April 1997 Contents

Comment

A national agenda on race relations

Mäori Land Court & Appellate Court

Apiata & Samuels & Matauri X block

Gilgen and Matenga & Te Akau B12L Block

Richards & Hoori & Karaka-Huarua A Block

Hamiora & Paki & Matauri X Inc

Re Kohatu O Te Haua No 9 Block

Downes & East Taupo Lands Trust

Thomson & Pokuru 1A1B2 &1A2D2 (Wipaea Manu Block)

Waitangi Tribunal

Hearings postponed

Other Courts and Tribunals

Deane v Attorney General, Horton v Attorney General

Mataka Station Ltd & Others v Far North District Council

Ngati Rauhoto v Waikato Regional Council & Mercury Geotherm Ltd

Isobel Berkett v Minister of Local Government & Wills

Parliament

Mäori Electoral Option

Proposal for Citizen’s Initiated Referendum on the Treaty of Waitangi

Speeches & Press Releases

Mäori Law Commission

Allocation of fisheries settlement assets

 

Comment

In recent speeches and reports the Race Relations Conciliator, Dr Rajen Prasad, has suggested that there is an urgent need for a national agenda on race relations (Report of the Office of the Race Relations Conciliator for the year ended 30 June 1996, E20 tabled 18 February 1997, Rotary Club address 10 March 1997, Tirohia. Newsletter of the NZ Human Rights Commission March 1997). He stresses that there is no agreed strategy for race relations that is well understood and widely accepted. Current debate vacillates between bi-culturalism and multi-culturalism. Within the bi-cultural agenda, as more iwi achieve a sustainable economic base and institute development programmes, an altered understanding between Mäori, the Crown, and citizens will be “desirable and even inevitable.” Thought is required on how to “construct and gain widespread acceptance for a race relations agenda under such changed circumstances.” There are also however population changes which bring many different cultures into contact. “Taken together, we can see the need to develop and have accepted, over a relatively short period of time, a new race relations strategy where diversity and celebration should become features of race relations in NZ.”

Bi-culturalism is said to be our present agenda, but its definition is confused, and Mason Durie has recently argued that Mäori are losing control over overall Mäori development because of the bi-cultural agenda.

Dr Prasad says that three matters taken together could provide the framework for future discussion:

•  The Treaty. Making citizens feel personally responsible for breaches is “counterproductive.” Settlements may become a source of division unless there is a more general understanding of Treaty breaches

•  Rights of indigenous peoples. Every society must ensure the continued development and survival of indigenous peoples, and all citizens can endorse the view that the indigenous culture of a country should be nourished

•  A multi-ethnic agenda celebrating the existing diversity—rather than ‘freezing’ matters until the Mäori/Pakeha relationship is resolved.

Dr Prasad’s comments have been interpreted by some commentators as an apology for those in the community who do not accept the need for Treaty settlements and reparations. There is also a predictable suspicion that he is attempting to soft-peddle on Mäori issues and supplant bi-culturalism with a multicultural agenda.

That response may miss the point. Dr Prasad seems to be suggesting that we should agree as a nation on a programme to promote the celebration of diversity as a positive value in its own right. Within that context, citizens will be happy to nourish the aspirations of indigenous groups and recognise Mäori goals. Only in this way will important social, constitutional and other changes required to properly celebrate Mäori diversity be accepted. Whether his approach is the correct one or not, it deserves serious discussion, hopefully outside the parameters of the existing bi-cultural/multi-cultural debate.

Mäori Land Court & Appellate Court

Apiata and Samuels and Matauri X block

4 Taitokerau ACMB125. 21 May 1996. Hingston J, Isaac J, Savage J

The appellants challenged an order under s19(1)(e)/1993 restraining certain persons (including the appellants) from trespassing on land of the Matauri X incorporation, and ordering the removal of structures and the return of the land to its original state. The appellants and others had been gardening and keeping pigs on the land.

The appellants argued that while they had been present at earlier court proceedings they had never been given formal notice that they were parties, and even if it were accepted that they were properly joined, natural justice required that counsel should have been appointed to them and they should have been given an opportunity to cross examine witnesses and give evidence themselves. In reply it was noted that the lower court had minuted during a hearing that “[the appellants] are in Court and the applicants complaint is also directed against them.”

Held: the major issue was whether the appellants had proper notice that they were involved in the proceedings and in particular whether the comment in the lower court was sufficient to join them as a party. The conduct of the appellants, who had been at a meeting of incorporation shareholders which considered a resolution to end their occupation of the land and had attended the lower court hearing, was such that they could not have seen themselves as mere spectators. While the lower court could have been more explicit, its warning, in conjunction with the appellants conduct, meant there had been no breach of natural justice in joining them in this way.

The appointment of counsel is discretionary, and should only be used when a failure to appoint would result in gross injustice and the appointment would assist the court. It would not have assisted the court in this case.

The land court has a specialist jurisdiction and is not bound to consider form over substance. It may consider what is just overall rather than slavishly following rules of procedure and evidence. As to other arguments:

•  the incorporation was a “person” entitled to issue proceedings

•  Mäori Land Court rules allow some latitude in making final orders ie in this case including the appellants in the final order and tidying up ambiguities in the originating application.

Gilgen and Matenga and Te Akau B12L Block

19 Waikato Maniapoto ACMB 53. 26 June 1996. Deputy CJ Smith, Hingston J, Spencer J

In 1951 the Raglan County Council obtained a land court order appointing the Mäori Trustee as agent for the purpose of alienating this block, comprising 676 acres. It was leased by the trustee in 1953 for 21 years with a renewal period of 21 years. In 1975 the lease was renewed for 21 years. At the end of the lease the lessee was to be paid 75% of the value of improvements made. The lease ended and the trustee paid compensation out of accumulated rents, but still leaving some $199,176 owing . In 1995 the Mäori Trustee successfully applied under s160/1993 to charge the land for the remaining debt, and, because no income was being earned from the land to repay the debt, also applied to be appointed receiver for the block. Trustees appointed by the land court to administer the block opposed this latter application, arguing, among other matters, that the Mäori Trustee:

•  failed to consider or exercise a discretion to re-enter into possession under s403/1953 at the end of the first lease period

•  granted an extension or renewal in 1975 when statutory authority to do so had been removed in 1970

•  Sought a memorial of charge when the repeal of s248/1953 in 1967 and Part XXV/1953 meant that in 1970 the trustee no longer had a statutory obligation to the lessee to pay compensation.

The Mäori Trustee argued in reply that the 1953 lease was in accord with statutory provisions of the time, he was not a trustee, but an agent for the owners, and, while having a discretion to re-enter, was not obliged to do so. The lease extension in 1975 was a subsisting contractural and statutory obligation. Section 20(h) Acts Interpretation Act 1924 enabled him to continue to operate under the repealed legislation. The lower court found in favour of the trustee on this point.

Held: the question whether there was in 1975 an extension or a fresh lease was essential to the appellants case. The rights and duties set out in the lease documentation are paramount in cases such as this—Sina Holdings Ltd v Westpac Banking Inc [1996] 1 NZLR 1. The relevant wording in the lease differed in important respects from the wording in Sina Holdings and in Wagener Ltd v Photo Engravers Ltd [1980] 1 NZLR 412, on which the appellants relied. The wording clearly suggested that an extension was intended. Also in Pearson v Aotea District Mäori Land Board [1944] GLR 205 it was found that a right of renewal registered with a lease (as in this case) is an integral part of the estate shown on the register and constitutes a covenant which runs with the land and reversion.

As to costs, the appellants were justified in seeking clarification of these issues, and therefore the court would be reluctant to order costs, but the Mäori Trustee could seek them if desired.

In a separate judgment, Judge Spencer found that the lower court had correctly held that s20(h) Acts Interpretation Act 1924 applied. As to the discretion of the trustee to re-enter into possession, that discretion (s403/1953) was in fact repealed in 1970 with Part XXV.

As to costs, the owners had not been in possession of the land for 42 years, and would probably continue to be denied possession when a receiver was appointed. The court is able to take these matters into account in considering costs. Also, the objects of s4/1953 (retention of land for Mäori) gave rise to the lease. No costs order would or should be made.

Richards and Hoori and Karaka-Huarua A Block

5 Tai Tokerau ACMB 1. 13 August 1996. Hingston J, Savage J, Isaac J

In 1990 an application for partition of this block was lodged under s173 Mäori Affairs Act 1953.  In 1992, after inspecting the proposals and the land, the court came to the conclusion the land was unsuitable for partition and promoted a discussion of alternative proposals. In an interim decision in 1995 the court said that was now guided by the 1993 Act. In a final decision in April 1996, the court noted the objectives set out in the Preamble and s17 Te Ture Whenua Mäori Act 1993, and said that it was not satisfied the partition proposals promoted the best overall use of the land or that there was a sufficient degree of support for the proposal in terms of the 1993 legislation. The application for partition was dismissed.

Held: the judge had erred in completing under the 1993 Act a matter commenced under the 1953 Act. Section 22 Acts Interpretation Act 1924 (pending judicial proceedings not affected by expiration of an Act) applied.

If the court was making an election to proceed under the 1993 Act it should have given the applicants an opportunity to argue whether that course should be taken. Nor when the court decided to proceed under the 1993 Act was an opportunity given to parties to make submissions addressing matters in that Act.

The application would be returned to the land court for rehearing under a different judge.

Hamiora and Paki and Matauri X Inc

18 September 1996 5 Tai Tokerau ACMB 16 Deputy CJ Smith, Hingston J, Savage J

Hamiora died in 1981 leaving shares in the Matauri X Incorporation. Her widower transferred these shares to one of her sons in 1983. The committee of management of the incorporation approved the transfer. Another of her sons applied under s18(1)(a)/1993 for a declaration that the transfer was invalid and that the shares were held by the widower for a life interest only, with the remainder to all the children of the deceased equally. The land court rejected the application, and instead made an order under s18(1)(a) that the donee was the rightful owner of the shares. The son appealed on several grounds.

Held: s18(1)(a) cannot be used to create rights. Cases concerning its predecessor, s30(1)(a) Mäori Affairs Act 1953, affirm this (In Re Matauri 2F2F (1991) 3 Taitokerau ACMB 20 and In Re Waipuka 3B1B1 & 3B1B2B1C2A (1993) 11 Takitimu ACMB 2). It is not a vesting section, it does not create or transfer rights by way of vesting interests, but merely enables the court to declare existing rights of ownership in law or equity.

Nor can it be invoked if a transaction is “blatantly wrong” or has “serious consequences”—the lower court misread AJ Burr Ltd v Blenheim Borough Council 2 NZLR 1 on that point. If a transaction is found to be invalid, the court must first exercise its separate jurisdiction in tort, contract etc, make necessary vesting orders, and only then make a declaration of ownership under s18(1)(a).

As to the nature of the shares in question, s260/1993 concerning the nature of shares in incorporations does not operate retrospectively. The law in force in 1981 and 1983 was that the shares were personalty and they did not become an interest in Mäori land, subject to restrictions on alienation and succession in the 1993 Act, until after 1 July 1993. The presumption applies that amending legislation alters the law from the date of its enactment—Broome v Cassell & Co Ltd [1972] AC 1027.

Nevertheless, the lower court should not have made a declaration under s18(1)(a) in favour of the donee, because, strictly speaking, the issue before it was the share transfer of 1983, not the current ownership of the shares, and notice was required to the parties before considering such an order. That order would be annulled and a simple dismissal of the original application of the appellant substituted.

Whether the registration of the share transfer by the body corporate was legal is a matter beyond the jurisdiction of the land court.

Re Kohatu O Te Haua No 9 Block

5 Tai Tokerau ACMB 53. 14 October 1996. Hingston J, Isaac J, Savage J

In 1968, without hearing or notice to the owners, this land was converted by status declaration under the Mäori Affairs Amendment Act 1967 to general land. It fell into rates arrears and the district council in June 1994 obtained a district court order under the Rating Powers Act 1988 to undertake a sale of the land by tender. In May 1994 the appellants had applied to the land court for an order changing the status of the land to Mäori freehold land, and the land court, without knowledge of the district court proceedings, issued the order in July 1994, which was registered in the Land Transfer Office in August 1994.

The district council, which would not have proceeded had it known of the land court application, sold the land using an improperly sealed order from the District Court. The land court order was registered in contravention  of rule 66(3) Mäori Land Court Rules 1994 which provides that, except with leave of the court, no order shall issue before the time allowed for an appeal has expired.

A private buyer entered a contract to purchase the land from the council in August 1994. He made application to the land court to change the land back to general land in October 1994. Hearings on that application resulted in an application to the Chief Judge under s44(1)/1993 to cancel the land court order of July 1993 on the basis of a mistake or omission on the part of the court. The Chief Judge granted this application. The present appeal was from that decision.

Held: while it was not for the court to comment on the 1967 legislation, “after 3 years of the working of Te Ture Whenua Mäori 1993 the earlier legislation seems to have reflected values which are very distant in time.”

The appeal should be allowed. The Chief Judge should not have granted relief on the basis of a breach of natural justice because any such breach operated to the detriment of the Mäori owners rather than any other party, and if there had been any error and breach of natural justice, it occurred in the district court—s44 relates only to land court proceedings.

The error in registering the land court order in breach of rule 66(3) was an administrative error and not a judicial error of the court. The court was functus officio once the order was made. Wrongful administrative action is not amenable to correction under s44(1)/1993. The reference to the registrar in that section relates to the quasi judicial role of the registrar under s160/1993.

This was not a case of one court overruling or obstructing another. The district court and land court operate in different jurisdictions for different purposes. The fact that the order in the land court made the district court order of no practical effect was irrelevant to the jurisdiction each court was exercising.

Downes and East Taupo Lands Trust

14 Aotea ACMB 168. 29 October 1996. Carter J, Isaac J, Marumaru J

The lands trust appealed against the refusal of the land court to make certain amendments to its trust order, and against extra conditions the court imposed on the trust.

Held: that the appeal be allowed in part and declined in part:

Change of name of the trust

It was alleged that the lower court wrongly amended the name of the trust from the East Taupo Lands Trust, to the East Taupo Lands Trusts to make it clear that this trust manages 19 separate blocks, each of which, in law, is a separate trust:

The powers for review of trusts under s351/1993 are wide, but the land court must have reasonable grounds for any amendment and should not make an amendment by mere inclination or whim. It is questionable, for example, whether under the provision the court could, without the consent of the beneficial owners, substitute a standard trust order for an existing order unless it had very good reason. While sharing the lower court’s concern that the separate nature of each of the 19 trusts be recognised, no reasonable grounds existed for the change and this part of the appeal would be allowed.

Renumeration for trustees

It was alleged that the lower court wrongly refused an amendment to the trust order allowing owners at a general meeting to fix trustees renumeration and allowances, and instead the lower court substituted set levels of renumeration:

Although the performance of the trust was good, trustees had not displayed any special expertise to achieve that result, and trustee and administration expenses were high in comparison to income. Section 274/1993, allowing owners in an incorporation to fix the renumeration of members of a committee of management, was not a valid comparison as, unlike land trusts, there is a considerable ability for shareholders to direct the operations of incorporations. By contrast, there had been only 1 meeting of this trust every 3 years.

While the 1993 Act is intended to give more autonomy and authority to owners, the court must balance this against the interests of beneficial owners:

“On the one hand there is a tendency for some Trustees to regard themselves as company directors and expect to be paid substantial fees without regard to the nature of the Trust’s operation or its income. On the other hand some Trusts are commercially run on a sound administrative basis and report fully to the owners annually. There may, in those cases, be no reason why the owners should not fix trustees’ renumeration and allowances at general meetings provided there are suitable safeguards. In such cases full information should be available to the owners and the subject of trustees fees and expenses should be on the agenda for each annual general meeting and an estimate of the annual costs for such fees and expenses should be presented to the owners so that they are fully informed in that regard. There should also be a method of protection for owners who wish to dispute the rates set.”

The proposed change in this case was a material alteration in the trust order which was not included in the agenda for the general meeting of owners and was passed by ordinary resolution. A material change such as this, affecting rights of owners, requires notification before a meeting is called.

The lower court was not however entitled to impose its own scheme of renumeration, but merely suggest it for consideration. The appellants would have 1 month to decide if they wished to accept that alternative scheme.

Period for review of the trust

It was alleged that the lower court wrongly required the trustees to apply for review in 5 years. The appellants argued this short period was not justified:

Section 231/1993 provides that unless the court in its discretion requires a review in a shorter period, a review must occur after 20 years. Given the high administration costs for income received, recent investment in a scheme exposing the trust to a high financial exposure, the lack of participation of beneficial owners (78 out of 1000 owners attending meetings) and infrequency of annual meetings, such a condition was justified.

Identification of assets

It was alleged that the lower court wrongly imposed a requirement that where assets were acquired by the trust, at the date of acquisition their ownership by the separate trusts or (if acquired as a collective asset) proportionate ownership by each of the trusts was to be shown. The appellants argued that, as the trust was a joint undertaking determining separate ownership or proportionate interests was irrelevant, and particularly so in the event of winding up, when the sale proceeds of assets and not assets themselves would be distributed:

The lower court justifiably had “serious concerns” over the fact that 19 trusts were involved, and accounts did not make clear the relative interests of each block in total trust funds. It was not appropriate for assets to be acquired and accounted for collectively, then later recast as assets of a particular individual trust. Assets should be properly identified when acquired. Trust accounts should have a statement annexed clearly stating which assets belong to which trusts and the values of each block for the purposes of apportionment. Assets acquired on behalf of the collective trust could also be noted in a similar fashion.

 

Thomson and Others and Pokuru 1A1B2 and 1A2D2 (Wipaea Manu Block)

19 Waikato Maniapoto ACMB 66. 17 March 1997. Deputy CJ Smith, Hingston J, Savage J

This was an appeal against an order appointing substitute trustees to an ahu whenua trust on the basis that existing trustees had failed to carry out their duties satisfactorily. The court considered the following issues:

•  The replacement trustees had been voted by a show of hands when elections should have been conducted according to shareholding:

•  Section 222 requires that the court be satisfied that any trustees be “broadly acceptable” to beneficiaries before making appointments. Meetings of beneficial owners for this purpose are not the same as meetings of assembled owners under Part IX and there are no formal requirements as to quorum or voting, and, since a consensus only is sought, a show of hands can be appropriate. The trust document in this case was silent on appointment procedures and the 1993 Act and the Trustee Act 1956 do not mention any voting procedures. A consensus is more appropriate than a poll and better meets the provisions of s17(2)( c )/1993—the requirement to find a balance between the interests of majority and minority owners.

•  At the meeting the chairman did not allow the descendant of a deceased owner to participate:

•  Section 215(1)/1993 requires trustees of ahu whenua trusts to administer them in the interests of the persons beneficially entitled. Section 4 defines a beneficial interest as excluding an interest or estate vested in any person by way of trust. Consequently, s222/1993 does not include persons who may be entitled to succeed to the interests of deceased owners. The interests of living owners should not be affected by delays of potential successors in applying for succession orders. In any event, the family prevented from voting in the show of hands were otherwise able to participate in the meeting  and their interests were adequately represented by others.

•  The court had improperly found the incumbent trustees negligent;

•  Section 240 empowers the court to remove trustees who fail to carry out their duties satisfactorily, a finding of negligence is not required. In this case there was ample evidence to satisfy the court including: a failure to apply for replacement trustees on the death of existing trustees, poor management of the trust land, a failure to provide audited accounts, the employment by the trust of family members of the trustees and finally, an application had been received under s238/1993 requesting the court to force the trustees to carry out trust obligations (resulting in this application under s240).

Waitangi Tribunal

Hearing postponements

The tribunal informed several claimant groups in mid April that owing to “resource constraints” it would be unable to provide further hearing time until after 1 July 1997. Although that advice has apparently been withdrawn, at least one hearing has been postponed.

Other courts & tribunals

Deane v Attorney General, Horton v Attorney General

CP65/94 & 71/95. 16 December 1996. High Court Hamilton. Hammond J

This case concerned two farm properties at Ohinewai appropriated under the Public Works Act 1981 for a state run open cast coal mine project which did not proceed. The Deane property was acquired by the Crown on a willing seller/willing buyer basis in 1986 under the Public Works Act and leased back to the former owner, who remained in occupation. In 1987 Deane was advised that the property might be surplus to requirements and an offer back under s40 would occur if that were the case. A formal offer back was made by Coal Corp acting for the Crown in February 1989, and a negotiation commenced about valuation. In October 1989 judgment was delivered in Tainui Mäori Trust Board v AG [1989] 2 NZLR 513 in which the Court of Appeal directed that state assets not be disposed of without adequate protection for legitimate interests of affected Mäori. Deane was advised that the farm would not now be sold until an adequate scheme of protection was put in place for Tainui interests. Deane sought assurances that the resale of his property would not be frustrated by these developments and lodged a caveat on the title.

In May 1995 a Deed of Settlement was signed between the Crown and Tainui. In November 1995 the Waikato Raupatu Claims Settlement Act 1995 was enacted and Deane was advised in the same month that the land was no longer surplus due to changes in Coal Corp policy regarding open cast mining and in light of the Tainui proceedings. The land would instead be transferred to Waikato Tainui as part of the settlement with them, and leased back to Coal Corp for 70 years. Deane argued that he should be able to rely on the earlier discussion which created contractual obligations.

Held: the power of the Crown to compulsorily acquire land derives from the ancient notion of eminent domain. It is a draconian but necessary power in a complex collective society. However the power is to be strictly construed, must be exercised in good faith and even-handedly. In NZ, as a further measure of fairness, an offer back procedure is in place. Section 40 creates an ongoing inchoate right to repurchase in the former owner. A liberal approach to s40 is required. The Crown cannot treat it on a strictly commercial footing. The section cannot be understood in isolation from its broad purpose, the vindication of the inchoate rights of the former owner.

The correspondence with Deane disclosed a concluded agreement for repurchase of the land by the Crown, at a price to be negotiated. The court rejected a Crown defence that the action by and subsequent negotiations with Tainui prevented further negotiations with Deane. If the Crown is in breach of Treaty obligations and has to be reminded of them by the courts, then the consequences for transactions affected by that should fall on the Crown and not innocent third parties. The appeal should be allowed.

In the second case concerning Horton, the land was taken under the Public Works Act 1981 from an unwilling seller. The Crown had clearly indicated that it no longer required the land, but Coal Corp had subsequently reconsidered that position and wished to retain it. As with the Deane land, the intention was to transfer it to Waikato Tainui, subject to a 70 year lease and use it in an open cast mine. No formal offer back was made.

The court held that s40 requires that a decision that land is no longer required for a public work be a considered matter. A distinct process is contemplated. Although the Crown wanted to get out of coal mining, it was reasonable that Coal Corp should reconsider that position. The Tainui litigation did not cause an abrupt change in policy direction, but was one of several factors in a reappraisal by Coal Corp of its need for the land. The appeal was declined.

[Ed: these 2 decisions are included because of the comments about the effect of Treaty claims on government duties and because of the discussion of s40—which affects many claims about Mäori land compulsorily taken under the Public Works Act.]

Mataka Station Ltd & Others v Far North District Council; Trustees of Matoa Block

A021/97. Environment Court. Bollard J, Dr AH Hackett, IG McIntyre

A final decision (follows 4 NZPTD 559 and Mäori LR August 1995) allowing the development of 25 dwellings under a Papakäinga Development Scheme subject to conditions. This is a papakäinga development scheme for 25 dwellings on rural land, with the trustees of the block being the consent applicants and each dwelling established using a licence to occupy under s328 Te Ture Whenua Mäori Act 1993. In this final decision the court granted consent subject to conditions as to:

•  the size, type, location, colour and number of dwellings and accessory buildings and water storage tanks

•  the alignment of power and telephone lines

•  roading to each dwelling,

•  a revegetation programme and landscape plan, including a requirement that licence holders enter an agreement with the trustees to limit any clearing of natural vegetation

•  the trustees to keep the council informed of names and any changes in both trustees and licence holders

•  that the council undertake a review in 3 and 6 years of these conditions and make changes as required to deal with any adverse effects of the proposal

•  the trust apply to the Mäori Land Court for an area of foreshore to be set aside as a Mäori reservation for esplanade-scenic purposes and for internal access roads to be declared roadways.

The court noted the trust’s stated dedication to the concept of kaitiakitanga. The success of the development now depended on the trust and licenceholders “environmentally conscious efforts, both individually and collectively” ensuring that the “natural qualities and attributes of the land are protected and enhanced for the benefit of the inhabitants of today and future generations.”

Ngäti Rauhoto Land Rights Committee and Kaumätua of Ngäti Rauhoto v Waikato Regional Council; Mercury Geotherm Ltd

A007/97. Environment Court. 28 January 1997. Sheppard J

Ngati Rauhoto hapü appealed against a Waikato Regional Council resource consent to discharge contaminants into the air from a new geothermal power station at Wairakei on the grounds of inadequate consultation with them, and that the consent was contrary to ss6(e), 7 & 8 Resource Management Act 1991 and sound resource management practice and procedure. Geotherm here applied under s116 for an order that the resource consent commence immediately pending a decision on the appeal, on the basis that the station was constructed and ready to operate and that no person would be prejudiced by commencement of the air discharge.

The appellants contended that commencing the discharge to the air would affect a resource over which they claimed a cultural relationship and would not be consistent with the cultural well being of Ngäti Rauhoto and would be an affront to them.

Held: although the appellants had not in their appeal papers provided details of how an air discharge in particular would affect them, their appeal asserted that they would be affected in terms of ss6(e), 7 and 8 and consequently it could be assumed that they might be prejudiced if the discharge commenced, and they would feel affronted if it commenced before their appeal against this very activity was heard. The applicant could have applied earlier for an air discharge permit, but had chosen to take a commercial risk. The application would be declined.

[Ed: a priority fixture for the hearing of the appeal has since been granted (A033/97 14 March 1997)]

Isobel Berkett and Kairau Ngahau v Minister of Local Government and Wills

A44/97. Environment Court. 1 April 1997. Bollard J, Dr AH Hackett, IG McIntyre

This was an application seeking costs against the Mäori appellants on the grounds that, in hearings, the appellants had raised irrelevant issues such as sovereignty, Treaty grievances, validity of land ownership and matters pertaining to religion and the Magna Carta.

Held: the appeal found that adequate consultation had not been undertaken with certain sectors of the tangata whenua. The appeal could have been allowed on this basis—instead an independent consultant was appointed to facilitate further consultation, and there was a further 2 days hearing to consider the consultant’s evidence—which was not excessive given the initial concerns about adequate consultation. The appeal was dismissed.

Parliament

Mäori Electoral Option

The option commences 28 April and runs until 27 August 1997.

The Mäori Option is held every five years, usually coinciding with the national census. During this time, Mäori and their descendants can choose whether to enrol on the Mäori roll or the General roll.  The number of Mäori seats is determined by the size of the Mäori roll.

The last option was the subject of litigation ending in a Court of Appeal decision that, while steps taken by the Crown to advertise the option (mainly postal notice and no television advertising ) were “far from perfect” they passed the test of reasonableness (Taiaroa v Minister of Justice [1995] 1 NZLR 411). In August 1996, the Electoral Law Select Committee released a report on the Mäori Option, recommending that the option period be extended from two to four months, and Parliament amended the Electoral Act accordingly. The Electoral Enrolment Centre is responsible for managing the option process, which includes a mass media, kanohi ki te kanohi (face to face) and mail out campaigns. Enrolment cards are mailed to all Mäori on the Mäori roll and all persons identified as Mäori on the General roll.

Based on 28 February 1997 enrolments and provisional 1996 population census information, Mäori seats would increase from 5 to 6 if boundaries were drawn now.  Approximately 17,000 transfers from the General roll to the Mäori roll would result in an increase to 7 seats, and 24,000 transfers would result in 8 seats.  The number of new enrolments on the Mäori roll can change the number of Mäori seats, but has less impact than transfers from the General roll to the Mäori roll. If all Mäori on the General roll were to transfer to the Mäori roll, there would be 12 Mäori seats.

Citizen’s Initiated Referendum on the Treaty of Waitangi

The Clerk of the house has received a proposal from Mark Whyte to promote a referendum petition on the following question:

    Should the Treaty of Waitangi, being an outdated document, be set aside and replaced with a national constitution which guarantees the equal rights of all New Zealanders without favour or discrimination?

The Citizens Initiated Referenda Act 1993 provides that an indicative referendum shall be held if a petition is presented to the House which has been signed by 10 per cent of eligible voters. A referendum petition can only be circulated once a proposal has been approved by the Clerk of the House. The proposal must set out the wording of the proposed question, and the Clerk is required to publicly notify receipt of the proposal and call for comments on its wording. The Act provides that the wording of the proposal must clearly convey the purpose and effect of the referendum and should be presented in a way which allows only two responses to the question posed. The Clerk of the House may change the wording of the proposal before it is approved. The cut-off date for submissions on this proposal was 24 April 1997.

The petitioner has one year to collect signatures before the petition lapses. Once the proposal has been registered with the Clerk of the House a referendum must proceed (unless withdrawn by the petitioner) if the petition is signed by 10 per cent of voters. All expenses arising from the holding of an indicative referendum shall be paid out of public money, this does not apply to expenses incurred in preparing a proposal, promoting a petition or collecting signatures. The Government is not obliged to act on the results of an indicative referendum.

[Ed: It is possible that the Clerk may require the wording of the current proposal to be revised, in the light of the ambiguities contained  in its current format, and in response to submissions on the text. This petition may well have the effect of exacerbating racial tension, and may provide a focus for the views held by conservative New Zealanders.

A similar proposal was submitted by the One New Zealand Foundation in 1995 and lapsed, presumably because not enough signatures were obtained. That proposal was worded “Do you agree that the laws of New Zealand should not discriminate against or give preference to citizens or permanent residents of New Zealand on the basis of their ethnic origins?”]

Speeches & Press Releases

Mäori Law Commission

Nga Kaiwhakamärama I Nga Ture. Press release 4 April 1997

An independent Mäori Law Commission will be formally established later this year. The idea was first mooted in the 1987 report on Access to Justice “Te Whäinga I Te Tika”. The aim of the commission will be to promote independent research and development into Mäori legal and constitutional matters, to develop effective and practical methods of mediation and dispute resolution based in Mäori law, and to foster research on matters of international indigenous concern as they impact on Mäori people.

The establishment unit will have 4 permanent staff, which will be advised by ten commissioners made up of kaumätua and kuia who are expert in tikanga and Mäori law. A Management Council will set research priorities. Initial consultation with Mäori about the commission’s role suggest that research will be undertaken on issues such as criminal justice, land, Treaty resolutions and constitutional change.

Allocation of fisheries settlement assets

Te Ohu Kaimoana (Treaty of Waitangi Fisheries Commission). Press release 17 April 1997

The commissioners have agreed “a framework for final consultation” for the allocation of TOKM’s pre-Settlement assets. The commissioners were mindful of the Minister of Mäori Affairs comment in February 1997 that there was a need to ‘put a stake in the ground’ to achieve progress on allocation. Key factors decided, which will be the subject of consultation, include:

•  Allocation to be to iwi, based on previously agreed criteria

•  Allocation to be to properly mandated iwi organisations

•  Allocation to include quota, cash and shares

•  Deepwater quota to be allocated 60% on the basis of iwi coastline and 40% on the basis of iwi population

•  population statistics to be drawn from the 1996 census

•  Inshore quota to be allocated on the basis of “actual iwi coastlines”

•  Cash and shares to follow in the proportion of quota an iwi receives

•  Distribution of shares in Moana Pacific Fisheries will ensure the integrity of the company

•  Iwi organisations will have to meet “minimum structural standards” designed to promote “transparency and accountability”

•  TOKM does not believe urban Mäori authorities represent iwi and they will not receive assets directly from TOKM, but TOKM will continue to consult with the authorities in finalising the allocation model. Urban Mäori authorities may negotiate a role in the distribution of benefits with particular iwi.

TOKM is investigating other factors such as fisheries depletion and economic dependence to “form a view on their impact on the proposed model.” A “separate fishery” proposal advanced for the Chatham islands is also being investigated. The analysis and consideration of these issues may result in some alteration of the above proposals.

“The total exercise has involved Commissioners in a continual compromise between Treaty right, fish biology, social, economic and political considerations. This work is on-going.”

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