November 1996 Contents

Comment

- Abolition of the rights of appeal to the Privy Council

Mäori Land Court & Appellate Court

- In Re Tahora 2F2 Block and Wairoa District Council

- Mahaki Ellis, Toa Faulkner and Poripori Farm A Block

- In Re DP Coles and others v Ngätira Lands Trust and Whaiti Kurinui No 11 Block

- In Re Hapeta and Whakapoungakau 3B1B

Waitangi Tribunal

Other Courts and Tribunals

- R v Geoffrey Fuimaono

- Re estate of Nikorima Kupa, Te Rimu Haronga v Niky Nikorima Harmer & Another

Parliament

- Mäori Land Court (Jurisdiction) Order 1996

Treaty Claim Settlements

- Deed of Settlement concerning the Wharenui Mataatua

- Whakatohea Deed of Settlement

- Heads of Agreement between Her Majesty the Queen and Te Runanga o Ngäi Tahu

read more


October 1996 Contents

The Election

"Mäori political life has been presented over the years as a contest between National and Labour. I’ve never thought it as being that. I’ve thought that it’s much more complex and subtle. It’s been an effort whereby Mäori choose their representatives to work in an alien political environment … And now that we stand a chance of getting maybe 13 or 14 Mäori members, is there a possibility now that that constitutional, political environment can be moulded to become much more friendly towards the aspirations of Mäori? …. The sheer numbers … create the possibility of systemic change” (Sir Paul Reeves, Radio NZ Whenua 13 October 1996).

 

Treaty claim settlements

The next issue of the Review will consider in detail and compare the deeds of settlement for the Ngäi Tahu, Whakatohea and Mataatua Wharenui claims. The Ngäi Tahu deed was still not publicly available at the time this issue went to press.

 

 

The new format

From this month, the Review appears in a new format enabling more material to be included in each issue.

 

 

Mäori Land Court and Appellate Court

In Re Karokaro A2B1

80 Waikato Minute Book 110 1 July 1996 Carter J

Te Puni Kökiri (TPK) on behalf of the owners of Karokaro A2B1, applied under  s20 Te Ture Whenua Mäori Act 1993 to recover possession of the block from the former lessees who remained in possession after the expiry of their lease. The lease was a standard one under Part II of the Mäori Affairs Act 1953 and provided on expiry for compensation equivalent to 75% of the value of improvements to the land. Several weeks before expiry, TPK informed the lessees that there had been breaches of the covenants of the lease for which damages would be sought.  Immediately following expiry, TPK forwarded a certificate of valuation assessing compensation for improvements and also estimating the current market rental of the block.  TPK also suggested that a means of covering the compensation would be to negotiate a further period of lease at market value. The lessees objected to the valuation figure, which was subsequently revised and increased by TPK, who sent the new assessment of value and a claim for damages to the lessees, by now 18 months after the date on which the lease had expired. TPK included in that correspondence an assessment of payment (based on current market value) for use and occupation of the property in the interim period since the expiry and including an additional interim period to allow the respondents to conclude the current dairy season. In that communication TPK also suggested that the lessees might wish to negotiate a fresh period of lease. They did not reply, and after several weeks TPK advised them that they would be required to vacate the property at the end of the additional interim period. The lessees did not vacate the property and rejected an offer from TPK to extend the period of occupancy for another year, responding with a counter-offer.  TPK lodged an application for the recovery of the land.

The lessees argued that TPK and the owners had not complied with the terms of the lease and had verbally and/or in writing extended the term of the lease, that they (the lessees) could not be said to be in arrears, because substantial compensation owed to them by the owners remained outstanding, that it was fair and equitable for the court to grant relief against forfeiture, and that the court should grant relief against forfeiture under s21/1993 and a further renewal of the lease under s22/1993. They also filed a counterclaim for compensation for improvements to the property.

Held: s22/1993 allows the court to renew a lease in accordance with s120 Property Law Act 1952 (PLA), where a lease contains a right of renewal, and a lessor fails to grant such a renewal, but it was not relevant here as no right of renewal was argued. Under s21/1993 the court may grant relief against forfeiture under ss118-119 PLA, which apply in the case of a lessor re-entering or terminating an existing lease for breaches of covenant or non-payment of rent. However s21 did not apply in the present case, as TPK sought not to exercise a right of re-entry or forfeiture for breach or non-payment, but to recover the possession of land which was said to be occupied now by tenants at will. The former lessees likewise had argued that TPK by their correspondence had created a yearly tenancy which had not been terminated and that they were therefore not tenants at will - the respondent’s submission that a new yearly tenancy was established, if upheld, would be a defence to the application for recovery of possession. If the submission was rejected, there would be no lease in existence to which s21 could be said to apply. In either case the court could not provide relief against forfeiture pursuant to s21.

As to whether the applicants had by their correspondence extended the lease or created a yearly tenancy, previous cases quoted by the former lessees (Re Register [1958] NZLR 1050 and Innercity Businessman’s Club Ltd v James Kirkpatrick Ltd [1975] 2 NZLR 636) related to existing leases, whereas here the original lease had expired.

Turning to the suggestion that s105 PLA (yearly tenancy not created by mere payment of rent) might assist the respondent’s case, Wellington Rugby Football Union (Inc) v Nathan and Anor [1946] NZLR 725, was distinguishable in that there the conduct and express words of the parties before expiry had created a yearly tenancy, whereas here no arrangements had been made prior to the expiry of the lease which provided for the respondent’s continued occupancy. Accordingly the respondents here were tenants in possession at will in accordance with s105 PLA.

Beattie v Lyttelton Borough Council [1966] NZLR 65 established that s105 creates a rebuttable presumption, the onus of displacing it resting on the contesting party (here the respondents). Their argument that a single demand for rent could evidence a yearly tenancy was not convincing. Further, the actions of TPK had not amounted to demands for rent, instead they had merely on several occasions sought payment for use and occupation as part of on-going negotiations, with no reference to “rent” or to “yearly tenancy”.

There was no evidence of any attempt by the parties to reach agreement over the term of the possession or notice of occupancy. In the absence of such agreement the respondents became tenants at will subject to a month’s notice in accordance with s105 PLA. The onus for re-negotiation of terms of tenure rested with the respondents.

As to whether the Court should not make an order for possession under s20/1993 while the respondents’ counterclaim for compensation under the expired lease remained unsettled, there was nothing in that lease which entitled the respondents to remain in possession until compensation had been received, and no general rule of law or principle to that effect. Logically the valuation of improvements would take place after the expiry of the lease and the respondents could not reasonably expect to receive compensation before vacating the property.

As to concerns about the impracticality of vacating the property prior to the end of a dairy season, the respondents had taken a calculated risk in remaining in possession in defiance of TPK’s request that they vacate the property, and on the issuing of these proceedings, and the court should not therefore have regard to their present predicament.

 

 

Re Kahakaharoa No 1

97 Hauraki MB 247 3 October 1996 Carter J

This was an application for confirmation of a sale of general land held by a s438/1953 (now ahu whenua) trust.  Section 228/1993 requires that every alienation of land by way of sale by such a trust must be consented to by ¾ of the owners (or 75% on a shareholding basis) and confirmed by the MLC. The section makes no distinction between Mäori land and general land.  The District Land Registrar refused to register the transfer giving effect to the sale until the sale had been confirmed by the MLC.

Held: the application of s228(3) requirements to general land creates anomalies:

- in normal circumstances the 1993 Act places no restrictions on the sale of general land owned by Mäori;

- s137 allows trustees to apply to have the status of Mäori land changed to general land on grounds that the quorum and owner consent requirements needed to alienate the land are impractical (s137(1)(e)). Yet s228 effectively nullifies the intent of s137 by enforcing owner consent requirements on proposed sales of all trust land;

- s228(3) requires confirmation of such sales, although the confirmation provisions of Part VIII only apply to alienations of Mäori freehold land (s151) and there is no requirement or provision for the confirmation of alienations of general land;

- there was also the practical problem that the court (as in this case) may have no record of the beneficial owners of general land held by an ahu whenua trust and therefore has no real power to monitor whether consent has been received from 75% of the beneficial owners.

There is a further problem in s355, which allows for the completion of sales and subdivisions of Mäori freehold land without reference to any of the restrictions of the 1993 Act, where unconditional agreements for sale and consents to subdivision have been obtained prior to the commencement of the 1993 Act. But while s355 allows that a subdivision may be completed, there is no provision for the sale of the subdivided sections.

In the present case the 75% consent had now been obtained, and an order could be made under s153 confirming the transfer, however His Honour directed that a copy of the decision be referred to Te Puni Kökiri as the body responsible for amendments to the 1993 Act.

 

 

Re Hauturu East 15, 16 and 18

111 Otorohanga MB 2, 30 September 1996. Carter J

As part of the settlement of the claim to the Waitangi Tribunal concerning the Waitomo and adjoining lands (Wai 51), it was agreed to vest 3 blocks of land in certain Mäori groups, with 2 of the blocks, forming the local domain, subsequently to become a Mäori reservation for the benefit of all New Zealanders and to continue to be used as a domain, but managed by trustees drawn from the Mäori owners, the Waitomo District Council and the local community. The Minister of Lands applied under s134/1993 for the MLC to vest the blocks in the Mäori groups. At an initial hearing objections were made by community representatives concerned that community rights would not be adequately protected under the proposed arrangements. The MLC asked for further background before deciding on the application.

Held: evidence showed that the Waitomo District Council, as representative of the local community, had been a party to the agreement to vest the blocks in Mäori groups. As a first step, the reserve order over the local domain had been cancelled, and the council, as administering body, had not exercised a right of objection, on the understanding that the agreement would be put into effect. However, the Crown had subsequently determined that one of the blocks must be vested in a different Mäori group from that named in the earlier agreement, and the council had not been informed of this change. Both the council and community representatives now opposed the s134 application in relation to one of the blocks forming the local domain.

Section 134 provides a means for Crown land to be vested in persons nominated by the Crown. Therefore only the Crown and the Mäori owners were parties to the application. The court could only make or refuse the order being sought, and could not vary it without the consent of the Crown. The council and community representatives had no registrable interest in the land, and their objections could not be taken into account. The council might of course have other legal remedies against the Crown, particularly with regard to its waiver of a right of objection when the reserve order was cancelled.

 

 

Waitangi Tribunal

 

Noteworthy new claims

Wai 621: Rangi Paku on behalf of the Wairoa-Waikaremoana Mäori Trust Board complains about the construction of hydro electric works on the lake and seeks their return to the claimants’ ownership. Filed 12 September 1996

Wai 625: Denise Katete Egen and 4 other students at the Unitec Institute of Technology allege that Crown education policies have denied Mäori equal access and equity of education in courses in which they are enrolled and shown favour to non-Mäori over Mäori in resource re-allocation. EFTs (equivalent full-time) requirements have not taken into account the disproportionate number of Mäori students. They seek a halt to current restructuring, sufficient resources to retain staff, and EFTs criteria to be investigated. Filed 23 August 1996

Wai 631: Tanenuiarangi Te Awe Awe on behalf of Rangitane Ki Manawatu seek in part investigation of present or past Crown ownership of lands including Tangimoana State Forest, Massey University and its farming blocks, Palmerston North Polytechnic, Linton Army Camp, Ruahine State Forest, Mangahao Dam and power station. Filed 16 August 1996.

Wai 632: Garry Hooker and Alex Nathan on behalf Ngäti Whiu and Ngäti Kawa hapü of Te Roroa claim that 10,000 acres south of Dargaville (Te Kopuru and Aratapu blocks) was wrongly obtained by the Crown in 1842 and seek return of Crown land remaining in the area and compensation for the remainder. Filed 8 August 1996

 

Claims withdrawn

Wai 46:  all that part of the claim concerning Mataatua Wharenui, which is dealt with in a deed of settlement dated 30 August 1996 (memorandum 2 October 1996).

Wai 328: whale watching claim (direction 6 September 1996).

 

Boundary dispute

To make progress on overlapping claims in negotiations over the settlement of the Te Roroa (Wai 38) claim, the Crown has requested that claimants seek a decision of the Mäori Appellate Court on boundary issues under s6A(1) Treaty of Waitangi Act 1975. In a memorandum on the issue (9 October 1996) Deputy Chief Judge Smith noted that because the Te Roroa Report 1992 refers to Te Roroa as a border people sandwiched between larger tribes it would be appropriate for the court not to fix definite boundaries but merely determine the area over which they traditionally exercised use and occupation rights - although of course the court must follow the statute (but he noted a memo of the Chief Judge of December 1993 which recommends essentially this course for Bay of Plenty claims). He also asked for submissions on tribunal jurisdiction, specifically:

- s6A/1975 allows referrals of boundary issues by the tribunal - does this mean only the tribunal sitting on the particular claim, or might the Chief Judge make such referrals?

- in order to be referred, a boundaries issue must arise in proceedings before the tribunal. Was this the case here, or had the issue on arisen after proceedings ie during the settlement negotiations?

 

Remedies Hearing

The tribunal has held a remedies hearing over the Te Whanganui-a-Orotu claim and report (the report was released in June 1995 see Mäori LR July 1995 p2). While the tribunal report from that hearing is pending, in a memorandum (4 September 1996) the tribunal has indicated that it will be recommending that the Crown retain a 50% shareholding in the Hawke's Bay Airport Authority until all aspects of the wider claim are finalised. The notice was given because of indications at the hearing that the Crown may be considering a sale of its shareholding in the airport authority.

 

Tribunal procedure

The tribunal has issued a practice note, Casebook Method, which establishes a procedure for bringing claims into the tribunal hearing programme aimed at improving efficiency “by ensuring that all claims are adequately researched in advance of the commencement of hearings.” The note sets out how tribunal officials and members will compile casebooks. The lack of a casebook can be a reason for deferring a hearing of claims, although urgent hearings will not require a casebook. The first casebook, for the Mohaka ki Ahuriri claims, has been circulated.

[ed: this note reiterates a message of earlier practice notes that, ideally, hearings should not commence until all written evidence has been filed. This note formalises that desire by requiring materials to be compiled in a particular way. However, the note acknowledges that many documents eg Crown research in response to claims, will be filed after hearings commence, and that there is little that can practically be done about that. So how much difference the note will make in practice is uncertain. It will be most applicable to situations where claims in a region are grouped and heard together.]

 

 

Other courts and tribunals

 

Te Iwi Moriori Trust Board V The Treaty Of Waitangi Fisheries Commission & The Treaty Tribes Coalition

Court of Appeal. CA 238/96, 14 October 1996. Gault J, Thomas J, Blanchard J

The Mäori Fisheries Act ss5 & 8 obliges the Treaty of Waitangi Fisheries Commission to facilitate the entry of Mäori into the business and activity of fishing, and to grant assistance for that purpose, “having regard to Mäori custom, economic and social considerations”.

Pending a final allocation to iwi of pre-Sealord settlement assets, the commission had been offering to iwi annual leases of fishing quota at discounted rates. Since 1993, the formula used to allocate leases of quota took account both of iwi population and, in a very rough manner, the coastline of each iwi. For the 1996/97 fishing year (commencing 1 October 1996) the commission proposed to alter the formula to take more accurate account of the coastline length of each iwi. The Chatham Islands would lose by this formula $342,000 worth of quota. In the High Court they sought an interim order to protect their position pending a substantive hearing of review proceedings. In a judgment on 7 October (CP255/96 HC Wellington) Goddard J found a prima facie case that the commission had failed in its revised formula to have regard to the special economic and social circumstances of the Chatham Islands, and therefore had failed to have regard to a mandatory consideration. However, she refused an interim order because it would be difficult to alter the Chatham allocation without affecting all other iwi, the trust board (representing Moriori people of the Chatham Islands) could not give an undertaking as to damages, and since each years leasing was on a “without prejudice” basis, there was no position for the board which needed to be protected, either in terms of trust board entitlement to leased quota in future years, or entitlement in the final allocation of the pre-settlement assets. The board appealed.

Held: the commission case, argued on the basis of Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 had been given “perhaps with a degree of complacency”, encouraged by its success in 4 previous court challenges to the annual leasing regime. However, considerations had changed with the extension of the timeframe for the final allocation of fishing assets.

While it was understandable that the annual leasing rounds were seen as an interim measure, with any inequities being adjusted in the final allocation (as was recognised in Te Runanga o Muriwhenua [1996] 3 NZLR 10, 20), the commission could not disregard present statutory obligations simply because they might be later discharged, nor had it been shown how it might be reasonably practical later to remedy present inequities, and new inequities should not be created by present proposals.

The commission had not had regard to social and economic factors in its revised formula for the Chatham Islands. Had it done so “it could reasonably have been expected that there would have been advanced grounds upon which the reduction of assistance to the people of the Chathams Islands, as against other groups of Mäori, for the 1996/1997 year is justified.” There was prima facie a failure to have regard to mandatory considerations. Further, there was evidence that the reduction of quota would have adverse social and economic effects on people of the Chatham Islands.

The commission argument that it was impossible to give effect to social and economic considerations in an interim arrangement pending final allocation amounted to an argument that the commission was unable to meet its statutory obligations. While short deferments in the interests of a final solution might be reasonable, there was little optimism now that there would be an early final allocation.

While it might be appropriate, as the commission suggested, for any present inequity to be overcome in future lease rounds or in the final allocation, economic and social circumstances are dynamic and later adjustments might prove inadequate, and lessees had agreed that present leases should not create future expectations.

The commission had suggested that even after considering social and economic factors, the Chathams could not expect substantially more quota since they already received per capita greater assistance than other Mäori and other iwi could argue for special treatment, however there was not sufficient evidence at this stage that the case for substantive relief would be unlikely to succeed. Nor was it relevant that the trust board had previously on-leased its quota, or that only a small percentage of total quota was being leased by the commission in this round.

As to whether an interim order was required to preserve the position of the trust board, if an interim order were given, a substantive hearing would not follow for some time. However, the commission had stressed the disruption an interim order would have on the imminent annual allocation, which suggested that should an interim order be refused the board's ability to pursue substantive relief would be rendered 'nugatory'. The interests of the majority of lessees required careful consideration - but must be balanced against the prejudice to a small minority which had "demonstrated a strong case of failure" by the commission in its statutory duties, and their interests should not be overwhelmed by the majority. Moreover, an interim order would not mean that the commission would simply stop all fishing - which would be inconsistent with the commission's statutory functions anyway - but rather that sensible commercial arrangements would be made to avoid industry disruption. The proposed allocation arguably would be likely to prejudice investment and the economic base of the Chathams, such that subsequent leasing rounds could not rectify matters, and other factors might by then have assumed importance. Nor had there been any waiver by the board or estoppel because of a delay of several weeks between the announcement of the lease allocation and the present proceedings. The commission's statutory obligations could not be set aside in such a manner. Overall, the court had to weigh the lateness of the application for review and the inability of the appellant to give an undertaking as to damages against the apparent strength of the substantive application and the difficulty of the appellant securing relief should an interim order be refused.

The court had indicated that an interim order was justified. The commission and the board (but not the Treaty Tribes Coalition) had agreed that the commission would set aside its decision and reconsider afresh all leasing arrangements for 1996-97.

[ed: the commission subsequently informed the court that leasing would proceed on the same basis as in the 1995/96 fishing year. This is the first time the commission has lost a case on its approach to allocation - something which to date the courts have considered is a specialist task best left to the commission. Here a clear statutory breach was in evidence however. Both this case and the Runanga o Muriwhenua case being appealed to the Privy Council suggest that census data on the social and economic status of Maori groups will become a hot topic in the next few months.]

 

Matiu Rata & Others v Minister of Mäori Affairs & Others

High Court Wellington. CP 203/96. 2 October 1996. McGechan J

Matiu Rata and 4 other Mäori fisheries negotiators  (Sir Graham Latimer, Sir Robert Mahuta, Maanu Paul and Whatarangi Winiata), alleged that the process used by the minister in considering appointments to the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) was in breach of the Mäori Fisheries Act 1989 (which requires consultation with fisheries negotiators and other representatives).

When the substantive hearing was called the applicants sought an adjournment, or, if that were not possible, dismissal on a consent basis. They had received assurances from the Minister of Mäori Affairs which they said would give them largely what they sought through the proceedings. The Crown sought immediate dismissal of the proceedings, and was supported by two other respondents (Sir Tipene O’Regan and David Higgins - joined at their own request) who argued that the proceeding was merely a ‘filibuster’ designed to prevent appointments until after the general election - which had now been achieved.

Held: since there was opposition to an adjournment, and there was much to be said for cleaning the slate, not only to allow the governmental process to continue but also ‘from a wider and Treaty aspect”, the proceedings would be dismissed. The applicants could revisit the matter in fresh proceedings should legal obligations not be met by the minister. Costs would lie where they fell as there were some public interest in fisheries negotiators being encouraged to work together in future.

 

Otaraua Hapü of Te Atiawa v Taranaki Regional Council & Petrocorp Exploration Ltd

Environment Court. W129/96, 20 September 1996. Treadwell J, PA Catchpole, JD Rowan

The regional council granted to Petrocorp a consent to discharge into a tributary of the Waitara river 50 cubic metres per day of treated storm water from hydrocarbon exploration operations . While there was no question that the stormwater from the drilling operations would be adequately treated, the hapü claimed to be culturally offended by inadequate consultation both in the application for a consent and its granting. The hapü asked the court to overturn the consent and indicate the correct approach to consultation.

Held: there are 4 processes involving consultation:

- preparation of district or regional plans. Consultation is mandatory for councils;

- public notification of plans and submissions on them. Councils become quasi judicial bodies. No unilateral consultations with particular parties are permitted;

- decisions whether to notify a resource consent application;

- notified applications where the council is to hear the application as a quasi judicial body.

There is a tension between the council need to consult to address Mäori issues under ss6(e), 7(a) and 8 while remaining impartial in the hearing process. Significantly, s99, which provides for discussions between groups to resolve disputes, assumes that a member of a council who engaged in such discussions would normally be disqualified from taking part in any final decision-making.

Obiter comments in Quarantine Waste (NZ) Ltd v Waste Resource Ltd (1994) NZRMA 529, 542 suggest councils must consult ‘first-hand’ with Mäori where there is an application for a resource consent, but this should be through reports of council officers, commissioned reports under s92 or by pre-hearing meeting under s99. Worldwide Leisure Ltd v Anor & Taupo District Council & Anor HC M1128/94 supported this approach. It looked at the decision whether to notify a resource consent. That decision was cause for ‘unease’ if it suggested that unilateral consultation is permissible at that stage, since it could lead to a decision not to notify and deprive other parties of a right to be heard.

Greensill & Ors v Waikato Regional Council W17/95 summarised the current position with consultation, ie councils must consult local Mäori in the preparation of plans or policy statements; may delegate a decision whether to publicly notify an application for a resource consent to a council officer, who must, where local Mäori might be affected by the decision, consult local Mäori, and that consultation may be unilateral; may consult where appropriate with Mäori where resource consent applications have been publicly notified, but must do so through a council officer or commissioned report and may not unilaterally consult.

Looking at the timeframe for consultation for a publicly notified application,  once a council decides no further information is required, it is locked into the time frame under s92. The council has 10 working days to publicly notify (s95 - in appropriate cases service upon iwi authorities is required under s93(1)(f)), 20 working days for submissions to be received, and a hearing must follow 25 working days from the closure of submissions. Thus the normal time frame from the lodging of an application to its hearing is a maximum of 55 working days. However there are only 20 working days between notification and the date of closure of submissions. This is the period in which consultation should take place for iwi or hapü to decide whether to make a submission.

The appellants suggested programme for consultation was an initial meeting with the council, in the absence of the applicant, followed by a ‘pre-consultation hui’ again in the absence of the applicant, who would not be brought into the consultation until 3 weeks into the notification period. This was a unilateral departure from the normal understanding of consultation. Also, the suggested process would take 30 working days, 10 days over the statutory period. Apart from these reservations, the procedures suggested would certainly qualify as consultation, although they might over-qualify as multiple meetings would not be the norm in all situations.

A suggestion that the council transfer its decision making power in this matter to the iwi (s33) might face strong legal impediments since the iwi was essentially a party.

Accordingly, no particular purpose would be served in allowing this appeal. There was urgent regional importance to both tangata whenua and others in discovering a new gas source.

[ed: in a recent article “Consultation with tangata whenua under s8 of the RMA” 1 BRMB 237 Paul Beverley discusses the still unresolved issue whether s8 makes consultation with Mäori (as opposed to simple notification) mandatory in the resource consent process.]

 

 

Parliament

 

The Fisheries (South-East Area Amateur Fishing) Regulations 1986, Amendment No 7

1996/271. 23 September 1996

Amends regulation 7 to provide that no person who does not belong to the Ngäi Tahu iwi shall take eels from Lake Forsyth. The term “Ngäi Tahu iwi” means ‘the collective of those individuals who descend from the primary hapü of Ngäi Tahu and Ngäi Mamoe, namely, Kati Kuri, Kati Irekehu, Kati Huirapa, Ngäi Tuahuriri, and Kati Ruatikihiki.”

 

 

The Fisheries (Maketu Taiapure) Order 1996

1996/257. 16 September 1996

Constitutes the Maketu taiapure-local fishery which includes tidal waters of the Waihi and Maketu estuaries.

 

 

The Waikato Raupatu Claims Settlement Act Commencement Order 1996

1996/309. 30 September 1996

Brings in to force on the 1 November 1996 s32(1) Waikato Raupatu Claims Settlement Act 1995, which substitutes a new s42L Transit NZ Act 1989 requiring consultation with Mäori before any output or capital project is included in certain roading programmes.

 

 

Other

 

Bulletin on Treaty of Waitangi Issues

Vol 1 No 1 September 1996

The Crown Law Office Treaty Issues and International Law Team has launched this occasional newsletter to provide Government departments and interested agencies with a regular update on legal issues which have arisen in relation to the Treaty of Waitangi. While not attempting to be a comprehensive overview or commentary, it will signal legal developments in which the team have been involved. Contact is PO Box 5012 Wellington.

 

 

Overseas

 

Native Title claims

The first successful claim in Australia under the Native Title Act has been settled, involving 12.4 hectares of Crown land near Port Macquarie NSW. This appears to be the first ever legal recognition of native title on the Australian mainland. The claimant group will receive cash compensation as the land is sold to developers. Meanwhile, the federal government is proposing important amendments to the Native Title Act which, among other matters, would raise considerably the threshold requirements for registration of claims.

 

Walkout of Indigenous Groups

A walkout of indigenous representatives from the UN Inter-Sessional Working Group on the UN Draft Declaration on the Rights of Indigenous Peoples occurred on 22 October 1996 after Moana Jackson, attached to the Mäori delegation, presented a proposal that the existing draft be immediately adopted without amendment. The proposal, which argued that states would simply dilute the impact of the document by further debate, was ignored, leading to the walkout. (Native-L listserv and http://www.hookele.com/netwarriors/)

 

 

Reports

 

Law Commission (Te Aka Matua O Te Ture) Annual Report 1996 (to the year ended 30 June 1996)

NZLC Report 36. Parliamentary Paper E 31

- succession project: a first round of consultative hui have been completed and a preliminary paper is now in preparation;

- Women’s Access to Justice Project (He Putanga mo ngä Wähine ki te Tika): this project included in the year nationwide meetings with Mäori women (a sample of responses of Mäori women to the project are contained in Lawtalk 463, 2 September 1996 pp16-17).

The Mäori committee established to assist the commission commented on:

- Privy Council appeals. The committee urged further debate before legislation was introduced. The commission, after considering the committee’s paper, advised the government that “in the face of such a strong and reasoned Mäori view, there were difficulties and even danger” in proceeding without further consultation;

- Mäori custom law. The commission is preparing a “brief outline of concepts of Mäori custom law for use by judges and others”;

The commission sees the appointment of Mäori as commissioners as essential to furthering its statutory task of considering Te Ao Mäori in its work.

Noted also that the Legislation Manual: Structure and Style (NZLC R35 published in May 1996) comments on the use of Mäori in legislation.

 

Mäori Issues

NZ Law Review 1996 Part II

AL Mikaere comments on the Ngäi Tahu Ancillary Claims Report 1995, Turangi Township Report 1995, and Te Whanganui-A-Orotu Report 1995. She comments that the Kiwifruit Marketing Report, largely glossed the implications of the Declaration of Independence 1835 in the report which found the claim not well-founded.

She also examines the report of the Controller and Auditor-General on the claim settlement process, several High Court decisions in 1995 and fisheries determinations both in the Waitangi Tribunal and courts. Resource management cases and Mäori Land Court cases are also covered.

 

Ko Ngaa Take Ture

Auckland University Law Review vol 8 1996 No 1

Nick Harris "Full and Final Settlement of Treaty Grievances: The Crown's Consitutional Agenda" p205 argues that the Mäori view of settlement is that the spiritual balance upset by the colonial experience needs to be restored. Therefore, for settlements to be full and final a constitutional transformation is required.

A Kawharu "Urban Iwi: The New Tribes of Mäoridom" p209 takes a critical look at Te Runanga o Muriwhenua case in the Court of Appeal. The notion of whanaungatanga relates to kinship which underpins relationships rights and obligations between individual members of an iwi. Urban Mäori do not have manawhenua and no one suggests that they do. "There is certainly a need for urban Mäori groups and individuals to be recognised as coming within the scope fo the Treaty of Waitangi, regardless of iwi affiliation. The very words of the Treaty provide the basis for such recognition, for 'all Mäori' (ngaa tangata katoa) are expressly provided for [in article 2]. Moreover, the groups represented by the Urban Mäori Authorities collective are inherently capable of exercising rangatiratanga, thereby qualifying them to the protection afforded by the Treaty. The Waipereira Trust in west Auckland is a well known example of such a group." Kawharu suggests therefore that the court was wrong in making such a 'purposive' interpretation of the Treaty in its judgment. Cultures may adapt and change but there comes a point when they suffer violence and lose distinguishing qualities. An interpretation by the court more consistent with tradition would have been preferable. Even more desirable is that the parties resolve these issues at a political level - and not use litigation expect as a last resort, lest it becomes the arbiter of custom.

S Te Marino Lenihan “A Time For Change: Intellectual Property Law and Mäori” p211 proposes the establishment of a Mäori Intellectual Property Commissioner to hold in trust all intellectual property not identified as belonging exclusively to individual tribes, allocate to tribes returns on use of property, and advise the government on policy. Iwi would licence use of the property. This would avoid the current individualising regime, which inflicts the equivalent of the old evils of the land court system on intellectual property.

 

 

Speeches, Press Releases

 

Environmental Cultural Levies

Press statement 17 September 1996

Minister for the Environment Simon Upton warned that if Ngäti Kahu had been requiring developers to pay a ‘cultural levy’, ie they would consent to the non-notification of proposals provided sums were paid, they were abusing the resource management act and poisoning good community relations.


September 1996 Contents

Mäori Policies of the Parties

An interesting mix has emerged. Left leaning parties would abandon the $1 billion fiscal envelope. The Alliance wants to establish a $200 million per annum Treaty Justice Fund for claim settlements. NZ First rejects pan tribal or regional settlements, and would include natural resources such as water, geothermal energy and minerals in settlements. Parties on both sides of the political divide want to give more money to the Waitangi Tribunal - an easy promise to make and keep. Ironically, only ACT’s proposal, to replace the tribunal with a panel of retired judges, would significantly increase the cost of hearing claims. National not surprisingly gives the settlement of grievances a top priority. A settlement for Whakatöhea in the Bay of Plenty has just been announced.

NZ First wants Te Puni Kökiri to continue its present role, monitoring the mainstreaming of services for Mäori, a role fashioned for it by the leader of that party. Labour policy, which under the Lange government had a single direction, now seems to face in two directions, turning TPK into a Mäori Development Commission (with Mäori in charge of appointments), while promoting initiatives to devolve some matters to tribal authorities. The Alliance would establish regional assemblies elected by Mäori (Rohe Pooti). However their role would be limited to ‘facilitating initiatives’ in education, health, and cultural advancement.

All parties make statements about the need to improve services and statistics in the areas of health and education, and some commit fresh sums to that.

A few policy extras. Labour and NZ First have indicated they would look at the problems surrounding Mäori land in multiple ownership. NZ First would also look at the Rating Powers Act. Labour would continue with the current fisheries policy, but would also seek the “return of key historic coastal and harbour fishing grounds to hapü.” The Alliance would provide $20 million towards a national Treaty education council which would operate for 10 years. It would also start work on a constitution based on the Treaty.

Overall, these policies demonstrate that, among the major parties, no one is seriously questioning the present approach to race relations, broadly integrationist, with occasional stabs at pluralism. Apart from the policies of the parties, another interesting proposal is that recently endorsed by the National Mäori Congress, to set up a Mäori caucus after the election. If such a body were established and became pro-active it might provide a powerful alternative source of policy.

 

 

Mäori Land Court and Appellate Court

 

Prescriptive easement

S19/1993

Re Pukaroro No 1 & other blocks and Haami Te Wahiti v Daniel Thomas Spencer Riddiford and Another

Wairarapa MB. Marumaru J

The applicants sought an injunction preventing the respondents, the owners of an adjacent farm, from entering on blocks of Mäori freehold land owned by the applicants. The respondents, whom it was alleged used the blocks for grazing, and for access to the coast for fishing (allegedly charging commercial fishermen fees to cross the land), claimed that they had a prescriptive easement over the blocks before they were brought under the Land Transfer Act (in 1887). The Mäori Trustee and advisory trustees of the blocks supported the application for an injunction.

Held: a prescriptive easement proceeds on the basis that where there has been long enjoyment of a right the courts will strive to uphold the right by presuming it had a lawful origin. The user must be as of right (ie openly and without force, and without permission being required), continuous and in fee simple. A prescriptive easement cannot arise in common law in NZ because it is impossible to show continuous user since 1189 (fixed as the limit of legal memory in England). The doctrine of a fictitious lost modern grant may however apply.

The respondents argued that they had established their station 40 years prior to 1887 and diaries from 1863 indicated at least 20 years of daily activity across the blocks without interruption or any requirement for permission. In 1854 the Crown purchased Mäori land in the district and reserved the present Mäori land blocks in Mäori ownership although certificates of title (in lieu of Crown grants) did not issue until 1887 (backdated to 1884). No right of way was reserved in the titles. The respondent argued that they would have been assumed and protected by English law and Mäori custom. The adjacent farm of the respondents, which was Crown granted in 1877, reserved a right of road which made no sense unless it was assumed that a right of way existed over the Mäori blocks. The only access to the coast was through those blocks. An access road had subsequently been built across the blocks at the respondent’s expense. No one disputed that once land came under the Land Transfer Act (in 1887) no prescriptive right or easement could be acquired over it (and while adverse possession is possible under the Land Transfer Amendment Act 1963 it may not be asserted over Mäori land).

The court will not infer an origin to a prescriptive easement which would involve illegality. Prior to 1887 when titles to the blocks were issued, they were held under Mäori custom. The Treaty of Waitangi reserved to the Crown the right of pre-emption which was, apart from a brief period in 1844, regularly affirmed in the Land Claims Ordinance 1841, The Native Land Purchase Ordinance 1846, the Constitution Act 1852, the Native Lands Act 1865, the Native Land Act 1873, the Native Land Administration Act 1886, the Native Lands Frauds Prevention Act 1881 Amendment 1888 and the Native Land Court Act 1894. This right included any interest in Mäori land. Consequently, the prescriptive easement claimed was not ‘as of right’ since the Land Claims Ordinance 1841 and the Native Land Purchase Ordinance 1846 were operative in the period when the prescriptive easement was said to arise. Further, for the law to have allowed such claims by adverse possession  in the past would possibly have seen huge tracts of Mäori land claimed by European settlers, contrary to the Treaty of Waitangi and the Crown’s pre-emptive right. The Constitution Act 1852 and the Native Lands Act 1865 were operative in the 20 year period from 1863 when station diaries were kept. The respondent’s had no more than a licence which was now clearly revoked. An injunction should accordingly be granted.

 

 

Sales of land by trusts

Ss 137 & 228/1993

In Re Waimana 251 & 252 and Rangatira E block

Waiariki MB 22 August 1996 Savage J

This case concerned two ahu whenua trusts which had obtained orders changing the status of Mäori freehold land vested in them to General land to allow for sales to rationalise their landholdings. The first trust was acting on an order under s137/1993, ss(1)(d) of which requires that no such order be made unless there is an intention to acquire further land, and ss(2) of which allows for orders requiring the proceeds of any sale to be applied to the acquisition of other land or held in trust for that purpose.

The first trust had made several sales when the District Land Registrar queried whether it was forbidden from selling the land by s228/1993, which forbids sales of "any land" vested in trustees of a trust constituted under the 1993 Act unless 75% of the beneficial owners give prior consent.

Held: section 228 is open to 3 possible attacks. First, since these trusts were constituted under s438/1953 and not the 1993 Act (s354/1993 merely provides for the continuation of s438 trusts as ahu whenua trusts but does not deem them to be such trusts), s228 might not apply. Second, "any land" might refer only to Mäori freehold and not General land vested in trusts. Finally, s137 might be regarded as an exception to s228.

If s137 were interpreted as overruling s228 then the Act would lack coherence and self consistency in this area (followed Northland Milk Vendors Association [1988] 1 NZLR 530 and In Re Kawaha 3E 236 Rotorua MB 123). A drafting error had clearly subverted the intent of the Act. Comment from Hansard about the intention behind s137 confirmed that it was intended as an exception to s228.

Because the first trust was about to sell all of its land, and would cease to exist if it did not own land, there would be an order under s137(2) that the net proceeds of any sale were to be expended on land acquisition according to a land acquisition plan approved by the court.

The orders rationalising land holding in the case of the second trust were made under the 1953 Act. Consequently the same reasoning could not apply. However the sales were to effect minor boundary adjustments and came within the terms of an exception provided in s228(2) for such cases. As to whether in other cases trusts with rationalising orders under the 1953 Act might run foul of s228, his Honour commented that he would be reluctant to find that a s438 trust was not a trust to which all of Part XXII/1993 applied. To hold otherwise would deprive s438 trusts of the benefits of s218/1993 (Mäori community purposes) and s221/1993 (power to amalgamate trusts).  Also, it was difficult to see how the words "any land" in s228 could be restricted to Mäori freehold land. In general, trustees of ahu whenua trusts need to recognise their limited powers of sale and seek legal advice before embarking on sales schemes, to avoid being trapped between the restrictions in s228 and obligations to prospective purchasers.

 

 

Occupation licence

Whether a house is a fixture

S18(1)(a)&(d)/1993

In Re Waimanoni 1B3B2A

19 Kaitaia MB 227, 26 August 1996. Deputy CJ Smith

Trustees of a s438 trust granted a 30 year occupation licence to an individual for the purpose of erecting a house. The licence was noted by the registrar of the MLC under s233/1953. The licensee and the trustees entered into an tripartite agreement with Housing Corporation to allow the licensee to borrow money and erect a house. The agreement provided that should the licensee default on his repayments, or should he or the trustees sever the house from the land, or end the occupation licence, the licensee would be required to deliver up possession of the house and the corporation could "sever and remove" the house from the land.

The licensee defaulted in his repayments. The corporation sought a declaration under s18(1)(a)/1993 (court may determine claims to ownership of any interests in Mäori freehold land) that the house was a chattel and could be removed under the tripartite agreement. The trustees, among other matters, argued that the house was a fixture attached to the land, making the proposed removal an alienation requiring confirmation under the 1993 Act. They also argued that the corporation had obtained only an equitable right to a part of the land, ie the house, and no right to remove it.

Held: the corporation's application in fact came under s18(1)(d) (court may determine proceedings in contract relating to Mäori freehold land). While on a visual inspection the house appeared to be a fixture in terms of criteria set out in Lockwood Buildings Ltd v Trust Bank Canterbury Ltd (1995) 1 NZLR 22, it was also held in that case that parties could regulate such an issue by contract as they saw fit. The intention of the tripartite agreement was clearly that the house remain a chattel, particularly when regard was had to the right of the corporation to remove the house if the licensee was in default. The MLC had a wide jurisdiction to determine such issues under s30(1)/1953 (considered in Kotuku B1 Kopa v Kopa (1983) 62 Whangarei MB 182), and this continues under s18(1)(a)/1993, but it was not necessary to draw on that jurisdiction in this case because of the plain intent of the tripartite agreement.

As to the argument that the corporation had only an equitable interest in the land and not a right to remove the house (such an interest was found in Leasing Corporation Pty v CSB Prudential First Nominees Ltd (1962) VR 429), no such equitable right was intended here. The agreement clearly restricted the corporation's interest to removal of the house and gave no other rights. It also contemplated that the trustees provide a right of entry to the corporation to allow the house to be removed. Nor was the corporation's interest under the deed a mortgage and subject to Part VII of the Property Law Act 1952. Nor was the removal of the house an alienation of an interest in land under the 1993 Act since it was agreed that the house remain a chattel. In any event, past determinations under s30(1)(a)/1953 and s18(1)(a)/1993 as to the ownership of dwellings have been declaratory and do not constitute an alienation.

 

 

Waitangi Tribunal

Changes to Tribunal membership

16 September 1996. Office of Minister of Mäori Affairs

Former District Court judges Richard Kearney and Dame Augusta Wallace and the past president of the Mäori Women’s Welfare League and Human Rights Commissioner Areta Koopu have been appointed to the tribunal for 3 years. Keita Walker and Brian Corban have been reappointed for 3 years, Sir John Ingram and Pamela Ringwood for 1 year. Professor Gordon Orr, Georgina Te Heuheu and Joanne Morris have not being reappointed.

[ed: Georgina Te Heuheu also leaves the board of the Museum of NZ, and has been replaced by Sir Robert Mahuta. Former tribunal member and district court judge, Des Sullivan, has died.]

 

 

Other Jurisdictions

 

Planning Tribunal

TV transmitter site

Cultural values

Tainui Hapü & Others v Waikato District Council & TV3 Network Services Ltd

A75/96 12 August 1996 Sheppard J, PA Catchpole, Dr AH Hackett

The Waikato District Council granted a resource consent for the erection of a 13 metre single pole television translator on an area of land known as Horea. The appellants argued that the site was of special cultural significance to them, being ancestral land which contained waahi tapu.

Held: under s104(1) Resource Management Act 1991 the installation of the translator would have no significant effects on the environment or on amenity values, and would cause much less disturbance to the ground than the farming activities normally conducted there. The consent had been granted subject to the conditions that an iwi representative be on site and that any recovered material would be removed in accordance with proper protocol.

The proposed district plan provided that the council would: (i) have regard to the cultural values and history of the coast; (ii) have particular regard to Mäori values and archaeological sites; (iii) promote respect for, protect and preserve waahi tapu; (iv) recognise the spiritual and cultural significance of particular land-forms to the tangata whenua; (v) ensure tangata whenua participated in the sustainable management of resources in keeping with s8 RMA; (vi) protect areas of cultural heritage; and (vii) ensure that no work on any Mäori feature or waahi tapu listed on planning maps be commenced without council consent.

While the applicants (TV3) had gone to considerable trouble to minimise the risk of disturbing any buried physical remains during installation of the translator, other aspects of the relationship of Mäori with the land should have been be taken into account. The applicant had considered a number of potential alternative sites, none of which were capable of providing the same quality of reception without incurring extra expense, but that inquiry had been conducted with reference only to cost and effectiveness and without regard to the relationship of Mäori with their ancestral land and waahi tapu. Admittedly, the tangata whenua had bluntly refused to discuss the site, it was not identified in the district plan as a waahi tapu area and farming activities more disruptive than the proposed installation had taken place on the land in the past.

Section 6 RMA requires recognition of spiritual aspects of Mäori relationships to the land. The land here was ancestral land, generally contained sites of cultural and spiritual significance, and was closely associated with deep respect for ancestors, so that any disturbance of the ground would be regarded as a desecration. The translator offered benefits to the social and cultural well-being of TV viewers, but the same benefits would not occur for the tangata whenua and granting consent would not respond to the strong direction of s6 of the RMA. Although that direction was not necessarily decisive in the context of conflicting considerations, s6 was reinforced in this case by the detailed provisions in the proposed district plan. Also, there were other possible translator sites which could be nearly as effective, even though involving greater costs. Consequently, the appeal should be allowed.  In light of the fact that the tangata whenua had not sought to have Horea identified in the District Plan and had rejected the applicants’ attempts at consultation, an order for payment of the appellants’ costs was not appropriate.

 

 

In Parliament

 

New Fisheries Act

Fisheries Act 1996

No 88. Assent 13 August 1996

The Act provides that all persons exercising power under it act in a manner consistent with New Zealand’s international obligations to fishing and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (s5). The select committee rejected proposals that Treaty of Waitangi obligations be more directly referred to, arguing that these were embodied anyway in the 1992 Settlement Act (Primary Production Committee Report). The committee also noted that taiapure-local fisheries provisions remain unchanged, but will be fully revised after the work of the Customary Fisheries Working Group is complete. Mäori values with regard to fisheries are catered for in provisions requiring consultation, with particular emphasis being placed on kaitiakitanga.

Section 44 requires that 20% of the quota of all new fishing stocks brought under the Quota Management System pass to the Treaty of Waitangi Fisheries Commission, as promised under the 1992 fisheries settlement. However if provisional catch histories of existing fishermen would account for over 80% of the fish stock which is to be allocated, then a special Act will be required to bring that species under the QMS (s39).

[ed: apart from technical errors which have crept in in the rush to pass this legislation, the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) is concerned that the requirement for special legislation for each new species coming under the QMS will in practice prevent them ever coming under the scheme. Te Reo O Te Tini A Tangaroa Aug 1996]

 

 

Teacher registration

Kura Kaupapa exemption

Education Amendment Act 1996

No 98. 2 September 1996

This amendment provides for compulsory teacher registration but exempts any person employed to teach in a school designated as Kura Kaupapa Mäori under s155 Education Act 1989 (new ss 120A(3) & 120B(5)).

 

 

Lake Taupo fishing

Registration of old consolidated orders

Law Reform (Miscellaneous Provisions) Bill (No 5) 1996

Sections 202-203 amend s14 of the Mäori Land Amendment and Mäori Land Claims Adjustment Act 1926 to provide that the Minister of Conservation, with the concurrence of the Tuwharetoa Mäori Trust Board, may by Gazette notice fix the forms, classes, scope, effect and fees for fishing licences in the Taupo District fishery, with the notice having the effect of a regulation.

Sections 204-205 amend s123 Te Ture Whenua Mäori Act 1993 to provide that consolidated orders made under Mäori land legislation prior to 1993 can be registered against the title of Mäori freehold land. The 1993 Act currently provides that only consolidated orders made under the 1993 Act can be so registered.

 

 

Waitutu block bill

Implementation of settlement

Waitutu Block Settlement Bill 1996

No 217. Introduced 28 August 1996

The Bill gives effect to a deed of settlement and deed of covenant between the Proprietors of Waitutu Incorporated (a Mäori incorporation) and the Crown signed in March 1996 concerning the Waitutu Block, an area of virgin indigenous forest close to Fiordland National Park.

The Bill provides that while the incorporation continues as the registered proprietor of the land it will be managed by the Crown under the National Parks Act 1980 as if it were a national park, but reserving to the incorporation rights to hunt deer, fish, gather traditional food and medicines and build a helicopter landing site and accommodation hut (cl5, and deed cl3). The incorporation will be consulted by the Crown in the exercise of its powers under the National Parks Act 1980 or the Conservation Act 1987 in respect of the administration of the land, the development or review of management plans or strategies, and any acts which may interfere with waahi tapu areas (ss7, 8. The deed requires the Crown to act in accordance with the principles of the Treaty of Waitangi cl10(v)). The Crown’s duty to consult will be discharged by consultation with the management committee of the incorporation (s9). The incorporation will receive financial and other recompense (cutting rights on Crown lands) for foregoing contracts for the removal and sale of virgin rimu and other indigenous timber, and no indigenous trees or vegetation may be removed from the land. The Waitangi Tribunal is prevented from making further inquiry into 2 claims “attributable” to the incorporation (part Wai 27 and Wai 158) or any future claims to similar effect (s12). The Crown has first right of refusal should the incorporation seek to dispose of any interest in the block (deed cl 21). If the Crown purchases any land in the block it will become national park land and this bill would cease to apply (cl 6).

 

 

Education

Mäori Education Authority proposal

Inquiry Into Mäori Education

Fourth Interim Report of the Mäori Affairs Committee (Kura Kaupapa Mäori) 1995

This report concentrated on kura kaupapa  Mäori and Whare Kura and questioned the current policy permitting only 5 kura to be established annually in the face of high demand. It also addressed teacher shortages, finding that the government has not acted to date with sufficient urgency on the issue. An integrated approach to all education issues was again stressed, possibly under a Mäori Education Authority.

[ed: the Teachers Union has endorsed the proposal for a separate Mäori Education Authority.]

 

 

General

 

Constitutional relevance of the Treaty

Constitutional Law

Philip Joseph New Zealand Recent Law Review, Part I 1996

Joseph comments on the precise constitutional nature of the apology by the Crown in the Waikato Raupatu Claims Settlement Act and discusses the potential of the Treaty of Waitangi to be used as a constitutional basis for the judicial review of administrative decisions, which he suggests was foreshadowed in Ngai Tahu Mäori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (the ‘Whale-watch’ case, see Mäori LR September 1995 p3). Section 4 Conservation Act 1987 required that the Act be interpreted to give effect to the principles of the Treaty, so the decision was not a departure from established principles, however, factors controlling the exercise of statutory discretion need not be enforceable or have legal standing, for example some international instruments and acts of state which are so manifestly important that no reasonable Minister could fail to take them into account (Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) and Tavita v Minister of Immigration [1994] 2 NZLR 257).  The Whale-watch case indicates that so long as the application of Treaty principles is consistent with the empowering Act, the Crown is under a duty actively to protect Mäori interests. Such a constitutional ground of review does not depend on the statutory incorporation of Treaty principles, the context imports them. Thus the obstacle of Te Heuheu Tukino is avoided. Joseph anticipates further extensions of the role of the Treaty in administrative law.

[ed: while there are definite signs that the courts may follow this logic, there are as yet no definite statements that Te Heuheu Tukino will be so readily avoided, and the Whale-watch case arguably is more conservative on this aspect than Joseph allows.]


August 1996 Contents

Mäori Land Court and Appellate Court

BN Pearce & AG Pearce and Paengaroa North K and B4B Blocks

1 Waiariki ACMB 44, 26 June 1996. Deputy CJ Smith (presiding), Spencer J, Isaac J

This was an appeal from an order removing two trustees (the appellants) because they had paid themselves an honorarium of $3000 each (ie $6000 in total) when the words of the trust deed suggested that $3000 in total only was payable. The appellants had been ordered to repay $3000 to the trust, and then removed as trustees because they were now debtors to the trust and therefore faced a conflict of interest.

Held: the Mäori Land Court indisputably has power to remove trustees under both s240/1993 (removal for failure to carry out duties satisfactorily, lack of competence or prolonged absence) and s237 (MLC to have inherent powers of the High Court for trusts under Part XII/1993).

The wording of the trust order was at the least ambiguous as to the total honorarium payable (“the Trustee may pay one or more Trustee honorarium in total of no more than $3000”). A perusal of the minutes of the MLC when the trust order was amended to include the payment provision showed that a total of $3000 per trustee was intended. Section 74(2)/1993, which provides that where orders are in conflict with the court minute the order is to prevail, was not relevant. Here the order was not in conflict with the minute, but merely ambiguous.

Also noted that while a trustee is required to know the terms of their trust, and reading the trust order may assist this, failure to read the trust order does not of itself constitute an adequate ground for removal of a trustee.

In Re Karu O Te Whenua B2B5B1 Block and B Marsh & Others

19 Waikato Maniapoto ACMB 40, 27 February 1996. Hingston J (presiding), Marumaru J, Isaac J

A farmer leasing a block of Mäori freehold land (approx 207 hectares) adjoining his own land successfully obtained a resolution of the majority of owners to sell the leased land. The Mäori Land Court adjourned the application for confirmation to allow the non-sellers to apply for a partition order. The MLC made an interim decision that the application for partition had sufficient support in terms of s288(2)(b)/1993, since the views of the sellers were not important—they would receive money for their shares whether partition proceeded or not and would therefore not be unduly affected by the partition. The court adjourned while detailed partition proposals where drawn up. Later however, another judge (the original judge was on leave) reversed the interim decision, holding that there was not sufficient support as the support of the sellers was the only thing which could be considered, since the applicants support for their own application could not be considered. The non-sellers who had been denied a partition order appealed.

Held: an order made without notice is contrary to natural justice and outside the jurisdiction of the court (Jennings v Scott (1984) HC Rotorua A183/79 followed). The lower court, having made an interim decision on partition, had breached natural justice in not giving parties notice that it would be re-examining the issue and an opportunity for those affected to be heard.

As to what constitutes a sufficient degree of support in terms of s288(2)(b), that subsection provides that the court must be satisfied “there is a sufficient degree of support for the application among the owners having regard to the nature and importance of the matter.” There were 3 elements to this:

• there must be “sufficient support” ie support needs to outweigh opposition before partition can proceed;

• support is from “among the owners” which includes those owners making the application and any other owners. Support is for the application not the applicants;

• the court must also have regard to the “nature and importance of the matter” which means looking at the totality of the application in each case and at the Preamble and ss2 and 17.

The appellate court suggested the following guideline:

Without limiting the general discretion conferred upon the Court by Section 288, the Court may decline an application for partition if the Court is satisfied that the partition would not be consistent with the objects of the Act having regard to the following matters:

(a) In all cases:

(i) The historical importance of the land to the partitioning owners or any of the owners and their historical connection with it;

(ii) The nature of the land including its location and zoning and its suitability for utilisation by the partitioning owners or any of the owners;

(iii) The question of whether or not the owners have had an adequate opportunity to give the proposed partition proper consideration;

(iv) The retention of Mäori land in the hands of its owners, their whänau and their hapü;

(v) The occupation, development and utilisation of the land for the benefit of the owners, their whänau and their hapü.

(b) In the case of a partition that is opposed by some of the owners:

(i) The respective interests of the supporting and opposing owners including the applicants;

(ii) The number of opposing owners compared to the number of supporting owners including the applicants.

Applying those guidelines to this case, those opposing the partition held 75% of the shares in the block, although those supporting partition numbered 72% of the owners. Those selling would not be affected as they would receive the same amount of the sale money. Those favouring partition wanted Mäori land retained for non-sellers. There was an urupa and historic spring in the area for which partition was sought. The area being partitioned was suitable for the use for which it was sought.

Accordingly, allowing the partition would support the overriding objective of the 1993 Act, retention of Mäori land in Mäori ownership. The sufficiency of support must be viewed with that in mind and therefore the number of owners in support of partition was just as important as the shareholding which opposed it.

The lower court was wrong in its second decision in deciding that applicants for partition could not support their own application, but correct in its first decision, that the support of the sellers was less important because they would not be affected by partition - although the views of the sellers should not be given no weight at all, but rather a lesser weight. There was therefore sufficient support for partition and the appeal should succeed.

When courts receive an application for confirmation and it is evident that non-sellers wish to remain on the land, the judge should “lean towards” accommodating the non-sellers because of the emphasis on retention of Mäori land in the Preamble and s2. This is notwithstanding that the 1993 Act does not repeat s320/1953 which provided for an adjournment of confirmation proceedings to allow non-sellers to seek partition orders.

In fact, where there are owners who have not voted for a sale (including interests of deceased owners) the court has “an obligation to avoid compulsorily divesting these owners of their land.” There might be situations however where it was impractical to partition out the non-sellers’ interests - which could well decide whether confirmation was refused or given.

As non-sellers only wish to maintain the status quo they should not be burdened with partition or subdivisional costs. These should be borne by the sellers or the purchaser.

[ed: this decision is consistent with the similar finding in In Re Brown and Kairakau 2C5B Block 11 Takitimu ACMB 143, reported in last month’s Review]

Waitangi Tribunal

Tribunal membership

Emarina Manuel died on the 16 August. She was a member of the tribunal sitting which heard the Ngai Tahu land and fisheries claims (Wai 27).

In a direction of 8 August 1996 it was noted that Georgina Te Heuheu will not be available for further sittings of the Wai 145 (Wellington Tenths) hearings due to the forthcoming election.

 

 

Ike Hunter on behalf of Ngäti Tama Whiti concerning Kaimanawa Wild Horses

Wai 588, direction of 12 July 1996. Deputy CJ Smith, Deputy Chairperson

The tribunal declined an application for an urgent hearing on the matter of a proposed Crown cull of 250-300 of an estimated 1800 horses. The Crown intention to curtail damage to flora and maintain the horses at a sustainable level was an exercise of kawanatanga intended for the benefit of the country as a whole. It was noted that the first horse introduced to the central North Island was a present to the son of Te Heuheu Tukino in 1844. Sir Donald McLean released a stallion and some mares on the Kaimanawa Plains in the 1870s.

Other Jurisdictions

NZ Guardian Trust Co Ltd as trustee of Sir Henry Kelliher Charitable Trust v Te Maati Mohi Wiremu Manukau and Eru Manukau and Others as trustees of the Manukau Mäori Trust Board

CP 331/95 HC Auckland 24 July 1996 Tompkins J

The plaintiffs were registered proprietors of Puketutu Island in the Manukau harbour. The island was claimed by two groups before the Waitangi Tribunal who alleged that a Crown grant of the land in 1948 was invalid, affecting the subsequent transfer under which the plaintiffs obtained the land. The plaintiffs sought a declaration under s3 of the Declaratory Judgments Act 1908 as to the effect of the Crown grant.

Held: The island had been purchased directly from Mäori in 1845 by a private individual. He had on-sold to another private individual, who had obtained a pre-emption certificate. This was followed in 1848 by a Crown grant confirming the earlier transactions and granting the land to the holder of the pre-emption certificate. Subsequently the land had passed through many hands until in 1971 it was transferred to the present plaintiffs.

Title to the land was protected from actions by Mäori by a series of statutes beginning in 1902, now embodied in s348 Te Ture Whenua Mäori Act 1993, which continued the effect of the Land Titles Protection Act 1908. The Crown grant could not therefore be attacked. In addition, s62 Land Transfer Act 1952 made the current title indefeasible and none of the exceptions to that section applied. Assets Co Ltd v Mere Roihi (1905) NZPCC 275, Boyd v Mayor of Wellington [1924] NZLR 1174 and Fraser v Walker [1967] NZLR 1069 cases confirmed this view. Indefeasibility has more recently been upheld in Housing Corporation v Mäori Trustee [1988] 2 NZLR 662, 678 and Registrar-General of Land v Marshall [1995] 2 NZLR 189, 198. Further, even if the claims over the land were found to be well-founded, the Waitangi Tribunal is specifically barred by s6(4)A Treaty of Waitangi Act 1975 from making any recommendation for the return of private land to Mäori . The court is also entitled to take judicial notice of frequent statements by ministers of the Crown that under no circumstances will private land be taken to satisfy claims under the 1975 Act.

Accordingly, the court declared that ownership of Puketutu is derived from the Crown and held under a valid title under the Land Transfer Act, which could not be challenged by the Waitangi Tribunal or the Mäori Land Court (additional declarations that the Waitangi Tribunal and Mäori Land Court under their legislation lack jurisdiction to affect the plaintiff’s ownership of the land were not therefore required). No finding could be made on the historical evidence presented. The Waitangi Tribunal was the appropriate forum to consider that material.

 

 

EM Uruamo & Others v Carter Holt Harvey Ltd & Pouhere Taonga/The New Zealand Historic Places Trust

A43/96, 24 May 1996. Bollard J

CCH had plans to build a two lane forestry road across private land. The plaintiffs, tangata whenua of the area, challenged a decision of the Historic Places Trust permitting CCH to modify an archaeological site and a decision of the territorial authority permitting construction of the forestry road as a controlled activity.

Held: the tribunal lacked jurisdiction to make an enforcement order against the HPT. Any challenge to its decision is an administrative law matter for the High Court. It was alleged that the HPT should have consulted a local marae rather than a representative Mäori body before consenting to the modification. Some local Mäori no longer regarded the representative body as properly representative of them. This pointed to the importance of Mäori assisting in identification of those who should be consulted, and those doing the consulting to ensure that representative bodies had necessary authority.

As to the permission to build the forestry road, a non-notified subdivisional consent had been given by the local council in 1993 for an accessway to serve the subdivision alone, not the forest adjacent to it. Protective covenants for several archaeological sites were included in that consent, with local Mäori agreeable to this. CCH and the private land owners then sought and obtained a variation to the subdivisional consent from the local council allowing for a two way access route across the subdivision. This variation was also non-notified and several conditions added, but archaeological and tangata whenua issues were not re-addressed. Much more evidence was now available about the possible impact of the forestry road. There was therefore justification in making an interim order halting its construction until there had been further discussion with local Mäori. Councils need to be ‘astute’ in recognising when consultation is likely to be an issue, and in cases of uncertainty should err on the positive side and consult through a qualified council officer or other professional. See Ngätiwai Trust Board v Whangarei District Council [1994] NZRMA 269.

 

 

Tautari v Northland Regional Council

A55/96, 24 June 1996, Sheppard J

This was an appeal against the grant of resource consents for a dairy farm irrigation dam. The appellant represented the interests of Mäori living in the locality, and along a stream downstream from the dam site. She claimed that these had not been adequately consulted and that the proposed dam and irrigation would adversely affect the environment in several respects of interest to these Mäori. It was submitted that the regional council had failed to consult tangata whenua at a sufficiently early stage, had misunderstood the ethic of kaitiakitanga and tangata whenua had not been sufficiently involved in research relating to the sustainable management of water levels and fish species, and that little regard had been given to the continued extraction of food for traditional hospitality.

Held: the applicants for the resource consent had visited the local marae, invited people to inspect the dam site, been willing to provide technical information, had examined alternatives, made suggestions to mitigate any potential adverse effects, suggested means to enhance the natural environment and had agreed to install a fish pass. There had been meetings at 2 marae which council staff had attended.

The RMA does not specifically require consultation with tangata whenua by applicants for resource consents, but it is recognised good practice that applicants consult tangata whenua where matters referred to in s6(e) (relationship of Mäori to ancestral lands, water, sites, waahi tapu, taonga) or 7(a) (kaitiakitanga) may be involved. The applicants had taken considerable steps to identify the tangata whenua and consult them about the proposal, and so had done all that could be reasonably expected of them, including having regard to Treaty principles (s8 RMA).

Mangakahia Mäori Komiti v Northland Regional Council and Dsyart and others (A107/95) demonstrates that the council, as a quasi-judicial deciding body which must avoid bias, had properly left it to its officials to consult with the local iwi and report iwi concerns back to the council. The appellant and the iwi had the opportunity to state their case to the council hearings committee and also, by virtue of the appeal, to raise concerns at a complete rehearing of the application. The fact that the local people wished to have been consulted earlier did not provide a basis for a finding that there was inadequate consultation.

Under s104(1) RMA the tribunal must have regard to the actual and potential effects on the environment and any relevant planning instruments. The local iwi had a relationship with the affected waterway as a traditional source of food and for recreation and that there was a sense of kaitiakitanga responsibility for it. The evidence did not however establish that the applicant’s proposal would affect the value of the waterway to the iwi. There was no sound basis for fear of dam failure, nor for concern that food sources in the stream would be altered, or that the water flow would be significantly altered, or that native bush downstream from the dam would be affected. There was no evidence that there were waahi tapu that would be affected by the dam. The applicants consultation was adequate, and the regional council proposed to involve local Mäori in monitoring compliance with the conditions of the consent. Consequently, the relationship of local Mäori with the waterway, including their role as kaitiaki, did not weigh against the grant of the resource consents.

[ed: the decision is interesting for several views on water which were advanced. It was said that water is a taonga, and has a mauri which is considered in using any water. One uncontested view was that “the mauri of a stream can be defiled by pollution, but not by the taking of water to sustain life”. Whether ‘sustaining life’ extended to dairy farming operations was not argued in the judgment. One witness noted that local Mäori had constructed dams themselves in the past, but he said this was for logging work to feed their families, and the dams had later been demolished.]

In Parliament

Rating Powers Amendment Act 1996

No 87

Section 10 amends the Rating Powers Act 1988 (adding new ss(4A) to s186) to provide that the Mäori Land Court may make charging orders over Mäori freehold land if satisfied that rates liability exists.

[ed: Since the decision of Carter J in Re Tauranga District Council & Ohuki No 1C2 Block 52 Tauranga MB 97 in August 1993 (see Mäori LR December 1993) there had been doubt whether the MLC court had the power to make charging orders for rates under the 1988 Act.]

 

 

Law Reform (Miscellaneous Provisions) Act (No 5) 1996

Section 204 amends s77(2) of the Electoral Act 1993 to extend from 2 months to 4 months the period which the Minister of Justice may specify as the Mäori option period (the period in which Mäori may exercise the option of being registered on the Mäori or General electoral rolls). The amendment was a last minute matter, introduced in a Supplementary Order Paper. It was passed on the 22 August 1996.

Mäori Reserved Land Amendment Bill 1996

No 218-1

This bill lists (in the 3rd schedule) over 1300 leases of Mäori reserved land and deems them subject to the bill. For every lease listed a new set of implied terms will apply. The implied terms essentially provide that:

• 3 years from the passing of the bill, market rents will be phased in over 4 years, with 7 year rent reviews for most leases;

• Lessees may not dispose of their interests (by sale or will or intestacy) without giving a right of first refusal to the Mäori lessors. Thirty days written notice is required, and the lessor must respond in 10 days. An important exception is where the lessee is selling or disposing to a “specified assignee”—a class including an existing lessee of the same lease, a spouse (including de facto) or child of the existing lessee (meaning a lessee at the time the bill becomes law ie transfers beyond immediate spouse or children will trigger the right of first refusal for the Mäori lessors). If the lessor either declines to purchase or does not exercise the right of first refusal at the offered price, the lessee is free to sell at that or a higher price to anyone else.  However, if the lessee wishes to sell at a lower price than that originally offered to the lessor, the lessee must again give the lessor the right of first refusal to purchase at that price;

• The Mäori lessors may not sell their interest without giving first refusal to the lessee. An exception is a sale to persons coming within the preferred classes of alienees under Te Ture Whenua Mäori Act 1993. The same thirty days written notice and 10 day period for reply apply as for dispositions by lessees.

Lessors and lessees may, by agreement, amend or opt out of the new implied terms. Transfers or assignments by the lessees or lessors contrary to the new implied provisions are void, unless the party not making the transfer or assignment agrees in writing that the provisions may be dispensed with.

The list of leases in the bill can be changed by Order in Council. Using this list, District Land Registrars are to note on every lease and certificate of title that the modified terms of lease apply. Before registering any transfers of leases, the registrar must have a certificate from the solicitor acting for the transferor stating that the terms implied by this bill have been complied with. If the registrar, acting in good faith, fails to comply with these requirements however, neither the Crown nor the Registrar-General of Land will be liable.

As soon as it can be calculated, the Mäori lessors will be paid the difference over the next 21 years between the rent they currently get by statute and the rate they would get on the open market. Lessees will be paid the difference between the amount they would pay under the existing formula over the next 21 years and the new market rate they will be paying. A negotiating team consisting of representatives for the Crown, lessees organisations, individual lessees, lessors, and the Mäori Trustee, will resolve certain compensation issues, including a “market rent rate” and inflation rates for the compensation calculations.

Nothing in the bill is to affect the right of any Mäori to bring a claim under s6 of the Treaty of Waitangi Act 1975.

[ed: The government obviously wished to avoid any possibility of the compulsory removal of “those people in urban and residential leases in the Wellington suburb of Berhampore or bach owners in Kawhia” and others in the next 42-63 years, who could point out that they had very firm assurances when they purchased their leases that their titles would not be upset. The next generation however have a clear signal that they must make other arrangements. An intriguing point is that de facto spouses fall within the definition of  ‘spouse’ - a sign that the government now has a policy of fully protecting the property rights of de facto spouses? The bill allows parties to opt out and make their own negotiated settlements. The provisions for compensation to be paid for rent review changes (estimated to exceed $40 million) will hopefully provide some cash for negotiations on both sides.

The government has stressed that this bill is not a ‘Treaty settlement’ (Dominion 22 August 1996). It does not contain any preamble describing the injustice it seeks to remedy - the explanatory note refers to the ‘inequities’ of the Mäori Reserved Land Act 1955 and the fact that “the owners do not enjoy the same rights as other property owners in New Zealand”. Nevertheless, some general statement in the preamble about the historic background to the bill might help courts and others in the future when interpreting the measure. Claims before the Waitangi Tribunal are not ruled out by the bill. The government has consistently said that Mäori should go to the tribunal to argue about compensation for possible Treaty  breaches by the Crown in its overall administration of the reserved lands. This also means that a claim against the Act itself will be possible.

An Independent Review Panel (Dr T Boyd, RW Davidson, RG Calvert) is to provide an opinion on compensation aspects of the legislation by 29 November 1996.]

 

 

Ngai Tahu (Pounamu Vesting) Bill 1996

No 212-1

This bill proposes to vest in Te Runanga o Ngai Tahu all pounamu (greenstone) within the “Takiwä of Ngai Tahu Whanui” (the tribal territory described in Te Runanga o Ngai Tahu Act 1996) and in the territorial sea, seabed and subsoil adjacent to the takiwä. The pounamu presently belongs to the Crown.

Existing privileges are not affected, except that any royalties presently payable to the Crown will be paid by the Crown over to Ngai Tahu. Outstanding applications to exploit pounamu would not be granted.

The bill also provides a process of ministerial consent (as opposed to an access agreement) for those wanting access to Crown land to exploit minerals not owned by the Crown. Among other matters, the minister must consider the interests of the owner of the mineral in obtaining access to it. This follows the regime for access for those with permits under the Crown Minerals Act 1991.

The bill follows a “Deed of ‘On Account’ Settlement” signed with Ngai Tahu on 14 June 1996, which dealt, among other matters, with pounamu.

[ed: applicants to exploit greenstone under the Crown Minerals Act 1991 and Mining Act 1971 affected by the bill are to be reimbursed for some of their costs. Once the bill is passed, any person wishing to exploit pounamu will deal with Te Runanga o Ngai Tahu. Other matters dealt with in the  ‘on account’ deed are a $10 million one off payment, the vesting of Tataetapu lagoon, in North Canterbury, in Ngai Tahu, subject to a public accessway, re-establishment of the Waikuku Beach Reserve under a trust run by Ngai Tahu and the Waimakariri District Council and provision of $300,000 to preserve wetlands there (Press Release 17 June 1996).]


July 1996 Contents

Mäori Land Court and Appellate Court

Powers of incorporations

Role of the Land Court

S358A/1993

Te Uranga B2 Incorporation

14 Aotea ACMB 98, 22 May 1996. Deputy CJ Smith (Presiding), Spencer J, Carter J

After obtaining a resolution from shareholders, the incorporation sought an order under s358A(2)/1993 extending its objects to make them unlimited. The lower court made the order but, calling in aid ss2 and 17/1993, imposed a limitation that the incorporation not conduct any activity off the corpus land which might involve the pledging or mortgaging of that land (see Mäori LR October 1995). This limitation was appealed.

Held: the intention of the 1993 Act was to give shareholders the choice to widen objects of existing incorporations. The only prerequisite was a supporting resolution of shareholders under s388A/1993. The MLC’s prime function is to apply the specific provisions before it, having regard to the principles and objectives of ss2 & 17, which will not in every case be appropriate, applicable or even attainable. Section 17, for example, would not apply to successions, and a status change to general land and alienation by sale do not accord with the Preamble and s2 - which even provides that it be applied only “as far as possible”.

Part XIII and s250/1993 give incorporations very wide powers, which may be limited by the owners under s253A/1993 (amendment to the constitution) or s270(6)/1993 (resolution at a general meeting), but not by the court. The reference in s253 to court imposed limitations refers only to limitations in existing orders of incorporation, not the imposition of new limitations.

Since the legislature intended that shareholders could decide on unlimited powers for new incorporations, it also intended that existing incorporations obtain the same result by a resolution of shareholders under S358A. While s358A(2) provides that after receiving a resolution the court “may” make an order redefining the objects of an incorporation, the section is directive and provided there has been a resolution the order should be made unless there are “compelling reasons” not to.

[ed: in their submissions the appellants pointed out that the lower court’s limitation was impractical anyway since if an investment outside the corpus land failed, a security might be taken over it. The limitation would also be difficult to police as it might be hard to ensure that funds obtained under a flexible current account mortgage over the corpus land were used strictly for investments on that land.]

 

S288/1993

In Re Brown and Kairakau 2C5B Block

1995/12, 11 Takitimu ACMB 143, 4 June 1996. Deputy CJ Smith (presiding), Carter J, Savage J

The European appellants sought a partition of 5.8555 hectares of Mäori freehold land in which they held 61.61% of the shares. They were opposed by all the remaining shareholders who were hapü members. It was not disguised that a housing development and sale were intended following any partition order. Since 1989 there had been consistent efforts to partition the interest out.

The lower court dismissed the application on the basis that ss288(2)(b) & (4)/1993 statutorily barred it from making the order - there was not a “sufficient degree of support for the application among the owners” (s288(2)) and the proposed partition was not “necessary to facilitate the effective operation, development and utilisation of the land” (s288(4)).

Savage J: delivering the lengthiest judgment, his Honour found that there was a sufficient degree of support. If support under s288(2) must come from persons other than the applicant then owners with minute holdings could act in a tyrannical manner. There would be a temptation to vest in children or whänau to ensure support, which would lead to further fragmentation and be contrary to the kaupapa of the Act. The fact that the applicants were European had no bearing on the matter - the next case might well involve Mäori opposed by minority European shareholders. S288(2) required support for the application, not the applicant and therefore anticipated that “support” would include the applicant’s support for their own application. Sufficient support is not an arithmetical exercise. The lower court had correctly looked at:

- aggregate shareholding of objector and supporter groups;

- number of objectors to supporters;

- ability of the proposal to stand alone without the applicants support;

- an overview of the support and opposition. This included: 1) the number of owners receiving notice of the application; 2) the owners who had responded; 3) the number of deceased owners not yet succeeded to; 4) support or opposition from hapü non-owners including children of deceased owners.

Section 288(2) also requires consideration of “the nature and importance of the matter”. Here the land had special cultural and historic significance, and the phrase could encompass the lack of support outside of the applicants, a factor which might be critical in this case.

As to s288(4), the lower court found that it should be considered in light of the Preamble and s2 providing for the retention of land in Mäori hands as a taonga tuku iho, and accordingly, rights of non-hapü owners must be subordinated to the rights of hapü owners where there was disagreement. However, while partition must not occur unless there was an element of necessity, and not even the consent of all owners could obviate the requirement to protect rights of future owners, even those yet unborn, the Preamble and s2 are subject to s286 providing that the principal purpose of Part XIV/1993 is rationalisation of land holdings for better utilisation. Retention is not referred to. Partition as a matter of course requires the loss of interests while gaining others in the residue land. S288(4) if read literally would make partitions impossible. A long term lease would always be an alternative to partition, and was possible in this case. A more liberal interpretation is required to prevent the discretion of the court to order a partition being illusory. Tikanga Mäori has ever recognised partition as an important element in the regulation and management of land and the legislature intended that the court have a realistic power to rationalise landholdings and improve access. S288(4), in conjunction with ss(2) & (3) requires the court to carry out an “initial winnowing” of applications to ensure they are acceptable to an appropriate proportion of owners having had sufficient notice and opportunity to discuss it and that the application is reasonably necessary to improve land use. The court should then consider in more depth the issues in s288(1) before finally considering s287(2) (court may refuse to exercise discretion if the principal purpose of the Act would not be achieved). The word “necessary” in s288(4) is stronger than merely desirable or expedient. In other cases (Stirling Pharmaceuticals Ltd v Boots [1991] 2 NZLR 233 and TVNZ v Ombudsman [1992] 1 NZLR 106) it has been found to mean what is “reasonably” necessary or reasonably indispensable for the purposes stated. This necessity must relate to the effective operation, development and utilisation of the land. Matters purely personal to the current owners are not relevant. The existence of debt which the applicant needed to service in this case was therefore not relevant since this was personal and of a transitory nature. Sale of the land was not an operation, development or utilisation of it and therefore could not be called in aid either for or against the proposal.

As to other issues raised in appeal:

- the vote of a meeting of owners directed by the judge under s173(1)/1993 to consider the partition application was not binding on the court. The result was evidence and no more;

- the judge was able to consider letters of opposition received by him, even without the writers formally objecting or appearing, under s69/1993, which allows such material to be admitted, with the weight given to it a matter for the judge;

- even assuming the judge had been correct in his interpretation of s288(2) in preferring rights of hapü owners over non-hapü owners, there was no contravention of the Human Rights Act 1993 since the preference arises from membership of a kin group and not as Mäori per se. Mäori themselves are quite often non-hapü in these situations.

- the judge was not wrong in referring to the Preamble, s2(1) specifically provides that the Preamble may be used in interpretation.

Smith J: the word “facilitate” in s288(4) when defined as “to make easy or promote” meant that the presence of a splinter group hindering development was a matter the court could take into account. “Utilisation” in terms of s288(4) could include sale of the land. Partition to facilitate utilisation by way of sale should not be refused merely because sale appeared contrary to the kaupapa of the Act - it must be considered in the context of the “special code” provided in Part XIV. Also, effective use of the land must be in accordance with any scheme plan adopted by a local authority. Partition might be required here in any event for effective development (only part of the land was suitable for subdivision in terms of the district scheme).

Carter J: while most partition applications are fully in accord with the Act in that owners are seeking to rationalise their holdings, partitions are also contemplated to provide solutions to disputes among owners, and this accords with some provisions of s17. Section 2(2) provides that the court follow the kaupapa of the Act “as far as possible” which contemplates some divergence, and the Act itself contemplates sales and status changes of Mäori land to general land which are contrary to the kaupapa. Failure to accord with ss2 & 17 is not in itself a ground for dismissal of an application. Section 286 means that the kaupapa of the Act is only a “balance issue” in the discretion whether to partition. In the preliminary consideration of ss284(2) & (4) the court should not be unduly restrictive. A high standard of proof should not be required unless a question of compliance is a major issue between the parties. Whether an applicant can support their own application (as s288(2) contemplates) was supported in In re Kau o Te Whenua B2B5B1 Block, Marsh v Robertson 19 Waikato Maniapoto ACMB. If an applicant seeks to partition out shares equivalent to their shareholding there is “sufficient support”.

The judge was wrong to apply the words of s2(2) to s288(4) to deny non-hapü owners a right to partition. Section 286 clearly anticipates that any owners may seek partition. The requirement in s288(4) to consider whether partition is necessary to facilitate use of the land is clearly a preliminary matter since s288(1) requires later consideration of the best overall use and development of the land. The words “to facilitate” meaning “make easier” in ss288(4) qualify the word “necessary”.

The MLC must consider the position of the owners and the present state and use of the land and for this reason matters personal to the owners are relevant. The court determines only “effective use” and not the “most effective use”. Different proposals may therefore exist. Here 2 groups were in opposition as to development proposals. Partition, while depriving opposing owners of the use of part of the land, would allow both sides to pursue their own proposals in the partitioned areas. Whether the applicants intend to sell the land after partition does not prevent the court making a partition order. An alienation is a separate matter for separate consideration. There would be a difference in approach to s288(4) in cases where the land was already subject to development by the owners - the necessity for partition would be a larger issue than in cases such as this where there was no present viable economic use for the land and the applicant had a proposal for development.

Finally, a decision of the lower court in 1991 (under the Mäori Affairs Act 1953) subsequently found to be a nullity by the MAC provided no precedent to support the present application under entirely different legislation. Accordingly, the application should be referred back to the MLC for rehearing.

[ed: this decision is of great importance for the future application of the 1993 Act. The Act, read literally, does prevent partitions and alienations outside hapü groups in all but a few cases. Is it appropriate for the MAC to adopt a pragmatic approach to the interpretation of those sections to achieve what it believes is a reasonable result?  Perhaps the court should have read the Act literally and thrown the matter back to Parliament. However history suggests it would take some years to be properly addressed there. As to the suggestion that partition is connected with tikanga, the evidence, and this case, demonstrate that it is a comparatively recent and alien practice. Responding to complaints in 1916 about its effects, the Native Minister William Herries said that “The modern practice is to partition … according to the value of the land, so that it is possible for those who reside and have their cultivations on the block, and who are not willing to sell, to have legitimately and rightly some portions of their cultivations taken from them, because they are probably cultivating the most valuable land, and cultivating more than they are entitled to have if a division of the block were to take place and each one was given an exact share according to the relative interests by value of the land. Some of these complaints, therefore, are without foundation and cannot be entertained, because that which is complained of is strictly legal. …. That is one of the faults peculiar to landholding in common, and it cannot be helped”. (3 August 1916 NZ Parliamentary Debates vol 177 p738)]

 

Special Aid Fund

Nature of the fund

In Re Dennet and Rotoma No 1 Block Incorporated

Appeal 1995/17, 1 Waiariki ACMB 42, 1 April 1996. Deputy CJ Smith

In this short decision his Honour held that an application for costs from the Mäori Land Court Special Aid Fund in the nature of a claim against the court must fail since it was not shown that the judge whose decision was successfully appealed had acted in excess of jurisdiction. Section 193 of the Summary Proceedings Act 1957 granting exemption to judges when acting within jurisdiction extends to judges of the MLC.

While the fund appears to be a general legal aid fund, when s98/1993, which constitutes it, is considered in the light of its predecessor section - s57A Mäori Affairs Act 1953 (which s98 repeats, although not in precisely the same terms), it was clearly anticipated that it remain as it was under the 1953 legislation, a fund for counsel appointed by the court. And even if were accepted that the fund is a general legal aid one, this application should have come at the commencement rather than the close of proceedings.

[ed: s98/1993 does have some material differences in wording from s57A/1953 which suggest it was intended as a general legal aid fund. This fund in past years has contained very little money.]

 

 

Other Jurisdictions

 

High Court

Valuation of Mäori land

Mangatu Incorporation & Others v Valuer-General

AP2/95 HC Gisborne 19 June 1996. Barker J

This was an appeal against a decision of the Land Valuation Tribunal concerning the valuation of Mäori freehold land (see Mäori LR April 1995 p6). The objectors were incorporations, trustees appointed by the Mäori Land Court and individuals recorded by the MLC as part-owners with shares in particular blocks. The land was assessed for rating purposes by reference to its “land value” as defined in the Valuation of Land Act 1951. The question on appeal was whether the provisions in Te Ture Whenua Mäori Act 1993 diminish the normal valuation of the owner’s estate or interest in the land, and so diminish the value of land for rating purposes.

Held: allowing the appeal would have ramifications for all owners of Mäori freehold land, for local authorities and other rate-payers in the district, in that the burden of rate-paying would be redistributed. The objectors argued before the tribunal that:

- some of the land was of special spiritual significance, and therefore unlikely to be sold;

- if the land were to be offered for sale to a Mäori incorporation, the members would probably not have the resources to buy it at market prices;

- the purpose of the 1993 Act, the stringency of the provisions governing alienations of Mäori freehold land, and the difficulties involved in fulfilling the requirements set out in those provisions, reduced the range of buyers for such land.

His Honour considered the purpose of 1993 Act as set out in the Preamble and s2, the jurisdiction and objectives of the MLC in s17, the MLC’s power to determine the status of any lands under s131, the ability of land owners to alienate interests in Mäori land (ss146-148), and the confirmation powers of the MLC under ss152-154. In Grace v Grace ([1995] 1 NZLR 1, 5) the Court of Appeal confirmed that the policy of the 1993 Act is to promote the retention of Mäori freehold land in the hands of its owners, their whänau and hapü, and in Te Runanganui o te Ika Whenua Inc Society v A G ([1994] 2 NZLR 20, 27) it discussed the permeating influence of the Treaty of Waitangi in New Zealand law. Although the function of the MLC was once to monitor the disposal of Mäori freehold land, it is now directed effectively to “close the gate” on sales outside of whänau and hapü, except in special circumstances, and recent decisions of the MLC demonstrate an attitude that the wishes of a majority of owners are not necessarily decisive. The Mäori Appellate Court in Re Cleave (AP 1995/5, 22 May 1995), upheld the refusal by a MLC judge to grant a status change application from Mäori freehold land to general land, in accordance with s136/1993 because it was not satisfied that the appellant had demonstrated that the land could be managed or utilised more effectively as general land and the “preferred class of alienees” needed to be consulted, who have priority when interests in Mäori freehold land are being sold.

If a different value were to be applied, a reduction of 30%, taking an “intuitive” approach as was taken in Valuer-General v Trustees of Christchurch Racecourse (1995) Valuer’s Journal 53, was not appropriate. The appellants had advanced no particular evidence for such a quantum, as had been advanced in that case.

With regard to the suggestion that the appellants had, strictly speaking, failed to discharge the onus of proof set out in s20(8) VLA 1951, it was better to take a broad approach and the matter should not be determined on such a technicality (The Proprietors of Matauri X v Valuer-General [1981] 2 NZLR 585, 598 followed). If the appellants succeeded in showing an error in law by the tribunal the onus was discharged.

Turning to the relevant case law, in Re Hutt Park and Racecourse Board (1907) 10 GLR 12 it was decided that land could be valued on the basis of the limited powers of disposition a racecourse board possessed (21 year leases only). In Re Johnsonville Town Board (1907) 27 NZLR 36, the court characterised the estate of Mäori owners in that case as less than the fee simple due to their inability to devise their shares. In Valuer-General v Ormsby (1907) 27 NZLR 44 it was found that because Mäori land was then prohibited by law from being sold, the estate of the Mäori owner had a nil value, and accordingly the value of the land should be assessed on the basis of what a purchaser would pay to be put in the same position as the owner. Thomas v Valuer-General [1918] NZLR 164 concerned land leased from a Mäori Land Board which had the power to sell to the Crown with the consent of the owners or to sell to any other person upon the resolution of the owners and the consent of the Governor General. It was there considered that the restriction were transient or personal and should not be taken into account in the valuation. Wanganui Racecourse Trustees & Wanganui Jockey Club v Valuer-General (1982) NZ Valuer 25, 232 concerned land which could not be sold without the consent of the Minister of Lands. A Land Valuation Tribunal purported to follow Hutt Park and allowed a reduction of 50% in the light of the owners’ restricted powers of disposition. However there was no reason offered for the reduction and that case was probably wrongly decided. Valuer-General v Trustees of the Christchurch Racecourse (1995) Valuer’s Journal 53 concerned land held by trustees under a private Act for the purpose of establishing a racecourse. The Reserves Act 1977 also applied to it and there were restrictions on leasing and no power to dispose of the freehold. A reduction of 35% from the normal valuation was there approved on the basis of the restrictions, suggesting that a percentage reduction could be a conventional valuation method (Valuer-General v Treadwell [1969] NZLR 320 was also mentioned on this point). Finally, in Gollan v Randwick Municipal Council (1961) AC 82, land held by trustees for recreational uses was subject to various limitations and the Privy Council held that the fact that there was a lawful impediment to the sale should not be allowed to enter into the assessment of the land’s value. Gollan could not be distinguished on the basis that it referred to the “fee simple” of the land whereas the 1993 Act refers to “the owner’s estate or interest” and their interest is more like a fee tail. The 1993 Act expressly refers to “fee simple” (eg s250(2)).

On the basis of this case law the tribunal had concluded that the constraints in the 1993 Act did not constitute a change in definition in the VLA 1951 and could therefore be disregarded in settling land value. However under the VLA 1951 the value of the land does not depend on an objective assessment of its worth but on the question of what a reasonable purchaser would pay for the owner’s estate in the land. The tribunal relied on the decision in Thomas v Valuer-General as clear authority that where there are restrictions on alienation and the possibility that the land can be sold with any restrictions ending, then the constraints do not affect the valuation. The appellants argued that the Thomas case should be distinguished because:

- the 1993 Act contains statutory directives to retain land within the iwi, while Thomas was decided in the absence of such directives;

Thomas was concerned with the rates liability of a non-Mäori lessee in occupation of the land in question, not with the valuation of the estate of the Mäori owners;

- the 1993 Act contains a special procedure for valuation where land is to be leased to non-Mäori, meaning that Thomas cannot support the general valuation approach contended.

The decisive factors in Thomas were that the trustees were not in reality hampered in their ability to dispose of the land, and that any buyer would receive an absolute fee simple title free from any conditions. Neither of these factors applied in this case. The restriction on alienation in Thomas was that the consent of the Governor General was required and it was implicit in the judgments that the requirements were not seen as onerous. The 1993 Act however must be seen as a significant barrier to the alienation of Mäori land, indicating a legislative direction to “close the gate” on sales. The policy of the Act is clear, and it is reasonable to assume that alienation of Mäori land will present significant practical difficulties in the future. The tribunal placed undue weight on the fact that the 1993 Act provides a mechanism for alienation, saying that there this is no indication that the mechanism will not be able to be employed with ease or regularity. It could not even be said that a buyer of Mäori freehold land will necessarily receive an absolute fee simple. It is foreseeable that some purchasers of Mäori freehold land will remain bound by the land’s status, and will be required to offer a right of first refusal to those within the preferred class of alienees. In addition, in Thomas the restrictions were “personal to the owner”. The restrictions in the 1993 Act could not be described as such, since there is a reasonably clear legislative direction to preserve the status of Mäori land, and some likelihood that the land will continue as Mäori freehold land after sale.

Gollan could also be distinguished on the ground that the restrictions in that case were of a private nature, while the 1993 Act has wide application throughout the country. This appeal was similar to Royal Sydney Golf Club v Federal Commissioner of Taxation (1954) 91 CLR 610, were it was held that planning restrictions imposed by a local ordinance had to be taken into account in assessing land value. While not supporting the view that all restrictions imposed by general statute must be taken into account in land valuations, the effect of the 1993 Act was such that it would be unjust to ignore the reality of the owner’s position and the Act must be taken into account by valuers when fixing land value under the VLA 1951.

As to the amount of the reduction in value, a “guideline reduction” of 30% was not appropriate. Rather, the precise effect of the Act must be determined on a case-by-case basis, taking into account the characteristics of particular pieces of land. The reduction would vary depending on;  (i) the extent of the restrictions, (ii) the likelihood of  the MLC approving a sale and (iii) the nature of the property. Where land has spiritual significance it would be far less likely to be alienated out of Mäori ownership.

Finally however, it should be noted that while this ruling would reduce rates paid on bare Mäori freehold land, it would also reduce compensation in cases of compulsory acquisition, and affect the determination of rentals based on government valuation.

[eg: along with Mäori groups, local authorities will be keenly interested in this decision. One solution for the authorities may be the adoption of a differential rate under the Rating Powers Act.]

 

Court of Appeal

‘Urban Mäori’ appeal

Te Runanga o Muriwhenua & Others v Te Runanganui o Te Upoko o Te Ika Association Inc & Others

CA 155/95, CA 165/95, CA 184/95, 26 June 1996. Richardson P, Gault J, Henry J

The court here granted leave to appeal to the Privy Council in respect of three cases concerning Mäori fishing allocations, on the grounds that (i) the appeals concerned issues of great public importance, (ii) the “indigenous public interest considerations” involved did not render the case unsuitable for submission to the Privy Council (iii) so long as appeals lie to the Privy Council the Court of Appeal should not be “niggardly” in granting leave. The court also considered the delays involved in appeals to the Privy Council, saying that although the first available hearing date is likely to be January 1997, the delay in itself is insufficient justification for refusing the applications. The applications for appeal were made by the Treaty Tribes Coalition, Ngati Porou, Te Runanga o Muriwhenua and four associated parties. Leave to appeal was opposed by the Treaty of Waitangi Fisheries Commission and Urban Mäori Authorities.

 

 

High Court

Ngai Tahu litigation

Citing of the Chief Judge

Tau & Te Runanga O Ngai Tahu Ltd v Durie & Waitangi Tribunal & Another

CP215/95 HC Wellington 16 May 1996. McGechan J

The first defendant here argued that s9(4A) of the Judicature Amendment Act, which provides that, as a matter of form, where an action is against a presiding officer of a tribunal, the tribunal and not the presiding officer should be cited as defendant, should apply and consequently the first defendant should not have been cited in his own name but rather the tribunal should have been cited. The court agreed with this interpretation of the section, finding that the section applied to the Waitangi Tribunal. However it was not a mandatory provision, but a matter of form only, and given that the tribunal had been separately represented to this point, that the proceedings really focused anyway on the conduct of the first defendant, and that the first defendant had acquiesced in his continued citation as a party and had filed documents in response on that basis, an order changing the citation to remove his name should be refused.

The court also dealt with applications that answers to certain interrogatories not be required, including allegations that the first defendant’s wife had been telling other claimants to support the first defendant against Ngai Tahu in this court action. These questions the first defendant described as suspect in motivation. The court ruled the questions oppressive and disallowed them.

 

 

General

 

New Mäori affairs legislation

Various statutes

New Mäori affairs legislation

1996 Nos 32-36. Assent given on 24 June 1996

The following measures were originally introduced as the Mäori Purposes Bill 1996 (See Mäori LR April 1996 p8) but were split out into their constituent parts before the final reading.

 

Mäori Affairs Restructuring Act 1996 (No 32)

Removes the power of Te Puni Kokiri to make advances to Mäori enterprises (by repealing s86 Mäori Affairs Restructuring Act 1989).

 

Mäori Community Development Act 1996 (No 33)

Removes the power of Te Puni Kokiri to appoint honorary community officers (by repealing s5 Mäori Community Development Act 1962).

 

Mäori Trustee Amendment Act 1996 (No 34)

Removes the power of the Mäori Trustee to make grants to various Mäori organisations (by repealing 32(1)(c), (1A), (1B) & s35 of the Mäori Trustee Act 1953).

 

Te Ture Whenua Mäori Amendment Act 1996 (No 35)

- amends s123 to provide that where any particular order has not been registered but its effect has been incorporated into a declaratory consolidated order under s128 then registration of the consolidated order acts as registration of the particular order;

- amends s150 to add the mortgage of a lease or sublease of Mäori freehold land owned by a Mäori incorporation or a trust under Part XII to the list of matters which do not require confirmation by the court;

- provides that a Mäori incorporation must seek a special resolution of shareholders and noting by the registrar if the term of the grant of a forestry right is more than 21 years (ss254(1)(a) and 255(a)-(b) amended);

- provides that the transfer of a lease, sublease, licence or forestry right and the renewal, variation, or assignment of a forestry right are matters requiring confirmation only by the registrar and not the court (s160(1)(ba) amended);

- clarifies that where land is under lease by a Mäori incorporations or by trusts under Part XII, those bodies, and not the Mäori Trustee, are to deal with notice and service requirements for valuations to determine compensation payable for lessee improvements (s193 amended);

- corrects the word ‘mortgagor’ to ‘mortgagee’ in s161 (certain instruments require only noting by the registrar) to make sense of that section.

 

Mäori Trust Boards Amendment Act 1996 (No 36)

This Act amends ss20(3), 26(1), 27, 28, 29, & 32(3) to remove the following restrictions on the operation of the boards:

- that the board may not delegate financial authority over $200 to committees appointed by the board;

- that boards receive the prior consent of the Minister of Mäori Affairs before acquiring or disposing of land or borrowing money or guaranteeing loans;

- that the Minister approve the bank account used for board monies;

- that the no money might be withdrawn from the board account without direct authority from the board the board or a countersigning officer approved by the Minister;

- that the prior approval of the Minister be gained before payments over $200 are made by a board.

Hazardous Substances and New Organisms Act 1996

No 30/1996. Assent given on 10 June 1996

The purpose of this Act is to protect the environment and the health and

safety of the population by "preventing or managing the adverse effects of hazardous substances and new organisms." An Environmental Risk Management Authority is to be

established to determine applications for approval of hazardous substances and new organisms. A hazard classification system is established and powers for the enforcement of the Act are given to various Government departments. All persons exercising powers and functions under the Act must take into account “the relationship of Mäori and their culture and traditions with the ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga” among 5 other matters deemed relevant to the purpose of the Act and also take into account the principles of the Treaty of Waitangi (s8).

 

 

Courts Structure Bill

Privy Council appeals

New Zealand Courts Structure Bill 1996

No 191/1

The bill provides that there shall be no appeals to the Privy Council after 1 July 1997. However, proceedings commenced before the 1 July 1997 in “any New Zealand Court” may use the existing appeals process.

After the 1 July 1997, parties before the Mäori Appellate Court may appeal its judgments only to the Court of Appeal which shall be the “final appellate court of New Zealand”. Parties can do this either with leave of the MAC or, if that is declined, with special leave of the CA.

The CA will be split into criminal and civil parts with divisions in each part consisting of 3 judges - one at least of whom must be a CA judge, but up to two may be judges of the HC nominated by the Chief Justice.

Matters heard by one of these divisions of the CA may be referred to a “full court” ie no less than 5 judges of the CA - although one HC judge may be used in place of one of the CA judges in special circumstances. Referral to the full court occurs only if:

- a majority of one of the divisions agree a matter should be so referred or:

- the appeal is deemed to be of “sufficient importance” to warrant consideration by the full court. The judges of the CA will create a procedure to determine how “sufficient importance” is established.

Where there arises in the CA any “question of fact relating to the interests or rights of Mäori in any land or in any personal property” or any question of “tikanga Mäori” a case may be stated to the MAC. The opinion of the MAC will be given such weight as the CA thinks fit.

S62 Te Ture Whenua Mäori Act 1993 will apply to the composition of the MAC to hear the case stated. Where the HC has already had an opinion from the MAC under s61/1993 and the CA is hearing an appeal from the HC, then no second reference to the MAC is allowed.

CA may appoint expert technical advisers for evidence “relating to scientific, technical, or economic matters, or from any other expert evidence” either on its own motion or on application of any party

[ed: the bill completely ignores concerns raised by the report of the Mäori Committee of the Law Commission on this restructuring (the report was received in September 1995 and is noted in Mäori LR May 1996 p3). It is not expected to be passed before the election.]

 

 

Mäori Trust Boards

Reform proposals

Reform of the Mäori Trust Boards Act 1955. A Discussion Paper

Ministry of Mäori Development 1996

The objectives of reform are to create a legislative framework: 1) allowing existing trust boards to carry out their functions effectively with accountability to beneficiaries rather than the Minister of Mäori Affairs; and 2) which can be used to establish structures to manage tribal activities and provide accountability to beneficiaries of Treaty settlements. The report notes that boards have been changing their businesses in recent years, as a result of the administration of Maccess schemes, entry into the fishing industry and the vesting of Mana Enterprises loan portfolios in the boards. Few boards have kept up to date with their statutory financial reporting requirements. Proposed reforms:

- amend the existing Act to require reporting back to beneficiaries rather than the Minister and give the MLC rather than the Minister the responsibility for matters including appointments to the boards, receipt of audited annual accounts, investigations into allegations of board misconduct and the withholding of annuity payments or removing members from the board if required;

- replace the Act with an Iwi Incorporation Act and appoint an Iwi Commissioner to oversee, over 4 years, the transformation of existing boards into incorporations. The change would include development of a constitution and iwi mandate, and updating of the beneficiary rolls of existing boards and elections. A Crown-Mäori Trust Board Joint Working Group would estimate the cost of the transformation, which the Crown would pay. The intention would be to create debt free entities;

- amend the Act, making provision for boards to develop a board specific charter of their own design for registration with the MLC, which would take on the role proposed under option 2 for the iwi commissioner, to ensure that the charter was developed with the consent of the iwi, and settle any disputes over its adoption;

- dissolve the boards and reconstitute them as trusts or incorporations under general legislation. Allow them to apply through the MLC to be recognised as the authorised voice of iwi under criteria similar to those included in the now repealed Runanga Iwi Act 1990.

13 regional hui will be held in July and August to consider the proposals. Submissions to the Ministry may be made until mid to late September 1996.

[ed: this report, and in particular the proposal for an Iwi Incorporation Act, builds on the Report on the Mason Committee on Mäori Trust Boards of August 1994 which deals in depth with the history of the boards and current concerns about them, and contains submissions about how legal accountability to beneficiaries can be achieved (Ngai Tahu arrangements in this regard, based on contract law, are especially interesting), a strong dissenting minority report from TR Nikora and a model constitution for an iwi incorporation which follows closely the model currently being applied by Ngai Tahu. The member of the committee were Ken Mason, June Jackson, Tama Nikora, and Sid Ashton.]

 

 

Parliamentary Commissioner for the Environment

Historic and cultural heritage protection

Historic and Cultural Heritage Management in New Zealand

June 1996. Office of the Parliamentary Commissioner for the Environment

Acting under s16 Environment Act 1986 (objective to maintain and improve the quality of the environment) the commissioner established a team to review the allocation of powers and functions to public authorities involved in historic and cultural heritage protection and review the effectiveness and suitability of procedures for protection of historic and cultural heritage. Chapter 4 looks specifically at Mäori cultural heritage protection The report also includes case studies on the pa, urupa and middens in the Ngunguru Sandspit in eastern Northland and remnants of early Mäori gardens among the basaltic lava stonefields of the Auckland region (a background report on these case studies is separately available).

The team found that significant losses of historic and cultural heritage are continuing eg 50% of all pa in the Auckland metropolitan area have been modified or destroyed since city development began, with 6% of known archaeological sites in the Auckland region being destroyed between 1979-94. Only 13 places have been registered as waahi tapu under the Historic Places Act 1993. There are 1012 archaeological sites on the HPA register, but no assessment of their importance to Mäori has been undertaken. Nor has there been any assessment of the 49,000 sites on the NZ Archaeological Association files. Waahi tapu are defined in the HPA 1993 but not in the Resource Management Act 1991, so councils have adopted varying approaches to the protection of sites in their regions. It is not known if the Official Information Act might make HPA records of sensitive sites public on request. Confidentiality versus the need to identify sites for protection has already struck problems in  cases like Greensill v Waikato Regional Council W17/95 involving a waahi tapu in Raglan harbour.

The team found:

- a need to develop a national strategy linking all aspects of the management of Mäori heritage and supported with adequate levels of funding from government (the Waitangi Tribunal  having identified a government responsibility for Mäori heritage protection);

- the current range of mechanisms for protection have not been fully utilised and developed;

- the HPA 1993 is deficient in its treatment of Mäori values - containing no reference to the Treaty - and the Mäori Heritage Council lacks sufficient authority to act in decisions affecting Mäori;

- there are potential gaps in archaeological site provisions between the HPA 1993 and the RMA 1991 and also between the HPA 1993 and the Antiquities Act 1975 re disposal of artefacts found at sites;

- there is no guaranteed protection of confidential site information.

Accordingly, the team recommended that the Mäori Heritage Council in association with the Minister and Historic Places Trust Board convene hui to address these issues.

[ed: the report contains, in 8 appendices, detailed information on the current mechanisms and systems for the protection of historical and cultural heritage.]


June 1996 Contents

The Taranaki report. Muru me te Raupatu

Putting aside issues of over-emotive wording (it does not seem that the report itself uses the word ‘holocaust’) and the price (large chunks can be viewed on the internet for free athttp://nz.com/webnz/tekorero/taranaki/tar1.html) this report contains some important challenges to the Crown approach to Treaty settlements. The first is the attack on Native Land Court determinations last century - hitherto argued by the Crown to be a matter largely outside its control and responsibility. The tribunal specifically reviews a major decision of the court in relation to lands in north Taranaki, and exposes the wrong policy behind that decision. It also rejects other judgments as flawed and breaching Treaty principles. The second is the comment that if a compromise settlement is sought by the Crown, rather than a strict accounting for loss, then Taranaki Mäori cannot be expected to sign-off their claim completely. This has obvious implications for several other compromise settlements presently under negotiation in other regions.

The unusually strong language in the report possibly arises from the effort to convey the deep feeling of loss Taranaki Mäori have even now, as opposed to the fact of loss - something which a dry accounting might not have conveyed. Possibly also because it is an interim report, and directed to the current negotiations, it has none of the balancing of facts of previous reports and reads more as an extended argument for redress.

Perhaps the lasting message the tribunal would hope that is taken from the report is the new benchmark it has articulated for assessing both past and present dealings with Mäori - ‘aboriginal autonomy’.  The tribunal says it was the central concept governing Mäori efforts to cope with Päkehä culture in the last century and in this. The tribunal further says that it works, and is good for the nation.

(Note: the writer has worked for the Taranaki claimants)

 

 

Mäori Land Court and Appellate Court

Due to a lack of space in this issue, an important decision of the Mäori Appellate Court concerning partition will be reported next month (In Re Brown and Kairakau 2C5B Appeal 1995/12, 11 Takitimu ACMB 143, 4 June 1996)

 

 

 

Waitangi Tribunal

The Taranaki report

The Taranaki Report. Kaupapa Tuatahi

Wai 143 & Ors. 30 April 1996. Chief Judge ET Durie, E Manuel, Prof GS Orr, Right Reverend MA Bennett, Prof MPK Sorrenson. 370pp

Because of the length and complexity of the report, an adequate summary would take many pages. This summary focuses on fresh perspectives on the history which are revealed in the report and on statements which may carry precedent value for other claims)

Process issues

This is an overview report of 21 claims. The parties agreed that, before hearing the Crown response, the tribunal should give its “initial opinions” on the claims, to assist the parties in settlement negotiations. Accordingly, the report makes no final recommendations, although it contains some general comments on settlement. The Crown’s brief response on some major issues is noted - including concessions that the Waitara purchase, the war and confiscation in Taranaki, and the invasion of Parihaka in 1881 were in breach of the principles of the Treaty of Waitangi. Leave is given to parties to seek further hearing if proposed negotiations prove unsuccessful or clarification on particular items is required. A second report will look at the history of particular groups and ancillary claims that may need to be distinguished for any comprehensive settlement “unless matters are earlier resolved.”

Overview

The historical theme identified is the struggle of Taranaki Mäori to retain autonomy. The report reflects on aboriginal autonomy as it is understood internationally, and the government insistence that its authority prevail in all matters, not just in war and confiscation but in setting up ‘wrong processes’ such as trustee administration and the land court to decide issues that Mäori ought to have been left to decide themselves.

In a large departure from previous assessments of loss in Taranaki, which arrive at a figure of 462,000 acres actually taken, the tribunal considered that there has been an ‘expropriation in Treaty terms’ of 1,922,200 acres (777,914 hectares).

Pre war purchasing

Chapter 2 deals with the government claim to have purchased for settlement 75,370 acres in 9 blocks around New Plymouth between 1844-1859. The purchases were initiated by the NZ Company and subsequently taken over, adjusted, then confirmed by the government. The tribunal found that, among other matters, the Mäori response to settler encroachments was restrained, the government ignored many owners because they were wrongly deemed to have abandoned the lands, the initial NZ company purchase which was the basis for subsequent arrangements post-dated Hobson’s proclamations preventing private land dealings with Mäori and was therefore simply invalid. It dealt with such a small group of Mäori, with such little understanding of its content, that it lacked any bearing on reality. The Land Claims Commission which investigated the NZ Company transactions denied Mäori the right to determine matters within their autonomy (ie the rights of absentees) and replaced dialogue which was needed directly between the Crown and Mäori. The government’s subsequent efforts to finalise matters by ‘purchasing’ within the area of the company’s ‘purchase’ were invalid, as, among other discrepancies, they took place in an atmosphere of tension and fighting between Mäori sellers and non-sellers, and as more settlers were being introduced. Inadequate reserves were made and there was a general failure to properly consult with the proper Mäori leadership.

Waitara and Waitotara purchases and the lead up to the war

In 1859 a small group ‘sold’ the Waitotara block. The government did not initially even rely on this purported purchase but confiscated the land, relinquishing that course only when its Whanganui allies said the land was wrongly confiscated. It then returned to the ‘purchase’ as proof of its title. In 1857 Waitara land was offered for sale. In accepting the offer the Governor acted in disregard of customary tenure, despite advice to the contrary, and in breach of principles of law that in establishing custom in such cases the law of the people themselves is paramount. The rangatiratanga exercised by Wiremu Kingi was also misunderstood - to the convenience of the government. Kingi was unjustly attacked. The real issue was not a land dispute but the imposition of government authority on Mäori autonomy.

The Taranaki Wars

Consequently, the government was an unjust aggressor in the war in north Taranaki beginning March 1860. The second war, on which the land confiscations were based, was a result of government failure to properly investigate the Waitara purchase, its military reoccupation of areas, and a military trespass which resulted in a Mäori ambush in May 1863. These actions were not only contrary to the Treaty, but because no act of rebellion had taken place the confiscation was possibly unlawful in terms of the NZ Settlements Act 1863. The war continued longer in Taranaki (9 years) than elsewhere in the North Island. Some 534 Mäori were killed and 161 wounded, to 205 European troops and Mäori allies killed and 321 wounded. There are other losses to be calculated. The signs of the wars remain. The street names in Waitara are a celebration of military and political conquerors and “name changes are needed.”

Confiscation

It was within the authority of the NZ General Assembly to enact the NZ Settlements Act 1863, since exceptional legislation is permissible where the existence of the state is threatened. However the confiscations were unlawful because they were ultra vires the legislation. There is no indication that the Governor was satisfied, as the legislation required, that groups were in rebellion in Taranaki, and the facts suggest that they were not. The most serious error was that while the Act provided for only specific lands for settlement to be taken within a district, the Governor took all the land of the Taranaki district for military settlement, including clearly unsuitable land such as Mount Taranaki. The confiscation was also not referable to the purpose of the Act ie settling sufficient numbers to keep the peace. The actual purpose was simply to take all land capable of settlement. Arguably, later validating acts could not correct such gross illegalities, but only irregularities in form and process (this point is now of academic interest only as proceedings are statute barred and properties have changed hands). The confiscations were a clear breach of the Treaty of Waitangi. “While the specific terms of the Treaty may be suspended in an emergency, the general principles enure to the extent that they provide criteria for assessing the circumstances. The Treaty furnishes a superior set of standards for measuring the propriety of the State’s laws, policies, and practices. This shifts the debate from the legal paradigm of the state where the rules must protect the Government’s authority to one where Government and Mäori authorities are equal.” Contemporary records of the debate surrounding the introduction of the confiscation legislation and its application show that the government did not act in good faith. Confiscation in other jurisdictions (eg Scotland and Ireland) has always been for the purposes of conquest, not of peace.

Compensation

Chapter 6 deals with efforts to compensate ‘loyal’ Mäori whose lands had been confiscated. The Compensation Court made inadequate inquiries and wrong decisions on custom (eg absentees were disentitled, ancestral interests were distorted by calculations of loyal vs rebel entitlements), had a thin veneer of legality only, and the judicial process was subservient to executive actions to reach agreements with groups, which the court would not look into. The scheme as implemented was probably unlawful, and certainly entirely inconsistent with Treaty principles, there being nothing on the record as evidence of “even minimal protective standards or the performance of fiduciary obligations”. By returning individualised titles the scheme was “an engine for the destruction” of Treaty guaranteed traditional values. Worst of all, promissory papers rather than land was actually given so that 14 years later almost none of the land awarded had actually been returned (the court made 518 determinations entitling ‘loyal’ Mäori to 79,238 acres. By 1880 only 3500 acres had actually been returned).

From 1864 there was a government power to adjust compensation court awards. In practice these amounted to no more than a series of promises of further land for absentees and others who had missed out on the court awards, promises which were in almost all cases never implemented.

A viable approach to assessing loss and prejudice is to look at land in Mäori ownership and determine how far it is an asset for the people, not just individuals. On this approach, hapü, as hapü, retain nothing.

Land purchases 1872-1881

In this period the government used deeds of cession and purchase and payments of gratuities to secure 648,048 acres both inside and outside the confiscation boundaries. In north and central Taranaki, the ‘purchases’ inside the confiscation line, in effect payments for land already technically in Crown ownership, cannot count as land returned and then properly purchased since the Mäori vendor had no title and no ownership if the ‘sale’ was resisted. For ‘purchases’ outside the confiscation line, the operation of the Native Land Court in these areas was a “wrongful imposition, promoting individual caprice and judges’ preference above traditional decision-making” and failed to provide any protection for Mäori interests. ‘Purchases’ in the south and on the Waimate plains by way of payments of gratuity or ‘takoha’ to individuals and groups on lands already confiscated was “thoroughly bad and meaningless in law”. Fraud and undue influence in all these activities was also evident.

In chapter 10 the tribunal broadly attacks the work of the Native Land Court in the district, and in particular reviews the decision of 1882 awarding almost all Ngäti Tama lands (66,000 acres) to a few individuals from a neighbouring hapü, it seems as a means punishing Ngäti Tama for allying with the King movement (the tribunal termed the award ‘confiscation’). Native land legislation was contrary to the principles of the Treaty since it deprived Taranaki Mäori of authority over their lands. Mäori land, in social and cultural terms has been made an “illusory and meaningless asset” for the people and community it traditionally served.

Parihaka

The tribunal outlined the well known history here and offered some fresh perspectives. Tohu was of equal status to Te Whiti. Parihaka was extremely prosperous by 1880, acknowledged as such by government officials, and provided “proof of that which governments past and present have sought to avoid admitting: that aboriginal autonomy works and is beneficial for both Mäori and the country”. There was no reason, “apart from motivation” why central Taranaki should not have been declared a Mäori district under the New Zealand Constitution Act. The NZ Settlements Act 1863 provided that confiscated Mäori land did not become Crown land freed of all Mäori interests until it was Crown granted for settlement. Since the central Taranaki confiscation was effectively abandoned, and no fresh land could be confiscated after 3 December 1867, and takoha which had been paid was of no legal significance, Parihaka lands were in 1881 held by the Crown subject to Mäori interests. Consequently, the Crown assumption of land in central Taranaki and the invasion of Parihaka were unlawful and remain so today (although current titles are secure under the land transfer system). The taking of the land and invasion of Parihaka was also contrary to Treaty principles as was the imprisonment without trial of many Parihaka people. The tribunal came to no definite views on the treatment of prisoners. It quoted at length from Martin Luther King’s statements about non-violent protest and challenges to unjust laws. It noted also that Parihaka was completely rebuilt after the return from imprisonment of Tohu and Te Whiti.

West Coast Leases

The report critically examines the work of 2 West Coast Commissions which reported on the failure to reserve lands after confiscation, and the second commission which went on to make reserves, finally giving effect to most of the awards of the Compensation Court. There was a bias in the commission towards European settlement, it had limited terms of inquiry, it acquiesced in the Parihaka invasion, which broke its own recommendation that adequate reserves needed first to be made, it lacked independence from government, it ‘punished’ Parihaka leaders by reducing their reserve awards, and it individualised all but 991 acres of the 200,000 acres put into reserves. Worst of all, the reserves were, by statute, put in the hands of the Public Trustee with power to lease to promote settlement, which in practice resulted in leases to Päkehä farmers (of 193,996 acres in reserves in 1912, 138,510 were leased by Europeans). From 1892 the leases were, by statute, made perpetually renewable. The tribunal looked briefly at the subsequent history and the amalgamation of all reserve interests in a single incorporation in 1976 (‘PKW’) and ongoing disputes among Taranaki Mäori about the role of that body. With regard to current proposed changes to the perpetual leases, there was no question of disturbing the sanctity of private contracts “There is nothing sacred about those contracts. They are entirely profane.” It is a not a situation of competing equities or of a contractual relationship between Mäori and lessees, but rather of each group having mutually exclusive and distinct claims to make to government. The proposed scheme would see some leases terminating 62 years after amending legislation is passed. This delay is “excessive and unacceptable”. There should be termination after no longer than 42 years from the enactment of amending legislation, and 5 yearly rent reviews.

Mäori are also separately entitled to compensation for loss of possession, control, land and rental (compensation for loss of rents should go only to those who were owners when the loss occurred. Latecomers would be excluded). The loss of opportunity to maintain and develop the society must also be considered. “Perpetual leasing was the unkindest blow, for it visited upon succeeding generations the pain of knowing the family lands were held by another people; and as parents were forced to send their children away to work, they did so knowing how their lands were worked by others.”

Reparation

The tribunal considered the Sim Commission report of 1928, its limitations, and the creation of the Taranaki Mäori Trust Board and its struggle to apportion money among Taranaki tribes and provide a wide range of services with inadequate resources. Its continuing role should be a live issue in settlement discussions. The momentary revesting of Mount Taranaki in the trust board in 1978 had not satisfied the people. There was no legal basis for the mountain’s confiscation in the first place.

Settlement options

Taranaki claims are likely to be the largest in the country. Long term prejudice may be more important than quantification of past loss. Taking the broad approach suggested by s6(3) Treaty of Waitangi Act 1975, compensation “should reflect a combination of factors: land loss, social and economic destabilisation, affronts to the integrity of the culture and the people over time, and the consequential prejudice to social and economic outcomes.” In all 1,199,622 acres were confiscated and no distinction should be made between this and 296,578 acres said to have been purchased, and 426,000 ‘expropriated’ by the government’s native land court process. When determining injurious affection, the impact of loss by reference to the proportion of the land taken and the amount retained in regard to the size of the group is more important than the amount taken in absolute terms. The amount remaining to Taranaki Mäori is probably less than 3% and hapü, as distinct from individual, loss appears to be total. Social and economic destabilisation should be compensated as should personal injuries ie damage to the psyche and spirit of people. Social and economic performance may be a measure of past deprivation. Little weight should be placed on reparations previously paid.

Any settlement should not be full and final since a full accounting for loss will not be politically possible in any settlement. The tribunal named 8 hapü deserving separate consideration (including Pakakohi and Tangahoe, with a lesser standing however than the other 6 hapü). The apportionment of any settlement between hapü is a matter for themselves. The broad perception from the evidence is that Taranaki people in the centre account for 1/7, and the north and south 3/7 each; but this should be settled locally without  further reference to the tribunal. Separate settlements for north, south and central groupings seem appropriate. Compensation should be directed to hapü and not the trust board, unless hapü otherwise agree. The same applies to the PKW incorporation, as settlements should not be dissipated by individuals. However PKW and the trust board should be reimbursed for funding the claims.

 

 

 

Other Jurisdictions

 

Court of Appeal

Sale of radio assets

Interim orders sought

Whether Mäori action to be struck out

New Zealand Mäori Council & Others v A-G & Others

CA 78/96 13 June 1996 Richardson P, Gault J, McKay J, Henry J, Thomas J, Keith J, Blanchard J

This was an appeal from McGechan J’s decision refusing an application by Mäori to prevent the sale of the Crown’s commercial radio assets (including 41 commercial stations) until further steps had been taken to protect Mäori language in radio broadcasting (see Mäori LR April 1996 p2). The Crown also sought to strike out the Mäori claim on the basis that no reasonable cause of action was disclosed by it.

The Majority decision (Richardson P, Gault, McKay, Henry, Keith, Blanchard JJ)

The Treaty obligation of the Crown to guarantee to Mäori the undisturbed possession of their taonga includes their language, which the Mäori Language Act 1987 recognises as a taonga. It is “part of the heritage of all New Zealanders” who “all have a stake in its preservation”. The case of New Zealand Mäori Council v AG [1992] 2 NZLR 576, which concerned the transfer of television and radio assets to state-owned enterprises in the context of s9 of the State-owned Enterprises Act 1986 raised serious concerns relating to the Crown's obligation to preserve the Mäori language through broadcasting. Since broadcasting litigation was first commenced in 1988, the Mäori language has continued to rapidly decline and "the position is very worrying".

Two initial decisions could be noted. The Privy Council decision concerning the transfer of television assets ([1994] 1 NZLR 513) held that the courts can review a transfer of assets by the Crown and the Treaty impact that might have under s9. And in Mercury Energy Ltd v ECNZ [1994] 2 NZLR 385 the PC held that while the courts could review a commercial contract made by a state-owned enterprise as the exercise of a statutory power, this would likely only be if there was evidence of fraud corruption or bad faith.

The legal test for granting interim relief is outlined in Carlton & United Breweries [1986] 1 NZLR 423. A primary consideration is whether the interim order is necessary to protect the applicant's position, in accordance with section 8 of the Judicature Amendment Act. This requirement assumes there is a legal and factual position to be protected.

Looking at the Mäori presence on radio in 1991 and 1996 - in 1991 there were 95 radio stations in all, 68 being commercial radio, 36 of which were controlled by the Broadcasting Corporation. There are now 179, including 152 commercial stations. Radio New Zealand's commercial arm operates 41 commercial stations. In his 1991 judgment McGechan J commented on Mäori content on radio, and noted the increase in iwi radio, the developing pool of expertise and satisfactory audience levels. He felt that with the financial assistance of the Broadcasting Commission, Mäori radio was established and if funding continued at adequate levels, there was no good reason for holding back the transfer of radio assets to the state-owned enterprise. There was no mainstreaming of Mäori programmes on the Crown's commercial stations in 1991 and there is none today. A National Mäori Radio Service began in May 1996. It is distributed to radio stations for broadcast at peak times in high quality Mäori language. Te Mänghai Paho, the funding agency established to fund the broadcasting and production of Mäori programmes, intends that the National Mäori Radio Service provide broadcasting in the language for 15 hours per day by December 1997.

In the decision under appeal, McGechan J had little of the data relating to Mäori participation on radio in 1996.  He noted that public radio did not have a large Mäori audience, particularly among rangatahi (Mäori youth), and that the Crown intended to dispose of its commercial radio assets without retaining power of control. He observed that evidence from parliamentary debates indicated that Treaty issues were thought to have been satisfied, and referred to opportunities given to Mäori for input which were not taken advantage of. He accepted that the Crown had acted without being fully informed of the inadequacy of present funding levels, but concluded that holding the commercial stations back in public ownership was not likely to afford any significant assistance in broadcasting Mäori language. He also expressed serious reservations as to the practicalities of mainstreaming, mentioning the dangers of backlash, the commercial disadvantages for radio stations, and the lack of the time required for a gradual introduction.

The majority thought that, in hindsight, and in view of the government's preferred policy approach of funding incentives, the Crown could have exhibited a greater sense of urgency over the period between 1991 and 1996 and could have done more at an earlier stage to foster iwi radio and Mäori radio networks. However, the current position of Mäori radio was not adequately presented to the High Court. Funding for Mäori broadcasting increased from $14.5 million for 1991/1992 to $18.1 million for 1995/1996 and 1996/1997. The question of mainstreaming is to be addressed by the Joint Mäori/Crown Working Group on Mäori Broadcasting established in May 1996. Advances had been made since 1991 in relation to the Mäori language in education, including increased funding and increased Mäori participation in tertiary education. Positive steps were therefore being taken by the Crown to meet its Treaty obligations.

As to the adequacy of consultation before beginning the sale process, the evidence did not show that there was any failing on the part of the Crown to consult with Mäori within the reciprocal Treaty obligations falling on both the Crown and Mäori to act fairly, reasonably and in good faith to each other. Ministers and officials gave consideration to the Treaty implications affecting the diversity of commercial radio. When Mäori concerns were articulated, Ministers and officials met with Mäori on a number of occasions and responded in writing to any matters raised.

The argument from Mäori in this appeal was in essence that the Crown had a mainstreaming obligation and that the Crown policy of incentive funding could satisfy its Treaty obligations only if: 1) there was a commitment to provide adequate funding and; 2) there was a regulatory mechanism by which broadcasters could be required to broadcast Mäori language programmes in prime time and that mechanism was in place in advance of the transfer of the assets.

While mainstreaming remains untested on commercial stations, there is the experience of National Radio broadcasters, who report that Mäori language broadcasts produce a net ‘turn-off’ of the National Radio audience (although admittedly, the target audience in any mainstreaming is unlikely to coincide with commercial radio audiences). Imposing quotas on broadcasters in Crown ownership, or as a condition of sale would be likely to result in a loss of audiences, advertising revenue, profitability and company value, with significant implications for taxpayers. Regulation would attract opposition from the public and from broadcasters, and audiences would always be free to change channels or turn off the radio. The increased listenership of Mai FM and the development of iwi radio demonstrate a positive choice by listeners and these stations increase support for Mäori language and culture. The provision of funding and incentives could extend to buying time on commercial radio for the broadcast of Mäori content programmes, regardless of the ownership of the stations involved.

Accordingly, an interim order precluding transfer of the Crown's commercial radio interests was not necessary to preserve the position of Mäori pending any substantive hearing of the proceedings.

As to the Crown counter appeal on the application to strike out the Mäori case, the Crown argued that: 1) the relief sought was contrary to the words and intention of the Radio New Zealand Act (No 2) 1995, as well as the structure and shareholding of Radio New Zealand Ltd 2) Insofar as the relief sought aimed to prevent the implementation of an Act of Parliament it sought to prevent action which is legislative in nature 3) the allegation that the assets of Radio New Zealand are held in trust was untenable and is contrary to the terms of the State-owned Enterprises Act 1986, the Radio New Zealand Act 1995 and the Radio New Zealand Act (No 2) 1995; 4) the allegation that the Crown had given an undertaking that may give rise to a course of action and relief in relation to the sale commercial radio assets was untenable.

Mäori in their application had targeted 4 stages in the disposal of commercial radio assets: 1) the policy decision to sell the assets; 2) the contract of sale; 3) the prospective making of an Order in Council bringing the second Radio New Zealand Act into force, thereby taking the commercial radios stations out of the reach of  s 9 of the SOE Act 1986 and; (4) the prospective completion of the sale.

Mäori challenged Cabinet's decision that the Government should initiate a negotiated sale by tender process for its commercial radio assets on the basis that because this decision was made before the introduction of a bill into the House it was in no sense part of the parliamentary process and the court was not precluded from reviewing it. Further, this decision was a breach of the Treaty - which could be enforced against the Crown where there is a breach of s9 of the SOE Act 1986, or on administrative law principles. However, the majority rejected these contentions, finding that the authorisation given by Cabinet was a mere preliminary to a future sale, having in itself no legal effect.

Mäori also submitted that it was unlawful for the Crown to enter into any agreement for the sale of the shares (which it had done in April 1996 after McGechan J’s decision) even if in its express terms the agreement was not to be brought to completion before the No 2 Act was in force and the shareholding was freed from the restrictions of the SOE Act. They argued that, although conditional, this was nevertheless a ‘sale or other disposal’ prohibited by s11 of the SOE Act and the shareholding ministers were not entitled to enter into such a transaction until and unless the No 2 Act was brought into force. The majority found much to support this view, however, a conclusion on this submission in favour of Mäori would not prevent the Crown from ‘remaking’ the agreement and settling a sale and purchase of the shares upon the coming into force of the No 2 Act.

As to the Mäori attack on the foreshadowed Order in Council which would bring the No 2 Act into force; the power to promulgate such an order comes under the definition of ‘statutory power’ and is capable of review by the courts. The case of R v Sec of State ex parte Fire Brigades Union [1995] 2 AC 513 on a similar issue merely underlines the sensitivity with which courts treat applications to review commencement powers. The provisions of the No 2 Act were straightforward and neither contained nor implied a restriction on the power to commence which would be the basis for intervention by the court. In reality Mäori were attacking the legislation and not the executive decision to bring it into force.

Turning to the attack on actions after the No 2 Act came into force -  when s9 of the SOE Act would no longer apply - Mäori arguments that it would be unlawful for the Crown to procure settlement of the contract of sale and that the Crown should be prevented from taking further steps to sell the shares in Radio New Zealand to private interests relied on the Crown's fiduciary obligations under the Treaty, and an alleged failure of the Crown to meet the legitimate expectations of Mäori, failure to have proper regard to Treaty obligations, unreasonableness and substantive unfairness. However, once the No 2 Act was in force, the Crown would not be exercising any statutory power and there would be no legal basis on which the relief sought could be obtained. The commercial transaction could not be reversed in any practical way, so there was no realistic possibility that after the sale there could be granted declaratory relief having the effect of invalidating the sale.

Finally, even if it could be argued that Treaty obligations are directly enforceable in this case (although a clearly contrary ruling was made in Hoani Te Heuheu [1941] AC 308 and accepted in the PC ruling inNZMC v AG [1994] 1 NZLR 513, 524) it was not clear how this would lead to any effective relief.

 

The minority decision (Thomas)

His Honour noted that past tribunal and court decisions have affirmed the obligation to protect Mäori language, yet the language is in a “state of crisis” with only 10,000 active, mostly elderly, speakers. At no time in the history of the country has its survival been more at risk. Should it fail to survive as a living language the Crown’s assurances, no matter how well intentioned, will be perceived as no more than pious rhetoric and the Mäori Language Act “stand impeached ... as a piece of window dressing”. So, while legal principles should not be relaxed in favour of Mäori, the courts should respond with deliberate and measured care to a matter of such importance to Mäori and the nation as a whole - and this applied particularly to the application to strike out the Mäori cause of action.

The majority focused on the adequacy of Crown protective efforts before selling the commercial radio assets. The essence of the Mäori case however appeared to be on measures being put in place before any sale, ie that the Crown, having primary responsibility for ensuring the protection of the Mäori language under the Treaty, failed to carry out the required research into the possibility of mainstreaming prior to the sale.

At the time of the agreement to sell, the shareholding Ministers were subject to the provisions of both s9 and s11 of the SOE Act. In entering into the agreement to sell shares, the Crown was in breach of s 11, irrespective of any breach by the Crown of its obligations under the Treaty. The fact that the contract was conditional upon the Crown promulgating an Order in Council bringing the No 2 Act into force did not remove the illegality. A conditional sale is an agreement to sell and is covered by s 11 of the SOE Act.

After sale, the SOE Act no longer applies and the parties are free to remake their agreement, but the Crown's obligations under the Treaty do not cease to exist in these circumstances. This apparent illegality favoured the granting of the interim order applied for preventing sale, but as the Mäori case focused on a variety of measures being put in place before sale (and not just matters to do with radio) it was apparent that the mainstreaming of the Mäori language on radio may be achieved by means other than the Ministers retaining ownership of the commercial radio assets. While the introduction of regulations to implement mainstreaming on commercial radio would be more difficult if the Crown were not a substantial owner and operator of commercial radio, the Crown's obligations could still be met if the sale proceeded. However, the refusal of interim relief might make it more important that Mäori have the opportunity to pursue their substantive case.

His Honour also upheld the majority finding that the court should not interfere in the Order In Council process bringing the No 2 Act into effect, as the No 2 Act gave no indication that Treaty obligations could be considered by the Governor-General in Council.

Regarding the Crown application to strike out the Mäori case however, there was a need for certainty and caution in a decision to allow the application. A claim cannot be struck out unless the court is satisfied that it is obviously unsustainable or has ‘no realistic prospect of success’ (Te Runanga o Wharekauri Rekohu v AG [1993] 2 NZLR 301, at 309). This latter was a factual matter. Striking-out applications proceed on the assumption that the facts pleaded are correct (CCD Distributors v Computer Logic Ltd (1991) 4 PRNZ 35). Yet it had not been shown that Mäori claims as to a lack of adequate consultation and the need to retain commercial assets for mainstreaming were indisputably incorrect. There were indeed few uncontested facts in this case.

The case for mainstreaming was clearly arguable. Acceptance and use of the Mäori language clearly requires the exposure achieved by mainstreaming. Special purpose Mäori radio sources would possibly not achieve this function alone. There was expert evidence that Mäori language could be effectively included in a mainstream programming format and the attention of the bulk of radio listeners still retained. Mainstreaming could therefore not be rejected out of hand.

There were also supporting considerations. First, the court should not sequester to itself knowledge and expertise that it could not have until a full airing of the issues. Second, mainstreaming was arguably crucial to the Crown’s acceptance that Mäori language was the heart of the culture and the court should not limit further discussion of it. Third, if it was accepted that mainstreaming was valid in commercial television, why was it so readily rejected for commercial radio? Fourth, while efforts to mainstream on television had no immediate prospect of success, it was arguable radio assumed more importance. Fifth, it was arguably valid to seek to restrain the sale until television mainstreaming was placed on a better footing. Sixth, an inquiry into the Crown's performance of its duties under the Treaty must be a wide-ranging one given that its obligations arise from a fiduciary-type relationship which cannot be approached with contractual-like precision. Finally, given the critical state of Mäori language, it was arguable that more urgent measures then ever before are required, as compared to if the language were in a healthy state.

It was also arguable that inadequate research and inquiries had been carried out prior to the decision to sell. Mäori had not necessarily lacked diligence in not raising issues. Rather, the Crown, being under a positive duty, should have done more than simply invite responses from a limited number of persons.

The matter of legitimate expectations was also arguable. The Treaty is of fundamental constitutional importance. An assurance by the Crown could raise a legitimate expectation as much as recognised obligations under the Treaty. There could also be such an expectation as to procedure as well as substantive matters. Support for this was to be found in NZMC v AG (the spectrum case)(Unreported 21 September 1990 Heron J CP 785/90) and now very strongly in Minister for Immigration & Ethnic Affairs v Teoh (1995) 128 ALR 353 where it was held that an international instrument ratified but not yet passed into law could found a legitimate expectation. It followed therefore almost ‘automatically’ that the Treaty should found expectations. This does not enforce the Treaty directly in NZ law - rather it makes enforceable an expectation the Crown itself has raised.

As to whether there would be effective relief for Mäori should they succeed, Mäori were entitled to amend their claim, and they should not be precluded from challenging Crown actions simply because they might already have been completed. After the sale, Mäori might still seek declaratory relief that the Crown had not made an adequate commitment to a strategy designed to achieve the preservation of the Mäori language through broadcasting.

Further, the Crown's obligation was an on-going one, which cannot be divorced from past breaches. Even after the completion of the sale of commercial radio Mäori might have a real interest in establishing a past breach, and an issue of a legitimate expectation not yet fulfilled.

Finally, in refusing to agree with the majority and strike out the Mäori application, his Honour admitted to “severe disquiet” with the majority approach, that once the sale had occurred, the cause of action was effectively spent.


May 1996 Contents

URBAN MÄORI AND THE FISHERIES SETTLEMENT

The Court of Appeal determined last month that some Mäori living in urban areas may claim benefits from the 1992 fisheries settlement without any reference to iwi or hapü affiliations (Te Runanga o Muriwhenua & Ors v Te Runanganui O Te Upoko O Te Ika Assoc Inc & Ors CA 155/95 30 April 1996). The key to the judgment is the requirement that any scheme or legislation proposed by the Treaty of Waitangi Fisheries Commission to distribute the assets of the settlement “includes equitable and separately administered provision for urban Mäori”. The court appears to have defined a new constituency called “urban Mäori”, contrary to the commission’s wish to deal with all Mäori first and foremost as “iwi Mäori”.

The Court was assisted to its decision by earlier comments from the Waitangi Tribunal that the application of the word “iwi” to urban Mäori groups might well be a classical and not a new use of that term (memorandum 22 May 1995 - see Mäori LR May 1995 p6), and that any allocation scheme for the fisheries settlement assets “should not be based on treaty principles alone but on broad considerations of what is tika, or fair, in all the circumstances” (Fisheries Settlement Report 1992 p21).

The judgment requires the commission to fundamentally rethink its approach to allocation. There is already a claim before the Waitangi Tribunal from a Wellington based urban Mäori authority seeking a recommendation that the Minister of Mäori Affairs consult with urban Mäori before appointing any new members to the commission (Wai 589: Tata Parata for Te Runanganui O Te Upoko O Te Ika Association. The claim has been registered, but no further directions issued). The commission will have to grapple in the coming months with a definition of “urban” and a redefinition of the word "Maori". There will also no doubt be a concern that the judgment may result in the creation of a multi-million dollar bureaucracy which the iwi, by insisting in 1992 on allocation of the settlement assets direct to iwi, had sought to avoid. In its judgment the court noted with approval a regional allocation scheme recently put forward by 4 commissioners which has been rubbished by many tribes.

Clarification on some of these issues may have to wait however for the result of an appeal to the Privy Council. On the 4 June the Court of Appeal will consider an application to take the matter there.

MÄORI LAND COURT AND APPELLATE COURT

In Re Joseph Poroa Malcolm and Grace Ritohau Malcolm and Te Karaka 1B2B1 Block

1994/11, 1 Waiariki ACMB 31, 16 April 1996. Marumaru J (presiding) Carter J, Isaac J

A block of land, Te Karaka 1B2B was partitioned in 1962 into 1B2B1, a small area owned by the appellants, and adjoining it, a larger block, 1B2B2. In 1962 both blocks fronted on to a main road. Over the years the main road was realigned so that while 1B2B2 still fronted on to it, it passed some metres from 1B2B1. However 1B2B1 still had access to the main road via an area of road immediately in front of it, which it was intended to close. In 1992 the Mäori Land Court received applications under the s425 Mäori Affairs Act 1953 to close, among others, this road and vest it in the owners of 1B2B1. However the application was dropped at the last minute because it was disputed.

In 1993 the court finally heard the application that the road be closed and revested in the appellants. However it found that the road should not belong exclusively to the owners of 1B2B1, but rather to the owners of 1B2B - the parent block from which 1B2B1 and 1B2B2 were created. The appellants would therefore have common ownership in the road along with other owners now in 1B2B2. But if the common owners decided to lease out the closed road or otherwise deal with it, the appellants would lose their access to 1B2B1. Therefore the status quo should be maintained. In this appeal the appellants argued that the road had provided access to their block and had been used by them without dispute for over 20 years and should be revested in them alone.

Held: s425/1953 is clearly discretionary allowing the court to adjust equities as required. A road closed under the section does not necessarily vest in the owners of the adjoining block or their successors. Conditions at the time of the closure order are relevant. The appellate court should only intervene if the lower court had taken in to account a wrong principle or irrelevant consideration, had given no or insufficient weight to relevant considerations, or if there would be injustice if the appellate court did not intervene.

The lower court had declined the order on the basis that the persons entitled to the road were the common owners in 1B2B prior to partition and therefore access to 1B2B1 could be threatened, and that there appeared to be agreement to retain the status quo when the 1992 application was made. As to this first reason, the court could have used s425(3) to attach conditions to its order and provide adequate access to 1B2B1. As to the second reason, the lower court appeared to assume that there was some agreement to preserve the status quo in 1992, when in fact the matter had been dropped because there was disagreement and the matter was simply left “at large”. The appellants were not even present when the matter was discussed in 1992. Either party was entitled to renew the application. The court had therefore taken into account an irrelevant consideration when exercising its discretion. The dismissal by the lower court might also result in an injustice since owners were deprived of the potential benefits of revesting the land in them.

Rather than refer the matter back to the lower court, and because approvals for revesting had been obtained from the relevant government authorities, the appellate court proceeded to finally determine the case. It found that in such cases the court should have regard to the effect of road closure and revesting on adjoining properties. The larger block, 1B2B2, already enjoyed considerable road access. The appellants block, 1B2B1, merely had access over the road, which was not vested in it, and might in the future be closed, affecting the value of their block. The history of the main road realignment showed that this area of road came free for revesting only because of losses to parts of 1B2B2. Prima facie then, even though compensation had been given for all land taken in the realignment, the owners of 1B2B2 were entitled to the road. Turning then to the effect on other owners, the appellants in 1B2B1 would lose their access and would have a right to object under the Local Government Act 1971. While coming from a different jurisdiction, this principle suggested that the Mäori Appellate Court was not entitled to apply s425 to deprive access to owners. The appellants were therefore entitled to access.

A simple right of way or roadway order in favour of the appellants would reduce the value of their property. A right of exclusive use to the appellants would render the rights of the underlying owners illusory, and still allowed a possibility that the appellants access could be varied by the underlying owners in the future. Accordingly, a fee simple title in favour of the appellants to half the road was appropriate. The residue would be vested in the owners of 1B2B1.

The court also noted incidentally that the registrar had applied for an order to recover from the sum paid as security for costs by the appellants the cost of renting a venue (the appellants had failed to attend an earlier hearing set down for this matter). The court doubted that the registrar had any standing to make such an application.

WAITANGI TRIBUNAL

Pateriki Nikorahi and Whititera Kaihau of Ngati Te Ata re abolition of the right of appeal to the Privy Council

Wai 572 & 585, 10 May 1996. Deputy CJ Smith

The tribunal issued a memorandum and directions declining a request that the claim by Pateriki Nikorahi be given an urgent hearing. The claimant’s concern that court proceedings he was currently engaged in might be prejudiced by abolition of the right to appeal to the Privy Council was answered by the Crown’s announcement that any legislation on the matter would include a transitional period to protect litigation commenced before the legislation was introduced. Also, the tribunal found that the right of Mäori to make submissions before the select committee which would consider any legislation provided an “avenue for consultation”. For the same reason, that the select committee process “obviates the need for an urgent hearing”, an urgency request by Whititera Kaihau was also declined.

Papers provided to the tribunal by the Crown in response to these claims establish that in October 1994 Cabinet requested a report on the matter of Privy Council appeals from the Solicitor-General, indicating that it would make an “in principle” decision whether to abolish or retain the right of appeal on the basis of the report.

The Solicitor-General’s report briefly considered Mäori perspectives and suggested that the Crown consult with Mäori. It also said that retention or abolition of appeals to the Privy Council could neither enhance nor diminish opportunities for Mäori to pursue settlements of Treaty claims nor would it have any impact on the Crown’s obligations to Mäori under the Treaty.

The report was released in May 1995 and just under two months were allowed for public submissions. The government also indicated that, in principle, it supported abolition and the option proposed in the report of a single tier appeal structure. At the same time 2000 copies of a booklet outlining the Solicitor-General’s views and seeking Mäori input were provided to regional offices of Te Puni Kökiri and copies of his report were provided to the Mäori Land Court judges and “key Mäori organisations and individuals.” The Crown also approached the Mäori Committee of the Law Commission for their views. That committee worked in conjunction with the NZ Mäori Council to produce a submission which was received on 15 September 1995, the government delaying its final decision until receipt of that submission.

The Mäori Committee, comprising the Right Reverend Manuhuia Bennett, Chief Judge ET Durie, Judge Michael Brown, Professor Mason Durie, Hepora Young, Whetu Wereta, Denese Henare, and Archie Taiaroa, rejected in the strongest terms the government approach to the issue. It reported that the right of appeal to the Privy Council was special to Mäori because it represented in a sense the last personal link to the British monarch. Further, differences between an indigenous minority and the majority within a society “tax the legal system to its limits” and the current resources of NZ courts were seriously stretched when considering such issues (the committee was critical of the requirement that the Solicitor-General’s report make only “fiscally neutral” proposals for change). Also, the Privy Council was viewed as “a significant restraint upon and protection of Mäori against the inappropriate exercise of executive authority” (the Broadcasting case - NZ Mäori Council v A-G [1994] 1 NZLR 513 was referred to). The committee emphasised that its own report did not constitute sufficient consultation with Mäori, and urged further consultation. This issue was “of huge importance to Mäori since it is tied to the preservation of the position of Mäori and the place of the Treaty within New Zealand society. It is critical that informed debate and proper process are allowed to occur, without predetermining the position in haste, and ensuring that Mäori come to the discussion as equals, properly empowered for further discussion, rather than being permitted to contribute as a matter of grace and favour.” Among issues to be considered as part of any change were the systematic appointment of Mäori members to all courts (there are no Mäori members of the High Court or Court of Appeal), recognition of Mäori values within the substantive law, and inclusion of Mäori personnel, lay as well as professional, throughout the judicial system, especially where Mäori matters are in issue. It warned that “to effect change in any part of the present structure without awareness of the consequences to the whole would entail further erosion of the status of Mäori and the protection of their interests.”

The Crown response both to the urgency claim Wai 572 before the Waitangi Tribunal and to the committee report was that there had been adequate consultation with Mäori, and that the issue of Privy Council appeals could be properly considered separately from other constitutional issues - which had been referred to officials for “further consideration”. The Crown indicated to the tribunal that it would shortly be introducing legislation to abolish the right of appeal.

[ed: the government’s extraordinarily weak “consultation” and its outright rejection of the committee’s report would seem to reinforce the fears of the committee, that in matters going to the differences between cultures, the prevailing system is taxed to its limits. By no measure can the distribution of 2000 booklets to “regional offices of Te Puni Kökiri” be described as adequate consultation on an issue of such general importance to Mäori. No figures have been given for the number of responses the Crown received from that exercise.

The government does not seem to have addressed the essence of the committee’s report, that Mäori believe that the NZ courts are in need of more Mäori expertise, and for this reason they place some confidence in a body external to NZ. Removing that body without at the same time addressing resourcing issues by way of an appropriate appellate system or otherwise may well shake the confidence of Mäori in the courts. In view of recent scenes in courts in Wanganui, Kaikohe and Auckland, that is a message you would think the government would be interested in listening to.

Ironically, 2 major issues may shortly be heading to the Privy Council - the recent ruling on the fisheries settlement, and the sale of commercial radio assets - should the current appeal before the Court of Appeal on that matter go against the Mäori appellants.]

 

OTHER JURISDICTIONS

Te Runanga O Muriwhenua & 12 Others v Te Runanganui O Te Upoko O Te Ika Association Incorporated & 19 Others; Temuranga “June” Jackson & Others v Treaty of Waitangi Fisheries Commission & Others; Te Runanga O Muriwhenua & Others v Treaty of Waitangi Fisheries Commission & 19 Others

CA 155/95, 165/95 & 184/95, 30 April 1996. Unanimous judgment delivered by Lord Cooke of Thorndon

In a complex series of appeals and cross-appeals, the parties asked the court to consider, first, whether the Waitangi Tribunal had jurisdiction to hear claims concerning the proposals for the allocation of pre-Sealord fisheries settlement assets, and second, whether the commission was required to allocate the assets to iwi or iwi-representative bodies only.

The court found as a first important point that the deed of settlement signed in September 1992 was a “pan-Mäori” settlement of fisheries claims. These proceedings basically concerned a problem of apportionment. Litigation had arisen when it was perceived that the commission intended to include in its report to the Minister on a proposed scheme of allocation under ss6(e)(iv) and 9(2)(1) Mäori Fisheries Act 1989 a scheme based on or much influenced by the mana whenua, mana moana principle (authority over land means authority over the sea), which would unduly benefit tribes with lengthy coastlines like Ngai Tahu. It was claimed that Ngai Tahu had already benefited unduly in interim leases of fish quota by the commission. Chatham Island people also argued for, and appeared to require, special consideration (the deed of settlement included Moriori in the definition of Mäori). Urban Mäori Authorities argued such a scheme would fail to adequately consider urban Mäori (70-80% of Mäori live outside their tribal areas. In the 1991 census, nearly 31% gave no iwi affiliation).

Waitangi Tribunal jurisdiction to consider the claims

Some groups had requested a Waitangi Tribunal inquiry into the commission’s anticipated proposals. The tribunal considered that it had jurisdiction to consider such claims. The High Court found that jurisdiction would arise only when the commission had actually reported its proposed scheme to the Minister.

However, while the commission, in presenting a scheme to the Minister, would be acting by or on behalf of the Crown, thus apparently giving the Waitangi Tribunal jurisdiction, s6(7) of the Treaty of Waitangi Act 1975 (tribunal shall not inquire into commercial fishing, the deed of settlement or any commercial fishing enactment) clearly excluded such jurisdiction. This was evident when the provision was given its natural and ordinary meaning in the context of the intentions behind the deed of settlement and subsequent legislation ie to exclude further tribunal jurisdiction on commercial fishing matters. An inquiry by the tribunal on commercial fishing matters could not avoid looking at the deed and the Act - which it was forbidden to do. The subsection was more a demarcation clause than a privative one. Parliament was establishing another body to safeguard Mäori interests in this special field where a general tribunal was no longer intended to operate. The potential confusion of two bodies acting in the one area was being avoided.

The tribunal might still inquire into any Bill concerning commercial fisheries referred to it by Parliament under s8. The deed of settlement contemplated such a course if Mäori requested it. Conceivably, if Parliament were forced to impose an allocation scheme because of unresolved differences among Mäori, s6(7) might be amended to allow the tribunal to comment on the scheme. This was speculative however and not a matter for the court to consider. Section 9 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 was truly privative however and would fall to be considered under the principles ofAnisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

The commission could be subject to judicial review. It was required to take all reasonable steps to procure the agreement of iwi to any scheme proposed. This did not mean reaching unanimity (unlikely in any event), but it must consult sufficiently widely and prepare adequate discussion material so that agreement could be reached if possible. A majority decision by the commission on a scheme was possible as a last resort. The degree of agreement would also be a material factor in the Minister’s decision whether to refer the scheme back to the commission.

Whether allocation should be to iwi only

As to whether the commission is required to allocate pre-settlement assets solely to iwi and/or bodies representing iwi or groups of iwi. ‘Iwi’ appeared only once in the Treaty, in reference to the Queen’s subjects already living in NZ and others to come. ‘Tribes’ were translated as hapü. The Waitangi Tribunal in its Fisheries Settlement Report 1992 confirmed that the main Mäori group in the context of ownership of fisheries was the hapü. Williams Mäori Dictionary defines iwi as “Nation, people”. The common translation as ‘tribe’ was meant where it was used in the fisheries settlement deed and legislation.Iwi refers to people of the tribe, not leaders or representatives alone. The word Mäori was used much more extensively than iwi in the settlement deed and legislation, stressing the pan-Mäori nature of the settlement. This and the fact that iwi refers to people must govern the interpretation of resolutions of the Hui-a-Tau in 1992 to allocate the assets to iwi (the resolutions were noted in the schedule to the 1992 Act).

The commission had taken a constructive and helpful approach, submitting that urban Mäori would receive benefits under the allocation scheme, but through their right as Mäori to membership of an iwi - so that iwi were responsible for ultimate distribution. The commission had also submitted that while statute law and tikanga required allocation to iwi, the needs of hapü, whänau or individual Mäori, whether urban or rural, could not be disregarded in this allocation. This issue was one of accountability ie how all these interests would be provided for. A regional model for allocation proposed by 4 commissioners was mentioned and the commission indicated that it would discuss these issues with all interested parties. The court concluded:

We consider that this evinced willingness to extend consultation to the Urban Mäori Authorities is a major advance in the history of the allocation discussions. Further, it accords with our view of the 1992 resolutions when interpreted in the context of the legislation incorporating them and the surrounding circumstances. ‘Iwi’, refers, as we have said, to the people of tribes; and this must include those entitled to be members although their specific tribal affiliation may not have been and even cannot be established. They are among those entitled to benefit from the pan-Mäori settlement. Natural justice requires that as far as reasonably practicable they be consulted by the Commission. The most practicable mode of consultation with them is through the Urban Mäori Authorities. We are satisfied that the Commission is right in being now prepared to consult them in that way. We hold that in all the circumstances this is the Commission’s statutory duty. The duty extends to ensuring that any scheme or legislation proposed by the Commission includes equitable and separately administered provision for urban Mäori. This is required by the Treaty of Waitangi and its principles, applied as a living instrument in the light of the developing circumstances, which this Court has previously held to be the right approach: see Te Runanga O Muriwhenua v Attorney-General [1990] 2 NZLR 641, 655.

A declaration to this effect would issue.

Finally, the court commented that while it was not for the court to set out any scheme for allocation, a wide range of factors needed to be considered as the commission itself had pointed out. There appeared to be special cases such as the Chatham Islands, and any past inequities in leases of quota would need to be taken into account. The courts retain jurisdiction to require performance of the commission’s statutory functions. It was to be hoped that the progress made during this hearing would continue with no or minimal involvement from the courts. “It is the responsibility of Mäori and a test of Mäori to rise to the challenge of working out a solution for Mäori of this difficult but surely not insuperable problem.”

[ed: for comment on this case see the editorial in this issue]

 

 

Te Runanga o Ngai Tahu Ltd v Attorney-General and Land Corporation Ltd and Others

CP 119/96 HC Wellington, 19 April 1996. McGechan J

The High Court made an interim order in October 1995 that Landcorp not dispose of certain land assets pending further argument about their inclusion in the final settlement of the Ngai Tahu claim (See Mäori LR October 1995 p7). In these proceedings, Landcorp asked the court to impose on Ngai Tahu an undertaking as to damages as a condition of continuing the interim order.

Held: while accepting that the delay in disposing of the properties was causing some loss to Landcorp and was frustrating its discharge of its corporate responsibilities, the interests of justice overall had to be considered. First, in public law matters, such undertakings, while possible, are relatively uncommon and the courts approach them cautiously - see NZ Optical Ltd v Telecom (1990) 5 NZCLC 66457 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200. Second, early in these proceedings Landcorp had given a voluntary undertaking to Ngai Tahu that certain other properties would not be disposed of while the proceedings continued, and Landcorp had not at that stage sought an undertaking as to damages. This represented a “responsible attitude” by the Crown and Landcorp, and in the interests of consistency the court should not now impose an undertaking on these properties. Third, the court was “reluctant to place obstacles in the path of Treaty claimants who have reached the stage of being recognised by the Waitangi Tribunal as having a good case on the merits, a position which has been further recognised by [the] Crown commencing negotiations. The Courts should, while weighing all factors, endeavour also to promote the spirit of the Treaty rather than to render its observance the more difficult.”

Finally, the current delays in hearing the full case were not Ngai Tahu’s fault, but stemmed from a scarcity of hearing time which ultimately was a matter of government resources. Any resulting burden would therefore be better borne by Landcorp “in reality one arm of government” than by Mäori. The position would change however if Ngai Tahu were to fail to progress proceedings with reasonable expedition. Leave was accordingly given to make a future application if required.

 

 

Moynihan v Berkett and Others

CP3/94 HC Tauranga, 12 March 1996. Anderson J

In this decision Anderson J overturned the decision of Jaine J of 14 December 1995 (see Mäori LR March 1996 p4) that the former General Manager of the Iwi Transition Agency was a trustee of certain land on Tuhua (Mayor Island), and therefore a party in litigation being taken against the trustees of the land.

Section 438(2) Mäori Affairs Act 1953 (providing for appointments of trustees by the Mäori Land Court) required that trustees must give their prior consent before appointment. This had not been given. Also, the trustee named was the “Secretary of the Department of Mäori Affairs”, a departmental office and not a corporation. The land court could not create as a trustee a person who might at any time become the secretary - since their consent in each case would be required. Accordingly the words in the order were merely words of identification of the particular person holding that office at the time (who was not the former General Manager).

Nor did the concepts of constructive trusteeship or estoppel assist in this case, contrary to comments by Jaine J. With regard to estoppel, the actions of subordinate officers of the Iwi Transition Agency in attending meetings of the trustees could not create an agency on behalf of the General Manager. Only a principal can create an agency, and no purported agent can create an estoppel against a purported principal as to whether there is an agency.


April 1996 Contents

LAW AND ORDER, MÄORI, AND THE PRIVATE SECTOR

Excerpt from a speech of the Honourable Douglas Graham to the inaugural meeting of Security NZ Ltd, 28 March 1996, entitled “The Role of the Private Sector in Law and Order”:

“Here in New Zealand, Mäori wardens are one of the most successful examples of the role of the private sector in law and order. They were established in 1945 by the Mäori Social and Economic Advancement Act at a time when more than 80 per cent of Mäori were living in rural areas. The wardens were well known to all members of the tribe by virtue of the fact that they had grown up within the community with a reputation established by ancestry and leadership qualities.

Over the last 30 years there has been a spectacular movement of Mäori people to the cities and the work of the wardens has become largely an urban function. Today they carry a heavier workload than their rural counterpart as they cope with some of the less savoury aspects of life in the city.

Mäori wardens were not introduced with the intention of usurping the duties of the Police, but rather they are an influence among the people in maintaining law and order.

Their powers of arrest are only those of members of the public. But, as one who attended 12 fiscal envelope hui last year, I can assure you their influence overshadows their powers of arrest. On many occasions I and the officials who accompanied me on this character-building exercise were extremely grateful for the presence of Mäori wardens - backed up by kuia when the going got really tough.

I’ll never forget the sight of dozens of kuia, dressed in black with brilliant red scarves, forming a phalanx between the protestors and the official party on the marae at Ohinemutu in Rotorua. In one of the most disciplined shows of co-operation between the Police and the private sector, the Police and even the Diplomatic Protection Squad kept their distance while the Mäori wardens, led by the kuia, kept the peace.

The State observed Mäori protocol and a potentially dangerous situation was diffused by skilful handling and a lot of wisdom and humour from kuia and Mäori wardens.”

MÄORI LAND COURT AND APPELLATE COURT

No cases of note this month.

WAITANGI TRIBUNAL

No material of note this month.

OTHER JURISDICTIONS

Michael John Smith v Auckland City Council

CA 559/95, 26 March 1996. Eichelbaum CJ, Henry J, Tompkins J

An appeal from a decision in the High Court in Auckland (Mäori LR Feb 1996 p4). The appeal was dismissed in a brief judgment. The council did not have an obligation under ss5-7 Resource Management Act 1991 to consult and obtain the consent of tangata whenua before deciding to prosecute. Section 9(1) provided that persons may not use land in contravention of district plans and s84 provides that territorial authorities shall enforce the observance of plans. A requirement for consultation in such situations would be unusual and unexpected and would render enforcement of the scheme virtually impossible in many situations. The terms of a plan could never be regarded as settled.

There had been “use” of the land as the High Court had determined. Bringing a chainsaw onto the land fell within the provisions of s9(4)(e).

A third ground, that the tree had been inappropriately listed as a protected tree, also failed. The answer to a prosecution for injuring a protected tree cannot be a claim that the listing process reached a wrong conclusion. Broader arguments about the place of the Treaty of Waitangi in NZ law, however important, could not be addressed in these proceedings. No costs were awarded as the prosecuting council had accepted in the High Court that questions of law and public importance were raised by the case, and the appeal was not opposed.

NZ Mäori Council & Latimer & Nga Kaiwhakapumau I Te Reo Inc & Waikerepuru v Attorney-General, Minister of Finance & the Minister of State Owned Enterprises & the Governor-General in Council & Radio NZ Ltd & NZ Public Radio Ltd

CP40/96 HC Wellington, 29 March 1996. McGechan J

In 1991, Mäori challenged a Crown initiative to transfer broadcasting assets to the state-owned enterprises, Radio NZ Ltd (RNZL) and TVNZ Ltd. The High Court allowed the transfer of radio assets (the television assets were the subject of appeal - ultimately to the Privy Council).

In 1993, RNZL transferred its public radio assets, including Te Reo O Aotearoa, to a wholly owned subsidiary, NZ Public Radio Ltd (NZPRL). This was to separate out non-commercial assets, and facilitate the later sale of commercial radio stations retained by the state-owned enterprise.

In 1994 the Crown announced the proposed sale of these commercial radio stations. Mäori organisations approached at that time did not strongly object. The Crown formed a view that the sale was unlikely to impair its ability to preserve the Mäori language. Consequently, the Radio NZ Act 1995 and Radio NZ No 2 Act 1995 were passed. The former of these Acts came into effect in December 1995 and transferred RNZL shares in NZPRL to the Ministers of Finance and State Owned Enterprises, making public radio assets a Crown entity. The Radio NZ No 2 Act 1995 awaited an Order in Council to come into force. The Order would be made when the Crown had finalised a purchaser for the commercial stations, and would turn RNZL into a private entity, no longer subject to the State Owned Enterprises Act and s9.

In this proceeding, the plaintiffs sought interim orders preventing the ministers and RNZL from taking steps to sell RNZL, and a declaration that the Governor-General ought not to promulgate the Order in Council bringing the No 2 Act 1995 into effect. The Crown sought to strike out the orders on the basis that there was no reasonable cause of action.

Held: His Honour noted that since 1991 the Mäori language had continued to decline, from 64,000 fluent speakers in 1975 to 10,000 in 1995. There was “real room for concern that the language is dying” and “even more vigorous efforts” were required for it to survive.

Since mid-1991 the economy had improved markedly and funding assessments should be revisited as Treaty obligations were not static. Few could argue against the “compelling necessity” to protect a taonga under grave threat. In the same period however there had been “minimal” progress in broadcasting of Mäori language over radio and the position had remained largely static. Although a funding agency, Te Mängai Paho, had been created, there were ongoing difficulties and Mäori radio was not protected, let alone enhanced, and was in a serious financial position. There was a “strong case” for finding the Crown in breach of Treaty principles over the period. There had also been little progress with Mäori language on television, making radio even more important.

The Parliamentary debates clearly showed that the government thought that Treaty issues had been addressed when it introduced the 1995 legislation. Crown counsel now argued that the Order in Council was a matter of mere implementation and therefore part of the “primary legislation” and there was no discretion for the court to review the matter. However, Parliament must have contemplated situations in which the Governor-General in Council might not act, for example, if no sale bids were received for the commercial stations. Parliament did not intend to exclude review by the courts if the discretion came to be exercised, and such an intention would not be lightly inferred. While in R v Secretary for State for Home Department ex p Fire Brigades Union [1995] 2 All ER 244 HL (concerning a compensation scheme advantageous to fire fighters which the secretary had refused to implement) the majority found that there was no duty to bring into force enactments of a legislative nature, this case concerned a prospective decision to bring an Act into force, and there was nothing in the English case of a “constitutional character” such as Treaty of Waitangi issues. If it were apparent the Governor-General in Council might act outside the powers of the No 2 Act 1995, particularly if a breach of fiduciary obligations under the Treaty were concerned, the courts could properly intervene.

However, turning to the practical matters in the case, there were “serious reservations” whether the commercial radio stations could be utilised to provide more Mäori language on air, by means such as directions, incentives, or quotas. Such compulsory mainstreaming risked a backlash if forced on a non-Mäori audience, and was alien to commercial stations which relied on audience share and advertising. Slow mainstreaming on commercial stations would be required and there was not sufficient time for that. It was difficult to do anything worthwhile over commercial radio (iwi and Mäori radio networks and their present “insufficient support” being a different matter however).

In addition, the timetable for the sale process, which was in part provisional on legal proceedings by Mäori being completed, did not make it reasonably necessary for the position to be preserved pending a substantive hearing of the issues. This disposed of the application for interim relief.

Turning to the Crown application to strike out the underlying Mäori causes of action:

Breach of s9 State Owned Enterprises Act 1986: the proposed sale by the ministers of their shares in RNZL was arguably an action by the Crown in terms of s9, despite the legislative authority given by the No 2 Act 1995, however, since there was little likelihood that retaining the commercial stations in public ownership would significantly assist Mäori language broadcasting, there was little prospect that a breach of Treaty principles could be demonstrated.

Legitimate expectation that the sale of the commercial stations would observe Treaty principles: the plaintiffs argued that the status of the language as a taonga and undertakings already given to protect the language raised this expectation. Also, in Minister of Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 HCA, international conventions were said to create personal legitimate expectations. However, although some legitimate expectation could be said to arise in the circumstances (independent of the interesting Teoh decision), and the Cabinet and Parliament were probably not fully informed of the serious difficulties in Mäori language broadcasting, there was little evidence the sale of the commercial stations would result in a reduction of Mäori language broadcasting.

Wednesbury unreasonableness: the Crown and Parliament may have acted without being fully informed of the inadequate funding of Mäori radio, however the decision to sell the commercial stations was still not irrational or substantively unfair. A view was open that the stations could not be used to improve Mäori language broadcasting.

Failure to take into account relevant considerations by failure to observe Treaty principles: conformity with Treaty principles should be regarded as required unless wording or context in a statute gives reason to consider otherwise, “it is simply not acceptable, in modern thinking, to say there is no need to consider the Treaty.” However the Crown had not ignored or brushed over, but had fully considered its Treaty obligations and reached a tenable view, even if one which others might disagree with.

The Treaty should be directly enforceable: this was not open to discussion at High Court level in light of the Privy Council Tukino decision. The attitude which the Court of Appeal might take, given the vintage of that case and the current position of the Privy Council, was another matter. A personal view was that this was a matter of fundamental constitutional importance and should be decided by legislation perhaps preceded by a referendum.

Constructive trust: The plaintiffs argued that the Crown was a fiduciary, and assets passed to RNZL since 1991 were subject to a remedial constructive trust. This extended the concept considerably, and in any event there were never any assurances not to sell commercial radio assets (compared to explicit assurances regarding television) - this was simply a case where support had not been given to the extent the Treaty required.

Overall, interim relief should be refused because none of the grounds advanced showed significant prospects of success, restraining the sale would be disruptive and expensive, and other steps were in train to improve Mäori broadcasting. However the plaintiffs cause of action should not be struck out. Success might be difficult but was not impossible as a matter of law.

This result did not however clear the Crown from assertions of Treaty breaches in relation to Mäori broadcasting, and vigorous action was required, backed by substantial funds. “One would not wish to see the language die while officials write reports and nothing is achieved”..

[ed: the steep decline in fluent speakers, and the limited progress since he ruled on these issues in 1991, obviously strongly influenced Mr Justice McGechan’s decision. The figures quoted are alarming. It seems that the potential for Treaty breach, and the need for more drastic action, will grow as the number of fluent speakers dwindles further. His Honour did not absolve the Crown from blame, even though it could justifiably argue that some of its troubles are the result of turmoil within Te Mängai Paho. He also clearly expects the government to reappraise the resources it provides to Mäori broadcasting in light of its budget surplus. Should the saving of a language, a large component of Mäori culture, come before, or at least be considered alongside, tax breaks for the middle class?

The judgment further cements the Treaty into administrative law. Indeed, it is surprising how commonplace the idea has become that all legislation should be checked for Treaty consequences (previously it was believed that the constitutional sky would fall if such a principle were widely acknowledged). However, this is perhaps because His Honour was careful to distinguish between considering Treaty principles along with other factors at an administrative level, and invoking them at a constitutional level (the “direct enforceability” argument), where they would have an overriding status.]

Proprietors of Parininihi Ki Waitotara Block v GB Ogle

CP 11/95, 2 April 1996. Master Thomson

The defendant leased 3 blocks of land in Taranaki from the plaintiff on 21 year terms, which were perpetually renewable. The leases were originally issued under the West Coast Settlement Reserves Act 1892. The leases were transferred by the Mäori Trustee to the plaintiff Mäori land incorporation in 1977. In 1956 the 1892 legislation was replaced by the Mäori Reserved Land Act 1955. The 3 leases expired in December 1989. The defendant gave notice of his intention to exercise his right to renew the leases. A special valuation was obtained to fix the rent for the next lease term. The valuation was disputed by both the defendant and the plaintiff and had yet to be finally determined. Final determination was delayed by a general attack of the Mäori owners on the method of valuation (fixed at 5% of the unimproved value). In these proceedings the plaintiff argued that under the Mäori Reserved Land Act 1955 and Te Ture Whenua Mäori Act 1993, until the rent was finally fixed, it must be paid at the rate determined by the special valuation.

Held: the West Coast leases are statutory and not a matter of contract. Accordingly, although these leases were executed before the 1955 legislation came into effect, their terms, including terms of renewal and rent fixing, are subject to the legislation in force at the time. This was determined in the Court of Appeal in Proprietors of Parininihi Ki Waitotara Block v Robertson (1991) 1 NZLR 267. The plaintiff argued that, as well as the 1955 Act, ss249A(1) &249B Mäori Affairs Act 1953 were also applicable. They provided that the rent for the renewed period should be based on the special valuation and payable from the day after the expiry of the current term, regardless of objections to the valuation, and that a final accounting of any shortfall or excess shall be made after any objections had been determined. These provisions were replaced by identical provisions ss201-202 Te Ture Whenua Mäori Act 1993 except for a new subsection s201(6) which further provided that while the special valuation itself was pending, the rent payable was the rate under the expiring lease. This, it was said, accorded with common law - Weller v Akehurst (1981) 3 All ER 411.

The defendant argued that the Mäori Reserved Land Act 1955 was a complete code for West Coast leases and that ss249A-B/1953 did not apply to them. Among other matters, it was argued that there were some differences in wording between the provisions - the 1955 Act referred to a “special Government valuation” while ss249A-B referred to a “special valuation of land”, and the 1953 Act provisions referred only to leases where the lessor was the Mäori Trustee, whereas the incorporation was lessor in this case. There had been no consultation with Taranaki Mäori before the passing of ss249A-B/1953,  and these leases fell due for renewal (December 1989) before ss249A-B/1953 and s206(1)/1993 were enacted.

However, Master Thomson found that the Mäori Purposes Act 1975 s11 amended s249A/1953 to specifically provide a mechanism for fixing rents for leases transferred from the Mäori Trustee to incorporations - contrary to obiter statements in Proprietors of Parininihi Ki Waitotara Block v Robertson that such had not been done (although the Court of Appeal in that case reached the same result by finding the legislation had been amended by implication anyway). Accordingly, ss249A-B/1953 (now ss201-202/1993) applied to the valuation and rent fixing procedure for these leases and provisions of the 1955 Act did not need to be resorted to.

If that view was wrong, then principles of statutory interpretation meant that where s249B/1993 was inconsistent with the rent fixing procedure of the 1955 legislation, s249B prevailed since the later enactment repealed the former to the extent of any inconsistency and there is a presumption that Parliament wishes to avoid an anomalous result.

Finally, it could be expected in the future that there would be a substantial increase in rents on these sorts of leases, so it was not unjust to bring West Coast Settlement leases into line with all other lessees of Mäori freehold land subject to s249B/1953. Accordingly, a general declaration to the effect that s249A-B applied to the renewal of all West Coast Settlement leases should issue.

 

Proprietors of Part Owhatiura South 5 v Te Ure O Uenukukopako Runanga

HC Rotorua CP 27/95, 25 March 1996. Master Kennedy-Grant

The parties entered into a joint venture agreement whereby the incorporation provided $200,000 capital to the runanga to further develop its position in the fishing industry. The runanga had failed to repay the capital sum and service fees and the incorporation here sought summary judgment for $200,000.

Held: there was an arguable point that, since the joint venture agreement provided that an agent of the incorporation (who was also appointed the manager of the joint venture) approve all expenditure of the $200,000, the inability of the joint venture to repay the capital was due to mismanagement on the part of the incorporation’s agent. Accordingly, there was a dispute arising out of the joint venture agreement and the arbitration provisions of the agreement were triggered. A stay of proceedings was ordered under s5 Arbitration Act 1908.

[ed: an example of the terms, process and pitfalls involved with fisheries joint ventures. The terms of the joint venture are set out in the judgment]

 

Selwyn James Clarke & Others v NZ Police

15 March 1996. Hobbs J

Sixteen defendants facing charges on minor offences arising from a protest at Takahue School in September 1995 applied to have the proceedings transferred from the district court to a local marae. It was noted that the Minister of Justice had been approached by Sir Graham Latimer with the same request and the minister had no objection. The police however ‘strenuously opposed the application citing concerns about security and inadequate facilities (eg recording equipment, telephones) on the marae.

Held: section 4(2) District Courts Act 1947 requires the judge to be satisfied in all the circumstances that proceedings could be “more conveniently or fairly heard” at a place other than a court. The provision had been used to enable sittings in hospitals, local council offices and the like. Witnesses for the applicants stressed the less intimidating surroundings for the defendants, the opportunity for the iwi to hear the defendants case, racism within the existing legal system, the need for local elders to share in the resolution of the issues the protest had raised, and the need to restore Mäori dignity.

However, while sympathetic to these cultural ambitions, the court had to look to precedent. In Police v Ngarimu (No 1) [1989] DCR 522 the court concluded that there was no national desire for court proceedings to be heard on marae - the report Te Whainga i Te Tika quoted some concern among Mäori about the use of marae for court processes. In Stewart v Stewart (1991) 9 FRNZ 167 the Family Court refused a similar request arguing that it would be offensive to marae protocol to allow the judge to control proceedings entirely (as the law required), for all evidence to be recorded, and for the judge to remain isolated from all parties until judgment (upsetting traditions of hospitality). In Police v Black (1990) 6 CRNZ 333 it was noted that a court should sit on a marae only by invitation and in a situation of harmony. There was not harmony when the police opposed the application. Also, criminal proceedings produced an adversarial atmosphere inappropriate for a marae. The application really called for a ‘complete break’ with the established judicial system. If a separate Mäori judicial system were to be created this could only be done by Parliament.

 

Danny Zinck v Sleepyhead Manufacturing Company Ltd

AEC130/95, 8 December 1995. Colgan J

This was an appeal from a decision of the Employment Tribunal. One of the grounds was that the tribunal had ordered the appellant to pay for a Samoan interpreter which he had used before the tribunal. His Honour noted that separate considerations applied with the use of Mäori language. The tribunal regarded itself as bound to provide and pay for Mäori interpreters, where requested. However, his Honour noted that the Mäori Language Act 1987, making Mäori an official language, in its First Schedule failed to list either the Employment Court or Employment Tribunal as bodies whose proceedings were governed by the Act. He did not imagine that these omissions were deliberate and thought that the ability of the specialist employment institutions to set their own procedures should ensure the adoption of the provisions of the Act in practice.

[ed: however the judgment went on to reject a submission that s27 Bill of Rights Act 1990 (right to natural justice in proceedings) required that in general interpretation services should be provided without cost in civil proceedings.]

GENERAL

Te Runanga o Ngai Tahu Act 1996

Te Runanga o Ngai Tahu Act 1996 has passed its third reading, in substantially the same form as it was reported back from the select committee (see Mäori LR Dec 1995 - Jan 1996 p9). The 4 major achievements of  the legislation are:

¤ Establishment by legislation of a runanga as an incorporation, with unrestricted powers of management, to represent and benefit Ngai Tahu Whänui.

¤ Recognition of the runanga as representative of Ngai Tahu Whänui “for all purposes.” Any enactment requiring consultation with iwi, where it affects Ngai Tahu this shall mean the runanga.

¤ A large measure of independence in the internal structure of the runanga. Once the runanga adopts and has gazetted a procedure for determining who the constituent papatipu runanga are and their takiwä (districts), the runanga may thereafter amend the list of papatipu runanga and their district boundaries without reference to the Mäori Land Court or the Crown.

¤ Dissolution of existing structures ie the Ngai Tahu Mäori Trust Board and Te Runanganui o Tahu Inc.

[ed: speeches from the third reading will be covered in next month’s review.]

 

Mäori Purposes Bill

No 78-2. Second reading

After the select committee report and second reading there are no changes to provisions of this bill which:

¤ remove the power of Te Puni Kökiri to make advances to Mäori enterprises (by repealing s86 Mäori Affairs Restructuring Act 1989);

¤ remove the power of Te Puni Kökiri to appoint honorary community officers (by repealing s5 Mäori Community Development Act 1962);

¤ remove the power of the Mäori Trustee to make grants to various Mäori organisations (by repealing 32(1)(c), (1A), (1B) & s35 of the Mäori Trustee Act 1953).

It was proposed that beneficiary monies unclaimed (after 12 months notice in the Gazette) be moved from the Mäori Trustee’s Common Fund to the General Purposes Fund. This proposed amendment has been withdrawn.

The bill still provides that Mäori incorporations may grant forestry rights without seeking confirmation by the Mäori Land Court, but must seek a special resolution of shareholders and noting by the Registrar if the term of the grant is more than 21 years. However an associated requirement that a special resolution be passed whenever such forestry rights or other leases or licences over 21 years are varied or amended has been dropped, as this was felt to be too restrictive of the powers of incorporations (see ss254-255 Te Ture Whenua Mäori Act 1993).

A new part has been added to the bill making amendments to the Mäori Trust Boards Act 1955 (ss20(3), 26(1), 27, 28, 29, & 32(3)), removing the involvement of the Minister of Mäori Affairs in certain daily business activities of the boards. The minister will still approve annual reports and appointment procedures. The select committee report states that these amendments are an interim measure, pending a more comprehensive reform of the 1995 Act which would make boards accountable in all respects directly to their beneficiaries rather than the minister.

 

Taonga Mäori Protection Bill 1996

No 166-1. Tau Henare

This is a private members bill to “make provision for the preservation of the Mäori cultural heritage in Aotearoa, New Zealand”. “Taonga Mäori” are defined as “tangible treasures or property as defined by Mäori and which include physical artifacts”. The bill provides 3 processes to protect taonga. Firstly, Te Puni Kökiri would:

¤ audit all state entities (including state enterprises) to ensure the ongoing protection of physical taonga;

¤ establish an inspectorate to ensure that multinational corporations, prior to establishment in NZ, illustrate to Te Puni Kökiri their “practical commitment” to the protection of taonga Mäori in NZ and also include in their annual reports mechanisms being pursued to protect taonga.

Secondly, a Taonga Mäori register would be created to record the location and history of physical treasures held off-shore. Te Puni Kökiri would arrange a liaison programme with museums to ensure taonga Mäori held by the museums are included in the register. A 12 month amnesty would operate to give people time to put forward taonga in their possession for listing - this listing would not affect ownership. “Physical taonga Mäori” could not be sold or alienated without prior consent of Mäori, sought through consultation.

Third, a charitable trust known as the Taonga Mäori Trust would be created to:

- assist in the administration of the Taonga Mäori register in conjunction with the Minister of Mäori Affairs;

¤ assist in the return of bodily remains and other taonga alienated from iwi, and where repatriation was not possible, attempt to arrange the removal of those taonga from display;

¤ work with Te Puni Kökiri to research the history of taonga where there was any dispute, and refer matters to the Mäori Land Court where necessary. The trust would be funded by contributions from Government agencies, corporate groups and individuals.

The Bill would operate as an adjunct to protective provisions already contained in the Antiquities Act 1975.

[ed: The bill is awkwardly drafted. It is unclear what is to be protected, as it refers sometimes to “taonga Mäori”, but at other places to “prized taonga Mäori”, “taonga”, “physical taonga”, and “treasures”. “Multi-national corporations” and “foreign companies” are also not defined. There are no provisions for regulations to spell out the detail of protection policies. There are no sanctions for breaching the legislation. There are no provisions to ensure regular funding is available for the Taonga Mäori Trust. The select committee process will hopefully throw some light on these matters.]

The concept of “tangata whenua” and collective interests

Jeremy McGuire. NZ Law Journal, January 1996 p28

Among other matters, the author suggests that there needs to be better education of the “silent majority” about Treaty issues, but questions the use of the term tangata whenua, and claims to sovereignty (he doubts the Mäori claim to full sovereignty based on their presence here before Europeans), but thinks there may be a Mäori claim to a limited sovereignty, although he doubts that it is possible to label a distinctive group as “Mäori” and suggests Mäori cultural values may be less “fit” than other cultural values and should succumb to majority values.

McGuire calls for caution in the approach the courts take. Case law on the principles of the Treaty should not generate principles but only legal propositions confined to the facts. He suggests that terms like “taonga” cannot be expressed with sufficient accuracy for legal purposes (whereas terms like “duty of care” can be). “Sweeping statements” about partnership between the Crown and Mäori in the future should be avoided “at all costs”. While there is room for change to incorporate Mäori values in parts of NZ society eg education and health, change should not be rushed nor should it be compulsory.

[ed: the aim of the article is to “contribute positively” to a “contentious and fractious debate”. However there seems to be a confusion of approaches. The article promotes better education for the public on Treaty issues, but doubts the very notion of Mäori claims or a separate Mäori identity and suggests Mäori may have an “inferior” culture not worth any positive efforts to uphold it. The author does not seem to be open to different cultural viewpoints. Thus he is unable to pinpoint exactly why is it that “duty of care” (a notoriously vague term) is to him so much easier to define than “taonga”. Is because he believes that NZ law should to be confined to the consideration of phrases generated by English courts?]


March 1996 Contents

Waitangi Tribunal

THE PIPITEA STREET HEARING

This month the Waitangi Tribunal held an urgent hearing concerning 914 square metres of land adjoining the Pipitea Street marae in Wellington. The claimants alleged that the area was part of the Pipitea pa in 1840, was recommended in 1845 for reservation for Mäori use, was partly reserved in a native reserve, but was later awarded to a settler without reference to the former Mäori owners. In public works takings in 1963 and 1966 the land had come into Crown ownership. In 1989, under the State-Owned Enterprises Act 1986, the land was vested  in Government Property Services and a memorial placed on the title providing for its return to Mäori on a recommendation of the Waitangi Tribunal, if it found a claim concerning the land well founded (s27B/1986). In 1995 the land was sold for $198,000 to a private developer. The developer was granted a resource consent to construct a combined residential and commercial building on the land. The claimants opposed the development and sought an urgent hearing from the tribunal, which was then sitting at the Pipitea Street marae hearing the Wellington tenths claims.

The tribunal, satisfied that the proposed building would constitute a “serious, indeed a devastating and unacceptable invasion of the tapu and mana” of the marae, commenced an urgent hearing. The Crown raised an important jurisdictional point that, under its legislation, and in practical terms, the tribunal might be unable to properly consider the return of particular properties in isolation from the hearing of the wider claim (this issue was reserved for later consideration). The claimants for their part noted that if an order were not made soon, and the claim later proved successful, the government would have to purchase back the land, including its multimillion dollar building, which the claimants would then seek to have demolished, yet the extra cost of the building would be offset against the overall settlement of the Wellington tenths claims. Several days into the urgent hearing, Crown counsel made an oral submission that the government had repurchased the property, that the proposed development would be halted and that the land would be put into a land bank for future settlement of the Wellington tenths claims. The tribunal adjourned its inquiry.

This urgent hearing highlighted all the problems with the clawback scheme and the tribunal’s place in it. The government was anxious to avoid a tribunal recommendation because it might set a precedent which would interfere with efforts to settle claims by negotiation and within the $1 billion fiscal envelope. The outcome may give fresh impetus to other claimant groups considering applications to have land returned. However, the tribunal has already shown its reluctance to consider such applications in other situations (ie the Ngai Tahu application) and the Government will probably be able to distinguish its actions in this case on the basis that the mana of a marae was directly threatened.

MÄORI LAND COURT AND APPELLATE COURT

No cases received this month.

WAITANGI TRIBUNAL

Taranaki claims - interim Crown response

Wai 143, doc # 2.108, 29 November 1995. Crown Law Office

After hearing the claimant evidence in the Taranaki claims, the tribunal, with the approval of the parties, intends this year to issue an interim report to assist the parties to reach a settlement. At the request of the tribunal and to assist it in the preparation of its interim report, the Crown in this memorandum indicated its attitude to issues raised in the claims:

• Pre war purchasing of land (excluding the Waitara purchase): the Crown reserves its position

• The Waitara purchase and the wars: these constituted an injustice and were in breach of the principles of the Treaty of Waitangi.

• Confiscation in Taranaki: was an injustice and in breach of the principles of the Treaty of Waitangi, but was not unlawful.

• The effects of confiscation: these were an injustice in that they had a severe impact upon the welfare, economy and development of Taranaki iwi.

• ‘Takoha’ payments to give practical effect to the confiscations: the Crown does not accept that  these were illegal, although they did not mitigate the breach of Treaty principles caused by the confiscations.

• The events leading up to the invasion of Parihaka in 1881, the invasion itself and aftermath: the Crown accepts that these were in breach of Treaty principles.

• West Coast settlement reserves: the consensus findings of 2 commissions of inquiry condemned the leasing regimes for these reserves and the Crown does not wish to add further evidence on this issue.

• Taranaki Maunga: the Crown reserves its position but does not wish to call further evidence.

• Natural resources: the Crown wishes to be heard on some allegations and in particular does not accept a Mäori claim to entitlement to petroleum resources.

OTHER JURISDICTIONS

Henare Rakihia Tau and Te Runanga O Ngai Tahu Ltd v Edward Taihakurei Durie and The Waitangi Tribunal and the Attorney-General

CP215/95 HC Wellington, 27 February 1996. McGechan J

The plaintiffs sought a review of the decision of the Chairperson of the Waitangi Tribunal to defer a further hearing of Ngai Tahu claims (including an application for the return of forest lands - see Mäori LRSept 1995 p1), on the grounds of errors in law, improper purpose, predetermination or bias and Wednesbury unreasonableness. This decision concerned certain documents which the chairperson declined to produce during discovery, on the grounds that production would be contrary to the public interest. The documents recorded communications between members of the tribunal, members of the tribunal and its director, members of the tribunal and cabinet ministers, which were said to concern deliberative matters as opposed to the merely administrative matters.

Held: most of the documents were not protected by the privilege claimed and should be produced. They typically contained (among other matters) administrative directions from the chairperson or other tribunal members to the director, communications between tribunal members and the director as to the conduct of High Court proceedings, communications between tribunal members as to prospective hearing dates, communications regarding Judge McHugh’s warrant and extensions, letters to the Minister of Mäori Affairs regarding amendments to the Treaty of Waitangi Act 1975 and a Te Puni Kökiri discussion document about tribunal operations.

The documents were routine and of no particular public significance, including the internal tensions which some could be seen as betraying. They did not therefore attract public interest immunity on a class or contents basis - see Brightwell v ACC (1985) 1 NZLR 132 and A-G v Birss (1991) 1 NZLR 669. The relevant part of the decision in Comalco NZ v Broadcasting Standards Authority (unreported, CP 139/94 HC Wellington 19 July 1995 McGechan J) dealt with documents directly related to decisions in preparation, and should not be extended to “mere administrative” matters no matter how private.

Three documents did however attract the immunity privilege on the basis that they were “deliberative”. Two were by Judge McHugh concerning the Ngai Tahu Ancillary Claims Report and appeared “relatively innocuous”. The third was a memorandum by the chairperson informing the members of the tribunal sitting for the Ngai Tahu claim that the chairperson, rather than Judge McHugh, would conduct the conference to consider the Ngai Tahu request for a further hearing, and outlining reasons why that hearing should be deferred. His Honour however commented that while, in principle this document was privileged, “production would seem likely to do the defendant more good than harm in this particular case”.

Finally, there was a legal opinion obtained by the chairperson advising him that he could intervene and conduct the conference to consider the Ngai Tahu request, despite not being a member of the sitting to hear that claim. While immunity for this document existed under the doctrine of professional legal privilege, the immunity had been waived because the chairperson had advanced the document in his pleadings as favourable to his cause, and it was a matter of fairness that it now be available for checking by the other side. This was in accord with the doctrine developed in the cases Chandris Lines [1991] 2 NZLR 600,Equiticorp Industries (1990) 2 PRNZ 19, Cory-Wright & Salmon (1992) 5 PRNZ 518, Commerce Commission v Fletcher Challenge (No 4) (1989) 2 PRNZ 15, Buttes Oil Co [1981] 1 QB 223 andA-G for Northern Territory v Maurice (1986) 69 ALR 31. His Honour commented again however that “questions of principle to one side, disclosure could well be to the [chairperson’s] ultimate advantage.”

No confidentiality orders would be made restricting the use of the documents, but their use was strictly limited to the immediate proceedings. They were not for use “on the marae, or for political purposes, or through the media.” Plaintiffs and others were at risk of contempt proceedings if misuse occurred.

 

 

Te Runanga o Wharekauri Rekohu Inc v Treaty of Waitangi Fisheries Commission and Ngäti Mutunga o Wharekauri Inc and Moriori Tchakat Henu Assoc and Te Iwi Moriori Trust Board

CP297/95 HC Wellington, 11 December 1995. McGechan J

The plaintiff runanga is in dispute with the Ngäti Mutunga Inc about which body represents Ngäti Mutunga interests in the Chatham Islands and therefore which body should receive the interim distribution of fisheries quota from the fisheries settlement. The runanga has been involved in fishing for some time and has built a business on the share it has obtained of quota leased to Ngäti Mutunga iwi generally by the Treaty of Waitangi Fisheries Commission. The runanga here sought an interim order to prevent the Fisheries Commission from proceeding to determine the dispute about representation between the two groups, or to lease further quota either to Ngäti Mutunga Inc or in an open commercial tender until a substantive application for judicial review had been heard.

Held: the plaintiff runanga had been aware for some time that an issue concerning representivity was pending but had proceeded optimistically, and perhaps to an extent unwisely, to enter into forward commitments. The application should be declined and an open commercial tender permitted to proceed. It would however not be in the interests of iwi on the Chathams for the plaintiff to become “bankrupt” by an open tender and the commission should look to assist the claimant in the open tender round, perhaps by the utilisation of tender payments received, until the substantive matters are resolved.

[ed: in a related matter, the following note has been received from Maui Solomon, counsel involved in Hauraki Mäori Trust Board v Treaty of Waitangi Fisheries Commission, about the review of that case in Mäori LR February 1996 pp3-4:

“Your comments were to the effect that the case was an example of “poorly thought out, expensive and time wasting litigation”. I find your criticisms offensive because they are unfounded. No client let alone Iwi wishes to pursue litigation for its own sake. However, in the case concerned, my client felt that it had no other option but to issue proceedings. Lengthy endeavours to negotiate matters outside of the courtroom with both the Commission and other parties had proved futile. If anything, this litigation highlights the difficulties and frustrations confronted by Mäori in not having an entirely suitable “forum convenium” to air their grievances. Perhaps your opinions may be better aimed in that direction.”]

Moynihan v Berkett and Others

CP3/94 HC Tauranga, 14 December 1995. Jaine J

The trustees of Tuhua (Mayor Island) entered into a lease with a consultant company (Moynihan) to run a tourism venture on the island. One of the lessors named in the lease schedule was the General Manager of the Iwi Transition Agency. The consultant company brought an action against Berkett and other persons for, among other matters, entering on the leased property. The lessors were joined as defendants since it was alleged that they had not taken proper steps to restrain the actions of Berkett. In this proceeding, the General Manager (the applicant) sought to have his name struck out as a defendant, on the basis that he had never been validly appointed a trustee of the land. The General Manager argued that in 1988 the land was vested by order of the Mäori Land Court in trustees including the Secretary of the Department of Mäori Affairs. In October 1989 that department was replaced by the Iwi Transition Agency under the Mäori Affairs Restructuring Act 1989. Assumptions were made that the General Manager would take over the former secretary’s role, but the General Manager had never been consulted about being a trustee. In particular, it was argued that:

- the Secretary of Mäori Affairs had no statutory authority to act as a trustee, so the former secretary must have been appointed as an individual, and his trusteeship ceased when he ceased to hold the office of secretary, or, at the least, the consent of the incoming officeholder was required, but was never sought or obtained;

- while the Mäori Affairs Restructuring Act 1989 contained provisions devolving the former department’s responsibilities to the Iwi Transition Agency (s8) they did not extend to cover the trusteeship;

- while officers of the Iwi Transition Agency had attended meetings of the island’s trustees they had done so in their capacity as officers of the Mäori Trustee, which had been appointed by the court to undertake secretarial and administrative services for the trust only.

Held: the application to strike out should be dismissed because all those dealing with the island assumed the applicant was a trustee. The officers of the Iwi Transition Agency attended meetings of the trust and the applicant tacitly approved these activities, the applicant was directly named as a lessor (ie as ‘General Manager’) in the schedule to the lease, the draft of which was discussed and seen by officers of the Iwi Transition Agency, and the Mäori Trustee in a letter had clearly distinguished between his own secretarial role for the trust and the General Manager’s role as a trustee.

Although the point was not argued, the court noted that this might also be a case of estoppel by representation (there was, arguably, representation by actual or presumptive intent and the representees had altered their position to their detriment relying on the representation) or a constructive trust (the applicant had meddled in trust matters or acted in the belief that they were a trustee and therefore become a trustee de son tortMara v Brown [1896] 1 Ch 199, Pearce v Pearce (1856) 22 Beav 248; 52 ER 1103 and Life Association of Scotland v Siddal (1861) 3 De GF&J 58; 45 ER 800 referred to).

 

Ngätiwai Trust Board v NZ Historic Places Trust (Pouhere Taonga) & Green

A13/96, 11 March 1996. Sheppard J, PA Catchpole, Dr AH Hackett

This was an appeal under s20 Historic Places Act 1993 against a decision of the director of the trust authorising the modification and destruction of archaeological sites (shell middens) at Ngunguru Sandspit, Northland. The sandspit contained evidence of past human occupation including a burial ground, pa site and over 50 shell middens, and was the site of an inter-tribal battle last century after which the remains of warriors were buried there, so that the area is regarded by tangata whenua as waahi tapu.

The applicant owned just over 118 hectares on the sandspit and had for many years been frustrated by planning restrictions in his attempts to develop the land. After the lifting of a public use designation on adjoining land he now proposed to divide his land into 4 lots and locate houses on them. He sought consent from the trust to carry out the works necessary to establish the building sites, rights-of-way and access tracks, which would involve interference with and, in effect, the destruction of 8 middens. The middens consisted mainly of shell and some heat-shattered stone.

The application was made under s11 Historic Places Act 1993, which provides for authority to be given for the destruction or modification of particular archaeological sites. Apart from an archaeological report provided by the applicant, the trust had a report on the application prepared by two of its officials. Both reports included evidence of consultation with local Mäori. The chairman of the Mäori Heritage Council of the trust was also consulted. The trust officers recommended that the cultural heritage values of the sites did not require preservation and conditional authority to destroy them should be granted. The director of the trust accordingly approved the application to modify or destroy the sites, on condition that a qualified archaeologist monitor the work, that a full archaeological investigation of the sites be carried out before their destruction, and that fresh authority would be required if any new archaeological sites were uncovered as the work progressed.

Held: s10(1)/1993 made it unlawful to modify or destroy any archaeological site except with authority from the trust. Applications for authority to modify or destroy sites could be made under ss11 and 12. Section 14 set out the procedure for the trust to consider such applications. The tribunal noted that, had the application in this case been under s12 (concerning applications for a general authority to modify or destroy all sites or types of site in a specified area) rather than s11 (concerning specific sites), then the trust would have been obliged to refer the matter to the Mäori Heritage Council (s14(3)). However, the trust had informally consulted with the Mäori Heritage Council. The tribunal also noted that, on appeal, it was required to have regard to specific matters including the historical and cultural heritage value of the sites, the purposes and principles of the 1993 Act, the extent to which protection would restrict reasonable future use of the site, and the interests of any other persons directly affected by the decision of the trust (s20(6)(a)-(d)), but that the trust in making its primary decision was not directed to these factors. In practice however, the trust had practically considered the factors in s20(6)(a)-(d).

Section 20 confined appeals from the decision of the trust to persons “directly affected” by that decision. Counsel for the applicant argued that this meant only those with a legal interest in the land, and, in accord with Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493; 28 ALR 257 and Purification Technologies v Taupo District Council [1995] NZRMA 197, the Ngätiwai Trust Board could not claim to be directly affected by the decision simply because some of its members might be. The trust board argued that the application provision s11(2)(d) contemplated tangata whenua would be affected by these applications and in addition they were affected in a cultural, spiritual and historical sense and because they had a claim to the land under the Treaty of Waitangi Act 1975.

The tribunal decided that it was not required that a person have a legal interest in the land to be a person directly affected. However s11(2)(d) did not mean tangata whenua would be affected by every application, it depended on the facts of each case. The appeal had not been brought by persons of the tangata whenua directly affected, but rather by an artificial body constituted under the Charitable Trusts Act 1957. While one of the activities of the trust was to advocate the interests of the Ngätiwai iwi and hapu, and it was convenient for it to bring the appeal, Parliament had restricted the right to appeal to persons directly affected and the trust board of itself was not affected. Nor did the claim under the Treaty of Waitangi Act 1975 show that the board was directly affected. That claim was a matter for the Waitangi Tribunal to consider, not the Planning Tribunal, and since the land was private land the Waitangi Tribunal could not even recommend it be vested in the board (s6(4A)/1975).

Despite this preliminary finding, the tribunal, at the request of the parties, considered the substantive issues raised by the appeal, and noted the trust board claim that the archaeological material which might be destroyed had not been identified with certainty, the sandspit as a whole was regarded as waahi tapu and could not therefore be protected by the conditions to the authority given and that a full archaeological survey of the whole property was required. However, because this was an application under s11 concerning particular sites, arguments directed to the heritage value of the sandspit as a whole were not relevant. The focus had to be on the particular sites which would be affected. The middens concerned did not differ markedly from others on the sandspit, there was no evidence that any of the sites contained köiwi (skeletal remains) or were in any way connected with burials, other important sites such as the pa and burial ground could be adequately protected and therefore the waahi tapu significance of the area would not be adversely affected (even if it was possible that as yet unrecorded sites might be uncovered and damaged by the proposed works). In addition, the chairman of the Mäori Heritage Council thought that there would be no significant impact on Mäori customary values and the appellant had produced no evidence of the heritage value of the particular sites involved. On the totality of the evidence therefore, the sites had some historic and cultural heritage value, but not as much as many other larger and more intact middens on the sandspit, and the proposed archaeological investigations, curation and storage of material removed would provide a valuable record of the middens destroyed.

The purpose and principles of the Historic Places Act 1993 (s4) needed to be understood in context.  The references to protection and preservation stand beside provisions allowing destruction of archaeological sites in appropriate cases. The very act of investigating archaeological sites involves some damage and destruction of them.

Section 4(2)(c) (relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga to be recognised), while imposing an important duty, was not a principle of the Act -  these were contained in ss4(2)(a) & (b).

The principles of the Act do not require the retention in situ of all archaeological remains. The conditions imposed by the trust in this case appropriately recognised the statutory principles involved.

Turning to the question of what impact protection of the sites might have on other reasonable uses of the land, the tribunal felt that protection of the 7 middens would prevent the formation of the house sites and accessways to them, making forestry the only practicable use for the land, which would have more adverse effects on the middens than the present proposal.

In summary, the people directly affected in this matter were the applicant and possibly tangata whenua with an interest in the remains of ancestors which might be uncovered in the course of the proposed works. Tangata whenua interests had been considerably recognised in the condition imposed, namely; that they participate in the archaeological investigations, advise on the curation and storage of material removed from the sites, and be supplied with progress reports on the investigations.

The survey of the whole sandspit proposed by the appellants (and offered by the Department of Conservation) could not be made a condition of the authority to modify and destroy, because it was ulterior to the proper purpose for which conditions could be made - it did not reasonably relate to the authority to destroy the particular middens and so would fail the tests of reasonableness considered in Newbury District Council v Secretary for the Environment [1981] AC 578; [1980] 1 All ER 731. Whether a further survey should be made was a question which might arise if fresh sites were uncovered in the course of the work and a fresh application were lodged.

The application to cancel a Mäori roadway made some years earlier by the applicant, which suggested different access arrangements over the land were under consideration at that time, had no relevance to the present application.

The grant by the Historic Places Trust of limited authority to destroy the 7 middens subject to conditions had struck an appropriate balance between the public interest (shared by tangata whenua) in the historical and cultural heritage of those sites and the private interests of the landowner, and recognised the relationships of tangata whenua with their culture and traditions. The appeal was therefore dismissed on the grounds of lack of status of the trust board, and alternatively on the merits of the appeal.

[ed: this decision has important implications for trust boards and other bodies seeking to represent Mäori interests in planning matters. It also highlights some anomalies in the Historic Places Act 1993 which might require future amendment.]

The Ngätiwai Trust Board & Others and Network Waitangi Whangarei v The Whangarei District Council & JB Harrison and NW Joseph (trading as Treasure Island Caravan Park)

A16/96, 5 March 1996. Sheppard J

Two groups, one comprising a trust board, a land trust and a whanau, the other a public interest body (“Network Waitangi”), appealed unsuccessfully against a decision of the district council granting a resource consent to the owners of a caravan park, allowing them to intensify activities at the park (see Mäori LR Sept 1995 p6). The applicant owners sought costs of $14,715 for the two day appeal hearing. The respondent district council sought $3,586.

The appellants argued that they should not be ordered to pay any costs because, among other matters, some issues required full argument and the burden of proof was on the respondent council, the presence of lay people before the tribunal was a right and they had presented the appeals to the best of their ability, whakapapa evidence had been introduced only reluctantly, the Treaty issues raised were directly relevant, and that an examination of historical issues pertinent to the site would have extended the hearing even further. In short, the appeal had raised serious issues of legitimate concern at a local level as well as matters of national importance, the process of appeal should be available to all sections of the community regardless of ability to pay, the community and tangata whenua groups should not be penalised for using due process, nor intimidated or dissuaded from raising legitimate concerns by the threat of punitive financial awards.

The Mäori Trustee, as responsible trustee for the appellant land trust, argued that that trust had become an appellant by the actions of an advisory trustee acting outside his authority and it should not therefore be liable for costs. The Ngätiwai Trust Board similarly argued that that board’s trustees had not authorised the filing of an appeal and should not therefore be liable. Both the Mäori Trustee and the trust board lodged affidavits demonstrating that no formal decisions were ever taken at meetings of the respective trusts to become involved in the appeals. However the trust board secretary, who was also advisory trustee on the land trust, provided evidence that he had thought it necessary to involve both organisations in the appeals, and that his actions had not been controverted.

Held: although there was no express ratification of the trust secretary/advisory trustee’s actions in lodging the appeals, neither body disclaimed that action or advised the tribunal or other parties before the hearing that they wished to avoid responsibility for costs which might be awarded. Consequently the land trust and trust board were parties to the proceedings and susceptible to an order for costs (the tribunal rejected a submission that it had inherent jurisdiction to order non parties to pay costs - it distinguished Carborundum Abrasives v Bank of New Zealand (1991) 4 PRNZ 522 and referred to the limit on its power to award costs implicit in s285(1) RMA).

The appeals had put the respondent and the applicant to considerable cost, issues were not narrowed before or at the hearing, and the appeals had not raised any substantive matters to justify refusing the resource consent - therefore a contribution to costs should be required. The significant factor was the absence of any substantial grounds for the appeal.

Having regard to the fact that the appeal hearing took 2 days, but also taking into account the appellants motives (one group were seeking to protect ‘cultural interests’ rather than private property interests, the other raised public issues concerning the principles of the Treaty of Waitangi) the applicants should receive $3000 and the respondent council $1750, liability to be divided equally among the appellants (The tribunal rejected a submission that costs should be fully indemnified to demonstrate that the tribunal will not tolerate attempts to avoid liability).

[ed: this case illustrates the dangers of trusts becoming involved in appeals, and of appellants not focusing sufficiently on the issues under appeal.]

 

 

Mäori Reserved Land

Press release 26 March 1996. Minister of Mäori Affairs

In earlier policy decisions, the government has decided that perpetually renewable leases will terminate at the end of the current term plus two further periods of 21 years. Final decisions had not been made however on what should occur if, at termination, the Mäori owners could not afford to purchase the improvements (see Mäori LR Feb 1995 p6). Cabinet has now agreed that if at the time of termination the Mäori owners choose not to purchase the improvements, and if they also choose not to sell the land to the lessee, the lessee will have the right to renew the lease for a further 21 year period and subsequent periods on the same terms and conditions as the expiring leases.

Lessees are being directly approached to achieve earlier termination of leases by negotiation.

[ed: this decision seems to sidestep the hard issue of when the Mäori owners can expect to regain full control of their land at a reasonable cost. There is still no response to the suggestion in the 1993 Reserve Lands Panel report that the government, as perpetrator of an unjust rental regime by legislation, should now directly assist the Mäori owners to purchase improvements.]

 

 

The Silent Raupatu. An Analysis of the Crown’s Policy Proposals on Treaty Claims Involving Public Works Acquisitions

8 March 1996. Moana Jackson & Taki Anaru

The authors argue that in concentrating on limited property interests, Treaty settlement policies like this one fail to focus on the all aspects of Mäori life which were affected by colonisation. This relegates the Treaty guarantee of tino rangatiratanga to a limited property interest. The Crown also wrongly proceeds on the basis that past injustices were merely a wrongful exercise of legitimate sovereign power over Mäori. This means that the symptoms of injustice (eg public works takings) are addressed, but not the causes.

Consultation on the proposals has been poor and not in accord with court requirements eg Wellington International Airport v AVR NZ [1991] 1 NZLR 671. Distribution of the proposals was only to claimant groups, rather than to all those who might have been affected by public works legislation. The Crown view that takings per se are not in breach of the Treaty ignores the very clear wording of Article 2. The policy assumes no Treaty breach exists where an offer back of surplus land was not made prior to 1981. This makes Treaty breaches arbitrarily dependent on the Crown’s legislative timetable and ignores the Waitangi Tribunal finding in the Turangi Township Report 1995 that the lack of offer back provisions prior to 1981 is itself a Treaty breach. Also, the assumption that the offer back of land at market value under the Public Works Act 1981  is fair, ignores comments in the tribunal’s Turangi Township and Te Maunga Railway Land Report 1994 that a reasonable and affordable price only should be required from Mäori. Finally, the policy does not state whether any compensation paid out under the policy will be offset against the fiscal envelope.

[ed: the period for submissions to the Crown’s policy proposals has been extended to 7 April (the previous deadline was 28 February). The Minister said that the ‘complexity and importance” of the issues required the extension (Press release 11 March 1996, Minister in Charge of Treaty of Waitangi Negotiations, DAM Graham).]

 


February 1996 Contents

MÄORI LAND COURT AND APPELLATE COURT

In Re Rangitane o Tamaki Nui-a-Rua Inc Society

11 Takitimu ACMB 96, 9 February 1996.  Deputy CJ Smith, Carter J, Savage J

This was an appeal from an order under s30(3)/1993 appointing representatives of the häpu, iwi or general Mäori of the Tararua District for the purposes of consultation with the Tararua District Council (the lower court decisions are noted in Mäori LR Nov 1994 p2 & Jul 1995 p2). The council had made the application because of disputes between Rangitane and Kahungunu groups.

The original application asked that the Chief Judge request the land court to determine “tangata whenua” for the district and also in terms of the Resource Management Act 1991 and the Local Government Act 1974. The Chief Judge thought it appropriate for the court to consider who were “tangata whenua” only to the extent strictly necessary for the application. Any wider consideration might intrude on the functions of the Planning Tribunal, and by defining tangata whenua for a discrete area, the court might fail to take account of possible overlaps with other tribal groups. Accordingly, he asked the land court simply to determine appropriate representatives for the Tararua District for the purposes of consultation.

After a hearing and interim decision, the land court had made an order appointing 3 persons nominated by Ngäti Kahungunu as representatives, the Rangitane group being unwilling to make nominations. They were nevertheless given 6 months to reconsider their position. The appellants argued that the lower court had made mistakes of fact, had wrongly interpreted evidence, and had come up with a joint committee structure which had not worked in the past.

Held: the appeal should be dismissed. The appellants had concentrated on showing that they were tangata whenua of the district and the lower court had rightly taken this evidence into account. It would  be hard to envisage any representation not including some persons from among tangata whenua. But the lower court made no finding as to tangata whenua of the district, but regarded both Rangitane and Kahungunu as entitled to representation, as members of both iwi were undoubtedly resident throughout the district.

The comments alleged to be mistaken were obiter and not significant to the final decision. Both tribes had been found to be present in the district and who had primacy had little bearing on the final decision. The court had appropriately focused on representation issues and not tangata whenua status, as directed by the Chief Judge.

The Resource Management Act 1991 s2 (definition of “tangata whenua”) refers particularly to those holding manawhenua over land. It is difficult to see how an iwi can claim manawhenua over land when the owners of that land do not recognise that iwi and claim allegiance to a related iwi. Recognition of iwi by owners of Mäori land in a district is an important ingredient in establishing tangata whenua status. If the owners of Mäori land, regardless of its origins, change their allegiance to another iwi with historical and customary links to the area, that is part of the process of change and evolution which the court is entitled to take into account when determining questions of representation.

The finding that both iwi were present in the Tararua District provided adequate grounds for the court to have appointed the two incorporated authorities of Rangitane and Kahungunu as appropriate representatives. However incorporated societies may change their management through AGMs and other procedures. Appointing individuals as representatives imposes a more transparent accountability. It would be expected that matters affecting solely Rangitane interests would be referred by the joint committee to the Rangitane authoritative body and vice versa. Where matters affected all Mäori in the district a joint approach would be taken. If Rangitane continued to decline to appoint representatives it would not be serving the interests of Rangitane.

However, the final order of the lower court was outside its jurisdiction in as far as it purported to review the situation with Rangitane in 6 months, and review all appointments after 3 years. There is no provision in Te Ture Whenua Mäori Act 1993 giving the court power to amend or review final orders, unless a fresh application is filed (the special situation of trusts and similar “continuing jurisdiction” situations excepted). Also, the court sitting specially convened to hear a reference from the Chief Judge is functus officio once its final orders are made. Section 73 (conditional orders) could not be used as there needs to be a condition to fulfil. In this case an amendment or variation was contemplated. Problems would also arise if one of the appointees died or resigned. Hopefully common sense would prevail and all parties would accept a replacement and a further application would not be required. There was however no problem in the lower court limiting the duration of the order. A fresh application could be made after 3 years, but hopefully differences would have reduced so that this would not be required. Accordingly, the lower court would be directed to allow Rangitane until 30 April 1996 to suggest nominees, then make a final order for a term of 3 years appointing the 3 persons already nominated and any Rangitane representatives subsequently nominated.

WAITANGI TRIBUNAL

Crown protection mechanisms in place for the sale of surplus Crown land

Wai 518, 24 January 1996. Deputy CJ Smith (Deputy Chairperson)

The tribunal announced that the “urgency which existed at the time of the original conference is no longer present due to the substitution of alternative Crown protection mechanisms for the sale of Crown land,” and the proposed hearing into the adequacy of the former protection mechanisms is abandoned. Claimants had requested that the tribunal continue with a judicial conference to discuss urgency, arguing the Crown proposals had not met their concerns (the revised Crown mechanisms are noted in Mäori LR Nov 1995 p7).

Wellington Tenths Claim

Wai 145, 22 February 1996. GS Orr (Presiding Officer)

The tribunal sitting to hear the Wellington Tenths claim granted urgency to an application for it to order that the Crown resume former state-owned enterprise land adjoining the Pipitea marae, on which the tribunal was sitting to hear the claim and on which it is proposed to erect a 3 story building which will physically overshadow the marae. The tribunal concluded that “irreparable damage” would be done to the marae should the building proceed and therefore the application for urgency should be granted. No doubt the parties would find a solution by discussion, but given that building might begin at any time, the tribunal thought the better course was for it to proceed. The tribunal said this should not impede efforts to find a solution by negotiation.

OTHER JURISDICTIONS

Hauraki Mäori Trust Board v The Treaty of Waitangi Fisheries Commission & Others

CP 562/94, HC Auckland,  12 February 1996. Anderson J

The fisheries commission had been leasing individual transferable quota (ITQ) on an annual basis to iwi. For the fishery year commencing October 1994 the commission determined that 2 fishery management areas FMA 1 and FMA 9, would be merged, and that the Tainui and Hauraki iwi would share in the quota in the merged area. The plaintiff trust board alleged that, by Mäori custom, there was no Tainui interest in FMA 1.

Other parties to the proceedings were anxious that the court should not consider custom, including issues of mana whenua and mana moana, when considering the trust board’s case, and had successfully sought adjournments (see Mäori LR Jul 1995 p6).

The plaintiff had therefore amended its statement of claim and now asked the court to consider whether the commission had breached natural justice in declaring that it would follow a policy of allocation based on custom (to iwi with rohe (traditional tribal boundaries) in the relevant FMA) and then departing from that policy without warning (by announcing the merger of FMAs 1 & 9).

Held: the plaintiff must be confined to their statement of claim. This was not an opportunity to examine the validity of a mana whenua/mana moana model of distribution. Arguments that the commission had seriously breached custom in allocating quota to Tainui in FMA 1 must be taken as arguments about the administration of a policy or the variation of that policy (for the purpose of these proceedings, it was assumed Tainui did not have customary interests in FMA 1).

The plaintiffs alleged that there was substantive unfairness because the stated policy was changed by the commission without prior warning, that there was unreasonableness because the commission failed to take account of matters it should have had regard to, and that a legitimate expectation of the plaintiff had been defeated by the failure to consult before the change in policy.

However, given the number of iwi and their separate characters, it is inconceivable that the commission could completely satisfy the expectations of every iwi in its interim management of the fishing assets. Documents showed that the commission discussed with Hauraki iwi in October 1994 a Tainui claim (first noted in 1992) to an interest in FMA 1. Although it knew this could be upsetting to Hauraki iwi, the commission could not dismiss that claim without a possible breach of custom in relation to Tainui. Consequently, in November 1994 the commission acknowledged that a possible dispute existed and invited discussion before making any final decision on interim management. Hauraki and Tainui were invited to a meeting, at which a consultant to the plaintiff trust board attended and made submissions. The allocation decision was announced after that meeting. On the evidence therefore, the allegations of unfair, preemptory and non-consultative conduct, were simply not made out. The claim should be dismissed.

[ed: an illustration of poorly thought-out, time-wasting, and expensive litigation surrounding the fisheries settlement.

In other fisheries proceedings, in NZ Federation of Commercial Fishermen (Inc) & Others v Ministry of Fisheries & Others (HC Wellington CP 237/95, 8 February 1996. McGechan J) the NZ Recreational Fishing Council, which was invited to join proceedings in which commercial and Mäori interests are seeking to increase the snapper quota available for the 1995-1996 fishing year, asked if its costs could be met by the public purse (invoking the little used s99A Judicature Act).  Commercial and Mäori interests objected, with Mäori pointing out that they too represented a significant group of the public. The council’s request was denied.]

 

 

Smith v Auckland City Council

AP 139/95, HC Auckland, 22 November 1995. Fisher J

This was an appeal against convictions under the Resource Management Act 1991 (breach of proposed and transitional operative district plans) for cutting the tree on One Tree Hill with a chainsaw. The appellant argued that in both “Mäori law” and “post Treaty law” (which included the Resource Management Act 1991) there was “overwhelming evidence” of the justice and legality of his actions. He had not only acted under ‘colour of right’ but his actions were in pursuit of the purpose provisions of Part 2 of the 1991 Act. Three particular points were argued, the meaning of sections referring to the Treaty and Mäori values in the Resource Management Act, whether the appellant’s actions were a “use” of the land in terms of the district plan and the validity of the council action in listing the tree as notable in district plans.

Held: prosecutions for breach of a proposed or operative district plan under s9 are not concerned with the resource management merits of a plan or provision of it and are in a different category from preparation of a plan, when Mäori issues are required to be actively considered (ie s6(e) relationship of Mäori to taonga, s7(a) kaitiakitanga, s8 regard for the Treaty). Nor could the council’s decision to bring a prosecution be challenged. Once the plan was made, the council was obliged to enforce it (see s84(1)), without revisiting the considerations under ss6-8. Otherwise no sensible enforcement of the plan could occur. A prosecution under s9 was merely consequential on the plan, and only in the preparation of the plan and its implementation in other contexts could wider considerations be taken into account. There had been “use” of the land merely by walking upon it and carrying a chainsaw on it.

As to the contention that the council had failed to adequately address the tree’s history, the importance of the land to Mäori and the inappropriateness of protecting this particular tree which was peculiarly offensive to Mäori, those were matters to be carefully considered when drawing up or reviewing the plan. Once made, a plan has the force and effect of regulations and is presumed to have been prepared and approved in accordance with the first schedule of the Act (ss76(2) & 83).

[ed: permission was given to appeal to the Court of Appeal as questions of law were involved and there was a substantial body of persons in the community to whom this was a matter of general and public importance, and the council did not oppose further appeal. The comments about the history of the tree are interesting. In making plans, do councils have to carefully consider Maori views of what objects they preserve eg stockade sites from the NZ Wars, the monument at Moutoa Gardens?]

 

 

Tareha and Foster v Solicitor-General

CA 157 & 167/95, 15 February 1995. Eichelbaum CJ, Thomas J, Williamson J

This was an appeal against an order forfeiting a house under the Proceeds of Crime Act 1991 which had been used as a place to sell cannabis. The issue was whether the Act permits forfeiture of the interests of innocent co-owners in “tainted” property (property used to commit or facilitate the commission of an offence punishable by imprisonment for 5 years or more - s2). Not only were 2 of the owners innocent of the offences, but the land on which the house stood was ancestral land, and the property was being retained as an asset for the benefit of the whänau and was held on trust for charitable purposes.

The court rejected the appeal, holding that the legislation is intended to have maximum deterrent effect and there are relief provisions so that the effect on innocent persons can be ameliorated. Questions as to how the court should use its discretion in this case were referred back to the lower court.

[ed: this case is noted because it suggests how multiply owned land could be affected by this legislation (while Mäori freehold land was not involved here, it comes within the definition of “property” in the Act - s2). There is limited guidance on how the interests of innocent co-owners are to be considered, and there is no reference to cultural considerations. The court has a discretion before make a forfeiture order to consider the ordinary use of the property and whether undue hardship to any person might result (s15(2)(a)-(b)) and once a decision to forfeit has been made, there is power to grant monetary relief to innocent parties (s18).]

 

 

Amaltal Fishing Company Ltd v Nelson Polytechnic

1/96 Complaints Review Tribunal, 29 January 1996. DJ Orchard (chair), EA MacDonald, P McDonald

The plaintiff ran a deep sea fishing operation employing 200 people and had a real interest in the provision of fishing cadet courses and sponsored candidates to such courses. The defendant ran fishing cadet courses with limited places available per 6 month course. The defendant entered an arrangement with the Education and Training Support Agency (ETSA), a body corporate established under the Education Amendment Act 1990 (s270), to reserve for Mäori and Pacific Islanders 4 places in its first course in 1994 and all 14 places in its second course. ETSA would provide funding to the defendant for each Mäori or Pacific Islander accorded a place under this arrangement.

An applicant for the cadet courses, who was working for the plaintiff’s, was told in January 1994 that no place was available in 1994 for him because places had been set aside for persons or Mäori or Pacific Island descent. The applicant was neither. The plaintiffs filed proceedings alleging breach of the Race Relations Act 1971 and the Human Rights Act 1993. The second cadet course was subsequently opened to all on the basis of merit alone.

Held: the restrictions on the first course meant that, unless a defence could be shown, there had been a prima facie breach of both s4(1) Race Relations Act 1971 (failure to provide services by reason of race) and the Human Rights Commission Act 1977 s22(1) (failure of training organisation to provide training by reason of race) and s26(1) (failure of educational establishment to admit person by reason of race) Three other grounds under the Human Rights Act 1993 s40(a) (refusal of training organisation to provide training by reason of race), s44(1) (failure of any person to provide services on grounds of race), and s57(1) (failure of educational establishment to admit a person by reason of race) were not proven as the provisions were not operative till 1 February 1994 and there was no evidence that after 1 February there had been a refusal of services. There had however been a prima facie breach of s67(1) Human Rights Act 1993 (publication of advertisement indicating intent to breach the Act) in the publication of a brochure in March 1994 indicating the second course intake would be restricted to Mäori and Pacific Islanders.

Defences under the 3 Acts are the same, the action causing the prima facie breach must be done in good faith for the purpose of assisting persons of a particular race, and those persons must reasonably be supposed to need advancement to achieve an equal place with other members of the community (Race Relations Act s9, Human Rights Act s29)

The tribunal accepted that the defendant had acted in good faith and for the purpose of assisting persons of the Mäori and Pacific Island race. The defendant had however provided no evidence that, on the balance of probabilities, Mäori and Pacific Islanders required assistance in the fishing industry. The defendant had simply filed a statement that it thought that debate a matter of government policy, which clearly supported such initiatives in view of the ETSA funding available. The tribunal said this approach to the proceedings was “most unsatisfactory”. It found that, since the defendant took this approach, it was likely that it had not independently considered its obligations under human rights legislation when it entered the arrangement with ETSA, which by law it was required to do. Therefore, on the balance of probabilities, breaches as outlined above had occurred.

GENERAL

Proposed legislation

Law Reform (Miscellaneous Provisions) Bill (No 5)

Includes an amendment to the Privacy Act 1993 making registers of shareholders of Mäori incorporations public registers.

Resource Management Amendment Bill (No 3) 1995

Clause 2(2) redefines the term “kaitiakitanga” to clarify that it is only exercised by Mäori.

[ed: in Rural Management Ltd v Banks Peninsula District Council (5 May 1994) the Planning Tribunal found that kaitiakitanga as defined in the RMA was not restricted to Mäori.]

The Crown’s Policy Proposals on Treaty Claims Involving Public Works Acquisitions

December 1995. Minister in Charge of Treaty of Waitangi Negotiations

This paper outlines the Crown approach to public works takings claims, which “tend to involve small parcels of land of relatively modest value”. The Crown does not accept that all public works takings of Mäori land since 1840 are Treaty breaches. Public works grievances will be viewed by the Crown as well founded where:

• Mäori were not paid any or adequate monetary compensation at the time of the taking;

• There was an inadequate level of consultation.

Inadequate consultation will not of itself give an entitlement to monetary redress, but this may be forthcoming where poor consultation resulted in landlessness, or the loss of special associations and/or for a variety of reasons there were reasonably available alternatives to taking the land.

A failure to offer back land which was taken and has become surplus to requirements is regarded as a Treaty breach only if this occurred after 1981 [when legislation first required such an offer back to be made], and where an exemption under ss40(2) & (4) of the Public Works Act 1981 cannot be made out. The Crown views offers back under the 1981 Act in themselves [ie without any other grievance issues] as inherently fair, even when the current market value for the land is required to be paid by former owners.

Financial redress will be considered only where financial detriment has occurred. Redress options include:

• return of land at nil or reduced cost;

• where land is still in use, return subject to a lease back to the Crown for its continued use;

• transfer to claimants of alternative lands;

• monetary compensation;

• a formal apology where appropriate.

The policy also notes that the Public Works Act 1981 is being reviewed as recommended by the Waitangi Tribunal. This will impact on future public works policy. The review will occur over the next 4-5 months. Comments on the proposals are invited to the Director, Office of Treaty Settlements PO Box 919 by 28 February 1995.

[ed: This is only a summary. The policy has been carefully drafted and requires close reading when particular claims are being considered. It appears to follow the Waitangi Tribunal position on compulsory acquisition spelt out in the Turangi Township Report 1995 (see Mäori LR Oct 1995 p4), but rejects the tentative view advanced by the Chairperson of the tribunal that perhaps all public works takings breach the Treaty guarantee concerning rangatiratanga (see Memorandum Wai 46, 17 Feb 1995 in Mäori LR Feb 1995 p3).]

Appointments

Race Relations Conciliator

Dr Rajen Prasad has been appointed the Race Relations Conciliator to replace John Clarke. Born in Fiji, he has lived in NZ since the 1960s. He has an extensive background in social services and child protection. His work has involved consulting to the Standards Committee of the Kai Awhina Social Services Industry Organisation. He has wide contacts with Mäori and Pacific groups (Minister of Justice, Press release 8 February 1996. The former conciliator, John Clarke, has been appointed Director, Mäori, in the Ministry of Justice).

Human Rights Commissioner

Christopher Lawrence has been appointed as a Human Rights Commissioner. He is currently with the Crown Law Office where his work involves Treaty of Waitangi claims. Between 1980 to 1987 he was a solicitor for the Aboriginal Legal Service. He is secretary of the Mäori cultural group He Manu Aho. He also has considerable experience in commercial litigation.

Waitangi Day Address

6 February. Chief Judge ET Durie

Among other matters, the Chief Judge argued that sovereignty is not a helpful word. State responsibility, rather than the absolute power sovereignty implies, is more appropriate today. Aboriginal autonomy is a better term than Mäori sovereignty, and means indigenous people recognised as having status as first inhabitants and enabled to manage their own policy, resources and structures of representation, and negotiate with the state the policy affecting them. Mäori would not have signed the Treaty if they believed their authority or autonomy would be diminished. Through 200 years the Mäori presumption of autonomy has remained and can be seen in movements like the Kingitanga, Paimarire, Ringatu, Ratana, Kotahitanga and later in Mäori councils, trust boards and the like. Aboriginal autonomy is about conciliation by empowerment, assuming that peace will come through the distribution of power, not its aggregation. This diversity is not divisive when there is a common purpose.

The Chief Judge also noted that older Mäori make a distinction between the Crown and government, seeing the Crown (perhaps extending to the Privy Council) as embodying in some way perfect law and as a body which can do no wrong. This view needs to be properly understood.

 

 

The Law and the Mäori

Richard Boast. Chapter 4 in A New Zealand Legal History, Brooker’s (1995)

Analyses Mäori law before and at the creation of the colonial state, places the Treaty of Waitangi and other legal documents relating to land in legal and historical context and provides a lengthy and very readable overview of legislation dealing with Mäori land from the confiscations of the 1860s through to Te Ture Whenua Mäori Act 1993. The chapter draws on unpublished research before the Waitangi Tribunal about the operation of native land legislation in particular districts. Boast concludes that “If the system applying to ordinary private land resembled the current confusion and chaos prevailing with Mäori land it is difficult to believe that it would have been allowed to continue almost to the dawn of the 21st century”.

He also discusses the recent resurgence of Treaty based jurisprudence centred around the unexpected rise to prominence of the Waitangi Tribunal. He argues that statute law, and thus Parliamentary sovereignty, rather than aboriginal title, has been the basic principle dominating the law affecting Mäori, and which Mäori have suffered under. Another feature has been the continuation since 1862 of the Mäori Land Court and associated land legislation. These 2 factors are unique to the NZ situation.

 



December-January 1996 Contents

MÄORI LAND COURT AND APPELLATE COURT

Ngäti Paoa Whänau Trust

96A Hauraki MB 155, 17 November 1995. Carter J, with additional members JW Milroy, D Jaram

This was an application under s 30/1993 to determine the most appropriate representatives of Ngäti Paoa to: receive $1 million in settlement of certain claims to railways lands; present claims before the Waitangi Tribunal, receive benefits from the Waitangi Fisheries Commission, liaise with district and regional councils over resource management matters.

The Ngäti Paoa Whänau Trust, established mainly through the work of one woman over several decades, sanctioned by a kaumätua council, sought appointment as the representative of Ngäti Paoa. It was opposed by the statutorily created Hauraki Mäori Trust Board, and the recently established Rünanga o Ngäti Paoa and Marutuahu Whanui O Hauraki Tribal Board Inc.

There was also dissension over whether descendants of a second marriage of the eponymous ancestor of the tribe, Paoa, could be viewed as part of Ngäti Paoa. These descendants were not Hauraki people and were objected to by those challenging the application of the whänau trust, which had extended its definition of Ngäti Paoa to cover these descendants.

Held: section 30 gives a very wide discretion to the court, and it is not obliged to determine representatives, the word “may” being used in a permissive sense in the section (the Chief Judge, who receives applications initially, makes no judgment on whether the court should appoint representatives, and merely passes the application on). The court is able to take into account all the circumstances surrounding and arising out of the application. Ideally, representation should depend on:

• broad based consent of the people or a mandate;

• due process of consultation according to tikanga;

• credibility in terms of leadership;

• approval of rangätira and kaumätua;

• provision for accountability to the tribe.

If these principles were followed a consensus decision could be expected and court involvement will not be required. Commonly, applications under the section will arise where the tribe urgently needs to be represented. In such cases the court will “probably deal with the application on the basis of expediency and practicality ... rather than on strict adherence to the above principles. The court should not lightly make an order under the section, as a court appointment transgresses the right of the tribe to appoint its representatives, and invariably would place the appointee in a position of strength. Tribes should be encouraged to resolve representation disputes through traditional means.

The court looked at several whakapapa from different sources concerning Ngäti Paoa origins and concluded that they were broadly similar in approach. The Hauraki Mäori Trust Board contended that Ngäti Paoa’s traditional association with a confederation of 5 Hauraki tribes known as the “Marutuahu compact” meant that groups representing more than just Ngäti Paoa alone were appropriate representatives for the tribe. The court found that while Ngäti Paoa may have consulted with and taken collective action under the confederation in the past, such affiliation had not prevented tribes under the confederation from acting autonomously—they had sometimes even fought each other. Representation was still a matter for the autonomous tribe to decide, although it might weigh up its traditional associations and the benefit of unified action from time to time.

As to the issue of who could be included as Ngäti Paoa, the court noted that this question was not directly before it and it could therefore make no binding determination. It was not happy with the view that a whakapapa link alone was sufficient to establish a person as belonging to the tribe. “Prior to the Treaty of Waitangi hapü/iwi were not static. The growth of some tribes and decline of others shows how they changed, war and sickness often being the reason. While many Mäori could whakapapa to many tribal groups their tribe was the one with which they chose to reside and associate. They derived benefits from that association but were also subject to responsibilities. It is difficult to imagine that a person who physically associated with one tribe, would, simply, by association by whakapapa with another tribe have been allowed to derive benefits from that tribe without undertaking the responsibilities that go with membership.” It noted one suggestion that whakapapa should be looked at alongside evidence of turanga (where a group/person was physically located). After reviewing the arguments and statements from past minute books, the court advanced a view of the traditional affiliations for consideration, but recommended the tribe investigate the issue further.

The court then reviewed each of the bodies claiming representation in turn.

The whänau trust, acting since about 1983, had a history of support from a council of kaumätua (although there was no clear evidence that the council had directly considered the issue of wider Ngäti Paoa representation), and had received over $1 million from the Methodist Church intended mostly for the benefit of Ngäti Paoa. However, the trust deed did not make the Ngäti Paoa iwi the primary object of the trust and the monies could be applied to persons outside Ngäti Paoa. The trust had not achieved a clear mandate to act for Ngäti Paoa in all matters because a meeting called for this purpose had not been properly representative of tribal opinion. The trust undertook work which appeared to be of benefit to Mäori generally and not just Ngäti Paoa. The court was also unhappy about the degree of power which could potentially be wielded by the trust and the central personality who had done so much for it over the years. The trust was also not obliged by its deed to be accountable to the whole of Ngäti Paoa. The court thought the proper role of the trust should be to lend support to the establishment and management of a properly representative body, even perhaps acting as agent for it at times.

The Hauraki Mäori Trust Board had represented Hauraki tribes in major land claims in the region and in all fisheries matters since 1990. Separate fishing areas for each iwi were difficult or impossible to define. While its origins were in the Mäori Trust Boards Act 1955 and the Minister of Mäori Affairs retained certain powers in respect of the board, this did not make it an agent of the Crown, and this Päkehä structure could be made to act on behalf of iwi. However while the single Ngäti Paoa appointee to the board represented the tribe’s interests there, he could not bind the tribe on matters within their own autonomy.

The rünanga had been created as a result of the devolution of the Mäori Affairs Department and in anticipation of receiving central government funding on behalf of the tribe through the mechanism of the Rünanga-A-Iwi Act. With the repeal of that Act however, it had lost all funding support and had never functioned as a properly representative body. It now represented no more than the views of a small group.

Accordingly, it was appropriate for the court to determine at an early stage that some body receive the $1 million in settlement of claims to railways land (since interest was accruing), and the whänau trust was the “only serious contender” for this role. The court did not believe it had jurisdiction under this application to determine who should finally share in the funds, merely who should hold them for distribution. Since the whänau trust did not presently havethe structure to ensure that it would represent all Ngäti Paoa, it was within 2 months to file an undertaking to hold the monies in an interest bearing account for the benefit of Ngäti Paoa pending a further court direction as to distribution.

No determination needed to be made at present as to the persons to represent the tribe before the Waitangi Tribunal. Claims concerning the tribe had been received from both the trust board and the whänau trust. This was consistent with the right the tribe had to choose to act either autonomously or with other tribes—and take advantage, for example, of the extra research resources the trust board had. Representation issues might have to be revisited after the Waitangi Tribunal had reported on the claims, when much more information would be available to make a determination.

The trust board, having represented the tribe in fisheries matters to date, was the appropriate body to represent the tribe to the Treaty of Waitangi Fisheries Commission. The board was not entirely representative of the iwi however (a payout to Ngäti Paoa had been channelled to a single marae without consultation with the iwi), and the representation order would continue only until 31 March 1987, pending Ngäti Paoa creation of a properly representative body.

The whänau trust had been acting competently on behalf of the iwi in resource management matters to date and was therefore the appropriate body to continue to do so. This determination did not however decide who were the tangata whenua of any particular area and there may be other tangata whenua in regions Ngäti Paoa nominate as theirs with a right to separate consultation by local authorities over resource issues. This representation order would continue until 31 March 1998.

The court concluded by urging Ngäti Paoa to create a body properly representative of the iwi and indicating its intention to direct payment of the $1 million railways settlement to that body when it was established.

[ed: the issues raised in this judgment are applicable to other locales, where a mixture of rünanga, trust boards and incorporations claim to be representative of iwi. The confusion among groups claiming representation can partly be laid at the door of government, which initiated the policy of devolving resources to tribes, but failed to put in place a coherent policy for tribal representation. Representation now has to be settled on this ad hoc basis as treaty settlements and other pressures demand.]

Rotoma No 1 Block Incorporated

Appeal 1995/17, 25 January 1995. NF Smith, AD Spencer, GD Carter

This was an appeal from the decision of Savage J reported at 214 Rotorua MB 223 (reviewed in Mäori LRSeptember 1995 p2). The incorporation wished to promptly roll over and extend leases over 170 sections fronting the lake and on which were situated many holiday houses. It was felt that reasonably lengthy terms of lease were required to encourage the erection or maintenance of buildings to an adequate standard. A special resolution gave power to the committee of management of the incorporation to, in its discretion, enter into leases up to 40 years on terms and conditions set by the committee. In his original decision, the learned judge interpreted s254/1993, which limits the power of incorporations to lease land for over 21 years, to rule out such delegation, and required the incorporation itself to notify its shareholders of the terms and conditions of the proposed leases and pass special resolutions concerning them.

Held: while the kaupapa of the 1993 Act is to facilitate and promote the use of Mäori land by its owners, the provisions of the Act regarding incorporations and the Mäori IncorporationsRegulations constitute a code regulating the administration and management of incorporations to allow them to manage lands in accordance with the kaupapa of the Act. The 1993 Act also considerably extended the operations of incorporations, giving them all the powers of a body corporate, and enabling them to undertake any business or activity, or enter any transaction (ss250 & 253). Incorporations act through their committees of management (s270).

The court agreed with submissions of the incorporation that s254 was concerned with the fact of alienations over 21 years and did not attempt to regulate any of the commercial aspects of the transaction such as the rent and specific terms. The incorporation had therefore acted appropriately in identifying the land and seeking a special resolution as to leasing policy, leaving the settling of commercial terms in the hands of the committee of management. The court below had placed emphasis in the section on the words “the lease” and interpreted this to refer to a particular lease, whereas the emphasis in the section could be said to be on the “grant” of the lease. Had s254 intended owners to consider the terms and conditions of any lease, this could easily have been included in the section, but was not.

Owners do however have power under the section to request particulars of a lease if they consider these material, and may even impose terms and conditions. In effect what was sought here was a change in policy as to the term of the leases. That had been granted, there had been no objection, and s254 should not be interpreted restrictively. That owners had in fact insisted that only 20 year leases be given, with one right of renewal.

The policy adopted in this case (though not a reason for the decision of the court), made “sound commercial sense” in that the committee sought to deal with the leases to the best commercial advantage of the shareholders and it was appropriate that the committee be able to negotiate with potential lessees unconditionally rather than be fettered with a condition that the leases be subject to approval by shareholders. There was also a safeguard in that the policy approved by the shareholders could be rescinded or amended by special resolution at a subsequent general meeting.

[ed: this decision is an indication that the 1993 Act is not clear, as a matter of policy, on the degree of freedom which incorporations should have from the restrictions on alienation of Mäori land (see the comment that the Act hinders “commercial aspirations” in the report of the Joint Committee on Native Title, reviewed below).]

OTHER JURISDICTIONS

Te Kenehi Robert Mair v District Court at Wanganui

AP15/95 HC Wanganui, 18 December 1995. Heron J

This was an appeal against a sentence of 21 days imprisonment for contempt of court. The appellant had recited a karakia (prayer/incantation) in court in the presence of the judge after the judge had warned that while he would allow the karakia, it should not be recited while he was in the courtroom. The appellant nevertheless insisted on reciting the karakia in the presence of the judge, saying that he was not being contemptuous but merely following his own culture, the Treaty of Waitangi, and the Bill of Rights. He was held in contempt and placed in custody overnight. At sentencing the following day he rejected an opportunity to remedy the contempt and again sought to recite a karakia, arguing that what he had done was fundamental to him as a Mäori and not wrong.

The appeal was on the grounds that the order committing the appellant to prison was,technically, a nullity, and alternatively, that the period of detention was manifestly excessive. A further ground of appeal, that the judge’s direction prohibiting the karakia was not lawful and was contrary to the provisions of s15 NZ Bill of Rights Act 1991 was not pursued.

Held: the appeal should be dismissed. The court reviewed the relevant sections of the Summary Proceedings Act 1957 and could find no substance to the argument that the sentencing to 21 days was technically a nullity. As to the severity of the penalty; considering the full transcript of the exchange (reproduced in the judgment), there could have been no doubt that in the appellant’s mind this was a trial of strength and a desire to impose upon the court a ritual which interfered with the conduct of the case and which the judge was not prepared to countenance.

Insistence by the appellant on saying the karakia in the presence of the judge delayed the case for over half a day and eventually resulted in the loss of one full day of valuable court time.

While some judges have allowed karakia and participated in them, this is a decision for each particular case and judge and undoubtedly there would be times where such a ritual would be considered inappropriate. The judge here was to some extent “set up”. While there may be room for greater emphasis on matters like karakia, courts are “secular institutions who have to deal with litigants of various races and creeds, and to emphasise one particular culture creates its own imbalance.” One view is that “there is something slightly disturbing to the Courts appearance of impartiality to make a concession to the cultural mores of one group when sitting on a case which may be determining the rights and obligations of members of other groups as well as those of Mäori.” When the subject matter of a case involves entirely Mäori interests judges have unhesitatingly allowed karakia, while reserving the right to attend in person or not. The use of an independent person to deliver the karakia may be desirable also.

Experience from the Court of Appeal and the hearing of important Treaty cases are no precedent. District Court judges deal with many cases and order and predictable procedures are essential. This does not preclude judges “from recognising the occasion when a karakia can be said with goodwill on all sides and as a helpful gesture to the resolution of a case.” However, involving any person in a karakia against their wishes is “insensitive and unacceptable”. The appellant was well aware of his course and could have backed down but did not. “However uncertain its definition and scope may be in some respects, contempt of court is undoubtedly one of the great contributions the common law has made to the civilised behaviour of a large part of the world” (Borrie & Lowe’s Law of Contempt 2nd ed).

Twenty-one days may have been a severe sentence, but there was wide public concern about the conduct of some cases and the public interest in the protection of the administration of justice had to be “made plain across the land.” The sentence was not manifestly excessive, although the appellant probably needed to serve only a few days of it to understand that contempt is regarded seriously. In the event, he served only 7 days.

The Queen v Joseph Pairama

T21/95, HC Hamilton, 20 December 1995. Penlington J

The father of a man accused of kidnapping, aggravated robbery and unlawful taking of a motor vehicle indicated that he wished to represent his son. At a preliminary hearing (which the father was unable to attend), the mother of the accused raised issues concerning representation, composition of the jury and use of the Märi language in theforthcoming trial.

Held: the court rejected the submission that because Mäori custom requires a father to represent his son, it would be contrary to article 2 of the Treaty of Waitangi and the Declaration of Independence of 1835 for the accused to be denied this right. The law is clear that rights conferred by a treaty cannot be enforced in the courts except in so far as statutes recognise them. This was discussed in relation to the Treaty of Waitangi in NZ Mäori Council v AG [1987] 1 NZLR 641. The Declaration of Independence must be in the same position. Those documents do not represent the relevant law.

Representation by other than legal counsel was considered in Mihaka v Police [1981] 1 NZLR 54. There it was held that reference to a “Mäori Agent” in s17(2) Law Practitioners Act 1955 refers to persons appearing before the Mäori Land Court only. Nor in this case was it contended that the accused’s father was a “Mäori agent”. Nor was assistance by a “Mckenzie friend” sought in this case. Other cases suggest that in exceptional circumstances the courts may allow a person to be represented by another who is not legal counsel. Even if this discretion was not ruled out by s354 Crimes Act 1961 (which refers to an accused being represented only by themselves or counsel), the court could see no reason to exercise a discretion in this case.

The court also rejected a submission that the accused should be tried by a jury consisting of 6 Mäori and 6 Pakeha on the basis of the equal partnership intended by the Treaty of Waitangi. There is no law to order a jury of any particular composition. Until 1962 it was possible to have an all Mäori jury (s4 & ss141, 151 Juries Act 1908 and Juries Amendment Act 1962). The Juries Act 1981 in its rules for jury selection does not provide for a jury of Mäori or of any other ethnic composition to be selected.

The Court noted a request that the proceedings be in Mäori, and took this to mean that the accused intended to speak Mäori at his trial in accordance with s4(1) Mäori Language Act 1987.

 

I Berkett & Another v Minister of Local Government & Others

A103/95, 10 November 1995, Bollard J, Dr AH Hackett, IG McIntyre

Two Tauranga Mäori objected to a consent for subdivision of farmland on Motiti Island. One of the subdivisions was a small island which the Mäori Land Court had already recommended be set aside as a Mäori reservation. The island was not within the district of any territorial authority. Accordingly, the Minister of Local Government was deemed to be the territorial authority in respect of the island and he had appointed commissioners to hear the subdivision application.

Held: the tribunal could not investigate the legality of the title to the land—for which a certificate of title had been issued under the Land Transfer Act. The tribunal also rejected a submission that the whole island be regarded as wähi tapu, finding that local elders agreed that 3 distinct areas of significance to local Mäori lay within the proposed subdivision land. The tribunal was therefore surprised that although Mäori inhabitants of the island had been consulted about the subdivision consent, other local Mäori with known links had not. The tribunal said it had indicated in a number of cases that it is good practice for planners preparing reports for a hearing body to consult Mäori where matters under ss6(e), 7(a) and 8 arise. This should be done where the applicant’s assessment under s88(6) shows no evidence that local Mäori have been consulted. A facilitator should be engaged to consult with Mäori and prepare a report to present to a later hearing. This approach was not automatic for all cases raising consultation issues, but here there was no district plan covering the island. Preparation of such a plan is required by the Resource Management Act 1991 to include wide consultation.

 

Mangakahia Mäori Komiti & Others v Northland Regional Council & Others

A107/95, 14 November 1995. Bollard J, Dr AH Hackett, JR Fitzmaurice

The regional council granted 17 consents for dairy farmers to extract water from a river for an irrigation scheme. Local Mäori objected completely to the scheme mainly on the ground that the spiritual values of the river would be affected. They appealed the consents decision, citing inadequate consultation and regard for Mäori values.

Held: looking first at the consultation undertaken, the council officer in his report on his discussions with local Mäori had actually recommended that the applications be refused because of Mäori values which would be affected. The council had, appropriately, not been directly involved in consultation, since it was going to have to determine the issue as a quasi-judicial body. While there is a dividing line over which the council as a decision maker cannot go, the council officer can go beyond merely listening to concerns expressed and be proactive in discussing options available to tangata whenua in responding to the application in light of relevant planning laws. But where the sides had totally opposite views as here, there is little the officer can do but listen.

Despite the concerns of local Mäori, the consents should be allowed. The council approach had been to minimise the affront to Mäori and otherwise balance their interests.  However consents should be limited to 6 years and there would be equal consent-holder/Mäori representation on a 4 member liaison panel to be established by the consent-holders to work with their irrigation management committee. This liaison panel would be given all water quality information. The tribunal was satisfied that the river as a fishing resource will not be adversely affected by extraction. “[A]gainst the background of the depth of tangata whenua feeling and concern in relation to the river as a taonga, the consent period will be such as to ensure that practical experience in irrigation can be gained and data gathered, so that the council, the tangata whenua, and the farming owners can reconsider the question of whether irrigation via the river should be continued and if so, whether to the same degree.” If the farmers felt 6 years was too little, that was their commercial decision. Such short consents are not unusual.

[ed: this case is interesting in that spiritual concerns were a big element in the outright refusal of Mäori to countenance the scheme. The tribunal only briefly considered a submission that there was no social or economic necessity to the irrigation scheme, its main purpose being to further increase production from the farms. The decision in this case can be contrasted with the decision in the Te Rünanga O Taumarerecase reviewed below.]

 

Te Rünanga O Taumarere & Others v Northland Regional Council & Far North District Council

A108/95, 24 November 1995. Sheppard J, PA Catchpole, F Easdale

The rünanga, representing local Ngapuhi iwi, objected to a resource consent permitting the discharge of highly treated effluent into a local bay. The bay was of great spiritual and cultural significance to the iwi. The ancient custom of purenga (ritual cleansing) was still sometimes carried out there. The bay was also a shell fish gathering area of great cultural value and made the tribe “wealthy”—allowing the tribe to provide for its own and guests. The rünanga contended that the effluent discharge would give cultural offence, and the effluent must be discharged to land.

Held: the proposed sewage scheme would eliminate all contamination and therefore public health risks and was long overdue. In this respect the proposed scheme would have “considerable beneficial effects on the environment.” Effluent reaching the bay would not have any actual or potential effects of a physical kind.

Rünanga witnesses said however that no matter how well treated physically any discharge of effluent, it would be perceived by local Mäori as altering the mauri (spiritual quality) of the bay and they would view the shellfish there as contaminated and cease to gather from the bay. The tribunal found as a fact that this was the Mäori belief and that they would regard any effluent discharge as an affront to their standing as tangata whenua and as kaitiaki.

Although the council had been “assiduous” in investigating alternative sites and methods for disposal, commissioning several reports on land disposal options, its consideration of these options was affected by the confidence it had in the high quality of the effluent which could be achieved in the bay discharge option. This was not responsive to the concerns expressed by the Mäori community.

The tribunal then looked at numerous planning instruments affecting the proposal. All made strong statements about the need to give full consideration to Mäori cultural preferences. While the proposed scheme conformed to many requirements of these plans, to allow the proposal before the feasibility of a deep bore land disposal option had been fully investigated would be to “fail to provide, as far as practicable, for interests and values of the tangata whenua." That would not conform with the expectations raised by the New Zealand Coastal Policy Statement, the proposed regional policy statement, the transitional proposed regional coastal plan, the proposed regional coastal plan, the proposed regional water and soil plan, or the transitional district plan.

Turning to the statutory objectives of the RMA, the treated effluent proposal failed to provide for the social and cultural wellbeing of some Mäori people and to that extent fell short of the definition of “sustainable management” in s5(2). In particular, while the proposal would meet the sewage requirements of future generations, it would fail to provide for Mäori cultural and social needs in the future—s5(2)(a). While the proposal had been designed to avoid or mitigate adverse effects on the physical environment, it would not avoid or mitigate adverse effects on the social, economic, aesthetic and cultural condition of local Mäori—5(2)(c).

In its effect on Mäori cultural values, the proposal was also an inappropriate use of the coastal environment, the preservation of which is a matter of national importance—s6(a). The proposal also failed to provide for the relationship of Mäori with their culture and traditions in accordance with s6(e). Similarly, it also failed to have proper regard to kaitiakitanga—s7(a).

While the proposal had been developed by the council in a way which took into account the principles of the Treaty of Waitangi, as required by s8, the principle of active protection had not been followed in that the council had not fully eliminated land disposal options.

“We recognise the importance which the District Council must have given, rightly, to the high quality of the effluent as it could be measured in physical ways. However the Resource Management Act specifically directs that importance is also to be given to cultural matters, and particularly Mäori traditional relationships with water, and the principles of the Treaty of Waitangi, including active protection of Mäori interests. That those matters deserve more than lip-service but are intended by Parliament to affect the outcome of resource management in appropriate cases is evident from the primacy given to Part II in the Act, and in the strong language of its contents.”

The tribunal reserved its decision, pending further work by the council on the land disposal option. If that option proved unfeasible, only then might the urgent public health needs of the community prevail even over the important Mäori values involved.

[ed: the decision is a clear indication that the Mäori and Treaty requirements in the RMA do not mean “business as usual” with a passing reference to Mäori interests, but that those interests can fundamentally affect planning outcomes. This decision will be of great interest to local authorities and Mäori groups in other districts where sewage schemes are contemplated. This decision makes interesting reading alongside the Mangakahia Mäori Komiti case decided just ten days earlier (reviewed above).]

GENERAL

Te Rünanga O Ngäi Tahu Bill

No 266-2, as reported from the Mäori Affairs Select Committee

After a lengthy time before this committee this important bill has been reported back with numerous changes, the major ones being:

•  a more detailed definition of the takiwa of Ngai Tahu Whanui;

•  a right of appeal to the Mäori Land Court where the rünanga rejects an application for membership of Ngai Tahu Whanui - such a right exists in relation to trust boards under the Mäori Trust Boards Act 1955;

•  a requirement for the rünanga to keep a roll of members similar to the rolls kept by trust boards;

•  a procedure to modify the papatipu rünanga making up Ngäi Tahu, by Order in Council, on a recommendation from the Minister of Mäori Affairs. It is provided that either the MLC using its power to determine appropriate representatives under s30/1993, or the rünanga itself, using an internal procedure complying with the rules of natural justice, shall advise the Minister on the necessary change. Once the rünanga adopts and has gazetted a satisfactory internal procedure, that would prevent further applications under s30/1993;

•  the rünanga is deemed to represent Ngai Tahu Whanui for the purposes of all legislation requiring consultation with iwi. New provisions require that when such consultation is a requirement, the rünanga must seek the views of all papatipu rünanga who, in its opinion, “may have views that they wish to express” and must have regard to those views, and may not act to prejudice any one papatipu rünanga unless the central rünanga reasonably believes the broader interests of Ngai Tahu Whanui would be served.

The select committee commented that the bill was introduced as a private measure and standing orders requirements that the bill be displayed at district courts were waived. The committee said this gave it a difficult task of ensuring all affected individuals had an opportunity to inspect the bill. This difficulty, and complaints about inadequate consultation over the bill are in part behind a requirement that the charter of the rünanga will have to be available at all times from the head office of the rünanga.

 

Crown Forest Assets Amendment Bill

No 65-2A, as reported from the Finance and Expenditure Select Committee

This bill retrospectively amends the formula for determining the annual licence fee charged for Crown forestry licences. The forestry company and licensee Carter Holt Harvey challenged the Crown assessment of its rent, alleging that the licence did not accord with the Act and that it was being overcharged. This bill was introduced to protect the Crown position. It’s retrospective nature was challenged (unsuccessfully) in Carter Holt Harvey Ltd v Anor & A-G (CL 39/94, 31 January 1995 HC Auckland, Barker J). Mäori authorities have been supportive of the bill because it will protect the level of settlement and research monies which Mäori groups may receive for their forest claims.

 

Joint Committee Meeting with the Australian Joint Committee on Native Title—Report of the Mäori Affairs Committee.

I-9F, presented in the House of Representatives 19 October 1995

This report records an exchange of views between the Mäori Affairs Committee and members of the Joint Committee on Native Title. The group examined developments in native title matters in Australia and comparisons with Treaty of Waitangi claims settlements. The formal proceedings produced several statements including one that “despite ... being the subject of rigorous scrutiny both within and outside Parliament there were certain parts of Te Ture Whenua Mäori Act (Mäori Land Act) 1993 that, to a certain degree, continue to hinder the commercial aspirations of Mäori. However, the 1993 Act was far more mandated than its predecessors.”

The committee looked at the elements required to ensure the sustainability of claim settlements and felt that these included:

•  Ensuring appropriate consultation processes were in place providing clear mandates from claimant groups to avoid future re-litigation;

•  The possibility of instituting generational targets for the settlement of grievances (provided these are not used to delay redress). Such an approach could also include targeting of particular areas in a decade;

•  Need for settlements to clearly exhibit real opportunities for people at the “grass-roots” in the regions;

•  Recognition that sustainability is not just about the quantum of assets revested in claimant groups (eg importance of the Crown’s apology in the Tainui settlement);

•  Provision of appropriate resources to claimant groups to facilitate consultation and negotiations

•  As part of any settlement, commitment to the development of an on-going relationship between claimant groups and the Crown.

The House has been invited to take note of the report.

 

Report of the Standing Orders Committee on the Review of Standing Orders

I-18A, 1995

This report reviews the Standing Orders of the House of Representatives in light of the forthcoming election under the new mixed member proportional (MMP) system. It will be a central document facilitating the redistribution of power within Parliament under the new system. Changes of note:

•  The Mäori Affairs Select Committee will have a wider role. An overall review function for the committee was considered, to provide for proper scrutiny of the delivery of services to Mäori having regard to devolution and the changing role of Te Puni Kokiri. However the scrutiny function of all committees has been broadened so that it is expected that they will all become “much more involved in considering complex policy issues, ... prior to legislation being drafted”. Consequently a review function does not need to be spelt out.

•  While the first source of advice to committees on any legislation will continue to be the minister and his or her department, “committees may wish to contest this advice and may want an independent source of advice” on a range of matters, the first listed in the report being “implications of the Treaty of Waitangi”. Appropriate experts may be called, with their contracts arranged with the Clerk of the House.

Apart from these changes, Mäori members will find that the House continues to be, in terms of its Standing Orders, a solidly European affair.

 

Settlement of Waimakuku Whänau Trust claim

Press release, 20 December 1995. DAM Graham. Minister in Charge of Treaty of Waitangi Negotiations

The Crown and representatives of the trust have signed a deed settling a claim concerning 726 acres of farm land and buildings on the Napier-Taupo road, taken in 1929 by the Crown without payment of compensation. The land had been returned in 1970, but by then buildings had fallen into disrepair and a large quantity of valuable native timber had been removed. The agreement includes a Crown apology and $375,000 as full and final settlement of all the trust’s claims.

Te Roroa claim

Press release, 12 December 1995. DAM Graham. Minister in Charge of Treaty of Waitangi Negotiations

Alan Titford has accepted a Crown offer to buy his Maunganui Bluff property, containing the Manuwhetai wähi tapu, of critical importance to the Te Roroa people. The property is to be placed in a regional land bank. The 1992 report of the Waitangi Tribunal on the Te Roroa claim recommended the return of the land.

Answering a question on progress with settlement of the overall claim, the Minister told the House in December 1995 “Settlement of the claim has been accorded a high priority by the office [of Treaty Settlements] in its annual overview report.” The appointment of a Crown negotiator was “imminent” and a proposal was being submitted to Cabinet for further claimant funding. A draft Crown negotiating brief would be submitted to Cabinet in the New Year, however, “the claim also involves significant third party issues, such as the proceedings being taken against the Crown by the Aranga farmers. These have to be addressed in conjunction with the Te Roroa claim to ensure progress towards settlement” (Replies Supplement 12 December 1995 p36)

 

Report of Submissions. Crown Proposals for the Treaty of Waitangi Claims

December 1995. D Graham. Minister in Charge of Treaty of Waitangi Negotiations

This report summarises the 2077 submissions received on the proposals released in December 1994. Eight hundred and six nine submissions were in the form of cards rejecting the proposals as flawed from their inception, 328 were form letters urging the Government to retain control of the conservation estate, and 880 submissions were categorised as “original” ie written or prepared by the submitter (including oral submissions at hui called to discuss the proposals). A national hui at Hirangi in September 1995 rejected a Government request that a working group of 4 Crown and 4 Mäori representatives produce a report explaining the issues, for public release by the government.

The submissions generally attacked the government proposals, and displayed a wide range of conflicting views on the settlement process. Very few positive comments appear to have been received. The Hirangi hui described the proposals as “another fundamental breach of tino rangätiratanga” and rejected them in their entirety. Among matters raised:

•  Many submissions rejected the proposals because they had been developed in a unilateral manner, contrary to the principle of partnership and comments by both the Court of Appeal and Waitangi Tribunal on the approach partners should take towards consultation.

•  There was some concern that the settlement proposals focused extensively on confiscation, ‘seriously misrepresenting the historical situation”. Resources were said to have been lost in many other insidious ways, for example through native land legislation.

•  Very few submissions supported the $1 billion total size of the fiscal envelope. One commented: “It is not much compared to the $97 million to rehouse Cabinet. This amounts to $4 million a Cabinet Minister compared to the envelope’s proposition of $3000 a Mäori”. The methodology for reaching the figure was questioned. Only one submission said that $1 billion was too much. The report lists 52 suggested alternatives to the settlement envelope policy.

•  Many submissions objected to any use of the conservation estate to settle claims, since it is ‘public property’ for all New Zealand. Mäori submitters generally followed the line that “it would not be acceptable to wider New Zealand for a thief to steal a new car and say 150 years later that he will not return [it] since it has gained vintage status with special qualities to be appreciated by all.” Some questioned exactly what the term “conservation estate” meant.

•  Concern was expressed that only the use and value of natural resources to Mäori, rather than their ownership by Mäori, would be recognised in settling natural resource claims. There was also concern that the Crown appeared to be using the Court of Appeal decision in the Te Ika Whenua case to limit modern Mäori claims to natural resources to the uses made of those resources or contemplated in 1840.

•  Although not raised in the December 1994 proposals, submissions were also received on the protection mechanism for the sale of Crown surplus lands, with many submitters unhappy about the degree of discretion the Crown retained to sell or retain land bank properties, and to charge against the final settlement envelope the costs of holding land in land banks.

[ed: there are obviously many ideas in the community about how to deal with Treaty claims. A listing of alternatives, inviting submissions, followed by a shortlisting and final decision (ie a standard consultative approach), might have been a more useful process to follow and would have engendered more trust. Commenting on the general proposition that Mäori had not suffered unduly through colonisation and should not seek broad recompense, one submission noted “The essential quarrel is with the way in which colonisation brought about a transfer of power and of resources; it is not with the way in which it also brought a whole range of skills. An invasive culture is not, from the vantage point of the invaded, a package deal including everything from nutrition to political institutions.”]

 

Harbours Management. A Review of the Harbours Act 1950

Ministry of Transport discussion document. September 1995

The main purpose of this review is to identify how the Harbours Act 1950 can be replaced with legislation that provides a comprehensible, flexible and durable regime to regulate navigation safety. One of the principles of the reform is that the final legislation give tangata whenua an opportunity for input into the regulation of navigation safety.

The report considers the policy to apply in a hypothetical situation where tangata whenua claim ownership of a harbour and there are also mahinga mätäitai, tauranga waka and wähi tapu within it. The government is currently developing policy on the ownership issue and this will be “resolved in the near future after consultation with tangata whenua.” The report proposes that the Local Government Act 1974 be amended so that local authorities will be responsible for controlling navigation and be required to consult with tangata whenua and may delegate functions to tangata whenua. The current Harbours Act contains no provision obliging local governments to take principles of Treaty in to account when regulating navigation safety. A new Act might do so. Mahinga mätäitai would be administered under the Fisheries Act 1983, but the regional coastal plan should cater for navigation issues affecting these. Similarly, while the wähi tapu and tauranga waka would be regulated under the RMA, the regional coastal plan should regulate navigation activities through them. The RMA requirements would also cover issues concerning the placement of navigation aids.

As to harbour board lands, in the local government reorganisation in 1989 local authorities were given the endowment lands formerly held by harbour boards. Presently, permission fromthe ministers of Transport and Finance is required before these can be sold (ss143A-143C, Harbours Act 1950). Repeal of the Harbours Act would remove this requirement. “As the ownership of this land was transferred from the Government to Harbour Boards, tangata whenua could not lay claim to the land under Te Tiriti o Waitangi. A possible exception might arise if the land that was transferred from the Government to harbour boards had been taken by Government under the Public Works Act. The Government is currently considering this issue.”

 

Republican New Zealand: Legal Aspects and Consequences

NZ Law Review 1995 Part III p310. FM Brookfield

This article considers the possible methods and consequences for NZ becoming a republic. NZ is already a de facto republic with the Governor-General virtually functioning as a president appointed by an elected prime minister. Consequently, change to a republic could be achieved with minimum disruption to existing laws. However, some factors suggest a more thoroughgoing change is required, including the Treaty and Mäori concerns about the effect of losing the link to the monarchy. Although the Treaty is becoming a foundational document, and could easily survive the transition to a republic (as similar documents in other countries have survived through constitutional change), Mäori will expect to at least be consulted over such a change, and their misgivings may be politically influential enough to ensure some protection for the principles of the Treaty in a written constitution as recompense for “the loss of perceived personal obligations of the Monarch.” Those who argue that the NZ Parliament cannot create a republic since it cannot abolish one of its fundamental constituent parts (the monarchy), must admit that the Mäori case to be considered as a fundamental element is also strong. Therefore, the courts might recognise “a statute abolishing the monarchy, passed by Parliament with the concurrence of a virtually unanimous House of Representatives with the support of separate referendums of Mäori and Pakeha electors”, since, even though it would be technically revolutionary, the “supporting facts of constitutional life” would be established in such legislation.

One further consequence of such a change would be a change in the basic theory of land law. Presently all land is vested allodially in the Crown and land owners are technically tenants in fee simple of the Crown. The State could simply replace the Crown as allodial owner. However, legal reality suggests land owners should be given full allodial ownership. The Law Commission has already suggested such a change (Tenure and Estates in Land PP 20 (1992)). This change could also see the vesting of any lands still encumbered with Mäori customary title(of which very few hectares, if any, remain) in the persons communally entitled. This “recognition of the indigenous customary title as itself allodial and not merely as an encumbrance on the Crown or State allodium” would nevertheless be symbolically important and accord with the rangatiratanga preserved by article 2 of the Treaty.