July 1995 Contents

Māori Appellate Court

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

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

Māori Land Court

In Re Tararua District Council 138 Napier MB 104

Waitangi Tribunal

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

Resignation of Waitangi Tribunal member

Other Jurisdictions

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

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

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

General

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

Funding for the Settlement Envelope

Reserved lands policy, compensation considerations

Coromandel Hauraki Gulf (Prohibition on Mining) Bill

Judicial Attitudes to Family Property

Fisheries (Palliser Bay Taiapure) Order 1995

Maori Appellate Court

Cleave – Part Orokawa 3B (1995) 4 Taitokerau Appellate Court MB 95

In Re Maxwell and Maruata 2B2 Block

Appeal 1994/9, 16 September 1994. Hingston J (presiding), Carter J, McHugh J

Following a meeting called by the Maori Land Court of owners of land under a trust, the court gave orders replacing a trustee, but failed to give adequate notice to that trustee that the court might consider her replacement. Specifically:

- In making orders calling for a meeting of owners to review the trustees, the court did not indicate that replacement would be considered.

- The court had required personal service of notice of the meeting of owners to the affected trustee, but she had been served by ordinary post.

- In the hearing in chambers, following the meeting of owners which voted to replace the applicant as trustee, the court had given no notice that it would exercise jurisdiction under ss239-240 to remove a trustee.

Nor had the court stated by what authority it invoked its powers under ss239-240, since there was no application before the court in relation to those sections. The appellate court assumed s37(3)/1993 had been invoked which allows the MLC in the course of proceedings to exercise any other part of its jurisdiction of its own motion. However, if this approach was to be used, notice to affected persons was still required, Coates v Gillanders-Scott & Ors [1981] High Court Gisborne M45/78 applied.

[ed: although dated September 1994, this decision has only just come to hand.]

Māori Land Court

In Re Tararua District Council

138 Napier MB 104, 30 June 1995. Hingston J, H Hohepa, S Jones

In a decision of 1 October 1994 (see Maori LR Nov 1994 p2) the court recognised that both Ngati Kahungunu and Rangitane have interests in the Tararua district, and both groups should suggest names of persons for appointment under s30/1993, to represent them in resource management and other matters before the district council. The court here briefly noted that only Ngati Kahungunu had put forward names of representatives, and duly appointed those persons under s30/1993. Rangitane refused to abide the court directive of October 1994 and put no names forward. The court recorded its disappointment and granted leave for Rangitane to reconsider within 6 months. It noted that the Kahungunu appointees had Rangitane tatai or family connections and would be responsible for upholding the interests of all tangata whenua of the region. Their appointments were to be reviewed in 3 years.

[ed: from this decision it appears that in resource management and other matters covered by this application, the district council is, for now, legally obliged to consult only with the Kahungunu appointees.]

 

Waitangi Tribunal

Te Whanganui-A-Orotu Report 1995

Wai 55, 13 June 1995. WM Wilson (Presiding), MA Bennett, JH Ingram, MB Boyd, GM Te Heuheu

In November 1851, three hundred Maori signed a deed of sale with the Crown for land at Ahuriri for 1500 pounds. The key issue in this claim was whether that purchase had included the bed of the Whanganui-a- Orotu lagoon, a shallow area of water comprising about 9500 acres, and a rich source of food for local Maori. The lagoon s non-Maori name is the Napier Inner Harbour.

Letters of the land purchase officer, Donald McLean, and the missionary William Colenso, supported the view that the bed of the lagoon had been included, and Maori had sought to retain fishing and canoeing rights. Against this, there were oral comments by Maori, both before and after the purchase, recorded by European writers, that the lagoon had been excluded. The tribunal contrasted strong submissions from the claimants about the status of oral evidence with Crown arguments that oral evidence (as opposed to oral "traditions") should be tested as thoroughly as documentary evidence. The deed of purchase and a map accompanying it were also closely examined. The tribunal concluded that Maori had not intended that the bed of the lagoon be included in the sale and that the Crown had breached Treaty principles in not making it clear that it considered the bed was included in the purchase and in relying on legally ambiguous documents to assert its title.

In 1916, in the face of several Maori petitions, the Crown became hesitant about its title to the bed of the lagoon, admitting that the 1851 deed did not in words encompass the area (although it believed the plan did). It began to rely on the argument that, because it was an arm of the sea, the lagoon was in Crown ownership in 1851 by virtue of a common law presumption. The matter was referred to a judge of the land court for special inquiry in 1934. His report was not made public until 1948. He found that the greater part of the lagoon was not included in the purchase, but had insufficient evidence to decide whether it had been an arm of the sea or not. In 1949 the Crown informally offered 4500 acres to Maori to settle the claim. The offer was rejected as inadequate.

The tribunal found that physical evidence suggested the lagoon had probably been only partly an arm of the sea and thus a common law argument for prior Crown ownership failed. It also concluded that for the Crown to deprive Maori of a taonga by common law presumption was a breach of the Treaty principle to actively protect Maori in their property rights.

The Napier earthquake of February 1931 raised some 1406 acres of the lagoon bed. While there had been some reclamation prior to this, leading in 1861 to the first assertion by Maori to continued ownership of the bed of the lagoon, after 1931 reclamations commenced on a large scale. Maori however continued to use what waterways remained until the 1970s to collect an ever dwindling supply of sea food. It was noted that, even today, without constant pumping the uplifted area would revert to a shallow lagoon.

The reclamation works also involved the compulsory acquisition of former islands which had been reserved to Maori in the 1851 purchase. It appears no compensation was paid under the Public Works Act as no claim was made for it. The tribunal considered this was probably because Maori were at the time investigating other avenues to pursue their full claim to the bed of the lagoon.

The Ahuriri Farm settlement and Hawke s Bay airport had subsequently been established in the uplifted area. In 1986 the farm settlement land was divided between the Department of Conservation, which received environmentally sensitive areas, and Landcorp, which retained commercially viable farm areas. The Landcorp land is subject to memorials allowing the tribunal to make a binding recommendation for its return to Maori if a claim to it is judged to be well founded. Other areas of the former lagoon were under harbour board leases. Following local government reorganisation, empowering legislation was passed permitting the sale of those leases. Concern about these sales had led to the tribunal giving this claim an urgent hearing.

The tribunal examined the history of pollution of the lagoon and harbour from industrial and domestic sources and noted the effects on fisheries important to local Maori. It also examined environmental management, concluding that discussions in the 1970s over preserving the lagoon had taken place in a monocultural legal environment. The 1980s brought greater consultation with local Maori with the passing of the Environment and Resource Management Acts making specific reference to Maori issues, however the tribunal questioned whether the new structures adequately protected Treaty rights, and reiterated the finding of earlier reports (eg Ngawha Geothermal Resource Report 1993) that the Resource Management Act breaches the principles of the Treaty in failing to require decision makers to act in conformity with the Treaty.

The tribunal rejected an argument that the 1993 amendment to the Treaty of Waitangi Act 1975, preventing it from making recommendations for the return of private land, did not apply to claims, such as this one, lodged prior to the enactment of that amendment. It also noted that the port company and local authorities must be considered private landholders under that amendment.

Final recommendations await a further hearing later in the year, but the tribunal indicated that the Crown should not in the interim sell any lands within the 9500 acre former lagoon area, and should consider returning Landcorp and Crown properties in that area, and provide a fund for monetary compensation for past losses, including the compulsory acquisition of former islands. A fresh resource management regime for the area should be developed and legislative changes made to ensure there is conformity with Treaty principles in environmental decisionmaking and any future public works takings.

The report also dealt with submissions by Ngati Pahauwera, a local iwi which claimed overlapping interests in the lagoon. The tribunal noted that the group claimed occupation rights through whakapapa links to the Wai 55 claimants, rangatira rights (a Pahauwera rangatira was said to have signed the 1851 deed), rights through ahi ka and rohe definition, and through ringakaha (the argument being that Pahauwera helped defend the region against invaders, thus confirming their tangata whenua status). The tribunal rejected the claim, noting that while whakapapa links existed, they were not strong, and that Pahauwera names did not appear in the many petitions lodged about the lagoon. The tribunal considered any use Pahauwera made of the lagoon in the past depended on "whanaungatanga" rights, which are in the nature of a "licence to use" granted by the tangata whenua.

[ed: the tribunal found that the bed of the lagoon was definitely not sold. An alternative not developed in the report is that, even assuming the Crown did get the underlying title (and some evidence was noted for that point of view), the Crown agreed that substantial customary rights would continue, and subsequently took those rights without compensation. McLean stated at one point that he thought a clause retaining to Maori free access to the harbour was unnecessary in the deed because "they are in a treaty with the Crown". He admitted afterwards that Maori had been concerned to reserve fishing rights. These rights were the ones most consistently asserted by Maori both during and after the purchase.

The report confirms the trend for the tribunal to find that the Crown will be in breach of the principles of the Treaty where it relies on common law presumptions which deprive Maori, without compensation, of rights guaranteed under the Treaty of Waitangi.]

Resignation of Waitangi Tribunal member

Professor Sir Hugh Kawharu has resigned from the Waitangi Tribunal, for personal family reasons. He has been with the tribunal since 1987 and has been involved with Ngai Tahu, Ngawha and Rotorua Geothermal, Ngati Awa and Fisheries Settlement claims among others.

Other Jurisdictions

Jackson & Ors v A-G & Paraparaumu Airport Ltd & Ors

CP 149/95, High Court Wellington, 30 June 1995. Neazor J

The plaintiffs were some of the descendants of the original owners of the Paraparaumu airport lands, who had had their land taken by proclamation under public works legislation. They sought an injunction to prevent the transfer of the airport land by the Crown to a wholly Crown owned airport company (COAC). It was intended that shares in that airport company would be on-sold to another company which would run the airport. The Crown acknowledged that, because the land would continue to be used as an airport, it was using this mechanism to avoid s40 Public Works Act 1981 requiring an offer back at market value to descendants of the original owners when land is declared surplus and sold. The plaintiffs themselves were near to reaching an agreement with an unsuccessful tenderer for the airport company shares, which would have enabled the plaintiffs to buy back the land.

Held: an injunction would not be granted. The evidence was clear that the land would continue to be used as an airport. The court rejected as speculative the allegation that the company buying shares from the COAC would not continue to use the land as an airport. In any event, the Airport Authorities Act 1966 s3A(6A) provides that the COAC would hold the land as if it were the Crown for the purposes of offer back provisions of the Public Works Act. Accordingly, offer back requirements would be triggered if, while the COAC held the land, an attempt were made to dispose of it or other events occur where s40 would normally apply.

[ed: when questioned on the matter in the House the Hon Maurice Williamson commented: "The major portion of the aerodrome land was acquired for a public work between 1939 and 1954 under the Public Works Act 1928. Of the 15 blocks acquired, totalling approximately 130 hectares, one block of 34 hectares was acquired from the Maori Trustee. The 14 remaining blocks were in freehold title, some owners being Maori. .... The Ministry [of Transport] has had three meetings with representatives of former Maori freehold owners and explained fully the sales process and the continued protection of offer back rights. The Ministry therefore considers it did its best to settle the dispute with the former owners before the sale." Replies Supplement 11 July 1995 p37-38.

The Waitangi Tribunal has suggested takings of Maori freehold land for public works may be in breach of the Treaty unless stringent pre-taking criteria are followed for negotiation and investigation of alternatives (Te Maunga Railways Land Report 1994 and The Ngai Tahu Ancillary Claims Report 1995). It has suggested that the Public Works Act be amended to provide that actions taken under it must be in accord with the principles of the Treaty. The Government is currently preparing policy on this area.]

Te Waka Hi Ika O Te Arawa and Ors v TOKM & Ors

CP 395/93 and others, 30 June 1995. Conference minute of Anderson J

At this hearing the court made various housekeeping orders in relation to the fisheries litigation, and also ordered that the court would determine as a preliminary issue: "Is the Treaty of Waitangi Fisheries Commission, in the exercise of its power to allocate presettlement assets as set out in s9(2)(1) of the Maori Fisheries Act 1989 (as amended by s17(1) of the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992) required to allocate those presettlement assets solely to iwi and/or bodies representing iwi or groups of iwi?" This question arises because the "urban Maori" applicants (CP 122/95) argue that the assets should in some cases be allocated directly to persons or entities without tribal connection. Area One Consortium opposed a preliminary determination. The court recorded that while it will hear argument at this preliminary stage, it may still decide to defer a ruling to a later stage of the litigation.

The court noted, "it is now known publicly that certain parties to the litigation have been conferring with a view to reducing or avoiding litigation", and accordingly ordered that, apart from the question to be referred for preliminary determination, all other proceedings were to be suspended for 3 months, with leave to revisit the suspension if required.

[ed: the High Court is also presently hearing an application challenging the Waitangi Tribunal determination that it has power to hear claims in a similar vein, namely, that the principles of the Treaty of Waitangi have been and could be breached by the process of allocation adopted by the Commission (see Maori LR Feb 1995 p2).]

Paul v Whakatane District Council & Another

A12/95, 13 March 1995. Sheppard J, PA Catchpole, F Easdale

This was an appeal against a land-use consent granted by a local council for a bowling green. The appellant lived beside the affected land and complained there had been inadequate consultation with Maori because there had been no report on the relationship to the land of the particular hapu the appellant belonged to. This was despite the fact that the appellant was a member of the Ngati Awa Trust Board, and an environmental committee of that board had approved the proposal. The appellant claimed the environmental committee had given approval without going through the board as was required.

Held: the bowling club had consulted with the board. The fact that the environmental committee might have failed to report back to the board before stating it had no concerns about the proposal was an internal matter between the board and the committee. There was nothing to indicate that the local council should have had any reason to doubt the competence of the committee to comment on Maori concerns. In addition, the appellant had direct notice of the proposal and the opportunity to appear at the initial hearing of the application for the resource consent.

[ed: a trust board may not always be the appropriate body to consult, particularly where it provides representation for some limited purposes for otherwise strongly independent tribes or hapu. The Taranaki Maori Trust Board might be an example. Where relations between trust boards, runanga, iwi and hapu are undergoing change, the onus seems to be on local Maori to bring those changes and their implications for the consultation process clearly to the attention of consent authorities at an early stage in the consent process.]

General

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

Replies Supplement 11 July 1995 p45

Hon DAM Graham: The Deed of Settlement between Waikato-Tainui and the Crown provides .... that property allocated to be part of the settlement shall transfer subject to the provisions of section 40 of the Public Works Act 1981. Under the Public Works Act it is only if surplus land is not needed for another public work or for a land exchange under subsection 40(1), and if the Commissioner of Crown Lands considers subsection 40(2) is satisfied, that an offer back is made to the former owners or their successors.

However, the Waikato-Tainui Deed of Settlement provides that the transfer of land from ECNZ, and other State owned enterprises, to Waikato-Tainui pursuant to the recent Treaty claims settlement, will be treated, on passage of the enacting legislation, as if it were a transfer pursuant to a binding recommendation of the Waitangi Tribunal under section 8A(5) of the Treaty of Waitangi Act 1975. Therefore no offers back to former owners of State owned enterprise land are envisaged.

[ed: this may not be a straightforward issue, particularly as some persons who may have otherwise been entitled to a right of offer back may be Maori. However, it has been a matter of policy since 1988 (when the Treaty of Waitangi (State Enterprises) Act inserted s8A(5)/1975), that where the Waitangi Tribunal makes a recommendation that state-owned enterprise land be returned to Maori ownership, Public Works Act offer back provisions cease to apply.]

Funding for the Settlement Envelope

NZ Parliamentary debates 8 June 1995 p7194

Hon Winston Peters: How does the Prime Minister reconcile his statement about moving towards development [for Maori] when, since 1992, the Government has slashed funding for the Department of Maori Affairs by up to $200 million per annum, and now seeks to give back $1 billion over 10 years - which the Maori people can work out is the part they would have had, had they gone with the Department of Maori Affairs funding in the first place?

Rt Hon JB Bolger: It was when that member was the Minister of Maori Affairs that the structure of the old department of Maori Affairs, the Iwi Transition Authority, and all the rest, were amalgamated into Te Puni Kokiri. That is a smaller department, which is there primarily as an advisory body to ensure that other Government departments deliver services in a correct and proper manner.

Reserved lands policy, compensation considerations

Replies Supplement 11 July 1995

Hon John Luxton: As stated in the 1994 Government decisions booklet on Maori reserved lands, the issue of compensation to owners of reserved lands for past losses may be considered through the Treaty of Waitangi claims process. Accordingly, if any such compensation were to be made through this process, it would be charged against the settlement envelope. .... Compensation for claims relating to Maori reserved land will be considered, along with all other claims, in the context of the settlement envelope. Therefore the level of compensation will depend on a consideration of the individual merits of the claims and the amount available in the settlement envelope for such compensation.

Coromandel Hauraki Gulf (Prohibition on Mining) Bill

No 93/1995, private member bill. Judith Tizard

This bill, much debated in recent weeks, provides simply that "Notwithstanding anything to the contrary in any other enactment, no person shall mine for any mineral in the protected area", which means the Hauraki Islands, the Coromandel Ecological Region and the Hauraki, Waihi and Te Aroha Ecological Districts under the Conservation Act 1987. Coastal marine areas adjoining these lands are also included. Mining would include "minimum impact activities" such as exploration. Clause 8 provides that "Nothing in this Act shall affect or limit any claim submitted under the Treaty of Waitangi Act 1975."

Judicial Attitudes to Family Property

(1995) 25 VUWLR 31. Rt Hon Justice Hardie Boys

In an address to a conference on family law, his Honour wondered whether the safeguards of the Matrimonial Property Act might not be fitted into the scheme and objectives of the Maori Land Act. He referred to Grave v Grace [1994] NZFLR 961, in which a wife sought a half share in a husband s interest in Maori freehold land, which included the land on which the family home stood. Because the Maori Land Act prevents the application of the Matrimonial Property Act to Maori freehold land, the wife had to seek a monetary contribution based on the law of trusts. His Honour thought that, notwithstanding developments in the law of trusts, this was still likely to provide a less than adequate remedy than the presumptions of equality and liberal concepts of contributions under the Matrimonial Property Act.

Fisheries (Palliser Bay Taiapure) Order 1995

1995/144. Order in Council 10 July 1995

Declares a taiapure-local fishery under Part IIIA Fisheries Act 1983 over two strips of coastal water on the eastern side of Palliser Bay. They extend in total about 8km along the high water mark and between 300 and 800 metres out to sea. The smaller area is called Te Kopi and the larger Te Kumenga. The order commences from 14 July 1995.

[ed: this appears to be the first taiapure-local fishery declared. Other proposals are either still under consultation and negotiation or have hit legal snags. The Fisheries Act 1983 provides that a committee of management be appointed by the Minister of persons representative of the local Maori community (s54J). The committee may recommend regulations for the fishery. No regulation may refuse access to any person on the basis of race (s54K).]