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.