Māori Law Review

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

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

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

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

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

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

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

No cases of note this month.

No material of note this month.

Michael John Smith v Auckland City Council

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proprietors of Parininihi Ki Waitotara Block v GB Ogle

CP 11/95, 2 April 1996. Master Thomson

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

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

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

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

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

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

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

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

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

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

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

Selwyn James Clarke & Others v NZ Police

15 March 1996. Hobbs J

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

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

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

Danny Zinck v Sleepyhead Manufacturing Company Ltd

AEC130/95, 8 December 1995. Colgan J

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

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

Te Runanga o Ngai Tahu Act 1996

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

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

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

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

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

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

Mäori Purposes Bill

No 78-2. Second reading

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

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

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

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

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

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

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

Taonga Mäori Protection Bill 1996

No 166-1. Tau Henare

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

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

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

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

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

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

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

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

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

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

The concept of “tangata whenua” and collective interests

Jeremy McGuire. NZ Law Journal, January 1996 p28

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

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

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

Annual index

Māori Law Review Index December 1995 to November 1996