November 1997 Contents

CONTENTS

Mäori Land Court & Appellate Court

No cases this month

Waitangi Tribunal

Memorandum on confidential evidence

Other Courts and Tribunals

Court of Appeal—the Watercare appeal

High Court—application to prevent the allocation of pre-settlement fisheries assets

High Court—leave to appeal on Mäori representation & values issues under the
Historic Places Act

High Court—Muaupoko sea-fishing rights

District Court—customary taking of shellfish

Parliament

Mäori Reserved Land Amendment Bill

Tutaepatu Lagoon Vesting Bill

Primary Producer Boards Reform Bill

Other

Ngäi Tahu settlement (part 2)

Mäori land information on the internet

 

Waitangi Tribunal

Memorandum as to confidentiality of evidence

Wai 262 document # 2.69. Kearney J

This memorandum was in response to confidentiality issues raised in the indigenous flora and fauna claim Wai 262. Claimants were concerned about the distribution of briefs of evidence of kaumätua witnesses and about access to audio tapes of their presentations, where that evidence was of a confidential or tapu nature. At the hearing the issue remained unresolved, and some witnesses withdrew evidence because they could not obtain suitable Crown assurances about confidentiality, while other evidence which has been given is being held as confidential by the tribunal until these issues are resolved.

The tribunal quoted a 1992 practice note that: “Where evidence is given which a party wishes to remain confidential ( for example, evidence of waahi tapu) application should be made to the Presiding Officer who, after consulting with parties, may limit those who may view the evidence to counsel only or counsel and other selected persons.”

The tribunal also expressed concern about the effect confidentiality arrangements might have on its ability to report properly on the claim, and the ability of third parties to raise important issues. The tribunal invited counsel to ‘seriously consider’ the high level of confidentiality which is being sought in this claim.

[Ed: Waitangi Tribunal procedures for dealing with confidential evidence have not to date been a serious concern, as most claims are concerned with Crown actions rather than the customs of the iwi or hapü bringing the claim. The Australian experience could be useful here. The Native Title Tribunal which has operated in the Northern Territory since 1976 hears extensive evidence of indigenous custom, since such custom is the basis of claims under that jurisdiction. That tribunal has well developed procedures for dealing with the confidential evidence regularly placed before it.]

Other courts & tribunals

Watercare Services Ltd v Nganeko Minhinnick

CA 221/97. Court of Appeal. 17 November 1997. Keith, Tipping, Williams JJ

This was an appeal and cross-appeal of the High Court decision overturning the Environment Court’s refusal to grant an interim enforcement order to halt all works on a sewer line across the Matukuturua Stonefields in Manukau City (see Mäori LR September 1997). The High Court ruled that the Environment Court had misdirected itself in law in applying a reasonable person test to determine whether the works were offensive or objectionable to such an extent that they were likely to have an adverse effect on the environment (ss 17 and 314(a)(ii) Resource Management Act 1991). It also ruled that the Treaty of Waitangi (s8 RMA 1991) did not give Mrs Minhinnick a right of veto in respect of the works. Both decisions were appealed.

Held: the appeal regarding the enforcement order should be allowed. The correct test as to whether an activity on a site claimed to be waahi tapu is offensive or objectionable is an objective test by reference to members of the community at large, and not to a reasonable Mäori person representative of the Mäori community at large. The appeal regarding the right of veto should be dismissed as s8 in its reference to the principles of the Treaty does not give any individual the right to veto any proposal.

Watercare argued that, as the requiring authority responsible for the designation, it is empowered by s176(1)(a) to do “anything that is in accordance with the designation”. This authority applies notwithstanding anything to the contrary in the district plan and regardless of any resource consent. Therefore Watercare’s entitlement was not subject to enforcement order procedures.

The Court of Appeal ruled that s176(1)(a) did give Watercare clear authority to do what it proposed. It is not subject to the enforcement order regime and the application to the Environment Court for the enforcement order should have been dismissed. If a member of the public is dissatisfied, there is a right of appeal to the Environment Court in the designation process, whereby that court may cancel or modify the designation if it thinks the designation requires that treatment.

Although not finding it necessary to decide, the Court of Appeal commented on the question as to whether something is objectionable. It found that the necessary inquiry involves four steps:

•  Whether the assertion of the applicant seeking the enforcement order that the subject matter is noxious, dangerous, offensive or objectionable is an assertion honestly made;

•  If so, whether in the opinion of the Court the subject matter is or is likely to be noxious, dangerous, offensive or objectionable;

•  If so, whether in the opinion of the Court any noxious, dangerous, offensive or objectionable aspect found to exist is of such an extent that it is likely to have an adverse effect on the environment.

•  If so, whether in all the circumstances the Court’s discretion should be exercised in favour of making the enforcement order sought or otherwise.

The Court must weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole. Any Mäori dimension which arises will be important but not decisive even if the subject matter is seen as involving Mäori issues. Other matters may in the end be found to be more cogent when the court decides whether the subject matter is offensive or objectionable under s314. Accordingly, while the subject matter involving waahi tapu was the focus of the inquiry, it did not justify the narrower approach which the High Court took. The Environment Court in substance correctly directed itself in law when forming its opinion under s314(1)(a).

Further, the Court of Appeal found it was unable to accept the approach taken in the High Court that no account whatever was to be taken of any process of consultation, designation or process of consideration of alternatives in deciding whether the stated activity was offensive or objectionable under s314(1)(a). This approach cannot be reconciled with the Act and its fundamental purposes. The designation is in fact decisive, and consideration of alternatives and consultation must be relevant to whether something is objectionable.

Te Waka Hi Ika O Te Arawa, Te Runanganui O Te Upoko O Te Ika Association (Inc) & Ors v Treaty of Waitangi Fisheries Commission

CP395/93 & Others. High Court Auckland. 30 October 1997. Anderson J

This hearing concerned an application made by Te Waka Hi Ika O Te Arawa, representing Te Arawa coastal marae in the Bay of Plenty, and Te Runanganui O Te Upoko O Te Ika Association, representing urban Mäori, for an order prohibiting the commission from reporting to the Minister in respect of the disposition of pre settlement Mäori fisheries assets. The order was sought pursuant to s8 of the Judicature Amendment Act 1972 which provides interim relief in cases involving the exercise of statutory powers if, in the opinion of the court, it is necessary to make such an order for the purpose of preserving the position of the applicant.

The applicants were concerned that a report could be submitted to the Minister and implemented within 30 days before questions referred back from the Privy Council which were awaiting determination by the High Court could be answered. These questions relate to what constitutes an iwi and whether allocation must only be to iwi.

Held: an order was not necessary at this stage.

The commission argued that it was a statutory body with statutory functions and an obligation to carry out those functions. An important function was to report to the Minister on the allocation scheme. There was no need for an order to be made against the commission, and if such an order were to be made, it might be construed, unfairly, as a judicial recognition of some impropriety on the part of the commission. Further, the commission had given an undertaking to the court that no scheme which might be reported to the Minister could lawfully be implemented in less than 44 days.

The court noted that the issue before it was whether it was necessary to make an order against the commission to ensure that rights as claimed by the applicants were not compromised. An order was not necessary because the parties had at least 44 days notice before a scheme could be implemented, and this was ample time to bring the matter before a judge, the commissioners were people of deserved mana amongst Mäori and it is “inconceivable that the Commission would seek to slip something past when matters of such importance to Mäori are before the Court”. Only if the commission intended to report to the Minister before the questions before the court were answered, would it be necessary to make an order. If an order had to be sought it was almost inevitable that it would be made and that all actual and reasonable costs incurred in seeking the order would be awarded against the commission.

The applicants also asked that pre-hearing costs be paid by the commission, arguing by analogy to trust cases. While to some extent apt, the fiduciary obligations of the commission are wider than those which affect trust law. “It is well arguable that the Commission is constrained by much broader considerations of equity than those which bind the conscience of trustees of private trust funds.” It was clear that the applicants came before the court with limited funds, some in fact in debt, and that the transparency of the process required that the issues be argued appropriately for each side and only the commission really had the funds to do this. The court expressed the provisional view that the litigants should have recourse to commission funds for the purposes at least of answering the questions of law raised by the litigation.

[Ed: the court set a date for hearing the substantive issues in March 1998. In litigation in Wellington which raises very similar issues in relation to the allocation of fish quota to iwi (CP 171/97—Ryder v Ors vs TOKM & Ors, before Gallen J), applications as to joinder of parties, removal of the proceedings to Auckland, discovery and representation have been heard and orders issued. These will be reviewed in the next issue.]

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

HC 3/97. High Court Auckland. 15 October 1997. Hammond J

This was an application under s144(2) of the Summary Proceedings Act 1957 for leave to appeal a decision of Grieg J to the Court of Appeal (Ngatiwai Trust Board v New Zealand Historic Places Trust (Pouhere Taonga) & Green & Attorney-General (1997) see Mäori LR September 1997 p4). The matter concerned approval given by the New Zealand Historic Places Trust under the Historic Places Act 1993 to the second respondent, Mr Green, to carry out various developments on his property on the Ngunguru Sandspit, Northland, that would involved destroying or modifying part of seven archaeological sites on the sandspit. Ngätiwai Trust Board (NTB) appealed that ruling to the Environment Court, which held that the board did not have standing to appeal under s20 Historic Places Act 1993 as a person “directly affected” by the decision of the Historic Places Trust.

In the High Court, Greig J considered the standing of NTB before the Environment Court and the claim that the court had misinterpreted s4(2)(c)—the purposes and principles section—of the Historic Places Act 1993. He held that tangata whenua were entitled to claim to be directly affected by the decisions of the Historic Places Trust, were entitled to choose some representative (whether an individual, an organisation, a corporate or un-incorporate body) and that such representative should not be debarred from being treated as directly affected. However, Grieg J found that due to the absence of evidence, it was impossible to say that NTB was entitled to claim it was the authorised representative of those who claimed to be directly affected in the matter. Further, s4(2)(c) relating to the relationship of Mäori and their cultural concerns, did not amount to a “principle” of the Act. No determination was made on the question of whether the Historic Places Act, listed in the First Schedule of the Conservation Act 1987, must be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi in accordance with s4 of the Conservation Act.

The applicant now wished to advance these questions to the Court of Appeal, submitting these were questions of law which by reason of their general or public importance, ought to be advanced to the Court of Appeal for its decision.

Held: applications for appeal under s144 are closely limited and are by leave only and not as of right (per Richardson J in Autocrat Sanyo Limited v Collector of Customs [1985] 2 NZLR 707 at 723). Before leave can be given it is necessary that there be a question involved which in the opinion of the court “by reason of its general or public importance or for any other reason” ought to be submitted to the court for decision. Application declined.

Runanga ki Muaupoko v The Treaty of Waitangi Fisheries Commission & Attorney-General

CP162/97. High Court Wellington. 17 November 1997. Ellis J

By the Horowhenua Block Act 1856 and s18 Reserves and Other Lands Disposal Act 1956 Mäori were declared owners of the Horowhenua Lake and its outlet to the sea, the Hokio stream. Both areas were vested in trustees, with the Mäori owners retaining their fishing rights. The plaintiffs, on behalf of many of the Mäori owners, claimed that these provisions encompassed rights to commercial sea fisheries and that those rights continued, despite s9 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which provides that all claims by Mäori in respect of commercial fishing whether arising in statute or otherwise are “finally settled”.

Held: the detailed definition of the fishery in the 1956 Act and its predecessors extends only to the mouth of the Hokio stream and covers inland fisheries ending where that stream meets the sea. This was the position taken in the unreported judgments Regional Fisheries Officer v Tukapua (M33/75 Palmerston North Registry Cooke J, 13 June 1975) and Regional Fisheries Officer v Williams (M116/78 Palmerston North Registry O’Regan J, 12 December 1978). Therefore commercial sea fisheries are not involved.

As to the effect of s9 of the 1992 Act, this did not have to be decided in this case. However, while that “hastily drafted and enacted” provision could be read as terminating the fishing rights of the Muaupoko formerly protected under the 1956 Act, the court would need a “very great deal of convincing” that such an implied repeal had taken place.

[Ed: this judgment raises the question of whether there are other statutory provisions protecting local Mäori fishing interests which might remain in force despite s9 of the 1992 Act.]

Lyell v Hikuwai

CRN 6029004747 & 6029004748. November 1997. District Court Kaikohe. Everitt J

The defendant was a Northland fisherman and a Mäori. On the last day of the scallop fishing season he dredged from an area about 10km from shore some 1800kgs of scallops. He landed about 600kgs at a local wharf, the amount permitted per day under his fishing permit, and  the remainder were still aboard his vessel when it was boarded and searched by fisheries officers. He claimed the excess scallops were taken pursuant to Mäori customary fishing rights for the purposes of hui and tangi. No formal permission had been obtained from local kaumätua to take the scallops.

Held: there was a legislative ‘void’ in this area. As a result of the Mäori fisheries litigation, settlements and associated legislation, the Treaty of Waitangi Fisheries Claims Settlement Act 1992 (s10(d)), Mäori non-commercial fishing rights are to have no legal effect and provide no defence in any criminal proceedings except to the extent that they are provided for in regulations under the Fisheries Act 1983. The Fisheries Act was amended by the 1992 Act to provide that regulations could be made providing for customary food gathering to the extent that it was non-commercial. However no regulations had yet been agreed between Mäori and the Crown.

The relevant provision was therefore Regulation 27 Fisheries (Amateur Fishing Regulations) 1986 which provides that restrictions on amateur fishing shall not apply where taking is for the purposes of a hui, tangi, or other non-commercial use approved by the Director General of Fisheries. The D-G is able to delegate this power of approval to Mäori committees and other like bodies. The D-G had laid down conditions under r27, but Mäori had objected that they were ultra vires for lack of consultation and they were withdrawn.

The resulting ‘void’ was being filled by the imposition in tribal areas by local Mäori of rules for the gathering of kaimoana for the purposes under r27. These rules differed from area to area and were objected to by some on the grounds of custom. The concept of kaitiakitanga or guardianship and how it should be applied was not universally accepted by Mäori in the far North.

The onus of proof was on the defendant since shellfish present on a registered fishing vessel are deemed to be taken for purposes of sale (s102 Fisheries Act 1983) and the only defence is a ‘no-fault’ defence that there was no intent to commit the offence and where anything was required to be done all reasonable steps were taken to do whatever had to be done (s105(2)/1983). The standard of proof is the balance of probabilities.

The prosecution relied on Police v Maxwell Dick & Others (unreported oral decision of 31 October 1996) where it was held that even though a Mäori fishing right existed, permission from kaumätua was required before it could be exercised, and since this was not obtained, the defence under s105(2)/1983 was not satisfied.

While certain actions of the defendant raised suspicion (the taking was on the last day of the season, only some of the take was publicly unloaded, the large number taken), his explanation that he was asked by cellphone to collect kaimoana for 2 forthcoming hui (a tangi and an unveiling) could reasonably be true and therefore on the balance of probabilities he did not intend to commit the offence.

As to the need to get permission from kaumätua, there were differing views and differing systems of customary control in operation in the region. There was also some distinction made between inshore and offshore gathering, with some systems having protocols reaching out to 200 kms, while others were restricted to inshore fishing. The defendant argued that there was no custom giving authority to issue permits pursuant to customary protocols and there was no protocol other than a requirement for agreement to taking from inshore areas. New sources of kaimoana were not traditional and therefore not covered by any local custom. He argued that his whakapapa (genealogy) and mana gave him the right to decide where to take fish under customary rights in offshore locations. He was supported in this by a prominent and well respected local Mäori fisherman who maintained that Mäori fishermen alone have the necessary spiritual association with the sea and authority to regulate themselves and that it is not in accordance with custom to place such authority in the hands of land based people. Customary law puts the authority in the hands of the fishermen and it is from them that education about customary fishing rights flows. Nor was there a customary limit on what can be taken for a hui. It was up to the individual Mäori fisherman to assess the requirements and weigh up the responsibilities to present and future generations and the sea. In the face of this evidence, on the balance of probabilities the defendant was not under the authority of any protocol requiring specific permission for offshore taking and believed the assessment and right lay with himself. Accordingly, Police v Dick could be distinguished on the facts.

In the evolving situation left by the legislative ‘void’ there will be areas not under any customary scheme, and some fishermen clearly believe they may take their authority from their own background and spiritual links with the sea. It was accepted by all however that a management system imposed by legislation for the benefit of all is inevitable in the future. This did not leave a situation of ‘open slather’. The requirement for kaumätua permission in Police v Dick will normally apply and it will only be in relatively rare cases such as this one that prosecutions will be unsuccessful. The frustration that no regulations are in force was noted. All responsible witnesses had advocated the passing of regulations, notwithstanding the reasonable interim efforts by various Mäori organisations and tribes.

[Ed: the case demonstrates, if nothing else, that a cellphone can be very useful in ensuring that hui are abundantly supplied with seafood. It does not appear that the court inquired into the nature of the tangi and unveiling which were to take place which required such a substantial quantity of shellfish.

In another customary fisheries matter, Taranaki Fish & Game v McRitchie (see Mäori LR February 1997), an application for adjournment of a case stated from the District Court decision was declined, and the case stated will be heard in the High Court on 8 December 1997.]

Parliament

Mäori Reserved Land Amendment Bill

No 218-2 reported from the Justice and Law Reform Committee

This bill was first introduced in August 1996.

Background

The historical background to the current lease situation for these lands is explained in the Waitangi Tribunal’s Taranaki and Ngäi Tahu land reports (see The Taranaki Report. Kaupapa Tuatahi 1996 chapter 9). Mäori owners were essentially forced by legislation and circumstances into perpetual leases highly advantageous to Pakeha farmers, with extended rent review periods, where the rent was calculated at a low fixed percentage of the unimproved value of the land. Ten commissions have examined issues surrounding these leases between 1878 and 1993 and 3 specialist working groups have produced reports relating to this proposed amendment (see Mäori LR August 1996 p7 and February 1997 p8). The significant submissions considered and amendments recommended were as follows:

Changes to the rent review provisions

Rent reviews are currently fixed by legislation to occur every 21 years. Three years after the bill is introduced, leases will over the following 4 years be moved to a system providing for review every 7 years. The committee recommended no change to this scheme, and rejected submissions that the market should determine the review period to apply after the first 7 year review. It also rejected submissions that older residential lessees on fixed pension incomes who purchased leased property in the expectation of 21 year reviews should be exempt from the legislation.

Reviews should be based on the “fair annual rent” of the unimproved value of the land, as this is the least confusing wording, and the committee noted that “fair” relates to the land and not the circumstances of the parties. While “unimproved value” is no longer a common valuation measure, the basic concept remains sound, and any other basis for valuation would produce uncertainties and further debate which would slow the passage of the legislation.

The committee noted that Cabinet directed in 1994 that  the Ministers of Police, Justice, Education and Conservation were to direct their departments to negotiate market rents and end perpetual rights of renewal, but that that process has not yet been completed.

Ending the perpetual leases—the first right of refusal

The bill ends the perpetual nature of the leases by requiring lessees to give a first right of refusal to the Mäori owners whenever they dispose of the lease interest, whether by sale, gift, will, intestacy or any other means. The exception is where a current lessee assigns the land to a spouse or child—in effect giving a one generation extension to the perpetual right of renewal. The committee agreed that in some cases, with a young lessee and a very young child, this could mean a delay of over 100 years before the lease came up for purchase, but current sales trends for the leases indicated such cases would be exceptional. Consequently, a submission that children should be left out of this exception was rejected. The committee noted that an earlier proposal of a 42 year ceiling for the perpetual term on all leases had not found its way into the bill. It also rejected a submission from lessees that assignments to children and spouses of all future lessees should be exempt from the requirement to offer a first right of refusal.

The requirement to offer a first right of refusal is avoided where leases are sold at a public auction. The committee rejected submissions of the Mäori owners that this exemption be removed because of the possibility of prices at auctions being ‘manipulated’, but recommended adding provisions extending the period of notice of the auction to be given to the Mäori owners, and requiring a first right of refusal to be given where a sale is concluded within 2 working days after an auction—an event known as a ‘post-auction sale’.

The committee also recommended the bill be amended to exempt sharemilking agreements and renewals of existing subleases from the first right of refusal provisions.

The bill provides a corresponding right of first refusal to lessees where the Mäori owners wish to freehold leased land. The committee noted some submissions expressing concern that this first right of refusal of the lessee will be subject to Te Ture Whenua Mäori Act 1993 (requiring a prior offer to preferred classes of alienees), but felt these issues could be addressed in the forthcoming review of the 1993 Act.

Compensation for the changes

The committee recommended significant changes in the scheme of compensation from the original bill as introduced. The bill had provided compensation for lessees and owners be payable for a 21 year period from the bill’s commencement. This was to compensate the lessees for the move to a fair market rent and more frequent rent reviews, and to compensate the Mäori lessors for the delay in making these changes. The committee extended this period to 50 years for both lessees and lessors, as it had been calculated that compensation for a 50 year period would provide a lump sum close to the compensation calculated to perpetuity.

The bill had been criticized for failing to allow parties access to the courts on compensation issues (a potential breach of s27(3) NZ Bill of Rights Act 1990 had been pointed to). The committee considered that the extension of the compensation to 50 years dealt to most of those concerns, however it recommended the bill be amended to make it clear that claims to the Waitangi Tribunal and the solatium payments are separate from the 50 year compensation.

No compensation is payable to the Crown as a lessee. The committee recommended extending this clause to include Crown entities such as Crown Research Institutes, reasoning that “Crown entities have roles and functions more akin to the Crown in the narrow sense, and generally do not have commercial profitability objectives.” State-owned enterprises should receive compensation however.

While it is clear that the compensation is not a liability of the Crown and therefore interest should not be paid on it as a matter of principle, the committee recommended the bill provide that the Crown pay interest as an incentive for the Crown to act quickly to pay over the compensation. The committee was advised that the Crown expects to pay the compensation within 3 months of the commencement of the Act on 1 January 1998.

The committee recommended that the bill provide for compensation for the incidental expenses (valuations, legal fees etc) to lessors and lessees in moving to the new leasing regime. This ‘solatium’ compensation of $4 million is to be split equally between lessors and lessees. The Crown and Crown entities are excluded from this compensation also.

The committee also recommended the establishment of a $6 million fund for lessors to assist in funding the buy back of the leaseholds as first rights of refusal arise under the legislation. In summary, the compensation now proposed is:

LessorsLessees
50 year compensation$21 million$35 million
Solatium$2 million$2 million
Purchase fund$6 million

Other issues

Contiguous land:

At the insistence of lessees, the bill requires that where there are contiguous or adjoining leasehold properties which form an economic unit, the first right of refusal of the lessor must apply to both—to protect the economic position of the lessee. The committee rejected submissions either to expand this provision to properties such as farms divided by public roads, or to remove it entirely.

As for single economic enterprises on contiguous Mäori reserved leasehold and general freehold land (a supermarket in Palmerston North is in this position), which makes the Mäori owners with their first right of refusal the only realistic purchaser of the entire enterprise, the committee thought concerns in such cases were exaggerated and could be worked out without special provision being made in the legislation.

Sale proposals:

As a protection for the lessees, the bill allows lessees to put together “sale proposals” or packages involving leasehold land and associated economic assets to satisfy the first right of refusal. The committee felt this could become onerous on the Mäori lessors if inflated assets or unrelated assets were included in the package, and recommended the bill be amended to provide that terms and conditions of sale cannot relate to personal property other than the lessee’s interest in the lease.

Waitangi Tribunal:

The issue of compensation for historic losses under the old leasing regime is a matter entirely separate from this legislation and a matter for the Waitangi Tribunal and the claims process. The committee noted the NZ Law Society submission that the provisions of the bill not be subject to inquiry by the Waitangi Tribunal (however it recommended no change to exclude tribunal consideration of the final Act).

The committee noted the submission of one of the committee members that the bill might breach the principle of s6(4A) Treaty of Waitangi Act 1975 that private land not be affected by Mäori grievances, but adopted the view of the Minister of Mäori Affairs that the leases were created by Parliament and could be altered by Parliament.

Alternative approaches to compensation:

A call for the government to purchase the leases on a willing buyer/willing seller basis was rejected by the committee, as was a suggestion that the entire compensation process be dealt with using the compensation formula in the Public Works Act 1981.

The committee noted that the bill should be passed quickly as valuations already made of the current unimproved value of the land for the purpose of compensation payments under the Act were becoming dated.

Bringing in other leases:

The committee noted with concern a provision which would bring further leases under the Act as they were discovered simply by Order in Council. This provision effectively gave the Executive the power to override Parliament. It recommended that for 6 months after the commencement of the Act  leases could be added in this way, but after this they would be added by way of the annual Mäori Purposes Bill.

Tax:

New provisions are to be added making the compensation payments largely exempt from income tax and GST.

Existing Mäori incorporations:

The committee noted submissions challenging the continuance of the ‘owner’ of the Taranaki leased lands, the Parininihi ki Waitotara Incorporation. This was not a matter within the scope of the bill however.

[Ed: under the bill, all parties continue to be free to negotiate their own arrangements. As an indication of the heat generated by this issue, an allegation was made during the select committee hearings that 2 members of the select committee owned leases affected by the bill. No evidence was forthcoming and the Speaker ruled that the members had no financial interest. The committee report warns witnesses against abusing the privilege attached to giving evidence before select committees.]

Ngäi Tahu (Tutaepatu Lagoon Vesting) Bill

No. 71-1

This bill concerns the Tutaepatu Lagoon, a coastal wetland situated north of Kaiapoi in the South Island. In 1995 the Waitangi Tribunal made its report on certain ancillary claims by Ngäi Tahu, one of which concerned the loss of the Tutaepatu Lagoon, of importance to Ngäi Tahu as kainga nohoanga, mahinga kai and urupa. On 14 June 1996, the Crown and Ngäi Tahu signed a Deed of “On Account” Settlement which included an agreement to vest the Tutaepatu Lagoon in Ngäi Tahu and create a new reserve comprising land in 3 existing recreation reserves, but not including the Tutaepatu Lagoon. The bill gives effect to the Deed of On Account Settlement and comes into force on 1 April 1988.

The bill provides that:

•  The reservation of Tutaepatu Lagoon as a reserve under the Reserves Act 1977 and as a wildlife refuge under the Wildlife Act 1953 is revoked;

•  The vesting of Tutaepatu Lagoon by way of gift in Ngäi Tahu in fee simple, free of any encumbrances existing before the commencement of the Act;

•  That Te Runanga o Ngäi Tahu intends the future management of Tutaepatu Lagoon will be undertaken in accordance with objectives laid out in a schedule to the Act (Schedule 3);

•  Ngäi Tahu must grant to the Crown a walkway over the south-eastern corner of the Tutaepatu Lagoon. The walkway will be subject to the New Zealand Walkways Act 1990 and the Runanga is to be the controlling authority of the walkway under that Act.

•  Ngäi Tahu must establish within 3 months a trust, the object of which is the management and administration of the new reserve.

•  The Waimakariri District Council and Te Runanga must agree within 3 months on the boundaries of the a new recreation reserve, which will be declared a reserve for the purposes of the Reserves Act 1977 and vested in the trustees.

•  Tutaepatu Lagoon will be included in the management plan for the new recreation reserve.

In terms of management of the lagoon, Schedule 3 provides:

•  The lagoon/wetlands will be appropriately restored and maintained for the benefit of present and future generations;

•  Appropriate public access to the lagoons/wetlands will be allowed except for those times when, after notification in the local newspaper, a rähui is applied;

•  Scientific research and observation of the flora and fauna will be actively encouraged by Te Runanga, with a particular emphasis on Ngäi Tahu’s philosophy on sustainable management;

•  The North Canterbury Fish and Game Council will have the opportunity to contribute its expertise;

•  There will be no taking of native and introduced birds or their eggs which would be inconsistent with the role of the lagoon in the management and maintenance of waterfowl and other birds in North Canterbury. Dogs will be prohibited.

Producer Board Acts Reform Bill

No.207-2. Reported from the Primary Production Committee

This bill proposes significant changes to the composition of the Meat Board. The committee noted there was a need to recognise the importance of Mäori in agriculture, particularly the disadvantages they face in producer board elections as a result of their involvement through trusts or incorporations, and recommend a change in the voting system for the election of board directors to address this issue.

The bill gives the Meat Board responsibility for establishing and operating mechanisms for allocating access to country-specific tariff quota markets, eg the European Union sheepmarket. FoMA was opposed to meat company executives, as Meat Board members, being involved in establishing and operating allocation mechanisms, feeling this was potentially a conflict of interest. The committee disagreed however.

The bill gives the Meat Board the power to establish quality requirements where there is a reasonable likelihood of significant detriment to one or more sectors of the industry if the powers were not used and where the New Zealand Meat Industry Association (MIA) has agreed to the Meat Board using its powers. The Meat Board and others considered that the quality requirement provisions were necessary. However, FoMA and others argued that quality is a commercial matter and should be left to the judgment of the parties that carry the business risk. Removing quality requirement powers from the Meat Board would ensure that the incentives facing farmers and processors more fully correspond with those dictated by the marketplace.

The issue of opting out of producer board involvement arose in connection with the Wool Board but with implications for the Meat and Pork Industry Boards also. The FoMA wanted a voluntary exit mechanism from the Wool Board for Mäori wool producers, enabling a transfer to an organisation of their choice such as the Mäori Export Council which would then collect the relevant wool levy.

The Committee rejected options involving radically new roles. The bill provides for the affairs of each board to be managed by a board of directors and prescribes membership of each board of directors. However, it specifies the boards’ composition only and the electoral process and other details are to be defined in regulations. For the Meat Board, FoMA recommended three directors should be appointed representing Mäori interests. For the Wool Board, FoMA sought three directors on the Board. To appoint directors, under the bill each board is to prepare lists from which they select persons to recommend to the Minister for appointment. The Meat and Wool Boards must take particular care to include in the list of possible appointees suitable people who are qualified by relevant knowledge and experience to represent to each board the aims, aspirations and interests of Mäori involved in the production industry through the collective ownership of Mäori land.

The committee considered that the most appropriate way of addressing sectoral interests is through changing the way that board directors are elected by producers. At present the Meat Board’s directors elections are on the basis of one farm-one vote. One of the disadvantages of this system is that large farming units, including the collective land ownership of Mäori trusts and incorporations, do not get votes comparable to their size. The committee proposed that a voting system weighted by livestock numbers be included in the bill for the election of board directors by producers.

Crown Settlement Offer to Ngäi Tahu

Part 2. This is the second of 3 articles looking at the detail of this settlement.

Settlement procedure

The actual procedure for settlement has been carefully devised. After consultation hui, Ngäi Tahu beneficiaries over 18 voted on the settlement proposal. That vote was independently counted by auditors who reported the result to the negotiating group, who in turn reported to Te Runanga o Ngäi Tahu (TRONT) and briefed members on the vote and the settlement offer. The 18 member TRONT then had the final responsibility to vote to accept the Crown offer.

Settlement legislation will now be introduced to Parliament. The Settlement Act will contain a provision that it shall commence upon an Order-in-Council. Ngäi Tahu say this order will only be made when TRONT confirms that the bill as passed has not been amended to the detriment of Ngäi Tahu interests. A comment made in the select committee report on the Mäori Reserved Lands Amendment Bill is apposite:

“An empowering provision which enables legislation to be amended by regulation is popularly known as a “Henry VIII clause”. Such clauses are generally viewed as undesireable in that they provide the Executive with the power to override Parliament. However, it is accepted that there may be occasions when compelling reasons will justify the use of such clauses.” (p xxviii)

Deferred Selection Process (DSP)

Within 12 months of the settlement legislation being passed, Ngäi Tahu must determine whether to purchase up to $250 million worth of Crown assets set aside in the DSP “pool”. Ngäi Tahu has already pre-selected 3 high country stations, lands already in the land bank established in 1991, and 8 other properties for purchase. The other assets are 55 commercial properties, 54 Landcorp farms, 6 commercial forests and 27 areas under Crown forestry licences (the land and not the trees can be purchased under these licences). The DSP pool contains $400 million worth of assets. Ngäi Tahu will need to raise money above its $170 million settlement sum to reach its $250 million option.

Right of First Refusal

This right exists for all time over a defined range of Crown assets including land held by departments such as Education, Defence, Corrections, the NZ Fire Service and Transit NZ, Crown interests in several airports, and assets not purchased from the DSP pool. Memorials will be placed on the titles of the affected properties warning of the right of first refusal to Ngäi Tahu. Sale or leases over 50 years (including rights of renewal) triggers the right.

Relativity clause

The settlement contains mathematical formulas ensuring that if the present value of all Treaty settlements between 1994 and 2044 exceeds $1,000 million,  Ngäi Tahu will be given a cash payment to ensure relativity.

High Country Stations

The Elfin Bay, Greenstone and Routeburn stations are to be vested in Ngäi Tahu (purchased under the DSP mechanism). The mountain tops in the stations are to be gifted to the nation. 90% of the areas will be leased in perpetuity to the Department of Conservation for a peppercorn rental, with a Ngäi Tahu veto on any commercial developments on the leased area. Ngäi Tahu will farm the remaining 10%, under covenants to provide continued public access for recreation activities.

Arahura Valley

A historic reserve will be created in the upper valley catchment area and vested in the tribe, to be administered by the Mawhera Incorporation, with public access preserved.

Rarotoka Island

The freehold of this island will be returned at no cost to Ngäi Tahu with a leaseback of a lighthouse area to the Marine Safety Authority and provision for Ngäi Tahu to take over management of fisheries around the island in future.

Whenua Hou (Codfish) Island

The settlement provides for acknowledgement of a Ngäi Tahu role in co-managing the island through various instruments, including a deed of recognition and statutory acknowledgement (see below).

Crown Tïtï Islands

The freehold of these islands will be returned at no cost to Ngäi Tahu, followed by the establishment of a management board of Rakiura Mäori which will take over management from the Department of Conservation. It will have twin management objectives of a nature reserve and a place for customary harvest of titi and Crown funding assistance to meet those objectives.

Wahi Taonga

41 sacred sites, including special sites, food gathering areas and 3 lakebeds will be returned to Ngäi Tahu, in most cases by transfer of the freehold with public access rights retained.

For a number of sites and areas, the settlement provides for the recognition to Ngäi Tahu mana by a variety of legal instruments which are  collectively described as a "mana recognition" regime. The imstruments are as follows:

Statutory acknowledgement

The Crown will ‘acknowledge’ in statute as a legal fact a statement of the cultural, spiritual, historic and/or traditional association of Ngäi Tahu with a “statutory area”. To give an idea of the flavour of these statements, the statement for Aoraki/Mt Cook ends:

“To Ngäi Tahu, Aoraki represents the most sacred of ancestors, from whom Ngäi Tahu descend and who provides the iwi with its sense of communal identity, solidarity, and purpose.  It follows that the ancestor embodied in the mountain remains the physical manifestation of Aoraki, the link between the supernatural and the natural world.  The tapu associated with Aoraki is a significant dimension of the tribal value, and is the source of the power over life and death which the mountain possesses.”

The legal effect of such a statutory acknowledgment will be:

•  To require consent authorities to forward summaries of relevant resource consent applications to TRONT;

•  To require consent authorities, the Historic Places Trust and the Environment Court to have regard to the statutory acknowledgments in relation to the statutory areas—this will include local authorities noting the affected areas on plans;

•  To enable TRONT and any member of Ngäi Tahu to cite statutory acknowledgments as evidence of the association of Ngäi Tahu to the statutory areas - while not being conclusive of Ngäi Tahu associations with the area;

•  To empower ministers responsible for management of the statutory areas to enter into "deeds of recognition".

Deeds of recognition

The existence of the statutory acknowledgment will allow the Crown to enter into deeds of recognition. By way of example, the deed for Aoraki/Mt Cook repeats the above statement of cultural association, then provides that, by reason of the Crown’s acknowledgement of the statement, TRONT must be consulted and “particular regard” had to its views concerning the preparation of all management plans for the area under the Conservation and National Parks Acts and the preparation of all non-statutory plans, strategies or programmes for the protection and management of the area. This includes in the case of Aoraki/Mt Cook all programmes to identify and protect indigenous plants and wildlife and eradicate introduced species, and all programmes to manage concessions, visitor numbers, search and rescue activities and the location and construction of any structures, huts, signs, tracks etc. The Crown will provide TRONT with all relevant information to inform its views, including information about all concession applications—but excluding commercially sensitive material.

Statutory adviser

The settlement legislation will also provide for the appointment of TRONT as a “statutory adviser” to the Minister of Conservation in relation to certain areas. This will require the Minister of Conservation to have “particular regard” to TRONT views when considering draft management plans or making written recommendations to the New Zealand Conservation Authority about an area.

Topuni:

Among other meanings, “topuni” refers to a type of dogskin cloak and the associated custom of placing such a cloak over an object or individual so as to confer the rangatiratanga of the cloak’s owner upon those things.  Ngäi Tahu have applied the concept in the settlement to 14 specific places where an ‘overlay’ of Ngäi Tahu values is placed upon a piece of land owned or managed by the Crown, while not overriding the powers and obligations of the Crown to manage that land.

After the particular Ngäi Tahu values affecting the area are spelt out, Ngäi Tahu and the Crown can agree upon specific principles designed to ensure that the Minister of Conservation will not by any action harm or diminish the Ngäi Tahu values, and these agreed specific principles will be notified in the New Zealand Gazette.

The New Zealand Conservation Authority and conservation boards will have to consult with Ngäi Tahu and have “particular regard” to the Ngäi Tahu values and the specific principles which have been gazetted in making any policies or management plans.

The Director-General of Conservation will be empowered by the settlement legislation to take action at his discretion to uphold the gazetted principles, including recommending the making of bylaws and regulations. Ngäi Tahu will be consulted about proposed actions of the D-G, and, significantly, will have the option of requesting the D-G to take no action in respect of the principles if they so choose. The settlement legislation will enable by-laws, regulations, or Orders-in-Council to be made to implement these management strategies, which may include conditions on public use of the areas.

By way of example, the specific principles upholding Ngäi Tahu values in relation to Aoraki/Mt Cook are; the encouragement of respect for Ngäi Tahu’s association with Aoraki; the accurate portrayal of Ngäi Tahu’s association with Aoraki; and the recognition of Ngäi Tahu’s relationship with wahi tapu, including archaeological sites.

The actions to be taken by the D-G are:

(a) Encouragement of respect of Ngäi Tahu’s association with Aoraki:

•  Staff, conservation board members, concessionaires and the public will be provided with information about the Ngäi Tahu values and the existence of the topuni over Aoraki;

•  Educational material will be made available to climbers and all climbing guides explaining that to Ngäi Tahu standing on the very top of the mountain denigrates its tapu status;

•  A review will be undertaken of conditions to be applied generally to new concessions;

•  The removal of all rubbish and wastes from Aoraki will be encouraged;

•  The Department of Conservation will ensure, as far as reasonably practicable, that it disposes of waste, particularly human waste, in a way that minimises risk of contamination of waterways;

•  TRONT will be consulted about the siting and design of new huts or other buildings, and particular regard will be had to their views.

(b) Accurate portrayal of Ngäi Tahu’s association with Aoraki:

•  The department will ensure, as far as reasonably practicable, that Ngäi Tahu’s association with Aoraki is accurately portrayed in all of its new public information and interpretative material;

•  The department will consult with TRONT in the provision of new public information or interpretative material, and as far as reasonably practicable will only use Ngäi Tahu’s cultural material with the consent of TRONT.

(c) Recognition of Ngäi Tahu’s relationship with wahi tapu, including archaeological sites:

•  Significant earthworks and disturbances of soil and/or vegetation will be avoided wherever possible;

•  Where significant earthworks and disturbances of soil and/or vegetation cannot be avoided, TRONT will be consulted and particular regard will be had to its relevant policies.

[Ed: Since the October issue the settlement has been approved by ballot and Te Runanga o Ngäi Tahu and signed with the Crown. Ngäi Tahu now have their own internet site at: http://www.ngaitahu.iwi.nz.]

Mäori Land Information Base internet site

http://www.maoriland.govt.nz

This site contains maps of existing Mäori land holdings throughout the country and users have the ability to search for land blocks by name and obtain a basic map of a block. It is an extremely useful tool for locating basic information about particular Mäori land.

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