The Taranaki report. Muru me te Raupatu
Putting aside issues of over-emotive wording (it does not seem that the report itself uses the word ‘holocaust’) and the price (large chunks can be viewed on the internet for free athttp://nz.com/webnz/tekorero/taranaki/tar1.html) this report contains some important challenges to the Crown approach to Treaty settlements. The first is the attack on Native Land Court determinations last century - hitherto argued by the Crown to be a matter largely outside its control and responsibility. The tribunal specifically reviews a major decision of the court in relation to lands in north Taranaki, and exposes the wrong policy behind that decision. It also rejects other judgments as flawed and breaching Treaty principles. The second is the comment that if a compromise settlement is sought by the Crown, rather than a strict accounting for loss, then Taranaki Mäori cannot be expected to sign-off their claim completely. This has obvious implications for several other compromise settlements presently under negotiation in other regions.
The unusually strong language in the report possibly arises from the effort to convey the deep feeling of loss Taranaki Mäori have even now, as opposed to the fact of loss - something which a dry accounting might not have conveyed. Possibly also because it is an interim report, and directed to the current negotiations, it has none of the balancing of facts of previous reports and reads more as an extended argument for redress.
Perhaps the lasting message the tribunal would hope that is taken from the report is the new benchmark it has articulated for assessing both past and present dealings with Mäori - ‘aboriginal autonomy’. The tribunal says it was the central concept governing Mäori efforts to cope with Päkehä culture in the last century and in this. The tribunal further says that it works, and is good for the nation.
(Note: the writer has worked for the Taranaki claimants)
Mäori Land Court and Appellate Court
Due to a lack of space in this issue, an important decision of the Mäori Appellate Court concerning partition will be reported next month (In Re Brown and Kairakau 2C5B Appeal 1995/12, 11 Takitimu ACMB 143, 4 June 1996)
The Taranaki report
The Taranaki Report. Kaupapa Tuatahi
Wai 143 & Ors. 30 April 1996. Chief Judge ET Durie, E Manuel, Prof GS Orr, Right Reverend MA Bennett, Prof MPK Sorrenson. 370pp
Because of the length and complexity of the report, an adequate summary would take many pages. This summary focuses on fresh perspectives on the history which are revealed in the report and on statements which may carry precedent value for other claims)
This is an overview report of 21 claims. The parties agreed that, before hearing the Crown response, the tribunal should give its “initial opinions” on the claims, to assist the parties in settlement negotiations. Accordingly, the report makes no final recommendations, although it contains some general comments on settlement. The Crown’s brief response on some major issues is noted - including concessions that the Waitara purchase, the war and confiscation in Taranaki, and the invasion of Parihaka in 1881 were in breach of the principles of the Treaty of Waitangi. Leave is given to parties to seek further hearing if proposed negotiations prove unsuccessful or clarification on particular items is required. A second report will look at the history of particular groups and ancillary claims that may need to be distinguished for any comprehensive settlement “unless matters are earlier resolved.”
The historical theme identified is the struggle of Taranaki Mäori to retain autonomy. The report reflects on aboriginal autonomy as it is understood internationally, and the government insistence that its authority prevail in all matters, not just in war and confiscation but in setting up ‘wrong processes’ such as trustee administration and the land court to decide issues that Mäori ought to have been left to decide themselves.
In a large departure from previous assessments of loss in Taranaki, which arrive at a figure of 462,000 acres actually taken, the tribunal considered that there has been an ‘expropriation in Treaty terms’ of 1,922,200 acres (777,914 hectares).
Pre war purchasing
Chapter 2 deals with the government claim to have purchased for settlement 75,370 acres in 9 blocks around New Plymouth between 1844-1859. The purchases were initiated by the NZ Company and subsequently taken over, adjusted, then confirmed by the government. The tribunal found that, among other matters, the Mäori response to settler encroachments was restrained, the government ignored many owners because they were wrongly deemed to have abandoned the lands, the initial NZ company purchase which was the basis for subsequent arrangements post-dated Hobson’s proclamations preventing private land dealings with Mäori and was therefore simply invalid. It dealt with such a small group of Mäori, with such little understanding of its content, that it lacked any bearing on reality. The Land Claims Commission which investigated the NZ Company transactions denied Mäori the right to determine matters within their autonomy (ie the rights of absentees) and replaced dialogue which was needed directly between the Crown and Mäori. The government’s subsequent efforts to finalise matters by ‘purchasing’ within the area of the company’s ‘purchase’ were invalid, as, among other discrepancies, they took place in an atmosphere of tension and fighting between Mäori sellers and non-sellers, and as more settlers were being introduced. Inadequate reserves were made and there was a general failure to properly consult with the proper Mäori leadership.
Waitara and Waitotara purchases and the lead up to the war
In 1859 a small group ‘sold’ the Waitotara block. The government did not initially even rely on this purported purchase but confiscated the land, relinquishing that course only when its Whanganui allies said the land was wrongly confiscated. It then returned to the ‘purchase’ as proof of its title. In 1857 Waitara land was offered for sale. In accepting the offer the Governor acted in disregard of customary tenure, despite advice to the contrary, and in breach of principles of law that in establishing custom in such cases the law of the people themselves is paramount. The rangatiratanga exercised by Wiremu Kingi was also misunderstood - to the convenience of the government. Kingi was unjustly attacked. The real issue was not a land dispute but the imposition of government authority on Mäori autonomy.
The Taranaki Wars
Consequently, the government was an unjust aggressor in the war in north Taranaki beginning March 1860. The second war, on which the land confiscations were based, was a result of government failure to properly investigate the Waitara purchase, its military reoccupation of areas, and a military trespass which resulted in a Mäori ambush in May 1863. These actions were not only contrary to the Treaty, but because no act of rebellion had taken place the confiscation was possibly unlawful in terms of the NZ Settlements Act 1863. The war continued longer in Taranaki (9 years) than elsewhere in the North Island. Some 534 Mäori were killed and 161 wounded, to 205 European troops and Mäori allies killed and 321 wounded. There are other losses to be calculated. The signs of the wars remain. The street names in Waitara are a celebration of military and political conquerors and “name changes are needed.”
It was within the authority of the NZ General Assembly to enact the NZ Settlements Act 1863, since exceptional legislation is permissible where the existence of the state is threatened. However the confiscations were unlawful because they were ultra vires the legislation. There is no indication that the Governor was satisfied, as the legislation required, that groups were in rebellion in Taranaki, and the facts suggest that they were not. The most serious error was that while the Act provided for only specific lands for settlement to be taken within a district, the Governor took all the land of the Taranaki district for military settlement, including clearly unsuitable land such as Mount Taranaki. The confiscation was also not referable to the purpose of the Act ie settling sufficient numbers to keep the peace. The actual purpose was simply to take all land capable of settlement. Arguably, later validating acts could not correct such gross illegalities, but only irregularities in form and process (this point is now of academic interest only as proceedings are statute barred and properties have changed hands). The confiscations were a clear breach of the Treaty of Waitangi. “While the specific terms of the Treaty may be suspended in an emergency, the general principles enure to the extent that they provide criteria for assessing the circumstances. The Treaty furnishes a superior set of standards for measuring the propriety of the State’s laws, policies, and practices. This shifts the debate from the legal paradigm of the state where the rules must protect the Government’s authority to one where Government and Mäori authorities are equal.” Contemporary records of the debate surrounding the introduction of the confiscation legislation and its application show that the government did not act in good faith. Confiscation in other jurisdictions (eg Scotland and Ireland) has always been for the purposes of conquest, not of peace.
Chapter 6 deals with efforts to compensate ‘loyal’ Mäori whose lands had been confiscated. The Compensation Court made inadequate inquiries and wrong decisions on custom (eg absentees were disentitled, ancestral interests were distorted by calculations of loyal vs rebel entitlements), had a thin veneer of legality only, and the judicial process was subservient to executive actions to reach agreements with groups, which the court would not look into. The scheme as implemented was probably unlawful, and certainly entirely inconsistent with Treaty principles, there being nothing on the record as evidence of “even minimal protective standards or the performance of fiduciary obligations”. By returning individualised titles the scheme was “an engine for the destruction” of Treaty guaranteed traditional values. Worst of all, promissory papers rather than land was actually given so that 14 years later almost none of the land awarded had actually been returned (the court made 518 determinations entitling ‘loyal’ Mäori to 79,238 acres. By 1880 only 3500 acres had actually been returned).
From 1864 there was a government power to adjust compensation court awards. In practice these amounted to no more than a series of promises of further land for absentees and others who had missed out on the court awards, promises which were in almost all cases never implemented.
A viable approach to assessing loss and prejudice is to look at land in Mäori ownership and determine how far it is an asset for the people, not just individuals. On this approach, hapü, as hapü, retain nothing.
Land purchases 1872-1881
In this period the government used deeds of cession and purchase and payments of gratuities to secure 648,048 acres both inside and outside the confiscation boundaries. In north and central Taranaki, the ‘purchases’ inside the confiscation line, in effect payments for land already technically in Crown ownership, cannot count as land returned and then properly purchased since the Mäori vendor had no title and no ownership if the ‘sale’ was resisted. For ‘purchases’ outside the confiscation line, the operation of the Native Land Court in these areas was a “wrongful imposition, promoting individual caprice and judges’ preference above traditional decision-making” and failed to provide any protection for Mäori interests. ‘Purchases’ in the south and on the Waimate plains by way of payments of gratuity or ‘takoha’ to individuals and groups on lands already confiscated was “thoroughly bad and meaningless in law”. Fraud and undue influence in all these activities was also evident.
In chapter 10 the tribunal broadly attacks the work of the Native Land Court in the district, and in particular reviews the decision of 1882 awarding almost all Ngäti Tama lands (66,000 acres) to a few individuals from a neighbouring hapü, it seems as a means punishing Ngäti Tama for allying with the King movement (the tribunal termed the award ‘confiscation’). Native land legislation was contrary to the principles of the Treaty since it deprived Taranaki Mäori of authority over their lands. Mäori land, in social and cultural terms has been made an “illusory and meaningless asset” for the people and community it traditionally served.
The tribunal outlined the well known history here and offered some fresh perspectives. Tohu was of equal status to Te Whiti. Parihaka was extremely prosperous by 1880, acknowledged as such by government officials, and provided “proof of that which governments past and present have sought to avoid admitting: that aboriginal autonomy works and is beneficial for both Mäori and the country”. There was no reason, “apart from motivation” why central Taranaki should not have been declared a Mäori district under the New Zealand Constitution Act. The NZ Settlements Act 1863 provided that confiscated Mäori land did not become Crown land freed of all Mäori interests until it was Crown granted for settlement. Since the central Taranaki confiscation was effectively abandoned, and no fresh land could be confiscated after 3 December 1867, and takoha which had been paid was of no legal significance, Parihaka lands were in 1881 held by the Crown subject to Mäori interests. Consequently, the Crown assumption of land in central Taranaki and the invasion of Parihaka were unlawful and remain so today (although current titles are secure under the land transfer system). The taking of the land and invasion of Parihaka was also contrary to Treaty principles as was the imprisonment without trial of many Parihaka people. The tribunal came to no definite views on the treatment of prisoners. It quoted at length from Martin Luther King’s statements about non-violent protest and challenges to unjust laws. It noted also that Parihaka was completely rebuilt after the return from imprisonment of Tohu and Te Whiti.
West Coast Leases
The report critically examines the work of 2 West Coast Commissions which reported on the failure to reserve lands after confiscation, and the second commission which went on to make reserves, finally giving effect to most of the awards of the Compensation Court. There was a bias in the commission towards European settlement, it had limited terms of inquiry, it acquiesced in the Parihaka invasion, which broke its own recommendation that adequate reserves needed first to be made, it lacked independence from government, it ‘punished’ Parihaka leaders by reducing their reserve awards, and it individualised all but 991 acres of the 200,000 acres put into reserves. Worst of all, the reserves were, by statute, put in the hands of the Public Trustee with power to lease to promote settlement, which in practice resulted in leases to Päkehä farmers (of 193,996 acres in reserves in 1912, 138,510 were leased by Europeans). From 1892 the leases were, by statute, made perpetually renewable. The tribunal looked briefly at the subsequent history and the amalgamation of all reserve interests in a single incorporation in 1976 (‘PKW’) and ongoing disputes among Taranaki Mäori about the role of that body. With regard to current proposed changes to the perpetual leases, there was no question of disturbing the sanctity of private contracts “There is nothing sacred about those contracts. They are entirely profane.” It is a not a situation of competing equities or of a contractual relationship between Mäori and lessees, but rather of each group having mutually exclusive and distinct claims to make to government. The proposed scheme would see some leases terminating 62 years after amending legislation is passed. This delay is “excessive and unacceptable”. There should be termination after no longer than 42 years from the enactment of amending legislation, and 5 yearly rent reviews.
Mäori are also separately entitled to compensation for loss of possession, control, land and rental (compensation for loss of rents should go only to those who were owners when the loss occurred. Latecomers would be excluded). The loss of opportunity to maintain and develop the society must also be considered. “Perpetual leasing was the unkindest blow, for it visited upon succeeding generations the pain of knowing the family lands were held by another people; and as parents were forced to send their children away to work, they did so knowing how their lands were worked by others.”
The tribunal considered the Sim Commission report of 1928, its limitations, and the creation of the Taranaki Mäori Trust Board and its struggle to apportion money among Taranaki tribes and provide a wide range of services with inadequate resources. Its continuing role should be a live issue in settlement discussions. The momentary revesting of Mount Taranaki in the trust board in 1978 had not satisfied the people. There was no legal basis for the mountain’s confiscation in the first place.
Taranaki claims are likely to be the largest in the country. Long term prejudice may be more important than quantification of past loss. Taking the broad approach suggested by s6(3) Treaty of Waitangi Act 1975, compensation “should reflect a combination of factors: land loss, social and economic destabilisation, affronts to the integrity of the culture and the people over time, and the consequential prejudice to social and economic outcomes.” In all 1,199,622 acres were confiscated and no distinction should be made between this and 296,578 acres said to have been purchased, and 426,000 ‘expropriated’ by the government’s native land court process. When determining injurious affection, the impact of loss by reference to the proportion of the land taken and the amount retained in regard to the size of the group is more important than the amount taken in absolute terms. The amount remaining to Taranaki Mäori is probably less than 3% and hapü, as distinct from individual, loss appears to be total. Social and economic destabilisation should be compensated as should personal injuries ie damage to the psyche and spirit of people. Social and economic performance may be a measure of past deprivation. Little weight should be placed on reparations previously paid.
Any settlement should not be full and final since a full accounting for loss will not be politically possible in any settlement. The tribunal named 8 hapü deserving separate consideration (including Pakakohi and Tangahoe, with a lesser standing however than the other 6 hapü). The apportionment of any settlement between hapü is a matter for themselves. The broad perception from the evidence is that Taranaki people in the centre account for 1/7, and the north and south 3/7 each; but this should be settled locally without further reference to the tribunal. Separate settlements for north, south and central groupings seem appropriate. Compensation should be directed to hapü and not the trust board, unless hapü otherwise agree. The same applies to the PKW incorporation, as settlements should not be dissipated by individuals. However PKW and the trust board should be reimbursed for funding the claims.
Court of Appeal
Sale of radio assets
Interim orders sought
Whether Mäori action to be struck out
New Zealand Mäori Council & Others v A-G & Others
CA 78/96 13 June 1996 Richardson P, Gault J, McKay J, Henry J, Thomas J, Keith J, Blanchard J
This was an appeal from McGechan J’s decision refusing an application by Mäori to prevent the sale of the Crown’s commercial radio assets (including 41 commercial stations) until further steps had been taken to protect Mäori language in radio broadcasting (see Mäori LR April 1996 p2). The Crown also sought to strike out the Mäori claim on the basis that no reasonable cause of action was disclosed by it.
The Majority decision (Richardson P, Gault, McKay, Henry, Keith, Blanchard JJ)
The Treaty obligation of the Crown to guarantee to Mäori the undisturbed possession of their taonga includes their language, which the Mäori Language Act 1987 recognises as a taonga. It is “part of the heritage of all New Zealanders” who “all have a stake in its preservation”. The case of New Zealand Mäori Council v AG  2 NZLR 576, which concerned the transfer of television and radio assets to state-owned enterprises in the context of s9 of the State-owned Enterprises Act 1986 raised serious concerns relating to the Crown's obligation to preserve the Mäori language through broadcasting. Since broadcasting litigation was first commenced in 1988, the Mäori language has continued to rapidly decline and "the position is very worrying".
Two initial decisions could be noted. The Privy Council decision concerning the transfer of television assets ( 1 NZLR 513) held that the courts can review a transfer of assets by the Crown and the Treaty impact that might have under s9. And in Mercury Energy Ltd v ECNZ  2 NZLR 385 the PC held that while the courts could review a commercial contract made by a state-owned enterprise as the exercise of a statutory power, this would likely only be if there was evidence of fraud corruption or bad faith.
The legal test for granting interim relief is outlined in Carlton & United Breweries  1 NZLR 423. A primary consideration is whether the interim order is necessary to protect the applicant's position, in accordance with section 8 of the Judicature Amendment Act. This requirement assumes there is a legal and factual position to be protected.
Looking at the Mäori presence on radio in 1991 and 1996 - in 1991 there were 95 radio stations in all, 68 being commercial radio, 36 of which were controlled by the Broadcasting Corporation. There are now 179, including 152 commercial stations. Radio New Zealand's commercial arm operates 41 commercial stations. In his 1991 judgment McGechan J commented on Mäori content on radio, and noted the increase in iwi radio, the developing pool of expertise and satisfactory audience levels. He felt that with the financial assistance of the Broadcasting Commission, Mäori radio was established and if funding continued at adequate levels, there was no good reason for holding back the transfer of radio assets to the state-owned enterprise. There was no mainstreaming of Mäori programmes on the Crown's commercial stations in 1991 and there is none today. A National Mäori Radio Service began in May 1996. It is distributed to radio stations for broadcast at peak times in high quality Mäori language. Te Mänghai Paho, the funding agency established to fund the broadcasting and production of Mäori programmes, intends that the National Mäori Radio Service provide broadcasting in the language for 15 hours per day by December 1997.
In the decision under appeal, McGechan J had little of the data relating to Mäori participation on radio in 1996. He noted that public radio did not have a large Mäori audience, particularly among rangatahi (Mäori youth), and that the Crown intended to dispose of its commercial radio assets without retaining power of control. He observed that evidence from parliamentary debates indicated that Treaty issues were thought to have been satisfied, and referred to opportunities given to Mäori for input which were not taken advantage of. He accepted that the Crown had acted without being fully informed of the inadequacy of present funding levels, but concluded that holding the commercial stations back in public ownership was not likely to afford any significant assistance in broadcasting Mäori language. He also expressed serious reservations as to the practicalities of mainstreaming, mentioning the dangers of backlash, the commercial disadvantages for radio stations, and the lack of the time required for a gradual introduction.
The majority thought that, in hindsight, and in view of the government's preferred policy approach of funding incentives, the Crown could have exhibited a greater sense of urgency over the period between 1991 and 1996 and could have done more at an earlier stage to foster iwi radio and Mäori radio networks. However, the current position of Mäori radio was not adequately presented to the High Court. Funding for Mäori broadcasting increased from $14.5 million for 1991/1992 to $18.1 million for 1995/1996 and 1996/1997. The question of mainstreaming is to be addressed by the Joint Mäori/Crown Working Group on Mäori Broadcasting established in May 1996. Advances had been made since 1991 in relation to the Mäori language in education, including increased funding and increased Mäori participation in tertiary education. Positive steps were therefore being taken by the Crown to meet its Treaty obligations.
As to the adequacy of consultation before beginning the sale process, the evidence did not show that there was any failing on the part of the Crown to consult with Mäori within the reciprocal Treaty obligations falling on both the Crown and Mäori to act fairly, reasonably and in good faith to each other. Ministers and officials gave consideration to the Treaty implications affecting the diversity of commercial radio. When Mäori concerns were articulated, Ministers and officials met with Mäori on a number of occasions and responded in writing to any matters raised.
The argument from Mäori in this appeal was in essence that the Crown had a mainstreaming obligation and that the Crown policy of incentive funding could satisfy its Treaty obligations only if: 1) there was a commitment to provide adequate funding and; 2) there was a regulatory mechanism by which broadcasters could be required to broadcast Mäori language programmes in prime time and that mechanism was in place in advance of the transfer of the assets.
While mainstreaming remains untested on commercial stations, there is the experience of National Radio broadcasters, who report that Mäori language broadcasts produce a net ‘turn-off’ of the National Radio audience (although admittedly, the target audience in any mainstreaming is unlikely to coincide with commercial radio audiences). Imposing quotas on broadcasters in Crown ownership, or as a condition of sale would be likely to result in a loss of audiences, advertising revenue, profitability and company value, with significant implications for taxpayers. Regulation would attract opposition from the public and from broadcasters, and audiences would always be free to change channels or turn off the radio. The increased listenership of Mai FM and the development of iwi radio demonstrate a positive choice by listeners and these stations increase support for Mäori language and culture. The provision of funding and incentives could extend to buying time on commercial radio for the broadcast of Mäori content programmes, regardless of the ownership of the stations involved.
Accordingly, an interim order precluding transfer of the Crown's commercial radio interests was not necessary to preserve the position of Mäori pending any substantive hearing of the proceedings.
As to the Crown counter appeal on the application to strike out the Mäori case, the Crown argued that: 1) the relief sought was contrary to the words and intention of the Radio New Zealand Act (No 2) 1995, as well as the structure and shareholding of Radio New Zealand Ltd 2) Insofar as the relief sought aimed to prevent the implementation of an Act of Parliament it sought to prevent action which is legislative in nature 3) the allegation that the assets of Radio New Zealand are held in trust was untenable and is contrary to the terms of the State-owned Enterprises Act 1986, the Radio New Zealand Act 1995 and the Radio New Zealand Act (No 2) 1995; 4) the allegation that the Crown had given an undertaking that may give rise to a course of action and relief in relation to the sale commercial radio assets was untenable.
Mäori in their application had targeted 4 stages in the disposal of commercial radio assets: 1) the policy decision to sell the assets; 2) the contract of sale; 3) the prospective making of an Order in Council bringing the second Radio New Zealand Act into force, thereby taking the commercial radios stations out of the reach of s 9 of the SOE Act 1986 and; (4) the prospective completion of the sale.
Mäori challenged Cabinet's decision that the Government should initiate a negotiated sale by tender process for its commercial radio assets on the basis that because this decision was made before the introduction of a bill into the House it was in no sense part of the parliamentary process and the court was not precluded from reviewing it. Further, this decision was a breach of the Treaty - which could be enforced against the Crown where there is a breach of s9 of the SOE Act 1986, or on administrative law principles. However, the majority rejected these contentions, finding that the authorisation given by Cabinet was a mere preliminary to a future sale, having in itself no legal effect.
Mäori also submitted that it was unlawful for the Crown to enter into any agreement for the sale of the shares (which it had done in April 1996 after McGechan J’s decision) even if in its express terms the agreement was not to be brought to completion before the No 2 Act was in force and the shareholding was freed from the restrictions of the SOE Act. They argued that, although conditional, this was nevertheless a ‘sale or other disposal’ prohibited by s11 of the SOE Act and the shareholding ministers were not entitled to enter into such a transaction until and unless the No 2 Act was brought into force. The majority found much to support this view, however, a conclusion on this submission in favour of Mäori would not prevent the Crown from ‘remaking’ the agreement and settling a sale and purchase of the shares upon the coming into force of the No 2 Act.
As to the Mäori attack on the foreshadowed Order in Council which would bring the No 2 Act into force; the power to promulgate such an order comes under the definition of ‘statutory power’ and is capable of review by the courts. The case of R v Sec of State ex parte Fire Brigades Union  2 AC 513 on a similar issue merely underlines the sensitivity with which courts treat applications to review commencement powers. The provisions of the No 2 Act were straightforward and neither contained nor implied a restriction on the power to commence which would be the basis for intervention by the court. In reality Mäori were attacking the legislation and not the executive decision to bring it into force.
Turning to the attack on actions after the No 2 Act came into force - when s9 of the SOE Act would no longer apply - Mäori arguments that it would be unlawful for the Crown to procure settlement of the contract of sale and that the Crown should be prevented from taking further steps to sell the shares in Radio New Zealand to private interests relied on the Crown's fiduciary obligations under the Treaty, and an alleged failure of the Crown to meet the legitimate expectations of Mäori, failure to have proper regard to Treaty obligations, unreasonableness and substantive unfairness. However, once the No 2 Act was in force, the Crown would not be exercising any statutory power and there would be no legal basis on which the relief sought could be obtained. The commercial transaction could not be reversed in any practical way, so there was no realistic possibility that after the sale there could be granted declaratory relief having the effect of invalidating the sale.
Finally, even if it could be argued that Treaty obligations are directly enforceable in this case (although a clearly contrary ruling was made in Hoani Te Heuheu  AC 308 and accepted in the PC ruling inNZMC v AG  1 NZLR 513, 524) it was not clear how this would lead to any effective relief.
The minority decision (Thomas)
His Honour noted that past tribunal and court decisions have affirmed the obligation to protect Mäori language, yet the language is in a “state of crisis” with only 10,000 active, mostly elderly, speakers. At no time in the history of the country has its survival been more at risk. Should it fail to survive as a living language the Crown’s assurances, no matter how well intentioned, will be perceived as no more than pious rhetoric and the Mäori Language Act “stand impeached ... as a piece of window dressing”. So, while legal principles should not be relaxed in favour of Mäori, the courts should respond with deliberate and measured care to a matter of such importance to Mäori and the nation as a whole - and this applied particularly to the application to strike out the Mäori cause of action.
The majority focused on the adequacy of Crown protective efforts before selling the commercial radio assets. The essence of the Mäori case however appeared to be on measures being put in place before any sale, ie that the Crown, having primary responsibility for ensuring the protection of the Mäori language under the Treaty, failed to carry out the required research into the possibility of mainstreaming prior to the sale.
At the time of the agreement to sell, the shareholding Ministers were subject to the provisions of both s9 and s11 of the SOE Act. In entering into the agreement to sell shares, the Crown was in breach of s 11, irrespective of any breach by the Crown of its obligations under the Treaty. The fact that the contract was conditional upon the Crown promulgating an Order in Council bringing the No 2 Act into force did not remove the illegality. A conditional sale is an agreement to sell and is covered by s 11 of the SOE Act.
After sale, the SOE Act no longer applies and the parties are free to remake their agreement, but the Crown's obligations under the Treaty do not cease to exist in these circumstances. This apparent illegality favoured the granting of the interim order applied for preventing sale, but as the Mäori case focused on a variety of measures being put in place before sale (and not just matters to do with radio) it was apparent that the mainstreaming of the Mäori language on radio may be achieved by means other than the Ministers retaining ownership of the commercial radio assets. While the introduction of regulations to implement mainstreaming on commercial radio would be more difficult if the Crown were not a substantial owner and operator of commercial radio, the Crown's obligations could still be met if the sale proceeded. However, the refusal of interim relief might make it more important that Mäori have the opportunity to pursue their substantive case.
His Honour also upheld the majority finding that the court should not interfere in the Order In Council process bringing the No 2 Act into effect, as the No 2 Act gave no indication that Treaty obligations could be considered by the Governor-General in Council.
Regarding the Crown application to strike out the Mäori case however, there was a need for certainty and caution in a decision to allow the application. A claim cannot be struck out unless the court is satisfied that it is obviously unsustainable or has ‘no realistic prospect of success’ (Te Runanga o Wharekauri Rekohu v AG  2 NZLR 301, at 309). This latter was a factual matter. Striking-out applications proceed on the assumption that the facts pleaded are correct (CCD Distributors v Computer Logic Ltd (1991) 4 PRNZ 35). Yet it had not been shown that Mäori claims as to a lack of adequate consultation and the need to retain commercial assets for mainstreaming were indisputably incorrect. There were indeed few uncontested facts in this case.
The case for mainstreaming was clearly arguable. Acceptance and use of the Mäori language clearly requires the exposure achieved by mainstreaming. Special purpose Mäori radio sources would possibly not achieve this function alone. There was expert evidence that Mäori language could be effectively included in a mainstream programming format and the attention of the bulk of radio listeners still retained. Mainstreaming could therefore not be rejected out of hand.
There were also supporting considerations. First, the court should not sequester to itself knowledge and expertise that it could not have until a full airing of the issues. Second, mainstreaming was arguably crucial to the Crown’s acceptance that Mäori language was the heart of the culture and the court should not limit further discussion of it. Third, if it was accepted that mainstreaming was valid in commercial television, why was it so readily rejected for commercial radio? Fourth, while efforts to mainstream on television had no immediate prospect of success, it was arguable radio assumed more importance. Fifth, it was arguably valid to seek to restrain the sale until television mainstreaming was placed on a better footing. Sixth, an inquiry into the Crown's performance of its duties under the Treaty must be a wide-ranging one given that its obligations arise from a fiduciary-type relationship which cannot be approached with contractual-like precision. Finally, given the critical state of Mäori language, it was arguable that more urgent measures then ever before are required, as compared to if the language were in a healthy state.
It was also arguable that inadequate research and inquiries had been carried out prior to the decision to sell. Mäori had not necessarily lacked diligence in not raising issues. Rather, the Crown, being under a positive duty, should have done more than simply invite responses from a limited number of persons.
The matter of legitimate expectations was also arguable. The Treaty is of fundamental constitutional importance. An assurance by the Crown could raise a legitimate expectation as much as recognised obligations under the Treaty. There could also be such an expectation as to procedure as well as substantive matters. Support for this was to be found in NZMC v AG (the spectrum case)(Unreported 21 September 1990 Heron J CP 785/90) and now very strongly in Minister for Immigration & Ethnic Affairs v Teoh (1995) 128 ALR 353 where it was held that an international instrument ratified but not yet passed into law could found a legitimate expectation. It followed therefore almost ‘automatically’ that the Treaty should found expectations. This does not enforce the Treaty directly in NZ law - rather it makes enforceable an expectation the Crown itself has raised.
As to whether there would be effective relief for Mäori should they succeed, Mäori were entitled to amend their claim, and they should not be precluded from challenging Crown actions simply because they might already have been completed. After the sale, Mäori might still seek declaratory relief that the Crown had not made an adequate commitment to a strategy designed to achieve the preservation of the Mäori language through broadcasting.
Further, the Crown's obligation was an on-going one, which cannot be divorced from past breaches. Even after the completion of the sale of commercial radio Mäori might have a real interest in establishing a past breach, and an issue of a legitimate expectation not yet fulfilled.
Finally, in refusing to agree with the majority and strike out the Mäori application, his Honour admitted to “severe disquiet” with the majority approach, that once the sale had occurred, the cause of action was effectively spent.