June 1995 Contents

The claim to the sea

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

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

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

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

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

 

Maori Land Court and Appellate Court

In Re Tataraakina C Block and Baker & Others

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

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

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

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

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

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

 

 

Mourea Papakainga 3D v The Maori Trustee

240 Rotorua MB 212, 26 May 1995. Savage J

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

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

 

Waitangi Tribunal

Ngati Awa and other Bay of Plenty claims

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

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

 

Other Jurisdictions

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

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

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

 

 

Greensill & Others v Tainui Maori Trust Board

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

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

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

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

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

 

 

Re Castle (deceased)

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

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

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

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

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

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

 

 

Hauraki Maori Trust Board & Anor v The TOKM & Ors

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

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

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

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

 

General

The Budget for the 1995-96 Financial Year

Minister of Finance. June 1995

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

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

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

 

 

Provision for Maori over the past 3 years and projected spending

Replies Supplement 20 June 1995

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

Agency                              Funding Per Year ($000)

                                    1995-96       1994-95   1993-94

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

Waitangi Tribunal                   3,348         3,408     2,546

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

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

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

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

 

 

Surplus Crown properties within Raupatu boundaries

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

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

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

 

 

Changes to Electricity Generation and Power Station Ownership

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

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

 

 

Reflections on the formal definitions of Maori

NZ Law Journal May 1995. Jeremy McGuire

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

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