

The central finding was that the sovereignty ceded by the Treaty included the right to regulate trade. A memorandum issued by the tribunal sitting to hear the Chatham Islands claims set out the position correctly, that the Maori text of the Treaty, when examined in the light of contemporary statements, did cede sovereignty, which was a form of national controlling authority (5 October 1994, see Maori LR Oct 1994). The rangatiratanga retained is not therefore a separate sovereignty, but a right to tribal self-management. Tribunal members had differing opinions of what rangatiratanga extended to, but this claim fell outside even the broadest of those views. The regulation of trade was a legitimate act of governance or kawanatanga. The chiefs knew this, they mentioned trade as a matter for general regulation in the Declaration of Independence of 1835.

There had been sufficient consultation with Maori before the NZKMB was established, consisting of input from the Department Maori Affairs, industry wide consultation prior to 1988 and the referendum in 1988. The consultation was sufficient to the circumstances - the tribunal repeated Sir Ivor Richardson s statement in the NZ Maori Council v Attorney-General case (p683) that in some cases specific consultation may not be required where a Treaty partner has sufficient information for it to act consistently with Treaty principles. The tribunal was less certain that there had been adequate consultation since the establishment of the NZKMB. There was no evidence that policy makers had considered the special restrictions owners of multiple owned Maori land face, or the different perspectives on cultivating land which Maori have. But there was no evidence either that Maori growers had made special efforts to bring these matters to the attention of the board. The tribunal was heartened by assurances that there would be greater consultation in the future and thought that at the very least Maori growers should be actively encouraged to participate in decision making in the industry, and become more involved with marketing to other indigenous peoples.

There was no evidence that the Kiwifruit Marketing Regulations 1977 were contrary to s20 NZ Bill of Rights Act 1990 (right of minorities to enjoy their culture), as there was no evidence that Maori rights to ancestral land were being endangered or Maori culture threatened by the regulations.

The issue of whether single desk selling is superior to other forms of marketing was irrelevant to the claim, although much evidence had been heard on this point.

[ed: this is a brief report, but it makes important findings. In stating that sovereignty and national governance were ceded by Maori in 1840, the tribunal reaffirms a position it has held since the Muriwhenua Fishing Report 1988. In that report, the tribunal found that it was a legitimate exercise of sovereignty or kawanatanga to pass laws to conserve natural resources. This report extends that further, finding that passing laws for the regulation of trade is also a legitimate exercise of sovereignty.

The tribunal in this report refused to stretch Treaty principles to cover the modern kiwifruit trade. This has similarities with the finding of the Court of Appeal in Te Runanganui o Te Ika Whenua Inc [1994] 2 NZLR p25 that the Treaty does not apply to another "modern" development - the generation of electricity by the use of water power (see also however the decision in Ngai Tahu Maori Trust Board v D-G Conservation, that a modern whale watching business is "analogous to" a taonga, but only because it has some parallels with pre-Treaty fishing and shore whaling (CA 18/95, 22 September 1995 Maori LRSept 1995 p3)). Unfortunately the tribunal gives little analysis of how it arrived at this position.

This report will no doubt be greeted with dismay by those pressing for an expansive view of rangatiratanga, particularly as the tribunal has used the Declaration of Independence to reinforce its view that Maori ceded to the Crown substantial powers in 1840. That Declaration is often quoted by groups seeking to question the extent of Crown sovereignty.]

 

Other Jurisdictions

William Tupu Awa v Independent News Auckland Ltd

CP 152/92 HC Hamilton, 16 October 1995. Hammond J

The plaintiff alleged that he was defamed by an article in the Sunday News national newspaper that described him as a "body snatcher", and sought damages of $200,000. The plaintiff was the 'chief kaumatua' of the Ngati Whawhakia hapu of Tainui. On the death in August 1991 of the well known entertainer Billy T James (whose adoptive mother was of Ngati Whawhakia), the plaintiff travelled to the entertainer s residence and removed the body to a marae before its burial on the sacred Taupiri mountain near Turangawaewae marae, Ngaruawahia. This was contrary to the wishes of close relatives who had arranged a church service prior to transport to a marae.

Held: it is well known that Maori protocol upon death is quite different from European. In particular, the decision where a deceased is buried is important, and argument is not uncommon, the greater mana of the deceased may occasion greater debate. "The Maori way of approaching the question of burial is therefore part of a complex spiritual and metaphysical process which is intertwined with the extreme importance of recognition and acknowledgment of ancestors; and family; and the burial process is closely intertwined with land and the place from which one sprung." European style rational analysis could not do justice to the "coherent vision of an indigenous people."

What must be considered is how the "ordinary reader", purchasing the paper from a corner dairy, would view the use of the term "body snatcher". Such a person would not take a far-fetched or over refined meaning, for example, that a body had been taken in breach of Maori custom. On this "ordinary reader" test, the term "body snatcher", suggesting some immorality, was capable of being defamatory. However, a defence of justification was made out, the evidence showing, among other things, that the plaintiff was clearly not welcome when he arrived to fetch the body, and had made forcible entry to take it, and no true consent was gained from close relatives to take the body in such circumstances. A kaumatua witness for the claimant admitted that in such a situation it would have been appropriate to withdraw and speak to other kaumatua. The plaintiff s defence that Maori protocol required that he remove the body to a marae was really a misguided belief that the end justified the means. In these circumstances "body snatcher" was also fair comment on a matter of public interest.

 

 

Paki & Others v Attorney General

CP 144/90 HC Hamilton, 24 October 1995. Anderson J

The plaintiffs were trustees of Pouakani B9B Trust, and were, through Waitangi Tribunal proceedings, seeking the return of land in the Pouakani block alleged to have been wrongly taken by default on a survey agreement. In 1987 the plaintiffs bulldozed some trees on the contested land as an assertion of their claimed rights and to provoke litigation. The Department of Conservation filed proceedings for trespass and the plaintiffs responded with a notice of opposition. After discussion, the plaintiffs and the Attorney General entered an agreement in July 1987 preserving the position of both parties pending the outcome of Waitangi Tribunal and Maori Land Court investigations of title to the land. In that agreement the Crown agreed to indemnify the trustees for losses if they were successful as to land ownership and boundaries issues. The Waitangi Tribunal issued its report, largely vindicating the trustees, but not before they had incurred $1.23 million in expenses. The trustees issued proceedings seeking payment of this sum. The Crown responded in September 1990 with a $650,000 offer, provided the claimants accepted it as a first charge against Crown liability, if any should be found or acknowledged. This offer was accepted. The trustees amended their proceedings and now sought the balance of the $1.23 million on the basis that it was owed under the terms of the July 1987 agreement. This case concerned the effect of the September 1990 agreement.

Held: the September 1990 agreement was not an acknowledgement of liability by the Crown. The Crown had simply agreed that, should it subsequently acknowledge liability over the land issues, or have judgment entered against it, it was entitled to be credited with $650,000 against those liabilities. The agreement of September 1990 could not be treated as a mere repayment of expenses, but was actually a part-settlement of the claim. Its worth would be known when the Crown acknowledged liability, or when judgment was entered against the Crown. Conceivably, the plaintiffs might in the future get judgment against the Crown, but the practical outcome might be no more than an accounting entry. The parties needed to consider their future tactics in light of this situation.

 

 

Whittaker v Maori Land Court of New Zealand

M2336/91 HC Auckland, 9 October 1995. Temm J

A woman sought an order under s452 Maori Affairs Act 1953 to rectify a succession order of the Maori Land Court made in 1943. She alleged that the MLC had at that time failed to award land to her mother, who was adopted. The Deputy Chief Judge turned down the s452 application. There being no right of appeal (s452(7)), the woman sought judicial review of the decision of the Deputy Chief Judge.

Held: the adoption occurred in 1892 and was according to Maori custom. In Hineiti Rirerire Arani v Public Trustee [1920] AC 198 the Privy Council held that, after the passing of the Adoption of Children Act 1895, Maori children could be adopted either under that Act or continue to be adopted by Maori custom. So the adoptee had full legal rights as if she were a child born in wedlock. After 1901 however, Maori customary adoptions had to be registered in the MLC for adopted children to succeed to their adoptive parents estate. However in 1909, in a radical change, s161(1) Native Land Act 1909 provided that all past and future Maori customary adoptions were without legal effect. Adoptions previously registered under the 1901 legislation were however saved. These provisions were considered in Piripi v Dix[1918] NZLR 691. The adoption in this case was not registered and was therefore ineffective from 31 March 1910 when the 1909 legislation came into effect. In December 1927 the position was completely reversed. Maori customary adoptions made prior to 31 March 1902 were deemed to be of full legal effect (s5 Native Land Amendment and Native Land Claims Adjustment Act 1927). However, the adopted child died in November 1927, and so the adoption was not saved by the 1927 legislation. The adoptive parent did not die till 1943. In the interim, in 1930, the 1927 amendment was reversed, and the position at 1910 reinstated, and continued in the Native Land Act 1931 (s202). This was the law in force when the adoptive parent died. Consequently, there was no legal interest of the adopted child in the adoptive parent s estate and the Deputy Chief Judge had correctly dismissed the s452 application.

The court also noted that the privative clause in s64/1953 effectively prevented it overturning the Deputy Chief Judge s decision in any event, as no error in law, unfairness, unreasonableness or ultra vires arguments were advanced (see O Regan v Lousich [1995] 2 NZLR 620).

As to costs, it was understandable that the plaintiffs should bring this action. Section 98/1993 makes special legal aid available. The power to award costs under that provision is however confined to the MLC. The court therefore noted a figure it thought the plaintiffs ought to be able to claim as expenses, and left it to them to make application under s98.

 

 

Hauraki Maori Trust Board & Others v Waitangi Tribunal

CP 171/95 & Ors HC Wellington, 14 September 1995. Ellis J

This was an application to recall parts of a judgment (Maori LR August 1995 p3) which decided that the Treaty of Waitangi Fisheries Commission had not yet adopted a policy for the distribution of pre-settlement assets from the Sealord settlement and consequently, as a matter of law, the Waitangi Tribunal lacked jurisdiction to hear a claim until the commission adopted a policy. The recall power (r540 High Court Rules) gives the court discretion to perfect judgments. It was argued that the court could usefully elaborate on comments made in the judgment to further clarify its intention, that it had failed to take into account s6(1)(d) Treaty of Waitangi Act 1975 (concerning actions, as opposed to policies, of the Crown), and had failed to properly address the issue of the policy behind the interim allocation of fish quota.

Held: the application should not be granted, as the court had, before making judgment, considered the matters for which recall was sought, but had deliberately refrained from comment; elaboration on the judgment would possibly require the hearing of further evidence; and the issues on which recall was sought were precisely those the subject of appeals to the Court of Appeal.

The court indicated that it was aware that its earlier judgment meant that, under the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, the Waitangi Tribunal might only have 30 days to hold a hearing about the distribution policy from the time it is announced until it becomes final.

[ed: in another fisheries judgment, on 12 October the High Court granted an interim injunction stopping proposed major cuts in snapper quota in the northern fishery (NZ Federation of Commercial Fishermen & others v Minister of Fisheries & Another CP 237/95 HC Wellington, Doogue J). Area 1 Maori Consortium and Ngapuhi Fisheries Ltd are plaintiffs in those proceedings.]

 

General

Protection mechanisms for surplus Crown property

DAM Graham, Minister in Charge of Treaty of Waitangi Negotiations, 20 November 1995

The Government has increased its ability to retain Crown lands surplus to requirements for use in future claim settlements.

Claimants will now only need to satisfy the Crown that surplus land is of cultural and historical importance and required for future development, or that is has special features making it "non- substitutable". The Crown will then decide whether to retain the land on the basis of the value of other properties already retained, progress being made on negotiations and affordability. These new criteria will be applied to properties passed for sale under the old mechanism but not yet sold. Over 100 properties will be immediately available for retention under the amended scheme.

Properties will be retained in new regional land banks. $150 million has been set aside to operate these banks. The regions are based on 14 of the research districts the Waitangi Tribunal has established for its Rangahaua Whanui project. The Ngai Tahu rohe is excluded by agreement. All surplus Crown lands within the boundaries of areas confiscated last century remain separately protected for possible future return to claimants.

[ed: in light of these announcements, the Waitangi Tribunal has vacated the fixture for an urgent hearing which was scheduled for 27 November on claim Wai 518, which is concerned with the inadequacies of the system for retaining surplus Crown properties (Wai 518, doc 2.27, 21 November 1995).]

 

 

Extra resources for the Waitangi Tribunal

DAM Graham, Minister in Charge of Treaty of Waitangi Negotiations, 20 November 1995

An extra $500,000 will be allocated to the tribunal over the next 2 years. $400,000 will be used towards the completion of the Rangahaua Whanui project, which will provide research reports on the historical background to claims in 15 districts covering the country, as well as reports on important common themes eg public works takings, rating, the operation of the land court. $100,000 will go towards the writing of final tribunal reports on claims where hearings have been completed.

 

 

Briefs

 In "Maori and Banking in NZ: recent research and a new survey of self-employed Maori" (M Fox, G Walker, S Francis, Journal of Banking and Finance Law and Practice 6(3) September 1995 p239) the authors present survey responses from 72 of an estimated 11,479 self employed Maori in NZ. The article also reviews prior reports, the Review of the Involvement of the Financial Services Sector in Banking Maori (Te Puni Kokiri, Nov 1993) and Maori Women in Business (Min of Women s Affairs, Jan 1991).

 Philip Pryke has been reappointed to the Treaty of Waitangi Fisheries Commission (Minister of Maori Affairs, 16 October 1995).

 William David Baragwanath QC, a barrister who has frequently acted on Maori issues before the Court of Appeal, High Court and Waitangi Tribunal, has been appointed a temporary judge of the High Court for 12 months from 15 November 1995 (NZ Gazette 9 November 1995).

 Two regulations have been enacted to further finalise the Waikato settlement. The Waikato Raupatu Claims Settlement Act Commencement Order 1995 (1995/247 - gives commencement dates for various parts of the Act) and Waikato Claims Settlement Act Second Schedule Order 1995 (1995/248 - adds several pieces of land to the list of those where resumptive memorials are to remain on the land).


October 1995 Contents

Maori Land Court and Appellate Court

In re Proprietors of Te Uranga B2 Block

Aotea MB, 19 October. 1995 Savage J

An incorporation applied under s358/1993 for an order that 401 hectares of land be reclassified as investment land. Section 358 provides that incorporations may apply to have lands acquired after their establishment reclassified as investment lands, and their status changed to general land, freeing them from the restrictions of Te Ture Whenua Maori Act 1993. At the suggestion of the court when the application was first raised, the incorporation passed a special resolution supporting the application by roughly 2 shares to one. The incorporation also applied to have its objects made unlimited under s358A/1993.

Held: under the 1993 Act incorporation land is no longer owned by an incorporation except as trustee, the land belonging to the beneficial owners who are shareholders. The effect of an order under s358 is that the investment land is removed from the trust and the incorporation becomes the sole owner, the beneficial owners lose their interest and merely retain incorporation shares in relation to that land. The committee of management of the incorporation may then alienate the land as they see fit. This is a serious step as it takes away rights from owners, their descendants and members of the preferred classes of alienees. Prima facie such an order runs counter to the objects of the 1993 Act but can be justified as the land is acquired after the formation of the incorporation and is not taonga tuku iho, although the owners may still have important links with it. Unfortunately there was no clear statement here of what the land meant to the owners.

Neither the resolution, the accompanying notice and statements explaining the resolution, or minutes of the meeting to consider the special resolution indicated that the owners had been made aware that they had rights which would be extinguished by a s358 order and that the land would cease to be Maori land. The court was reluctant to make an order where those two points had not been made clear, and there was not "substantial support well in excess of the majority" in favour of the application. This was a situation quite foreign to the general law of Aotearoa, allowing an owner of an interest in land to have that interest taken, perhaps even against their express wishes. The incorporation is kaitiaki for the owners, and the court will not change the status of Maori land or take away owners interests lightly. A majority voting for the conversion to investment land is significant but the rights of the minority are also important (s17(2)(d)/1993). Leave was given to make a further application after a fresh approach had been made to the owners.

As to the application to have the objects of the incorporation made unlimited, Parliament had not intended that incorporations established before the 1993 Act should automatically have their objects made unlimited, otherwise it would not have given a discretion to the court. The incorporation was well managed and financially sound. It was keen to use its assets as a base for financial ventures off the incorporation lands. Accordingly, the court ordered that the objects be redefined to conform with s353(a)-(b)/1993 but subject to the limitation that no activity conducted off the corpus land should involve the pledging or mortgaging of that land or otherwise encumbering it for the purposes of security.

 

Waitangi Tribunal

Turangi Township Report 1995

11 September 1995. GS Orr (presiding officer), IH Kawharu, HR Young, EM Stokes

Background

In 1963 the Crown had developed detailed plans for the Tongariro Power Development scheme, involving the collection of waters from catchments in the central plateau region of the North Island and the construction of 2 power stations, one being at Tokaanu on the shores of Lake Taupo. The Ngati Turangitukua hapu of Ngati Tuwharetoa owned lands in this area. Four sites were identified by Crown officials for a town to accommodate workers for the scheme. While only a temporary town was required, the Crown preferred to build a permanent township, and favoured a site on Maori owned land over other sites on Crown owned land.

In May 1964 a first meeting was held with the owners and the township proposal was outlined. Undertakings were given that full compensation would be provided for lands taken. The proposal was endorsed in principle by the meeting. A further meeting with owners (as opposed to meetings with individuals and a liaison committee) was held on 20 September 1964. The following day Cabinet approved the construction of the TPD and the compulsory taking of 900 acres and lease of 200 acres of Ngati Turangitukua land. Ten days later bulldozers began entering the township site, operating on tight deadlines to develop the area.

Implied power to enter the land was provided by Order in Council under s311 Public Works Act 1928 giving authority to construct all necessary works in connection with the utilization of water power and with no provision for prior notice or objections. In December 1964 the Turangi Township Act provided for a form of local government for the township, but without specific representation for Maori owners (although Maori practically did participate), and in a section added to cover legal concerns (s11), empowered the Crown to take by proclamation, again without notice or right of objection, 1540 acres and then sell it privately for the purpose of a permanent town. In 1965 the first gazette notices taking the land appeared.

Tribunal findings

It was doubtful whether the Crown had the legal authority to enter onto Maori land under s311 Public Works Act 1928 or s11 of the Turangi Township Act 1964 (which referred to s311) before lands were taken by proclamation, and prior notification of entry may have been a legal requirement (as opposed to some verbal then written notification which was voluntarily given). The engineering work on the ground proceeded far ahead of legal and clerical work required to complete procedures for Crown proclamations taking land or to begin negotiations on compensation for the owners.

Many of the more than 20 undertakings given by the Crown at the meetings of owners were not honoured either in part or in whole. Although the Crown undertook that no more than 800-1000 acres would be taken, 1665 acres were eventually taken. An assurance that 186 acres required for industrial development would be leased and not acquired was broken. There was a failure "in numerous instances" to protect waahi tapu. There had also been problems with a water supply reserve, water reticulation to some dwellings, river development works and some degradation of waterways and fishing areas.

The sovereignty gained by the Crown under article 1 is limited by the guarantee of rangatiratanga and other matters under article 2. This limited sovereignty does not create a constitutional problem, as few if any western governments enjoy unqualified sovereign power (membership of international organisations being one example). The Crown may override article 2 guarantees only in exceptional circumstances and as a last resort in the national interest. The Ngai Tahu Ancillary Claims Report 1995 expressed the provisional view that the power of compulsory acquisition of Maori land for a public work be exercised only in exceptional circumstances and as last resort in the national interest. A lesser test is insufficient. Court of Appeal comments that Treaty principles cannot place "unreasonable restrictions" on the right of an elected government to follow its policy (NZ Maori Council case) do not justify a lesser test. The Crown obligation according to the Court of Appeal is 'active protection to the fullest extent reasonably practicable'. While conservation may be one of these exceptional circumstances, there is a critical difference between legislation providing for the control and management of resources and that providing for their expropriation.

The tribunal rejected a Crown contention that it apply other than present Treaty standards to actions in the past. It also could find no evidence to support a Crown contention that the claimants had revised over the intervening years the value (apart from inflationary adjustment) they placed on land and waahi tapu. Nor did it find helpful the submission that the onus of proof lay entirely on the claimants. The tribunal is not a court but a commission of inquiry and looks to all parties to assist in completing its inquiry. Nor should contemporary documentation be given automatic preference over the personal recollections of those involved.

The provisions of the 'draconian' 1928 and 1964 Acts were tantamount to a "unilateral abrogation" of article 2 rights in that they allowed Maori land to be compulsorily acquired, and without a legal requirement of prior consultation or notice. Although the Public works Act 1981 amends some of these matters, it still fails to acknowledge Crowns obligations as a partner under the Treaty. The Crown was under an obligation to ensure no other land was available for the township, give consideration to gaining a leasehold rather than freehold, and ensure that there was provision for the return of any land no longer required for the public work. Consequently, there had been a failure:

- to adequately investigate alternative sites or assess the likely social or environmental impact;

- to give adequate consideration to the desirability of protecting rangatiratanga by acquiring the leasehold rather than the freehold of lands for the township and water supply reserve;

- to make provision in the 1928 and 1964 acts for the return of surplus lands at least cost and inconvenience to former Maori owners. While the 1981 Act makes provision for an offer back, it is inconsistent with Treaty principles in that it allows the Crown in certain circumstances to dispense with an offer back, without consultation with the former owners, and to set the offer back at market rates, without taking full account of the detriment of the original taking. It also allows the Crown to retain the full profit from the sale;

- the Crown failed to consult fully with the owners about the land to be taken for the township before it was taken;

- apart from a few notable exceptions, it failed, during construction of the township, to treat Ngati Turangitukua with the respect due to them as tangata whenua. In particular there was a failure to recognise and protect the sensibilities of kaumatua;

- there was a failure to keep Turangitukua properly informed about government intentions and actions as the township was developed;

- there was also a failure to honour undertakings that waahi tapu would be protected, by the adoption of a reactive rather than proactive approach to protection;

- there was a failure to act upon the high importance owners placed on conservation matters, leading to some degradation of waterways and fishing, and increased flooding;

- inadequate consultation led to a failure to mitigate the adverse social repercussions and trauma of the development.

The 1928 Act failed to provide adequate compensation for the takings. Having chosen to take ancestral land and disperse claimants from it, there was a heavy obligation on the Crown to treat the people generously. Because of poor consultation, Turangitukua could not be said to have been willing sellers. There was also a failure to consider preserving a sufficient economic base of land for Turangitukua.

Recommendations

The tribunal endorsed the view of the Ngai Tahu Ancillary Claims Report 1995 that before any compulsory acquisition of Maori land can occur, Treaty principles require that:

- owners are given adequate notice and the Crown must seek to obtain informed consent by full consultation;

- if the owners are unwilling to sell, the compulsory acquisition power might be used only in exceptional circumstances and as a last resort in the national interest;

- a lease or interest less than the freehold should be sought, and on terms to be agreed or determined by arbitration. If it is felt that the freehold must be acquired, that question should be determined by an independent body.

This tribunal added the requirement that the Crown not seek Maori land without first ensuring no other suitable land is available.

The Public Works Act 1981 should be amended to take account of these requirements, and it should also provide that for lands taken and later found to be surplus to requirements:

- the Maori owners be consulted where there is any intention not to offer the land back to the former owners;

- any offer back should be at the earliest possible opportunity and at least cost and inconvenience to the former owners;

- when setting an offer back price, provision should be made to; share with the former owners the increased value arising from development of the land, have regard to the means of the former owners to take up the offer, have regard to circumstances surrounding the original compulsory acquisition, and the special problems of multiple ownership;

- an offer back to a wider hapu or tribal group to which the former owners belong should be possible if the former owners are unable or unwilling to purchase;

The 1981 Act should also be amended to provide that the Act be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi.

As to the Turangitukua grievances, the tribunal recommended direct negotiation with the Crown, with the possibility of a further hearing on remedies if either or both of the parties request it.

[ed: most previous tribunal reports have dealt with the actions of persons long dead, or with events in the immediate past. This report deals with events a little over 30 years ago and many of the persons criticised in the report are still alive. The tribunal did not hear directly from the government officials involved at the time, and the report has been criticised in the media on that basis.

This is the second report in 1995 to express strong views about the limits which ought to be placed on compulsory acquisition of Maori land. This is linked to a notion which the report develops of 'sovereignty limited by the Treaty'. The tribunal says that while there is an obvious case for the Crown to override article 2 guarantees in order to conserve endangered species and limited natural resources, interference with rangatiratanga over Maori land for social and economic planning purposes is a different matter, and moreover, a constitutional one. The implications of this are far reaching.]

 

 

New Waitangi Tribunal member

John (Hone Te Kauru) Clarke has been appointed a member of the Waitangi Tribunal. He has Ngati Porou and Nga Puhi tribal affiliations and is 53 years of age. He was the Race Relations Conciliator from 1992-1995. He has also been the manager of Human Resources in the Department of Justice, Chief Executive of Manatu Maori from 1989 to 1991 and principal of Wellington High School and Community Institute from 1986 to 1989. In 1991 he was a Crown negotiator in discussions to settle the Ngai Tahu claim.

 

 

Memorandum following 8th hearing of Ngati Awa and other claims of the eastern Bay of Plenty

Wai 46 & Others, 27 September 1995. GS Orr for the tribunal

In this memorandum the tribunal considered whether it had power to make findings on the legality of Crown actions taken under the NZ Settlements Act 1863 confiscating large areas of Maori land in the Bay of Plenty. The tribunal determined that it does have jurisdiction, in appropriate circumstances, to determine questions of the legality of Crown action, and this included actions under the 1863 legislation relating to these claims.

The tribunal also made comments about its powers under s6(3) to consider remedies for well founded claims. It noted the preliminary view of some members that this includes the ability to consider the present and future needs of tribes rather than simply making an accounting for past loss. Also, assessing past loss solely on the basis of those actually in occupation of land at the time it was expropriated may fail to take into account other important values of Maori culture eg associational interests of those not in occupation.

 

Other Jurisdictions

Te Runanga O Ngai Tahu Ltd v Attorney-General & Others

CP 199/95 HC Wellington, 3 October 1995. Doogue J

The plaintiff sought an interim order by way of declaration that the Crown and Land Corporation agencies not permit any change in the present status of certain lands within the Ngai Tahu rohe. The basic concern was that no Crown land owned by a Crown agency such as a State-owned Enterprise (SOE) should pass from Crown control or ownership until the principal Ngai Tahu claim is settled. Discussions between the parties had reduced the properties concerned to those where there were no current offers to buy the lands.

Held: the Court of Appeal decision in the NZ Maori Council case ([1987] 1 NZLR 641) resulted in s27 State-Owned Enterprises Act 1986 being amended to provide that the existence of any claim under s6 Treaty of Waitangi Act 1975 does not prevent the transfer of land out of Crown or SOE hands, and ss27A-27D provided for titles to such lands to carry memorials providing for compulsory return to Maori claimants if the Waitangi Tribunal recommended it. The critical issue was whether this statutory regime sufficiently protected the plaintiff s interests pending determination of the substantive proceeding and the plaintiff s land claims.

The plaintiffs argued that various problems of a legal, political and human nature could arise which would not allow the protective mechanism of ss27A-D to operate in the simple way the Crown contended. A third party land owner could seek to avoid an application for compulsory return. A purchaser of land, because of the existence of the memorial, could run it down rather than improve it. It was not clear whether vacant possession would pass on resumption of the land by Maori where a third party purchaser had granted a lease either long-term or in perpetuity. Also, where many properties were involved, Ngai Tahu might have considerable difficulty persuading the Waitangi Tribunal to make all the necessary orders for return. Litigation in this respect was pending (CP 215/95 Wellington Registry see Maori LR Sept 1995). It was also argued that ss27A-D were passed with the expectation that claims would be dealt with promptly, the failure of the Crown to sufficiently fund the tribunal meant there was no certainty the plaintiff s claim would be dealt with in the reasonably forseeable future.

This was an application for interim relief. The balance favoured the plaintiffs, who arguably could be prejudiced through a failure to make the interim order sought. The status quo was in favour of a situation where the Landcorp lands remained not subject to sale. The presence of a land bank in favour of Ngai Tahu was not relevant. Once land was sold by Landcorp it was outside the immediate control of the Crown who would have to resort to the statutory scheme and powers under the Public Works Act 1981 to resume it, which made future problems 'almost inevitable'. The longer the delays in dealing with the plaintiff's claim the greater these inevitable problems would become.

An undertaking by the plaintiffs as to damages would not be required in respect of the interim order as, for example, the parties might in the meantime agree to alter the parcels of land the subject of the interim order.

[ed: although affecting only 37 properties in the South Island, this is a significant decision, suggesting that the court might, at the substantive hearing, accept that practical difficulties have overwhelmed the original intent of the resumptive scheme in some regions.]

 

 

Faulkner v Tauranga District Council

AP 29/94, 8 September 1995. Blanchard J

The appellant held a lease over just over 12.5 hectares of land vested in a s438/1953 trust. The district council successfully sued for rates. The appellant appealed on the basis that the land was Maori customary land, which is exempt from rates under s182(1) Rating Powers Act 1988.

Held: the land at issue had been continuously occupied for centuries, and the Ngaiterangi iwi had title by right of conquest prior to the Treaty of Waitangi. Ngaiterangi fought alongside Kingitanga followers at Tauranga and surrendered to the Crown in 1864. At a meeting with the Governor in August 1864 the mana or authority to decide the fate of the land was placed at the discretion of the Governor. He exercised that discretion by agreeing with the iwi not to confiscate more than one quarter of Ngaiterangi's land. An Order in Council in May 1865 confiscated Ngaiterangi lands under the NZ Settlements Act 1863. The Tauranga District Lands Act 1867 validated the confiscation and mentioned the agreement with the iwi, leaving it to the Governor to set apart lands for Ngaiterangi within the confiscation after "due inquiry". It was not until 1885 however that a Native Land Court judge, HW Brabant, acting as Commissioner of Tauranga Lands, issued a certificate of title for a block, Ohuki No 1, including the land now in dispute. In 1888 Brabant, acting now as a Native Land Court judge, issued a succession order for one of the former owners in Ohuki No 1 under the Native Land Court Act 1886.

The Native Land Court Act 1894 provided that "customary land" included all land held under Maori customs and usages whose title had been ascertained by the court or "other duly-constituted authority", and that all such land was held in fee simple and subject to the Land Transfer Act. This position was preserved by subsequent legislation in 1909, 1931 and 1953.

The land block the subject of this case was created by partition orders affecting Ohuki No 1 in 1914 and 1921. The s438 trust order made in 1972 described the land as Maori freehold land. In 1986 the District Land Registrar issued a title stating that the trustees held a fee simple estate in the land.

While the Rating Powers Act 1988 does not define Maori customary land, it is unlikely Parliament intended that phrase when used in the Act to mean other than the term as defined in the then Maori Affairs Act 1953 and now Te Ture Whenua Maori 1993 (the difference in the wording of the definition between the 1953 and 1993 Acts does not appear to be significant).

Customary land in the 1953 Act is land the ultimate or allodial title of which is, as with all NZ land, vested in the Crown, but in respect of which Maori continue to have a customary title recognised by the common law and confirmed by Article 2 of the Treaty of Waitangi - R v Symonds (1847) NZPCC 387 and Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. It was noted however that Crown land as defined under the Land Act 1948 specifically excludes Maori customary land. Customary or aboriginal title is a burden on the Crown s feudal title which can be extinguished only by means of a deliberate Act authorised by law and unambiguously directed towards that end. Unless there is specific statutory provision, customary title remains even where the Executive grants land to someone other than the customary owners, Nireaha Tamaki v Baker (1901) NZPCC 37. Customary title does not disappear by a side wind. Extinguishment must be plainly intended, as Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, 64 and Te Weehi demonstrate. But neither of these cases dealt with the effect on customary title where land is brought under the Torrens system and an indefeasible fee simple title issued.

Neither the differing decisions of the Privy Council in Kapua Haimona [1913] AC 761 and Te Paea v Tareha [1902] AC 56 as to the effect of proclamations and orders in council under the NZ Settlements Act 1863, nor the fact that the Order in Council of May 1865 did not refer to land being "taken", nor the issue of a commissioner's certificate rather than a Crown grant, could defeat the clear words of the Tauranga District Lands Act 1867 that the whole of the Tauranga District was taken for settlement. Consequently the customary title was extinguished. When Ngaiterangi had the Ohuki lands later restored to them the commissioner's certificate was equivalent to an order of the Native Land Court. The Native Land Court Act 1894 also confirmed that customary land included lands where the owners had been ascertained by a duly constituted authority, in this case the commissioner, and placed them under the Land Transfer Act as fee simple estates. While In re Rotomahana and Taheke Blocks (1909) 24 NZLR 203 did suggest that some provisions of the 1894 Act were purely registrarial in effect, it did not contradict the above conclusion. This was confirmed in the case of A-G v Ruritana (1909) 24 NZLR 228.

Where land is held by way of an estate in fee simple, especially where title is registered under the Land Transfer Act, the title must be regarded as one derived from the Crown. It is impossible to say that such a title is merely Crown recognised and continues, so far as the fee simple owners are concerned, to be held according to custom. This is supported by comments in Te Paea v Tareha p65. This does not however prevent the registered proprietors holding the land beneficially for an iwi or a section of an iwi. The rights of the beneficial owners may continue to be governed by custom. Comments made by Sir John Salmond in the introduction to the Native Land Act 1909 about the intent of the Native Land Court Acts of 1886 and 1894 also supported this conclusion.

Accordingly, the council was entitled to recover rates from the land.

[ed: the Rating Powers Act 1988 also provides at s182 that on the recommendation of the Maori Land Court and with the consent of the relevant district council, the Governor-General may exempt Maori freehold land from rates. Over 1500 hectares in the Ruapehu district have recently been exempted under this provision - see NZ Gazette 5 October 1995 p3511.]

 

General

Waikato Raupatu Claims Settlement Act 1995

19 October 1995

Changes by the Justice and Law Reform Select Committee and government before the final reading included:

- changing references to "Waikato-Tainui" to "Waikato";

- insertion of a Maori translation of the preamble;

- an amended reference to the Sim Commission;

- including 2 further claims in the list of claims covered by the settlement, and adding considerably to the list of claims not affected by the settlement most notably claims of Hauraki groups;

- tightening up of references to Hauraki interests in Maramarua lands covered by the settlement to better secure those interests;

- requiring the Tainui Maori Trust Board to file final accounts before dissolution;

- adding several properties to the list of properties within the settlement area where resumptive memorials will remain on the title;

- adding provisions amending the Public Works Act 1981 to allow for solatium or consolation payments to be made to persons who, but for Waitangi Tribunal recommendations or legislation, would have been entitled to an offer back of land compulsorily taken. In determining the amount of any solatium payment the Land Valuation Tribunal is to have regard to, among other things, the likelihood of the former owner being financially able to accept an offer back and the degree of attachment the former owner has to the land, in particular by having been associated with it for a long time.

[ed: pressure from several farmers who would have been entitled to an offer back resulted in the amendments to the Public Works Act. These amendments are not limited to the Tainui settlement but apply toall situations where the Waitangi Tribunal or Parliament orders the return to Maori of land taken under the Public Works Act. It is ironic to see that the owners' attachment to the land must be taken into account in determining the value of any solatium payment. This amendment was forced on the government because it did not otherwise have the majority to pass the measure. The select committee rejected a submission from the Tainui Maori Trust Board to have marginal strips excluded from the settlement. The Queen will give her royal assent to the legislation when she visits in November.]

 

 

Reserves and Other Lands Disposal Act 1995

No 54. 3 October 1995

Sections 6 to 12 of this Act provide for the creation and operation of a Ngati Whakaue Education Endowment Trust Board to manage former Ngati Whakaue lands that have for many years been an education endowment for the benefit of local high schools. Ngati Whakaue representatives (from the Pukeroa-Oruawhata trust) have 6 positions on the 11 member board.

[ed: the first part of this legislation, settling the Hauai land claim, is noted in the Maori LR Sept 1995]

 

 

Second Interim Report of the Maori Affairs Committee (Maori Education Authority)

I-9C. Hon KT Wetere (chair), P Gardiner, T H‰nare, M Laws, Hon G Lee, S Lee, Hon R McLay, T Ryall, Hon TWM Tirikatene-Sullivan

In April 1989 the Maori Affairs Select Committee resolved to conduct an inquiry into Maori education. The major recommendation of this report is that Te Puni Kokiri in consultation with the Ministry of Education and other groups co-ordinate an investigation into the benefits of developing a Maori education authority. In its first report the committee dealt with resources for promotion of Te Reo and recommended removing the cap on Maori Language Factor Funding and greater input from the Maori community into the development and implementation of accountability and monitoring mechanisms for this funding (I9A).

 

 

Hepatitis B Screening Programme for Maori. Report of the Maori Affairs Committee

I-9B. Hon KT Wetere (chair), P Gardiner,T Henare, M Laws, Hon G Lee, S Lee, Hon R McLay, T Ryall, Hon TWM Tirikatene-Sullivan

Of 40,000 carriers of this virus, 18,000 are estimated to be Maori. Complications from it can be fatal. This report records a sorry and cautionary tale of inaction over the problem. Under the Health and Disability Services Act 1993, regional health authorities (RHAs) are required to consult with the community and take the special needs of Maori into account. This very requirement appears to have allowed the RHAs, the Ministry of Health and Te Puni Kokiri to disregard mounting concern expressed by the Hepatitis Foundation that a screening programme was urgently required and insist that nothing more than community education programmes about the disease were needed. The select committee recommended, among other matters, that a screening programme be established as soon as practicably possible.

 

 

Focus on Employment. The Government's response to the Employment Task Force and the Multi-Party Group Memorandum of Understanding

19 October 1995

Apart from receiving improved assistance through the extension of "Job Action" and "Youth Action" schemes (providing intensive personal assistance to long term and youth unemployed) and by changed benefit abatement rates for those on the Domestic Purposes Benefit, the government has developed a Maori Labour Market Strategy. This combines immediate measures such as re-establishment of the Wahine Pakiri scheme (providing business training to Maori women) and limited subsidies to communities to undertake development of Maori-owned assets, with education initiatives to reduce unemployment over the longer term.

 

 

Draft Minerals Programmes

Energy & Resources Division Ministry of Commerce. September 1995

Separate draft programmes have been publicly notified (30 September 1995) for Coal, Industrial Rocks and Building Stones, and Metallic and Non-Metallic Minerals, pursuant to s14 Crown Minerals Act 1991. All 3 draft programmes, in accordance with s4/1991 (principles of the Treaty be taken into account when powers are exercised) provide that consultation occur in the preparation of each minerals programme, and before any prospecting, exploration or mining permits are issued or extended. Mount Taranaki and associated Pouakai, Pukeiti and Kaitake ranges are excluded from the programmes in recognition of their importance to Maori. The draft programme for Metallic and Non-Metallic Minerals notes the government policy that in view of ongoing discussions to settle Ngai Tahu claims, no permits will be available for pounamu. Consultation hui have already been held over these draft programmes. An iwi discussion document on the programmes is available on request. Submissions are required before 27 November 1995.

[ed: the Treaty principles proposed here are essentially the same as those in the Minerals Programme for Petroleum which was finalised in January 1995, see Maori LR May 1994 & March 1995.]


September 1995 Contents

Time for a review?

In February 1995, the Ngai Tahu claimants, frustrated with the lack of progress in negotiations with the Crown over settlement of their land claims, asked the Waitangi Tribunal for an early fixture in the hope that the tribunal would make binding recommendations to government for the return of Crown forest lands to Ngai Tahu. The chairperson of the tribunal turned down this and a subsequent request concerning state owned enterprise lands, on the basis that the tribunal had limited resources, and Ngai Tahu hearings had already consumed a fair proportion of them.

In response, the Ngai Tahu claimants have filed a High Court action attacking the chairperson s ruling, criticising his decisions on the allocation of Tribunal resources and the move away from hearing claims in sequence. They seek a declaration that no further fixtures be made by the tribunal until the High Court proceedings are resolved.

This episode highlights the intolerable position the Waitangi Tribunal has found itself in for lack of a full public review of its process since 1975. Regular public reviews are a statutory requirement for land claim tribunals in Australia, and help to increase the efficiency and fairness of the work of those tribunals and maintain public faith in them.

The approach to review in New Zealand is piecemeal. As the government seeks public submissions on the Treaty settlement package, which includes some proposed amendments to legislation governing the tribunal, it is considering an internal discussion paper on changes to the tribunal and is adjusting various other matters in the settlement process through a series of Cabinet papers (nga korero o te waSeptember 1995). These efforts may be worthwhile, but it is difficult, given this piecemeal approach, for the public or Maori to be confident that that is the case.

In an independent report the Auditor-General has highlighted this problem (reviewed under "General" below). He notes that, until his report, there has been no comprehensive account of how Treaty claims are settled, which agencies are involved and for what purposes, what costs are incurred, and what results have been achieved. He concludes that "only a limited number of people within government, or outside of it, have a good understanding of these matters". He makes a number of recommendations which would allow progress in hearing and settling claims to be independently and publicly measured. This is surely the best way of maintaining public and Maori faith with the process.

 


Maori Land Court and Appellate Court

In Re Rotoma No 1 Incorporation

241 Rotorua MB 223, 4 September 1995, Savage J

An incorporation passed a special resolution providing that the committee of management in its discretion enter into several leases in excess of 21 years on terms and conditions set by the committee. A copy was filed with the court as required by Reg 4(4) Maori Incorporations Constitution Regulations 1994. The court questioned whether the special resolution complied with s254(1)/1993 which provides that a Maori incorporation may only grant a lease over Maori freehold land vested in it for a term of more than 21 years "pursuant to a special resolution authorising ... the grant of the lease."

Held: the resolution had in effect delegated the power of approval of each lease to the committee of management. Under the 1993 Act, Maori incorporations no longer absolutely own the land upon which they operate, and are now trustees of it for the beneficial owners who have a direct interest in it as Maori freehold land. Section 254, new to the 1993 Act, reflects this change, by limiting the powers of alienation of the committee of management and ensuring owners are fully informed of decisions in relation to the land. This is also in accord with the Long Title of the Act and interpretation provisions of s2(2)/1993.

The argument that the words "the lease" in s254(1) do not refer to a particular lease was rejected. Such an interpretation would potentially enable a committee of management by a single special resolution to enter a whole series of leasing transactions over hundreds of years until revoked by another special resolution. An orthodox approach to statutory interpretation meant that the lease referred to the lease in contemplation at the time a special resolution was passed (R v Gallagher [1993] 1 NZLR 659 followed where the words "the trial" were considered).

Sensible use of the powers under the Maori Incorporations Constitution Regulations 1994 can make leasing procedures flexible. Matters such as the notice to be given before leasing need not be expensive and can be fixed by a special resolution under Reg 3(3). This was not the occasion for the court to dictate the exact form of notice, but the court would expect notice to refer to the general form of lease and the proposed resolution as being available for inspection at the office of the incorporation. It would be expected that the notice would inform owners of the proposed tenant's name, term of lease, rental to be paid and review provisions. What was important was that shareholders be given a proper opportunity to make a decision and take part in decision making if they so wished. Accordingly, an order was made under s280(6)(e) for the incorporation to lease in accordance with the judgment.

[ed: the court noted that s254 had been considered in Re Proprietors of Mangakino Township Inc 66 Taupo MB 235, 3 March 1995 but that decision was not relevant to this case.]

 


Waitangi Tribunal

Surplus lands within the Turanganui A Kiwa region

Wai 518, 15 September 1995. Deputy CJ Smith

SJ Pardoe and Te Runanga o Turanganui a Kiwa sought an urgent hearing of their claim which alleges that certain protective mechanisms which the Crown has established to check with Maori if they have claims over surplus Crown lands before they are disposed of by sale, are inadequate to protect Maori interests in terms of the Treaty. The claim concerned lands now surplus to the Crown in Gisborne City and the wider Gisborne area which might be capable of return to the claimants should their Treaty claims be proved valid. However a considerable number of claimants joined these proceedings to expand the matter to cover all Crown surplus lands.

After a telephone judicial conference the tribunal granted urgency. Figures showed that very little land had been removed from sale despite many Maori applications, indicating that "the present policy falls markedly short of the protection sought and there is a genuine concern among the iwi, hapu and Maori generally that the continued sale of surplus Crown lands jeopardises their expectation of settlement of their respective claims". It was noted that the Crown is presently undertaking a review of the surplus lands policy, but the urgent hearing should nevertheless proceed as sales are continuing under the existing policy.

This allocation of a fixture was however conditional on the outcome of Ngai Tahu High Court proceedings, which seek a declaration that the tribunal not allocate any further fixtures until Ngai Tahu concerns about the tribunal refusal to allocate a fixture to Ngai Tahu have been heard.

[ed: for a discussion of the Ngai Tahu proceedings see the editorial above.]

 

Interim report on Turangi Lands Claim

Wai 84, 8 September 1995

In an interim report to the Minister of Maori Affairs, the Minister in Charge of Treaty Negotiations, and the Ministers for State-owned Enterprises and Lands, the tribunal recommended that, as a report for this claim is imminent, the Crown should withhold from sale all Crown property in Turangi pending receipt of the report. In a further interim report on 15 September, the tribunal recommended that the Crown agree to meet the reasonable outstanding legal costs and disbursements of claimant counsel both for the hearing of the claim, and for any subsequent negotiations. This recommendation was made the tribunal said because its final report, "which has found that various of the claimants' grievances are well founded" was now with the printer, but made no mention of costs incurred by the claimants.

In a memorandum also dated 15 September, the tribunal declined a claimant request that it recommend that a land bank be established by the Crown for the claim. In light of the 8 September interim report and pending final report (which should be available for presentation to the Minister on or soon after 2 October 1995) such a recommendation was not felt to be appropriate.

 


Other Jurisdictions

Ngai Tahu Maori Trust Board & Ors v D-G of Conservation & Ors

CA 18/95, 22 September 1995. Cooke P, Richardson, Casey, Hardie Boys, Gault JJ

The Director-General of Conservation in 1992 notified his intention to issue a further permit for commercial sperm whale-watching off the Kaikoura Coast. The holders of the only 2 existing permits, both of them companies owned by Ngai Tahu, objected on Treaty of Waitangi and legitimate expectation grounds. An injunction was obtained. However in December 1994 the High Court dismissed the Ngai Tahu claim that, by virtue of the Treaty of Waitangi, they were entitled to a period of five years protection from competition, or were able to require that the D-G issue no new permits without their consent. Ngai Tahu appealed that decision.

Held: Regulations in 1990 and 1992 made under the Marine Mammals Protection Act 1978 (MMPA) controlled the issue and nature of permits for whale-watching. The MMPA required that before issuing any permit the Minister of Conservation should have regard to the need to conserve marine mammals, any international agreements to which NZ is a party, and submissions received as a result of public notification of the intention to issue a permit. The width of these provisions would enable submissions based on the Treaty and the taking into account of Treaty considerations by the Minister. There was also nothing in the 1990 or 1992 regulations (conferring on the D-G the discretion is issue permits) to prevent the D-G likewise from taking into account Treaty considerations.

Section 4 of the Conservation Act 1987 provides that that Act be interpreted and administered so as to give effect to the principles of the Treaty. Section 6 made it a function of the department to administer the MMPA. There was accordingly sufficient direction to make it a requirement for the D-G to administer the MMPA so as to give effect to the principles of the Treaty.

The Crown was correct in its view that references to the Treaty and Maori in other acts administered by the department under s6 would have an impact on the interpretation of s4 if there was an apparent difference between provisions. However in this case there were no arguably competing references between s4 and the MMPA. Statutory provisions giving effect to the principles of the Treaty in matters of interpretation and administration should not be narrowly construed. The MMPA and regulations were to be interpreted and administered to give effect to Treaty principles at least to the extent that that Act and regulations were not clearly inconsistent with those principles.

Whichever version of article 1 of the Treaty is used, it provided power to the Queen in Parliament to enact comprehensive legislation for the protection of the environment and natural resources. The second article also clearly extended to such sea fisheries as the tribes possessed. Authority for the view that Maori had developed fisheries along the coasts before 1840, and that Maori have customary, aboriginal title or Treaty rights and that the Crown has fiduciary duties in relation to those rights is found in Te Runanga o Muriwhenua Inc v A-G [1990] 2 NZLR 641, 646-7 and Te Runanga o Wharekauri Rekohu v A-G [1993] 2 NZLR 301, 303-6. Rights in both commercial and non-commercial fishing are dealt with by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which does not however affect whale-watching claims.

Ngai Tahu had pitched their claim too high in arguing that the right to conduct commercial whale-watching tours came within the scope of the Treaty or aboriginal title, and accordingly no permit could be granted without their consent (even allowing that consent could not be unreasonably withheld). Following the findings of the Ngai Tahu Sea Fisheries Report 1992 of the Waitangi Tribunal about traditional shore and sea whaling operations, the appellants had argued that while traditionally they had no property in the whales themselves, they had a right of control over access to resources in the sea, and that the present whale-watching operations were a modern-day expression of that right, or arose from it as a right of development. Putting aside the possibility that control may have been extinguished with the extinguishment of title to adjoining coastal lands, it is obvious commercial whale-watching is distinct from anything envisaged by the Treaty. Nor has there been any case in any jurisdiction in which an exclusive right to carry out whale-watching has been dealt with, and while international jurisprudence is coming to recognise an right of development within indigenous rights, that right is not necessarily exclusive. The argument of the Crown was preferred, relying on Te Runanganui o Te Ika Whenua Inc v A-G [1994] 2 NZLR 20, 24-5, that however liberally customary title and Treaty rights may be construed, tourism and whale-watching are remote from anything contemplated by the original parties to the Treaty. A Ngai Tahu veto right must therefore be rejected.

However, the Crown had also pitched its argument too high in saying it had no more than a duty to consult with Ngai Tahu, and that Ngai Tahu representations could not materially affect the decision to issue a permit. Although commercial whale-watching is not a taonga, it is so linked to taonga and fisheries that a reasonable Treaty partner would recognise that Treaty principles are relevant, and the matter must be approached broadly. Since NZ Maori Council v A-G [1987] 1 NZLR 641 it has been established that active protection of Maori interests is required and to restrict this to consultation would be hollow. While conservation values must be paramount, the D-G could legitimately take into account whether rival applicants were less disturbing of the whales, a secondary issue might be the standard of service provided to tourists. A residual factor of weight must be the Treaty duty to recognise the special interests that Ngai Tahu have developed in these coastal waters. A period of protection from outside competition may be part of this. Accordingly, the decision would be referred back to the D-G with a declaration that, subject to the primary consideration of preservation and protection of the whales, the D-G should take into account as a relevant factor the protection of Ngai Tahu Treaty interests.

There were special features in this case to be noted; viewing whales has some similarity with fishing or shore whaling, and although not a taonga or a subject of rangatiratanga, it is analogous. Historically, guiding visitors to see natural resources has been a natural role of Maori, the whale watching operation is essentially tribal, the companies involved being emanations of Ngai Tahu, and Ngai Tahu had been pioneers of the enterprise. As was recognised in Te Runanga o Wharekauri Rekohu v A-G (p304) the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, with each party accepting a positive duty to act reasonably towards the other. A reasonable Treaty partner would not restrict consideration of Ngai Tahu interests to mere matters of procedure. The iwi were in a different position in substance from other applicants. Subject to overriding conservation considerations and the quality of service offered, Ngai Tahu were entitled to a reasonable degree of preference. However, it was noted that the particular combination of factors made this case unique and its precedent value was therefore likely to be 'very limited'.

 

Huataki Holdings Ltd & Anor v Ministry of Agriculture & Fisheries

M39/94 & M40/94 HC Nelson 4 August 1995. Neazor J

A fishing company holding quota under the Fisheries Act 1983, and representing a number of iwi of the northern South Island, was charged, along with its director, with selling fish to unlicensed persons and failing to complete and furnish catch returns. The charges related to the period before the coming into effect of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, when s88(2) Fisheries Act 1983 relating to Maori fishing rights was still in effect.

Before the district court the defendants argued that s88(2) provided a defence. The tribes had traditionally made no distinction between commercial and other fishing. The judge rejected that argument on the grounds that insufficient evidence of traditional fishing rights had been provided, and that the iwi had chosen to enter the quota system and therefore must accept the duties imposed by it.

Held: in Te Weehi [1986] 1 NZLR 680 and Te Runanga O Muriwhenua Inc [1990] 2 NZLR 641 the courts recognised that s88(2) preserved Maori tribal sea fishing rights, although the argument was never concluded before the Settlement Act 1992 brought that litigation to an end. Accordingly, before the passing of the 1992 Act, the appellants were bound by the quota scheme unless and to the extent they could show that they were exercising rights pursuant to s88(2). The holding of quota and a claim to a traditional fishing right were therefore not mutually exclusive.

Section 11(4)/1992 now provided that as soon as a species was declared subject to the quota management system that declaration could not be questioned. Section 9(b)/1992 provided that no court had jurisdiction to enquire into the existence of rights in commercial fishing. The question whether that prevented this present case being considered was not argued, but it might be that s26(1) NZ Bill of Rights Act would allow s9(b) to be interpreted to allow a defence for events occurring before the 1992 Act was enacted. It was not argued whether a company, as a creature of statute, could claim to be exercising a Maori fishing right, but it might well be accepted that a wholly Maori owned company can be accepted as authorised to act for those in whom a right exists.

The onus of proof was on the defendant to prove a Maori fishing right was being exercised, and not on the Crown to prove that the defendant s actions fell within the offence provisions of the fisheries legislation. The reasoning to the contrary in MAF v Ransom [1993] DCR 1127 was not followed and Te Weehi and Green v MAF [1990] 1 NZLR 411 cases, placing the onus on the defendant, were preferred.

However, there was insufficient evidence on the balance of probabilities that a Maori fishing right was being exercised and the appeal in this regard was dismissed.

[ed: the court noted that this decision is now of largely historical interest because of the 1992 legislation. The decision does however confirm once again the strength of the doctrine of common law aboriginal title in New Zealand, including the point that aboriginal title rights to a resource are not automatically extinguished or reduced by the enactment of a detailed regulatory scheme for that resource.]

 

Ngati Wai Trust Board & Ors v Whangarei District Council & Anor

A 80/95, 28 August 1995. Sheppard J, PA Catchpole, F Easdale

Local Maori and a supporting group, Network Waitangi, appealed against a decision of the district council granting a resource consent for the "intensification" of a caravan park by provision of a further 120 camping sites. The Planning Tribunal rejected the appeal. Among other matters, the tribunal found that:

 Claims that tangata whenua had not been consulted were not made out. Although the RMA 1991 does not specifically require consultation with tangata whenua, it is recognised good practice to do so where issues under ss6(e) or 7(a)/1991 arise. Here there was a disagreement among local Maori about who actually had tangata whenua status. It was not for the consent authority to decide which among competing groups is entitled to the status of tangata whenua or mana whenua (see Paihia and District Citizens Assoc v Northland Regional Council A77/95), and the applicants had taken reasonable steps to consult with all who claimed that status.

 The argument that the consent did not provide for the cultural well being of tangata whenua and that only tangata whenua were competent to judge that, should be rejected. Expert evidence showed that the cultural well being of people in the area would be maintained, and in raising the issue before the tribunal, the appellants must accept the tribunal s competence to rule in this matter, and provide evidence to support their contrary view.

 As to s6(e) (preserving relationship of Maori with the area), the conditions imposed by the council on the consent, in particular, that the camping ground proprietors inform campers of Maori values and waahi tapu in the area, were adequate. Archaeological evidence did not support assertions about the existence of other claimed burial areas, and the Department of Conservation could protect existing waahi tapu areas which might receive increased visits.

 As to s7(a) (kaitiakitanga), consent authorities do not have to decide between competing groups claiming kaitiaki status. Conditions on the consent were adequate to ensure kaitiaki values would be maintained.

 As to s8 (Treaty), the tribunal rejected the claim that granting the consent failed to account for the essential nature of the Treaty bargain, including tribal self-regulation. Evidence of the appellants on this point had been general and similar to 'political rhetoric' and not applied to the particular case.

The tribunal also commented that tangata whenua evidence which focuses succinctly on facts and attitudes relevant to the particular case is welcomed, and can be influential when timely notice is given in accordance with the Act, and statements of evidence are delivered to other parties prior to hearing.

 


General

Reserves and Other Lands Disposal Act 1995

Sections 3 to 6 of this Act give effect to the settlement of a claim before the Waitangi Tribunal concerning lands at Hauai peninsula in Northland. In the early 1970s, the trustees of 25 hectares of Maori freehold land on the peninsula made plans to subdivide it. In 1974, after approaches from the Department of Lands and Survey (concerned at the time to preserve coastal lands for 'all New Zealanders'), the land was exchanged for 28 hectares of Crown land known as Felix Farm in Whangarei, represented to be 'suitable for subdivision'. The Felix Farm land had previously been affected by coal mining operations, and was potentially subject to subsidence something the new Maori owners were not aware of. In 1989 the Maori Land Court overturned the exchange on a procedural technicality and suggested negotiations to remedy the issue (1989 Chief Judge MB 67). Eventually a claim was made to the Waitangi Tribunal, which appointed a mediator to effect a settlement, which this Act puts into effect.

The Act revests in the Hauai trustees the peninsula land and revests in the Crown the Felix Farm land. The present reservation status of the Hauai land under the Reserves Act 1977 is cancelled. Marginal strip requirements of s24 Conservation Act 1987 will not apply to the revested Hauai land, but an area equivalent to the marginal strip is to be held by the trustees as a Maori reservation for the common use and benefit of the people of NZ. A waahi tapu area is also separately reserved. This legislation was first introduced in 1993, but was not passed until 21 September 1995.

 

The Settlement of Claims under the Treaty of Waitangi. Report of the Controller and Auditor-General

Second Report for 1995. 12 September 1995. DJD Macdonald

The Auditor-General s interest in this area arises from the considerable sums of public money involved. The report describes current policy and the legislative framework for the hearing and settlement of claims and identifies the agencies and processes involved. Costs were difficult to quantify because of changing reporting systems. The total money spent to date on processing claims from 1991-2 to 1995 (including research, tribunal hearings etc) is $41,337m, with most (over $17m) being spent in the Office of Treaty Settlements (compared to $11,607m for the Waitangi Tribunal). Results of the process have included:

 Settlements totalling over $182m have been made since 1991-92, and a further $500m has been set aside to settle claims through to 1999;

 A backlog building up of uncleared claims (an estimated 582 by June 1996);

 Less than half of 137 recommendations of the tribunal have been implemented, with 6% rejected outright and 'no start' made on 22%;

 Only 43 or 4% of the 1,194 surplus Crown lands advertised to Maori have been held back from disposal. This is despite 4,653 applications being received to have lands held back from sale;

 To date, $73,176m has been spent on holding land in land banks pending future settlements.

The report concludes:

 There is a need to complete and make public a comprehensive Treaty settlement policy;

 An integrated budget is required for the entire process;

 Formal sharing of information between the agencies involved is required;

 Some agencies in the settlement process have dual roles which add an "avoidable degree of complexity", because in this area the government has the dual objectives of fairness to claimants and affordability to taxpayers;

 The surplus land claims mechanism is under strain;

 An integrated system for monitoring and reporting progress in claim settlements is required.


August 1995 Contents

The Treaty and Municipal Law

On the 7 April 1995 the Australian High Court in Minister for Immigration & Ethnic Affairs v Teoh (1995) 128 ALR 353 held that a convicted heroin smuggler from Malaysia, who was refused residence in Australia because of his criminal convictions, had a legitimate expectation that the immigration authorities would consider UN instruments on the paramount rights of children, and initiate inquiries into the effect his deportation might have on his children born in Australia. The majority of the court found that international instruments which had been ratified, even if not yet incorporated into municipal law, could generate a legitimate expectation that officials would act in accordance with them. As Dr Rodney Harrison noted in a recent paper, this and similar, if less dramatic, NZ judgments, open the way for international human rights covenants to be invoked in the context of administrative decision making by the executive ("Domestic enforcement of international human rights in Courts of law: Some recent developments" NZLJ August 1995 p256). In light of these developments it is becoming alarmingly anachronistic that the Treaty of Waitangi remains officially in the position the Privy Council left it in in Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308, outside the municipal law of this country until incorporated into it directly by statute. In a recently published essay, Sian Elias QC has argued that "it is time to recognise that the notion of arbitrary Parliamentary sovereignty represents an obsolete and inadequate idea of the New Zealand constitution. It fails to take account not only of the place of the Treaty in New Zealand history but also of developing principles of international law. The Treaty requires to be recognised as fundamental to our constitutional system by reason of its status as a compact with the indigenous peoples of New Zealand and because of the vulnerability of the indigenous people and the increasing international concerns for their protection." ("The Treaty of Waitangi and the Separation of Powers in NZ" in Courts and Policy. Checking the Balance Legal Research Foundation 1995). At the hui called by Sir Hepi Te Heuheu in response to the Crown proposals for Treaty settlements it was decided that priority should be given to "a constitutional review jointly undertaken by Maori and the Crown for the purpose of developing a NZ constitution based on the Treaty of Waitangi." (MH Durie "Proceedings of a Hui held at Huirangi Marae, Turangi" in VUWLR vol 25 no 2 July 1995). In the coming months, it is hard to see how debate about the status of the Treaty can be avoided.

 

Maori Land Court and Appellate Court

No cases this month.

 

Waitangi Tribunal

New Appointment to the Waitangi Tribunal

Te Tari Kooti (Department for Courts) Press Statement 18 August 1995

Roger Maaka has been appointed to replace Sir Hugh Kawharu who recently retired. Mr Maaka is a lecturer in Maori Studies from the University of Canterbury and is currently completing a short period of teaching at the School of Native Studies at the University of Alberta, Canada. He is of Ngati Kahungunu descent and an expert in the history and traditions of that iwi. This appointment takes the Tribunal strength to 16 members including the Chairperson.

 

 

Memorandum of Crown Counsel Concerning Raupatu and Proposed Interim Report

Wai 46 & other Bay of Plenty claims 28 July 1995

At the request of the Tribunal for a statement of the Crown position, and after receiving instructions from the Minister in Charge of Treaty of Waitangi Negotiations, "The Crown acknowledges that the confiscation of land, as it occurred in the Eastern Bay of Plenty region, constituted an injustice and was therefore in breach of the principles of the Treaty of Waitangi. The Crown is amenable to developing the precise wording of any statement on raupatu to be included in any Deed of Settlement in discussion with each claimant group, as a component of the negotiating process."

 

 

Amended Statement of Claim for Ngai Tahu

Wai 27. 6 July 1995

The claimants allege that the Crown in August 1994 unilaterally suspended negotiations to settle their claim in light of the Waitangi Tribunal report of February 1991 against the wishes and without the consent of Ngai Tahu. This action, together with the release of the Treaty claim settlement proposals in December 1994, are said to have effectively denied Ngai Tahu of the opportunity for a negotiated settlement. The claimants say that the Crown has acted in bad faith during the course of negotiations and in suspending them. The Crown has sought to impose terms on the reopening of negotiations which would deny Ngai Tahu recourse to legal redress in the Tribunal or elsewhere. The Crown settlement proposals including its fiscal envelope represent "unconscionable and gross breaches of the Principles of the Treaty of Waitangi." Accordingly, the claimants seek that the Tribunal urgently reconvene and make recommendations for the return of all state owned enterprises and Crown forest land within the Ngai Tahu takiwa (district).

[ed: the tribunal has not yet issued substantive directions in response to this amended claim. A hearing is unlikely while various High Court actions brought by Ngai Tahu are pending, including an action concerned with an earlier tribunal ruling on urgency.]

Other Jurisdictions

Hauraki Maori Trust Board & Ors v The Waitangi Tribunal & Ors

CP 171/95 & ors, HC Wellington, 31 July 1995. Ellis J

Several groups involved in litigation over the allocation of assets under the Sealords fisheries settlement of 1992 sought declarations or orders to prevent the Waitangi Tribunal from hearing claims that the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) had or might breach the principles of the Treaty of Waitangi in its current proceedings to determine the best allocation of the assets. The tribunal had itself heard argument and already issued an opinion that it could proceed to a hearing on the claims (see Maori LR May 1995).

Held: the tribunal should not proceed with its proposed enquiry because it would be premature as a matter of law to do so. The Deed of Settlement of September 1992 provided that, in addition to the 10% of national fishing quota already held by Maori under the Maori Fisheries Act 1989, the Crown would give $150 million to Maori to complete the purchase of a holding in Sealords fishing company whereby Maori would receive 26% of the national fishing quota. The Treaty of Waitangi Fisheries Commission was then to propose a scheme of distribution for pre-settlement assets (the 10% of quota) and a separate scheme for post settlement assets (the 26%). The Treaty of Waitangi (Fisheries Settlement) Act 1992 gave effect to the Deed. The current contentions concerned the scheme of distribution for pre-settlement assets and arguments surrounding the definition of iwi and the model of distribution to be used. The court noted the "prophetic" words of Cooke P when the Deed of Settlement was challenged in the Court of Appeal that "should any legislation be enacted in this field, there could be little point in bringing the matter again before the Courts until at least some years of experience have been gained, and perhaps not even then." Te Runanga o Wharekauri Rekohu Inc v AG [1993] 2 NZLR 301, 308. Noted that the commission considered itself bound to distribute the pre-settlement assets to iwi. Urban Maori claimants contended "iwi" should include more recent groupings. The commission was unfortunately stuck with the term "iwi" rather than the wider words of the Treaty referring to "chiefs, subtribes, and all the people of NZ" (article 2). This issue was before Anderson J in other High Court proceedings (see Maori LR July 1995). It was to be hoped the separate scheme for post- settlement assets would follow the pre-settlement principles.

The distribution model based on coastline length but also partly on population (mana whenua mana moana model) is causing contention. It would be a national disaster if this dispute is not settled by agreement. This judgment was about the timing in the use of people and resources for reaching that agreement.

The judgment should be read together with the Fisheries Settlement Report 1992 of the Waitangi Tribunal. The precepts of that report were followed in this judgment. Shortcomings noted in that report of the Deed of Settlement had been perpetuated in the 1992 Act. The provisions of the 1992 were to be interpreted in light of the principles of the Treaty and the resolve by Crown and Maori to settle fishing claims once and for all in a spirit of co-operation and good faith. The tribunal was correct in its opinion that the fisheries commission acted in some of its functions on behalf of the Crown, and in proposing a policy for the allocation of settlement assets was acting on behalf of both the Crown and Maori. While the tribunal was precluded by s6(7) Treaty of Waitangi Act 1975 (inserted by the 1992 Act) from challenging the settlement in respect of commercial fishing or fisheries achieved by the Deed of Settlement and the 1992 Act, it had been correct in its finding that it could look at the mechanism establishing what the Deed and Act meant and how they were to work. Nor did s9 of the 1992 Act (no court or tribunal to have jurisdiction to hear claims concerning commercial fishing or the Deed) preclude a tribunal inquiry.

When the commission reports to the minister a proposal for the allocation of pre or post settlement assets, there would only then be a policy proposed to be adopted both by the commission itself and by the Crown. The tribunal might then entertain claims in respect of the policy. However, despite submissions to the contrary, the commission had not yet made up its mind on a proposal for allocating pre-settlement assets. Detailed and "comprehensive" submissions from counsel for the commission, that no proposal had been decided upon and that work on a wide range of options was continuing, were accepted. The commission had not yet proposed a policy that could be the subject of enquiry by the tribunal. The commission had perhaps reached a low point in its search for agreement, but it was not at an impasse and had a working majority ready to press on. It would be unreal to expect commissioners not to be by now following or inclining towards a particular model.

An argument by Sir Graham Latimer and others that commissioners, including himself, felt overborne by the others was refuted by Sir Graham s actions, namely his public, unfounded and sad allegations that some commissioners had acted fraudulently.

The claims of various groups, including urban Maori, went to the heart of Maori unity and the future of iwi. Even the Treaty itself might be at stake. Accordingly, the court commended parties to accept a tribunal offer to stage a hui to seek a path to agreement in a forum traditional yet modern. This was an opportunity for statesmanship.

[ed: the decision is noteworthy also for including a page long Maori text recording its essential finding that, "e ai ki te ture, he wawe rawa te whai a Te Taraipiunara kia tirohia ngaa whakahaere a Te Ohu Kai Moana." The court accepted the approach of the commission - that there were no serious objections to the view that some mix of coastline length and population would be the basis of any final proposal, and that discussions were ongoing about what that mix might be. Even models for allocation said to be in disagreement with the commission approach, such as the Tainui "Takutaimoana" model, included some mix of coastline and population.]

 

 

In Re T

HC 66/94, HC Auckland, 2 June 1995. Tompkins J

This was an appeal against a decision declining an application for a Samoan child to be adopted by its grandparents (under restrictions in s11 Adoption Act 1955). The child had been born to a young unmarried mother who now lived with the grandparents and had since married a man other than the biological father. While an earlier decision MR v Department of Social Welfare (1986) 4 NZFLR 326 suggested that adoption by grandparents will not necessarily promote the interests of the child where a clear relationship with the mother still exists, decisions since then, most notably Re Adoption of A [1992] NZFLR 422 and Application for Adoption by RRM and RBM [1994] NZFLR 231, dealing with Maori children, showed that full regard should be had to the cultural attitudes of the family concerned. An adoption which might be considered inappropriate in a European setting may well promote the welfare and interests of the child in a Polynesian family.

 

 

Pineaha v Pepeko

CS 081 073 92. Family Court Waipukurau, 8 June 1995. Inglis J

The mother of a male child born in 1984, who had had that child adopted at birth by a paternal aunt, applied for suspension of child support liability. The mother had never played any part in the care and upbringing of the child and the adoption, which had never been formalised under the Adoption Act 1955, was in accordance with tikanga Maori or recognised Maori custom. When the adoptive aunt and her partner had applied for and been granted a domestic purposes benefit the Department of Social Welfare had approached the birth mother seeking a liable parent contribution, arguing that it had no discretion to do otherwise under the legislation.

Held: this was, by any reasonable standards, a situation which 'defied common sense'. The customary adoption had existed for nearly 11 years. Counsel for the mother argued that s25(1)(a)(ii) Child Support Act 1993 (parent ceases to be liable when child is "adopted"), when it refers to adoption, is not limited to adoptions under the Adoption Act 1955. Because Maori customary adoptions are clearly referred to in other legislation eg Maori Land Act 1993 (ss108 & 115), Parliament can hardly have been ignorant of them 2 years ago when it passed the Child Support Act.

It is a necessity to acknowledge the cultural strength of adoptions according to tikanga Maori. The omission of a direct reference to the 1955 Act in s25 "could only have been deliberate and was intended to enable customary Maori adoptions to be respected and recognised." Accordingly, the applicant ceased to be liable for child support when the child was adopted in accordance with custom. It would be sensible however for Maori who prefer custom and wish to remove any argument, to arrange a 're-adoption' under the 1955 Act.

[ed: the Crown is appealing this decision]

 

 

Falkner & Ors v Gisborne District Council & Anor

AP 1/95, HC Gisborne, 26 July 1995. Barker J

A group of homeowners, concerned that the local authority would no longer under the district plan protect their beachfront properties from erosion, argued that, despite the Resource Management Act 1991, a common law rule continued in existence requiring the Crown to preserve the realm from inroads of the sea, and allowing the homeowners to take action to protect their properties from the sea. The High Court determined that, despite savings provisions in the RMA (s23), where pre-existing common law rights were inconsistent with the scheme of the Act, those rights would no longer be applicable. The Act was not a vindication of personal property rights but concerned the sustainable management of resources, therefore there was nothing in the scheme of the Act to suggest that common law rights could not be infringed quite the reverse. The court suggested a compensatory scheme be enacted for the loss to be suffered by the homeowners by the change in the district plan.

[ed: this decision is noted because if indicates the potential impact of the RMA and similar legislation on rights which might be claimed under the doctrine of aboriginal title to the ownership, management and use of resources.]

 

 

Mataka Station Ltd v Far North District Council & Anor

A69/95, Planning Tribunal, 20 July 1995. Bollard J, Dr AH Hackett Mr IG McIntyre

An appeal against conditions of a resource consent granted by the council for a papakainga housing scheme in the Bay of Islands. The scheme was for 25 dwellings on a 172.77 hectare coastal block of Maori freehold land managed as a s438 trust (now an ahu whenua trust see s354 & s215 Te Ture Whenua Maori 1993). The land was ancestral land which had been in the ownership of the applicants' families since pre-European times and was held in multiple ownership by descendants of the original tupuna (ancestor). There was a marae and urupa on the block. The appellant's main concern was that the location of some dwellings on an area facing the sea would detract from the visual quality of the coastal environment, contrary to statements in various national, regional and district plans and the RMA itself. It was argued that some dwellings should be located in a central valley away from the coast.

Held: it was agreed by all parties that the block was suitable for a papakainga development. The district plan provided that marae and urupa were a permitted activity, and papakainga housing a discretionary activity within the coastal zone 1A designation covering the land. The district plan provided for 11 coastal zones. Zone 1A applied to sensitive parts of the coastal environment where conservation oriented polices were to be pursued and some managed change was allowed. Papakainga housing in the zone, when permitted, was to be limited to 25 houses per site with a density of 1 unit per 2 hectares of site area. No dwelling in the zone could be closer than 40 metres from the mean high water mark. Earthworks undertaken in the zone for dwellings were also subject to limits. A papakainga development plan was to be forwarded to the council prior to the commencement of any work.

The provisions of other relevant planning instruments were examined, namely, the proposed Regional Policy Statement, the NZ Coastal Policy Statement and the proposed Regional Coastal Plan, which designated the area as a "Marine 2 (Conservation) Management Area". The tribunal noted a legal opinion that, because different owners would have stronger ancestral links with some parts of the block than with others, it was appropriate that the location of housing sites on the block should promote whanaungatanga links of owners with their own particular piece of land or turangawaewae.

After evaluating these documents and the RMA (Part II and s104(1) in particular), the tribunal made an interim ruling allowing the scheme to proceed, bearing in the mind the need to ensure that the character of the coastal environment was maintained while allowing the applicants to locate on those dwelling sites as near as possible to areas with which they retained special links based on ancestral connections. Tentative conditions to be imposed included:

 that a surveyor locate each proposed dwelling site more exactly than on current plans;

 that dwellings be of single or split level construction only;

 electric power and telecommunications services be visually non-intrusive and underground as far as possible;

 that water storage and other accessory buildings for each dwelling be restricted in area;

 that all buildings be painted in naturally recessive colours to blend with the landscape;

 application be made to the Maori Land Court to define accessways across the block, and to set aside a foreshore area as a Maori reservation for esplanade-scenic purposes;

 conditions as to the quality and width of roadways over the block;

 that before building consents issued, a landscape plan be submitted to the council, and occupiers enter an agreement with the council to maintain the landscape in accordance with the plan, including an undertaking not to fell trees or scrub to increase views from the dwelling, and to implement the landscaping works applying to the dwelling within 12 months of occupying the dwelling;

 the trustees have overall responsibility to implement the landscape plan within an agreed period;

 an arrangement be made for fencing to be erected to restrict stock movement on the block;

 a time period be set within which existing unauthorised structures, including derelict vehicles, be removed from the block.

Parties were to reapply for final orders when the survey work to better locate the proposed dwellings and preparation of landscape plans had been completed.

[ed: the case is a good example of the many planning rules papakainga schemes may be subject to under the RMA regime, and the numerous conditions which may be imposed before schemes proceed.]

 

General

Waikato-Tainui Raupatu Claims Settlement Bill 1995

No 104-1

When enacted, this bill would make the necessary legislative changes to put into effect the Deed of Settlement of 22 May 1995 between Waikato-Tainui and the Crown (see Maori LR May 1995). The Deed of Settlement contained undertakings by the Crown to transfer particular Crown owned properties in the Waikato-Tainui claim area to a land holding trust established by the claimants. Much of this Bill is concerned with the undertaking that, wherever possible, land should be the recompense for the land that was confiscated. It does this by providing that all residual Crown lands in the claim area be potentially available for transfer to the land holding trust. Accordingly, the Bill provides mechanisms for:

 the transfer of Crown lands to the land holding trust;

 having titles to all residual Crown properties in the claim area marked with memorials noting that the land may be required to be offered for purchase to the land holding trust in certain circumstances;

 requiring Crown bodies to give the land holding trust the first right of refusal over any residual Crown land which they seek to sell;

 providing for the Crown to compulsorily acquire residual Crown land from Crown bodies to further the settlement;

 providing for properties to be vested in Pootatau Te Wherowhero (Te Rapa and Hopuhopu land being the first) as directed by the land holding trust.

Because the settlement seeks to finally settle Tainui claims in the claim area, the Bill also contains provisions:

 to cancel resumptive memorials from all state owned enterprise properties in the claim area;

 to remove any requirements under the Crown Forest Assets Act 1989 that Crown forest lands in the claim area be considered for return to Maori, except for Maramarua and Onewhero forests, which are to be returned to the claimants (the return of Onewhero is subject however to a suitable arrangement with the counter-claiming Hauraki Maori Trust Board being worked out first );

 removing the jurisdiction of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 to consider further the Waikato-Tainui claims finalised by the Deed of Settlement, or consider the settlement or benefits under it.

The Bill also makes incidental amendments to:

 Transit NZ Act 1989 - providing that projects affecting land registered in the name of Pootatau Te Wherowhero may not proceed unless the land holding trustee has first been consulted;

 Conservation Act 1987 - providing for the appointment of the Maori Queen and her successors to the conservation board covering the claim area;

 Resource Management Act 1991 - providing that resource consents may not be granted conditional on a financial contribution comprising or including land registered in the name of Pootatau Te Wherowhero;

 Crown Minerals Act 1991 - requiring the consent of the land holding trustee before any exploration activities can be carried out on land registered in the name of Pootatau Te Wherowhero, or land regarded as waahi tapu by the trustee;

 Maori Trust Boards Act 1955 - providing for the eventual dissolution of the Tainui Maori Trust Board when the settlement is in place, and cancellation of the annuity to that Board.

 

 

Trial by Peers? The Composition of New Zealand Juries

July 1995. Policy and Research Division. Department of Justice

This is an interesting study of apparent racial bias at work in NZ courts. Historically, Maori were excluded from sitting on juries until 1962 (except in Maori-Maori matters). Moana Jackson's paper The Maori and the Criminal Justice System: A New Perspective - He Whaipaanga Hou (1988) alleged that a monocultural bias existed in jury composition because of the way jury lists were assembled from the electoral rolls and the way challenges were made in court. This report investigated those allegations.

With regard to compilation of the jury list, the report found that in comparison with the population as a whole Maori were under-represented because of the relative youthfulness of the Maori population (ie fewer eligible to serve), the smaller proportion of Maori living near urban areas where jury trials are held (jury lists draw on people within 30 km of the courthouse) and the higher rate of Maori non- registration on electoral rolls. Other factors thought to be involved were jury summonses being sent by post to a highly mobile population, and disqualification through previous convictions (higher rates of Maori conviction). Maori women were also under represented in the jury pool. Research showed that there would be little change by increasing the size of districts from which juries are drawn to take account of the rural dwelling bias in the Maori population.

A survey of challenges in court showed that although defence counsel were twice as likely to challenge jurors as the prosecution, prosecution counsel were twice as likely to challenge Maori as non-Maori in the High Court, and 3 times as likely in the District Court, meaning that close to every second Maori male was challenged in the District Court. Maori males were overall the most challenged group. To explore this bias, a qualitative survey of judges, lawyers and court staff was undertaken. Evidence of previous convictions (police regularly provide printouts from the Wanganui computer to counsel), and the impression that Maori males would be more lenient on the accused, particularly where the accused is Maori, emerged as important factors. This bore out suggestions from US research that black jurors are less likely to convict than white ones and that the prosecution are more likely to challenge a person of the same minority group as the defendant. Other factors included perceptions of whanau or kinship links with the accused, demeanour, socio-economic bias, and client instructions. A counter-bias was also noted, where counsel did not want to give the rest of the jury the impression that they were selecting solely by race.

Despite these problems, there was little support from judges, lawyers and court staff either to reduce the number of challenges, or to provide guidelines for prosecution challenges. The authors recommend that consideration be given to the current number and use of challenges and whether they lead to a properly representative jury, a trial by one's peers.

[ed: It is interesting to see that the same problems which plagued the carrying out of the Maori electoral option, the low number on the electoral roll and the inefficiency of postal communication, also have an impact on the involvement of Maori in the justice system.]

 

 

Treaty Issues: The Unfinished Business. Proceedings of a conference held in Wellington, February 1995

VUWLR vol 25 no 2 July 1995

This volume of the Victoria University Law Review is dedicated to Treaty issues. Highlights include: MH Durie "Proceedings of a Hui held at Huirangi Marae, Turangi" (p109) concerns the hui called by Sir Hepi Te Heuheu to discuss the government Treaty settlement proposals released in December 1994. The paper notes the need to develop a constitutional framework in which the Treaty achieved certainty.

Sir Kenneth Keith "The Roles of the Tribunal, the Courts and the Legislature" (p129) reviewed recent applications of the Treaty in NZ law. Reflecting on the place of the Treaty in the NZ constitution in the future he said we should be wary of terms like sovereign and independent, "In the present world, made even smaller by technology and many other human and natural forces, no state is fully sovereign in its external relations, and leaving aside a handful of absolute dictatorships no politician or government or parliament has real internal sovereignty. What we are seeing is the dispersal of power from so-called 'sovereign states' in at least three directions - to the international community, to the private sector, and to public bodies and communities within the State." He suggested the possibilities for enforcing Maori aspirations included; a measure of self determination, the power of veto, rights placed as a constraint on or made relevant to the exercise of public power, Maori rights to be recognised as equal under Article 3. "The variety of those actual and possible arrangements indicates that the oft stated proposition that the law must apply equally to all at all times is too simple. We need to have a more subtle, but still principled, approach to the recognition and allocation of power. ...The diversity can relate to the deciders and their processes as well as to the substantive rules and principles."

Robert Te Kotahi Mahuta "Tainui: A Case Study of Direct Negotiation" (p157) discussed the history of negotiations with Tainui and the recent settlement negotiations.

Sir Tipene O Regan "A Ngai Tahu Perspective on Some Treaty Questions" (p178) contains characteristically pithy comments on current Treaty issues, including the view that iwi are the appropriate body to settle matters with in preference to hapu or pan Maori organisations. "[A] hapu, like the subsets of which it is composed, the 'whanau', is really an extremely dynamic concept. It is in a process of continual evolution and decay. ... If I want to disassociate myself from my immediate relations in some manner, all I have to do is go to the [cemetery] headstone, pluck down a name, establish the whakapapa to that name, and announce myself as 'Ngati Mea' or 'Ngati Mea Iti' for the occasion. Then I trot along to the Maori Land Court and make a section 30 application and before long the Maori radio is dripping with my tearful struggle to assert my identity. ... In practice as well as in tikanga and legal terms, there exists a tribal overright. ... the Iwi, the tribe, is a group around which you can effectively erect a whakapapa fence which matches the rohe fence."

Tania Rangiheuea "The Role of Maori Women in Treaty Negotiations and Settlements" (p195) concludes that to date, women have been on the outside looking in, with decisions being made by a Maori "boys club".

Whaimutu Dewes "Fisheries - A Case Study of an Outcome" (p219) comments on progress with allocation by the Fisheries Commission. He notes that customary fisheries issues are a mess and are underresourced.

Rt Hon Sir Geoffrey Palmer "Where to From Here?" (p241) said that "the idea that sovereignty should be given to Maori at a time when the notions of sovereignty are collapsing all over the world seems to me to be ludicrous. Once upon a time we thought the NZ Government was sovereign. We hardly think that now. Far from being the indivisible omnipresent concept that Hobbes made it in Leviathan, sovereignty is more like a piece of chewing gum. It can be stretched and pulled in many directions to do almost anything. Sovereignty is not a word that is useful and ought to be banished from political debate. The notion that sovereignty for Maori comes from the Treaty of Waitangi is highly controversial and requires reading one provision of the Treaty up and another down."

In a final "Comment" Moana Jackson (p245) said that he knows of no "fiercely independent group of people in the world .. who would voluntarily give away their sovereign authority" and the "untruth" that the Treaty achieved such a thing should be dropped. He is concerned that the Treaty is losing its political reality and being drowned in the rhetoric of the law, and quoted a Canadian indigenous lawyer reflecting on the concerns of the majority culture: "... I say to indigenous people, tell your stories of difference to break away from where they wish us to be. Because where they wish us to be is somewhere between being dominated and apparently equal, somewhere between laughter and tears."


July 1995 Contents

Māori Appellate Court

Status of Land – change to General land will not lead to more effective management and utilisation - Cleave – Part Orokawa 3B (1995) 4 Taitokerau Appellate Court MB 95

Trustees - In Re Maxwell and Maruata 2B2 Block Appeal 1994/9, 16 September 1994

Māori Land Court

In Re Tararua District Council 138 Napier MB 104

Waitangi Tribunal

Waterways - Te Whanganui-A-Orotu Report 1995 (Wai 55, 1995)

Resignation of Waitangi Tribunal member

Other Jurisdictions

Jackson & Ors v A-G & Paraparaumu Airport Ltd & Ors (CP 149/95, High Court Wellington, 30 June 1995. Neazor J)

Te Waka Hi Ika O Te Arawa and Ors v TOKM & Ors (CP 395/93 and others, 30 June 1995. Conference minute of Anderson J)

Paul v Whakatane District Council & Another (A12/95, 13 March 1995. Sheppard J, PA Catchpole, F Easdale)

General

Treaty settlements and "offers back" under the Public Works Act

Funding for the Settlement Envelope

Reserved lands policy, compensation considerations

Coromandel Hauraki Gulf (Prohibition on Mining) Bill

Judicial Attitudes to Family Property

Fisheries (Palliser Bay Taiapure) Order 1995

read more


Status of Land – change to General land will not lead to more effective management and utilisation – Cleave

Cleave – Part Orokawa 3B

Māori Appellate Court (1995) 4 Taitokerau Appellate Court MB 95 (4 APWH 49)

22 May 1995

Unsuccessful appeal against a refusal of the Māori Land Court to change the status of a block of Māori freehold land to General land under ss 135 and 136 of Te Ture Whenua Māori Act 199. It could not be demonstrated that the land would be more effectively managed and utilised as General land.

Download Cleave – Part Orokawa 3B (1995) 4 Taitokerau Appellate Court MB 95 (4 APWH 49) here (19 KB PDF). read more

June 1995 Contents

The claim to the sea

In the context of the current debate over fishing rights and mana whenua mana moana, the following incident is offered for reflection.

In 1955 Nga Puhi elders lodged an application with the Maori Land Court for title to Te Moana-nui-a- Kiwa, the Pacific Ocean. The claim was based on: rights from Tangaroa, as descendant of Rangi and Papatuanuku; the act of Maui-tikitiki-a-taranga in fishing the island from the sea; on Kupe through his voyage to the island across this ocean, and his naming of points on land alongside it; and through human blood which Kupe smeared on his face when fishing the island from the sea. By the time Europeans discovered the ocean, the applicants said, it had already been crossed many times by Maori and was a marae of the ancestors. This application apparently followed a pre-war petition to similar effect placed before Parliament but not acted upon.

Perhaps to allay any government concerns, and to conform to Maori Affairs legislation, the applicants were seeking for the waters of the ocean to be vested in them as trustees. Since they were British subjects, "the world would know these waters were controlled by the British Crown".

Not surprisingly, the Maori Land Court judge at Rawene felt that he lacked jurisdiction to consider the claim, saying the Court could only regulate disputes concerning Maori fisheries, but he complimented the elders on the preparation of their case. The judge was concerned that other litigants were waiting to be heard and limited the hearing of the case to one hour. The applicants in turn thanked the Court for consideration of their claim (64 JPS (1955) 162, NZ Herald 24 February 1955).

It may have crossed the mind of the judge (Judge Clarke) that this application was fanciful, although he did not say it. But what would we say now in light of the Territorial Sea and Exclusive Economic Zone Act 1977 and the modern law of the sea? The Waitangi Tribunal, reflecting in recent years on Maori views of dominion over the seas, unconsciously echoed this earlier claim in finding that "Maori saw the oceans as one expansive whole. Their right to it was based on ancestral associations. The Pacific they called Te Moananui-a-Kiwa, (the expansive ocean of Kiwa) and all Polynesians who relate to Kiwa are entitled to be there. A southern portion, Te Moana-a-Kupe, is held for Kupe s people. By ancestral connections did Maori relate even to the open seas, ..." (Muriwhenua Fishing Report 1988 p184).

 

Maori Land Court and Appellate Court

In Re Tataraakina C Block and Baker & Others

Appeal 1994/20, 11 Takitimu ACMB 50, 18 May 1995. Deputy CJ Smith, Marumaru J, McHugh J

This was an appeal against an order of the Maori Land Court appointing trustees to an ahu whenua trust under s222/1993. The block, of over 14,000 hectares, had been vested in an incorporation. The incorporation was wound up and application made to constitute a s438 trust under the Maori Affairs Act 1953. The winding up of the incorporation had taken longer than expected. The court called a meeting of owners, who voted to indicate their preferred trustees, and this was immediately followed by a court sitting at which orders under s222/1993 constituting an ahu whenua trust and appointing trustees were made. The appointments orders were appealed on the grounds that tikanga Maori had not been considered in the appointments; the court had not considered applicable statutory requirements in ss2, 17, 32 and 222/1993; there had been unfairness in the procedure for appointing trustees; the court gave undue weight to future forestry development when considering who would be trustees; and gave insufficient weight to relevant considerations, in particular the past record of persons associated with the management of the land.

Held: all of these submissions should be rejected. Although the 1993 Act does not specifically provide that tikanga Maori be taken into account in the establishment of trusts, the Preamble and s2 made it incumbent on the court to have regard to tikanga should the issue arise in the course of proceedings. In this case the selection meeting had been held on a marae, and involved face to face or kanohi ki te kanohi discussions, a traditional preference. Some candidates for trustee positions cited their tribal background and particular attributes and skills in matters Maori.

In determining whether to appoint particular trustees the court must, in addition to other matters, be satisfied the appointment is "broadly acceptable" to beneficiaries (s222(2)(b)/1993). This can be interpreted to mean "widely or generally acceptable". Holding the special MLC sitting immediately following a meeting of owners is not a common practice, and should be approved only where special reasons warrant it. But there were no controversial issues to be dealt with at the meeting of owners, and the principal purpose of the meeting, to appoint trustees, had been well notified and awaited for some time.

The MLC was justified in its view that one major shareholder s influence on election results was excessive by reason of her large interests in the land, and it had not acted unfairly in mentioning to the meeting that it had a duty to guard against tyranny by majority shareholders when considering the results of votes cast. The MLC was justified in assessing the election results not only on the number of shares cast for each candidate but also the number of owners who voted for each candidate.

A procedural point: although the application for a trust order was made under s438/1953 and the MLC was entitled to make the trust orders under that provision, it was able of its own motion to invoke s215/1993 to create the trust. Section 37(3)/1993 confers this power. It was also ordered, pursuant to s86/1993, that the trust orders made by the MLC should be amended to record that they had been made under ss222, 215 and 220/1993.

 

 

Mourea Papakainga 3D v The Maori Trustee

240 Rotorua MB 212, 26 May 1995. Savage J

The Maori Trustee was the owner under a s438 trust (now ss215, 220/1993) of Maori freehold land at Lake Rotoiti on which there is a resort hotel. The land was mortgaged, and due to financial difficulties the mortgagees sought to sell the land. The Maori Trustee arranged a rescue package whereby various Maori land trusts were to lend money, secured by way of another mortgage over the land. Two of the trusts failed to lend money as expected. At the 11th hour, the Maori Trustee stepped in and advanced money to the non-lending trusts. The mortgage document was not altered however, and recorded that the non-lending trusts were mortgagees. Some months later the Trustee entered a term loan contract with itself as borrower, granting security to itself by way of the mortgage. Now the Maori Trustee sought an order that the 2 non-lending trusts held their interest in the mortgage in a fiduciary capacity and that that interest be vested in the Trustee accordingly pursuant to s18(1)(i)/1993. The trusts for their part sought vesting orders under s239/1993 so that a discharge of the mortgage could be executed.

Held: s18(1)(i) refers only to whether "land" is held in a fiduciary capacity, and that word does not extend to include an artificial legal interest such as a mortgage. However, the matter could dealt with under s18(1)(a) which allows interests to be determined, but does not permit a vesting order to be made. There was no evidence the lending trusts knew the Trustee would be involved until after execution of the mortgage. An arms length commercial transaction will rarely give rise to a fiduciary relationship. The Trustee had set up a commercial transaction but had not brought the other lenders including the non-lending trusts into the picture. The mortgage secured interests in the land only for the lending trusts.

 

Waitangi Tribunal

Ngati Awa and other Bay of Plenty claims

Wai 46 and others. Memo following 6th hearing, 8 June 1995. CJ Durie for the coram

Dealing with overlapping claims in the region, the tribunal declined for the time being to make any determination on customary boundaries, but commented on the sort of issues such determinations raise. "What weight should be given to ancestral associations that have endured over numerous generations and what weight to the outcome of more recent battles? If more weight is to be placed on the luck of the last encounter, then what should be regarded as the final and determinative victory?" If a date were fixed there would also be a need to consider "whether battles were more indicative of aberrations than the norm, and whether the true test was who lived where, at the relevant time, and, having regard to the many ramifications of Maori whakapapa and the people s ability to connect with tribes on several sides, to whom did those people most align?" As for the relevant time, should 1800 (before western influences made any change), 1840 (British sovereignty), or 1865 (effective enforcement of British sovereignty in the Bay of Plenty region), be used, or even 1995 "in order to accommodate modern preferences and to recognise that customary society was always changing and has to be updated to meet current needs?" As for the proper approach to consultation where overlapping claims exist, for Ohiwa harbour and Whakaari (White Island), the tribunal recommended consultation with all runanga or trusts boards of iwi claiming overlapping interests.

 

Other Jurisdictions

NZ Maori Council & Ors v Attorney-General & Ors (No 3)

CP 942/88 HC Wellington, 28 April 1995. McGechan J

In this decision the court awarded most of the applicants costs for bringing the application for judicial review to prevent the transfer of broadcasting assets until Maori interests had been protected. Although they ultimately lost the case the Maori applicants had been "substantially successful", in stimulating protection for radio and achieving a $13 million funding undertaking for Maori television. McGechan J commented: "The case was substantially successful. It was brought in the public interest. It should not be regarded as relevant only to Maori. All sectors of society have an interest in the preservation of the culture of all; to the enrichment of all. It is better that sectors in society know it is possible to afford lawyers, and to use the Courts; rather than believe such is impossible, and use the streets. In a proceeding of wide significance, brought in the public interest, it can be appropriate for the public to contribute very substantially."

 

 

Greensill & Others v Tainui Maori Trust Board

M117-95, HC Hamilton, 17 May 1995. Hammond J

The plaintiffs (12 individuals), challenged the ability of the trust board to enter a deed of settlement with the Crown based on the Heads of Agreement signed in December 1994 on the basis that 13 of 16 trust board members had been invalidly appointed and that the board had no appropriate mandate for the prospective settlement. They sought injunctions restraining the board from claiming a mandate to enter into a settlement with the Crown and from entering into the contract of settlement.

Held: in essence, the plaintiffs were arguing that the mandate had to be determined by the kind of processes and mechanisms laid down by the Maori Trust Boards Act 1955. Yet the Heads of Agreement prescribed no particular method for procuring a mandate. The trust board could have proceeded either "on traditional Maori lines until some kind of consensus emerged", used Trust Boards Act procedures, or held a referendum. It chose a multi-faceted approach. There was no single right answer. The board utilised a method which was democratic, but also used traditional Maori processes to some extent. The overall nature of the response to securing a mandate was the important thing. It was noted that a number of hui had been held at which people had voted to support the negotiations and the proposed settlement, and a postal referendum was held among 11,600 beneficiaries of the board with over 4,600 votes returned, which supported the proposed settlement by almost 2 to 1. The overall percentage of votes cast may have been disappointing but was probably comparable with returns for local body elections. The plaintiffs claim accordingly foundered at the outset as there was no underlying or cognizable right which could be enforced. Nor was the court convinced the plaintiffs individually had standing to bring this application. A third factor was the nature of the agreement itself. The Heads of Agreement was a purely political document and as such not justiciable. Nothing was to be effected without an Act of Parliament. For the court to intervene now "would be an outright interference in what is nothing more or less than an ongoing political process; as opposed to a distinct matter of law" (Sealord case [1993] 2 NZLR 301 and CREEDNZ Inc v G-G [1981] 1 NZLR 172 followed).

Even apart from these considerations, the court would not have exercised its discretion to grant a remedy, firstly because there was "some force" in the submission arguing there had been undue delay by the plaintiffs, making these proceedings into a last minute "ambush". Secondly, no irreparable harm would be suffered by the plaintiffs, since the final settlement would be dependent on the passage of legislation. The invalidities in trust board appointments were minor, and remediable under the Trust Boards Act. The balance of convenience overwhelmingly favoured ongoing consultation and negotiation. Considering the overall interests of justice, there was a compelling national interest in moving forward and not "putting the clock back several years".

[ed: a Deed of Settlement between the Crown and Tainui iwi was signed in May, as has been widely reported (see Maori LR May 1995). The Waitangi Tribunal held a conference on 16 June to consider whether to give an urgent hearing to a claim by the Wi Taka whanau of Ngati Kohiriki challenging the settlement as it relates to Ngati Kohiriki lands in the Maramarua forest.]

 

 

Re Castle (deceased)

M1243/93, HC Auckland, 20 February 1995. Thorp J

The deceased made a will in 1988 in which he purported in several clauses to leave various interests in Maori freehold land to a trust. At his death in March 1991 however, he had not established the trust. A subsequent draft will, not executed, supported this conclusion. It provided that a trust of the kind intended in the 1988 will was to be established in the event the deceased died without creating it himself. The court was asked to determine the legal effect of the uncertain clauses.

Held: considering first whether there was another trust which could be shown to be the intended beneficiary of the provisions, a s438 trust created by the deceased before his death to deal with land of the family could not fulfil this requirement since it was concerned with management and development of the land, and not the particular matters referred to in the several clauses.

As to whether the will itself created the necessary trust, the clauses failed to achieve certainty as to theobject of the trust. The deceased, in referring to "members of the Castle family" had not established the class of beneficiaries sufficiently. Precedent showed that references to "family" are too vague and in this case it was impossible to know how far lineally or laterally the word was intended to extend (Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 and Re Brewis [1946] VLR 199 followed). Nor did the will indicate a sufficiently clear purpose for the trust. It may also have breached the rule against inalienability.

Accordingly the challenged dispositions failed and the property fell into the residue of the estate and passed to the widow. While this was regrettable, the sudden death of the testator before effecting changes to the will prevented any other conclusion. The widow, having in mind the intentions of the testator, might effect a settlement more in keeping with the wishes of the deceased than any court solution based on reconstruction and reformulation of the relevant parts of the will.

[This and other cases on dispositions of Maori land by will are discussed in the Taitokerau Maori Land Court Newsletter 23 June 1995 (Vol 7 No 6), which notes that, had the testator died after 1 July 1994, the widow would not receive the interests which fell to the residue, unless she were of the same hapu as the testator.]

 

 

Hauraki Maori Trust Board & Anor v The TOKM & Ors

CP 562/94, HC Auckland, 24 May 1995. Anderson J

The trust board requested that the court state a case to the Maori Appellate Court under s61 Te Ture Whenua Maori Act 1993 concerning tikanga Maori as it relates to fisheries. The trust board has argued that the Fisheries Commission had wrongly allocated deep water fishing quota for the 1994-95 fishing season to Tainui iwi in an area where they have no mana over the coastline.

Held: the High Court has jurisdiction to refer such a matter to the Maori Appellate Court (MAC). A liberal interpretation of s61 shows it can encompass questions of mana in respect of land and issues of mana and rohe in connection with waterways, including coastal waters and seas. It may be the only way such fisheries issues can be efficiently and appropriately determined. The Maori Land Court, the MAC in its appellate jurisdiction and the Waitangi Tribunal may have limitations in this area of Maori concern; the general jurisdiction of the MLC and MAC being limited to land and representation issues, and the tribunal to issues between the Crown and Maori.

However, the High Court declined to exercise its discretion and state a case for the time being, because in giving a decision on the question proposed the MAC might indicate a view on the concept of mana whenua mana moana, a matter which is the subject of current extensive debate and litigation. There would be a clear implication that an allocation of fisheries resources by the Fisheries Commission might be invalid if inconsistent with a concept of mana whenua mana moana. The High Court would be prematurely giving a weighting to one of the 3 general factors to which the Commission must have regard when granting assistance to Maori groups, namely: Maori custom, economic considerations and social considerations. "The debate is too important for it to be polished before its true shape is known." Current proceedings can continue on the assumption that the plaintiffs have mana of certain coastal areas where the Tainui iwi concerned do not. If in due course the correctness of those assumptions would be decisive to the plaintiffs claim, then it would be appropriate to state a case.

 

General

The Budget for the 1995-96 Financial Year

Minister of Finance. June 1995

From the Budget night speech: for Maori education, over the next 3 years; $14 million will be spent to establish 15 new kura kaupapa Maori; $7 million will be spent on running them, a further $5 million will be spent to increase the number Maori language teachers.

For the settlement of Maori claims, $525 million will be allocated over the next 5 years, in accordance with the fiscal envelope policy. This is the first time a government has allocated such significant funding for settlements five years ahead.

[ed: reinforces the impression that, like it or not, the fiscal envelope is the only game in town for the forseeable future.]

 

 

Provision for Maori over the past 3 years and projected spending

Replies Supplement 20 June 1995

This month the Hon KT Wetere received a reply to his question to various government agencies "For the 1995-96 financial year, is [the department] providing or implementing any Maori programmes or initiatives; if so, at what cost compared with the past 3 financial years, and what are the programmes and costs per year?". A useful collection of answers from many departments are contained in the supplement. Highlights are:

Agency                              Funding Per Year ($000)

                                    1995-96       1994-95   1993-94

Treaty of Waitangi Policy Unit      12,228        8,809     N.A.
(now Office of Treaty Settlements)

Waitangi Tribunal                   3,348         3,408     2,546

Maori Land Court                    6,531         6,641     6,528

Education: the number of students enrolled in kura kaupapa was 1081 in 1991, 2355 in 1994 and estimated to be 3030 in 1995. "Funding of programmes and initiatives applied directly to support of Maori education" was $70.4 million in 1992-93 and is projected to be $93.4 million in 1995-96. In addition, "an estimated $725.8 million is appropriated to support Maori students in all mainstream sectors of education through early childhood sessional funding, compulsory schooling and school transport and tertiary education and training. The latter includes TOPS funding."

Fisheries: the ministry has spent $230,000 between 1993 and 1995 on the development of regulations for customary fisheries, in addition to $150 million expended to since 1992 to fulfil the Sealords agreement.

Broadcasting: $12.9 million was spent in 1991-92 on Maori broadcasting, rising to an estimated $14.6 million in 1994-95.

 

 

Surplus Crown properties within Raupatu boundaries

Office of the Minister in charge of Treaty of Waitangi Negotiations 31 May 1995

Sales of surplus Crown properties within the Taranaki, Tauranga, Bay of Plenty and Mohaka-Waikare confiscated areas have been stopped. The Crown has accepted that further sales would prejudice negotiations to settle outstanding raupatu claims. Claimants often seek the return of these lands, and see continued sales as reducing the Crown ability to settle claims.

[Ed: this implements the Waitangi Tribunal report and recommendation of 5 May 1995 that no further sales of surplus lands in the Bay of Plenty should occur while claims are pending (Maori LR May 1995), but also goes considerably beyond it. The Office of Treaty Settlements advises that under this policy Crown agencies will continue to be able to "sell" surplus properties in a technical sense, but they will be purchased by the Crown itself and placed in a Crown Settlement Portfolio. Details of the funding for this policy and valuation matters are still being worked out. The raupatu boundaries are the confiscation boundaries gazetted under confiscation legislation (NZ Settlements Act 1863 and others) of last century. Two small areas not part of the recent Tainui settlement are also included. The announcement indicates that sales could occur if the relevant claimant gives consent. Identifying the relevant claimant could be problematic.]

 

 

Changes to Electricity Generation and Power Station Ownership

Media release 8 June 1995. Ministers of Finance, Energy, State-Owned Enterprises and the Environment

The government has made a decision in principle to establish a new state owned enterprise (SOE) to compete with the Electricity Corporation of NZ (ECNZ) from 1 February 1996. As part of the arrangements ECNZ will progressively sell six small hydro stations to regional power companies or Maori interests. These stations are not part of ECNZ s main hydro systems. They are Cobb, Coleridge, Highbank, Matahina, Mangahao and the Waikaremoana group of stations (Tuai, Paripaua, Kaitawa). Eligible buyers will be invited to make commercial bids for the stations. If no suitable bids are received they will be transferred to the new SOE at book value. "The creation of the new SOE will not alter the Treaty of Waitangi-related protections that currently apply to ECNZ s assets. In addition, the Treaty- related memorials currently protecting land associated with the six stations will remain in place following the proposed sales. Final decisions on both the establishment of the new SOE and the sale of small hydros will be made after appropriate consultation with Maori."

 

 

Reflections on the formal definitions of Maori

NZ Law Journal May 1995. Jeremy McGuire

Questions the usefulness of the term "Maori" as a descriptive category. Wonders whether the present definition based on ancestry is appropriate and whether qualitative criteria should be used such as knowledge of and participation in iwi activities, and evidence of a commitment to and participation in Maori culture. Questions whether Maori can be said to be tangata whenua of NZ when for most intents and purposes they have "effectively adopted and embraced traditional non-Maori culture such as capitalism and its incidents and a passion for non-Maori sports such as rugby league, rugby union and netball." Notes that human beings are notorious for labelling and classifying people into categories depending upon "how they look and what they are perceived, often misguidedly, to represent." Argues that the definitional question is becoming more acute in light of a developing resentment from non-qualifiers to benefits arising from the application of the principles of the Treaty of Waitangi by the courts and Parliament. Concludes that, "if a genuine difference between Maori and non-Maori groups is justified, that is if the distinction accurately reflects social reality, then it provides one justification for the current approach". [ed: To put this article in a context (which, with respect, it seems to lack), it may be worth recording that in April 1995 the Hon Phil Goff asked the Minister of Justice "In light of the fact that more than three quarters of all youth offenders in Northland last year were Maori, what actions, if any, is he and his department taking to address the causes of this problem?" The Minister replied: "The Department of Justice is part of a focus group on the issue of offending by Maori. ... This group is to report to cabinet on the factors that contribute to the disproportionately high levels of reported offending by Maori and the over-representation of Maori within the criminal justice system. It will identify existing policy and service delivery initiatives with the potential to reduce the levels of offending by Maori and the over representation of Maori within the criminal justice system and make proposals as to culturally appropriate policy development and service delivery mechanisms" (Replies Supplement 18 April 1995).]


May 1995 Contents

The Tainui Settlement

Full text of the form of apology from the Deed of Settlement between Her Majesty and Waikato-Tainui, signed 22 May 1995:1. The Crown acknowledges that its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in its dealings with the Kiingitanga and Waikato in sending its forces across the Mangataawhiri in July 1863 and in unfairly labelling Waikato as rebels.

2. The Crown expresses its profound regret and apologises unreservedly for the loss of lives because of the hostilities arising from its invasion, and at the devastation of property and social life which resulted.

3. The Crown acknowledges that the subsequent confiscations of land and resources under the New Zealand Settlements Act 1863 of the New Zealand Parliament were wrongful, have caused Waikato to the present time to suffer feelings in relation to their lost lands akin to those of orphans, and have had a crippling impact on the welfare, economy and development of Waikato. 4. The Crown appreciates that this sense of grievance, the justice of which under the Treaty of Waitangi has remained unrecognised, has given rise to Waikato s two principles 'i riro whenua atu, me hoki whenua mai' (as land was taken, land should be returned) and 'ko to moni hei utu mo to hara' (the money is the acknowledgement by the Crown of their crime). In order to provide redress the Crown has agreed to return as much land as is possible that the Crown has in its possession to Waikato.

5. The Crown recognises that the lands confiscated in the Waikato have made a significant contribution to the wealth and development of New Zealand, whilst the Waikato tribe has been alienated from its lands and deprived of the benefit of its lands.

6. Accordingly, the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and, with the grievance of raupatu finally settled as to the matters set out in the Deed of Settlement signed on 22 May 1995 to begin the process of healing and to enter a new age of co-operation with the Kiingitanga and Waikato.

 

Waitangi Tribunal

The Ngai Tahu Ancillary Claims Report 1995

27 April 1995. AG McHugh (presiding), MTA Bennett, GM Te Heuheu, IH Kawharu, GS Orr, DJ SullivanThis report deals with 117 "minor" claims raised during the hearing of the major Ngai Tahu land and fisheries claims, already the subject of substantial reports in 1991 and 1992. The claims range from alleged unjust dealings concerning thousands of acres, to loss of a few acres through uncontrolled erosion. Because many of these claims originated from oral testimony, without supporting research, and because of the sheer number of claims involved, the tribunal departed from normal procedure and further research on the claims by tribunal staff and the Crown was not presented at further hearings, but rather compiled into a draft report, which was circulated for comment.

Major findings

 As already outlined in the 1991 report, large scale Crown purchases in the 1840s and the provision of tiny reserves left Ngai Tahu virtually landless, holding only some 35,757 acres or one-thousandth of their former tribal estate.

 The "pitifully small" reserves were further eaten into by subsequent Crown actions. Takings for public works such as defence, roading, railways, scenery preservation, recreation, without adequate, or in most cases any consultation with the owners were an important source of land loss. Individualisation of landholdings through the operation of native land legislation, the objectives of which were criticised in theOrakei report, were also a major source of loss, facilitating alienation of what was intended to be the tribal estate. Other factors included drainage and related works destroying fishery reserves, and a statutory scheme for perpetual leases over some reserves which effectively took control away from the owners.

 Crown efforts to alleviate the almost total landlessness which resulted, including the South Island Landless Natives Act 1906, could not be regarded as "serious undertakings". Indeed the 1906 Act was a "cruel hoax", with poor quality land being allocated, and some allocations never actually being implemented.

 There is now an onus on the Crown to "restore a tribal endowment" to Ngai Tahu. This could include vesting in the tribe the ownership of Crown owned land, including conservation lands subject to management controls, and restoration of fishery resources. In negotiating a wider settlement both sides should have regard to localised Ngai Tahu concerns.

The report provides useful tables summarising findings and recommendations for the 100 claims considered (17 matters being put aside because of insufficient information). Important specific recommendations were:

 Some 6 acres of land on the Otakou peninsula at Taiaroa Head, taken under public works legislation for defence purposes and not returned when no longer required, should be revested in the former owners, subject to conditions regarding the protected albatross colony now located there (the initiative of the local council to vest a large part of the colony land in local Ngai Tahu was also supported);

 Some 122 acres at Maranuku near Kaka point township taken for a scenic reserve should be returned to the original Maori owners;

 Some 592 acres at Mount Hedgehope, taken for a television transmitter site in 1964, most of which was subsequently leased for forestry, should be returned to the original owners;

 Persons entitled to over 1658 acres of land under landless natives legislation in blocks allocated at Wanaka and Hawea, but which were never granted, should be given land of equivalent value elsewhere;  The Whakapoai block of 1600 acres in the Heaphy valley, set aside under landless natives legislation, but never granted, should be vested in descendants of those originally entitled;

 Waitutu incorporation, owning valuable indigenous forest land granted under landless natives legislation, should be permitted to market timber from the land, or be compensated for loss of milling opportunities. Costs to the incorporation to date of proceedings to gain permission to utilise the timber should be reimbursed;

 Surveys of the Port Adventure and Toitoi blocks, comprising some 17,400 acres and allocated under landless natives legislation should be completed and the lands vested in persons entitled;

 Tutaepatu lagoon of some 49 hectares at Woodend beach should be vested in Ngai Tahu ownership and jointly managed with the Crown;

 The Wainono lagoon on the Waihao River of some 335 hectares, vested in the Department of Conservation, should be developed in partnership with Ngai Tahu of south Canterbury as a traditional fishery resource. A similar arrangement should be reached over the Waikouaiti Lagoon of some 61 hectares near Hawkesbury, also owned and managed by the Department of Conservation.

Treaty principles considered

The tribunal reiterated its finding from the 1991 report that the Crown had a Treaty obligation to provide sufficient land for the present and future needs of the tribe in the initial purchases of NgaiTahu lands. The Crown also had an obligation to actively protect the meagre tribal estate which remained after these purchases. Because it heard no argument on the matter, the tribunal did not consider whether the guarantee not to disturb rangatiratanga might be overridden by the grant of kawanatanga when it came to compulsory takings for public works. An interesting development was a finding that Article 3 requires that Maori land owners must be afforded the same rights as non-Maori landowners. This comment was made in respect of consultation requirements for public works takings being less stringent for Maori than for non-Maori, and former Maori Affairs legislation which allowed "unproductive" Maori land to be taken over and sold, when no similar provisions existed for non-Maori land. In one claim relating to lands allocated for landless natives where ownership was still unresolved after 90 years despite almost continuous negotiations, the tribunal found a breach of the Treaty partly in the lengthy delay to achieve a settlement.

Public works legislation

24 claims concerned public works takings. While the importance of public works was not disputed, the tribunal found fault with this legislation which, until the 1970s, failed to provide for adequate notification and consultation with Maori where Maori land was proposed to be taken. Nor were Maori required to be notified, or lands returned, when lands were no longer required for the purposes for which they were taken. Whether the Treaty guarantee concerning rangatiratanga prevents any compulsory taking of Maori land was not argued, but the tribunal commented that Treaty principles indicate that, in future, compulsory acquisition of Maori land should be "exercised only in exceptional circumstances and as a last resort in the national interest", the interest taken should be less than the freehold, and if the freehold, then that question be determined by a body independent of the Crown. The tribunal also recommended that:

 the Public Works Act be amended to provide that it be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi;

 Crown and local authorities be expressly authorised to acquire a lease, licence, or other easement over, or enter into a joint venture arrangement in respect of Maori land required for public purposes, instead of acquiring the freehold of the land.

Conservation land

The tribunal made no comment on the government policy, contained in its recent settlement proposals, that conservation lands would be used in only limited cases to settle claims. In recommending areas of Taiaroa Head be returned to Maori, subject to existing conservation trusts and management, it found that area to fit the policy of returning only "discrete" sites. However the tribunal thought there was a lack of understanding on all sides of the legal options now available for joint conservation management regimes. It concurred with the views of a former Director-General of Conservation that Crown ownership is not a pre-requisite of protection of the national interest in conservation in any land. A suggested model was use of the Nga Whenua Rahui Kawenata regime under s77A Reserves Act 1977 allowing land to be revested in the Crown subject to subsisting interests. Under Te Ture Whenua Maori 1993, ss134 (Crown land can be revested in Maori), 338 (creation of a Maori reservation) and 340 (trustees can include persons from a local authority), such land can then be returned to Maori ownership, with a management regime for conservation values maintained.

Resource Management Act 1991

The report reiterated comments of the tribunal in the Ngawha geothermal report that more directive provisions concerning consideration of Treaty principles are required in the Resource Management Act. However, it considered that Act as laying the groundwork for proper recognition of Treaty rights and noted a "perceptible change in public attitudes" in particular with the Department Conservation.

Private land

For several claims the tribunal declined to make recommendations where there were validgrievances because the lands concerned were now in private hands. This included some local authority lands (a point some councils were eager to make), although the tribunal commented that Crown owned reserves whose management has been passed to a local authority under the Reserves Act do not fall within the private land exception provided for in the 1993 amendment to the Treaty of Waitangi Act.

Government reserved lands policy

The tribunal was critical of the recently announced policy to resolve claims concerning reserved lands under perpetual lease, saying it fell short of a just and proper settlement in requiring lessors to wait from 42-63 years for leases to terminate and to pursue compensation claim through the tribunal process, while lessees were guaranteed some compensation for the loss of their perpetual rights.

Maori Affairs legislation

The tribunal considered in detail one claim concerning a few acres alienated via sections 387 and 438 of the Maori Affairs Act 1953 which allowed land deemed to be "unproductive" to be compulsorily vested in the Maori Trustee.

No similar provisions existed for compulsory utilisation of idle European land so the legislation breached article 3 of the Treaty. This finding could be applied to many sites throughout the country where this provision was applied. In this case the land was however now in private hands, so no recommendation was made.

Future claims and hearings

The report ends the substantive hearing of the broad Ngai Tahu claim registered as Wai 27. However, the tribunal noted that some matters were incompletely considered in this report, and there is no bar on further incidental claims being received and heard from Ngai Tahu. The tribunal also indicated a willingness to hold a further hearing concerning remedies, should this be required. It urged the Crown and Ngai Tahu to make one further effort to forward their presently stalled negotiations.

 

 

Disposal of Crown land in the Eastern Bay of Plenty

5 May 1995, Wai 64 & Ors. CJ Durie for the tribunal members sittingIn July 1994 the tribunal began hearings of the claims of Ngati Awa, Tuwharetoa ki Kawerau and other groups in the eastern Bay of Plenty. In the course of proceedings, the claimants sought an early recommendation that Crown assets in the region not be sold pending the tribunal s final report.

Found: the hearings to date had satisfied the tribunal that these groups have "significant and compelling claims", mainly concerning confiscations last century. These claims are unique in that; confiscations were large despite few Maori being involved in fighting; lands of loyal groups were taken; no compensation has ever been received, as it has in other districts (including the establishment of tribal trust boards, which have given other groups a "competitive edge").

"It is now well established in Treaty law, that compensation should be payable where serious past breaches of the Treaty are proven, that the return of land where practicable, is an important item in any relief package, and that the Crown should not divest itself of properties without a protective scheme for recovery, where claims justifying substantial compensation are likely to be proven." The claims here were likely to be proven and justify substantial compensation.

While not determining the issue, the tribunal had doubts that conditions of a land banking system proposed by the Crown, and not yet accepted by the claimants, were "fair and reasonable" or consistent with Treaty principles. Conditions included a requirement that the cost of acquiring and maintaining properties be offset against claim settlements; that land cannot be withdrawn from the bank without Crown consent; that land be banked as is where is; that it is the first land used in any settlement; that a cap is set on the value which can be put in the bank; that the bank is reviewed every 12 months with the Crown reserving the right to cancel the bank and free properties for sale. The conditions as a whole create "impossible situations" for claimants. A studied selection is required yet cannot be undertaken when claimants must respond as properties are advertised for sale. There were no difficulties concerning iwi representation, and overlaps in tribal interests could be readily accommodated in the interim pending a final tribunal report. Accordingly the disposal of Crown assets in the area without adequate protective arrangements being in place would be contrary to the principles of the Treaty, and no sales should proceed at this stage.

 

 

Fisheries Allocation Claims Wai 447 and 485, Memorandum following second hearing

22 May 1995. CJ Durie for the tribunal members sittingThis memorandum concerned whether the tribunal had authority to hear the claim from urban Maori regarding the allocation of the Sealords fisheries settlement assets (Wai 485), and whether to proceed with a hearing in light of submissions that the commission had not yet settled any definite policy for allocation. Held: despite s6(7) Treaty of Waitangi Act 1975 which provides that tribunal may not inquire into or make any finding or recommendation on the Deed of Settlement or any enactment to the extent it relates to commercial fishing, "we consider that an inquiry into the urban claim does not or need not involve an inquiry into the Deed or a finding on whether the Deed is inconsistent with the Treaty. It calls only for an interpretation of the Deed, not an amendment to it. Alternatively, it is only to the extent that the urban claimants may call for what would amount to an amendment to the Deed that the Tribunal is unable to consider the urban claim." On the question whether references to "iwi" in the Deed could encompass urban groups, it was noted that the term was used in the Treaty Preamble to refer to Pakeha in the sense of "the people of a place". The equivalent for Maori "tribes" was "hapu". Therefore even though "iwi" is now commonly used to mean groups of common descent, it is arguable its application to urban groups would be a classical and not a new use of the term.

Counsel for the commission had argued a tribunal hearing should not proceed because the commission had not irrevocably committed itself to one model of allocation with mana whenua mana moana as a basic principle. The tribunal canvassed conflicting information on the point and found that it was arguable that "mindsets had developed or policies and proposals been sufficiently established to preclude the full and impartial examination of alternatives or agreement on basic principles." It was also arguable that a lack of agreement in fundamental issues might affect the work of the commission including interim distributions. Accordingly the hearing should proceed.

 

Other Jurisdictions

Wanganui District Council v Tangaroa & Others

CP 2/95, 16 May 1995, HC Wanganui. Heron JThis action was brought against 3 persons as "ostensible leaders or spokespersons", of the persons who, on 28 February 1995, had abruptly occupied Moutoa Gardens, a site of just over 2 acres in Wanganui. The Council sought a declaration as to title and orders for possession of the site. Ancillary orders for injunctions were also sought to direct people to leave the site and remove buildings and other items. The 3 representative occupiers took no part in the proceedings. The court appointed an amicus curiae to assist it, who put the defendants case "proactively" within the limits of that role and of time. The Attorney- General obtained leave to intervene.

Held: Early maps, missionary accounts and photos show Paikatore pa as a river bank site adjacent to and a little south west of the "marketplace" - the Moutoa Gardens of today. The pa was an area used for trade rather than being a permanent settlement and was close by but not within the confines of the triangle that represents Moutoa Gardens. The Gardens site was undoubtedly included in the purchase of land at Wanganui by Donald McLean in 1848, following an earlier NZ Company acquisition which had been investigated by Commissioner William Spain. The deed of sale placed no emphasis on the Gardens site, although making other reserves.

The Gardens became Crown land following the purchase. In 1880 the site was vested in the Borough of Wanganui. There was over this period a " singular absence of any suggestion that the land was occupied as a pah with accompanying marae" and photographic evidence suggested "quite the contrary" (pre- European times, about which there was no evidence, excepted).

There was however considerable trading by Maori and European on or about the area of Moutoa Gardens. A landing place was also required in conjunction with attendance at Native Land Court sittings. There was Parliamentary debate about the need for a landing site in this vicinity. Eventually an "impracticable" area was set aside on the river bank above the Gardens site. Documentation of these events also did not refer to a traditional pa with accompanying marae. In 1980 the Gardens were gazetted as a historic reserve.

The court noted that the repeal of s158 Maori Affairs Act 1953, which prevented challenges to Crown grants, allowed a wide inquiry into the history of this site. It was a matter of regret however that, being "private land", the site is excluded from the Waitangi Tribunal s recommendatory function, despite the large Crown involvement in its history.

Three possible attacks on the Council s apparent title were considered:

 that s79 Land Transfer Act 1952 (adverse occupation) applied; there was no evidence of actual occupation, but rather of sporadic and shared use of the site for depositing goods etc:

 that s81 Land Transfer Act 1952 (error or fraud in the title) applied; although the site was designated a marketplace but never used for one, neither the council or Crown were never called on to put it to this use, and such an argument goes to correction of title, rather than a challenge to it. Nor could a trust in favour of Maori use be established on the evidence:

 that common law aboriginal title had not been extinguished; even allowing for Commissioner Spain s promise to Maori that all their pa sites would be reserved, there was no evidence on the balance of probabilities that Moutoa Gardens were more than an extension of a temporary village on the riverbank, as one of the defendants had in fact admitted. Other pa were at the time clearly delineated on maps, and the area for Paikatore was marked as clearly outside the Moutoa Gardens. The Gardens came to be a site for multiracial gatherings of importance to all people of Wanganui. A Wanganui historian recalled no challenge to council ownership being recorded until 1995.

A mayoral letter to the police in March 1995 could not be construed as a licence, any temporary licence if it existed being well and truly revoked by this time. The Gardens had not been mentioned in two claims before the Waitangi Tribunal, one concerning the river and one Whanganui land, but there was no reason hearings of the land claim could not consider the Gardens, although having to stop short of making any recommendation concerning them. The court, while being aware of "overall treaty obligations the Courts have asked others to observe", rejected a submission that a final declaration as to title not be made, because of the need for finality of this urgent matter. However the finding that the council was the owner of the land was limited to the purpose of the proceedings, ie the finding as to title was not a determination of an application for relief under ss79 & 81 Land Transfer Act 1952.

As to remedy, the court noted past council efforts to meet regularly with a Maori consultative group, and afford Maori concerns a unique position among community concerns, and the lack of any reference to ownership issues in those consultations prior to February 1995.

Where the law is breached the court must grant remedies to litigants without fear or favour, and cannot weigh up the public acceptability of any order it might make, even if many desire a negotiated outcome. Accordingly, the council was declared the owner of Moutoa Gardens and granted an order for possession, making the present occupiers trespassers. The occupiers were injuncted to leave the land taking personal property and dismantling any structures.

[ed: since this case, the occupiers have of course left the gardens and dismantled structures, after negotiations with the police. A claim (Wai 505, received 12 April 1994) has been filed with the Waitangi Tribunal relating to the purchase of the Wanganui and Waitotara blocks, which covers the Moutoa Gardens. The tribunal is seeking further particulars and research will be required before the claim is heard (direction, 15 May 1995)]

 

 

Banks & Anor v Waikato Regional Council & Carter Holt Harvey Forests Ltd

A31/95, 20 April 1995 Sheppard JAn appeal against a decision granting a resource consent to harvest pine trees and construct temporary roads in 268 hectares of land on the Whangamata Peninsula. The forest was a former State forest, now under a Crown forestry licence containing conditions regarding waahi tapu and covenants to protect them.

Held: allegations that preparatory roading work, undertaken before the present application for a consent, had destroyed important sites, were overstated. Consultation with local Maori had been undertaken about those works and Historic Places Trust permission secured to alter sites. The present appeal should not be a retrospective challenge to that permission. For the present consent adequate consultation with tangata whenua had been undertaken. If there were conflicting claims to tangata whenua status in the area, the local council had no authority to decide these. The tribunal rejected the notion that reliable indentification of tangata whenua could be obtained from the claims register of the Waitangi Tribunal (the appellants having lodged a claim to the forest). Similar statements in Tawa v Bay of Plenty Regional Council A18/95 were followed.

The forestry company as applicants had talked to all who claimed an interest. There was no duty to consult about the preparatory works in relation to the present application for consent to harvest the trees. The tribunal adopted conclusions in the Tawa case that the council as consent authority could not consult with tangata whenua. Council staff had adequately reported to the council tangata whenua concerns.

After having earlier agreed to the granting of a resource consent, it was clear the appellants had had a change of mind and the appeal was designed to provide a vehicle for further negotiations to achieve more stringent conditions. In these circumstances the appeal was vexatious. Claims before the Waitangi Tribunal could not be taken into account either in proceedings before the tribunal or by the consent authority.Haddon [1994] NZRMA 49 and Greensill v Waikato Regional Council followed. The resource consent, containing 6 conditions specifically to protect Maori interests, was not inconsistent either with regional policy statements or district plans. Proposed amendments to increase the stringency of these conditions were all rejected, several because they looked to activities not governed or affected by the resource consent (eg a requirement for an archaeological survey over the whole of the 13,000 hectare forest). The tribunal cancelled as ultra vires a consent condition requiring ongoing compliance by Carter Holt with an agreement between them and local Maori, since the power of consent authorities to impose conditions may not be used to enforce private agreements, but only for public purposes. The term of the consent was extended by the tribunal to take account of delay caused by the appeal.

 

General

Report of the Representation Commission 1995

27 April 1995The commission largely confirmed the earlier boundaries for the 5 Maori seats except for allowing an objection of A Waaka and 193 others that the boundary between Te Puku O Te Whenua and Te Tai Tonga be adjusted to preserve the integrity of Ngati Kahungunu. Wairarapa is now fully within Te Puku O Te Whenua. Most of Horowhenua goes to Te Tai Tonga which now substantially encompasses Muaupoko and Ngati Raukawa. The boundary around the Shannon area was adjusted to allow unification of the Ngati Kahu iwi. The commission rejected an objection regarding the inclusion of the Chatham Islands in the proposed Te Tai Tonga electorate, ruling that tribal connections of the Chathams people with Taranaki were not the only relevant ones.

 

 

Deed of Settlement. Her Majesty the Queen in right of NZ and Waikato-Tainui

22 May 1995This deed implements the Head of Agreement document signed in December 1995 (see MLR Dec 1994-Jan 1995). Waikato-Tainui forgo full redress for raupatu (confiscation) losses estimated by them at $12 billion. A full apology from the Crown is laid out. Briefly, redress is provided in 2 forms:

 Settlement properties of some 19,040 hectares will be transferred to a Waikato Raupatu Lands Trust, a charitable trust established by the existing Tainui Maori Trust Board. Some properties will be subject to lease back arrangements. If the lease terms cannot be agreed an independent arbitrator can be called in.

 Establishment by the Crown of a Waikato Land Acquisition Trust which will have a capital sum of $170 million, minus the value of the 19,040 hectares settlement properties, and various sundry amounts (leaving by some estimates about $60-70 million). The capital will be transferred over 5 years. This trust will have a right of first refusal over freehold surplus Crown properties in the Tainui claim area held by various listed Crown agencies. Legislation will provide that this right will be noted on titles to these surplus properties.

The deed is conditional on legislation being introduced to effect many matters, including the removal of resumptive memorials on titles in the claim area, the cessation of the annuity to the Tainui Maori Trust Board (the Board is expected to be dissolved by legislation at some future time), discontinuance of other "overlapping" claims in the claim area. Tainui claims to the Waikato River (including marginal land strips adjacent to the river), remain, as do claims to West Coast harbours and the Wairoa and Waiuku blocks. Waikato-Tainui Treaty rights "including rangatiratanga rights" remain unaffected. The Tainui mandate through the Maori Queen is noted, and the term Waikato-Tainui is defined by a listing of 33 hapu.

 

 

Appeals to the Privy Council. Report of the Solicitor-General to the Cabinet Strategy Committee on Issues of Termination and Court Structure

5 May 1995. Crown Law OfficeThe S-G did not consult with Maori, but found most judges of the Maori Land Court opposed to abolition of the right to appeal, suggesting instead that the matter should be determined by Maori, perhaps by reference to the Waitangi Tribunal. However the S-G found abolition would have no practical impact on Maori opportunities to pursue claim settlements or on Crown Treaty obligations. If abolition occurred, provision should be made to replace present appeal rights from the Maori Appellate Court to the Privy Council with an appeal to the Court of Appeal.

[ed: Cabinet has since made an "in principle" decision to abolish appeals to the Privy Council]

 

 

Maori Reserved Land Consultative Working Group

10 May 1995. Minister of Maori AffairsGeorge McMillan, Peter Charleton, John Larmer, Paul Morgan, and Lyn Williams were announced as a group to provide comment to officials on technical matters concerning the implementation of the government policy to settle reserved lands issues. Among other matters, they will provide advice on the procedure that occurs in the event Maori lessors are unable to purchase lessee improvements at the end of 2 further lease terms (ie 42-63 years) and on "any other issues which might expedite the outcomes at no cost to the Crown". The group will report in July. Legislation will be introduced in September 1995.

 

 

Recent speeches on sovereignty

Minister in Charge of Treaty Negotiations Hon D Graham; "Over the years Maori have raised a number of arguments against the assumption of sovereignty by the British Crown. .... None of these arguments has any validity. The simple fact is that the British Crown s assumption of sovereignty, assisted certainly in part by the Treaty, unquestionably succeeded andit has as a matter of international law, lasted. In other words, what is, is. A revolution in New Zealand has occurred, ... 'Revolution rests upon what is done, not what is legal or necessarily moral or just'."PM Hon JB Bolger Gisborne 13 May 1995; "It must be clear that the Government will not entertain any division of sovereignty of Parliament, nor substantive power-sharing of a kind which would involve a Maori Parliament or separate legal or taxation systems. We do not recognise the right of any group of New Zealanders, ... to determine their destiny regardless of the state of which they are a part. We do not believe that the Treaty of Waitangi sanctions notions of Maori sovereignty arising from self-determination. This would be secession - the assumption of sovereign powers by a body which separates from the existing state. ... Understanding this, I need equally to say that the way that national sovereignty is actually exercised, through Parliament, is not a matter of absolutes. Its powers are delegated to other bodies and can be exercised in ways that mean, for certain activities, the parties involved substantially manage their own affairs, or co-manage them in association with the Crown."

 





April 1995 Contents

Maori Land Court and Appellate Court

In Re Waotu South 17 & Ormsby

237 Rotorua MB 250, 23 March 1995. Savage J

In this case the court reiterated the strict legal requirements placed on trustees, by requiring the repayment of salaries and excessive travelling expenses which trustees of this land block had voted for themselves, but which had not been approved by the court as the trust deed required. The excessive travelling expenses of one trustee in particular were found to be the joint and several liability of the trustees as a whole since payment was made with the other trustees consent. Payments up to $50 per trustee per meeting was retrospectively affirmed, in line with other trusts in the region, and pursuant to s73 Trustee Act 1956 (court may relieve trustee of liability where they have acted honestly and reasonably), as were some limited travelling expenses. The trustees were ordered to file with the court a strategic and management plan for the future of the trust.

 

 

 

 

Waitangi Tribunal

Claim by WM Kaa and others re Maori tertiary education

Wai 431, 5 April 1995. Smith J, Deputy Chairperson

In this memo the tribunal considered a request for urgent hearing. The tribunal noted that, despite rapid growth in student fees from the mid 1980s, the trend was for more Maori to be participating in tertiary education (1.75% to 4.7% between 1988 and 1994, and Maori women up 81% between 1990 and 1994). The tribunal observed that [a]pplications for urgency are taken as a means of prioritising claims for hearing but urgency should only be afforded where there is genuine need to receive a report and irreversible consequences may flow from any delay in processing the claim. The granting of urgency upon unsubstantiated or inadequate grounds could, because of the demands made on the tribunal to hear claims, result in a proliferation of requests for urgency to the detriment of the administration and management of the hearing processes. In the absence of adequate grounds to justify an urgent hearing, urgency was refused.

 

 

Claim by Rawiri Tooke and others and a claim by Matiu Tarawa

Wai 364 & Wai 496. March 1995

The tribunal has received two claims concerning the site of former Tamaki Girls College. Tribunal directions acknowledging receipt of one of the claims (Wai 364) record that further research is required before the matter can proceed to hearing and it is to be grouped with other Auckland-Hauraki claims for hearing.

Volcanic Plateau report

Memorandum-Directions 17 March 1995. Deputy CJ Smith

A research report on claims and potential claims in the Volcanic Plateau region has been completed by tribunal commissioned researcher Brian Bargh, as part of the Rangahaua Whanui project, which aims to provide the historical background to claims that have arisen or may arise in broad regional areas. The tribunal is seeking comments on the report by 30 June 1995.

 

Some new claims received

Colin Clark for Whanau O Hinemataiao Puhirere Inc representing the Ngai Tarewa hapu with rangatiratanga over land at Onuku and the Akaroa District has filed a claim objecting to the representative structure for Ngai Tahu proposed in Te Runanga O Ngai Tahu Bill 1993, in particular the concept of papatipu runanga (Wai 482). The claim alleges that hapu have a rangatiratanga outside the collective rangatiratanga of the papatipu runanga concept. The tribunal in directions has asked, in light of current remedies available, including submissions to the select committee, why the tribunal should proceed to hear the matter (In claim Wai 322 similar objections were raised, and the tribunal, after hearing submissions, declined to inquire into the claim because of alternative remedies available which might render a tribunal hearing premature.)

J Asher on behalf of Kurauia hapu has made a claim to 57 acres of public domain known as Tokaanu hot springs, administered by the Department of Conservation. The claimants allege the land and springs were arbitrarily taken and seek the return of ownership to a trust to hold the land for Kurauia hapu, with current uses to continue unhindered (Wai 490).

Toahaere Falkner and others have filed a claim alleging practices and policies of Bay of Plenty Polytechnic, including the appointment process of the chief executive officer, are in breach of the Treaty and prejudicial to Ngati Makamaka hapu and other iwi and hapu groups in the catchment area for the polytechnic (Wai 497). The polytechnic is said to be an agent of the Crown. In receiving the claim, the tribunal has noted it has only recommendatory power and cannot delay or prevent the CEO appointment (Memo-directions 13 April 1995).

 

Other Jurisdictions

Greensill & Ors v Waikato Regional Council & Anor

W17/95, 6 March 1995. Treadwell J, PA Catchpole, IG McIntyre

This was an appeal from a decision of the regional council to grant consents for an oyster farm on the foreshore at Paritata Bay, Raglan Harbour. There were several appellants including local Maori.

Held: the positive effects of the proposal, mainly mild economic benefits to the region, were outweighed by potential adverse effects, including intrusion into an area used on a modest scale as a gathering place for kaimoana. As to matters raised by the Maori objectors:

- The presence of claims before the Waitangi Tribunal can have no impact on proceedings under the RMA, until the Crown acts on any tribunal recommendations.

- The absence of Maori consent is not an automatic veto to applications under the RMA. Maori issues are one among several matters to be evaluated. The council had endeavoured to provide for waahi tapu, although ultimately not to the satisfaction of the objectors. The term ancestral lands in s6 does not import European ideas of land, including the concept of high water springs, which was alien to them.

- The definition in s7 of kaitiakitanga is unfortunately all embracing, so that there is a statutory definition for a word which embraces a Maori conceptual approach, and consequently the concept of guardianship in s7 is applicable to any body exercising jurisdiction under the RMA (Rural Management Ltd v Banks Peninsula District Council W34/94 followed).

- There is an obligation for territorial authorities to consult with the tangata whenua over proposed policy statements or plans (1st Schedule cl3), and the same may apply for a request for a plan change (1st Schedule cl25(2)(ii)), but possibly only where the plan is in the course of preparation. For resource consents, the territorial authority, when deciding whether a resourceconsent should be notified or not, may consult with those potentially affected by the exercise of the discretion, and may consult unilaterally with any party. Consultation may continue even after a decision not to notify has been made. An officer of the authority may be delegated to consult and make the decision whether to notify. These points arise from Worldwide Leisure Ltd (HC M1128/94).

- Where a decision has been made to notify a resource consent, because a public hearing is required before the authority, to preserve fairness, it may not unilaterally consult with any party, although its officers may do so. Applicants are required to provide information about persons the applicant has identified may be affected by the proposal, and any steps taken to consult with such persons (4th Schedule cl1(h)). If a paucity of information is provided the authority may commission a report on the application, which would include review of these matters (s92). In addition, if it is clear from the application that there are important submissions to be made, the council officer is then on notice that the hearing could be controversial, and should seek further details. Consequently, although there are no sanctions directed against applicants for poor consultation, if extensive consultation is not undertaken for a consent in a sensitive area, the applicant runs the risk of the authority postponing matters until further information is received. There is however no statutory compulsion under the RMA on an applicant or a council officer to embark unilaterally on consultation.

- In this case some consultation was undertaken, but consultation with local Maori was limited because they refused to allow the matter to be taken to a meeting, absolutely rejecting the idea of marine farming in the bay. Therefore, even if there were a statutory compulsion to consult (and there was not), the applicant had made "genuine attempts", and could not be expected to take the matter further. Noted, that in the context of tangata whenua, consultation may mean more than "having deliberations", and encompass "taking into consideration feelings and interests". It does not mean abandoning a project if deliberations do not appear fruitful.

- The Treaty of Waitangi (Fisheries Settlement) Act 1992 had no bearing on the matter of consultation here, although it prevented consideration of commercial fishing interests of the tangata whenua. The Act is a restatement of rights, and only affects the RMA where the Minister has acted under it to protect customary rights, eg by way of a gazette notice preventing the granting of marine farming licences. Noted however that if a joint commercial venture with local Maori had been proposed, the 1992 Act might preclude consideration of the Maori commercial interest in the fishery as relevant to a decision under the RMA.

- As to waahi tapu: "It appears that various members of the tangata whenua are entrusted with details of waahi tapu but that information is not generally shared with iwi or hapu. Thus a kaumatua may be aware of areas of importance within the concept of waahi tapu and may pass that information on to a person or persons whom he selects but the reasons for, and the importance of, any particular waahi tapu may not be generally known. The tangata whenua as between themselves accept without question the concept of waahi tapu and further accept without question the word of a person who has particular knowledge of a particular site or area. Thus if a kaumatua simply says that a place is waahi tapu then that is the end of the matter".

At the council hearing submissions were made in camera concerning waahi tapu. The council moved the boundary of the proposed farming area 50 metres further seaward. The Maori objectors said this failed to appreciate the waahi tapu concept as outlined above. The tribunal declined to order the applicant out of the hearing before it, and no further evidence of waahi tapu was led. Consequently, while recognising the Maori reluctance on this matter, the tribunal upheld the decision of the council, having no further evidence to consider, stating "that tangata whenua are not a decision making authority and cannot simply assert a proposition and leave the Tribunal bereft of evidence to enable an acceptable provision to be made for protection of waahi tapu."

- With regard to s8 (principles of the Treaty of Waitangi), regard must be had to evidence showing this was a customary Maori fishing ground.

[ed: this case makes some important comments about consultation with Maori under the RMA, and the treatment of waahi tapu issues]

 

 

Aqua King Ltd v Fleetwing Farms Ltd & Anor

W19/95, 28 March 1995. Kenderdine J, RG Bishop, JD Rowan

Two companies had applied for consents for marine farming over the same area and both had their applications declined by a district council. The tribunal here was being asked to decide which should have its appeal heard first. A factor the tribunal considered was delays occasioned to each applicant by requirements from the council for further consultation with Maori. Several points of interest were made: - The consultation required of an applicant under cl1(h) 4th Schedule RMA when filing an application is more than posting the application and seeking comment, which is simply dissemination of information and not consultation (Air NZ v Wellington International Airport CP 403/91 followed).

- Section 92(4) which permits a consent authority to seek further information from the applicant to give the authority a better understanding of the proposed project and its effect on the environment, includes the ability to require further consultation with iwi.

- The duty on an applicant to consult is separate from the duty of consultation with iwi required of a council officer when considering an application. The latter duty arises under Part II and principles of the Treaty of Waitangi.

[ed: this case adds to the comments in Greensill above]

 

 

Tawa & Ors v Bay of Plenty Regional Council

A18/95, 24 March 1995. Sheppard J

This was a Planning Tribunal report to the Minister of Conservation concerning an application for a coastal permit to extract sand for building aggregates, from Otamarakau Beach. Extraction would take place below high water mark. A hearings committee of the regional council approved the application. Mr Tawa and Otamarakau Marae Trustees appealed the decision on several grounds.

Held: personal meetings with Mr Tawa as representative of the trustees and an invitation for him to call a full meeting of trustees, which he declined to take up, constituted adequate consultation. Greensill v Waikato Regional Council (W17/95) was referred to as supporting the view that genuine efforts at consultation are all that is required and absence of consent is not determinative against an application. The council had also approached Mr Tawa about the application. Other local tribes had also been approached.

The presence of a claim before the Waitangi Tribunal did not affect the power to hear and grant the application. Nor would granting the application diminish the possibility of redress to Ngati Makino if their claim was found good, by revesting of the foreshore, and compensation for sand taken if need be. Comments to similar effect in Sea Tow Ltd (A129/93) referred to.

The council had not acted wrongly in considering the interests of other tribal groups claiming to have interests in the area. Once aware of those competing interests the council was correct in avoiding making any preference among the iwi in its consultation process. A condition of the approval given was that kaumatua of all 3 iwi be given the opportunity, once extraction began, to verify whether an area being mined contained waahi tapu or other sites of importance.

A concern that the council had inadequate resources to monitor Maori concerns was also dismissed for lack of evidence.

Turning to other matters, the mining, if carried on within limits and terms imposed re tangata whenua involvement, was consistent with the proposed regional coastal environment plan - which follows from the NZ Coastal Policy Statement.

The tribunal itself, in considering whether Treaty principles had been taken into account under s8, noted that the applicant was of Ngati Rangitihi descent and active on local marae, and said to be respectful of waahi tapu. The likelihood of bones being located in the mining area - below high water mark - was low. As to disputes about which tribe had mana over the beach area concerned, the tribunal should not have regard to disputes about which tribes properly exercise rights over areas, but focus on sustainable management of the resource. A statement in Luxton v Bay of Plenty Regional Council (A49/94) to this effect was followed.

 

 

Otorohanga Heritage Protection Group v Otorohanga District Council

A20/95, 16 March 1995. Bollard J

This decision, discharging an interim enforcement order, briefly records a compromise agreement over redevelopment of the Otorohanga Town Hall, which includes ongoing discussion with and input from Maniapoto people of the district. They will provide 2 representatives on a community trust responsible for design and development on the site.

 

 

Phares & Anor v TOKM & Te Runanga o Te Whanau Tribal Authority

CP389/94 HC, 23 December 1994 and 8 March 1995. Grieg J

In the 23 December judgment, the court refused an application challenging the allocation of leases of fisheries quota to Te Runanga on the grounds that the plaintiffs and the hapu they represented had not been given an adequate opportunity to make submissions to the Fisheries Commission. The court found that the dispute was well known to all parties and that time had been given for further late submissions. The court also noted that it was not being called upon to substitute its view on allocation for that of the expert tribunal (the commission), and that it would be inappropriate for it to do so. In the 8 March decision, the court awarded costs against the plaintiffs and in favour of Te Runanga (the commission did not seek costs), and rejected the plaintiffs arguments that the action was necessary to protect the interests of all parties, little or no disruption to quota allocation would have occurred because the plaintiffs deliberately limited the relief sought, and a costs order on the plaintiffs would make reconciliation within the Apanui rohe more difficult.

[ed: the commission in its latest newsletter comments that the case is a warning to groups challenging allocation of leased quota that they can expect to face bills for court costs if their actions are unsuccessful]

 

 

Mangatu Inc & Ors v Valuation NZ

LVP 22/95-33/95, 10 March 1995. MacLean J, EC Bowis, MG Cotterill

Various Maori incorporations on the East Coast owning collectively 73,007 hectares of Maori freehold land valued at over $40 million, objected to a 3 yearly re-valuation by Valuation NZ, on the basis that Te Ture Whenua Maori Act 1993 imposed restrictions on alienation which should have been taken into account in the re-valuation, which was fixed on the willing seller/willing buyer approach.

Held: rejecting the appeal, that if, when land is sold, the buyer takes the land free of restrictions, then value is not affected, Thomas v Valuer-General (1918) NZLR 164. Other cases quoted where restrictions affected valuation (Valuer General v Trustees Christchurch Racecourse HC AP343/92 - a private Act was required for a sale: Wanganui Racecourse Trustees v Valuer General CNZ Valuer Vol 25 1982 Report - ministerial consent required for a sale of reserved land), could be distinguished because the restrictions were more severe than those affecting land under Te Ture Whenua Maori Act where there is a "clear statutory mechanism for processing of proposed sales and obtaining consent." It was too early in the process of application of the 1993 Act for the tribunal to be convinced that the Act will have any effect in preventing sales of Maori freehold land to non-Maori where there is no-one in the preferred class of alienees interested and the necessary majority of the shareholders has been obtained. There is no persuasive evidence the Maori Land Court will use its discretion in such cases to not permit such sales. Accordingly the constraints under the Act are not a charge in terms of the Valuation of Land Act 1951 s2 which defines "land value" as the value an owners estate would realise on sale if unencumbered by mortgage or other charge. Noted also that Maori incorporations can mortgage their lands with little restriction under the 1993 Act.

 

 

Shortland v Accident Compensation Corporation

269/94, ACC Appeal Authority, 12 September 1994. PJ Cartwright

The appellant injured his knee in a farming related accident. He was awarded a sum in compensation by the ACC, which, on appeal, was increased by a "modest" amount to take account of a "loss of mana" through being unable to undertake marae associated responsibilities, which the ACC accepted made the effects of the injury more serious than for some other accident victim (it was argued that the injury meant the appellant could not stand on each occasion visitors entered the meeting house, which marae protocol demands). The appellant here sought an application for leave to appeal the authority s decision as a matter of law to the High Court.

Held: granting the application, that there was a question of general importance to be considered, namely, how much weight cultural factors should be given in the exercise of discretion to grant further compensation under s79 Accident Compensation Act 1982, and, if mana had been lost, whether that loss could be one of degree (the appellant argued that if a loss of mana was admitted, mana could not be lost in part only, and maximum compensation must be paid).

[ed: this case is noted in light of the recent out of court settlement reached with the appellant. The door therefore remains open for future similar cases on cultural factors]

 

General

The Maori Assembled Owners Regulations 1995

1995/83. 18 April 1995

These regulations cover all aspects of meetings of assembled owners, including appointment, objections to appointment, and voting powers of proxies; postal voting and objections to postal votes; and the conduct of meetings. To consider and pass a resolution to sell land, a quorum and vote in favour by the owners of 75% of the beneficial freehold interest is required. For leases, the percentage varies with the term of the lease:

 

Term             Quorum and vote in favour required
More than 42 yrs 75%
21-42 years      50%
15-21 years      40%
7-15 years       30%
Less than 7 yrs  20%

A resolution to incorporate requires a quorum and vote in favour by only 15% of the beneficial ownership, all other resolutions require a quorum of owners representing 40% of the beneficial ownership to consider the matter, but not being less than 10 owners or one quarter of the owners (dead or alive) whichever is less. To pass the resolution, those voting in favour must hold a greater aggregate share in the land than those voting against (cls32-35 & cl45). The regulations also provide for meetings to consider notices of intention to exercise a first right of refusal from persons in the preferred classes of alienees, where there is a proposal to alienate an interest to persons outside the preferred classes of alienees. Clause 43 provides that the meeting will decide upon fair and reasonable terms and conditions for the alienation, then invite persons from preferred classes who have earlier filed notices of intent, to make an offer on those terms and conditions. If they do, the meeting closes at that point. The regulations replace the Maori Assembled Owners Regulations 1957.

[ed: these are important and long awaited regulations for conducting business under Te Ture Whenua Maori 1993. Provisions concerning consideration of offers by persons from the preferred classes of alienees may be contentious and will require vigilant chairpersons to make them work effectively and avoid litigation]

 

 

Adoption Amendment Act 1995

1995 No 4. 23 March 1995

A short amendment altering the definition of social worker to include, where adoptions of Maori children are contemplated, members of the Maori community nominated by the Director-General of Social Welfare.

 

 

Maori Purposes Bill 1995

No 78-1. Hon John Luxton

This bill would make minor amendments to several acts, the most substantial being amendments to Te Ture Whenua Maori Act 1993 to make provision for forestry rights, as defined in the Forestry Rights Registration Act 1983. It is proposed to remove the requirement that the Maori Land Court confirm a grant of a forestry right where the grant is made by a Maori incorporation or trust constituted under the 1993 Act. A special resolution of shareholders of an incorporation would be required where the forestry right was for a term exceeding 21 years. The bill also proposes removing the power of the chief executive of Te Puni Kokiri under the Maori Affairs Restructuring Act 1989 to make discretionary advances or other assistance to any Maori for the purposes of assisting them in any enterprise. It also proposes removing the power to appoint honorary community officers under the Maori Community Development Act 1962. Changes to the Maori Trustee Act 1953 are also contemplated, so that unclaimed money held in the Common Fund of the trustee may be put into the General Purposes Fund if no claim to it is made after 12 months. Other minor amendments concerning these funds would also be made. Submissions close 26 April 1995.

 

 

Crown Pastoral Land Bill 1995

No 86-1. Hon Denis Marshall

Among other matters, this bill provides that pastoral leases and occupation licences (originally granted under the Land Act 1948) may be reviewed by the Commissioner of Crown Lands with a view to their sustainable management (cl20), including the restoration to full Crown ownership and control of land which has high inherent values (ie natural resources and recreational, cultural and historical values - cl2), and the freehold disposal of land "capable of productive use". Appropriate public rights of access and enjoyment are also to be created over these lands. When carrying out these reviews the commissioner is to "take into account", "to the extent these matters are applicable", the objects outlined above and "the principles of the Treaty of Waitangi" (cl21). Preliminary proposals are to be developed by the commissioner with the holders of leases and licences, then they must be notified, including notification to the iwi authority of the area (within the meaning of the RMA 1991). The commissioner must also consult with the iwi authority (cl25). The commissioner may then put a substantive proposal to the lessee or licensee, but only after having considered, all written submissions and, "all matters raised by the iwi authority ... during consultation" (cl27).

[ed: this bill institutes a long awaited review of large South Island pastoral properties under long term leases and licences, and has important implications for the settlement of the Ngai Tahu claim. Submissions close on 26 May 1995]

 

 

Claim Settlement Proposals - recent comment

Rt Hon JB Bolger: ... the Government has extended, at Maori request, the date for the closure of submissions on the settlement package from 19 May to 31 August 1995. The invitation to Maori claimants to sit down with the Government and negotiate to resolve their claims is still on the table. .... The Government has not asked Maori to accept $1 billion or any other figure. The Government has said that it is prepared to vote $1 billion over a number of years to the Crown s negotiators to negotiate with Maori (NZPD 14 March 1995 p6049).

 

 

Moutoa Gardens - special debate

Hon DAM Graham: The Waitangi Tribunal completed hearings on the river aspect of the Wanganui claim, Wai 167, in September 1994. Its report is expected in May 1995. The lands aspect of the Wanganui claim is not at present scheduled for hearing by the Waitangi Tribunal before July 1995. Research is underway by the claimants and it is uncertain when this part of the claim will be ready for hearing. The claim has been the subject of direct negotiation with the Crown. On the release of the report from the Waitangi Tribunal, negotiations are expected to resume on the river aspects of the claim and on the completion and consideration of the claimants research into the lands aspects of the claim. .... I am not sure whether the people who are occupying the gardens at the moment are the same people who are pursuing the claim before the Waitangi Tribunal. But if they are not, there is nothing to stop them from filing a claim .... My advice from the tribunal staff is that the river claim in fact includes the river banks. As the gardens are part of the banks, one would expect the claim [Wai 167] to include that as well (NZPD 16 March 1995 p6204).

 

 

NZ Universities Law Review

Vol 16 No 2 December 1994

Contains two articles of interest: - "'The Queen s Sovereignty Must be Vindicated'": The 1840 Rule in the Maori Land Court", by Bryan D Gilling (p136). Traces the origins of the the 1840 rule, which was closely related to the issue of sovereignty and maintaining the Pax Britannica. Also notes it was not rigorously or consistently applied particularly in early court determinations, he suggests partly because the court was a highly politicised institution, with close links to the native department and its concerns.

- "Maori and the Health Reforms: Promises, Promises", by Stephanie Milroy and Annie Mikaere (p175). Traces a history of Maori health including the epidemics after early contact with Europeans, through to modern health reforms. Concludes that current reforms are failing to provide the Maori right to have their standard of health restored to a level comparable to that of the healthiest peoples in the world, and to be in control of that restoration process. Currently they are slotted into a system in which Pakeha control and values predominate. Suggests a more rational approach is an autonomous Maori health structure with its own budget and accountability to iwi.

 

 

NZ Recent Law Review 1994 Part IV p376

"Constitutional Law" by FM Brookfield

Looks at developments in law since 1994, from the PC decision in NZ Maori Council v A-G (Broadcasting assets) case, Te Runanganui o Te Ika Whenua v A-G concerning claims over rivers, dams etc, through to determinations on the electoral option issue before the Waitangi Tribunal and High Court. Notes that the case of Tavita v Minister of Immigration [1994] 2 NZLR 257 in which the Court of Appeal affirmed the need for Ministers to have regard to international obligations in immigration matters, may strengthen the case for the courts to recognise a presumption that Parliament will not legislate contrary to obligations raised by the Treaty.

 

 

Victoria University of Wellington Law Review

Vol 24 No 4 Dec 1994

Contains two articles of interest:

- "Custom law: Address to the NZ Society for Legal and Social Philosophy , by Chief Judge ET Durie (p325). A call for a comprehensive study of Maori law on a legal and anthropological basis, and a brief listing of the major features such a study would be likely to find. "... it is the experience of the Waitangi Tribunal that reliance on expert witnesses in ad hoc situations can produce uneven results. The presentation of generalised opinions by Maori elders and scholars not experienced in legal analysis also leaves the ultimate interpretation to untrained adjudicators without access to a coherent lego-anthropological text." - "The Treaty of Waitangi and the Sealord Deal" by Justine Munro (p389). Possibly the most thorough commentary on the fisheries settlement published to date. It concludes that the deal was a pragmatic response to an immediate need, but trusted in uncertain economic outcomes and failed to ask the hard questions which are the building blocks to legitimacy. All involved acknowledged the settlement was not thoroughly in accord with Treaty principles, and it deviates in important respects from those principles. The deal is argued to be an illegitimate extension of kawanatanga, because Maori are brought under the Crown s vision, exchanging a Treaty right for a Crown received title, demonstrating a Crown inability to accept legal pluralism. With regard to rangatiratanga, the deal follows the Crown approach of settling on the basis of compensation for rights lost, with a failure to focus on the objective of tribal restoration. The value of quota could drop, resource rentals for use of quota could rise, and quota requires conversion, with resources many iwi do not have, to produce a viable economic base. It is argued that the Crown also has responsibility for ensuring relativities among tribes. The settlement attempts to limit Crown liabilities. Overall the settlement represents a wrong turn , and public debate is required over principles appropriate to future settlements. [ed: many of the points raised are relevant to the debate over the current claim settlement proposals]


March 1995 Contents

Ngai Tahu, forests and Waitangi Tribunal resourcing

The Waitangi Tribunal this month issued a memorandum with significant implications for the Crown s current claim settlement proposals (Memorandum re Ngai Tahu claim, Wai 27, 17 March 1995).

In late December last year, the Ngai Tahu claimants filed papers stating that negotiations with the Crown over the settlement of their claim had broken down. They asked the tribunal, which had already made findings and recommendations on their land claim in 1991, to hold a further hearing on the issue of relief. Ngai Tahu asked in particular that the tribunal use its compulsory powers and make binding recommendations that all Crown forest licensed land within the Ngai Tahu rohe be returned to them (pursuant to s8HB Treaty of Waitangi Act 1975). Such a recommendation would affect many thousands of hectares in the South Island.

In a 13 page memorandum, the tribunal chairperson turned down the request for a full hearing on relief, on the grounds that the tribunal lacked the budget to undertake a hearing which might raise complex issues, and that substantial resources from the tribunal s meagre budget had already been expended on the Ngai Tahu claim since hearings began in 1987. The situation had been reached where further hearing time for this one iwi could detrimentally affect the chances for hearing and settlement for others.

The memorandum dealt at length with historic underfunding of the tribunal ( the lack of money has considerably affected progress ) and the rivalry among iwi for hearing time and research resources that this had engendered. The chairperson noted that currently claim hearings are being postponed or cancelled because of the financial situation.

The basic message, if the Government needed to hear it again at the moment, is that budgetary stringency in this area needs to be rethought, or else tensions will arise which may make claims even more difficult to settle.

 

Maori Land Court and Appellate Court

Paehinahina Mourea Trust

237 Rotorua MB 114 7 February 1995 Savage J

Application under s244/1993 for an order increasing trustee meeting fees. The proposed increase was endorsed at an annual meeting with beneficiaries.

Held: the application should be rejected as the financial condition of trust was parlous. The trustees had shown a propensity to become involved in commercial adventures not related to the use and administration of the land (lending money to a hotel in financial difficulty, attempted investment in a casino, contemplated purchase of time shares in a hotel, purchase of life insurance for trustees, contemplated investment in a white water rafting venture).

Unique to Maori land law is that legal owners rights are vested in trustees when the owners are not under a disability and may not have consented to or even oppose the creation of the trust. Accordingly special sensitivity is called for on the part of trustees, who are often beneficial owners also. There is a special duty to take expert advice where large or unusual financial projects are contemplated.

Trustees must not profit from their trust and generally are not entitled to renumeration. Exceptions are provided by s237/1993 or s72 Trustee Act 1956 which allow for payment of a commission in certain situations. Ahu Whenua trusts are often businesses of some complexity and it is proper that trustees be paid.

Looking to s72(1)(A)/1956, the level of payment in this case should be set looking to nine factors: the basic principle that trustees are not entitled as of right to renumeration, but should not lose it by their labours; the effort, knowledge and ability of the trustees; the nature of the obligation and the business; the past success of trustees; trustees loss occasioned by holding that office; parity between individual trusts in the area; ability of the trust to pay; efficiency of administration of the trust (eg no. of meetings held); views of the owners (here a meeting ratified an increase, but less than 5% of the owners by number (2500) were present).

[For all the criticism of the trust, the increase sought was from a mere $105 to $150 per meeting. Apart from its less successful "adventures" the trust was involved in mining and forestry ventures and commercial leases. The highest meeting fee for any trust known to the court was $250 for a successful farming operation]

 

 

In Re Proprietors of Mangakino Township Inc

Rotorua MB, 3 March 1995, Savage J

Section 254/1993 provides that Maori incorporations under the Act may not grant leases "for a term of more than 21 years" without a special resolution of shareholders. The MLC registrar at Rotorua was advised that the Mangakino incorporation was intending to enter a lease for a total period, including rights of renewal, exceeding 21 years. No special resolution had been passed. The court advised the incorporation it would, of its own motion under s280(3)(c)/1993, proceed to consider whether an investigation by a person appointed by the court should be made. A pre-hearing conference determined that while the intended lease would not proceed, the incorporation had granted other leases whose total term, inclusive of renewals, exceeded 21 years, in the belief that s254 referred only to the initial term of a lease.

Held: an investigation should be held. Applying statutory interpretation principles, most recently reviewed in Commissioner Inland Revenue, the Alcan NZ Ltd (CA 150/93, 31 May 1994), s254 on its face was capable of more than one interpretation, however the mischief Parliament sought to remedy was long term leasing without the owners consent. The incorporation s interpretation of the section would make it possible for leases without the owners consent to be made including renewal rights potentially alienating the land for hundreds of years. It had to be remembered that beneficial ownership remains vested in shareholders of an incorporation (s250/1993), and that s2(1)/1993 provides that the Act is to be interpreted to further the principles set out in the Preamble, which includes the principle of promoting the retention of Maori land in the hands of owners. Accordingly, "21 years" in s254 refers not only to the initial term but to any further terms in the form of rights of renewal.

A retrospective special resolution would not remedy the existing unlawful leases, nor an amendment to the objects of the incorporation. Section 2(2) provides that the court must further the objects of the Act when deciding whether to exercise any power under it. The objects of the Act include facilitating the retention, use, development and control of Maori land by the owners. Accordingly an investigation should be undertaken, with the Registrar as the investigating officer.

 

Waitangi Tribunal

Kiwifruit direction

Wai 480, 15 March 1995. Deputy CJ Smith

After a conference of parties, the tribunal gave directions for an urgent hearing of this claim, noting that urgency in the context of tribunal hearings should not be given its true dictionary definition but refers more to prioritising claims for hearing. A final report was required in time to remove uncertainty regarding marketing of the 1996 crop. The tribunal found difficulty fixing a hearing date. Budgetary constraints, including imposition by the government of a 3% saving requirement, had already resulted in a number of hearings in the current fiscal year (ending June 1995), being abandoned. In addition, the Federation of Maori Authorities and Wakatu Incorporation had notified that they were affected by the claim and required time to determine their stance in relation to it. A hearing date should be fixed at the earliest opportunity after 30 June 1995.

[ed: these directions, and other directions noted this month (see below and front page), suggest a trend for the tribunal to have its ordinary hearing schedule determined by consideration of urgency requests. Given this trend and limited tribunal resources, urgent hearing may have an entirely new meaning by the end of 1995]

 

 

Interesting claims recently filed

Wai 462: Joe Oneroa and others made a claim concerning the Crown acquisition of Maungataniwha and Raetea forests in North Auckland and also the aerial drop of 1080 poison for possum control. No request for urgency was received. The tribunal asked the claimants to advise if they wished to proceed, given that the aerial drop has finished.

Wai 467: Noel Akapita and another, descendants of Rangituhia, Rangiteauria and Uenukumanawawiri, claimed that a block of 5,180 within the Tongariro National Park, reaching to the summit of Ruapehu on the south eastern side, remains Maori customary land since it was never passed through the Native Land Court.

Wai 473: claim by Tom Hemopo on behalf of Te Taiwhenua o Whanganui A Orotu, objecting to a failure to consult Maori in the preparation of a taskforce report for Health Care Hawkes Bay Ltd, which recommended rationalising health care in the region by establishing a regional hospital in Hastings, with minimal services provided at Napier.

Wai 477: claim by Ian Proctor that various provisions in tax legislation concerning the keeping of business records either require English only records be kept, or otherwise make no provision for Maori language to be used.

Wai 480: claim by Sir Hepi Te Heu Heu that the draft Conservation Management Strategy for the Tongariro/Taupo Conservancy fails to give effect to the principles of the Treaty of Waitangi as required by the Conservation Act 1987. After a conference, the claim was afforded urgency. However, the fixing of a date for hearing is dependent on the Minister of Conservation s response to a request to extend the time for consultation on the strategy under s17F(j) Resource Management Act 1991.

 

 

Hikaia Amohia on behalf Ngati Haua, Tama Upoko, Hinengakau, Ngati Tupoho, Ngati Rangi

Wai 146, 20 February 1995. Deputy CJ Smith

The claimants filed a request for an urgent hearing of that part of this claim concerning a former marae site in Taumarunui, now the proposed site of a new police station. The tribunal stated "Notice is given that the Waitangi Tribunal has established a policy that no application before the tribunal will be heard while the applicants or any person claiming through them or supporting them are in adverse occupation of any land the subject of the application. It is a condition precedent to the hearing of a claim for urgency that the Maori occupants of the land vacate the land." Although the tribunal had no authority to impose an injunction to prevent building work it hoped all building would halt pending determination of the urgency claim. A date was set to consider whether urgency should be given. At the conference held on 10 March to consider urgency, the tribunal adjourned further proceedings until 27 March to allow time for Cabinet to consider giving approval to an agreement between the claimants and the police.

[ed: This stated policy has implications for other protests and any planned protests through the occupation of land. It would seem to rule out the tribunal presently hearing any claim concerning the Moutoa Gardens, currently under occupation in Wanganui, while that occupation continues, although it might still hear an application for a date to be set for an urgent hearing in such a case]

 

 

Memorandum re Fisheries Allocation Claim

Wai 447, 10 March 1995, CJ Durie

In the ongoing fisheries allocation saga, this memorandum arranges a conference to set an urgent hearing date for this claim and outlines the issues the hearing might address. The tribunal is proceeding to hearing in light of a High Court minute of 7 February 1995 in which Anderson J indicated that the High Court would not adjourn its proceedings pending the outcome of a tribunal hearing, but offered no other advice to the tribunal. Anderson J in his minute also commented "[t]his Court on various occasions has noted in the course of conferences and applications that the type of broad and important constitutional issues being raised by these proceedings might well be an indication for rules or statutory provisions allowing this Court to sit with assessors with mana and learning in matters Maori".

The tribunal memorandum notes that the issues and remedies sought before the tribunal are different in any event and can be heard in a comparatively brief timespan. However the tribunal urgent hearing, if it proceeds, will now have to consider a claim filed by the Manukau Urban Authority and other urban Maori groups, arguing, among other things, that there has been a failure by the Crown and the Treaty of Waitangi Fisheries Commission to establish a system to protect the rights of urban Maori (filed 22 March).

 

Other Jurisdictions

Taiaroa & Ors v Minister of Justice & Chief Registrar of Electors & Anor

CA 201/94, 9 March 1995. Cooke P, Richardson J, Casey J, Hardie Boys J, Gault J, McKay J, Sir Gordon Bisson

The Court of Appeal here rejected unanimously an application for conditional leave to appeal to the Privy Council the judgment in the electoral option case on 23 December 1994. In the opinion of the Court of Appeal, the Privy Council would not be considering a question of "great general or public importance" as required by Rule 2(b) of the Order in Council 1910 concerning Privy Council appeals. Rather, the Council would be examining only the reasonableness or otherwise of the steps taken to publicise and explain the option to Maori, which was a matter of fact and degree, not of law or principle. The court added however, "[i]t is preferable that their Lordships ... determine, if called upon to do so, whether they consider the question an appropriate one for them. Moreover the appellants should be able to apply to their Lordships for special leave relatively simply and relatively inexpensively, whereas the full costs of an appeal would be very heavy."

[ed: this seems to be an invitation to seek special leave directly from the Privy Council. In another application for conditional leave, Auckland Casino Ltd v Casino Control Authority and Others (CA 181/94, 7 March 1995), the Court of Appeal similarly found no question of general or public importance and rejected the application. The Auckland Casino Ltd consortium included a Maori partner, and allegations had been made in earlier proceedings of a failure by the control authority to properly consider Maori interests (see MLR August & October 1994)]

 

 

Ngati Rangatahi Whanaunga (Assoc) v Planning Tribunal & A-G (on behalf of the NZ Police)

CP31/95, 13 February 1995. Neazor J

The applicant association had applied for review of a Planning Tribunal decision to cancel an interim enforcement order preventing work commencing on the Taumarunui police station site (see MLR February 1995). The appellants sought to have the interim enforcement order reimposed and work halted until their full case for an enforcement order under the RMA could be heard by the tribunal. In these proceedings, they sought a declaration preventing work commencing while the High Court considered the application for review.

Held: the declaration should not be given. There was no certainty of the success of the application to the High Court, it not being readily apparent that the Planning Tribunal erred in its decision. Damage to the applicants interests would not be irreparable if the work proceeded in the meantime (if human remains were found it was agreed by the police that work would stop, other claims that the environment generally would suffer were broad and put too highly). The applicants were seeking to use the High Court to protect the efficacy of the Planning Tribunal process. The court should not intervene to broaden the battlefield of litigation in this way.

[ed: An interesting fact emerged in these proceedings. The police station is to be built on 3 parcels of land, one of which is subject to a memorial under s27B State Owned Enterprises Act 1986, which enables the Waitangi Tribunal to order the return of that land to Maori should it judge the claim to be well founded. This parcel, originally taken under old public works legislation, was not purchased by the police (from Government Property Services) till 1990, with the s27B memorial attached. While the police were entitled to purchase the land with the memorial, it is a pity the implications of the claim were not thought about in advance. If the claim is upheld by the tribunal, the government may be obliged to order that part of the police station complex should be returned to the claimants. One can therefore understand the claimants concern to have their claim dealt with before construction begins]

 

 

Purification Technologies Ltd v Taupo District Council

W10/95, 1 February 1995, Sheppard J

The tribunal was asked to consider whether certain groups and persons before it, not being parties to an appeal, nevertheless had standing to appear. One of the groups was a local marae committee claiming to speak for tangata whenua of the district.

Held: the RMA provides at s274 that persons having an interest greater than the public generally may appear in proceedings before the tribunal and that this regime is tighter than that applying under old planning law. If the marae committee had evidence to call bearing on the issue of the relationship of Maori and their culture and traditions with their ancestral land, that would give them an interest in the proceedings greater than that of the public generally.

[ed: reiterates again the special emphasis the RMA gives to Maori concerns. The ability for the Maori group to gain standing is the greater when it is considered that groups such as Greenpeace and Friends of the Earth were refused standing in this judgment. It is possible an appeal by those groups will be taken however]

 

General

Te Reo O Te Tini A Tangaroa. Newsletter of the Treaty of Waitangi Fisheries Commission. No 23, February 1995

In preparation for allocation of pre-settlement assets, the Commission (TOKM) is gathering information about iwi, and in the process laying down conditions defining iwi status and representation.

Iwi status: "TOKM has outlined the conditions necessary for validation of an Iwi. Increasingly, though, it is relying on the criterion, "an existence traditionally acknowledged by other Iwi as the final benchmark. So, if all neighbouring Iwi deny the iwi status of a claimant group, then TOKM will consider removing that purported Iwi from the final list of Iwi. (After four years consultation with Iwi, TOKM is confident that no "new" Iwi will emerge." Iwi representation: "it is not uncommon for more than one group to say it has the mandate to represent a particular Iwi. Usually this arises when a hapu or whanau group is set up in opposition to the current iwi organisation because its members, rightly or wrongly, do not believe that the existing group properly represents their interests. TOKM has been advising iwi for some time that the best way to resolve this issue is to convene a publicly notified hui, with the mandate agenda clearly spelled out. The hui must be open to all members of that Iwi, not just to some hapu.

While some Iwi members claim that such a hui would be "stacked" with supporters of the current executive, TOKM believes it is up to those who want to see a change in Iwi representation to attend the hui and put forward their representatives. TOKM will not reconsider claims from groups who boycott properly organised representation hui.

[ed: this process in part recreates the process which was available under the now repealed Runanga Iwi Act. It remains to be seen if this process will set the benchmark and also provide data for defining Iwi for other matters such as resource management and Waitangi Tribunal claims. TOKM is working with Statistics NZ to improve iwi data from the 1996 census]

 

 

Minerals Programme for Petroleum

1 January 1995. Energy and Resources Division. Ministry of Commerce

This document sets out a minerals programme for petroleum created and issued pursuant to s18 Crown Minerals Act 1991. The fundamental policy objective in managing petroleum is efficient allocation, a fair return to the Crown and "due regard to the principles of the Treaty of Waitangi". Consultation with Maori early in any allocation process is emphasised, and a procedure for consultation which must be followed is outlined. The programme, pursuant to s15(3)/1991 (iwi may request that areas of particular importance be excluded from the operation of minerals programmes or inclusion in any permit), identifies Mt Taranaki, Pouakai, Pukeiti and Kaitake ranges (as defined by the area of the Mt Egmont National Park - 33764 hectares), as areas unavailable for inclusion in any petroleum permit, being a fundamental source of tribal identity and mana for iwi of Taranaki, with the mountain regarded as an ancestor and the area generally as wahi tapu.

 

 

Mabo No 3 case and social justice proposals

The Australian 17 March & 18-19 March 1995

The High Court has upheld the Federal Government s Native Title Act and rejected a challenge to it from Western Australia s state government, finding that government's Land (Titles and Traditional Usage) Act 1993 to be invalid as contrary to the Racial Discrimination Act 1975. This federal legislation provides that laws concerning rights enjoyed by all may not deny one group on the basis of race. The Western Australian legislation restricted common law rights on the basis of Aboriginality ie denied the ability of Aborigines to properly pursue claims to traditional title under common law.

In the same week the Council for Aboriginal Reconciliation presented a report to the federal government titled Going Forward, making 78 recommendations to secure social justice for Aborigines in light of theMabo case. Recommendations included making compulsory the study of Aboriginal and Torres Strait Islander cultures in schools, guaranteeing 2-3 seats in the Federal Parliament for Aboriginal MPs, recognition in statute law of indigenous customary law, regional self government in the Torres Strait by 2001, official recognition of the Aboriginal flag, and adding a preamble to the constitution acknowledging Aboriginal ownership of Australia prior to 1788.

 

 

Aboriginal Law Bulletin and Alternative Law Journal. Joint Issue

Vol 3 No 72 February 1995

This issue includes, among other articles, "Stopping the rip-offs" by Catherine Hawkins, which comments on an issues paper recently released concerning intellectual property protection for Aboriginal and Torres Strait Islander peoples, and the Aboriginal Carpets case where imported carpets featured the work of Aboriginal artists without their permission. Clan ownership in the artists work was recognised by the court (also considered in a case review by Terri Janke, "The Carpets Case"). "Absent owners" by Mark Gregory examines comments from the National Native Title Tribunal that the continued existence of traditional title at common law may not require continued physical connection with the land in question.


February 1995 Contents

Not Just One Tree Hill

It is becoming abundantly clear that the proposals released in December 1994 have stirred a suppressed impatience among Maori about progress with claim settlements and that the fiscal cap aspect of the proposals will be generally rejected. The Government was given ample warning that this would be the case. In the Parliamentary debate following the announcement of the proposals, all non-Government speakers complimented the Government on its attempt to grapple with these issues, but warned that setting a fiscal limit would bring trouble. Helen Clarke said: Sometimes the Government may be in a position in which it can attribute Maori opposition to, perhaps, a small group of activists or radicals. This is not one of those times. The reservation about this concept stretches across Maoridom. .... The whole concept of settling is in danger of becoming totally discredited because of the attempt to confine it to a set sum of money and to imply that timetables are involved. If we discredit the concept of settling in a fair and just way, then I fear that it will not be just one tree on One Tree Hill that suffers, but rather the state of affairs in our country generally. (NZPD 8 December 1994)There are other concerns arising from the present debate. One is the nature of advice from the Treasury. If, as has been reported, Treasury advised that the settlement fund idea would reduce many claimants inflated expectations , one wonders how thoughtfully and thoroughly these issues were investigated. This phrase is more reminiscent of letters to the editor than carefully considered policy advice on a matter of constitutional importance. In policy documents produced in 1987, Treasury admitted It would be surprising if any settlement that might realistically be expected would extinguish all sense of grievance. What may be hoped for is that the level of settlements be a sufficient indicator of the sincerity and good intentions of the Government to satisfy most Maori and non-Maori opinion that justice had been done in a reasonable way (Government Management. Brief to the Incoming Government vol 1 p331). Is that central concern for justice evident in its advice today?

Another concern is the pressure the consultation process is placing on Maori bureaucrats. As Wira Gardiner, Chief Executive of Te Puni Kokiri, has put it, these officials are often prominent members of their tribes, and are having to carry a message which their tribes by and large are rejecting (Wanganui Chronicle 20 February 1995). The cost of doggedly continuing to promote the fiscal cap might be the loss of talented Maori policy advisors for the future.

 

 

Maori Land Court and Appellate Court

No cases available to report this month.

 

Waitangi Tribunal

Fisheries Allocation Claim: Determination of Preliminary Issues

Wai 447, 27 January 1995. CJ Durie, GS Orr, JR MorrisThis claim alleges that the Crown and the Treaty of Waitangi Fisheries Commission have breached the Treaty principles, both in appointments made by the Crown to the Commission and through the process to create proposals for the allocation of assets. The tribunal, as a preliminary matter, asked for argument whether (a) actions of the Commission could be actions by or on behalf of the Crown; (b) the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 (which amended tribunal jurisdiction) prevented consideration of this claim; (c) the tribunal should defer its inquiry in light of potential remedies available before the courts.

Held: s6(7) Treaty of Waitangi Act 1975 provides that the tribunal may not inquire into commercial fishing rights or terms of the settlement, but this privative clause does not restricthearing of claims concerning the allocation of benefits of the settlement, as opposed to the settlement itself. However, if the High Court were to determine it is precluded from considering further fisheries matters because of a private clause directed at it in s9/1992, which is worded in substantially the same way as the privative clause applying to the tribunal, the tribunal may be bound to revise its opinion.

As to whether the Commission acts on behalf of the Crown, the tribunal sees the claim as against the Crown and whether it has properly delegated its Treaty responsibilities to the Commission and ought to intervene in the current situation of apparent disagreement on allocation methods (noted that if it dealt with the substantive claim, the tribunal may need to do no more than consider whether an impasse has been reached and the Crown ought to intervene, ie it may not need to make any determination regarding mana moana ). The tribunal should however sensibly defer its inquiry because the High Court might provide a stronger remedy, and technical matters of administrative law were involved (noted that the tribunal continues to hold the position that it will not intervene where it might prejudice court proceedings. This upholds the constitution, and also the Treaty, in which the Queen promised necessary laws and institutions . Within this rule however, circumstances vary, and in the past the tribunal has proceeded with contemporaneous inquiries, and withheld reporting until court proceedings were completed, or reported on certain aspects of a claim only).

The tribunal also noted, in passing, that a scheme for pre-settlement assets allocation will require substantial agreement, if not consensus from a general meeting of Maori to be passed under the terms of the 1992 Act.

[ed: this last comment could be viewed as a strong hint that the mana whenua/mana moana allocation proposal, which appears to have split the commission down the middle, may not presently carry enough support legally to see it through. An issue of perceived bias was raised on the basis that several of the tribunal members sitting had been involved in the Fisheries Settlement Report 1992 which expressed opinions on the Sealord settlement. This issue was put to one side, it being noted that the composition of the tribunal sitting to hear preliminary issues might differ from that which might later sit to hear the substantive claim. On a matter of procedure, the tribunal had suggested that it simply state a case to the High Court, which would place all fisheries proceedings before one body. Claimant counsel argued against this approach since no appeal would lie from any High Court determination of a case stated. Having the tribunal first state its view, with a potential for review of that decision, would provide, in essence, an appeal process]

 

 

Ngati Awa, Tuwharetoa and associated claims. Memorandum following fourth hearing

Wai 46, 17 February 1995. CJ DurieThis memorandum deals, within the context of the broader Ngati Awa claim, with two areas of land taken for works associated with the Matahina dam, under public works legislation in the 1960s. In both cases, the tribunal listed a number of possible breaches of Treaty principles which seemed to have occurred, and noted that it had serious doubts that these required further investigation, and invited the Crown to expedite the settlement of these claims. It was noted that it is not readily apparent from the Te Maunga Railway Lands report (Wai 315, August 1994 - which allowed that land could be compulsorily taken in special cases, despite the Treaty) what is the basis for bending the Treaty s terms to suit modern convenience or principles of necessity . In any event, the Treaty would seem to be authoritative for the view that no Crown use or exploitation of Maori land could be contemplated without, at least, reasonable consultation with the owners and a free and informed consideration by them of appropriate terms.

[ed: this memorandum appears to be saying that the Treaty either forbids absolutely any compulsory takings (and the Te Maunga report ought not to have conceded this point (see MLR September 1994)), or that, at least, full consultation and informed consent are required in each case. The tribunal noted that the government is developing a policy on public works takings, and should make itself aware of these cases before that policy is considered. In another development in this claim, the Crown has filed a memorandum expressing concern about the tribunal determination of 11 November 1994 that a prima facie case had been made out in relation to the Rotoehu forest - a forest potentially affected by offer back provisions under the Treaty of Waitangi Act 1975 (as amended by the Crown Forest Assets Act 1989)]

 

 

Tribunal appointment

16 February 1995. Office of the Hon John Luxton.Te Ahikaiata John Joseph Turei has been appointed to the Waitangi Tribunal. He is a 76 year old kaumatua of Tuhoe descent with 17 grandchildren. As a child, he grew up speaking only Maori, and travelled with Maori MPs including Sir Apirana Ngata. He was a member of the Maori Battalion from 1937 to 1946. He performed the wero at the inaugural Waitangi commemorations in 1934. He has since escorted many dignitaries onto marae throughout the country and been a representative for cultural events, such as Te Maori , overseas. He has been active in many community programmes, being awarded the Queen's Service and Commemorative Medals in 1986 and 1990 respectively for those services, and the Sir Kingi Ihaka Award in 1993 for services to Maori in preserving Te Reo and Maori culture. He spoke at Waitangi in 1995, saying that he has been outraged and affronted by recent protests, and commending the Government on its efforts in producing Treaty claim settlement proposals, but also expressing the view that the complexities of Treaty issues have no simple solutions, certainly not contained within a fiscal envelope. Mr Turei's appointment gives the Tribunal its full complement of 16 members.

 

 

Claim by M Norman and W Te Kani re kiwifruit marketing

Wai 449, 19 December 1994The claim states that at 6 February 1840, Maori were trading internationally. The Kiwifruit Marketing Regulations 1977 established under the Primary Products Marketing Act 1953 now regulate the sale of kiwifruit overseas. In 1988 and 1994, reviews of these regulations recommended changes to enable greater grower choice. The Crown through its delegate, the Kiwifruit Marketing Board, has pursued a policy of export to Japan without considering various matters, including trading rights of Maori guaranteed under the Treaty. The claimants seek recommendations that Maori growers be compensated for loss of earnings, the Kiwifruit Marketing Board grant to Maori kiwifruit producers an export licence, and in the interim Maori kiwifruit growers be granted rights to market direct to Japanese importers.

[ed: although it is attracting some business attention, because of implications for the industry and other similarly regulated industries (apple and pear and dairy), the tribunal has no plans to hear this claim in the near future. Maori growers make up 10% of the kiwifruit industry (The Independent, 10 & 17 February 1995)

 

Other Jurisdictions

In Re Green (deceased) and Green v Robson

M366/90 HC Hamilton, 16 December 1994 Hammond JThe plaintiff claimed under the Family Protection Act 1955 that he was entitled to all of a block known as Awaroa, which the deceased had left in part to the plaintiff, but also to foster children and grandchildren. The family of the deceased had raised many foster children. The plaintiff alleged that he had a claim because of need, but also because of a desire to keep the block, which had come to the deceased through her spouse, in the male side of the family. At an earlier period, the plaintiff had also worked on the block for several years. The estate overall was a small one, (around $34,000) composed almost entirely of interests in Maori land.

Held: The 1955 Act requires an assessment whether there has been a breach of moral duty, judged by the standards of a wise and just testator (Little v Angus [1981] 1 NZLR 126 (CA) cited). Competing claims of Maori custom cannot override a claim which has been made out in terms of the Act (Re Stubbing [1990] 1 NZLR 428), but whether such competing claims would be termed moral claims which would reduce the amount the successful claimant gets is unclear. The courts would probably recognise a moral duty of a testator towards children adopted customarily even though they could not themselves bring a claim under the Act. When dealing with Maori families regard is to be had to the strong attachment of Maori to the land and deeply held family feelings in that respect (Re Ham (1990) 6 FRNZ 158). Parliament has begun to adjust further the position of Maori in relation to the 1955 Act by providing in Te Ture Whenua Maori Act 1993 (s 106(4)), that Maori customary marriages before 1 April 1952 will be recognised for the purposes of the 1955 Act.

As a general principle, freedom of testamentary disposition is important in New Zealand, to which the 1955 Act is an exception. Without evidence on the matter, the best solution for Maori land is to respect the judgments of those making decisions about the land, unless there is a very good reason to interfere. There being no particular evidence presented of Maori custom in this case, it should be dealt with on conventional and well established principles. The plaintiff should have all of the block. He had established a breach of moral duty, being the only natural child of the deceased, living in modest circumstances, had helped to maintain the land, and there were no competing claims of economic need. Moral claims of the foster children, if any, were outweighed by these circumstances.

[ed: the judgment might have noted that Te Ture Whenua Maori Act 1993 provides a further and quite broad exception to the principle that testators should be free to dispose of their interests as they see fit. Wills made after 1 July 1993 purporting to dispose of interests in Maori land beyond specified groups are voided by the Act (s108(5)). Provision for customary marriages under the 1955 Act has existed since 1967 (Maori Affairs Amendment Act 1967 s80(3)].

 

 

Ngati Rangatahi Whanaunga (Association) v NZ Police

W5/95 PT, 3 February 1995. Treadwell JThe applicants had obtained an interim enforcement order under s320 Resource Management Act 1991, preventing work on a new police station at Taumarunui. The site concerned had long been under dispute by local Maori, being taken under the Public Works Act 1908 in 1911 (compensation was paid to the District Maori Land Board). A claim was made to the Waitangi Tribunal about the land in 1990. The Police applied to cancel the order.

Held: the order should be cancelled. There was a need for a new police station (the old one had been demolished in anticipation of the new building), substantial damages would result to contractors if work was delayed at this late stage. The Crown had put itself under an obligationto stop work immediately should human remains be found on the site. An undertaking as to damages should the order be issued would be critical, yet no undertaking had been offered. His Honour rejected submissions that public interest issues represented by Treaty of Waitangi obligations required issuance of an interim order without an undertaking as to damages, and that the Crown as a Treaty partner ought not to require such an undertaking. The Crown did require such an undertaking and believed that it had carried out any Treaty obligations (there had been ongoing discussion with the applicants about the proposed construction). Waahi tapu issues had been raised at the very last moment. Accordingly the interim order would be cancelled and an urgent hearing date of the substantive matter set.

[ed: Ngati Hauaroa hapu have since made a very public occupation of the site. They also appealed this decision to the High Court and lost. That judgment will be reviewed in next month s issue. Given that the land was taken under early public works legislation, and that the District Maori Land Board in 1911 consisted of 3 persons, of whom only one was required to be Maori, and had a Pakeha chair, then comments of the Waitangi Tribunal regarding adequate consultation and negotiation prior to public works takings in the Te Maunga Railway Lands report, and in a memo re Ngati Awa claims (reviewed above) might well be applicable to this case. As further background, Taumarunui was declared a native township under the Native Townships Act 1895. This heavy handed legislation provided that up to 500 acres of Maori land could be brought under Crown control, for lease to Europeans for periods up to 42 years, with rents being distributed to Maori, minus survey and other costs for bringing the township into being.]

 

General

Maori Reserved Lands Government Policy Decisions 1994

Minister of Maori Affairs & Minister of Lands. Te Puni Kokiri January 1995. 19ppThe government is urging owners and lessees to reach their own arrangements for ending the perpetual terms of leases, revising rentals, etc under the Maori Reserved Land Act 1955. They will do this against a bottom line position provided by an amendment to that Act which the government hopes to pass in 1995. This will provide:

Term of the leases: All perpetually renewable leases will terminate at the end of the current term plus two further periods for 21 years. This will see the last leases terminating in 63 years, and the earliest in 42 years. Where any house on the land is a principal place of residence, lessees and their spouses will retain lifetime occupancy rights expiring 3 months after death. Lessees at the time the amending legislation is passed will be the final lessees, ie they will not be able to transfer their interest by will, gift or sale of the lease.

Improvements: On termination of a lease, the owners will pay the market value of improvements, or come to some different arrangement by mutual agreement. The consultative working group (see below) will advise on the procedure to be followed if the owners cannot afford the improvements.

Rent: 3 years after the amending legislation is passed, rent reviews will begin on the first batch of leases, with the aim of establishing market rents for all leases over the next 4 years. After this first review, rents reviews will be every 7 years. The Valuer General will, at government expense, establish for each property a benchmark ratio between the owner s and lessee s interest in the land around which the new market rents can be negotiated. Workshops held by the government will explain this benchmark approach to owners and lessees. The government expects that Maori owners will use the new market rents to establish a fund to assist in purchasing the interests of lessees. Rights of first refusal: the Maori owners will be given the right of first refusal to purchase a lessee s interest where the lessee wishes to sell (except where sale is to a family member). Lessees will have the right of first refusal where the Maori owners wish to sell general land. But if the land is Maori freehold land, the provisions of Te Ture Whenua Maori 1993 as to sale apply unaffected (these require a right of first refusal be offered to specified groups related to the Maori owners). Compensation to lessees: Lessees will be compensated for the loss of their perpetual right to renew at between 1.85-2.9% of the unimproved value of the land. This compensation will not come out of the fiscal envelope for Treaty settlements. Compensation to Maori: Maori owners must pursue claims before the Waitangi Tribunal for compensation. Implementing the policy: A consultative working group will be established by the Minister of Maori Affairs in early 1995 to advise on issues surrounding the proposed legislation. [ed: most of the recommendations of the 1993 report of the Reserved Lands Panel have been followed. However, that Panel recommended against compensation to lessees, as they had enjoyed the benefit of cheap leases for many years. It also recommended financial assistance to Maori to purchase improvements where normal commercial facilities were not available. Maori claimants, whose petitioning about the injustice of perpetual leases over 100 years has finally led to this review, are given no certainty of compensation, only a right to continue their claims before the Waitangi Tribunal, where the Crown is resisting any argument that the system of perpetual leasing was unfair as conceived in the late nineteenth century (This was most recently argued in Wai 145, doc D2, 8 December 1994). Compensation to Maori for a system which the 1993 Panel described as significantly unjust and evil may best come through land swaps involving surplus Crown lands which are under discussion in some areas. As a historical comparison with these proposals, the Maori Vested Lands Administration Act 1954 is worth a look, see NZPD (1954) vol 304 p1970]

 

 

Te Puni Kokiri - Ministry of Maori Development reorganisation

Replies Supplement 13 December 1994. Hon John LuxtonTPK is being re-organised internally (without impact on its outputs) into 5 branches: Compliance: policy advice on management of the Crown-Maori relationship; legislative reform; monitoring; Assets: policy advice on the access to, ownership, development and management of assets; income generation, economic development; Sectoral: policy advice on intersectoral linkages; focusing in particular on education and training, employment, and health; Regions: policy advice on facilitation of services at the local level; consultation; local level risk to the Crown-Maori relationship; Corporate: provision of support services to the organisation.

 

 

Address to "The Unfinished Business Conference

Institute of Advanced Legal Studies 9-10 February 1995. CJ DurieThe focus of Maori claims settlement has now shifted to policy. The Sealord and proposed Tainui settlements are encouraging. The main issues before Maori now are representation and equity between tribes. These are particularly Maori policy matters to be resolved by Maori, not government. A democratic structure in which to do this is lacking, consequently, those who shout loudest in the media are heard. The Aboriginal and Torres Strait Islander Commission is one illustrative model which could be looked to. The word settlement in Australia refers more to settling a process for the future, than making payment for the past. The Council for Aboriginal Reconciliation, which promotes informed public debate, is particulary important in the Australian scheme. Aboriginal land councils provide evidence that self determination within a national framework is both feasible and non-threatening. The proposal for a perpetual land fund in Australia also looks to the future.

In New Zealand the disparity between Maori objectives and public understanding (Maori are not locked into the past nor out to bankrupt the country), calls for more informed debate. A council of leading Maori and Pakeha New Zealanders might achieve this. The issue is primarily about the management of race relations in the coming years. Equity between tribes, and between traditional and urban groups are demanding issues at the moment, as well as equity between Maori and Pakeha.

 

 

He Matariki: A Strategic Plan for Maori Public Health. He Kaupapa Whainga Roa Mo Te Hauora Tumatanui Maori. The Public Health Commission s Advice to the Minister of Health 1994- 1995

Public Health Commission. Rangapu Hauora Tumatanui. February 1995.This document recommends a strategic plan for Maori public health. It states that increased health risks for Maori adults are a result of relative social and economic disadvantages ... coupled with unhealthy lifestyle patterns . Car crashes are the leading cause of death among Maori males aged 15-44 and also among females aged 15-24. Looking to the future, the report predicts there will be more kaumatua than ever before after 2000, and that, provided there is a transmission of cultural knowledge, this will considerably strengthen the pool of traditional leaders. Recommendations for the outcomes to be achieved by public health initiatives are specific. For eg; to reduce Maori deaths caused by motor vehicle crashes from 84 in 1990 to 64 or fewer by 1995, and to 44 or fewer by the year 2000 and reduce hospital admissions from crashes from 1,612 in 1991 to 1,312 or fewer by 1995, and to 1,012 or fewer by the year 2000. Also to reduce the number of all Maori who smoke from 54% (1992) to 40% or less by the year 2000.

[ed: the outcomes are concisely stated, but the document assumes that the commission will take the lead in purchasing the public health services required and monitoring the outcomes achieved. The recent announcement that the commission will be disbanded therefore makes the future of this report uncertain. The commission s advisory role will be absorbed within the Health Ministry, and Regional Health Authorities will purchase public health services such as training programmes for health workers, immunisation programmes, health advertisements etc to produce the outcomes the report recommends. The question is whether there will be a loss of focus and commitment on Maori public health issues which the small, independent commission seems to have provided]

 

 

Parliament, the Treaty and Freedom: millennial hopes and speculations

NZLJ December 1994 pp462-468. Professor FM BrookfieldIn this valedictory lecture Professor Brookfield argues that it is impossible to believe that the chiefs who signed the Treaty consented to the absolute and unlimited power of parliamentary sovereignty, since this would have included a power to destroy the tribal autonomy guaranteed under Article 2. Consequently, when we look today to better performance by the government of its obligations to Maori, we depend to a large extent on action by a parliament which is itself the product of a partly revolutionary seizure of power. The idea of a counter-revolution to restore Maori autonomy is rejected, but it is argued that the courts should now adopt a general principle that, except where Parliament expressly legislates to the contrary, all statutes should be interpreted against the background of the Treaty. This principle could be reached by emphasising the changed constitutional position and views of the Treaty since the Privy Council judgment in Te Heuheu Tukino s case in 1941. [ed: just such an argument was raised, and rejected, by the High Court in Ngai Tahu Maori Trust Board and others v Director-General of Conservation and others CP 841/92, 23 December 1994 (reviewed in MLR Dec94-Jan95 issue). The argument might however be raised directly before the Privy Council if the Maori plaintiffs in the electoral option case appeal the Court of Appeal decision in that matter]

 





December-January 1995 Contents

Editorial

As the year started (see MLR January 1994) so it ended, with discussion about the best means of achieving settlements to Treaty claims. Now however, there is up for debate a detailed government settlement policy, a Labour party response, and the proposed Tainui deal. Given that the government and opposition parties are far apart in their approach to Treaty settlements (the government is interested in a fiscal cap, Labour and the Alliance are not, the government seems scarcely interested in the Waitangi Tribunal, Labour wants to boost its resources), perhaps the determining factor in the debate will be the practical results from the fisheries settlement assets allocation row, and the proposed Tainui deal. These will decide whether full and final settlements, mechanisms for determining tribal representation and fiscal caps are practical or not.

The National Government has ensured that one major tribal group has an interest in supporting its settlement policy proposals. The agreement signed with Tainui in many of its details follows the proposals. Other tribes, looking nervously at the 17% of the fiscal envelope already committed in the Tainui deal, have indicated that they have many reservations and questions which will need to be answered. Whether this will be the year of deal-making remains to be seen.

In the current excitement, it is perhaps worth remembering that, for many Maori, unemployment will be their greatest challenge in 1995. The Task Force on Unemployment has suggested a goal which, beside the Treaty claims debate, seems relatively modest. It is to have the major political parties, by mid-1995, agree on a comprehensive strategy to eliminate Maori disadvantage in the labour market.

 

This being a year celebrating Maori language, the Review will be improving it's use of Maori, including the use of macrons from the next issue. If the English explanations of Maori terms seem a little obvious at times, please bear with us, there is a small but growing international audience for the Review. I would like to record my thanks to those who helped launch this publication, in particular the support from the Waitangi Tribunal and from the Judges of the Maori Land Court.

 

Maori Land Court and Appellate Court

In Re Tuaropaki E Geothermal Test Wells and the A-G

(1994) 1 Waiariki Appellate Court B 24, 20 December 1994. Chief Judge Durie, Carter J, Savage J An appeal by the A-G from a final order of the MLC determining ownership of certain geothermal test wells situated on Maori land. Held: the matter should be referred to MLC for a rehearing because the Crown was given insufficient time to prepare its case (5 clear working days only). The MLC had wrongly failed to use its discretion to grant an adjournment, giving insufficient weight to the capacity of the Crown to prepare for hearing. Further injustice would result if the MAC did not intervene (the circumstances in which the MAC will intervene in MLC discretion and matters to consider in granting an adjournment were briefly discussed).

Noted that s18(2) and s56(2)/1993 do not give authority for MAC to transfer an unheard appeal to the High Court. Transfer of this appeal (now heard) declined in this case.

Also noted that where an application for adjournment is disputed, both parties must be given an opportunity to hear the arguments and respond. Finally, s18/1993 extending jurisdiction to claims in contract, tort and equity, with no monetary limit, will raise complicated matters such as this case and a more measured and structured approach to pre-trial matters is contemplated in s67/1993.

 

In Re Ngati Toa Rangatira

(1994) 21 Nelson MB 1, 8 December 1994. HK Hingston J, T Adams & W Mauriohooho as additional members

This was an application under s30/1993 to determine, between two competing groups, the appropriate representatives of Ngati Toa Rangatira to receive certain fisheries quota, consult with the Malborough District Council on various matters and negotiate with the Crown concerning the disposal of surplus Crown lands in the South Island. A runanga based in the North Island (Te Runanga O Toa Rangatira Inc) claimed to represent all Ngati Toa and stressed continuity with the past tradition of acceptance of North Island leadership. A South Island trust (Ngati Toa Rangatira Manawhenua ki te Tauihu Trust) claimed to represent Ngati Toa of the northern South Island (Wairau) region, arguing that a separate identity for southern Ngai Tahu had developed over time. Held: neither body adequately represented Ngati Toa in traditional terms. Both were of relatively recent creation, and the South Island trust represented a community of interests, but not a traditional authority. A representative body of kaumatua (elders) were the only appropriate representatives for the present. Accordingly, the hearing was adjourned to allow the selection of kaumatua rangatira of Ngati Toa, not currently holding office in either body, 5 from the North Island and 2 from the South, with terms of appointment limited by the court to three years.

It was also noted that mana moana is not a concept from tikanga Maori but is a construct "rooted in greed and ignorance" arising from contemporary fisheries settlements. Mana whenua in Tainui tikanga (different meanings might apply for other iwi) refers to "mana-o-te-whenua", a "traditional veto mechanism" whereby owners gave authority to the Maori King to veto all offers to purchase the land. Also held that, in accordance with s66(1)(a)/1993, marae kawa should be followed and whakapapa should not be read out before the court.

[ed: on the basis of this and the Tararua decision (138 Napier MB 85, 1 November 1994 see MLR November 1994), where there is conflict over representation, the court seems to be wary of recently formed organisations lacking kaumatua involvement. The comments on mana whenua and, more particularly, mana moana, which seem to attack the heart of the proposed distribution scheme for the fisheries settlement assets, will almost certainly generate further discussion. The decision also made critical comments on the partiality and conduct of a key witness (whether these will be challenged remains to be seen).]

 

 

In Re Karu O Te Whenua B2B5B1 Block

108 Otorohanga MB 227, 21 November 1994. GD Carter J

This concerned an application for confirmation of a resolution to sell a block which was objected to by minority shareholders on several grounds.

Held: the right of first refusal under s152/1993 (and s147(2)) refers to the whole of the land subject to an application for confirmation. In this instance it did not provide an opportunity for dissenting owners to have first preference to buy individual shares of other owners. The court also noted that if a partition is sought solely to allow a sale of shares this might be argued not to have the objective of facilitating the effective operation, development and utilisation of Maori land as required by the 1993 Act. However, if dissenting owners to a sale seek a partition to retain land then ss2 (promoting retention of land in Maori hands) and 17 (protection of minority interests) apply, and a partition order may be appropriate.

 

 

In Re Oparau No 1 Block

76 Waikato MB 210, November 1994. GD Carter J

A major shareholder in a block of land administered as an ahu whenua (formerly s438) trust, because of personal financial difficulties, entered into an agreement to sell his shareholding to 2 minor shareholders in the block at a price below the market value. The shareholder died shortly after entering the agreement. The minor shareholders sought a vesting order under s164/1993, which was opposed by the trust and other parties.

Held: under the 1953 precursor to s164 (s213(7)), the court had allowed an alienor to withdraw at any time prior to a vesting order being made (see In Re Tikouma 3B2 Whareraumati Development Ltd v Ruha and Ors (1975) 14 Waikato-Maniapoto ACMB 362, Tai Whati p171). Consent at the time of hearing (not at the time of making the agreement) is assessed. Other owners have the right to object to the order (s164(8)). Section 164(7), which provides that where a party to an agreement has died the court must be satisfied a "proper agreement" was reached before death, is new in the 1993 Act. This can include consideration of extrinsic circumstances relevant to the agreement. The section does not necessarily pass the right of withdrawal of the deceased alienor to their successor, but where questions of adequacy of consideration arise, the views of any successor on the agreement may be taken into account by the court. Because adequacy of consideration was in issue in this case the consent of any successor would be required. Successors had not yet been determined. The court questioned whether a codicil concerning the deceased's Maori land interests made after the 1993 Act came into effect could be affected by s108 (land to be left to certain preferred classes only), where the will itself, being executed earlier in time, was not subject to that section.

As to whether under s152 consideration was adequate - although the price was low, the deceased had legal advice and had not rushed into the sale. Noted that generally parties without a pecuniary interest in a sale may not oppose it for inadequacy of consideration. However, having regard to broader factors, in particular the Preamble and s2/1993 which suggest group interests in Maori land should be promoted over individual interests, no vesting order should be made if the trust was willing to purchase the shares at the price the deceased had agreed with the minority shareholders.

 

 

In Re Mahimahi E5

(1994) 4 Tokerau ACMB 51, 13 December 1994. Deputy Chief Judge Smith, Marumaru J, McHugh J

The appellant had filed an application under s240/1993 seeking the removal of 2 trustees for alleged mismanagement of a section 438 trust in which he was a trustee. A "mirror" application under the same section was filed by the 2 trustees named in the first application, seeking removal of all trustees except themselves. After a hearing and discussions in chambers the court noted that both s240 applications were dismissed by agreement. The appellant wrote to the court arguing that he had not agreed to the dismissal of his application. The Deputy Registrar advised that the dismissal could either be appealed, or the court would accept a fresh application. A fresh application was filed. After a brief hearing at which neither party appeared the court dismissed the fresh application saying the matter had already been dealt with and was res judicata. The appellant brought the present action arguing that the first dismissal was made without jurisdiction, and the second dismissal was in breach of natural justice and court rules and a wrong use of the res judicata doctrine. Held: as to the first dismissal, although this had been made after a chambers conference, there had been a hearing, the court was prepared to hear the matter further, and s17(2)(c)/1993 (court to facilitate settlement of disputes) and s66(2)/1993 (avoidance of undue formality) indicate that promoting resolutions through discussion between parties is desirable, and rule 42(5) (MLC Rules 1994/35), which gives an unfettered discretion to dismiss, could be invoked in the circumstances (there being no specific rule for discontinuance of actions as in the High Court). Noted, but not decided, that rule 70 might also be invoked where parties consent to a dismissal, since this might amount to "want of proper jurisdiction" which that rule specifies. Noted that the court could have adjourned rather than dismissed the applications and later cleared them from the court record using rules 79 or 38. The dismissal by the court could not be attacked for failure to consider the seriousness of the allegations made since there had been consent from both sides. Noted however that it is useful if the lower court records under what provision dismissal is made.

As to the second dismissal, this had been wrongly made without notice to the parties as required by MLC rules. The lower court should have treated the appellant's letter to the Deputy Registrar as an application for rehearing under s43/1993 and rule 71.

 

 

Waitangi Tribunal

Allocation of Fisheries Settlement Assets

Wai 447. Filed on 8 December 1994

The claim is by Rima Edwards and others and groups including Te Runanga o Muriwhenua, Te Runanga-a-Iwi O Nga Puhi, Tainui Waka Fisheries, Ngati Ranginui Iwi Society Inc, Te Kotahitanga-o-Te Arawa. It alleges that the Treaty of Waitangi Fisheries Commission has promoted the final allocation of fisheries assets and in particular pre-settlement assets without considering at all or adequately the matters prerequisite to such a decision including:

- Identifying the persons or groups beneficially entitled - in particular, how persons from the 1991 census claiming to be Maori, but not identifying a tribal affiliation, should be provided for;

- Whether Treaty grievances of such beneficiaries will best be addressed by final allocation or delayed allocation or no decision to allocate for now;

- Using a model substantially based on mana moana, which is "manifestly not a tradition based concept", and which ignores "large populations of northern tribes whose rights to develop extend to exploitation of the deep fishery to a substantial degree in order to provide for their populations". - Failure to have sufficient regard to the Waitangi Tribunal Fisheries Settlement report, Wai 307.

It is also alleged that the commission has been biased in promoting one model to the exclusion of others, and if not topped will exacerbate Treaty breaches supposed to have been settled by the fisheries agreement and legislation, and those aggrieved will have no recourse against the Crown. The claimants seek findings that the mana moana concept and the consultation process adopted by the commission are not in accordance with principles of the Treaty. They ask that the Crown in consultation with Maori and pursuant to guidelines recommended by the tribunal appoint a royal or other commission or other body to inquire into these matters and that in the meantime no allocation should take place.

[ed: The tribunal, after a preliminary hearing, is preparing a decision on whether it has jurisdiction to hear the claim, in particular, whether any actions of the commission are actions of the Crown, whether the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 prevents the tribunal from hearing the claim, and whether an alternative remedy exists in proceedings before the High Court. In addition to this claim, there are now at least 3 actions in the High Court concerning allocation by the commission, with the possibility of more being added. These are:

- Hauraki interests seek a case stated from the High Court to the Maori Appellate Court to rule on tikanga (customary) issues along part of their coastline disputed with Tainui (Hauraki Maori Trust Board & Anor v ToW Fisheries Commission CP 562/94);

- A Te Arawa group which has already obtained a case stated on tikanga issues from the High Court to the Appellate Court, now faces an injunctive action in the High Court to prevent the Appellate Court proceeding (Te Waka Hi Ika o Te Arawa v ToW Fisheries Commission CP 395/93);

- Muriwhenua interests seek to challenge the consultative process by which the commission is determining which allocation model to follow (Te Runanga o Muriwhenua & ors v ToW Fisheries CommissionM 1514/94);

Counsel instructed by 6 commissioners has informed the High Court that they may become involved in proceedings because of concerns about the legality of commission decisions, particularly in terms of consultative processes, and possible inconsistency with principles of the Treaty (Conference minute 9 December 1994, Anderson J, High Court Auckland). The commission does not now expect to report its final allocation model to the Minister of Fisheries until mid June 1995, depending on progress with litigation (letter to iwi 10 January 1995).]

 

Other Jurisdictions

Atawhai Taiaroa and others v Minister of Justice and others

CA 201/94, 23 December 1994. Cooke P, Richardson J, Casey J, Hardie Boys J, Gault J, McKay J, Sir Gordon Bisson

An appeal from the judgment of McGechan J in the High Court dismissing an application challenging the lawfulness of the conduct of the Maori electoral option (Atawhai Taiaroa and others CP 99/94, 4 October 1994, reviewed in MLR October 1994).

Held: the appeal should be dismissed. Criticisms of the flawed postal delivery of option forms, and the content of explanatory material, were "hypercritical". Reasonable steps were taken to notify the option to Maori voters already on the electoral rolls. As to Maori voters not enroled, such an important option, affecting the constitution of the state, of itself gives rise to an implication that reasonable notice of the option must be given, regardless of the Treaty of Waitangi and any special obligations to Maori. Special obligations are relevant however in determining what is reasonable, given the position of Maori in NZ society and the unsatisfactory Maori enrolment numbers. Overall, depite some problems, the option did receive considerable publicity, and Maori enrolments increased significantly during publicity campaigns leading up to and during the option period. While what was done was "far from perfect", it passed the test of reasonableness.

[ed: the decision was a unanimous one of the full bench of the court. Nevertheless, an application for leave to appeal to the Privy Council has been filed by the appellants]

 

 

Davis and another v Morgan and another

M 51/94 High Court Whangarei, 21 November 1994. Barker J

An application to the MLC to confirm a transfer of land was challenged on the basis of certain alleged irregularities. Concurrent proceedings alleging forgery, conflict of interest of the solicitor involved, inadequate consideration and other matters were commenced in the High Court. The MLC adjourned its proceedings pending the High Court determination (quite rightly in the High Court's view), and questioned whether it had jurisdiction to determine issues such as forgery and conflict of interest within the context of an application for confirmation. The High Court was asked to determine whether the MLC had jurisdiction to consider the same equitable issues raised before the High Court, and grant appropriate relief, in which case a stay of proceedings in the High Court was sought pending an MLC determination.

Held: s18(1)/1993 providing for the MLC to hear and determine claims at law or equity to the ownership of Maori land confers sufficient equitable jurisdiction for the MLC to consider the matters at issue, although such jurisdiction is not mentioned in s227(1)/1953 or s152(1)/1993 (virtually identical provisions dealing with applications for confirmation). Where there are two proceedings in different courts, one should be stayed (Railex Services Ltd v Chemoil Machinery Ltd A1220/85, 20 December 1985, Auckland registry, referred to). It would be "sensible" for the MLC proceedings to continue because of its expertise, the limited means of the parties, and procedural efficiency (the matter would have to go back to the MLC anyway if the defendants succeeded before the High Court).

 

 

Proprietors of Mawhera and another v The Maori Land Court and another

CP 173/92 High Court Christchurch, 19 December 1994. Tipping J

The Mawhera incorporation sought judicial review of comments by the Maori Land Court that land sales and purchases by the incorporation might be ultra vires the law governing the corporation's activities. Arising from the same judgment, a former chair of the incorporation applied for certiorari and the striking out of comments derogatory of him. Held: the privative section 64/1953 (orders and proceedings of the MLC not removable to the High Court) does not prevent High Court consideration of ultra vires proceedings of the MLC (Anisminic Ltd [1969] 2 AC 147, Bulk Gas Users [1983] NZLR 129 and other relevant cases on privative clauses considered). In principle, and subject to the discretion of the court, comments by a court about a person ought to be reviewable even if comments (as opposed to orders or determinations) do not fall easily within the normal requirements for judicial review, certiorari or declaration. The comments in this case were made in breach of procedural fairness and were therefore ultra vires. The MLC was wrong to rule that sales of land by the incorporation were ultra vires, the incorporation having power to do so either under s48(1)/1967 which gives the power to sell land without the need for this power to be specified as an object of the incorporation (Ngati Whakaue Tribal Lands v Rotorua District Council M436/80, 11 February 1982 distinguished), or by an order listing land selling as a specific object which had here been validly made under ss27 and 28/1967. The MLC was however correct in its view that, in the case of purchase, any purchases must beincidental to lawful independent objects (eg farming) of the incorporation. Section 50/1967 providing for the purchase of lands does not, in similar terms to s48, provide that purchases may be made even though this activity is not specified as an object. Sections 27 and 28 which provide for amendments to objects do not allow an amendment to make land purchase an object. Orders amending the incorporation objects under ss27 and 28 which purported to make land purchasing an object were therefore ultra vires.

[ed: the determination that the purchasing powers of an incorporation may be limited will probably have little practical impact since the 1993 Act provides incorporations with very broad powers to enter into transactions, and pre-existing incorporations may broaden their objects on application to the court after a general meeting of shareholders - ss253(a) and 358A. It was noted in this case that a s452/1953 (now s44/1993) application to have the Chief Judge of the MLC review the MLC decision was not pursued because the solicitor for one of the parties was the Chief Judge's wife. Because of work in the Waitangi Tribunal, the Chief Judge has delegated the hearing of s44 applications and many other MLC matters to the Deputy Chief Judge under s8/1993 - see Memorandum 7 June 1994. [1994] Chief Judge's MB 231]

 

 

Ngai Tahu Maori Trust Board & ors v D-G of Conservation & ors

CP 841/92 High Court Wellington, 23 December 1994. Neazor J

The applicants, including 2 companies, who held permits under the Marine Mammals Protection Act 1978 to take tourists by boat to observe whales at close quarters, challenged the proposed issue by the D-G of a further permit for whale watching, and the issuing of a permit allegedly in breach of an interim order of the court when these proceedings were first brought. The applicants, representing Ngai Tahu people who are tangata whenua of the region, argued that the Treaty of Waitangi was relevant to the D-G's decision in that he should have regard to the likely economic impact on them, and that they had a legitimate expectation that no further permits would be issued until they had had sufficient time to repay capital development costs of their commercial whale watching enterprises.

Held: the Treaty is not legally enforceable except insofar as it is incorporated into municipal law by statute (Hoani Te Heuheu Tukino [1941] AC 308 followed), and a comment of the Privy Council in the recent Maori broadcasting case (NZ Maori Council v A-G [1994] 1 NZLR 513) that this was only "normally" the case did not affect that position. Although s4 of the Conservation Act 1987 requires that that Act be interpreted and administered so as to give effect to the principles of the Treaty, and the Marine Mammals Protection Act 1978 is, by inclusion in a schedule to the Conservation Act, administered under it, s4 was not thereby imported into the 1978 Act. The D-G was required only to administer the 1978 Act in accordance with the principles of the Treaty, which meant consulting if a particular Maori claim arose, but otherwise, in his substantive decision, he might only take into account matters in the 1978 Act (which made no mention of the Treaty or Maori issues). Nor did the evidence show that Ngai Tahu had historically exercised a right to the catching of large whales in this region (Kaikoura) which the Treaty would have protected (Waitangi Tribunal Muriwhenua Fishing and Ngai Tahu Sea Fisheries reports referred to). A claim to a right based on aboriginal title also failed, the historical evidence did not support it, and access to the resource was now wholly governed by the 1978 Act (without however necessarily extinguishing any aboriginal right). Noted that there may be a question whether a company under the Companies Act (2 of the applicants in this case) can claim rights for Maori under the Treaty or aboriginal title - but this was not contested by any party.

The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, preventing future claims to commercial fisheries, was not relevant, because it concerned mammals andnot fish. The argument that there was a legitimate expectation based on Treaty principles also failed. With regard to the permit issued without consultation while the interim order was in force, the consultative process was flawed and Ngai Tahu interests should be consulted when the permit came up for renewal in a few months. Consultation should not just be on "major issues" as the D-G contended, but should occur "when a reasonable partner would consult."

[ed: the judgment seems to require that in some situations the D-G must consult and note Maori concerns even where he is unable to take them into account in a final decision. This places the D-G and Maori in a difficult position, and may encourage cynicism about the consultation process. Perhaps some clarification by Parliament is required]

 

Worldwide Leisure Ltd & Ngati Rauhoto v Symphony Group Ltd & Taupo District Council

M No 1128/94 High Court Auckland, 22 November 1994. Cartwright J

Review was sought by a private tourist company and Ngati Rauhoto of a district council decision not to notify an application for a resource consent for a tourism development on the banks of the Waikato river. The council made the decision under s94 Resource Management Act 1991 believing that any adverse effect on the environment would be minor and that it had adequate information of concerns of any affected groups, including Ngati Rauhoto. Ngati Rauhoto alleged that a sacred spring would be affected by the development (of which the council was aware, although its location had not been precisely ascertained at the time of hearing). Held: following the general approach to judicial review, the court will intervene where effectively no weight has been given to a relevant factor or it has been ignored, but not where there are merely opposing views. The tourist company action failed, but Ngati Rauhoto had not had the opportunity to pinpoint the spring site or discuss concerns about the impact of the development on the mauri of the river. This failure to adequately consult was unreasonable and written consent would be required under s94, or failing this, public notification.

 

 

Brown and others v Pourau and others

CP 53/88 High Court Hamilton, 23 November 1994. Hammond J

A kuia (elderly Maori woman) with a large immediate family had, by will, left the property lived on by the family absolutely to her eldest child. This child in turn left the property absolutely to her son who wished to sell it outside the family. The children of the kuia challenged probate of her will, arguing that she had lacked testamentary capacity, or that the absolute bequest to the eldest child was impressed with a secret trust "for the family" The land was general land, not Maori land. Held: it was accepted that key institutions of Maori culture were associated with the property, including birth of the children on it and burial of the pito (afterbirth), the holding of tangihanga (funerals) there; and the property was regarded as turangawaewae (lit. a "place to stand"). Although the kuia was a noted "spiritualist" who would sometimes be in a trancelike state called "wairangi", neither this (which was episodic only) nor her failing eyesight had affected her testamentary capacity. Nor had a secret trust (a form of constructive trust) for the family been established on the balance of probabilities. The evidence, including a failed application to have the land declared a s439 papakainga reservation, supported the existence of a moral obligation only with regard to the family. Cases regarding testamentary capacity and secret trusts were fully discussed. The existence of ohaki, a form of oral will, was noted. It was also noted that under s145/1953 the Maori Land Court had vested the land absolutely in the kuia even though her husband had left it to her in trust for the family. This aspect was not however challenged. Mot of the children had consented to the vesting order.

 

 

Registrar-General of Land v Marshall

AP 30/94 High Court Hamilton, 19 December 1994. Hammond J

A District Land Registrar accepted a transfer of Maori land and registered it without it having been produced to the Maori Land Court for noting and endorsement as required by s83/1967. The respondent in this case, who was noted as the owner in land transfer records, was challenged by the Maori owners recorded in MLC records. The respondent also faced problems obtaining finance from the Maori Affairs Department to use the land as security because of the state of the title. He applied to the MLC for a ruling as to ownership. The MLC found in his favour. The respondent claimed against the DLR the cost of proceedings before the MLC and was awarded part costs in the District Court. That decision was appealed.

Held: despite an assurance from the DLR that he had an indefeasible title (Housing Corporation of NZ v Maori Trustee [1988] 2 NZLR 662 confirms that failure to comply with noting requirements in the MLC does not affect a registered title), the respondent was entitled to compensation under s172 Land Transfer Act 1952 because he had suffered loss through an omission of the DLR, even though that loss was not deprivation of any estate or interest in land (the policy principles behind the insurance provided by s172 were discussed). Even if a solicitor has been negligent in seeking an endorsement from the MLC before applying for registration, a responsibility remains on the DLR, where he is aware that the land is Maori land, to check that all laws have been complied with (reg 16 Land Transfer Regulations 1966). No policy reason existed to restrict liability of the DLR, since DLRs are aware that MLC records are extensively used by Maori people and the (former) Maori Affairs Department. The lower court had been correct however to apportion liability for contributory negligence by the solicitor who had sought registration of the transfer, since the heaviest responsibility lay there. The comments of the MAC in Pakiri R Block (Case Stated 1/93, 23 March 1993 see MLR April 1994) that there may be a "cavalier" attitude to MLC noting requirements were noted.

[ed: if there is a "cavalier" approach to noting requirements, it will no doubt be tempered in future by the knowledge that there may be financial repercussions for DLRs in some cases. His Honour several times reiterated the policy importance of the indefeasibility principle remaining paramount. Yet the MAC in Pakiri R queried whether registration requirements of Te Ture Whenua Maori 1993 may in certain cases affect that principle.]

 

General

Crown Proposals for the Settlement of Treaty of Waitangi Claims

8 December 1994. Office of Treaty Settlements, Department of Justice

A "Settlement Envelope" totalling $1000 million will be set aside over "about" a 10 year period to settle all "historical" claims, ie, claims about Crown actions prior to 21 September 1992 (the date on which Cabinet agreed certain principles for settling claims, and two days before the Sealord Settlement was signed). The amount in the envelope is not negotiable, although the concept of the envelope is. Some expenditure already incurred in settling claims will be deducted from the envelope (including $170 million for the Sealord Settlement but not including research funding from the Waitangi Tribunal or Crown Forestry Rental Trust). Maori do not have to accept the envelope concept to enter negotiations (although they will be bound by it). As the envelope is used, the residual amount will be updated by the Consumer Price Index. Current programmes for Maori development generally ("article II" expenditure) are not affected. The current land bank system managed by DOSLI for surplus Crown lands is continued and falls within the envelope policy.

Settling particular types of claims

Conservation estate: this includes all lands administered by the Department of Conservation. Because of the public interest in them, they will be used only sparingly in settlements, and current levels of management and access retained. Properties which might be returned include waahi tapu, other sites of special importance (certain lake and river beds and mountains) and other "discrete parcels". Consultation with conservation groups will proceed on a case by case basis. Natural resource claims: the Crown will admit only claims to use rights (not ownership rights) and "cultural and spiritual values" in "natural resources" (ie natural resources other than land). Further, claims concerning the use of resources "substantially unknown or unused" at 1840 will not be admitted by the Crown.

Gifted lands: lands gifted by Maori to the Crown, or where the Crown arranged a gift to a third party (often for schools) will be specially considered, and Maori conceptions of gifting will be taken into account. Claims to gifted lands where current legal obligations (eg Public Works Act procedures) or common law obligations apply will be dealt with outside Waitangi Tribunal procedures.

The Negotiations Process

Revised negotiations procedure: a "Negotiations Work Programme" would modify the current process, placing greater emphasis on the work needing to be done before a claim is accepted for negotiation, so that, once accepted, settlement quickly follows. Claims must be fully researched and proved before they will be accepted onto the work programme. Even if the Waitangi Tribunal believes a claim is well-founded, the Crown will develop its own view. Claimant representation: claimants will be required to present a "deed of mandate" before negotiations commence. A proposed law change would allow the Waitangi Tribunal to decline to hear claims where a sufficient mandate was lacking.

Ensuring finality: the deed of mandate would be publicly notified to help define the beneficiaries of a claim settlement. Where there is substantial disagreement, either the Waitangi Tribunal or the Maori Land Court would assist in resolving the issue. Claimant groups would also be asked to formally endorse the legal body receiving settlement assets. This endorsement would set out how the legal body will be structured to ensure settlement benefits are properly distributed. The jurisdiction of the Waitangi Tribunal and the courts to consider claims would be gradually wound back as settlements are concluded. Views are also sought on changes to the current system of memorials on Crown forest lands and assets transferred to State-owned enterprises which hold those lands for future settlements. The government would like these memorials removed before final settlements are reached. A law change is also proposed to provide that the Tribunal not hear claims settled since September 1992.

Consultation over the proposals

A series of regional hui will be held, followed by a national hui in April 1995. There is no structured negotiation with non-Maori groups, but submissions may be made until 19 May 1995. Beyond that, no process is outlined.

[ed: this envelope proposal was foreshadowed in the Sealord fisheries settlement. Exactly how its size was determined is, perhaps understandably, not stated (the documents make only general comments on this point). No cut off date for lodging claims has been set, but the Crown seeks submissions on this issue. June 1996 had been proposed, but is now considered unrealistic.

The Crown has presented only proposals and not firm policy (the size of the envelope is not debatable - but the concept is!). This might preven claims about the proposals being considered by the Waitangi Tribunal (claims must be about "policies" not proposals).

The revised negotiations process, requiring claims to be better proven before negotiations even start, may improve on the present situation, where claimants can undertake years of negotiation before knowing if their claim has been accepted as valid. However, a greater load would be placed on the claimants to organise and research claims before coming to the Crown - they must also establish their "deed of mandate", in itself a difficult task. There is a further hurdle in the suggestion that, even where the Waitangi Tribunal has heard and reported on a claim, the Crown will form its own opinion of how well-founded the claim is. This sounds remarkably like the Crown judging its own case. What purpose then, does a tribunal report serve?

Statements about claims concerning ownership of "natural resources" are controversial. In ruling out some of these claims, the Government is relying on a brief comment of the Court of Appeal in Te Runanga o Te Ikawhenua v A-G (CA 124/93, 17 December 1993) to the effect that Maori cannot make claims concerning electricity generation because they did not contemplate this use of water in 1840. The Court of Appeal may not have intended its comment to be read so broadly, and may have different views for different resources. Conservation groups may be disappointed that consultation with them remains ad hoc. The many suggestions on this aspect in the Parliamentary Commissioner's recent report on consultation, Environmental Information and the Adequacy of Treaty Settlement Procedures, seem to have been overlooked]

 

 

 

Heads of Agreement between HM the Queen and RTK Mahuta and the Tainui Maori Trust Board and others

21 December 1994. Office of Treaty Settlements, Department of Justice.

This document, signed by Tainui claimants and the Crown, records on a without prejudice basis matters agreed in principle to be contained in a later deed of settlement. No legal obligations between the parties or affecting any third party are created. Legislation will be required to give effect to the settlement. The agreement records that, among other things, the deed of settlement will contain:

- A public apology from the Crown for confiscating Waikato-Tainui land, and an estimate of the claimants that the raupatu (confiscated) lands have a minimum modern value of $12 billion.

- Confirmation of the return of the Te Rapa Air Force Base (value $4.123 million)

- Provision for the transfer, within 5 years, of 35,787 acres Crown controlled properties (of which 33,984 acres will be transferred without improvements). If the Crown elects, commercial leases in favour of the Crown will be negotiated over lands before they are transferred. The lands will have a market valuation. The Crown and claimants reserve rights, after consultation, to change lands offered or accepted in the package. On transfer, the lands will be held in the name of Potatau Te Wherowhero (the first Maori King) for the benefit of Waikato-Tainui people.

- Transfer of the rentals accumulated from forestry licences granted over the Maramarua and Onewhero forests under the Crown Forest Assets Act 1989. This will be achieved by a joint application to the Waitangi Tribunal, which will have to rule on a competing claim to the Maramarua forest by the Hauraki Maori Trust Board (Wai 373). The land in these forests is included in the 35,787 acres to be transferred to the claimants

- Reimbursement of $750,000 costs for research and negotiation of the claim

- The establishment of a land acquisition trust fund of $170 million, minus the value of lands transferred, and the $750,000 reimbursement of costs. Trustees will be appointed by the claimants after consultation with the Crown, capital and income are to be applied to acquisition of further land and improvements, including land for endowed colleges and provision of educational facilities, grants or scholarships

- An acknowledgement that the Treaty of Waitangi and its articles are not affected by the settlement and that an ongoing relationship in Treaty terms will continue to exist. Claims to the Waikato river and West Coast harbours will also remain unaffected.

The agreement notes that legislation will be required to implement the settlement to provide for the end of the scheme of resumptive clauses on the titles of state enterprise and former state enterprise lands in the claim area, the end of the scheme for returning forest lands under the Crown Forest Assets Act 1989 in the claim area, the end of annual payments to the Tainui Trust Board, and provision for the Head of Kahui Ariki recognised by the Tainui tribes (or nominee) to be a permanent member of any conservation board in the claim area, as well as "other provisions to achieve certainty, finality and durability" of the settlement.

Tainui in exchange will give up within the claim area (excluding the Waikato River and East Coast harbours), all claims concerning confiscation, claims to lands under the state enterprises and Crown forest resumptive schemes, claims to any minerals and forests and claims to 47,000 acres of land administered by the Department of Conservation (this last relinquishment is said to be a "free gift" from Tainui to the nation).

The agreement may be reviewed by the parties and terminated if they have not entered into a deed of settlement within 6 months. The claimants undertake to provide a deed of mandate authorising them to sign the deed of settlement. Finally, the agreement notes that the Waikato-Tainui confiscation was the largest by area, and that the redress outlined represents 17% of the total redress available to settle all historical claims (including the existing fisheries settlement) and "approximately 20% of the redress for all claims" excluding the fisheries claims.

[ed: in whatever terms it is measured, this is surely the largest offer ever made to settle a claim with a single iwi. There is much to be done before it is finalised. Many properties to be returned are subject to the "offer back" provisions of public works legislation, which have to run their course before the land is free for return. The claimants face hard a task of first achieving a deed of mandate, then ensuring that groups outside and within Tainui will live with the settlement. The Crown proposal, contained in its broad settlement package, to give the Waitangi Tribunal jurisdiction to "screen out" unrepresentative groups who make claims, may soon be required by these Tainui claimants. It is well known that "full and final" settlements in the past have failed to live up to their promise. This proposed settlement follows that same path and contains no provision for ongoing review. Perhaps the Crown is hoping this time that the scale of the redress and the ongoing activities of the land acquisition fund (which may have up to $65 million to work with) will prevent an erosion of the value of the settlement in years to come]

 

 

Te Tau O Te Reo Maori - Year of Maori Language

Te Taura Whiri i Te Reo Maori (Maori Language Commission)

This was launched on 13 December 1994 as He Taonga te Reo - 1995 A Celebration of Maori Language. Patrons of the year will be Dame Te Atairangi Kaahu and Sir Paul Reeves. With the help of corporate sponsorship (including TVNZ), activities will include a Pacific languages conference, a national Maori language survey, media events and the production of educational resources. MP Koro Wetere has promised more questions in Maori in Parliament. Each session will open with a prayer in Maori. For MPs, correct pronunciation will be encouraged.

 

 

 

Launch of the Decade of the World's Indigenous People

hrdesk@igc.apc.org

The decade (1995-2004) was launched on 8 December 1994, at a special ceremony in the UN General Assembly. Indigenous representatives of six different regions of the world (Arctic, NorthAmerica, Latin America, Asia, Pacific and Africa) addressed the meeting. Under the theme "Indigenous people: a new relationship - partnership in action", the decade is intended to be a time for the UN, governments and other organisations "to give priority to the new role of indigenous people as decision makers and beneficiaries of national, regional and international development activities" and to "commit themselves fully to promoting and protecting the human rights of indigenous people, reflecting those concerns in relevant programmes and activities." The full participation of indigenous people in the planning, implementation and evaluation of development activities affecting their lives should be the basis of this partnership. This decade arises from a UN resolution adopted in 1993 (48/163, 21 December), the International Year for the World's Indigenous People. One initiative is a proposal that 9 August each year be declared the International Day of Indigenous People. NZ lawyer Donna Hall, speaking for the NZ Maori Congress at the 8 December launch, commented on Maori disappointment over resourcing of the electoral option process, policy making about the settlement of claims without early Maori input, and inadequate facilities for Maori to independently prepare and debate policy. She urged the establishment of international standards so that the commitment of the state and indigenous peoples to each other can be fully and visibly debated.

 

 

Indigenous Claims and the Process of Negotiation and Settlement in Countries with Jurisdictions and Populations Comparable to New Zealand's

Background report for Environmental Information and the Adequacy of Treaty Settlement Procedures. Caren Wickcliffe. Office of the Parliamentary Commissioner for the Environment. September 1994

A 115 page report examining claims settlement procedures in Australia, Canada and the United States, from which Canada emerges as the nation "the most advanced in terms of developing a well-structured and open consensus negotiation and settlement process." The author suggests that the resolution of all outstanding claims in NZ will be assisted by the avoidance of national generic settlements, instead seeking "consensus" settlements taking early account of all affected interests, better addressing (following Canadian experience) of representation and self government issues, acknowledgement of indigenous ownership of claimed natural resources (a feature in all 3 countries examined), giving priority of rights to Maori over natural resources, and use of models of joint management over claimed natural resources.

[ed: This report is a useful and up to date summary, including for each country a brief summary of the constitutional background. Given that the title refers to "Populations Comparable to NZ" a quick description and census of the indigenous populations affected in each country would be of interest for comparison purposes]

 

 

Case Law on Consultation. Case Law under the Resource Management Act 1991, regarding the issue of consultation with tangata whenua, to 30 November 1994. Working Paper 2.

Ministry for the Environment Manatu Mo Te Taiao. November 1994.

This is an internal working paper and concise summary of the present law, released by the ministry in the hope that it will be useful to practitioners. 21 pages.

 

 

Employment. Addressing New Zealand's Biggest Challenge: Proposals for Action.

Prime Ministerial Task Force on Employment November 1994

The Task Force came up with 120 proposals, many of which focus on Maori unemployment. It suggests that the major political parties sign an accord which would include the objective of agreeing, by mid-195, on a comprehensive strategy to eliminate Maori disadvantage in the labour market. The key structural change suggested is the appointment of Local Employment Commissioners to chair local action groups liaising with Maori and other groups to devise local solutions to unemployment. A National Employment Commissioner and National Action Group would focus on national policies. These would include removal of impediments to development of resources in the Maori Trust Boards Act 1955 and reserved lands legislation, providing targeted business advice to Maori (particularly Maori women), and the possible appointment of Maori Employment Commissioners. It is also proposed that the parents as first educators scheme be piloted in a Maori context immediately, and that more resources be provided for language at kohanga reo and kaupapa Maori levels, particularly through the provision of more teachers. The number of Maori career advisors in schools should be increased. Research should be undertaken on the reasons for the career choices of Maori youth (to be completed by August 1995).

 

 

He Putahitanga. A True Partnership

NZ Labour Party. 14 December 1994

This Maori policy framework from the opposition party proposes, among other things: a face to face campaign to ensure more Maori are enroled for the next Maori option, a return to the former policy of devolving resources to Maori groups, and the establishment of an independent Maori Development Commission to monitor the work of Te Puni Kokiri (Ministry of Maori Development) and recommend policy initiatives. The continuation of the present claims resolution processes is advocated, including more support for the Waitangi Tribunal and a rejection of the "fiscal envelope" approach, which it is said will pit Maori against Maori. Other suggestions include the establishment of a Maori Cultural Foundation to handle all funding of Maori arts, piloting of a scheme allowing income support payments to be made by Maori trusts to beneficiaries, an increase in resources to early childhood education, the establishment of a Maori Education Authority to promote Maori education, encouragement of Maori sport, encouraging the use by Maori of resources to develop small businesses, providing funding for community based employment enterprises (COMBEES), and a review by the Law Commission of all legislation to identify provisions potentially discriminatory against Maori

[ed: some of the ideas need further work. An independent Maori Development Commission seems like a sound idea, but, as proposed, it would double up on the monitoring role of Te Puni Kokiri, and having it serviced by Te Puni Kokiri while it monitors that organisation may not make for the most rigorous examination. Labour will be seeking comment on these proposals through hui and informal discussion on marae in the coming months, but no definite timetable is set]

 

 

 

"The Queen's sovereignty must be vindicated": The 1840 rule in the Maori Land Court

NZ Universities Law Review vol 16(2) December 1994 p136. Bryan D Gilling

This article examines the origin of the 1840 rule in policy statements prior to 1865, and its formulation in the Native Land Court and Compensation Court hearings of the 1860s, where maintenance of British rule (Pax Britannica) and administrative convenience (certainty for settler titles) were paramount considerations. It is argued that there was and is no legislative authority for the rule, legislation seems rather to have envisaged a case by case approach to determining Maori custom. The rule was in any event inconsistently defined and applied. Its application in various parts of the country is examined.

 

 

Taumauri. Waikato Law Review

Vol 2, 1994

This isue contains: "The Challenge of Treaty of Waitangi Jurisprudence" (p1) by the Rt Hon Sir Robin Cooke, "Maori Women: Caught in the Contradictions of the Colonised Reality" (p125) by Annie Mikaere, "A Fiscal Cap on a Full and Final Settlement of all Maori Claims is Illegal and Inappropriate" (p171) by Martin Williams.