November 1995 Contents

Maori Land Court and Appellate Court

Tauhara Middle 4A1L1B1A and Northcroft

9 Waiariki ACMB 49, 27 October 1995. Hingston, Spencer, Isaac JJ

A husband willed his interest in Maori land to his wife. Under s164/1993 she made a gift of the land to one of the children of her husband s brother. The executor of the brother s estate argued that the gift should have been in trust to all of his children and that the court should not have approved the gift.

Held: the appellant, being the son of the husband s brother, was a member of the preferred class of alienees and was materially affected by the order and therefore had standing to bring the appeal under s58/1993. The meaning of materially affected was discussed in Awarua 3D34B McCarthy v Collerton (1961) 12 Whanganui ACMB 75.

The fact that the MLC had dealt with the application by telephone conference (the donor had arthritis) did not affect the outcome. Section s69/1993 enables the MLC to receive any information which in its opinion will assist proceedings. The judge was satisfied he was dealing with the donor. The donor was aware of the dispute among the children but still intended the gift for the one child. Consequently the appeal failed.

When alienations are subject to preferred class preference, being of the class does not give a person rights against others in the preferred class. The provision is a shield protecting all the preferred class from outsiders entering the title. For the appellant to succeed in this case he would have to have established grounds exclusive of preferred class considerations, although the court would take account of remoteness from the alienor where close relatives of a donor object to a gift to a more distant relative. Being of the preferred class is a condition precedent to the exercise of jurisdiction by the court and not a cause of action.

Directions for service of applications under s164/1993 should take account of the value of the gift, the relationship of the donor and donee, the age of the donor and the views of the donor s immediate family. Few family members would require to be notified of a proposed gift of low value to one child, as opposed to a large value gift exclusively to one child.

 

 

Walker and Section 1A Parish of Katikati

18 Waikato Maniapoto ACMB 260, 27 September 1995. Deputy CJ Smith, Marumaru, Savage JJ

This was an appeal against an order under s338(7)/1993 appointing new trustees to a Maori reservation. The court noted that Mount Tauhara Maori Reservation (1977) 58 Taupo MB 168 and reg 7 Maori Reservations Regulations 1994 establish that, in matters relating to the administration of a reservation, trustees should consult with the beneficiaries. The rules of natural justice do not however apply to meetings to discuss proposed new trustees because there is no right or interest affected by meetings (as determined by the test in Durayappah v Fernando [1967] 2 AC 337 (PC) at 349). Appointments are made by the court. Meetings simply decide the evidence which will be put to the court. It is in court that interests are affected and natural justice and legitimate expectations issues may arise. The complicated rules of administrative law ought not to be imposed on the workings of Maori reservations. There remains however a duty to act fairly, although different consequences flow from a breach of this duty. Unfairness at a meeting will affect the weight the court will place on the evidence coming from it - see Ongarahu B and Eriapa Maru Uruamo 3 Tok ACMB 230. There was nothing on the face of the evidence from the meeting to suggest the court should inquire further, and the court cannot be put on inquiry in every case where the evidence contains no hint of discord, impropriety or lack of representation. Nor had the lower court itself acted unfairly or failed to address issues in terms of ss17(2)(a) and (e) (concerning empowerment of owners and unfairness). The present appellant had not taken the opportunity to question or oppose the evidence before the lower court. Although one trustee had not been voted on by the beneficial owners, voting is a "red herring" where the meeting has no power to decide. The trustee had been discussed and was acceptable to those 'involved with the reservation'.

 

 

Thomas and Coates and Rangiuru 2B9

9 Waiariki ACMB 47, 15 August 1995. Deputy CJ Smith, Spencer, Isaac JJ

The Maori Land Court refused an application to call a meeting of owners to consider a proposal to sell a block of land. The majority ownership were non-hapu and the proposed purchaser was thought not to be of the preferred class of alienees. In an oral judgment the court noted that, when the court is considering under s173/1993 whether to call a meeting of owners it should not, by virtue of s2/1993 (which refers to the control of Maori land being retained by Maori owners), give undue weight to the needs of Maori owners. The provisions of Part IX/1993 and the Maori Assembled Owners Regulations 1995, cl2 of which defines 'owners' to include all those with an interest, legal or equitable, in Maori land, are a special code and take precedence for the purposes of s173.

During the hearing the court also noted, although made no decision on the issue, the finding of Isaac J (in Re Nuhaka 2E3C8A2B, Maori LR September 1994 p2) that when considering whether a person falls within the preferred class of alienees, one may look beyond the immediate block and consider whether a person is a descendant of those in the original land block prior to partition. The proposed purchaser in this case was from a "well known" local Maori family.

 

Waitangi Tribunal

Kiwifruit Marketing Report 1995

Wai 449. 6 October 1995. Judge PJ Savage (presiding), MR Bassett, JT Kneebone, JJ Turei

This report concerned a claim that the right to export kiwifruit is a taonga enjoying the protection of Article 2 of the Treaty of Waitangi. The claimants were Marata Norman of Ngati Moko, a hapu of Tuhourangi iwi in the Bay of Plenty, and Wi Parera Te Kani of the Ngai Tukairangi hapu of the Ngai Te Rangi iwi.

Firstly, the tribunal rejected the view that the claim could be ruled out as frivolous and vexatious. Had there been a greater appreciation within the industry of the Treaty and cultural issues, this expensive claim would not have been needed. It raised important issues.

The tribunal expressed concern that the claim appeared to proceed in the name of a limited liability company and some Maori land trusts. Claims must be made by Maori only (s6(1) Treaty of Waitangi Act 1975). Claims need to be framed with care to avoid these problems. A claim may however in reality be made by Maori even though a Pakeha vehicle is chosen to advance it. In such cases the tribunal might look behind the corporate veil. In other cases Maori may only be affected as shareholders, in which case the trust or incorporation itself would be advancing the claim. Each case has different factors and the decision is a matter of balance and perception. This was a claim by Maori, but might easily have been held otherwise.

The basic claim was that the right to export kiwifruit is a taonga enjoying the protection of Article 2 of the Treaty. The evidence heard was unnecessarily wide in some areas, but established that Maori grew and traded a variety of foods prior to 1840 with the clear understanding that some would find their way overseas.

The claimants had been involved in the kiwifruit industry for some years, with financial encouragement in the early stages from the Department of Maori Affairs. After a fall in returns for nearly all growers in 1987, a referendum was held in 1988 in which over 80% of orchards voted for a marketing board to be established. Those who voted 'yes' included Marata Norman s orchard. The NZ Kiwifruit Marketing Board (NZKMB) was established in September 1988 as a result of that referendum.

Among other things, the claimants alleged they were encouraged to enter an industry with unreliable returns, were not consulted separately in 1988, that Maori kiwifruit farming required special consideration before policies were set by the NZKMB, and that current regulations allowing selling only through the board prevent the claimants exercising their rangatiratanga.

The tribunal found that the NZKMB is an agent of the Crown - although this finding was not essential to the central finding of the report. The central issue was whether the right to export is a taonga under Article 2. Pre-contact exchanges of treasures by iwi and hapu might be regarded as taonga. But it would be "an unjustified straining of Treaty principles to hold that the right to develop such a treasure could extend all the way to the modern kiwifruit trade." There was insufficient evidence before the tribunal that post-contact trade in the period prior to 1840 was a taonga. There was no evidence that Maori themselves exported - although they did trade with others who onsold overseas. The right to export would if anything be an Article 3 right. But even if these findings were wrong this also did not affect the central finding.

The central finding was that the sovereignty ceded by the Treaty included the right to regulate trade. A memorandum issued by the tribunal sitting to hear the Chatham Islands claims set out the position correctly, that the Maori text of the Treaty, when examined in the light of contemporary statements, did cede sovereignty, which was a form of national controlling authority (5 October 1994, see Maori LR Oct 1994). The rangatiratanga retained is not therefore a separate sovereignty, but a right to tribal self-management. Tribunal members had differing opinions of what rangatiratanga extended to, but this claim fell outside even the broadest of those views. The regulation of trade was a legitimate act of governance or kawanatanga. The chiefs knew this, they mentioned trade as a matter for general regulation in the Declaration of Independence of 1835.

There had been sufficient consultation with Maori before the NZKMB was established, consisting of input from the Department Maori Affairs, industry wide consultation prior to 1988 and the referendum in 1988. The consultation was sufficient to the circumstances - the tribunal repeated Sir Ivor Richardson s statement in the NZ Maori Council v Attorney-General case (p683) that in some cases specific consultation may not be required where a Treaty partner has sufficient information for it to act consistently with Treaty principles. The tribunal was less certain that there had been adequate consultation since the establishment of the NZKMB. There was no evidence that policy makers had considered the special restrictions owners of multiple owned Maori land face, or the different perspectives on cultivating land which Maori have. But there was no evidence either that Maori growers had made special efforts to bring these matters to the attention of the board. The tribunal was heartened by assurances that there would be greater consultation in the future and thought that at the very least Maori growers should be actively encouraged to participate in decision making in the industry, and become more involved with marketing to other indigenous peoples.

There was no evidence that the Kiwifruit Marketing Regulations 1977 were contrary to s20 NZ Bill of Rights Act 1990 (right of minorities to enjoy their culture), as there was no evidence that Maori rights to ancestral land were being endangered or Maori culture threatened by the regulations.

The issue of whether single desk selling is superior to other forms of marketing was irrelevant to the claim, although much evidence had been heard on this point.

[ed: this is a brief report, but it makes important findings. In stating that sovereignty and national governance were ceded by Maori in 1840, the tribunal reaffirms a position it has held since the Muriwhenua Fishing Report 1988. In that report, the tribunal found that it was a legitimate exercise of sovereignty or kawanatanga to pass laws to conserve natural resources. This report extends that further, finding that passing laws for the regulation of trade is also a legitimate exercise of sovereignty.

The tribunal in this report refused to stretch Treaty principles to cover the modern kiwifruit trade. This has similarities with the finding of the Court of Appeal in Te Runanganui o Te Ika Whenua Inc [1994] 2 NZLR p25 that the Treaty does not apply to another "modern" development - the generation of electricity by the use of water power (see also however the decision in Ngai Tahu Maori Trust Board v D-G Conservation, that a modern whale watching business is "analogous to" a taonga, but only because it has some parallels with pre-Treaty fishing and shore whaling (CA 18/95, 22 September 1995 Maori LRSept 1995 p3)). Unfortunately the tribunal gives little analysis of how it arrived at this position.

This report will no doubt be greeted with dismay by those pressing for an expansive view of rangatiratanga, particularly as the tribunal has used the Declaration of Independence to reinforce its view that Maori ceded to the Crown substantial powers in 1840. That Declaration is often quoted by groups seeking to question the extent of Crown sovereignty.]

 

Other Jurisdictions

William Tupu Awa v Independent News Auckland Ltd

CP 152/92 HC Hamilton, 16 October 1995. Hammond J

The plaintiff alleged that he was defamed by an article in the Sunday News national newspaper that described him as a "body snatcher", and sought damages of $200,000. The plaintiff was the 'chief kaumatua' of the Ngati Whawhakia hapu of Tainui. On the death in August 1991 of the well known entertainer Billy T James (whose adoptive mother was of Ngati Whawhakia), the plaintiff travelled to the entertainer s residence and removed the body to a marae before its burial on the sacred Taupiri mountain near Turangawaewae marae, Ngaruawahia. This was contrary to the wishes of close relatives who had arranged a church service prior to transport to a marae.

Held: it is well known that Maori protocol upon death is quite different from European. In particular, the decision where a deceased is buried is important, and argument is not uncommon, the greater mana of the deceased may occasion greater debate. "The Maori way of approaching the question of burial is therefore part of a complex spiritual and metaphysical process which is intertwined with the extreme importance of recognition and acknowledgment of ancestors; and family; and the burial process is closely intertwined with land and the place from which one sprung." European style rational analysis could not do justice to the "coherent vision of an indigenous people."

What must be considered is how the "ordinary reader", purchasing the paper from a corner dairy, would view the use of the term "body snatcher". Such a person would not take a far-fetched or over refined meaning, for example, that a body had been taken in breach of Maori custom. On this "ordinary reader" test, the term "body snatcher", suggesting some immorality, was capable of being defamatory. However, a defence of justification was made out, the evidence showing, among other things, that the plaintiff was clearly not welcome when he arrived to fetch the body, and had made forcible entry to take it, and no true consent was gained from close relatives to take the body in such circumstances. A kaumatua witness for the claimant admitted that in such a situation it would have been appropriate to withdraw and speak to other kaumatua. The plaintiff s defence that Maori protocol required that he remove the body to a marae was really a misguided belief that the end justified the means. In these circumstances "body snatcher" was also fair comment on a matter of public interest.

 

 

Paki & Others v Attorney General

CP 144/90 HC Hamilton, 24 October 1995. Anderson J

The plaintiffs were trustees of Pouakani B9B Trust, and were, through Waitangi Tribunal proceedings, seeking the return of land in the Pouakani block alleged to have been wrongly taken by default on a survey agreement. In 1987 the plaintiffs bulldozed some trees on the contested land as an assertion of their claimed rights and to provoke litigation. The Department of Conservation filed proceedings for trespass and the plaintiffs responded with a notice of opposition. After discussion, the plaintiffs and the Attorney General entered an agreement in July 1987 preserving the position of both parties pending the outcome of Waitangi Tribunal and Maori Land Court investigations of title to the land. In that agreement the Crown agreed to indemnify the trustees for losses if they were successful as to land ownership and boundaries issues. The Waitangi Tribunal issued its report, largely vindicating the trustees, but not before they had incurred $1.23 million in expenses. The trustees issued proceedings seeking payment of this sum. The Crown responded in September 1990 with a $650,000 offer, provided the claimants accepted it as a first charge against Crown liability, if any should be found or acknowledged. This offer was accepted. The trustees amended their proceedings and now sought the balance of the $1.23 million on the basis that it was owed under the terms of the July 1987 agreement. This case concerned the effect of the September 1990 agreement.

Held: the September 1990 agreement was not an acknowledgement of liability by the Crown. The Crown had simply agreed that, should it subsequently acknowledge liability over the land issues, or have judgment entered against it, it was entitled to be credited with $650,000 against those liabilities. The agreement of September 1990 could not be treated as a mere repayment of expenses, but was actually a part-settlement of the claim. Its worth would be known when the Crown acknowledged liability, or when judgment was entered against the Crown. Conceivably, the plaintiffs might in the future get judgment against the Crown, but the practical outcome might be no more than an accounting entry. The parties needed to consider their future tactics in light of this situation.

 

 

Whittaker v Maori Land Court of New Zealand

M2336/91 HC Auckland, 9 October 1995. Temm J

A woman sought an order under s452 Maori Affairs Act 1953 to rectify a succession order of the Maori Land Court made in 1943. She alleged that the MLC had at that time failed to award land to her mother, who was adopted. The Deputy Chief Judge turned down the s452 application. There being no right of appeal (s452(7)), the woman sought judicial review of the decision of the Deputy Chief Judge.

Held: the adoption occurred in 1892 and was according to Maori custom. In Hineiti Rirerire Arani v Public Trustee [1920] AC 198 the Privy Council held that, after the passing of the Adoption of Children Act 1895, Maori children could be adopted either under that Act or continue to be adopted by Maori custom. So the adoptee had full legal rights as if she were a child born in wedlock. After 1901 however, Maori customary adoptions had to be registered in the MLC for adopted children to succeed to their adoptive parents estate. However in 1909, in a radical change, s161(1) Native Land Act 1909 provided that all past and future Maori customary adoptions were without legal effect. Adoptions previously registered under the 1901 legislation were however saved. These provisions were considered in Piripi v Dix[1918] NZLR 691. The adoption in this case was not registered and was therefore ineffective from 31 March 1910 when the 1909 legislation came into effect. In December 1927 the position was completely reversed. Maori customary adoptions made prior to 31 March 1902 were deemed to be of full legal effect (s5 Native Land Amendment and Native Land Claims Adjustment Act 1927). However, the adopted child died in November 1927, and so the adoption was not saved by the 1927 legislation. The adoptive parent did not die till 1943. In the interim, in 1930, the 1927 amendment was reversed, and the position at 1910 reinstated, and continued in the Native Land Act 1931 (s202). This was the law in force when the adoptive parent died. Consequently, there was no legal interest of the adopted child in the adoptive parent s estate and the Deputy Chief Judge had correctly dismissed the s452 application.

The court also noted that the privative clause in s64/1953 effectively prevented it overturning the Deputy Chief Judge s decision in any event, as no error in law, unfairness, unreasonableness or ultra vires arguments were advanced (see O Regan v Lousich [1995] 2 NZLR 620).

As to costs, it was understandable that the plaintiffs should bring this action. Section 98/1993 makes special legal aid available. The power to award costs under that provision is however confined to the MLC. The court therefore noted a figure it thought the plaintiffs ought to be able to claim as expenses, and left it to them to make application under s98.

 

 

Hauraki Maori Trust Board & Others v Waitangi Tribunal

CP 171/95 & Ors HC Wellington, 14 September 1995. Ellis J

This was an application to recall parts of a judgment (Maori LR August 1995 p3) which decided that the Treaty of Waitangi Fisheries Commission had not yet adopted a policy for the distribution of pre-settlement assets from the Sealord settlement and consequently, as a matter of law, the Waitangi Tribunal lacked jurisdiction to hear a claim until the commission adopted a policy. The recall power (r540 High Court Rules) gives the court discretion to perfect judgments. It was argued that the court could usefully elaborate on comments made in the judgment to further clarify its intention, that it had failed to take into account s6(1)(d) Treaty of Waitangi Act 1975 (concerning actions, as opposed to policies, of the Crown), and had failed to properly address the issue of the policy behind the interim allocation of fish quota.

Held: the application should not be granted, as the court had, before making judgment, considered the matters for which recall was sought, but had deliberately refrained from comment; elaboration on the judgment would possibly require the hearing of further evidence; and the issues on which recall was sought were precisely those the subject of appeals to the Court of Appeal.

The court indicated that it was aware that its earlier judgment meant that, under the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, the Waitangi Tribunal might only have 30 days to hold a hearing about the distribution policy from the time it is announced until it becomes final.

[ed: in another fisheries judgment, on 12 October the High Court granted an interim injunction stopping proposed major cuts in snapper quota in the northern fishery (NZ Federation of Commercial Fishermen & others v Minister of Fisheries & Another CP 237/95 HC Wellington, Doogue J). Area 1 Maori Consortium and Ngapuhi Fisheries Ltd are plaintiffs in those proceedings.]

 

General

Protection mechanisms for surplus Crown property

DAM Graham, Minister in Charge of Treaty of Waitangi Negotiations, 20 November 1995

The Government has increased its ability to retain Crown lands surplus to requirements for use in future claim settlements.

Claimants will now only need to satisfy the Crown that surplus land is of cultural and historical importance and required for future development, or that is has special features making it "non- substitutable". The Crown will then decide whether to retain the land on the basis of the value of other properties already retained, progress being made on negotiations and affordability. These new criteria will be applied to properties passed for sale under the old mechanism but not yet sold. Over 100 properties will be immediately available for retention under the amended scheme.

Properties will be retained in new regional land banks. $150 million has been set aside to operate these banks. The regions are based on 14 of the research districts the Waitangi Tribunal has established for its Rangahaua Whanui project. The Ngai Tahu rohe is excluded by agreement. All surplus Crown lands within the boundaries of areas confiscated last century remain separately protected for possible future return to claimants.

[ed: in light of these announcements, the Waitangi Tribunal has vacated the fixture for an urgent hearing which was scheduled for 27 November on claim Wai 518, which is concerned with the inadequacies of the system for retaining surplus Crown properties (Wai 518, doc 2.27, 21 November 1995).]

 

 

Extra resources for the Waitangi Tribunal

DAM Graham, Minister in Charge of Treaty of Waitangi Negotiations, 20 November 1995

An extra $500,000 will be allocated to the tribunal over the next 2 years. $400,000 will be used towards the completion of the Rangahaua Whanui project, which will provide research reports on the historical background to claims in 15 districts covering the country, as well as reports on important common themes eg public works takings, rating, the operation of the land court. $100,000 will go towards the writing of final tribunal reports on claims where hearings have been completed.

 

 

Briefs

 In "Maori and Banking in NZ: recent research and a new survey of self-employed Maori" (M Fox, G Walker, S Francis, Journal of Banking and Finance Law and Practice 6(3) September 1995 p239) the authors present survey responses from 72 of an estimated 11,479 self employed Maori in NZ. The article also reviews prior reports, the Review of the Involvement of the Financial Services Sector in Banking Maori (Te Puni Kokiri, Nov 1993) and Maori Women in Business (Min of Women s Affairs, Jan 1991).

 Philip Pryke has been reappointed to the Treaty of Waitangi Fisheries Commission (Minister of Maori Affairs, 16 October 1995).

 William David Baragwanath QC, a barrister who has frequently acted on Maori issues before the Court of Appeal, High Court and Waitangi Tribunal, has been appointed a temporary judge of the High Court for 12 months from 15 November 1995 (NZ Gazette 9 November 1995).

 Two regulations have been enacted to further finalise the Waikato settlement. The Waikato Raupatu Claims Settlement Act Commencement Order 1995 (1995/247 - gives commencement dates for various parts of the Act) and Waikato Claims Settlement Act Second Schedule Order 1995 (1995/248 - adds several pieces of land to the list of those where resumptive memorials are to remain on the land).