October 1996 Contents

The Election

"Mäori political life has been presented over the years as a contest between National and Labour. I’ve never thought it as being that. I’ve thought that it’s much more complex and subtle. It’s been an effort whereby Mäori choose their representatives to work in an alien political environment … And now that we stand a chance of getting maybe 13 or 14 Mäori members, is there a possibility now that that constitutional, political environment can be moulded to become much more friendly towards the aspirations of Mäori? …. The sheer numbers … create the possibility of systemic change” (Sir Paul Reeves, Radio NZ Whenua 13 October 1996).

 

Treaty claim settlements

The next issue of the Review will consider in detail and compare the deeds of settlement for the Ngäi Tahu, Whakatohea and Mataatua Wharenui claims. The Ngäi Tahu deed was still not publicly available at the time this issue went to press.

 

 

The new format

From this month, the Review appears in a new format enabling more material to be included in each issue.

 

 

Mäori Land Court and Appellate Court

In Re Karokaro A2B1

80 Waikato Minute Book 110 1 July 1996 Carter J

Te Puni Kökiri (TPK) on behalf of the owners of Karokaro A2B1, applied under  s20 Te Ture Whenua Mäori Act 1993 to recover possession of the block from the former lessees who remained in possession after the expiry of their lease. The lease was a standard one under Part II of the Mäori Affairs Act 1953 and provided on expiry for compensation equivalent to 75% of the value of improvements to the land. Several weeks before expiry, TPK informed the lessees that there had been breaches of the covenants of the lease for which damages would be sought.  Immediately following expiry, TPK forwarded a certificate of valuation assessing compensation for improvements and also estimating the current market rental of the block.  TPK also suggested that a means of covering the compensation would be to negotiate a further period of lease at market value. The lessees objected to the valuation figure, which was subsequently revised and increased by TPK, who sent the new assessment of value and a claim for damages to the lessees, by now 18 months after the date on which the lease had expired. TPK included in that correspondence an assessment of payment (based on current market value) for use and occupation of the property in the interim period since the expiry and including an additional interim period to allow the respondents to conclude the current dairy season. In that communication TPK also suggested that the lessees might wish to negotiate a fresh period of lease. They did not reply, and after several weeks TPK advised them that they would be required to vacate the property at the end of the additional interim period. The lessees did not vacate the property and rejected an offer from TPK to extend the period of occupancy for another year, responding with a counter-offer.  TPK lodged an application for the recovery of the land.

The lessees argued that TPK and the owners had not complied with the terms of the lease and had verbally and/or in writing extended the term of the lease, that they (the lessees) could not be said to be in arrears, because substantial compensation owed to them by the owners remained outstanding, that it was fair and equitable for the court to grant relief against forfeiture, and that the court should grant relief against forfeiture under s21/1993 and a further renewal of the lease under s22/1993. They also filed a counterclaim for compensation for improvements to the property.

Held: s22/1993 allows the court to renew a lease in accordance with s120 Property Law Act 1952 (PLA), where a lease contains a right of renewal, and a lessor fails to grant such a renewal, but it was not relevant here as no right of renewal was argued. Under s21/1993 the court may grant relief against forfeiture under ss118-119 PLA, which apply in the case of a lessor re-entering or terminating an existing lease for breaches of covenant or non-payment of rent. However s21 did not apply in the present case, as TPK sought not to exercise a right of re-entry or forfeiture for breach or non-payment, but to recover the possession of land which was said to be occupied now by tenants at will. The former lessees likewise had argued that TPK by their correspondence had created a yearly tenancy which had not been terminated and that they were therefore not tenants at will - the respondent’s submission that a new yearly tenancy was established, if upheld, would be a defence to the application for recovery of possession. If the submission was rejected, there would be no lease in existence to which s21 could be said to apply. In either case the court could not provide relief against forfeiture pursuant to s21.

As to whether the applicants had by their correspondence extended the lease or created a yearly tenancy, previous cases quoted by the former lessees (Re Register [1958] NZLR 1050 and Innercity Businessman’s Club Ltd v James Kirkpatrick Ltd [1975] 2 NZLR 636) related to existing leases, whereas here the original lease had expired.

Turning to the suggestion that s105 PLA (yearly tenancy not created by mere payment of rent) might assist the respondent’s case, Wellington Rugby Football Union (Inc) v Nathan and Anor [1946] NZLR 725, was distinguishable in that there the conduct and express words of the parties before expiry had created a yearly tenancy, whereas here no arrangements had been made prior to the expiry of the lease which provided for the respondent’s continued occupancy. Accordingly the respondents here were tenants in possession at will in accordance with s105 PLA.

Beattie v Lyttelton Borough Council [1966] NZLR 65 established that s105 creates a rebuttable presumption, the onus of displacing it resting on the contesting party (here the respondents). Their argument that a single demand for rent could evidence a yearly tenancy was not convincing. Further, the actions of TPK had not amounted to demands for rent, instead they had merely on several occasions sought payment for use and occupation as part of on-going negotiations, with no reference to “rent” or to “yearly tenancy”.

There was no evidence of any attempt by the parties to reach agreement over the term of the possession or notice of occupancy. In the absence of such agreement the respondents became tenants at will subject to a month’s notice in accordance with s105 PLA. The onus for re-negotiation of terms of tenure rested with the respondents.

As to whether the Court should not make an order for possession under s20/1993 while the respondents’ counterclaim for compensation under the expired lease remained unsettled, there was nothing in that lease which entitled the respondents to remain in possession until compensation had been received, and no general rule of law or principle to that effect. Logically the valuation of improvements would take place after the expiry of the lease and the respondents could not reasonably expect to receive compensation before vacating the property.

As to concerns about the impracticality of vacating the property prior to the end of a dairy season, the respondents had taken a calculated risk in remaining in possession in defiance of TPK’s request that they vacate the property, and on the issuing of these proceedings, and the court should not therefore have regard to their present predicament.

 

 

Re Kahakaharoa No 1

97 Hauraki MB 247 3 October 1996 Carter J

This was an application for confirmation of a sale of general land held by a s438/1953 (now ahu whenua) trust.  Section 228/1993 requires that every alienation of land by way of sale by such a trust must be consented to by ¾ of the owners (or 75% on a shareholding basis) and confirmed by the MLC. The section makes no distinction between Mäori land and general land.  The District Land Registrar refused to register the transfer giving effect to the sale until the sale had been confirmed by the MLC.

Held: the application of s228(3) requirements to general land creates anomalies:

- in normal circumstances the 1993 Act places no restrictions on the sale of general land owned by Mäori;

- s137 allows trustees to apply to have the status of Mäori land changed to general land on grounds that the quorum and owner consent requirements needed to alienate the land are impractical (s137(1)(e)). Yet s228 effectively nullifies the intent of s137 by enforcing owner consent requirements on proposed sales of all trust land;

- s228(3) requires confirmation of such sales, although the confirmation provisions of Part VIII only apply to alienations of Mäori freehold land (s151) and there is no requirement or provision for the confirmation of alienations of general land;

- there was also the practical problem that the court (as in this case) may have no record of the beneficial owners of general land held by an ahu whenua trust and therefore has no real power to monitor whether consent has been received from 75% of the beneficial owners.

There is a further problem in s355, which allows for the completion of sales and subdivisions of Mäori freehold land without reference to any of the restrictions of the 1993 Act, where unconditional agreements for sale and consents to subdivision have been obtained prior to the commencement of the 1993 Act. But while s355 allows that a subdivision may be completed, there is no provision for the sale of the subdivided sections.

In the present case the 75% consent had now been obtained, and an order could be made under s153 confirming the transfer, however His Honour directed that a copy of the decision be referred to Te Puni Kökiri as the body responsible for amendments to the 1993 Act.

 

 

Re Hauturu East 15, 16 and 18

111 Otorohanga MB 2, 30 September 1996. Carter J

As part of the settlement of the claim to the Waitangi Tribunal concerning the Waitomo and adjoining lands (Wai 51), it was agreed to vest 3 blocks of land in certain Mäori groups, with 2 of the blocks, forming the local domain, subsequently to become a Mäori reservation for the benefit of all New Zealanders and to continue to be used as a domain, but managed by trustees drawn from the Mäori owners, the Waitomo District Council and the local community. The Minister of Lands applied under s134/1993 for the MLC to vest the blocks in the Mäori groups. At an initial hearing objections were made by community representatives concerned that community rights would not be adequately protected under the proposed arrangements. The MLC asked for further background before deciding on the application.

Held: evidence showed that the Waitomo District Council, as representative of the local community, had been a party to the agreement to vest the blocks in Mäori groups. As a first step, the reserve order over the local domain had been cancelled, and the council, as administering body, had not exercised a right of objection, on the understanding that the agreement would be put into effect. However, the Crown had subsequently determined that one of the blocks must be vested in a different Mäori group from that named in the earlier agreement, and the council had not been informed of this change. Both the council and community representatives now opposed the s134 application in relation to one of the blocks forming the local domain.

Section 134 provides a means for Crown land to be vested in persons nominated by the Crown. Therefore only the Crown and the Mäori owners were parties to the application. The court could only make or refuse the order being sought, and could not vary it without the consent of the Crown. The council and community representatives had no registrable interest in the land, and their objections could not be taken into account. The council might of course have other legal remedies against the Crown, particularly with regard to its waiver of a right of objection when the reserve order was cancelled.

 

 

Waitangi Tribunal

 

Noteworthy new claims

Wai 621: Rangi Paku on behalf of the Wairoa-Waikaremoana Mäori Trust Board complains about the construction of hydro electric works on the lake and seeks their return to the claimants’ ownership. Filed 12 September 1996

Wai 625: Denise Katete Egen and 4 other students at the Unitec Institute of Technology allege that Crown education policies have denied Mäori equal access and equity of education in courses in which they are enrolled and shown favour to non-Mäori over Mäori in resource re-allocation. EFTs (equivalent full-time) requirements have not taken into account the disproportionate number of Mäori students. They seek a halt to current restructuring, sufficient resources to retain staff, and EFTs criteria to be investigated. Filed 23 August 1996

Wai 631: Tanenuiarangi Te Awe Awe on behalf of Rangitane Ki Manawatu seek in part investigation of present or past Crown ownership of lands including Tangimoana State Forest, Massey University and its farming blocks, Palmerston North Polytechnic, Linton Army Camp, Ruahine State Forest, Mangahao Dam and power station. Filed 16 August 1996.

Wai 632: Garry Hooker and Alex Nathan on behalf Ngäti Whiu and Ngäti Kawa hapü of Te Roroa claim that 10,000 acres south of Dargaville (Te Kopuru and Aratapu blocks) was wrongly obtained by the Crown in 1842 and seek return of Crown land remaining in the area and compensation for the remainder. Filed 8 August 1996

 

Claims withdrawn

Wai 46:  all that part of the claim concerning Mataatua Wharenui, which is dealt with in a deed of settlement dated 30 August 1996 (memorandum 2 October 1996).

Wai 328: whale watching claim (direction 6 September 1996).

 

Boundary dispute

To make progress on overlapping claims in negotiations over the settlement of the Te Roroa (Wai 38) claim, the Crown has requested that claimants seek a decision of the Mäori Appellate Court on boundary issues under s6A(1) Treaty of Waitangi Act 1975. In a memorandum on the issue (9 October 1996) Deputy Chief Judge Smith noted that because the Te Roroa Report 1992 refers to Te Roroa as a border people sandwiched between larger tribes it would be appropriate for the court not to fix definite boundaries but merely determine the area over which they traditionally exercised use and occupation rights - although of course the court must follow the statute (but he noted a memo of the Chief Judge of December 1993 which recommends essentially this course for Bay of Plenty claims). He also asked for submissions on tribunal jurisdiction, specifically:

- s6A/1975 allows referrals of boundary issues by the tribunal - does this mean only the tribunal sitting on the particular claim, or might the Chief Judge make such referrals?

- in order to be referred, a boundaries issue must arise in proceedings before the tribunal. Was this the case here, or had the issue on arisen after proceedings ie during the settlement negotiations?

 

Remedies Hearing

The tribunal has held a remedies hearing over the Te Whanganui-a-Orotu claim and report (the report was released in June 1995 see Mäori LR July 1995 p2). While the tribunal report from that hearing is pending, in a memorandum (4 September 1996) the tribunal has indicated that it will be recommending that the Crown retain a 50% shareholding in the Hawke's Bay Airport Authority until all aspects of the wider claim are finalised. The notice was given because of indications at the hearing that the Crown may be considering a sale of its shareholding in the airport authority.

 

Tribunal procedure

The tribunal has issued a practice note, Casebook Method, which establishes a procedure for bringing claims into the tribunal hearing programme aimed at improving efficiency “by ensuring that all claims are adequately researched in advance of the commencement of hearings.” The note sets out how tribunal officials and members will compile casebooks. The lack of a casebook can be a reason for deferring a hearing of claims, although urgent hearings will not require a casebook. The first casebook, for the Mohaka ki Ahuriri claims, has been circulated.

[ed: this note reiterates a message of earlier practice notes that, ideally, hearings should not commence until all written evidence has been filed. This note formalises that desire by requiring materials to be compiled in a particular way. However, the note acknowledges that many documents eg Crown research in response to claims, will be filed after hearings commence, and that there is little that can practically be done about that. So how much difference the note will make in practice is uncertain. It will be most applicable to situations where claims in a region are grouped and heard together.]

 

 

Other courts and tribunals

 

Te Iwi Moriori Trust Board V The Treaty Of Waitangi Fisheries Commission & The Treaty Tribes Coalition

Court of Appeal. CA 238/96, 14 October 1996. Gault J, Thomas J, Blanchard J

The Mäori Fisheries Act ss5 & 8 obliges the Treaty of Waitangi Fisheries Commission to facilitate the entry of Mäori into the business and activity of fishing, and to grant assistance for that purpose, “having regard to Mäori custom, economic and social considerations”.

Pending a final allocation to iwi of pre-Sealord settlement assets, the commission had been offering to iwi annual leases of fishing quota at discounted rates. Since 1993, the formula used to allocate leases of quota took account both of iwi population and, in a very rough manner, the coastline of each iwi. For the 1996/97 fishing year (commencing 1 October 1996) the commission proposed to alter the formula to take more accurate account of the coastline length of each iwi. The Chatham Islands would lose by this formula $342,000 worth of quota. In the High Court they sought an interim order to protect their position pending a substantive hearing of review proceedings. In a judgment on 7 October (CP255/96 HC Wellington) Goddard J found a prima facie case that the commission had failed in its revised formula to have regard to the special economic and social circumstances of the Chatham Islands, and therefore had failed to have regard to a mandatory consideration. However, she refused an interim order because it would be difficult to alter the Chatham allocation without affecting all other iwi, the trust board (representing Moriori people of the Chatham Islands) could not give an undertaking as to damages, and since each years leasing was on a “without prejudice” basis, there was no position for the board which needed to be protected, either in terms of trust board entitlement to leased quota in future years, or entitlement in the final allocation of the pre-settlement assets. The board appealed.

Held: the commission case, argued on the basis of Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 had been given “perhaps with a degree of complacency”, encouraged by its success in 4 previous court challenges to the annual leasing regime. However, considerations had changed with the extension of the timeframe for the final allocation of fishing assets.

While it was understandable that the annual leasing rounds were seen as an interim measure, with any inequities being adjusted in the final allocation (as was recognised in Te Runanga o Muriwhenua [1996] 3 NZLR 10, 20), the commission could not disregard present statutory obligations simply because they might be later discharged, nor had it been shown how it might be reasonably practical later to remedy present inequities, and new inequities should not be created by present proposals.

The commission had not had regard to social and economic factors in its revised formula for the Chatham Islands. Had it done so “it could reasonably have been expected that there would have been advanced grounds upon which the reduction of assistance to the people of the Chathams Islands, as against other groups of Mäori, for the 1996/1997 year is justified.” There was prima facie a failure to have regard to mandatory considerations. Further, there was evidence that the reduction of quota would have adverse social and economic effects on people of the Chatham Islands.

The commission argument that it was impossible to give effect to social and economic considerations in an interim arrangement pending final allocation amounted to an argument that the commission was unable to meet its statutory obligations. While short deferments in the interests of a final solution might be reasonable, there was little optimism now that there would be an early final allocation.

While it might be appropriate, as the commission suggested, for any present inequity to be overcome in future lease rounds or in the final allocation, economic and social circumstances are dynamic and later adjustments might prove inadequate, and lessees had agreed that present leases should not create future expectations.

The commission had suggested that even after considering social and economic factors, the Chathams could not expect substantially more quota since they already received per capita greater assistance than other Mäori and other iwi could argue for special treatment, however there was not sufficient evidence at this stage that the case for substantive relief would be unlikely to succeed. Nor was it relevant that the trust board had previously on-leased its quota, or that only a small percentage of total quota was being leased by the commission in this round.

As to whether an interim order was required to preserve the position of the trust board, if an interim order were given, a substantive hearing would not follow for some time. However, the commission had stressed the disruption an interim order would have on the imminent annual allocation, which suggested that should an interim order be refused the board's ability to pursue substantive relief would be rendered 'nugatory'. The interests of the majority of lessees required careful consideration - but must be balanced against the prejudice to a small minority which had "demonstrated a strong case of failure" by the commission in its statutory duties, and their interests should not be overwhelmed by the majority. Moreover, an interim order would not mean that the commission would simply stop all fishing - which would be inconsistent with the commission's statutory functions anyway - but rather that sensible commercial arrangements would be made to avoid industry disruption. The proposed allocation arguably would be likely to prejudice investment and the economic base of the Chathams, such that subsequent leasing rounds could not rectify matters, and other factors might by then have assumed importance. Nor had there been any waiver by the board or estoppel because of a delay of several weeks between the announcement of the lease allocation and the present proceedings. The commission's statutory obligations could not be set aside in such a manner. Overall, the court had to weigh the lateness of the application for review and the inability of the appellant to give an undertaking as to damages against the apparent strength of the substantive application and the difficulty of the appellant securing relief should an interim order be refused.

The court had indicated that an interim order was justified. The commission and the board (but not the Treaty Tribes Coalition) had agreed that the commission would set aside its decision and reconsider afresh all leasing arrangements for 1996-97.

[ed: the commission subsequently informed the court that leasing would proceed on the same basis as in the 1995/96 fishing year. This is the first time the commission has lost a case on its approach to allocation - something which to date the courts have considered is a specialist task best left to the commission. Here a clear statutory breach was in evidence however. Both this case and the Runanga o Muriwhenua case being appealed to the Privy Council suggest that census data on the social and economic status of Maori groups will become a hot topic in the next few months.]

 

Matiu Rata & Others v Minister of Mäori Affairs & Others

High Court Wellington. CP 203/96. 2 October 1996. McGechan J

Matiu Rata and 4 other Mäori fisheries negotiators  (Sir Graham Latimer, Sir Robert Mahuta, Maanu Paul and Whatarangi Winiata), alleged that the process used by the minister in considering appointments to the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) was in breach of the Mäori Fisheries Act 1989 (which requires consultation with fisheries negotiators and other representatives).

When the substantive hearing was called the applicants sought an adjournment, or, if that were not possible, dismissal on a consent basis. They had received assurances from the Minister of Mäori Affairs which they said would give them largely what they sought through the proceedings. The Crown sought immediate dismissal of the proceedings, and was supported by two other respondents (Sir Tipene O’Regan and David Higgins - joined at their own request) who argued that the proceeding was merely a ‘filibuster’ designed to prevent appointments until after the general election - which had now been achieved.

Held: since there was opposition to an adjournment, and there was much to be said for cleaning the slate, not only to allow the governmental process to continue but also ‘from a wider and Treaty aspect”, the proceedings would be dismissed. The applicants could revisit the matter in fresh proceedings should legal obligations not be met by the minister. Costs would lie where they fell as there were some public interest in fisheries negotiators being encouraged to work together in future.

 

Otaraua Hapü of Te Atiawa v Taranaki Regional Council & Petrocorp Exploration Ltd

Environment Court. W129/96, 20 September 1996. Treadwell J, PA Catchpole, JD Rowan

The regional council granted to Petrocorp a consent to discharge into a tributary of the Waitara river 50 cubic metres per day of treated storm water from hydrocarbon exploration operations . While there was no question that the stormwater from the drilling operations would be adequately treated, the hapü claimed to be culturally offended by inadequate consultation both in the application for a consent and its granting. The hapü asked the court to overturn the consent and indicate the correct approach to consultation.

Held: there are 4 processes involving consultation:

- preparation of district or regional plans. Consultation is mandatory for councils;

- public notification of plans and submissions on them. Councils become quasi judicial bodies. No unilateral consultations with particular parties are permitted;

- decisions whether to notify a resource consent application;

- notified applications where the council is to hear the application as a quasi judicial body.

There is a tension between the council need to consult to address Mäori issues under ss6(e), 7(a) and 8 while remaining impartial in the hearing process. Significantly, s99, which provides for discussions between groups to resolve disputes, assumes that a member of a council who engaged in such discussions would normally be disqualified from taking part in any final decision-making.

Obiter comments in Quarantine Waste (NZ) Ltd v Waste Resource Ltd (1994) NZRMA 529, 542 suggest councils must consult ‘first-hand’ with Mäori where there is an application for a resource consent, but this should be through reports of council officers, commissioned reports under s92 or by pre-hearing meeting under s99. Worldwide Leisure Ltd v Anor & Taupo District Council & Anor HC M1128/94 supported this approach. It looked at the decision whether to notify a resource consent. That decision was cause for ‘unease’ if it suggested that unilateral consultation is permissible at that stage, since it could lead to a decision not to notify and deprive other parties of a right to be heard.

Greensill & Ors v Waikato Regional Council W17/95 summarised the current position with consultation, ie councils must consult local Mäori in the preparation of plans or policy statements; may delegate a decision whether to publicly notify an application for a resource consent to a council officer, who must, where local Mäori might be affected by the decision, consult local Mäori, and that consultation may be unilateral; may consult where appropriate with Mäori where resource consent applications have been publicly notified, but must do so through a council officer or commissioned report and may not unilaterally consult.

Looking at the timeframe for consultation for a publicly notified application,  once a council decides no further information is required, it is locked into the time frame under s92. The council has 10 working days to publicly notify (s95 - in appropriate cases service upon iwi authorities is required under s93(1)(f)), 20 working days for submissions to be received, and a hearing must follow 25 working days from the closure of submissions. Thus the normal time frame from the lodging of an application to its hearing is a maximum of 55 working days. However there are only 20 working days between notification and the date of closure of submissions. This is the period in which consultation should take place for iwi or hapü to decide whether to make a submission.

The appellants suggested programme for consultation was an initial meeting with the council, in the absence of the applicant, followed by a ‘pre-consultation hui’ again in the absence of the applicant, who would not be brought into the consultation until 3 weeks into the notification period. This was a unilateral departure from the normal understanding of consultation. Also, the suggested process would take 30 working days, 10 days over the statutory period. Apart from these reservations, the procedures suggested would certainly qualify as consultation, although they might over-qualify as multiple meetings would not be the norm in all situations.

A suggestion that the council transfer its decision making power in this matter to the iwi (s33) might face strong legal impediments since the iwi was essentially a party.

Accordingly, no particular purpose would be served in allowing this appeal. There was urgent regional importance to both tangata whenua and others in discovering a new gas source.

[ed: in a recent article “Consultation with tangata whenua under s8 of the RMA” 1 BRMB 237 Paul Beverley discusses the still unresolved issue whether s8 makes consultation with Mäori (as opposed to simple notification) mandatory in the resource consent process.]

 

 

Parliament

 

The Fisheries (South-East Area Amateur Fishing) Regulations 1986, Amendment No 7

1996/271. 23 September 1996

Amends regulation 7 to provide that no person who does not belong to the Ngäi Tahu iwi shall take eels from Lake Forsyth. The term “Ngäi Tahu iwi” means ‘the collective of those individuals who descend from the primary hapü of Ngäi Tahu and Ngäi Mamoe, namely, Kati Kuri, Kati Irekehu, Kati Huirapa, Ngäi Tuahuriri, and Kati Ruatikihiki.”

 

 

The Fisheries (Maketu Taiapure) Order 1996

1996/257. 16 September 1996

Constitutes the Maketu taiapure-local fishery which includes tidal waters of the Waihi and Maketu estuaries.

 

 

The Waikato Raupatu Claims Settlement Act Commencement Order 1996

1996/309. 30 September 1996

Brings in to force on the 1 November 1996 s32(1) Waikato Raupatu Claims Settlement Act 1995, which substitutes a new s42L Transit NZ Act 1989 requiring consultation with Mäori before any output or capital project is included in certain roading programmes.

 

 

Other

 

Bulletin on Treaty of Waitangi Issues

Vol 1 No 1 September 1996

The Crown Law Office Treaty Issues and International Law Team has launched this occasional newsletter to provide Government departments and interested agencies with a regular update on legal issues which have arisen in relation to the Treaty of Waitangi. While not attempting to be a comprehensive overview or commentary, it will signal legal developments in which the team have been involved. Contact is PO Box 5012 Wellington.

 

 

Overseas

 

Native Title claims

The first successful claim in Australia under the Native Title Act has been settled, involving 12.4 hectares of Crown land near Port Macquarie NSW. This appears to be the first ever legal recognition of native title on the Australian mainland. The claimant group will receive cash compensation as the land is sold to developers. Meanwhile, the federal government is proposing important amendments to the Native Title Act which, among other matters, would raise considerably the threshold requirements for registration of claims.

 

Walkout of Indigenous Groups

A walkout of indigenous representatives from the UN Inter-Sessional Working Group on the UN Draft Declaration on the Rights of Indigenous Peoples occurred on 22 October 1996 after Moana Jackson, attached to the Mäori delegation, presented a proposal that the existing draft be immediately adopted without amendment. The proposal, which argued that states would simply dilute the impact of the document by further debate, was ignored, leading to the walkout. (Native-L listserv and http://www.hookele.com/netwarriors/)

 

 

Reports

 

Law Commission (Te Aka Matua O Te Ture) Annual Report 1996 (to the year ended 30 June 1996)

NZLC Report 36. Parliamentary Paper E 31

- succession project: a first round of consultative hui have been completed and a preliminary paper is now in preparation;

- Women’s Access to Justice Project (He Putanga mo ngä Wähine ki te Tika): this project included in the year nationwide meetings with Mäori women (a sample of responses of Mäori women to the project are contained in Lawtalk 463, 2 September 1996 pp16-17).

The Mäori committee established to assist the commission commented on:

- Privy Council appeals. The committee urged further debate before legislation was introduced. The commission, after considering the committee’s paper, advised the government that “in the face of such a strong and reasoned Mäori view, there were difficulties and even danger” in proceeding without further consultation;

- Mäori custom law. The commission is preparing a “brief outline of concepts of Mäori custom law for use by judges and others”;

The commission sees the appointment of Mäori as commissioners as essential to furthering its statutory task of considering Te Ao Mäori in its work.

Noted also that the Legislation Manual: Structure and Style (NZLC R35 published in May 1996) comments on the use of Mäori in legislation.

 

Mäori Issues

NZ Law Review 1996 Part II

AL Mikaere comments on the Ngäi Tahu Ancillary Claims Report 1995, Turangi Township Report 1995, and Te Whanganui-A-Orotu Report 1995. She comments that the Kiwifruit Marketing Report, largely glossed the implications of the Declaration of Independence 1835 in the report which found the claim not well-founded.

She also examines the report of the Controller and Auditor-General on the claim settlement process, several High Court decisions in 1995 and fisheries determinations both in the Waitangi Tribunal and courts. Resource management cases and Mäori Land Court cases are also covered.

 

Ko Ngaa Take Ture

Auckland University Law Review vol 8 1996 No 1

Nick Harris "Full and Final Settlement of Treaty Grievances: The Crown's Consitutional Agenda" p205 argues that the Mäori view of settlement is that the spiritual balance upset by the colonial experience needs to be restored. Therefore, for settlements to be full and final a constitutional transformation is required.

A Kawharu "Urban Iwi: The New Tribes of Mäoridom" p209 takes a critical look at Te Runanga o Muriwhenua case in the Court of Appeal. The notion of whanaungatanga relates to kinship which underpins relationships rights and obligations between individual members of an iwi. Urban Mäori do not have manawhenua and no one suggests that they do. "There is certainly a need for urban Mäori groups and individuals to be recognised as coming within the scope fo the Treaty of Waitangi, regardless of iwi affiliation. The very words of the Treaty provide the basis for such recognition, for 'all Mäori' (ngaa tangata katoa) are expressly provided for [in article 2]. Moreover, the groups represented by the Urban Mäori Authorities collective are inherently capable of exercising rangatiratanga, thereby qualifying them to the protection afforded by the Treaty. The Waipereira Trust in west Auckland is a well known example of such a group." Kawharu suggests therefore that the court was wrong in making such a 'purposive' interpretation of the Treaty in its judgment. Cultures may adapt and change but there comes a point when they suffer violence and lose distinguishing qualities. An interpretation by the court more consistent with tradition would have been preferable. Even more desirable is that the parties resolve these issues at a political level - and not use litigation expect as a last resort, lest it becomes the arbiter of custom.

S Te Marino Lenihan “A Time For Change: Intellectual Property Law and Mäori” p211 proposes the establishment of a Mäori Intellectual Property Commissioner to hold in trust all intellectual property not identified as belonging exclusively to individual tribes, allocate to tribes returns on use of property, and advise the government on policy. Iwi would licence use of the property. This would avoid the current individualising regime, which inflicts the equivalent of the old evils of the land court system on intellectual property.

 

 

Speeches, Press Releases

 

Environmental Cultural Levies

Press statement 17 September 1996

Minister for the Environment Simon Upton warned that if Ngäti Kahu had been requiring developers to pay a ‘cultural levy’, ie they would consent to the non-notification of proposals provided sums were paid, they were abusing the resource management act and poisoning good community relations.