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.
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).]
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  2 AC 147, Bulk Gas Users  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.  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  AC 308 followed), and a comment of the Privy Council in the recent Maori broadcasting case (NZ Maori Council v A-G  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  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.]
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
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.