July 1996 Contents

Mäori Land Court and Appellate Court

Powers of incorporations

Role of the Land Court

S358A/1993

Te Uranga B2 Incorporation

14 Aotea ACMB 98, 22 May 1996. Deputy CJ Smith (Presiding), Spencer J, Carter J

After obtaining a resolution from shareholders, the incorporation sought an order under s358A(2)/1993 extending its objects to make them unlimited. The lower court made the order but, calling in aid ss2 and 17/1993, imposed a limitation that the incorporation not conduct any activity off the corpus land which might involve the pledging or mortgaging of that land (see Mäori LR October 1995). This limitation was appealed.

Held: the intention of the 1993 Act was to give shareholders the choice to widen objects of existing incorporations. The only prerequisite was a supporting resolution of shareholders under s388A/1993. The MLC’s prime function is to apply the specific provisions before it, having regard to the principles and objectives of ss2 & 17, which will not in every case be appropriate, applicable or even attainable. Section 17, for example, would not apply to successions, and a status change to general land and alienation by sale do not accord with the Preamble and s2 - which even provides that it be applied only “as far as possible”.

Part XIII and s250/1993 give incorporations very wide powers, which may be limited by the owners under s253A/1993 (amendment to the constitution) or s270(6)/1993 (resolution at a general meeting), but not by the court. The reference in s253 to court imposed limitations refers only to limitations in existing orders of incorporation, not the imposition of new limitations.

Since the legislature intended that shareholders could decide on unlimited powers for new incorporations, it also intended that existing incorporations obtain the same result by a resolution of shareholders under S358A. While s358A(2) provides that after receiving a resolution the court “may” make an order redefining the objects of an incorporation, the section is directive and provided there has been a resolution the order should be made unless there are “compelling reasons” not to.

[ed: in their submissions the appellants pointed out that the lower court’s limitation was impractical anyway since if an investment outside the corpus land failed, a security might be taken over it. The limitation would also be difficult to police as it might be hard to ensure that funds obtained under a flexible current account mortgage over the corpus land were used strictly for investments on that land.]

 

S288/1993

In Re Brown and Kairakau 2C5B Block

1995/12, 11 Takitimu ACMB 143, 4 June 1996. Deputy CJ Smith (presiding), Carter J, Savage J

The European appellants sought a partition of 5.8555 hectares of Mäori freehold land in which they held 61.61% of the shares. They were opposed by all the remaining shareholders who were hapü members. It was not disguised that a housing development and sale were intended following any partition order. Since 1989 there had been consistent efforts to partition the interest out.

The lower court dismissed the application on the basis that ss288(2)(b) & (4)/1993 statutorily barred it from making the order - there was not a “sufficient degree of support for the application among the owners” (s288(2)) and the proposed partition was not “necessary to facilitate the effective operation, development and utilisation of the land” (s288(4)).

Savage J: delivering the lengthiest judgment, his Honour found that there was a sufficient degree of support. If support under s288(2) must come from persons other than the applicant then owners with minute holdings could act in a tyrannical manner. There would be a temptation to vest in children or whänau to ensure support, which would lead to further fragmentation and be contrary to the kaupapa of the Act. The fact that the applicants were European had no bearing on the matter - the next case might well involve Mäori opposed by minority European shareholders. S288(2) required support for the application, not the applicant and therefore anticipated that “support” would include the applicant’s support for their own application. Sufficient support is not an arithmetical exercise. The lower court had correctly looked at:

- aggregate shareholding of objector and supporter groups;

- number of objectors to supporters;

- ability of the proposal to stand alone without the applicants support;

- an overview of the support and opposition. This included: 1) the number of owners receiving notice of the application; 2) the owners who had responded; 3) the number of deceased owners not yet succeeded to; 4) support or opposition from hapü non-owners including children of deceased owners.

Section 288(2) also requires consideration of “the nature and importance of the matter”. Here the land had special cultural and historic significance, and the phrase could encompass the lack of support outside of the applicants, a factor which might be critical in this case.

As to s288(4), the lower court found that it should be considered in light of the Preamble and s2 providing for the retention of land in Mäori hands as a taonga tuku iho, and accordingly, rights of non-hapü owners must be subordinated to the rights of hapü owners where there was disagreement. However, while partition must not occur unless there was an element of necessity, and not even the consent of all owners could obviate the requirement to protect rights of future owners, even those yet unborn, the Preamble and s2 are subject to s286 providing that the principal purpose of Part XIV/1993 is rationalisation of land holdings for better utilisation. Retention is not referred to. Partition as a matter of course requires the loss of interests while gaining others in the residue land. S288(4) if read literally would make partitions impossible. A long term lease would always be an alternative to partition, and was possible in this case. A more liberal interpretation is required to prevent the discretion of the court to order a partition being illusory. Tikanga Mäori has ever recognised partition as an important element in the regulation and management of land and the legislature intended that the court have a realistic power to rationalise landholdings and improve access. S288(4), in conjunction with ss(2) & (3) requires the court to carry out an “initial winnowing” of applications to ensure they are acceptable to an appropriate proportion of owners having had sufficient notice and opportunity to discuss it and that the application is reasonably necessary to improve land use. The court should then consider in more depth the issues in s288(1) before finally considering s287(2) (court may refuse to exercise discretion if the principal purpose of the Act would not be achieved). The word “necessary” in s288(4) is stronger than merely desirable or expedient. In other cases (Stirling Pharmaceuticals Ltd v Boots [1991] 2 NZLR 233 and TVNZ v Ombudsman [1992] 1 NZLR 106) it has been found to mean what is “reasonably” necessary or reasonably indispensable for the purposes stated. This necessity must relate to the effective operation, development and utilisation of the land. Matters purely personal to the current owners are not relevant. The existence of debt which the applicant needed to service in this case was therefore not relevant since this was personal and of a transitory nature. Sale of the land was not an operation, development or utilisation of it and therefore could not be called in aid either for or against the proposal.

As to other issues raised in appeal:

- the vote of a meeting of owners directed by the judge under s173(1)/1993 to consider the partition application was not binding on the court. The result was evidence and no more;

- the judge was able to consider letters of opposition received by him, even without the writers formally objecting or appearing, under s69/1993, which allows such material to be admitted, with the weight given to it a matter for the judge;

- even assuming the judge had been correct in his interpretation of s288(2) in preferring rights of hapü owners over non-hapü owners, there was no contravention of the Human Rights Act 1993 since the preference arises from membership of a kin group and not as Mäori per se. Mäori themselves are quite often non-hapü in these situations.

- the judge was not wrong in referring to the Preamble, s2(1) specifically provides that the Preamble may be used in interpretation.

Smith J: the word “facilitate” in s288(4) when defined as “to make easy or promote” meant that the presence of a splinter group hindering development was a matter the court could take into account. “Utilisation” in terms of s288(4) could include sale of the land. Partition to facilitate utilisation by way of sale should not be refused merely because sale appeared contrary to the kaupapa of the Act - it must be considered in the context of the “special code” provided in Part XIV. Also, effective use of the land must be in accordance with any scheme plan adopted by a local authority. Partition might be required here in any event for effective development (only part of the land was suitable for subdivision in terms of the district scheme).

Carter J: while most partition applications are fully in accord with the Act in that owners are seeking to rationalise their holdings, partitions are also contemplated to provide solutions to disputes among owners, and this accords with some provisions of s17. Section 2(2) provides that the court follow the kaupapa of the Act “as far as possible” which contemplates some divergence, and the Act itself contemplates sales and status changes of Mäori land to general land which are contrary to the kaupapa. Failure to accord with ss2 & 17 is not in itself a ground for dismissal of an application. Section 286 means that the kaupapa of the Act is only a “balance issue” in the discretion whether to partition. In the preliminary consideration of ss284(2) & (4) the court should not be unduly restrictive. A high standard of proof should not be required unless a question of compliance is a major issue between the parties. Whether an applicant can support their own application (as s288(2) contemplates) was supported in In re Kau o Te Whenua B2B5B1 Block, Marsh v Robertson 19 Waikato Maniapoto ACMB. If an applicant seeks to partition out shares equivalent to their shareholding there is “sufficient support”.

The judge was wrong to apply the words of s2(2) to s288(4) to deny non-hapü owners a right to partition. Section 286 clearly anticipates that any owners may seek partition. The requirement in s288(4) to consider whether partition is necessary to facilitate use of the land is clearly a preliminary matter since s288(1) requires later consideration of the best overall use and development of the land. The words “to facilitate” meaning “make easier” in ss288(4) qualify the word “necessary”.

The MLC must consider the position of the owners and the present state and use of the land and for this reason matters personal to the owners are relevant. The court determines only “effective use” and not the “most effective use”. Different proposals may therefore exist. Here 2 groups were in opposition as to development proposals. Partition, while depriving opposing owners of the use of part of the land, would allow both sides to pursue their own proposals in the partitioned areas. Whether the applicants intend to sell the land after partition does not prevent the court making a partition order. An alienation is a separate matter for separate consideration. There would be a difference in approach to s288(4) in cases where the land was already subject to development by the owners - the necessity for partition would be a larger issue than in cases such as this where there was no present viable economic use for the land and the applicant had a proposal for development.

Finally, a decision of the lower court in 1991 (under the Mäori Affairs Act 1953) subsequently found to be a nullity by the MAC provided no precedent to support the present application under entirely different legislation. Accordingly, the application should be referred back to the MLC for rehearing.

[ed: this decision is of great importance for the future application of the 1993 Act. The Act, read literally, does prevent partitions and alienations outside hapü groups in all but a few cases. Is it appropriate for the MAC to adopt a pragmatic approach to the interpretation of those sections to achieve what it believes is a reasonable result?  Perhaps the court should have read the Act literally and thrown the matter back to Parliament. However history suggests it would take some years to be properly addressed there. As to the suggestion that partition is connected with tikanga, the evidence, and this case, demonstrate that it is a comparatively recent and alien practice. Responding to complaints in 1916 about its effects, the Native Minister William Herries said that “The modern practice is to partition … according to the value of the land, so that it is possible for those who reside and have their cultivations on the block, and who are not willing to sell, to have legitimately and rightly some portions of their cultivations taken from them, because they are probably cultivating the most valuable land, and cultivating more than they are entitled to have if a division of the block were to take place and each one was given an exact share according to the relative interests by value of the land. Some of these complaints, therefore, are without foundation and cannot be entertained, because that which is complained of is strictly legal. …. That is one of the faults peculiar to landholding in common, and it cannot be helped”. (3 August 1916 NZ Parliamentary Debates vol 177 p738)]

 

Special Aid Fund

Nature of the fund

In Re Dennet and Rotoma No 1 Block Incorporated

Appeal 1995/17, 1 Waiariki ACMB 42, 1 April 1996. Deputy CJ Smith

In this short decision his Honour held that an application for costs from the Mäori Land Court Special Aid Fund in the nature of a claim against the court must fail since it was not shown that the judge whose decision was successfully appealed had acted in excess of jurisdiction. Section 193 of the Summary Proceedings Act 1957 granting exemption to judges when acting within jurisdiction extends to judges of the MLC.

While the fund appears to be a general legal aid fund, when s98/1993, which constitutes it, is considered in the light of its predecessor section - s57A Mäori Affairs Act 1953 (which s98 repeats, although not in precisely the same terms), it was clearly anticipated that it remain as it was under the 1953 legislation, a fund for counsel appointed by the court. And even if were accepted that the fund is a general legal aid one, this application should have come at the commencement rather than the close of proceedings.

[ed: s98/1993 does have some material differences in wording from s57A/1953 which suggest it was intended as a general legal aid fund. This fund in past years has contained very little money.]

 

 

Other Jurisdictions

 

High Court

Valuation of Mäori land

Mangatu Incorporation & Others v Valuer-General

AP2/95 HC Gisborne 19 June 1996. Barker J

This was an appeal against a decision of the Land Valuation Tribunal concerning the valuation of Mäori freehold land (see Mäori LR April 1995 p6). The objectors were incorporations, trustees appointed by the Mäori Land Court and individuals recorded by the MLC as part-owners with shares in particular blocks. The land was assessed for rating purposes by reference to its “land value” as defined in the Valuation of Land Act 1951. The question on appeal was whether the provisions in Te Ture Whenua Mäori Act 1993 diminish the normal valuation of the owner’s estate or interest in the land, and so diminish the value of land for rating purposes.

Held: allowing the appeal would have ramifications for all owners of Mäori freehold land, for local authorities and other rate-payers in the district, in that the burden of rate-paying would be redistributed. The objectors argued before the tribunal that:

- some of the land was of special spiritual significance, and therefore unlikely to be sold;

- if the land were to be offered for sale to a Mäori incorporation, the members would probably not have the resources to buy it at market prices;

- the purpose of the 1993 Act, the stringency of the provisions governing alienations of Mäori freehold land, and the difficulties involved in fulfilling the requirements set out in those provisions, reduced the range of buyers for such land.

His Honour considered the purpose of 1993 Act as set out in the Preamble and s2, the jurisdiction and objectives of the MLC in s17, the MLC’s power to determine the status of any lands under s131, the ability of land owners to alienate interests in Mäori land (ss146-148), and the confirmation powers of the MLC under ss152-154. In Grace v Grace ([1995] 1 NZLR 1, 5) the Court of Appeal confirmed that the policy of the 1993 Act is to promote the retention of Mäori freehold land in the hands of its owners, their whänau and hapü, and in Te Runanganui o te Ika Whenua Inc Society v A G ([1994] 2 NZLR 20, 27) it discussed the permeating influence of the Treaty of Waitangi in New Zealand law. Although the function of the MLC was once to monitor the disposal of Mäori freehold land, it is now directed effectively to “close the gate” on sales outside of whänau and hapü, except in special circumstances, and recent decisions of the MLC demonstrate an attitude that the wishes of a majority of owners are not necessarily decisive. The Mäori Appellate Court in Re Cleave (AP 1995/5, 22 May 1995), upheld the refusal by a MLC judge to grant a status change application from Mäori freehold land to general land, in accordance with s136/1993 because it was not satisfied that the appellant had demonstrated that the land could be managed or utilised more effectively as general land and the “preferred class of alienees” needed to be consulted, who have priority when interests in Mäori freehold land are being sold.

If a different value were to be applied, a reduction of 30%, taking an “intuitive” approach as was taken in Valuer-General v Trustees of Christchurch Racecourse (1995) Valuer’s Journal 53, was not appropriate. The appellants had advanced no particular evidence for such a quantum, as had been advanced in that case.

With regard to the suggestion that the appellants had, strictly speaking, failed to discharge the onus of proof set out in s20(8) VLA 1951, it was better to take a broad approach and the matter should not be determined on such a technicality (The Proprietors of Matauri X v Valuer-General [1981] 2 NZLR 585, 598 followed). If the appellants succeeded in showing an error in law by the tribunal the onus was discharged.

Turning to the relevant case law, in Re Hutt Park and Racecourse Board (1907) 10 GLR 12 it was decided that land could be valued on the basis of the limited powers of disposition a racecourse board possessed (21 year leases only). In Re Johnsonville Town Board (1907) 27 NZLR 36, the court characterised the estate of Mäori owners in that case as less than the fee simple due to their inability to devise their shares. In Valuer-General v Ormsby (1907) 27 NZLR 44 it was found that because Mäori land was then prohibited by law from being sold, the estate of the Mäori owner had a nil value, and accordingly the value of the land should be assessed on the basis of what a purchaser would pay to be put in the same position as the owner. Thomas v Valuer-General [1918] NZLR 164 concerned land leased from a Mäori Land Board which had the power to sell to the Crown with the consent of the owners or to sell to any other person upon the resolution of the owners and the consent of the Governor General. It was there considered that the restriction were transient or personal and should not be taken into account in the valuation. Wanganui Racecourse Trustees & Wanganui Jockey Club v Valuer-General (1982) NZ Valuer 25, 232 concerned land which could not be sold without the consent of the Minister of Lands. A Land Valuation Tribunal purported to follow Hutt Park and allowed a reduction of 50% in the light of the owners’ restricted powers of disposition. However there was no reason offered for the reduction and that case was probably wrongly decided. Valuer-General v Trustees of the Christchurch Racecourse (1995) Valuer’s Journal 53 concerned land held by trustees under a private Act for the purpose of establishing a racecourse. The Reserves Act 1977 also applied to it and there were restrictions on leasing and no power to dispose of the freehold. A reduction of 35% from the normal valuation was there approved on the basis of the restrictions, suggesting that a percentage reduction could be a conventional valuation method (Valuer-General v Treadwell [1969] NZLR 320 was also mentioned on this point). Finally, in Gollan v Randwick Municipal Council (1961) AC 82, land held by trustees for recreational uses was subject to various limitations and the Privy Council held that the fact that there was a lawful impediment to the sale should not be allowed to enter into the assessment of the land’s value. Gollan could not be distinguished on the basis that it referred to the “fee simple” of the land whereas the 1993 Act refers to “the owner’s estate or interest” and their interest is more like a fee tail. The 1993 Act expressly refers to “fee simple” (eg s250(2)).

On the basis of this case law the tribunal had concluded that the constraints in the 1993 Act did not constitute a change in definition in the VLA 1951 and could therefore be disregarded in settling land value. However under the VLA 1951 the value of the land does not depend on an objective assessment of its worth but on the question of what a reasonable purchaser would pay for the owner’s estate in the land. The tribunal relied on the decision in Thomas v Valuer-General as clear authority that where there are restrictions on alienation and the possibility that the land can be sold with any restrictions ending, then the constraints do not affect the valuation. The appellants argued that the Thomas case should be distinguished because:

- the 1993 Act contains statutory directives to retain land within the iwi, while Thomas was decided in the absence of such directives;

Thomas was concerned with the rates liability of a non-Mäori lessee in occupation of the land in question, not with the valuation of the estate of the Mäori owners;

- the 1993 Act contains a special procedure for valuation where land is to be leased to non-Mäori, meaning that Thomas cannot support the general valuation approach contended.

The decisive factors in Thomas were that the trustees were not in reality hampered in their ability to dispose of the land, and that any buyer would receive an absolute fee simple title free from any conditions. Neither of these factors applied in this case. The restriction on alienation in Thomas was that the consent of the Governor General was required and it was implicit in the judgments that the requirements were not seen as onerous. The 1993 Act however must be seen as a significant barrier to the alienation of Mäori land, indicating a legislative direction to “close the gate” on sales. The policy of the Act is clear, and it is reasonable to assume that alienation of Mäori land will present significant practical difficulties in the future. The tribunal placed undue weight on the fact that the 1993 Act provides a mechanism for alienation, saying that there this is no indication that the mechanism will not be able to be employed with ease or regularity. It could not even be said that a buyer of Mäori freehold land will necessarily receive an absolute fee simple. It is foreseeable that some purchasers of Mäori freehold land will remain bound by the land’s status, and will be required to offer a right of first refusal to those within the preferred class of alienees. In addition, in Thomas the restrictions were “personal to the owner”. The restrictions in the 1993 Act could not be described as such, since there is a reasonably clear legislative direction to preserve the status of Mäori land, and some likelihood that the land will continue as Mäori freehold land after sale.

Gollan could also be distinguished on the ground that the restrictions in that case were of a private nature, while the 1993 Act has wide application throughout the country. This appeal was similar to Royal Sydney Golf Club v Federal Commissioner of Taxation (1954) 91 CLR 610, were it was held that planning restrictions imposed by a local ordinance had to be taken into account in assessing land value. While not supporting the view that all restrictions imposed by general statute must be taken into account in land valuations, the effect of the 1993 Act was such that it would be unjust to ignore the reality of the owner’s position and the Act must be taken into account by valuers when fixing land value under the VLA 1951.

As to the amount of the reduction in value, a “guideline reduction” of 30% was not appropriate. Rather, the precise effect of the Act must be determined on a case-by-case basis, taking into account the characteristics of particular pieces of land. The reduction would vary depending on;  (i) the extent of the restrictions, (ii) the likelihood of  the MLC approving a sale and (iii) the nature of the property. Where land has spiritual significance it would be far less likely to be alienated out of Mäori ownership.

Finally however, it should be noted that while this ruling would reduce rates paid on bare Mäori freehold land, it would also reduce compensation in cases of compulsory acquisition, and affect the determination of rentals based on government valuation.

[eg: along with Mäori groups, local authorities will be keenly interested in this decision. One solution for the authorities may be the adoption of a differential rate under the Rating Powers Act.]

 

Court of Appeal

‘Urban Mäori’ appeal

Te Runanga o Muriwhenua & Others v Te Runanganui o Te Upoko o Te Ika Association Inc & Others

CA 155/95, CA 165/95, CA 184/95, 26 June 1996. Richardson P, Gault J, Henry J

The court here granted leave to appeal to the Privy Council in respect of three cases concerning Mäori fishing allocations, on the grounds that (i) the appeals concerned issues of great public importance, (ii) the “indigenous public interest considerations” involved did not render the case unsuitable for submission to the Privy Council (iii) so long as appeals lie to the Privy Council the Court of Appeal should not be “niggardly” in granting leave. The court also considered the delays involved in appeals to the Privy Council, saying that although the first available hearing date is likely to be January 1997, the delay in itself is insufficient justification for refusing the applications. The applications for appeal were made by the Treaty Tribes Coalition, Ngati Porou, Te Runanga o Muriwhenua and four associated parties. Leave to appeal was opposed by the Treaty of Waitangi Fisheries Commission and Urban Mäori Authorities.

 

 

High Court

Ngai Tahu litigation

Citing of the Chief Judge

Tau & Te Runanga O Ngai Tahu Ltd v Durie & Waitangi Tribunal & Another

CP215/95 HC Wellington 16 May 1996. McGechan J

The first defendant here argued that s9(4A) of the Judicature Amendment Act, which provides that, as a matter of form, where an action is against a presiding officer of a tribunal, the tribunal and not the presiding officer should be cited as defendant, should apply and consequently the first defendant should not have been cited in his own name but rather the tribunal should have been cited. The court agreed with this interpretation of the section, finding that the section applied to the Waitangi Tribunal. However it was not a mandatory provision, but a matter of form only, and given that the tribunal had been separately represented to this point, that the proceedings really focused anyway on the conduct of the first defendant, and that the first defendant had acquiesced in his continued citation as a party and had filed documents in response on that basis, an order changing the citation to remove his name should be refused.

The court also dealt with applications that answers to certain interrogatories not be required, including allegations that the first defendant’s wife had been telling other claimants to support the first defendant against Ngai Tahu in this court action. These questions the first defendant described as suspect in motivation. The court ruled the questions oppressive and disallowed them.

 

 

General

 

New Mäori affairs legislation

Various statutes

New Mäori affairs legislation

1996 Nos 32-36. Assent given on 24 June 1996

The following measures were originally introduced as the Mäori Purposes Bill 1996 (See Mäori LR April 1996 p8) but were split out into their constituent parts before the final reading.

 

Mäori Affairs Restructuring Act 1996 (No 32)

Removes the power of Te Puni Kokiri to make advances to Mäori enterprises (by repealing s86 Mäori Affairs Restructuring Act 1989).

 

Mäori Community Development Act 1996 (No 33)

Removes the power of Te Puni Kokiri to appoint honorary community officers (by repealing s5 Mäori Community Development Act 1962).

 

Mäori Trustee Amendment Act 1996 (No 34)

Removes 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).

 

Te Ture Whenua Mäori Amendment Act 1996 (No 35)

- amends s123 to provide that where any particular order has not been registered but its effect has been incorporated into a declaratory consolidated order under s128 then registration of the consolidated order acts as registration of the particular order;

- amends s150 to add the mortgage of a lease or sublease of Mäori freehold land owned by a Mäori incorporation or a trust under Part XII to the list of matters which do not require confirmation by the court;

- provides that a Mäori incorporation must seek a special resolution of shareholders and noting by the registrar if the term of the grant of a forestry right is more than 21 years (ss254(1)(a) and 255(a)-(b) amended);

- provides that the transfer of a lease, sublease, licence or forestry right and the renewal, variation, or assignment of a forestry right are matters requiring confirmation only by the registrar and not the court (s160(1)(ba) amended);

- clarifies that where land is under lease by a Mäori incorporations or by trusts under Part XII, those bodies, and not the Mäori Trustee, are to deal with notice and service requirements for valuations to determine compensation payable for lessee improvements (s193 amended);

- corrects the word ‘mortgagor’ to ‘mortgagee’ in s161 (certain instruments require only noting by the registrar) to make sense of that section.

 

Mäori Trust Boards Amendment Act 1996 (No 36)

This Act amends ss20(3), 26(1), 27, 28, 29, & 32(3) to remove the following restrictions on the operation of the boards:

- that the board may not delegate financial authority over $200 to committees appointed by the board;

- that boards receive the prior consent of the Minister of Mäori Affairs before acquiring or disposing of land or borrowing money or guaranteeing loans;

- that the Minister approve the bank account used for board monies;

- that the no money might be withdrawn from the board account without direct authority from the board the board or a countersigning officer approved by the Minister;

- that the prior approval of the Minister be gained before payments over $200 are made by a board.

Hazardous Substances and New Organisms Act 1996

No 30/1996. Assent given on 10 June 1996

The purpose of this Act is to protect the environment and the health and

safety of the population by "preventing or managing the adverse effects of hazardous substances and new organisms." An Environmental Risk Management Authority is to be

established to determine applications for approval of hazardous substances and new organisms. A hazard classification system is established and powers for the enforcement of the Act are given to various Government departments. All persons exercising powers and functions under the Act must take into account “the relationship of Mäori and their culture and traditions with the ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga” among 5 other matters deemed relevant to the purpose of the Act and also take into account the principles of the Treaty of Waitangi (s8).

 

 

Courts Structure Bill

Privy Council appeals

New Zealand Courts Structure Bill 1996

No 191/1

The bill provides that there shall be no appeals to the Privy Council after 1 July 1997. However, proceedings commenced before the 1 July 1997 in “any New Zealand Court” may use the existing appeals process.

After the 1 July 1997, parties before the Mäori Appellate Court may appeal its judgments only to the Court of Appeal which shall be the “final appellate court of New Zealand”. Parties can do this either with leave of the MAC or, if that is declined, with special leave of the CA.

The CA will be split into criminal and civil parts with divisions in each part consisting of 3 judges - one at least of whom must be a CA judge, but up to two may be judges of the HC nominated by the Chief Justice.

Matters heard by one of these divisions of the CA may be referred to a “full court” ie no less than 5 judges of the CA - although one HC judge may be used in place of one of the CA judges in special circumstances. Referral to the full court occurs only if:

- a majority of one of the divisions agree a matter should be so referred or:

- the appeal is deemed to be of “sufficient importance” to warrant consideration by the full court. The judges of the CA will create a procedure to determine how “sufficient importance” is established.

Where there arises in the CA any “question of fact relating to the interests or rights of Mäori in any land or in any personal property” or any question of “tikanga Mäori” a case may be stated to the MAC. The opinion of the MAC will be given such weight as the CA thinks fit.

S62 Te Ture Whenua Mäori Act 1993 will apply to the composition of the MAC to hear the case stated. Where the HC has already had an opinion from the MAC under s61/1993 and the CA is hearing an appeal from the HC, then no second reference to the MAC is allowed.

CA may appoint expert technical advisers for evidence “relating to scientific, technical, or economic matters, or from any other expert evidence” either on its own motion or on application of any party

[ed: the bill completely ignores concerns raised by the report of the Mäori Committee of the Law Commission on this restructuring (the report was received in September 1995 and is noted in Mäori LR May 1996 p3). It is not expected to be passed before the election.]

 

 

Mäori Trust Boards

Reform proposals

Reform of the Mäori Trust Boards Act 1955. A Discussion Paper

Ministry of Mäori Development 1996

The objectives of reform are to create a legislative framework: 1) allowing existing trust boards to carry out their functions effectively with accountability to beneficiaries rather than the Minister of Mäori Affairs; and 2) which can be used to establish structures to manage tribal activities and provide accountability to beneficiaries of Treaty settlements. The report notes that boards have been changing their businesses in recent years, as a result of the administration of Maccess schemes, entry into the fishing industry and the vesting of Mana Enterprises loan portfolios in the boards. Few boards have kept up to date with their statutory financial reporting requirements. Proposed reforms:

- amend the existing Act to require reporting back to beneficiaries rather than the Minister and give the MLC rather than the Minister the responsibility for matters including appointments to the boards, receipt of audited annual accounts, investigations into allegations of board misconduct and the withholding of annuity payments or removing members from the board if required;

- replace the Act with an Iwi Incorporation Act and appoint an Iwi Commissioner to oversee, over 4 years, the transformation of existing boards into incorporations. The change would include development of a constitution and iwi mandate, and updating of the beneficiary rolls of existing boards and elections. A Crown-Mäori Trust Board Joint Working Group would estimate the cost of the transformation, which the Crown would pay. The intention would be to create debt free entities;

- amend the Act, making provision for boards to develop a board specific charter of their own design for registration with the MLC, which would take on the role proposed under option 2 for the iwi commissioner, to ensure that the charter was developed with the consent of the iwi, and settle any disputes over its adoption;

- dissolve the boards and reconstitute them as trusts or incorporations under general legislation. Allow them to apply through the MLC to be recognised as the authorised voice of iwi under criteria similar to those included in the now repealed Runanga Iwi Act 1990.

13 regional hui will be held in July and August to consider the proposals. Submissions to the Ministry may be made until mid to late September 1996.

[ed: this report, and in particular the proposal for an Iwi Incorporation Act, builds on the Report on the Mason Committee on Mäori Trust Boards of August 1994 which deals in depth with the history of the boards and current concerns about them, and contains submissions about how legal accountability to beneficiaries can be achieved (Ngai Tahu arrangements in this regard, based on contract law, are especially interesting), a strong dissenting minority report from TR Nikora and a model constitution for an iwi incorporation which follows closely the model currently being applied by Ngai Tahu. The member of the committee were Ken Mason, June Jackson, Tama Nikora, and Sid Ashton.]

 

 

Parliamentary Commissioner for the Environment

Historic and cultural heritage protection

Historic and Cultural Heritage Management in New Zealand

June 1996. Office of the Parliamentary Commissioner for the Environment

Acting under s16 Environment Act 1986 (objective to maintain and improve the quality of the environment) the commissioner established a team to review the allocation of powers and functions to public authorities involved in historic and cultural heritage protection and review the effectiveness and suitability of procedures for protection of historic and cultural heritage. Chapter 4 looks specifically at Mäori cultural heritage protection The report also includes case studies on the pa, urupa and middens in the Ngunguru Sandspit in eastern Northland and remnants of early Mäori gardens among the basaltic lava stonefields of the Auckland region (a background report on these case studies is separately available).

The team found that significant losses of historic and cultural heritage are continuing eg 50% of all pa in the Auckland metropolitan area have been modified or destroyed since city development began, with 6% of known archaeological sites in the Auckland region being destroyed between 1979-94. Only 13 places have been registered as waahi tapu under the Historic Places Act 1993. There are 1012 archaeological sites on the HPA register, but no assessment of their importance to Mäori has been undertaken. Nor has there been any assessment of the 49,000 sites on the NZ Archaeological Association files. Waahi tapu are defined in the HPA 1993 but not in the Resource Management Act 1991, so councils have adopted varying approaches to the protection of sites in their regions. It is not known if the Official Information Act might make HPA records of sensitive sites public on request. Confidentiality versus the need to identify sites for protection has already struck problems in  cases like Greensill v Waikato Regional Council W17/95 involving a waahi tapu in Raglan harbour.

The team found:

- a need to develop a national strategy linking all aspects of the management of Mäori heritage and supported with adequate levels of funding from government (the Waitangi Tribunal  having identified a government responsibility for Mäori heritage protection);

- the current range of mechanisms for protection have not been fully utilised and developed;

- the HPA 1993 is deficient in its treatment of Mäori values - containing no reference to the Treaty - and the Mäori Heritage Council lacks sufficient authority to act in decisions affecting Mäori;

- there are potential gaps in archaeological site provisions between the HPA 1993 and the RMA 1991 and also between the HPA 1993 and the Antiquities Act 1975 re disposal of artefacts found at sites;

- there is no guaranteed protection of confidential site information.

Accordingly, the team recommended that the Mäori Heritage Council in association with the Minister and Historic Places Trust Board convene hui to address these issues.

[ed: the report contains, in 8 appendices, detailed information on the current mechanisms and systems for the protection of historical and cultural heritage.]

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