June 1997 Contents

Comment

Speech by Minister of Treaty Negotiations

Mäori Land Court & Appellate Court

Waihaha 3D2 Incorporation—power of the court to suspend a committee of management

Waitangi Tribunal

Turangi township claim—Standard of proof for binding recommendations

Broadcasting policy claim—Decision re an urgent hearing on consultation issues

Other Courts and Tribunals

Guardianship Act 1968 and the Treaty of Waitangi (High Court)

Effluent discharge to land—Mäori values (Environment Court)

Local Government Act 1974 and the Treaty (Environment Court)

 

 

Comment

Extracts from a speech to Federated Farmers. Hon Douglas Graham, Minister in Charge of Treaty Negotiations

29 May 1997 Ruapehu Federated Farmers AGM, Taumarunui

The claims and Pakeha responsibility

None can feel comfortable with; The confiscation of millions of acres of traditional lands taken at the stroke of a pen because Mäori had the audacity to form a collective to stand together to prevent sales. This was taken as a challenge to the authority of the Crown and justified a military invasion into their territory. Yet today it seems an entirely justified and legitimate response to the insatiable demand for their land. Or the establishment of the Native Land Court which was designed to destroy communal ownership and instead register Mäori land in only 10 owners nominated by the Court. This succeeded in making sales much more likely …. These examples have been proved beyond any doubt and the end result was that by 1900 most Mäori had become landless, impoverished and marginalised.  That these matters have not been addressed coherently before now is a disgrace.

I am not suggesting that everything done was bad, or that Mäori themselves should not carry some of the responsibility for their ultimate plight. …. Nor am I suggesting that the present generation of non-Mäori should feel ‘guilt’ for what happened so long ago. We weren’t there at the time, but we have benefited indirectly in that the Government’s ill-gotten gains at the expense of Mäori have been enjoyed by successive generations of New Zealanders. So we have a duty to put things right if we can.

…. It has to be understood that Mäori had been here for 1000 years before us. They had a well developed societal structure, well understood the need for ecological and environmental considerations and no doubt would have quite happily carried on had the ships not arrived with settlers from Europe imbued with quite different cultural backgrounds and understandings. And of course many came in the belief that land had been bought for them and simply awaited their occupation. So there was an inevitable clash of cultures, of attitudes, of hopes and aspirations. Inevitably, these differences would merge over time to some extent but quite why it was decided that Mäori culture and traditions would have to be submerged in the European model is hard to understand. It may well have been thought it was in their best interests, but today that seems totally arrogant.

The Fiscal envelope

[The] ‘fiscal envelope hui’ as they became known were character building. Mäori rejected the proposals outright and took the opportunity to tell the Crown representatives just what effect the events of the last century had had on them. It was incredibly emotional and, for the Crown attendees, a very sobering experience. But this was essential if there was to be any sort of reconciliation. Any fond belief that the problem would go away if we continued to ignore it would have been dashed by every one privileged to have listened to the cries of the heart expressed on those highly charged days. Many Mäori believed that the proposals should have been developed with them before any publication but I do not believe that would have been possible. No one iwi will agree with another on the approach and none would agree to have another bind them to some common approach. We would have been going for years. So I think we were right to do this and we did listen and study carefully all the submission we received and indeed amended some of he proposals as a result. …. Since then we have had a change of Government and the Coalition Agreement has discontinued the cap on … the fiscal envelope, but only on the basis that:

•  The settlements already effected will not be reopened.

•  Future claims will be settled on their merits, using the settlements already effected as benchmarks.

Fiscal responsibility

…. All up the fiscal cost of assets transferred or agreed to be transferred to date is a little over $600m. This is but a fraction of the loss suffered but it is hoped it will enable Mäori to play their full part in society again and can preserve the things they hold dear. We will all benefit from this.

The Ngäi Tahu settlement

I mentioned earlier how difficult it is to give recognition to values and traditions which are unique to Mäori in today’s world. …. If we are to live together with goodwill we have to recognise these intangible elements in some way which fits in with current needs. In the Ngäi Tahu negotiations, many months have been spent with much lateral thinking trying to devise new concepts which will do this. We have created töpuni reserves which are in effect an overlay status which doesn’t amend the existing classification whether it be a scenic reserve or historical reserve. We have nohoanga reserves on Crown land for river fishing. These authorise Ngäi Tahu to camp there. Then there are what are known as statutory acknowledgements which are designed to ensure that those sites of great importance to Ngäi Tahu are not the subject of resource consents without Ngäi Tahu being advised. This is not a veto right but a right to be heard. Other innovative concepts have been developed. Ngäi Tahu will become a statutory adviser to the Minister of Conservation in relation to certain items of flora and fauna. Some conservation groups are troubled by these developments but I do not think there is much merit in their concerns. The settlement will add tens of thousands of acres to the conservation estate and public access rights preserved and even enhanced.

…. Some say it is all a waste of time. They even claim somehow that this is apartheid. …. We should revel in our differences, learn from each other, listen with tolerance one to the other, two families in the same house, and very proud to be New Zealanders together.

[Ed: this is an important speech, and courageous one, given the audience. It suggests that the minister has read and absorbed the National Overview research report on claims throughout the country, recently released by the Waitangi Tribunal (See Mäori LR May 1997). The minister has followed it with statements (eg Dominion 10 June 1997) that New Zealand needs to accept that Mäori will have some different rights because of their historical situation.]

Mäori Land Court & Appellate Court

McCleery & Others and Waihaha 3D2 Incorporation

1 Waiariki ACMB 67. 19 May 1997. Deputy CJ Smith, Carter J, Isaac J

This was an appeal from a decision under s280(7)(c) Te Ture Whenua Mäori Act 1993 suspending the committee of management and appointing persons to exercise all powers of the committee. This had been done after the court had considered the annual accounts of the incorporation filed under s276(7)/1993 and appointed an investigator and received a report on the financial affairs of the incorporation under s280(3)/1993. The report was circulated to the committee of management, with advice that the powers under s280(7) might be invoked, and a hearing was called to consider any submissions on the report. At the hearing, after finding that, prima facie, there was sufficient grounds to intervene, the court, with the consent of all members of the committee of management, immediately made the orders under s280(7). The appellants, members of the committee of management, now argued that the lower court had erred in matters of jurisdiction, natural justice and evidence.

Held: the appeal should be dismissed.

Jurisdiction

It was argued that the lower court had erred in immediately exercising its powers under s280(7), without giving further notice and calling a fresh hearing.

The appellate court agreed that, following In Re Matiu Rata: Muriwhenua Inc (3 Tokerau ACMB 263), notice should be given to persons materially affected and they should have the opportunity to be heard before the powers under s280(7) were invoked. However, s280(6) (Court may appoint a time and place of sitting before exercising powers under ss(7)) is permissive rather than mandatory and the court may proceed immediately in certain situations—particularly where the situation disclosed is of a serious nature. In this case there was no problem because the whole committee of management was present and consented, there was adequate notice, and the court had offered to set a later date for hearing (an offer which the committee rejected in favour of an immediate decision). That fact that an opinion of the incorporation’s solicitor (who was not present) had been handed into the court stating that a new hearing was required if a prima facie case was made out, was irrelevant since the consent of those present had been given. Nor is notice to the owners themselves essential under s280(6), since the inquiry was into the affairs of the committee and aimed at protecting the owners (although there might be circumstances where the court would consult with owners after finding a prima facie case to intervene).

Natural Justice

It was argued that the lower court judge had failed to separate his investigative and judicial functions, thereby raising a reasonable suspicion of bias (relying on VH Cochrane Ltd v Ministry of Transport[1987] 1 NZLR 146 and Black v Black [1951] NZLR 723), because he had initiated the inquiry into the affairs of the incorporation, had made comments in earlier hearings, and had made the suspension orders without calling a fresh hearing. Once he found a prima facie case he should have handed the matter to another judge of the land court.

The appellate court found that the land court’s investigatory function is undoubtedly present under s280. The judge showed ‘meticulous care’ to give the committee of management every opportunity to explain their actions and had been acutely aware of his different functions, and the committee members themselves had requested an immediate decision. Comments at an earlier stage in the proceedings did not indicate a preconceived plan to replace the committee, which had merely been suspended in any event.

Duties and obligations of Committees of Management

As to these, the 1993 Act does not impose any prescribed standards of conduct for members of committees of management (unlike the Companies Act for directors and the Trustee Act for trustees), so that the standard of conduct has to be inferred from the statute. Persons putting themselves forward for the committee are representing that they are competent and capable to administer the assets of the incorporation, and the minimum standard is therefore ‘prudent and competent administration’. This accords with the preamble and s2 of the 1993 Act (utilisation of land for the benefit of the owners). Where considerable fruits of the land (not necessarily the land itself) are likely to be denied to the owners, then there would seem to be grounds to invoke s280(7). Evidence of actual insolvency or financial difficulty or negligent or dishonest management do not have to be present. The yardstick is reasonable and competent management.

Evidence of unreasonable or incompetent management

Applying that yardstick to this case, there was ample evidence in the report of the investigator to invoke s280(7), including comments that significant sums had been borrowed ($1 million from a bank, plus advance payments on timber royalties of $660,000), which had been put into doubtful investments which would very possibly return losses. A number of the investments were ‘too entrepreneurial’, including a $250,000 ‘high risk’ forestry venture, a $78,000 research venture which had lost $44,000 in the previous year, a property investment of $450,000 which was losing money (something which the committee was unaware of). The report showed that further investment could not be undertaken, that there were instances of extravagant expenditure without benefit to the incorporation ($12,000 spent in a single weekend by the committee), that income from investments was limited, that there had been losses and there was a likelihood of potential future loss, that there was a lack of balance between investments, undue reliance on businesses dependent on personal services, lack or budgetary or cash flow projections, and a lack of overall planning. There was a likelihood that further annual payments of $300,000 advance royalties from timber would likewise be spent without real return to the owners.

It was therefore within the discretion of the lower court judge to invoke powers under s280(7). The appellate court should only intervene in a discretion exercised by the lower court where no weight, or insufficient weight is given to relevant considerations, where irrelevant considerations or principles are taken into account or an injustice might result (Charles Ostention & Co v Johnson [1941] 2 All ER 245 at 250 and Re Kairakau 2C5B, Kapiti Farm v August 10 Takitimu ACMB 64 at 122). This was not such a case. In addition to the above evidence, the committee had been divided when it appeared before the lower court, and the court had appointed 2 well known business figures to take over the affairs of the committee.

Tino rangatiratanga

It was argued that the 1993 Act emphasises the importance of retaining tino raNgätiratanga and owner control over their land. The appellate court agreed, but said that the proper exercise of powers under s280 does not affront these principles:

“With the widening powers of incorporations we are aware of calls for them to diversify and widen their base. We warn against diversification for diversification’s sake. Any proposal should be properly planned and costed otherwise it could impact adversely on the basic undertaking of the incorporation. While incorporations are sometimes likened to companies there is one basic difference … shareholders in companies can sell their shares if they do not like the direction or performance of the company. In an incorporation the owners are tied to the incorporation by their interest in their whenua, their land. Sales of shares, if the owners do not like the direction the incorporation is taking, is not an option.”

Refusal to accept written submissions

The fact that the lower court had refused to accept written submissions from the solicitor for the incorporation (not present at the hearing) because the judge said he ‘did not receive submissions from lawyers by mail’, had not prejudiced the lower court decision. The land court has a wide discretion to accept evidence (s69/1993) and undue formality in proceedings is to be avoided (s66/1993), but while the court must be careful not to infringe the principles of natural justice, it is a matter for the court to decide whether to accept written submissions without prior arrangement. Those present were given an opportunity to read the submissions in any event.

Orders

The appeal should be dismissed, but further orders would be made:

•  requiring the consent of the land court would be required before any assets were sold (in an effort to resolve the situation facing the incorporation)

•  requiring that the land court consider whether the owners should be consulted over proposals for the disposal or retention of particular assets.

Shareholding between incorporations

In examining the evidence for intervention under s280(7), the appellate court approved a purchase back by the incorporation of its own shares held by another incorporation (Hauhungaroa 2C), as a means of preventing the other incorporation from gaining shareholding control of the Waihaha 3D2 incorporation (even though the loan to achieve this had created an ongoing debt with no reward to the owners). Since the purpose was to increase shareholders equity in their own land, this followed the kaupapa of the 1993 Act. The appellate court questioned however, whether it was consistent with the 1993 Act and the Mäori Incorporations Regulations for the Hauhungaroa 2C incorporation to be a member of the committee of management—but made no decision on this issue).

[Ed: another case raising many issues about the autonomy of Mäori incorporations under the 1993 Act.]

Waitangi Tribunal

Turangi land claims. Decision re the standard of proof under s8A Treaty of Waitangi Act 1975

Wai 84. 25 March 1997. Prof GS Orr, Sir H Kawharu, Prof E Stokes

In September 1995 the tribunal issued a report finding 13 breaches of Treaty principles by the Crown in relation to lands taken from Ngäti Turangitukua for hydro electric development at Turangi. Some of that land is former state owned enterprise land and subject to legislation providing for the tribunal to make a binding recommendation for its return to Mäori. In August 1996 the tribunal granted a request for a hearing on remedies, as negotiations between the parties had broken down. This decision concerned a prior issue, raised by the Crown, as to the standard of proof to be adopted when making binding recommendations. The Crown argued that the tribunal was legally obliged to adopt a higher standard of proof and stricter procedures when exercising its power to make binding recommendations.

Held: the provisions for making binding recommendations (s8A-8B Treaty of Waitangi Act 1975, inserted by Treaty of Waitangi (State Enterprises)  Act 1988 s4), were inserted after litigation (NZ Mäori Council v AG [1987] 1 NZLR 641) and negotiation concerning the intention of the government to pass Crown lands to state owned enterprises, effectively removing the Crown ability to use these lands to provide relief where claims were proven. Parliamentary debates indicate that:

•  the binding nature of the powers under s8A(2) were extensively debated, with some arguing such powers should only be given to a court, and there should be a right of appeal. The government replied that other specialist bodies lack a right of appeal and judicial review was possible in any event

•  the arrangement was very important to the government to allow its corporatisation programme to proceed. The quid pro quo for the ability to transfer large land areas to state enterprises was the binding recommendation power given to the tribunal.

Interpretation of ss 6(3) and 8A

The Crown first argued that s6(3) Treaty of Waitangi Act 1975 (giving the tribunal general jurisdiction to consider appropriate recommendations where it finds claims ‘well-founded’) and s8A(2) (the power to make binding recommendations) created two different regimes requiring different standards of proof. The tribunal rejected this view on the grounds:

•  while the binding powers under s8A are an ‘exceptional’ recommendatory power, this did not in itself call for a different standard of proof to be applied

•  they are exceptional powers in that private land can be returned, and the tribunal is otherwise precluded from making recommendations over private land (s6(4)(A)), but the legislation also requires that the tribunal may not have any regard to changes in the land and must regard it as Crown land in any event.

•  the wording of s8A(2) does not suggest that an objective test whether a binding recommendation should be made is to be applied, different from the test under s6(3). It was ‘unlikely’ that the legislature intended that in deciding on the totality of recommendations it might think appropriate, the tribunal should act subjectively in all instances except in deciding whether to make a binding recommendation. Sections 8A and s6(3) together constitute a unified code.

The Crown next argued that the finding whether a claim is ‘well-founded’ under s6(3) has a different meaning when a binding recommendation is being considered under s8A. The tribunal found no support for this in the legislation. Logically, it would mean that all claims would have to be assessed  against this higher standard. It would also imply that findings in the Turangi report would have to be readdressed, or further evidence heard on them, to satisfy this higher standard. The tribunal had already found the claim well founded and the claimants were entitled to rely on the findings in the report in any remedies hearing. It would rarely if ever be the case that evidence about land loss on which findings had been made would not be relevant to remedies. But it is also likely in most cases that claimants and the Crown would want to adduce further evidence relating to the remedies sought. It is also open to the tribunal as a commission of inquiry to instigate further inquiries. There was no suggestion in the legislation that such extra evidence should be judged to a higher standard that that which supported the finding that a claim was well founded.

Burden of Proof

The tribunal rejected a Crown submission that there was a burden of proof on the claimants (including a requirement to first establish a breach) similar to that in a civil trial. The tribunal is concerned with the totality of the relevant evidence rather than burdens of proof, and may independently call on the Crown to provide evidence to assist its inquiry. The suggestion that the tribunal act in some ways like a court has led to an inappropriate ‘over-emphasis’ by the Crown on court proceedings and evidential rules. However, the tribunal accepted that the evidential standard is the balance of probabilities and that, in making recommendations, more particularised evidence may be required, although not at a new standard of proof.

Standard of proof

The balance of probabilities test applies to findings of facts but cannot apply to evaluations. In particular, remedies cannot be fixed with regard to the balance of probabilities, because remedies rely on evaluations not just of past facts, but of what might have happened in the past, and what may have happened in the future, but for the wrong done. The retrospective nature of the Treaty of Waitangi Act 1975 makes this even more acute. It would be impossible to achieve the purpose of the Act if a balance of probabilities standard (equivalent to that for contract or tort) applied to assessing remedies for losses which occurred more than 100 years ago.

Natural Justice and the Standard of Proof

The Crown submitted that tribunal recommendations (whether binding or non-binding) must be based on probative evidence. The tribunal agreed that, following the decision of the Privy Council in Erebus Royal Commission, natural justice requires that there be some probative evidence on which a finding that a claim is well founded is based, but apart from this requirement, natural justice rules do not set the relevant standard of proof. The balance of probabilities standard more than meets this basic natural justice requirement.

Degree of probability

The Crown contended that the degree of probability varies in civil cases, and should be high where binding recommendations might be made. The tribunal accepted that it should look to the final purpose for which evidence is being assessed, and where that purpose is particularly serious (ie a binding recommendation) greater care should be taken in assessing the evidence—but not so much as to introduce a new and more stringent standard of proof than the balance of probabilities actually requires (see T v M (1984) 2 NZFLR 462). As to reasons given by the Crown as to why more care should be taken where binding recommendations might be made:

•  the fact that the Crown might have to compulsory reacquire land to satisfy a binding recommendation is not relevant. The Crown accepted this possibility in order to continue its corporatisation and sale programme, owners of the land were fully aware of the possibility of compulsory acquisition when they purchased the land and no doubt factored it into the sale price, and while compulsory acquisition of such ‘private’ land might arouse ‘strong community feelings’ the tribunal is specifically directed to treat the land as if it is Crown land (s8A(3)).

•  It is up to the Crown to make submissions in individual cases on possible impacts on other claims which a binding recommendation might have.

•  the fact that those owning the land are not entitled to be heard on the binding recommendation (ie natural justice is excluded) cannot be taken into account as the tribunal is directed to treat the land as if it is Crown land.

•  the absence of a right of appeal is however, unusual, and the tribunal must give this appropriate weight with all other relevant factors.

•  the fact that the tribunal operates outside the normal limitation period of 6 years, and the possible effect on the quality of evidence, is not relevant. The tribunal weighs evidence (and considers any inadequacies) as appropriate. Marae protocol has a powerful influence in ensuring that a high standard of evidence is given by kaumatua.

Nature of the tribunal’s functions

The tribunal rejected arguments that it was in some respects like a court:

•  its legislation deems it to be a commission of inquiry, not a court. Significantly, it lacks power to order payment of costs.

•  the fact that in making binding recommendations the tribunal is acting in a judicial fashion does not of itself suggest that a higher standard of proof is required.

Previous tribunal rulings

Comments in previous memoranda of the tribunal in other claims, suggesting that a higher standard of proof might be necessary when binding recommendations were considered, were made without the benefit of submissions from counsel, without reasons being given, were made in the context of complex cross claims where land might be returned to the wrong people, and were not in any event binding on subsequent sittings of the tribunal.

[Ed: this ruling has consequences for all claims where state owned enterprise or Crown forest lands might be sought as part of a settlement. Counsel representing claimants in claims Wai 119, Wai 168, Wai 55, Wai 400, and Wai 45 expressed an interest in the hearing, but in the end adopted and relied on submissions by the Wai 84 claimants, and by counsel assisting the tribunal.]

Broadcasting Policy Claim. Decision re an urgent hearing on consultation issues

Wai 673. 26 May 1997. RR Kearney

The claimants sought a finding from the tribunal that the Crown had failed at a crucial stage in the development of Mäori broadcasting policy to continue or establish a consultation process which accorded with the Treaty obligation to consult in good faith. The claimants, representing a collection of National Mäori Organisations, had been heavily involved in preceding years in discussions with the Crown over broadcasting policy, most recently as part of a Joint Mäori/Crown Working Group on Mäori Broadcasting Policy. However, they had recently been informed by the Crown that the working group approach was ‘too slow and too costly’ and the Crown wished to seek ideas on policy development from a wider body of opinion through several consultation hui.

The tribunal convened a conference to consider whether urgency should be given to this claim, in particular, whether the tribunal should grant a request from the claimants that the tribunal appoint a mediator to assist the parties to agree on a process of consultation, and if that was unsuccessful, for the tribunal to recommend a process or principles which should be adopted for such consultation.

The Crown argued that its proposed consultation would include the claimants, and that it had obligations to the courts (including proceedings taken by the claimants) to develop policies on Mäori television within a reasonable time-frame (NZ Mäori Council v AG [1996] 3 NZLR 140 referred to).

Held: The urgency and mediation requests should be declined. The claimants had been at the forefront of those Mäori seeking a just and survivable policy on Mäori broadcasting and continuing consultation with them was vital to developing a sensible, acceptable and lasting policy. The role and function of these National Mäori Organisations had not received “the more positive response from the Crown which might have been expected to have been proffered to a group which represented a significant part of the Treaty partnership.” However, this was less significant since the Mäori Women’s Welfare League had recently withdrawn from the claimant group. To dismiss the Working Group as ‘too slow and expensive’ was ‘unwise’. However, the Crown was ‘acting prudently and wisely’ in seeking policy input from other Mäori organisations and interest groups. If the significant role of the claimants was not acknowledged following the hui with other groups, the matter would be open for review by the tribunal.

[Ed; The Ministry of Commerce has since released a discussion document Kaupapa Pouka Whaata Mäori. Mäori Television Policy (June 1997), looking at long term Mäori television policy. It notes that the National Mäori Organisations in the Working Group have consistently argued for stand alone Mäori television (“a separate television channel whose assets are owned and managed by Mäori and whose programming is determined by Mäori, subject to appropriate accountability arrangements both to Mäori and the Crown”), which is nationally rather than individual iwi based. The government wants a policy promoting language first, but also Mäori culture, and sufficiently open ended and flexible to allow Mäori initiatives and redirect funding if needs change. Mainstreaming of the language (sought by the joint working party) or a separate channel, or a combination of the two, is also raised, as are possible management arrangements between Crown and Mäori if a separate channel is established. Hui are planned in June and July. The government wants to make a final decision in July—one reason for the haste being court concerns about the delays in the promotion of Mäori television. As a measure of compromise to the concerns of the National Mäori Organisations, the Ministry of Commerce has published a separate report on broadcasting authored by these organisations, and Mäori will consider this also at the consultation hui.]

Other courts

B v Director-General of Social Welfare

AP 71/96. High Court Wellington. 27 May 1997. Gallen and Goddard JJ

This was an appeal by a grandmother against a decision of the Family Court refusing her custody of a granddaughter. The mother of the child lived in a violent relationship which had produced 4 children. Her partner was in prison when the present child was conceived with an unidentified other man. The partner was not prepared to accept any responsibility for the expected child. The mother indicated that she wished the child to be adopted by a couple of whom the woman was of Kahungunu descent, with some genealogical links to Tainui. The grandmother, of descent from the Waikato, Maniapoto and Raukawa tribes of Tainui, and with links to other tribes, sought custody and additional guardianship orders under the Guardianship Act 1968. The mother had signed a formal consent for adoption. She agreed that the child should be taken from the prospective adoptive parents and placed in the temporary care of Social Welfare while matters were resolved. The prospective adoptive parents then formally applied for adoption. The Family Court heard and rejected the grandmother’s application for custody and adjourned her application for additional guardianship, and the child was returned to the adoptive parents. The grandmother appealed the decision of the Family Court. The daughter withdrew from the proceedings and the Director-General, who still retained interim custody under the Guardianship Act, was made a party.

Held: the decision of the Family Court should be upheld. As to the particular arguments raised:

Failure to interprete the Guardianship Act 1968 in a manner consistent with the Treaty of Watangi.

For the appellant, it was contended that:

•  Aboriginal self government means that indigenous peoples have constitutional status as first peoples and rights to manage their own policy, resources and affairs within minimum parameters necessary for the proper operation of the State (Waitangi Tribunal Taranaki report Kaupapa Tuatahi 1996).

•  The Treaty of Waitangi is a formal recognition of those rights (relying on comments in Te Runanga o Wharekauri Rekohu Inc v AG [1993] 2 NZLR 301 NZ Mäori Council v AG [1987] 1 NZLR 641 and NZ Mäori Council v AG (Privy Council case) [1994] 1 NZLR 513).

•  The whänau (extended family of 3 generations) is a basic social unit of Mäori society, which provides protection to the child but also an ancestral inheritance. Children are members of the whänau (Re Adoption of A [1992] NZFLR 422 at 424) and are taonga—highly valued treasures held in trust for future generations. The preservation and organisation of family structure was ‘pre-eminently’ within the area appropriate for self government and the necessary rights are enshrined in the Treaty of Waitangi either directly or by implication.

In response, the Crown (relying on a statement in R v R [1990] 6 FRNZ 232), argued that the Treaty did not apply to rights between citizens.

The court said that the term ‘possession’ in reference to children should be avoided, rather, the emphasis in the ‘ideal situation’ ought to be on the preciousness with which the child is regarded within its whänau and the accumulate cultural heritage by which the child’s place is defined and secured.

The comments in R v R were obiter, and related to situations where the Treaty was directly imported into statute, and that case concerned a different issue from this one (whether the Treaty took precedence over the Guardianship Act). Further:

“We are of the view that since the Treaty of Waitangi was designed to have general application, that general application must colour all matters to which it has relevance, whether public or private and that for the purposes of interpretation of statues, it will have a direct bearing whether or not there is a reference to the Treaty in statute. We also take the view that the familial organisation of one of the peoples a party to the Treaty, must be seen as one of the taonga, the preservation of which is contemplated. Accordingly we take the view that all Acts dealing with the status, future and control of children, are to be interpreted as coloured by the principles of the Treaty of Waitangi. Family organisation may be said to be included among those things which the Treaty was intended to preserve and protect.”

Since there was no conflict between the provisions of the Guardianship Act and the principles of the Treaty (indeed the principles were directly incorporated by some provisions) there was no need to comment on what might occur where a statute is in apparent conflict with the Treaty or related principles .

Failure to find that tikanga Mäori should be dominant in making a determination of what is in the best interests of the child

The appellant argued that:

•  Article 4 of the Draft Declaration of the Rights of Indigenous Peoples (right to maintain and strengthen distinct political, economic, social cultural characteristics as well as legal systems) and reports of the Waitangi Tribunal (Manukau report 1985), give Mäori values equal place with British values and priority when Mäori interests and taonga are adversely affected.

•  The lower court regarded Mäori values as important, but improperly gave the welfare of the child priority under the legislation, and failed to consult whänau appropriately before decisions were made. The Mäori world view should be seen as the ‘over-arching framework’ against which the welfare of the child is assessed. In this case welfare was inextricably linked to an affirmation of Mäori values and norms in everyday life.

The court held that the welfare of child is never to be considered in isolation. The cultural background of a child is significant and the special position of a child within a Mäori whänau imports cultural and spiritual concepts which must be kept ‘in the forefront of the mind’ of persons making decisions child’s future. The lower court judge had properly accepted that an inquiry into tikanga Mäori was necessary when considering the welfare of the child, but not necessarily decisive. In certain situations tikanga could point one way and the child’s welfare another. A balancing of factors is required. It is not helpful to consider the question in terms of primary or dominant factors. Few cases involving children are as clear as that.

Here the appellant was particularly concerned with preservation of the family context and input. The appellant had an idealised view of the obligations and supportive responsibilities of the whänau. While many whänau exemplified that view, there are dysfunctional whänau, as there are dysfunctional families in other communities. Circumstances might also thwart the nurturing intentions of a whänau. A case by case approach is required, considering the particular child in the particular whänau. A distinction has to be drawn between the (unchallenged) values and advantages of a traditional organisation of Mäori society, and their application in the particular case.

Two parents involve two whänau, which may not always be in harmony and traditional methods to resolve differences will not always be available or effective in modern society. For example, in this case the mother was concerned that custody with the grandmother would affect the position of the other 4 children in the whänau. The lower court had properly considered the contentions of the grandmother as relevant, but had properly looked at other factors also.

Consultation and the Adoption Act 1955

As to consultation, which the appellant claimed required a general hui to take proper account of Mäori collective values (which was opposed by the prospective adopting parents), while the view of the whänau is important and should ‘wherever possible’ be ascertained in traditional ways, that was not always practically possible, and in this case the mother had invoked the Adoption Act, binding the Department of Social Welfare to take a path which did not involve a general consideration of the issue by the whänau. Also, there had been disagreement about whether the outcome of a hui would be binding if consensus was not reached (a possible reason why it was opposed by the prospective adoptive parents).

The course adopted by the mother (invoking the Adoption Act 1955) was a key problem, since it gave the mother the sole right of decision. The lower court judge noted that the mother had not been brought up to accept the values (including collective decision-making) of the appellant, so could not be blamed for failing to work within those values.

The Adoption Act 1955 confines the right of consent to the parents alone, and takes no account of the changed climate on the Treaty and Mäori values, but any amendment is a matter for Parliament. There is room to consider Mäori values when assessing the appropriateness of prospective adopting parents (a practice note from the Family Court in Rotorua shows this will be done in future).

This case however, was separate from any adoption proceedings, which could not therefore be considered. The lower court judge had been confronted with a fait accompli.

Application of the principles in ss5, 6 & 13 of the Children, Young Persons and Their Families Act 1989

It was argued that the principles in those provisions (primary role in caring for and protecting a child lies with the child’s family) arose from recommendations in the report Puao Te Atatu, and require that the child’s family be supported as much as possible, effectively ruling out adoption by strangers or even interim care by strangers as in this case.

The court found that, while it was correct that the principles in the 1989 Act arose from Puao Te Atatu, they point to a desired result, not an imposed one. Sometimes placement in a whänau will be inappropriate or impossible. Once it is accepted that children are not automatically to be placed with whänau, regardless of their interests, a standard is required. The statutory standard is the welfare of the child, in this case including the concerns of the mother, who doubted the nurturing capabilities of the appellant grandmother, given her own experience as a child of the appellant.

Assessment of the child’s welfare

A final argument, that the lower court wrongly concluded that it was not in the child’s welfare for the grandmother to have custodyshould also be rejected:

•  First, the evidence was clear as to the relevance of the whänau to a child, including the advantages of nurture within a group focusing not only on ancestral and genealogical matters but also links with land, and support, care and concern of other members of the whänau. It was not possible to overstress the significance of these aspects of a child’s upbringing, which are important in practical terms but also in terms of cultural rights entitled to preservation under the Treaty and the Draft Declaration, both of which formalise to an extent what might otherwise be seen as ‘vague generalities’.

•  Second, these concepts apply as a starting point to “all statutory provisions which apply to the care, nurture and upbringing of children”

•  However, these concepts are subsumed within the concept of the welfare of the child, which provides the ultimate standard under all the relevant statutory provisions. The child holds the central position, and the child’s interests will not be subordinated to the interests of any other member of the family or whänau, nor to the interests of the whänau as a whole. The ability of the whanua and caregivers within it must be assessed against the needs of the child. It cannot be assumed that the values of the traditional society of the child will always be available within the whänau.

•  These matters are not thought of in terms of possessions and rights, but in terms of ‘relationship and potential’. The idea that a whänau or individuals can have rights which subordinate the interests of the child itself should be rejected, although their views will be entitled to weight and respect.

Applying the checklist of considerations from D v W (1995) 13 FRNZ 336 (a list of general considerations on the welfare of the child), and assessing the needs of the child ‘realistically’, while bearing in mind the concepts of whänau and whakapapa as discussed, the welfare of the child would not be best met by awarding custody to the appellant. The mother had made a considered decision to adopt, genuinely believing that the appellant should not bring up the child. The mother had not been raised by the appellant except during her teenage years and that episode had been unsuccessful, and raised doubt that the child would be given a stable and secure home environment by the appellant, who had devoted much of her life to assisting the less fortunate, at the expense, as her daughter saw it, of her own family.

The fact that the child had been happily settled with the prospective adoptive parents for 5 of her 6 months of life was also important. Disruption in bonding should be avoided. Also, counsel for the child had objected to the application.

Finally, it should be noted that all parties had acted with the child’s best interests at heart. The child should grow up knowing its whänau, and this would require a gentle and selfless approach from all concerned in a matter of great importance to the child’s ultimate well-being and development as an individual.

[Ed: The court also rejected, for lack of evidence, an argument that the mother’s decision to adopt had not been freely and rationally made because of the influence of her jailed partner.]

NZ Federation of United Sea Food Interests Inc & NZ Aquaculture Federation of Mäori Aquaculturists, Commerical and Traditional Fishermen Inc v Whangarei District Council

A 43/97. Environment Court. 27 March 1997. Jackson J, PA Catchpole, JR Dart

The Whangarei District Council proposed a change to its transitional district plan, which would alter the zoning of an area of land on the northern side of Whangarei harbour from rural to rural—residential. The appellant argued that any subdivision development under the changed zoning would produce stormwater and effluent discharges into the harbour which would raise pollution levels and be unacceptable to Mäori spiritual and cultural values.

Held: the appeal should be disallowed. The standards set by the relevant rules in the transitional regional plan for the control of sewerage discharge could be met, and the expected level of pollution was not sufficient to prevent rezoning.

As to the Mäori concerns, a resource management consultant for the council gave an opinion that the tangata whenua have a policy that no discharge of human effluent should enter a waterway, but if it passed through the earth then its sacredness is removed, and that this principle applied to Whangarei Harbour. The Ngätiwai Trust Board had given approval to the zone change on the understanding that any effluent would be treated and discharged onto land. The situation was therefore different from Te Runanga o Taumarere v Northland Regional Council [1996] NZRMA 77 where a small quantity of treated effluent was to be discharged into a wetland in such a way that a small quantity of effluent would eventually enter the sea. In that case it was held that the discharge  “... would have an adverse effect on the tangata whenua in that it would be incompatible with the cultural and spiritual values of the bay to them ...”.

Accordingly, in this case no issues as to Mäori cultural and spiritual values arose under ss6(e), 7(a) or 8 of the Resource Management Act.

Re an Application by Hamilton City Council

A 35/97. Environment Court. 11 March 1997. Sheppard J, PA Catchpole, AH Hackett

This was an application by the Hamilton City Council under the Local Government Act 1974 for confirmation of a proposal to stop part of an unformed road on the banks of the Waikato river. The intention was to transfer the land to an owner of adjoining land for private vehicle access. A committee of the council disallowed an objection to the application lodged on behalf of Ngäti Wairere hapu, who were concerned that a pa and urupa on the land might be desecrated by development of the land. These ancient sites were acknowledged by the council, registered with the Historic Places Trust and listed in the district plan. In the appeal, it was argued that interference with these sites would be contrary to the Treaty of Waitangi, to the Historic Places Trust Act and to the Resource Management Act. It was also claimed that the City Council had failed to consult adequately with the tangata whenua.

Held: the appeal should be disallowed. The court could only consider the application to confirm the stopping of the road, not any proposed developments of the land, which would be subject to separate applications under the Resource Management Act, and if archaeological remains were to be disturbed, an application for authorisation under the Historic Places Act. Mäori concerns could be raised in those proceedings. However the stopping of the road only requires confirmation under the Local Government Act, which does not require that the principles of the Treaty of Waitangi be taken into account, nor that councils consult with tangata whenua about proposals to stop roads, and does not contain provisions protecting archaeological remains or waahi tapu.

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