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.