September 1997 Contents

Mäori Land Court & Appellate Court

Powers of Mäori Land Court to vary a trust order

Application to review the operations of a trust

Waitangi Tribunal

Review of the Evidence in The Muriwhenua Land Claims—2 vol report

Other Courts and Tribunals

Court of Appeal—Mäori land valuation—The Mangatu blocks case

Court of Appeal—Legal aid and the Human Rights Committee

High Court—Historic Places Act, standing for Mäori groups—Mäori values to be considered on appeal

High Court—Matukuturua stonefields, interference with waahi tapu—Resource Management Act—the ‘reasonable Maori’ test

Environment Court—Historic Places Act—authority to destroy a midden—Mäori values to be considered

Parliament

Waikato Raupatu Claims Settlement Act Commencement Order 1997—Onewhero forest

Resource Management Amendment Bill (No 3)—select committee report

Waitutu Block Settlement Bill—select committee report

Speeches & Press Releases

Multiple-owned Land Development Committee announced

 

 

Mäori Land Court & Appellate Court

Malcolm Tukino Short and the Pukeroa Oruawhata Trust

1 Waiariki Appellate MB 86. 7 August 1997. Marumaru J (presiding), Spencer, Carter JJ

The Pukeroa Oruawhata Trust is a substantial Mäori land trust managed by six responsible trustees. The trust applied under s244 Te Ture Whenua Mäori Act 1993 to vary the terms of the trust order to allow any 2 trustees to execute documents acting pursuant to a majority resolution of a meeting of the trustees. This was said to be required for administrative efficiency, particularly in relation to renewals of the 49 leases administered by the trust. The Mäori Land Court had dismissed the application, questioning its jurisdiction to make such an order and the undesirable precedent for other trusts.

Held: the appeal should be dismissed.

Section 227

Section 227, which varies the general law in allowing trustees to act by majority decision, but reinforces standard land transfer practice by requiring land transfer documents to be executed by all trustees, was not relevant to the issue. Subsection 227(3) does allow the land court to make particular orders about how an instrument for registration under the Land Transfer Act 1952 is to be executed, but that is a ‘machinery’ provision limited to situations where the court has made a particular order under s237 (which gives the Mäori Land Court all the powers of the High Court in relation to trusts).

Section 244

It was argued that, because s226 allows the land court to confer on trustees all necessary powers, and because s227(1), which states that trustees shall act by majority, also contemplates that the land court may vary the trust order so that in some situations they shall not act by majority (the subsection begins “Subject to any express provision in the trust order”), therefore it is also contemplated that the land court may vary a trust order to override the express requirement in s227(2) that every instrument to be registered under the Land Transfer Act 1952 shall be executed by all trustees.

This must be rejected. Section 227(1) may simply allow for the situation where ordinary trust law, which requires trustees to act unanimously rather than by majority, is to apply. It is possible (but not decided here), that the land court may only have power to provide for majority or unanimous decision-making in trust orders. In addition, s227(2) is a specific provision “clearly aimed at clarifying what is needed for the execution of land transfer documents in the light of the somewhat novel or innovative provision” for majority decision making by trustees, and cannot be overridden by a general provision allowing the land court to make trust orders.

Nor can s237 (High Court powers in relation to trusts) assist, since it gives the land court powers to be used to resolve particular issues and problems which arise in the administration of trusts, not powers to be included in general trust orders made under ss219 and 226 to address situations of administrative expediency. Nor can s2 (Act to be interpreted to further the principles set out in the Preamble) be called in aid. Section 2 will be relevant to they way the land court applies the well defined jurisdiction relating to trusts invoked by s237, but does not allow it to broaden that jurisdiction beyond the existing law.

There is also the practical problem that, if this order were made, there would be no ability to register it to give notice to the District Land Registrar of the changed requirements for the execution of land instruments by the trustees (s219(2) forbids the registration under the Land Transfer Act of Mäori land trust orders).

A solution to the problem of having trustees continually available to execute documents on the many leases administered by the trust, is to appoint a custodian trustee under ss222 and 225 to hold and administer trust property in accordance with the directions of a majority of the responsible trustees.

Winitana and Wellington Tenths Trust

14 Aotea ACMB 188. 24 July 1997. Hingston J (presiding) Spencer J, Isaac J

This was an appeal against a decision to strike out an application under s238 for the Wellington Tenths Trust to provide a written report of its administration of funds received for the Railcorp settlement. The land court had also made an order for costs against the applicant.

The appeal turned on the interpretation of various filed documents and whether counsel for the trust had been correct in alleging confusion from the appellant’s side about who was bringing the application and when certain documents should be filed. The appellate court found clearly in favour of the appellant, directed that the order dismissing the application should be affirmed (the appellant was no longer pursuing it), but revoked the land court costs order and made an order for costs in the appeal in favour of the appellant. Commenting on the acrimonious situation which had developed, the court quoted Mr Weller in Charles Dickens Pickwick Papers: “Battledore & shuttlecock’s a wery good game, vhen you aint the shuttlecock and two lawyers and battledores, in vich case it gets too excitin’ to be pleasant.”

Waitangi Tribunal

A Review of the Evidence in The Muriwhenua Land Claims

Professor Evelyn Stokes. Waitangi Tribunal Review Series 1997 No 1 (2 vols) 1226 pp

These volumes review all the evidence presented in the Muriwhenua land claims. Professor Stokes, a member of the tribunal sitting to hear the claims, undertook this review to assist the tribunal members in handling the large quantities of material from historical and other sources filed in evidence. The foreword notes that if any opinions in the volumes conflict with the conclusions in the tribunal’s Muriwhenua Land Report, the latter report is to prevail. Chapters of general interest:

•  Chapter 7. British Rule Comes to New Zealand

•  Chapter 9. Interpretations of the Treaty in the 1840s

•  Chapter 11. The Lands Claims Commissions

•  Chapter 19. Interpretation of the Evidence (includes a discussion on the value of oral evidence to historical enquiries)

•  Chapter 22. The ‘Extinguishment’ of Mäori Title (discusses the historical-legal background to tenure and extinguishment of native title)

•  Appendix IX. Rules Governing the Taking of Seafood (sets out the rules and the kaupapa (reason/basic intent) behind them)

•  Appendix X. Customary Tenure of Land (this 60 page chapter is a useful compilation of observations on Mäori custom from early European observers through to Firth, Kawharu and Metge. It also looks at land tenure in the Pacific generally.)

Other courts & tribunals

The Valuer-General v Mangatu Incorporation & Others

CA 219/96. Court of Appeal. 16 September 1997. Richardson P, Gault, Thomas, Keith, Tipping JJ

This appeal arose from the valuation for rating purposes of some 73,000 hectares of Mäori freehold land under the Valuation of Land Act 1951. The land was valued at some $40m without taking into account its status as Mäori freehold land. That valuation was successfully appealed by the owners in the High Court ([1996] 2 NZLR 683 and see Mäori LR July 1996 p5, & April 1995 p6), prompting this appeal by the Valuer-General.

The statutory scheme for valuation

 The key issue was whether the constraints on alienability of Mäori freehold land under Te Ture Whenua Mäori Act 1993 are to be taken into account in arriving at land value under the Valuation of Land Act 1951. Three critical features of the statutory scheme for valuation decided the issue:

•  Valuation is of “the owner’s estate or interest” not of the “pure fee simple” (a decision in Gollan v Randwick Municipal Council [1961] AC 82 dealing with valuation of the fee simple only could therefore be distinguished).

•  Valuation is made on the statutory premise that the owner will sell their estate or interest in the land, which envisages a notional sale by a willing but not anxious seller to a hypothetically willing but not anxious buyer. In this scenario, practical difficulties in obtaining agreement from individual owners etc in the case of Mäori trusts and incorporations are not to be taken into account.

•  The land value is the sum which the owner’s estate might be expected to realise if offered for sale on reasonable terms and the purchaser is a person of reasonable prudence properly informed of all the relevant facts.

Effect of Ture Whenua Mäori Act 1993

This Act “imposes very significant restraints on the sale of Mäori freehold land, particularly sale to a purchaser who would also seek to change its status from Mäori freehold to general land. Parliament could not have expressed the policy more clearly. Drawing on the Treaty of Waitangi and the special significance of land to Mäori people, the 1993 Act reflects as the primary objective to be applied throughout the legislation and by the Mäori Land Court the retention of Mäori land by Mäori and the use, development and control of Mäori land by Mäori. The machinery provisions allowing for alienation of land are directed and restricted to that end. Preferred classes of alienees have priority. Significant conditions and restrictions limit free alienability. There is no question of majority decisions of owners necessarily carrying the day. Any agreement of the owners is subject to the contingency that the Mäori Land Court may in the exercise of its powers and responsibilities refuse to confirm the alienation or to change the status of the land.”

Further, s152(1)(e), which requires the land court to take into account the relationship of the parties when assessing the adequacy of consideration, seems to make it implicit that in some circumstances alienation within preferred classes may be for less consideration than would otherwise be regarded as adequate.

The Preamble, and ss2 & 17 give the land court the primary objective of promoting the retention of Mäori land by the owners. Confirmation of alienations may be refused if inconsistent with the objects of the Act (s154). The decision of the Mäori Appellate Court in Re Cleave (1995) 3 NZ Conv 192, 245 that a change of status could be refused even where it was sought by a sole Mäori owner, is consistent with the statutory scheme.

The decision in Thomas v Valuer-General [1918] NZLR 164 can be distinguished because quite different statutory provisions applied to that case, which involved the power of a Mäori land board to sell land with the consent of the owners.

While no-one can be absolutely excluded as a possible purchaser of Mäori freehold land, the 1993 Act imposes a ‘significant barrier’ on alienation. Anyone outside the preferred class of alienees would face ‘serious legal restraints’ in obtaining confirmation. Both a purchaser within the preferred class of alienees and one from without would recognise that a change of status to general land would be difficult to achieve following the decision in Re Cleave. Accordingly, Valuation NZ had erred in law in its approach.

Guidelines for valuing Mäori freehold land

The valuation to apply in each case is a question of fact. There was insufficient material before the court for it to makes its own assessment. A valuation prepared on the basis of the Mäori population of the area was “inherently flawed” (this produced a discount of 47%. In the High Court a flat discount of 30% was suggested, and rejected). Land value must be determined on a case by case basis. The effect of the restrictions on alienability will be influenced by factors such as:

•  nature and size of the property

•  historical connection of owners with the land

•  membership of the preferred classes of alienees and the resources available to fund the purchase

•  statutory role of the land court in relation to the property

•  prospect of obtaining confirmation from the land court for an outside purchaser.

The decision does not mean that the land in issue must bear a particular rating burden. “It is always open for a rating authority to exercise the various choices as to rating systems, differentials and charges under the Rating Powers Act 1988 to arrive at what in its judgment is the appropriate relative incidence of rates on properties within a district.”

[Ed: Mäori complaints about rates began as early as 1871. A petition from Mäori ratepayers in 1877 asked that road boards not be established in a district because “the Maoris are not able to pay their rates, and the consequence will be that they will have to sell their lands, and impoverish their descendants.”(AJHR 1877 I3 p21) Many thousands of acres of Mäori land has been lost to rates since, in the last century and well into this one.

The decision makes perfect sense in terms of the considerable restrictions on the alienation of Mäori freehold land. It is a matter which lending institutions have understood for some time.

In recent decades, councils have had to write off millions of dollars in uncollectable arrears on Mäori freehold land. Some have reached sensible accommodations with Mäori owners where land has no prospect of making an economic return. While this decision might immediately relieve the burden on some properties, the reliance by councils on simple land value is decreasing and some are now experimenting with methods such as differential rating systems.]

Wellington District Legal Services Committee v Pauline Eunice Tangiora

CA 33/97. Court of Appeal. 10 September 1997. Richardson P, Gault, Thomas, Keith, Blanchard JJ

Pauline Tangiora and others lodged a communication with the Human Rights Committee (set up under the International Covenant on Civil and Political Rights) claiming that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 violates their rights under the covenant. Legal aid was sought, and was refused by the Wellington District Legal Services Committee. The High Court found that the Human Rights Committee is a “judicial authority” within s19(1)(e) Legal Services Act 1991 and issued a declaration that the refusal was unlawful and invalid (Tangiora v Wellington District Legal Services Committee(1996) 3 HRNZ 267, BHRC 582, [1997] NZAR 118 and Mäori LR Dec 1996/Jan 1997 p5).  The Wellington District Legal Services Committee appealed that decision.

Held: the appeal should be allowed. The central issue was whether, in carrying out its function of receiving and considering communications from individuals who claim to be victims of a violation by a state party of rights set out in the covenant, the Human Rights Committee is “an administrative tribunal or judicial authority” within the 1991 Act. The majority concluded that the committee could not be characterised in any general sense as a judicial authority. It is not a court, tribunal or commission. The procedure set out in the First Optional Protocol to the covenant is not that expected of a judicial body or tribunal. Furthermore, the committee has no binding powers but merely forwards its “view” on any individual communication to the state party in question.

The statutory context and history of s19(1) indicates that it is concerned with bodies established within the New Zealand legal system. Accordingly, the phrase “any administrative tribunal or judicial authority” plainly does not include the Human Right Committee.

While the Court of Appeal has previously commented on the status of the Human Rights Committee (in particular Tavita v Minister of Immigration [1994] 2 NZLR 257, 260 where it was said that the committee is “in substance a judicial body of high standing”), those statements were not concerned with the particular issue of statutory interpretation involved in this case.

In a separate judgment, Thomas J agreed with the majority on its interpretation of s19(1) but declined to reach a concluded view on the nature of the Human Rights Committee. He suggested that, by reaching a ‘view’, the committee is making a definitive and final ruling on a claim and exercising a judicial or quasi-judicial function which may be sufficient to clothe it with the mantle of a “judicial authority”.

[Ed: this judgment is of general interest for its consideration of the way in which international standards and treaties may be taken into account by the legislature and the courts, and for its comments on the nature and powers of the Human Rights Committee (these aspects not reported on in detail here). The decision was not concerned with the status of any conclusions or ‘views’ the committee might come to on a communication (including the one in issue here). The majority judgment emphasised that such ‘views’ will “not doubt” have an “important relevance” to a state’s assessment of how well it is performing its obligations under international law (R v Goodwin (No 2) [1993] 2 NZLR 390, 393 was noted).

The judgment also notes that legal aid for claimants before the Waitangi Tribunal was specifically provided for in 1988 after the Legal Aid Appeal Authority expressed doubts about whether a body without powers of decision could be characterised as an administrative tribunal or judicial authority (LAA 11/87, 6 NZAR 443 and Treaty of Waitangi (State Enterprises) Act 1988 s15.]

Ngätiwai Trust Board v New Zealand Historic Places Trust (Pouhere Taonga) & Green & Attorney-General

HC No. 3/97. High Court Auckland. 24 July 1997. Greig J

The Planning Tribunal (now Environment Court) had dismissed an appeal brought by the Ngätiwai Trust Board against the Historic Places Trust which had granted authority to a private landowner to destroy or modify certain archaeological sites on Ngunguru Sandspit ([1996] NZRMA 222). The appeal was rejected on two grounds: the trust board had no status to appeal because it was not a person ‘directly affected’ by the decision of the Historic Places Trust under s20(1) Historic Places Act 1993 (HPA 1993); and the Historic Places Trust had struck an appropriate balance between the public interest (shared by tangata whenua) in the historical and cultural heritage values of those archaeological sites and the private interests of the landowner. The Ngätiwai Trust Board now appealed that decision.  The Attorney-General was granted leave to intervene on questions of public policy in interpreting s20, namely that there was a public interest in ensuring that representative structures enable Mäori to protect and advocate their collective rights and interests.

Held: the appeal should be dismissed.

Standing and the Ngatiwai Trust Board

The Planning Tribunal found that while the HPA 1993 contemplated that tangata whenua would generally be persons likely to be affected by its decisions, depending on the particular circumstances of each case, and the Ngätiwai Trust Board, as a separate and artificial body established under the Charitable Trusts Act 1957 was not, as such a body, directly affected by the tribunal decision.

The appellants now argued that a body representing tangata whenua and comprised of members of that iwi or hapu ought to be entitled to the same consideration and value as the members themselves. The Attorney-General submitted that a narrow approach to the interpretation of ‘directly affected’ was not appropriate. Rather, the approach should be consistent with the principles of the Treaty of Waitangi which are implied into the HPA 1993 by s4 Conservation Act 1987 (the HPA 1993 is one of the statutes listed in the 1st Schedule, and s4, which states that the Conservation Act is to be interpreted and administered to give effect to the principles of the Treaty, applies to 1st Schedule Acts—see Ngäi Tahu Mäori Trust Board v D-G of Conservation [1995] 3 NZLR 553).

However; there is no specific reference to the treaty in the HPA 1993, and indeed, there was a legislative intent to exclude a specific treaty clause (an amendment in Parliament to include reference to the treaty was defeated). The Ngäi Tahu case was concerned with the administration of an Act listed in the 1st Schedule to the Conservation Act, which was not the issue here, and the Court of Appeal there noted that a case by case approach is required. In any event, there is no need for specific words to import a general duty to act in good faith, fairly, reasonably and honourably towards Mäori and their iwi and hapu under the treaty, a duty which ‘no doubt’ has universal application.

The use of the phrase “interest in the proceedings greater than the public generally” has been considered in the context of appeal provisions of the Resource Management Act 1991 (s274—although recently amended to allow appeals from any person representing some relevant aspect of the public interest). Appeals under the HPA 1993 are heard by the Environment Court and some principles of resource management in the 1991 Act, particularly as they relate to Mäori interests, are not dissimilar. In Purification Technologies Ltd v Taupo District Council [1995] NZRMA 197 the phrase was held to exclude appearances from, among others,  those promoting the “objects of an association” or upholding the “values which it was formed to promote”. However construing a phrase directly from another statute has its dangers. The words ‘directly affected’ are simply understood and must be applied to the particular circumstances in each case. To restrict the meaning to those with some legal interest in land or a site would highlight European notions and ignore the special associations of Mäori with their lands and sites.

Mäori people linked to a site by ancestry may well claim to be directly affected. “If the plan was to destroy the tomb and the grave of one’s grandparents, to raze their grave sites and scatter their bones, the children and the grandchildren would, in ordinary parlance, be entitled to consider themselves directly affected.” Waahi tapu are defined in the HPA 1993 as places sacred to Mäori in a traditional, spiritual, religious ritual or mythological sense.

It was not disputed that the properly identified tangata whenua in respect of Ngunguru Sandspit are entitled to claim to be directly affected. Tangata whenua ought to be entitled to choose some representative, whether individual or individual natural persons, or some organisation, corporate or incorporate, to represent them and to act for them as the conduit of their interest as those directly affected. It will be a question in each case whether there is an adequate mandate or authority and whether those who have given that mandate are truly directly affected in the particular circumstances of the case. The Planning Tribunal had taken too narrow a view in stating the principles to be applied.

Mandate of the Ngätiwai Trust Board

There was no evidence before the court as to any resolutions or authorities which might have been given to the Ngätiwai Trust Board to clothe it with any authority in the matter.  It was therefore impossible for the court to say that the Ngätiwai Trust Board is the authorised representative of those who can claim to be directly affected in the matter.

Consideration of Mäori values

The Planning Tribunal had stated that it was required to recognise the relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga in terms of s4(2)(c) HPA 1993 in the appeal, but that it was primarily required to have regard to the purpose and principle of the Act in making its determination. There was no specific reference to Mäori values either in the principles or purpose of the Act. The trust board now contended that this was a purely literal interpretation and failed to construe the subsection in the context of the Act and in a properly fair, large and liberal manner. The Attorney-General argued that, reading the Act as a whole, Mäori values could be treated as one of its principles.

However, looking at the clear intent of the legislation, it would be impossible to treat the matters of Mäori cultural heritage as matters of principle without in effect redrafting s4. The intention not to include Mäori values as a distinct principle was plain. The Planning Tribunal had therefore come to the correct decision on this aspect, although “[t]here may be little distinction in reality whether these matters are recognised as a principle or in another way”.

In addition, the Planning Tribunal did clearly and carefully recognise and consider the matters of Mäori culture and tradition before coming to a decision in conformity with that of the Historic Places Trust.

Minhinnick v Watercare Services Ltd

HC 86/97. High Court Auckland. 3 September 1997. Salmon J

This was an appeal from a refusal of the Environment Court to grant an interim enforcement order to halt all works on a sewer line across the Matukuturua Stonefields in Manukau City (See Mäori LR May 1997).

Held: the key issue was whether the works were offensive or objectionable to such an extent that they are likely to have an adverse effect on the environment (s17 and s314(a)(ii) Resource Management Act 1991 (RMA 1991)). The High Court will only intervene if the Environment Court has applied the wrong legal test, come to a conclusion on no evidence or an unreasonable decision on the evidence, taken into account irrelevant matters or failed to take into account relevant matters.

It was accepted that the stonefields are waahi tapu, and that there had been careful consultation with tangata whenua over the route and method of construction of the pipeline. The relevant provisions of the RMA 1991 are s6(e) (relationship of Mäori with … waahi tapu), s7(e) (particular regard to protection of heritage values of sites),and s8. Section 6(e) was most relied upon by the appellants and is a ‘direct indicator’ that the protection of waahi tapu is an important goal in achieving the purpose of the Act and is a matter of national importance.

As to preliminary issues:

•  Section 17 RMA 1991 applies to activities the subject of a planning designation;

•  The power to issue enforcement orders is discretionary;

•  The applicants had standing to bring the application for an enforcement order.

Approach of Environment Court

The Environment Court had adopted the approach in Zdrahal v Wellington City Council [1995] 1 NZLR 700 (concerning a swastika painted on a house), and found that, given the consultation with Mäori and strict conditions on the manner of construction of the pipeline, a reasonable ordinary person representative of the community at large, “rather than of a particular iwi or other section of the community”, would conclude that, while regrettable, there was nothing offensive or objectionable as to have an adverse effect on the environment.

Zdrahal indicates that the test of whether something is objectionable must be an objective one. However that case did not concern a matter of particular importance to Mäori, and that was noted by the judge in Zdrahal. It was possible that something could be offensive to a section of the community, which the rest of the community did not find offensive, but would respect the view of that section of the community which did find it offensive.

Section 6(e) is a community recognition of the importance of waahi tapu and together with ss7(e), 8 and 5 provides a ‘strong indication’ that ss17 and 314 are concerned in this case with matters that are offensive or objectionable to Mäori specifically. Not every activity involving waahi tapu will be offensive or objectionable. But the passage of sewage across waahi tapu was obviously viewed as such in this case by Mäori.

Accordingly, the Environment Court had misdirected itself by referring only to the members of the community at large. There must be an objective consideration of the importance of the cultural elements involved. A proposal affecting a waahi tapu area must be of greater concern to members of the Mäori community than to non-Mäori. It will usually be sufficient for s17 if a proposal is offensive or objectionable to a “reasonable Mäori person”, because the rest of the community would respect that attitude. Section 6(e) indicates the weight to be given to the protection of waahi tapu when considering if a proposal affecting it is objectively offensive or objectionable.

The mere fact of consultation and even a Mäori blessing for the work does make what is otherwise offensive less so. The fact that consultation and hearings to gain planning permissions for the pipeline route occurred under legislation prior to the RMA 1991 gives them less weight in deciding if they have made unobjectionable that which was previously objectionable.  The RMA 1991 obviously places increased emphasis on Mäori values.

Consultation

There was some dispute among Mäori groups as to who held a mandate for consultation purposes. The council had however made genuine efforts to consult in this case. As to whether the Environment Court should avoid making findings on the standing of different groups and their rights as tangata whenua, the Environment Court can, under s30 Te Ture Whenua Mäori Act 1993, request the Mäori Land Court to supply advice on the appropriate representatives of Mäori for the purpose of the Environment Court proceedings (under s37/1993 the land court may also grant leave to any person to “make an application to the Court for the exercise of its jurisdiction”). A Mäori Land Court Judge can also be appointed an alternate Environment Court judge (s250/1993).

Right of Veto

There was no right of veto in the appellant as “tuturu tangata mo nga whenua” of the stonefields. Section 8 RMA 1991 (persons required to take into account principles of the Treaty of Waitangi), does not give any individual the right to veto a proposal.

Overall, an error of law had occurred, and the matter should be referred back to the Environment Court for a reconsideration.

[Ed: in a decision in July, Watercare Services Ltd v Attorney-General of NZ; NZ Historic Places Trust (M687/97 High Court Auckland 8 July 1997 Giles J) Watercare Services successfully applied for a declaration that they held a valid and subsisting authorisation to modify the stonefields for the sewer pipeline work. An application by iwi to be joined in that action was declined on the basis that it raised matters outside the scope of those proceedings.]

Taipari & Others v Pouhere Taonga (New Zealand Historic Places Trust) and Kruithof

A102/97. Environment Court. 27 August 1997. Bollard J, Dr AH Hackett, IG McIntyre

A property owner commenced an intensive housing development on his land. A resource consent had been obtained for the work. There was no objection from local Mäori, who were aware of the work, but had not been notified of the application for the consent, despite the council having information that the area might be of interest to local Mäori. After local Mäori raised concerns, an officer of the Historic Places Trust completed a report on the property, indicating that there were several middens on it, and an authority was granted under s14 Historic Places Act 1993 (HPA 1993) to destroy part of a midden, subject to conditions requiring tangata whenua to be consulted about the removal and disposition of the midden remains and the conservation of any taonga or Mäori artefacts which might be discovered. That decision gave rise to the present appeal from members of the local Ngati Maru iwi.

Held: the council should have consulted with local Mäori about the original resource consent application, but this appeal was entirely focused on the decision under the HPA 1993.

There was no question that the appellants here were persons ‘directly affected’ for the purposes of an appeal under s20 HPA 1993.

The middens were associated with a former pa site in the vicinity and the appellants believed that interference with the midden would have an effect on the wairua or spiritual values of the whole vicinity.

The midden area sought to be destroyed had little archaeological merit, having been extensively disturbed by local activities over many years. The limited impact its destruction would have on the integrity of archaeological sites in the vicinity had also been considered before the authority to destroy was given. Such consideration of the effects beyond the immediate site was appropriate in terms of the legislation (s11 HPA1993).

The Act contemplates destruction of sites in certain cases.

•  Following the decision in Ngätiwai Trust Board v NZ Historic Places Trust [1996] NZRMA 222 (since unsuccessfully appealed—see above), the relationship of Mäori to their culture and traditions (s4(2)(c)) is not a ‘principle’ of the HPA 1993 to be specifically considered on an appeal under s20. However one principle of the Act is that “all relevant cultural values” be taken into account (s4(2)(b)), and the requirement to have regard to the purpose of the Act invokes s4(2)(c) in any event. An overly technical approach to the meaning and emphasis to be placed on the provisions is not appropriate.

•  The Act contemplates that removing archaeological materials after careful recording may still fulfil the principles of the Act.

•  The conditions imposed in the authority to destroy were an appropriate recognition of the principles of the Act.

•  The earthworks were lawful and necessary to the building development (whether protection of a site would prevent lawful activities is a consideration on appeal (s20(6)(c)). The site was waterlogged and potentially dangerous in its present unfinished state and refilling the site to protect the midden might damage the archaeological remains in any event.

•  The persons directly affected by the trust decision to issue the authority were the land owner and the appellants, as tangata whenua with a direct spiritual relationship with the site based in historical and cultural grounds, in as much as the site once formed part of a pa occupied by ancestors of the appellants. (In Ngätiwai it was held that tangata whenua could have an interest in “any remains of their ancestors” which might be uncovered by works—that interpretation should be treated cautiously—and was not appropriate in this case anyway). In addition, the appellants were mentioned in the authority to destroy as the persons to supervise the removal and conservation of any taonga or artefacts.

•  Other matters can be considered by the court on appeal, and here the financial and personal stress on the landowner was relevant. The appellant had known about the work on the property for some time before he had made his concerns known.

On balance, the appeal should be dismissed.

[ed: the court here relied on Ngätiwai—which was upheld on appeal in the High Court—see above.]

Parliament

Waikato Raupatu Claims Settlement Act Commencement Order 1997

1997/169. 25 August 1997

This order bring s26(2) of the Waikato Raupatu Claims Settlement Act 1995 into force on the 28 August 1997. That subsection deems the Waitangi Tribunal to have made a final recommendation that the whole of the Onewhero forest land be returned to Mäori ownership, in this case the land holding trustee in the Waikato settlement, the Waikato Raupatu Lands Trust. The forest remains subject to an existing Crown forestry licence. The practical effect is that the Crown is required to return the land, which it did in a recent formal ceremony.

Resource Management Amendment Bill (No 3)

141-2. Report of Planning and Development Select Committee

The committee noted Mäori concerns on this lengthy amendment to the Resource Management Act 1991 (RMA 1991) in the following areas:

Marine Farming

The Bill would repeal the Marine Farming Act 1971 and “grandparent” existing marine farming licenses and leases into the RMA 1991 and Fisheries Act 1996. Several submitters expressed concern that marine farming permits allocate valuable areas of coastal space which are assets which could be used for treaty settlements. The committee noted that grandparenting will not increase the area covered by marine farms, but bringing all marine farming under the RMA 1991 will make them all subject to the requirement that treaty principles be taken into account in decision-making (s8 RMA 1991. The 1971 Act does not mention the treaty or Mäori values).

The Treaty of Waitangi Fisheries Commission is seeking a fundamental review of aquaculture, and that is presently being undertaken by the Ministry of Fisheries.

Heritage Protection

Part VIII of the RMA 1991 sets out the process for obtaining heritage orders. These could potentially be used to protect large areas of water, although this was not anticipated in the drafting of those provisions. The bill proposes to exclude water bodies (including wetlands) from the range of places that a heritage order can be placed over, with the aim of better reflecting the original intention of the RMA 1991. Te Runanga o Ngäti Pikiao and Ngätiwai Trust Board were concerned that the proposed amendment would restrict the ability of iwi to become heritage protection authorities for the management of water bodies which are taonga of spiritual significance. The committee acknowledged that “Mäori as kaitiaki may see the heritage order process as a way of gaining direct management over resources of importance to them.”

Several Mäori submitters also objected to a proposed amendment that where a heritage authority is a corporate body, the relevant territorial authority, rather than the heritage authority itself, would decide if a requirement for a heritage order should be granted or refused. It was argued this would undermine the ability of iwi bodies corporate to directly manage or seek the protection of their own heritage.  The majority of the committee recommend that the provisions be adopted unchanged.

Definition of Kaitiakitanga

A proposed new definition would clarify that kaitiakitanga is exercised by the tangata whenua of an area. The provision would read: “’Kaitiakitanga’ means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Mäori in relation to natural and physical resources and includes the ethic of stewardship.” Responding to submissions that people other than Mäori had stewardship responsibilities, the committee recommended the inclusion of a further provision which will provide that local authorities and others must have particular regard “the ethic of stewardship”.

Waitutu Block Settlement Bill

217-2. Report of Mäori Affairs Select Committee

This bill, affects 2171 hectares of forested Mäori land, close to Fiordland National Park (see Mäori LR Sept 1996 p7). It puts into effect a deed of settlement and deed of covenant between the Crown and the Mäori owners providing for a Mäori incorporation to continue to own the land (originally granted under the South Island Landless Mäori Act 1906) but giving cutting rights for timber to the Crown, which would manage this important ecological area in perpetuity under the National Parks Act 1980. The Mäori owners would retain certain rights to use their land. The main submitters were environmental groups with concerns about the Crown’s ability to manage the Waitutu block as a national park while allowing the Waitutu Incorporation to continue some activities on the land.

Environmental Impact

With regard to concerns about the incorporations’ prerogative to build additional “accommodation huts” on the block, the committee noted that the incorporation is subject to the RMA 1991, whose requirements provide adequate safeguards for the assessment of environmental impacts.

Public Consultation

Consultation provisions agreed by the parties to the deed, which require the views of the incorporation to be properly considered on matters, would not prevent the Crown from discharging its responsibilities under the legislation or the deed.

Te Ture Whenua Mäori Act 1993/ Mäori Incorporations Constitution Regulations 1994

One submitter questioned the right of the incorporation to enter into the deed of covenant, arguing that it had not carried out the correct legal procedure in obtaining consent from shareholders.  A majority of the committee held the view that the incorporation had followed the correct legal procedures in Te Ture Whenua Mäori Act 1993 and the Mäori Incorporations Constitution Regulations and the committee of management’s constitution.

Right of refusal

The committee recommended that the Crown’s right of first refusal in the deed of covenant should be incorporated into the body of the bill. The bill would provide that should the incorporation decide to sell or lease the block, the Crown has a right of first refusal, and any change in the underlying ownership will not impact on the management of the area as if it were a national park by the Crown.

Taxation

The incorporation would have to make its own case to the Inland Revenue Department about the nature of compensation paid by the Crown to the incorporation for its agreement to forego its timber cutting rights on the block.

Speeches & Press Releases

Multiple-owned Land Development Committee

Minister of Mäori Affairs. Press release 9 September 1997

The Minister of Mäori Affairs has announced the members of this new committee, promised in the Coalition Agreement. The committee will provide independent advice on policy issues including Mäori land fragmentation, the identification of Mäori land use options and financing Mäori land development. It will provide input to the upcoming review of Te Ture Whenua Mäori Act 1993.

The members, June McCabe, Campbell Dewes, Tina Ngatai, John Kahukiwa, Robin Cooper, Hirini Clarke, are all actively involved in Mäori business.