March 1997 Contents

Mäori Land Court & Appellate Court

Tahora 2F2 Block and Wairoa District Council

Waitangi Tribunal

Muriwhenua Land Report 1997

Other Courts and Tribunals

Te Whänau A Takiwira Te Köhanga Reo v Tito

Parliament

Mäori Affairs Select Committee

Fisheries and entitlement

Reports & Articles

Criminal Prosecution. Law Commission paper

 

Mäori Land Court & Appellate Court

Tahora 2F2 Block and Wairoa District Council

4 March 1997. 96 Wairoa. Savage J

The Mäori owners of land adjoining land owned by the Wairoa District Council sought both an injunction against the building of a track on the council land, which might cause a trespass and/or nuisance onto the Mäori land and a determination under s18(1)(i)/1993 that the council land was held in a fiduciary capacity for Mäori. In an interim judgment concerning the preliminary issue of jurisdiction (reviewed inMäori LR Nov 1996 p2), the court determined that a fiduciary relationship is much broader than mere trusteeship and that it had jurisdiction to consider the application under s18(1)(i).

Held: as to the injunction sought under s19(1)(a) to prevent the formation of a “road” as a threatened trespass or injury to Mäori freehold land, the formation of a track on steep land adjoining Mäori freehold land would result in either the removal of the natural right of support on upslope land (a nuisance) or spillage or erosion on down slope land (a trespass) both of which are encompassed by s19(1)(a). An injunction quia timet had been sought - such a remedy should be granted with circumspection. The susceptibility of the land to damage by erosion which would take decades to heal was a the key factor in this case. An injunction forbidding the district council from consenting to or allowing the formation of the proposed track would issue.

As to the fiduciary application under s18(1)(i), the Wairoa District Council accepted that it was in exactly the same position as the Crown, which had given it ownership of the land. The land had been given, without compensation, to the Crown by a trustee acting for the former Mäori owners. This had come about after the collapse of “entrepreneurial adventures” with Mäori land on the East Coast in the 1880s, which involved pledging Mäori land as security. A statutory trustee, the East Coast Commissioner, was appointed by the Crown to manage the land assets which remained in Mäori ownership (the history is described in East Coast Commissioner v Pakowhai Block Committee (1951) M 1659 HC Gisborne). The commissioner, without consulting with the Mäori owners, offered free land to the Crown for a roadway, provided the roadway followed an alignment beneficial to the farm lands vested in the commissioner. In this arrangement, no doubt made with the best of intentions, the commissioner, a Crown appointee, was dealing with another arm of the Crown, the Public Works Department. The Crown did not build the roadway, but transferred the land to the district council.

The courts have been reluctant to give a close definition of what constitutes a fiduciary relationship, although many cases have indicated the characteristics of such relationships. Whether the relationship arises from the assumption of an obligation, or from the reasonable expectation of an entitlement has been much discussed, but one may be the converse of the other. See Liggett v Kensington [1993] 1 NZLR 257, 281 (CA).

This case has many parallels with the Canadian case of Guerin v The Queen [1984] 13 DLR (4th) 321, although the facts here are stronger in that one arm of the Crown acted specifically as a trustee, which was not the case in Guerin. Nor had there been any consultation or agreement to the alienation - as there was in Guerin.

Frame v Smith (1987) 42 DLR (4th 81) SSC identified the key factors in a fiduciary relationship as being:

•  that the fiduciary has scope to exercise some discretionary power

•  which can affect the beneficiaries legal or practical interests, and

•  the beneficiaries are peculiarly vulnerable or at the mercy of the fiduciary (followed in NZ in DHL International (NZ) Ltd v Richmond Ltd [1993] 3 NZLR 10 and for the third factor see Watson v Dolmark Industries Ltd [1992] 3 NZLR 311).

All 3 factors were present in this case. Accordingly, the district council was a fiduciary in relation to the owners of Tahora 2F2 with a duty either to build the road or return the land. There were clearly no plans to build the road.

The fact that the land had been proclaimed a road by the Governor-General under the Land Act 1924 did not give a statutory protection to the council. Section 12(6)/1924 deeming the land to be Crown land freed from all interests once notice of its proclamation had been published in the Gazette referred only to interests in land, not something less tangible such as a fiduciary relationship (see Miller v Collins [1896] 1 Ch 573 and Tainui Mäori Trust Board v AG [1989] 2 NZLR 513, 523), which is enforceable independently of any interest in land. Even if that view was wrong, to rely on s12(6) a valid process was required, which included getting consent from any lessees - s12(4)/1924. There had been a lessee, whose consent had never been sought. Nor was this omission repaired by s12(15)/1924 which provided that publication in the Gazette should be “conclusive evidence” that all conditions precedent to the issue of the proclamation had been taken. The consent of the lessee was not a condition precedent. Rather there was a clear prohibition on acting without consent, reflecting the seriousness with which parliament viewed interference with property rights. Section 12(15)/1924 provided that the executive may not dispense with consent of a lessee in any circumstances.

Accordingly, the district council held the land in a fiduciary capacity. A statutory remedy is provided by s18(1)(i), and a vesting order would be made to the beneficial owners of Tahora 2F2 in their respective shares, making the land General land owned by Mäori and part of the corpus of the incorporation. Whether the land should become Mäori freehold land and what should happen to its roadway status would require fresh applications.

[Comment: in 1993in an article entitled “A new role for the Mäori Courts in the resolution of Waitangi claims?’’ [1993] NZLJ 229 Paul McHugh suggested that s18(1)(i) might provide an alternative approach to the hearing and settlement of land claims. This decision seems to bear out that suggestion. It is particularly pertinent because the Waitangi Tribunal is unable to recommend the return of the type of land involved in this case, because it falls within the definition of “private land”, which the tribunal may not recommend for return to Mäori (s6 Treaty of Waitangi Act 1975). Whether the section will provide direct remedies in cases where the Waitangi Tribunal has found large scale breaches by the Crown of a Treaty duty (with close parallels to a fiduciary duty) remains to be seen (eg see Muriwhenua Land Report 1997 reviewed below) .

In this case His Honour also took the opportunity to comment on calls for the court to exercise fewer controls over the development of Mäori land. He described the east coast situation as arising from “the desire of landowners to engage in commerical adventures using the land as security, causing financial disaster and the loss of many thousands of hectares of Mäori freehold land. This created a catastrophe of the extent that the government had to step in to attempt to rescue the situation and the winding up took approximately 70 years. The temptation to see analogies in the modern day entrepreneurial use of Mäori freehold land is irresistible. A fine balance has always to be weighed between the primacy of retention of Mäori land on the one side and the development and management of land on the other. So it remains under the present statutory regime. So it will likely always remain for trading and using land as security necessarily involves the possibility of the loss of the land in the next financial blizzard. Some will say the risk is properly managed if the trading activities entered into relate to activities upon the land. Others take a more adventurous view and resent any fetters placed on them. The [east coast failure] provides a serious warning to us that the mistakes of the past seem to be doomed to be repeated in succeeding generations.”]

Waitangi Tribunal

Muriwhenua Land Report 1997

17 January 1997. Chief Judge ET Durie, MA Bennett, JR Morris, EM Stokes

This 456 page report concerns seven claims. The first claim was brought in 1986, but urgent hearings on fisheries issues and other matters delayed the hearing into the land aspects. This report deals with issues up to 1865, by which time most land in the claim area had left Mäori hands. The basic contention of the claimants was that the Treaty promise to protect Mäori could not have been upheld where Muriwhenua Mäori were so deprived of their lands as to be poverty stricken soon after European settlement began.

The Mäori context to early land transactions

The claims mainly concerned early land transactions between Europeans and Mäori ratified by the Crown and between the Crown and Mäori. The Mäori view of these at the time was important to understand. Under the “Mäori law of relationships” there was no right of land disposal independent of community sanction. Access to communities was by descent, but also by incorporation; by marriage, adoption, also by land allocation. This is what occurred with the early deeds. Land allocations to outside individuals were not alienations, but incorporations, to build the local community the rangatira represented. Land allocation was not permanent alienation, and recipients could not part with the land, but when they left it it reverted to the source. To Mäori “no other concept was imaginable”. Allocations to other hapü were different. But even so, land reverted to source if the hapü left the district. Mäori marriages to early European settlers were a reflection of this approach. Individuals who did not observe community rules were plundered (muru). Whanaungatanga or kinship, arohatanga or compassion, manaakitanga or hospitality, utu or reciprocity were values in the system of obligations and land rights.

The “Mäori law of contracts” involved a system of gift exchange among groups, and while this was altered by barter with Europeans, its underlying purposes, to maintain inter hapü relations, remained. It can be likened to a form of insurance.

The role of rangatira could be inflated by Europeans. Mäori society was “basically democratic” and there was class mobility. There were several powerful rangatira in the area in the period, Nopera Panakareao being the main one. The population of Muriwhenua was dramatically reduced by introduced disease in the 18th and 19th centuries, which is a background to the land transactions. At first contact Muriwhenua was reckoned to be one of the more intensely populated areas. But the population halved to about 5-8,000 by 1835. This probably aggregated settlements and elevated several important rangatira. Panakareao, linked to all hapü of Muriwhenua, emerged as a major leader. His consistent objective was to secure the future by having Pakeha dwell amongst Mäori. He was pre-eminent in Muriwhenua, apart from differences with Pororua Wharekauri of Nga Puhi in the Mangonui, Taipa area. The increasing trade in the 1820s and 1830s caused surface changes to Mäori life but “there was no social revolution.” Underlying tradition continued. Change was on Mäori terms and they remained in control with Europeans dependent on them, with Mäori practicing incorporation, particularly by inter-marriage. Even Christian missionary influences were indigenised. Panakareao encouraged, but controlled, missionary activity at Kaitaia.

Pre-Treaty transactions

There were 52 deeds in the region prior to February 1840, over ½ of them in the 12 months before the signing of the Treaty. One group of deeds concerned lands in western Muriwhenua around Kaitaia and were concluded with missionaries, the first established a mission at Kaitaia and was approved by an important Muriwhenua chief, Panakareao. The words of these deeds were not as important as the reality on the ground, which was that no vacant possession was delivered and Mäori continued living in the areas as normal with missionaries acknowledging that they lived in the areas on the whim of Panakareao’s people. They were not sales as the lands were held on sufferance. For the Europeans the deeds simply testified to future hopes. Several expressed a clear intention that land was held in trust for Mäori, others spoke of Mäori joint occupation, in others joint occupation continued in fact, in others the missionaries could only leave the land to their children ie they were entailed estates. To Mäori these were gift exchanges not sales.

The deeds used the words “tuku whenua” which was much debated in hearings. This should be examined in a contextual not a linguistic way. The Mäori world had not changed in a fundamental sense and Mäori understanding of permanent alienation was probably no better than European understanding of the primacy of ancestral tenure

“Western land sales were diametrically opposed to the traditional concepts. They severed relationships and terminated obligations, while, for Mäori, continuing obligations and relationships were essential. The evidence is that Mäori still expected those relationships and obligations to carry on. … whatever Mäori word was used to denote the sense of giving or conveying land, and no matter how neutral that word was, it would still conjure up a giving or conveying on Mäori terms, unless something else was done, within or outside the deed, to make it very clear to Mäori that something extraordinary was happening.” The deeds “simply did not convey the notion that a vastly different type of land deal was meant to be going on”. This is true for other Mäori words used in the deeds. There is a need to stand in the footsteps of Mäori when examining these issues. For eg English accounts of Mäori stating that there had been a sale are suspect when there was no Mäori word for “sale”.

Another group of deeds concerned a claimed 30,962 acres east of Mangonui harbour and were concluded with the Nga Puhi chief Pororua. These were disputed by Panakareao. These deeds merely gave a right to occupy to traders who milled timber in the area and married local Mäori. Mäori acted as if a relationship was intended. These were not sales.

A third group of deeds were in the central Muriwhenua area around Mangonui harbour, mainly with traders, and affecting 21,745 acres. Some were with Panakareao, some with Pororua. One large transaction covered 20,000 acres in the Oruru valley, may have been a means of settling the dispute between the 2 chiefs, and the deed indicated a trust for Mäori was intended. A final 2 transactions occurred on the Muriwhenua northern peninsula, the largest (51,200 acres) contained arrangements suggesting on the European side a trust for the local Mäori.

The tribunal concludes “By custom law, … no land interest existed independent of the local community and were freely transferable outside of it. Land rights flowed form an abiding relationship with the associated hapü.” “People did not buy land so much as buy into the community” “Despite the use of deeds and money, … the fundamental value system underpinning Mäori law appears to have been unaffected.” “It is far more likely the transactions were seen by Mäori as creating personal bonds, and as allocating conditional rights of resource use as part of that arrangement.”

The Land Claims Ordinance 1841 and Surplus Lands

This ordinance, under which the Crown purported to examine and ratify the pre-Treaty transactions, was modeled on an inappropriate NSW law which governed squatter claims sold to incoming settlers, where all parties had common cultural norms. The NSW law limited the amount a person might be Crown granted when a claim was proved, with the “surplus” of their transaction being retained by the Crown, on the basis that the Crown owned the underlying radical title to all land. This was hotly debated in Australia, but applied in NZ nonetheless. The prime purpose of the NZ ordinance was not the protection of Mäori, but the achievement of equity among European claimants, allowing a maximum of 2560 acres per proven claim. The legislation failed to spell out a need for inquiries into the right and title of the Mäori alienors, whether a sale was intended, whether a sale would breach any trusts, whether the hapü concerned had sufficient other lands. Yet such matters had been mentioned in other contexts by missionaries and others at the time.

Inquiries under the ordinance were thus inadequate. Because of a basic assumption that transactions were valid unless some injustice was plain, “the conditional occupations of custom law were … changed to permanent alienations” so the ordinance amended rather than implemented the pre-Treaty transactions. What was required was not a determination of settlement on the basis of deeds meaning little to the Mäori party, but a clear settlement plan protecting Mäori interests.

Some claims around Mangonui harbour and further east were not investigated at all because of a war between Panakareao and Pororua. The European claimants were given scrip certificates for lands elsewhere. The government assumed it owned all these uninvestigated claims, so for these lands there was never even a basic inquiry into Mäori intentions. Resident magistrate William White from 1848 added to the confusion by undertaking privately, but with government acquiesence, to consolidate the Crown claims around Mangonui by signing broadly worded deeds with Panakareao.

Even where claims were investigated, the Crown grants which issued were so imprecise that the Land Claims Settlement Act 1856 was passed to investigate and properly survey the grants and define the Crown surplus. Like the ordinance, this legislation failed to require that an adequate inquiry be carried out, nor was one carried out, and the commissioner, Bell, had a political motive to recover as much surplus land as possible for the Crown, with barely any regard for the protection of Mäori interests. Bell encouraged settlers to survey their own claims with a promise of a Crown grant beyond their strict entitlement if they could make their claims as extensive as possible. Surveys by the settlers themselves were deliberately encouraged, because it was realised a Crown attempt to survey the Crown surplus would bring protest from Mäori.

Claims at Mangonui and east of Mangonui were not investigated, nevertheless scrip awards were made and the Crown assumed ownership of surplus lands. Lands around Karikari Peninsula were investigated and it was assumed all Mäori interests were extinguished despite continued Mäori occupation and the fact that some European claimants asserted areas were intended for continued Mäori use. Around Kaitaia, Panakareao and others stated publicly that they would support European claimants but that any surplus must return to Mäori, but this was ignored by the commissioner, Godfrey, investigating the claims. His inquiry was mechanical and very limited in the questioning of Mäori witnesses. The end result was over 16,000 acres awarded to 6 Europeans, nearly 16,000 acres surplus to the Crown and 446 acres for several hundred Mäori. Bell was later to provide limited reserves at Tangonge, Okiore and Awanui, each reserve later being the subject of further dispute.

The commissioner also investigated northern peninsula transactions, with the Crown claiming a surplus over 64,000 acres in an area where a trust in favour of Mäori had been intended. In later years the Crown did not contest this surplus (a “legal fantasy”) when Mäori sought title to the area before the land court. The overall result of these inquiries was that joint occupancy arrangements were cancelled unilaterally, reserves which were made were few and without regard to Mäori needs, surplus land was assumed by the Crown without regard for any fiduciary responsibilities which might remain, Panakareao’s claim to the surplus was ignored, Mäori evidence was either not heard or barely considered, and there was a consistent assumption that signed deeds were sufficient to extinguish all customary interests.

The Mäori argument about surplus lands could be sustained on 5 points:

•  the early transactions were not sales and were never established as such;

•  transactions were personal and an ongoing relationship was expected, with no space for the government to intervene;

•  the government made statements at the Treaty signing and afterwards, signalling an intention to return any surplus;

•  the government claim is founded on technical rules of feudal land tenure. But government should acquire land from Mäori direct “not by a legal sidewind”;

•  the transactions were never affirmed by Mäori, and affirmation was conditional on the surplus being returned to Mäori.

The Crown view that it owned the surplus was flawed, both in assuming that sales had occurred and in assuming the doctrine of tenure applied. “All land belonged to Mäori, the English legal doctrine had not been agreed upon when the Treaty of Waitangi was signed, and the underlying title was already spoken for.” The application of the doctrine of tenure also meant the government did not have to prove its acquisition of Mäori land (although there is support for the view that legally the Crown has to prove its title like any other claimant). In effect the underlying Mäori title was confiscated. “The Government’s derivative claim to the surplus lands was contrary to Mäori law and to Mäori contractural terms. There was no agreement with Mäori that the Government was entitled to the surplus land, and Mäori affirmation of the pre-Treaty transactions in Muriwhenua was on the express condition that the surplus would return to them.”

This conclusion departs from that of the Myers Commission on Surplus Lands in 1948. Mäori autonomy and the right to control their own affairs was ignored by the whole investigative process. They were supplicants before a foreign court and their actions judged on foreign terms, rather than being treated as equals and the joint affairs of the parties being mediated.

Government and Mäori approach to subsequent purchases

After the death of Panakareao in 1856, the government purchased up to 1866 some 280,177 acres of remaining land in Muriwhenua. Commissioner Godfrey’s determinations up to 1858 effected little change on the ground. Mäori occupation of areas deemed sold did not change. Panakareao remained a major influence. The likely Mäori kaupapa in these transactions was partnership with the Governor to ensure participation for Mäori in the new economic regime, without qualifying Mäori status and continuing associations with ancestral land. A desire for European settlement was evident, as Mäori felt in control of this process. A personal alliance with the Governor was also sought, this idea coming from the same customary source as incorporation. The transactions do not provide evidence that custom was in abeyance. Officials who complained of “recklessness” in the size of Mäori feasts “did not see that a much larger ‘recklessness’ in giving was taking place in relation to the land, and with a similar purpose in mind: to provide for other people. The tribunal concludes “it does not follow that Mäori could not have learnt the meaning of a land sale. Old values survive today, but obviously a sale in Western terms is now understood. Our concern however, is that the common assumption that Mäori learnt rapidly is in danger of assuming too much importance.” Official records produced out of one culture make biased assumptions about Mäori understandings.

Mäori were concerned with settlement of Europeans, not with sales, because they had to deal with the Governor, they had a promise of adequate reserves, and they saw their own authority as continuing, they dealt on the basis of mutual trust, and they had an expectation of continuing benefits. Land allocation was but one of many matters Mäori were discussing with government at the time, including Mäori law and authority, access to markets, customs dues, medical and education services. By contrast, the government concern was that economic growth required the extinguishment of native title. Mäori did not agree to this approach, whatever its motives, and even if there was an intention to retain land for Mäori, very little was ever given back in reserves.

While there was no official policy to buy all Mäori land, the government undoubtedly bought with future settlement in mind. While the Crown before the tribunal argued things should be seen in their own times “The whole business of colonisation was about providing for the future. Thus the large land acquisitions, even before the settlers arrived. The entire scheme was future driven and the problem was simply double standards: there was one standard in securing land for European settlers, and another in reserving land for Mäori.” Reserves were either not created, or not protected when they were set aside. And as a result Mäori were “denied the single most obvious opportunity they had to share in the economic development of the country.”

The government failed to devise and then debate and adequate or any plan of settlement to ensure Mäori would be substantial beneficiaries in the predicted economic regime, when it ought reasonably to have seen the need for such a plan. Nor was there provision for an independent audit of Crown transactions the position of Protector of Aborigines had been abolished in 1846.

Crown purchases to 1866

Until 1859 buying focused in a narrow band from Ahipara to Kaitaia and Mangonui. From 1859 to 1865 central areas in Muriwhenua were purchased, connecting up the earlier government purchases. After a lull, in the 1870s, under the influence of immigration schemes, the balance of Muriwhenua lands were purchased by the Crown. By 1900 a few residual pockets of Mäori land only remained.

Transactions examined in the central Muriwhenua district include Waikiekie-Mangonui township, Oruru, Otengi, Waimutu, Karikari peninsula, Mangatete and Victoria Valley, Maungataniwha, and Kohumaru. In the eastern district was the Whakapaku block, and a transaction concerning a large area at Mangonui in 1863 which the tribunal strongly criticised. In the western and northern districts, transactions examined include Okiore reserve, Awanui reserve, Tangonge reserve, Ohinu, Kaiawe and Ahipara transactions in the west and Kaimaumau, Ruatorara, Muriwhenua South, Wharemaru and Muriwhenua Peninsula in northern Muriwhenua. The tribunal found particular problems in many of the transactions and a general failure to adequately define the Mäori interest, describe the boundaries, provide proper consideration or make adequate reserves or protect from further sale the small reserves which were made. Government agents were locked into a design to gain as much Mäori land as possible. No overall plan of settlement, taking Mäori into account, was produced, when one was clearly required.

Although a full hearing of post 1865 claims has not yet been undertaken the report looks briefly at post 1865 buying and notes a continuing aggressive land buying policy, poor reserves and a lack of mechanisms protecting Mäori interests, as a legacy of policies before 1865. Transactions in all districts, eastern, central, western and northern, are briefly considered. In particular, the Taemaro transaction near Mangonui - subject of a separate claim - is closely examined. The tribunal finds that claim well founded. In all these transactions Mäori were prejudiced in various ways, not least by the lack of a basic protective measure requiring the Crown to prove its acquisitions and properly document its claims.

Social Consequences

In Muriwhenua, a reserves policy was clearly required. However while the government spoke about the need for reserves on paper, in fact proper reserves were not maintained. None of the reserves in Muriwhenua was adequate to provide reasonable livelihoods in agriculture for members of a small hapü. While reserves were to be “sufficiently extensive to provide for .. present and future wants” no assessment of Mäori needs was undertaken. By 1865 while many acres of Mäori land remained, most useful land was gone. As pressure came on remaining areas with gumdigging, Mäori made many petitions about early land transactions. In only 2 small cases was a Mäori right acknowledged. In 1848 a Surplus Land Claims Inquiry recommended some compensation (£47,150), but that  inquiry was limited by its assumption that the the original transactions had been valid, and reliance on inadequate reports from officials on the old land transactions. Protests were also made about land at Wairahi, Kapowairua, and Ninety Mile Beach. Gum digging became the major trade of the area and Mäori participation in this harsh subsistence trade was a direct result of their land loss. Farm developments in Muriwhenua north and Ahipara in the 1920s are briefly examined.

Conclusion

Overall, the tribunal concludes that “the Muriwhenua land claims are well founded ... The people were marginalised on marginal lands, insufficient for traditional subsistence and inadequate for an agrarian economy. The social and economic consequences for the Muriwhenua hapü have been profound, with burgeoning impacts in terms of physical deprivation, poverty, social dislocation ... and loss of status during the long years of petition and protest when Muriwhenua leaders were made as supplicants to Government bureaucrats.” The case has been so well made that the tribunal thinks investigation of post 1865 matters is unnecessary.

Recommendations should be made, and should include “proposals for the transfer of substantial property. Our preliminary opinion is that, unless the parties agree otherwise, this should include binding recommendations in respect of Crown forests and State enterprise lands.” Some issues to be addressed before recommendations can be made:

•  must a claim be proven specifically for land under the Aupouri forest before a binding recommendation can be made, or do general findings about Crown Treaty breaches in the region suffice?

•  should recommendations seek to compensate for loss to the fullest extent, or look towards creating an economic base for tribes?

•  are tribes in the settlement to be represented by a common runanga , or in some other manner? And if assets are returned, in whom should they be vested?

•  should any Conservation lands be included in recommendations? If so, public access issues must be discussed;

Finally, the tribunal is considering making a recommendation that for all Crown land there should be a title, and that the Crown should be required to show the source of the Crown’s title and have this noted in the district land registry.

[Comment: this is an extraordinary report for several reasons. The tribunal has upheld a claimant argument that the government failed to properly purchase, or ratify the purchase, of over 300,000 acres of land in transactions up until 1865, in large part because the Mäori view of those transactions was never adequately considered. This finding may have implications for the way in which other claimant groups argue about early transactions, for example in Wanganui, the Hawkes Bay, the Wairarapa, and in Wellington.

The tribunal questions the very notion of tenure, and the onus which that places on Mäori to prove that Mäori title has not been extinguished over Crown lands. The tribunal suggests that it may make a recommendation that the government act to reverse that situation. Pockets of Crown land throughout the country are potentially affected by such a recommendation. This recommendation was foreshadowed by Chief Judge Durie last year when he suggested the enactment of “a law requiring the Crown to produce a title to its own land, with a record of the conveyance or proclamation by which Mäori interests were cleared” would provide relief in those many situations where it is unclear how the Crown came to its title. “Will the Settlers Settle?” Otago Law Review vol 8 No 4 December 1996.

Finally, the tribunal has signalled that it is ready for the first time to use its considerable power to make binding recommendations. If the claimants choose to return to the tribunal, rather than negotiate directly with the Crown there will be considerable activity in the coming months as legal points surrounding the power to make binding recommendations are argued.]

Other courts & tribunals

Te Whänau A Takiwira Te Köhanga Reo & Another v Tito & Another

AEC 60/96. Employment Court, Auckland. 27 September 1996. Finnigan J

Two employees dismissed from a Köhanga Reo brought personal grievance proceedings alleging unfair dismissal. The employer argued in defence that the employees had taken part in a consultative process in accordance with custom which resulted in their dismissals and had not objected to their dismissals. The Employment Tribunal rejected the defence. On appeal the sole argument in defence was that the employees agreed to termination of their employment in accordance with whänau custom.

The appellants argued that the nature of Te Köhanga Reo means that:

•  Employees are whänau workers and therefore members of the whänau running the Köhanga Reo.

•  The principle of governance for Te Köhanga Reo is consensus which is preceded by as much discussion as is required to reach consensus (korero, korero, korero).

•  This discussion takes place in whänau meetings known as wänanga. Wänanga provide unlimited speaking rights and voting for all whänau members until a resolution is framed and a unanimous decision of the whänau is reached.

•  A unanimous decision is reached when a resolution is passed with no dissenting voices. Absention is deemed sufficient for a unanimous decision.

•  By custom a resolution from a wänanga is binding on all present.

The 2 employees had been present at a wänanga which had discussed changes to employment conditions brought about by the introduction of the Employment Contracts Act 1991. The wänanga noted that there were differences between current procedures and the new Act. A unanimous resolution (tautokotia te katoa) was recorded that new employment conditions be drawn up. The appellants argued that the 2 employees understood and agreed that this would mean that their positions would be advertised. This resolution was followed by a resolution at an AGM (not a wänanga) that definitely stated that the positions would be advertised. One of the employees was not present at the AGM. Neither were successful in retaining their positions.

The employment tribunal held that the dismissals breached the Act in that the wänanga was simply a decision making body, that it had not clearly put the idea of dismissal to the employees and that silence from the employees was not sufficient to indicate agreement.

The appellants asked the court to take account of the institution of wänanga as a valid custom and a part of the factual situation. The institution of wänanga is a valid custom of which the court should take judicial notice (following eg Public Trustee v Loasby (1908) 27 NZLR  801). The whänau concept underpinned and was integral to the Te Köhanga Reo. Whänau values followed strict Mäori tikanga, making the employment setting exceptional in a cultural context. Operation of the custom in this case meant that the terminations were consensual with the result that neither employee had in law been dismissed.

Held: the evidence did not show that the discussion at the wänanga had addressed the employment of the 2 workers, and accordingly the resolution at the following AGM to advertise positions did not simply endorse a decision already reached at the wänanga.

The paramount consideration is whether the process was fair. Customary practice is an important ingredient in what occurred. The customary whänau environment may not exclude or preclude questions about whether that custom produced a termination which was fair. Wänanga is no more than a process like any other which an employer may choose when considering termination of employment.

There is nothing to prevent the court taking account of the kaupapa of Te Köhanga Reo, whänau or wänanga under the Employment Contracts Act 1991. However custom cannot be used as a shield to prevent the court considering if actions taken were fair.

In this case it was simply a matter of fact that the employees did not consent to termination at the wänanga since that was not discussed. In another case with different facts a court might reach a different conclusion, which could include “reluctant acceptance of the will of the majority of the whänau, which is Mäori custom.”

Nor was one of the employees present at the AGM when the resolution was passed to advertise the positions. If it is Mäori custom to have a person not present bound then the court could not uphold it. Also unfair, “even by the standards of Mäori custom” was the failure of the whänau to interview one of the employees to retain her existing position, when she had indicated she would be late to her interview.

It was strange that the 2 employees were members of the whänau, but the whänau had no redress for them when they disputed the decisions reached. The whänau had simply resisted all efforts to overturn the decisions reached. Witnesses said it was unusual for a whänau not to attend to disputes like this by trying to reach consensus. The whänau could not claim custom entitled it to bind the two employees to a whänau decision on the basis that they consented when according to whänau custom they had dissented and the whänau has not adopted customary practice to deal with the dissent.

In the present case the custom represented had simply not been followed.

Noted that there were clear national guidelines produced by Te Köhanga Reo movement to deal with employee dissent, which were not followed in this case. Although not the reason for rejecting the appeal in this case, they would be relevant to future situations where employees dissent.

[Comment: the court appears to have found a catch 22 in the custom alleged. Since the wänanga process is claimed to deal with all dissent, if a case reaches the courts, this seems to be prima facie evidence that the process has not operated as it should.

In her book New Growth From Old. The Whänau in the Modern World (VUP 1995), Joan Metge discusses the many different uses of the term whänau today, and usefully analyses the attributes,  strengths and weaknesses of kaupapa based, as opposed to whakapapa based, whänau.]

Parliament

Mäori Affairs Select Committee

Members of the committee are Arthur Anae, Joe Hawke, Sandra Lee, Robyn McDonald, Tukuroirangi Morgan, Dover Samuels, Tariana Turia, Georgina Te Heuheu (chair), Rana Waitai.

Fisheries and entitlement

Replies Supplement February 1997

1754. Rt Hon Mike Moore to the  Minister of Fisheries: What is the Government policy in regard to non-coastal or non-tribal Mäori getting a share of the Fisheries settlement?

Hon John Luxton (Minister of Fisheries) replied: Section 6 of the Mäori Fisheries Act 1989 requires the Treaty of Waitangi Fisheries Commission to consider how best to give effect to the resolutions set out in Schedule 1A of the Act, in respect of assets held before the signing of the Deed of Settlement.

That Schedule includes provisions for the Commission to seek legislative authority to secure the Commission’s intent to allocate its assets to Iwi. It also includes the requirement that the Commission examine the alternative methods to allocate, consult with Iwi and have prepared discussion material to enable agreement to be reached on the optimum method of allocation.

In addition, the Act requires the Commission to develop, after full consultation with Mäori, proposals for a new Mäori Fisheries Act that is consistent with the Deed of Settlement. That proposal shall make provision for the appointment, composition and powers of any body succeeding the Commission, and the development of procedures for identifying beneficiaries and their interest under the Deed of Settlement, in accordance with the Treaty of Waitangi. It must also provide for the allocating to those beneficiaries, in accordance with the principles of the Treaty, the benefits from the Deed of Settlement.

The Commission is required to report to me on all these matters.

The proposal for a new Mäori Fisheries Act must then be submitted to Government for consideration and the development of a Bill. The Bill will be developed in accordance with the normal processes of Parliament. Any scheme to distribute assets held by the Commission prior to the signing of the Deed of Settlement must be given to me for consideration. Within 30 days of the receipt of that information I may require the Commission to reconsider all or part of any distribution plan and the Commission is required to reconsider its plan, amend the proposal, and report to me accordingly.

In considering any distribution plan that the Commission may propose, I will be bound to consider any findings of the Court on the entitlement of non-coastal or non-tribal Mäori to a share of the benefits of the Deed of Settlement.

Reports & Articles

Te ao Mäori and the Treaty of Waitangi

Criminal Prosecution (Preliminary paper No 28 March 1997) Chpt 11. Law Commission

As part of a review of the criminal prosecution process the commission considered how far the law relating to criminal investigations and procedures conforms to the principles of the Treaty of Waitangi. Preliminary inquiries including a hui of Mäori working with Mäori in the criminal justice system suggest that many Mäori appear not to have confidence in the present system of criminal justice as it does not take account of Mäori values or meet Mäori needs. Seventeen particular areas of concern were identified, most concerning the alien nature of the criminal justice process when measured against Mäori values (eg punishment vs whakamä or shame, right of silence vs right to be heard, emphasis on justice as procedure vs justice as substantive outcome) While this paper, concentrating on one aspect of the system, could not address all the concerns raised, the commission immediately proposes that:

•  Police prosecutors should be trained in tikanga Mäori and the recruitment of more Mäori police and police prosecutors should be encouraged

•  Appointments of Mäori within the Crown prosecution system should be encouraged (includes both the Crown Law Office and firms which act as Crown solicitors) and all Crown solicitors should receive training in tikanga Mäori

•  Initiatives by judges to improve their understanding of Mäori cultural values should be emulated by court staff and lawyers

•  Judges, counsel and court officials should be able to pronounce Mäori words and names correctly

•  Mäori involvement in court processes as judges, JPs, lawyers and court staff should be actively encouraged.

The commission believes that an examination of the whole criminal justice system will be required to respond to the concerns raised and asks “Should there be a full review of the criminal justice system with a view to meeting Mäori concerns? If so, what body is best placed to undertake such an examination?”

Comments to the commission are required by 2 May 1997.