August 1998 Contents

Mäori Land Court & Appellate Court

Mäori Land Court - partition order arising from a will

Waitangi Tribunal

GPS properties sale – s27B memorials and iwi claims

Other Courts and Tribunals

High Court – fisheries settlement allocation – meaning of “iwi”

High Court – customary fishing – meaning of “koha” and “marae”

High Court – injunction to halt Maori Land

Court inquiry into land trust

Appointments

Chief Judge Durie to the High Court


 

Maori Land Court & Appellate Court

Rangi Hau & Te Kaha 20B Block

1 Waiariki ACMB 94. 14 July 1998. Marumaru, Carter, Isaac JJ

This was an appeal against a partition order. In 1960 the owner of Te Kaha 20B, Hera Matchett, died leaving 7 children, and by her will and a codicil, provided that 5 of her children should select a ¼ acre section each out of the block, and that the remainder of the block should vest in her second husband and 2 children of that second marriage. In 1960 the court ordered that a survey be made, placing the house and farm buildings on one part of the block (containing about 9 acres), for the second husband and 2 children, and the balance to be set aside for the 5 children to select their ¼ acre sections, and then apply for partition orders. The family did not however wish to proceed with partition at that stage. It was not until 1996 that an application was made by a descendant of one of the 5 children to partition out one of the ¼ acre sections. Rangi Hau, a descendant of one of the owners of the balance block (of about 9 acres) objected to the area selected. A meeting of all the entitled owners reached a provisional agreement on the particular section for which partition was sought, and on the overall division of the block, however Rangi Hau raised objections after the meeting. Nevertheless, the Land Court made an interim ruling that it intended to partition each family’s section in accordance with the resolutions from the meeting of owners, and lay off a roadway to each of the sections (approvals from Transit NZ were required to finalise this aspect). The court separately made the partition order sought for one of the ¼ acre sections. It found there was a “sufficient degree of support” for that partition, observing that Rangi Hau’s objections related to the location of certain sections, not the idea of partition itself. Also, the applicant for partition was a descendant of one of the children entitled to a ¼ acre section under the will, and the applicant had had transferred to her all the shares of her siblings in the block. The court did not require a valuation because it was putting into effect a will and codicil which were granted probate in 1960. Rangi Hau appealed, mainly on the grounds that under the will and codicil and orders of the land court of 1960, she should be entitled to select her interest in the 9 acre balance area of the block before any other selections or partition orders were made.

Held: there was ample time after 1960 for those with interests in the 9 acre area to seek partition. After over 35 years of non-compliance, the 1960 orders should not now be used to challenge a partition initiated by a descendant entitled to seek one. Nor should the partition be put “on-hold” until all others entitled to partitions had their applications ready to proceed. This was unfair to the applicant, who had the support of the other owners to proceed with her partition. The court also rejected arguments that Te Kaha 20B block was of special importance to Rangi Hau, since her side of the family had been left few interests from Hera Matchett, while the rest of the family had received considerable interests in other blocks. The facts did not support this claim.

As to other arguments relating to the interim rulings, s59(1) Te Ture Whenua Mäori 1993 provides that interim rulings may be appealed only with leave of the land court. That leave had not been obtained and there was therefore no jurisdiction for the Appellate Court to consider those matters. However, Mrs Hau could raise objections when other owners came to apply for their partition orders in line with those interim rulings.

Waitangi Tribunal

Decision on an Application Concerning Proposed Government Property Services Limited Share Float

Wai 145 doc #2.185. 27 July 1998. GS Orr (presiding), JH Clarke, A Koopu

This was an urgent hearing concerning a government decision to dispose, by way of a share float, of 9 properties in central Wellington with commercial buildings on them, owned by Government Property Services Ltd (GPS), a state owned enterprise (SOE). All of the properties were subject to memorials under s27B State-owned Enterprises Act 1986 (SOE Act 1986) allowing the Waitangi Tribunal to make a binding recommendation for their return to Mäori if it found claims against those lands to be well founded. The memorials would remain on the land titles after the share float. Hearings of claims affecting Wellington had been continuing for some years and were reaching an end. The Wellington Tenths Trust (WTT), a body with a claim over the lands in question (Wai 145) were concerned that, despite this apparent protection of claimant interests in the lands and buildings, the share float would nevertheless make it less likely that the lands would be returned if their claims were upheld, and asked that the proposed float be stopped or varied to better protect their interests. This concern arose in part because of reported statements of the Minister of Treaty Negotiations that he might ask Parliament to amend the SOE Act 1986 if “significant” binding orders were made by the Waitangi Tribunal. The WTT sought and obtained an urgent hearing. Other groups with claims to interests in Wellington made submissions, namely Ngäti Toa Rangatira (Wai 207) and Rangitane (Wai 543).

Held: the tribunal found, among other facts, that:

¤ The WTT alleged that the GPS properties were located on important pa, kainga, cultivations, turangawaka and urupa, and pointed to evidence already received by the tribunal. The tribunal accepted that all but one of the properties were on “Te Atiawa papakainga land” and that the Crown had failed to appreciate this.

¤ In 1991 the WTT had lodged a formal application for binding recommendations for the return of all lands subject to s27B memorials in Wellington, including the GPS properties.

¤ WTT had objected to any sale of the properties when this was first proposed in 1995.

¤ In September 1997 Cabinet agreed to the sale of the 9 properties subject to being satisfied that Mäori interests would not be “unduly compromised”.

¤ There had been meetings with the WTT about the proposed sale, from which the government had concluded that WTT supported the sale in principle – but WTT denied that this impression had been given. Further, the WTT argued that it was not made aware until a late stage of the particular properties involved.

¤ Letters were sent to Ngäti Toa Rangatira and Ngäti Tama about the proposed sale, but without further follow up.

¤ In the midst of the discussions with the WTT the Minister of Treaty Negotiations had made his statement that changes might be made to the SOE Act 1986.

¤ The Crown had by Order in Council already removed GPS from the schedules to the SOE Act 1986.

The tribunal found that consultation with both Ngäti Toa Rangatira and Rangitane had been “both perfunctory and inadequate”, but those groups had yet to establish an interest in 1839-40 in the 9 properties and it remained to be seen whether further evidence would establish any such interest.

As to jurisdiction, the WTT argued that under s6(3) Treaty of Waitangi Act 1975 the Crown actions complained of were the removal of GPS from the schedules of the SOE Act 1986, and the advance of the share float to its conclusion were actions inconsistent with the principles of the Treaty. Particular breaches alleged were breach of duty to act reasonably and in the utmost good faith (from NZMC v AG [1987] 1 NZLR 641), including the duty to actively protect Mäori Treaty rights. And breach of duty of consultation – outlined in NZMC v AG and including the standards for consultation set out in Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671.

As to whether the Crown was under a duty to consult in cases involving memorialised lands, in the recent High Court decision in Te Heuheu v AG (HC Rotorua CP44/96, 15 May 1998. See Mäori LR May 1998 p6), concerning land under s27B memorials near Taupo, it was found that ss27-27D of the SOE Act 1986 provides adequate protection for Mäori interests when memorialised land is on-sold except in “the most exceptional cases” involving actions such as bad faith on the part of the Crown. Accordingly, the WTT needed to show that theirs was such an exceptional case.

The High Court in Te Heuheu v AG noted and did not overturn the decision in Te Runanga O Ngai Tahu v AG (HC Wellington, CP 190/95 3 October 1995 see Mäori LR Oct 1995 p6) where Doogue J held that the SOE Landcorp should not on-sell memorialised properties because the Ngai Tahu claim had been heard and reported on, and they would be prejudiced by such a sale and therefore sale would be in breach of s9/1986 (the tribunal noted that, with GPS now out of the schedule to the SOE Act 1986, s9 no longer applied to it – but this did not matter for the purposes of the jurisdiction of the tribunal under its Act).

The tribunal found the consultation undertaken with WTT deficient in that:

¤ The Crown did not precisely identify the properties involved until a late stage;

¤ Crown officials were not sufficiently familiar with the WTT claim and concerns;

¤ The onus was in effect put on the WTT to convince Crown officials that the s27B memorials would not provide sufficient protection;

¤ The public statement of the Minister of Treaty Negotiations “seriously alarmed” the WTT claimants and had a bearing on the collapse of negotiations.

However consultation was not so defective as to constitute an “exceptional case” as envisaged in the Te Heuheu v AG case. The Crown was entitled to rely on the protection afforded by the s27B memorials.

However, the tribunal found that the Minister’s statement, which was not disputed by the Crown, and a further statement in a letter to the WTT that Mäori could return to the Court of Appeal if a change was implemented to the memorial scheme “profoundly disturbing”. The Crown appeared to be speaking with contradictory voices. The certainty of protection afforded by the resumption scheme no longer existed in light of the public warning of the Minister and qualified assurances in a letter to the WTT that the Crown did not intend to alter the scheme ‘currently’. This amounted to the “bad faith” situation envisaged in Te Heuheu v AG. It would be difficult to imagine an action of the Crown more contrary to the terms of the settlement between the Crown and Mäori, approved by the Court of Appeal in NZMC v AG, and enshrined in the Treaty of Waitangi (State Enterprises) Act 1988 [which added ss27A-D to the SOE Act 1986], than its unilateral repeal by the Crown. Accordingly, the action of the Minister in publicly warning that he might alter the scheme of protection was inconsistent with the Treaty in that there was a failure to act reasonably and in utmost good faith toward the WTT. Claimants were likely to be prejudiced by the absence of an assurance that would be able to seek binding recommendations from the Waitangi Tribunal.

The Order in Council removing GPS from the SOE Act 1986, in light of the Minister’s public statement was “equally questionable” in Treaty terms. However, whether the Crown was justified in doing this was a matter more properly for the High Court or Court of Appeal.

The tribunal recommended that:

¤ The Crown given an assurance, before proceeding with the GPS share float, that no changes would be made to the protective scheme until the Crown has first obtained the agreement of the NZ Mäori Council and the sanction of the Court of Appeal;

¤ If such assurance was not given, the Crown should, after negotiation and agreement with the WTT and other claimants in the Wai 145 and related claims, landbank sufficient memorialised properties to compensate and provide some certainty to claimants in light of the Crown unwillingness to give an assurance about the current scheme.

Other courts & tribunals

Te Waka Hi Ika O Te Arawa & Others v Treaty of Waitangi Fisheries Commission & Others

CP395/93 & Others HC Auckland 4 August 1998 Paterson J

In this preliminary judgment concerning the final allocation of the pre-settlement assets of the Mäori fisheries settlements (PRESA), the court answered two questions which had been formulated in earlier proceedings in the Privy Council (Treaty Tribes Coalition, Te Runanga O Ngäti Porou and Tainui Mäori Trust Board v Urban Mäori Authorities & Ors [1997] 1 NZLR 513):

¤ Does the Mäori Fisheries Act 1989 [including amendments in 1992 for the Sealords settlement] require that any scheme providing for the distribution of pre-settlement assets …. should provide for allocation solely to iwi and or bodies representing iwi?

¤ If yes, in the context of the distribution scheme does “iwi” mean “only traditional Mäori tribes”?

Held: after outlining the extensive background to this litigation, the court commented on the “sincere and  well entrenched” views of the major groups supporting the different interpretations, which demonstrated deep division on the issue. This implied that “the ideal method of solving the problem of allocation, namely a consensus between a substantial majority of Mäori people, is unlikely to be achieved.”

Parties and evidence

The Crown took a neutral position and agreed to abide the decision of the court. Although the NZ Mäori Council was not joined as a party because of an overly late application for joinder, its position was still clearly before the court, and its witnesses were called, either as court witnesses or by other parties. Some 70 affidavits were filed and there was much argument as to the admissibility of the whole or parts of them. The approach taken was to allow the evidence to be called, and leave issues of admissibility and relevance to be dealt with by the court. Some of the evidence related more to the substantive proceedings than these preliminary questions – evidence on the principle of mana whenua, mana moana being an example.

The legislation

The relevant statutory provisions in this case were:

¤ Section 3 Settlement Act 1992 – the Act is to be interpreted in a manner that best furthers the agreements expressed in the Deed of Settlement;

¤ The Preamble of the Settlement Act 1992;

¤ The Deed of Settlement itself;

¤ Resolutions of the Hui a Tau (Schedule 1A Mäori Fisheries Act 1989) and in particular the resolution to seek legislative authority to secure the intent to allocate assets “to iwi”;

¤ Sections 5& 6 Mäori Fisheries Act, s6 being amended in 1992 to set out the process to give effect to the resolutions of the Hui a Tau;

¤ Section 9 Mäori Fisheries Act, amended in 1992 ( Minister to consider proposed allocation scheme);

This was therefore a matter of statutory interpretation and giving words their natural and ordinary meaning in context to give effect to the purpose of the legislation.

Given the Treaty claim background to the Settlement Act 1992, it would be “unthinkable” that the principles which apply to Treaty interpretation should not be applied to this case. These require that a “broad, unquibbling and practical” approach is to be taken. And the court should not ascribe to Parliament an intention to act inconsistently with the principles of the Treaty which is a living instrument (NZ Mäori Council v AG [1987] 1 NZLR 641 and Te Runanga o Muriwhenua Inc v AG [1990] 2 NZLR 641). It should also be noted that s9/1992 effectively took away all present and future rights of Mäori in respect of commercial fishing and replaces that with the compensation in the form of the assets being considered in this case.

PRESA and Post Settlement Assets (POSA)

In relation to both PRESA and POSA, the Treaty of Waitangi Fisheries Commission is in a position of trustee and has a duty to deliver benefits to beneficiaries. The commission had not suggested that it might have a lesser duty in relation to PRESA. There are however obvious differences between the allocation of POSA - in that it “may be an allocation of income benefits” – and allocation of PRESA, which is an allocation of capital assets (ie quota) which cannot by their nature go to a multitude of individuals. It was therefore “possible and practical” that a group smaller than “all Mäori” be allocated the PRESA provided that there were safeguards to ensure all Mäori who were entitled to benefit had some access to those benefits. So there was no problem in assuming Parliament intended two different mechanisms to distribute the benefits of the compensation, and that would not mean that Parliament intended to deprive beneficiaries of benefits to which they were entitled. Crown counsel noted that it had a supervisory role to ensure PRESA assets were available to appropriate beneficiaries.

As to background material to the Deed of Settlement which might be relevant, the court briefly examined the case law on materials which can be considered in these situations, and determined that the relevant documents were:

¤ The objective circumstances leading up to the Hui a Tau of 25 July 1995 and the passing of resolutions for allocation;

¤ Waitangi Tribunal reports, which could be used as evidence on matters of historical fact (s42 Evidence Act 1908 and Te Runanga o Muriwhenua Inc v AG [1990] 2 NZLR 641, 652)

¤ Dictionary and historical, sociological, anthropological and etymological evidence on the meaning of the word “iwi”.

¤ In addition, a fair, large and liberal construction of the statutory provisions was required by s5(j) Acts Interpretation Act 1924.

Mäori society

The argument of the Urban Mäori Authorities was that Mäori society has a dynamism and fluidity which had led to changes in its form, and thus the traditional iwi organisations were not appropriate recipients of PRESA and were incapable of delivering benefits to many rightful beneficiaries. The evidence showed:

¤ That at the time of the Treaty, blood lines and kinship were the building blocks of Mäori society.

¤ Mäori society has been dynamic and fluid as alleged. “It has had a history of development, evolution, fusion, division and rearrangement.. Mäori have shown an ability to adapt to changing conditions”.

¤ The paradigm of waka/iwi/hapü/whänau is at the centre of Mäori society – although there is not universal agreement as to the structure of the paradigm. It may be simplistic and incomplete, nevertheless it does form part of tikanga (custom) for many Mäori.

¤ Whänau or extended family groups were a very important element of the social structure in 1840. Large whänau could become hapü, but this usually entailed the development of a marae.

¤ Hapü were the politically and economically viable units of Mäori society. For many Mäori the hapü was their tribe. Each hapü had chiefs or rangatira – who did not so much impose decisions but translate the mood of the community into decisions. It is unquestioned that hapü were the major social unit at 1840 and the Treaty text refers to hapü – not iwi. Hapü were not static. Individuals could belong to several hapü, their districts or rohe sometimes overlapped. “Neither territories nor resources of a hapü were discrete.”

¤ Iwi were made up of hapü and did not exist separate from them. Hapü in some cases became iwi. In some areas hapü were affected by iwi obligations and the mana of iwi leadership. There was dispute about the importance of iwi, but one witness, the anthropologist Dr Metge, outlined 3 key iwi functions as being: 1) management of external relations with other iwi and non Mäori; 2) influencing relations among the hapü making up the iwi; 3) mobilising labour, food and other goods in enterprises to enhance the mana of the iwi as a whole.

¤ However resource management and welfare functions were typically carried out at a whänau and hapü and not an iwi level. Hapü entered and left iwi as needs dictated. However there was “iwi consciousness” in the late 18th century and in 1840. Iwi names persisted while hapü names changed regularly. It was of interest that while for most of the period since 1840 about 40 iwi names have been known, 90 were listed in the 1996 census. Iwi did not always have their hapü in one continuous and defined area and their boundaries were often “more radial than lateral.” Iwi only existed through continuing support from hapü. Some (eg Ngäti Porou and Ngäti Kahungunu), were a conceptualisation of common kinship at a high level of genealogy rather than regularly functioning social structures.

¤ Mäori society has changed considerably since 1840. There were deliberate attempts to weaken the tribal structure, for example, through the work of the Native Land Court. However this seems to have meant that iwi gained importance as a key part of the response to colonisation. Government policies dealt with tribal sized units for ease of administration, and they gained power in that way. Two systems then co-existed, the iwi as the interface between Mäori and Pakeha, while hapü and whänau operated on marae providing political and economic functions at the community level.

¤ The government  urban relocation programme after World War Two led to Mäori seeking a national structure for administration purposes. The Mäori Social and Economic Advancement Act 1945 was an example of this. It provided for a legal framework of declared tribal districts with associated executive committees and the recording of “Mäori villages” – the equivalent of marae. An amendment in 1961 created the NZ Mäori Council of Tribal Executives, which became the current NZ Mäori Council in 1962. Tribal structures were not satisfying the needs of all Mäori with urbanisation and the need for the Mäori Council arose from that. The Mäori Welfare Act 1962 turned tribal committees into district executives and any Mäori in a district could belong to them and non tribal persons could hold positions on such committees. From 1950, many Mäori have lost their tribal connections or had ceased to be active in tribal matters, until the recent “tribal resurgence”.

¤ The devolution policy of the 1980s awakened interest in a return to iwi rangatiratanga, and the government wanted to deal with iwi, rather than the smaller and fluid hapü. By 1990 iwi was synonymous with the term “tribe” and a large number of people. Iwi organised around corporate structures, and the Runanga Iwi Act 1990 recognised that. The five “essential characteristics” of iwi proposed in that Act were the same characteristics which the fisheries commission had adopted for its definition of iwi.

¤ Iwi development over the past 20-30 years had been positive and allowed Mäori to actively participate in shaping economic, cultural and social functions. This development had been endorsed in many places, including in Waitangi Tribunal reports, which placed an emphasis on tribal restoration (eg Muriwhenua Fishing Report Wai 22 1988 p237).

¤ However, iwi are at different stages of development, and some had not become politically and economically effective. The concern of the Urban Mäori Authorities was that while government policy is to deliver benefits through tribes, Mäori who are entitled to settlement benefits either have no close tribal connections or live remote from the tribal district.

¤ Current figures showed that of 579,714 people identifying as Mäori, 81% live in urban areas, 34% of these in Auckland, and 25% of Mäori either do not know their iwi or do not choose to affiliate with it. There was a further proportion who live so far from their iwi they have no close connection with it. Living away from the tribal base made it difficult to influence tribal policies, because of, among other things, travel difficulties and practices which discouraged women and youth from speaking at tribal meetings – leading to a decline in interest in tribal politics. It should be noted however that a sizeable proportion of Mäori who have little or not contact with their iwi actually live in rural areas.

¤ However the geographical reality that many Mäori no longer live within their rohe “does not make it impossible for a tribe to provide benefits for members outside its tribal areas” although it did lead to difficulties in servicing.

Mäori commercial fishing rights

The court found it necessary to form a preliminary view of the nature and extent of Mäori fishing rights, because it was necessary to determine who exactly was losing those rights and therefore who was entitled to compensation, and whether they are covered in the term “iwi” or not. The fisheries commission must satisfy itself that it is allocating to the correct beneficiaries, because if it fails in that it will be subject to judicial review proceedings or, alternatively, be asked by the Minister of Fisheries to reconsider its allocation scheme.

There was “considerable evidence” that commercial fishing rights in 1840 were collectively kin based. Waitangi Tribunal reports, which could be accepted as evidence on matters of historical fact, supported this, notably Muriwhenua Fishing report 1988 (Wai 22), Ngai Tahu Sea Fisheries Report 1992 (Wai 27), Fisheries Settlement Report 1992 (Wai 307). In the last report, the tribunal noted that the key Mäori group was the hapü in relation to fishing rights, but it was appropriate and not inconsistent with the Treaty that a national fisheries settlement should be with iwi. So while there might be individual fishing rights, the right to fish commercially was, in the main, held by hapü.

Evidence before the court at this hearing confirmed that approach. “The right to fish at the time of the Treaty was not akin to a common law property right. It was more akin to the fruits of the sea than an individual property right. The “use” right was common to a group” and the right to catch fish was normally exercised on a collective basis, and was held by whänau or hapü in most cases. At certain times the iwi had a supervisory or some ultimate role in these rights. Some individual rights existed also. The court concluded that:

“… at the time of the Treaty, Mäori commercial fishing rights, were under the guardianship or control of kin groups usually whänau or hapü. It is likely that the tribe, or iwi, did have some overright in respect of those rights in certain areas and that, to an extent, there were also individual fishing rights but usually of a limited nature. It is, in the main, rights which were vested in hapü which were infringed by the QMS [Quota Management System] and which the Crown has now abrogated and taken away. The beneficiaries of the settlement are therefore mainly the hapü who have succeeded to the Treaty or customary rights. It is Mäori who are members of or who are entitled to be members of such hapü, who are the beneficiaries. If there are any extant individual rights, it is difficult to see why they cannot be appropriately recognised by any allocation which gives rights to beneficiaries claiming through hapü affiliation. It needs to be acknowledged that Mäori collectively and individually have suffered from the gradual and final extinguishment of commercial fishing rights. The task of any statutory or Mäori body charged with the obligation of defining the exact nature, extent and ownership of Mäori commercial fishing rights would be both immense and impossible. In a pan-Mäori settlement compensating Mäori for the abrogation of these rights there is a need for fairness and compromise.”

Whether the commission must allocate solely to iwi

The answer to this question depended on whether iwi means Mäori people, or has a more restricted definition applying to a subset of Mäori people. The evidence showed that “iwi” was intended to refer to something less than all Mäori people:

¤ Of the ten court proceedings claiming Mäori commercial fishing rights and which were discontinued when the 1992 settlement was put into place, all related directly or indirectly (in one case) to tribal interests in those rights.

¤ The interim settlement effected by the Mäori Fisheries Act 1989 was amended in 1990 (s8(aa)) to provide that the commission should consult with representatives of tribes when exercising its functions under the Act.

¤ The separate reports of Crown and Mäori representatives in June 1988 reporting on the outcome of negotiations both indicated directly or implied that fishing rights were tribally based and that both sides were proceeding on that understanding.

¤ The fisheries negotiations from 1989 to 1992 proceeded against a background of tribal claims to fisheries, and Waitangi Tribunal reports, litigation, the interim settlement and the 1990 amendment all reinforce that the negotiators acted on behalf of tribal interests. Differing views expressed by Sir Graham Latimer (and evidently held by the Hon Matiu Rata – since deceased) as to the direction the commission was now moving were concerned with inequity in allocation rather than disputing the tribal base of the fishing rights.

¤ The Memorandum of Understanding signed in August 1992 concerning the Sealord deal referred to iwi, and the context of that document and background circumstances meant that the reference was to tribal groups (even though that MOU strictly speaking does not deal with PRESA – but with POSA).

¤ The reference to “iwi” in the resolution of the Hui-a-Tau in July 1992 refers to tribes, when considered in context, including press releases at that time. Information published by the government agency Manatu Mäori in the period before and after the hui reinforced this conclusion, as did information published by the fisheries commission itself prior to the hui, including its annual report in March 1991.

¤ There had been no change in approach from the time of the resolution of the hui to the time the Deed of Settlement was signed in September 1992 and the resolution was inserted into the Mäori Fisheries Act by the Settlement Act 1992. While the Deed of Settlement clearly intended that all Mäori should benefit from the fisheries settlement – and the deed made reference specifically to PRESA, it does not follow that an allocation to iwi would preclude all Mäori from sharing in the benefits.

The court concluded:

“While it has not been determined conclusively that all Mäori had commercial fishing rights in 1840, and this matter may ultimately have to be addressed in a substantive hearing relating to allocation of both pre-settlement and post-settlement assets, the intent of the Crown was to ultimately benefit all Mäori. There are strong arguments based on Mäori tikanga why this should be so. While some tribes may not have utilised fishing rights, they often benefited in various ways from such fishing. Further, the practical impossibility of determining the nature and extent of Mäori commercial fishing rights and the changes in Mäori society since 1840 strongly suggest that a fair settlement should benefit all Mäori.”

In reaching this conclusion the court rejected arguments that:

¤ The legislation requires that the commission can only put forward a scheme to allocate if iwi actually first agree on an optimum method of allocation: The Court of Appeal has already noted that the commission may have to determine by a majority the optimum method to put to the Minister (Te Runanga o Muriwhenua & Ors v Te Runanganui o Te Upoko o Te Ika Assoc Inc & Ors p17), and if the commission puts up a scheme which does not cater for all those entitled as beneficiaries, the Minister may refer the scheme back to the commission for further consideration, or, as an ultimate sanction, bring in legislation to protect beneficiaries.

¤ The schemes of distribution for PRESA and POSA must be put forward together: If the schemes are complementary then perhaps that would be the case, but if each scheme independently addresses the distribution of benefits then there is no reason why they cannot be considered separately by the Minister (the court noted that the schemes may well differ however in that the POSA allocation might retain the capital and distribute income rather than the assets themselves – but that was not a matter to be determined at this hearing).

¤ The reference in the legislation to a scheme “if any” does not obligate the commission to bring forward a scheme: This was academic since the commission was proposing a scheme. But the court noted that the words may have been inserted to cover the situation if no optimum method could be agreed.

¤ Mäori held fishing rights individually and allocation to iwi would not compensate such individuals: This was contradicted by the evidence of Waitangi Tribunal reports and historical evidence. A further submission, that the act of recognising the communal right created an individual interest which had to be recognised, did not alter the interpretation of the statutory provisions. The commission had a right under the relevant provisions to allocate to iwi, and it was for the Minister to ensure that all those who should benefit as individuals would do so.

¤ Urban Mäori will not and can not benefit: The arguments under this heading included that many Mäori live in urban areas, and might either have difficulty accessing benefits, or reject tribal identity (because of a working-class unemployed attitude), or belong to several hapü, or hapü have changed iwi affiliations, tension is created when iwi rather than hapü have social and economic power, and some iwi do not give recognition to spouses and adoptees who do not have kinship links. There was some evidence that, to date, some iwi had been unable to provide benefits even within their districts. It was also alleged the actions of the commission to date had not engendered any confidence that benefits would reach all those entitled. The court however referred to comments in the Court of Appeal in Te Runanga o Muriwhenua & Ors v Te Runanganui o Te Upoko o te Ika Assoc Inc & Ors that if problems became intractable this might drive Parliament to impose a solution, and amending legislation to enable a report by the Waitangi Tribunal might be considered. Ministerial oversight and review of any proposed scheme was always available under s9(4) Mäori Fisheries Act 1989 and there was nothing in principle to prevent iwi setting up structures to ensure those entitled to benefits received them, no matter where they might now live and how strong or weak their tribal link might be.

¤ The iwi model being recognized by the commission is a modern construct and bears no relationship to traditional iwi: The commission admitted that the decision to allocate to iwi rather than hapü was based on practicality. Parliament has encouraged Mäori to form corporate structures to represent their interests, and the commission was relying on the same model as in the Runanga Iwi Act 1990. The form and structure of any corporate body “is of little relevance” if the allocation contains adequate safeguards to ensure that the benefits reach those who are entitled.

¤ Allocation to iwi will replicate the impact of the Native Land Court last century: while there would be some fragmentation of interests – this allocation has a completely different intent from last century, in that Mäori rights are being restored.

¤ The commission stands as a fiduciary to the beneficiaries and allocation to iwi cannot fulfil that fiduciary obligation: this was simply a variant on the concern that all Mäori will not receive benefits.

¤ The resolutions of the Hui-a-Tau are general and not drafted in legal terms: however their meaning is apparent and a fair and liberal interpretation leads to the same result.

The court concluded that the duty of the commission is to allocate to iwi by an optimum method. It will have to decide, by majority as a last resort, on a scheme for the Minister to consider. The scheme will need to give all beneficiaries “access to the benefits of the settlement and will need to provide adequately for those who do not have close iwi ties at this time.” If the commission cannot agree an optimum scheme which includes these requirements, or if the scheme suggested does not contain these requirements, then the Minister can intervene under s9(4)/1989.

Whether iwi means traditional Mäori tribes

Under Mäori custom, fishing rights were communal. Rights vested in a tribe passed on under tribal mana of the rangatira. As a general principle commercial fishing rights were passed by blood or kinship links from one generation to another. It follows that those entitled to benefit from the fisheries settlement are the successors to those tribes that held communal fishing rights at the time of the Treaty. This may not have universal application because of changes in Mäori society, but it is a starting point.

Looking at the English version of the Treaty (which refers to tribes) and dictionary definitions, “traditional tribes” means a group of families claiming descent from a common ancestor, sharing common culture, religion and dialect and probably occupying a specific geographic area, having a recognised leader and being a successor to a similar group which existed in 1840. Taking into account changes in society since 1840 the term means “a group of Mäori people claiming descent from a common ancestor, sharing a common culture and either living in a specified geographic area or being descended from ancestors who lived in that specific geographic area.” Modern changes mean that a common religion and living in a common geographic area were not appropriate requirements. Those Mäori not knowing their genealogy and not wishing to register as members of a modern corporate identity representing the iwi would nevertheless be a member of the traditional tribe. The tribal group in this sense is not a corporate body “but a collection of people, who may be widely dispersed but who claim or are able to claim tribal allegiance by genealogical links.” A traditional tribe “comprises Mäori claiming descent from a common ancestor and sharing a common culture”.  Such a tribe may be merely a conceptualisation at a high level of genealogy and does not need to be a regular functioning social structure. The tribe will encompass people no matter where they live, and regardless of their religious beliefs. A further requirement is that the traditional tribe must have been recognised by other sections of Mäoridom.

The etymological evidence showed that the term iwi when used in the Treaty referred to simply “people”. However the use of the word in context in the recorded resolutions of the Hui-a-Tau showed that the commission considered it as synonymous with “tribes”. It was very unlikely it was meant in any other way. If “people” had been meant then a phrase like “Mäori people” could have been used – but was not. More recent dictionaries indicate the use of the word iwi in recent times refer primarily to a tribe.

Taking into account the documents surrounding the Hui-a-Tau resolutions (discussed above) it was clear iwi was used to mean traditional tribes. However, too rigid a definition of iwi should not be imposed since there has been much change, for example the decisions of the modern tribe are often made through runanga, iwi authorities and trust boards. “Traditional tribes” are the people of the tribes. They are distinct from the bodies which represent them, and those bodies have a fiduciary duty to hold assets allocated for the beneficiaries. The Waitangi Tribunal correctly noted in its Fisheries Settlement Report1992 (Wai 307) that a national fisheries settlement should be ratified at iwi level. Allocation should also be to bodies representing iwi with the proviso that the bodies allow the benefits of the settlement to be accessed by all beneficiaries of the settlement, even if they live outside the rohe and have not maintained their tribal links. While not finally determining the matter, the exclusion of people who are entitled to claim membership of an iwi from sharing in the benefits of the settlement would be “completely inappropriate” and also contrary to Parliament’s intent in approving a pan-Mäori settlement.

As to urban Mäori authorities, while they act essentially like traditional iwi in the provision of services for the people, they do not have a tribal basis in the sense that blood or kinship links are not central, they are kaupapa based, although they do have marae. If iwi requires a whakapapa (kinship) base then they are not iwi. Te Whänau of Waipareira is a good example of such groups. But because kinship links are lacking, they are not iwi in terms of the resolutions of the Hui a Tau. Their members would nevertheless be eligible to share in the benefits of the settlement as successors of those who had rights to fish commercially in 1840.

[Ed: an appeal from this judgment has been lodged by the Urban Mäori Authorities. The High Court did not consider the recent report of the Waitangi Tribunal on Te Whänau of Waipareira trust. That report became available to the court after the hearing had finished, but the parties before the High Court could not agree that the court should consider it. That tribunal report (see Mäori LR July 1998) determined that that trust was a group exercising rangatiratanga and therefore entitled to be considered in terms of Treaty principles. The tribunal found that the trust had a status no less than that of an iwi. The tribunal also found that kinship links were not a primary consideration. Whether that determination would make a difference in this case, which turns on the interpretation of particular provisions in the fisheries settlements legislation, remains to be seen.

The court was at pains to say that it made no finding on the mana moana mana whenua issue – since that was not relevant in determining these preliminary issues. The mana whenua/moana issue goes very much to the heart of the debate about allocation inter-iwi, and it is likely that it will be fiercely debated before the courts on some future occasion.

The court laid heavy emphasis on the role of the Minister of Fisheries, and possibly Parliament, in approving the final allocation scheme. If the allocation scheme proposed by the commission is agreed by a significant minority of iwi, or is passed simply by a majority of the commission, the intervention of the Minister and Parliament looks increasingly likely. The work of the commission in the next few months in further refining and selling its scheme to iwi will be important.]

Manukau v Ministry of Fisheries

M 984/97 High Court Auckland 29 July 1998 Salmon J 45pp

The applicants claimed damages totalling $2.4 million including $1.25 million for injury to mana, deep embarrassment and loss of dignity for actions taken by the Ministry of Fisheries to halt a fishing operation of the applicants.

The applicants claimed to be the hereditary and statutory descendants of the chiefs who, under the name of the “Confederation of Chiefs of the United Tribes of NZ” signed the October 1835 Declaration of Independence. That same Confederation was a party to the Treaty of Waitangi. The applicants issued certificates to register fishing vessels and also issued fishing permits under the authority of the Declaration of Independence and the Treaty of Waitangi. They arranged to purchase fish for $4 kg from fishermen fishing under their permit system, and on-sold from various marae for around $8 kg to Confederation members. It was claimed the operation was a non-profit one and that some fish were given away. It was also claimed that both the payment of $4 kg to fishermen and the money received by marae from onselling was a koha or gift. In 1996 the Ministry of Fisheries commenced an operation to investigate the activities of the Confederation, which resulted in the seizure of documents, a truck and a boat.

Held: the issue of the status of the Declaration of Independence has been dealt with in Application by Mohi Wiremu Manukau & Eru Manukau (HC Auckland M1380/92 10 June 1993) and Berkett v Tauranga District Council [1992] 3 NLZR 206. In the latter case, the court threw out a claim that the criminal law did not apply to certain Mäori for offences committed on Mayor Island since sovereignty of it had never been relinquished. It noted that in NZ Mäori Council v AG [1987] 1 NZLR 641, 671 the Court of Appeal commented that proclamations by Hobson in 1840 declaring Crown sovereignty over NZ, and their approval in London and proclamation in the London Gazette meant that, as a matter of colonial and international law, Crown sovereignty over NZ was authoritatively established at that point. Therefore no independent sovereignty could arise from the Declaration of 1835. In any event the Treaty of Waitangi may have overtaken the Declaration since the same Confederation of Chiefs was involved. In the Manukau case it was held that the Declaration is “a matter of interest to historians but is no longer of relevance to lawyers”. Accordingly, the relevant law in this case was the Fisheries Act 1983, the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 and regulation 27 Fisheries (Amateur Fishing) Regulations 1986.

The applicants argued that they derived fishing rights directly from Article 2 of the Treaty. While that may have been an arguable proposition prior to 1992, the Settlement Act 1992 repealed s88(2) Fisheries Act 1983, and in Te Heuheu Tukino v Aotea District Mäori Land Board [1941] AC 308 it was found that the Treaty is not justiciable unless incorporated into NZ law. So while the Crown continues to be subject to obligations relating to customary fishing as a result of the Treaty, fishing rights no longer derive directly from Article 2.

Section 10 of the Settlement Act 1992 provided that rights of Mäori in non-commercial fishing should henceforth no longer have legal effect, expect to the extent that comprehensive regulations would be made to provide for them after full consultation with Mäori affected. Section 89 provided that regulations permitting customary food gathering could be made, and the Act also amended r27 of the Fisheries (Amateur Fishing) Regulations 1986 allowing the Director-General of Fisheries to authorise taking of fish for traditional non-commercial purposes, where that would otherwise contravene fishing regulations. This was a stop gap measure, and to date, no comprehensive regulations for customary fishing had been put in place for the North Island, although regulations for the South Island were put in place in 1998.

In two district court cases (Police v Dick DC Dargaville 31 October 1996 Kerr J and Lyell v Hikuwai DC Kaikohe) it was held that, since no comprehensive regulations had been drawn up for customary fishing as the 1992 settlement contemplated, a void in relation to non-commercial Mäori fishing exists and the defence of customary fishing rights remains open for the time being. This is wrong, since the Settlement Act 1992 is clear that such defence exists only in as far as regulations provide. NZ Federation of Commercial Fishermen & Ors v Minister of Fisheries & Ors (CP237/95 HC Wellington 27 April 1997 see Mäori LR May 1997) correctly states that while customary fishing rights continue to give rise to Treaty obligations, they are not available as a defence except in as far as regulations may provide. While r27 is an interim provision until the new comprehensive regulations are promulgated it must be treated as though made pursuant to s89, and a liberal interpretation is to be taken of it with that purpose in mind.

Regulation 27 allows for taking for “hui, tangi or traditional non-commercial fishing use” approved by the Director-General of Fisheries (D-G). While the wording might suggest that approvals of the D-G can relate only to other “traditional non-commercial fishing use” it seemed that the D-G had considered that his approval was required for all 3 types of activity – hui, tangi and other uses. The only approvals in existence and relevant to this case in any event were for hui and tangi on a marae.

The Court rejected arguments from the applicants that a marae could be a private dwelling house and that a hui could be any type of meeting. The words were meant in their “traditional sense”. Mäori dictionaries and references in Te Ture Whenua Mäori Act s338 (Mäori reservations), are clear that a communal meeting place is meant. The term “marae” in the Settlement Act 1992 was intended to refer to complexes which most New Zealanders would be familiar with, a meeting house with an associated whare kai and open space in front of the house. Regulation 27 reinforced this by referring to “marae committees” as possible bodies to approve fishing for hui and tangi. The word “hui” likewise did not mean simply a gathering of more than one person, but, like a tangi, was intended to refer to a discrete event. The evidence in this case showed that while hui and tangi may have been among the purposes for which fish were caught, private consumption was also included. Therefore purposes beyond r27 were involved. The court noted however that it could understand the frustration that no comprehensive regulations were in force some 6 years after the fisheries settlement. It was also noted that on 5 February 1998 further regulations had been promulgated allowing mare committees and others to give written authorisation on strict terms for non-commercial fishing.

The court also rejected the applicants argument that their “koha system” for disposing of fish meant that they were not taking fish for sale ie commercial fishing. Evidence showed that fishermen were generally paid $4 kg for fish caught, invoices were issued, and there was a price list for different species. A set arrangement of a certain sum per kg is inconsistent with the definition of koha as a “present or gift”.

The court then considered a number of technical issues surrounding the search and seizure operations of the fisheries officers and found against the applicants on each issue [those aspects are not reviewed here]. All applications were dismissed.

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