July 1997 Contents

Māori Land Court & Appellate Court

Term of appointment of s439 reservation trustees under the 1993 Act

Crown grants and Māori customary land

Jurisdiction and status of land - no jurisdiction to change Māori freehold land to customary land - Kirk - Opou 19 Block V Turanganui SD (1997) 33 Tairāwhiti Appellate MB 197

Other Courts and Tribunals

Court of Appeal Snapper decision

Māori customary adoptions—status of Marine farming and Māori values

Compulsory taking of customary land—valuation issues

Other

Proposed Optimum Method for Allocation of Fisheries Assets

Parliament

Minister's snapper quota decision

Fisheries allocation process

Aboriginal title

 

Māori Land Court & Appellate Court

Re Whakapoungakau 2A2H & 2A2I

9 Waiariki ACMB 169. 14 May 1997. Marumaru J (presiding), Spencer, Carter JJ

In this case (the report of which consists of a transcript rather than a separate judgment), the appellate court commented, although it heard no detailed argument on the issue, that s353/1993, which provides that the powers, rights and duties of existing trustees are to continue after the enactment of the 1993 Act as if it had not been passed, does not allow trustees of s439 trusts to continue in their appointments beyond the term laid down in the Mäori Reservations Regulations 1994 (cl3(d) provides for a term terminating roughly 3 years from the commencement of the regulations). This is because  s353/1993 opens with the words, ‘except in so far as otherwise expressly provided by this [1993] Act’. Section s338(17)/1993 provides that Mäori reservations made under former legislation are deemed to be Mäori reservations made under s338 (replacing s439 Mäori Affairs Act 1953). Consequently the provisions of s338 and any regulations made under s338(15) apply.

In Re Hojsgaard and Klaricich and Part OLC 127

5 Taitokerau ACMB 159. 18 July 1997. Hingston J (presiding), Isaac, Savage JJ

This was an appeal from a land court decision that some 2015m2 of land on the shores of the Hokianga harbour, known as Part Old Land Claim 127, were Mäori customary land. The appellants (the Hojsgaards) were adjoining owners claiming the land as part of their title.

Held: In 1861 a Crown grant was issued for land in Hokianga covering 10 acres 1 rood. Survey maps were subsequently drawn up labelling the land as OLC 127. It was subsequently subdivided and one of the subdivisions became the appellants land, adjoining the disputed land.

The key issue was whether the disputed land was included in the Crown grant of 1861.  Case law surrounding the interpretation of old Crown grants shows that:

•  the best interpretation is that which involves the ‘least departure’ from the terms of the grant (Clayton & Ors v Morrison & Ors (1873) 2 NZ App Case 263)

•  long unchallenged occupation by the grantee, acquiesced in by surrounding owners, is convincing evidence that the land so occupied is conveyed by the grant (Equitable Building & Investment Co v Ross(1886) NZLR 5 SC 229 and AG v Nicholas & Ors (1927) GLR 340).

These cases however concerned competing claims among owners of ‘general’ land and did not have to consider customary Mäori rights in relation to the boundaries of Crown grants.

In this case both sides could demonstrate that to accept the others position would mean a large departure from the terms of the grant. However it was significant that the grant specified a precise area (10 acres 1 rood), and notwithstanding survey inadequacies of the time, this was a clear intention. To include the disputed land in OLC 127 would increase by 4% the area granted. The ‘least departure’ argument was at most neutral in this case.

However, as to occupation, there was no clear evidence that owners of OLC 127 had ever occupied the disputed land. Rather, they had ‘ring fenced’ their own land, and had at most only travelled across the disputed land to cultivate land on the far side of it. Predecessors in title to the appellants seemed to be well aware that their surveyed boundaries did not include the disputed land. The disputed land had never been rated. Accordingly, the decision of the lower court should not be interfered with and the appeal should be dismissed.

As a preliminary matter, the court rejected an application seeking leave to present further evidence at the appeal, relying on the grounds set out in Dragicevich v Martinovich (1969) NZLR 306 CA (and followed by the appellate court since In Re Whareongaonga 5 and Skuse (1973) 30 Gisborne ACMB 158) and also Mäori Land Court Rules 173(4)-(7).

Waitangi Tribunal

No items this month

Other courts & tribunals

New Zealand Fishing Industry Association (Inc) And Others V Minister Of Fisheries & Others; Treaty Of Waitangi Fisheries Commission v Minister Of Fisheries & Another; Area 1 Mäori Fishing Consortium & Ngapuhi Fisheries Limited v Minister Of Fisheries & Another

CA82/97, CA83/97,  CA96/97. Court of Appeal. 22 July 1997. Richardson P, Gault, Keith, Blanchard, Tipping JJ

These appeals (from a High Court decision of McGechan J, see Mäori LR May 1997) concern commercial fishing for snapper. When deciding what the total allowable commercial catch (TACC) should be for the 1995 fishing year the Minister of Fisheries decided to set the amount at 3,000 tonnes for the Snapper 1 management area (North Cape to East Cape).  This represented a 39 percent reduction from the previous level of 4,938 tonnes.  Various parties representing commercial and Mäori commercial fishing interests challenged the Minister’s decision.  An interim order was made in the High Court pursuant to which the minister did not implement his decision. The minister made a further decision in September 1996 in respect of the fishing year commencing on 1 October 1996. This was to the effect that the TACC should remain at 3,000 tonnes for the ensuing year.  Again that decision was not implemented because of interim relief. In substantive proceedings brought in the High Court both decisions were challenged by way of application for judicial review.  McGechan J upheld them both.  These appeals followed.

Held: both the 1995 and 1996 decisions should be set aside as the minister had failed to have regard to a mandatory relevant consideration—whether to buy back quota and leave it unfished. Looking to matters relevant to the decision in 1997, the court found that:

•  In setting the Total Allowable Catch (TAC) for a fishery whose yield is below Maximum Sustainable Yield (MSY) the minister has an obligation to move the stock in question towards or above a level which can produce MSY.  When deciding upon the time frame and the ways to achieve that statutory objective the minister must consider all relevant social, cultural and economic factors.

•  While quota are undoubtedly a valuable species of property, the rights inherent in that property are not absolute, but subject to the provisions of the legislation establishing them. That legislation contains the capacity for quota to be reduced. If such reduction is otherwise lawfully made, the fact that quota are a 'property right', to use the appellants’ expression, cannot save them from reduction. That would be to deny an incident integral to the property concerned.

•  The legislation does not demand that recreational and other fishers must take a quota cut proportionate to cuts taken by commercial fishers, and the minister had made bona fide efforts to constrain recreational fishing.

•  For the future, to avoid allegations of unreasonableness, the minister would be wise to undertake a careful cost/benefit analysis of a reasonable range of options available to him in moving the fishery towards MSY.  If the minister ultimately thinks that a solution having major economic impact is immediately necessary, those affected should be able to see, first, that all other reasonable possibilities have been carefully analysed, and, second, why the solution adopted was considered to be the preferable one.

•  While there are no formal or implied requirements in the legislation as to the giving of notice of changes in the TACC, the minister should always strive to give as much notice as possible, particularly when a significant change in the TACC is involved. In an extreme case, a last minute unheralded notification of a major change, although not unlawful per se, could be susceptible of challenge for unreasonableness/irrationality unless there was some very convincing explanation for it.

As to the challenge raised by the Treaty of Waitangi Fisheries Commission and others concerning Mäori interests in the decision, it was argued that the minister had wrongly focused his attention solely on 28D when setting the TACC—which makes no explicit reference to Mäori concerns. It was said that he should have had regard also to the Mäori Fisheries Act 1989 and to the Treaty of Waitangi (Fisheries) Settlement Act 1992 (the Settlement Act), which together do not give Mäori commercial interests priority, but implicitly require the minister to consider certain matters namely:

•  the source of the Mäori held quota, ie  the settlement

•  the minister’s duty to implement and give effect to the settlement

•  the need for the compensation given under the settlement, ie quota, to have real and lasting value. It was said that the TACC cut will cost Mäori fishers $14.6m.

The Court of Appeal said it could never be contended that Mäori would never be affected by a cut—and this was not argued. But also, if such matters were taken into account, and the TACC were not cut or cut less drastically because of such considerations, non-Mäori commercial fishers would benefit. This cannot have been the intention.

“The evidence is that the Mäori negotiators studied the QMS very carefully before deciding to settle their claims in return for quota”, although no one would have anticipated a reduction of this extent, the possibility of quota reduction is inherent in the quota system and under the settlement Mäori accepted quota with its capacity to go down without compensation and up without cost. Under the settlement Mäori became holders of quota with exactly the same rights as non Mäori quota holders, and the minister is accordingly obliged to give them exactly the same consideration as all other holders of quota.

The fact that under s5 Fisheries Act 1996 the minister in making future decisions is obliged to act in a manner consistent with the Settlement Act, does not alter matters. Mäori accepted the quota under the settlement with its capacity for diminution,  so any reduction lawfully made does not make the settlement less just, honourable and durable. It is simply the case that something which was liable to happen under the settlement has happened. Mäori could be expected to have been aware in 1992 of how the quota system operated, and in cl4.2 of the Deed of Settlement specifically endorsed the system and acknowledged that it is a lawful and appropriate regime for the sustainable management of commercial fishing.

Even with the reduction, Mäori fishers would still hold the same proportion of overall quota (also, any attempt to hold the quota owned by Mäori at its original mark, or reduce it by a lesser percentage than that applied to other quota  holders, would result in the Mäori share of the total quota being greater than the original percentage received under the Deed of Settlement. It would also impact on non-Mäori fishers).

As to the argument that the Minister’s decision was unreasonable/irrational because the Mäori appellants had a legitimate expectation that if there was a reduction in TACC it would be applied proportionately to the commercial and recreational interests; the Crown had not said anything to suggest, imply or encourage the view that the proportional approach would be followed. While some of the negotiators on the Mäori side might have assumed that proportionality was a given, there was no evidence justifying that assumption. For one party to have a legitimate expectation upon which that party may fairly rely, it is necessary for the decision maker to have done something to foster that expectation.

[Ed: the court noted that both the decisions under appeal were made under the 1983 Act. Decisions for  the 1997/98 fishing year will  be made under those parts of the Fisheries Act 1996 which are now in force, in combination with certain parts of the 1983 Act which remain in force. The judgment therefore has limited direct application for future years, but the comments on other matters are designed to give assistance to future decisions.

The judgment is very significant with regard to the Mäori fisheries settlement of 1992. Not only can the overall catch be reduced without any special regard for the settlement, but the Mäori commercial interests embodied in it have a status at most equal to the interests of recreational fishers, but not superior to them. It seems odd that in such a fundamental area the Treaty partners did not have a common understanding when they signed the settlement. This perhaps reflects the speed with which the settlement was made. The judgment will no doubt provide good ammunition for those challenging the settlement before the UN Human Rights Committee.]

Whittaker v Māori Land Court

CA 265/95. Court of Appeal. 26 June 1997. Richardson P, Gault J, Thomas J

In 1892, a Māori woman, Meriana, who was childless herself, adopted her sister’s daughter, Ngawini. The adoption was in accordance with Mäori custom. It was never registered. Ngawini married and had 12 children, one of them being Mrs Whittaker. Ngawini died, and Meriana assumed the role of caregiver for the children. However, when Meriana died in 1943, the land court made a succession order in favour of Meriana’s brothers and sisters only. The estate included 150 acres near Rangaunu Harbour.

Forty years later, Mrs Whittaker brought an application (under s452 Māori Affairs Act 1953) to have the succession order rectified to provide for Ngawini’s children and their descendants. The application was dismissed by the Mäori Land Court, and the High Court refused to review the decision of the land court.

Held: the key issue was whether Ngawini was lawfully adopted by Meriana in order to succeed to Meriana’s estate in 1943.

•  The Adoption of Children Act 1895 provided a regulatory scheme for adoption, but did not prevent customary adoptions continuing to be recognised at law (Arani v Public Trustee [1920] AC 198.

•  The Native Land Claims Adjustment and Laws Amendment Act 1901 provided that, for persons dying after the 31 March 1902, customary adoptions would not be recognised for the purposes of succession unless they had been registered (s50).

•  The Native Land Act 1909 provided that no customary adoption, whenever made, was to have any effect for the purposes of succession, unless it was registered before the 1909 Act came into effect (s161). The High Court had held that this retrospective and unambiguous provision rendered Ngawini’s adoption of no effect at the passing of the 1909 Act. Despite arguments of the appellant, this clear provision could not be overcome (Piripi v Dix [1918] NZLR 691, 694 followed).

Nor could it be argued that, because Ngawini was 15 when the 1909 Act came into effect, it was impossible for her to register because she was too old by that time. In Wirimena Eruera (Deceased) (a Mäori Appellate Court decision—no reference given) it was held that s161/1909 did not apply, because the adoptive parent had died prior to the enactment of s50/1901, thus making it impossible for the adoption to have been registered before the 1909 provision came into effect. However, here the adoption could have been registered at any time between 1901 and 1907, when Ngawini turned 15, and perhaps up until 1909, since the age limit of 15 years affected adoption, not registration.

There was a reversal in approach when the Native Land Amendment and Native Land Claims Adjustment Act 1927 provided that customary adoptions subsisting at 1901 should have full effect for intestate successions (which would have upheld Ngawini’s interest), but that provision was repealed in 1930, and s161/1909 remained in force.

The Native Land Act 1931 s202 replaced s161/1909 in almost identical words. This was the section operating in 1943 when the succession order for Meriana was made.

As to whether the status of the land prevented the land court making the order it did in 1943. Although the land was general land and not Mäori freehold land in 1943, s27(2) Native Land Act 1931 and s1(4) Administration Act 1908 clearly provided that the land court could make succession orders with respect to any land held by Mäori, whether Mäori freehold land or not. The High Court judge had however been incorrect in finding that he could not look at this issue once he had made a finding that the land court had not acted ultra vires in refusing to rectify the succession order. Making a fair and reasonable decision is a different matter from whether a decision making body has jurisdiction in the first place.

The court must reluctantly refuse the appeal:

"That the legislature should vacillate on the status of a child in this way is as surprising as it is regrettable. While it may have reflected intermittent concern for potentially abusive claims to interests in land, it also wrought injustice in this case. To say that the situation would not have arisen if registration had been effected when it could have been would be to overlook circumstances of the time. There would have been no perceived need to register even if persons in their position could have been expected to know of the possibility and how it could be done.’

[Ed: this case is a sad commentary on the inability of the NZ legal system historically to deal positively with Maori  customary family law.]

Aqua King Ltd (Anakoha Bay) v Marlborough District Council

W71/97. Environment Court. 30 June 1997. Kenderdine J, F Easdale, J Rowan

This was an appeal against the district council’s decision to decline a consent application for a coastal permit to establish a shell-fish farm in Anakoha Bay, in the outer Marlborough Sounds. It was accepted that Anakoha is the türangawaewae of Ngäti Kuia, and forms part of their traditional fisheries, over which they exercise the powers of kaitiaki (guardianship), by taking responsibility for the sustainable harvest and management of kaimoana in the region. Land surrounding the bay has always been occupied by Ngäti Kuia, and the site of the traditional settlement in Anakoha Bay is now a reserve granted under the Land for Landless Natives Act 1906, held in trust in Mäori title. The appellants argued that a new farm would provide economic and employment benefits and that they were entitled to consistent decision-making, in that there were already many approved marine farms in the area.

Held: the appeal should be dismissed:

Effect on Ngäti Kuia cultural values

The court noted Ngäti Kuia arguments that they opposed the application as an invasion of their home, arguing that all of the foreshore and seabed of the bay belonged to them and should not be granted to third parties. They were concerned that both sides of the mid reaches of Anakoha Bay are heavily compromised by marine farms, leaving only one large stretch of the bay free of farms and in which the iwi can freely exercise their traditional rights. The proposed site was in this stretch of foreshore, and although the most abundant sources of kaimoana are inshore from the proposed site, and would remain accessible to Ngäti Kuia, the iwi would perceive the farm as alienating them from their access to the whole stretch of the bay. They would be legally excluded from the marine farm site.

The iwi were also concerned that marine farms prevented them from accessing their kaimoana and caused navigational difficulties, particularly for small craft travelling at night. Ngäti Kuia acknowledged and supported the existing farms in the area for the commercial and employment benefits they brought to the community, but were concerned by the proposed occupation an area of  coastline with which they had a special affinity.

The court noted that,  in providing evidence in the hearing, Ngäti Kuia were ‘exercising in another form, Te ahi kaa’ their ‘traditional right under the Treaty of Waitangi 1840 to continuous use and occupation of the area from the earliest times.’ Gathering kaimoana was an important part of Ngäti Kuia’s cultural heritage. Because so much of the coastal marine area was already allocated to other users, further alienation would be a major adverse effect on the iwi.

Landscape effects were also argued, with the court concluding that the marine farm would have an adverse effect on landscape values which was more than minor.

NZ Coastal Policy Statement

The court concluded that, overall, the proposal was contrary to some of the more relevant provisions of the statement, including protection of landscapes/ seascapes/ landforms of the coastal environment (1.1.3(a)-( c)) which have special spiritual historical and cultural characteristics and significance for Ngäti Kuia.

Regional Policy Statement

The court was impressed that iwi members had supported the proliferation of marine farms for their benefits to the community, but claimed a special affinity to this last remaining segment of unaffected coastline. They were objecting to the proposal, not merely asserting their mana over the area. Among other matters, the court found that the natural values of the area would be compromised by the proposal and Ngäti Kuia would feel alienated from a traditional fishery. Accordingly, the proposal did not fulfil aspects of the regional statement.

Proposed Marlborough Sounds Regional Management Plan

This proposed plan contains the objective of recognising and promoting the relationship of the district’s Mäori to their culture and traditions in respect of their ancestral lands and waters. Giving approval to the proposal would not provide adequate recognition of the values and interests of Ngäti Kuia.  The evidence presented by the iwi specifically related to each of the concepts identified in the proposed regional plan objectives. Although there were elements of the proposal which were comfortably encompassed by the provisions of the proposed regional plan, there were many more factors against establishing a marine farm on the proposed site.

Part II Resource Management Act

Under s5, the court had to consider:

•  Ngäti Kuia as a people and a community whose cultural well-being needs to be provided for when powers are exercised under the RMA

•  there is a duty to avoid, remedy or mitigate any adverse effects on the cultural conditions pertaining to iwi under s5(a)-(c )). Ngäti Kuia maintained that the enclosure of the bay with marine farms would be inconsistent with their cultural well-being and the court agreed that the interference with the ability of Ngäti Kuia to exercise kaitiakitanga would be a major adverse impact.

Anakoha Bay has been the türangawaewae of Ngäti Kuia since time immemorial and its waters and the proposed farm are part of its ‘ancient fisheries’. A coastal permit under s12(4)(a)/1991 would exclude Ngäti Kahu from occupation of the area covered by the permit. In Environmental Defence Society v Mangonui County Council (1984) 3 NZLR 257, 262, it was held that the building of a tourist facility on the ancestral land of Ngäti Kahu, in which they could not participate, ‘... would overshadow (the iwi’s) presence on the Peninsula: in that they could not relate or feel at home with a development of this kind.’ In conjunction with the development which already existed in Anakoha Bay, the proposed farm would ‘render Ngäti Kuia completely alienated from their ancestral waters’, and would adversely compromise the mana and kaitiakitanga responsibilities of the iwi. A proposed provision in the consent to allow iwi members to continue gathering kaimoana in the area was not sufficient to counter the sense of alienation from the total resource, which was the real issue, as well as the practicalities of that alienation.

Consultation with the iwi by the district council and the appellant might have avoided the appeal if iwi concerns had become known earlier. Contact had been made by letters but there had been no follow-up to the lack of iwi response. The appellant accordingly felt ‘ambushed’ by Ngäti Kuia, having made several approaches to the iwi but received no response. Accordingly, the court was of a preliminary view that no costs orders would be made.

The Leveki Mangafaoa of Fifinehoua, Folikimua and Ikimau of Niue v The Cabinet Ministers of The Government of Niue

No 7478.  Court of Appeal of Niue, held at Wellington.  19 December 1996.  Sir Quilliam (presiding), Hillyer, McHugh JJ

The Niue government sought to extend the runway of the island’s international airport to increase passenger and freight capacity. This required the acquisition of some 13 hectares of customary land. The owners (Mangafaoa) of such land are determined according to Nuiean custom on inquiry by a land court and trustee/guardians for the owners (Leveki Mangafaoa) may be appointed. After a failure to reach agreement with the customary owners over compensation, the government compulsorily acquired the land for the extension and filed an application for the Niue High Court to determine compensation under s13 of the Niue Amendment Act 1968. The Leveki Mangafaoa appealed the compensation decision.

The Leveki Mangafaoa had rejected a government offer of $5m2, seeking $20m2. An independent assessor, commissioned by the government, had determined a valuation 40% below the government offer. The lower court decided that the $20m2 claimed on behalf of the owners was unsubstantiated and unrelated to any formula against which the claim could be evaluated or quantified. Accordingly, the court fixed compensation at $5m2, or the amount offered by the government. The appellants now argued that the lower court had erred in determining the compensation.

Held: the appeal should be dismissed.

The inalienability of Niuean aboriginal lands

The Appeal Court rejected the contention that the statutory prohibition on the alienability of Nuiean land had been factored into the valuation, resulting in a discounted compensation assessment (such an approach being suggested for Mäori freehold land in Mangatu Inc v Valuer General (1996) 2 NZLR 683). An inalienability test had been favoured by the lower court but not in fact applied. The lower court had regarded it as unnecessary in the circumstances, and rested instead on the Government’s offer of $5m2. Nor had the independent assessor used the inalienability test in reaching its valuation.  Accordingly, no reduction had occurred in the valuation process.

Failure to take into account cultural and spiritual values

The Appeal Court dismissed the contention that the lower court had wrongly held that s13 of the 1968 Act required a formula capable of being evaluated and quantified and failed to take into account non-economic cultural and spiritual values. While the lower court had been troubled by the absence of evidence from the appellant quantifying the $20m2 claimed, the customary values presented to the court had not been disregarded. Indeed, the relationship with the land, the nature of the compulsory sacrifice, the increasing recognition of customary rights and values and that the owners were unwilling sellers had been approved by the lower court. The difficulty had been in relating them to any evidentiary formula supporting the claim for payment of $20m2. The Appeal Court found that the fact that the lower court did not reduce the amount to the independent assessment might well have reflected that court’s allowance for customary values.

Determining compensation under section 13

The Court of Appeal agreed that in compulsory takings, compensation additional to market value can be paid for factors such as loss of profits, disturbance, injurious affection (Randall v Licensing Control Commission (1956) NZLR 37), that the value of the land to the owner is the prime consideration (Birmingham City Corporation v West Midland Baptist (Trust) Assoc Inc (1969) 3 All ER 172), and that other special features (eg existence of a development proposal) can be taken into account (Arkaba Holdings Ltd v Commission of Highways (1970) SASR 94). But these matters are founded in the relevant statute, not common law, and special features look to proposed use of the land, not its ownership per se.

As to the argument that a ‘special heritage value’, foreign to Western culture, should be assessed in monetary terms, the Privy Council in Adeyinka Oyekan & Ors v Mosendilco Adele (1957) 1 WLR referred to the need for ‘proper compensation’ on compulsory acquisition of aboriginal title. This statement was cited in the Court of Appeal in Te Runanganui o Te Ika Whenua Inc Society v AG (1994) 2 NZLR 20. ‘Proper compensation’ seems to equate to ‘fair purchase’ or ‘fair terms’ (R v Symonds (1987) NZ PLC 387). There is a developing debate "that the importance of the relationship of indigenous people to their land is such that on compulsory acquisition by the Crown the native owners should not lose their freehold title rights and the Crown should only take a leasehold interest or an easement or even enter into joint venture arrangements with the landowners." There have been numerous claims before the Waitangi Tribunal on public works takings, and it has recommended appropriate changes to the Public Works Act 1981 (Ngai Tahu Ancillary Claims Report 1995Turangi Township Report 1995). The term ‘proper compensation’ can perhaps be interpreted as extended to include such alternative forms of acquisition—although this is more a policy matter requiring legislation. In this case the appellants sought, and s13 only allowed for, monetary compensation.

The customary value claimed in this case was that the land was a birthright and sacred trust—a concept well known in the customary law of indigenous people world-wide and similar to the Mäori relationship to land encapsulated in the term mana whenua. Loss of this value would lead to a loss of status for the owners and an inability to provide for their descendants. Nuie is small and loss of land might well have greater consequence than in a larger country. Accordingly, it may be possible that an assessing tribunal, in fixing fair terms, might consider it proper to allow additional compensation to offset the loss of prestige or status.

Customary values such as this must be distinguished from customary rights arising from aboriginal title or fiduciary duty which have been recognised in NZ, Canada, America and now Australia. Such rights include rights to eeling, compensation for the obstruction of waterways, taking shellfish from the foreshore, sea fishing, shooting of native birds. These are becoming increasingly recognised (eg Te Runanganuicase). The Kaituna River Report 1984 of the Waitangi Tribunal, upholding a claim that sewage discharge to a river offended Mäori spiritual and cultural values, is an example of the application of Mäori customary values as opposed to aboriginal title rights. However all the cases illustrate that "customary values and customary rights of indigenous people are interests of a nature different to western concepts but must be recognised and compensated upon extinguishment."

In this case, because the lower court had appreciated the owners’ unwillingness to sell, accepted customary values attached to the land, made no deduction on the ground of inalienability and had approved compensation not only on land value but included an additional amount of 40%, it had awarded fair compensation. The $650,000 compensation, wisely invested, would provide a return per hectare greater than agricultural or pastoral pursuits on the land.

The court also rejected arguments:

•  That the lower Court relied on the report of the independent assessor which was based on criteria set out in the NZ Public Works Act and not applicable to Niuean law. While the report had used criteria set out in section 62 of the Public Works Act 1981, it was thorough and wide-ranging in its inquiry and presented a fair assessment of value

•  That insufficient weight had been given to the interests of trustee/guardian appointed for the land. This submission misunderstood the role of the Leveki Mangafaoa as trustees.

•  That at 20m2 the compensation sought ($1.5m) would be fiscally unrealistic given the low annual income of the whole economy ($6.9m). Economic issues of this nature are not relevant to s13.

[Ed: an interesting case, particularly for the suggestion that ‘proper compensation’ for the compulsory taking of land held under an indigenous title could perhaps extend to include alternative forms of acquisition, such as the taking of a leasehold interest only, and for the suggestion that 'loss of status' might be taken into account in valuations for such takings.]

Other

Proposed Optimum Method for Allocation Consultation Document

July 1997. Te Ohu Kai Moana / Treaty of Waitangi Fisheries Commission

This 72 page booklet outlines a proposed optimum allocation method for quota, cash and shares transferred to the commission under the Mäori Fisheries Act 1989, currently valued at around $300 million, and known as ‘pre-settlement assets’ or PRESA (ie fisheries settlement assets guaranteed to Mäori before the 1992 Sealord deal).

Principles underlying the proposal

The settlement package is finite in nature and composed of fish quota, which is a compromise of the commercial fishing rights of iwi. Accordingly, fishing rights of each iwi are not being fully compensated in the settlement and the commission believes that a proposal must be careful not to reintroduce circumstances of particular iwi. Any allocation method must be totally consistent with the fisheries management regime using quota. The requirement for some agreement among iwi requires some pragmatism in the final method, and the legal background (Mäori Fisheries Act 1989, Deed of Settlement 1992, Treaty of Waitangi (Fisheries Claims) Settlement Act 1992) provides ‘very little guidance’ on the development of an allocation method.

The basic approach has been to consider the assets a collective property right of iwi, but to make some ‘relatively small’ recognition of individual needs which the commission categorises as ‘social and economic’.

The proposed method

Quota would be allocated to iwi which measure up to a list of essential characteristics of an iwi (shared descent from tipuna, recognised constitutent hapü, established marae, belong historically to a takiwä, have traditionally been acknowledged by other iwi) and have structures which will be properly accountable. The details of the essential characteristics and structures for accountability are outlined in chapter 4 of the document.

Fish stocks will be divided, using catch histories, into 3 groups, inshore—those caught predominantly inshore (85% caught in depths less than 300m), deepwater—those caught predominantly offshore (85% caught in depths more than 300m) and the remainder, neither predominantly inshore nor deepwater stocks, will be labelled inshore or deepwater in accordance with the proportions caught above or below 300m. The 300m depth accords roughly with the edge of the continental shelf.

Inshore quota would be allocated by a ‘coastline formula’. Iwi will be required to ‘agree on the coastline boundaries of their takiwä’ with neighbouring iwi. They would then be allocated the proportion of each inshore fishstock corresponding to their proportion of the coastline over which that fishstock extends. The document states that this is consistent with ‘manawhenua mana moana’ and reflects the concept that ‘the fish of an Iwi’s coast belong to that Iwi” (earlier efforts to draw lines out to sea and establish a ‘marine rohe’ for each iwi and allocate fish quota to that have been abandoned because of ‘serious practical difficulties’).

Deepwater quota will be allocated 60% according to the coastline formula and 40% according to iwi population, using 1996 iwi census results.

The outcome of the proposed method is not shown because many tribal boundaries have yet to be finalised. An appendix shows the amount of quota of different species to be allocated per 10 km of coastline and according to the population equation.

‘Urban Mäori’ and others

There would be no allocation directly to urban Mäori organisations because they are not iwi in terms of the essential characteristics of iwi. The 1996 census shows that 143,000 people of Mäori descent (19.4% of all people of Mäori descent) did not list any iwi affiliations. Half of these did not identify ethnically as Mäori and presumably do not see themselves as beneficiaries of the settlement. An iwi helpline has been established to enable Mäori wanting to identify their iwi to do so.

Alternatives which have been suggested to allocation and to the possible methods of allocation are briefly discussed at the end of the report.

The document also notes that although the allocation method for PRESA will not necessarily have a direct effect on the allocation of post settlement assets, similar issues will need to be addressed (post settlement assets include 50% of Sealord Products Ltd which is valued at over $400 million).

This document represents the ‘stake in the ground’ the commission determined that it needed to place to make progress on allocation. The document was presented at the annual meeting (Hui a Tau) of the commission on the 26 July. A series of regional hui will be convened to consider the document. After considering submissions the final recommended method will be reported to iwi for agreement, and it will then be reported to the Minister of Fisheries. The minister has 30 days to request the commission to consider any changes to the scheme.

Parliament

The Fisheries Settlement and Snapper 1

Questions for written answer lodged 24 April

Dover Samuels to the Minister of Fisheries: Now that Mäori have had their commercial rights extinguished by the Sealords Settlement (Treaty of Waitangi Fisheries and Claims settlement 1992) in return for a share of New Zealand fisheries quota, how does he reconcile his announcement to cut the snapper fishing quota in area1, and what compensation does he intend to make to Mäori; if any?

Hon. John Luxton (Minister of Fisheries) replied: The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 does not provide for the extinguishment of Mäori rights.  It provides that the obligations of the Crown to Mäori in respect of commercial fishing have been fulfilled, satisfied and discharged and that Mäori would no have recourse to the Courts to pursue claims to commercial fishing. In return, Mäori gained access to a proportion of the commercial fishery on the same terms as other New Zealanders. Mäori were aware that the primary management tool for fisheries management in New Zealand was the quota management system and that quota management would be the preferred regime for the foreseeable future. Equally Mäori were aware that the quota management system was a proportional system with the sustainability of the fishery as a central component.  Where the fishery could not sustain the current level of commercial fishing, after an allowance had been made for non-commercial interests, commercial fishing would be decreased to rebuild the stocks to a level that would provide a maximum sustainable yield.  No compensation would be provided for such cuts.  Equally when increases in quota were appropriate, fishers including Mäori, would reap the benefit of those increases at no cost to themselves.

While the snapper fishery in area 1 has been cut in the short term to enable the fishery to rebuild to its maximum sustainable yield a number of other stocks have been increased since 1992 giving Mäori an additional benefit in those fisheries from the Fisheries Settlement.

Māori Fisheries Allocation

Questions for oral answer—22 April 1997

Dover Samuels to the Minister of Fisheries: Now that the Treaty of Waitangi Fisheries Commission has announced its model for final allocation of pre-settlement assets, funds and quota to iwi, what equitable mechanism does the Minister intend to put in place to ensure that all Mäori, including urban Mäori authorities, benefit from the proposed model?

Hon. John Luxton (Minister of Fisheries): The policy statement recently released by the Treaty of Waitangi fisheries Commission is not a report to me on the final scheme of allocation of pre-settlement assets that the commission is required to provide to me under s6(e)(iv) of the Mäori Fisheries Act of 1989.  The allocation policy proposed by the Commission is still subject to consultation with Mäori.   Given my responsibility to consider and approve the final allocation mechanisms that may be presented to me, it would be most inappropriate of me to comment while consultation by the commission with Mäori was still being carried out.

Mr Dover Samuels: Notwithstanding the Ministers comments already made in the media, does he believe that that he has a responsibility under the Deed of Settlement clause 4.5.6, to ensure that all Mäori benefit from an equitable distribution of those assets?

Hon. John Luxton: The Act is quite clear in what the commission is required to do in developing a procedure of identifying the beneficiaries and their interests under the deed of settlement. They are working on that, and once I get the final recommendations from the commission I can then make my decision.

Aboriginal title

NZPD 11 June 1997. Dover Samuels MP (Labour)

"I am not a lawyer … but my understanding of Māori customary rights is that the rights of the indigenous people of lands such as Aotearoa are recognised by statute and recognised by the Parliament of this country. Until those rights are extinguished, then the Māori people enjoy those customary rights. In the interests of all New Zealanders, perhaps it is time that those customary rights were defined so that New Zealanders know exactly where they stand in terms of customary rights and it is not left up to the courts to emerge from some sort of de facto prosecution process, then all of a sudden defend customary rights. It is incumbent upon this House and this Parliament to be able to define what customary rights are all about—the implications, the effects—not only in the interests of Māori people, but for all New Zealanders."