May 1996 Contents

URBAN MÄORI AND THE FISHERIES SETTLEMENT

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

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

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

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

MÄORI LAND COURT AND APPELLATE COURT

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

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

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

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

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

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

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

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

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

WAITANGI TRIBUNAL

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

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

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

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

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

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

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

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

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

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

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

 

OTHER JURISDICTIONS

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

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

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

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

Waitangi Tribunal jurisdiction to consider the claims

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

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

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

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

Whether allocation should be to iwi only

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

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

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

A declaration to this effect would issue.

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

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

 

 

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

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

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

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

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

 

 

Moynihan v Berkett and Others

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

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

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

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