May 1998 Contents

Waitangi Tribunal

Muriwhenua claims—binding powers of the tribunal

Other Courts and Tribunals

High Court—trout fishing appeal

High Court—protective scheme for SOE lands

 

Mäori Land Court & Appellate Court

No items this month

Waitangi Tribunal

Determination of Issues Preliminary to a Remedies Hearing

Wai 45 & others. 13 May 1998. Chief Judge Durie, M Bennett, J Morris, E Stokes

Following the release of the Muriwhenua Land Report 1997, which substantially upheld claims of breaches of Treaty principles by the Crown up to 1865, the Muriwhenua claimants asked the Waitangi Tribunal to hold a hearing into remedies, and to make binding recommendations for the return of Crown forest and state-owned enterprise lands. The Crown opposed such a course, and the tribunal itself posed a number of questions which it felt required argument and clarification before a remedies hearing could proceed. In this memorandum, the tribunal ruled on a number of those preliminary issues.

Specific vs general claims and the power to make binding recommendations

At issue was whether binding recommendations can be made to compensate claimants generally for land losses, or whether the tribunal must find a direct factual “nexus” between the alleged breach of the Treaty and the particular land which it recommends for return. The Crown argued for the latter position.

The tribunal found that the issue is one of statutory interpretation. The provisions concerning binding recommendations (ss8A & 8HB Treaty of Waitangi Act 1975) provide that they may be made where a claim “relates to” the land. Case law on the words “relates to” indicate that that is a broad expression, with the breadth dependent on the context and subject matter. The tribunal also noted and endorsed comments of the Court of Appeal that a “broad, unquibbling and practical interpretation” is required in this area (Ngäi Tahu Mäori Trust Board v D-G Conservation [1995] 553, 558 and Tainui Mäori Trust Board v A-G [1989] 513, 518-519). In addition, a remedial approach is required to the legislation which set up the binding powers (Treaty of Waitangi (State Enterprises) Act 1988, paragraph g of the Preamble referred to), and restrictive interpretations are to be avoided. The tribunal also noted:

•  That a different term—“in respect of”—is used in the legislation to refer to specific connections between claims and returnable land, in contrast to “relates to” for more general connections.

•  Subsection 6(3)/1975, the general power of the tribunal to recommend that the Crown take action to compensate for or remove prejudice proven by claimants, did not assist with interpretation. The fact that that subsection does not require that a claim and thus compensation “relates to” particular land does not mean that that phrase in ss8A and 8HB should be more narrowly construed, since s6(3) does not concern binding recommendations. It was accepted by all parties that under s6(3) the tribunal can make non-binding recommendations for the return of Crown land by way of general compensation for losses suffered.

•  Subsection s8A(3)/1975, which prevents the tribunal when considering whether to make a binding recommendation from considering changes in the value of the land since its transfer to the state enterprise, does not assist. The Crown argued that this demonstrated that the tribunal could not recommend return of land to meet general commercial expectations of the claimants. The tribunal found that this provision had been inserted so that the tribunal would not be prevented from recommending the return of land where major improvements had been added since the land passed out of Crown hands. The tribunal can consider the value of a property for purposes such as assessing the overall value of compensation to a claimant group.

In any event, in this case there was a specific link between the land, the claimants, and the breaches complained of, because of the way in which the claim was brought. The claim was brought collectively by a number of groups who had been historically inter-related. The claim related to the whole tribal estate. In addition, the tribunal found a failure to provide sufficient reserves, which also affected all remaining returnable lands in the claim area. Turning to the broader context of the legislation:

•  A general compensatory approach to binding recommendations would not unduly favour tribes with substantial assets in their region, since the tribunal would take a case by case approach and not simply return all lands in any case. This was not therefore a policy reason for a strict nexus approach.

•  Nor was there reason to think that a general compensatory approach would prejudice claims concerning particular lands and therefore policy required a strict nexus approach to be taken.

•  Parliamentary debates did not assist except for a statement at one point that lands could be ordered to be returned to satisfy a claim—but that did not clarify whether a compensatory type claim could be satisfied in this way.

•  The events leading to the enactment of the legislation, including an interim report by the tribunal and the Court of Appeal decision in NZMC v A-G [1987] 1 NZLR 641, demonstrate an intention that “compensatory claims” as well as specific claims would be covered by the protective scheme.

•  Land for land or “riro whenua atu, hoki whenua mai” (for land taken, land returns), is an old Mäori adage and this expression has been used in the tribunal’s Orakei report and formed the basis of the Waikato settlement according to the Waikato Raupatu Claims Settlement Act 1995.

•  Even though the resumptive scheme was a compromise on the positions taken by both parties before the Court of Appeal, and that fact must be taken into account, the general compensatory approach was so evident in debate before the Court of Appeal, and so much part of the factual matrix in which the compromise was reached that there would need to be clear words that Mäori claims were to be limited in this particular way. No such clear words are in the Treaty of Waitangi (State Enterprises) Act 1988 and indeed in the Preamble general phrases are used with reference to lands which may be subject to binding recommendations.

•  Section 9 of the State-Owned Enterprises Act 1986, providing that the Crown may not act in a manner  inconsistent with the principles of the Treaty of Waitangi, adds further weight to this approach. A plain intention from the words of the legislation would be required to limit the resumptive power in the way the Crown now contended, and no such intention was evident.

Accordingly, the tribunal could proceed on the basis that binding recommendations can be made to compensate claimants for general tribal losses.

The power to make interim binding recommendations

The tribunal asked for argument on whether it can make binding recommendations in an incremental fashion ie before hearing the whole of the evidence in a claim and making findings and recommendations on it. The Muriwhenua Lands Report had (for the most part) only considered and made findings in relation to Crown actions and land loss to 1865. Sections 8A and 8HB/1975 provide that the tribunal should “include” in any recommendations made under s6(3)/1975 a binding recommendation for the return of land. The Crown urged that a “total relief” or “complete package” approach was intended since the legislative scheme required the tribunal to be convinced that a binding recommendation was necessary as part of the total relief due to claimants.

The claimants argued that the issue was a matter of discretion for the tribunal, and that the alternative would force extensive delay on claimants and cause them to reconsider whether to join in general claims.

The tribunal found that the natural meaning of the word “include” requires that binding recommendations are made as part of the general recommendations under s6(3) so that the two must be considered together. However, this did not prevent incremental binding recommendations being made. The broad strategy of the legislation is to provide the Crown with a total picture of relief, to remove prejudice arising from a claim or combination of claims. But there may be occasions where justice requires an immediate recommendation. The way in which claims are brought has a bearing on when an immediate incremental recommendation may be required. Those who seek a centralised settlement for general losses may suffer if claims are heard in isolation, just as those who bring separate claims may suffer if joined to a general claim. If prejudice is to be avoided either way, diverse strategies may be require in any case.

Accordingly, the tribunal found that it has jurisdiction to sever claims at the remedies stage and make separate recommendations for each, provided this is done in the context of the steps necessary to finally dispose of all matters relating to that claim. A determination will still be required in such cases of whether the recommendation relates to a specific claim and particular persons, or relates to general compensation for the larger group ie it may still be necessary to consider together both specific and umbrella or general claims. In the context of the Muriwhenua claims, the tribunal has discretion to make interim recommendations for events up to 1865, as they are discrete claims. Factors favouring early interim or incremental recommendations in these claims are the financial burden facing the claimants through prosecution of the claims over many years and the time it would take to gather evidence and hear and report on post-1865 claims. Factors against such an approach are:

•  the need to have an overview of the total claims;

•  whether specific or general claims should take priority;

•  whether a general claim for pre-1865 issues can be settled while a further general claim on post 1865 matters exists;

•  whether a comparison with other settlements is appropriate and therefore a total picture of loss in Muriwhenua is required before anything else can be done.

The tribunal would proceed on the basis that it can make recommendations, including binding recommendations, on specific claims already heard and on general claims to 1865, where the recommendations were a final determination on the matters those claims covered. It would first require submissions however on whether it should do so in these claims.

The principles for determining relief

The tribunal asked for argument on it’s approach to relief, which it thought should be “founded on sound principles and the level of redress should be based on appropriate criteria”. In particular, the tribunal had asked counsel to comment on whether it should take a strict “damages” approach to relief or a forward looking “restorative” approach.

The tribunal noted the Crown view that a strict damages approach was inappropriate, but relief should be based on proven past wrongs in that the level of redress should be based on criteria reflecting the past injustice and consequential prejudice. Focusing entirely on contemporary social and economic needs was also inappropriate since the link from current needs to past wrongs cannot be automatically assumed. The Crown also urged that there should be “proportional consistency” between settlements, to achieve comparative equity between Mäori.

The tribunal also noted various claimant arguments, including the complaint that the Crown’s “proportional consistency” made a benchmark of the Waikato and Ngäi Tahu settlements, when the criteria for those settlements had not been indicated, and left the determination of proportions in Crown hands since claimants had to acknowledge in direct negotiations that the Crown’s offer of redress was based on the Crown’s assessment of the nature and extent of Treaty breaches.

The tribunal concluded that, in view of the differing submissions, it was too soon to reach a final conclusion on the principles to apply to remedies, however:

•  Assuming that a strict damages approach is unachievable, any other approach to remedies must be referable to the goal of putting the grievances to rest and removing the sense of grievance. This means however that the view of claimants as to how they think grievances can be removed is important and full weight must be given to their reasonable preferences.

•  All Muriwhenua claimant groups favour establishment of an independent economic base.

•  The approach to relief must be referable to Treaty principles—in particular the principle that the Crown duty to ensure that Mäori communities retained sufficient resources. This means that restoration of an endowment of land for the future is required, which is linked to the past, but is not a return to a past hypothetical position. Rather it rests on the assumption that it is reasonable to assume that had lands been adequately reserved to tribes, there would be a base for those tribes today, and some infrastructure would surround those lands—as the experience of the Mäori Land Court with Mäori land trusts and incorporations suggests.

•  The restoration approach should not be unduly diminished by other criteria. “A tribe that lost little land and had little to start with, should not now inherit the windfall of an economic base out of all proportion to it original holdings”, but where a tribe was wrongly deprived of an economic base it should always have retained, then other criteria such as the nature of the Crown actions taken against the tribe is irrelevant.

•  Socio-economic factors should be taken into account. The argument that Mäori social conditions are solely a Crown responsibility “assumes an untenable position that the state has responsibility for individual performance and the individual (or the community in Mäori ethic) has none.” Nor is there any guarantee the state will provide, or can do better than a well resourced local community. The argument also assumes social outcomes are severable from commercial imperatives in the administration of settlement funds. The preferable view is that:
“The state and the individual, or the Mäori community, both have responsibilities in achieving social standards, … the purpose of claim settlements is not to advantage a few in the administration of assets but is ultimately for the benefit of the people, and social goals are more likely to be met if Mäori communities are able to fund and control programmes of their choosing.”

•  This approach also appreciates that the re-establishment of rangatiratanga or local autonomy is a major purpose of the restorative approach.

•  A restorative approach may also give rise to creative solutions. The Ngäi Tahu settlement illustrates this.

•  ”Mana-loss” is an important aspect in settlements, and a consideration of steps necessary to reinstate the mana of a tribe in the local Mäori and Pakeha community has been an issue in recent settlement negotiations.

•  The “extent of property loss” should be measured against the numbers affected.

•  The “benefits of European settlement” is covered in the assessment of current socio-economic circumstances.

•  “national financial constraints” and “proportional consistency” as well as the “impact of restoration on the local and national community” require further debate. There is no yardstick yet established—unless the Tainui and Ngäi Tahu settlements are intended to be benchmarks.

•  As for specific claims aside from the general claim, these do not all have to be dealt with separately at the remedies stage, but they should not be lost sight of in a general settlement. As a rule of thumb benefits from settlements of past historic wrongs should pass today to a group rather than individuals.

In summary, the tribunal will adopt a restorative view, costed according to the amount required to re-establish the people in the social and economic life of the district. This will require evidence of socio economic need. It will look at the extent of property loss weighed against the numbers affected. It will also consider “mana-loss”. But fiscal factors (proportional consistency etc), require further debate.

Direct negotiations and remedies hearings

The Crown contended that settlement negotiations would be prejudiced by a concurrent remedies hearing, and that its policy was to refuse to enter negotiations while a remedies hearing proceeded. The Crown argued that the disagreement among claimants about mandate was delaying direct negotiations, but that neither the Crown nor the tribunal could or should confer a mandate to progress matters. The claimants argued that the Crown refusal to negotiate while hearings proceeded was contrary to normal legal practice and that, by unilaterally setting the rules, the Crown in various ways placed the claimants at a disadvantage.

The tribunal found that, as part of its general jurisdiction, it can recommend to the Crown who are the appropriate representatives for negotiations in light of its experience in hearing the claim and interested groups and their status. This was done for Ngäi Tahu, although it was arguable whether the issue should have been directly canvassed first with interested groups. This power is separate from the power to recommend the persons or groups to whom particular assets should pass—although they may be one and the same in some cases.

As to the alternatives to a tribunal recommendation on representation for negotiations, the Crown argued that its mandating process relies on iwi advising representatives. The Mäori Land Court can determine representatives under s30 Te Ture Whenua Mäori Act on a reference from the tribunal, but that is not binding on the tribunal. And the tribunal has been seized of the case for many years and for that reason is in a better position to make a recommendation of its own. There were therefore good reasons for the tribunal to recommend on representation, provided it was first satisfied that proper efforts had been made to resolve problems by the people themselves and an impasse had been reached.

A full remedies hearing would be deferred while negotiations proceeded, since recent settlements had shown that negotiations are more likely to produce a satisfactory result for both parties, and while there were criticisms of the Crown pre-conditions to negotiations, Crown counsel had indicated the pre-conditions themselves were negotiable. However, the remedies hearing would proceed to consider matters preliminary to any final determinations on remedies.

Other issues specific to the Muriwhenua claim

Ancillary or specific claims

The tribunal will proceed do deal with these as soon as possible. The tribunal will investigate the claims using the records which already exist, and any further material claimants wish to present. If hearings are requested, or required, to deal with the documentary evidence, those will be held. Then the tribunal will circulate a draft report of findings for counsel to respond to.

Post 1865 issues

In the Muriwhenua Land Report, which investigated claims up to 1865, the tribunal gave a preliminary opinion that, if compromise is acceptable in the settlement of historic claims, then the proof of further wrongs after 1865 might not add significantly to the relief which Muriwhenua might finally achieve. After hearing counsel however, the tribunal concluded that it will investigate post 1865 issues using research filed to date and any further research undertaken by itself or other bodies. It will circulate a draft report of findings and ask for comment. The tribunal noted that the factors against maintaining its preliminary view and abandoning post 1865 issues were:

•  the decision on whether relief would be based on a restorative approach or not had not been settled;

•  in apportioning the benefits of a settlement it might be relevant how some groups were affected by events after 1865;

•  post 1865 research might establish a case for binding recommendations in favour of particular person or groups which should have priority over a general settlement;

•  a full report of all grievances might assist in finally laying grievances to rest;

•  there was inadequate research at present for claimants to make a decision whether to abandon post 1865 issues.

Fish data

The Muriwhenua claimants asked the tribunal to order the Treaty of Waitangi Fisheries Commission to supply information on past allocations of lease round quota. The information would be relevant to the question of what is required to restore an economic base, should a restoration approach be taken to relief. It would also be relevant if inter tribal equity in settlements was deemed relevant. The tribunal found that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which prevents the tribunal inquiring in commercial fishing, did not affect this request. However, the request would be deferred until current Mäori fisheries litigation in the High Court is ended.

[Ed: these determinations are important not just because of the discussion of practical legal issues surrounding the workings of the state enterprise and forest lands resumptive mechanisms, but also because of the discussion of the broad principles which can apply to remedies. The tribunal suggested that it would be helpful if the Crown placed on the record of this claim the Crown view of some of the principles and constructive solutions which the Ngäi Tahu settlement involved.]

Other Courts and Tribunals

Taranaki Fish and Game Council v McRitchie

AP 19/97 High Court Wanganui. 14 May 1998. Neazor J, Grieg J

This was an appeal by way of case stated from a district court decision that McRitchie could claim a Mäori fishing right to fish trout and thus had a defence against regulations making it an offence to take “sports fish” without a licence. The defence was alleged to exist because the Conservation Act 1987, which regulates the taking of freshwater fish, provides at s4 that the Act is to be interpreted and administered as to give effect to the principles of the Treaty of Waitangi, and also provides at s26ZH that nothing in that part of the Act regulating freshwater fish shall affect “any Mäori fishing rights.”

McRitchie argued that these provisions are not limited to particular species of fish. The Game Council argued that trout has always been subject to statutory control, and there has never been a period when trout could be taken only according to Mäori custom, and without statutory control.

Held: the case stated should be answered in favour of the Fish and Game Council. The court examined legislation affecting freshwater fishing from Salmon and Trout Act 1867 to the Conservation Law Reform Act 1990, which introduced the current regime regulating the taking of “sports fish” including trout, and the exemption for Mäori rights in s26ZH. That history included special exceptions within the trout fishing licence regime for Te Arawa and Ngati Tuwharetoa people in 1908, 1926 and 1938. Overall, this legislative history demonstrated that:

•  The taking of trout has always been controlled by legislation, although for much of that time the control has not mentioned trout directly, but allowed regulation of freshwater fish generally, including trout.

•  For most of the period since the first fishing laws were introduced, Mäori rights have been specifically safeguarded, but the safeguards have been of existing rights, and not grants of fresh rights, except in specific areas.

•  It can also be noted that freshwater fisheries are not exactly the same as seawater fisheries in terms of Mäori fishing rights, since seawater species are always indigenous (whether known or not in earlier times), whereas some freshwater fish species are introduced.

•  Legislation has assumed that Mäori had rights to freshwater fish, but that they could exercise those alongside restricted rights to introduced species (there has been a consistent provision allowing for introduced species to be thrown back if caught inadvertently in breach of regulations).

Undoubtedly Mäori have Treaty based rights to freshwater fisheries. Those rights under Article II of the Treaty are as broad as the rights which the Waitangi Tribunal has found to sea-fisheries—including rights to the available fish, places where they are caught and methods and practices of fishing. This would extend to all freshwater fish whether indigenous or not, except that, in the case of trout and salmon, the legislative history makes it plain that since their introduction they have been controlled by law. Controlling legislation for trout predates their introduction, and regulatory control in some form or other has continued since. There was never a time when trout or salmon were available without control to those who might otherwise have had free rights to fish in fresh water. Because of the controlling legislation, there was never a time when the taking of trout could be regarded as an existing and preserved Mäori right. This does not mean that Mäori fishing rights are limited by what species were available and caught in 1840, but simply that for trout the legislation has operated to exclude any such Mäori right.

The court made the following additional observations:

•  Existing decisions such as Te Weehi do not assist in this case, since they concern indigenous fish.

•  The Mäori interest in conserving fisheries resources do not establish a right to fish any particular species, but rather go to the nature of the right, once established.

•  Arguments about whether legislation could justifiably limit any Mäori fishing right do not address whether the right exists in the first place.

•  Canadian case law which examines whether fishing regulations limiting fishing by indigenous people are reasonable, is based on the Constitution Act 1982 which guarantees aboriginal and treaty rights. No such constitutional guarantee exists in NZ.

•  Nor does s4 Conservation Act 1987 (see above) allow an examination of whether regulations are a reasonable infringement of Mäori rights.

•  Mäori cannot argue that a right to catch trout has arisen as a development on the original rights to fisheries preserved by the Treaty of Waitangi. Such a development right was recognised in the Ngäi Tahuwhale watching case. However, a development right cannot apply to a resource such as trout which did not exist in New Zealand at the time of the Treaty, but was a new resource physically introduced subsequent to the Treaty and then controlled by law.

•  A Mäori fishing right cannot co-exist alongside regulations for a freshwater fish under the Conservation Act 1987. Section 26ZH does not allow such co-existence.

•  Section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which prevents Mäori making claims regarding non-commercial fishing rights, is limited to fisheries regulated by the Fisheries Act and does not apply to freshwater fisheries regulated by the Conservation Act.

[Ed: at first glance, this decision appears to run counter to a number of decisions in recent years quite supportive of Mäori fishing rights. If the courts have been able to find that Mäori rights to sea fish potentially extend to deep sea species such as orange roughy and other species not known about in 1840, one might have expected this decision to support the extension of Mäori fishing rights to trout. But the court has relied on the particular history of the legislation applying to trout to find that it has always been under tight control. Accordingly, arguments about whether the legislation has extinguished any Mäori right were simply made irrelevant. The only possible argument left for the Mäori side was that a right somehow “grew-up”—the development right argument. But the court has found that such an argument only works cannot apply to something which did not physically exist in NZ in 1840, and was tightly regulated when it was subsequently introduced. Presumably this would not rule out development rights in relation to other introduced species, such as, for example, horses.

In any event, because of the way the decision was arrived at, it has a narrow focus and arguably a narrow application to subsequent cases. For example, the court left to one side the issue of whether, if regulations were passed restricting the taking of an indigenous freshwater fish species, the defence of a Mäori fishing right could be used. The irony of that suggestion is, of course, that freshwater species have long since been decimated by introduced trout.

The court made little use of Canadian case law and in particular several recent decisions on fishing rights in part because aboriginal rights in Canada are constitutionally guaranteed. Section 35(1) of the Canadian Constitution Act, 1982 provides that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. The Canadian Supreme Court has been at pains to point out that the guarantee does no more than confirm existing rights—even if it does elevate them to supreme law status. In a case dealing with salmon fishing rights (Van de Peet), the Chief Justice reiterated that “s35(1) did not create the legal doctrine of aboriginal rights; aboriginal rights existed and were recognized under the common law.” This suggests that comments in Canadian cases about the nature of aboriginal title can be used directly to assist with the interpretation of legislation in NZ which refers to Mäori fishing rights.

Te Heuheu & Tuwharetoa Mäori Trust Board & Others v Attorney-General & Others

CP 44/96. High Court Rotorua. 15 May 1998. Robertson J

Land Corporation Ltd, a state-owned enterprise under the State-Owned Enterprises Act 1986 (SOE Act 1986), sold 4 parcels of land comprising 253 hectares just outside of Taupo to the Taupo District Council. The land was covered by a comprehensive claim before the Waitangi Tribunal for which hearings had not yet commenced. It was subject to the “claw-back” scheme of ss27-27D/1986, introduced by the Treaty of Waitangi (State Enterprises) Act 1988 (TOWSE Act 1988), which allows state enterprises to sell lands into private hands while protecting Mäori claims by placing a memorial on the title to the land enabling the Waitangi Tribunal to make binding recommendations for the return of the land if claims relating to it are found to be well-founded.

The district council had been in negotiations with the plaintiffs for some months on various issues, including the development of a geothermal resource under the land, in an effort to develop a working relationship with tangata whenua of the district and fulfil its obligations under the Resource Management Act 1991. At the same time, other council officers had concluded the contract for purchase with Landcorp, in accordance with a policy to acquire land in and around Taupo for airport, roading and residential purposes. The trust board and tangata whenua were not however informed in advance about the purchase proposal, and when the details purchase arrangement became public the discussions between tangata whenua and the council ceased. The plaintiffs brought actions for judicial review against the Crown, Landcorp, and the district council over the purchase.

Held: all applications should be refused.

Action against the Attorney-General and the shareholding ministers

The trust board argued that the sale of the land was in breach of s9 SOE Act 1986 which provides that nothing in the Act shall permit the Crown to act in a manner inconsistent with the principles of the Treaty of Waitangi. It was alleged that this provision took precedence over the “claw-back” scheme of ss27-27D/1986.

The court examined the background to the scheme, which was the NZMC v AG [1987] 1 NZLR 641 decision (the Lands case), and noted that the Court of Appeal appeared to have rejected in that case that there should be a requirement of consultation before each individual transfer of Crown land to state enterprises.

The Crown contended that ss27-27D provided a complete code so that s9 was no longer relevant except in exceptional cases. The plaintiffs argued ss27-27D was not a complete code and that it did not require some special circumstance such as bad faith for s9 to be relevant, or alternatively, that this case was a special circumstance.

The court noted that s9 is important as has been affirmed in the several High Court and Court of Appeal judgments dealing with it, and it had not been repealed despite the enactment of the resumptive scheme under ss27-27D. Those provisions are not a complete code, but they are a starting point in all cases, and the circumstances will be rare where s9 can also be invoked, such as where the Crown has acted in bad faith or contrary to the terms of the settlement encapsulated in the TOWSE Act 1988.

The plaintiffs alleged that the resumptive scheme under ss27-27D was deficient because:

•  They had an existing claim before the Waitangi Tribunal.

•  Some of the land was of particular importance containing taonga and waahi tapu. The court commented that this was not sufficiently proven.

•  Changes in circumstances since the scheme was established in 1988, in particular the large number of claims and major delays in hearings, presented obstacles to the scheme which threaten its viability as a protection mechanism. The court commented that these changes and obstacles were not so great as to threaten the viability of the scheme. Nor did arguments about under-resourcing of the Waitangi Tribunal assist this argument.

•  The practical reality was that the scheme was not operative, in part because the Crown did not encourage use of the protective mechanism. The Waitangi Tribunal had never made a resumption order. The court considered however that these problems were inherent in the “tactical maneuverings which necessarily surround claims” and not matters for the protective scheme itself or s9 to address.

•  The land was of particular importance for one hapü, and was strategically important to provide an economic base for future tribal development.

•  The land would be subject to intensive development (for roading, airport and residential purposes) before the claims of the plaintiffs were settled, and it was unlikely that the Waitangi Tribunal would dispossess hundreds or even thousands of residents, even if under the resumptive scheme it could not take into account changes in the condition of the land when deciding whether to recommend resumption (s8A(3) Treaty of Waitangi Act 1975). This practical problem was referred to by the High Court in Te Runanga O Ngäi Tahu v AG (CP 190/95 3 October 1995 see Mäori LR Oct 1995 p6).

•  There was a geothermal taonga under the land, and a successful claim to the resource could be rendered worthless if access to the land was not available.

•  Relatively little other state enterprise land remained available to the claimants in the region, and claimants could only seek resumption of properties they had a direct connection with and claim to, rather than seek return of any available State enterprise land in the region.

•  The existing extensive landholdings of the trust board should not limit their right to redress.

The Crown argued in response that:

•  this situation was precisely the sort of situation that it was envisaged would be entirely covered by the protective scheme. Consequently, the concerns now raised were contemplated in 1987 and 1988 when the protective scheme was devised.

•  The only decision to directly raise questions about the protective scheme was Ngäi Tahu v AG, and that was an oral judgment on an urgent application, and in a situation where the Waitangi Tribunal had already reported on the claim concerned and the Crown had accepted that there had been a breach of the principles of the Treaty and was involved in negotiations. In this case, there had been no tribunal findings nor acceptance by the Crown of a Treaty breach.

•  The Waitangi Tribunal itself has in several situations accepted that the resumptive scheme meets the obligation imposed by cases to which it applies.

•  It is wrong to suggest that in practical terms the resumptive power would not be exercised. A remedies hearing for the Turangi claim (Wai 84) was underway and a resumptive order was expected in those proceedings.

The court found that, considering the background to the Lands case and the creation of the protective scheme, the difficulties now alleged were contemplated and a workable compromise reached in 1988. The lengthy preamble to the TOWSE act 1988 showed that when it was found that the Crown and Mäori could not agree on which particular Crown assets should be retained the current alternative system of safeguards was agreed upon, specifically to “ensure compliance” with section 9. The present difficulties, including the length of time taken to hear claims, the diminishing pool of available land and the problem of third party development on the land, were all contemplated in the negotiations which led to the 1988 legislation.

Examining the protective scheme, significant elements are that third parties purchase land with full knowledge that it might be ordered to be returned and they therefore have no reasonable ground for complaint. Further, while the existence of the memorial on the title may affect the value a third party pays when purchasing the land, it may not affect its value if it is ordered to be returned to Mäori. The tribunal may not take into account the interests of current owners, nor can current owners be heard on the question of resumption. The Crown is obliged to follow a tribunal order that the land be returned.

The scheme was the result of balancing the competing national interests of re-organising state assets while upholding Treaty obligations. The Crown would not have agreed to a scheme totally restricting the ability of state enterprises to on-sell land. This weighing of national interests was recognised in the Lands case where the court required only that a “reasonably effective and workable” safeguard machinery was required which did not “unreasonably restrict” the right of government to follow its chosen policy (Cooke P comments on pp665-666 referred to). Accordingly:

•  “in all but the rarest cases” the protective scheme of ss27-27D is sufficient to discharge the Crown’s Treaty obligations under s9 in cases to which those sections apply;

•  there is a “residual discretion” under s9 requiring more of the Crown in “exceptional cases”, usually only where there is evidence that the Crown has acted in bad faith;

•  this was not a case where that residual discretion of s9 applied.

The plaintiffs argument for a declaration that the Crown through the shareholding ministers direct Landcorp not to sell any land or assets within the Tuwharetoa rohe should also be rejected. If such a remedy were allowed it would be difficult to see in what circumstances any claimant group could be denied a virtual freeze on asset sales pending a final settlement of their claim.

Action against Landcorp

The plaintiffs argued that Landcorp and its subsidiaries involved in the sale had duties under s9, in other words, the reference to duties of the Crown under s9 extended to state enterprises. The plaintiffs relied on academic references and comments of the Privy Council that state enterprises are amenable to judicial review as public bodies (Mercury Energy Ltd v Electricity Corp of NZ Ltd [1994] 2 NZLR 385, 388) and that they are “very much the Crown’s creature” (NZ Mäori Council v AG [1994] 1 NZLR 513, 520). The court however accepted the Crown arguments that:

•  The philosophy of the State Enterprises Act 1986 is that state enterprises are not the Crown. Definitions of the Crown both in the SOE Act 1986 and other Acts (Public Finance Act 1989 and Crown Proceedings Act 1950) support this approach.

•  State enterprises do not pass the “control” test for a Crown entity ie the degree of control by a minister of the Crown is not sufficiently high. Nor are they the Crown in terms of the nature of the functions state enterprises perform, and for whose benefit, or in terms of the nature and extent of the powers entrusted to them. (Hogg Liability of the Crown (1989), Lordon Crown Law (1991), Commissioner of Inland Revenue v Medical Council of NZ [1997] 2 NZLR 297 and Waitakere City Council v Housing Corp [1992] 3 NZLR 591 examined).

•  While it is significant that state enterprises are subject to the Ombudsman Act 1975 and the Official Information Act 1982, a finding that they are Crown entities would ignore the structure, framework, philosophy and operational requirements of the 1986 Act which was aimed at distancing the Crown from commercial activities. This distancing was spelt out in the Lands case (pp676-677).

•  If state enterprises were the Crown for the purposes of s9 then there never would have to have been a Lands case and the need for a protective scheme.

•  Section 24(4) SOE Act 1986 provides that certain provisions of the Public Works Act 1981 shall apply to state enterprises “as if” they were the Crown—indicating that they are not the Crown.

Action against the Taupo District Council

The court rejected a complaint that the district council had no authority under the Local Government Act 1974 to purchase the land partly for roading purposes. It also rejected a complaint that for various reasons (price paid, amount of land purchased, public notification, among other matters) the district council acted unreasonably in acquiring the land.

The court also rejected a complaint that the plaintiffs had a legitimate expectation that the local authority would consult with them about the purchases. Such an expectation of consultation must arise either from a promise or by an established practice of consultation. It was clear that the district council wanted a free and frank discussion with the plaintiffs on many issues, but the perception on each side as to the implications of this were quite far apart. While the Tuwharetoa Trust Board claimed a substantial role for itself, the district council had not done anything to suggest that it would agree to all the claims of the board, but had given clear indications that it had the final decision-making authority on all issues. Consultation must be meaningful (see Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671), but there was no evidence that the district council had committed itself to continuing an invariable negotiation with the tangata whenua on all administrative decisions. While the court was concerned that because of this litigation “local authorities may tend to shy away from tentative exploration of means of better achieving an open, frank and sympathetic relationship” with tangata whenua, it was important that the courts “do not quickly find a willingness to talk is deemed to have given rise to a legitimate expectation”.

[Ed: In the Ngäi Tahu v AG case in October 1995 the High Court accepted that the resumptive scheme may well face practical difficulties if lands are sold by state enterprises into private hands and those lands were subsequently heavily developed, thus making a purchase back by the Crown extremely problematic for fiscal and political reasons—even if technically possible. Some of those concerns are reflected in government papers and ministerial comments (eg NZ Herald 13 April 1998) in effect warning the Waitangi Tribunal about the fiscal implications of using the resumptive power. It is therefore interesting to see Crown counsel in this case insisting that claimants are wrong to say that the Waitangi Tribunal will not as a matter of practice use its power to make resumptive orders. Was the High Court also advised of the government concern about any significant use of that power by the tribunal?

Note that the argument of plaintiff counsel that resumption orders can only be made where specific claims are proven against specific lands is an issue directly addressed by the Waitangi Tribunal in its determinations on the operation of the resumptive scheme in the Muriwhenua region (see above).

As for consultation generally, the court was at pains to point out that it hoped that the failure of communication in this case “should not operate as a disincentive to other local bodies and tangata whenua working together in partnership and accord to their mutual benefit and the enhancement of the quality of life in this country.”]