September 1998 Contents

Waitangi Tribunal

Report on Ika Whenua Rivers Claims

Other Courts and Tribunals

Court of Appeal – Mäori Reserved Lands & 5 compensation

High Court – Mäori protest & damages

High Court – Old Land Claim

Environment Court – Waikato River & dairy factory discharge permit


 

Mäori Land Court & Appellate Court

No items this month

 

 

Waitangi Tribunal

Te Ika Whenua Rivers Report 1998

Wai 212. 1 September 1998 Carter J (Presiding) MA Bennett, MB Boyd G

This report concerned broad issues of the mana and rangatiratanga or customary authority and control by a confederation of hapü to the middle reaches of the Rangitaiki, Wheao and Whirinaki Rivers in the Bay of Plenty. In 1993 the tribunal reported on an urgent aspect of the claims, a proposal to transfer the Aniwhenua and Wheao hydro electric power schemes established under the former Electric Power Boards to energy companies (Te Ika Whenua – Energy Assets Report 1993). These local schemes, undertaken by the Bay of Plenty and Rotorua local power boards respectively, were first proposed in the 1970s and commenced operation in 1980 and 1982. The tribunal recommended that the schemes remain with the boards or with the Crown pending the full hearing of the rivers claim. When the Crown rejected this recommendation, the claimants sought judicial review of the transfer process,  relying on the tribunal report. However the Court of Appeal rejected the appeal in Te Runanganui o Te Ika Whenua Inc v AG [1994] 2 NZLR 20, stating that while there might be a remedy before the Waitangi Tribunal for interference in customary rights, there was no assured Mäori interest in hydro electric power generation. This report completes the tribunal inquiry into the river aspects of the Wai 212 claim.

The claimants, cross claims, representation issues

The claimants were of 4 hapü identifying under the common name of Te Ika Whenua. The Runanganui which represented them for the purposes of the claim and settlement had whakaruruhau or overarching authority and was acting under tuku rangatiratanga or a temporary transfer of authority. That authority and the Runanganui would come to an end when the land and rivers claims had been settled. The situation was said to parallel an event in 1924 when over 700 individuals from the whanau of the region were levied 10 shillings to raise funds to petition Parliament over the Crown purchase of the Kaingaroa block.

Traditional evidence

To prevent repetition, traditional evidence from the urgent hearing in 1993 was included in the record of this hearing. The evidence that hapü identifying as Te Ika Whenua inhabited the area historically was not challenged. The area was a “border” district which acted as buffer between Urewera/Tuhoe groups to the east and Arawa/Ngäti Awa and Ngäti Pukeko groups to the west. Traditionally, there were no fixed lines in areas of tribal overlap, and the kin relationships and reactions among the people were determinative of the shape of dynamic boundaries.

It was not disputed that fish and particularly eels formed an essential part of the diet of the people, so much so that they were said to have an ““eel culture”. There was also unchallenged evidence that the rivers provided spiritual sustenance. The mauri or life force of the Rangitaiki River was said to reside in a particular rock (Tokokawau). The river was more than a taonga or treasure to the people, in a sense it was the people themselves.

The rivers were also used extensively for communication and transport purposes, this despite the many waterfalls and rapids on the rivers. Customary rights to stretches of water and resources in the river were claimed by groups and individuals. The claims were noted by a system of posts (pou) and maintained by the imposition of prohibitions (rahui). These uses, and customs such as traditional gift exchanges of eels from the river with  other tribes also attested to tribal or hapü mana and tino rangatiratanga of Te Ika Whenua over the rivers as a whole.

Changes 1812 to 1920

The tribunal examined the history of the river hapü in this period and found that rights to the rivers were significantly eroded, although the river continued to provide an important source of food in an economy by 1920 of subsistence farming, supplemented by casual agricultural labouring work. The major phases of change were:

•  Tribal warfare and migrations beginning with Ngäti Pukeko invasion of the area in 1812, followed by waves of Nga Puhi incursions which forced to groups into temporary retreat inland.

•  Early European contacts from 1829 which ultimately resulted in major agricultural initiatives such as wheat growing and sheep runs in the 1860s. The important influence of the introduction of Christianity was felt in the period also.

•  Military campaigns of the NZ Wars in 1868 and 1871, including the famous battle at Te Tapiri where groups from Te Ika Whenua supporting the Crown defeated the Pai Marire emissary Kereopa Te Rau. The major hapü of Te Ika Whenua, Ngäti Manawa, supported the Crown in later campaigns against Te Kooti, and avoided any confiscation of lands. The Te Ika Whenua hapü returned to their kainga along the rivers in 1872, as roads and Pakeha settlers were introduced to the region.

•  The introduction of the Native Land Court scheme which resulted in the individualisation of customary interests and sale of much of the land of the hapü along the rivers between 1878 and 1908. The hearing and sale of the huge Kaingaroa No 1 block (over 100,000 acres) between 1878 and 1880 was a classic example of this change. While making no definitive findings on land claims issues (these are to be dealt with in a subsequent hearing) the tribunal noted that it appeared that the land court determinations of title and subsequent sales did not bring wealth to the district, while causing social upheaval, and hapü became even more reliant on the rivers for survival.

•  Natural disasters such as serious floods and destructive frosts around the turn of the century, including the great disruption wrought by the Tarawera eruption of June 1886.

In summary, the changes in land tenure meant that rights were lost through the application of the ad medium filum presumption, but people continued to use the river as a food source, although in a less mobile fashion than formerly as families took up subsistence farming on remaining Mäori freehold lands.

Forestry

Ngäti Manawa were heavily involved in the planting of the Kaingaroa exotic forest between 1920 and 1939. The rivers continued to be used as a food source to supplement wages during the planting work. The failure of a Ngäti Manawa Land Development Scheme of the 1930s had an indeterminate effect on river usage. Ngäti Manawa were heavily involved in the scheme to create a pulp and paper plant at Murupara in 1949, which resulted in the loss of some small areas under the Public Works Act, but provided 3 decades of full employment and comparative prosperity. The corporatisation of the forestry industry after 1985 had brought an end to that however. The claimants complained of a “permit culture” limiting access to rivers since the introduction of the forestry industry to the area.

Power Generation

The tribunal examined events surrounding the establishment and ongoing operation of several hydro electric power stations in the claim area. The relevant legal background was:

•  Water-power Act 1903 and Electrical Motive-power Act 1896: giving the Crown control over all uses of water for generation of electricity subject to “any rights lawfully held”. A Mäori interest in using water for this purpose was noted in Parliament when the former legislation was passed.

•  The continuation of this Crown control on use through various public works and electricity acts until the repeal of any requirement for Crown consent for hydro eletric generation in the Electricity Amendment Act 1987.

•  Water and Soil Conservation Act 1967: required the Crown along with all other users to obtain consents from a national authority to use water for power generation purposes, as well as the generation consent which the Crown still controlled. The water right under the 1967 legislation became the key consent to be obtained. Mäori interests were not mentioned in the Act.

•  Resource Management Act 1991: places water consents in the hands of regional councils, along with requirements under Part II to recognise Mäori interests.

Specific issues arising from the power schemes were:

•  The diversion of the Rangitaiki river into the Wheao river in the Wheao scheme resulting in an unacceptable mixing of waters which affected the mana of the Rangitaiki river and thus the claimants.

•  Allegations of inadequate consultation over the Aniwhenua and Wheao schemes.

•  Concerns over the consultation for a proposal to build a further dam downstream from the Aniwhenua dam on the Rangitaiki river (the Kioreweku project). That consultation was taking place under the RMA 1991.

•  Concern about the effects of the dams on eels migrations and populations. Initial historical research had suggested that local Mäori had not raised any concerns about the eel fishery when the dams were constructed. However further research showed that Mäori anger about the effect of dams had been evident since the early 1970s, following the construction of a dam at Matahina on the lower reaches of the Rangitaiki river. Efforts had been made to manually restock the eel fishery, but with little discussion with Te Ika Whenua people.

Riparian Rights

If the rivers were navigable for any of their length, the Crown would have ownership of the river bed by virtue of s261 Coal Mines Act 1979 (repealed s120(1) Crown Minerals Act 1991, but reaffirmed in s354(1)(c) RMA 1991). However the Crown did not make any claim that the rivers concerned were navigable in the claim area, following an official opinion from the former Department of Survey and Land Information that, in the absence of persuasive evidence either way, it would be “wrong” for the Crown to assert ownership without convincing evidence of navigability. The application of the ad medium filum aquae rule (presumption of ownership to the middle line by riparian landowners) was therefore assumed by all parties to apply. The relevant law relating to water, s14 Resource Management Act 1991, followed the common law principle that water itself cannot be owned, only rights to use water.

These legal positions contrasted with the Mäori view that physical and metaphysical aspects of a river cannot be divorced from each other and that riverbed, banks and water are an undivided whole. This was noted in Te Ika Whenua v AG and in the Native Land Court Lake Omapere judgment of 1929 and in the Native Appellate Court Whanganui River judgment in 1944.

Tino Rangatiratanga issue - retention of traditional authority over the rivers

The issue here was the nature of tino rangatiratanga and whether the Crown had failed to protect Treaty rights. The Crown did not argue that ownership of the rivers was lost by Te Ika Whenua people through the application of the ad medium filum rule, but rather that, since the mana over rivers and adjoining lands were inseparable in Mäori eyes:

•  There was strong prima facie evidence that owners of riparian lands were willing sellers in the claim area;

•  Where rivers and streams were entirely within the land blocks sold, the mana over the rivers and streams was relinquished when the mana over the adjoining lands was relinquished;

•  Where rivers and streams formed a boundary of lands sold, further research was required to determine if mana over the river had been relinquished – but there was preliminary evidence suggesting this was the case.

The tribunal found that:

•  The evidence to date did not establish that riparian owners had been willing sellers. Even if they were willing sellers of the lands, rivers were of such importance as taonga that there could be no necessary inference that they thereby willing gave up rights to them along with the lands.

•  There was however less evidence that tributaries and streams were regarded with the same concern. Consequently it would be hard to believe that tino rangatiratanga was retained over them when they were entirely within a land block and all rights of access were lost. Evidence on land sales (which is to be presented at a later hearing) would have to address this point.

•  Where rivers were boundaries of land sales, the evidence showed that the ad medium filum rule was applied by the Crown. There was no firm evidence that mana over the rivers was voluntarily relinquished when riparian lands were sold. That argument relied simply on inferences drawn from the fact of sale itself, and should therefore be rejected.

Responding to other Crown arguments, the tribunal found that:

•  Land sales and their effects on rivers were not similar to the loss of mana over land associated with traditional conquest or abandonment of lands. Mana was not completely extinguished by such acts. Conquests were rarely if ever so complete as to remove entirely the mana of previous owners.

•  The fact that claimants to titles before the Native Land Court did not distinguish rivers from their adjoining lands was not definitive. References in land court minutes to rivers were understandable as references to those places as landmarks. Traditional evidence before the Waitangi Tribunal was that rivers were regarded as distinct from land and possessing their own mauri or life force.

•  Any inference that Mäori generally understood that the ad medium filum concept applied when land sales were made should also be rejected – as it was in the Mohaka River Report 1992.

•  There was no definite answer to the linguistic issue of whether purchase documents meant different things when they referred to “i roto i te awa” (possibly “within the river”) as opposed to “i roto o te awa” (possibly “along the river”), and the resolution of that limited issue by research might not provide an answer to the larger issues in any event.

•  A concern expressed by Ngäti Manawa in 1924 about the failure to set aside a fishing reserve in the Kaingaroa No 1 block did illustrate an awareness of the need to reserve riparian lands and fishing grounds from purchases, but was not any acknowledgment that the river itself passed with the sale of the block.

•  Te Ika Whenua people did not voluntarily give up traditional uses of the river in pursuit of the new money economy, nor were the reserves they retained adequate for the needs of a relatively small population. Historic evidence showed that the river remained a continuing source of sustenance in the new economy, the people never wished to relinquish control over it, and common law principles and legislation reduced that control significantly.

•  While there were undoubtedly claims which overlapped this claim in parts, all affected groups had indicated their positions and had not expressed concerns about this hearing. Any findings would be subject to the qualification that the boundaries between groups required further discussion, so that it was not vital to settle the claim area definitely before making findings.

•  It was not for the tribunal to be satisfied by positive proof that sellers of riparian lands did not give up control over the rivers. Rather, the Treaty put an onus on the Crown to prove positively that Mäori wished and desired to give up river interests along with riparian interests. However, it must be accepted that “some of the owners of riparian lands may well have contemplated a lesser use of their riparian rights or a sharing of rights” as a result of land sales. This is less than a relinquishment of tino rangatiratanga and all levels of rights, including hapü over-rights. The major loss of interests was by the operation of the ad medium filum rule, as was found in the Mohaka River Report 1992.

•  Finally, the argument that further research into land sales was required before findings on this claim could be made with any confidence, should be rejected.

Kawanatanga issue – the hydro schemes and government authority

The issue was not whether the control of the rivers for hydro electric power generation was a justifiable exercise of kawanatanga or overall sovereignty which was clearly given over in Article 1 of the Treaty (Ngai Tahu Report 1991 vol 2 para 4.6.6), but whether that exercise had been properly qualified through reasonable and proper regard being given to the Article 2 guarantee of tino rangatiratanga and the associated duties and obligations of the Crown. The key problem was the tendency of the Crown to render native title conceptually in terms of English law (a tendency noted in Te Ika Whenua v AG), and a failure to put into effect a form of title which properly recognised Mäori customary and Treaty rights to rivers. This led to a failure to consult properly over laws and actions affecting the use of the rivers for power generation purposes. The level of consultation required on this major issue was “full discussion” in the light of a “full appreciation” of the nature of the taonga concerned, including its spiritual and cultural dimensions (NZ Mäori Council v AG [1987] 1 NZLR 641, 683, Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671, Ngawha Geothermal Resource Report 1993 para 5.1.6,Preliminary Report on Te Arawa Representative Geothermal Resource Claims 1993 p 32).

Because the Mäori interest in the rivers had not been recognised adequately in the laws which applied, and English law views about the resource applied, the consultation presented the proposed developments virtually as a fait accompli. The almost total lack of response from Mäori at the time the schemes were proposed could be explained in this light.

The schemes had had an impact on spiritual values (mixing of waters in the Wheao scheme) and also on eel fisheries. The fact that eel fishing was probably most directly affected by the Matahina dam, downstream of the claim area, did not reduce the Crown responsibility to preserve eel fishing within the claim area. The impact of commercial eel fishing could also be discounted. Such fishing only contributed briefly to depletion. The claim was overwhelmingly about customary fisheries – not commercial fishing - which the tribunal no longer has jurisdiction to hear claims over in light of the fisheries settlement (Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 s9(a)).

The evidence showed that the Crown looked upon the decline in the eel fishery as beneficial to recreational trout fishing. The commendable efforts in recent years to replenish the eel fishery were however ad hoc, undertaken without full consultation and no long term plan for replenishment had been adopted.

The tribunal would make no comment about the ongoing consultation for consents under the RMA 1991 for the proposed Kioreweku project. Other tribunal reports have recommended changes to the RMA 1991.

With regard to specific complaints that trout fishing regulations were limiting the use of a traditional wooden floating device allowing fishing of both sides of a river (retireti), the device was clearly a customary fishing practice and entitled to Treaty protection, although it was unclear whether existing fishing regulations limited its use in the way claimed. The existing regulations should be the subject of negotiations with the Crown – although use of the retireti to catch trout might not be a customary fishing practice.

The right to development

The tribunal examined in detail the Court of Appeal finding in Te Ika Whenua v AG concerning the Aniwhenua and Wheao schemes that Mäori had not, under aboriginal title or the Treaty, “had preserved or assured to them any right to generate electricity by the use of water power.” While not disagreeing with that finding, the tribunal noted that:

•  The tribunal in its reports has been more forthright than the courts in recognising a right of development.

•  The 1992 fisheries settlement was clearly predicated on a right of development, since it involved fisheries well beyond those used by Mäori in 1840.

•  The evidence showed that Te Ika Whenua had, and the Treaty guaranteed, full proprietary rights to the rivers and lands – not merely customary use rights as at 1840. The Mäori freehold titles given by the Native Land Court recognised this, being full possessory titles and not lesser titles.

•  An examination of custom showed that the ownership or proprietary right of Te Ika Whenua in their rivers was a full and unrestricted use and control of the waters while they were within their rohe or district.

•  When Te Ika Whenua people sold riparian lands they were, as the Treaty contemplated, sharing the resource. This sharing reduced their proprietary interest but did not detract from their tino rangatiratanga. It merely left them with a “residual proprietary interest” – which the Crown had not subsequently acknowledged when it made laws affecting the rivers.

•  This residue could be termed a residual interest or a share under partnership with the Crown – the result was the same. Te Ika Whenua were entitled to recognition that they retained an interest of “reasonable substance” in the rivers, with the precise definition to be arrived at by negotiation. While further hearings on the land claims might influence the level of that residual interest which could be claimed, it was appropriate to make recommendations at this stage for interim relief.

With regard to the Te Ika Whenua v AG decision specifically, under the Treaty Mäori were entitled to full, exclusive and undisturbed possession of their properties which included rivers, and the full use of those assets, including a right of development. Electric power generation was undoubtedly a part of that right, however the real issue was the ability to exercise it in present-day circumstances. The Court of Appeal limitation, that no right to power generation was preserved or assured, should be understood in that context.

Accordingly, Te Ika Whenua had retained some rights to use the rivers for power generation, although not exclusively. Their interest in that sort of use was entitled to some priority however. In this respect, while the Crown restrictions on the ability to use water for electricity generation from 1903 were a reasonable exercise of kawanatanga, it had failed to adequately consult Te Ika Whenua and take their interests into account when determining whether the Aniwhenua and Wheao schemes were suitable local power generation schemes. Te Ika Whenua were entitled to full compensation and to compensation for the loss of property rights. Negotiations over compensation for past and future use should consider such issues as past use, loss of ability to share in power production as a Treaty partner, payment for future use of the proprietary interest of Te Ika Whenua in the rivers.

Findings and Recommendations

The key Treaty principles involved were:

•  The duty of active protection by the Crown of Mäori interests;

•  The principle of exchange-reciprocity, with Mäori ceding sovereignty or governance (kawanatanga) in exchange for the guarantee of continued control over their resources (tino rangatiratanga);

•  The principle of partnership.

Having made findings that Te Ika Whenua had rangatiratanga over their ancestral rivers or tipuna awa, which had not been recognised, that their fisheries were interfered with, and that a right of development existed in relation to power generation, the tribunal recommended that:

•  The Crown and Te Ika Whenua negotiate a suitable regime of management and control of the rivers. The tribunal did not support a claimant suggestion that this be achieved by having powers under the RMA 1991 vested in the claimants, including regional authority powers and resources under that Act. The tribunal endorsed earlier reports which have criticised the RMA 1991 for failing to accord an appropriate level of priority of Mäori interests (Ngawha Geothermal Resource Report 1993 para 8.4.7, Te Whanganui-a-Orotu Report para 9.13.5). In addition, such a recommendation might inhibit the options available to the Crown to properly recognise the claimants’ rangatiratanga over the rivers.

•  That the Crown recognise and protect the claimants’ residual proprietary interest “akin to ownership” in the rivers. Title to the beds of the 3 rivers within the claim area should be vested in the claimants where title was presently held by the Crown.

•  Suitable access to the rivers over adjoining Crown lands should be negotiated, particularly over Crown forest lands.

•  Compensation should be negotiated for past and ongoing use of the rivers for power generation purposes.

•  A suitable regime of management of the indigenous fisheries in the rivers should be negotiated, including a programme for restoration of the fisheries, in particular the eel fishery.

•  The claimants should be adequately funded in any negotiations, and reimbursed for reasonable costs of bringing this claim.

[Ed: Georgina Te Heuheu was a member of the tribunal for this hearing, but withdrew when she sought political office for the National Party.

Possibly the most interesting aspect of this report is its consideration of what appeared to be a definitive statement from the Court of Appeal in Te Ika Whenua v AG  that Mäori do not have any rights by way of the Treaty or aboriginal title in hydro electric power generation (as opposed to any interference from such schemes in customary fishing and other rights). The tribunal report argues that the Court of Appeal only meant that no such rights were assured to Mäori, but that they do in fact exist, and their loss ought to be compensated. Having once rejected tribunal views on such matters in the Te Ika Whenua v AGjudgment, it will be interesting to see how the tribunal reasoning is viewed if the matter of Mäori rights in hydro electric power schemes comes before the courts again. The essential tribunal reasoning is contained at para 10.3.4 (pp125-127) of the report.

Other courts & tribunals

The West Coast Settlement Reserves Lessees Association (Inc) & Others v AG & Others

CA98/98 Court of Appeal. 15 June 1998. Richardson P, Thomas, Keith, Blanchard, Tipping JJ

The background to this aspect of the long running dispute over Mäori Reserved Lands is outlined in Mäori LR April 1998. The plaintiff lessees of Mäori freehold land sought clarification with regard to the valuation of their interests. The leases are perpetually renewable every 21 years. Prior to the Mäori Reserved Land Amendment Act 1997, the annual rentals were fixed and set for the next 21 years every time the lease was renewed. Under the 1997 Act, rentals are to be reviewed every 7 years and are to be “the fair annual rent of the land for the next ensuing period of the term of the lease”. The leases are still perpetually renewable, but the Mäori lessor now has the right of first refusal if a lessee wants to assign the lease to a party who is not a “specified assignee”. Lessees would be able to seek compensation for lost value in their interest due to the change. The value would be determined on the 1st of January 1998 and then again on the 1st of January 2001. If the value went down, the difference would be payable in compensation. The lessees had a number of concerns about the 1997 legislation. They argued that the new rules were to their disadvantage in that the proposal of the Act had lead to market values being depressed. The Mäori Reserved Land Amendment Act 1998 changed parts of the 1997 Act.  In particular it provided that both the “before” and “after” market values of the leases would be determined on the 1st of January 2001, as if the Mäori Reserved Land Amendment Acts 1997 and 1998 “had not been proposed or enacted” (s4(3)). The 1998 Act also provided that the lessees could file for compensation for:

“(a) The change to a more frequent rent review; and

(b) The change to a fair annual rent based on the unimproved value of the land; and

(c) The conditions imposed by the Mäori Reserved Land Amendment Act 1997 on the assignment of the lessee’s interest in the lease.” (s4(1)).

The court made a declaration that:

•  The term ‘proposed’ refers to proposals made public about changes to the Mäori Reserved Land Act 1955, dating back to 1993.  The term does not refer to when the amendment was introduced to Parliament.

•  The proposals the Government made public in 1993 about changes in review frequency and a move to market-based rentals are not substantively or economically  different from the changes brought about by the 1997 and 1998 Acts.

•  Lessees are only able to be compensated for those matters identified in section 4(1) of the 1998 Act.

Moynihan v Berkett and Others

CP 3/94 High Court. 27 July 1998. Paterson J

This was a claim in tort for the deliberate interference with economic interests by unlawful means. The plaintiffs, Mr and Mrs Moynihan, started an accommodation and tourism business on Mayor Island (Tuhua) in September 1990.  Twice in September and October 1990, a Mäori group visited the island, and the plaintiffs claimed the activities of the group were disruptive to their business. These activities included demanding landing fees from passengers arriving at the island, and attempting to prevent landings where the fee was not paid. Three of the defendants, Mrs Berkett, Mr Berkett and Mr Aka, were members of the Mäori group. They claimed sovereignty over the island and were unhappy about the presence of the plaintiff’s business. Mrs Berkett had filed a claim with the Waitangi Tribunal relating to the island in August 1990, and made a proclamation of tino rangatiratanga and a declaration of title to a Minister of the Crown. She had also made statements to the press about her intention to occupy the island and force the departure of the Moynihans.

Held: the Moynihans’ right to bring this action was challenged on two grounds. First, that they were deprived of the right to claim by having been declared bankrupt. However, the right to claim which belonged to the Official Assignee was abandoned by him. Although there was no formal assignment of the right to claim, the Official Assignee’s abandonment could be taken as such because the lack of legal assignment was not challenged.

Secondly, it was contended that since the lease of the island was taken out in the name of the company rather than that of the plaintiffs, the plaintiffs as shareholders were unable to sue. The court however held that the plaintiffs carried on business as partners rather than through the company and were therefore entitled to claim.

It was also contended that the lease of the plaintiffs was an alienation of Mäori land under the Mäori Affairs Act 1953.  Under s233(1) of that Act, the lease could have no force unless it was noted on the records of the Mäori Land Court. The lease was not noted until the 23rd of October, when most of the events in question had taken place. However this was irrelevant to these proceedings since trespass to land concerns possessory rights rather than rights of ownership. The lease was treated by the lessor and the plaintiffs as being effective from the first of September.

For the plaintiffs to succeed, it needed to be shown that the defendants had intentionally interfered by unlawful means with the plaintiff’s economic interests. Actual damage to the plaintiffs needed to result. The acts committed by the defendants while trespassing were unlawful. While there is no clear test as to when defendants should be liable for damages caused while trespassing, in these circumstances the Berketts and Mr Aka should be liable. The interference was intentional.  For a consequence to be intended, it should be the cause of the conduct (Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354). Here, even though interference with the plaintiffs’ business was not the only or primary objective of the defendants, it was clearly intentional, rather than incidental.

The plaintiffs suffered some loss of business due to the defendants’ unlawful acts.

The court considered the nature of the defendants’ acts as a protest against Mäori land alienation, finding that “the defendants ... labour under a genuine grievance. Genuine grievances, however, do not justify persons taking the law into their own hands.”

Consequently, damages should be awarded to the plaintiffs. While $630,000 were originally claimed, the actions of the defendants could not be seen as having caused the collapse of the plaintiffs’ business, and only $15,000 should be awarded for loss of business, plus $7,500 against each of Mrs Berkett and Mr Ake in exemplary damages because of their intentional trespass and unlawful actions which had been traumatic and threatening to Mrs Moynihan in particular.

Pennell, Cribb & Hojsgaard v District Land Registrar, Mäori Land Court & Mäori Appellate Court & Klaricich

N1871/97. High Court. 16 July 1998. Salmon J

This was an appeal to the High Court to quash orders made by the Mäori Land Court and upheld by the Mäori Appellate Court. The appeal to the Mäori Appellate Court was reported in Mäori LR July 1997. The dispute was over land bordering the Hokianga Harbour. A Crown grant was issued in 1861 for land owned by John Martin. The land was subsequently subdivided, and the question was whether part of the land now claimed by the Hojsgaards was included in the grant. The third defendant, Mr Klaricich, applied to the Mäori Land Court to determine the ownership of the land. The Mäori Land Court ordered the District Land Registrar to refrain from issuing a certificate of title pending further order, and Mr Klaricich registered a caveat, claiming interest as a Mäori, contending that the land in question was Mäori customary land. The Appellate Court held that the land was Mäori customary land. In coming to this decision, reliance was placed upon original surveys declaring John Martin’s land to measure 10 acres 1 rood.

Held: the court had before it the same maps and materials considered by the land court and appellate court, and on examination of these, it was clear that the original survey information could not be relied upon. The original measurements of the block were inaccurate, as were the measurements at the time of subdivision. Contrary to the previous decisions, the evidence showed that the subject land was included in the Crown grant.

As to whether the decisions of lower courts can be quashed in a judicial review proceeding where a different view is reached by the reviewing court on the evidence, the court considered cases dealing with that issue (Edwards v Bairstow [1956] AC 14, 36) and concluded that, because in this case “the essential evidence is inconsistent with and contrary of the determinations made” this was a case where the true and only reasonable conclusion contradicted those earlier determinations and the lower courts had been influenced by irrelevant considerations. Consequently, the grounds for review had been made out. The customary land order and the Appellate Court decision were therefore quashed, the injunction discharged, and the caveat removed.

Mahuta & Waikato Tainui & Others v Waikato Regional Council and Waikato District Council and Anchor Products Ltd

A91/98 Environment Court Auckland 29 July 1998. Sheppard J, PA Catchpole, F Easdale

Anchor Products Ltd were undertaking a major upgrade of the processing capacity of their dairy factory at Te Rapa outside Hamilton, which included the construction of a gas fired power plant (45 megawatts). Both activities required water permits and discharge permits to take and use water from the Waikato River. Those permits had been issued by the district and regional councils. The appellants were the Waikato-Tainui people represented by the Tainui Mäori Trust Board, the acknowledged iwi authority for Treaty claim settlement purposes and by the chief negotiator Sir Robert Mahuta, acting on behalf of over 61 Tainui marae.

The appellants major concerns were the effect of the proposals on the special relationship of Waikato-Tainui with the Waikato River, adverse effects on the river of taking water and discharging contaminants, and the adequacy of consideration of alternative methods for disposing of the wastewater.

In terms of contribution to the well-being of the community, Anchor Products emphasised (among other matters) the major economic activity which the plant represented for the region, the fact that 20% of its workforce were Mäori, that 350 farms in Mäori ownership contributed to supplying the factory, an important riverside pa site would be preserved and enhanced, and native plants would be introduced which would be available for traditional medicine use and would increase biodiversity at the river edge.

Held: the court first disposed of several points concerning the adequacy of certain technical specifications provided with the applications for resource consents [not covered in this review].

Effects on the Environment

The court then considered potential effects on the environment which must be considered when issuing resource consents under s104 RMA 1991. There was unchallenged evidence of the special relationship of Waikato-Tainui with the Waikato River and its fundamental importance to their social and cultural well being. The central issue was the significance to be given to that relationship in this case. The relationship included metaphysical aspects such as the mauri (or “life-force”) and spiritual powers connected with the overall identity of the river, the role of Waikato-Tainui as “Kaitiaki” or guardians of the river, and as a people receiving an important aspect of their identity from the river. Harvesting of plants (including medicinal plants) as well as fish and eels was also emphasised, as well as the effects in recent decades of pollution on all of these activities.

The court found that the rate of abstraction had been kept to a minimum (in fact it would be below existing levels) and would not have any effect on the environment, nor would there by any effect on fish because few if any would be trapped by the abstraction process.

The waste discharge would consist of treated wastewater (containing some milk products) and waste steam. Anchor Products had consulted the environmental agents for the Tainui Mäori Trust Board to advise on disposal and they had recommended against direct discharge of treated wastewater, but had approved a design including a flow along a channel filled with rocks and weirs and final discharge into the river via a submerged rock filled structure. The environmental agents had advised that the rocks “would represent Papatuanuku” (the earth mother) and thereby meet the cultural concerns of the tangata whenua about direct discharges into the river.

Among other features addressing Waikato-Tanui concerns were:

•  An initial infiltration system for the wastewater and two systems of gullies to increase contact of the wastewater with the land before discharge;

•  Erosion protection for land associated with a riverside pa site;

•  Monitoring systems to ensure wastewater quality complied with the consents given.

The court then disposed of several concerns about the ability of the discharge structure to handle the flows of wastewater predicted, finding that the problems were minor enough that the final design would be able to deal with such issues.

The court also disposed of concerns about phosphorous in the wastewater encouraging the growth of algal blooms. While this was a potential adverse effect, it would be no more than minor, provided consent conditions were adhered to.

Turning to the particular effects of the proposed discharges on the Mäori relationship with the river, the term “environment” in s2(1) RMA 1991 includes cultural conditions which affect ecosystems and their constituent parts including people and communities and amenity values. Accordingly, the effects of the proposal on the cultural conditions which affect the Mäori community and the present and future relationship of Waikato-Tanui with the river had to be considered.

Several witnesses spoke about the spiritual power of the river, which remained strong despite the pollution of the past decades. They did not address the proposal specifically. However the adviser to the trust board argued that any effluent caused serious offence, and the proposal would further desecrate the river and damage the mana of Waikato-Tainui no matter how low the level of contaminants and even if it did not have discernible physical adverse effects. The court accepted that no matter what the design of the discharge structure, there would still be some cultural offence.

Alternative forms of discharge (s104(3) RMA 1991)

The court looked at an alternative discharge of the wastewater to land which Anchor Products had investigated and found that it would be a possible alternative, despite considerable practical difficulties. The court was satisfied with the investigation undertaken of this alternative, but noted that it would have required further consideration of this alternative if it had found either that the proposed discharge would have significant adverse effects on the water quality of the river or it would fail to recognise and provide for the relationship of Waikato-Tainui with the river. However, there was no need in this case because there would be no adverse effects on water quality (provided conditions were adhered to) and the proposal had been specifically designed and developed to provide for the relationship of Waikato-Tainui with the river.

Relevant plans (s104(1) RMA 1991)

The proposed district plan and regional policy statement included specific reference to Waikato-Tainui's special relationship with the river, including the concepts of kaitiakitanga and mauri and the need to preserve water quality. The court found that the proposal recognised all of these values  in that it was designed with the special relationship in mind and there would be no adverse effects on water quality.

Part II matters

With regard to matters under s6(e) (Mäori links with ancestral waters), 7(a) (kaitiakitanga) and s8 (Treaty of Waitangi), the court noted:

•  Anchor Products had consulted extensively with Waikato-Tainuiand the discharge was designed specifically to address cultural concerns (the specific design was not otherwise justified on environmental or engineering considerations);

•  The initial size of the power plant had been reduced to respond to the wish of Waikato-Tainui that Anchor take as little water as possible from the river;

•  Contaminants would be kept to a minimum to meet Waikato-Tainui concerns and the regional policy statement;

•  Anchor Products had undertaken to maintain a programme of continuous improvement of the effect of its activities on the river in recognition of Waikato-Tainui concerns, including taking part in a public education programme;

•  Riverbank protection works to save a local pa site were being undertaken, and access to the site improved.

With regard to matters of national importance, the revised proposal would not be an inappropriate use or development of the river or its margin. Nor would the habitats of indigenous fauna be adversely affected (s6(c) RMA 1991), particularly given the improved limits on phosphorous discharges. The proposal would be an efficient use and development of resources (s7(b)) and was not contrary to other matters under s7. Accordingly, the consents should be granted, with a revised condition limiting further the levels of phosphorous in any discharges.

The only matter which would not be fully provided for was the concern that the perception of contamination of the river would be offensive, no matter how minimal any measureable physical effect might be. This could only be avoided by discharging to land, which had its own difficulties. Looking to the overall purpose of sustainable management, the community value of the proposed expansion of the plant, and the fact that the cultural interests of Waikato-Tainui would be provided for in many ways which avoided tangible harm to the river, “the perceptions which are not represented by tangible effects” did not deserve such weight as to prevail and defeat the proposal.

[Ed: this decision can be compared to Te Runanga o Taumarere v Northland Regional Council [1996] NZRMA 77, also a decision of Judge Sheppard, where consent for discharge permits was delayed while the council undertook further investigation of land based disposal to satisfy Mäori cultural objections to a sewage disposal scheme. This decision will no doubt be relevant to the Watercare proposal to take water from the Waikato River to add to the Auckland city water supply, which is under appeal by Waikato-Tainui, and is due for hearing before the Environment Court in October 1998.]

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