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.