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.]



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]

Annual index

Māori Law Review Index December 1994 to November 1995