September 1996 Contents

Mäori Policies of the Parties

An interesting mix has emerged. Left leaning parties would abandon the $1 billion fiscal envelope. The Alliance wants to establish a $200 million per annum Treaty Justice Fund for claim settlements. NZ First rejects pan tribal or regional settlements, and would include natural resources such as water, geothermal energy and minerals in settlements. Parties on both sides of the political divide want to give more money to the Waitangi Tribunal - an easy promise to make and keep. Ironically, only ACT’s proposal, to replace the tribunal with a panel of retired judges, would significantly increase the cost of hearing claims. National not surprisingly gives the settlement of grievances a top priority. A settlement for Whakatöhea in the Bay of Plenty has just been announced.

NZ First wants Te Puni Kökiri to continue its present role, monitoring the mainstreaming of services for Mäori, a role fashioned for it by the leader of that party. Labour policy, which under the Lange government had a single direction, now seems to face in two directions, turning TPK into a Mäori Development Commission (with Mäori in charge of appointments), while promoting initiatives to devolve some matters to tribal authorities. The Alliance would establish regional assemblies elected by Mäori (Rohe Pooti). However their role would be limited to ‘facilitating initiatives’ in education, health, and cultural advancement.

All parties make statements about the need to improve services and statistics in the areas of health and education, and some commit fresh sums to that.

A few policy extras. Labour and NZ First have indicated they would look at the problems surrounding Mäori land in multiple ownership. NZ First would also look at the Rating Powers Act. Labour would continue with the current fisheries policy, but would also seek the “return of key historic coastal and harbour fishing grounds to hapü.” The Alliance would provide $20 million towards a national Treaty education council which would operate for 10 years. It would also start work on a constitution based on the Treaty.

Overall, these policies demonstrate that, among the major parties, no one is seriously questioning the present approach to race relations, broadly integrationist, with occasional stabs at pluralism. Apart from the policies of the parties, another interesting proposal is that recently endorsed by the National Mäori Congress, to set up a Mäori caucus after the election. If such a body were established and became pro-active it might provide a powerful alternative source of policy.

 

 

Mäori Land Court and Appellate Court

 

Prescriptive easement

S19/1993

Re Pukaroro No 1 & other blocks and Haami Te Wahiti v Daniel Thomas Spencer Riddiford and Another

Wairarapa MB. Marumaru J

The applicants sought an injunction preventing the respondents, the owners of an adjacent farm, from entering on blocks of Mäori freehold land owned by the applicants. The respondents, whom it was alleged used the blocks for grazing, and for access to the coast for fishing (allegedly charging commercial fishermen fees to cross the land), claimed that they had a prescriptive easement over the blocks before they were brought under the Land Transfer Act (in 1887). The Mäori Trustee and advisory trustees of the blocks supported the application for an injunction.

Held: a prescriptive easement proceeds on the basis that where there has been long enjoyment of a right the courts will strive to uphold the right by presuming it had a lawful origin. The user must be as of right (ie openly and without force, and without permission being required), continuous and in fee simple. A prescriptive easement cannot arise in common law in NZ because it is impossible to show continuous user since 1189 (fixed as the limit of legal memory in England). The doctrine of a fictitious lost modern grant may however apply.

The respondents argued that they had established their station 40 years prior to 1887 and diaries from 1863 indicated at least 20 years of daily activity across the blocks without interruption or any requirement for permission. In 1854 the Crown purchased Mäori land in the district and reserved the present Mäori land blocks in Mäori ownership although certificates of title (in lieu of Crown grants) did not issue until 1887 (backdated to 1884). No right of way was reserved in the titles. The respondent argued that they would have been assumed and protected by English law and Mäori custom. The adjacent farm of the respondents, which was Crown granted in 1877, reserved a right of road which made no sense unless it was assumed that a right of way existed over the Mäori blocks. The only access to the coast was through those blocks. An access road had subsequently been built across the blocks at the respondent’s expense. No one disputed that once land came under the Land Transfer Act (in 1887) no prescriptive right or easement could be acquired over it (and while adverse possession is possible under the Land Transfer Amendment Act 1963 it may not be asserted over Mäori land).

The court will not infer an origin to a prescriptive easement which would involve illegality. Prior to 1887 when titles to the blocks were issued, they were held under Mäori custom. The Treaty of Waitangi reserved to the Crown the right of pre-emption which was, apart from a brief period in 1844, regularly affirmed in the Land Claims Ordinance 1841, The Native Land Purchase Ordinance 1846, the Constitution Act 1852, the Native Lands Act 1865, the Native Land Act 1873, the Native Land Administration Act 1886, the Native Lands Frauds Prevention Act 1881 Amendment 1888 and the Native Land Court Act 1894. This right included any interest in Mäori land. Consequently, the prescriptive easement claimed was not ‘as of right’ since the Land Claims Ordinance 1841 and the Native Land Purchase Ordinance 1846 were operative in the period when the prescriptive easement was said to arise. Further, for the law to have allowed such claims by adverse possession  in the past would possibly have seen huge tracts of Mäori land claimed by European settlers, contrary to the Treaty of Waitangi and the Crown’s pre-emptive right. The Constitution Act 1852 and the Native Lands Act 1865 were operative in the 20 year period from 1863 when station diaries were kept. The respondent’s had no more than a licence which was now clearly revoked. An injunction should accordingly be granted.

 

 

Sales of land by trusts

Ss 137 & 228/1993

In Re Waimana 251 & 252 and Rangatira E block

Waiariki MB 22 August 1996 Savage J

This case concerned two ahu whenua trusts which had obtained orders changing the status of Mäori freehold land vested in them to General land to allow for sales to rationalise their landholdings. The first trust was acting on an order under s137/1993, ss(1)(d) of which requires that no such order be made unless there is an intention to acquire further land, and ss(2) of which allows for orders requiring the proceeds of any sale to be applied to the acquisition of other land or held in trust for that purpose.

The first trust had made several sales when the District Land Registrar queried whether it was forbidden from selling the land by s228/1993, which forbids sales of "any land" vested in trustees of a trust constituted under the 1993 Act unless 75% of the beneficial owners give prior consent.

Held: section 228 is open to 3 possible attacks. First, since these trusts were constituted under s438/1953 and not the 1993 Act (s354/1993 merely provides for the continuation of s438 trusts as ahu whenua trusts but does not deem them to be such trusts), s228 might not apply. Second, "any land" might refer only to Mäori freehold and not General land vested in trusts. Finally, s137 might be regarded as an exception to s228.

If s137 were interpreted as overruling s228 then the Act would lack coherence and self consistency in this area (followed Northland Milk Vendors Association [1988] 1 NZLR 530 and In Re Kawaha 3E 236 Rotorua MB 123). A drafting error had clearly subverted the intent of the Act. Comment from Hansard about the intention behind s137 confirmed that it was intended as an exception to s228.

Because the first trust was about to sell all of its land, and would cease to exist if it did not own land, there would be an order under s137(2) that the net proceeds of any sale were to be expended on land acquisition according to a land acquisition plan approved by the court.

The orders rationalising land holding in the case of the second trust were made under the 1953 Act. Consequently the same reasoning could not apply. However the sales were to effect minor boundary adjustments and came within the terms of an exception provided in s228(2) for such cases. As to whether in other cases trusts with rationalising orders under the 1953 Act might run foul of s228, his Honour commented that he would be reluctant to find that a s438 trust was not a trust to which all of Part XXII/1993 applied. To hold otherwise would deprive s438 trusts of the benefits of s218/1993 (Mäori community purposes) and s221/1993 (power to amalgamate trusts).  Also, it was difficult to see how the words "any land" in s228 could be restricted to Mäori freehold land. In general, trustees of ahu whenua trusts need to recognise their limited powers of sale and seek legal advice before embarking on sales schemes, to avoid being trapped between the restrictions in s228 and obligations to prospective purchasers.

 

 

Occupation licence

Whether a house is a fixture

S18(1)(a)&(d)/1993

In Re Waimanoni 1B3B2A

19 Kaitaia MB 227, 26 August 1996. Deputy CJ Smith

Trustees of a s438 trust granted a 30 year occupation licence to an individual for the purpose of erecting a house. The licence was noted by the registrar of the MLC under s233/1953. The licensee and the trustees entered into an tripartite agreement with Housing Corporation to allow the licensee to borrow money and erect a house. The agreement provided that should the licensee default on his repayments, or should he or the trustees sever the house from the land, or end the occupation licence, the licensee would be required to deliver up possession of the house and the corporation could "sever and remove" the house from the land.

The licensee defaulted in his repayments. The corporation sought a declaration under s18(1)(a)/1993 (court may determine claims to ownership of any interests in Mäori freehold land) that the house was a chattel and could be removed under the tripartite agreement. The trustees, among other matters, argued that the house was a fixture attached to the land, making the proposed removal an alienation requiring confirmation under the 1993 Act. They also argued that the corporation had obtained only an equitable right to a part of the land, ie the house, and no right to remove it.

Held: the corporation's application in fact came under s18(1)(d) (court may determine proceedings in contract relating to Mäori freehold land). While on a visual inspection the house appeared to be a fixture in terms of criteria set out in Lockwood Buildings Ltd v Trust Bank Canterbury Ltd (1995) 1 NZLR 22, it was also held in that case that parties could regulate such an issue by contract as they saw fit. The intention of the tripartite agreement was clearly that the house remain a chattel, particularly when regard was had to the right of the corporation to remove the house if the licensee was in default. The MLC had a wide jurisdiction to determine such issues under s30(1)/1953 (considered in Kotuku B1 Kopa v Kopa (1983) 62 Whangarei MB 182), and this continues under s18(1)(a)/1993, but it was not necessary to draw on that jurisdiction in this case because of the plain intent of the tripartite agreement.

As to the argument that the corporation had only an equitable interest in the land and not a right to remove the house (such an interest was found in Leasing Corporation Pty v CSB Prudential First Nominees Ltd (1962) VR 429), no such equitable right was intended here. The agreement clearly restricted the corporation's interest to removal of the house and gave no other rights. It also contemplated that the trustees provide a right of entry to the corporation to allow the house to be removed. Nor was the corporation's interest under the deed a mortgage and subject to Part VII of the Property Law Act 1952. Nor was the removal of the house an alienation of an interest in land under the 1993 Act since it was agreed that the house remain a chattel. In any event, past determinations under s30(1)(a)/1953 and s18(1)(a)/1993 as to the ownership of dwellings have been declaratory and do not constitute an alienation.

 

 

Waitangi Tribunal

Changes to Tribunal membership

16 September 1996. Office of Minister of Mäori Affairs

Former District Court judges Richard Kearney and Dame Augusta Wallace and the past president of the Mäori Women’s Welfare League and Human Rights Commissioner Areta Koopu have been appointed to the tribunal for 3 years. Keita Walker and Brian Corban have been reappointed for 3 years, Sir John Ingram and Pamela Ringwood for 1 year. Professor Gordon Orr, Georgina Te Heuheu and Joanne Morris have not being reappointed.

[ed: Georgina Te Heuheu also leaves the board of the Museum of NZ, and has been replaced by Sir Robert Mahuta. Former tribunal member and district court judge, Des Sullivan, has died.]

 

 

Other Jurisdictions

 

Planning Tribunal

TV transmitter site

Cultural values

Tainui Hapü & Others v Waikato District Council & TV3 Network Services Ltd

A75/96 12 August 1996 Sheppard J, PA Catchpole, Dr AH Hackett

The Waikato District Council granted a resource consent for the erection of a 13 metre single pole television translator on an area of land known as Horea. The appellants argued that the site was of special cultural significance to them, being ancestral land which contained waahi tapu.

Held: under s104(1) Resource Management Act 1991 the installation of the translator would have no significant effects on the environment or on amenity values, and would cause much less disturbance to the ground than the farming activities normally conducted there. The consent had been granted subject to the conditions that an iwi representative be on site and that any recovered material would be removed in accordance with proper protocol.

The proposed district plan provided that the council would: (i) have regard to the cultural values and history of the coast; (ii) have particular regard to Mäori values and archaeological sites; (iii) promote respect for, protect and preserve waahi tapu; (iv) recognise the spiritual and cultural significance of particular land-forms to the tangata whenua; (v) ensure tangata whenua participated in the sustainable management of resources in keeping with s8 RMA; (vi) protect areas of cultural heritage; and (vii) ensure that no work on any Mäori feature or waahi tapu listed on planning maps be commenced without council consent.

While the applicants (TV3) had gone to considerable trouble to minimise the risk of disturbing any buried physical remains during installation of the translator, other aspects of the relationship of Mäori with the land should have been be taken into account. The applicant had considered a number of potential alternative sites, none of which were capable of providing the same quality of reception without incurring extra expense, but that inquiry had been conducted with reference only to cost and effectiveness and without regard to the relationship of Mäori with their ancestral land and waahi tapu. Admittedly, the tangata whenua had bluntly refused to discuss the site, it was not identified in the district plan as a waahi tapu area and farming activities more disruptive than the proposed installation had taken place on the land in the past.

Section 6 RMA requires recognition of spiritual aspects of Mäori relationships to the land. The land here was ancestral land, generally contained sites of cultural and spiritual significance, and was closely associated with deep respect for ancestors, so that any disturbance of the ground would be regarded as a desecration. The translator offered benefits to the social and cultural well-being of TV viewers, but the same benefits would not occur for the tangata whenua and granting consent would not respond to the strong direction of s6 of the RMA. Although that direction was not necessarily decisive in the context of conflicting considerations, s6 was reinforced in this case by the detailed provisions in the proposed district plan. Also, there were other possible translator sites which could be nearly as effective, even though involving greater costs. Consequently, the appeal should be allowed.  In light of the fact that the tangata whenua had not sought to have Horea identified in the District Plan and had rejected the applicants’ attempts at consultation, an order for payment of the appellants’ costs was not appropriate.

 

 

In Parliament

 

New Fisheries Act

Fisheries Act 1996

No 88. Assent 13 August 1996

The Act provides that all persons exercising power under it act in a manner consistent with New Zealand’s international obligations to fishing and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (s5). The select committee rejected proposals that Treaty of Waitangi obligations be more directly referred to, arguing that these were embodied anyway in the 1992 Settlement Act (Primary Production Committee Report). The committee also noted that taiapure-local fisheries provisions remain unchanged, but will be fully revised after the work of the Customary Fisheries Working Group is complete. Mäori values with regard to fisheries are catered for in provisions requiring consultation, with particular emphasis being placed on kaitiakitanga.

Section 44 requires that 20% of the quota of all new fishing stocks brought under the Quota Management System pass to the Treaty of Waitangi Fisheries Commission, as promised under the 1992 fisheries settlement. However if provisional catch histories of existing fishermen would account for over 80% of the fish stock which is to be allocated, then a special Act will be required to bring that species under the QMS (s39).

[ed: apart from technical errors which have crept in in the rush to pass this legislation, the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) is concerned that the requirement for special legislation for each new species coming under the QMS will in practice prevent them ever coming under the scheme. Te Reo O Te Tini A Tangaroa Aug 1996]

 

 

Teacher registration

Kura Kaupapa exemption

Education Amendment Act 1996

No 98. 2 September 1996

This amendment provides for compulsory teacher registration but exempts any person employed to teach in a school designated as Kura Kaupapa Mäori under s155 Education Act 1989 (new ss 120A(3) & 120B(5)).

 

 

Lake Taupo fishing

Registration of old consolidated orders

Law Reform (Miscellaneous Provisions) Bill (No 5) 1996

Sections 202-203 amend s14 of the Mäori Land Amendment and Mäori Land Claims Adjustment Act 1926 to provide that the Minister of Conservation, with the concurrence of the Tuwharetoa Mäori Trust Board, may by Gazette notice fix the forms, classes, scope, effect and fees for fishing licences in the Taupo District fishery, with the notice having the effect of a regulation.

Sections 204-205 amend s123 Te Ture Whenua Mäori Act 1993 to provide that consolidated orders made under Mäori land legislation prior to 1993 can be registered against the title of Mäori freehold land. The 1993 Act currently provides that only consolidated orders made under the 1993 Act can be so registered.

 

 

Waitutu block bill

Implementation of settlement

Waitutu Block Settlement Bill 1996

No 217. Introduced 28 August 1996

The Bill gives effect to a deed of settlement and deed of covenant between the Proprietors of Waitutu Incorporated (a Mäori incorporation) and the Crown signed in March 1996 concerning the Waitutu Block, an area of virgin indigenous forest close to Fiordland National Park.

The Bill provides that while the incorporation continues as the registered proprietor of the land it will be managed by the Crown under the National Parks Act 1980 as if it were a national park, but reserving to the incorporation rights to hunt deer, fish, gather traditional food and medicines and build a helicopter landing site and accommodation hut (cl5, and deed cl3). The incorporation will be consulted by the Crown in the exercise of its powers under the National Parks Act 1980 or the Conservation Act 1987 in respect of the administration of the land, the development or review of management plans or strategies, and any acts which may interfere with waahi tapu areas (ss7, 8. The deed requires the Crown to act in accordance with the principles of the Treaty of Waitangi cl10(v)). The Crown’s duty to consult will be discharged by consultation with the management committee of the incorporation (s9). The incorporation will receive financial and other recompense (cutting rights on Crown lands) for foregoing contracts for the removal and sale of virgin rimu and other indigenous timber, and no indigenous trees or vegetation may be removed from the land. The Waitangi Tribunal is prevented from making further inquiry into 2 claims “attributable” to the incorporation (part Wai 27 and Wai 158) or any future claims to similar effect (s12). The Crown has first right of refusal should the incorporation seek to dispose of any interest in the block (deed cl 21). If the Crown purchases any land in the block it will become national park land and this bill would cease to apply (cl 6).

 

 

Education

Mäori Education Authority proposal

Inquiry Into Mäori Education

Fourth Interim Report of the Mäori Affairs Committee (Kura Kaupapa Mäori) 1995

This report concentrated on kura kaupapa  Mäori and Whare Kura and questioned the current policy permitting only 5 kura to be established annually in the face of high demand. It also addressed teacher shortages, finding that the government has not acted to date with sufficient urgency on the issue. An integrated approach to all education issues was again stressed, possibly under a Mäori Education Authority.

[ed: the Teachers Union has endorsed the proposal for a separate Mäori Education Authority.]

 

 

General

 

Constitutional relevance of the Treaty

Constitutional Law

Philip Joseph New Zealand Recent Law Review, Part I 1996

Joseph comments on the precise constitutional nature of the apology by the Crown in the Waikato Raupatu Claims Settlement Act and discusses the potential of the Treaty of Waitangi to be used as a constitutional basis for the judicial review of administrative decisions, which he suggests was foreshadowed in Ngai Tahu Mäori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (the ‘Whale-watch’ case, see Mäori LR September 1995 p3). Section 4 Conservation Act 1987 required that the Act be interpreted to give effect to the principles of the Treaty, so the decision was not a departure from established principles, however, factors controlling the exercise of statutory discretion need not be enforceable or have legal standing, for example some international instruments and acts of state which are so manifestly important that no reasonable Minister could fail to take them into account (Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) and Tavita v Minister of Immigration [1994] 2 NZLR 257).  The Whale-watch case indicates that so long as the application of Treaty principles is consistent with the empowering Act, the Crown is under a duty actively to protect Mäori interests. Such a constitutional ground of review does not depend on the statutory incorporation of Treaty principles, the context imports them. Thus the obstacle of Te Heuheu Tukino is avoided. Joseph anticipates further extensions of the role of the Treaty in administrative law.

[ed: while there are definite signs that the courts may follow this logic, there are as yet no definite statements that Te Heuheu Tukino will be so readily avoided, and the Whale-watch case arguably is more conservative on this aspect than Joseph allows.]

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