April 1998 Contents

Mäori Land Court & Appellate Court

Nothing this month

Waitangi Tribunal

Challengers to the Ngäi Tahu settlement seek urgent hearing

Urgent hearing sought re sale of Gisborne port land

Other Courts and Tribunals

District Court – customary fishing defence

High Court - matrimonial property

High Court – fiduciary duty in the Mäori

Land Court

Parliament

South Island customary fishing regulations

Debate on the Mäori Reserved Lands Amendment Act 1998

Ngäi Tahu Claims Settlement Bill

Reports, Articles, Books

Waitangi. Morality and Reality

 

 

Mäori Land Court & Appellate Court

No items this month

Waitangi Tribunal

Memorandum re urgency claims challenging Ngäi Tahu Settlement

Wai 706 and others. 22 April 1998. Doc # 2.15. Kearney J

The claimants in Wai 706, filed by Arnold Pohio and others, sought an urgent hearing of their claim which challenges the Ngäi Tahu/Crown Deed of Setlement. They were supported by appearances and submissions from groups including Nga Whänau Taotahi O Haura I Te Raki Mo Waitahanui (Wai 618), Runanga o Mangamaunu representing hapü of Ngäti Moemoe, Ngäi Te Rakiamoa Hapü of Waitaha (Wai 710), Trustees of Block X Section 3C and Rau Murihiku Whenua Mäori (Wai 685 & Wai 158 – both with concerns re the South Island Landless Natives Act 1906), and Ngäti Mamoe (Wai 189). These groups all had various concerns that, when completed, the settlement would affect existing interests and questions of representation.

The Crown and Ngäi Tahu (Wai 27) challenged the urgent hearing request on the basis (among others) that:

•  Sections 6(6) and 8 Treaty of Waitangi Act 1975, which provide that the tribunal has no jurisdiction to consider any bill that has been introduced into the House of Representatives unless it has been referred to the tribunal by Parliament. Also, any consideration of the Deed of Settlement would necessarily involve examining the bill.

•  The applications for urgency did not fulfil the tribunal’s own criteria for an urgent hearing, which state that applicants for urgency must show there will not be a “significant prejudice” to other Mäori interests in giving urgency, yet most of Ngäi Tahu would be adversely affected by a delay in the settlement process. No “significant and irreversible prejudice” would arise. The Deed of Settlement relates to customary rights lost prior to September 1992, and whatever customary rights claimants have at the time of settlement are unaffected. The ability to have representation matters determined in the Mäori Land Court under s30 Te Ture Whenua Mäori Act 1993 will be preserved.

•  The Ngäi Tahu (Pounamu Vesting) Act 1997 and Te Runanga o Ngäi Tahu Act 1996 are existing law and should not be the subject of urgency.

Held: the application for an urgent hearing should be rejected. The tribunal found that the “clear and unequivocal intention” of Parliament in enacting ss 6(6) and 8 was to prevent the tribunal considering bills before the House of Representatives unless the House requested this. Examining the Deed of Settlement would necessarily mean examination of the bill.

The tribunal noted, but made no determination on the contention of counsel for Ngäi Tahu that the settlement when finally enacted would not affect these claimant groups adversely in any event.

This was not an appropriate situation for the tribunal to invite the Speaker of the House to refer the bill to the tribunal, as was suggested by one applicant group.

The claimants could pursue other remedies in any event. High Court proceedings, which were already in train (Waitaha Taiwhenua O Waitaki Trust & Rangimarie Te Maiharoa v Te Runanga O Ngäi Tahu & The Attorney General (CP 41/98 Christchurch Registry)) and submissions could be made to the Mäori Affairs Select Committee considering the bill (some groups had been under the misapprehension that since the bill had been introduced under urgency it would not go through the select committee procedure). Such submissions could include a request that the bill be referred to the tribunal under section 8 Treaty of Waitangi Act 1975.

[Ed: submissions to the select committee close on the 11 May 1998. It is of interest to note the submission from Ngäi Tahu in these proceedings that only customary rights lost prior to September 1992 will be affected by the law. The way is open for claimants to bring actions in the general courts to enforce aboriginal rights which remain in existence under the common law, although they may not it seems seek compensation for historic interference with those rights (at least prior to 1992). See the discussion of these “full and final” aspects of the Ngäi Tahu Deed of Settlement at Mäori LR Dec 1997/Jan 1998.]

Memorandum re urgency for claims concerning Gisborne Port lands

Wai 703. 22 April 1998. Doc # 2.12. Kearney J

In 1879 the government purchased the Tauwhareparae block. In 1884 it passed the land to the Gisborne Harbour Board as an endowment. The board sold some of the land. The board’s successor, Port Gisborne Ltd, now wanted to sell the remaining 11,269 hectares by public tender. The claimants sought compensation from the Crown sufficient to purchase the land, and in this proceeding sought an urgent hearing of that aspect of their claim.

Claimant counsel acknowledged that the sale proposal was the subject of a judicial review action to the High Court set down for a priority hearing in May 1998. There had been an issue whether the land was subject to the Public Works Act and should be offered back to the original owners, but this was not apparently the case.

With respect to s6(4A) Treaty of Waitangi Act 1975, which forbids the tribunal from recommending the return to Mäori ownership of any private land or the acquisition by the Crown of any private land, it was argued this was different from the provision of compensation. Precedents given included $4.75 million to Ngäti Awa claimants in 1996 to purchase the Mataatua meeting house, advances on settlement paid to Ngäi Tahu and compensation paid to Ngäti Whatua.

Held: the application for urgency should be rejected. It was “fraught with difficulties”. Foremost was that:

“the Government’s advance to the claimant of all the funds required to enable it to buy the land would be without precedent in the Treaty Claims settlement process. It would … be quite contrary to the Tribunal’s pattern of recommendations to Government, … which recommendations are required to relate to ‘… the practical application of the principles of the Treaty …’ There must, in the Tribunal’s view, be a discernible pattern of even handedness in the recommendations and settlement of Treaty claims. A measure of this can be seen in a comparison, for example, between the $170 million involved in the Ngäi Tahu settlement of its significant claims, and the $8 to perhaps $10 million, which would be required to purchase the 11,262 hectares involved in this claim.”

Other difficulties were:

•  section 6(4A) Treaty of Waitangi Act 1975, which applied in this case

•  there was one competing claim to the land

•  placing this claim ahead of others awaiting hearing in the East Coast area.

[Ed: this memorandum is noteworthy as an instance of the tribunal declining an urgent hearing largely on the basis of the remedy sought, and commenting on the relativity between claim settlements.]

Other courts & tribunals

Ministry of Agriculture & Fisheries v Waikari & Another

CRN7016006894-99 & 7016006885-93. DC Gisborne. 10 March 1998. Spear J

Charges were brought under Regulation 25 of the Fishing (Amateur Fishing) Regulations 1986 against two Mäori defendants for taking more than six rock lobsters in any one day, possessing undersized rock lobsters, rock lobsters carrying external eggs and rock lobster with broken or damaged second abdominal segments. The defendants claimed the lobster had been taken by way of exercise of customary fishing rights and for the purposes of providing kaimoana for a 60th birthday celebration.

Held: the charges being proved, the defendants were convicted.

The facts of the case were not challenged. Over a nine day period a surveillance operation was conducted by Fisheries Officers in relation to the taking of rock lobster in Sponge Bay, north of Gisborne. The defendants were apprehended and a total of 510 lobsters were found in their possession, of which 85 were dead (many of them rotting), 232 were under the permitted legal size, 35 had damaged tail segments and 135 were female rock lobsters with eggs showing.  The surveillance operation failed to detect any measuring of the rock lobster by the use of an approved device.

The defendants claimed they had a permit which permitted the taking of the lobster. A document had been issued to a third defendant (who pleaded guilty) by the Turanganui Mäori Committee. It purported to permit the third defendant to collect kaimoana for a 60th birth celebration for approximately 500 people. The defendants also claimed the female rock lobster with eggs were unable to be sorted on board their fishing vessel but this was intended to be done at home and those showing eggs would be returned to the sea.

The court held the permit had been issued under a deception and was obtained fraudulently as there was to be no birthday celebration. As to the claim of customary Mäori fishing rights, the defendants were entitled to protection against criminal liability under Regulation 27 if the fish were taken for a hui or tangi, or a non-commercial use that had been approved by the Director General. The court was not prepared to accept statements that the defendants honestly believed they were taking the lobster for the purposes of a hui or tangi or other approved use.

There were also convictions for taking lobsters with eggs showing home when they should immediately have been returned to the sea.

The Public Trustee v Te Maru

CP16/97. High Court, Whangarei. 3 March 1998. Heron J

This case concerned an application under the Matrimonial Property Act 1963 for the determination of ownership of property at Waimamaku. It was brought by the executor and trustee of the estate of William Taylor against the administrators of the estate of Gladys (Ruby) Taylor, his second wife.

The property was purchased by William and Ruby as joint tenants in 1986. By virtue of the joint tenancy and the Land Transfer Act, the property went to Ruby on the death of William. Upon her death, the property then went to her administrators to hold on behalf of the beneficiaries. Both parties died intestate.

Held: the applicants maintained that following a meeting with members of his family shortly before his death, William Taylor indicated that Ruby would be custodian of the property and on her death, the land and chattels would return to his family. This contention was not challenged and the Court noted that William Taylor was a respected kaumätua in the area, a member of the Waitangi Tribunal and someone who placed considerable weight on matters of Mäori custom and tikanga Mäori and relied entirely on this approach as providing a remedy to the situation which developed.

In determining questions between husband and wife as to title or disposition of property pursuant to s5 of the Matrimonial Property Act 1963, contributions of each party are not to be confined to monetary contributions. Domestic duties and other services are to be given as much importance as monetary considerations. However, s6 of the Act provides that the court must not exercise powers conferred on it so as to defeat any common intention of the parties.

While the whole of the equity in Waimamaku was provided by William, account must be taken of Ruby’s contribution to the marriage, her work at Waimamaku and her support for her husband who had a busy career in performing functions as a kaumätua and Tribunal member. There was no evidence to suggest that in taking title as joint tenants there was a common intention that Ruby would take the property solely. The court was prepared to rely on the evidence as to the death bed discussions.

Accordingly, a substantial order should be made in favour of William Taylor’s estate while weight should be given to Ruby’s contribution. An order directed that 55% of the property be vested in William’s estate and 45% be vested in Ruby’s estate. The Judge directed the property be sold, excepting a korowai, tokotoko, pounamu patu and some photographs.

Wairoa District Council and The Attorney-General v The Mäori Land Court & Proprietors of Tahora 2F2

CP 146/97. High Court Wgtn. 24 April 1998. Grieg J.

This was an appeal from decisions of the Mäori Land Court noted at Mäori LR Mar 1997 p1 and Nov 1996 p2. A dispute arose over the use of land proclaimed as a legal road in 1930 and vested in the district council. The council was  proposing to develop the road as an accessway for walkers in the Urewera National Park. In the Mäori Land Court, it was held that the land comprising the paper road was held in a fiduciary capacity by the district council and in accordance with s18(1)(i) Te Ture Whenua Mäori Act 1993 it should be revested in the beneficial owners of adjoining Mäori land.

Section 18(1)(i) provides that “In addition to any jurisdiction specifically conferred on the Court otherwise than by this section, The Court shall have the following jurisdiction … To determine for the purposes of any proceedings in the Court or for any other purpose whether any specified land is or is not held by any person in a fiduciary capacity, and, where it is, to make any appropriate vesting order.”

The appellants alleged, among other matters, that the land court had exceeded its jurisdiction in applying s18(1)(i) to land that was not Mäori freehold land and that even if it had jurisdiction, the court could not reasonably have reached the conclusion that in the circumstances the district council was a fiduciary.

The land was part of a failed private scheme for the development of Mäori land in the 19th century. The government appointed a commissioner to manage the lands, and he had granted the land to the Crown at no cost in order that a road should come near the farm properties under his management. The road was never built and the land was eventually passed to the council.

Held: this was not a review of the land court decision on the facts, but whether the court had exceeded jurisdiction, either because it had acted in excess of its jurisdiction, or the decision was flawed because it was based on an error of law or a misunderstanding of the facts.

Land to which s18(1)(i) applies.

The High Court rejected arguments of the appellants that s18(1)(i) could not apply to land other than Mäori freehold land. There was nothing in the legislative history to assist in interpretation one way or the other. The powers of the land court are expressly limited by statute, and it does not have a general equitable jurisdiction. However, the words of s18(1)(i) are “perfectly plain”, and contain no inherent ambiguity. They plainly give a jurisdiction to the land court which is primary and should not be read down or limited by the context and general functions and purposes of the 1993 legislation. Further, an application under the section can be made independent of any other proceedings before the land court. Section 18 generally makes careful use of the definitions of various types of land and deliberately used the broad term “any specified land” in 18(1)(i). It would limit the scope and effectiveness of the provision to confine it to Mäori freehold land, excluding, for example, instances where a fiduciary duty was owed but where land was no longer Mäori freehold land, or had never been such, but ought to have been.

However, s18(1)(i) cannot be read as giving a general equitable jurisdiction to the land court in any case where litigants might raise a fiduciary question in relation to land. For example it gives no general jurisdiction concurrent with the Family Court or High Court with regard to de facto property disputes. The section is limited in that there must be some “relevant connection with Mäori land or land to which Mäori have some claim.” But apart from that general limitation the section does extend to General land and even Crown land, although under the Crown Proceedings Act 1950 there might be a limit on the power of the land court to make orders in respect of Crown land.

In this case there was a sufficient connection between Mäori and the land as claimants to the land and owners of the adjoining land.

Nature of a fiduciary duty

There is no definitive definition of fiduciary duty or fiduciary capacity (Hospital Products Ltd v US Surgical Corp (1984) 55 ALR 417, 454). Care is necessary when applying private law principles to public bodies, particularly where they are exercising general functions such as roading. While in Mackenzie District Council v ECNZ [1992] 3 NZLR 41 a local authority was said to have a fiduciary duty to ratepayers generally, that was an exceptional case, and in Wellington City Council v Woolworths NZ Ltd (No 2) [1996] 2 NZLR 537, 546 it was said that fiduciary duty is not a route to review the discretion of local authorities.

Cases relied on by the land court judge, Guerin v The Queen (1984) 13 DLR (4th) 321, Frame v Smith (1987) 42 DLR (4th) 81 and Blueberry River Indian Band v Canada (1995) 130 DLR (4th) 193 involved Crown obligations to Indian groups.

The issue was whether the district council helds the land in a fiduciary capacity – a breach of the fiduciary relationship does not have to be found. The council held a fee simple title and had general duties to ratepayers, but it was impossible to say as a matter of law that it held as a fiduciary for the proprietors of Tahora 2F2.

The question then became whether from the surrounding circumstances of the council ownership some fiduciary relationship existed which could create a fiduciary capacity in the ownership.

The land court found that the background circumstances gave rise to a fiduciary relationship requiring either that the road be built or the land handed back. However, the decision of the district council not to build the road for the time being was not a decision for all time and did not require the council to hand the land back. The council was not obliged now or at any particular time to develop the road. And the land still had use as a road even if not developed for wheeled vehicles.

Nor could it be said that the conduct of the commissioner in entering into the deal to grant the land for free, looking towards the betterment of the district in the circumstances of the time, in some way created a fiduciary relationship or obligation on the Crown when it took the land. In addition, the statute under which the land was taken (Land Act 1924) freed it of all interests and trusts, so a further fiduciary obligation would have had to arise by the fact of taking the land.

The fact that one lessee of the land at the time did not consent to its taking could not create or add to any fiduciary obligation. In any event, the consent of that lessee was later obtained without any great difficulty.

Accordingly, the land court judge erred both in law and on the facts, misunderstanding the facts and coming to a conclusion which could never be warranted on the evidence. A declaration would be made that the land court had erred in finding that the district council owned the land in a fiduciary capacity, and the council was entitled to an order quashing the vesting order the land court had made.

The appellants had raised, but not presented argument, on the application of the Limitation Act 1950 to this case.

With regard to an injunction which the land court had made preventing the council from undertaking any work on the legal road which would trespass on or injure the adjoining Mäori land, such an order could be made by the land court. Section 19/1993 gives jurisdiction to the land court where trespass or injury is threatened to Mäori freehold land. This power was not restricted where a local authority was involved. For example, s247H(a) Local Government Act prohibits a local authority from creating a nuisance.

[Ed: this decision gives s18(1)(i) a wide application in terms of the land it can apply to, but suggests that a fiduciary relationship will only be found in very circumscribed factual situations.

It is unclear from the judgment whether the court considered any argument that indigenous peoples are a special situation vis a vis central and local government and therefore a fiduciary obligation might be more readily found than in other situations. Nor is it clear whether the particular situation of Mäori landowners or the specific guarantees of the Treaty of Waitangi were argued in the case as having some bearing on the existence of a fiduciary relationship.

The government has quickly announced that it will appeal the finding that s18(1)(i) applies to all land and not just Mäori land (Attorney-General press release 29 April 1998). This is presumably because, while the decision sets a high threshold for a finding of a fiduciary duty, it provides no real legal certainty to the government. The Crown and local authorities are likely to be exposed to further applications under this provision, which will have to be argued on a case by case basis. There is no guarantee that in one of those future cases the Mäori Land Court will not find a fiduciary duty which holds up under appeal and becomes a precedent for yet further applications.]

Parliament

Fisheries (South Island Customary Fishing) Regulations 1998

1998/72. 20 April 1998.

These regulations are essentially the same as the draft regulations examined in detail in the Mäori LR Dec 1997/Jan 1998 p12. In general, the regulations provide for a comprehensive scheme for the use and management of customary non-commercial fisheries including:

•  Nomination and appointment of Tangata Tiaki/Kaitiaki (TTK) customary fisheries managers for customary areas – including a disputes procedure where there are differences over the boundaries of customary areas, and the persons who should be appointed as customary fisheries managers.

•  A system for TTK to authorise individuals to take fisheries resources for customary food gathering purposes within the customary area covered.

•  Active participation of TTK and iwi in the development of fisheries management plans

•  The declaration of distinct areas, mataitai reserves, in which the TTK has management control and may make bylaws. The Crown and Mäori are required to jointly consult local communities about mataitai proposals.

•  Accountability mechanisms covering actions of TTK and those authorised by them.

•  Offenses and penalties for infringement of the scheme.

The regulations are concerned with “customary food gathering” which is defined as:

“the traditional rights confirmed by the Treaty of Waitangi and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which include, in this context, the right to take, and the right to manage, fisheries resources for a purpose authorised by Tangata Tiaki/Kaitiaki, including koha, to the extent that such purpose is consistent with tikanga Mäori and is neither commercial in any way nor for pecuniary gain or trade”.

The regulations affect the whänau, hapü, or iwi that hold manawhenua manamoana over an area that are of Ngäi Tahu, or are represented by one of ten trusts representing the interests of Ngäti Apa, Ngäti Koata, Ngäti Rarua, Ngäti Tama, Ngäti Toa Rangatira, Te Atiawa, Rangitane and Ngäti Kuia in the South Island.

The differences in these final regulations from the draft regulations are few, but may be significant in some instances. Key differences are:

•  The definition of “customary food gathering” is altered in that the final regulations use an inclusive definition as opposed to the exhaustive definition of the draft regulations.

•  Where there is a dispute as to who are tangata whenua of an area, its boundaries, and/or who should be nominated as TTK for an area, the draft provided that, where a customary dispute resolution process could not solve the issue, it would be referred to an agreed authority for “mediation and settlement”. The regulations now provide that the issue will be referred to the agreed authority “for settlement”, which suggests that an adjudication or arbitration is contemplated.

•  The regulations provide that holders of authorisations from TTK to undertake non-commercial customary fishing, must produce that authorisation, or details to verify it, when “reasonably requested” by a fishery officer. The draft provided that such information was to be provided “on request”. Whether that slight change becomes of practical significance remains to be seen. The form of authorisation in the schedule to the regulations states on its face that it is to be shown “on request”.

•  The government may intervene in management by a TTK only where the relevant minister considers that (after consulting with the tangata whenua and the TTK), “in accordance with Tikanga Mäori” the fishery resource is not being managed sustainably or in some other way the regulations are not operating as intended in an area. The draft clause contained no reference to “Tikanga Mäori” and it is not defined in the regulations themselves. Consequently, the provision may mean that the relationship between sustainable management of fisheries and “Tikanga Mäori” may in future be required to be considered.

•  An existing marine reserve under the Marine Reserves Act 1971 cannot be proposed as a mataitai reserve.

•  The final regulations add an offence for altering an authorisation given by a TTK.

[Ed: these regulations are a significant advance on any previous schemes governing customary non-commercial fishing. As mentioned in the earlier Review, the customary areas are entirely a matter for Mäori to decide, and remain flexible because they boundaries are not prescribed in advance in any law. The minister must basically await Mäori agreement on the customary areas and their boundaries and cannot impose them. The customary fisheries managers are likewise nominated from the people, without ministerial input.

The regulations commit all Mäori of the South Island who are affected by them to the concept of “manawhenua mana moana” and “rohe moana”. Applications to manage a customary area, and objections to that application, must be put in mana whenua mana moana terms. Yet that  concept is still controversial among some iwi, particularly with regard to the proposals for allocation of pre-settlement assets.]

Mäori Reserved Lands Amendment Act 1998

Parliamentary Debates. 10 March 1998.

This legislation was noted in Mäori LR Mar 1998. This note explains the reasons given for the amendment and the debates surrounding the passing of the amendment.

Lessees were given by the 1997 Mäori Reserved Lands Amendment Act two options to seek compensation for the move to market rentals on their leases of Mäori reserve land. The first was to accept a valuation formula set out in the legislation, the second was to go the Land Valuation Tribunal. This 1998 amendment concerned solely the second option.

The intention of the 1997 Amendment Act was that the Land Valuation Tribunal would determine the market value of the lessee’s interest as at 1 January 1998, as if the 1997 amendment “had not been enacted.” This would give a “before” value. Then after 1 January 2001, the tribunal would determine the market value of the lease as at 1 January 2001. This would give an “after” value. If the lease had lost value, the difference would be the compensation payable to the lessee by the Crown.

Lessees appear to have had a concern that the 1997 Amendment Act did not make it absolutely clear that the “before” valuation was to be made as if the 1997 amendments had never been made. There was also a concern about the 3 year gap between the valuation determinations. Theoretically, lessees could remove improvements (eg a house) in the 3 year period and thus drive down the value of the lease and seek additional compensation in that way. Or, changes in milkfat prices in the 3 years could have an effect on the “after” value. It was felt that these were not matters that should affect the “after” valuation.

The 1998 amendment makes 2 changes:

•  The Land Valuation Tribunal will now determine the “before” value on the same day as the “after” value – that is, 1 January 2001.

•  The Land Valuation Tribunal is now to determine the “before” value as if the 1997 amendment and this 1998 amendment “had not been proposed or enacted”.

This latter change led to extended discussion in the House about when the legislation had actually been “proposed”. Statements from the government ministers involved in the amendment were totally contradictory on this point. Further, other political parties accused the government of being deliberately vague on this aspect because the real aim of the amendment was to offer the potential of significantly increased compensation to farmers with leased lands in the Taranaki-King Country electorate, where a by-election is being held in April 1998. Examples from the debates:

Hon John Luxton (Minister of Lands): "… this Act [the 1997 amendment] was proposed to Parliament in August 1996. So that is the date. That is my understanding of the date, and that is the date that Parliamentary Counsel advises is when this Act was proposed … That is now the record to make it clear to the courts, should they ever have to interprete what that means." (p7217)

Hon Peter Gresham: "We are passing legislation that will, in turn, be interpreted by the Land Valuation Tribunal. Ministers … cannot instruct that tribunal. … The Minister’s remarks were of no great consequence … because eventually the legislation will be interpreted by the Land Valuation Tribunal." (p7220)

Hon Tau Henare (Minister of Mäori Affairs – who introduced the bill): "The issue is quite simple. The original amendment Bill was introduced in the House on 21 August 1996. That was the date it was proposed in this House. So what else could it mean?" (p7228)

Hon Bill Birch: "The Land Valuation Tribunal will … undertake a valuation as if the legislation had not been introduced – …. It is to be taken as if the legislation has not been introduced at all. That is where the confusion is. We do not need a date if the valuation is to be taken as if the legislation had not been introduced. … What my colleagues have been correctly pointing out is that the [1997 Act] was first introduced in August 1996. That was when the package was first crystallised and brought together. That is clearly an important and influential date."

Paul Swain: "Is it the date?"

Hon Bill Birch: "The valuation is to be taken as if the legislation had not been introduced. The date on which the legislation was first given to the House was August 1996, so that is clearly an influential date, but the Land Valuation Tribunal will be bound by the legislation."(p7229-30)

[Ed: Parliament has not exactly covered itself in glory on this issue. The original amendment bill of 1997 was changed at a late stage to include the option of the land valuation tribunal. Now it appears that option is being widened out so that the compromise inherent in the 1997 amendment is slowly being eroded. The situation is reminiscent of the last minute amendment in the Tainui settlement giving solatium payments to those persons who had s40 rights under the Public Works Act which would be removed by the settlement.]

Ngäi Tahu Claims Settlement Bill 1998

No 111-1. 31 March 1997

This bill will put into effect the deed of settlement between the Crown and Ngäi Tahu signed on the 23 September 1997. The details of the deed of settlement, and thus the detail of much of this bill, have already been noted in Mäori LR Oct 1997 p6, Nov 1997 p8, and Dec 1997/Jan 1998 p11. The bill is very large, consisting of 466 clauses and 115 schedules. It is divided into 17 Parts:

•  Apology by the Crown to Ngäi Tahu

•  Interpretation

•  Gifting of Mount Cook

•  Transfer and vesting of certain settlement properties of the Crown

•  Transfer of commercial properties under the deferred selection scheme

•  Transfer of farm assets

•  Transfer of forestry assets

•  General provisions relating to transfer of assets

•  The right of first refusal scheme

•  High country stations

•  Mahinga kai provisions, including lands vested in Te Runanga o Ngäi Tahu in fee simple, as tribal properties, lands to be vested subject to protected private land agreements, lands to be vested subject to the Reserves Act 1977, names changes, the vesting of the beds of Te Waihora lake, Muriwai lagoon, and Lake Mahinäpua.

•  Further mahinga kai provisions concerning recognition of Ngäi Tahu interests in areas and management of them including provisions for statutory acknowledgments, statutory adviser status, töpuni reserves, nohoanga entitlements, appointments to statutory boards, adviser status to fish and game councils, Department of Conservation protocols, taonga species, customary fisheries and coastal management.

•  Provisions relating to Arahura Valley, Rarotoka Island, Whenua Hou and the Crown Tï tï  Islands.

•  Ancillary claims provisions, including the establishment of the Ngäi Tahu Ancillary Claims Trust and specific customary fishing entitlements and Fenton entitlements

•  Redress concerned with the South Island Landless Natives Act.

•  General conditions of the settlement, including the limiting of claims to the Waitangi Tribunal and acknowledgments about the finality of the settlement.

•  Miscellaneous matters.

Most of the schedules (13 to 76) concern the statutory acknowledgments for certain lands, rivers, lakes and wetlands.

The closing date for submissions on the bill to the select committee is 11 May 1998.

[Ed: this bill is large by any standard. It is a testament to the hard work and legal drafting skills which the parties have so obviously put into the settlement negotiations.

Whatever its final form, this legislation is so innovative that it will inevitably become both a precedent and drafting template for other claim settlements, for example in the detailed procedure for first rights of refusal (clauses 46 to 99), provisions for revesting of lake beds, provisions for statutory acknowledgments, töpuni, and deeds of recognition.

However, it remains to be seen whether the sheer size and complexity of the bill will give rise to significant political and legal difficulties. There is a lot of law in the bill both to stimulate political debate and disputes over its interpretation.

One provision of the bill sure to arouse interest is the requirement that the Act is not to come into effect unless Ngäi Tahu have advised the Prime Minister in writing that it is acceptable to them. If that advice is not forthcoming, then the Act will expire and be automatically repealed (cls 1-2).]

Reports, Articles, Books

Waitangi. Morality and Reality

Kenneth Minogue. NZ Business Roundtable 1998.

Professor Kenneth Minogue is a political philosopher who has worked at the London School of Economics. In this book he reviews the “Waitangi process” – the bringing and settlement of claims. His method of approach is to avoid the “abstraction” which the basic premise behind the Waitangi process, the claim for justice for Mäori, produces. Such abstraction “produces contradictions, which will lead to perverse results.” It also leads to a belief that our present morality is the right one, and we have arrived at the definitive truth “when all the time we are merely entertaining what we find to be a more interesting error”. An appeal to the limits which “reality” sets on moral impulses will provide clarity where there is presently confusion.

Minogue looks first at the context of the Waitangi process, and interpretations of the intent of the Treaty, and the use of the partnership metaphor and finds that “Our generation finds a reality created by a kind of conquest, and an array of grievances and injustices understood in terms of the guest/fellow-citizen paradigm. It is this conjunction which makes the problem so complex, expensive and intractable.” Conquest first, treaty later, is the normal sequence of human affairs. But treaty first, conquest later is not and this has led to the entrenching in Mäori of a sense of grievance.

Minogue then argues that concentration on historic loss helps to poison relationships because it focuses attention on only the less admirable actions of past years. Also, an analysis of the full historic situation, including inter-tribal warfare, is lost in this process. He examines the creation and development of the Waitangi Tribunal, and the way in which it has sought “tenaciously to construct a form of jurisprudence” out of the “spirit of the Treaty. He also examines the growth, in conjunction with this, of judicial activism where judges “have come increasingly to pronounce with confidence upon issues of public policy, the opinions of the electorate, and economic feasibility”, for example in proceedings over Mäori broadcasting. He concludes that, in this area, the judges and tribunal are increasingly involved in making “unpredictable and arbitrary political judgments” and becoming a new unelected power disdainful of democracy.

He examines and decries the tendency to appeal to international work on indigenous rights and academic and intellectual enthusiasms for Mäori culture, which is essentially a Western construct and simply a recent intellectual fashion. Mäori as a collective is essentially a legal fiction “remote from real life, whose main use in this context is to sustain the redistribution of wealth ordained by the Waitangi Tribunal.” Concern with biculturalism is simply a desperate attempt by one culture to avoid being swallowed by another, but cultures can seldom be long sustained by state action.

Culturally, the Waitangi process and reconciliation are essentially a Western construct, and unless this is made clear, we will be blind to the unmistakable reality that some Mäori activists are simply ‘working the system.”

There is also the conundrum that the result of the process is retribalisation. “Mäori can only claim reparation for historic injustice in their capacity as members of the civil association called New Zealand, yet the beneficiaries of this claim are a vestigial social unit, the set of iwi, whose claim to be distinct from other New Zealanders in part depends upon the very success of the Waitangi process itself.” Minogue regards efforts to maintain Mäori culture and language as social engineering which is almost certain to fail. He is concerned too that if Mäori are seen as distinct culturally, and that culture does not operate on the basis of full and final settlements, then the Waitangi process will be endless, sinking the country into “chronic racial conflict”.

Minogue then turns to examine political and other “realities”. In one sense all politics is a competitive bid for attention and the Waitangi process is a successful bid. The bid has succeeded because “it calls up an echo in the current sensibilities of … New Zealanders. To the extent that these injustices are manageable, which is to say capable of being settled and relegated to history, the present focus on Waitangi makes good sense; to the extent that they are not, that focus must begin to seem like a form of social pathology … And, to an outsider, the whole thing looks like a successful society trying to talk itself into a nervous breakdown.”

The political realities are the fact of violence and conquest in the creation of unified states, that assimilation of cultures is a largely unstoppable process, particularly where Western culture is involved, and much of the present rhetoric is the creation of university academics. Current discussion in bureaucracies about future prospects for Mäori are unrealistic in that they look towards an uneconomic rural collectivism and a sort of Leninist democractic centralism. Mäori claimants have the attitude of rentiers who do not realise that wealth comes not from control of assets but through work and ingenuity. The Waitangi process “bids fair to present Mäori with a misleading idea of the process of economic advancement” and where incentives are thus confused not only economic but also “moral degradation” follows.

Minogue concludes that New Zealand is becoming “seriously damaged by dubious law, and by advocacy passing itself off as history.” We should recognise that “unity comes only from blood, but once it has been achieved, it benefits everyone”. The current climate of grievance and claim and counter claim is eroding the social fabric. Cultural diversity gives immense strength to countries but only so long as governments refrain from giving it special recognition. Minogue makes four recommendations:

•  The government should as a matter of urgency make clear the temporal and fiscal limitations of the Waitangi process;

•  There should be no constitutional entrenchment of the Treaty or any culturally plural notions;

•  Mäori as corporate associations should be entirely self governing and government support or involvement subject to sunset clauses.

•  Social, cultural and economic policy should be subordinate to recognition of national allegiance and citizenship. “All else is privilege, and divisive.”

[Ed: in the first section of this book Minogue seeks to lay out his method of approach to this topic, which is to avoid “abstraction” and appeal to “reality” to provide clarity. In this appeal to “reality”, Minogue appears to be claiming some sort of position above the debate. However, his philosophical stance can be readily identified as that of a public choice theorist, who believes that political outcomes can be best explained in terms of lobby groups acting out of greed. The arbitrary influence of such lobby groups on politics and policy can be held in check only when the separated institutions of the courts, the executive and Parliament properly perform their task of providing checks and balances - hence the concern about judicial activism. Such an analysis can be helpful, but not when the analyst is claiming it as “reality” and does not examine the limits of their own approach. For example, while such an approach may have something to tell us about some of the motives of the actors in the current debate over Mäori reserved land, it does not really provide a basis on which to debate a possible solution. Should we simply decide that Pakeha lessees are greedy in seeking further compensation, and dismiss them? Is this all that is contained in their appeal for just compensation? And what about the motives and interests of the Mäori lessors?

The book seems mainly to be an effort to suggest that “justice” and morality” in the claim process are simply cover words for a grubby reality of greed. The truth is of course more complex and it is a pity that that is not examined.

The book suffers from poor source material and referencing. It does not appear that the Waitangi Tribunal’s own reports have been read in any detail (although it is interesting to see that one of the members of the Waitangi Tribunal, Dr Michael Bassett, is thanked for providing comments on drafts for this book). Nor has the wealth of literature and case law in recent years been examined other than in a very cursory way. The claims process and goals has required a review for some time now. It deserves better than this extremely light and partial effort however.]