August 1997 Contents

Comment

Cultural Harvest­—Finding Common Ground

Mäori Land Court & Appellate Court

Duties of trustees—leasing beyond the immediate family group

Waitangi Tribunal

Nothing this month

Other Courts and Tribunals

Court of Appeal—Billy T James, ‘bodysnatching’ & the limits of public debate on race issues

High Court—Fisheries, challenge to TOKM leasing round

High Court—tribal structures and mandates for Treaty negotiations

High Court—company managing ancestral land, problems

High Court—Ngäti Porou forestry venture, success fee and contract with advisers

Parliament

Multilateral Agreement on Investment. Consultation with Mäori

Speeches & Press Releases

Mäori Health and Education Commissioners announced

Tau Henare speech in Australia. On being black and beautiful 

Reports & Articles

Waikato Law Review. Taumauri. Latest issue

Mäori and Trade Marks. A Discussion Paper

 

Comment

The NZ Conservation Authority, an independent statutory body which reports directly to the Minister of Conservation on conservation issues of national importance, has released  Mäori Customary Use of Native Birds, Plants and Other Traditional Materials. Interim Report and Discussion Paper. This is the second report of the authority on this topic, which outlines discussion and progress to date on this controversial issue. A summary released with the report is named Finding Common Ground: He Rapunga Tahitanga. The report is noteworthy because it is a deliberate attempt to find common ground in the Mäori and Western approaches to the cultural harvesting of resources. It pays close attention to the Mäori viewpoint, and presents it in an insightful and clear fashion. For example:

"Links with nga tupuna are extremely important in a society where identity is based in tribal and familial structures. Traditional uses of natural resources—foods, weaving materials, carved timber, implements and musical instruments, and special taonga such as bone carvings or carved walking-sticks—help to sustain the relationships with ancestors by continuing the patterns of their experience. The significance of the food, activity or object is in its echoing and connecting with your grandparents and their grandparents’ grandparents and so on back through your whakapapa to the beginnings."

It also articulates Western environmental views in all their historical diversity and describes the growth of the protectionist ethic in the last 200 years.

The dilemmas in the subject are presented with sharp clarity:

"Although many commentators both Mäori and non-Mäori optimistically note the parallels and similarities between rähui and contemporary protection of natural areas, ecosystems and species, it must be recognised that the purposes of rähui are fundamentally different from the modern preservation ethic. In Mäori resource management the objective is to ensure the long-term viability of the resource for future use and harvesting. For contemporary preservationists the objective is to preserve the resource inviolate from human exploitation—although non-consumptive, low–impact uses such as recreation, tourism, aesthetic appreciation and the renewal of spiritual and personal values are accepted."

The report suggests practical first steps and approaches to resolving these dilemmas:

"There may be similar outcomes sought in the short and medium term—protecting species and habitats, controlling predators and weeds, enhancing ecological systems and processes—but there are too often different overall long-term goals. These differences must be acknowledged, but they need not negate the immediate usefulness of practical measures for species and sites at risk."

The report draws together and summarises a large amount of material on both Mäori and western values and adds considerable maturity to the debate over cultural harvest, and hopefully, Mäori and western values in the environment generally. The effort to ‘find common ground’ has worked admirably in this case. Public submissions on the report close on the 21 November 1997.

The timing of the release is also fortunate as the Waitangi Tribunal is about to hear a claim concerning indigenous flora and fauna (Wai 262). This report covers much background material relevant to that claim as well as exploring some of the issues that will be raised in that hearing.

Mäori Land Court & Appellate Court

In re Sutherland & Others and Kaiwhaiki 1A1B

73 Aotea MB 118. 18 July 1997. Marumaru J

This was an application under s238 Te Ture Whenua Mäori Act 1993 seeking an order to review and enforce the obligations of the trustees of an ahu whenua trust. Families associated with the trust land had occupied it for some years and built family dwellings on it and the trust had issued long term leases to enable families to continue to dwell on the land. The leases included provisions that the leasehold was not to be assigned (ie sold) outside the lessee’s family, except if the lessee was assigning to his/her spouse or immediate family.

At the request of an owner in the land, the trustees executed a shared lease to the owner and to her friend, who was not a member of the immediate family. Two years later, the owner/lessee asked the trust to approve an assignment of her interest in the lease wholly to her friend. The trust met and gave its approval. The owner/lessee later changed her mind and signed a transfer of the lease to her daughter. In the meantime, these proceedings were filed challenging the ability of the trustees to approve the assignment of the entire leasehold interest to the friend. To further complicate matters, the trustees had held another meeting after the court proceedings were filed and purported to withdraw their consent to the assignment to the friend.

The applicants challenged the right of the owner/lessee to give the family home to someone outside the immediate family. They claimed that she received the home as kaitiaki (guardian) to hold in trust for the benefit of the family, and her action was in breach of Mäori traditional rights and was contrary to tikanga Mäori.  Witnesses spoke of the importance of maintaining their tribal links with the Kaiwhaiki area through their ancestral land. The retention of land within the owners’ family was a paramount consideration.

Held: the court looked at the question of tikanga Mäori, as defined in s3 of Te Ture Whenua Mäori Act 1993 and recognised in other sections.  While those parts of the 1993 Act dealing with trusts or Mäori reservations (Part XII and Part XVII) do not specifically provide that tikanga Mäori be taken into account, the principles set out in the Preamble make it incumbent on the court in the exercise of its jurisdiction to have regard to tikanga Mäori.

The court then considered the duties of the trustees when faced with a proposed assignment to interests outside the family and when the principle that land be retained within the family had been advocated. There was a clear obligation upon the trustees to inquire whether immediate family were aware of the proposed assignment, that notice be given, and if necessary, a meeting be convened with the parties to the assignment and immediate family. Without notice and the right to be heard, the principle of land retention had no real meaning.

The vesting of an interest in the property to someone outside the immediate family was clearly contrary to the retention principle. Failure of the trustees to give notice constituted a serious breach of their obligations.

These principles applied to the first shared lease which included the friend. That lease had not yet been formally registered. An interim injunction was ordered by the court to prevent the lease being lodged for registration. The court left the applicants and the whänau to determine the appropriate person/s with whom the trustees should communicate so a fresh lease could be concluded.

There was some confusion as to whether various meetings of the trustees had properly voted on resolutions to approve the proposed leases and changes to them. The court noted that there can be no objection to advisory trustees attending meetings of responsible trustees, and they may even vote on matters, provided that the votes of the advisory and responsible trustees are separately recorded, as the votes of responsible trustees determine issues. It was noted that the  1993 Act does not stipulate the number of trustees required to constitute a quorum at trust meetings. This is a matter for the beneficial owners to determine. One important guiding factor is the number of trustees which form a majority of all the trustees. The trust order did not provide an answer in this case and the court ordered that the quorum be set at 3 trustees until varied by a general meeting of owners.

Waitangi Tribunal

No items this month

Other courts & tribunals

Awa v Independent News Auckland Limited

CA 9/96. Court of Appeal. 31 July 1997. Richardson P, Gault, Keith, Blanchard JJ

The appellant, an uncle of the late famous comedian Billy T James, claimed that he had been defamed in a newspaper article describing him as ‘Billy’s ‘body-snatching’ Uncle Bill Awa’.  This was a reference to an incident where the appellant had uplifted the body of Billy T James from his home without the consent of Mrs James, so that, in accordance with Mäori custom, the body could lie on a marae for a period of mourning before being buried. The High Court found that the newspaper was not liable in defamation as the expression was fair comment or fact.

Held: the appeal should be dismissed. In relying on a defence of fair comment the newspaper was essentially arguing that an opinion could honestly be held that the treatment of Mrs James was morally blameworthy, even if carried out for reasons of Mäori custom:

"From the perspective of a non-Mäori New Zealander, the opinion that Mr Awa acted wrongly towards Mrs James was certainly possible, as is demonstrated by the views expressed by others in the contemporaneous public debate.  Such an opinion might be deprecated by Mäori as Eurocentric but a significant section of the public seems to have considered that the widow’s wishes should have been respected; that she should not have been placed in a position of being required to submit to the will of the appellant and his party. …. Hypothetically, assume that the position had been that Mrs James had successfully prevented the body being taken and had declined to permit any Mäori element in the funeral arrangements.  Mäori would surely have been legally justified in stating in colourful terms their views of a päkehä who sought to exclude them from mourning Billy T in their own way. …. One race is entitled to comment adversely and even narrow-mindedly on the practices of another save as prohibited by statute, for example, the Human Rights Act 1993.  The exercise of this right may sometimes be a cause of discomfort for many New Zealanders. They may reasonably consider that it is detrimental to race relations and that a degree of restraint would be preferable. However, provided that comment is factually based and expresses a genuinely held opinion rather than being mere invective, it will be protected in a defamation action by the fair comment or honest opinion defence. The insensitivity of the comment does not deprive it of that protection if it is made honestly.  If it were otherwise, freedom of expression, a right affirmed by s14 of the New Zealand Bill of Rights Act 1990, would be seriously in jeopardy."

In a separate judgment, Thomas J agreed with the findings of the majority on the issue of defamation, but declined to endorse the paragraph above, stating that he was "concerned that the observations contained in the paragraph directed at the entitlement of one race to comment adversely on the customs of the other may be seen as unnecessary, if not gratuitous’. Nothing in the Sunday News article in issue or in the alleged defamation related to Mäori custom and it was therefore unnecessary for the court to make the comments it had. If the alleged defamatory comment had been directed to Mäori custom rather than the appellant’s conduct, the ensuing proceedings might have been different. Thomas J was concerned that the comments of the court:

"… may be perceived as an endorsement of public comment of a culturally or racially insensitive kind, providing the comment does not infringe the letter of the law.  Indeed, there may be a danger that some might even construe the thrust or tone of the paragraph as exhortatory. …. I cannot accept that boundaries of the law should define what is responsible to publish in the vulnerable area of this country’s race relations. The law of defamation and provisions of the Human Rights Act 1993 may provide the outer limits of free speech but they do not prescribe an acceptable response to the problems confronting a bicultural nation. ….

New Zealand is a nation made up of two peoples.  Each has its own culture and language. History, and the population imbalance in this country, mean that the European culture is the dominant culture and the Mäori culture is in jeopardy of being submerged or engulfed. Problems and tensions, as in all countries where the indigenous people have been subjugated in the course of colonisation, inevitably exist.  Yet, the two peoples, both the European and the tangata whenua, must necessarily strive to live and work together in common accord. ….

Constructive discussion and debate does not offend, of course, and may advance a people’s understanding of the other’s culture.  But intolerant and insensitive comment about the culture and customs of either people, particularly that of the indigenous people, can only prove harmful to the well-being of this country’s bicultural society and its future as a rich and culturally diverse nation.  The law may not condemn such comment as unlawful, but nor does it condone it."

 Te Runanga O Raukawa Inc v Treaty of Waitangi Fisheries Commission

CP 322/96 7 August 1997. Gendall J

The plaintiffs made application for declarations that the commission, in making decisions about the leasing of quota to iwi in the 1996/97 fishing year in the area known as FMA 8 (Fishery Management Area 8—running roughly from North Taranaki to Porirua) had acted unlawfully.

Held: the application should fail. The background was that since 1993 the commission has made quota available for lease within each Fisheries Management Area (FMA) to groupings of iwi, leaving it to the iwi themselves to decide how to divide the quota amongst themselves. The proposal for 1993/94 was to divide the inshore and 50% of the offshore fishery to FMAs on the basis of coastline and 50% deepwater on the basis of population. Both the population and coastline aspects of this distribution were unsuccessfully challenged in Area One Consortium Ltd v TOWFC (HC Auckland M1357/93, 27 September 1993, CA 224/93 29 September 1993) where it was said in the High Court that, given the 80 iwi with an interest, it would have been ‘impossible’ for the commission to have found a synthesis for all competing factors in the time available.

This was a polycentric situation (Fuller ‘The Forms and Limits of Adjudication’ (1978) 92 (2) Harvard LR 353), involving many parties and a fluid state of affairs, which result in the decision-maker facing a problem unsuited to adjudication by a traditional process. This is why the commission is given ‘the unique task of exercising wide discretion and powers to devise solutions best suited, in its wisdom, and determined by its expertise, to Mäori as a whole.’ With polycentric problems one must deal with the ‘whole structure’ rather than take an individual perspective.

The 1994/95 distribution was also challenged, and that challenge was also rejected, in Phares v TOWFC (HC Wgtn CP 389/94 23 December 1994). The same scheme was used in 1995/96.

A change in approach proposed by the commission itself for the 1996/97 season was successfully challenged in Te Iwi Moriori Trust Board v TOWFC (CA 238/96, 14 October 1996) where the Court of Appeal found that the commission had failed to take into account the special case and socio economic circumstances of the Chatham Islands people. That case was ‘unique in its facts to the Chathams and the iwi there.’

In response to the case the commission reverted to its distribution formula of 1995/96.

Up until 1996/97, Mäori groups in FMA 8 simply shared the lease round quota equally with each of 8 iwi falling within that area. In 1994 the number of iwi interested doubled to 16, with a consequent reduction of the lease quota to each iwi on the basis of equal division. The approach to distribution was much disputed between the iwi groups. Until 1996 the plaintiff iwi, one of the largest iwi in the region by population, had acquiesed in the majority approach, but made its dissatisfaction with equal sharing known. In 1996 it refused to agree to a majority view in favour of equal sharing with a minor population component and invoked a disputes process offered by the commission. A subcommittee of the commission considered written submissions on the dispute and endorsed the majority decision of the FMA 8 iwi.

The plaintiff argued that the commission had:

•  Failed to have regard to economic and social considerations under s8(a) Mäori Fisheries Act 1989;

•  Adopted an unlawful practice in assigning quota for lease to FMAs but leaving it to iwi to decide for themselves by agreement how it was to be divided amongst them, when it should have assigned quota on a comparative basis having regard to s8;

•  Adopted a poor disputes subcommittee procedure and had reached a decision on pragmatic grounds which raised issues of unreasonableness and substantive unfairness.

Distribution of quota to FMA

The commission has a wide discretion to act as it thinks fit to achieve it objectives and functions. As was said by Lord Cooke in Te Runanga o Muriwhenua v Te Runanganui O Te Upoko O Te Ika [1996] 3 NZLR (CA) 10, the fisheries settlement is a ‘pan-Mäori settlement’ and ‘not for the benefit of selected groups of Mäori only’. One of the primary obligations is to grant assistance to Mäori or groups of Mäori, and this might not necessarily even be iwi. A ‘realistic and practical’ approach has had to be adopted to facilitate the entry of Mäori into the business and activity of fishing pending the final allocation. There is no obligation on the commission even to lease on an annual basis.

Since 1993 there have been numerous hui on the topic of distribution. Comparing different per capita outcomes for iwi does not establish that the commission failed to have regard to social and economic factors in performing it’s ‘unenviable task’. Competing interests and considerations often point in different directions and this is known to the commission with its ‘specialised expertise and knowledge’. If as an interim measure the commission chooses to distribute quota to groups defined by the FMA administrative divisions then it is entitled to do so. The consideration of Mäori custom is achieved in part by the co-operation required between groups of iwi within the FMA.

Economic considerations do not relate exclusively to the ‘needs’ of any particular iwi, but may also fairly relate to factors such as economies of scale of fishing certain quota, the economic viability of particular fishing enterprises, the competing economic advantages and disadvantages of other groups of Mäori in engaging in the business and activity of fishing. The argument on the basis of economic (financial) needs of the iwi as a group is to ‘make simplistic the consideration that is in truth complex and requiring of far-reaching inquiry’. Also, the statute speaks of economic ‘considerations’ not ‘needs’, and to ‘have regard to’ certain matters does not require the ultimate decision to necessarily affect those matters.

The disputes procedure to resolve disputes which arise after iwi have first sought agreement among themselves provides a sound and sensible mechanism for determining between competing views of what constitutes equality and is squarely within the functions and powers of the commission. An annual lease distribution comparing the situations of all iwi would be an impossible task. The commission was under no duty to undertake annual allocations in any event. The evidence did not in any way establish that the commission had ignored s8 criteria in distributing in the past but had on the contrary ‘diligently heeded’ those factors.

As to final allocation, the court is not prepared to make a declaration for the future on a matter where the commission must provide a ‘pan-Mäori’ solution to a polycentric problem. The court will resist the attempt by any particular group to enlist its aid in forcing the commission to distribute in any particular way. There may be groups to whom the commission may wish to grant assistance falling outside the iwi model, but that is a matter for the commission in its expertise.

Consideration of social and economic issues

Mäori custom and social and economic considerations which the commission is required to have regard to may point in different directions. And the words ‘shall have regard to’ are not synonymous with ‘take into account’ (R v CD [1976] 1 NZLR 436, 437).  The commission is only bound to take into account the views of iwi expressed in consultations (s8(aa)). There was abundant evidence that this was done. The plaintiffs had expressed the view themselves that iwi should decide the distribution and not the commission. The calculation of leased quota per capita (members of the plaintiff iwi would receive 30 kilos less than members of the next iwi in the FMA grouping) does not by itself determine what is just and equitable nor parallel Mäori custom or social factors. This is particularly so if population figures prove unreliable. The commission had statistical profiles of Raukawa and other iwi before it and was aware that 1991 census figures were unreliable—something pointed out at the time by the plaintiffs themselves. The commission had therefore taken these matters into account. The distribution decision actually contained a population component. The Moriori decision did not help the plaintiffs case as in that case very substantial depravation and reduction in quota would have occurred had the commission decision been implemented. In this case the plaintiffs had in fact gained some advance over previous distributions.

The commission had not merely undertaken a ‘ritual incantation’ of words in its approach to these factors (warned against in NZ Fishing Industry Assoc v Min of Agriculture & Fisheries (1988) 1 NZLR 544, 553), but had given genuine consideration to them.

The disputes resolution procedure

 The commission was well aware of the dispute the plaintiff iwi had with other iwi (a dispute which was partly based on historical mana between iwi of the area). There was accordingly no requirement on the commission to spell out for parties the particular matters on which they should make submissions to the disputes committee.  The plaintiffs had asked for their submissions to be treated confidentially, and this signified acceptance that no formal hearing would take place. Given the nature of the dispute and the need for a speedy resolution, a procedure involving notification of submissions between each group would have been impractical.

The disputes committee did not fail to take into account mandatory considerations under s8. It had appropriate information before it on social and economic matters. The process was sensible and fair to all concerned (AG v Bay of Islands Timber Co Ltd [1979] 2 NZLR 511) and participants were accorded ‘fair play’ (Furnell v Whangarei High School Board [1993] AC 660). The Phares case bears some similarity on the facts to this case in that it concerned a long standing dispute about quota leasing, and there it was determined that the commission in cases of dispute has to make a decision as an expert tribunal, and the courts should not attempt to substitute their own view. Also, in that case the commission was fully aware of the background to the dispute and the court found that a full submissions and hearing procedure was not appropriate.

Nor on the facts had the plaintiffs made out the ground of unreasonableness or substantive unfairness. The evidence fell ‘woefully short’ of establishing either ground.

Finally, reserving an order as to costs, the court said that it:

"discourages constant judicial review litigation by groups of Mäori in this unique and exceedingly difficult area where the Commission has to exercise its discretion, wisdom and judgment. Financial costs to Mäori, as a whole, of the barrage of litigation to date, must be very great. Legitimate challenges must of course be heard. But the time must surely have come that those who bring proceedings such as these and fail, may find that costs should follow the event."

[Ed: this decision is under appeal.]

Pue v Te Iwi o Ngäti Maru (Taranaki) Inc & Others

CP 173/97. High Court Wellington. 6 August 1997. Ellis J

Minutes before a delegation of Ngäti Maru representatives was about to sign a ‘terms of negotiation’ document with the Minister in Charge of Treaty of Waitangi Negotiations, the plaintiff applied for and obtained an injunction to prevent the signing on the basis of alleged serious irregularities in a prior meeting of tribal representatives which had authorised the signing. It was also claimed that signing would adversely affect many members of the tribe. This further hearing considered whether the injunction should be continued or discharged.

Held: the injunction should be discharged.

Background

Te Iwi O Ngäti Maru (Taranaki) Inc is an incorporated society with membership by right of descent from tribal families and a structure such that it ‘truly represented’ the tribe and its general meetings were synonymous with hui-a-iwi or tribal meetings. A management committee (of representatives from each of 12 hapü making up the tribe) and an administration committee managed the society. Special general meetings require 14 clear days notice in a local newspaper, and the notice must indicate the general nature of the business to be transacted.

Nineteen members of the society requisitioned a special general meeting for the 6 July to consider a mandate for the society to pursue a negotiated settlement with the Crown and the structure of a proposed negotiations committee. The management committee responded by calling a special general meeting. The newspaper notice referred to an update on progress with the claim and discussion about a claims committee, but did not mention specifically discussion of the ‘terms of negotiation’ document and the intention to have the meeting authorise its signing by 3 kaumatua.

After looking at the notice procedure and the events at the meeting itself the court found:

•  The meeting did not have before it the ‘terms of negotiation’ document

•  The document was more than an agreement to negotiate, it also settled the topics for negotiation

•  The motion before the meeting simply referred to an ‘agreement to negotiate’, however a majority at the meeting were aware of the real substance of the document..

Meeting procedure

The fact that the meeting was held on the 13 and not the 6 July as requested by the requisition was not material, nor was the fact that the notice of meeting did not use the same words about the matters to be discussed as the requisition.

The society rules had technically not been followed with respect to the appointment of a chairman for the meeting, however, there had been no objections at the time, the chair had not cast any deciding vote, and the rules contained a provision that ‘substantial compliance’ with the rules was sufficient, and in cases of doubt Ngäti Maru custom would apply (whether this last could apply in this case required further evidence of custom and should not be settled in an urgent hearing such as this).

The available evidence did not support an objection that the resolutions had not been passed by a majority. And there had been no demand for a recount from dissenting voters.

Overall, while notices of the meeting could have been more precise, and the ‘terms of negotiation’ document should have been more widely available and a better attendance record kept of the meeting, there were no errors or misconduct sufficient to warrant the intervention of the court. The democratic process ‘is a robust one’.

Adverse effect

The plaintiff argued that members of the tribe would be adversely affected because the ‘terms of negotiation’ document:

•  Did not provide for negotiation of wider political, spiritual and cultural matters (eg the concept of mauri)

•  Required the tribe to forgo other avenues of redress while negotiations were ongoing.

These arguments should be rejected. The negotiations envisaged by the document would cover some wider issues, and the other issues raised were ‘unrealistic’. The waiver on other avenues of redress only applied while the negotiations were ongoing and would cease to operate if the negotiations failed, so there was no possible disadvantage to iwi members.

[Ed: this is one of the first times that the courts have examined the early stages of the Crown’s current negotiation process. The ‘terms of negotiation’ document is attached  to the judgment. It provides that Ngäti Maru agree, among other matters, to aim to negotiate a ‘Heads of Agreement’ within 6 months of the commencement of substantive negotiations, and aim to agree on a ‘Draft Deed of Settlement’ 2 months after that.

The agreement to ‘waive all other avenues of redress during negotiations’ arguably has a substantial impact on the tribe. It could, for example, prevent Ngäti Maru from taking preliminary steps to obtain binding recommendations against the Crown while negotiations proceed. Those preliminary steps are currently being undertaken by several other groups of claimants in other regions and are proving time consuming and complex.]

Kawe v Muri Aroha Farms Ltd

M9/97. High Court Hamilton. 18 July 1997. Hammond J

This case concerned former Mäori freehold land which had been changed to the status of general land and placed under the management of a company established by the Mäori owners in 1972. The articles of association for the company contained a complex set of pre-emptive rights in favour of descendants of the founders of the company, who regarded the land as ancestral Mäori land and wished it to remain in the family.

The company owed considerable sums to its creditors, including its 2 directors, who were family members. The directors determined that the property should be sold. Other members of the family disagreed. The directors applied for an order to wind up the company under s209ZG Companies Act 1955, on the basis that they were members of the company ‘prejudiced’ by the impasse.

Held: the application should be refused. Section 209ZG is essentially directed to situations where a majority of the company shareholders oppress a minority and the minority requires some relief. Various provisions of the Companies Act provide the means to resolve precisely the kind of problems faced by the directors and other shareholders. Consultation could be undertaken to decide the best course for the company, and provided the directors acted in good faith in the conduct of the company’s affairs, they would be immune from legal challenge.

Companies can be wound up where there is deadlock under s217(f)/1955. This was not such a situation. This was in essence a ‘comfort’ application for the directors (analogous to an application under s66 Trustee Act 1956), who felt they would be criticised if they took part in a decision to sell the land.

[Ed: this case indicates the problems that can occur when a company structure is used to deal with Mäori ancestral land at the whänau level.]

Ngäti Porou Whanui Forests Ltd v Treasury Group Ltd and Treasury Advisory Services Ltd

8/97. 5 August 1997. Master A Gambrill

Ngäti Porou Whanui intended to develop for forestry purposes some 10,000 hectares owned by 2000 Mäori owners. Approximately $50m was intended to be spent over the life of the project. The respondents were hired to find investors for the project on the understanding that they would be paid a ‘success fee’ if they were able to secure an investor. They secured an investor willing to provide $50m and demanded their fee. Ngäti Porou Whanui declined to pay, arguing that it was understood that the respondents would get the investor to provide the amount to cover the success fee. The respondents filed a statutory demand under the Companies Act.

Held: the correspondence between the parties which established the agreement on the fee was not clear, but Ngäti Porou Whanui clearly established an arguable case that they were not liable for the debt. Accordingly, the statutory demand should be set aside and new proceedings should be filed to claim the debt in the normal fashion. The court noted that the situation had probably arisen ‘through a genuine misunderstanding of all the parties’ and urged them to consider settling out of court considering the costs a court hearing would involve.

Parliament

Multilateral Agreement on Investment

7 August 1997. Questions Of The Day

Sandra Lee to the Minister of Mäori Affairs, Tau Henare:

 Given his statement in the House yesterday that he had asked officials to consult with Te Puni Kökiri in the first instance, is it his and the Coalition Government’s intention to consult with Mäori on the Treaty of Waitangi implications of the proposed Multilateral Agreement on Investment;  if so, when will the consultation process commence?

Winston on behalf—This is an issue that would be better answered by the Minister’s responsible. These Ministers have yet to decide on the consultation process. If it is agreed to sign the agreement it will be with the caveats of the Coalition agreement included.

Speeches & Press Releases

Mäori Health and Education Commissioners announced

Minister of Mäori Affairs, the Hon Tau Henare. 8 August 1997

Four million dollars was set aside in the Budget for the establishment of these commissions, which were foreshadowed in the Coalition Agreement. The commissions will provide independent advice directly to the minister on how to address issues facing Mäori. They are intended to compliment the work of existing agencies such as Te Puni Kökiri (Ministry of Mäori Development) and "demonstrate to the people at the grassroots level in a meaningful way, we’re listening to you."

Mäori Development Commission for Education

Retired Judge Michael (Mick) Brown (Chair)

Ms Margie Hohepa

Mr Terry Morrison

Dr Rosemarie Pere

Dr Pita Sharples

Pauline Waiti

(Janet Winter-Love is Executive Director)

Mäori Development Commission for Health

Mr Wayne McLean (Chair)

Dr John Broughton

Mr Robin Cooper

Dr Anthony Ruakere

Dr Erihana Ryan

Ms Heather Thompson

Excerpts from speech to Ministerial Council for Aboriginal and Torres Strait Islander Affairs, Perth, Western Australia

15 August 1997. Hon Tau Henare Minister of Mäori Affairs

There’s a common catchcry among indigenous people of the world. It’s a simple  line that goes something like this: I’m black and I’m beautiful, and I’m proud  of it. New Zealand is going through an exciting phase politically and it’s exciting  for me personally, as a New Zealander, as the Minister of Mäori Affairs and as a Mäori. I’m proud to be Mäori. Undeniably black and beautiful. For me being Mäori is something no-one can take away from me. I have my whakapapa, my genealogy, the thing that binds me and my children to the land,  to New Zealand.

…. It’s a time when, as a result of New Zealand’s first election under our new system of proportional representation, Mäori are for the first time represented  in the New Zealand Parliament like never before. At thirteen percent of the population, Mäori hold a corresponding number of the  seats... With Mäori holding fifteen of the one-hundred-and-twenty seats in the  house. This is a great result for Mäori people and for democracy as it is a time of  renewed hope and positivity in Mäoridom. Because for the first time you’ve got fifteen brown faces—not four - but  fifteen, advocating a very pro-Mäori position and ensuring the voice of the indigenous people of Aotearoa are having a real say and making their presence  felt in the corridors of power.

Along with this you’ve also got three Mäori sitting around the cabinet table  having a direct input in to the decisions that reflect on the lives of all New  Zealanders …. It’s an exciting time not only for us as Mäori, but I believe for all native peoples of the Pacific to sit up and take a long hard look at what’s happened  in little old New Zealand.

…. If you listen to the radio talkbacks back home, read some of the blatantly  racist commentaries on the growing force that is Mäori clout, you know as a  people, as a force, we’re heading in the right direction. Like I said at the beginning I’m unashamedly black, and I’m unashamedly beautiful and I won’t lie down for anyone who tries to suggest there’s something wrong with the pride I take in myself as a Mäori.

Because of the stringent pro-Mäori stance my immediate colleagues and I have taken, and also some on the opposition benches, we’ve copped a lot of flak from the media who’ve painted us as thugs, heavies and hoods. We can’t help it that this country, that the media, have got used to a Mäori  political element who in the past have just sat there and said nothing. That’s not our problem. But according to the media it is. According to them we should be those  handkerchief-head uncle toms:  yes sir, no sir, three bags full sir.

If our stance, our position, is arrogant because we stick up for what we believe in, because we have a strong Mäori mandate which says that’s what we want you  to do, if that’s thuggish, then so be it. I’ll wear that label, not kindly, but at least we’re advocating what we were put there to do.

Reports & Articles

Waikato Law Review. Taumauri.

Volume 4, issue no 2, 1996

This issue contains several items of interest, including:

Sian Elias. ‘Hard Look’ and the Judicial Function. (p1): this article argues that the proper approach to judicial review is a continuum depending upon the importance and nature of the interests entrenched upon and the extent of that entrenchment. ‘At the one end of the spectrum there is no room for any margin of appreciation at all: the courts must, in performance of their constitutional duty, decide whether action is legal or not and not defer to any discretion in the decision maker’, whether the decision is one made by the legislature or the executive. At the other end would be cases where the decision maker is entrusted with power on a consensual basis, where those affected by the decision are of equivalent bargaining strength. She cites the Mäori Electoral Option case (Taiaroa v Minister of Justice [1995] 1 NZLR 411) as an example at the ‘high’ end, concluding that ‘hard look’ review, which should have been prompted by the fundamental electoral rights at stake, would not have countenanced a result in which a significant number of Mäori were disadvantaged.

Robert White. Racism and the Law (p95): reflecting on the writings of Ayn Rand (and her contemporary publicist, Lindsay Perigo), White argues that to oppose racism while supporting anti-discrimination legislation is to commit a logical fallacy. He concludes that there is an internal relationship between racism and legislation that initiates physical force, making it contradictory to support any law that initiates physical force, such as anti-discriminatory legislation, but also including ‘nationalistic legislation, tobacco regulations, taxation, …

Peter W Jones. Indigenous Peoples and Intellectual Property Rights (p117): this article concludes that there is a ‘great distance’ between current regimes for the protection of intellectual property and claims by indigenous peoples for protection of their intellectual property. Efforts to close this gap are hindered by misunderstandings on the indigenous side about the content of the existing law and the fact that the existing law cannot provide many of the protections sought. An expansion of current laws for copyright protection could go some way towards a solution.

Mäori and Trade Marks. A Discussion Paper

Mäori Trade Marks Focus Group. Ministry of Commerce 1997

This consultation is part of ongoing work to reform the Trade Marks Act 1953 to more clearly establish the scope of rights that can be obtained under the legislation and reduce the costs of obtaining a trade mark. Mäori concerns that words, symbols, sounds or smells be protected have given rise to this particular consultation. The current law does not recognise the collective interests of Mäori in intellectual property, provides only a limited period of protection, and could allow culturally offensive trademarks to be registered (the hypothetical example of ‘mana beer’ is given).

The paper suggests that Mäori concerns be met by a more thorough assessment of trade mark applications. While any person or entity would be entitled to apply to register a Mäori word, sound, symbol or smell, they would have to identify the source of the item, and if required, prove that they had permission from any group (such as an iwi, whänau or hapü) claiming rights over the item. In addition, the trade mark would have to pass a test of cultural appropriateness. It could not be ‘offensive to a significant section of the community’, where ‘offensive’ included cultural matters, and ‘community’ included groups such as whänau or hapü.

The document notes that the international Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which has already led to amendments to the 1953 Act,  ‘may make Mäori cultural and intellectual property more vulnerable’—although the government has stressed that its ability to address Mäori intellectual property issues in the future is not affected.

[Ed: consultation about this document has been completed, and proposals are now being prepared for government to consider. The document states that Mäori will be given an opportunity to comment on the Ministry of Commerce final stance on these issues before it formally forwards its proposals to government.]

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