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).]