November 1996 Contents

Comment

- Abolition of the rights of appeal to the Privy Council

Mäori Land Court & Appellate Court

- In Re Tahora 2F2 Block and Wairoa District Council

- Mahaki Ellis, Toa Faulkner and Poripori Farm A Block

- In Re DP Coles and others v Ngätira Lands Trust and Whaiti Kurinui No 11 Block

- In Re Hapeta and Whakapoungakau 3B1B

Waitangi Tribunal

Other Courts and Tribunals

- R v Geoffrey Fuimaono

- Re estate of Nikorima Kupa, Te Rimu Haronga v Niky Nikorima Harmer & Another

Parliament

- Mäori Land Court (Jurisdiction) Order 1996

Treaty Claim Settlements

- Deed of Settlement concerning the Wharenui Mataatua

- Whakatohea Deed of Settlement

- Heads of Agreement between Her Majesty the Queen and Te Runanga o Ngäi Tahu

 

COMMENT

Abolition of the rights of appeal to the Privy Council

Whether the planned abolition of the right of appeal to the Privy Council is dead in the water will remain to be seen. The implications for Mäori of course are particularly potent because the right to appeal to the Judicial Committee remains available from the Mäori Appellate Court. Consider the following words uttered on the 25th of April 1903:

“We repeat that we have made these observations solely in order to vindicate the honour of the Court.  It is to that end only that we have appeared to justify our decision. Whether the Court has or has not arrived at a correct legal conclusion is beyond the question. It is sufficient to show that our reasons for our conclusion were honest. That the decisions of this Court should continue to be subject to review by a higher Court is of the utmost importance. The knowledge that a decision can be reviewed is good alike for Judges and litigants. Whether, however, they should be reviewed by the Judicial Committee as at present is a question worthy of consideration. That Court, by its imputations in the present case, by the ignorance it has shown in this and other cases of our history, of our legislation, and of our practice, and by its long-delayed judgments, has displayed every characteristic of an alien tribunal.  If we have spoken strongly, it is because we feel deeply.  And we speak under grievous and unexampled provocation.”

Fiery stuff indeed! The words were spoken in the Court of Appeal by the then Chief Justice Sir Robert Stout KCMG who had with him Mr Justice Edwards. The occasion was said to be a protest of bench and bar and the Chief Justice was reading the protest of Mr Justice Williams who was not present. The protests of the Chief Justice and Mr Justice Edwards were scarcely less forceful.

The case referred to is all the more pointed for Mäori practitioners when one reads the facts of the particular case which give a interesting insight into the attitudes of and the inter-play between Mäori, the New Zealand Government and the New Zealand and the United Kingdom Judiciary. It is also interesting to note that most of the reasons given in support of the recent move to do away with the Privy Council appeals are referred to in these “protests” of almost 100 years ago.

Further comment by me would be inappropriate. The matter is reported as Wallis and Others v Solicitor-General NZPCC 730.

P J Savage

Judge of the Mäori Land Court

 

 

Mäori Land Court & Appellate Court

In Re Tahora 2F2 Block and Wairoa District Council

Tairawhiti District

This case concerned an area of unformed roadway on a block of Mäori freehold land farmed by the applicants, Tahora 2F2 Mäori incorporation. The roadway was proclaimed in 1930, pursuant to the Land Act 1924. An unformed section of roadway now vested in the district council, who agreed that they took from the Crown with all equities, if any. The council did not intend to form the roadway, but had not forbidden proposed improvements by user groups presently using the roadway as access to Te Urewera National Park. The incorporation alleged that the Crown and therefore the council held the roadway land in a fiduciary capacity and that allowing work on the roadway would be a breach of fiduciary duty or alternatively that there was a threatened trespass by invitees of the council ie the user groups. At this preliminary hearing the council and user groups questioned the jurisdiction of the court.

Held: more than a bare allegation that a fiduciary relationship exists is required, facts establishing the relationship must be pleaded - to CED Distributors (1988) Ltd v Computer Logic CA345/90 and 5/91 26 July 1991. 

Section 18(1)(i)/1993 empowers the court to determine for the purposes of any proceedings or for any other purpose whether any specified land is held by any person in a fiduciary capacity, and, where it is, to make any appropriate vesting order. Read literally, the section confers an immensely broad jurisdiction, not qualified by reference to the type of land or identity of the parties subject to the court’s jurisdiction. Read in context, it is not as broad as this, but cannot be limited to Mäori freehold land, since s18(1)(a) empowers the court to determine any claim, at law or equity, to rights in respect of Mäori freehold land and there is a strong presumption against interpreting s18 so as to make ss(i) redundant. Oddly, while the focus of s18 is on jurisdiction rather then remedies, ss(i) talks about “vesting”, a remedy which is available through the use of vesting powers under ss236 and 237/1993.

Fiduciary relationships encompass a much broader range of relationships than mere trusteeship, which is a species of fiduciary relationship and is primarily concerned with the relationship between legal and equitable title.  Prof Maxton’s seminar paper for the NZ Law Society (October 1993) refers to features of fiduciary relationships identified by Fisher J in Cook v Evart [1992] 1 NZLR 676, 685:

- fiduciary obligations must be determined by reference to the particular circumstances of a relationship rather than in accordance with preconceived categories;

- the essence of a fiduciary relationship is an inequality of bargaining power brought about by the trust reposed in and accepted by the fiduciary, to perform some function for another’s benefit where the beneficiary lacks the power to adequately control the exercise of that function - see Hospital Products Ltd v United States Surgical Corporation (1984) 58 ALJR 587 and RP Austin, “Commerce and Equity-Fiduciary Duty and Constructive Trust” (1986) Oxford Legal Studies 444;

- fiduciary obligations are inherent in certain formalised relationships, in other cases the obligations arise from the particular circumstances of the parties and the transaction;

- the scope of the fiduciary’s obligations in each particular case is determined by the nature and extent of the trust reposed in them;

- generally the fiduciary is obliged to avoid using their position to gain advantage, may not allow their interests to conflict with those of the beneficiaries, and in the course of transactions with the beneficiaries, must disclose information material to the beneficiaries participation in the transaction. The extent of these duties is dependant on the facts of the particular case.

The relationship between the Crown and Mäori gives rise to fiduciary obligations on the part of the Crown. Maxton’s paper comments on the fiduciary relationship between the Crown and indigenous people in Commonwealth jurisdictions, the duties arising from the imbalance of power inherent in the relationship, particularly as regards the Crown’s power to limit and extinguish the traditional property rights of indigenous people (see the judgment of Toohey J in Mabo v State of Queensland).  In this case it was not yet clear whether the incorporation was invoking this proposition, it was alleged that the taking of the land in 1930 was invalid as procedurally defective or ultra vires, but a broader attack was hinted at. This needed to be clarified.

Section 18(1)(i) provides that the court may make a determination “for the purpose of any proceedings” or “for any other purpose”. Looking at the section as a whole, the former phrase provides a jurisdiction that is ancillary to ss18(1)(a)-(d) where the court is given a primary jurisdiction to hear and determine claims or to determine the relative interests of owners. The latter phrase (“for any other purpose”) must have some meaning, and must at least include a situation where a party contends that prima facie General land is in fact Mäori freehold land or is held by a fiduciary with an obligation to return it to the status of Mäori freehold land or General land owned by Mäori and vest title in the owners (interestingly, s131/1993 empowers the court to determine the status of “any land” which conceivably could include applications that do not involve Mäori land or Mäori interests, arguing that certain land is Crown land or General land). Accordingly, s18(1)(i) must include a primary jurisdiction to determine the present issues of whether the land is held in a fiduciary capacity, and whether the fiduciary has a duty to return it to its Mäori owners as Mäori freehold land or General land owned by Mäori.

This application should not be viewed as ancillary to a separate application under s324 (closure of unused roads), since that application was not brought in the present hearing and a requirement for the prior consent of the local authority and Minister of Transport was unlikely to be fulfilled.

While the taking in 1930 was under s12(6) Land Act 1924 which provides that the Crown takes free from all “restrictions, trusts, rights … or any interest of any kind whatsoever” that wording was not being broad enough to destroy fiduciary obligations and jurisdiction under s18(1)(i)/1993, and did not affect the claim that the taking was invalid.

Given that s18(1)(i) provided jurisdiction to hear this matter, proceedings were pending, and it was therefore possible an injunction might be granted under s19(b)/1993 (injunction where proceedings pending), on the basis that Mäori freehold land on the sides of the roadway might be affected by a proposal from user groups to form a walking track on the roadway.

The court directed the registrar to arrange a further conference with counsel in early November.

 

 

Mahaki Ellis, Toa Faulkner and Poripori Farm A Block

12 November 1996 57 Tauranga MB 7, Carter J

This was an application under s240/1993 to remove a trustee of an ahu whenua trust. The relationship with the other trustees had been fractious for some years, evidenced by the lone opposition of Mr Faulkner to several actions of the trust, including an application to remove another trustee, refusal to execute a chattels security, several previous unsuccessful applications by the other trustees to remove Mr Faulkner (which had been unsuccessful for procedural and other reasons), and a recent threat by Mr Faulkner of defamation proceedings of $100,000 against the trust chairman.

Mr Faulkner argued that removal would affront his mana and standing as a rangatira, that the trust's profitability demonstrated a working relationship, and that in the law of trusts, mere friction among trustees is not grounds for removal from a trust.

Held: Mr Faulkner had been quarrelsome and created disharmony at trust meetings, he had forced the trust to go to court to require him to sign a chattels security, on the belief that a majority decision was required, when in law it was not. While he was entitled to bring legal issues to the court to seek direction, this involved the risk of being found wrong and his conduct judged accordingly. He had at times shown an inability to work as a team with the other trustees. In a resolution to remove another trustee, he had independently cross examined witnesses in court. He had made a threat at an AGM to sue the chairperson - although he was entitled to assert such legal rights and this was not conduct which would give rise to his removal.

The 1993 Act gives two sets of powers to the MLC in relation to trustees. S237 gives  all the powers of the High Court under the Trustee Act 1956 and in its (the HC's) inherent jurisdiction. S240 gives additional jurisdiction to remove trustees if satisfied that the trustee has failed to carry out their duties satisfactorily, or because of prolonged absence or lack of competence, is incapable of carrying out duties satisfactorily. The present application concerned only duties under s240.

The submission that friction or hostility among trustees is not a ground for removal is a proposition relating to the inherent jurisdiction of the HC, and even in that jurisdiction, may be relevant where the friction works against the true interests of the trust estate.

The 1993 Act extends the grounds for removal. The issue is whether the Act extends the duties the court should consider beyond the 5 standard duties of trustees:

- To acquaint themselves with the terms of the trust deed;

- To adhere rigidly to the terms of the trust;

- To act impartially and fairly to all beneficiaries;

- To undertake proper investment of trust funds;

- To keep and render proper accounts and give full information when required.

And, in addition, to exercise in trust business the same diligence and prudence of an ordinary prudent person if in business for themselves.

The s240 requirement to perform duties "satisfactorily" requires an assessment of the trustee's performance by the court. The court should also consider s2(2) (intention of Parliament that powers under the Act be exercised to facilitate retention and use of Mäori land as a taonga tuku iho) and s17(2)(a) (MLC to give effect to the wishes of the owners) and s222(2) (MLC in appointing trustees to have regard to their ability and broad acceptability to the beneficiaries). These suggest that the owners are to control the land and the court is to have regard to their wishes and that trustees be broadly acceptable to the owners.

In judging "satisfactory performance" the court may look not only at objective criteria but also the nature of the trust, its performance and the views of the owners.

Mäori land trusts are special in nature, with the beneficiaries essentially acting as settlors of the trust. It has been said it was not easy to remove trustees under previous legislation. S240 was intended, in part, to remedy that, and therefore requires a liberal interpretation.

The beneficial owners had passed a resolution for the removal of Mr Faulkner. Section 222 requires that trustees be broadly acceptable to the owners. The resolution was the closest thing the court would find of an expression of feeling from the owners. Were this an inter vivos trust the beneficiaries could terminate it. While the conduct of Mr Faulkner might not be such as to allow his removal under the Trustee Act or the inherent powers of the HC, under the 1993 Act the MLC may take account of the expressed wishes of the owners.

Trustees may be involved in healthy discussion, but s227/1993 and the trust order indicate that once a decision is made the majority should rule. If dissenting trustees apply to the court for directions, their performance may be judged as a result of that. They may under s227(6) have their dissent recorded. Mr Faulkner had seen himself as separate from the majority and shown a lack of ability to work as part of the team and a propensity to continue such conduct in future. This was a failure to carry out his duties satisfactorily and he should therefore be removed.

The argument that Mr Faulkner was a rangatira (a "discovery of recent origin") was not relevant as this was not in issue when he was appointed. Also, whereas under the 1953 Act a trustee could only be removed if something had been done which was "patently wrong" , and a loss of mana and standing was an issue, under the 1993 Act the requirement that trustees be broadly acceptable to the beneficiaries (s222), and the broader grounds for removal (s240) mean that provisions allowing for removal of trustees should be widely interpreted by the court and not regarded as involving any stigma or loss of mana.

There had been no suggestion of improper conduct or impropriety by Mr Faulkner. His removal was simply because the attitude he brought to the trust was unsatisfactory to the owners, and the court was guided in its decision by the clearly expressed wish of the owners for his removal.

Mr Faulkner had lodged a claim with the Waitangi Tribunal concerning lands in the trust. His position as trustee might be "somewhat incompatible" with his status as a party to those claims. Although not pursued in this application, this could have been a matter which the court, of its own motion, might have taken up had it not arrived at the decision to remove Mr Faulkner on other grounds.

Ordered that Mr Faulkner be removed under s240/1993 and order under s239/1993 reducing trustees by 1 accordingly.

[ed: trustees of Tiroa E and Te Hape B land trusts in the King Country have filed for orders under s240 to remove 2 trustees for poor financial management, but also, in the case of one woman trustee, for breaching a 500 year old protocol by standing and speaking on the marae. The land court has made no finding on this aspect, but has ordered a management audit of the trust under s351/1993.]

 

 

In Re DP Coles and others v Ngatira Lands Trust and Whaiti Kurinui No 11 Block

1 Waiariki ACMB 53. 8 November 1996. Deputy CJ Smith, Spencer J, Carter J

The appellants carried out logging on their lands in the course of which they crossed the boundary into the lands of the land trust, which brought an action for damages for trespass and conversion. In the lower court the appellants accepted that they had trespassed and taken timber, but disputed costs the land trust claimed to have incurred hiring a surveyor and forestry consultant to quantify its loss. The land trust for its part accepted that the trespass had been inadvertent. The lower court accepted the land trust's view on costs.

Held: the evidence presented to the lower court was limited by consent of the parties (evidence was by affidavit with no cross-examination) - and the parties agreed to the same approach for the appeal.

The appellants were correct in arguing that in calculating the value to the land trust of the timber taken, a reduction should be made for the costs the appellants incurred in extracting it where trespass has been inadvertent. It was also correct that the valuation of the timber provided by an independent consultant should be preferred to the valuation from an interested person.

For their part, the land trust were correct in arguing that even though they could not accurately quantify the measure of damages for trespass, cases such as Cousins v Wilson [1994] 1 NZLR 463 and Waters v Maynard [1924] 24SR (NSW) 618 establish that in such a situation some slight (though more than nominal) damages should be assumed and given. While the lower court made an award for conversion only, if the commercial value of the trees had been virtually nil, the court would probably have looked at making a separate award for damages. The lower court award for conversion was satisfactory in all the circumstances (if a little low) and should not be upset. A lower court decision based on a technically incorrect approach should not be overturned if the end result would be the same - Parsons and Ors v Farmers Mutual Insurance Assoc [1972] NZLR 966.

The appellants attacked the costs incurred by the land trust both in surveying the boundaries of the land to establish the trespass and in appraising the timber. However the agreement to limit evidence in the lower court had limited the ability of that court. Section 67/1993 gives the court wide powers as to the nature and admissibility of evidence, but where the court is limited as to the evidence presented it should give parties the option of calling further evidence or allowing the court to proceed to judgment on the limited evidence.

Plaintiffs in tort actions must mitigate loss. If a plaintiff incurs expenses to establish that trespass and loss has occurred they must ensure the expenses are reasonable and commensurate with the nature of the loss.

In this case, only a limited survey to flag the boundary was required, whereas a full survey had been undertaken. The land trust had also unnecessarily required the surveyor be present at meetings with the appellants. These expenses should accordingly be reduced.

The forestry consultant hired by the land trust was not local, and had a brief wider than that required strictly to assess the trespass and conversion and therefore those expenses should be reduced. Aerial photography expenses, although incurred out of an "abundance of caution" should be allowed.

 

 

In Re Hapeta and Whakapoungakau 3B1B

9 Waiariki ACMB 96, 19 August 1996. Marumaru J, Spencer J, Carter J

Mr Hapeta sought an injunction against the Whakapoungakau 3B1B trust. At a conference on the application the court directed that an urgent hearing date be set and Mr Hapeta make a payment as security for costs. Mr Hapeta had trouble providing the payment and sent a letter to the court seeking an adjournment. The court hearing nevertheless proceeded and the application was dismissed for non-appearance of the applicant and failure to pay security for costs. Mr Hapeta was ordered to pay costs. He appealed the order.

Held: the power of the court to adjourn a hearing ( Rule 10 Mäori Land Court Rules 1994), requires a party to notify the court and other parties of the proposed adjournment and be prepared to argue the matter if the adjournment is opposed, since the court cannot unilaterally adjourn a matter. The court was accordingly entitled to dismiss the application. There was no prejudice to Mr Hapeta's case, as he could apply under Rule 70(2)/1994 for reinstatement of the existing application or make a fresh application.

As to the award of costs, these appeared to have been a penalty against Mr Hapeta and in favour of the trust (a lay representative appearing on its behalf). While the order directed the costs be paid to the court registrar, s79(1)/1993 provides no power for an award of costs in favour of the court. Costs awards must not be made arbitrarily but in accordance with reason and justice - see In Re Paengaroa North B No 10A Block 8 Waiariki MB 150A. Lay litigants should not be awarded costs for their time except in exceptional circumstances - see Official Assignee v Registrar of the High Court at Christchurch(CA 309/96), so the order for costs should be revoked.

As to the order to provide security for costs, while this was not raised in the appeal, it could have been, and was integral to the appeal as it led to the failed adjournment. The court must avoid undue formality (s66(2)/1993) and the discretion to order a payment for security for costs (s79/1993) should be exercised sparingly, there should be reasonable grounds for the order, and the amount should not be oppressive, but should be compatible with the likely award to a successful defendant. Here the security for costs had been set far to high ($1500) having regard to the likely length of hearing and that it was unlikely that any party would be represented by counsel. Nor were the applicant's means assessed. Mr Hapeta had sought to test the actions of a trustee administering a trust. The court provides a "safety valve" in such situations and it is unusual for security for costs to be imposed at an initial application.

In the interests of natural justice a rehearing would be ordered, given that Mr Hapeta could file a fresh application under Rule 70(2). In the absence of legal counsel he had filed a letter seeking an adjournment, which could constitute grounds for a rehearing, and there was no reason to embroil the parties in preliminary arguments over reinstatements or rehearings.

 

 

 

Other Courts and Tribunals

R v Geoffrey Fuimaono

Court of Appeal. CA 159/96, 24 October 1996. Thomas J, Tompkins J, Heron J

Following events at the occupation of the Moutua Gardens/Pakaitore in Wanganui in 1995, Mr Fuimaono was convicted in the District Court of assaulting a police officer with intent to obstruct him the execution of his duties and escaping from lawful custody.  He was sentenced to five months periodic detention in total and appealed against his convictions.  In this appeal Fuimaono addressed the court in Mäori, to explain that he had acted in accordance with tikanga Mäori to prevent the officer from entering Pakaitore by a back or side entrance, because in Mäori custom the officer’s actions could be regarded as evidence of bad intentions.

Held: many Mäori have perceived tikanga Mäori as the original lex situs, springing from the earth and existing since time immemorial, and as having legal status irrespective of the fact that it may not have received the express recognition or endorsement of Parliament. But the present case did not relate to whether tikanga Mäori existed as part of the common law in NZ or the extent to which it might inform the common law, but rather its relationship with statute law. Tikanga Mäori is relevant to the court’s application of statutes where legislation allows for court discretion but not otherwise and the courts cannot regard tikanga Mäori as superior to statute law, since they have no jurisdiction to depart from the provisions of the relevant statute. In the present case the necessary elements of the charges were proved (obstruction of a constable and escape from lawful custody, s192(2) & 120(1)( c ) Crimes Act 1961) and Fuimaono’s perception was not relevant to his intent.

[ed: this was not a case where “colour of right” could have been a defence, since that is confined to particular provisions in the Crimes Act 1961.]

 

 

Re estate of Nikorima Kupa, Te Rimu Haronga v Niky Nikorima Harmer & Another

High Court Napier. M62/91, 29 October 1996. Heron J

The deceased, a Mäori male, died in 1990 leaving all his estate by will to one daughter. Ten children survived him. His small estate included some minor interests in several blocks of Mäori freehold land. In earlier wills the deceased had generally divided his estate equally among his children, although one will excluded 3 children he felt were otherwise adequately provided for. The wife of the deceased died in 1967 and he had lived with one or other of his children from that time. In his last 2 years he moved among several households, then in 1989, while staying with one daughter, a fresh will was made leaving all his interests to her.

The plaintiff claimed under the Family Protection Act 1955 that the deceased had a moral obligation to divide the land among all the children.

Held: an opinion obtained from a Mäori academic stated that, in tikanga Mäori, provision is made for all children to inherit türangawaewae which is a birthright. The deceased himself had felt strongly about receiving less than an equal interest in Mäori land in his own mother's will. It was argued that he was a mere custodian of the land for the benefit of all his children, and that the land was a link back to common ancestors which would be broken if only one branch of the family took.

Part IV/1993, while not affecting this will, limits dispositions that can be made of Mäori land by will to children and kin of the deceased only, thus limiting the operation of the Family Protection Act. Te Ture Whenua Mäori Act is therefore a relevant consideration in considering policy in these matters.

In Re Whakarua [1988] 4 FRNZ 650 and Green v Robson [1995] NZFLR 330 it was recognised that the passing of interests in small parcels of Mäori land could give rise to a moral duty. In Re Ham [1996] FRNZ 158 it was noted that the court must have regard to the strong attachment of Mäori to particular land. In that case practical difficulties prevented the vesting of land in children of the deceased, here no such barrier existed as the shares involved were small, although the daughter had had to meet estate liabilities out of her own pocket. The koha at the tangihanga should no doubt be taken into account when considering what to reimburse her for the rest of the children taking a share in the land.

A moral duty had been breached. The importance of the land to the whole family should have been forseen and an appropriate interest left to each of the children. This was an instance of changing social attitudes, which must influence moral duties - Little v Angus [1981] 1 NZLR 126. The cultural value involved (intrinsic importance of türangawaewae) was only now recognised by the courts, although it had been in existence for a long time, and was also only now being pursued more assiduously by Mäori.

It has been said that where a claim for relief grounded in financial maintenance has been made out under the Family Protection Act, competing customary claims should not override it, since one reason for the legislation was for families to provide where they can and not the state - Re Stubbing [1991] NZLR 428. Here there was no question of adequate or inadequate financial maintenance for family members, andLittle v Angus suggests that non-economic considerations can be pertinent to whether there has been a breach of a moral duty.

A negotiated settlement, possibly worked out on a marae, was appropriate. Any final court order would have to recognise the children (or grandchildren) who wished to take part in distribution, how the daughter might be recompensed for her payment of estate liabilities, and how all could contribute to the costs of these proceedings.

While the deceased might have intended that these minor interests in Mäori land be held by one wise custodian, there was no reason why the one daughter should do this better than any other, and all of the children had helped the father during his widowhood and were now interested in the land for "broadly spiritual reasons".

However, an argument of the plaintiff that landholding was essential to gaining benefits from the local tribe (Tuwharetoa), was possibly exaggerated, as simple membership of the tribe might well be sufficient. Grandchildren of the only child to predecease the father would also be included in any order.

The matter would be adjourned to allow negotiations to shape the final court order.

[ed: the admission of all children equally to the inheritance of Mäori freehold land arose from a Native Land Court decision of 1867 (the Papakura case) which proceeded on the twin assumptions that “English law shall regulate the succession of real estate among the Mäoris except in a case where a strict adherence to English rules of law would be very repugnant to native ideas and customs”  and that it would be “highly prejudicial to allow the tribal tenure to grow up and affect land that has once been clothed with a lawful title”  (a tribe was asserting that on intestacy land should return to the tribe and not individuals). The “custom” that all children inherit equally was the court’s compromise. As a land court judge frankly admitted in 1909, “The present Native custom of succession has grown up in the court where it has developed gradually and where it is probably still being modified” (Edgars J, memo 1909). Whether this created “custom”, after many years of use, has become part of tikanga Mäori today is another issue.]

 

 

 

Parliament

Mäori Land Court (Jurisdiction) Order 1996

SR 1996/330. 11 November 1996

In 1987 the Conversion Fund within the Mäori Trustee's Account was abolished, and shares in Mäori freehold land compulsorily acquired by the Mäori Trustee and still held by the Trustee were to be revested  in the persons they had been compulsorily acquired from. This was achieved by the Mäori Trustee filing revesting certificates with the Mäori Land Court, or with Mäori incorporations where incorporation shares were involved. Some of these certificates have been found to be incorrect. This order, made under s27/1993 (Governor-General may confer special jurisdiction), provides that on application of the Mäori Trustee the land court may investigate whether any vesting has been incorrect and make orders as it thinks fit, including directing the Registrar to correct the court records or send a copy of the court order to the secretary of the relevant Mäori incorporation. The order comes into effect on the 12 December 1996.

 

 

Treaty Claim Settlements

Deed of Settlement concerning the Wharenui Mataatua

30 August 1996

Form of settlement: In June 1996 the Crown signed a deed with the Otago Museum Trust Board whereby the Crown paid the museum $2,750,000 in exchange for the museum signing a certificate certifying that Te Runanga o Ngäti Awa (TRONA) are the absolute owners of the Mataatua house and associated taonga, and agreeing to hold it in trust pending collection by Ngäti Awa. At that time TRONA orally agreed to accept the return of the house. This deed of settlement formally records; the obligations for both the Crown and TRONA arising from the June agreement, that $2 million will be paid to Ngäti Awa, a Crown apology, that the Crown has no proprietary interest or right to possession in the house, and the Crown provides a separate certificate to this effect. TRONA and the Crown following execution of this deed also signed a covenant in agreed form in both English and Mäori recording their rights and responsibilities under the deed.

Recitals: In 1875 the Mataatua house was constructed, involving groups from all of Ngäti Awa. In 1879, at the request of government, Ngäti Awa agreed to the house being exhibited in Sydney. It was not returned to NZ until 1924 when it was exhibited in Dunedin, then housed there in the museum which claimed ownership of it. The holdings of the museum now included the house and associated items created by Ngäti Awa people, referred to as taonga of Mataatua in the deed. The Crown admits in the deed that although it “has previously assumed that Mataatua was gifted to it” there is “little evidence that such a gift, if it occurred, was absolute.”

The apology: The Crown “acknowledges and profoundly regrets that it has caused offence to the mana of Ngäti Awa” by acting in breach of the principles of the Treaty in failing to ensure the return of the house after the Sydney exhibition. A public apology will follow at a time to be arranged.

The main agreement: TRONA agrees that it is now the absolute owner of Mataatua house and taonga, and that it is now responsible for the house - including transport, conservation costs and insurance. It also agrees to fulfil provisions of the June agreement between the Crown and the museum in as far as they relate to Ngäti Awa.

In consideration for the covenants and agreements of TRONA contained in the deed, the Crown will pay $2 million which TRONA "has advised" will be used for transportation of the house to Whakatane and reconstruction and re-establishment of it as a functioning marae. The Crown further agrees to make all reasonable endeavours to ensure that the museum complies with its obligations under the June agreement.

Finality: the agreement records that the provision by the Crown of apologies, covenants, certificates, entry into agreement with the museum, and the settlement money constitute a “full and final settlement” of claims that any person might have past or present in any matters relating to the house and taonga, whether in law or under the principles of the Treaty (apart from obligations under the deed). Following execution of the deed, an agreed form of joint memorandum will be filed by the Crown with the Waitangi Tribunal withdrawing claims relating to the house.

It is agreed that the $2 million comprises settlement of that part of Ngäti Awa claims relating to Mataatua, it is "the policy of the Crown" to treat this sum as added to the value of the final settlement of Ngäti Awa's other claims under the Treaty, but this sum is not to be taken into account in the final value of any settlement Ngäti Awa obtain of their other Treaty claims.

Mandate: TRONA warrants that it represents Ngäti Awa and that a hui of Ngäti Awa authorised TRONA to enter into this agreement and also warrants that it is the rightful owner of the house and taonga, and will indemnify the Crown if this warranty is breached by someone establishing ownership at law or under the principles of the Treaty of Waitangi.

 

 

Whakatohea Deed of Settlement

1 October 1996

Form of settlement: a Deed of Settlement with attachments

Recitals: Whakatohea had little involvement in the early part of the NZ Wars and "Only some Whakatohea participated in the killing" of Volkner "which was incited by Pai Marire adherents from outside the tribe. The invasion of Opotiki in September 1865 took place before proclamations concerning the end of the wars could have reached Whakatohea, and consequently they were wrongly declared and their lands unjustly confiscated. The chief Mokomoko was wrongly arrested and tried for Volkner's murder (he was pardoned in 1992). The Crown returned only a small area at Opape belonging to one hapu, but most Whakatohea were forced to move there. Both a 1921 commission and the Sim commission in 1926 found the punishment of Whakatohea excessive, and the tribe received 20,000 pounds (in a lump sum at the request of Whakatohea) in 1946.

The Apology: The Crown acted unjustly and in breach of Treaty principles in sending forces to Opotiki without warning, and unfairly labelled Whakatohea as rebels. It expresses "profound regret and apologises unreservedly" for the loss of life and devastation of property and social life which resulted, it admits to failing to act reasonably and in the utmost good faith consistent with the honour of the Crown, acknowledges that other acts or omissions in relation to Whakatohea "may also have been" in breach of Treaty principles, and on "behalf of all New Zealanders" seeks to atone for the injustice to Whakatohea "as far as that is now possible."

The Properties: Within 10 days of legislation being introduced into Parliament the negotiators will establish a Settlement Assets Trust whose terms are approved by the Crown. When the deed becomes unconditional, the Crown will transfer to the assets trust properties estimated at $5 million including a former Road Services depot, Post Shop, and Ministry of Works Depot, a Telecom site, a social welfare home, and also 7 properties which must be leased back to the agencies using them. There is a first right of refusal over any surplus property of the Opotiki hospital.

The Cash: The Settlement Assets Trust will also be paid $35 million. Deducted from this will be $95,000 for the Opotiki Police Station which has already been “landbanked” for Whakatohea, and research and negotiation costs to date.

Conservation matters: Within 12 months of ratification of the settlement the Crown will initiate discussions “on a process for providing dedicated iwi representation” on the East Coast Conservation Board, and initiate discussions with relevant groups on the role of iwi in the management of Ohiwa Harbour.

Whakatohea will nominate up to 3 sites for töpuni protection, and a further 6 sites for protection either by statutory acknowledgement or deed of recognition and a further 6 river beds in the claim area to be protected by deeds of recognition. [ed: these instruments are the same as those proposed in the Ngäi Tahu Heads of Agreement - see below]. Specifically, the Crown will initiate discussion through the Department of Conservation (DoC) for protocols on access for Whakatohea to kiekie, tötara and nga rongoä Mäori on DoC land, and a protocol on the disposal of the skeletal remains of whales. The settlement legislation will include statutory acknowledgements of the importance of whalebone and kiekie, tötara and nga rongoä Mäori within the Whakatohea claim area.

Whakatohea acknowledge that if any of these instruments apply to an area where there is an overlapping claim from another tribal group they will not necessarily give exclusive rights to Whakatohea, and a process will be agreed with the Crown for consultation with other groups about those overlapping claims.

Finality and aboriginal title: settlement legislation will provide among other matters for the removal of the jurisdiction of the courts, the Waitangi Tribunal and any other tribunal in respect of the "Whakatohea claims" which includes "rights arising in or by the Treaty of Waitangi, statute, common law (including customary law and aboriginal title), or otherwise" and relating to the raupatu or any loss of interests in lands or waters, or minerals in the Whakatohea claim area caused by the Crown prior to 21 September 1992.  [ed: the date of the Sealords fisheries settlement]

Whakatohea acknowledge they have no existing litigation before the courts in relation to the Whakatohea claims. Once the deed becomes unconditional, they will advise the tribunal by written memorandum of the terms of the settlement. The Crown will file a separate acknowledgement of the settlement. The settlement legislation will remove memorials on titles in the claim area and the right of Whakatohea to make claims to the Waitangi Tribunal.

The settlement does not affect Treaty rights “including rangatiratanga rights” or the “ongoing relationship” between the Crown and Maori. Fisheries are specifically excluded from the settlement.

The Crown recognises that Whakatohea in settling are foregoing a substantial part of the redress sought by them and this is recognised as a “contribution to the development of NZ". Whakatohea acknowledge that the Crown has acted “honourably and reasonably” in relation to the settlement and that it is “fair, final and durable.”

The fiscal envelope: It is noted that Whakatohea “has never concurred” with the concept of the settlement envelope or its quantum, and the Crown has not asked it to.

Mandate: The recital notes that in 1994 the Mäori Land Court under s30 Te Ture Whenua Mäori Act 1993 determined the hapu representatives to make up the negotiating committee. Six “constituent hapu” of Whakatohea are listed as defining Whakatohea for the time being.

The deed is conditional on Whakatohea ratifying it by a process acceptable to the incoming government, and the incoming government passing necessary legislation. The deed is terminable after 30 June 1997 if it has not become unconditional by then.

 

 

Heads of Agreement between Her Majesty the Queen and Te Runanga o Ngäi Tahu

5 October 1996

Form of settlement: this Heads of Agreement is a brief document which records an intention at a later date to enter a deed of settlement which will incorporate a detailed settlement offer contained in a letter from the Crown in September 1996. It creates no legal obligations for either party, except that the parties agree to negotiate in good faith and use reasonable endeavours to remove any obstacles to such good faith negotiations proceeding. If within 6 months of this agreement a deed has not been signed, the parties will jointly review the matter and may terminate the heads of agreement.

Recitals: The Waitangi Tribunal has found that 10 major land purchases between 1844 and 1864 with Ngäi Tahu (NT) involved breaches of the principles of the Treaty by the Crown. In 1990 the Crown entered into an interim agreement with Ngäi Tahu to safeguard surplus Crown lands pending a future settlement of the claims.

The apology: will be in agreed form in the later deed of settlement.

The cash: The Crown will give to Ngäi Tahu $170 million which it will use to purchase an agreed list of properties. This sum will be minus $10 million already paid, but plus interest at 7.91% between the time the Heads of Agreement is signed and a date 20 days after a deed of settlement becomes unconditional. In addition, if under the processes described below NT choose to select crown forest assets, the accumulated rentals from those assets will be paid to NT, an amount separate from the $170 million.

The Properties: NT will use a “Deferred Selection Process” to select up to $200 million worth of properties from a list prepared with the Crown (ie NT may use up to $30 million of their own money). This list will include crown forest assets, Crown health enterprise (CHE) lands, Department for Courts, Government Property Services, Ministry of Education, NZ Police, NZ Post, Landcorp, Radio NZ, Works Consultancy, Telecom and Department of Conservation (DoC) lands. Some lands will be immediately leased back to the Crown - using the formula in the Tainui settlement - so that public services carried out on the land can continue. It is noted that most of these properties have already been selected. Value is at the time the deed of settlement is signed, and there is provision for an independent review of valuations.

If NT chooses land under the Aoraki Forest, the Crown will ensure a process analogous to the Crown Forest Assets Act is put in place, ie allowing the current forest to mature and the land gradually returned to NT as the forest is cut.

NT will also be given a “Right of First Refusal” over all land in the NT takiwä owned by the Crown, Crown research institutes, CHEs, Landcorp, Transit NZ, tertiary education institutes, NZ Fire Service, some electricity assets and forest assets and Highbank hydro-station, Crown shares in the Dunedin, Invercargill, Christchurch and Fiordland airports and Landcorp financial instruments. If the Crown seeks to sell any of these properties it will give notice to NT of the proposed price and NT may negotiate to purchase at that price. If NT refuse to purchase, the Crown must sell to other parties at the same price it offered to NT.

In relation to High Country properties: conservation areas will be transferred to NT which will gift them back to the nation in recognition of their conservation values; non-farmable parts will be transferred to NT, then leased back on a peppercorn rental to be managed by the DoC as conservation land, with a NT veto on any commercial activity on the land; the Mararoa Valley and Home Hill area of the Caples will be licensed for 9 years to NT to run stock, subject to ongoing environmental impact  assessments and review after 9 years.

In relation to islands important to NT:

- Rarotoka (Centre Island) will be gifted to NT;

- Whenua Hou (Codfish Island) will remain in Crown ownership with NT involved in management as a special sub-committee of the Southland Conservation Board, and with assured access;

- The Crown Titi Islands will be gifted to NT and managed as a nature reserve under the Reserves Act with a joint work programme agreed with the Crown;

- The top third of the Arahura Valley catchment will be returned to the Mawhera Incorporation as a reserve under the Reserves Act and managed jointly with the DoC.

Mahinga Kai: for over 30 sites of special interest to NT, including mountain peaks and ranges, scenic and historic reserves and conservation areas, one or a combination of administrative and legal instruments will specifically recognise that interest:

- Deeds of recognition: a deed signed by the Crown acknowledging the history of the claim and tangata whenua status over the site and future involvement of NT with the site;

- Statutory Acknowledgement: similar to the deed of recognition, but it would statutorily give NT an interest in the site greater than that of the general public, ensuring standing under the Resource Management Act and the Historic Places Act (but not under the Conservation and related Acts, since they relate to public lands for which a consultation process is already provided);

- Transfer with reserve status: a transfer of the fee simple to NT, but with a memorial on the title noting that the land is to be managed as a reserve in perpetuity under the Reserves Act;

- Töpuni special area or reserve: a statutory "overlay" on land already administered under the Conservation, National Parks or Reserves Acts. Special values of the area agreed with NT would be noted in statute, and management would involve NT having a right of veto over any activities affecting those values adversely, and the values could be enforced by bylaws or regulations. NT would also be a statutory adviser in such areas;

- Statutory advisor: TRONT would be appointed as advisor to the Minister of Conservation who would be required to "recognise and take into account" advice from NT where any discretion was being exercised;

Department of Conservation Protocols: agreements with NT about the process for discussing issues raised by the DoC of concern to NT.

Closure: for particular sites eg important burial sites. Closure is presently possible in under National Parks legislation, but would need legislation to apply elsewhere.

Fisheries: NT would be recognised as an ad hoc statutory advisory committee to the Minister of Fisheries within the NT rohe and to the Minister of Conservation in respect of freshwater fisheries within the rohe. If customary fisheries regulations have not been promulgated when the settlement legislation is introduced, the kaitiaki provisions of those draft regulations will be introduced in respect of the South Island and extended to freshwater fisheries. The Crown will provide in legislation that certain species currently managed only for conservation purposes are special to NT and any ministerial decisions affecting them must “recognise and provide” for that special relationship. Legislation will also provide that NT have a right of first refusal for 30% of the TACC for 5 shellfish species special to NT should they be brought under the quota management system.

For customary freshwater fishing, the Crown will provide 2 types of instrument:

- 5 year renewable entitlements to temporarily occupy exclusively 100 metres of lake or riverbed for non-commercial harvesting of customary fish species. Public access along the waterway would not be affected. Five entitlements will be available in respect of ancillary claims.

- "nohoanga" rights involving 5 year renewable entitlements to temporarily occupy Crown land adjacent to waterways for non-commercial harvesting of customary fish species. Public access to the waterway adjacent to the land would not be affected. Two entitlements of up to 1 hectare would be issued for each catchment. Five will be available in respect of ancillary claims.

Otherwise these entitlements will be available for areas adjacent to 32 rivers and lakes.

Taonga species: A taonga schedule will be created in the settlement legislation recognising the special significance of various plant and wildlife species to NT, and requiring that bodies managing the species consult with and have regard to the views of NT. NT will have an open invitation to join species recovery groups (at their own cost) and will be statutory advisors to fish and game councils.

Coastal space: There will be statutory acknowledgement that the Kaikoura, Banks Peninsula, Fiordland, Otakou and Fouveaux Strait/Rakiura coastal areas are important to NT and this must be taken into account under the RMA where relevant. Where there is a proposal to let coastal tenders (for occupation, extraction of sand and shingle, reclamation or drainage and the like), then where NT apply at the relevant tender price, they will have automatic preference on up to 10% of the coastal area being allocated.

Environment management: The deed will note that NT are to be involved in reviews of both the RMA and Historic Places Act, and in particular being involved in surveys to discover how local authorities are dealing with iwi management plans, assisting in the development of a set of Mäori values indicators, and investigating how Treaty obligations under the RMA are working in practice. NT will have 2 dedicated seats on all conservation boards within the NT rohe, one dedicated seat in northern South Island boards, with 1 for other iwi. NT will also have 1 dedicated position respectively on the Guardians of Manapouri and  Guardians of Wanaka boards, and on the NZ Conservation Authority.

Place names: the names of 78 places will be altered to a joint English/NT name and the Geographic Board, on which NT will have 1 seat, will be statutorily required to encourage the use of original Mäori place names.

Ancillary Claims: the deed of settlement will provide redress for 33 ancillary claims including land promised but never transferred under the South Island Landless Natives Act 1906, fishing entitlements (riverbed and nohoanga rights outlined above) and a number of other matters including revesting of areas at Kaikoura, Ellesmere, and Taiaroa Heads in Dunedin, among others. Apart from the 1906 entitlements, up to $1 million of beneficial interests will be gifted as redress for ancillary claims.

Finality and Aboriginal Title: NT will agree to the removal of all s27 memorials on State-owned Enterprise lands in the NT takiwä, and cessation of the NT Mäori Trust Board annuity, the NT land bank, the operation of the Crown Forest Assets Act in the NT rohe, and all litigation related to the claim.

NT will acknowledge that the Crown has acted honourably and reasonably and the settlement is fair and final. The deed will be a "comprehensive full and final settlement of all Ngäi Tahu's historical claims" and include a detailed provision providing that settlement legislation will provide for the removal from the courts, the Waitangi Tribunal and any other tribunal, jurisdiction over Ngäi Tahu claims and this settlement. "Ngäi Tahu claims" is defined to include all claims made by anyone acting as Ngäi Tahu to rights arising under the Treaty, statute or common law (including customary law and aboriginal title) fiduciary duty or otherwise and relating to loss, by acts or omissions of the Crown before 21 September 1992 affecting lands, waterways and natural and physical resources. However a separate clause will provide that "it is not intended to prevent any Ngäi Tahu Claimant from pursuing claims against the Crown based on aboriginal title or customary rights which do not come within the definition of Ngäi Tahu Claims".

The fiscal envelope: a relativity clause will be included in the deed of settlement as for the Tainui settlement, providing that the NT settlement is estimated at about 16.3-16.4% of the fiscal envelope ($1 billion).

Mandate: TRONT must obtain a mandate authorising TRONT to sign a deed of settlement on behalf of Ngäi Tahu Whanui, and agrees to do so.

[ed: this Heads of Agreement was ratified by runanga of NT in early November. NT has signed an option to buy Wigram Airforce Base for $18.5 million, separate from this settlement (Nga korero o te waOctober & November 1996). Three claims have recently been registered by the Waitangi Tribunal concerning NT lands, Wai 189 (Southland Mäori Reserves), Wai 622 (Rangimarie Te Maiharoa), Wai 618 (Anthony Wilson Olsen). In each case the tribunal has asked the claimants to advise what their relationship is to the NT settlement negotiations.]

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