September 1995 Contents

Time for a review?

In February 1995, the Ngai Tahu claimants, frustrated with the lack of progress in negotiations with the Crown over settlement of their land claims, asked the Waitangi Tribunal for an early fixture in the hope that the tribunal would make binding recommendations to government for the return of Crown forest lands to Ngai Tahu. The chairperson of the tribunal turned down this and a subsequent request concerning state owned enterprise lands, on the basis that the tribunal had limited resources, and Ngai Tahu hearings had already consumed a fair proportion of them.

In response, the Ngai Tahu claimants have filed a High Court action attacking the chairperson s ruling, criticising his decisions on the allocation of Tribunal resources and the move away from hearing claims in sequence. They seek a declaration that no further fixtures be made by the tribunal until the High Court proceedings are resolved.

This episode highlights the intolerable position the Waitangi Tribunal has found itself in for lack of a full public review of its process since 1975. Regular public reviews are a statutory requirement for land claim tribunals in Australia, and help to increase the efficiency and fairness of the work of those tribunals and maintain public faith in them.

The approach to review in New Zealand is piecemeal. As the government seeks public submissions on the Treaty settlement package, which includes some proposed amendments to legislation governing the tribunal, it is considering an internal discussion paper on changes to the tribunal and is adjusting various other matters in the settlement process through a series of Cabinet papers (nga korero o te waSeptember 1995). These efforts may be worthwhile, but it is difficult, given this piecemeal approach, for the public or Maori to be confident that that is the case.

In an independent report the Auditor-General has highlighted this problem (reviewed under "General" below). He notes that, until his report, there has been no comprehensive account of how Treaty claims are settled, which agencies are involved and for what purposes, what costs are incurred, and what results have been achieved. He concludes that "only a limited number of people within government, or outside of it, have a good understanding of these matters". He makes a number of recommendations which would allow progress in hearing and settling claims to be independently and publicly measured. This is surely the best way of maintaining public and Maori faith with the process.

 


Maori Land Court and Appellate Court

In Re Rotoma No 1 Incorporation

241 Rotorua MB 223, 4 September 1995, Savage J

An incorporation passed a special resolution providing that the committee of management in its discretion enter into several leases in excess of 21 years on terms and conditions set by the committee. A copy was filed with the court as required by Reg 4(4) Maori Incorporations Constitution Regulations 1994. The court questioned whether the special resolution complied with s254(1)/1993 which provides that a Maori incorporation may only grant a lease over Maori freehold land vested in it for a term of more than 21 years "pursuant to a special resolution authorising ... the grant of the lease."

Held: the resolution had in effect delegated the power of approval of each lease to the committee of management. Under the 1993 Act, Maori incorporations no longer absolutely own the land upon which they operate, and are now trustees of it for the beneficial owners who have a direct interest in it as Maori freehold land. Section 254, new to the 1993 Act, reflects this change, by limiting the powers of alienation of the committee of management and ensuring owners are fully informed of decisions in relation to the land. This is also in accord with the Long Title of the Act and interpretation provisions of s2(2)/1993.

The argument that the words "the lease" in s254(1) do not refer to a particular lease was rejected. Such an interpretation would potentially enable a committee of management by a single special resolution to enter a whole series of leasing transactions over hundreds of years until revoked by another special resolution. An orthodox approach to statutory interpretation meant that the lease referred to the lease in contemplation at the time a special resolution was passed (R v Gallagher [1993] 1 NZLR 659 followed where the words "the trial" were considered).

Sensible use of the powers under the Maori Incorporations Constitution Regulations 1994 can make leasing procedures flexible. Matters such as the notice to be given before leasing need not be expensive and can be fixed by a special resolution under Reg 3(3). This was not the occasion for the court to dictate the exact form of notice, but the court would expect notice to refer to the general form of lease and the proposed resolution as being available for inspection at the office of the incorporation. It would be expected that the notice would inform owners of the proposed tenant's name, term of lease, rental to be paid and review provisions. What was important was that shareholders be given a proper opportunity to make a decision and take part in decision making if they so wished. Accordingly, an order was made under s280(6)(e) for the incorporation to lease in accordance with the judgment.

[ed: the court noted that s254 had been considered in Re Proprietors of Mangakino Township Inc 66 Taupo MB 235, 3 March 1995 but that decision was not relevant to this case.]

 


Waitangi Tribunal

Surplus lands within the Turanganui A Kiwa region

Wai 518, 15 September 1995. Deputy CJ Smith

SJ Pardoe and Te Runanga o Turanganui a Kiwa sought an urgent hearing of their claim which alleges that certain protective mechanisms which the Crown has established to check with Maori if they have claims over surplus Crown lands before they are disposed of by sale, are inadequate to protect Maori interests in terms of the Treaty. The claim concerned lands now surplus to the Crown in Gisborne City and the wider Gisborne area which might be capable of return to the claimants should their Treaty claims be proved valid. However a considerable number of claimants joined these proceedings to expand the matter to cover all Crown surplus lands.

After a telephone judicial conference the tribunal granted urgency. Figures showed that very little land had been removed from sale despite many Maori applications, indicating that "the present policy falls markedly short of the protection sought and there is a genuine concern among the iwi, hapu and Maori generally that the continued sale of surplus Crown lands jeopardises their expectation of settlement of their respective claims". It was noted that the Crown is presently undertaking a review of the surplus lands policy, but the urgent hearing should nevertheless proceed as sales are continuing under the existing policy.

This allocation of a fixture was however conditional on the outcome of Ngai Tahu High Court proceedings, which seek a declaration that the tribunal not allocate any further fixtures until Ngai Tahu concerns about the tribunal refusal to allocate a fixture to Ngai Tahu have been heard.

[ed: for a discussion of the Ngai Tahu proceedings see the editorial above.]

 

Interim report on Turangi Lands Claim

Wai 84, 8 September 1995

In an interim report to the Minister of Maori Affairs, the Minister in Charge of Treaty Negotiations, and the Ministers for State-owned Enterprises and Lands, the tribunal recommended that, as a report for this claim is imminent, the Crown should withhold from sale all Crown property in Turangi pending receipt of the report. In a further interim report on 15 September, the tribunal recommended that the Crown agree to meet the reasonable outstanding legal costs and disbursements of claimant counsel both for the hearing of the claim, and for any subsequent negotiations. This recommendation was made the tribunal said because its final report, "which has found that various of the claimants' grievances are well founded" was now with the printer, but made no mention of costs incurred by the claimants.

In a memorandum also dated 15 September, the tribunal declined a claimant request that it recommend that a land bank be established by the Crown for the claim. In light of the 8 September interim report and pending final report (which should be available for presentation to the Minister on or soon after 2 October 1995) such a recommendation was not felt to be appropriate.

 


Other Jurisdictions

Ngai Tahu Maori Trust Board & Ors v D-G of Conservation & Ors

CA 18/95, 22 September 1995. Cooke P, Richardson, Casey, Hardie Boys, Gault JJ

The Director-General of Conservation in 1992 notified his intention to issue a further permit for commercial sperm whale-watching off the Kaikoura Coast. The holders of the only 2 existing permits, both of them companies owned by Ngai Tahu, objected on Treaty of Waitangi and legitimate expectation grounds. An injunction was obtained. However in December 1994 the High Court dismissed the Ngai Tahu claim that, by virtue of the Treaty of Waitangi, they were entitled to a period of five years protection from competition, or were able to require that the D-G issue no new permits without their consent. Ngai Tahu appealed that decision.

Held: Regulations in 1990 and 1992 made under the Marine Mammals Protection Act 1978 (MMPA) controlled the issue and nature of permits for whale-watching. The MMPA required that before issuing any permit the Minister of Conservation should have regard to the need to conserve marine mammals, any international agreements to which NZ is a party, and submissions received as a result of public notification of the intention to issue a permit. The width of these provisions would enable submissions based on the Treaty and the taking into account of Treaty considerations by the Minister. There was also nothing in the 1990 or 1992 regulations (conferring on the D-G the discretion is issue permits) to prevent the D-G likewise from taking into account Treaty considerations.

Section 4 of the Conservation Act 1987 provides that that Act be interpreted and administered so as to give effect to the principles of the Treaty. Section 6 made it a function of the department to administer the MMPA. There was accordingly sufficient direction to make it a requirement for the D-G to administer the MMPA so as to give effect to the principles of the Treaty.

The Crown was correct in its view that references to the Treaty and Maori in other acts administered by the department under s6 would have an impact on the interpretation of s4 if there was an apparent difference between provisions. However in this case there were no arguably competing references between s4 and the MMPA. Statutory provisions giving effect to the principles of the Treaty in matters of interpretation and administration should not be narrowly construed. The MMPA and regulations were to be interpreted and administered to give effect to Treaty principles at least to the extent that that Act and regulations were not clearly inconsistent with those principles.

Whichever version of article 1 of the Treaty is used, it provided power to the Queen in Parliament to enact comprehensive legislation for the protection of the environment and natural resources. The second article also clearly extended to such sea fisheries as the tribes possessed. Authority for the view that Maori had developed fisheries along the coasts before 1840, and that Maori have customary, aboriginal title or Treaty rights and that the Crown has fiduciary duties in relation to those rights is found in Te Runanga o Muriwhenua Inc v A-G [1990] 2 NZLR 641, 646-7 and Te Runanga o Wharekauri Rekohu v A-G [1993] 2 NZLR 301, 303-6. Rights in both commercial and non-commercial fishing are dealt with by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which does not however affect whale-watching claims.

Ngai Tahu had pitched their claim too high in arguing that the right to conduct commercial whale-watching tours came within the scope of the Treaty or aboriginal title, and accordingly no permit could be granted without their consent (even allowing that consent could not be unreasonably withheld). Following the findings of the Ngai Tahu Sea Fisheries Report 1992 of the Waitangi Tribunal about traditional shore and sea whaling operations, the appellants had argued that while traditionally they had no property in the whales themselves, they had a right of control over access to resources in the sea, and that the present whale-watching operations were a modern-day expression of that right, or arose from it as a right of development. Putting aside the possibility that control may have been extinguished with the extinguishment of title to adjoining coastal lands, it is obvious commercial whale-watching is distinct from anything envisaged by the Treaty. Nor has there been any case in any jurisdiction in which an exclusive right to carry out whale-watching has been dealt with, and while international jurisprudence is coming to recognise an right of development within indigenous rights, that right is not necessarily exclusive. The argument of the Crown was preferred, relying on Te Runanganui o Te Ika Whenua Inc v A-G [1994] 2 NZLR 20, 24-5, that however liberally customary title and Treaty rights may be construed, tourism and whale-watching are remote from anything contemplated by the original parties to the Treaty. A Ngai Tahu veto right must therefore be rejected.

However, the Crown had also pitched its argument too high in saying it had no more than a duty to consult with Ngai Tahu, and that Ngai Tahu representations could not materially affect the decision to issue a permit. Although commercial whale-watching is not a taonga, it is so linked to taonga and fisheries that a reasonable Treaty partner would recognise that Treaty principles are relevant, and the matter must be approached broadly. Since NZ Maori Council v A-G [1987] 1 NZLR 641 it has been established that active protection of Maori interests is required and to restrict this to consultation would be hollow. While conservation values must be paramount, the D-G could legitimately take into account whether rival applicants were less disturbing of the whales, a secondary issue might be the standard of service provided to tourists. A residual factor of weight must be the Treaty duty to recognise the special interests that Ngai Tahu have developed in these coastal waters. A period of protection from outside competition may be part of this. Accordingly, the decision would be referred back to the D-G with a declaration that, subject to the primary consideration of preservation and protection of the whales, the D-G should take into account as a relevant factor the protection of Ngai Tahu Treaty interests.

There were special features in this case to be noted; viewing whales has some similarity with fishing or shore whaling, and although not a taonga or a subject of rangatiratanga, it is analogous. Historically, guiding visitors to see natural resources has been a natural role of Maori, the whale watching operation is essentially tribal, the companies involved being emanations of Ngai Tahu, and Ngai Tahu had been pioneers of the enterprise. As was recognised in Te Runanga o Wharekauri Rekohu v A-G (p304) the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, with each party accepting a positive duty to act reasonably towards the other. A reasonable Treaty partner would not restrict consideration of Ngai Tahu interests to mere matters of procedure. The iwi were in a different position in substance from other applicants. Subject to overriding conservation considerations and the quality of service offered, Ngai Tahu were entitled to a reasonable degree of preference. However, it was noted that the particular combination of factors made this case unique and its precedent value was therefore likely to be 'very limited'.

 

Huataki Holdings Ltd & Anor v Ministry of Agriculture & Fisheries

M39/94 & M40/94 HC Nelson 4 August 1995. Neazor J

A fishing company holding quota under the Fisheries Act 1983, and representing a number of iwi of the northern South Island, was charged, along with its director, with selling fish to unlicensed persons and failing to complete and furnish catch returns. The charges related to the period before the coming into effect of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, when s88(2) Fisheries Act 1983 relating to Maori fishing rights was still in effect.

Before the district court the defendants argued that s88(2) provided a defence. The tribes had traditionally made no distinction between commercial and other fishing. The judge rejected that argument on the grounds that insufficient evidence of traditional fishing rights had been provided, and that the iwi had chosen to enter the quota system and therefore must accept the duties imposed by it.

Held: in Te Weehi [1986] 1 NZLR 680 and Te Runanga O Muriwhenua Inc [1990] 2 NZLR 641 the courts recognised that s88(2) preserved Maori tribal sea fishing rights, although the argument was never concluded before the Settlement Act 1992 brought that litigation to an end. Accordingly, before the passing of the 1992 Act, the appellants were bound by the quota scheme unless and to the extent they could show that they were exercising rights pursuant to s88(2). The holding of quota and a claim to a traditional fishing right were therefore not mutually exclusive.

Section 11(4)/1992 now provided that as soon as a species was declared subject to the quota management system that declaration could not be questioned. Section 9(b)/1992 provided that no court had jurisdiction to enquire into the existence of rights in commercial fishing. The question whether that prevented this present case being considered was not argued, but it might be that s26(1) NZ Bill of Rights Act would allow s9(b) to be interpreted to allow a defence for events occurring before the 1992 Act was enacted. It was not argued whether a company, as a creature of statute, could claim to be exercising a Maori fishing right, but it might well be accepted that a wholly Maori owned company can be accepted as authorised to act for those in whom a right exists.

The onus of proof was on the defendant to prove a Maori fishing right was being exercised, and not on the Crown to prove that the defendant s actions fell within the offence provisions of the fisheries legislation. The reasoning to the contrary in MAF v Ransom [1993] DCR 1127 was not followed and Te Weehi and Green v MAF [1990] 1 NZLR 411 cases, placing the onus on the defendant, were preferred.

However, there was insufficient evidence on the balance of probabilities that a Maori fishing right was being exercised and the appeal in this regard was dismissed.

[ed: the court noted that this decision is now of largely historical interest because of the 1992 legislation. The decision does however confirm once again the strength of the doctrine of common law aboriginal title in New Zealand, including the point that aboriginal title rights to a resource are not automatically extinguished or reduced by the enactment of a detailed regulatory scheme for that resource.]

 

Ngati Wai Trust Board & Ors v Whangarei District Council & Anor

A 80/95, 28 August 1995. Sheppard J, PA Catchpole, F Easdale

Local Maori and a supporting group, Network Waitangi, appealed against a decision of the district council granting a resource consent for the "intensification" of a caravan park by provision of a further 120 camping sites. The Planning Tribunal rejected the appeal. Among other matters, the tribunal found that:

 Claims that tangata whenua had not been consulted were not made out. Although the RMA 1991 does not specifically require consultation with tangata whenua, it is recognised good practice to do so where issues under ss6(e) or 7(a)/1991 arise. Here there was a disagreement among local Maori about who actually had tangata whenua status. It was not for the consent authority to decide which among competing groups is entitled to the status of tangata whenua or mana whenua (see Paihia and District Citizens Assoc v Northland Regional Council A77/95), and the applicants had taken reasonable steps to consult with all who claimed that status.

 The argument that the consent did not provide for the cultural well being of tangata whenua and that only tangata whenua were competent to judge that, should be rejected. Expert evidence showed that the cultural well being of people in the area would be maintained, and in raising the issue before the tribunal, the appellants must accept the tribunal s competence to rule in this matter, and provide evidence to support their contrary view.

 As to s6(e) (preserving relationship of Maori with the area), the conditions imposed by the council on the consent, in particular, that the camping ground proprietors inform campers of Maori values and waahi tapu in the area, were adequate. Archaeological evidence did not support assertions about the existence of other claimed burial areas, and the Department of Conservation could protect existing waahi tapu areas which might receive increased visits.

 As to s7(a) (kaitiakitanga), consent authorities do not have to decide between competing groups claiming kaitiaki status. Conditions on the consent were adequate to ensure kaitiaki values would be maintained.

 As to s8 (Treaty), the tribunal rejected the claim that granting the consent failed to account for the essential nature of the Treaty bargain, including tribal self-regulation. Evidence of the appellants on this point had been general and similar to 'political rhetoric' and not applied to the particular case.

The tribunal also commented that tangata whenua evidence which focuses succinctly on facts and attitudes relevant to the particular case is welcomed, and can be influential when timely notice is given in accordance with the Act, and statements of evidence are delivered to other parties prior to hearing.

 


General

Reserves and Other Lands Disposal Act 1995

Sections 3 to 6 of this Act give effect to the settlement of a claim before the Waitangi Tribunal concerning lands at Hauai peninsula in Northland. In the early 1970s, the trustees of 25 hectares of Maori freehold land on the peninsula made plans to subdivide it. In 1974, after approaches from the Department of Lands and Survey (concerned at the time to preserve coastal lands for 'all New Zealanders'), the land was exchanged for 28 hectares of Crown land known as Felix Farm in Whangarei, represented to be 'suitable for subdivision'. The Felix Farm land had previously been affected by coal mining operations, and was potentially subject to subsidence something the new Maori owners were not aware of. In 1989 the Maori Land Court overturned the exchange on a procedural technicality and suggested negotiations to remedy the issue (1989 Chief Judge MB 67). Eventually a claim was made to the Waitangi Tribunal, which appointed a mediator to effect a settlement, which this Act puts into effect.

The Act revests in the Hauai trustees the peninsula land and revests in the Crown the Felix Farm land. The present reservation status of the Hauai land under the Reserves Act 1977 is cancelled. Marginal strip requirements of s24 Conservation Act 1987 will not apply to the revested Hauai land, but an area equivalent to the marginal strip is to be held by the trustees as a Maori reservation for the common use and benefit of the people of NZ. A waahi tapu area is also separately reserved. This legislation was first introduced in 1993, but was not passed until 21 September 1995.

 

The Settlement of Claims under the Treaty of Waitangi. Report of the Controller and Auditor-General

Second Report for 1995. 12 September 1995. DJD Macdonald

The Auditor-General s interest in this area arises from the considerable sums of public money involved. The report describes current policy and the legislative framework for the hearing and settlement of claims and identifies the agencies and processes involved. Costs were difficult to quantify because of changing reporting systems. The total money spent to date on processing claims from 1991-2 to 1995 (including research, tribunal hearings etc) is $41,337m, with most (over $17m) being spent in the Office of Treaty Settlements (compared to $11,607m for the Waitangi Tribunal). Results of the process have included:

 Settlements totalling over $182m have been made since 1991-92, and a further $500m has been set aside to settle claims through to 1999;

 A backlog building up of uncleared claims (an estimated 582 by June 1996);

 Less than half of 137 recommendations of the tribunal have been implemented, with 6% rejected outright and 'no start' made on 22%;

 Only 43 or 4% of the 1,194 surplus Crown lands advertised to Maori have been held back from disposal. This is despite 4,653 applications being received to have lands held back from sale;

 To date, $73,176m has been spent on holding land in land banks pending future settlements.

The report concludes:

 There is a need to complete and make public a comprehensive Treaty settlement policy;

 An integrated budget is required for the entire process;

 Formal sharing of information between the agencies involved is required;

 Some agencies in the settlement process have dual roles which add an "avoidable degree of complexity", because in this area the government has the dual objectives of fairness to claimants and affordability to taxpayers;

 The surplus land claims mechanism is under strain;

 An integrated system for monitoring and reporting progress in claim settlements is required.