February 1998 Contents

Mäori Land Court & Appellate Court

Privy Council appeals from Mäori Appellate Court decisions

Waitangi Tribunal

Challenge to tribunal appointment—apparent bias

Other Courts and Tribunals

Environment court—s8 & consultation with Mäori

Parliament

Fisheries (Customary Fishing Conditions) Notice 1988

Reports & Articles

Mäori land—economics and law analysis

Overseas

Common law aboriginal title—Canadian Supreme court—the Delgamuukw decision

 

 

Mäori Land Court & Appellate Court

Privy Council Appeals

Does the ability to appeal Mäori Appellate Court decisions to the Privy Council still exist? The question has gained prominence recently because of the government decision to appeal the preliminary decision of the Mäori Land Court about ownership of the Malborough foreshore and seabed (Mäori LR Dec 97/Jan 98) to the Mäori Appellate Court. Depending on the decision of the appellate court, one or both sides may wish to take the matter on to the Privy Council.

The ability to appeal to the Privy Council does not lie in legislation. In Re the Will of Wi Matua [1908] AC 448, the Privy Council determined that, while the Native Land Court Act 1894 provided that decisions of the then Native Appellate Court were to be “final and conclusive”, this did not rule out a petition to the Crown for leave to appeal to the Privy Council. This was because such a prerogative of the Crown could not be taken away except by “express words” in legislation.

However, in a recent decision of the Privy Council (De Morgan v DG of Social Welfare. 7 October 1997. [1997] 3 NZLR 385. Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Steyn.), their lordships reviewed the case law in this area and held that Wi Matua had been wrongly decided. When that case was heard, it had been overlooked that the right to petition the Crown for leave to appeal to the Privy Council was no longer purely a prerogative matter, but was regulated by 2 statutes—the Judicial Committee Acts of 1833 and 1844. Consequently, if a New Zealand statute limits avenues of appeal to the Privy Council, it is not limiting a prerogative power, rather, it is limiting a statutory right of appeal with a “purely formal” prerogative element attached to it. Consequently, a New Zealand statute can limit this avenue of appeal simply by words which by “necessary intendment” do away with or limit such an appeal.

The 1894 Act provided that decisions of the Native Appellate Court were to be “final and conclusive”. This would be sufficient to fulfil the test of “necessary intendment”. However, there is no equivalent provision in Te Ture Whenua Mäori Act 1993. The 1894 provision was repealed in 1909 and never reinstated—possibly as a result of the Wi Matua decision.

However, section 59(5) Te Ture Whenua Mäori Act 1993 provides that where the Mäori Land Court makes a provisional or preliminary determination in the course of any proceedings, (as it has in the Malborough foreshore and seabed case), and the Mäori Appellate Court makes a judgment on the issue and refers the matter back to the land court for a final order, then no further appeal may be made from the final order of the land court in as far as the final order follows the determination which the appellate court has made.

Does this wording fulfil the necessary intendment test? It may say no more than that the Mäori Appellate Court should not be required to give an opinion twice on the same matter in the same proceedings—to avoid wasting time and possible embarrassment if a different panel of the appellate court should reach a different opinion. This may be viewed as a mere machinery provision and quite different from a provision aimed at telling other courts and appellants that no further appeals shall be allowed. This view gains support from In Re Whareroa 2E Block (No 2) [1957] NZLR 987 where it was suggested that judgments given in a “consultative capacity” by senior courts to lower courts can be subject to the ordinary appeal procedure to the Privy Council.

Nevertheless, the alternative argument exists that the effect of the De Morgan decision and s59(5) may be to close off this avenue of appeal. Given that the general right of appeal to the Privy Council attracts considerable support from the Mäori public and from Mäori academics and lawyers (see Mäori LR July 1996 report of the Mäori Committee of the Law Commission and Megan Richardson “The Privy Council and New Zealand” (1997) 46 International and Comparative Law Quarterly 908-918), this may be a controversial result.

 

Waitangi Tribunal

Memorandum on the constitution of the tribunal for the Tauranga and Western Bay of Plenty claims

Doc # 2.137. 9 February 1998. CJ Durie

The Crown challenged the appointment of the Waitangi Tribunal member, Professor Sorrenson, to a sitting to hear the Tauranga and Western Bay of Plenty claims on the basis of his kinship connection with Ngäti Pukenga, one of the tribes affected by the land confiscations giving rise to the present claims. Because the historical knowledge of Professor Sorrenson was viewed by the tribunal as important to the efficient hearing of the claims, the tribunal called for full argument from counsel on the Crown’s objection.

Professor Sorrenson deposed by affidavit that he had been a member of the tribunal since 1986, and was 1/8 Ngäti Pukenga descent, but had never been a member of any local or regional tribal organisation or taken any active part in the affairs of Ngäti Pukenga. He owned no land within the area of the claims. The Crown raised issues of presumptive and apparent bias.

Held: the appointment of the Professor should be confirmed.

Presumptive bias

If presumptive bias were found, the tribunal would no discretion to retain the Professor. No argument that the Professor might have a financial interest in the outcome was pursued. In any event, even if the land claims were upheld, any settlement would be unlikely to see individuals obtaining a personal legal interest in the proceeds, eg by shares.

The Crown argued that presumptive bias could extend beyond a monetary interest, to situations where there might be personal interest in the outcome by identification with a party. However:

•  the provisions of the Treaty of Waitangi Act 1975 clearly contemplate that members of both races are to be involved in any one sitting. The second schedule (cl 5) requires that at least one Mäori be appointed to each sitting of the tribunal.

•  The Professor was Mäori only in the technical sense of descent, and had not identified actively with the Mäori world (the Chief Judge added that “It appears there are more than a few New Zealanders in this category, several “Pakeha” pointing to tribal connections through a Mäori antecedent when commenting, often adversely, on Mäori matters.”).

•  There was no reason to presume that the emotion surrounding an investigation of land confiscation would influence the Professor as he was a professional historian with a reputation to protect, and such an argument could apply to any Mäori member on the tribunal, since they commonly identified with many tribes throughout the country. This argument would have more force where a Mäori tribunal member was actively involved with the Mäori world and regularly attended gatherings. If presumptive bias were to be extended beyond monetary interest (and there was doubt on the basis of the reported cases that it should be), deliberately chosen identification would be more relevant than an “incidence of consanguinity”. Some direct kinship link should be shown (such as to a spouse), rather than connections which any adjudicator has to a race, clan, tribe or even through kin ties, to a creed.

Apparent bias

The Crown argued that the tribal link and expressed support for a petition to Parliament about the claims in 1978 were likely to create a public perception of bias.

The need to retain public confidence in the judicial process which is the policy underlying the apparent bias rule makes some matters irrelevant—eg the vital role of the professor in ensuring the historical evidence was properly understood, or conversely, the argument that Mäori might see as biased tribunal members who were formerly Crown officials (whether an officer of the Crown can be seen as biased simply because of their position is doubtful), or the fact that the professor would be only one member of a panel (he could still influence others on the panel), or agreement among claimant groups with cross-claims against Ngäti Pukenga that he would be acceptable.

However, identification of the Professor as Ngäti Pukenga both in tribunal documents and a historical publication of limited circulation were not critical in this case, and his “support” for a 1978 petition to Parliament about the Tauranga claims was an opinion given in his capacity as a professional historian.

The case law indicated that the test to apply was whether there would be bias perceived by a reasonable bystander exposed to an in-depth media report on the matter—which would likely exclude an intricate knowledge of cultural norms known to informed Mäori—including the fact that Mäori are commonly connected to many and not just one tribe—as the professor’s forbears undoubtedly were. Such a test might suit the mono-cultural situations in which it was formulated, but a better approach is to look to a wider factual matrix (as seems to be suggested in BOC New Zealand Ltd v Trans Tasman Properties Ltd[1997] NZAR 9):

“If the fundamental purpose is the maintenance of public confidence in the judicial process, then in cases involving Mäori and pakeha conflict, it is important that both Mäori and Pakeha should have confidence in the process for that case. In cross cultural disputes the integrity and standing of the courts and the judicial process cannot be founded upon the maintenance of such opinions as a reasonable bystander may come to if informed of the basic facts only from a majority culture view, where the effect is to deny a proper hearing to minorities suffering the unconscious prejudice in certain majority opinions. … the integrity of the courts in a bi-cultural society must depend upon their ability, if it is possible, to deliver justice and to be seen to deliver justice in a way that is respected by both cultures.”

Therefore the “reasonable bystander” should be presumed to be informed not only of matters in the general media, but matters known to the Mäori media and considered important by Mäori. Ie not just that a tribunal member was connected to a tribe, but also the issues being determined and the competence of the tribunal to look into the issues.

In this case, a bystander would know that the professor was connected by descent, but he was not an active member of the tribe, was Pakeha by upbringing, a professional historian with expertise of the issues, and had made the 1978 submissions as a professional historian. They bystander would also have a broad understanding that the Crown had basically accepted culpability for confiscation claims since the settlements of the 1940s, so that the extent of Treaty breach and impact of the confiscations were in issue in Tauranga rather than Crown culpability.

A reasonable and objective bystander would avoid extreme positions, and knowing the professor’s remote connection and non-involvement with the tribe would regard the kin association as too remote to constitute a real likelihood or danger of bias. The reasonable bystander would also understand that the expertise of the professor was important to the inquiry. Disqualification should not be on the ground of a remote possibility of bias but on a real and reasonable likelihood.

While the hearing would undoubtedly stir up strong emotions, in the tribunal’s experience, this was more likely to have an effect on an untutored mind rather than upset a professional historian already thoroughly familiar with the background history and use of confiscation in New Zealand and elsewhere.

This was not an issue of race and whether a Mäori or Pakeha was more or less inclined to an argument favourable to their own race. It was an issue of kinship links and remoteness. It could well be inappropriate to appoint a tribunal member with a substantial connection to a tribe by way of participation in tribal activities, but in this cases the connection and association were too distant.

Finally, the rule of apparent bias is arguably ameliorated in the case of the tribunal, having regard to its statutory functions and constitution. It is at the “cutting edge” of race relations and cultural conflict issues. A connection with both Mäori and Pakeha worlds, combined with a capacity to rise above kinship connections, increases the suitability of tribunal members, and members appear to be selected for just this combination of attributes. Tribunal recommendations look to removing future prejudice, making for better future race relations (the power to make binding recommendations is sparingly used (has not been used to date) and is probably usable only in the context of a total package).

The 1975 Act makes it clear that a specialist and expert tribunal was intended in which the values and perceptions of both societies would be represented by the experience of members. In making appointments therefore the degree of tribal connection (in this case small) should be weighed against the likely contribution the member might make to the statutory goals (in this case large).

The tribunal process is not strictly adversarial, but about truth and reconciliation. Emotion may appropriately enter into the proceedings, and should be captured if it does, as reporting such emotion may help in removing the sense of grievance.

Bearing all these issues in mind, while members with a primary link with a tribe are not appointed to their tribal claim, the intention of Parliament was that members be appointed to sittings where there experience and skill is most needed, unless there are compelling reasons for omitting them.

[Ed: this memorandum is significant as the first fully argued challenge to the appointment of a tribunal member to a particular hearing. The tribunal generally ensures that its senior Mäori members, who retain strong active links with their own iwi and hapü, do not hear claims in their area.]

 

 

Other courts & tribunals

Tangiora v Wairoa District Council; Mahia Boating & Fishing Club Inc

A006/98 Environment Court. AH Hackett, IG McIntyre, Bollard J

This was a challenge to the grant of a resource consent to erect a clubhouse with associated public changing and toilet facilities on a reserve on the Mahia beach. The development would extend an existing small building.

The grant of the resource consent was opposed by two Mäori of the area on the grounds that the building would interfere visually with and would pollute a landscape of significance to local Mäori and possibly interfere with waahi tapu said to be in the foreshore. In the course of the hearing, the court noted a letter from a local kaumätua which had been produced in evidence and which appeared to endorse the project. The court indicated that it wished to hear from this kaumätua, and it was agreed that the court should reconvene for this purpose.

The kaumätua, the chairman of a local incorporation representing Mäori in the area, testified that all local marae had supported the development at an open meeting, and while there was undoubtedly individual dissent, the general viewpoint was favourable to the project.

With regard to consultation and s8, the court endorsed the recent comments in Mason-Riseborough v Matamata-Piako District Council (A143/97. Mäori LR Dec 97/Jan 98 p8) to the effect that the circumstances of each case must be looked at, that all must act reasonably and in good faith and with fairness, and that active protection of Mäori interests requires positive action, which may oblige a consent authority to consult in some cases, but require consultation only by the applicant in other cases.

With regard to earlier cases and the “obligation” vs “no obligation” approaches to consultation with tangata whenua by consent authorities, earlier decisions may have made general statements beyond the facts of particular cases which created a belief that a difference existed between different panels of the court on this issue (see for eg P Beverley “The Incorporation of the Principles of the Treaty of Waitangi into the Resource Management Act 1991—Section 8 and the Issue of Consultation 1 NZELJ 125; and AL Mikaere “Mäori Issues” [1995] NZ Law Review 137). However “in reality, an overall judgment has been necessary in each instance whether, in the circumstances, appropriate account has been taken of the principles of the Treaty.”

The general aim is that the principles of the Treaty (including, but not limited to, consultation) are properly taken into account in the decision making process. Section 8 should not be construed narrowly, as was made clear in Ngai Tahu Mäori Trust Board v DG of Conservation [1995] 3 NZLR 553, dealing with similar statutory provisions.

The circumstances of cases have however differed markedly. Where the differences between local Mäori and an applicant are great, a council officer may be in a position to do no more than note the Mäori concerns and report them to the consent authority. In appropriate cases however, consultation by council officers could extend to a discussion with local Mäori of their different options for achieving what they seek under relevant planning provisions—Mangakahia Mäori Komiti v Northland Regional Council [1996] NZRMA 193. Circumstances could arise where a council officer is duty bound to consult and the duty may include the need for such a discussion of options “in keeping with the principle of frankness and openness.”

In the past, concern over the proper application of s8 has led to proceedings being adjourned to ensure due consultation with Mäori occurs eg Berkett v Minister for Local Government (A103/95 & A6/97) and Purnell v Waikato Regional Council (A85/96). Other important cases concerning consultation with Mäori have been Gill v Rotorua District Council (1993) 2 NZRMA 604 (council needed to actively consult where Mäori owned a reserve with historical and cultural links to the land under appeal); and Ngäti Kahu v Tauranga District Council [1994] NZRMA 481 (proposed plan change fundamentally flawed because Mäori had not been consulted).

In this case the proposal was notified to local marae and was well known to the local communities. Mäori themselves had taken steps to consider the proposal and advise the applicant of their stance. A response generally favourable to the application had been given, with the dissent from some individuals, including the appellant, being noted.

As to whether the foreshore area contained waahi tapu, the kaumätua witness doubted this, since the area was known to him as primarily used for food gathering (he admitted the appellants might have another source for their information which he was unaware of). His evidence should be preferred, since he expressed doubt that an area used for food gathering would also be a burial area, and there were burial grounds in the local hills. While the foreshore and two named local hills had spiritual and other significance (including important traditional links with the presence and observance of whales), the proposal was not of such a location or scale as to undermine the mana of the place.

The application should be granted with minor revisions which would ensure public access to the beachfront was maintained, and Mäori values were recognised. The proposal would benefit the Mahia community including the tangata whenua. The legal status of the club as an incorporated society did not point to it being exclusive and private (this is a common form for such bodies). The evidence indicated the club intended the public to benefit from the proposed facility.

[Ed: it is noteworthy that the court actively sought to hear the kaumätua witness to get an alternative viewpoint. The judgment suggests that council officers may in suitable cases actively advise Mäori who object to a proposal of their options under the Resource Management Act to achieve their planning objectives. Presumably this could go as far as advising in a general way on how to approach submissions, and appeal options.]

Fisheries (Customary Fishing Conditions) Notice 1988

NZ Gazette 9 February 1998

Regulation 27 of the Fisheries (Amateur Fishing) Regulation 1986, provides that the Ministry of Fisheries may, in writing, delegate to any Mäori Committee constituted under the Mäori Community Development Act 1962, any marae committee which is incorporated, and any “kaitiaki of the tangata whenua” the power to approve fishing for a “hui, tangi or traditional non-commercial fishing use” which would otherwise be in breach of the regulations. The Ministry can impose conditions on the fishing which are considered necessary for the overall conservation and management of the fishery. Due to concerns about the activities of fishers claiming customary fishing rights and catching large quantities of fish, the Ministry has issued, under regulation 27, this customary fishing conditions notice.

The notice provides that fish, aquatic life and seaweed may be taken for hui or tangi only with prior authorisation. This prior authorisation may only be given by an “authorised representative” of any Marae committee, Mäori committee, Runanga or Trust Board “where those groups are representative of tangata whenua.” Tangata whenua means the hapü, or iwi that is Mäori and holds mana whenua over “that area”.

The authorisations must be in writing, and be signed by the person authorising the fishing. They must specify the species to be taken, times, persons, maximum quantities, areas, and the hui or tangi and venue for which the taking is occurring.

No taking is permissible where it is “commercial in any way or is for pecuniary gain or trade”.

[Ed: this interim notice can be compared with the full draft customary fishing regulations examined in Mäori LR Dec 97/Jan 98 p12. A claim has already been laid with the Waitangi Tribunal about the notice (Wai 698 Pateriki Nikorahi). The tribunal has indicated that it is not inclined to give urgency to the claim given that the Crown has announced it will consult with iwi and hapü in February and March 1998 on the full draft regulations which will replace this interim notice (memorandum 18 February 1998).

Whereas the full draft regulations set out a detailed procedure for discovering who represents tangata whenua in any particular area, and how to define that area, the notice is extremely vague on these points. This would appear to make it difficult to carry out successful prosecutions under the notice, and may even render the notice void in law for uncertainty.

The notice may also limit customary rights more than it needs to. Regulation 27 permits the taking of fish for “traditional non-commercial fishing use”, which arguably could include trading by way of exchange of fish within a whänau or between whänau, hapü and iwi, or even selling small quantities of fish to supplement household income. Such uses are supported in Canadian case law on common law aboriginal rights (see R v Horseman [1990] 1 SCR 901 and R v Van der Peet [1996] 2 SCR 507). This notice however, bans any taking which is “commercial in any way or is for pecuniary gain or trade”, which might rule out such traditional non-commercial fishing uses (if they exist).]

Reports & Articles

Te Ture Whenua Mäori: Retention and Development

NZLJ January 1998 p27. Dr Bill Maughan, Tanira Kingi

This article examines the essential features of a property regime which aims at economic efficiency (including exclusivity of ownership, and ease of transfer) and shows how Mäori customary rights and the imposition of a national, individual based system of property rights aimed at economic efficiency has produced the current situation for Mäori land. The Mäori system of real property rights differed and still differs from the introduced system in that:

•  there is no real national system of Mäori property rights

•  there is limited transferability of Mäori land

•  there is greater fragmentation than with general land.

These differences from a model of property rights which has economic efficiency as the goal mean that:

•  Mäori land cannot in general move to the highest valued use, unless the highest valuer is a preferred alienee

•  It is difficult to borrow money on Mäori land (except from preferred alienees) because the procedure of transferring the land to a mortagee outside the preferred class of alienees in the event of default  is complex and costly

•  While fragmentation can partly be dealt with by trusts and incorporation structures, limited ability to transfer shares (ie no threat of takeover for inefficiency) and lack of contestability of directors and management often lead to poor management and lack of accountability.

The writers suggest that because constraints on efficient economic use of Mäori land are system based (ie derive from basic Mäori attitudes about land), they cannot be modified by some “sleight of hand”, such as special conditions on loans, which “amount to a request for unsecured loans for which there is no accountability”.

The better approach is to accept the constraints and seek other options for development, for example:

•  mortgages of produce and timber cutting rights

•  use of retained profits, equity and preferred alienee finance markets

•  improved management, education, skill sharing between iwi

•  greater accountability for directors and management.

Overseas

Delgamuukw v British Columbia

File No:  23799. Supreme Court of Canada. 11 December 1997. Lamer CJ and La Forest, L’Heureux Dubé, Cory, McLachlin and Major JJ.

The appellants were hereditary chiefs of the Gitksan and Wet’suwet’en people (numbering 5,500 to 7,000 people), claiming aboriginal title over territories covering 58,000 square kilometres of British Columbia, which they acknowledged was shared with other indigenous groups. The trial judge (British Columbia Supreme Court, McEachern CJ (1991) 79 DLR (4th) 185) dismissed the action—in large part on the grounds that he did not accept the appellants’ evidence of oral history of attachment to the land—and he merely granted a declaration that the plaintiffs were entitled to use unoccupied or vacant land subject to the general law of the province. The British Columbia Court of Appeal on appeal upheld the decision of the lower court in most important respects. The key questions before the Supreme Court were the content of aboriginal title, and what was required for its proof.

Held: the lower court decision should be overturned and a new trial should be held.

Evidence

The Supreme Court found that the trial judge had failed to apply a correct evidential approach. A “special approach” is required in such cases because of the nature of aboriginal rights themselves, which arise from the attempt to reconcile the prior occupation of North America by distinctive aboriginal societies with the assertion of Crown sovereignty over Canadian territory. Accordingly, “a court must take into account the perspective of the aboriginal people claiming the right.... while at the same time taking into account the perspective of the common law” such that “[t]rue reconciliation will, equally, place weight on each”. Trial courts should approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and interpret that evidence in the same spirit. Because societies did not keep written records at contact or sovereignty, the evidence relied upon by the applicant and the courts may relate to aboriginal practices, customs and traditions post-contact; it simply needs to be directed at demonstrating which aspects of the aboriginal community and society have their origins pre-contact.

The court noted the particular difficulty the general courts has in dealing with oral evidence, and quoted from the Report of the Royal Commission on Aboriginal Peoples (1996) vol 1 (Looking Forward, Looking Back) at p33:

“The Aboriginal tradition in the recording of history is neither linear nor steeped in the same notions of social progress and evolution [as in the non-Aboriginal tradition]. Nor is it usually human centred in the same way as in the western scientific tradition, for it does not assume that human beings are anything more than one—and not necessarily the most important—element of the natural order of the universe. Moreover, the Aboriginal historical tradition is an oral one, involving legends, stories and accounts handed down through the generations in oral form. It is less focussed on establishing objective truth and assumes that the teller of the story is so much a part of the event being described that it would be arrogant to presume to classify or categorize the event exactly or for all time.

In the Aboriginal tradition the purposes of repeating oral accounts from the past is broader than the role of written history in western societies.  It may be to educate the listener, to communicate aspects of culture, to socialize people into a cultural tradition, or to validate the claims of a particular family to authority and prestige. ...

Oral accounts of the past include a good deal of subjective experience. They are not simply a detached recounting of factual events but, rather, are “facts enmeshed in the stories of a lifetime”. They are also likely to be rooted in particular locations, making reference to particular families and communities, This contributes to a sense that there are many histories, each characterized in part by how a people see themselves, how they define their identity in relation to their environment, and how they express their uniqueness as a people.”

The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached  the conclusion that the appellants had not demonstrated the requisite degree of occupation for “ownership”.  Had he assessed the oral histories correctly however, his conclusions on these issues of fact might have been very different—therefore a new trial was required.

The nature of aboriginal title

While the evidential issue was the fundamental reason for ordering a retrial, the Supreme Court went on to give advice on the nature of aboriginal title. The description of aboriginal title as a “personal and usufructuary right” in St Catherine’s Milling and Lumber Co v The Queen (1888) 14 AC 46 at 54 by the Privy Council has not been “particularly helpful” in explaining the various dimensions of aboriginal title, but makes the point that it is a unique or sui generis interest in land whose characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems. It must be understood by reference “to both common law and aboriginal perspectives.”

The key features of the title are:

•  Inalienability: it is alienable only to the Crown, and is “personal” only in this sense.

•  Source: it arises from occupation prior to soverignty and contact, not from any legal instrument calling it into being—although such instruments may recognise it. This suggests a second source for aboriginal title— the relationship between common law and pre-existing systems of aboriginal law.

•  Communal: aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation.  Decisions with respect to that land are also made by that community.  This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests.

•  Content: this can be summarized by two propositions; “first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land.”

While aboriginal title holders may use land for uses not connected with former practices or customs eg exploitation of oil and gas reserves (from Guerin), it does not include the full inalienable fee simple, because there is an inherent limit, in that lands held pursuant to aboriginal title cannot be used in a manner that is “irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to aboriginal title.” This is because because the title springs from prior occupation by a community, and since the title protects that, nothing should be done on the land which would end the relationship with the land. Also, “the relevance of the continuity of the relationship of an aboriginal community with its land … applies not only to the past, but to the future as well. That relationship should not be prevented from continuing into the future. As a result, uses of the lands that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title.” For example, if occupation were established with reference to the use of the land as a hunting ground, then the group might not use the land in such a fashion as to destroy its value for such a use eg, by strip mining it.  Similarly, if a group claimed a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship eg by developing the land as a parking lot. The special relationship is also the reason for the restriction on alienability. There is some similarity between this concept and the limits imposed by the doctrine of equitable waste, which holds that persons holding a life interest in a property cannot commit “wanton or extravagant acts of destruction” or “ruin the property”.

It is however possible to surrender the aboriginal title interest to the Crown for consideration if the owners want to use the lands in way which aboriginal title does not permit—this underscores the limit which is implicit in the aboriginal title.

Relationship between aborignal rights and aboriginal title

Aboriginal rights “fall along a spectrum with respect to their degree of connection with the land.”  At one end are rights which are practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right, but the occupation and use of the land is not sufficient to support a claim of title to the land. “In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land.  Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity.” Aboriginal title is at the far end of this spectrum, and confers more than the right to engage in site-specific activities, since site-specific rights can be made out even if title cannot. Aboriginal title confers a “right to the land itself.”

Time period for the right

Whereas the time for the identification of aboriginal rights is the time of first contact, the time for the identification of aboriginal title is “the time at which the Crown asserted sovereignty over the land.” This is because the Crown’s underlying title comes into existence at sovereignty and aboriginal title “crystallized” at that time.

Occupancy and continuity

In earlier decisions (R v Van der Peet [1996] 2 SCR 507) the Supreme Court has held that aboriginal rights must be activities “integral to the distinctive culture of the claimants”. In the case of aboriginal title, proof of occupancy satisfies this test.

As to the degree of proof  required, the physical fact of being on the land is relevant as well as the aboriginal systems of land holding (since both the common law and aboriginal law are relevant to aboriginal rights). At common law, physical occupation may  be established in a variety of ways, “ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources” (quoting McNeil Common Law Aboriginal Title pp 201-202). In considering whether occupation sufficient to ground title has been established, “one must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed”.

There is however, no need to establish “an unbroken chain of continuity” between present and prior occupation. The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title. To impose the requirement of continuity too strictly would risk undermining the intention of the Canadian constitution to protect aboriginal rights by “perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers who failed to respect” aboriginal rights to land.

There is a “strong possibility” in most cases that the precise nature of occupation will have changed between the time of sovereignty and the present. But such a change in the nature of occupation would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. “The only limitation might be the internal limits on uses which land that is subject to aboriginal title may be put, ie, uses which are inconsistent with continued use by future generations of aboriginals.”

Exclusive occupancy

At sovereignty, occupation must have been exclusive. However, while exclusivity at common law places a premium on physical occupation as Europeans perceived it, in examining aboriginal title, the courts must place equal weight on the aboriginal perspective. Exclusivity is a common law principle derived from the notion of fee simple ownership and should be “imported into the concept of aboriginal title with caution.” The test for exclusive occupation must take into account the context of the aboriginal society at the time of sovereignty. It may be demonstrated even in situations where other aboriginal groups were present, or frequented the claimed lands. “Thus, an act of trespass, if isolated, would not undermine a general finding of exclusivity, if aboriginal groups intended to and attempted to enforce their exclusive occupation.  …. the presence of other aboriginal groups might actually reinforce a finding of exclusivity.” For example, “[w]here others were allowed access upon request, the very fact that permission was asked for and given would be further evidence of the group’s exclusive control.”

As well as aboriginal laws as to trespass and permission for such trepass, there might be laws under which permission was granted to other groups to use or reside temporarily on land. There could be a form of “shared exclusivity” between groups:

“The meaning of shared exclusivity is well-known to the common law. Exclusive possession is the right to exclude others.  Shared exclusive possession is the right to exclude others except those with whom possession is shared.  There clearly may be cases in which two aboriginal nations lived on a particular piece of land and recognized each other’s entitlement to that land but nobody else’s.”

There is also the possibility of proving rights short of aboriginal title. Where lands were used for hunting by a number of bands, while that shared use may not entitle any one group to claim aboriginal title, they might all share aboriginal rights to hunt specific to those lands—“in addition to shared title, it will be possible to have shared, non-exclusive, site-specific  rights. … this accords with the general principle that the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance. It also allows sufficient flexibility to deal with this highly complex and rapidly evolving area of the law.”

In a minority judgment which largely endorsed the majority view, La Forest J proposed that continuity of use and occupation might also be established in situations where “one aboriginal group may have ceded its possession to subsequent occupants or merged its territory with that of another aboriginal society. As well, the occupancy of one aboriginal society may be connected to the occupancy of another society by conquest or exchange.”

[Ed: Canadian law differs from New Zealand in that aboriginal rights are protected by the Constitution Act 1982 (s35(1) provides that  “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”). However the Canadian courts have made it clear that the consitutional protection merely protects pre-existing common law rights—so that it is only in respect of extinguishment that the Canadian law can be said to differ significantly from New Zealand. If it is accepted that aboriginal title is merely a subset of aboriginal rights then the scope for finding as yet unextinguished aboriginal rights in this country would seem to be enhanced.

The Canadian courts have consistently held that mineral rights are a part of common law aboriginal title. This case reiterates that view. Mäori groups have consistently claimed mineral rights in their lands. If the Canadian position is accepted by the New Zealand courts, there may be a challenge to the government position which prevents claimant groups from discussing mineral rights in their claim settlements.

The decision may also have some influence in Australia. The majority judgment quotes the decision of the High Court of Australia in Mabo in support of the view that it would be unfair to require indigenous groups which have been driven from their land by colonial forces to show a strict continuity between their past and present occupation of the land. In fact, the Mabo judgment inclines to the opposite conclusion. Perhaps the comments of the Supreme Court of Canada will allow room in Australia for a reassessment of the Mabo decision on this point.]

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