February 1997 Contents

Mäori Land Court & Appellate Court

Re Pouakani Block

Re Mangere Village Lot 5A

Waitangi Tribunal

Rangahaua Whänui Project

Other Courts and Tribunals

Aotearoa Mäori Radio Trust  v A-G &Te Reo Whakapuaki Irirangi (Te Mängai Paho)

Taranaki Fish &Game Council v McCritchie

Berkett v Minister of Local Government

Kaitiaki Tarawera Inc v Rotorua DC

Whänau A Rongomaiaia v Masterton DC

Parliament

Maiden Speeches

Education (Te Whare Wänanga O Awanuiarangi) Order 1996

Fisheries (Porangahau Taiapure) Order 1996

Cabinet Committee on Treaty of Waitangi issues

Reports & Articles

Report of the Independent Review Committee on Mäori Reserved Lands

Ministry of Mäori Development, Post Election Brief

Report re Aotearoa Television Network & Te Mängai Paho

Speeches & Press Releases

Waitangi Day speeches

 

Mäori Land Court & Appellate Court

Re Pouakani Block

CJ 1994/37 Taupo MB 6 December 1996 Isaac J

This was an application under s45/1993 for the Chief Judge to correct an order of the land court. In 1887 the land court determined the title to the large Taupo-Nui-Atea block in the central North Island. A dispute arose about the western boundary of a subdivision on the north western edge of the block, known as the Pouakani block. The boundary divides the lands of Ngäti Maniapoto and Ngäti Tuwharetoa. The dispute was the subject of a Royal Commission inquiry in 1889, resulting in the enactment of s29 of the Native Land Court Acts Amendment Act 1889, which provided that the boundary of the Taupo-Nui-Atea block should be fixed in accord with the report of the commission.

This application essentially concerned the proper interpretation of s29, and whether it fixed the position of the boundary. The matter was considered by the Mäori Land Court in 1891 (which determined that the boundary was not fixed by the 1889 Act and should be repositioned further east of the line described in s29), and again in 1988 (where it was determined that the boundary had been fixed by s29). The matter was also investigated by the Waitangi Tribunal (The Pouakani Report 1993), which considered that the boundary was not fixed and could be reinvestigated by the Mäori Land Court.

Held: the various interpretations of s29 arise from the relationship between the section’s preamble and parts 1 and 2. The section provides:

“. . . And Whereas the honourable Theodore Minet Haultain and Hanita Te Aweawe were . . . appointed to be a Royal Commission to inquire among other things as to the correct boundary …. And Whereas it is expedient that effect should be given to such report …. and that further investigation should be made with regard to the blocks of land known as Maraeroa and Horaaruhe-Pouakani.

Be it enacted as follows: The western boundary of the land known as Taupo-Nui-Atea is hereby declared to be and shall be deemed to be the line defined as such western boundary in the said report and shown in the map numbered 180 and deposited in the office of the Surveyor General in Wellington.

The Lands excluded from the Taupo-Nui-Atea Block by the alteration of the boundary and the subdivisions of the Horaaruhe-Pouakani Block known as Pouakani . . . be hereby declared to be Native Land within the meaning of the Native Land Court Act 1886 and its amendments.”

The parties now before the court (the Crown and the applicant - who had also been the claimant before the Waitangi Tribunal) agreed that historic survey evidence, which the Waitangi Tribunal had found to be contradictory as to the location of the western boundary, was not in fact contradictory, so that the issue became one of the interpretation of s29.

The preamble required the Royal Commission to inquire into “other things” apart from the correct position of the boundary. The last part of the preamble referred to “further investigation” of the named blocks, and included other lands set out in issues 2 and 3 of the Royal Commission Report, but did not referred to the western boundary. The second part of s29 refers to lands excluded from the Taupo-Nui-Atea Block by the position of the boundary, which were deemed to be Native Land and required further investigation, but did not refer to the boundary itself.  Accordingly the position of the western boundary was fixed by s29 and was not open for reinvestigation. The Mäori Land Court in 1891 was acting contrary to the 1889 Act and should not have altered the position of the boundary.

In Commission of Inland Revenue v Alcan New Zealand Ltd (1994) 3 NZLR 439 it is determined that words in a statute should be given their ordinary meaning unless there was a strong and sufficient reason to give the words another meaning which they were capable of bearing.  If words are capable of more than one meaning and the object of the legislation was clear, the words should be given “such fair, large and liberal construction as would best ensure the attainment of the object of the Act.”  The preamble of s29 set out the clear objectives of the section, and the words “the western boundary . . . is hereby declared to be and shall be deemed to have been . . .” unambiguously fulfil one of the stated objectives by fixing the western boundary in the position described. The application would be adjourned to enable the parties to consider further negotiations or seek further orders.

[ed: the judgment essentially reviews a Waitangi Tribunal finding that s29, the 1889 commission report and the plan referred to in s29 taken together do not give a clear position for the western boundary (Pouakani Report chapters 9 and 10).]

Re Mangere Village Lot 5A

81 Waikato MB 187. 19 February 1997. Carter J

This was a disputed application under s338(7)/1993 to appoint further trustees to a marae reservation. The trustees of the reservation allowed the marae committee to nominate one trustee. The committee wished to nominate 3.

Held: at most marae there are trustees and marae committees both involved in administration of the marae. The trustees deal with matters of “government and policy” while the committee deals with “day to day administration.” These two groups “normally function separately and each body values its independence, although both are working for the benefit of the Marae and its people.”

There is no procedure in the Mäori Reservations Regulations 1994 for the appointment of trustees. This was probably a deliberate omission by Parliament to allow the views of the users of the marae and custom and tikanga, which varies from marae to marae, to be taken into account.

Tikanga and custom are not static but evolve over time to take account of changing circumstances. For at least 45 years the trustees had determined the number and representation of trustees, and it would be wrong for the court to interfere in this arrangement. The marae committee would be limited to one nomination.

The reservation in this case was established under the mantel of the Kahui Ariki. It had been given to the people by an aunt of Te Puea Herangi for the purpose of a marae and meeting house. Te Puea had recommended that the original 16 trustees be reduced to 3. The trustees had been the decision makers in all subsequent trustee appointments.

Finally, the court noted the state of the title and recommended that since the reason for establishment of the reservation had been satisfied ie a marae has been built, the trustees and the Waikato District Mäori Land Board or its successor (probably the Chief Executive of Te Puni Kokiri) should consider revesting the land in the original owner - the aunt of Te Puea, Te Paea Paro.

Waitangi Tribunal

Rangahaua Whanui Project

December 1996. Te Manutukutuku. Director, Waitangi Tribunal.

The 3 volume national overview of claims was scheduled for completion at the end of 1996. It is intended to give decision-makers “a clear idea of the total potential of historical land claims throughout the country.” The whole Rangahaua Whaanui project “demands a suite of policy responses by Government. Initially there should be a reconsideration of the overall framework for claim settlements. That work would look at whether the early estimates which informed the fiscal envelope policy still hold, or whether there is a need to instigate an early review.” Working papers are already available from the tribunal on the Auckland, Volcanic Plateau, Rohe Potae, Whanganui, Wairarapa, Hawkes Bay, Wairoa, Wellington and Northern South Island districts and on national themes of Mäori Land Councils and Mäori Land Boards, gold mining policy and legislation, the foreshore, and the operation of the Native Townships Act.

Other Courts and Tribunals

Aotearoa Mäori Radio Trust and Another v Attorney-General and Te Reo Whakapuaki Irirangi (Te Mängai Paho)

CP NO 6/97. 23 January 1997. Wellington High Court. Gendall J

This was an application for an interim injunction to prevent Te Mängai Paho (TMP) from reducing further payments to the first and second applicants, Aotearoa Trust and Aotea Mäori Radio Ltd (AMR).

TMP was established in 1993 under s53A of the Broadcasting Act 1989 to develop policy and administer funding specifically to promote Mäori language and culture using appropriations from Parliament and other sources such as the public broadcasting fee.

The essence of AMR’s complaint was that, after receiving gradually reduced funding since its establishment in 1989, AMR was advised by TMP in September 1996 that it would receive in 1997 funding 15% below that which it had applied for.

AMR alleged that: (i) TMP failed to have regard to the criteria for allocating funds in s53E of the 1989 Act, and so failed to take relevant considerations into account, or took irrelevant considerations into account, or: (ii) TMP’s decision to reduce funding was irrational or unreasonable, or: (iii) TMP failed to consult with the applicants before developing funding policies or making a funding decision and so misdirected itself or acted unfairly.  A second cause of action alleged that statements made by TMP and past funding gave rise to legitimate expectations that funding would continue and would not be substantially varied, and that this included an expectation that a period of time would be allowed for the applicants to comment and/or object. The applicants sought an order setting aside the decision of TMP to reduce the funding or alternatively an order staying such a decision pending recommendation of the Waitangi Tribunal.

Held: the application should be declined. Provision of funding to promote and protect Mäori language and culture through broadcasting is a function requiring “a large element of social and cultural judgment, as well as expertise in matters of Mäori language and culture”, balancing the needs of competing applicants. Challenges to TMP policy generally were not relevant to AMR’s individual application. AMR received and would receive substantially more than other iwi/regional broadcasters, even taking into account AMR’s broader coverage. On the material before the court TMP could legitimately reach the decision it did. There was no indication of any misdirection by TMP nor of taking into account of irrelevant considerations or failing to give a proper consideration of relevant considerations.

As regards the unreasonableness or irrationality of the decision, following Wellington City Council v Woolworth’s New Zealand Ltd (No 2) [1996] 2 NZLR 537, the courts will not interfere where decisions have substantial policy considerations. There is a large policy and social element involved in the distribution of public funds for the protection and enhancement of Mäori language and culture, and a court would hesitate before holding that an individual application was unreasonable or irrational. As regards consultation, there was evidence of extensive consultation by TMP, the statutory requirement does not extend to consultation with each applicant for funds on individual applications.

Mäori and Mäori broadcasters do have legitimate expectations that TMP will make available funds to promote Mäori language and culture in broadcasting. However no individual broadcast can have a legitimate expectation of secure funding at a certain level given competing claims on the available fund. This ground was therefore tenuous.

As to the argument that there was a legitimate expectation of 6 months notice of any reduction in funding, as AMR anticipated itself some reduction after 6 months this argument was weak although not untenable.

Overall, AMR’s case was not untenable, but certainly not strong. The interim order sought to have TMP maintain funding at 1996 levels, yet this would produce a figure higher than AMR itself had budgeted. ANR also had some financial reserves. A substantive hearing could be obtained within a few months. Also, there had been delay in seeking the interim order. Accordingly, in all the circumstances an interim order was not reasonably necessary to protect AMR in the short term.

Taranaki Fish and Game Council v McCritchie

CRN: 5083006813-14. District Court Wanganui. 27 February 1997. Becroft J

The defendant was a Mäori male from a small rural settlement close to the Mangawhero River. He was observed fishing for trout with a conventional rod and line without a fishing licence and using a lure forbidden by an anglers notice applicable to the area. His rod was confiscated by a ranger and he was charged with using prohibited fishing tackle, and fishing without a licence.

The defendant had lived in the area and fished in the river since he was a child. The river was within the rohe (area) over which his hapü had manawhenua. He was one of the main fishermen for the local local marae. On this occasion he was fishing for trout to feed his family, and genuinely believed he was exercising a traditional Mäori fishing right according to proper protocol. Kaumätua evidence as to traditional Mäori fishing in the Whanganui region supported the defendant’s claims. Factors included:

•  The river was regarded as a taonga over which the people held rangatiratanga;

•  There was a sacred aspect to the river. Karakia were still said before fishing;

•  The defendant was the main provider for the local marae with full authority from the local hapü to fish;

•  Fishing for commercial gain was not permitted;

•  He did not require permission every time he fished, but had an inherent right to fish as a descendant of those holding manawhenua and because he was specially regarded for his role as a provider for the local marae;

•  River food was often gathered for manuhiri and such provision was important culturally;

•  Methods used were both traditional and modern;

•  The species of fish were not relevant - as rangatiratanga gave authority to fish whatever was in the river. Accordingly, no distinction was made between fish present before or after 1840;

•  Fishing licences had never been sought or used and were regarded as demeaning in that they placed the rangatiratanga of the local people under that of outsiders.

Another witness said that Whanganui people were kaitaiki (guardians) of the river and could fish for trout not only because they had rangatiratanga over it, but also because:

•  Trout had depleted native fish species formerly relied on;

•  Non-Mäori had historically damaged traditional fisheries eg by destruction of rapids to allow riverboat passage and the introduction of trout without seeking permission from iwi;

•  There was a right of development of indigenous fishing practices.

Held: the charge concerning fishing tackle should be dismissed as it contained technical problems which meant that it failed to disclose an offence.

As to the second charge, s26ZI(1)(a) Conservation Act 1987 makes it an offence for any person to fish for a “sport fish” (a term including trout) from any fresh water during an open season without a current licence. The defence relied on was s26ZH providing that “Nothing in this part of this Act shall affect any Mäori Fishing Rights” - the exact wording of the former s88(2) Fisheries Act 1983 - and section 4, providing that the Conservation Act shall be “so interpreted and administered as to give effect to the principles of the Treaty of Waitangi.”

Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, concerning the former s88(2), establishes that there is an onus on the balance of probabilities on the defendant to make the defence. The offence is one of strict liability, but “to make sense of the Act”, s26ZH must be a separate defence from very narrow defences allowed in the 1987 Act for offences of strict liability (at s43B(2)).

The defence was not negated by s10 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 which provides that Mäori rights to non commercial fishing for species subject to the Fisheries Act 1983, however arising, are not to provide a defence in any proceeding. While the Fisheries Act 1983 rules out a defence of Mäori fishing, the Conservation Act expressly includes it. A large and liberal approach was required, and the Minister of Fisheries had given assurances in the past that non-commercial fisheries were not intended to be affected by the 1992 legislation.

Te Weehi has been followed in MAF v Love [1988] DCR 370, MAF v Hakaira & Scott [1989] DCR 289; Green v MAF [1990] 1 NZLR 411; Rawere v MAF (1991) 6 CRNZ 693; Paku v MAF[1992] 2 NZLR 223. There is however no caselaw concerning introduced fish species.

The Conservation Act is “unique” in that there is a combined defence in s26ZH and a directive in s4, which lays a much stronger basis for defence than in Te Weehi, where only s88(2) was relied on. The reference to the Treaty in s4 effectively incorporates it into the Act (NZMC v AG [1987] 1 NZLR 641, 655 and Hoani Te Heuheu Tukino v Aotea District Mäori Land Board [1941] AC 308). The Treaty is to be interpreted widely and effectively as a living instrument (NZMC v AG at 655), especially since the wording of s4 is similar to that in NZMC v AG. The “principles” of the Treaty include but are not confined to the express terms (NZMC v AG (Privy Council case) [1994] 1 NZLR 513).

Decided cases are unclear whether Mäori fishing rights mentioned in s26ZH derive from common law aboriginal title or the Treaty or both (The nature of aboriginal title is summarised in Te Runanganui o Te Ika Whenua Inc Soc v AG [1994] 2 NZLR 20, 23).

Arguably, aboriginal title rights may be more easily “frozen in time” than Treaty rights which are “living”  and can take account of new developments, although the Court of Appeal has made obiter comments that there is little difference between the two (Te Runanga o Muriwhenua Inc v AG [1990] 2 NZLR 641, 655). The Waitangi Tribunal however has argued they are indeed different (Muriwhenua Fishing Report 1988). There has also been academic writing on the subject. McHugh “Aboriginal Title in NZ Courts (1984) 2 Canta LR 235; “The Legal Status of Mäori Fishing Rights in Tidal Waters” (1984) 14 VUWLR 247; “Sealords and Sharks: The Mäori Fisheries Agreement (1992) NZLJ 1992 354 and Boast “Treaty Rights or Aboriginal Rights RP Boast [1990] NZLJ 32. And see Te Weehi (proceeded on the basis of aboriginal title) as opposed to Paku, Hakaria & ScottMAF v Campbell (DC Gisborne CRN 8016004552 30 Nov 1988 Cullinane J) and Ngai Tahu Mäori Trust Board v AG (HC Wgtn CP 559/87 2 November 1987 Greig J).

However, in this case the issue did not arise because of the s4 reference to the Treaty. If the 2 are virtually synonymous, then they are to be given a wide interpretation.

The Mäori right to “fisheries” preserved by the Treaty is to be interpreted in a wide sense. Waitangi Tribunal reports show “their fisheries” means the activity and business of fishing, including fish caught, fishing places, and the right to fish, and a development right. A spiritual aspect of guardianship and conservation is also included. This suggests the Treaty right includes more than species caught in 1840.

North American and Canadian cases eg US v State of Washington (1974) 384 F Supp 312, 401, Simon v The Queen 24 DLR 390, 402-403 support the view that aboriginal fishing rights should not be limited to indigenous species and traditional methods.

It would be absurd to suggest Mäori must distinguish between pre Treaty and post Treaty fisheries when fishing.

In addition, because traditionally a line and hook were used there was no “traditional method” issue in this case.

The Waitangi Tribunal has identified a right to development which encompasses new species and methods of fishing (Muriwhenua Fishing Report p234ff and Ngai Tahu Sea Fisheries Report 1992 pp252-259) and the Court of Appeal has held that Mäori have an interest in the modern commercial quota system for fisheries, including new species. An extension to introduced species would therefore be “reasonable” in this case.

Another approach is to ask whether new fish species would have been in the contemplation of the signatories to the Treaty in 1840 (see Te Ika Whenua p24). They would.

In Ngai Tahu Trust Board v DG of Conservation [1995] 3 NZLR 553, also concerning s4 Conservation Act 1987, a development right argument was considered, and a whale watching enterprise operated by a tribe was found to be a matter within the ambit of the Treaty. Arguably in this case the nexus between fishing for an introduced fish and the Treaty was stronger than in the whale watching case.

As for arguments that trout, since they are under a special regime as imported fish, have been excluded from the scope of Mäori fisheries right by successive legislation:

•  Fisheries legislation including the forerunner to s88(2) preserving Mäori fishing rights had not excluded trout from that preservation;

•  “Whatever the extent of the principle of the “right to govern” it does not extend to the right to remove or restrict precisely that which the Treaty protects, ie, “full exclusive and undisturbed possession of their fisheries” … The Courts are naturally reluctant to ascribe such an intention to Parliament”;

•  The legislation does not expressly limit the right. Clearer words would be required. The earlier view of the courts that Mäori had very limited traditional fishing rights had been shown to be flawed (see for egTe Ika Whenua at 26);

•  There was no evidence of Mäori consent to any extinguishment of their aboriginal title rights;

•  The defence in s26ZH is not qualified in any way;

•  Special exemptions concerning trout for the Te Arawa and Tuwharetoa people, rather than demonstrating that Mäori were generally intended to come under the scheme for trout applying to all New Zealanders, can be interpreted as demonstrating that special existing fishing rights were being recognised;

•  It would be an absurdity to require Mäori to distinguish between whether fish had been introduced since 1840 or not.

Accordingly the defence is made out on the balance of probabilities.

The effect of the decision is that Mäori from hapü having traditional authority over a river fishery might fish for introduced trout without a licence provided:

•  they do so in terms of kawa/protocol and are able to prove they are properly authorised;

•  the fishing is for “personal/family consumption or for hui/tangi and the like” and;

•  the fishing does not impinge on the conservation and sustainability of the trout resource.

Some will see the decision as an injustice as it reserves rights to Mäori not enjoyed by others, however, if the Treaty is to be paid more than lip service, it is inevitable that such consequences should flow from it. Hopefully the Fish and Game Council and hapü/iwi of the Whanganui river region will negotiate a protocol to avoid similar prosecutions in future.

[Ed: many facts were agreed between the parties in the interests of making this a clear test case. One factor not fully explored was whether statements relating to destruction of traditional fisheries in the Whanganui river, and impacts on “Whanganui river iwi” have reduced relevance for the Mangawhero river since the Mangawhero river is not a tributary of the Whanganui river.

His Honour said that his decision would be interpreted by some as at the “liberal” end of the spectrum. However, because the legislation here included both a protective provision for Mäori fishing rights and a positive requirement to give effect to the Treaty, the ultimate decision is not a very surprising one. If there is any “liberal” aspect it may be in some of the detail, notably:

•  The extent of the Mäori fishing right preserved. Fishing must be for “personal/family consumption or for hui/tangi and the like”. This includes everyday non-commercial consumption. Previous decisions have placed emphasis on taking for special occasions such as hui or tangi or similar public gatherings;

•  The discussion of the difference between common law aboriginal title rights and Treaty rights. The judgment suggests that the common law rights may be more “rigid” than Treaty rights. Canadian and North American cases have however given aboriginal title a wide definition and application;

•  The suggestion that “Whatever the extent of the principle of the “right to govern” it does not extend to the right to remove or restrict precisely that which the Treaty protects, ie, “full exclusive and undisturbed possession of their fisheries” … The Courts are naturally reluctant to ascribe such an intention to Parliament”. This may be no more than a statement that aboriginal title may not be removed without clear words of intent from Parliament. It suggests however something more than this - that the Treaty limits the right of governance which Parliament has;

•  the suggestion that it is practically absurd to ask Mäori to distinguish between different types of fish when fishing. Yet this is a feature of fisheries management generally.

The Court said it would have been helpful to have the Waitangi Tribunal’s Whanganui river report to consider. That long awaited report is due later this year.]

Berkett & Ngahau v Minister of Local Government & Wills

A6/97 23 January 1997 Environment Court. Bollard J, AH Hackett, IG McIntyre

This was an application to subdivide farming land on Motiti island. Some local Mäori opposed the application on the grounds that the land had been alienated from Mäori without payment, and that the whole island was waahi tapu.

Held: evidence showed that money had been paid to local Mäori for the land. In any event, title to the land was registered under the Land Transfer Act 1952 so that the court lacked jurisdiction to consider whether the price paid was fair or whether those who sold the land had tribal sanction to do so.

Evidence that the whole island was waahi tapu was disputed by local kaumätua. Identified pa sites were well protected in the proposed conditions attaching to the subdivision consent. These included the registration of consent notices requiring that the sites remain undisturbed.

Considering s6(e) and s7(a) and kaitiakitanga, given that the island was not under any district plan so that there was an increased opportunity for non-rural developments to occur, the consent should also contain a requirement (in the form of a consent notice) setting limits on building development for an interim period until a district plan had been notified and there had been full consultation with local Mäori.

As for the existence of a right of way which did not appear as an encumbrance on the land titles involved, this was most likely because early native land court partition orders creating the present title had not defined the right of way on the ground. The Land Transfer Office suggested that an application could be made to the MLC to order the LTO to enter the right of way on appropriate titles.

While s406(1)(a)(ii) provides that a territorial authority ought not to grant a subdivision consent where this would not be “in the public interest”, there was no suggestion that it would be contrary to the public interest that the Crown might be faced with a larger compensation bill if it determined that it should return this land to local Mäori after it had been subdivided. In any event, that would be too remote an issue under s406 since no claim was lodged in this case, let alone determined and even if a claim were advanced it might well not be successful. In addition, the Waitangi Tribunal is barred from recommending the return of private land such as this.

In an earlier interim decision in this matter (see Mäori LR Dec 1995 Jan 1996) it had been found that it was “good practice” in a case such as this for a planner preparing a report for commissioners to consult with Mäori. In fact this was a case where consultation had to take place in light of s8 requirements and the interim decision which had been made.

Kaitiaki Tarawera Inc v Rotorua District Council

A109/96. Environment Court. Bollard J, Dr AH Hackett, IG McIntyre

The district council successfully applied for the reference by the applicant group Kaitaiki Tarawera Inc to be struck out, since original submissions had been lodged when the group was an unincorporated society.

Whänau A Rongomaiaia v Masterton District Council

W008/97. Environment Court. Treadwell J, RG Bishop, JD Rowan

An appeal against a requirement that a consent for the development of a Mäori cultural centre should include a bond for the costs of a car parking area associated with the development. The court rejected the appeal, determining that the bond was appropriate and rejecting the argument that it was a challenge to Mäori values or the importance to Mäori of the proposed development.

Parliament

Maiden Speeches

Donna Awatere Huata. 19 February 1997

I have a mission: to do what I can to ensure that every single New Zealander, not just the well off, not just the clever, has the opportunity to reach their educational potential. Every Mäori member of Parliament in our past has promoted the idea that education is the engine of social and economic change for their people and I am simply following in their tradition.

Tuariki John Delamere. 19 February 1997

All the educational achievement in the world will not change the fact that when a Mäori attends a job interview, … he or she will most likely be judged by a person from the majority culture who will see them firstly as a Mäori - with all the negative connotations that may include.  We can enact all the legislation we want, but there is no law that can eliminate personal prejudices.  The best we can hope for is law which will serve as an indicator of what we as a society consider to be a reasonable standard of behaviour. We like to think that in New Zealand, we have a society where the law provides equality of opportunity. It is true that in this country we do not parade around in white sheets. Our prejudices are usually more polite, more restrained but no less pervasive.

 . . . In the use and governance of our returned assets there is no doubt we will make mistakes - just like Pakeha. However, we will finally be free from the threat of having our support cut off at the knees and our endeavours terminated at the first hint of error. We will move forward in a direction that we have chosen with methods we prefer. If we choose the wrong direction or the wrong methods then we will have to face the consequences. We will finally own our own mistakes and that will free us to truly own our own successes.

 . . . I could say that we must make a fair and reasonable restitution because any society containing within it a large number of people who are alienated from the rest of society, people who have no stake in the community and who feel no ties to that community are like a dangerous time bomb ticking away at its heart. …. But the reason we must make fair and reasonable restitution of grievances under the Treaty of Waitangi is that it is simply the right thing to do.

Nanaia Mahuta. 19 February 1997

… yet resolution of such grievances introduces a new set of problems for many tribes. Tribes will have to address sustainable management of new tribal assets, political governance, dispute resolution, Pan-Mäori vs Tribal interests and academic capture of the negotiation and post-settlement process. As a result of tribal settlements, advocacy of hapü interests is a danger that can result in new inequities within the tribe. Tribes themselves will have to resolve these conflicts; Parliament needs to understand these issues, but must stand aside from them. . . . In other words Treaty Settlements in themselves cannot guarantee a better life for tribal members unless the tribe have the skills to manage settlements wisely.

Georgina Te Heu Heu. 25 February 1997

The settlement of historic claims is not an end of the matter, but rather a beginning. It is an important step in establishing a stake for Mäori in our shared future, and in encouraging the conciliation of peoples.

For the defining feature of the historical fabric of Mäori and Pakeha contact over 200 years, is the Mäori endeavour to maintain their own autonomy, and equally, official attempts to restrain it. That has been at the heart of our forbears’ attempts to gain recognition for the Treaty. Put simply, autonomy is the right to control one’s own affairs. In the context of claims for land, it means the right of tribes to develop their own economic base and to fund their own programmes. Similarly with fishing, forestry and the like. It needs only to be added that one’s affairs are not limited to land and fish. They cover other things like language, education, health, the care of our children, the administration of justice. Future policy aimed at addressing disparities must accommodate the right of Mäori to regain a degree of autonomy within every development that is of concern to them. The direction for the future would suggest that Mäori be given the means to develop their own policy, and then to negotiate with Government the necessary policies and processes for resolving mutual problems. The days of having policies imposed are, I suggest, inappropriate for Mäori, in the current environment and do no accord with the Treaty.

 

Dover Samuels. 25 February 1997

The recent debacle and subsequent legal circus that has emerged over Mäori fisheries, the allocation of assets and quota, is a blatant example of how Government policies have polarised tribe against tribe, whänau against whänau and iwi against urban Mäori. The application to the Law Lords of the Privy Council has made a mockery of Mäori sovereignty over their own taonga largely contributed to by the inherent flaws and detail within the Mäori Fisheries Legislation.

…. Mäori must be answerable for their own actions. There has been a growing realisation within Mäoridom that we can no longer hide ignorance and poor judgment behind a facade of cultural immunity. We can no longer claim that tikanga allows us privileges that others, even those within our own iwi cannot share. It is no longer appropriate, and never has been, to use tikanga as a reason for denying women an equal role on the marae and in today’s society. Neither can we claim tikanga as a justification for nepotism and lowered standards.

Tariana Turia. 26 February 1997

The challenge for us is to believe that we have the legitimate right to what is consistent with out tikanga, and then find the appropriate ways to do it. These ways will differ from hapü to hapü, from Iwi to Iwi. …. We must exercise the legitimacy that we never gave up. There is a desperate need for us to get this relationship right. No nations divided against themselves can stand.

The Education (Te Whare Wänanga O Awanuiarangi) Order 1996

1996/352

This order establishes, under s162(2) Education Act 1989, Te Whare Wänanga O Awanuiarangi as a wänanga, and specifies the people (including staff and graduates) who are to constitute it. Commenced on 1 January 1997.

The Fisheries (Porangahau Taiapure) Order 1996

1996/349

This order establishes, under ss175 & 360(2) Fisheries Act 1996 a taiapure-local fishery at Cape Turnagain.

Cabinet Committee on Treaty of Waitangi issues

3 February 1997. PM media release

Members are: Douglas Graham (chair) Tau Henare, Simon Upton,  Jack Elder, John Luxton, Maurice Williamson, Tuariki Delamere, Brian Donnelly, Nick Smith, Neil Kirton.

Reports & Articles

Report of the Independent Review Committee to the Minister of Mäori Affairs

12 December 1996 RG Calvert, RW Davison, Dr TP Boyd

The Mäori Reserved Land Amendment Bill 1996 proposes that lessees on Mäori reserved land move to market rents rather than rents based on unimproved value and lose their current right of perpetual renewal. The Minister of Mäori Affairs appointed an independent committee to advise on appropriate levels of compensation for the changes the Bill proposed (see Mäori LR August 1996). The committee has reported that:

•  Compensation for lessees should reflect the permanent increase from the move to market rents. Therefore lessees should be paid in compensation the difference between the amount they would pay under the existing formula over the next 50 years and the new market rate. The Bill recommended only 21 years.

•  To make this formula work, the current unimproved value of the land in each lease needs to be assessed impartially and accurately and made secure against legal challenge. The value for each lease should therefore be independently assessed (as there is little valuation information now available on unimproved land) and enshrined in a schedule to the Bill.

•  An independent panel of 3 persons should make final determinations of market rental rates and land inflation rates for the purposes of the compensation formula. The Bill proposed that the Valuer-General undertake this task.

•  The Bill proposes a standard 7 year rent review period for leases (reduced from 21 years presently). The committee suggests there be one 7 year period, then the period should be set by the parties themselves.

•  The Bill proposes that 3 years after it is passed market rents will begin to be phased in over a 4 year period. The committee suggest that market rents be negotiated within 1 year after the Bill is passed and phased in over the following 2 years.

•  The committee proposes that any additional costs incurred by more frequent rent reviews and the requirement that lessees must offer the Mäori lessors a right of first refusal if they wish to dispose of their lease, are justifiable but basically unquantifiable and should therefore be met by a solatium payment of 5% of the lump sum compensation given to lessees and in any case not less than $500 per lease.

The total cost of compensation to lessees will be $59.1 million and $3.3 million in solatium payments.

[ed: the figure for total compensation had been estimated at $40 million. The report has been referred to the Justice and Law Reform Select Committee considering the Bill. The issue of compensation for the Mäori lessors meanwhile remains unresolved.]

Ministry of Mäori Development. Post Election Brief

October 1996. Te Puni Kokiri

The document opens with a “strategic overview” which identifies 4 areas where government response is required: Mäori development, resolution of Treaty grievances, governance issues and social cohesion.

Mäori development: Lack of clearly expressed political will by government sends a signal to departments not to seriously plan to reduce disparities Mäori face in welfare, health, education etc. Steps required include Cabinet or legislative directions to departments, outcomes for Mäori included in CEO performance agreements, and Mäori service providers to be employed wherever practicable.

Treaty grievances: on full and final settlements: “Cutting off legal avenues will not stop grievances being expressed in other ways. To assuage feelings of grievance it is necessary to show trust and good faith, and if anything, to err on the generous side. The cost of fair settlements will be repaid many times in goodwill, nation building, and economic growth.”

“It is through trusting tribes to exercise power responsibly in the public interest that the Crown can perhaps go furthest in recognising tino rangatiratanga over Crown lands. Mäori accept that conservation and land management values are paramount, but tino rangatiratanga requires that tribes affirm these values freely of their own authority, rather than appear to be coerced by conditions of settlement.”

In light of the rejection of generic settlement policies proposed by the Crown without consultation, there is a need “to move promptly towards building a shared vocabulary and understanding, to enable constructive dialogue on Treaty matters.”

Governance issues: “It is only when being part of NZ stops Mäori from being themselves, or is available only on unequal conditions, that Mäori seek radical changes.”  There should be support for local autonomy initiatives (including review of Te Ture Whenua Mäori Act), support for culture, improved dialogue and confidence between Mäori and the Crown.

Social cohesion: relations between Mäori and Pakeha in the community are generally good, however in South Auckland an “untenable” situation for Mäori youth is developing which requires “rapid development in the prospects for Mäori youth.” Mäori see little sign of real commitment by government to initiate action on the scale required to eliminate parity gaps. “In the short term the Government’s efforts towards harmony and justice themselves may introduce new strains, as the population comes to terms with the higher status of Mäori.”

“Policies to improve public understanding of Treaty issues are the main response available to the Government to assist in managing what, in effect, are minority Mäori issues in an environment of majority neglect or dissent. Teaching accurately the background to Treaty claims and correcting misinformation demonstrate good faith by the Crown and so build Mäori confidence in the nation.” Unless steps are taken reduce to reduce disparities, “social order in our cities” may be threatened.

The document recounts the history of the Ministry, created after the former Minister of Mäori Affairs, Winston Peters, rejected devolution of government programmes to iwi in favour of centralised intervention outlined in the Ka Awatea report. The role of ministry is to “design and enhance government policies” rather than carry them out. The ministry has 13 Treaty relations branch offices whose primary purpose is to “advise government of any risks in the Crown-iwi and hapü partnerships and to Crown-Mäori relationship”. They also provide a “local-level facilitation role ... between Mäori people and public, private and voluntary agencies.”

Other highlights:

•  The Treaty concerned collective rights over collective assets, and “Mäori women have an expectation that they will be represented fully in the decision-making structures and processes managing those collective assets”.

•  The ministry is undertaking a feasibility study for establishing a Mäori women’s rehabilitative unit or institution.

•  A strategic plan for the revitalisation of Mäori language is to be finalised by the end of 1997.

•  The Mäori asset base may be as large as $3.2 billion or 4% of GDP. It is made up of: Owners equity and self employed Mäori $900m, Farming $1400m, Agricultural/horticultural assets $238m, Fishing $450m, Forestry $201m.

•  An estimated $12 million in rates are outstanding on Mäori land.

•  A dialogue is required on constitutional issues. This should be low key at first to avoid the rhetoric such issues attract. In the meantime, the reform of the Trust Boards Act should continue along with other initiatives to practically increase Mäori control over their own affairs.

•  Claim co-ordinating bodies are required. These could reduce the more than 600 claims to “several dozen” by successful co-ordination of the many cross claiming groups.

•  To Mäori the December 1994 settlement proposals appeared “extraordinarily stingy”.

•  In Treaty settlements, a “better distinction between outright ownership and the property rights which make up ownership interests” offers a more fruitful approach than the present focus in the settlement process on mutually exclusive rights.

•  There is a concern about individuals benefiting from common assets, particularly those emerging from claim settlements. An iwi heritage proposal suggests that certificates issue, of no monetary value, but which confirm direct or indirect benefits from common assets a person is entitled to. The idea was trialled in the Maniapoto region in 1996 where beneficiaries were identified.

•  Te Ture Whenua Mäori Act is undergoing a major review.

•  The Taonga Mäori Protection Bill introduced by the new minister is “somewhat unclear in its objective”.

[ed: the briefing paper provides one of the most comprehensive views of the work of the ministry to date. Some aspects of the work of the ministry are hard to pin down. For example, it offers policy advice on “Relationships between Mäori people and the Crown” ($2.952 million) and “Mäori potential” ($3.788 million). From the descriptions provided of the work of branch offices, in the regions the ministry appears to act as a de facto cultural advisory unit to other departments.

The figures provided on Mäori land development are analysed in depth in The Independent 7 Feb 1997 p22.]

Service Delivery By Aotearoa Television Network And Te Mängai Paho

10 February 1997. Report of the Ministry of Commerce to the Minister of Communications

“Te Mängai Paho (TMP) has provided funding for a pilot television service by Aotearoa Television Network (ATN) from 1 May to 31 July 1996 ($2.6m), rolled it over for three months ($2.6m) and for a short term further service from 1 November 1996 to 6 February 1997 ($2.8m).

TMP, and not the Minister of Communications, has direct contract management responsibility and this is a critical element that underpins this whole report.  In other words, whether funding to ATN should continue is a decision for TMP, subject to availability of funding.

TMP did consider options for development of Mäori television, including particularly the pilot option.

In the Ministry’s view, the process followed by TMP for the selection of the successful tenderer was sound.

Overall the Ministry considers that while, theoretically, a tender basis other than a fixed price contract might deliver a lower price, TMP had valid reasons to select the $200,000 per week fixed price basis used for the contract, given its interest in achieving programme quality levels with substantial Mäori language content.

For most of the pilot ATN met the requirement to provide a financial report on its programmes (although the quality of the financial information left much to be desired).

Financial management issues should only have become of interest to TMP when they were of such significance that they obviously threatened the continued delivery of contracted services or indicate gross misapplication of funds for purposes other than legitimate programme activities.

Once TMP was aware in mid January of the possibility of funding beyond 6 February 1997, their concerns about financial management should have been but were not made known to the Minister of Communications before any future funding was considered by the Government.

The direct contract management responsibility remains with TMP.  Even if the Government were to make an additional $4 million available to TMP, it would remain the responsibility of TMP to decide on its provision to ATN and it would be their responsibility to cease funding if ATN no longer had the capacity to fulfill its contract.

TMP has adequately considered the decision to proceed with the pilot in the first instance and the merits of renewing the contracts on two occasions.  TMP has made a thorough effort of assessing the proposals for all contracts, including particularly the quality of the expected programme material and overall competence of the persons to be involved.

As with any retrospective investigation, particularly of a start up operation which is pioneering new services with a limited skill base to draw upon, questions can be raised about the processes.  Perhaps the most important of these would be about the decision to continue to base contracts on a fixed price tender, the extent of steps taken to avoid direct conflicts of interest by TMP staff and the extent to which TMP should take a direct role in dealing with ATN’s internal organisational problems.

The programmes that ATN supplied met, and for the most part exceeded, the performance criteria required of ATN by TMP.  Those criteria included, for example, a minimum requirement that 50% of all programmes be broadcast in Mäori, and a minimum of 3 hours broadcasting per day.

Restrictions on the purchase of assets by TMP may make it difficult to provide for assets to be available for services on optimal terms in some instances involving short term contracts.  More thought is needed about solutions which can avoid compromising TMP’s purchase role on the one hand and avoid the possibility of higher cost contracts on the other.

It will be desirable for decisions about the longer term environment for Mäori television policy to be made in line with policies of the Government at a relatively early stage.

The report concludes that:

“(a) TMP has acted lawfully in funding the production services of ATN.  The assumption of ownership of the transmitter being used for broadcasting would not appear to come within the scope of the statutory functions of TMP as set out in the Broadcasting Act.  While TMP has taken the view that this matter is likely to be remedied by the development of longer term Mäori broadcasting services, that the approach was a more efficient use of its resources than the alternative of seeking lease arrangements, and that it has helped to ensure the availability of future services, this matter does need to be addressed.  Clearly the issue of the transmission contract does not itself affect the legality of funding arrangements for ATN’s broadcasting services;

(b) TMP has managed the processes it has been involved in with the development of Mäori television in Auckland to date in a reasonable way.  It has made a thorough effort in assessing the proposals of both the original and the renewed contract including an assessment of the quality of the expected programme material and the competence of the persons to be involved.

(c) With the exception of providing financial information to the standard required throughout the contract, ATN has delivered the key programming requirements of its contracts and exceeded the minimum standards laid down for them.

(d) Significant improvement needs to be made to ATN’s financial management, and any future funding should be conditional on agreed standards being met.”

[ed: the government has since declined to provide a further $4 million to TMP for the further funding of ATN. As several commentators are pointing out, the genesis of the current controversy is the decision to establish a Mäori television station without adequate funding. Discussion about this issue between national Mäori organisations and the Crown is contained in the Second Report of the Joint Mäori/Crown Working Group on Mäori Broadcasting Policy. November 1996. This reveals that to establish transmitters in 18 major centres of Mäori population within 18 months would take $5 million, with an annual maintenance cost of $4 million. The national Mäori organisations note that “very significant work, including consultation” is required before conclusions are reached on how Mäori television services should be arranged. They also make the telling point that “in addition to having a duty in this policy area, the Government should have aspirations in this area as well.”]

Speeches & Press Releases

Waitangi Day speeches

Sir Michael Hardie Boys

“True equality can come only when our respective cultural values co-exist, on equal terms, as acceptable New Zealand options. This does not call for any denigration whatever of the European or other culture form which many of us spring. It is surely one of the glories of life in this land, that we all inherit and can rejoice in cultures other than out own: in both Handel and haka.”

Rt Hon JB Bolger

“I am proud that we have achieved major settlements and will go on working with Mäori to achieve many more.

I am pleased to be leading a new administration which has committed itself in the years ahead to grapple head-on with the problem of disparity in achievement between Mäori and non-Mäori. …. Our coalition agreement emphasises our commitment to working with Mäori to achieve their full and active participation in New Zealand society.”

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