October 1998 Contents

Māori Land Court & Appellate Court

Malborough Sounds foreshore and seabed – procedure for hearing

Contested transfer of incorporation shares

Confirmation of a lease, valuation of timber

Status of land - leave to appeal out of time refused - Ross - Rangatira E (1998) 1 Waiariki Appellate MB 111

Application to change status of land

Waitangi Tribunal

No items this month

Other Courts and Tribunals

High Court – legal aid for Privy Council appeal

High Court – warrants to seizure materials of Fisheries Commission

District Court –Taupo lakebed & Local Government Act 1974

Environment Court – standing under RMA 1991

Environment Court – proposed Taranaki gas well

Race Relations Conciliator – Wanganui Polytech decision

Parliament

Ngäi Tahu Claims Settlement Act 1998

Treaty of Waitangi Amendment Bill 1998

Treaty of Waitangi (Final Settlement of Claims) Bill 1998

 

Māori Land Court & Appellate Court

Crown Law Office & Others v Māori Land Court (Malborough Sounds)

1998/3-9. Te Waipounamu ACMB. 19 October 1998. Chief Judge Durie, Deputy CJ Smith, Carter J, Isaac J

This was an appeal from a preliminary decision of the Mäori Land Court (Mäori LR Dec 1997/Jan 1998) that, on the assumption that Māori had customary rights over the foreshore and seabed of the Malborough Sounds in 1840, then, as a matter of law:

•  rights to the foreshore were not extinguished when lands adjoining the foreshore were sold (contrary to the decision in Re Ninety Mile Beach (1963) NZLR) 461); and

•  despite s 7 of the Territorial Sea and Exclusive Economic Zone Act 1977 vesting title to the seabed in the Crown, only a “sovereignty title of similar import and characteristics to the radical title of the common law” had passed and it was possible that Māori customary rights could remain in the seabed.

The land court granted leave to appeal the preliminary decision to the Māori Appellate Court under s59(1) Te Ture Whenua Māori 1993.

Held: on a preliminary issue of whether Te Runanga o Muriwhenua should appear, since that group was associated with the Ninety Mile beach and was therefore specifically bound by that decision, it had an interest greater than the general public in the proceedings and in any ruling affecting the application of that decision – and ss58(2) and 59(2)/1993 (regarding appeals by persons “materially affected”) applied.

On the issue of whether the Māori Appellate Court should state a case to the High Court, while having sympathy with Crown submissions that all questions should be included in a case stated, all parties had nevertheless accepted that the Ninety Mile Beach decision had been hampered by problems with the adequacy of the evidence before that court and those problems should not be repeated in this case. The application of principles of law often depends upon facts and the parties might desire to use factual evidence to distinguish precedent decisions. Nor should the court prematurely state a case - Hauraki Mäori Trust Board v Treaty of Waitangi Fisheries Commission (1995) 1 NZLR 702. Although it was also said in that case that the merits of a public law issue can be exercised on the basis of assumptions, this case was as much one of “customary law” as public law and the land court and appellate court should provide some guidance.

The “factual matrix” to support a case stated would be best established by a land court inquiry. That evidence, without any findings being made on it, would then be referred to the appellate court for a decision whether a case stated should be referred to the High Court. Accordingly, the matter was referred back to the land court for a full hearing on which land, if any, is customary land within s129/1993, then to refer that evidence back to the appellate court.

On a procedural matter, the appellate court noted that the status of the various applicants in the land court required clarification. While s37(1)/1993 allows the land court to grant leave for a body to ask the land court to exercise its jurisdiction where any matter of general importance to Mäori is involved, and the body has standing to raise the issue, no groups had sought such leave. It was also noted that since Chief Judge Durie had been appointed to the High Court the Māori Appellate Court would be reconstituted for any subsequent proceedings in this case.

[Ed: the comments made about evidence in the Ninety Mile Beach case refer to the fact that the Court of Appeal proceeded on the assumption that all coastal blocks along the beach had been investigated by the Native Land Court, when most of them were sold prior to the advent of the land court (Prof Alan Ward, National Overview vol II Waitangi Tribunal Rangahaua Whanui Series 1997 p342). TheMuriwhenua Land Report 1997 highlighted the problems of these early purchases and the failure of understanding on both sides as to the bargain involved.]

Re Tawhai & Rakautatahi B2

12 Takitimu ACMB 112. 10 July 1998. Deputy CJ Smith, Carter J, Savage J

Ngahuia Tawhai, aged 39, married Lou Tawhai, aged 74. Lou Tawhai owned 8673.551 shares, valued at over $5 a share in a Mäori incorporation, Rakautatahi Inc. In 1989 he transferred these shares to his wife. No payment was given, and the consideration was said to be an interest free debt owed by Ngahuia to her husband. He died in 1992 and Ngahuia was subsequently found guilty of the manslaughter of her husband. She was the sole beneficiary of his will. In late 1992 the incorporation was wound up and the beneficiaries received back their shares in the Rakautatahi block.

The administrators of the estate of Lou Tawhai applied to the Mäori Land Court to set aside the share transfer and return the shares to his estate on the grounds that:

•  there was no consideration for the shares so that the contract was either repudiated or breached;

•  if the shares were a gift it was brought about through undue influence; and

•  a person should not be able to profit from culpable homicide.

The land court considered the case under s18(1) Te Ture Whenua Mäori Act 1993 and found that undue influence had been established. The husband was dependent on his wife, and without her influence would have been unlikely to transfer his shares in Mäori land out of the bloodline and to his disadvantage. The court vested the shares in the administrators of Lou Tawhai’s estate. Ngahuia appealed on the grounds that there was no jurisdiction for making the order, there was no evidence for finding undue influence or a presumption of undue influence, and the judge was wrong in taking judicial notice of certain Mäori beliefs in respect of Mäori land and applying them specifically to her husband.

Held: the appellate court examined the requirements for undue influence, as set out in Contractors Boundary v Snee [1972] 2 NZLR 157,  Simpson & ors v Simpson (1988), and ASB Bank Limited v Harlech [1996] 1 NZLR 655, and which require that the nature and effect of the transaction needs to be established before a claim based on undue influence can be considered. The lower court did not make a specific finding as to whether the share transaction had been a gift or a sale, and indeed it was not clear how the lower court assessed the transaction.

A re-examination of the evidence before the lower court showed that a presumption of undue evidence could not be made out. In particular, the appellate court was critical of the reliance placed on the custom of not transferring property out of the bloodline. “While the court may be entitled to take judicial notice of tikanga or custom that does no mean that it can assume that everyone adheres or ascribes to that custom. We accept that there may be a majority of elderly Mäori who hold to those beliefs but the court is bound to judge each case on the evidence before it.” There was no evidence that Lou Tawhai was committed to the retention of his incorporation shares for his family. He had earlier sold shares outside the family, and concerns about the financial performance of the incorporation probably played a part in the decision to sell.

The order made by the land court should be revoked (s56(1)(b)/1993) and the matter referred back to the land court for a rehearing (s56(1)(e)/1993). The land court should also consider several matters of jurisdiction:

•  Since the application concerned an undivided interest in Mäori land it fell within s18(1)(a)/1993 (a claim, whether at law or in equity, to the ownership or possession of Mäori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate or interest). However it is arguable whether ss 18(1)(d)/1993 (power to determine any proceeding founded on contract or on tort where the debt, demand, or damage relates to Mäori freehold land) and 18(1)(i)/1993 (power to determine for the purposes of any proceedings whether any specified land is held by any person in a fiduciary capacity) apply, since those provisions do not refer to undivided interests.

•  The appellate court also noted that it has previously held that under s18(1)(a)/1993 the land court has power follow up any decision as to entitlement with an order under the appropriate section of the 1993 Act to give effect to that decision.

•  When the shares were transferred to Ngahuia Tawhai in 1989 they were personal property (s38 Mäori Affairs Amendment Act 1967) and the land court had no jurisdiction over them. Only in 1992 when the incorporation was wound up and the shares became shares in Mäori freehold land did the court regain jurisdiction, and s30(1)(a) Mäori Affairs Act 1953 gave the court jurisdiction akin to that under s18(1)(a)/1993. This raised the issue whether the court can now inquire into a transaction which it previously had no jurisdiction over. The preliminary view is that, to properly consider under s30(1)(a)/1953 and now 18(1)(a)/1993 whether interests in land are held subject to trusts and other equities, in some cases the land court will have to examine prior transactions leading to the present title.

•  It is questionable whether the Mäori Land Court has jurisdiction to consider matters under the Contractural Remedies Act 1979. While other courts are mentioned under the definitions of “Court” in s2/1979, the land court is not. However, in giving the land court the jurisdiction to consider matters of contract, Parliament has arguably extended the powers of the land court to consider the full extent of contract law, including the 1979 Act. Alternatively, under s18(2)/1993, there is an option to remove proceedings to another court of competent jurisdiction if required.

Re Wilson & Brown & Arapaoanui 3C

12 Takitimu ACMB 127. 24 July 1998. Deputy CJ Smith, Carter J, Savage J

The Arapaoanui 3C block was Mäori freehold land comprising 74 hectares, of which 22 hectares were planted in 15 year old pine trees. The block had 31 owners. The son of the major shareholder (not himself a shareholder at that stage), who had planted the pine trees and occupied the land for some years, applied for a lease of the land, and a meeting of assembled owners was called. The meeting considered a resolution for a 15 year lease, renewable for 15 years, and including a “lump sum” payment of $21,252 for the 22 hectares in pine trees, provided that the owners relinquished their rights to the trees. A special valuation was available, but did not appear to include the trees. At the meeting the ownership of the trees and the uncertain nature of the valuation were discussed. A motion that a further valuation should be prepared was lost, 6853.318 shares to 17785.369, and a resolution to lease the land was passed by the same margin.

The land court confirmed the resolution, but minuted that the $21,252 lump sum was a payment of back rent for occupation of the land by the applicant since 1982. One of the owners appealed on the grounds that the court had failed to give proper weight to the need for a special valuation (s158/1993 and rule 116(3) Mäori Land Court Rules), and had failed to properly consider the majority shareholder dominance over the minority (ss17 & 20/1993).

Held: it was not clear whether the special valuation which had been obtained included the value of the trees. It appeared to exclude them, but the court should not rely on such presumptions. However, since the land court order referred to the $21,252 as back rent, and both the common law and s2 Land Transfer Act 1952 confirm that trees are part of the land, they would remain the property of the owners. Consequently, the valuation was adequate and that aspect of the appeal must fail.

However, if the appeal were dismissed there would be a breach of natural justice, since the expectation of the applicant had been that he would have a right to the trees, but the court amendment to the resolution would prevent that. Consequently, the appeal should be allowed and the matter referred back to the lower court for a rehearing. At the rehearing, the lower court should take particular note of the following matters:

•  Prima facie all the shareholders/owners owned the trees and no one owner has any right to mill them (s346/1993), and it may be legally irrelevant that the applicant planted them. This issue needed to be clarified so that suitable instructions could be given to the Mäori Trustee to draw up the lease and allow for the alienation of the trees and any replanting requirements.

•  The valuations provided to date were ambiguous and it could not be determined from them what would be a fair market rental for a lease of the land for forestry purposes.

•  The land court needed to specifically consider under s154(b)(iii)/1993 the interests of the owners supporting the lease (8 and 17785.369 shares) compared to those opposing (11 and 6853.318 shares). Six of the 8 supporters were all related directly to the applicant, one being his father, who held the overwhelming majority of shares in support (12,964.174), with only one share each being held by the 5 other relatives in support, and those 5 received their shares from the applicant’s father.

•  A hearing de novo would probably not settle the outstanding concerns, and the lower court could consider a judicial conference (s67/1993) or direct a fresh meeting of owners (s178(2)/1993). If there was another meeting of owners, the resolutions might include options under Part XII (creation of a trust) or Part XIV (title improvement) which would produce a solution to satisfy both sets of owners – as envisaged by s17(2)/1993.

Leenstras & Panui & Lot 512A1 Parish of Whangamarino 512A1 Block

85 Waikato MB 222. 27 August 1998. Carter J

This was an application under s135 Te Ture Whenua Mäori Act 1993 to change the status of Mäori freehold land to General land. The owners had purchased the land in the belief that it was General Land, despite the fact that the title had notations on it referring to the Mäori Affairs Act 1953, and the title was created by partition order. The sellers also believed that the land was General land, since they understood it had been been “cut out” from the adjoining block to allow them to build a house. The transfer had been registered by the District Land registrar without confirmation taking place. The whänau of the sellers had not been offered a first right of refusal under the 1993 Act. The trustee of a neighbouring block of Mäori freehold land had expressed an interest in purchasing the block for the trust. There was also evidence that, while the sellers had been gifted shares so that they could establish their house, the intention was that the land should remain in the family.

Held: the application should be rejected. While the purchasers were in their current predicament through no fault of their own, the application was brought now to enable another sale of the land, which would not promote the more effective management and utilisation envisaged by s136(d)/1993 and the intent of the 1993 Act. Taking into account the Preamble and s2/1993 and the emphasis on promoting the retention, use and development of Mäori land for Mäori, and the discretionary nature of the power under s136, it would be wrong to grant the application in view of the fact that the land was acquired without regard to the provisions of the 1993 Act and that a change in status would further deny the right of first refusal of the preferred classes of alienee in any future alienation of the land.

Waitangi Tribunal

No items this month.

Other courts & tribunals

Tangiora v Legal Aid Review Authority

AP 220/98 Wellington High Court 28 May 1998 Neazor J and Goddard J

Pauline Tangiora along with 18 other iwi representatives made a communication to the Human Rights Committee, alleging that her rights under the International Covenant on Civil and Political Rights were violated by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The Committee found the communication to be admissible in October 1995. The New Zealand Government was asked to make submissions, and Ms Tangiora was invited to respond to those submissions. Her request for legal aid was refused by the Wellington District Law Society (WDLS) subcommittee, however, on the grounds that aid could not be granted in relation to proceedings in courts outside New Zealand. The subcommittee’s decision was reviewed in the High Court where Gallen J held that the Human Rights Committee was a ‘judicial authority” under s19 Legal Services Act 1991, and that Ms Tangiora’s request for legal aid should be reconsidered. The subcommittee appealed Gallen J’s decision and granted Ms Tangiora aid for the purposes of the appeal. The Court of Appeal reversed the decision of the High Court, holding that the term “judicial authority” applied only to courts established under New Zealand laws or listed in s19/1991.  In November 1997, Ms Tangiora was granted leave to appeal to the Privy Council as the appeal was a matter of general or public importance”. The Attorney-General issued a statement that a grant of legal aid for the Privy Council appeal would be “desirable in the public interest.”  However, the WDLS subcommittee refused the application, on the grounds that the appeal had no reasonable chance of success. This decision was upheld by the Legal Aid Review Authority. That decision was under appeal in these proceedings. The appellant claimed, among other matters, that the review authority had erred in not giving more weight to the Court of Appeal grant of leave and the Attorney-General’s statement.

Held: the appeal should be allowed. Under the relevant provisions of the Legal Services Act 1991 the subcommittee had no power to refuse legal aid in respect of an appeal to the Privy Council by reference to the merits of the case, chances of success etc, when the applicant has the approval of the Minister or the Attorney-General. The application would therefore be referred back to the WDLS subcommittee to determine the amount to be granted and to what extent the Ms Tangiora should contribute.

Hall & Latimer v District Court at Wellington & Attorney-General

CP256/98 & CP 313/98. High Court Wellington. 25 September 1998. Gallen J

Donna Hall was a lawyer involved in proceedings against the Treaty of Waitangi Fisheries Commission concerning its proposals for the distribution of fisheries settlement assets to Mäori. During the proceedings, the commission discovered that Ms Hall had access to documents which the commission considered confidential. It hired private investigators to discover the source of the suspected leak. It was thought that evidence about where the documents came from might be discovered at Ms Hall’s office, or at the home of Sir Graham Latimer – one of the commissioners. A complaint was laid with the police that an offence under section 105A of the Crimes Act 1961 had been committed. The police obtained a warrant from the District Court on the basis that information had been used by an official corruptly, and that there had been an unauthorised breach of trust. The warrant authorised the search of Ms Hall’s offices for documents relating to the Treaty of Waitangi Fisheries Commission and correspondence indicating the movement and distribution of those documents. The police seized a large quantity of material from the premises of Ms Hall (while she was actually appearing in court on other matters to do with the fisheries proceedings) and from Sir Graham Latimer. The plaintiffs disputed the validity of the warrants, and claimed personal legal privilege on some of the documents.

Held: a search warrant can only be issued if there are  reasonable grounds for the belief that:

•  there has been the commission of an offence punishable by imprisonment;

•  there are items subject to the warrant present at or in a stated location;

•  the items to which reference has been made will provide evidence as to the commission of the offence.

An offence under s105A/1961 requires that the person charged be an official, ie a member or employee of a public body. The fisheries commission is a public body despite the fact that it only represents Mäori interests rather than those of the entire public. The commission represents a community and could not be considered as private.

As to whether there had been any corrupt action under s105A/1961, a corrupt intent is one which so colours an official action that it may be said to be done for an improper motivation. A motivation will be improper if it is one which has an element of purpose outside that which is contemplated by the conferment of the power concerned and moreover is one which could properly be described as morally unacceptable. On this definition, there was no corruption in this case, though there may have been a breach of trust. Therefore, there were insufficient grounds for the belief that an offence punishable by imprisonment had been committed.

The plaintiffs also claimed their documents were protected by legal personal privilege.  There is legal personal privilege when communications are made to obtain legal advice and when communications are made with third parties in furtherance of litigation. Both the warrant and the privilege must relate to individual documents and individual relations and situations. A category by category or document by document approach would be required to ascertain whether a valid warrant applied to particular documents and whether any privilege applied to those documents. A declaration would issue that, on the basis of the information relied on, the warrant should not have issued, with leave given to any party to seek further orders in light of the declaration.

Tuwharetoa Mäori Trust Board v Taupo District Council

 NP 372/97. Taupo District Court. 11 September 1998. Bate J

The Taupo District Council wanted to carry out works on the beds of Lake Taupo and the Waikato River at the outlet to the lake, with the aim of improving the local water supply and stormwater flow. The works involved modification of an existing stormwater outfall, 50 metre extension of an existing water intake pipeline, and the insertion of a new pipeline 3-6 metres below the river bed.

The Tuwharetoa Mäori Trust Board was the owner of the lake bed and the affected part of the river bed. These areas were managed by the Taupo-nui-a-tia Management Board, including four representatives from the trust board.

The district council applied to the Waikato Regional Council for resource consents under the Resource Management Act 1991. The regional council assessed the effects of the works as minor and proceeded by way of non-notified consent – sending a copy of the applications to the trust board.

The district council separately under s708 Local Government Act 1974 sought consent from the trust board to the works as an affected landowner. After some months of delay, the management board advised that it would be recommending that the trust board gave its consent. The board finally gave consent, but sought a $10,000 annual licence fee for the pipeline under the river bed. When negotiations stalled, the trust board withdrew its consent to all 3 works. The district council then served notice that it would use the procedure under the 16th Schedule LGA 1974 to hear objections and determine whether to proceed. After a hearing, the council determined to proceed. In these proceedings the trust board sought a rehearing (but not a de novo hearing) of the issue.

Held: all eleven grounds of the appeal should be dismissed.

Allegations of bias/insufficient information

•  The district council did not have the ability under the LGA 1974 to appoint an independent commissioner to hear the objections of the trust board. Given that situation, the test for bias must be actual pre-determination or bias and not the appearance of bias. There was no evidence of actual bias.

•  In hearing the objections, the district council had not erred in introducing and relying on affidavits regarding consultation with Tuwharetoa which had been filed in High Court proceedings in relation to another matter (the Taupo Landcorp lands, see Mäori LR May 1998).

•  The district council did not have a direct interest in disallowing the objections. In situations where local authorities must determine matters in which they have previously been involved in terms of making policy, by way of considering reports etc, the mere fact of prior consideration of the issues is not evidence of bias, and the test is whether the “intelligent bystander” would say that the deciders acted so unfairly as to close their minds to the objector’s case - Whitford Residence and Ratepayers Assoc Inc v Manukau City Corporation. Indeed, the mere fact that a local authority reaches a decision adverse to an objector, but favourable to some project in which the local authority has a proprietary right is not evidence of bias. There would be bias where a councillor had a direct pecuniary interest in a matter however -Meadowvale Stud Farm Ltd v Stratford County Council (1979) NZLR 442. Applying these tests to the facts in this case, there was no direct interest of the council in disallowing the objections of the trust board or any interest of individual councillors which disqualified them from hearing the objections.

•  The district council had not made a resolution prior to the hearing of objections that all information about the proposals had been supplied and therefore no further information was needed or relevant.

•  The district council had not formed a view, prior to the hearing of the objections, that the effects of its proposals on the lands owned by the trust board were not relevant. It had merely formed a view that they were likely to be minimal, but was open to further persuasion.

•  There was no evidence that the district council provided insufficient information to the trust board about the proposals. Indeed, after a long period when the trust board simply did not respond to the district council requests for comment on its proposals, the board approved all 3 consents, but sought a $10,000 fee for the pipeline consent, but did not ask for further information. In addition, the notice of intention to hear objections under the 16th Schedule LGA 1974 contained detailed information about the works. While that notice and accompanying papers did not show the proposals in full detail, a receptive lay person would have understood what was entailed, and there was always the option to call the council for further information.

Whether the Local Government Act requires consideration of environmental issues

The trust board argued that the district council had erred in law in determining that it had no jurisdiction under s708 LGA 1974 to examine environmental effects of the proposed works on the land or cultural values of the trust board as owner and representative of tangata whenua. The district council had determined that it could not reopen issues already considered when the resource consents were issued by the regional council under the Resource Management Act 1991. The court rejected this ground of appeal:

•  The respective long titles of the LGA 1974 and RMA 1991 show that they deal with quite different matters, the one with local government administration, the other with environmental matters.

•  The regional council did not notify the resource consents because it was satisfied that any adverse effects would be minor, and the procedure of obtaining written consent from persons who might be adversely affected would be sufficient. The trust board had made no comment or objection to that procedure, even though it had been sent a copy of the resource consent applications. The trust board could have persuaded the council to notify the applications and made submissions, but it had not.

•  The LGA 1974 is silent as to environmental matters, s708 merely referring to the need to seek consent from owners for storm water and water supply works on private land. It was passed some twenty years earlier than the RMA 1991 – which has quite a different focus.

•  The failure of the trust board to ensure it was heard in one forum was not a matter for which the district council could be criticised.

•  Where two statutes deal with the same subject matter, they should be interpreted so as to avoid conflict, otherwise the special statute – in this case the RMA 1991 – will usually prevail  over the general statute - Director of Civil Aviation v Planning Board NZLR [1997] 513.

Other matters

The court also found that, contrary to trust board allegations, the district council had sufficient information to make its decision, had examined alternative sites, that a cost benefit analysis was not necessary to assess the effects on the land, and that there had been adequate consultation. On this last matter the court commented that the council had gone beyond its statutory duty and called special meetings with tangata whenua when opposition to the works became apparent, the trust board had never made it clear exactly what the $10,000 licence fee was based on, and, while concerns about waahi tapu had been raised, no information had been provided to the district council on the issue, and it had resolved to proceed while adopting appropriate cultural procedures should any waahi tapu be found.

[Ed: the reported decision does not make it clear whether or why the trust board did not simply refuse to provide written consent to the resource consent applications filed with the regional council under the RMA 1991, or why it did not appeal the decision of the regional council to issue the consents.]

Winter & Others v Taranaki Regional Council & Others

A106/98. Environment Court. 17 August 1998. Sheppard J, PA Catchpole, F Easdale

Fletcher Challenge Energy applied for and were issued various resource consents to drill an exploratory well for gas in northern Taranaki. The proposal was opposed by Ngäti Rahiri Hapü Trustees, representing a local hapü claiming mana whenua and kaitiakitanga over the site. Shortly before the appeal hearing, 6 persons descending from two other local hapü, which also claimed an ancestral link with the affected land, and calling themselves Te Ohu Motunui, held a “hui” (two being present by telephone), and gave notice under s274 RMA 1991 that they wished to be heard in the proceedings. This was challenged by other parties, including the Ngäti Rahiri Hapü Trustees.

Held: since there is a procedure under Te Ture Whenua Mäori Act 1993 (s30) for determining contested claims between hapü, the Environment Court usually declines to decide such contests, unless it is necessary to dispose of proceedings before it. No party submitted that the court should make any binding ruling on representation, so it would be provisionally accepted that all hapü had ancestral links with the land for the purpose of deciding the appeal – following Te Atiawa Tribal Council v Taranaki Regional Council (A15/98, see Mäori LR March 1998.)

As for the particular challenges to the s274/1991 application from Te Ohu Motunui,

•  Although the application was late in the proceedings and caused some inconvenience, it was within the 10 working days required by s274/1991;

•  No determination under Te Ture Whenua Mäori Act 1993 had been made, so the interests of Ngäti Rahiri did not exclude those of Te Ohu Motunui;

•  Evidence of an interest particular to the tangata whenua of an area and their associations with a place gives a group an interest greater than the general public – as s274/1991 requires and as was found inPurification Technologies v Taupo DC [1995] NZRMA 205. While in Paihia District Citizens Assoc v Northland RC it was found that residence in a place for generations did not by itself give an interest in proceedings greater than the public, that conclusion was specific to the evidence in that case.

•  There is nothing in the RMA 1991 directing that a hapü should accept that its interests are adequately covered by others.

•  While sections 6(e)/1991 (relationship of Mäori to ancestral lands) and 7(a)/1991 (kaitiakitanga) do in one sense mandate a general public interest in those matters, the interests of Te Ohu Motunui were not of that general nature, but derived from a specific relationship of 2 hapü with the site as ancestral land, and the public did not share that interest.

The court noted however, that their late entry to the proceedings might not give Te Ohu Motunui time to produce evidence – although it would be entitled to make submissions and cross examine witnesses.

Otaraua Hapü v Taranaki Regional Council & New Plymouth District Council & Fletcher Challenge Energy Taranaki Ltd

A124/98. Environment Court. 30 September 1998. Sheppard J, PA Catchpole, F Easdale

This was an appeal against the district council granting  land use consent and the regional council granting discharge permits for contaminants to air and water in relation to an exploratory gas well. Several groups representing local Mäori challenged the consents. They were joined at a late stage (under s274 RMA 1991) by a group known as Te Ohu Motunui (see case above). Three days into the hearing, all parties except Te Ohu Motunui were prepared for the project to go ahead subject to certain agreed conditions. Te Ohu Motunui opposed the grant of resource consents on any terms.

Held: it would not be appropriate to dismiss Te Ohu Motunui’s case simply because of the agreement among the other groups, because it might be that on some occasions “minority parties are able to discern and bring to the court’s attention new respects in which a proposal might or might not promote sustainable management of natural and physical resources. A majority may not necessarily possess all knowledge or wisdom.” And under the RMA 1991 any person with interests greater than public generally or representing the public interest is given a right to raise matters which should be taken into account.

Te Ohu Motunui made various submissions but did not present evidence. The court first rejected as without foundation several allegations about deficiencies in the consent process followed by the district council. The court also rejected concerns that the proposal failed to provide for the social and economic well being and health and safety of the community (s5(2)/1991), including a claim that the proposed drilling site was on a former marae. While it was conceivable that the land had been used as a marae in the distant past, no evidence had been produced and the land had not been used for that purpose in the last 15 years at least.

With regard to a claim that there had been a failure of the duty to recognise and provide for the relationship of Mäori, their culture and their traditions with their ancestral lands (s6(e)/1991), the court found that the Fletcher Challenge proposal did comply with that provision, since the site had been selected to avoid areas of particular value to Mäori, Mäori protocols about blessing the site were accepted, there was an agreement relating to the discovery of any koiwi or taonga, and an agreement that stormwater would be removed from the site. A claim that the proposal would fail to have regard to kaitiakitanga (s7(a)/1991) was also not made out. With regard to consultation issues (s8/1991), and an allegation that the council appointed committee which had issued the consents was inappropriate because Mäori had not determined that issue on their own marae and in accordance with their laws and values, the court found that s8/1991 does not provide that Mäori should decide who is to be on such a committee, nor does it mean that decisions to issue consents be made on the marae and in accordance with Mäori laws and values.

After rejecting various other submissions, the court found that Te Ohu Motunui had not established any reason why orders should not be made as the parties had agreed. The proposed orders reflected a fair and reasonable balance of the differing interests of the community as a whole, and of the parties.

B Osborne & H Jakobsen & Wanganui Polytechnic. Decision on complaint investigated by the Office of the Race Relations Conciliator

Complaint No A3. 2 September 1998

Two students at Wanganui Polytechnic complained to the Race Relations Office that they were subject to discrimination and racial harassment to such an extent that they received less favourable treatment because of their race. The Complaints Division considered whether there was a breach of ss 38, 57 and 63 of the Human Rights Act 1993.

The decision makes it clear that there is a partnership between the polytechnic and Te Aatihaunui-a-Paparangi and Whanganuitanga. Te Aatihauni-a-Paparangi has ongoing tino rangatiratanga. However the complaint related to the rights belonging to all New Zealanders under the Human Rights Act. The respondent was the polytechnic, and not the tangata whenua of Wanganui.

The Human Rights Act makes it unlawful to discriminate on the grounds listed in s21(1)/1993. The grounds include race, colour, ethnic or national origin. Under s38 of the Act, a body conferring a qualification may not confer it “on less favourable terms and conditions than would otherwise be made available […] by reason of any of the prohibited grounds of discrimination.”

Under s57/1993, it is unlawful for an educational establishment to restrict access to benefits or services, or to exclude or subject a student to any other detriment, by reason of the prohibited grounds of discrimination. Complaints upheld under this head were that less favourable terms were provided for non-Mäori students in assessments in a Treaty workshop and field placement, and that academic performance was not assessed with an even hand, principally because of race. In addition, the complainants were not afforded the same measure of care as Mäori students, when the Polytechnic Charter referred to respect for the dignity and cultural background of all students.

Section 63/1993 prohibits racial harassment in the form of language, visual material or physical behaviour in certain situations including vocational training. The Complaints Division considered that these provisions had been breached, subjecting the students to racial discrimination and harassment. While a number of individual incidents in themselves did not amount to racial harassment, general comments and behaviour together with favouritism towards Mäori students, created a hostile environment amounting to harassment.

The polytechnic was also liable under s68/1993 as an employer of the course tutors, because it failed to establish that it took all reasonable steps to prevent the discrimination.

Section 73/1993 allows for positive discrimination in order to help people achieve equality with other members of the community. The polytechnic did not invoke this section, and in any case, s73/1993 cannot be used to justify preferential treatment to some members in a group simply because they belong to that group, if the programme is offered to others not in the target disadvantaged group, but who need the same levels of assistance.

Parliament

Ngäi Tahu Claims Settlement Act 1998

No 97. 1 October 1998

The key provisions of the Settlement Bill and the Deed of Settlement which it puts into effect have been summarised elsewhere (see Mäori LR Oct 1997Nov 1997Dec 1997/Jan 1998April 1998). Limited changes were made to the Settlement Bill because the Mäori Affairs Select Committee accepted that Parliament’s task was simply to determine whether to give effect by legislation to a conditional contract already agreed between Ngäi Tahu and the Crown (the Deed of Settlement), and not to substitute a different settlement. The committee therefore restricted itself to a recommendation as to whether the bill should be passed and to minor amendments to correct errors of fact and law and improve technical aspects of the legislation. The main issues and amendments were:

Claim definition issues and Waitaha

Waitaha and Ngäti Mamoe submitters strongly objected to many elements of the bill, in particular the alleged effect on their status. However, the select committee found that their status was already determined by Te Runanga O Ngäi Tahu Act 1996 s7 which determines the membership of Ngäi Tahu Whänui. Waitaha submissions concerned their alleged separate status as an iwi, and the process leading to the establishment of Te Runanga O Ngäi Tahu, but the majority of the select committee accepted that Ngäi Tahu Whänui properly incorporates Waitaha. Its only significant recommendation was that the names of tribal groupings be altered to put Waitaha and Ngäti Mamoe before Ngäi Tahu both in this Settlement Act and in the TRONT Act 1996 (s9/1998). While this has no legal effect it “properly represents the historical evolution of the tribe.” No changes were made to provisions preventing Waitaha and Ngäti Mamoe claims from being heard by the Waitangi Tribunal (s10(d) and s461).

Customary rights

The select committee noted that the Settlement Act does not extinguish customary rights, but precludes the bringing of customary rights claims for loss against the Crown for claims based on pre-September 1992 breaches of those rights. In addition, it does affect customary rights in relation to freshwater fishing in South Island. Otherwise, the Act is neutral as to its effect on the existence of aboriginal title or customary rights. Nothing in the Act is intended to affect individual whakapapa-based rights of access to customary fisheries and these will continue to be managed for and by local communities, ie hapü.

Mandate

In response to submissions concerned about the mandate and accountability of TRONT, the select committee noted that the provisions of the charter of TRONT may be enforced against that body directly, decisions of the runanga are subject to judicial review in the general courts. The Ngäi Tahu Charitable Trust can be scrutinised by the Attorney-General under the Charitable Trusts Act 1957.

There was however a minor change to provisions purporting to directly amend the TRONT Act 1996 with regard to the cessation of the annuity to the old trust board and the inclusion of Waitaha, since there is a procedural requirement that promoters of an amendment to a private act must give notice of the proposed amendment (ss9 and 465). The Settlement Act now indirectly amends the TRONT Act 1996.

Claim boundaries

There were complaints that the legislation should not set in concrete the 1990 decision of the Mäori Appellate Court as to Ngäi Tahu’s northern boundary, since that was still disputed by some groups. Ngäti Rarua and Ngäti Apa asked that the relevant provisions of the bill be removed or a saving provision added allowing the issue to be reopened, because claims they had before the Waitangi Tribunal would be directly compromised by the legislation. The select committee noted that the TRONT Act 1996 already enshrines the 1990 decision in legislation because it defines the Ngäi Tahu tribal region or takiwa. The effect of the 1990 decision and this settlement legislation is that the Waitangi Tribunal is prevented from finding that any iwi other than Ngäi Tahu have valid claims to mana whenua within the Ngäi Tahu takiwa, although there is a theoretical possibility that the tribunal could find that another iwi have non-mana whenua based claims to the area. The Crown could provide redress in such an event, but the committee was informed that this would be very unlikely to include any land or resources within the Ngäi Tahu takiwa.

Finality

The NZ Law Society recommended that the settlement not be noted as “final” (s447), since the legislation could be amended by a majority in Parliament, and Ngäi Tahu and the Crown could vary the deed. The committee noted that this was technically correct but accepted advice that the settlement was as final as possible without entrenching legislation.

Selection of properties by Ngäi Tahu

Several groups were concerned about particular properties subject to the deferred selection and first right of refusal processes. There was some objection that the Hagley Nurses Home in Christchurch, intended by legislation to become part of Hagley Park should it no longer be used as a nurses home (Christchurch Hospital Amendment Act 1928), would now to be offered to Ngäi Tahu. The committee noted however, that the city council had been aware that this property was included in the settlement for some time and had not raised any concerns, and there was a proposal for Ngäi Tahu to purchase the property and lease it back for continued use as a nurses home. The home was likely to continue to be used as a hospital facility for some time to come in any event.

The select committee noted concerns that, in the operation of the Ngäi Tahu land bank and first right of refusal options to date, there had been the possibility for manipulation of the market price by Ngäi Tahu. The select committee considered however that the tight statutory procedure in the Settlement Act (Part IX) should deal to those concerns. One amendment was made to prevent a problem arising where a person took an assignment of a Crown lease with a right to purchase or renew after the Act came into effect, and the Crown might be required to offer the right of purchase or renewal to Ngäi Tahu (s50).

The select committee noted that, should properties affected by Part IX be transferred by the Crown without an offer of first refusal to Ngäi Tahu, the registered transfer and indefeasible title of the new owners would not be affected, but Ngäi Tahu would be able to claim compensation from the Crown.

Section 48 was amended to extend the definition of land covered by the first right of refusal to include land vested in persons other than the Crown to manage as a reserve under the Reserves Act 1977, where the land would revert to the Crown if the reserve status were revoked. If the current owners wish to revoke the reserve status and acquire the freehold from the Crown, then a right of first refusal will be offered to Ngäi Tahu. The committee recommended that authorities affected by this amendment should receive some public notice of this change.

The committee noted the submission of a private company that the deed of settlement would place it in an unequal position for its proposal to construct a monorail through the Greenstone Valley area to connect Wakatipu and Milford. However, the runanga argued that they were simply in an equal position, and any such proposal from any group would require resource consents and Conservation Department approval in the normal manner.

The select committee noted the provision made in the settlement and legislation for covenants under the Reserves Act 1997 which will be placed over some of the high country land returned to Ngäi Tahu, allowing free public access for hunting, tramping, and fishing. Some of the committee expressed “grave concerns” about the implications for future Treaty settlements of such “wander at will” covenants.

Federated Mountain Clubs opposed the inclusion in the settlement of the Greenstone, Elfin Bay and Routeburn high country stations, as well as the proposed vesting in the runanga of Mount Cook, subject to gifting back to the Crown. The select committee dismissed those concerns.

Mahinga Kai – customary food gathering places

There were concerns about the various provisions requiring decision makers to “have particular regard to” Ngäi Tahu interests in relation to the management of areas and sites special to them and subject to statutory acknowledgements and/or deeds of recognition and töpuni. The select committee noted that while that phrase gave particular recognition and status to the advice and interests of Ngäi Tahu in those areas, it did not give Ngäi Tahu a power of veto, or enable the runanga to insist on payments for access to these areas or unilaterally restrict public access.

The Settlement Act (ss223-226) contains amendments to the RMA 1991 recommended by the select committee which provide that, when determining who to notify a resource consent to, who to seek written approval from for a non-notified consent, and whether a group has standing on an environmental issue, the Environment Court must have regard to the statutory acknowledgments under the Settlement Act. Amendments were also made to the Historic Places Act 1993 to similarly alert the reader to the effect of the Settlement Act.

There was concern that the töpuni provisions might allow for restrictions on access to be imposed on the mountain peaks and other places in national parks subject to those instruments. The Regulations Review Committee also suggested that the extent and limits of the regulation making and by-law making powers under the töpuni provisions should be more clearly spelled out. The select committee rejected those concerns however, noting that there would be a public process before any regulations or by-laws were imposed.

Customary fisheries

The select committee was concerned about the effect of the settlement on freshwater customary fishing rights, with the proposal to make regulations for freshwater fisheries similar to those for customary rights in saltwater fisheries (s305), but was reassured that the legislation was not inconsistent with customary rights in a modern context. Some minor amendments were recommended and included in the Act. The select committee noted a proposal that was under consideration to create reserves for freshwater fisheries similar to saltwater mätatitai reserves, where tangata whenua are guardians with the power to exclude others for fisheries management purposes.

The select committee recommended, after considering submissions of the NZ Law Society, that any provisions of the Settlement Act which would allow the effect of the Settlement Act to be altered by changes being made to the Deed of Settlement alone, should be amended to prevent that occurring.

Treaty of Waitangi Amendment Bill 1998

No 175-1. Hon Tau Henare

Provides that a judge or retired judge of the High Court may serve as chairperson of the Waitangi Tribunal (previously only the Chief Judge of the Mäori Land Court could be chairperson). It also provides that Chief Judge Durie, who currently holds the office of chairperson, shall continue to hold that position until he vacates his office as Chief Judge, but may then be reappointed chairperson in terms of this amendment allowing a High Court judge to be appointed chairperson.

[Ed: this bill would allow Chief Judge Durie, recently appointed to the High Court, to continue as chairperson of the Waitangi Tribunal. A minority of the Government Administration Select Committee opposed the bill on the basis that the decisions of the Waitangi Tribunal are often “political”, and that the constitutional principle that the judiciary and Parliament and the Government be kept separate would be breached if the High Court was ever asked to review a decision of the Waitangi Tribunal. The majority of the committee supported the view that the calibre of Judge Durie was such that any constitutional concerns were outweighed.

Judge Durie was took his oath of office on 23 Oct 1998. This amending legislation will presumably be passed in the Parliamentary session commencing 3 Nov 1998.]

Treaty of Waitangi (Final Settlement of Claims) Bill 1998

No 232-1. Hon Derek Quigley

In the explanatory note to this private member’s bill it is stated that the purpose is to allow New Zealanders to move on to a higher level of conciliation between the races. The final settlement of claims is seen as a necessary step for this to happen.

The bill proposes to amend s6 Treaty of Waitangi Act 1975 to provide that all claims under that Act are to be received by 31 December 1999. All findings and recommendations are to be made by the tribunal by 1 January 2005, and the Crown must complete any action on a tribunal report within 5 years of the tribunal making its findings and recommendations. In addition, the Mäori Land Court and Mäori Appellate Court are to give priority to appeals under s6A/1975 (concerning decisions as to inter tribal boundaries), so as to help speed up the tribunal’s process. Settlements of claims are to remain final, and past actions with regard to claims are not affected.

The Bill also aims to deal with the wider context of race relations. For this purpose a Council of Race Relations would be established, composed of a chairman and 6 others appointed by the Prime Minister (in consultation with the Minister of Justice and the Minister of Mäori Affairs), and would include the Human Rights Commissioner.

The council would examine, and make recommendations to the Prime Minister on, desirable changes to attitudes and the law in the interests of “equality between all races in New Zealand”. That phrase is defined as “a situation in which New Zealand is one country with many people united in a single legal system that recognises differences between the races where such differences –

•  Are essential to secure the adequate development and protection of particular groups and individuals; or

•  Provide for members of a minority to be free, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, and to use the language of that minority.”

The Council would examine in particular:

•  the “multiracial and multiethnic” nature of society and what it means to be a New Zealander in such a changing society;

•  a race relations strategy for the current changing situation;

•  the relevance of international developments including international human rights;

•  the status to be accorded of the Treaty of Waitangi both in contemporary society and in the law;

•  measures to “enhance” the settlement of claims including examining the impact of settlements on relations between the races, whether claims should be made “more contestable”, whether the Waitangi Tribunal should have a role after 2000;

•  the current system of electoral representation for Mäori;

•  whether separate legislation should be made for ethnic minorities.

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