November 1998 Contents

Mäori Land Court & Appellate Court

Liability for costs of partition

Liability for costs for inquiries under Mäori Trust Boards Act 1955

Waitangi Tribunal

No items this month

Other Courts and Tribunals

Court of Appeal—trout fishing case

Other

Treaty of Waitangi Fisheries Commission—report on quota allocation

Book of essays on the settlements process

Mäori Land Court & Appellate Court

Re Papamoa 4A Block

61 Tauranga MB 76. 5 October 1998. Carter J

This case concerned the payment of costs for partition. A trust was established for the sale of the Papamoa A block. The trustees then applied for confirmation of an agreement to sell for $3.7m. It was found that they had failed to pass a resolution of assembled owners. It was also found that the agreed price was low because a 3 year lease on the land at a peppercorn rental with a 3 year right of renewal prevented sale on the open market and in effect committed the trust to the existing agreement to sell. The dissenting owners sought partition, which was granted.

Held: counsel for the trust submitted that costs generally follow the event unless it would be fairer to make an exception: In re Peneriki deceased 1961 Hauraki Minute Book 77/77. The court accepted that it is the general practice of the court for owners seeking partition to meet the costs. The court also accepted that, while in Karu O Te Whenua B2B5B1 Block 19 Waikato ACMB 40, 51 it was said that non-sellers who wish to retain the status quo should not have to bear the costs of partition, that case turned on particular facts, and the Mäori Appellate Court had probably acted in excess of jurisdiction in directing funds from a sale to be applied to the costs of partition when only the partition had been appealed, and not the sale itself.

In this case, while the trust had been established with the purpose of selling the land, because of the actions of the trust (in particular entering an agreement to sell for lower than the probable value on the open market) the partitioning owners were essentially forced to seek partition to protect their interests. The actions of the partitioning owners may have caused delay, but the trustees benefited, as the purchase price increased from $3.7m to $4.2m as a result. The trust should meet the costs (around $20,000), subject to the partition orders becoming final (s79/1993 and s73/1993).

Re Enquiry into Tainui Mäori Trust Board Elections

86 Waikato MB 15. 28 September 1998. Savage J

Judge Savage carried out an investigation into the Tainui Mäori Trust Board elections. The investigation resulted from an application made by the Minister of Mäori Affairs under section 53A of the Mäori Trust Boards Act 1955. Various allegations about problems with the elections were found to be without substance. In these proceedings, the trust board argued that the Judge had the jurisdiction to award costs in favour of the trust board under s79(1) Te Ture Whenua Mäori Act 1993. That section provides that the Court can make an order for costs to any party who is a party to proceedings and to whom leave has been granted to be heard. Counsel maintained that even though the section referred to the land court and not a judge specifically, in this case the judge carrying out the investigation was the land court.

It was argued that:

•  Serious consequences would result if the Minister would never face costs following from an investigation into an election based on allegations without merit;

•  This could not have been the intention of the legislature;

•  If the judge did not have jurisdiction under s79(1)/1993, then the power to award costs came from the land court’s inherent jurisdiction.

Counsel for the Crown argued that s79(1)/1993 did not apply because the Minister was not a party to proceedings in relation to the investigation. Section 79 applied only to the land court and not to an investigating judge acting under other legislation. A comparison was made with the procedure for investigating disputed elections under the s106 Local Elections and Polls Act which contains a specific provision permitting awards of costs to be made.

Held: there was no power for the land court to make an award of costs under s79/(1)/1993 since that provision applies only to the land court and the investigation was conducted by a judge alone, without the powers of the land court. The words “Judge of the Mäori Land Court” in s53A Mäori Trust Boards Act 1955 simply define the person who may be asked to enquire into a matter, and do not invoke the land court itself. In addition, since the report had been made to the Minister and the judge had not been asked to reserve any award for costs, the judge was functus officio, ie his power and role had ended in any event. Even if there had been jurisdiction to award costs, the year’s delay in making an application would have counted against any order.

Other courts & tribunals

McRitchie v Taranaki Fish and Game Council

CA 184/98 Court of Appeal 22 November 1998. Richardson P, Gault, Henry, Blanchard JJ, Thomas J dissenting

In February 1997 the District Court found that Mr McRitchie had been exercising a Mäori fishing right in taking trout without a licence in the Mangawhero River and this was a valid defence under the Conservation Act 1987 ([1997] DCR 446 and see Mäori LR February 1997). An appeal by way of a case stated was taken to the High Court, which found that, because the taking of trout was always controlled by law, there was never a time when taking trout could have been regarded as the exercise of an existing and preserved Mäori fishing right (AP 19/97, 14 May 1998, see Mäori LR May 1998).

Majority decision (Richardson P, Gault, Henry, Blanchard JJ)

Since this was an appeal only on the question of law before the High Court, the only issue for the Court of Appeal to examine was whether the High Court had been correct in determining that legislation governing the taking of trout has always precluded any claim to a Mäori fishing right for trout.

The High Court found that because 1) legislation controlling the taking of trout pre dated its introduction and 2) control by legislation and regulation has been continuous through to the present day, trout were exempt from the general rule that Mäori fishing rights might be claimed for fishing indigenous and non-indigenous species by virtue of Article II of the Treaty and legislation reserving Mäori fishing rights in general.

Counsel for the appellant now argued that  Mäori have an inherent right to fish. This right was not based on a particular species but rather related to the customs and traditional fishing locations of particular hapü and iwi. While Parliament is able to limit that right, there must be a “clear and plain intention” on behalf of the legislature to do so (R v Symonds (1847) NZPCC 387, 390; Te Runanganui o Te Ika Whenua Inc Society v AG [1994] 2 NZLR 20, 23-24; R v Sparrow (1990) 70 DLR (4th) 385, 399-401; Wik Peoples v State of Queensland (1996) 141 ALR 129, 188; Delgamuukw v The Queen [1988] 153 DLR (4th) 193, 267-277). Counsel argued alternatively that, while the Salmon and Trout Act 1867 authorised the making of controls over trout, no controls were actually introduced to the Whanganui region until 1890, and Mäori fishing rights would have applied to the taking of trout in the interim.

The Fish and Game Council contended that:

•  Since trout were not present in NZ at the time of first contact with Europeans, no Mäori fishing right could exist since customary rights must refer back to the period of first contact. Fishing rights must be confined to the fish species which were in rivers in 1840;

•  The legislation governing trout passed the test of a clear and plain intention to preclude any Mäori fishing right.

The majority found that the nature and content of a fishing right depends on the customs of the particular iwi or hapü in relation to particular waters, since aboriginal rights are “highly fact specific” (R v Sparrow(1990) 70 DLR (4th) 385 and Mabo v State of Queensland (No 2) (1992) 175 CLR 1). The existence of a right is determined by considering “whether the particular tradition or custom claimed to be an aboriginal right was rooted in the aboriginal culture of the particular people in question and the nature and incidents of the right must be ascertained as a matter of fact.”

It was not however the function of the court on this appeal on a limited question of law to endorse the wider findings in the District Court which were noted in the High Court that, but for the legislation governing the taking of trout, a broad Mäori fishing right would have been exercisable, which would have covered introduced species. “While acknowledging that there is considerable force in the argument that the facts of a particular case might well establish that a customary fishing right was a right to fish for food in a particular fishery, not confined to particular species but applying to fish present in the waters, whether indigenous, migratory or introduced, in the result that question does not require discussion in this appeal.”

The majority investigated the relevant statutes passed and regulations made since the Salmon and Trout Act 1867 including:

•  Parliamentary and other discussion surrounding the 1867 legislation which was inconsistent with any suggestion that Mäori fishing rights would extend to the new species;

•  Regulations under the 1867 legislation applying in Otago in 1869 and covering the whole country by 1879;

•  An Order in Council of October 1884 declaring all salmon, trout, trout fry and all other white fish to be protected under the 1867 Act;

•  Regulations in 1890 which affected the Wanganui Acclimatisation District, which replaced earlier regulations of 1888 and general regulations of 1886;

•  The Fish Protection Act 1877, which did make provision to preserve Mäori fishing rights under the Treaty of Waitangi, but was intended to sit alongside, and not replace the Salmon and Trout Act 1867;

•  Regulations made under subsequent general fisheries legislation governing the taking of trout;

•  Current provisions under the Conservation Act 1987, including provisions concerning Sports Fish and Games Councils.

The court also examined particular provisions made for Mäori trout fishing between 1908 and 1938:

•  Under the Fisheries Amendment Act 1908 the Mäori Council of the Arawa Mäori District was able to recommend that 20 licences for trout be issued for personal and  family consumption in the Thermal Springs District.

•  Under the Native Land Amendment and Native Land Claims Adjustment Act 1926 up to 50 free licences could be issued to members of the Tuwharetoa tribe to take trout in Lake Taupo.

•  Under the Native Land Amendment and Native Land Claims Adjustment Act 1921 (s28) the Governor-General could make regulations authorising Tuwharetoa to take trout in Lake Rotoaira.

•  The Native Purposes Act 1938 (s22) exempted Tuwharetoa from a general law prohibiting fishing for trout and other fish in Lake Rotoaira and Poutu Stream.

•  Regulations made in 1897 for netting trout in Lakes Rotorua and Rotoiti, provided for a special reduced fee for Mäori residents living within one mile of the lakes.

The majority concluded that this legislative history “demonstrates beyond doubt that the appellant and his hapü did not have a Mäori fishing right to take trout in the Mangawhero River.” There was no reference to Mäori fishing in the 1867 legislation, but this was unnecessary given the nature, purpose and comprehensiveness of the statutory regime. The pattern of regulations and Orders in Council which followed reinforced this situation. The general regulations applying to the Wanganui Acclimatisation District in 1888 and 1890 pre-supposed an exercise of total control over fishing for trout in the district, and general regulations of 1879 and 1886 protecting trout reflected the “completeness of the statutory regime”. The particular provisions made for Mäori between 1908 and 1938 could only be understood as recognising that, but for those particular provisions, Mäori would otherwise have no right to take trout in those waters.

Finally, the Conservation Act 1987 proceeds on the same premise as earlier legislation in providing a comprehensive and exclusive code for trout as a sports fish.

Minority decision (Thomas J)

Thomas J noted that the majority had chosen not to discuss the issue of whether the appellants customary fishing rights or rights secured under the Treaty of Waitangi included a right to take trout, and had simply discussed the parliamentary regime governing trout.

The facts accepted in the case stated included:

•  The hapü or iwi held mana whenua and tino rangatiratanga over the river since time immemorial;

•  The river is a taonga governed by the customs or tikanga of the hapü which did not permit fishing for commercial gain;

•  The river was the hapü’s main source of food;

•  The appellant was the main provider of food to the local marae, had full authority from the hapü to fish for trout, and had been fishing for trout without a licence since he was a child.

The Conservation Act 1987 provides two reservations:

•  Section 26ZH providing that any Mäori fishing rights shall not be affected by Part VB of the Act governing the taking of trout and other sports fish.

•  Section 4 stating that the 1987 Act shall be interpreted and administered to give effect to the principles of the Treaty of Waitangi.

Similar provisions appear in other legislation and have been interpreted in Ngäi Tahu Mäori Trust Board v Director of Conservation [1995] 3 NZLR 553, NZ Mäori Council v A-G [1996] 2 NZLR 140,Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 and Smith v Auckland City Council CA 559/95 26 March 1996. Section 4 specifically requires that the 1987 Act be “interpreted” to give effect to the principles of the Treaty and Part VB must accordingly be interpreted in that way.

The appellant contended that his fishing rights related to a fishery as distinct from fish species and therefore included any fish within the fishery at any given time. This was consistent with the approach of the Waitangi Tribunal in the Muriwhenua Report (Wai 22—1988) where it was noted that the tribal Treaty interest is not limited as to species of fish, the origins of fish, the location of fish or the purpose or use to be had of them.

The counter view was that Mäori fishing rights must be determined at the point of contact with Europeans and therefore no right in relation to non-indigenous species could ever arise, or, if such a right existed, it has by necessary implication been extinguished by the statutory regime for control of trout.

It was unsatisfactory to resolve the issues in this case relying entirely on the starting point taken by each side. Starting with competing assumptions (that fishing rights depend on what is in the fishery vs fishing rights depend on what was fished at contact with Europeans) does little to resolve the issue of which of the two resulting answers is more logical.

The question before the court begged the real issue, which was a Mäori assertion of mana whenua and tino rangatiratanga over the river and a plea to participate in the control of the river and the fishery. This authority or right to control or participate in control should not disappear simply because trout are introduced into the fishery. However, the issue had not been stated in those terms. Therefore the question of the nature and scope of the hapü customary and Treaty fishing rights must be left open.

As the appellants had framed the issue, ss26ZH and 4 would protect the places where fish are caught by Mäori and not the particular species. That approach came closest to the recognition of the authority inherent in the hapü’s mana whenua and tino rangatiratanga over the river. It is only when the element of control by the hapü is removed that it appears artificial to say that a customary right can include species which are not part of that custom.

In any future case which might look at the broader issues, more extensive evidence would possibly be called and:

“it may be that it will be demonstrated that the rights relate to the control of the fishery and focus exclusively on the fishery and not any particular fish. Possibly, the fact that the introduced species have destroyed or diminished, and therefore, in a sense, replaced the indigenous resources will be thought relevant. It may be that a distinction will be drawn between fish introduced for the purpose of food, and therefore forming part of the “food basket”, and fish introduced for sport or other purposes. What is certain is that, if the issue is not resolved, Mäori will be left with a grievance that the Crown introduced a species into the river, over which it holds mana and tino rangatiratanga, without consultation; that it did so in a manner which has precluded them from participation in the control of the river; and that it selected a species which has seriously depleted the traditional indigenous food resource to which Mäori fishing rights undoubtedly attach.”

The issue before the court was not whether a Mäori fishing right to trout arose subsequent to the introduction of trout into NZ, but whether a customary right to fish in the river without reference to particular species had been curtailed or abridged.

Assuming that this initial right did exist and approaching the case in this way differed from the approach taken by the majority, however this approach follows the reasoning in Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. That case reserved a restrictive approach of earlier courts. That earlier restrictive approach was something which the judiciary “now bear with ignominy and discomfiture” (Wi Parata v Bishop of WellingtonWaipapkura v HemptonInspector of Fisheries v WeepuKeepa v Inspector of Fisheries—those cases themselves reversing a benevolent approach in R v Symonds, Kauwaeranga, Re Lundon & Whittaker Claims Act 1871). It would be “disappointing” if the “authority and spirit” of the Te Weehi decision were not now continued.

Irrespective of this line of reasoning, “in order to extinguish or curtail a Mäori fishing right or right protected by the Treaty, the legislature not only must direct its attention to the question of extinguishing or curtailing that right but also must deliberately determine that it should be extinguished or curtailed. The intention must be clearly manifested by unmistakable and unambiguous language.”

This test borrowed from the language of the courts in protecting the right of the privacy in the home. No lesser standard should be adopted when addressing rights secured by the nation’s founding constitutional document. Such deliberate explicitness is the corollary of the fundamental nature of the interests involved.

The Treaty “leaves no room for the casual inference of Parliament’s intention to extinguish or curtail a customary right or right secured to Mäori under the Treaty.” The courts should not sanction anything other than an explicit restriction on those rights, not should they fill any gap in the law which Parliament should fill. A restriction imposed by “judicial implication” would deprive Mäori and others of the ability to participate in the democratic and parliamentary process. Nothing less than a “deliberate intention to extinguish or curtail the rights manifested by unmistakable and unambiguous language” would suffice.

Such unambiguous and unmistakable language was not present in the legislation relating to the introduction and control of trout. At best, the legislation demonstrated an assumption that Mäori fishing rights did not include non-indigenous fish. In this sensitive area, there was a question whether the courts should fix an unenlightened historical assumption on Parliament, given that understanding about Mäori fishing rights has altered dramatically in recent years and the 1987 Conservation Act now explicitly provides that the Act is to be interpreted in line with Treaty principles.

Also, in this important area, little weight should be given to subordinate legislation to support a statutory implication. Regulations may be relevant but should not be accorded a large role.

Turning to the historic legislation:

•  The Salmon and Trout Act 1867 made no reference to Mäori fishing rights.

•  The Fish Protection Act 1877 s8, which protected Mäori fishing rights, expressly referred to rights in “any fishery”.

•  Regulations governing fisheries in the 1880s were all expressly subject to s8/1877.

•  The special provisions enacted for Mäori between 1908 and 1938 did not clearly demonstrate an intention that Mäori fishing rights were curtailed, and it could just as easily be argued that they recognised a Mäori right to participate in the control of trout fishing, particularly given the background to the statutory provisions of petitions and negotiations by Mäori about the effect of trout on their traditional fisheries. In addition, the 1938 exemption for Tuwharetoa from the general law prohibiting fishing for trout and other fish in Lake Rotoaira and Poutu Stream (Native Purposes Act 1938 s22), explicitly recognised the rights of Tuwharetoa.

•  General fisheries legislation at the turn of the century and through to the present day continued to preserve the Mäori fishing right (with a minor and unimportant exception in the 1908 consolidation of legislation).

Section 4 Conservation Act 1987 recognises the fundamental constitutional status of the Treaty and must inform the interpretation of Part VB, including s26ZH/1987. These provisions should be seen to reflect Parliament’s current attitude and not as mere window dressing. If it is the case that the appellant’s hapü had rights in the river not specific to particular species, then s26ZH in conjunction with s4 clearly intends that those rights should not be affected by the provisions of Part VB. To hold otherwise in this case would have the court pre-empt decisions that Parliament might wish to take. For example, the majority decision means that the appellant’s hapü possess lesser fishing rights than occupiers of land adjoining the river, who may fish the river adjoining their land without a licence. Parliament cannot have intended this result.

In conclusion, assuming that the Mäori fishing right attaches to a fishery and that fish species are irrelevant, and leaving aside whether the appellant’s hapü in fact have this right in the river involved in this case, ss4 and 26ZH provide a defence of a Mäori fishing right to the offence of taking trout without a licence. Something “more emphatic” than an “inconsistent regime” is required and only “express language” indicating that Parliament has addressed the issue of the abrogation of fundamental rights and interests under the Treaty or Mäori custom and has deliberately determined to abrogate those rights will suffice.

[Ed: because of the strict limits which the majority set on the issues considered in their judgment, and because of the very different tone and nature of the dissenting judgment, it is difficult to say whether this decision on balance simply rules out any customary interests in trout and salmon, or whether it has wider implications for arguments about the nature and extent of aboriginal title. Thomas J in his dissenting judgment clearly indicates a concern that the majority may be pulling back from the quite broad endorsements of Mäori Treaty and customary rights in decisions in the 1980s.

On the question of an appeal to the Privy Council, because this appeal dealt with a case stated, a further right of appeal may not be available.]

Other

Report on the Proposed Method For Allocation of Pre Settlement Assets (PRESA)

Te Ohu Kaimoana. November 1998

This report is intended to be the final consultation round before the proposed optimum method of allocation is recommended to the Minister of Fisheries. The commission believes that the proposed method is most likely to be supported by the greatest number of iwi and Mäori, is consistent with legislation, “takes account” of Waitangi Tribunal reports, and meets the requirement in Justice Paterson’s judgment (4 August 1998 see Mäori LR September 1998 p6), that all Mäori must be able to access the benefits of the settlement, but that allocation is to be via iwi. In this regard, a Development Putea is proposed, which is an additional measure to ensure that all Mäori have access to the settlement—the primary measure being the accountability criteria for iwi organisations which the commission has established to ensure that iwi organisations have mechanisms of accountability to their members. The Development Putea will be a contestable $10 million fund held by a charitable trust. It will be for all Mäori, but target those living outside their tribal area or who cannot establish their iwi or do not have close iwi ties. The fund will be managed by a board of trustees comprising 2 iwi and 2 urban Mäori representatives and a chair nominated by the commission to represent iwi interests. This overall iwi control of the fund is required because of the statutory obligation to allocate solely to iwi. It is the obligation of iwi (and will be the obligation of the trust) to ensure all Mäori benefit via iwi.

Three consultation documents have been prepared and circulated since 1992 and a series of hui held between 1994 and 1997. Iwi are “gradually moving closer to consensus on the fundamentals that should underpin allocation”. The “Taumata Paepae” series of meetings among interested iwi groups between 1995 through 1997 has been a key in achieving this concensus. Following the adjournment of the Taumata Paepae in late 1997, representatives from Tainui, Ngäi Tahu, Hauraki and Ngapuhi suggested a compromise model containing many of the key elements of the proposed optimum model being put forward by the commission. In any event, “there is no finally agreed model yet—the key elements of that will not be known until the process has been completed.”

The commission has funded an assessment of the alternative models suggested by iwi themselves. The assessment compared them to criteria established by the commission. The conclusion was that, to be “acceptable”, alternative models would have to deal with both population and coastline length in an “even-handed way”. None of the alternative models appeared capable of attracting substantial support from iwi with the exception of:

•  Takutaimoana model: would allocate shallow water quota 100% on the basis of coastline length, midwater quota 50% coastline, 50% population, deepwater quota 100% population.

•  Kaupapa Iwi model: designed to allow each iwi to determine its preferred approach to allocation (coastline or population based) and receive a percentage of the amount it would receive on that preferred approach.

However, since the Takutaimoana model would not receive support from the Treaty Tribes Coalition, this was a “significant factor” against that model (although it was difficult to gauge levels of support for the Takutaimoana model compared to the commission model). The Kaupapa iwi model has only recently been suggested and its support is untested and it requires further clarification.

The commissioners believe however that no alternative models, including these two, are likely to be politically sustainable to the “required level” of support ie 60% of iwi numbers, and 60% of the Mäori population.

Other issues considered by the commission included:

•  Allocation to the Chatham Islands: following comments from the Court of Appeal in a case involving interim lease round allocations to the Chathams, the commission has accepted that special circumstances exist for the Chatham Islands and that the criteria of coastline length and population would have a severe impact on the allocation to the Chathams because of the small coastline and population. Allocation would therefore be calculated from commercial catch records in a notional fishery extending for 200 nautical miles around the Chathams.

•  Lease round inequities: no adjustment would be made for alleged inequities in the annual lease rounds. While some iwi, particularly Ngäi Tahu, were able to obtain quota at “relatively lower prices” in the fishing years 1989/90 and 1992/93 under the Mäori Development Incentive scheme, that scheme had been properly developed and implemented. Nor had there been any inequity in the lease process for Southern Blue Whiting in 1993, which was alleged to favour Ngäi Tahu.

•  Socio-economic and cultural issues: the commission has “several times” considered socio-economic and cultural data, including the latest census figures, but these can provide no clear cut answers in allocation terms, even if they do indicate differences between iwi. For example, iwi which are better off economically “may be doing poorly in cultural terms.” Further analysis of socio-economic and cultural characteristics would be “highly unlikely” to produce an allocation principle which would have greater acceptability than population. Population in the allocation equation reflects not just socio-economic issues, but also the development right, fairness, and the right of all Mäori to benefit.

•  Other factors: while a resolution at the Hui-a-Tau in 1996 called for “other components of allocation” to be identified and agreed, by 1997 iwi had broadly endorsed, through the consultation process, coastline length (reflecting mana whenua mana moana) and population as the key factors in the allocation model. The commission considered the issue of “other factors” in meetings in June 1997 and August 1998 and concluded that “other factors” being suggested had already been researched, or were not relevant, or were technical and financially infeasible. The “vast majority” of iwi were calling for allocation without further delay and did not want further research of factors which might not in the end be relevant.

Accordingly, the proposed model for allocation is the result of “one of the most rigorous, comprehensive and wide-ranging consultation processes ever undertaken with Mäori.” Current disagreements were largely about the weighting to be given to elements within the allocation formula, rather than wholesale rejection of the formula itself.

The commission believes that there is an “urgent need to allocate” and the proposed model offers the fairest, most workable and most acceptable means of doing so.

Seven appendices to the report discuss:

•  The background to the fisheries settlement;

•  The approach of the commission to iwi recognition, representation and structures;

•  Detail on how the allocation formula will work;

•  Procedure and timing issues for the allocation of quota under the agreed method;

•  The principles and criteria applied to the allocation proposal;

•  Discussion of the “Kaupapa Iwi” method for allocation;

•  A summary list of other factors identified as important by some iwi;

•  An assessment by the commission of all models suggested to it.

Comments must be received by the 18 December 1998 and after this the commission will report its proposed optimum model for allocation to the Minister of Fisheries.

Living Relationships: Kokiri Patae: The Treaty of Waitangi in the New Millenium

KS Coates, PG McHugh (with commentaries by MH Durie, David Caygill, Roger Maaka, Bill Mansfield, Apirana Mahuika, WH Oliver, Gina Rudland, Margaret Wilson, Joe Williams). Victoria University Press 1998

This book contains two essays commissioned by the Ministry of Justice in an effort to develop fresh perspectives on the Treaty of Waitangi and the relationship between the Crown and Mäori.

International Perspectives on Relations with Indigenous Peoples

In his essay, which briefly surveys indigenous rights and claims settlements worldwide, Ken Coates identifies as a key issue the tension over whether the aim of the claim settlement process is to settle past injustices and permanently resolve demands of indigenous groups, or to ensure ongoing inter-cultural relationships and cultural survival. The latter view is obviously taken by indigenous groups themselves. This division in expectations has led to the oddity that in liberal democracies, economically right wing governments have made more settlements than liberal/left-wing governments. The trend also arises because “liberal governments convey the impression that there is more on the negotiating table than is in fact the case and thus encourage indigenous organisations to hold off from accepting quick settlements.” Further, the division in expectations may assist the current settlement process, allowing indigenous leaders to believe that settlements are just a first stage in an evolving relationship with the government, and allowing governments to make small concessions in order to achieve the legal and fiscal certainty that settlements are expected to bring.

Looking at the issue broadly, Coates finds that “the concept of indigenous rights—the cornerstone of the indigenous struggle for over 50 years—is one that springs, not from the indigenous societies, but from the requirement that indigenous peoples define their aspirations in accordance with Western norms.” He then examines the efforts to secure those rights and their success.

Commenting on international rights and the Draft Declaration on the Rights of Indigenous Peoples, Coates finds it an idealistic document which will not find ready acceptance among nations states in its present form. If it were signed in its present form, it would be a watershed, but there would be, in nations like NZ, internal legal challenges, increased anxiety among non-indigenous groups and political conflict. The future of the Declaration depends upon forces beyond the control of indigenous groups, particularly at a time when the United Nations is undergoing internal changes and facing bankruptcy.

In terms of actions by individual governments, the constraints on them are:

•  Lack of agreement on the nature of the problem to be solved and the issues to be addressed. This is a fundamental problem. In some countries constitutional reform receives attention, in other places social and economic reforms, in others protection of the land base and access to food resources.

•  Indigenous rights are not readily convertible into administrative action. Rights concepts often do not easily transfer into specific funding proposals.

•  Changing levels of, and attitude to, government funding (including the ideological push in recent years to downsize the role of governments).

•  Mood and temper of the non-indigenous population. This is a political reality which has little to do with justice or morality. While legal requirements such as treaties can allow a government to go beyond the evident limits of public support in addressing indigenous aspirations, governments rarely feel an obligation to operate within the legal or moral framework of the indigenous peoples. This basic reality sets the limits on indigenous authority within the country.

Coates then examines progress in the recognition of indigenous rights in specific settings, and patterns in settlements which have emerged.

A survey of initiatives towards self-government worldwide shows that self-government is more a process than a single event, with indigenous peoples assuming greater administrative control at a pace of their choosing. There has been considerable success in areas of health and education, but in other areas such as economic development, many difficulties have arisen. These problems arise from the historical lack of trust between the state funder and the recipient group, groups are often located in geographical remote areas, and there is an expectation that they will fail, making finance difficult to obtain and failures harder to overcome.

Experience in establishing completely autonomous political and legal jurisdictions for indigenous groups is more limited (eg Greenland and Nunavut). They have been expensive projects and have applied in regions where there are no other significant competing demands for the use of resources. An interesting proposal currently being suggested in Canada is to create within the federal system a single “virtual” province combining all 600 first nations of the country.

There has been wider experience with co-management regimes over resources, particularly in places such as Australia and Canada. However such initiatives are always susceptible to ecological disaster arising from an outside source (eg Chernobyl impact on Sami reindeer) and most agreements are in remote areas not extensively utilised by the non-indigenous population.

Viewed overall, in terms of government initiatives from land rights to language preservation to economic and social development, the situation is much improved from thirty years ago in that many structures have been put in place and government attention secured. It remains to be seen if the desired results will emerge.

Meanwhile, there is evidence of a backlash among non-indigenous groups as major land claims are settled in countries like Canada, NZ and Australia. While indigenous groups seek rights as tools to strengthen and preserve their culture, the non-indigenous party sees the matter as simply one of distributive justice, and indigenous groups have little success in convincing dominant societies of the significance and viability of their culture and life-ways. Further, “There is little evidence that non-indigenous peoples and governments are seeking a lasting accommodation between cultures” and the emphasis on legal and constitutional rights may even work against that idea.

There is also little indication that liberal democratic governments will accept any substantial measure of indigenous sovereignty, and no evidence of any support for this among the non-indigenous populations. In addition, the current free-market and pro-privatisation approach of governments is limiting the ability to enter into meaningful settlements.

The emphasis on the honouring of past agreements and developing international law also allows governments to approach settlements with a firm fiscal ceiling set in place. A more open ended approach, entering negotiations with an eye towards needs and cultural aspirations, rather than an eye on boundaries set by existing law and precedent, is unlikely to find favour with governments, particularly where settlements occur in areas which are densely settled as opposed to sparsely populated places like Greenland and Nunavut in Canada.

Coates concludes with a plea that governments first agree with indigenous groups the basic point of entering into negotiations. “Governments rarely negotiate culture, nor does cultural survival fit easily within the administrative toolbox. It is easier to talk about rights to land and resources, special exemptions from national laws, the delegation of administrative responsibilities, than it is to conceptualise the long-term challenge of preserving indigenous culture.” Without such a conceptualisation and agreement on the goal, the creation of lasting solutions will be difficult.

Aboriginal Identity and Relations in North America and Australasia

The main thesis of Paul McHugh’s paper is that past relations between indigenous groups and the state involved a contest between competing sovereignties within a structuralist paradigm (ie the membership of and identification through structures, in this case government and tribes, determines relationships and the nature of disputes). But with indigenous issues firmly on the national agenda, relations between indigenous groups and the state are becoming “post-structuralist”. That is, relations are seen as inherently open, negotiated and layered and as contextual over time and settings. An important aspect of this change is a growing concern about identity and inter and intra tribal disputes and claims by people outside the formal structure of the tribe.

In the first half of the paper McHugh demonstrates how he sees the post-structuralist approach applying in government-indigenous relations. The structuralist approach gave rise to a “claims-based” model of government-indigenous relations where:

•  The dominance of the state and the subject nature of indigenous groups was reinforced, as claims were cast in terms of issues for the state to resolve.

•  Urbanisation in indigenous groups was masked, since  historical rather than current forms of cultural organisation were emphasised.

•  A final end to the claim was envisaged—even though that was practically not possible since the state and indigenous groups would continue to coexist.

•  The relationship between the state and indigenous groups was inherently bitter, and the question of an ongoing relationship little addressed.

•  The resolution of claims was based on the commodification of rights.

McHugh cites the Alaska Native Claims Settlement of 1971, which created hundreds of corporations with indigenous shareholders, as an example of a poor settlement achieved under the claims-based model.

He argues that a “relational model” is now operating in various places in the US and Canada, which emphasises “peaceful co-existence” between the indigenous groups and the state, and is associated with claim settlements where some measure of self governance is involved. In the US, under the Indian Self-Determination Act 1975 and Tribal Self-Governance Demonstration Project Act 1991, tribes with a proven record of administering federal funds can now map out their own tribal needs and negotiate a compact to deliver their chosen programme of assistance to their members.

In Canada, since 1986 there has been a willingness by the state to link land claim settlements with aims for self government. There is also no “rhetoric of finality” in Canadian settlements as there is in NZ. “Co-management” regimes are also common, particularly for the control of wildlife. McHugh believes however that the separate self governing municipalities created in Canada, also indicators of the relational approach, would not be feasible in NZ.

This change towards a relational model is also a response to the global shift in the management of state power away from state liberal democratic absolutism. State sovereignty is not now seen as absolute, but as “layered, co-operative and circumscribed in character”.

In the second part of his paper, McHugh explores whether in a post structuralist model, the tribe is the only entity with which the state should deal, or whether relations between the state and indigenous groups should be based on ethnicity, with indigenous identity being seen as simply a special form of ethnicity. This approach allows for the fact that “aboriginality” is an evolving and self defining notion which responds to the changing political situation of indigenous groups. It is possible that in responding to sustained attacks upon it, the tribe has, out of a sense of self preservation, become rigid and fixed. McHugh examines case law and practice from the United States and Canada which he argues shows that the courts take an approach to indigenous rights based on ethnicity rather than tribal identity. These include cases dealing with the interests of urban or “off-reservation” tribal members in claim settlements.

While it does seem from recent court decisions and government initiatives that a relational approach is now being adopted in NZ, one element which is missing is the recognition that increased Mäori participation and consent in these initiatives are an expression of rangatiratanga. The perception still remains that rangatiratanga is “Mäori sovereignty” which is at odds with the state. This attitude is fostered by the dominance of the claims process, the publicity given to extremes in the debate, and some Mäori political writing.

McHugh suggests that a political process is required to supplement the claim settlement process. A comprehensive statement is needed from the Crown spelling out its policy and practice with regard to rangatiratanga, emphasising its participative character. The Crown might also formally recognise the internal sovereignty of tribes, although this would have the drawback of entrenching the tribal political form at the expense of emerging alternative forms.