December-January 1998 Contents

Mäori Land Court & Appellate Court

Mäori Appellate Court—Partition for the purposes of sale—Kairakau 2C5B Block

Mäori Appellate Court—succession—evidence of an agreement to waive interests—Mangaroa Y Block

Mäori Land Court—Title to the foreshore and seabed—Malborough Sounds preliminary decision

Waitangi Tribunal

Procedure for receiving confidential evidence—the flora and fauna claim Wai 262

Other Courts and Tribunals

High Court—Matukuturua Stonefields sewage pipeline—further application for interim orders

High Court—Fisheries settlement litigation—representation orders for urban Mäori—interim costs award

Court of Appeal—Public works offer back—Ohinewai Coalcorp lands

Court of Appeal —sentencing of the America’s Cup offender

Environment Court—cell phone mast on Mt Te Aroha

Parliament

Mäori Reserved Land Amendment Act 1997

Crown Minerals Amendment (no 2) 1997—mining in national parks

Lake Ellesmere eel fishery regulations

Waikare Inlet taiapure-local fishery

Taonga Mäori Protection Bill—interim select committee report

Fisheries (Remedial Issues) Amendment Bill 1997—temporary closure provisions

Other

Ngäi Tahu Deed of Settlement (part 3)

Draft national and South Island customary fisheries regulations

Multilateral Agreement on Investment

 

 

Mäori Land Court & Appellate Court

Part Kairakau 2C5B Block & Brown

12 Takitimu ACMB 1. 16 December 1997. CJ Durie, Hingston, Marumaru, Savage, Spencer JJ

Background

The appellants wanted to partition 5.8558 hectares of Mäori freehold land in which they had a 61.61% shareholding. This had been obtained via Kapiti Farm Ltd which had leased the land until 1988. Remaining shares in the land were held by descendants of the family which owned the land when the block was first created by partition order in 1919.

Since 1988 there had been disputes over the use of the land. In 1994 the appellants came onto the title and produced a plan of partition, under which the appellants occupied 1.7 hectares. The 4.1 hectares chosen by the Mäori part-owners had since had buildings erected on it, was used for their holidays and was intended for uses associated with a marae. The appellants allowed grazing on their 1.7 hectares pending a formal partition, after which, they intended to sell their interest to meet a mortgage debt. The land was one of a few remaining parcels of Mäori land in the district, had ancestral significance, and was a base from which seafood had commonly been harvested. The Mäori part-owners did not want any part of the land taken out of Mäori freehold title.

The legislation

The Te Ture Whenua Mäori 1993 Act provides that before making a partition order the Mäori Land Court must:

•  Consider the “principal purpose of Part XIV of the Act (dealing with “title reconstruction and improvement”) which is to “facilitate the use and occupation by the owners of land owned by Mäori” by rationalising land-holdings and providing better access (s286/1993);

•  Be satisfied that the owners of the land have had notice of the application and that there is a “sufficient degree of support” among the owners for the application, having regard to the “nature and importance” of the matter (s288(2)(a)-(b)/1993);

•  The court may not make the order unless it “is necessary to facilitate the effective operation, development, and utilisation of the land” (s288(4)/1993).

History of the litigation

An earlier application by Kapiti Farm Ltd for partition had failed due to issues concerning the standing of a company to complete the partition. In 1995 the Mäori Land Court turned down a fresh application under the 1993 Act, citing lack of a sufficient degree of support for the application —no-one of the shareholders apart from the applicants supported the application. On appeal, the Mäori Appellate Court directed that the lower court reconsider the matter in light of its findings that “sufficient support” must include all owners, not just owners other than the applicants, and that undue weight had been given to s2/1993 (interpretation of the Act generally). The lower court had re-considered the matter but once again declined the application. This proceeding was an appeal from that decision.

Majority judgment of Hingston, Marumaru, Savage JJ

Their Honours noted that in the earlier Kairakau (No1) decision (11 Takitimu ACMB 143 see Mäori LR July 1996) three separate appellate court judgments were issued, which had possibly created confusion. Comments in another appellate court decision on partition Re Karu O Te Whenua  B2B5B1 (19 Waikato Maniapoto ACMB 40 see Mäori LR August 1996) also required clarification.

•  The 1993 Act is based on the report Te Wahanga Tuatahi which emphasised retention of Mäori land for Mäori and empowerment of the MLC to achieve this. Section 2/1993 and the Preamble confirm this approach.

•  The new legislation is substantially different from the old under which partition was much more readily available. It contemplates a continuing relationship between the owner and the land.

•  Section 286/1993 does allow consideration of s2/1993 and the Preamble—it does not suggest that Part XIV is a code in itself (contrary to the view of Smith DCJ in Kairakau (No 1)). Section 286 requires the MLC to first ask: “would partition further the owners’ ability to reside upon, farm, exploit the land bearing in mind the continued relationship owner/land” contemplated in s2.

•  “Sufficient support” in s288(2)(b)/1993 includes support of all owners, including the applicants for partition (following Karu and Kairakau (No 1)). However, “sufficient support” is not obtained in every case where the applicant seeks to partition out an area equivalent only to their shareholding– as this would render the requirement of sufficient support meaningless (a contrary view was suggested by Carter J inKairakau (No 1).

•  Section 288(4)/1993 obliges the MLC to refuse partition if the development, utilisation or effective operation of the land can be obtained by any measure short of partition. “Utilisation” means a continuing relationship with the land and not a severence from it. The word should not be stretched to mean “sale” as suggested by Smith DCJ in Kairakau (No 1). “[O]ver refinement of words and phrases contained in a statute, though exciting to learned members of the legal profession and some appellate tribunals do not always assist Judges of first instance who are at the ‘coal face’ trying to make things work.”

•  Accordingly, an application to partition with the intention to sell the land once partition is achieved must automatically fail since sale is not a use or utilisation of the land and there is no continued relationship owner/land as the legislation contemplates—“… we go so far as to say that any suggestion of partition with a view to sale is a doomed application”. The lower court had not acted improperly in considering the use the applicants intended to make of the land after partition.

Judgment of Spencer J

His Honour Spencer J broadly supported the majority view and found that:

•  The words of s286/1993 do not suggest Part XIV is a code in itself, in fact the words and scheme of ss286 and s287/1993 mirror the Preamble, s2/1993 and the overall scheme of the Act.

•  The requirement in s2/1993 to retain Mäori land only “as far as possible” merely acknowledges that in some cases the MLC may exercise its powers in a way that may not result in a block of Mäori land being retained in the control of its Mäori owners eg under a lease.

•  The negative construction of s288(4)/1993 and the use of the word “necessary” means the subsection should be read, “no other way”, and not, “reasonably necessary”. By ordinary rules of statutory interpretation, since “utilisation” is used alongside operation and development, it cannot mean alienation. Even if it could, there is no way of knowing whether, after alienation, there would be effective utilisation by any new owners.

•  There was no evidence that the land could not be effectively utilised within a formalised version of the existing arrangements.

•  Partition, far from overcoming present rating problems (the Mäori owners were not paying rates), might exacerbate them by creating an additional rateable property.

•  Section 288(1)/1993 refers to matters the MLC is to have regard to when it is exercising its discretion under ss(2) and (4)—it does not require separate deliberation.

Judgment of CJ Durie

His Honour CJ Durie argued in a dissenting judgment that the appeal should be allowed. While agreeing that the 1993 Act does intend to promote Mäori ownership and control of Mäori land, in this case the other judges had interpreted it beyond its proper bounds.

•  Considering the background to the case, a division of the land appeared practically feasible.

•  The law concerning Mäori freehold land has changed significantly since Kapiti Farms Ltd and the appellants came into the title. Under the 1993 Act individuals may only sell Mäori land to prescribed owner relatives, and there must be agreement of 75% of the shares to any sale. Given this regime, the unwillingness of the Mäori part-owners to sell, and the inability of the appellants to buy the remaining shares, they could do nothing without a partition order.

•  As a matter of general law, partition is a remedy to divide people—not land—when co-owners cannot agree or the desires of one group of owners prejudice those of another (Property Law Act 1952 ss140-142). Though partition in the MLC is adjusted for the circumstances of Mäori land ownership, the same basic purpose is involved. The main difference from general partition is that all co-owners are not divided, rather, division is by groups of owners according to their support for particular views—historically sellers from non-sellers (see Re Rehuotane B2D2 (1966) 1 Tokerau ACMB 282). Also, partition in the MLC is discretionary and sale is not inevitable if partition cannot be effected.

•  There is no automatic right to partition Mäori freehold land equivalent to one’s shareholding (see Tai Whati 40-42, 1984-85 Supplement 18-129, Part Kaikoura No 4 (1992) 1 Waiariki ACMB1 andWaihi Kahakaha 1Z2B2B (1994) 14 Aotea ACMB 38). The common good is taken into account, following Mäori custom. The court can consider that a person buying Mäori land buys into a Mäori community and should not overly prejudice the legitimate expectations of that community (see Kairakai 2C5B Appeal 1990/1 Takitimu registry). This is only one factor however, and may be outweighed by disadvantages to all concerned if an applicant for partition remains as a co-owner. There is no authority for the view that persons buying into Mäori land must necessarily subscribe to the values of the Mäori community of owners, only that they should not overly prejudice the community interest.

•  Section 288(2)/1993 requiring a sufficient degree of support for partition may have been passed to respond to the complaint that partition was used in the past to compulsorily subdivide lands for farming schemes under the Department of Mäori Affairs.

•  Despite the significant changes in the 1993 Act, the basic purpose of partition remains unchanged—to improve land use and divide co-owners where that is required. The retention principle in s2/1993 is to be applied as far as possible, but does not affect the comprehension of partition as a means of severing the community of ownership—at best it places a constraint on circumstances in which partition may be granted. Part XIV probably does not constitute a separate code and s2 does fall to be considered—but in any event the inclusion or exclusion of s2 makes no real difference in this case. The same reasoning applies to s17/1993 (general objectives of MLC in applying the Act).

•  Section 286/1993, even when read with ss 2 and 17/1993, does not change the basic nature of partition but adds to it, for eg, suggesting it may be used where development rather than division among co-owners is required, eg converting a farm block to a housing block with separate allotments. Rationalisation of landholdings by division among co-owners who cannot agree on use and occupation is not ruled out.

•  The requirement for a “sufficient degree of support” must be read with “having regard to the nature and importance of the matter”. A partition among owners who cannot agree is not a major proposal like, for eg, changing farmland to residential allotments, which is a substantial change for all owners and would require a high degree of support. In cases of this nature, support from those opposing the partition can hardly be expected and is irrelevant. The importance of the matter is that it concerns the protection of minority interests in terms of numbers from alternative majority opinions (a matter the MLC is asked to consider in s17/1993). The MLC misdirected itself in counting numbers when it should have been measuring competing equities as s17 requires.

•  Section 288(4) likewise does not alter the basic purpose of partition. The subsection simply means dissatisfied co-owners can obtain partition only if that is necessary for the more effective operation, development and utilisation of the land. Partition may not be given where an owner simply wishes to sell, or make some personal gain, but should be given where there is, as here, 1) a “fundamental disagreement” about the use of the land; 2) where differing views are genuinely held; 3) where the share distribution is such that one group can effectively stymie the aspirations of the other; 4) where partition would allow effective use of the resulting land divisions. The MLC wrongly asked whether sale was a “use” of the land, when it should have asked whether the differences between the owners so affected the operation, development and utilisation of the land so as to make partition necessary, and whether use contrary to the interests of the major shareholders, should partition be denied, is ‘effective’ use.

•  Section 2/1993 does not affect this case. It refers to Mäori owners retaining land, and does not imply that where Mäori and Päkehä are joint owners, Mäori owners must have control. It would promote the Act in this case to allow the Mäori owners to retain a smaller area exclusively in their control.

•  With regard to the retention objective set out in s17/1993—no Mäori owner would have their land entitlement reduced by this partition. Partition would also assist the objectives in paragraphs 17(c), (d) and (f) by facilitating settlement of a dispute, dealing with conflicting majority and minority interests, and promoting practical solutions in the management of land.

•  Even after partition, the land would remain Mäori land and the owners would have a first right of refusal if a sale was contemplated, or at least notice of any application for a change in the status of the land to avoid the preferred owner provisions. (Cleave and Orokawa 3B Tai Tokerau Registry appeal 1995/5).

•  Section 2/1993 refers only to the retention of Mäori land by Mäori. The intention of the European owners is therefore irrelevant. It cannot mean that Mäori land owned mainly by Europeans should be retained for the benefit of Mäori as if the European owners did not exist—yet this is the direction in which the majority judgment appears to be heading.

•  Section 286/1993 refers to all owners, not just Mäori owners (while s2 refers to Mäori owners only). The majority decision that s286 requires a continuing use of land by Mäori is wrong. The 1993 Act contemplates situations where a severence of Mäori and European ownership will better enable Mäori control of part, irrespective of what European owners do with their share.

•  If a partition order were to be granted however, it should require the appellants to alert any purchasers of their interest to the intention of the Mäori owners to have marae facilities located on their land, and any purchasers should covenant that they would not object to Mäori communal facilities being established on the balance area.

[Ed: this case highlights a division among the Mäori Land Court judges in their approach to Te Ture Whenua Mäori Act 1993 and how far it intended that Mäori land remain under Mäori control. The majority hoped that this judgment would provide a clear answer to questions about partition. It is unfortunate therefore that the Chief Judge and Deputy Chief Judge disagree with the majority approach. The judgment has important implications for all non-Mäori owner/shareholders in Mäori freehold land. They may not have appreciated how significant the changes in the 1993 Act would be.]

Mangaroa Y Block

12 Takitimu Mäori Appellate Court Minute Book 69. 12 November 1997. DCJ Smith, Spencer and Isaac JJ

This was an appeal from a decision that the administrator of Mangaroa Y held the block in a fiduciary capacity and that it should be vested in a daughter of the administrator in terms of s18(1)(i) of Te Ture Whenua Mäori Act 1993. The sole owner of Mangaroa Y Block (which had been changed to General land in 1970), died intestate in 1994. An application seeking succession to the deceased’s interests and an order determining the status of Mangaroa Y to be Mäori freehold land was lodged by a person claiming to be a whangai of the deceased. On the court’s own motion it conducted an inquiry, pursuant to s 18(1)(i), into whether the deceased’s husband, as administrator, held the land as a fiduciary for the children, and found that he did. An agreement was negotiated between the husband and the applicant, but uncertainties arose as to whether any settlement had been reached. Nevertheless, the judge was satisfied an agreement had been reached, and while deciding not to traverse the arguments submitted as to the admissability or otherwise of the correspondence between the parties, elicited the terms of the agreement from the correspondence. He determined that the husband/administrator had agreed to relinquish his life interest in the land and transfer it to his daughter.

Held: The appeal should be allowed. The MLC had placed too much emphasis on the application by both counsel for an adjournment of a fixed court hearing and the suggestion that the parties had been negotiating. The inference that an agreement had been reached could not have been drawn by the court when a letter from counsel stated some difficulties were yet to be ironed out and a further draft deed of settlement had been prepared for review. There was no enforceable agreement as claimed by counsel for the applicant and there was nothing before the court from which the judge could establish the terms of any agreement. Further, the judge had declined to determine whether certain correspondence claimed to be inadmissible was in fact admissible. Establishing the terms of the purported agreement through reference to correspondence claimed to be inadmissible, without first determining that issue, was flawed. There was no evidence properly before the court that the husband had consented to vest the land in or relinquish his widowhood interest. Accordingly, in terms of s 56(1)(b)/1993, the order made by the court determining the fiduciary capacity and vesting the lands should be revoked.

In Re Malborough Sounds foreshore and seabed

22A Nelson MB 1. 22 December 1997. Hingston J

Mäori groups in the northern part of the South Island have applied to the Mäori Land Court to determine whether they had and continue to have customary rights over the foreshore (land between high and low water mark) and seabed (land below low water mark). This was an interim decision to answer whether, by the operation of common law or legislation, any rights might have been already extinguished. For the purposes of this decision it was assumed that historically there were Mäori customary rights over both the foreshore and seabed.

Foreshore

The Crown argued that the Court of Appeal decision In Re Ninety Mile Beach [1963] NZLR 461 ruled out the Mäori claim. The applicants argued that that decision could be restricted to its facts, or had been overruled. Hingston J found that in Ninety Mile Beach it was determined that:

•  The mere assumption of sovereignty by the Crown over the country did not thereby deprive the Mäori Land Court of jurisdiction to investigate title to land below high water mark.

•  Once the land court had investigated title to land with the sea as a boundary, the customary interest to the land as far as the low water mark was extinguished and replaced by Mäori ownership or forfeited to the Crown—depending on where the boundary was fixed by the land court. The reasoning behind this conclusion was not spelt out in Ninety Mile Beach, except that it was stated that any other finding would be “startling and inconvenient”.

•  The Harbours Act 1878 s147, in providing that the foreshore could only be disposed of by special Act of Parliament, effectively deprived the land court of jurisdiction to investigate customary rights in the foreshore. However, the Crown in these proceedings admitted that since the recent repeal of the successor to that section the jurisdiction to determine title has been restored to the land court.

•  To take away customary rights by implication rather than plain words would be a “serious infringement of the spirit of the Treaty of Waitangi” and amount to deprivation of rights by a “side wind”.

In light of this analysis, Hingston J found that Ninety Mile Beach should be limited to its essential finding concerning land where customary title was investigated by the land court prior to any disposition of the land. The decision should not be extended to lands purchased before the land court came into being—that is, most land in the South Island. The reasoning in Ninety Mile Beach (that any alternative result would be “startling and inconvenient”) was not sufficient that it should now extend to determine this matter which has such important consequences for Mäori. Also, such an extension of the judgment would breach the warning in the judgment itself that Mäori customary rights should not be extinguished by a “side wind”. Accordingly, depending on evidence yet to be produced, where, in early sales of lands in the Malborough Sounds, the foreshore was not expressly dealt with, customary rights might remain.

Seabed

The Mäori Land Court is able to consider the issue of Mäori interests in the seabed because the seabed is land, and, even if the common law does not recognise any customary rights to the seabed, the Ture Whenua Mäori Act 1993 requires the land court to give any land it finds to be held by Mäori in accordance with tikanga Mäori the status of Mäori customary land (s129(2)(a)).

Assuming there were Mäori customary rights in the seabed, the assumption of sovereignty in 1840 in no way affected those rights at that time. This was because the common law provided that the realm of England ended at the low water mark. Beyond that, a limited dominion over the sea was allowed by international law, but it fell short of allowing the common law to be extended over the sea. To extend the common law and vest the soil of the seabed in the Crown required express legislation.

Legislation to clarify interests in the seabed was not forthcoming until after an international convention was signed (the Geneva Convention 1958) and the passing of the Territorial Sea and Fishing Zone Act 1965 and its successor,  the Territorial Sea and Exclusive Economic Zone Act 1977.

Section 7 of the 1977 Act now provides that the bed of the territorial sea (low water mark to 12 miles out) “shall be deemed to be and always to have been vested in the Crown” subject to the grant of any estate or interest by statute or otherwise. This however goes no further than to statutorily assume sovereignty and give the Crown “a title similar to the radical title of the common law” which the Crown could not assume earlier because the common law did not recognise title in land comprising the bed of the sea. The 1965 and 1977 legislation were about “spelling out to the international community New Zealand’s territorial sea boundaries and fishing zones.” Mäori rights were not considered, and to extinguish such rights via s7 would be to extinguish by a “side wind”—a result which the Ninety Mile Beach decision warned against.

Recent cases (Mabo v Queensland [1992] 175 CLR 1, Wik People v State of Queensland [1996] 187 CLR 1, Te Runanga O Te Ika Whenua v AG [1994] 2 NZLR 20, NZMC v AG [1987] 1 NZLR 641, Faulkner v Tauranga DC [1996] 1 NZLR 357) confirm that confiscatory legislation must “clearly and unequivocally” deal with extinguishment—and compensation must be paid where there is no Mäori consent to the extinguishment.

[Ed: the Crown has known that it has a problem with its assumed title to the foreshore since at least 1872, when it prevented the Native Land Court from undertaking an investigation almost exactly the same as this one in the Thames district (a recent discussion of the history of the foreshore title problem is contained in the Waitangi Tribunal’s National Overview research report vol II chapter 13—based on work by Dr Richard Boast).

This decision convincingly steps around the Ninety Mile Beach case by pointing out that the ratio of that case is limited to areas where the land court investigated the customary title before land was ever purchased. Where the Crown or people sanctioned by the Crown purchased direct from Mäori before the land court came into existence in 1862, an application to determine Mäori interests in the foreshore may now be possible. Apart from most of the South Island, coastal areas around the old NZ Company settlements at New Plymouth, Wanganui, Wellington, and parts of Northland and Auckland may be affected.

As to the decision on the seabed. On its face, s7 of the 1977 Act uses wording commonly associated with fee simple vesting. Judge Hingston drew support from the Australian Wik judgment for the view that only a radical title had been assumed by the Crown. He says the 1965 and 1977 Acts  took for the Crown “a sovereignty title of similar import and characteristics to the radical title of the Common law”. Is this the same as radical title?

This decision is a preliminary determination. Leave to appeal to the Mäori Appellate Court has already been given by Judge Hingston. Several avenues for appeal are open to the Crown. It has already indicated a preference for a case stated to the High Court. But will that achieve any sort of finality? The reasoning on the foreshore issue would seem to be difficult to overturn. Even if there is some chance of reversing the judgment on that or the seabed issue, there is still the question of the compensation which may have to be paid for rights extinguished without consent. There is also the possibility that rights could be found to continue in existence which are not dependent on title to the underlying soil (“non-territorial”  rights).

There are strong similarities here to the uncertain situation concerning the ownership of riverbeds—another area where the Crown has historically assumed ownership rights without fully considering Mäori interests. Litigation in the 1950s and 1960s over the ownership of riverbeds (in particular the Wanganui river), has failed to lay those issues to rest. The Waitangi Tribunal in its 1993 Pouakani report urged the Crown, in the national interest,  to give “urgent attention”  to the question of ownership and use rights in rivers. It seems that similar “urgent attention” is now required for the foreshore and seabed.]

 

 

Waitangi Tribunal

Memorandum-Directions in Respect of Evidence to be Presented in the Wai 262 Claim

Wai 262. Doc # 2.85. 23 January 1998. Kearney J (Presiding Officer)

These directions follow controversy over the receipt of confidential evidence at the first hearing for this claim (see Mäori LR November 1997). If confidentiality is sought for written briefs of evidence, an application, including copies of the evidence, reasons for the application and legal argument, are to be filed 15 working days before the hearing. If the evidence is to be presented without an accompanying brief, the application must specify the nature of the evidence for which confidentiality is sought. Submissions from the Crown will be invited, and a decision made on the papers—unless a formal hearing is requested. The confidentiality given is to restrict access to the evidence to persons authorised by the tribunal.

[Ed: the people the tribunal would normally authorise to access materials ruled to be confidential are not spelt out, but presumably include legal counsel and tribunal members and researchers. The issue of how such evidence will be received or discussed at the hearings themselves (ie whether the hearing will remain open to the public), or later dealt with in the tribunal’s written report, is not covered by this direction.]

 

 

Other courts & tribunals

Minhinnick v NZ Historic Places Trust & Others

CP317/97. High Court Auckland. 28 November 1997. Laurenson J

Having failed to get an interim enforcement order from the Environment Court preventing the construction of a sewage pipeline across the Matukuturua Stonefields (see Mäori LR September 1997November 1997), the plaintiff here sought an interim order from the High Court preventing work from commencing until the substantive hearing of a judicial review action against the Historic Places Trust and others.

Held: the order should not be made because there was no real prospect of success for the review action at a substantive hearing.

•  There was no real evidence that the Historic Places Trust had acted outside its powers in granting the authority to alter the area, or that the work was continuing outside the limits of the authority given, so an argument based on abuse of power would not be made out.

•  The body undertaking the construction was acting under an old authority which had nevertheless been validly carried over in accordance with transitional provisions in the Resource Management Act 1991, so an argument that necessary consents had not been obtained would not be made out.

•  There was clear evidence that the planning designation for the work had not expired, so that argument also would be bound to fail.

In addition, the Court of Appeal had already fully considered the Mäori dimension and given it appropriate weight in its decision upholding the refusal of the Environment Court to grant an interim enforcement order.

Ryder and Others v Treaty of Waitangi Fisheries Commission and Others; Te Waka Hi Ika O Te Arawa v Treaty of Waitangi Fisheries Commission and Others

CP171/97 & CP395/93. High Court Wellington. 20 November 1997. Gallen J

This hearing concerned an application for representation orders in terms of rule 78 of the High Court Rules (“where two or more persons have the same interest in the subject-matter of a proceeding, one or more of them may …. by direction of the Court … sue or be sued in such proceeding on behalf of or for the benefit of all persons so interested”). The plaintiffs, a community worker, a solo mother and a kaumätua selected to act in a representative capacity, were concerned about proposals developed by the Treaty of Waitangi Fisheries Commission as to the allocation of pre-settlement assets and contended that those proposals were inconsistent with the provisions of the Treaty of Waitangi. The first and second plaintiffs sought representation orders directing that they may sue the defendants on behalf and/or for the benefit of all Mäori of specified categories and the third plaintiff sought an order directing that he could sue on behalf of/and or for the benefit of all Mäori in the Wellington area, irrespective of tribal affiliation. These orders would not include any Mäori who have both affiliated to at least one iwi and have made a personal election that that iwi may represent their interest in fishing matters and are acknowledged as iwi members by that iwi. A third order was also sought permitting the three plaintiffs to amend the statement of claim to plead the formal representative character in which they would sue.

Held: the application should be dismissed. As a rule of convenience, a representative suit under r78 is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent. The rule is to be interpreted liberally and the overall consideration is one of justice. These proceedings differed from ordinary cases in contract and tort in which the courts consider representative actions, being analogous to proceedings for review.

The applicants submitted that there was a strong commonality or community of interest between the plaintiffs and the categories of person defined in the application. Such submissions depended on the broad general concept that the dispute in this case, on a substantive basis, was between a distribution to existing tribal groups having their base in traditional tribal areas and the contention of the plaintiffs that the distribution ought to be such that it is available to persons whose place of residence or separation from traditional groups is such that they may not attain the benefit to which they are entitled by virtue of their Mäori descent. The applicants submitted that the granting of representation orders would give the plaintiffs status and making the plaintiffs representatives of substantial classes would restore the balance.

However, his Honour thought that the Court in the substantive proceedings in this instance would be determining legal questions that ultimately will be determined on a legal basis and those conclusions should not be influenced by the fact that one point of view is espoused by persons who are seen as not generally carrying so much weight in the community, as distinct from the other which is held by established powerful organisations traditionally accepted by society as being in a position to speak and decide for others.

A second and major concern was that the key issue in the substantive proceedings was what persons or organisations can properly speak for or represent Mäori people? To make the representation orders sought would to some extent pre-empt the decision on that key issue. That would not serve the interests of justice. Nor would the making of representation orders effectively prevent a further proliferation of cases, nor further procedural delays and escalating costs.

A further problem was that the classes of persons categorised in the plaintiffs’ application included persons already represented in the proceeding. It was apparent from the affidavits that there are persons who take a different view from the plaintiffs but who would come within the categories as defined by the plaintiffs. And again, a precise definition of categories sufficient to justify a representation order would involve decisions which must undesirably foreshadow the decision to be made in the substantive proceedings. These problems could not be avoided by simply giving a right to opt out. In realistic terms, most of the people for whom the plaintiffs had concern would have little opportunity to opt out since it was exceedingly unlikely that they would have knowledge of the right.

In conclusion, if the plaintiffs were able to establish the validity of their point of view, this would be because the point of view was valid in legal terms, not because they had the support of representational orders.

[Ed: in a further preliminary determination in the Te Waka Hi Ika O Te Arawa & Others (CP395/93 & Others) fisheries settlement proceedings, on 18 December 1997 Anderson J ordered that the Treaty of Waitangi Fisheries Commission make an advance on costs to the various plaintiffs. His Honour said that the stage had been reached where issues which must be ventilated cannot be argued without recourse to the fund which the Treaty of Waitangi Fisheries Commission holds for the benefit of all Mäori. Parties had made reference to trust analogies but the indications for recourse to the fund were greater than mere chancery concepts. While the commission has an obligation to protect its assets, the parties must have at least adequate working capital for the purpose of the preliminary question. Accordingly, interim awards were made to Te Waka Hi Ika O Te Arawa ($150,000); Urban Mäori Authority ($150,000); Te Runanganui O Te Upoko O Te Ika Association ($25,000); Tainui Waka Fisheries ($50,000); Treaty Tribes Coalition ($50,000); Te Arawa Mäori Trust Board & Muriwhenua ($50,000).

His Honour acknowledged that the monies being paid must in the end be a diminution of the fund presently held for all Mäori. The principles of restitution which must guide the distribution of the fund are not intended to support litigation but to benefit Mäori. At some stage the litigation must stop and realistic co-operation must be engaged. It was to be hoped that parties with common viewpoints would co-operate for the purposes of the litigation to reduce costs.]

Horton & Campbell (Levin Farm Settlement Trust) v Attorney-General

CA43/97. 3 December 1997. Richardson, Thomas and Williams JJ

This was an appeal about two farm properties at Ohinewai appropriated under the Public Works Act 1981 for a State-run open cast coal mine project which did not proceed (Mäori LR April 1997). The former owners were advised by Coalcorp that the property might be surplus to its requirements. A formal offer back under s40/1981 was made by Coalcorp acting for the Crown in February 1989 and negotiations commenced about valuation. In October 1989 judgment was delivered in Tainui Mäori Trust Board v AG [1989] 2 NZLR 513 in which the Court of Appeal directed that state assets not be disposed of without adequate protection for legitimate interests of affected Mäori. In light of this decision and the passing of the Crown Minerals Act 1991 and the Resource Management Act 1991 (both of which made mining activity more difficult in the absence of ownership of the overlying land), Coalcorp reviewed its requirements in relation to the Ohinewai land and considered the land was now required for mining purposes after all. Proceedings were instituted in the High Court against the Crown claiming an entitlement to have the property offered back for sale to them. The High Court considered it reasonable that Coalcorp should reconsider the Crown’s position of wanting to get out of coal mining and dismissed the case.

Held: the appeal should be allowed. While the inclusion of the Ohinewai lands in the schedule of surplus properties to the deed between the Crown and Coalcorp was not conclusive evidence that the property was no longer required for coalmining purposes or other public work for the purposes of s40/1981, once it is ascertained under s40(1)/1981 that the land is no longer required for any public work, responsibility passes to the Lands Department who is required to offer to sell the land to the former owner. There is no room for reconsideration of the earlier conclusion that the land was not required for a public work.

[Ed: this decision is noted because of its potential impact on Tainui and future claim settlements involving State-owned enterprise lands.]

Queen v Nathan

CA386/97. 15 December 1997. Richardson, Keith and Blanchard JJ

This was an appeal against the sentence imposed by the Auckland District Court on the appellant for the wilful damage of the America’s Cup in March 1997 (an earlier appeal against the conviction itself was abandoned). The sentence of two years 10 months imprisonment was to be served cumulatively with the sentence of 18 months which had been imposed on the appellant five months earlier. The appeal was made on the ground that the sentence was manifestly excessive in itself and because it was made cumulative on the existing term of imprisonment.

Held: appeal should be allowed. There was no doubt that a sentence of imprisonment had to be imposed. The Crown was correct in pointing out that the amount of damage caused was substantial, the value of the damage was large and that the offending was premeditated and aimed to destroy property which would bring public embarrassment to New Zealand. Their Honours also agreed that those reasons, along with the appellant’s earlier record, meant that an additional period of imprisonment had to be imposed. However, the extent of the additional period of imprisonment was not appropriate.

This case was similar to R v Burton [1982] 1 NZLR 602 concerning damage to property by protestors during the 1981 Springbok rugby tour, where the motivation of the offenders was held to be a mitigating feature. The underlying motivation in this case was not destruction for the sake of destruction—the appellant was demonstrating and advertising what he felt was a moral point of view. Further, the Waipareira Trust had made it clear that they would welcome the appellant into one of their programmes. While the provisions of the Criminal Justice Act 1985 did not allow the Court to impose a community based sentence, the original sentence would be quashed and a sentence of imprisonment of one year substituted, cumulative on the sentence of 18 months.

Mason-Riseborough v Matamata-Piako District Council & Telecom NZ Ltd

A143/97. 11 December 1997. Whiting J, JR Dart, RF Gapes

This was an appeal from local residents to a consent to locate a cell phone mast of 24.4 metres on the lower slopes of Mt Te Aroha, on the grounds that it would have more than minor adverse effects on the landscape. During the appeal evidence was heard from concerned local Mäori, who appeared under s274 Resource Management Act 1991 (persons with an interest greater than the public may appear and call evidence).

Held: the appeal should be allowed. First, in terms of visual amenity, the tower would compromise values mentioned in the relevant planning instruments (this aspect of the decision is not reviewed here).

In terms of Mäori concerns, the relevant planning instruments (a regional policy statement, transitional district plan, and proposed district plan) strongly upheld Mäori values in relation to the mountain. The proposed district plan (which, while not in force, is relevant to the discretion whether to allow an application for a resource consent) referred to the mountain as a “Mäori Historic Sacred Mountain”.

The obligation under s8/1991 (all persons exercising functions under the Act to take account of the principles of the Treaty of Waitangi) has given rise to 2 broad approaches in the courts with regard to consultation:

•  Obligation approach: s8 when considered in light of statements of the Court of Appeal in NZMC v AG gives rise to an obligation to consult which occurs through council officers who report to the council which in turn is obliged to take into account all relevant material placed before it.

•  No obligation approach: s8 suggests consultation is good practice, but a case by case approach is required and there is no mandatory obligation to consult on either applicants for consents or council officers (Greensill (W17/95, 6 March 1995), Tawa (A18/95 24 March 1995) and Banks (A31/95, 20 April 1995) decisions).

Section 8 does not mention consultation, but refers to Treaty principles. Court of Appeal cases and Waitangi Tribunal reports suggest a case by case approach to Treaty principles is appropriate, since it is not possible or desireable to derive from a living document a comprehensive or complete set of principles (principles “are not to be found in tablets of stone like the Ten Commandments”). Relevant principles which have been found are consultation, active protection and rangatiratanga. The question of consultation should be approached in a holistic manner, not as an end to itself, but in order to take the relevant Treaty principles into account.

Realistically, active protection (discussed in Ngäi Tahu Mäori Trust Board v DG of Conservation [1995] 3 NLZR 553) requires positive action, as well as access to adequate and high quality information to fully consider the effect of an application on Mäori interests. At times, this will oblige the person reporting to the consent authority to consult with the tangata whenua, but consultation by the applicant alone may be suitable at other times. The council, as repository of information collected when preparing a policy and/or plan, is in a position to advise applicants on the appropriate consultation to be undertaken.

In this case, since the proposal would affect a mountain referred to in plans as a “Mäori Historic Sacred Mountain” and waahi tapu, s8 with associated principles of active protection and rangatiratanga obliged the council to “initiate, facilitate, and monitor the consultation process”. On the facts, the council fell well short of its obligations since the limited consultation which did occur was initiated at a late stage by the applicants.

Prior to the lodging of the appeal, the applicant had contacted one hapu, maintained contact essentially through one person, and had not attended the one hui with the hapu where objections to the proposal were expressed. Yet planning instruments referred to multiple hapu interests affecting the mountain, and there was a previously agreed protocol between the council and Mäori for discussing resource consent applications which was not followed.

Subsequent to the lodging of the appeal there had been further consultation (which the court can take account of—Fleetwing Farms Ltd v Malborough District Council 3 ELRNZ 249 approving Ross v Planning Appeal Board [1976] 2 NZLR 206). A consultation hui had been held, but this was a full 12 months after the application for a resource consent was lodged. The mountain was viewed as a waahi tapu from the summit to the base.

This subsequent consultation was appropriate, but very late, and Treaty principles require not just consultation, but recognition of tino rangatiratanga which includes management of special resources according to Mäori cultural preferences, and active protection. Further, under s6(e)/1991 (Mäori relationship with ancestral lands to be recognised and provided for) regard should be had for the fact that the mountain was of significance as a historic landmark and boundary for 12 Hauraki tribes. Also, the council was likely to be aware that Mäori consider the conservation estate consists predominantly of Mäori land commandeered by the Crown, and local Mäori had not been consulted about the original acquisition of the land by the council.

Whether this case could be distinguished from the decision on a TV tower in TV 3 v Tainui (AP 55/97 HC Hamilton 12 September 1997 see Mäori LR October 1997), because in this case no alternative sites were available, was of limited relevance. Each case must be decided on its own facts and the existence or absence of an alternative site is not definitive of the issue under the RMA 1991. In any event, on balance, the evidence did not show that there was no real alternative to the proposed site.

While references to the importance of the opinions of tangata whenua in ss 5, 7 and 8 RMA 1991 do not amount to an exclusionary veto, they indicate relevant Mäori opinions must be seriously and objectively considered in the circumstances of each case (TV3 v Tainui and Minhinnick CA 221/97, 17 November 1997). In this case the benefit to the community of the improvement in cell phone reception (now that cellphones are an “integrated part of modern life”) must be weighed against cultural sensitivity, and here “technology must give way to culture”. While the mountain had been compromised by the location of a water reservoir and power lines in the past this was done when Mäori sensitivities were not taken account of—but now further desecration should stop.

[Ed: the decision falls within the “no obligation, case by case” approach to consultation with Mäori under the RMA 1991, while emphasising the “active protection” duty on consent authorities and their central role as repositories of information about Mäori issues in a district. It will be interesting in the coming months to see how far consultation requirements are altered in the South Island in light of the Ngäi Tahu settlement and the enhanced role it gives Ngäi Tahu in the management of many South Island resources (see Mäori LR November 1997).]

 

 

Parliament

The Mäori Reserved Land Amendment Act 1997

1997 No 101. 10 December 1997

The second reading bill for this Act was noted in Mäori LR November 1997. Last minute amendments make provision for both the lessors and the lessees to have an independent determination of compensation by the Land Valuation Tribunal. These amendments include:

•  Compensation payable to lessors and lessees: another ground for an entitlement to compensation is added (s13(1)(b)) entitling lessors to compensation for the conditions imposed by the Act on the transfer by the lessor of the land subject to the lease. Likewise, lessees are entitled to compensation for the conditions imposed by this Act on the assignment of the lessee’s interest in the lease (s16).

•  Right of lessor to elect to have compensation determined by Land Valuation Tribunal: a new section 14 is included, providing that the Chief Executive of Te Puni Kökiri must give notice to each lessor of their entitlement to compensation under the Act, and informing them of the right to apply to the Land Valuation Tribunal if they dispute the calculation. Application to the tribunal is made by filing papers in the District Court. The chief executive is a party to the proceedings before the tribunal. Silence from the lessor is deemed to be consent to the chief executive’s assessment of compensation.

•  Determination of compensation by Land Valuation Tribunal: a new section 15 empowers the tribunal to hear claims for compensation. The compensation must be determined by the tribunal as soon as practicable and in accordance with the provisions of the Land Valuation Proceedings Act 1948.

•  Compensation payable to lessees: new sections 17 and 18 mirror ss14 and 15 in allowing lessees to challenge the assessment of compensation before the Land Valuation Tribunal. Silence from the lessee once they have notice of the compensation assessed by the chief executive is again taken to be consent to that assessment. When determining the compensation payable, the Land Valuation Tribunal is to assess as soon as practicable the market value of the lessee’s interest in the lease as at 1 January 1998 on the basis of what that market value would have been if this Act had not been enacted. After 1 January 2001, the tribunal is to determine the market value of the lessee’s interest as at 1 January 2001. In making determinations, the tribunal may take account of relevant valuation evidence arising after the commencement of the Act.

•  Interest payable on compensation: the bill differentiated between the interest payable for delays in payments of compensation for those leases in existence at the commencement of the Act and those leases that are added to Schedule 3 at a  later date to become leases to which the Act applies. The Act drops this differentiation (s23).

The Act came into force on 1 January 1998.

Crown Minerals Amendment (no 2) 1997

1997 No. 91

This Act effectively prohibits any mining of any Crown owned minerals in any Crown owned lands set out in a new Fourth Schedule to the Crown Minerals Act 1991. Included in the schedule are all lands within national parks held and administered under the National Parks Act 1980.

This Act began life as the Protected Areas (Prohibition on Mining) Bill. The Planning and Development Select Committee which examined the bill (the report is at the front of the second reading copy of the bill—No 46-2) reported that:

•  it affects only Crown-owned minerals, not other minerals iwi might claim, such as pounamu;

•  it does not affect land owned by iwi but managed by the Department of Conservation, eg areas within the Urewera National Park;

•  the prohibition on mining should not affect 4 islands in the Mercury Island group off the Coromandel Peninsula which were gifted to the Crown by the Hauraki tribes (the Act includes this reservation in a new s61(8) Crown Minerals Act 1991).

Lake Ellesmere Eel Fishery

The Lake Ellesmere eel fishery has ceased to be a controlled fishery and has been brought under the individual quota management regime. Relevant regulations are:

Fisheries (Lake Ellesmere Eel Fishery) Decontrolling Order 1997

(1997/354) provides that the Lake Ellesmere eel fishery ceases to be a controlled fishery on 1 February 1998.

Fisheries (Lake Ellesmere Eel Quota) Regulations 1997

(1997/355) brings the Lake Ellesmere eel fishery under the quota management regime and imposes an annual quota of just over 170 tonnes.

Fisheries (Reporting) Amendment Regulations (No.2) 1997

(1997/356) includes the Lake Ellesmere eel fishery within the reporting requirements for the quota management regime.

Fisheries (Lake Ellesmere Eel Quota Allocation) Notice 1997

(1997/374) allocates the annual quota set for the Lake Ellesmere eel fishery to those who previously fished for eels under controlled fishery licences, along with just over 34 tonnes to Athlone Enterprises Ltd, acting on behalf of the Treaty of Waitangi Fisheries Commission.

[Ed: these regulations and orders were promised in the Ngäi Tahu Deed of Settlement at clause 12.14.25(b).]

Fisheries (Waikare Inlet Taiapure) Order 1997

1997/357

These regulations declare a part of the Waikare Inlet in the Bay of Islands to be a taiapure-local fishery. The regulations are made pursuant to s175 of the Fisheries Act 1996.

Interim report on the Taonga Mäori Protection Bill

Mäori Affairs Select Committee. 4 December 1997

The select committee reported to the House that an extension of 12 months was sought for the Taonga Mäori Protection Bill. During 1997 the committee entered into discussions with the Department of Internal Affairs to incorporate provisions from the proposed Protection of Moveable Cultural Heritage Bill into the Taonga Mäori Protection Bill. After consulting on the issues, the Minister of Internal Affairs allowed the incorporation of the amendments in respect of provisions covering Mäori cultural objects. However, the minister advised that while extensive consultation with Mäori and other interested parties took place in the late 1980s when the Department of Internal Affairs’ policy was being developed, further consultations by the department would be required before the amendments to the Taonga Mäori Protection Bill could be introduced to the House by way of a Supplementary Order Paper. The Mäori Affairs Committee is confined by Standing Order 284(2) in that some of the proposed amendments do not appear to fall within the scope of the Taonga Mäori Protection Bill. The committee was therefore unable to report the bill back and expects the SOP to be referred with the necessary authority from the House to enable it  to incorporate the SOP amendments to the bill. The committee reported there was little support for the bill proceeding in its current form and that it requires more substantive work and drafting to accommodate a broader protection of taonga Mäori.

Fisheries (Remedial Issues) Amendment Bill 1997

No 97-1

This bill makes various minor amendments to the Fisheries Act 1996, including several amendments affecting Mäori fisheries specifically:

•  Correcting an error in the 1996 Act to ensure that regulations relating to customary fishing will take precedence over general fishing regulations (cl 32 amending s186(2)/1996).

•  Amending provisions restricting the amount of quota which may be held by any one body, to ensure that persons associated with the Treaty of Waitangi Fisheries Commission are not, merely because of that association, considered to be in breach of those restrictions (cl56(5) amending s28W/1996).

•  Adding a new provision which would allow the Chief Executive of the Ministry of Fisheries to prohibit, in any area of New Zealand fisheries waters, for any period up to 2 years, fishing for certain species or the use of certain fishing methods. Such a temporary closure would take place only where the chief executive considered it was likely to assist in stock replenishment or in “recognising and making provision for the use and management practices of Mäori in the exercise of non-commercial fishing rights”. Consultation would be required with the local community and fishing interest groups and particularly with local Mäori “having regard to kaitiakitanga” (cl 43 inserting s311A/1996).

[Ed: the temporary closure provisions continue a pre-existing power of the ministry, but have also been discussed in the context of the proposed customary fishing regulations, and were promised in the Ngäi Tahu settlement. Indeed, the provision closely follows the wording of clause 12.14.22 of the Ngäi Tahu Deed of Settlement.]

Ngäi Tahu Deed of Settlement

The third in a series looking at the detail of the settlement signed on 23 September 1997

The Relativity Mechanism and a definition of “Article II” matters

Between 1996 and 2044, the Crown will, each September, provide a statement to Ngäi Tahu specifying the total redress provided to the end of the last financial year on all historical claim settlements. Ngäi Tahu have 40 days to accept or challenge that figure. If the figure exceeds $1,000 million, then they may make a claim, and receive a relativity payment, intended to keep their settlement at a fixed percentage within the total redress for all historical claims. Adjustments for CPI changes, the value of the dollar and corporate tax rates make the calculations complicated—and clause 18 of the deed of settlement contains several detailed formulae. Ngäi Tahu may make more than one claim for a relativity payment, but there must be five years between claim—with a final claim possible in 2044. The relativity payment must be made within 60 days of the claim, or as soon as an appropriation from Parliament is received, if that is required.

An attachment to the deed of settlement contains a fictitious example of how the mechanism will work. The example assumes a modestly rising CPI and a total redress amount of $1007.011 million by September 1999. Under the various formulae, this is adjusted to a 1994 dollar value (in the example $1068.749 million), resulting in a relativity payment of some $15.708 million. In the example, as long as the total redress keeps rising after 1999, Ngäi Tahu could then make a claim each five years and a final claim in 2044.

The deed of settlement sets out the principles to be applied when determining whether any Crown payments during a year are in fact redress for historical claims (‘Article II’ matters) or are simply “good government” payments which the Crown owes to Mäori as citizens in any event (‘Article III’ matters). “Good government” payments are payments where:

•  the expenditure or benefits are provided by the Crown to Mäori or to all citizens or generic groups of citizens of New Zealand on a basis which provides for Ngäi Tahu to claim a fair share (including but not limited to any change or development of Article II rights after 1994 or any change in property rights made by statute or regulation which confer rights on Mäori) and such expenditure or benefits are not for the express purpose of settling an Historical Claim;

•  the Crown retains a discretion over the amount and form of the provision of the expenditure or benefits and their continued availability;

•  the recipients of the expenditure or benefits are accountable to the Crown for the use or distribution of the amount of the expenditure or benefits; and

•  the expenditure or benefits arise from any legislative or regulatory change made in the course of ‘good government’, including those designed to remove or avoid any contemporary breach of the principles of the Treaty of Waitangi, and such expenditure or benefits are not for the express purpose of settling an Historical Claim (cl 18.1.3(b)(i)-(iv)).

The deed of settlement notes that Ngäi Tahu estimates its historical losses at not less than $20 billion in present day terms (cl 2.2.6). Also, the Crown has not asked Ngäi Tahu to concur with, and Ngäi Tahu has never concurred with, the concept of the “settlement envelope” or its quantum, which was rejected at a hui at Tuahiwi held on 24 March 1995 (cl 2.2.7).

Full and final settlement?

The deed provides that the settlement legislation will include provisions that the settlement is final, and the Crown is “released and discharged in respect of the Ngäi Tahu Claims”. In addition, notwithstanding any other enactment or rule of law, as from the Settlement Date, no court or tribunal will have any jurisdiction to inquire or further inquire into, or to make any finding or recommendation in respect of any or all of the Ngäi Tahu Claims, the validity of the deed of settlement, or the adequacy of the benefits provided to Ngäi Tahu under the deed or the settlement legislation—although there remains jurisdiction in respect of the implementation or interpretation of the deed and settlement legislation (cls 17.3 1-2).

“Ngäi Tahu Claims” includes all relevant claims filed with the Waitangi Tribunal (which are listed in the deed), and all claims made at any time by any “Ngäi Tahu Claimant” whether researched, registered, or notified or not, and which are “founded on rights arising in or by the Treaty of Waitangi, the principles of the Treaty of Waitangi, statute, common law (including customary law and aboriginal title), fiduciary duty or otherwise”, and “arising out of or relating to any loss of interests in land, water, rivers, harbours, Coastal Marine Areas, minerals, forests or any Natural and Physical Resources in the Ngäi Tahu Claim Area, caused by acts or omissions by or on behalf of the Crown or by or under legislation, being a loss that occurred prior to 21 September 1992” (cl 1.2). Claims relating to language and culture are however specifically excluded from this definition (cl 1.2(f)).

These provisions are further qualified by several ‘statements of understanding’ between the parties. Both parties agree that the provisions relating to the removal of the jurisdiction of  the Courts, the Waitangi Tribunal and any other tribunal:

•  are not intended to prevent any Ngäi Tahu Claimant from pursuing claims against the Crown based on aboriginal title or customary rights which do not come within the definition of Ngäi Tahu Claims or to prevent the Crown from disputing such claims or the existence of such title or rights; but

•  are intended to prevent any Ngäi Tahu Claimant from pursuing claims against the Crown (including claims based on aboriginal title or customary rights) if such claims come within the definition of Ngäi Tahu Claims; and

•  nothing in the deed (apart from the specific provisions) extinguishes any aboriginal title or customary rights that Ngäi Tahu may have or constitutes or implies any acknowledgment or acceptance by the Crown that such title or rights exist either generally or in any particular case (cl 20.1.2).

In addition, the deed notes that, except as expressly provided in the deed of settlement, nothing in the deed is intended to derogate from any rights that Ngäi Tahu might otherwise have under common law, statute or the Treaty of Waitangi, or any rights or powers the Crown may have under common law, statute or the Treaty of Waitangi (cl 20.2).

Finally, the Crown also acknowledges that the settlement “does not diminish or in any way affect the Treaty of Waitangi or any of its articles or the ongoing relationship between the Crown and Ngäi Tahu in terms of the Treaty of Waitangi or undermine any rights under the Treaty of Waitangi, including rangatiratanga rights” (cl 2.2.2).

[Ed: parts of the Deed of Settlement relating to traditional food resources, including fisheries, will be covered in the next issue of the Review.]

Draft South Island (Customary Fisheries) Regulations 1997 & Draft Kaimoana (Mäori Customary Non-Commercial Fishing) Regulations 1996

November 1997 & September 1996

Under the Sealord Settlement and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, fishing regulations were to be developed to provide for general customary food gathering by Mäori which was non-commercial, and to recognise special areas where that took place. As recent events have made clear (eg the Hikuwai decision and aftermath—see Mäori LR November 1997), those regulations have not been finalised because of differences between the Crown and the Mäori working party over a number of issues. In addition, as part of the Ngäi Tahu settlement, it was agreed that, should the national regulations not be in place by the time the settlement legislation is introduced, then the existing draft regulations would be applied in the South Island (clause 12.14.11(e) Deed of Settlement).

Appointment of customary fisheries managers

The draft regulations firstly provide for the appointment, by local Mäori in a traditional region, of persons called Tangata Kaitiaki/Tiaki (TK/T) to manage fisheries in that traditional region. Both the appointments, and perhaps more important, the boundaries of that traditional region, are a matter of debate and submissions solely among Mäori of the district. The Minister of Fisheries may request that a hui be called where there is dispute, but has no role other than to confirm the appointment of TK/T, and the geographical boundaries in which he or she will act, on being satisfied that any disputes are resolved or that there is no dispute.

Appointments would be for five years. TK/T could delegate their authority on a temporary basis at any time, but would have to notify the Chief Executive of the Ministry of Fisheries. The draft national regulations provide that a TK/T may also nominate any person to be appointed by the ministry as an honorary fishery officer.

General customary taking

The main function of TK/T would be to authorise the taking of fish by any person, within the region for which they are appointed. This taking must be done “in a manner consistent with the tikanga of the tangata whenua” of that customary food gathering area. “Customary food gathering” is separately defined as “the traditional rights confirmed by the Treaty of Waitangi and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 being the taking or managing of fish, for a purpose authorised by a (TK/T)”, to the extent that the purpose is consistent with tikanga Mäori and is not commercial. Taking for koha is mentioned as a purpose (the draft national regulations leave out reference to the 1992 Act and the Treaty in this definition—and propose a more general provision that all persons exercising powers under the regulations must act in accordance with the 1992 Act). This authorisation provision would take precedence over other regulations, thus allowing the TK/T to authorise taking which might otherwise contravene other amateur and non-commercial fishing regulations.

The authorisation of the TK/T would have to be in writing, or the TK/T and chief executive could agree on an oral authorisation process, but in either case the name of the fisher, species, quantity, size, method, fishing places, time and purpose of taking would all have to be specified.

Written authorisations would have to be shown on demand to fisheries officers, and the TK/T would keep a record for authorisations for checking. Fishers would be required to inform the TK/T of the fish taken under an authorisation and the TK/T would keep full records based on this information, and provide copies to the ministry approximately every 3 months. The regulations anticipate combined customary and commercial fishing trips, in which case the customary take must be kept in separate marked containers or it will be deemed commercial.

Mätaitai fishing reserves

The draft regulations also provide that local Mäori or a TK/T could establish fishing reserves in which the TK/T would exercise additional powers. However, such mätaitai reserves could only be established after an application to the minister, who must publicly notify the application, and could only declare the mätaitai reserve on being satisfied that:

•  local Mäori have a special link with the area;

•  the reserve is consistent with sustainable management of the fishery;

•  the reserve is a traditional fishing ground of suitable size for “effective management” by the TK/T;

•  the reserve will not unreasonably affect local non-commercial fishing or prevent commercial fishing if quota is issued for that area.

Within the reserve, the TK/T could restrict or prohibit the taking of fish by drafting bylaws, which the minister would have to approve as long as he was satisfied that they were necessary or desireable for the sustainable management of fish in the reserve. Any bylaw must apply generally to all persons fishing in the reserve. However, even where a bylaw was in place, the TK/T could authorise special takings for “the purpose of sustaining the functions of a marae”. Such authorisations would have to contain the same details as for general authorisations outlined above. The TK/T would also be able to allow fish stocks to be moved within a reserve to enhance the stocks. Commercial fishing would be strictly banned in a reserve. However, the draft South Island regulations allow the TK/T to request the minister to recommend the enactment of regulations allowing limited commercial fishing in a reserve in accordance with the particulars as to species etc set out in the request of the TK/T.

Accountability

Apart from the form of authorisation and record keeping requirements, TK/T would be required to report annually on their management of their area to a meeting of local Mäori which had been publicly notified. The appointment of a TK/T could be cancelled at any time after a meeting of the local Mäori who made the initial appointment and a request to the minister for the new appointment to be confirmed. If the minister had concerns about the management of an area by a TK/T, the minister would have to first consult with that TK/T and local Mäori before providing advice or assistance as necessary. If the minister and local Mäori had a concern about the actions of the TK/T, they could develop and present to the TK/T a management strategy for the fishery. If the management strategy was not followed, the minister could cancel the appointment of the TK/T, inform the local Mäori who made the appointment, and seek a fresh appointment.

Fishery management planning

TK/T would be able to prepare a management plan for their fishery, which would be recognised as a planning document under the Resource Management Act 1991. The draft South Island regulations also require that any plan be first approved by local Mäori before it becomes a recognised document under the RMA 1991 or otherwise taken into account. The draft South Island regulations also state that such a plan would have to be taken into account by the minister when acting under s10(b) Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (requiring the minister to develop policies to help recognise the use and management practices of Mäori in the exercise of their non-commercial fishing rights). Both draft regulations state that the Minister shall provide TK/T with such information and assistance as they require to properly administer the regulations and in accordance with s10. The draft South Island regulations also provide that TK/T would participate in the development of any management measures for the whole of their area.

Offences against the regulations would result in a fine of up to $5,000 in the first instance and up to $10,000 for subsequent offences.

[Ed: it is understood that the points of disagreement between the Crown and the Mäori working party are few, but possibly fundamental (although Ngäi Tahu seem to have fewer problems with the existing drafts). One can guess at the areas of tension:

•  Limiting mätaitai reserves to a size which the Minister considers can be effectively managed—this could be seen as an attempt by the Crown to keep the size of mätaitai within politically acceptable limits, whereas Mäori might be concerned that traditional boundaries could be ignored.

•  Mätaitai reserves not to affect non-commercial or commercial taking—this raises the question of exactly what a reserve will protect if the area has little interest for non-commercial or commercial fishers in the first place.

•  Power to cancel appointment of TK/T—the concern might be that the Minister can dismiss TK/T who have the support of the local community.

If these draft regulations were applied to the current dispute between the Confederation and other iwi about the taking of several tonnes of fish for “customary non-commercial” purposes, one can see that, while they would not prevent a maverick TK/T from stretching the definition of customary food gathering to cover such a situation, the TK/T would need the support of their appointing group to continue in this fashion. The key “control” is therefore the control exercised by Mäori communities when they come to appoint TK/T. The draft regulations do not answer how deeply entrenched rival claims to authority would be resolved. They (optimistically) provide for parties in dispute to agree on some authority to refer the matter to, for “mediation and settlement”. If groups cannot agree who has authority in an area, the Minister cannot force the issue by choosing to confirm the appointment of a TK/T, but must wait until he is satisfied that “all disputes” have been resolved.]

Multilateral Agreement on Investment

DAFFE/MAI/NM(97)2. 1 October 1997. Ministry of Foreign Affairs and Trade

In May 1995, Organisation for Economic Cooperation and Development (OECD) members agreed to begin negotiations on a Multilateral Agreement on Investment (MAI), aimed at reducing barriers to foreign investment. Negotiations commenced in September 1995. A draft MAI has now been produced. While many elements are still to be finalised, negotiations are currently scheduled to be completed by April 1998 at the earliest.

Article 1 encapsulates the key concept: “Each Contracting Party shall accord to investors of another Contracting Party and to their investments, treatment no less favourable than the treatment it accords [in like circumstances] to its own investors and their investments with respect to the establishment, acquisition, expansion, operation, management, maintenance, use, enjoyment and sale or other disposition of investments.” An investment is defined as “every kind of asset owned or controlled, directly or indirectly, by an investor”. In the current draft, this would include intellectual property rights. An “investor” is defined as a natural person or any legal entity, whether for profit or not, and whether private or government owned or controlled, organised under the applicable law of the Contracting Party, ie trusts, corporations, partnerships, joint ventures etc.

Treatment offered to one country must be offered to all, and countries must publish or otherwise make publicly available all laws and administrative and judicial decisions affecting the operation of the MAI.

Dispute procedures for differences over the interpretation or application of the MAI are available both to states and to investors, either of whom may request that the dispute be submitted to arbitration to an international panel—or in the case of an investor-state arbitration, the investor may choose the local courts of the state concerned.

States will agree that in the future they will not make investment rules any more restrictive than at the time of signing up to the MAI—a provision known as “standstill”.

States may however attach to the MAI reservations excluding specific areas of investment from the effect of the agreement, but would agree to use their “best endeavours” to reduce such reservations over time, and there is a monitoring programme on reservations. This process is known as “rollback”.

The government has suggested draft reservations including:

•  “Current and future measures according more favourable treatment to the Treaty partner in relation to the acquisition, establishment or operation of any commercial or industrial undertaking.” With the “Treaty Partner” defined as “the indigenous Mäori people of New Zealand, individually or in collective entities, party with the Crown to the Treaty of Waitangi, 1840.”

•  Broadcasting Act 1989: “The Broadcasting Commission is directed by the Government, pursuant to the Broadcasting Act, to allocate a minimum of 14 per cent of its budget to Mäori programming.”

•  Provisions of the Fisheries Act 1996 limiting foreign quota ownership and fishing.

[Ed: the Ministry of Foreign Affairs and Trade (MFAT) undertook some consultation with Mäori in December 1997, which Te Puni Kökiri complained was inadequate. A further round of consultation with Mäori is currently underway. Some issues:

•  The particular benefits Mäori groups might derive from the MAI: MFAT pamphlets stress the disadvantages of not signing, but do not point out positive benefits, stating for eg that foreign investors might be less certain about entering into joint ventures such as the Korean Hansol forestry deal with Ngäti Porou. If this is the case, what is it that has allowed joint ventures to proceed to date?

•  Reservation or annex: arguably, exclusions for Mäori could be added as annexes to the MAI rather than as reservations. As annexes, exclusions for Mäori would have to be agreed by all signing parties (giving them a high profile), and would be seen as standing exceptions, rather than reservations possibly subject to later rollback. There is already a proposed annex to permanently exclude from the MAI the granting to Sami people of exclusive rights to reindeer husbandry in traditional Sami areas. MFAT argues that the reservation approach will allow the NZ government to draft the reservation itself, and that there is nothing to force rollback of the reservation (which is not quite the same as saying it will never be subject to rollback). In fact, the MAI document stresses that reservations should be tightly worded and must not be of a “pre-cautionary nature”. The proposed Treaty of Waitangi reservation seems to breach that requirement.

•  The wording of the reservation: whereas Article 1 of the MAI protects investors for the “establishment, acquisition, expansion, operation, management, maintenance, use, enjoyment and sale or other disposition of investments”, the Mäori reservation is much narrower. Te Puni Kökiri has questioned whether the definition of “Treaty Partner” would include a private business set up by an iwi or hapu.

•  Effect on Te Ture Whenua Mäori Act 1993: should aspects of this Act be listed as non-conforming measures?

•  Disputes procedures: if a foreign investor had a dispute with the government over the interpretation or extent of any Treaty or Mäori reservation, would they be able to argue in an international forum about the meaning of the Treaty and the extent of its application in NZ? Mäori claims to valuable minerals and a favourable Crown response could well raise this issue.

•  Intellectual property: should this be included?

In a recent report The Treaty Making Process: Reform and the Role of Parliament (NZLC R 45) the Law Commission recommends that a treaty impact statement be prepared for all treaties to which NZ proposes to become a party, and that the impact statement set out any consultation undertaken with Mäori, and whether the treaty will have any effect upon rights provided by the Treaty of Waitangi (para 183).]

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn