December-January 1997 Contents

Mäori Land Court & Appellate Court

Re Riddiford and Pukaroro No 1 block

Waitangi Tribunal

Nothing this month

Other Courts and Tribunals

Tainui Mäori Trust Board & Ors v Treaty of Waitangi Fisheries Commission & Ors

Te Waka Hi Ika O Te Arawa v Hon Douglas Graham & Ors

West Coast Settlement Reserves Lessee Assn Inc v Valuer-General & Ors: Proprietors of Parininihi Ki Waitotara Block v Valuer- General & Ors

Pauline Tangiora v Wellington District Legal Services Committee

CDL Land New Zealand Ltd v Whangarei District Council

Te Rohe Potae O Matangirau Trust v Northland Regional Council

Western Bay of Plenty District Council v Bryan & Ors

Parliament

Coalition agreement between NZ First and NZ National Party

Office of Treaty Settlements 1996 Post-election Briefing Paper

Ministry of Justice Post-election Briefing Paper

Overseas

R v Adams, R v Cote

Wik Peoples v State of Queensland and Ors; Thayorre People v State of Queensland & Ors

 

 

Mäori Land Court & Appellate Court

Re Riddiford and Pukaroro No 1 block

1996/16, 21 Jnauary 1997. 11 Takitimu ACMB 170. Deputy CJ NF Smith, GD Carter, PJ Savage

This was an appeal against a MLC decision in August 1996 (see Mäori LR September 1996) granting an injunction under s19(1)/1993 preventing a farmer and his wife from entering on to 3 areas of Mäori freehold land within their farm with coastal boundaries but otherwise effectively landlocked. The appellants argued that a prescriptive easement existed in their favour, or that an easement of necessity existed or that an injunction was statute barred by the Limitation  Act.

Held: the appeal should be denied.

Prescriptive easement: the Mäori freehold lands were part of an informal highway known as the “East Coast Road” which existed until after 1900 and continued to be used by the appellants after it fell out of general public use. They contended that they had in any event continuously exercised a right of passage and a right to launch boats over the lands since the mid-1840s. The issue, as the lower court had found, was whether a prescriptive easement had been obtained before the Mäori freehold blocks had been given a land transfer title in 1887—at which point indefeasibility provisions in the Land Transfer Act 1885 prohibited recognition of any such easements.

Court of Appeal decisions in Wi Neera v The Bishop of Wellington [1902] 21 NZLR 668 and Mere Roihi v The Assets Company Ltd [1902] 21 NZLR 691, which considered the operation of the Statute of Limitations, found that there was no power to obtain any interest in customary Mäori land unless granted by the Crown. The ratio of those cases is that adverse possession cannot provide a right whereby interests in Maori customary land are acquired, whether such claims arise in prescription or limitation.

Cases relied on by the appellant (Sampson v New Plymouth Harbour Board CA [1908] 607, Matthews v Box SC [1908] NZLR 402, Rangi Matangi v Karira Tahuroa [1914] NZLR 488, Bradley Brothers Application CA [1919] NZLR 339, Whatitiri v The King [1938] NZLR 676, Robinson v A-G SC [1954] 1230) to demonstrate that an owner of land can be forced to recognise an interest such as an easement either by prescription or limitation, all concerned land whose titles had already been established by a Crown grant, and not Mäori customary land prior to the issue of a Crown grant.

Nor could Mabo v The State of Queensland (1992) 107 ALR 1 (HCA) be relied on. It was hard to see how that case would support a right to an interest in customary land by adverse possession. In any event, such customary title is extinguished by the issue of a Crown grant.

Nor could the court depart from strict law and as a matter of policy find that prescriptive easements existed in this case with a view to solving other cases of land locked Mäori land.

Easement of necessity: these easements exist only where there are no other means of reaching land. Mere inconvenience does not give rise to an easement of necessity. This was not the case here. While an inability to move over the Mäori freehold blocks might make use of the farm difficult, particularly for developments which might rely on that access, this did not mean that a right by way of necessity arose. It was also questionable whether an easement of necessity can arise against the Crown, or arise on Mäori customary land. In the past, where waterways were main lines of communication, little thought was given to access, and a sea boundary was probably seen as legal access of last resort. Owners were left to negotiate other access. In any event, the appellant had not provided adequate legal or evidential argument to establish such an easement.

Section 348 Te Ture Whenua Mäori Act 1993: this provides that land titles which at 1909 were within the protection of the Land Titles Protection Act 1908 may not be called into question on any grounds. The 1908 Act provided that titles to Mäori freehold land (then called Native land) which had subsisted for 10 years or more prior to 1902 could not be called into question in any manner. The 1908 Act had a clear retrospective intent and was aimed at protecting the integrity of long standing titles. It did not matter that the appellant here sought only an easement. A claim for an easement derogates from the unencumbered fee simple title and therefore challenges the “very essence and validity” of the title. And while the Land Transfer Act 1885 allowed a claim to a prescriptive easement against a registered title, that right in relation to these Mäori land blocks was extinguished by the Land Titles Protection Act which made paramount titles based on a Crown grant. In fact, the predecessor to the 1908 Act, the Land Titles Protection Act 1902, was passed to settle doubts about the validity of Mäori land titles raised by Supreme Court decisions in the Wi Neera and Mere Roihi cases and the Privy Council decision in Nireaha Tamaki v Baker.

Other issues: the injunction against trespass was not time barred by the Limitation Act. That Act does not prevent registered proprietors exercising their rights over their lands.

The lower court had not been wrong to issue the injunction against both the registered proprietors of the land and the current lessee. Evidence showed all occupiers of the Riddiford land had over the years claimed a right to enter the Mäori blocks at will.

An application for leave to adduce further evidence was denied, as it did not meet the tests of timeliness, probative value and believeableness set out in Dragicevich v Martinovich (1969) NZLR 306 CA andRe Whareongaonga 5 and Skuse (1973) 30 Gisborne ACMB 158—and see rule 173(4)-(7) MLC Rules 1994 .

[ed: by giving such a wide effect to s348, is the court limiting arguments that could be made for the continued existence of non-territorial aboriginal title rights?]

Other courts & tribunals

Tainui Mäori Trust Board & Others v Treaty of Waitangi Fisheries Commission & Others

Appeals 68, 69, 70/1996. 16 January 1996. Privy Council. Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hope of Craighead, Lord Clyde

This appeal from a decision of the Court of Appeal concerned the efforts of the Treaty of Waitangi Fisheries Commission to finalise a scheme of allocation to “iwi” of assets (including 10% of all NZ fisheries quota) held by the commission before the Sealord fisheries settlement was signed in September 1992. The commission is required by the Mäori Fisheries Act 1989 (as amended by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992) to finalise an allocation scheme. The essence of the proceedings was that groups claiming to represent urban Mäori contended that many Mäori now live in urban areas, not in old tribal areas with which iwi are associated. Accordingly, allocation to iwi would not provide any or any proper share of the benefit of the allocation to urban Mäori. The Fisheries Commission and iwi groups argued in response that urban Mäori must be able to trace their descent from iwi, and allocation to iwi still allows for the interests of urban Mäori to be taken into account. In addition, the commission challenged the claim of parties described as “Urban Mäori Authorities” to truly represent urban Mäori.

Two sets of proceedings in the High Court had led to this appeal:

Proceedings before Anderson J: this collection of applications lodged by both urban and iwi groups in essence challenged the commission’s approach to obtaining agreement on the allocation formula for pre-settlement assets. Anderson J determined that a preliminary question to be answered before the substantive trial of the issues was whether the commission, in exercising its allocation power, was required to allocate “solely to iwi and/or bodies representing iwi or groups of iwi.”? Several parties appealed the determination that such a preliminary question should first be answered.

Proceedings before Ellis J: this collection of applications was lodged by the same groups appearing before Anderson J, but the applications sought to have the Waitangi Tribunal consider a claim that the commission and the Crown had or were likely to breach the principles of the Treaty of Waitangi in their approach to allocation. Ellis J determined that a tribunal inquiry could not proceed before the commission had reported to the Crown the proposed method of allocation. That decision was appealed by several parties.

The Court of Appeal considered the 2 appeals together, namely, whether Anderson J should have set the preliminary question, and whether the tribunal had jurisdiction to consider the claims before it. On the latter issue, the Court of Appeal determined that a “privative clause” (s6(7) Treaty of Waitangi Act 1975) prevented the tribunal from at any time considering claims about the fisheries settlement or any proposed allocation scheme.

On the former issue, it had been argued by one of the iwi groups that the preliminary question of Anderson J should not have been put because a prior Waitangi Tribunal inquiry was needed, which would put the necessary evidential material about the nature of iwi before the courts.

Held: their Lordships noted that, having found that the tribunal had no jurisdiction to consider the matter, the Court of Appeal had not simply determined whether or not Anderson J had been correct in setting a preliminary question, but went further and considered what “iwi” meant. The court had looked at various materials, including some reports of the Waitangi Tribunal. It had then invited parties to reflect on the hearing to date and  inform it of any progress towards a solution of the issues. The court had then received, and in its final judgment quoted, a memo from the Fisheries Commission stating that a process of consultation would be undertaken which would include Urban Mäori Authorities. The Court of Appeal had concluded that this was an appropriate approach as the commission not only had a statutory duty to consult with the Urban Mäori Authorities, but also had a duty to make separately administered provision in the allocation scheme for urban Mäori. The court had made a declaration accordingly. It had therefore gone considerably beyond the issue put to it and considered not only the meaning of iwi within the Mäori Fisheries Act 1989, but also declared the scope of the commission’s statutory duty of consultation and held that the duty included that an allocation scheme must provide separately for urban Mäori. It had no doubt taken this approach because it was deeply concerned about divisions among Mäori and was anxious to achieve a result, however, that approach had been seriously criticised by some parties and was the main subject matter of the present appeals.

While all parties conceded that it was open to the Court of Appeal to answer the preliminary question which Anderson J had set, they contended that it was not open to the court to set and answer an entirely different question which included defining the word “iwi” itself. They further argued that the Court of Appeal had failed to formulate the different question which it was asking and answering, had failed to give counsel notice of the changed question and therefore an opportunity to address argument to it, and had failed to hear evidence on the meaning of the term “iwi” before determining its meaning (Fothergill v Monarch Airlines Ltd [1981] AC 251 273E-274F).

Their Lordships agreed with this analysis. While all parties before the Court of Appeal were aware that the meaning of “iwi” was “on the table” the court never gave notice that it intended to make a finding on the term and also to comment on the extent of the commission’s statutory duties. In such important matters the court ought to formulate the fresh questions on which the court is making a decision. Because this had not occurred counsel had been deprived of a full opportunity to make submissions on the issues determined. This was no mere “procedural technicality”.

Parties had no notice that the Court intended to cover these matters. Whether Urban Mäori Authorities were iwi was discussed, but that was all. All parties agreed that further evidence was required on the word “iwi”, yet the court had proceeded to a decision, even though it was “strongly arguable” that further evidence was required.

The Court of Appeal plays an important role in Mäori issues, and their Lordships said that they had “hesitated long” before interfering in an approach adopted by an enlarged Court of Appeal. However, it would advise Her Majesty to set aside the declarations of the Court of Appeal and remit the matter to the High Court for further hearing by Anderson J.

The question for the High Court, with the agreement of all parties, including Urban Mäori Authorities, would now be in 2 parts:

1  Does the Mäori fisheries settlement legislation require that any scheme which the commission presents to the Minister providing for the allocation of pre-settlement assets must provide for allocation of such assets solely to “iwi” and/or bodies representing “iwi”?

2  If the answer to “1” is “yes”, in the context of such a scheme does “iwi” mean only “traditional Mäori tribes”? Some Tainui appellants also challenged a comment by the Court of Appeal that the commission did not have to achieve unanimous agreement among Mäori to its proposed allocation scheme before presenting the scheme to the Minister. Their Lordships however concluded that those comments of the court were not an appropriate matter for appeal as they were “no more than an obiter dictum”.

Their Lordships also rejected an appeal against the Court of Appeal’s order as to costs.

[ed: while the Court of Appeal decision was overturned on a procedural issue, this judgment still has important implications. The Court of Appeal has been reminded that it should not be so proactive in Mäori and Treaty matters and so anxious to secure co-operation and agreement between Mäori groups that it effectively deprives parties of their rights in litigation. The decision has no doubt reinforced the concerns some Mäori have about proposals to bring an end to appeals to the Privy Council.

The decision does not take the issue of whether “urban” groupings are “iwi” much further, as that issue is simply referred back to the High Court for a determination. However the delay to allow detailed arguments to be prepared would seem to work in favour of “traditional iwi”, who now have time not only to examine in detail and question statistical evidence for the phenomenon known as “urban Mäori”, but also to collect evidence about historical efforts to represent and provide assistance to members of tribes who moved to urban areas since the end of the Second World War.]

Te Waka Hi Ika O Te Arawa v Hon Douglas Graham & Others

277/96. 27 November 1996. Court of Appeal. Richardson P, Gault J, Henry J

This appeal concerned the decision of the caretaker government after the general election in October 1996 not to appear or present any argument before the Privy Council in the case concerning allocation of pre-settlement fisheries assets (see above). The government felt that an appearance would be inappropriate for a caretaker government. One party in the Privy Council proceedings had relied on an appearance by the Crown and had not made arrangements to appear themselves. The appellants sought a declaration that the minister had made an unlawful decision, and an order that the minister instruct counsel for the Crown to appear before the Privy Council.

Held: the decision of the minister and government was not the exercise of a statutory power and therefore not suseptible to review under the Judicature Amendment Act 1972. Neither the Electoral Act 1993 nor procedures in the Cabinet Office Manual outlining conventions in relation to caretaker governments were of assistance. An alternative action for judicial review at common law was not argued. Had it been, other issues about justiciability may have arisen.

Nor was it appropriate for the Court of Appeal to issue a declaration that the Crown appear before the Privy Council, even by video link. The Privy Council alone must determine its procedure.

Finally, a decision of a government, even a caretaker government, is a matter entirely for the executive and the courts should not intervene.

[ed: there had been media speculation that the Minister had withdrawn from the case because of pressure from new Mäori MPs after the general election.]

The West Coast Settlement Reserves Lessee Assn Inc v The Valuer-General and Ors: The Proprietors of Parininihi Ki Waitotara Block v The Valuer- General and Ors

261/95, 13 November 1996. Court of Appeal. Richardson P, Gault J, Henry J, Thomas J, Blanchard J

These proceedings challenged a 1993 interim decision of the Valuation Appeal Committee valuing certain West Coast Settlement Reserve leased properties, in order to fix rentals for the 21 year period commencing in December 1989. The issue concerned the manner in which the “unimproved value” of the land is to be determined for leasehold farmland which was originally covered in native forest.

The lessees held their properties from the Mäori owners, the Proprietors of the Parininihi Ki Waitotara Block (PKW), on a perpetually renewable 21 year term, last renewed in December 1989, and governed by the Mäori Reserved Land Act 1955 (MRLA). Section 64 of the MRLA requires the Valuer-General to make a special valuation of the land in an expiring lease, the rental on renewal of the lease is governed by Part IV of the MRLA and is an annual rent equal to five per cent of the unimproved value of the land. “Unimproved value” under the Valuation of Land Act (VLA) 1951 means “the sum which the owner’s estate … might be expected to realise at the time of the valuation if offered for sale on such reasonable terms and conditions as a bona fide seller might be expected to impose, and if no improvements … had been made on the said land.” “Improvements” mean “all work done or material used at any time on or for the benefit of the land by the expenditure of capital or labour by any owner or occupier thereof in so far as the effect of the work done or material used is to increase the value of the land, and the benefit thereof is unexhausted at the time of the valuation.”

The basic issue was whether unimproved value should include the value of native timber standing on virgin land (known as “phantom trees”), or whether the land should be assessed in its cleared, but otherwise undeveloped, state. This issue had been considered in the Malpas decisions, which related to leases under the Mäori Vested Lands Administration Act 1954 and raising similar valuation issues. In Malpas 1[1979] 2 NZLR 545 it was held that the “unimproved value” of the land was to include the value of native timber that had been growing on virgin land. However in Malpas 2  [1985] 2 NZLR 468 Malpas 1was reconsidered, and it was held that if trees of no millable value had been removed from the land, the fact that those trees would have a value today (ie the time of valuation) should not detract from the value of improvements to the land if the benefit of those improvements was unexhausted, and where timber had been commercially milled, the cut-over state of the land was to be used to assess the  unimproved value of the land.

Held: the reasoning in Malpas 2 should be applied and the decision of the Valuation Appeal Committee approved. The purpose of the leasing scheme was to allow the land to be farmed, and the terms of the lease obliged the lessee to remove trees and cultivate the land (The Privy Council made this point in Gardner v Hirawanu [1927] AC 388, 393; NZPCC 365, 369). It would not be in keeping with Parliament’s intention if the lessees were required to pay a rent determined by the value of the trees they had been compelled to remove.

Accordingly, the first test relates to the effect of the work at the time the work was done. If the work added value to the land at the time it was done it was an improvement, but if, at the time of valuation the combined effect of all improvements does not add value to the land in its notional unimproved condition, they must be disregarded. The cost of cutting and removal of timber for commercial purposes should not be regarded as an improvement, since it was not done to benefit the land, but processes following the removal of trees were for the benefit of the land and should be classed as improvements to the extent that the benefit remains at the time of valuation. Those processes include allowing time and weather to remove remaining stumps.

Where no commercial milling occurred, all work which contributed to the conversion of the land to farmland, including the felling of large trees, could be classed as an improvement to the extent that its benefit was unexhausted at the time of valuation. It  should be assumed that modern work methods would be used to cultivate the land. In the valuation of improvements current values should be applied. The valuer should imagine that commercial milling occurred immediately prior to the expiry of the previous lease in 1989, and should value the costs involved in work following milling as though modern methods were used.

Work done by Mäori prior to the leasing of the land (“Mäori clearings”) could not count as an improvement for the benefit of the lessees.

[ed: PKW is seeking leave to appeal this decision to the Privy Council.]

Pauline Tangiora v Wellington District Legal Services Committee

CP125/96. 27 November 1996. Wellington High Court. Gallen J

The plaintiff was one of 18 individuals who lodged a communication with the United Nations Human Rights Committee (HRC) under the first Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), alleging that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 violated the rights of the Mäori applicants under that Covenant. In October 1995 the HRC determined that it could consider the communication as it raised issues under articles 14 and 27 of the ICCPR and domestic remedies had been exhausted by the Mäori applicants. The NZ government was invited to file information about the matter. When that was received, the Mäori applicants would have an opportunity to respond. The plaintiff applied to the Wellington District Legal Services Committee (WDLSC) for legal aid to meet costs of preparing that response. The committee declined on the basis that “Courts outside New Zealand” are outside the jurisdiction of the Legal Services Act 1991. The plaintiff appealed.

Held: the appeal should be allowed and the WDLSC should reconsider its decision. In approaching this issue, the ordinary rules of statutory interpretation should be applied, as they ensure a degree of certainty in the application of the law, but there is now also “ample authority” that international obligations, particularly in relation to human rights, are to be taken seriously and reflected in statutory interpretation. “Older attitudes” based on the primacy of domestic law over international law have “lost a good deal of their authority”.

The precise issue was whether the HRC falls within the meaning of the terms “any administrative tribunal or judicial authority” in s19(1)(e)(v) Legal Services Act 1991.

•  The phrase refers to bodies bound by the rules of natural justice, with an obligation to judge or give an opinion on matters before them ,and deriving their power from the State (Arbitrators’ Institute of New Zealand Inc v Legal Services Board [1995] 2 NZLR 202 and other cases).

•  By acceding to the Optional Protocol to the ICCPR, the Crown conferred jurisdiction on the HRC, fulfilling the requirement that a judicial body, or the right of access to the body, is given by the State.

•  While this judicial authority was not constituted by statute, statutory acknowledgement rather than an explicit reference can be sufficient for the purposes of s19(1)(e). Statutory acknowledgement of the ICCPR can be found in the New Zealand Bill of Rights Act 1990, and the right of access to the HRC derives from Crown recognition.

•  Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266 emphasises the duty of the judiciary to interpret and apply domestic law in the light of the universal human rights. There are statements in that case to the effect that by virtue of the Crown’s accession to the Optional Protocol the HRC is part of New Zealand’s judicial structure.

•  Decision-making is not of itself a decisive element in determining whether a body is judicial in nature. The essential element is whether the purpose of the body is to resolve disputes between parties. The HRC is required to decide on the evidence whether or not an individual’s rights have been breached, a process analogous to the resolution of a dispute between the State and an individual citizen. Nor is the ability to make binding recommendations a decisive element (the HRC makes non-binding recommendation to States).

•  The manner in which evidence is received and heard by the HRC, the legal nature of proceedings and the legal experience of members of the Committee are of a sufficiently judicial nature to allow an analogy to be drawn with a court of law.

•  In the final analysis, the significant facts were that the government had chosen to adopt the optional protocol, giving its citizens access to the HRC on fundamental human rights matters, which to a large extent are incorporated in NZ law by the NZ Bill of Rights Act.

•  It would be hollow to inform persons complaining of a breach of their rights by the all-powerful State, that they might apply to the HRC, when it is likely that the very complaint determines that they will be unable financially or physically to pursue that right. This is particularly so with indigenous rights, a subject which has assumed considerable importance in the international sphere in the last decade.

CDL Land New Zealand Ltd v Whangarei District Council

A099/96. 25 November 1996. Environment Court. Judge DFG Sheppard, PA Catchpole, F Easdale

The district council declined an application from CDL to rezone rural land as residential land for subdivision purposes. The council contended that there had been inadequate consultation with tangata whenua.

Held: local iwi representatives identified by the council had not responded to initial letters from CDL, there had been a public meeting and the application had been altered as a result of that. After public notification of the proposal the council’s own officer had visited local iwi representatives and encouraged them to make submissions about issues of concern. The representatives had subsequently met with CDL to discuss the proposal, but had not filed submissions before the council hearing. At the council hearing of the application, several Mäori were called as witnesses for those who had lodged submissions. They made general statements about the possible presence of waahi tapu in the area. After the council declined the application, CDL had a meeting with iwi representatives, but they had still not responded by the time of the appeal hearing. In summary, although invited to do so, tangata whenua had not sought further information on the proposal, had not lodged any submissions and, apart from some general statements about waahi tapu, had not expressed to CDL or the council any views on the impact of the proposal or requested any changes to it. The only reason given for the lack of response was that 2 tangi had recently been held.

This part of the appeal should be allowed. Tangata whenua had been given an opportunity to respond to the application and have not done so. To ask for more from CDL would go beyond consultation and approach a veto for tangata whenua, and that was not Parliament’s intent.

However, in considering the appeal on its merits, the question of whether the proposal would serve the purpose of the RMA had to be addressed. Evidence received at the appeal hearing showed that tangata whenua had a “clear and strong” relationship in their culture and traditions with this land in terms of s6(e) RMA. Rezoning the land to allow subdivision and residential use would not recognise or provide for that cultural and traditional relationship which has been classified by Parliament as a matter of national importance. Accordingly, for this reason, the appeal should be disallowed and the proposed plan change cancelled.

Te Rohe Potae O Matangirau Trust v Northland Regional Council

A107/96. 18 December 1996. Environment Court. Judge DFG Sheppard, JR Jackson J, IG McIntyre

The appellant objected to a decision of the regional council granting a coastal permit to permit an extension to an existing oyster farm, on grounds of effects on the environment and interference in the customary use of the area by tangata whenua.

Held: the appeal should be rejected. The evidence was not persuasive that the existing farm and proposed extension caused siltation in the harbour, or that it affected natural shellfish beds, or that significant noise and visual intrusion would result from the extension.

As to cultural issues, Greensill v Waikato Regional Council (W17/95 6 March 1995) does not support the view that the Environment Court may not have to reconcile opposing views about sacredness and cultural importance, that it is sufficient if reasonable grounds are shown for the beliefs held, and that they are genuinely held. Rather, the Environment Court weighs evidence about cultural and spiritual matters in the same manner as other evidence, applying the test of the balance of probabilities. Greensill merely noted that the practice among the hapü concerned in that case was that the word of kaumätua was not challenged by hapü members.

The suggestion that the proposed extension would intrude on a traditional food gathering area and waahi tapu was contradicted by local kaumätua. Nor would the exercise of kaitiakitanga in the area be interfered with by the proposal. Nor would it affect the trustee role of trustees of a Mäori reservation gazetted in 1994 under s338/1993, even though one function of the reservation was preservation of customary food gathering areas. Nor should the application be rejected just because the oyster farm used introduced rather than native species—even though the appellant argued that native species would be more acceptable.

Western Bay of Plenty District Council v Bryan and others

NP586/96. 29 October 1996. District Court Tauranga. Judge IB Thomas

This concerned an application for an injunction restraining building work on Mäori freehold land. The defendants argued that the council had no jurisdiction to regulate building on Mäori land under the Building Act 1991, and any regulation was an interference with rights under the Treaty of Waitangi and as a matter of customary law.

Held: the Building Act 1991 applies to all land (apart from an exception with regard to Crown land used for certain defence purposes), and all building work must comply with the Act. Section 88 provides for service of documents in respect of Mäori land. The District Court is given jurisdiction to enforce the Act. Accordingly, it applies to building work on Mäori land.

Parliament

Coalition Agreement between NZ First and NZ National Party

11 December 1996

One of the “fundamental principles” of the coalition government set out in this coalition agreement is “To continue to settle as expeditiously as possible, in a spirit of goodwill and integrity, outstanding Mäori claims and grievances, having regard to the nature of Treaty settlements already made and to respect the spirit and letter of the Treaty of Waitangi as a founding document in New Zealand.”

Other specifically Mäori initiatives in the agreement are:

•  review of Te Mängai Paho and its functions;

•  clarify and strengthen legislation protecting heritage sites, buildings and objects including improved documentation of important Mäori sites;

•  seek to resolve Treaty grievances without compromising environmental protection, whilst recognising the importance of Mäori customary use of certain materials;

•  review the framework and appointment process for the Mäori Fisheries Commission [sic];

•  review the 1988 and 1992 amendments to Mäori Fisheries legislation on issues of distribution;

•  negotiate to end clearfelling of indigenous forests in Southland and Otago by South Island Landless Mäori and consult with them about compensation;

•  increase resources to provide Mäori leadership in the health sector, and to enable continuing growth and development of Mäori health service provision by Mäori;

•  require regional hospital and community services to develop initiatives in partnership with Mäori leading to demonstrable improvements in Mäori health status;

•  develop competent Mäori Health providers as a critical requirement to support improvement in Mäori health status [a scheme is detailed];

•  fund Mäori mental health provider development;

•  establish a Mäori Education Commission, Health Promotion Unit, Economic Development Unit and Employment and Training Unit as think tanks, to monitor progress and design initiatives to graft on to mainstream departments;

•  implement Ka Awatea “as amended” and retain TPK;

•  establish a multiple ownership review committee;

•  support marae development programmes funded through Lotteries grants;

•  review the effectiveness of regional Mäori Business Development Boards and Poutama Trust;

•  support and adequately resource Kohanga Reo and Kura Kaupapa;

•  introduce Trade Training Schemes for Mäori;

•  review Mäori representation on “various government bodies”;

•  adequately resource the Waitangi Tribunal;

•  ensure trustee accountability (including voting rights of beneficiaries) for assets gained in Treaty settlements;

•  discontinue the fiscal envelope—but use present settlements as benchmarks and remain “fiscally responsible”;

•  review policy on natural resources and funding of research;

•  review the operation of the Crown Forestry Rental Trust;

•  consult fully on Mäori Reserved Lands issues;

•  continue funding for the Mäori Women’s Development Fund.

The agreement may be terminated with 7 days written notice.

[ed: the NZ First Mäori caucus failed to extract any fresh initiatives or develop a coherent philosophy for Mäori development. The various commissions to be established will duplicate the role of TPK and prove an annoyance to departments with specialist Mäori units. The proposal to graft fresh initiatives in to existing departments shows a naive understanding of bureaucracy and is poor process. The most realistic, measureable and achieveable scheme in the agreement is the plan to develop competent Mäori health providers—an initiative which comes from within a department.

The document misnames the Treaty of Waitangi Fisheries Commission, and promises to review 1988 and 1992 legislation “on issues of distribution”, but gives no idea what that might mean—if anything.

The settlement envelope remains, in all but name.

This all points to an ad hoc approach, and suggesting that the driving forces in Mäori policy in the next 3 years will not be Ka Awatea, amended or not, but those tribes which secure adequate Treaty claim settlements to fund their own initiatives and those which can establish good working relationships with individual departments.]

Office of Treaty Settlements. Excerpts from 1996 Post-election Briefing paper

 22 January 1996. Office of Treaty Settlements

This paper details current negotiations and settlements which the office is working on. A generic approach to claims about public works takings and Native Land Court operations last century is still being developed. Claimant funding and mandating mechanisms are outlined, along with progress in gaining mandates from various iwi groups.

Attempts to insert aboriginal title extinguishment clauses in Treaty claim settlements are causing friction with claimants, who do not wish to forfeit as yet ill-defined rights. The use of “relativity clauses” also needs review, as claimants expect them, but they undermine the Crown objective of finality. The originating Tainui relativity clause was included “to recognise the risk of it being the ‘first mover’ under the settlement envelope concept.”

A Treaty Agencies Research Committee has been attempting to improve co-ordination among the various bodies undertaking claim research.

Some land banks are “full” ie, in the Crown’s view, there are sufficient properties in the bank to settle the claim, yet claimants seek to have further properties added. Wellington is one example. To minimise the costs of holding land in land banks, some properties have been placed under private managers pending the hearing and settlement of claims.

Several claimant groups are challenging the scheme allowing state owned enterprises to sell land under claim with a memorial on the title allowing a later buy back by the Crown. The briefing paper acknowledges that the cost of buying back these properties if the Waitangi Tribunal orders this could be prohibitive, especially where they have been subdivided.

For forestry claims, a 6 month research initiative has been proposed which would bring historical research on Central North Island claims up to standard and allow decisions on further progress.

The paper includes a section on each claim currently before the office:

•  Under negotiation: Ngäti Awa, Taranaki, Te Roroa, Ngaati te Ata, Waiwhetu, Te Ariki, Ngäti Turangitukua,

•  Settlements: Ngäi Tahu, Whakatohea, Te Maunga Railways, Rotoma, Waikato-Tainui, Waimakuku Trust, Hauai.

Ministry of Justice Post-election Briefing Paper

October 1996. Ministry of Justice

This paper contains a section on Mäori offending, which notes that the government has refused to contemplate a parallel justice system for Mäori, but continuing high Mäori offending requires a response which works within Mäori communities. An examination is required of “the role of the state in offence resolution and justice practices … in terms of Mäori communities both managing conflict within those communities and taking some responsibility for offending behaviour of community members.” Examination is also needed of a possible future role for Mäori in the purchase, organising, management and delivery of services for Mäori who offend or are at risk of offending.

The paper also comments on the increasing constitutional significance of the Treaty of Waitangi. The formal legal status of the Treaty does not equal the sum total of its constitutional significance. Reaction to the government’s 1994 Treaty Claims Settlement proposals has given “particular impetus” to the trend for Mäori to demand constitutional reforms which are Treaty based.

A momentum for change is now well-established. Treaty settlements will address some concerns, but not the demand for greater participation in political decision-making. Informed dialogue is now required. “The challenge for government domestically and internationally is to advance the debate about the constitutional status of the Treaty in a direction that will promote movement towards mutual understanding. ... the Crown should not act prematurely by adopting fixed positions or closing off options. The Crown might approach the issue by itself becoming better informed and encouraging all New Zealanders generally to do the same.” A public information campaign “may be helpful”.

Overseas

R v Adams, R v Cote

SCC/23615 & 23707. 3 October 1996. Supreme Court of Canada

Internet: http://lazio.crdp.umontreal.ca/cgi-bin/CSC_list?recent+0+EN

In 3 cases decided in August 1996 (R v Van der Peet, SCC/23803; R v Gladstone, SCC/23801; R v NTC Smokehouse Ltd, SCC/23800) the Supreme Court of Canada outlined a method for deciding in what circumstances aboriginal rights which are protected under s35(1) Constitution Act 1982, must be recognised in Canada. First, the court must “determine the precise nature of the claim being made, taking into account such factors as the nature of the action said to have been taken pursuant to an aboriginal right, the government regulation said to infringe the right, and the practice, custom or tradition relied upon to establish the right.” Then it must “inquire whether the activity claimed to be an aboriginal right is part of a practice, custom or tradition which was, prior to the contact of Europeans, an integral part of the distinctive aboriginal society of the aboriginal people in question.” As part of this analysis, it must also establish whether there is “continuity between aboriginal practices, customs and traditions that existed prior to contact and a particular practice, custom or tradition that is integral to  aboriginal communities today”. The court noted that there should not be an exclusive focus on relationships with land.

In October 1996, the Supreme Court issued further 2 decisions which clarified this last point. In R v Adams the court quashed a conviction against a Mohawk charged with fishing without a licence. On the same day, in R v Cote the court quashed a conviction against an Algonquin who had, with a group of students from the tribe, entered a fishing area without paying for vehicle access, and fished without a licence under the same regulations as were involved in the Adams case. In both cases the court stressed that aboriginal rights do not necessarily rely on a prior finding of aboriginal title over an area and are not “inherently based” on such title. In R v Adams the court said that:

“... while claims to aboriginal title fall within the conceptual framework of aboriginal rights, aboriginal rights do not exist solely where a claim to aboriginal title has been made out.  Where an aboriginal group has shown that a particular practice, custom or tradition taking place on the land was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradition.  The Van der Peet test protects activities which were integral to the distinctive culture of the aboriginal group claiming the right; it does not require that that group satisfy the further hurdle of demonstrating that their connection with the piece of land on which the activity was taking place was of a central  significance to their distinctive culture sufficient to make out a claim to aboriginal title to the land.”

In Adams, the court also held that the submersion of the lands constituting the fishing area during the construction of a canal and an agreement in which the Mohawks surrendered the lands around the fishing area for $50,000 in compensation did not demonstrate a clear and plain intention for extinguishment of an aboriginal right to fish, the test which was outlined in R.v Sparrow [1990] 1 SCR 1075, although they did demonstrate a clear and plain intention extinguish any aboriginal title to the lands of the fishing area.

[ed: these judgments suggest that aboriginal rights exist as a category distinct from aboriginal title. Paul McHugh has described indigenous rights over land which are non-exclusive and do not involve a claim to complete ownership over land “non-territorial aboriginal title”. This terminology has been adopted in the NZ courts eg Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 682 at 692. However such non-territorial title is a remainder from a once exclusive territorial aboriginal title. As McHugh puts it “At the outset all aboriginal titles would have been territorial.” The Mäori Magna Carta p139. These Supreme Court judgments do not make clear how aboriginal rights might differ from non-territorial aboriginal title, if at all. Another issue is whether these judgments will affect the wording of extinguishment clauses in Treaty claim settlements. They (and the Wik decision, see below) will certainly make iwi even more reluctant to sign such clauses.]

The Wik Peoples v The State of Queensland and Ors; The Thayorre People v The State of Queensland and Ors

B8 & B9/1996. 23 December 1996. High Court of Australia. Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ

Internet: http://www.austlii.edu.au/au/cases/cth/high_ct/unrep299.html

Pastoral leases make up approximately 40% of Australia’s land mass, and form 70 to 80% of the total area of some states. Pastoral leases are established by state and territory legislation and include a variety of terms and conditions. The preamble to the Native Title Act 1993 contains Parliament’s understanding of the decision in Mabo No 2; “ . . . native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.”

In a test case concerning 2 pastoral leases covering several thousand square kilometres, a majority of four to three (Chief Justice Brennan in the minority) held that native title rights and pastoral leases could co-exist and that the granting of a pastoral lease did not necessarily extinguish native title. Native title rights survive unless it can be shown on the particular facts that they are inconsistent with the rights of the lease-holder and are extinguished. Therefore where native title rights are in conflict with the rights of the leaseholder, the rights of the leaseholder prevail. A native title holder cannot exclude a lease holder from an area or interfere with pasture or water resources.

The majority therefore rejected the argument of the states that: “the grant by the Crown of a lease necessarily involves the acquisition by the Crown of the reversion which is expectant upon the expiry of the term. Accordingly, in granting the lease, the Crown exercises sovereign power in such a fashion as to assert absolute and beneficial ownership out of which the lease is carved. That absolute and beneficial ownership is, as a matter of law, inconsistent with the continued right to enjoy native title in respect of the same land.”

The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication (Mabo No 2 (1992) 175 CLR at 64). Whether by necessary implication a statute extinguishes native title depends on the language, character and purpose which the statute was deigned to achieve. In Queensland, the Land Acts establishing pastoral leases did not evidence a clear intention to extinguish native title. The Acts under which the leases were established limit the leaseholder’s interest to “grazing purposes only”, which amounts to exclusive rights to pasturage, interests which could be exercised without necessarily extinguishing native title interests. As the land was leased for the purposes of large-scale stock-farming, there was a very low level of actual occupancy by the leaseholder and it could be inferred that there was no parliamentary intention to expel aboriginal occupiers from the land.

The majority declined to apply British common-law tenure principles to pastoral leases, saying that pastoral leases give rise to unique interests in land, the scope of which must be derived from statute. The use of the term “lease” therefore did not assimilate pastoral leases with other forms of lease, and the right of exclusive possession did not necessarily apply. As Toohey J put it, “That a concept of feudal tenure brought to Australia but subjected to change through a complex system of rights and obligations adapted to the physical, social and economic conditions of the new colony, in particular the disposition of large areas of land (often unsurveyed) for a limited term for a limited purpose, should determine the fate of the indigenous people is a conclusion not lightly to be reached.” And Kirby J: “It is the peculiarity of the legal rights conferred by such statutory lease, in the factual setting in which they were intended to operate, which permits the possibility of coexistence of the rights under the pastoral lease an native title.  Such would not be the case where an estate or interest in fee simple has been granted by the Crown.” The particular terms of a lease and the scope of the applicable native title will differ from case to case. Competing interests must be ascertained by an examination of evidence in order to judge whether an inconsistency will extinguish the particular native title proved.

[ed: despite the limited nature of the native title which has been recognised, and the ease with which it can be extinguished by contrary acts of pastoral leaseholders, elements in the Australian government have worked themselves into a frenzy over the decision.

Several State governments, notably Queensland and Western Australia, have called on the Federal Government to legislate for the extinguishment of native title rights on pastoral lease-holdings. The Queensland Government has advised pastoralists to halt development activity until the situation is clarified, in case development of property extends beyond the rights of the pastoralist under the lease and so conflicts with native title rights to the land. Queensland and the Northern Territory continued to issue pastoral leases after the enactment of the Native Title Act in 1993 on the understanding that pastoral leases extinguished Native Title. They are concerned those leases will be invalid or subject to Native Title claims. Prime Minister Howard issued a statement expressing disappointment with the Court’s failure to resolve “uncertainty” about the relationship between native title and pastoral leases. Acting Prime Minister Fischer has criticised the court for showing unacceptable judicial activism.

For NZ, the most interesting aspect of the decision are comments that the English common law must be properly adapted to the circumstances of the colony and, for example, “there is no particular reason to be drawn from English land law which renders it anomalous to accommodate in Australian land law notions of communal title which confer usufructuary rights” (Gummow J). It may add an interesting aspect to current debate about High Country pastoral leases and the Ngai Tahu settlement.]

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