May 1997 Contents

Mäori Land Court & Appellate Court

No cases this month

Waitangi Tribunal

National Overview. Rangahaua Whänui Series

Other Courts and Tribunals

NZ Federation of Commercial Fishermen Inc & Others v Minister of Fisheries

Harris v Larkins aka Te Awe Awe

Minhinnick & Others v Watercare Services Ltd & Minister of Conservation

Speeches & Press Releases

Mäori appointment to the Law Commission

Community magistrates

Other

The State of Mäori Land Today

 

 

Waitangi Tribunal

National Overview. Waitangi Tribunal Rangahaua Whänui Series

Professor Alan Ward. Waitangi Tribunal 1997 (3 vols)

The Rangahaua Whänui research arises from a tribunal practice note of 23 September 1993 which stated that the “seriatim hearing of claims has not facilitated the efficient despatch of outstanding grievances and is duplicating research of common issues. Findings in one case may also affect others still to be heard who may hold competing views and … the current process may unfairly advantage those cases first dealt with in the long claimant queue.” To alleviate the problem and to assist with prioritising, grouping and hearing of claims a national review of claims was proposed.

This 3 volume national overview provides a summary of seventeen reports on national themes covering issues that arise explicitly or implicitly in many or most claims, and 12 district reports examining the various Crown policies in different regions, with particular emphasis on land alienation (the regional boundaries used are arbitrary creations, not reflecting tribal boundaries).

A foreword by the chairperson of the tribunal notes that in 1989 the tribunal suggested that a reasonable outcome of the claims process would be the re-establishment of tribal groups with a reasonable economic base upon lines that might have been maintained had original Treaty expectations been adhered to. This raised issues about the principles to be applied to furnish relief and relativities between tribes.

The overview is an “interpretive survey” of NZ history from 1840 to the Second World War looking at the origins and most important effects of Crown actions giving rise to Treaty claims, with land alienations as a focus. Thirty four million acres of the South Island had been purchased by 1865, and also 7 million acres of the North Island. Another 11 million acres were purchased under Native land legislation from 1865 to 1900. However, it is little appreciated that a further  4 million acres were purchased between 1900 and 1930. The report concludes that it is doubtful in Treaty terms whether the Liberals’ programme of land buying in the 1890s should ever have been launched, and to relaunch the programme in 1910 seems a clear breach of the Treaty duty imposed on the Crown to protect Mäori.

Criteria for evaluating Treaty breaches

The report suggests 4 criteria for evaluating the seriousness of Treaty breaches:

•  Crown acts of commission; where the Crown most resorted to coercion, manipulation or pressure to achieve its objectives without seriously consulting Mäori opinion or in opposition to Mäori preferences. Includes war and raupatu (confiscations - including so-called ‘cessions’ made under pressure on the East Coast), the taking of surplus lands, harbours and foreshores, inland waters and subsurface rights, public works takings, and Native land legislation

•  Crown acts of omission: when the Crown failed to carry out its own plain undertakings. Includes the reserves policy - where promised reserves were not finally granted, and those which were granted were reduced or effectively taken out of Mäori control. Also includes economic advancement and social well being - where promises of education and medical care were made to encourage land sales. Also includes the failure to recognise Mäori political and jural authority in their own communities (two examples of missed opportunities are mentioned, the Mäori Land Councils Act 1900 and the Mäori Social and Economic Advancement Act 1945)

•  Demography; this criteria is used on the basis that a breach is greater where more people were affected. The ranking of this factor owes much to the proposition expressed in Mäori culture and claims, that people and relationships are more important than material wealth as such. The report examines per capita holdings of Mäori land by 1939 and finds Mäori in the Hauraki, Taranaki, Waikato and Auckland regions to be worst off

•  Quantity and value of resource loss; there are difficult issues about how to measure this.

Using these criteria and applying them to a comprehensive appraisal of the historical evidence, the report suggests that the most serious breaches are those involving loss of rangatiratanga or the legitimate scope for autonomous Mäori action - including the loss of resources which underpin autonomy, and the exclusion of Mäori from political and other influence. The report then ranks losses of resources in order of the seriousness of their impact on Mäori. First is purchases under the Native Land Acts over the 60 years from 1865, then Crown purchases 1840 to 1865, then raupatu (confiscation). This is followed by the failure of reserves policy, taking of foreshores and inland waterways, public works takings, and other issues such as rating.

With regard to reparations, it is important to determine if the means by which land was lost should be regarded as more important than the outcome of the loss. The report tends towards outcomes measured on a per capita basis. Where numbers of people were large, resources had a high value, and the loss of a resource had a greater consequence for the people.

Future strategies for claims

As to future strategies in the hearing and disposal of claims:

•  There was a lack of discussion in the 1980s about the implications of allowing claims to be made back to 1840. A period of reflection and discussion between the Crown and Mäori is now needed.

•  Present negotiations show Mäori do not seek full restitution, and there is no reason to think the present basis for negotiations should not continue.

•  The time period over which settlements are completed should be reviewed. There is a danger of creating fresh inequities if a fiscal cap is combined with a time limit, creating a rush by claimants to secure limited settlement assets.

•  It would help if the government accepted and stated the objective of claim settlements to be the restoration of rangatiratanga, which would involve facilitating the development of regional representative bodies on a more systematic basis than currently.

•  There is a danger of the claims process becoming bogged down if large claims have to be investigated down to the level of individual land blocks and if the many groups and individuals laying claims can split research and hearing efforts by attracting separate legal and research funding.

All of this suggests that “a broad-brush approach would achieve substantial equity in respect of most major issues, without highly particularised research. Serious consideration should thus be given to seeking settlements of the major historical issues, on a tribal or district basis, up to a chosen date, while leaving some particular points of grievance outside the settlement for further consideration, possibly by a less expensive process”. A suggested date is 1940 because (among other reasons) it is 100 years after the Treaty signing, prior to massive urbanisation of Mäori, at the tail end of the land purchase policy, and leaves the remaining issues to be dealt with within the living memory of claimants (the land court is the body suggested to hear these remaining issues).

Further points in the discussion of Treaty grievances from vol 1 include:

•  Most claims are made out in terms of s6(3) Treaty of Waitangi Act 1975 (Crown actions prejudicial to Mäori), “Mäori throughout the country have been reduced to near landlessness and have been economically marginalised by the deliberate actions of governments”, even after allowing for matters beyond state control, such as economic factors.

•  Possible forms of restitution are full monetary restitution (this is difficult to gauge, must be offset by benefits Mäori gained (also difficult to calculate) and is too costly), the return to Mäori of land in remaining public ownership (this may be appropriate in some circumstances, although some lands are too highly valued by the community at large to be returned eg parks and beaches), restoration of the injured community (the report finds this the most practicable alternative).

•  There needs to be discussion on whether the purpose of reparation is only economic ie whether Mäori language, culture, health and other matters are rights Mäori enjoy automatically as citizens (“article 2 rights”) and should not be the focus of settlements.

•  There is also a need to consider how far settlements recognise and seek to re-establish tino rangatiratanga. This involves the right to control resources with minimal interference from government, and accountability to the tribal group.

•  Where there are many conflicting tribal entities, to get on with the job of securing settlements, temporary or non-traditional structures combining several hapü and even several iwi may be appropriate in some cases.

•  Where assets were created post 1840, such as exotic forests, there is no reason why hapü whose land the forest is on should gain the whole of a ‘windfall’ benefit because of the accident that state development took place on that land. This argument could extend to offshore fisheries.

•  National Mäori opinion, as well as tribal opinion, needs to be consulted about the claims process and outcomes. The Aboriginal and Torres Strait Islander Commission model from Australia could be appropriate for this. A sharp antithesis of rural and tribal versus urban and non-tribal should be avoided in any consultation and policy making over claims.

•  Direct and appropriate representation of Mäori on responsible bodies is the way forward. General legal requirements about the Treaty and consultation with Mäori are “all to often discharged simply by posting off a letter or memorandum to some over-worked secretary of some local group - where it might languish amid a hundred other letters”.

•  Overseas experience is valuable, but of limited application. Simple negotiation of contractual arrangements has achieved in the USA more success than the establishment of distinct ‘sovereign nations’. The Canadian experience of staged settlements incorporating periodic payments (to spread the fiscal load) and socio-economic goals, warrants serious consideration.

The National Themes

The following themes are examined in vol 2: the land policy before and at the siging of the Treaty and instructions to the Governor (including a brief discussion about Mäori law and relationships with land), old land claims and surplus lands, NZ Company purchases, purchases under Fitzroy’s waiver of pre-emption, Crown purchases to 1865, raupatu (confiscation), purchases under the Native Land Acts 1865 to 1899, reserves and restrictions on alienation to 1900, the Validation Court, goldfield and other mining policy and legislation, public works takings, surveys, foreshores, inland waterways, Mäori land administration (and purchasing) in the 20th century, Native townships, development schemes, the Mäori Trustee, Mäori and rating law, and Mäori in the political and administrative system. Highlights from the volume include:

•  Early Crown purchase policy: While Crown pre-emption was introduced to protect Mäori from speculators, it was also intended to allow the Crown to buy Mäori land cheap. Mäori were thus denied the full capital value of their land, when other options like leasing were used and preferred by Mäori and could have been implemented, but were forbidden by the Crown.

•  The Crown, to its credit, rejected the idea of there being waste lands which did not require purchase from Mäori, but then undertook sweeping blanket purchases of vast areas in the South Island and undertook disastrous efforts such as the Waitara purchase when Mäori actively sought to slow or halt sales.

•  The best possible approach to land purchasing would have been to notify Mäori that land was under negotiation (thus bringing forward the appropriate parties with interests) avoiding any advance payments, then walking the land and discussing the proposed purchase. This was recognised by officials in 1865, but was regarded as too time consuming. Another problem was that officials thought in terms of buying Mäori rights, “inchoate and precariously held”, rather than a full proprietory title.

•  Pakeha authorities repeatedly agreed with Mäori complaints about the operation of the Native land legislation, but proper reforms were not forthcoming and always stopped short of preventing the transfer of freehold title to settlers.

•  Mäori showed a deep ambivalence to reserves and restrictions on their ability to alienate land.

•  Although Mäori did not use many subsurface minerals or know of their existence (gold, coal and petroleum are exceptions), as surface right-holders they “have a Treaty right at least to generous payments for access to the sub-surface and to involvement as joint venture partners in its exploitation wherever possible.” This has been an approach adopted by the Papua New Guinea and Vanuatu governments to indigenous claims.

•  It appears to be the situation that no NZ court has ever entirely accepted the Crown’s view that it owns the foreshore by virtue of the common law, and since current statues do not explicitly vest the foreshore in the Crown, the Crown claim to it may have no statutory basis either. Areas of foreshore may remain today which are Mäori customary land. However, no easy avenue of legal redress remains to Mäori. It may be that a negotiated settlement, followed by legislation, is required.

•  There is little doubt that inshore fisheries were effectively under the control of hapü adjacent to them and their kin, however the 200 mile economic zone is a state matter, not a development right of hapü. Offshore fisheries therefore seem to be at the disposal of the government for the benefit of all NZ or sections of it, and the 1992 Sealord fisheries settlement exemplifies this.

•  Given the Mäori demands and expectations of government and the bureaucracy, and given the present government commitment to Mäori affairs, “devolution, despite its difficulties, remains the most appropriate vehicle for the expression of Mäori autonomy within bureaucracies.”

Vol 3 looks at claims and issues in 15 districts covering the country.

[Ed: when he formally presented this report to the tribunal, Professor Ward said that it should have been undertaken in 1985, before the jurisdiction of the tribunal was backdated to 1840, and consequently it was “12 years late”. The report is wide ranging. Unfortunately there is no formal process or timetable for its consideration by government, although researchers, lawyers, and the tribunal will no doubt have recourse to it in future proceedings. Because vol 3 draws together all existing research in regions throughout the country, it may enable the government and some claimant groups to move to early broad settlements where neither side wishes to concentrate on details. However the conclusions on national themes in vol 2, because they are applicable to the whole country, may be less readily digested by government. Probably the most significant finding on a national theme (because it affects so many hectares and iwi) is that many purchases under Native land legislation from 1865 were in breach of the Treaty because of the nature, purpose and operation of the scheme of land purchase under that legislation.

The discussion between Crown and Mäori  about claims settlements policy which is suggested by the report is unfortunately unlikely to take place soon, given the difficulty the government experienced with its last consultation over the “fiscal cap” proposals. As a result, it is likely that the true test of the impact of the report will be whether, in the next few months the tribunal alters its hearing and research programme, and the government alters its settlement programme in response to the report.]

Other Courts and Tribunals

NZ Federation of Commercial Fishermen Inc & Others v Minister of Fisheries

CP 237/95. High Court Wellington. 24 April 1997. McGechan J

The Federation of Commercial Fishermen and other commercial fishing organisations sought judicial review of decisions of the Minister of Fisheries in 1995 and 1996 setting the total allowable commercial catch for snapper in the north east of the North Island (SNA1) at a lower level than in previous years, and without imposing significant new controls on non-commercial fishing. The Treaty of Waitangi Fisheries Commission (the commission) supported the appeal and also raised, along with several other Mäori groups, additional issues as to rights under the Treaty of Waitangi and the level set by the Minister for the customary Mäori element of the non-commercial catch.

In September 1995 the minister announced a total allowable catch (TAC) for SNA1 of 5600t (tonnes) and divided it between recreational fishing 2300t, Mäori customary take 300t and commercial 3000t. This last was a 39% reduction on the 1994 commercial catch of 4928t. In September 1996 the minister announced a similar decision. Interim relief which had been granted while these review proceedings were heard meant that neither decision had yet been put into effect.

The industry argued that the 1995 and 1996 decision were wrong by illegality and error of law (by reason of improper purpose in the decision, error in interpretation of the Fisheries Act 1983, mistakes of fact, and a failure to take into account relevant considerations), that there had been a breach of legitimate expectations, that there was unreasonableness or substantive unfairness in the decision, and that there had been a breach of a duty to consult.

The commission raised the additional grounds that the minister had failed to take into account settlements with Mäori over commercial fishing and that his decision would reduce the worth of those settlements by $14.6 million, that there was a legitimate expectation that quota held by the commission would only be devalued in exceptional circumstances or compensation would be given, and that any reduction in commercial quota would be accompanied by proportionate reductions in non-commercial quota rather than a ‘transfer’ to non-commercial fishers. The Hauraki Mäori Trust Board argued in addition (among other matters) that the minister should have consulted directly with them before varying the commercial and non-commercial quota limits. Likewise, a group described as Paepae/Taumata 2, mandated by a national hui to develop customary fishing regulations, argued (among other matters) that they should have been consulted about the customary Mäori  non-commercial catch, which, under the legislation, should have priority over the recreational catch.

Held: SNA1 is located in eastern Northland, the Hauraki Gulf and the Bay of Plenty. There was a well established traditional Mäori fishery in SNA1 with commercial and non-commercial elements. The conclusions of the Waitangi Tribunal’s Muriwhenua Fishing Report 1988 could be applied “in a broad way” to these regions. Local Mäori regarded themselves as kaitiaki or guardians of the fishery within their regions, were trustees for future generations, and fished according to customary practices. Their fishing would have made little impact on the virgin biomass of SNA1, estimated at 250,000 to 350,000t. With European settlement the fishery declined, and reduced below the biomass for maximum sustainable yield (msy) in about 1950. It was still being fished in excess of 10,000t per annum in the late 1970s. From 1982 it was declared a controlled fishery and the first limits imposed. In the colonial period Mäori continued their traditional use, but traditional practices were ‘overwhelmed’. Kaitiakitanga and tikanga did not disappear, at least for Mäori, but received “scant regard” from officials.

In 1986 the Quota Management System (QMS) was introduced, creating quota entitlements giving an inalienable right to harvest fish. An initial TAC was set at 4710t, but appeals raised this closer to the historic figure of 6010t in 1993, which was sharply reduced to 4900t in 1992.

Other important changes in the years since 1986 had been:

•  The development of proposals for limits on recreational fishing of SNA1, which were later dropped.

•  The Mäori fishing settlements of 1989 and 1992, the first transferring 10% of quota to the commission, the latter providing cash to purchase a half interest in a major quota holding fishing company (Sealords) and an entitlement to 20% of new quota coming under the QMS. In exchange, Mäori accepted the QMS as legitimate and accepted amendments to the Fisheries Act 1983 that Mäori non-commercial fishing rights henceforth were of “no legal effect”, except as would be provided in new regulations to be drawn up in consultation with Mäori.

•  In 1990, it was provided that where previously, if TACs were reduced, the Crown would compensate affected holders of quota, and would keep any extra quota entitlements for sale by the Crown where TACs were increased, from now on the holders of quota would accept the risks and bonuses from rising and falling TACs.

•  From 1990, the total allowable commercial catch (TACC) was set separately and alongside the total catch limits for recreational, Mäori and other non-commercial interests. Previously, the commercial catch was a lower priority residual figure arrived at after non-commercial interests had been catered for.

•  In 1992, in light of the Mäori fishing settlement of that year, the reference to allowances to be made for “Mäori, traditional, recreational, and other non-commercial interests” in the Fisheries Act 1983 (s28D(1)(a)(i)) were replaced with “non-commercial interests” and a requirement to consult the commission when setting this total catch limit.

•  It was clear to Mäori negotiators in 1992 that quota held by the commission might be subject to reduction for biological reasons. However, they would not have agreed that the TACC be reduced simply to enable greater recreational fishing. “It is highly unlikely Mäori would have agreed to surrender Treaty rights for the better gratification of Auckland boatmen.”

The biomass of SNA1 was estimated to be 50% below that required to provide a maximum sustainable yield. A TACC of 4000t would move to msy in 34 years, 2000t would move it to msy in 10 years. A TACC of 4900t simply maintained the current situation with biomass, and this was the TACC for 1994.

The minister clearly contemplated a reduction in the TACC in 1995-96 and assumed he was required by law to move towards msy. The industry (including the commission) was consulted about the proposed changes. However, no other Mäori organisations were specifically consulted. Ministry papers noted biological benefits but also socio-economic effects of any reduction in the TACC, and also noted submissions from at least one Mäori group (Area 1). The ministry advised that although the fishery was not in danger of sharp decline, short term reductions in the TACC were required to prevent further decline, and longer term reductions were required to rebuild to the msy. There were no viable alternatives to TACC reduction.

The minister initially proposed a TACC reduction which would rebuild the fishery to msy in 10 years.  He noted that the reduction would be large. The commission advised this would have a considerable effect on the value of the Mäori fisheries settlements. After further consultation, the minister settled on 2300t for recreational fishers, 300t for the Mäori customary catch, and a TACC of 3000t for commercial fishers.

In an affidavit, the minister admitted that the 300t figure was arbitrary given the scant information on the Mäori customary catch. However the affidavit also showed this was a conservative figure demonstrating that the customary catch was taken seriously, and looked forward to the promulgation of new customary fishing regulations.

After considerable consultation and discussion in 1996, the minister reaffirmed the 1995-96 figures for the 1996-97 fishing season. Both in his decision and affidavit he made no express mention of Mäori issues.

The court noted that discussions over new customary fishing regulations have reached an impasse. There is a proposal that the minister should refer the regulations to the Waitangi Tribunal under s8(2)(b) Treaty of Waitangi Act 1975, which Cabinet is considering. An early outcome is unlikely and the court doubted whether delay of this scale was envisaged in 1992 when the settlement legislation was drawn up.

Fishing industry arguments

As to the industry arguments about the setting of the TACC (supported by the commission), the court dismissed them all, finding that:

•  Taking into account the relevant provisions of the Fisheries Act 1983 and various arguments based on the UN Convention on the Law of the Sea on which parts of the Fisheries Act were based, the minister was obliged to move SNA1 over time to a biomass suitable to provide a msy, or he had a discretion to do so. No error in law was therefore apparent. In relation to the impact of international instruments, the court commented that it was concerned about an ‘ambulatory’ approach to NZ statutes which seeks to constantly update them along with developments in relevant international law. This may sometimes be appropriate, but there may well be areas “eg in human rights, treatment of indigenous peoples or indeed marine matters” which Parliament might consider best retained for Parliament and the Executive to consider “without ad hoc judicial intervention, however well intended”.

•  There was no improper purpose in the minister’s decisions in terms of the Padfield case.

•  There was no failure to have proper regard for the ‘strong’ property right in quota, which is a property right of a special character, “it is not as though the Minister will be invading a fee simple”. The property right is expressly subservient to the powers of the minister under statute.

•  The minister had not erred by failing to consider the alternative to quota reduction - namely, the purchase of quota by the Crown to prevent it being fished (‘shelving’). He had considered the option, and using his discretion, rejected it for reasons which were open to him.

•  The minister did not operate wrongly on the assumption that he had to give priority to non-commercial (including Mäori) interests in setting the TACC. Nor had he erred in law in failing to impose effective controls on recreational fishers, nor had he made a mistake of fact that tighter controls on recreational fishers would be effective. On the evidence available to the minister about the effectiveness of controls, this was not the case.

•  There had been no legitimate expectations created by the minister that tighter recreational controls would be imposed if commercial fishers accepted the QMS in the first place.

•  The minister did not fail to have regard to relevant considerations as to msy and present stability of SNA1, was not mistaken in fact over msy matters and there was a rational conservation basis for his decisions.

•  There had not been a failure to consult with the commercial industry, and the industry had adequate notice of proposed reductions in the TACC

•  Nor was there “substantive unfairness” in the final outcome from the minister’s decision.

Treaty of Waitangi Fisheries Commission arguments

The commission and Area 1/Ngapuhi claimed that while quota held by the commission was subject to reduction like other quota, because of its origin in a settlement with Mäori, based on Treaty rights, commission quota should not be reduced unless “absolutely necessary” and not as part of a ‘reallocation’ to recreational fishers (although the customary Mäori catch did have priority). Also, while the Fisheries Act 1983 had no specific Treaty reference, the minister had to have regard to the Mäori Fisheries Act 1989, the two acts together forming a common code (Huakina Development Trust v Waikato Valley Authority (1987) 2 NZLR 188).

It was also argued that representations made at the time of the 1992 settlement created legitimate expectations which must affect the discretion of the minister when setting quota limits. An affidavit from a key negotiator (Sir Tipene O’Regan) argued that in settlement negotiations:

•  the Crown had given an assurance the QMS would remain in its present form and not be changed without consent of Mäori

•  negotiators had been led to believe by Crown officials that quota was a secure and durable proprietary right

•  it had been commonly assumed that Mäori interests were superior to those of recreational fishers

•  Mäori had accepted that quota could be reduced to ensure the ecological sustainability of a fishery

•  it was ‘implicit’, although not expressly stated, that any decrease in commercial quota would be matched by a proportionate decrease in the recreational quota. Otherwise the settlement would mean Mäori rights had moved from priority, to an inferior position with regard to recreational rights.

The court largely rejected these views of the legislation and the settlement negotiations. Looking at the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which amended the Fisheries Act 1983 (and the Deed of Settlement - although it is a political document); beyond removal of a specific reference to ‘Mäori’ in relation to non-commercial interests and a requirement to consult the commission over Mäori fishing, there was no other change and no suggestion that quota held by Mäori or the commission have any preference. Parliament’s intention was that Mäori agreed to take quota in settlement of their claims and be treated like any other quota holder, and, in particular, would have no unique protection against risk. There was however, still room to raise “general Treaty matters” and if such were raised “the Minister would have regard to those along with all views expressed.” While it was correct that Acts should be read as complementary (Huakina), in this case the “carefully limited” amendments made to the Fisheries Act 1983 and “inherent commercial and administrative probabilities” meant that the Parliamentary intention was clear and “wider generalities” had no place. The Treaty itself was not of course repealed, thus allowing for the adjustment of matters in the future. But for now the die was cast in terms of the current legislation. Treaty obligations and the source of quota held by the commission were therefore not relevant. The minister did take into account, “so far as practicable”, the impact a reduced TACC would have on the commission, and had sought economic advice from the commission - which it had declined to supply.

As to legitimate expectations, a distinction had to be made between subjective understandings and actual representations by the Crown. On the basis of the evidence presented, the Crown had represented the QMS to be a durable means of settlement and that there would be no change in the basic scheme in the forseeable future. But there was no representation as to proportionality between commercial and recreational interests. The imposition of enforced reductions on recreational fishers as a trade off for the Mäori fishing settlement would be a matter with “considerable political implications”. The arrangement was rather that Mäori would enter a QMS “basically unchanged” and subject to fluctuations in quota limits like all others. Even though the Unilever case has moved the basis for legitimate expectations beyond clear and unambiguous representations, general representations at the settlement negotiations as to ‘durability’ ‘security’ and the like do not suffice, especially since in this case the Mäori negotiators were well aware of the real nature of the right they were getting - ie quota subject to discretionary control by the minister.

Mäori expectations or assumptions about the settlement might provide a basis for arguments at an “extra-legal and Treaty level”, but such are a different matter from actual representations made by the Crown and were not for the court to consider.

Hauraki Mäori Trust Board arguments

The Hauraki Mäori Trust Board argued that the minister had failed to consult with them over policy relating to non-commercial Mäori fishing rights (as required by s10 of the Settlement Act) and had failed to give such rights priority over all other interests. Priority arose because of cases like Te Weehi [1986] 1 NZLR 680 and Te Runanga o Wharekauri Rekohu Inc v AG [1993] 2 NZLR 301 concerning Mäori fishing rights, which were not altered by the repeal of s88(2) or the settlement so as to lose that priority. Other authorities are R v Sparrow (1990) 70 DLR (4th) 385, R v Van Der Peet (1996) 137 DLR (4th) 289, R v Gladstone (1996) 137 DLR (4th) 648, and R v GardnerR v Jones (1996) 138 DLR (4th) 204. While a reduction might occur where the resource was under threat, Mäori customary take would be reduced by a lesser degree (qualifying the decision in Roach v Kidd (Unreported HC Wellington 12 October 1992 CP 715/91) discussing “shared pain”). The admitted arbitrary allowance of 300t showed that rather than giving the Mäori customary catch priority, it had been considered after recreational and commercial interests. The kaitiakitanga of Hauraki, including tribal regulation of the resource had not been considered. It was also argued that there had been a breach of a duty to consult (the Crown admitted that no consultation with Hauraki had been undertaken).

The Crown contended in response, among other matters, that the setting of the TAC and TACC was not a policy under s10 (see Auckland Regional Council v North Shore City Council (1995) 3 NZLR 18), and that s10 provides in any event that Mäori non-commercial fishing rights are to have “no legal effect”.

The court found that, when allowing for non-commercial interests under s28D(1)(a)(i) Fisheries Act 1983 the minister must consider s10 of the Settlement Act as the current central provision governing Mäori customary non-commercial rights. This provides that claims to non-commercial fishing interests continue to give rise to Treaty obligations and the minister is to consult and develop policies and regulations to give them effect. When polices and regulations are fully developed there will remain a residual Treaty duty which may by then be small, but that was not the case in 1995 and 1996. This Treaty obligation exists despite s10(d) providing that the rights have no legal effect except as provided specifically in forthcoming regulations. That provision is directed at court proceedings. It does not prevent the minister making provision for Mäori as far as he properly can while detailed policies and regulations remain to be developed.

As to the priority for Mäori non-commercial rights, the present legislation, rather than the origin of the Mäori right in case law, should be the point of departure (among other reasons, because otherwise dubious cases such as Waipapakura v Hempton (1914) 33 NZLR 1065 and Keepa v Inspector of Fisheries [1965] NZLR 322 have to be distinguished). Under s28D the minister is merely to “allow for” non-commercial interests. No priority is stated. The obligation to consult the commission under s28D relates only to commercial fisheries, because:

•  the commission could face a conflict of interest if it promoted both commercial and non-commercial interests

•  it was envisaged the customary fishing regulations would be developed promptly after 1992 and in consultation with “tangata whenua” rather than the commission

•  Section 28D(2) requires the minister to identify representatives of Mäori in relation to non-commercial fishing. There is no single national voice for the minister to consult (similar to the NZ Recreational Fishing Council). Parliament regarded the customary fishing situation as a limited and temporary one, until customary regulations were developed. Parliament intended that the consultation with suitable representatives be left to the good sense of the minister.

On the affidavit evidence of the minister, in his 1995 decision about customary catch (300t) he operated on the basis of Treaty obligations. He consulted with no Mäori apart from the commission however. Consultation with the major iwi groups concerned with SNA1, either by hui or even written submissions, would not have presented any undue difficulty. There was no adequate consultation in terms of the legislation therefore. However, relief should be declined because:

•  the commission had stated the essence of the Hauraki position to the minister in any event

•  the minister did appreciate the significance of customary fisheries in his decision

•  Hauraki have given no clear indication whether a reconsideration would go beyond 300t (they had been “delightfully vague” on this point), and there was no reason to believe it would exceed 300t

•  this was a relatively small issue which could be addressed in the 1997-98 fishing year.

The minister should also have invited the views of iwi before his 1996 decision. However, relief would be declined for the same reasons, and for the additional reason that in 1996 Hauraki had made a ‘submission’ in terms of bringing proceedings, and had provided no information as to quantum.

Paepae Taumata 2 arguments

Paepae/Taumata 2, the body mandated by a national hui to develop customary fishing regulations, made many submissions. The most significant findings of the court on these submissions were:

•  Alleged failure to give non-commercial customary interests priority as part of the tribal right of self regulation (arising from the “statutory scheme” comprising the Fisheries Act 1983, the Settlement Act and Deed and from cases giving priority rights to indigenous peoples in fishing including United States v State of Washington 384 F. Supp 312 (1974), R v Gardner (1996) 138 DLR (4th) 204, Ngai Tahu Mäori Trust Board v A-G (Greig J) and Waitangi Tribunal reports): In spite of all this material, s28D does not give any priority. The legislation taken together merely gives a potential for general priority once regulations under s89 are made. The minister could not in 1995 and 1996 prejudge the issue and give some extra legal priority under s28D until new customary regulations were made (which might well state a priority). Submissions calling for priority based on Waitangi Tribunal reports, overseas jurisprudence and an asserted right of tribal regulation were not as relevant as the particular legislation in this case.

•  Alleged failure to consult (including breach of s27 NZ Bill of Rights Act): Under s28D(2) it was open to the minister to determine who to consult with, and open to him to consider that Paepae Taumata 2 were merely concerned with developing customary fishing regulations and not the setting of the TAC and TACC for SNA1. Even if this view was wrong, relief should be declined as nothing would be gained by a reconsideration of the 300t allowance (which was probably adequate in any event) with only part of the fishing year to run.

•  Whether kaitiakitanga is a relevant consideration under s28(1)(a)(i): This was not at all clear from this legislation. “Matters of regulation of Mäori customary fishing, and within that of kaitiakitanga, were consigned by Parliament to development of regulations not yet completed.” Sustainability was relevant, and that sufficiently covered the field in the meantime. But the point might be academic, as the minister was aware of and gave effect to general Treaty duties in his decisions, and kaitaikitanga would fall within that. Also, it was not demonstrated that any greater regard to the concept would have resulted in a different outcome.

•  While there might be a legitimate expectation that the work of the Paepae Taumata 2 working group would not be abruptly pre-empted, and no material decisions would be made until there was agreement on the customary fishing regulations, the decisions as to the SNA1 TAC and TACC limits in 1995 and 1996 were not material decisions and decided nothing in principle, and the minister showed he was looking forward to assistance in the future from the proposed regulations.

[Ed: this is a lengthy judgment (177pp), and particularly significant for Mäori holders of commercial quota and the fisheries settlements generally. Because of its length, and a degree of repetition in the judgment when it deals with many causes of action relying on similar arguments, only those parts relevant to Mäori issues (and only the most important aspects within those parts) have been summarised above. Several parties have lodged appeals, including the commission.

In a judgment on 14 May 1997 (NZ Fishing Industry Association (Inc) v Minister of Fisheries CA 82/97, Gault, Henry, Thomas, Keith, Blanchard JJ) the Court of Appeal extended the interim orders pending the result of any appeals, on the basis that the fishing year was already 8 months old, more than 3,000t had been fished, and refusing an extension would result in an immediate shutdown of the snapper industry in the Auckland region for the remainder of the fishing year, with “serious economic consequences.” Maintaining the present TACC for a further 4 months would, by contrast, cause a slight decline in the stock (the current TACC would in any event cause a slight increase in the stock over the period to 2005). Thus the viability of the fishery was not in question if the interim orders continued for a further 4 months.

The Minister of Fisheries has announced that the proposed customary fishing regulations will not go before the Waitangi Tribunal, but will be opened up for public comment and further discussions with iwi (press release 28 May 1997).]

Harris v Larkins aka Te Awe Awe

CP 4/97. High Court Wellington. 12 May 1997. Doogue J

This was an unusual application for an interim injunction where the plaintiff claimed to be the author, on behalf of her iwi and hapü, of a claim before the Waitangi Tribunal, and it was argued that the defendant had, in breach of copyright, filed a claim with the tribunal on behalf of the same iwi and hapü.

The defendant accepted that there was a serious issue to be tried but pointed to possible defences under ss5, 59, 60, 61 Copyright Act 1994.

Held: the real issue was whether in the interest of overall justice and on the balance of convenience an interim injunction should issue. No information had been made available on the ability to pay damages or on possible consequences to either party if an interim order issued. The application would be declined. When such conflicting claims for the same hapü and iwi are made, the parties should be left to their rights in the substantive proceedings. There was nothing to show why that should not be the case here. This appeared to be a “trivial matter between two persons who cannot co-operate for the benefit of their tribe.”

Nganeko Minhinnick, Danny Roberts, David Wilson, Huakina Development Trust v Watercare Services Ltd & Minister of Conservation

A55/97. Environment Court.  28 April 1997. Judge DFG Sheppard

This was an application for an interim enforcement order (under s319 Resource Management Act 1991)  to stop construction of a sewerage pipeline through the Matukuturua Stonefields in South Auckland. The stonefields occupy land used by Mäori in the past and there is a likelihood that they contain bones and other early remains. The proposal was to build a 5 km section of sewer, 1.8m in diameter, running through the stonefields at or above groundlevel, within a 30m wide corridor.

The application was brought by representatives of Wai o Hua - a Waikato-Tainui iwi - on the basis that passing sewage through these last remaining archaeological sites and disturbing waahi tapu would be “offensive and objectionable” to such an extent that it would be likely to have an adverse effect on the environment (s314(a)(ii)/1991). The “environment” in this sense includes people and communities and amenity values (s2(1)/1991).

Held: Watercare services had lawful authority under the RMA 1991 to construct the pipeline. Although there had been no consultation with Mäori when an earthworks consent was obtained, that consent had not been challenged in any court.

Applying Zdrahal v Wellington City Council [1995] NZRMA 289 (at 297- a case dealing with similar wording in s322/1991 and concerning the display of swastikas), the test for what constitutes “offensive” or “objectionable” is an objective one, and it is not sufficient that a neighbour or other person or the court itself finds an activity objectionable. The court must transpose itself into the ordinary person, representative of the community at large, and decide whether they would find that the environment, in the sense of people, their culture and values, would be adversely affected. “If it is objectively offensive or objectionable, that is if reasonably ordinary persons would be offended or find it objectionable, then it does affect the environment of those people and of any other such people living in the vicinity who are likely to be affected.” Noted also Otorohanga Heritage Protection Group v Otorohanga District Council (Planning Tribunal A83/94 “it is not sufficient simply to show that what is done … is … offensive and objectionable in the minds of those comprising a significant cross-section of ‘reasonable people’ in the community, when another substantial sector of equally ‘reasonable people’ is prepared to endorse the action”). The personal opinions of the applicants in this case were therefore not material.

The adverse effects claimed do not however have to be of a high degree or of a ‘top level’ to fall within s314/1991. There is no threshold test. The court will rather look at the total circumstances, including whether the works have been authorised, the extent of consultation prior to authorisation, and any steps taken to avoid or mitigate adverse effects on the environment.

The ‘environment’ includes archaeological remains (including köiwi - bones) because they are “natural and physical resources from which people and communities may in a metaphysical way take spiritual and cultural strength and comfort, and a sense of identity.” Works on the sewage pipeline which disturbed waahi tapu and any köiwi in them could therefore potentially be offensive and objectionable to such an extent that they would have an adverse effect on the environment.

The court was not prevented from examining the case by s319(2)/1991 (persons exempt where they are acting in accordance with a rule or plan and the adverse effects at issue were expressly recognised when the rule or plan was developed). It was not clear that the designation for the sewage pipeline was a rule in a plan, and the fact that the likely disturbance of waahi tapu might be found offensive and objectionable so as to adversely effect the environment was not expressly recognised in the planning stage. In any event, only Watercare Services Ltd (the private company undertaking the construction) considered any waahi tapu issues, not the city council, which approved the plan and earthworks consent.

Section 17/1991 (every person has a duty to avoid adverse effects on the environment) is applicable to the situation. The section provides that the duty is not directly enforceable, but an enforcement order may be made under it for reasons equivalent to those under s314(1)(a)(ii)/1991.

The evidence showed that the proposed pipeline works through the stonefields would have adverse effects on waahi tapu.

There had been consultation with Mäori, including the applicants, throughout 1996. As to disputes which had been raised about who were appropriate representatives of hapü and iwi for consultation purposes, in cases concerning disputed standing of tribal authorities, the Planning Tribunal in earlier decisions has indicated the correct approach is that neither consent authorities nor the tribunal (now court) should make findings on who the appropriate authorities are, but rather, where applicants for consents have taken “reasonable steps to genuinely consult with those whom they reasonably understood to be representative of the tangata whenua” then a decision of a consent authority will not be set aside for want of consultation (see Luxton v Bay of Plenty Regional Council (PT A49/94), Tawa v Bay of Plenty Regional Council(PT A18/95) Ngatiwai Trust Board v Whangarei District Council (PT A80/95); Uruamo v Carter Holt Harvey (PT A43/96); CDL Land v Whangarei District Council (1996) 2 ELRNZ 423). The applicants had been consulted with, even though they had consistently objected to the proposal. But consultation does not give a right to veto. Also, other Mäori representatives who had been consulted had given their approval, with conditions. The complaint of inadequate consultation was not made out.

In considering whether the proposed work is offensive or objectionable to such an extent that it is or is likely to have an adverse effect on the environment, the approach of a reasonable and ordinary person is the benchmark. Such a person would regret that waahi tapu are to be disturbed, but would take into account the public service the pipeline would provide, the reasoned route selection and opportunities for public challenge to it, the consultation with Mäori, the Mäori ceremony which had occurred conferring a blessing on the work (notwithstanding the protests of two of the applicants), that the work is to be carried out in accordance with a plan of works approved by the local authority which involves compliance with an archaeological management plan and protocols agreed with the tangata whenua if any remains are discovered. Accordingly, the proposed works are not objectionable or offensive and the applicant’s claim under s314(1)(a)(ii)/1991 was not made out.

[Ed: subsequent to this decision, the Minister of Conservation, Nick Smith, has instructed the Crown Law Office to file proceedings for a ruling on the legality of consents granted under the Historic Places Act 1978 permitting Watercare to a construct sewage pipeline through the stonefields. NZ Herald pA8, 9 May 1997.]

Speeches & Press Releases

Mäori appointment to the Law Commission

7 May 1997 Minister of Justice press release

Denese Letitia Henare has been appointed to Law Commission for 3 years. She is an Auckland lawyer of some standing, as well as a director of the Northern Regional Health Authority and Tainui Corporation Limited.

Community magistrates

9 May 1997 Minister of Justice press release

The government is to appoint community magistrates to take over matters dealt with by JPs (who presently deal with defended and undefended fine only offences), and to hear undefended cases with penalties up to 3 months imprisonment or $5000. For such cases the community magistrates will be able to impose community-based sentences or refer the matter to a judge if imprisonment is required. This jurisdiction involves handling some 70,000 cases annually including driving offences, cannabis possession and disorderly behaviour. In making appoints a representative of local Mäori, among others, will advise the Minister of Justice. Awareness of tikanga Mäori will be a skill which appointees will require. Training will include an awareness of the role and implications of the Treaty of Waitangi. It is hoped that Mäori, including kaumätua, will seek appointment.  It is also hoped that community magistrates will sit on marae where appropriate (district court judges presently sit on marae only if the accused and the marae request it, if the victim agrees, and if it is consistent with the criminal law to do so). First appointments will probably be made before the end of 1998.

Other

The State of Mäori Land Today

Data from MLIB

Total Area of Mäori Land is1,518,123.42 hectares. The estimated value of the bare land is $1,001,179,000. The estimated capital value (ie market price) is $1,476,376,215.

Land Administration StructureArea (hectares)% total areaNo. Land  Blocks
Ahu Whenua Trust75018749.56%6303
None29388619.42%16405
Incorporation20715613.69%259
Whanau Trust878415.8%108
Trust Board663474.38%106
Not described549843.63%1307
Other275071.82%1129
Whenua Topu Trust255161.69%10
Kaitiaki trust1540.01%8
Putea Trust690.00%1
Total1513646100.00%25636

 

No. OwnersNo. land blocks Total area of the blocks (hectares) 
1 to 1010731250364.93
10 to 507991169034.68
51 to 1002572109768.90
>103411870640.93
no data935118313.99

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