March 1998 Contents

Mäori Land Court & Appellate Court

No items this month

Waitangi Tribunal

New members. Resigning members

Other Courts and Tribunals

Court of Appeal–jurisdiction over Mäori in criminal matters

High Court–injunction preventing Mäori Land Court conference

High Court–discontinuance of Ngäi Tahu proceedings against Waitangi Tribunal

High Court–adoption by grandparents of Mäori child

Environment Court–sand dredging effect on kaimoana beds

Environment Court–marine farm proposal, Malborough Sounds

Parliament

Mäori Reserved Land Amendment Act 1998

Reports & Articles

Historic Heritage Management Review

Local government, Mäori organisations & resource management–survey

Other

Proposed boundaries of the new Mäori seats

Trick or Treaty? Doug Graham book

Mike Moore’s Constitutional Convention Bill

 

 

Mäori Land Court & Appellate Court

No items this month.

Waitangi Tribunal

New members of Waitangi Tribunal

Two new members of the tribunal have been appointed.

Wharehuia Milroy: Professor of Mäori Studies at the University of Waikato. He is a Tuhoe kaumatua, a member of Te Taura Whiri I Te Reo Mäori (Mäori Language Commission) and of the Waikato Museum Taonga Mäori Advisory Committee and an adviser to the NZ Qualifications Authority. He has published material on Mäori issues and has acted as an assessor for the Mäori Land Court in its decision on Ngäti Paoa representation.

Josie Anderson: Chief Executive of the Hauraki Mäori Trust Board. She is of Ngäti Hako and holds a BSW from Massey Univeristy and a Diploma of Mäori and Management from Te Waananga oo Raukawa. She has previously worked extensively as a social worker for the Department of Social Welfare. She is a board member of the Hauraki regional business, tourism and conservation boards. She is also an executive member of several fishery companies in Paeroa.

Existing members Michael Bassett and Pamela Ringwood have been re-appointed for 3 years. Sir John Ingram, John Turei and Bishop Manuhuia Bennett will retire, although they will continue working on hearings begun but not yet completed. Bishop Bennett has been a very active member and integral to the tribunal since his appointment in 1986 and has sat on all of the tribunal’s major claims, including the Muriwhenua and Ngäi Tahu fishing and land claims, the Taranaki claim and the Radio Frequencies claim, among others.

Other courts & tribunals

The Queen v Clarke

CA 348/97. Court of Appeal 26 February 1998. Gault, Henry, Keith JJ

In a brief judgment the court rejected an appeal against convictions for the large scale cultivation of cannabis. The appellants argued that “the courts of New Zealand have no jurisdiction over members of the Mäori tangata whenua.” The Declaration of Independence of 1835 and the Treaty of Waitangi, among other documents, were cited in support. The court found that “The criminal jurisdiction of the New Zealand courts which is invoked in this case is territorial, not personal in particular. The courts have jurisdiction to deal with all acts and omissions which constitute criminal offenses under the Misuse of Drugs Act 1975, committed within New Zealand.”

Stirling & Others v The Mäori Land Court

CP11/98. High Court Wellington. 5 February 1988. Gendall J

The applicants challenged directions of the Mäori Land Court that an inquiry be conducted under s30 of Te Ture Whenua Mäori Act 1993 to determine the appropriate representatives for the owners of the Haparangi A4 block for the purposes of negotiations with the Crown and, if necessary, any consequent legal proceedings.  They also challenged directions of the Mäori Land Court convening a conference (under s67/1993) to consider the names of people acceptable to the parties who could be appointed to assist the Mäori Land Court in determining the representation issue (s33/1993 additional members in matters of representation). A date for that conference had been scheduled.

The applicants contended that in earlier proceedings in the High Court relating to the Haparangi A4 block, detailed representation orders had been made. They therefore sought interim relief restraining the Mäori Land Court from making an inquiry under s30, so as to preserve their position before the hearing of their substantive claim. The Crown, on behalf of the Mäori Land Court, submitted that the scheduled conference of the Mäori Land Court was only for the purpose of discussing who the additional members of that court should be should the s30 matter proceed. Such a conference would not impinge upon the orders made by the High Court.

Held: the High Court should not at this juncture determine the substantive matters of whether the earlier High Court orders effectively determined the question of representation or the extent to which the jurisdiction of the Mäori Land Court pursuant to s30/1993 is ousted or excluded, or limited by those earlier orders. However, the applicants were entitled to an interim relief order simply to preserve their position and maintain the status quo until such time as the High Court could deal with their substantive application. Putting matters in the Mäori Land Court on hold would not infringe any public or private right of others, nor inhibit the function of the Mäori Land Court, which could be properly served and fulfilled if it should be later found that there has been no excess of its jurisdiction. Accordingly, an order restraining the Mäori Land Court from taking further action to inquire into and determine matters of representation under s30/1993 would be made.

Tau & Te Runanga O Ngäi Tahu Ltd v Durie & The Waitangi Tribunal & The Attorney-General

CP215/95. High Court Wellington. 12 February 1998. McGechan J

The Waitangi Tribunal applied to dismiss the Ngäi Tahu proceeding on the grounds that its further continuance was an abuse of process and/or frivolous or vexatious.  Ngäi Tahu opposed the application and sought a further adjournment of the substantive proceeding.

The background was that, after hearing the Ngäi Tahu land claim, the Waitangi Tribunal recommended negotiations between the Crown and Ngäi Tahu, with a right reserved to Ngäi Tahu to resort back to the tribunal in the event of failure. Negotiations broke down and Ngäi Tahu applied to the tribunal for the return of forest lands and all state-owned enterprise lands within the claim area. The Chief Judge declined to immediately progress the Ngäi Tahu application, citing resource limitations and the need to progress other claims. Consequently, Ngäi Tahu sought remedial orders declaring that the Chief Judge wrongly intervened (he had unexpectedly presided in place of Judge McHugh, the presiding member for the Ngäi Tahu hearings), and seeking to quash the decision to defer the Ngäi Tahu application, and directing a fixture in the tribunal and prohibiting the Chief Judge from any further interference in the Ngäi Tahu claims. Meanwhile, discussions between Ngäi Tahu and the Crown had resumed and Ngäi Tahu sought a number of adjournments of the substantive proceeding.  In November 1997 Ngäi Tahu and the Crown signed a Deed of Settlement, conditional upon satisfactory legislation being introduced by May and passed by November 1998. While the Waitangi Tribunal now sought to dismiss the proceedings, Ngäi Tahu sought a further adjournment pending the passing of the legislation.

Held: the proceeding should be dismissed. The court thought it should approach the situation with an eye on realities and the public interest. The existing proceedings would remain relevant now that the passage of the settlement legislation appeared likely. The conditions which led to the refusal of the tribunal to set a fixture had changed to a significant degree (in particular, the tribunal had completed its Rangahaua Whanui project which surveyed all historical claims – see Mäori LR May 1997 p1).  If Ngäi Tahu needed to approach the tribunal again, it would be necessary to focus on any fresh refusal or delay and institute a new proceeding. The proceedings were not an abuse of process, but had simply outlived their time.

Undoubtedly, in allowing the proceedings to be adjourned over two years, there had been a “cloud” over the Chief Judge and the Waitangi Tribunal, although, in the public interest, that was a burden the court had been prepared to countenance. Dismissal of the proceedings did not determine the issues raised for or against either party, and did not imply that Ngäi Tahu acted improperly in originally issuing the proceeding. It was simply now stale and better removed in the public interest.

In Re T

HC 128/97. High Court Auckland. 4 March 1998. Robertson J.

The paternal grandparents of a grandchild who had lived with them since birth, sought an interim adoption order to close off the possibility that the mother might return at some stage to claim the child.

Held: the adoption order should be refused. Evidence was received from Father Tate and Canon Hone Kaa, “two towering figures in Mäoridom”. Father Tate was concerned that the adoption mechanism severed rights and could deny a child part of its whakapapa. Canon Kaa contended that whakapapa could not be interfered with no matter what Pakeha law might do. The Court noted the concern of Father Tate that a person who had a legal tie with their whänau, hapü or iwi severed could lose rights as a claimant. “One should not ignore the fact that with Treaty of Waitangi claims being considered and settled that can be a matter of substantial material importance.” Canon Kaa considered however that whänau, hapü and iwi could recognise and consider claims even if a necessary nexus in NZ law no longer existed.

In the end however, the case had to be decided on its own merits. The interests of the child were to be promoted, and this was recognised even in the now dated Adoption Act 1955. While it might be in the interests of the grandparents to provide certainty, an adoption order, which is permanent, inflexible and unchanging, was “too high a price to pay”.

There was no real evidence that the mother might claim the child, and the grandparents could readily obtain a guardianship order to give them the security and stability they sought. The judgment was not to be taken as setting any general rule preventing grandparent adoptions for a child who has Mäori heritage.

Te Atiawa Tribal Council v The Taranaki Regional Council and Westgate Transport Ltd

A15/98. Environment Court. 13 February 1998. Sheppard J

A commissioner appointed by the Taranaki Regional Council granted a coastal permit to Westgate Transport Ltd (a port company) to deposit clean sand in an area of near-shore coastal water of New Plymouth. The deposited sand would be dredged from a shoal at the tip of the main breakwater at Port Taranaki. Te Atiawa opposed the proposed depositing because of adverse effects on kaimoana beds valued by them and appealed to the Environment Court against the decision.

Held: the appeal should be dismissed. Two issues were raised by the appellants: the adverse effect of the sand deposit on the kaimoana beds and the lack of consultation over the proposed sand deposits. On the issue of consultation, s8 Resource Management Act 1991 required the Court to take into account the principles of the Treaty of Waitangi, the relevant principles in this case being those of partnership and protection. The applicant offered Te Atiawa Tribal Council consultation about the proposal but the tribal council did not respond. Another Mäori body, the Ngäti Te Whiti Hapü Society, also claiming to represent Te Ati Awa interests, had responded to the offer of consultation and had approved the proposal. The court expressly refrained from giving any opinion on representation issues. However, it found that while the principle of partnership is the basis for a requirement that Mäori should be consulted, consultation with Mäori does not give Mäori a veto over proposals the subject of resource consent applications. A partnership involves some reciprocity and so does consultation. If one party offers consultation and another party does not respond, an assertion of lack of consultation “is empty of meaning.”

Te Atiawa argued that the kaimoana beds were valued by them as a traditional source of food for customary hospitality and that harm would be caused by the fresh sand deposits compounding the movement of sand and smothering the beds. But while the court accepted the sincerity and understanding of natural processes shown by Mäori who had used the reefs for generations, they had no scientific evidence which could contradict the scientific evidence that the new deposits would have little or no effect on the beds (that evidence had been collected in conjunction with Te Ati Awa). Nothing in the scientific evidence could support a judicial finding that the proposed trial deposit would cause lasting harm to kaimoana beds at or around Kawaroa Reef or elsewhere beyond the trial deposit site.

Having regard to the new regional coastal plan (which included reference to the importance of protecting kaimoana gathering areas), and s5(2) RMA 1991 the proposal was a soundly based trial of an option for deposing of port dredgings and represented a use and protection of the natural sand resource in a way which enabled the people and community of New Plymouth to provide for their social and economic well-being. Any adverse effects on marine life and on kaimoana valued by Mäori would be minor and temporary.

The conditions to the consent were modified to include in the monitoring programme a provision for a protocol for any artifacts found in the course of the operation.  In addition, the port company was to pay a $50,000 bond to the Taranaki Regional Council to be used for restorative works if the regional council, in its sole discretion, considered after 12 months that sand from the trial has adversely affected kaimoana beds.

Malborough Seafood Ltd v Malborough District Council

W012/98. Environment Court. 20 February 1998. Kenderdine J, R Bishop, I McIntyre

This was an appeal from the refusal of the district council to issue a coastal permit for a marine farm for shellfish. Local iwi were among the opponents to the farm proposal. They presented evidence that they considered themselves kaitiaiki of the area, and that there was a direct link between the diminution of their role as kaitaiki in recent decades and the decline in marine life. The mana of the local tribes was also bound up with their reputation for providing kaimoana of high quality in abundance.

Held: the decision of the district council should be confirmed and the appeal disallowed because of, among other matters, the effects on the seabed ecology, cultural effects on local iwi and the failure to adequately consultation the iwi.

While the applicant argued that the proposal would have little effect on the ecology of the seabed, the local iwi argued otherwise, and the court found that the ecological balance was likely to be upset by the fall of shell and organic debris from the farm smothering the adjacent fishery. The local iwi produced a record of fishing permits which they had issued to their members to fish for hui, which covered a wide variety of fish and shellfish species in the area.

As for cultural values, the court noted the application to the Mäori Land Court for title to the foreshore and seabed of the Malborough Sounds (see Mäori LR Dec 97/Jan 98) but made no comment on it since it was outside the jurisdiction of the court. The proposed farm would be in an area which local iwi had considerable historical connections with and considered themselves kaitiaiki of. The farm would restrict access to, and the use of nets in, a traditional fishing ground for kina and other species which was commonly resorted to. The court noted that if, as in this case, there was no effective challenge to the Mäori evidence on issues of sustainable management, and if the court found that evidence credible, then it was required to make findings in support of the iwi case.

There had also been inadequate consultation with local iwi in terms of section 8. The council had done no more than notify iwi of the proposal and advise the applicant to contact iwi groups. Local iwi were required, for no renumeration, to service 11 local bodies and had received 1330 resource consents to process in 1995.

There are two lines of case law on the consultation required by councils. One establishes a duty to consult with tangata whenua, the other “regards consultation as a good practice but not mandatory for either council officers or applicants.” The decision in Mason-Riseborough v Matamata-Piako District Council (A143/97, see Mäori LR Dec 97/Jan 98) establishes that the court must look to the circumstances of each case and parties must act reasonably and in good faith and “reflect an underlying fairness” in all their actions. The court will look not only at consultation prior to a council decision on a resource consent, but also further consultation which may have been undertaken up to the time an appeal is heard, and which might fulfil the duty under s8 where it has earlier been breached. In some cases a failure to adequately consult at an early stage has resulted in a requirement to undertake further consultation before an application proceeds. In other cases, where a failure to adequately consult has been “more central to the issue at hand”, the failure has led to the outright rejection of the application or plan change (eg Gill v Rotorua District Council (1993) 2 NZRMA 604; Ngäti Kahu v Tauranga District Council [1994] NZRMA 481).

In this case, the local iwi had major concerns which should have been addressed at the council level, but because the application was declined by the council the failure of adequate consultation was not fatal to the council decision, although it had resulted in an “expensive intervention” by the iwi in the appeal. The council and the local iwi had meanwhile undertaken to improve the consultation process to relieve the pressure on the local iwi.

[Ed: among other matters, the case highlights the pressure which has been placed on many iwi by the Resource Management Act to respond to requests for consultation. Other grounds on which the appeal was disallowed (landscape effects, effects on recreational use and amenity values, navigation and public safety issues) are not reviewed here.]

Parliament

The Mäori Reserved Land Amendment Act 1998

1998 No 1. 16 March 1998

This Act replaces ss 17 and 18 of the amendment Act 1997 relating to the right of lessees to elect to have compensation determined by the Land Valuation Tribunal and the determination of compensation by that tribunal.

Right of lessee to elect to have compensation determined by Land Valuation Tribunal

The Act now provides that in cases where notice has been given to lessees by the chief executive of Te Puni Kokiri under s17(1) of the Mäori Reserved Land Amendment Act 1997 (whether before or after the commencement of this latest amendment), new notice must now be given under s3 of this amending Act.

This notice must state that the lessee may elect either to accept both the amounts specified in the notice for compensation and solatium payments or to have compensation determined by the Land Valuation Tribunal in accordance with s4/1998 (these matters mirror those set out in s17(2)/1997).

In addition, however, the notices must also state that notices given by the chief executive to lessees specifying compensation and solatium payments payable (s17(1)/1997), notices given by lessees to the chief executive that they will accept the amounts specified (s17(4)(a)/1997) and applications made by lessees to have compensation determined by the Land Valuation Tribunal (s17(4)(b)/1997) are all of no effect. If lessees wish to make the election described under s17(1)/1997, it must be done under this new amending Act.

Determination of compensation by Land Valuation Tribunal

Amendments to s18 relate to the point in time in which the Land Valuation Tribunal may determine the market value of the interest in the lease and how that market value must be determined.

Section 18 now provides that the Land Valuation Tribunal must, as soon as practical after 1 January 2001, determine the market value as at 1 January 2001.  It does away with the provision that the Land Valuation Tribunal must, as soon as practical after an application is filed, determine the market value of the lessee’s interest in the lease, as at 1 January 1998.  The amending section also provides different bases on which the market value is to be determined.  The market value must be determined, firstly, on the basis of what the market value would have been, as at 1 January 2001, if the Mäori Reserved Land Amendment Act 1997 and this Act had not been “proposed or enacted”.  Secondly, on the basis of what that market value is, as at 1 January 2001, in the light of the Mäori Reserved Land Amendment Act 1997 and this Act.

[Ed: the implications of this legislation will be discussed in the next issue when Hansard becomes available. The amendment generated a heated debate in Parliament because it provides on its face that farmers will be entitled to compensation based on the value of their lease interests at a time prior to 1991, ie before any changes to the reserved lands scheme were “proposed or enacted”, and there had been no significant drop in the value of their leases due to fears about Mäori claims.]

Reports & Articles

Historic Heritage Management Review - A Discussion Paper for Public Comment

Department of Conservation. January 1988

In 1995-96 the Parliamentary Commissioner for the Environment investigated the system of heritage management and concluded that the system as a whole was performing poorly and that there was a particular need for more effective protection of Mäori heritage. This paper sets out issues, options and questions and seeks ideas and proposals for establishing a more effective system for historic heritage management in New Zealand.

One of the objectives of the review is to identify the most efficient and effective policies and processes to improve the protection and management of Mäori heritage, considering the need to support the Crown’s duties derived from the Treaty of Waitangi to take reasonable action to protect sites of significance to Mäori, the principles of the Treaty generally and a better appreciation and understanding of the Mäori dimension of New Zealand’s cultural heritage. Another objective is to improve the design, access to, delivery and monitoring of policies and programmes for the protection and management of Mäori heritage and to improve the participation and representation of Mäori in relevant processes. A national hui was convened by the Mäori Heritage Council in November 1996 to develop options for addressing systematic problems in managing Mäori historic and cultural heritage, review the current initiatives being taken by tangata whenua and develop strategies for protecting and managing historic and cultural heritage of significance to Mäori. The following options are given in the discussion paper:

•  Maintain the status quo.  The RMA 1991 provides for Mäori heritage as a matter of national importance and the Historic Places Act 1993 provides for recognition of Mäori values, but there are few processes specific to Mäori heritage;

•  Re-establishing the Mäori Heritage Council as an autonomous non-Crown body;

•  Development of a national strategy for Mäori heritage, which could be separate or could form part of a National Policy Statement on historic heritage generally;

•  Strengthening special provisions for registration or listing of Mäori heritage places;

•  Ensuring that generic protection mechanisms include processes allowing for specific consideration of Mäori heritage values and full participation by Mäori at all levels;

•  Expanded heritage conservation advice services to Mäori communities/marae;

•  Assistance to iwi to develop planning documents identifying significant places/areas;

•  Assistance to tangata whenua to identify Mäori heritage values and assessments of effects in RMA 1991 processes.

Public consultation and submissions will take place in February and April 1998, with a view to legislation being introduced by late 1998.

He Tohu Whakamarama - A report on the interactions between local government and Mäori organisations in Resource Management Act processes

Ministry for the Environment. Manatü Mö Te Taiao January 1998

This is a report of responses from 46 councils and 25 Mäori organisations on the interactions between local government and Mäori organisations under the RMA 1991.

Council response

A variety of consultation methods are employed by councils.  Hui with local iwi/hapü were identified as being the most effective as they provided personal contact and established goodwill. The use of Mäori consultants and working/advisory groups were also seen as beneficial. Most Mäori concerns were able to be addressed by the councils.  Those that were not included Treaty-based grievance issues, resource ownership issues, health issues and others which fall outside the powers of councils. There are some difficulties identifying who are the appropriate iwi/hapü groups for consultation. Some iwi members were concerned that they were not being consulted on numerous decisions that iwi organisations were making on their behalf, who were not representative of their views and did not have a mandate to speak on their behalf. Mäori liaison officers or Mäori committee members are used by most councils to determine which iwi groups to notify regarding resource consent applications. The majority of council respondents provide funding for Mäori participation, commonly in the form of consultancy services determined by consultancy rates. The majority of councils had not received iwi requests for a transfer of powers under s33 RMA 1991. Most council respondents considered they had an adequate level of understanding on Mäori resource management concepts and the Treaty of Waitangi. General comments indicated there still was a need to increase cultural awareness amongst council staff.

Mäori response

The most effective consultation method for involvement in policy statements and plans for most Mäori respondents was through a contract for services. Hui were seen as being the next most effective, while sending of drafts was the least effective. The majority of Mäori respondents thought their concerns were accommodated in statements or plans, but the remainder said that none of their concerns were met. Many said they were not adequately notified of resource consents and just over half said councils paid for their participation in the consultation process. All, bar one, said councils and applicants should fund Mäori involvement. Council staff should try to have a high level of understanding of Mäori issues so as to be effective and receptive to Mäori concerns. Limitations of Mäori professional expertise was identified as an impediment to effective input.  Expectations of iwi organisations to respond to planning and resource consents were too high given limited financial and human resources available. Statutory timeframes were often too short.

The need to provide guidance to assist interactions and relationship building between local authorities and iwi/hapü was apparent. Issues raised for further consideration include the best methods for effective consultation, early and informed Mäori participation, identifying and involving all iwi/hapü groups, funding and support, development of iwi resource management plans, skill-based support for Mäori in resource management processes, cultural awareness, identifying and responding to iwi/hapü concerns and needs, and the need for guidance to assist interactions and relationship building.

Proposed boundaries of the new Mäori seats

Representation Commission. Te Komihana Whakatau Rohe Pöti

This review of the electoral boundaries under the Electoral Act 1993 includes major changes to the boundaries of the Mäori electorates to take account of the new sixth Mäori electorate which is required because of the increased numbers enrolled on the Mäori electoral roll (the Mäori electoral option was last exercised in July and August 1997).

As can be seen from the accompanying map (p6), the proposal makes significant changes to all the present electorates except Te Tai Tokerau and Te Tai Tonga. In determining the Mäori electorates, the commission must take account of existing electorate boundaries, the community of interest among Mäori people generally and members of Mäori tribes, facilities of communications, topography, and any projected variation in the Mäori electoral population of electoral districts during their legal existence.

The proposed Hauraki seat “approximates the area of the Hauraki tribes” and also includes parts of the tribal areas of Ngäti Whatua and Waikato. The new electorate is necessary because of the combination of these different Mäori tribal communities of interest, the large number of Mäori from all parts of New Zealand who are resident in the greater Auckland area, and projected growth in population to 2005.

The southern boundary of Te Tai Hauauru electorate has been expanded to include Taranaki, consequently, the Chatham Islands would be included in that electorate “owing to the traditional links with the tribes belonging to Taranaki.” The Chatham Islands are presently in Te Tai Tonga electorate.

The public has until Wednesday 29 April 1998 to lodge written objections.

Trick or Treaty?

Douglas Graham. Institute of Policy Studies. 1997

The Minister in Charge of Treaty of Waitangi Negotiations acknowledges from the outset that this book has been written to assist the average person who may not know a great deal about the Treaty but is keen to find out more. He makes no claim that this book is a particularly scholarly work. By his own admission, many accounts of events are extremely brief and probably do less than justice to the issue, but he is anxious the reader should not become too bogged down in detail.

His approach to the issue and his role is extremely pragmatic. The question of whether New Zealand is multicultural or bicultural is “inane”. New Zealand is “obviously bicultural … but Mäori have a special place form a constitutional point of view.” Discussing the Treaty itself, he notes that much has been made about its terms and it has over recent times been subject to academic dissection but at the end of the day, it is essentially just a “pact of goodwill between two quite different peoples”.  What can be reasonably assumed was that each recognised that the future relationship between Mäori and the Crown would very much depend on trust, but when the Crown breached that trust, the Minister considers that “the failure to ensure the existence of an institution to which Mäori could seek justice was one of the greatest acts of betrayal in New Zealand’s history.” Mr Graham believes it is unlikely that Mäori can ever successfully get adequate compensation in the courts for losses arising from Treaty breaches suffered since 1840. Compensation has become a political matter. Further, what is needed is not just redress, but a renewal of the relationship between Mäori and the Crown and these are clearly political matters.

Trick or Treaty? traverses the development of the Waitangi Tribunal and Treaty jurisprudence. While acknowledging a debt of gratitude is owed to the members of the tribunal for this development, the Minister has not always agreed with their findings.  Nor does he support the constitutional arguments of the tribunal. He describes the tribunal’s stance as "adventurous" when it suggests that Article 2 qualifies or limits the authority of the Crown to govern. New Zealand does not have a constitution like that of the United States. The tribunal is going too far if it is also hinting that the courts should have the power to strike down legislation considered to be in breach of the principles of the Treaty.

Mr Graham commends the approach of the courts to build on the doctrine of the fiduciary relationship. However, he is critical of the courts’ description of the relationship between the Crown and Mäori as a partnership. The Crown is not in partnership with Mäori in running the country. The concept is unacceptable because it implies some sort of joint management with veto rights vested in each party. This is not to say, however, that greater self-management by Mäori of their own affairs is not possible.

Trick or Treaty? then looks at the grievances. Mr Graham dismisses the notion that Mäori did not understand the concept of complete alienation when negotiating land transactions. At least by 1850 at the lastest Mäori were aware of exactly what sales meant. The wars and land confiscations undoubtedly had a devastating impact on Mäori and the Minister obviously believes it is here that the most well founded claims lie. However, in discussing the impact of the operations of the Native Land Court, Mr Graham is less than convinced that that court caused greater damage in total than any other process, as has been claimed. The court may have made sales easier but the process still required a number of willing sellers. In looking at other causes of land loss (gifts, compulsory acquisitions and perpetual leases), Mr Graham concludes that Mäori were treated very unfairly. However, it cannot be suggested that Mäori were entirely blameless.  All people can suffer from greed.

The recent settlements of major claims are discussed with sincerity and some introspection, particularly the agreement with Waikato over their raupatu claims. Mr Graham is also blunt about the “hard-nosed” approach of Ngäi Tahu to their settlement negotiations.

Mr Graham explains that the government had to enter quickly into negotiations with Ngäi Tahu and Waikato-Tainui over their settlements, and develop a Treaty settlement policy without full consultation, because it was concerned about the power of the Waitangi Tribunal to make mandatory orders to return state enterprise and forestry lands.

Mr Graham identifies tribalism as an important issue in New Zealand and cites the current debate over the allocation of fishing quota. He believes the traditional view has much weight and that social problems must be dealt with in another way. However, he stresses this is a matter for Mäori finally to work through and it is not for government to determine whether tribalism is to remain the fundamental structure for Mäori.

For the future, he suggests a joint council of 10 government ministers and 10 leaders from Mäori organisations who would hold monthly meetings chaired by the Governor-General to discuss “potentially difficult issues” and avoid problems before they arise.

Constitutional Convention Bill 1998

Proposed Private Members Bill. Hon M Moore

This proposed bill provides a process by which proposals for major constitutional change could be examined. A Leadership Council would be established, consisting of the leaders of each political party in Parliament, with the Prime Minister as chairperson. The council would appoint a 9 person Eminent Persons Group, after considering public suggestions. The Eminent Persons Group would meet by 1 March 2000, and its role would be to promote discussion about a forthcoming constitutional convention and a possible referendum to determine options for constitutional change.

The constitutional convention would take place no later than 2003. It would be called by the Leadership Council with advice from the Eminent Persons Group. Delegates to the convention would be one person for every 2 General electoral districts and one person for every Mäori electoral district (elected by general election voting procedures adapted to the situation), 20 parliamentarians appointed by the Leadership Council, 10 persons recommended by the Eminent Persons Group and special delegates being all former Governor Generals, Prime Ministers and representatives for Niue, the Cook Islands and Tokelau.

The constitutional convention would consider, and seek consensus among delegates about, among other issues:

•  whether NZ should become a republic;

•  whether a written constitution and entrenched bill of rights are required;

•  whether rights of appeal to the Privy Council should continue, and if not, whether there should be an appellate court for the Pacific region;

•  the status to be accorded the Treaty of Waitangi and the appropriate means of applying its principles (including whether it should have a  status equivalent to “supreme law”);

•  constitutional responsibilities to Niue, the Cook Islands and Tokelau.

Part 4 of the proposed bill makes provision for holding a referendum on decisions made by the Constitutional Convention, if that was required.

Part 5 provides that 7 February each year should be a public holiday known as New Zealand Day. Such a day would be “in recognition and celebration of the contribution made by people of various races and cultures to the building of New Zealand”.

[Ed: the fact that this peculiar and in places highly idiosyncratic draft bill is the most detailed proposal for constitutional reform so far advanced in this country, indicates how far New Zealand is from a debate on constitutional reform as serious at that taking place in Australia.]

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