December-January 1999 Contents

Other courts & tribunals

Court of Appeal - Cannabis & customary rights

Court of Appeal - fiduciary relationship & s18(1)(i)

High Court – attempt to wind up a Mäori society

High Court – fiduciary relationship, public works, & title registration

High Court – sale of Crown interests in Nelson airport

High Court – customary fishing & Poor Knight Islands marine reserve

District Court – South Island customary fishing rights

Parliament

Treaty of Waitangi Amendment Act 1998

Treaty of Waitangi (Final Settlement of Claims) Bill 1998

Customary fishing regulations – North Island

Education Bill – special character of Kura Kaupapa Mäori

Other

Ngäti Awa Heads of Agreement

Sir Graham’s speech re Treaty settlements

 

Mäori Land Court & Appellate Court

No items this month

 

Waitangi Tribunal

No items this month

 

Other courts & tribunals

R v Knowles

CA 146/98, 12 October 1998, Keith J

Mrs Knowles was convicted under s6 Misuse of Drugs Act 1975 of having cannabis for supply. Her appeal to the High Court was dismissed and her application to appeal to the Court of Appeal was declined. In the present case she sought special leave to appeal under s144(3) Summary Proceedings Act 1957, which allows leave to appeal to the Court of Appeal if the question of law involved is of general or public importance, or for any other reason. The question of law was whether Mrs Knowles had a customary right to be tried by her own Mäori people according to their own law and in accordance with tikanga.

Held: leave should be refused. Reference was made to a number of historical sources, in particular s71 Constitution Act 1852 which provided for the maintenance of the laws, customs and usages of the native inhabitants of New Zealand that were not repugnant to the general principles of humanity. The continuing application of that provision was however subject to letters patent being issued by the Queen, and there was no evidence that this was ever done. The 1852 Act was repealed in 1986. The Misuse of Drugs Act was passed by Parliament which has had full power to make laws since 1947. The full powers of Parliament cannot be read down, and the courts must apply the laws made in accordance with those powers. In R v Creser (38/98, 21 May 1998), the Court of Appeal held that the provisions of the Magna Carta could not stand in the way of the application of the Misuse of Drugs Act. The decision in Berkett v Tauranga District Council [1992] 3 NZLR 206 is also relevant.

New Zealand law does however recognise customary law and especially the customary rights of Mäori. Customary rights are sometimes specifically included in legislation, for example that relating to land and fisheries. However, there is no such recognition in the Misuse of Drugs Act. Its terms are absolute and customary law cannot apply. The issues raised by this appeal should be addressed by public and political processes rather than by the courts. The leave to appeal was refused on the basis that there was no question of law which fell to considered in terms of s144(3) Summary Proceedings Act.

 

Attorney-General v Mäori Land Court & Proprietors of Tahora 2F2 and Wairoa District Council: Proprietors of Tahora 2F2 v Attorney-General & Others

CA107/98. 9 December 1998. Gault, Thomas, Keith, Blanchard, Tipping JJ

This appeal and cross-appeal concerned whether s18(1)(i) of the Te Ture Whenua Mäori Act 1993, giving jurisdiction to the Mäori Land Court to determine in any proceedings whether "any … land" is held in a fiduciary capacity and to vest it accordingly, extends to land other than Mäori land (ie Mäori freehold land and customary land) and General land owned by Mäori (a fee simple with 4 or more owners, the majority being Mäori). The matter was first heard in the Mäori Land Court (see Maori LR March 1997 p1) and on appeal in the High Court (reported at (1998) 3 NZ Conv C 192, 772 and see Maori LRApril 1998 p3), leading to these proceedings.

The land was 4.2km of paper road running across a farm property of the Tahora 2FC Mäori incorporation, leading to the boundary of a national park and in use as a walkway. The district council wanted to close the paper road on condition that walkway access remained, but there was disagreement over where a walkway would go. The incorporation accordingly sought an order under s18(1)(i)/1993 revesting the land in itself, arguing that the history of the taking of the land for the paper road meant that the council held the land in a fiduciary capacity and that it ought to be returned.

In the Mäori Land Court, Savage J held that the provision gave the land court jurisdiction to find that, while land might appear to be General land (ie private or Crown land etc see s4/1993), it was in fact Mäori freehold land or was held by a fiduciary who had an obligation to return it to the status of Mäori freehold land or General land owned by Mäori. He also rejected an argument that s12(6) Land Act 1924 providing that the land was taken free from all reservations, trusts etc, was sufficient to oust the jurisdiction of the Court under s18(1)(i) and issued an injunction preventing the district council from developing a walking track over the paper road.

In the High Court, Greig J heard the application of the district council and the Attorney-General for a review of Judge Savage’s decision. He found that the provision must be read within the context of the 1993 Act but its meaning was otherwise "perfectly plain". It could apply to Mäori land or General land held by Mäori but could also apply to all cases where there was "some relevant connection with Mäori land or land to which Mäori have some claim." After examining the history of the land however, he found that no fiduciary relationship existed.

Crown submissions

The Crown argued that Parliament’s intention in choosing the wording of s18(1)(i) was that it should apply only to Mäori land. They argued:

To give the land court the broad jurisdiction suggested by the High Court could enable the making of orders in respect of grievances that would otherwise be under the jurisdiction of the Waitangi Tribunal. It would contradict the intent of the 1993 amendment to the Treaty of Waitangi Act, prohibiting the tribunal from recommending the return of private land to Mäori, by allowing the land court to revest private land in Mäori without the consent of the owners. Further, s18(1)(i)/1993 was passed 3 weeks after the amendment concerning private land was introduced.

• Section 18(1)(i) should be read as applying only to Mäori Land and General land owned by Mäori, that is land within the general jurisdiction of the Act. By using s18(1)(i) to change the status of General land to General land owned by Mäori the land court was purporting to make a change in status not provided for in the 1993 Act.

• The purpose of the 1993 Act is to prevent the further loss of Mäori land by making it harder to sell (Valuer-General v Mangatu Inc [1997] 3 NZLR 641, 650). Section 18 can be read as being consistent with and as an "additional tool" to attain this object, that is, retaining Mäori land held in a fiduciary capacity.

• Section 18(1)(a) (land court to determine any claim to a legal or equitable interest in Mäori freehold land) does not apply to trusts or trust-like (ie fiduciary)situations as found by Savage J. So his argument that s18(1)(i) must apply to other than Mäori freehold land because it would otherwise conflict with s18(1)(a) must be wrong.

• Section 18(1)(i) is a "rats and mice" provision within s18 and the key jurisdictions contained in s18(a)-(d) are confined to Mäori freehold land.

• There are no "mechanical provisions" to give effect to a s18(1)(i) revesting order if it applied to General land.

• The word ‘land’ appears unqualified in s18(1)(i), but the word appears alone in other provisions and is used as a shorthand for "Mäori land".

• Part IV of the Act provides the rules by which the status of land can be determined, and when the status can be changed. Part IV would be redundant if s18(1)(i) had the general jurisdiction claimed for it.

• The 1993 Act provides no power for the land court to change the status of General land to General land owned by Mäori, and in the few cases where the land court has express power to deal with General land the consent of the owners is required.

• The essential nature of the land court was not intended to be expanded under the 1993 Act. Clear language would have been used if a radical change in jurisdiction were intended.

Submissions of Tahora incorporation

The proprietors contend that the wording of s18(1)(i) was wide enough to give the land court jurisdiction to make orders affecting General land. They argued:

• The Act is precise in the words chosen to describe land. Paragraphs 18(1)(a)-(d)/1993 apply to Mäori freehold land, s18(1)(h)/1993 applies to Mäori customary land, Mäori freehold land, General land owned by Mäori and Crown land. But s18(1)(i) specifically refers to any land which includes General land and Crown land (s4).

• The Preamble of the 1993 Act was not limited to Mäori land, but with mechanisms to deal with Mäori and their land, whatever its status.

• Section 18(1)(i) is concerned with who the beneficial owners might be, not the actual status of the land. To limit the provision to Mäori land would restrict the land court from dealing with Mäori and their land. There are many instances where beneficial owners of General land would be Mäori, but they would still have to establish that the land was held in a fiduciary capacity before s18(1)(i) applied. Consequently no floodgates would be opened and General land owned by private citizens will only be affected if a fiduciary relationship with those owners could be established.

Decision on jurisdiction

Their Honours found that s18(1)(i) must be read in relation both to the surrounding provisions and to the statutory context as a whole:

• The long title of the Act and the Preamble contain no suggestion that it was intended to be a vehicle by which General land beneficially claimed by Mäori can be the subject of a vesting order in favour of Mäori.

• Section 17(1) (primary objectives of the Mäori Land Court), reinforces the Preamble - to promote and assist in the retention of Mäori Land and General Land owned by Mäori in the hands of the owners and its effective use, management and development on behalf of the owners. Further objectives in s17(2) relate back to the primary objective. When s17(2) refers to "land" it is a shorthand expression for Mäori land (as in s37(2)(b) and s82(6)). The wide meaning of ‘land’ in s4/1993 does not apply where a particular and more limited meaning is intended. Therefore nothing in the primary objectives relates to Crown or General land.

• Section 18 confers upon the land court its general jurisdiction and paragraphs 18(1)(a)-(g)/1993 relate only to Mäori freehold land. Paragraph 18(1)(h) has the only mention of Crown or General land in the subsection, which, significantly, relates to the determination of the status of land, and gives no power to make an order changing that status. While it is obvious that the Mäori Land Court has the power to determine the status of any land, it does not follow that if that land was General or Crown land the land court would have the power to make an order affecting the land.

• No mention was made of s18(1)(i) when the Bill was passed through Parliament, and its position gives it the appearance of an ancillary provision. The reference to ‘land’ is not qualified, but read in the context of the section that refers only to Mäori freehold land, it would seem to be similarly limited.

• Sections 19 and 20 which confer jurisdiction of a procedural nature are similarly restricted to Mäori freehold land. Sections (21 to 25) are similarly restricted.

• Section 27 authorises the Governor-General to confer upon the land court a special jurisdiction to determine claims and disputes on any matters affecting the rights of Mäori in any or personal property or any other matter, that the Governor-General believes falls within the field of the special expertise of the land court. This section suggests a narrow interpretation of s18.

• While s61(1)(b) refers to "any land or…personal property" that is in relation to proceedings in the High Court, which has a general jurisdiction.

• Part IV of the Act deals with the status of land. Section 131 empowers the land court to determine the status of land. Section 132 enables a change from Mäori customary land to Mäori freehold land, and s133 gives the land court jurisdiction to make a status order declaring any land to cease being General land and become Mäori freehold land. Significantly, this can only occur when it is beneficially owned by one or more Mäori and either all the owners agree, or the land can be managed effectively as Mäori freehold land and a sufficient proportion of the owners agree. Although express jurisdiction is given to the land court to deal with General land, it depends on beneficial Mäori ownership and owner consent is required. If the broad interpretation of s18(1)(i) applied these restrictions would become redundant.

• Section 134 is intended as an administrative mechanism for changing the status of land to Mäori freehold land by the making of a vesting order. The absence of a mechanical provision of this kind linked to s18(1)(i) is another indication that its jurisdiction is limited to Mäori land. In addition, s134(1)(c) stipulates that an application in respect of Mäori land or General land owned by Mäori acquired by the Crown for a public work (as in the case of the paper road) can only be made by or on behalf of a Minister of the Crown, the Chief Executive of Land Information NZ or the local authority by which the land was acquired. This casts further doubt on any ability to use s18(1)(i) in conjunction with s134.

• Section 165 (vesting of interests held in a representative capacity), is limited to Mäori freehold land. The provision is similar to s18(1)(i), and if s165 is limited to Mäori freehold land then it was unlikely that s18(1)(i) was intended to have a wider reach.

• Part XII contains powers relating to trusts. Section 237 gives the land court the same powers as the High Court in relation to trusts, however s236 limits the jurisdiction to trusts that relate to Mäori land and General Land owned by Mäori. The focus of s18(1)(i) is similar to that of s 236, and as that is limited to Mäori land it is again unlikely s18(1)(i) would have a general application. Similar arguments arise with s241 dealing with the termination of trusts.

• Sections 324 and 325 (stoppage of unused roads over Mäori land and the vesting of land comprised of roads which have been stopped), require consents from the Minister of Transport and the local authority before a road can be closed and land revested. Why would such consents not be required if General land or Crown land was affected by s18(1)(i)?

• Making any order under s18(1)(i) could in some cases have a similar effect of making an occupation order s238 (allowing for occupation orders only in relation to Mäori freehold and General land owned by Mäori). So it would be anomalous if s18(1)(i) were to apply to categories of land which s238 could not be applied to.

• Section 353 (existing trusts in respect of Mäori land not affected by the passing of the Act), also suggests that in relation to trusts the essential focus of the 1993 Act is on Mäori land.

In conclusion, when s18(1)(i) is placed within the context of the 1993 Act, it cannot be interpreted in a way that would give the Mäori Land Court jurisdiction to make vesting orders concerning General land. If s18(1)(i) was in fact intended to relate to General land or Crown land, Parliament would have made this explicit. Claims concerning fiduciary duty are for the High Court or the District Courts within the limits of their equity jurisdiction.

Fiduciary obligations in respect of the paper road?

While their Honours did not need to address the question of whether a fiduciary relationship existed between the Mäori proprietors and the Waiora District Council they felt some comment on that aspect might assist the parties. After reviewing the history of the land (also covered in the earlier decisions - see Mäori LR April 1998 p1), they found that no fiduciary relationship existed because:

• Although s11 East Coast Native Trust Lands Act 1902 provided that the then East Coast Commissioner and trustee for the Mäori owners, Judge Rawson, must agree with the Mäori beneficial owners the terms and conditions for dealing with the land, and had not done so in relation to the roading proposal, s12 Land Act 1924 allowed the Governor-General to proclaim land as a road notwithstanding any other Act, and the commissioner was deemed to have general powers to deal with the land anyway under s14(1) Native Land Claims Adjustment Act 1911.

• While the consent of the then European lessee of the land was technically required under s12(3) Land Act 1924 and this was not obtained, because: the lessee had never raised the issue, it was a technical matter, the beneficial owners had given consent through the commissioner, and the lease provided that 5% of the land could be resumed for roading in any event, this objection also had no merit.

• The taking should not be viewed on its own, but as part of a "package deal" which was fair. It was standard practice at the time for landowners to contribute to the costs of roads through their lands. Judge Rawson, as commissioner, had ensured that the road proceeded on the line suggested by him, and that the owners would not contribute to its construction costs, although they would contribute the land itself without cost. The road was built across almost 2/3 of the incorporation farm and maintained ever since at significant expenditure to the local authorities. The paper road could not be regarded as a separate matter. The overall package significantly advantaged the Mäori owners. While the commissioner was unsuccessful in obtaining an undertaking to complete the road, the Crown was unlikely to have given that undertaking in any event, given the hard economic times. Overall the commissioner negotiated a "very good deal" for the owners and acted independently in their interests. While consultation with them might have been wise, he was not obliged to consult.

Therefore no fiduciary duty arose since there was never a firm condition of the taking that the road would be completed, only a hope that it might be. In addition, the paper road continues to be used for foot traffic and therefore is in use as a road. This conclusion could be reached without mentioning other statutory provisions which appear to protect the title of the district council and control the closure of roads vested in local authorities.

[Ed: this judgment will come as some relief to the government, which was potentially faced with a major new jurisdiction for the land court and the prospect of land claims outside the Waitangi Tribunal (see for example the Hakiwai case reviewed below). However the strict test applied in the High Court and Court of Appeal for the presence of a fiduciary relationship and the numerous statutory provisions which operate retrospectively to validate land takings last century and early in this century would have limited the use that could have been made of s18(1)(i)/1993 in any event.

As a separate matter, one wonders what conclusion the Waitangi Tribunal would have come to if it had been, or should in the future be, asked to hear a claim concerning this land. A fiduciary relationship is not far from the Treaty relationship.

On a procedural matter, the lawyer representing the Mäori Land Court, who had appeared in the High Court, sought to appear in the Court of Appeal. However, their Honours determined that it was not appropriate to allow counsel to appear representing a court where the argument is directed at the issue that has been determined in the judgment under review (in essence, allowing it to support its own decision) and especially when other parties have made full arguments. The submissions filed by the Mäori Land Court were treated as those as an amicus curiae, and he was not given permission to present them orally].

 

Te Runanga o Muriwhenua Inc Society v Neho and Others

CP43/98 High Court Whangarei. 2 December 1998. Fisher J

The defendants, Mäori people living in Northland, advertised a meeting which they claimed was a meeting of Te Runanga o Muriwhenua incorporated society, at which a majority voted to wind-up the society. They advertised a second meeting to confirm the decision and appoint liquidators. The society sought an interim injunction to prevent the holding of the second meeting.

The rules of the society provided for two classes of members, individuals and groups accepted as affiliates to the society. The supreme governing body was known as the General Assembly (consisting of elders, delegates and descendants of Ngäti Kuri, Te Aupouri, Ngaitakoto, Te Rarawa and Ngäti Kahu tribes) and had the power to appoint an Executive Council which was responsible for the day to day running of the society. The society could be wound up under s24 Incorporated Societies Act 1908, which, read alongside the rules, allowed for winding up by a majority vote at either an annual general meeting or a special meeting called by the Executive Council, followed by a confirming vote at a second meeting.

Held: the first meeting which had been called was not called by the Executive Council and the council had not authorised the second meeting. While the wording of the rules did not specify that the Executive Council could call anything other than special or emergency meetings, read in context, that must mean general meetings. It could not be argued that the first meeting was validly called by the General Assembly, first, because the General Assembly could only call annual general meetings, and second, because those present at the first meeting could not authorise by their own presence at a meeting that meeting itself. Consequently, a special general meeting can only be called by the Executive Council, and that was not done in this case.

Also, those calling the meeting had no standing to do so, since they were not members of the society. A rule of the society which provided that membership of the society included the members and descendants of the Ngäti Kuri, Te Aupouri, Ngaitakoto, Te Rarawa and Ngäti Kahu tribes, merely meant that those persons were eligible to become members. It could not make them members, since it is fundamental to the structure of incorporated societies that members must voluntarily enter into a contract to be bound by the rules of the society. Membership is not something which can be imposed without specific agreement from the persons affected. Otherwise all persons would be bound by the rules of the society and would have to, for example, pay any annual subscription without their agreement.

The provisional conclusion must be that there was a serious question to be tried at a full hearing, which might include actions against the defendants under the headings of deceit, the tort of injurious falsehood and possibly breaches of the Fair Trading Act and defamation.

As to whether the balance of convenience and other factors meant that an interim injunction should be issued to prevent the second meeting, while the defendants had raised issues about whether the Chairman and Executive Council of the Society had been validly elected (and evidence on that issue might be raised at a subsequent full hearing), the only admissible evidence before the court was affidavits which confirmed the standing of the current Chairman. In any event, the important issue for this interim application was not the standing of the Chairman and Executive Council, but the fact that those purporting to call the second meeting had no authority to do so. And it was difficult to see what harm could occur in the time before a full hearing if plainly unauthorised persons were simply prevented from calling meetings of the society. To allow the defendants, who apparently had no authority whatsoever, "to go through the charade of calling a phantom meeting in order to produce a phantom winding up can produce nothing but disruption, confusion and uncertainty for all involved." There might even be criminal repercussions if the defendants were to proceed in these circumstances. An interim injunction would be issued restraining the defendants from calling any meeting for the purpose of winding up the society or any other purpose to do with the society.

 

Hakiwai v Hawkes Bay Regional Council

CP 34/98. 8 December 1998. High Court Napier. Master JCA Thomson

This was a hearing to determine whether a caveat should be removed from a title to land. The caveat had been lodged on the basis that the land was subject to an action in the Mäori Land Court under s18(1)(i) Te Ture Whenua Mäori Act 1993, which asked the land court to determine if the land was held in a fiduciary capacity, and should be returned to its original Mäori owners.

The land had been proclaimed as Crown land in 1922 under the Native Land Act 1909. It was purchased by the Hawkes Bay Pest Destruction Board in 1971. The Hawkes Bay Regional Council acquired the land from that board in 1989. In 1996 the regional council decided to dispose of the land as it was surplus to requirements. The regional council offered it to the Crown pursuant to s40 Public Works Act 1981. The Crown rejected the offer. The regional council was approached by a local Mäori trust interested in the land, and resolved to delay a sale to allow the Crown to purchase the property with a view to ultimately selling it to the trust. This did not eventuate, and the property was put up for public tender. The successful tenderers lodged the settlement and a memorandum of transfer at the District Land Registry for registration. However, the transfer could not be registered because of the caveat.

Held: there were no grounds on which the caveat could be maintained, and it should be removed. The caveator, Ms Hakiwai, had filed proceedings that the caveat not be removed pending the outcome of her s18(1)(i)/1993 application in the Mäori Land Court. In the alternative, she sought an interim injunction against the District Land Registrar and also an order requiring the regional council to discharge its statutory duty under s40 Public Works Act 1981 by offering to sell the land to her as trustee for the descendants of the original Mäori owners.

However, the barrister acting for Ms Hakiwai had filed papers directly before the High Court in breach of the rules and statutory requirements. Accordingly, the proceedings were a nullity. Even if it were to treat the application as valid there were many more problems with Ms Hakiwai’s application and the court should exercise its discretion against the preservation of the caveat:

• The proceedings in the Mäori Land Court had been dismissed, consequently the ground for sustaining the caveat no longer existed.

• The caveat had initially relied on s18(1)(i)/1993 to establish an interest in the land. However, the lodging of a claim in the Mäori Land Court is not in itself sufficient to sustain a caveat.

• The most recent papers which had been filed sought to sustain the caveat by reference to s40 Public Works Act 1981, but that provision could not be relied on either. In Attorney-General v Methodist Church of NZ [1996] 1 NZLR 231 it was stated that s40 creates no more than a pre-emptive right and does not create a caveatable interest in land. While in Auckland Regional Services Trust v Palmer(Paterson J, 11 July 1996 M1705/96), it was held that there may be special circumstances in which a pre-emptive right might amount to an interest in land, no such special circumstances existed in this case.

• In addition, the decision in Muray v Geders 6/12/93 appeared to be authority against a trust of the kind claimed being sufficient to support a caveat because the court would not be able to enforce it as it would not be possible to identify all of the beneficiaries.

• Finally, Ms Hakiwai was purporting in her application to act as the agent of her father. This had been done because the applicant had no standing to bring the proceedings in the Mäori Land Court. Accordingly, the caveator’s status was not correctly stated on the caveat.

Accordingly, the balance of convenience clearly favoured the removal of the caveat to allow the transfer of the land to be registered.

[Ed: the Tahora decision of the Court of Appeal (reviewed above) limits the application of s18(1)(i)/1993 to Mäori land and General land owned by Mäori. So the application before the land court would have failed in any event.]

 

Ngäti Koata No Rangitoto Ki Te Tonga Trust and Others v Minister of Transport and Minister of Conservation

CA 296/98. 18 December 1998. Richardson J, Blanchard J, Tipping J

Nelson airport is on land formerly owned by Mäori, which was obtained by the NZ Company last century. Local Mäori had various claims before the Waitangi Tribunal about actions of the Company and the Crown last century, and hoped that this valuable Crown land, of which it was said there was very little in the district, would be included in any settlement negotiations should the claims be successful.

The land had been vested in the Nelson City Council by the Crown and was held under the Reserves Act 1977 for airport purposes. If the reservation status were revoked the land would return to the Crown.

In 1972 the Crown entered into a joint venture with two local councils to manage the airport. It now wished to end that arrangement, by selling its share in the joint venture to the councils, retaining a "kiwi share" to ensure its ultimate interest in the land was not affected, with one of the councils leasing the land for 60 years at a peppercorn rental. The agreement provided that if the land were no longer used as an airport, its reserve status could be revoked and it would return to Crown ownership (the kiwi share was a mechanism to prevent the council circumventing this provision by transferring the land to the new airport company). Where any part of the land ceased to be used for airport purposes over the life of the lease, it would also revert to Crown ownership and become available to settle Treaty claims.

After discussions, in 1996 the Crown and local authorities reached an agreement in principle that iwi would purchase shares in the new airport company at a market price. After public consultation however, the local authorities refused to ratify that agreement.

The appellant trust and other bodies representing tribes in the area sought judicial review of the Minister’s decision to proceed with the new arrangement without adequate discussion or consideration of their outstanding land claims. They wanted the existing joint venture to remain pending the outcome of their claims before the Waitangi Tribunal.

On 3 December 1998 the High Court refused interim relief, on the basis that the interests of the claimants remained protected by the proposed arrangement, and there was no possibility that the land would be used for anything other than an airport in the foreseeable future.

Held: assuming that there was jurisdiction to grant interim relief, the appellants had not shown that there was a serious question to be tried. There had been consultation sufficient to discharge the obligations of the Crown. There were no new facts of which the Crown was not aware. The action now proposed by the Crown was outlined at an early stage. A statement from a former minister that the Crown was prepared to meet with Mäori, which was not honoured by a later minister – who refused a request for a meeting – did not create a legal expectation giving rise to a right of judicial review of the Minister’s decision to proceed. The Crown’s ability to implement any Treaty settlement would not be hampered by the proposed arrangement. Even if the Crown were to revoke the reserve status of the land and recover title now, the title would be subject to the existing joint venture arrangement.

While there was uncertainty whether the 60 year lease (to be registered against the certificate of title) could be rolled over for another term, even if the Crown desired to return the land to Mäori and revoked the reserve status after the first 60 years, it would be possible to make some arrangement whereby the land could be returned to Mäori, but subject to the lease, and they could obtain a rental return from it by way of annual payments by the Crown.

While an arrangement excluding Mäori from participation in the commercial operations of the airport was obviously unsatisfactory to Mäori, the Crown was bound to seek consent of its joint venture partners and could not proceed with the proposed arrangement for a Mäori shareholding without the agreement of the councils (the appellant Mäori groups were seeking to pay market value for 40% of the shares).

 

Ngätiwai Trust Board & Haddon v Minister of Conservation

CP No. 39/98. 22 December 1998. Smellie J

The Ngätiwai Trust Board sought judicial review of a decision of the Minister of Conservation to ban all fishing in the marine reserve for the Poor Knights Islands. The islands lie off the East Coast of Northland, within the rohe of the Ngätiwai, and are of great spiritual and cultural significance to Ngätiwai, being a place where their ancestors lived. In the 1800s the islands were vacated as a result of warfare and declared tapu. Ngätiwai continue to consider themselves as guardians (kaitiaki) of the islands and to have customary fishing rights in the waters around them.

In 1981 the islands were declared a marine reserve, under the Marine Reserves Act 1971. Some limited fishing within the reserve was allowed. In 1994, after a review (including consultation with Ngätiwai), the Minister of Conservation banned all fishing. That ban was, however, successfully challenged by recreational fishermen (Whangarei Deep Sea Anglers Club v Marshall [1985] 1 NZLR 586). After further consideration and consultation, in May 1997 the Minister decided to ban all fishing and to phase in the ban over an 18 month period.

Ngätiwai challenged this decision, claiming a legitimate expectation that the Minister would take their unique relationship with the islands into account and preserve their customary fishing rights.

Held: the applicants had a legitimate expectation that the Minister would give consideration to preserving their customary fishing rights in the marine reserve. The narrow issue was whether, in all the circumstances, there was such a legitimate expectation that the law should recognise.

Customary Mäori Fishing Rights

Due to some confusion on all sides about the effect of fisheries legislation on customary rights, the court briefly sketched out the background to the 1992 Sealords Settlement, which included the enactment of s10 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 which provided that the rights and interests of all Mäori in non-commercial fishing (including customary fishing rights) would cease to exist, except where such rights were provided for by regulations governing customary non-commercial fishing made under s89 Fisheries Act 1983. Those regulations were to take effect in the North Island in early 1999. However, they would not apply to marine reserves, and consequently, the only way Ngätiwai could secure its customary fishing rights in respect of the waters within the reserve was by the exercise of the Minister’s discretion under s3(3) Marine Reserve Act 1971. Section 3(3) states that Marine Reserves are to be preserved in their natural state, and that fishing is not permitted, except by:

• Persons authorised by notice in the Gazette given by the Minister; and

• In accordance with conditions as to time, place, species, methods and gear specified in the notice; and

• In compliance with any other restrictions under the Fisheries Act 1983.

History of Consultation with Ngätiwai

Reviewing the documentary evidence and affidavits, it was uncertain whether, during the review process, Ngätiwai clearly understood the mechanics for preserving their customary fishing rights. Some officials, in particular the Conservator of the Northland Conservancy of the Department of Conservation, expressed the view that a dispensation to Ngätiwai could still be considered under s3(3)/1971, once the customary fishing regulations for the North Island had been promulgated.

However, the discretion under those forthcoming regulations was quite a different matter from the discretion under s3(3)/1971 to give appropriate consideration to a claim for customary rights before making a decision to ban all fishing in the marine reserve.

The court viewed approximately two years worth of correspondence between the Ministry of Conservation and various representatives of Ngätiwai, and concluded that while it was plain what each document stated, both parties perception of the review process was quite different. In early correspondence from the Ngätiwai Trust Board to the Minister the board advised that while Ngätiwai supported the ban on recreational and commercial fishing, they did not want rights to customary fishing in the area to be negated. The Minister in his reply acknowledged this position. In subsequent correspondence, the board continued to assert customary fishing rights, which they noted were neither commercial nor recreational, and separately supported a ban on fishing. In context, this meant a ban on recreational and commercial fishing.

Shortly before the Minister made his decision to ban all fishing, Ngätiwai reasserted their customary fishing rights as guaranteed by the Treaty of Waitangi. That letter caused the Minister to seek a meeting with Ngätiwai, at which he understood a total ban on fishing was upheld. He requested however a written confirmation of the position, which was received on the day the ban was notified in the Gazette. The confirmation contained a further assertion of customary fishing rights.

Two months later, Ngätiwai sought clarification from the Minister of their customary fishing rights within the reserve. He replied that he was "very reluctant" to provide for fishing in reserves since this undermined the concept of a protected area and referred to the extinguishment of both common law and customary fishing rights under s10 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the customary fishing regulations being drawn up by the Minister of Fisheries and the fact that they would not allow fishing in a marine reserve.

Taken collectively, the correspondence showed that Ngätiwai had continually asserted their customary fishing rights while supporting a ban on recreational and commercial fishing in the protected area. The Minister in his affidavit appeared to acknowledge that Ngätiwai customary interests were separate from recreational and commercial fishing interests. He had proceeded on the basis that s4 Conservation Act 1987 applied to his decision (requiring him to exercise his powers so as to give effect to the principles of the Treaty of Waitangi) and understood that he could have made allowance for customary fishing in the reserve but had not, since he believed Ngätiwai had all along favoured a total ban on all fishing, including customary fishing.

Legitimate Expectation

The question was whether or not, viewed objectively, Ngätiwai had a legitimate expectation that the Minister would take their assertion of cusotmary fishing rights into account when making his decision to ban all fishing. If a legitimate expectation is not met it can provide a ground for judicial review (Creednz Inc v Governor-General [1981] 1 NZLR 172). The Crown argued that ongoing Treaty responsibilities did not automatically require the Crown to provide for customary fishing in marine reserves, but the Crown would be "bound to give consideration" to such fishing if Mäori requested it. Since the evidence demonstrated that Ngätiwai had asked that their customary fishing rights be taken into account, and the Minister had taken a contrary view and not considered those rights, the claim for legitimate expectation was made out.

Discretion as to relief

On the question of relief, the Court found that, despite the delay in bringing the application (18 months after the Minister’s decision), the fact that the North Island fishing regulations for the control of customary Mäori fishing had been promulgated, and that the applicants might simply apply to the Minister to consider varying the reserve notice by granting them customary them customary fishing rights under s3(3) Marine Reserves Act 1971, the matter nevertheless was of such deep significance to the applicants that these measures would not be enough. A declaration would therefore be made that the original decision in May 1997 to ban all fishing was unlawful to the extent that it related to customary Mäori fishing, and that the Minister should be directed to reconsider his decision as it related to those customary rights.

 

Department of Conservation v Tainui

CRN8018003265-6. District Court Greymouth. Noble J

In 1997 several Mäori men, with genealogical links to the West Coast of the South Island, approached the Department of Conservation to ask about exercising customary fishing rights on the West Coast. They were told to seek permission from tribal elders and advise the department if permission was obtained. They then approached an uncle who was an elder living at Arahura Pa. He, along with two other elders, provided a simple signed permission to exercise traditional fishing rights for 2 months, without specifying any area. The uncle had granted fishing permissions to others in the past, and understood that the fishing would take place in the Arahura River and that some fish would be retained for hui and some sold. There was an intention to freeze some for use at hui throughout the year.

When told of the permission, the Department of Conservation communicated with an elder who they believed was the authority for such permissions on the West Coast, the head of the local runanga, Te Runaka o Katiwaewae. This elder confirmed that he was the only person who could authorise customary fishing.

The men were approached by a Department of Conservation officer as they fished with their uncle for whitebait in a creek which was important for breeding stocks, and which had been closed for fishing for 20 years. The officer asked them to stop fishing in that creek. The uncle agreed that fishing should stop until the question of authority to fish in the creek was clarified, and crossed his name out on the written permission. A meeting was held with the men and they were advised that they would be prosecuted if fishing in the creek continued. Several days later the defendant was apprehended as he was fishing in the creek and was charged with fishing for whitebait during a closed season and in a closed area contrary to the Whitebait Fishing (West Coast) Regulations 1994.

Held: the defendant relied on the defence under s26ZH Conservation Act 1987 requiring him to prove on the balance of probabilities that he was exercising a customary fishing right (Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680). The existence of such rights per se was not in dispute. The issues to be determined were 1) who could authorise the exercise of a Mäori fishing right in the area, and 2) did the defendant act in terms of the authorisation.

As to the first issue, the defendant’s claim was essentially a political one about whether rights could be authorised by local kaumätua, or by the tribal umbrella group, Te Runanga o Ngäti Tahu. The defendant argued that the issue in essence was whether the statutory regime for tribal authority contained within Te Runanga o Ngäi Tahu Act 1996 has displaced particular rangatiratanga and authority of particular hapü and whänau to control their local customary fishing.

In this case however, the court did have to go very far into that issue, because the evidence showed that:

• Any customary fishing on the West Coast must be carried out in accordance with custom of the local place.

• Yet no evidence had been provided about the defendant’s whänau having a custom of fishing in the creek, nor that the elders had even considered if there was a custom of fishing in the creek before they had given permission.

• There was no evidence of appropriate consultation with the kaumätua who gave permission, or oversight by them when the right was exercised, and locations and quantities were not specified.

• The was no evidence with regard to the proposed barter, exchange or sale of part of the catch. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 s9 bars any defence based on sale, and Ngäi Tahu custom limits commercial fishing in any event (Te Weehi pp683 & 692).

• The defendant was not even one of those named on the written permission, and since one elder crossed out his permission, and no fresh permission was given, his permission had arguably been withdrawn.

These matters combined meant that the defendant had failed to show that it was more likely than not that he was fishing in accordance with any customary right. There was no custom to fish in the creek, and if there was one, he was not properly authorised.

The extent of a customary right is determined by local circumstances which vary from place to place and time to time (Paku v Ministry of Agriculture and Fisheries [1992] 2 NZLR 223, 227). Custom changes and develops. Local protocol and conservation of the resource are important (see Taranaki Fish & Game Council v McRitchie [1997] DCR 446, 479-480).

Compelling evidence had been given by the Chairman of the Runanga o Katiwaewae and representative of the governing tribal body, Te Runanga o Ngäi Tahu, recalling the proposal to close the creek to fishing in 1964, which was agreed to by local Mäori families. He could recall no local custom of preservation by freezing, exchange or barter, and said that fisheries regulations had always been followed and even fishing for hui and tangi was relatively recent. Kaumätua would be involved in providing guidance to young fishermen. The court did not need to rule on a further submission that the Tainui family had no customary fishing rights in the area.

In the Te Weehi case, unlike this case, the Ngäi Tahu tribe had stood behind the customary fishing right which had been claimed. That decision had introduced the innovation of fishing outside the regulations. Following the case, Ngäi Tahu had imposed a rahui on the beach concerned. There was some dispute about the involvement of tribal and papatipu runanga in managing customary fishing, and whether a runanga could give the entire authority to authorise customary fishing to one person, but it seemed that some tribal control was exercised, and the rahui would remain while the tribe and the Crown negotiated a new regulatory regime. In any event, the case for the defence had not been proven.

It was not appropriate to prove a political point by the purported exercise of a long established and evolving customary right.

[Ed: it is perhaps fitting that what is probably the last case under the old legal regime for customary fishing should concern not whether the customary right existed or its precise nature, but who had authority to control the use of the right – the new area of contention.

In December 1998, the first maataitai reserve under the new Fisheries (South Island Customary Fishing) Regulations 1998 was notified in the Gazette. It covers the waters of Rapaki Bay, in Lyttelton Harbour, Banks Peninsula. The notice appoints two named persons as Tangata Tiaki/Kaitiaki for 5 years.]

 

Parliament

Treaty of Waitangi Amendment Act 1998

8 December 1998

This Act provides that a judge or retired judge of the High Court may serve as Chairperson of the Waitangi Tribunal, where 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.

[Ed: the bill was noted at Maori LR October 1998 p10. It was opposed by the ACT party on the basis that, since Waitangi Tribunal decisions often have highly political consequences, that could taint the High Court because a High Court judge would be associated with them. Before the select committee, the Law Society raised a separate concern that, if an action were taken in the High Court to review a decision of the Waitangi Tribunal, then there might be some perception of compromise or embarrassment for the Chairperson of the Tribunal if he were an acting High Court judge. However the Law Society thought that the calibre of Chief Judge Durie outweighed any such concern, but suggested that consideration be given to a mechanism that might minimise the prospect of conflict between the two roles. Speaking in the House, Sir Douglas Graham (Minister in charge of Treaty of Waitangi Negotiations), accepted that the possibility for embarrassment existed, but Chief Judge Durie was an excellent candidate. In the future a retired High Court judge might be considered for appointment. Georgina Te Heuheu (Associate Minister in charge of Treaty of Waitangi Negotiations), stressed that the bill recognised two principles, that expertise required to chair the Waitangi Tribunal should be expertise available to the High Court, and that the importance of the work undertaken by the tribunal should be reflected in having a High Court judge as the chair.

Chief Judge Durie was sworn in as a High Court judge on 23 October 1998. In his speech on that occasion he commented that from his upbringing he had "come to love two laws, for though they vary in procedure and jurisprudence, they are really more remarkable for what they have in common, and certainly the objectives of peace and good order are no different. It makes me think there can be no limit to the blending of cultures and law, provided we can agree on some fundamental norms, and that none of that blending need threaten the survival of the uniqueness of each."]

 

Treaty of Waitangi (Final Settlement of Claims) Bill 1998

No 232-1. Hon Derek Quigley

This bill proposed an end to the claims hearing process by 2005, and an end to settlement negotiations by 2010, along with the establishment of a Council of Race Relations to monitor separate provisions in law and policy based on ethnic difference (see Mäori LR October 1998 p10). Parliament voted against a second reading of this bill on 11 November 1998. It was opposed by National Party members on the basis that, while time limits on claim hearings and settlements are desirable, they should not be imposed by statute. Labour party members argued that the bill deprived claimants of the right to a fair hearing and putting time limits on justice. Several speakers noted that the government was already committed to settling most major historical claims by 2000 anyway.

 

Fisheries (Kaimoana Customary Fishing) Regulations 1998

1998/434. 7 December 1998

These regulations are almost an identical copy of the Fisheries (South Island Customary Fishing) Regulations 1998 already reviewed in Mäori LR 1998 p5. The regulations generally provide for:

• The appointment of persons within a tribal area who can grant authorisations to individuals to undertake customary non-commercial food gathering.

• Gazettal of "identified traditional fishing grounds" as reserves from which commercial fishing will be banned (except under certain strict conditions) and over which tangata whenua will have the power to make bylaws limiting the taking of fisheries resources, with the aim of sustainable use and management of the fishery. The bylaws must apply generally to all persons fishing in the reserve.

The differences from the South Island regulations are minor. The most significant appear to be:

• A lengthy Preamble setting out the background to the regulations, namely, the 1992 Sealords Settlement and the passage of s10 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 requiring regulations to be developed which provided for customary food gathering which was non-commercial (by contrast, the South Island regulations were associated with the Ngäi Tahu claim settlement).

• The regulations apply to all NZ fisheries waters apart from the areas already covered by the Fisheries (South Island Customary Fishing) Regulations 1998. In other words, they apply to parts of the Northern South Island, the Chathams Islands and the North Island.

• When an application is made by a group to manage their customary food gathering within their customary area, they must not only specify the area, but also advise the Minister of any words in the local dialect with meanings "equivalent to" the terms "customary food gathering", "Tangata Kaitaiki/Tiaki", "fisheries resources" or "maataitai reserve" (cl5(3) & cl9(2)(d)).

• These regulations specifically provide that persons appointed as authorising officers, or Tangata Kaitiaki/Tiaki, must not receive payment of any kind for any authorisation which they give (cl11(8)). Presumably this is assumed under the South Island regulations.

• Where an authorisation is given, it may specifically provide, apart from matters such as species, quantity etc, that the taking is in accordance with local custom or tikanga (cl11(2)).

• An allowance is made for any by-catch which is taken as an "inevitable consequence" of fish taken within the authorisation. The authorisation can include instructions for the disposal of bycatch, the authorising officer must be advised of any bycatch which is taken, and it is a defence to any offence that fish taken outside of the authorisation were the "inevitable consequence" of the fishing which occurred (cls 11(4), 38(2), 45).

• Tangata Kaitiaki/Tiaki may nominate persons to be Honorary Fisheries Officers under the Fisheries Act 1996 (cl17).

• Once an application for maataitai reserve has been received, and after the Minister and applicants have together consulted with the local community, there is to be notification to any persons with "a fishing interest in the stock or stocks" (South Island regulations provided for "persons who take fisheries resources or own quota"). In the South Island regulations there was no provision to deal with those submissions. The North Island regulations provide that the Minister is to advise the tangata whenua of the submissions and "discuss" with tangata whenua any conditions which the Minister considers may be necessary to address issues raised in submissions (cl22).

• In the South Island regulations, before gazetting a maataitai reserve the Minister must be satisfied that, among other matters, the Minister and tangata whenua can agree on conditions. In the North Island regs this is restricted to conditions to address any issues raised in submissions (cl23(1)(d)). The North Island regulations add requirements that the Minister must be satisfied that the reserve will not "unreasonably prevent" persons from commercial fishing of non-quota species for which they have a permit, and will not unreasonably prevent persons from taking non-commercial fisheries resources – this last is in addition to the requirement in both the South Island and North Island regulations that the reserve may not "unreasonably affect" the ability of the "local community" to undertake non-commercial fishing (cl23(e)).

• The South Island regulations make several references to "sustainable management" of fisheries in maataitai reserves. In the North Island regulations that phrase is replaced with "sustainable utilisation of fisheries resources" – bringing the wording in line with the Purposes and Principles (Part II) provisions of the Fisheries Act 1996.

 

Education (Te Aho Matua) Amendment Bill 1998

256-1

This Bill proposes to amend the Education Act 1989 to provide for the protection of the "special character" of Kura Kaupapa Mäori by nominating a body to draw up a statement of that special character, and by allowing Kura Kaupapa Mäori to adopt the statement and enforce it. New ss155A-C would provide that:

• The statement that sets out the approach to teaching and learning that applies to Kura Kaupapa Mäori will be known as "Te Aho Matua".

• The Minister of Mäori Affairs would identify a single national body as "the most suitable for determining the content of Te Aho Matua", which will be known as "Te kaitiaki o Te Aho Matua".

• The official version of Te Aho Matua will be a statement in the Mäori language prepared by Te kaitiaki o Te Aho Matua and published in the Gazette with an explanation in English approved by Te kaitiaki o Te Aho Matua.

• Current provisions for the designation of Kura Kaupapa Mäori will be amended so that the Minister may designate new Kura Kaupapa Mäori only if the Minister is satisfied that at least 21 parents wish a school to be established which:

• Operates in accordance with Te Aho Matua;

• Has te reo Mäori as the language of instruction;

• Has special characteristics (if any) which are specified by the parents and are consistent with Te Aho Matua that will give the school a particular character;

• Provides education of a kind not otherwise available at existing local schools.

The Bill also provides that existing Kura Kaupapa Mäori may adopt Te Aho Matua as their operating philosophy. Kura Kaupapa Mäori may refuse to enrol students whose parents do not accept that the school will operate in accordance with Te Aho Matua.

After the commencement of the Bill, new Kura Kaupapa Mäori may only be designated if they adopt Te Aho Matua. However, existing schools may continue to operate without adopting Te Aho Matua if they so choose. Mergers of existing schools with schools designated after this amendment has passed may not occur unless Te Aho Matua is adopted and principal instruction through the Mäori language maintained.

 

Other

Ngäti Awa Heads of Agreement

18 December 1998

The government and Ngäti Awa representatives have signed a Heads of Agreement for the full and final settlement of Ngäti Awa historic claims. The Heads of Agreement records that the Deed of Settlement will contain:

• A Crown apology for confiscation in the eastern Bay of Plenty and other matters

• Compensation of $42.39 million, inclusive of payments to date totalling $3.24 million. The settlement money can be received as cash or used to purchase Crown owned lands including blocks in the Rotoehu and Kaingaroa forests within the Ngäti Awa rohe.

• An offer of the Crown residual interest in Whakatane airport land

• Conservation and cultural redress including nohoanga sites, reserves, statutory acknowledgements and Deed of Recognition over Crown owned sites, protocols with Departments and access to culturally important minerals.

• Separate settlement of 4 ancillary claims, for which $1 million has been set aside.

[Ed: full details of the Heads of Agreement and/or Deed of Settlement will be reported in the Review when they become available to the public. For a discussion of the operation of nohoanga sites, statutory acknowldegments and deeds of recognition, see the commentary on the Ngäi Tahu Deed of Settlement at Mäori LR November 1997 p9.]

 

Extracts from "Treaty Negotiations In New Zealand"

Thursday, 21 January 1999. Speech by the Rt Hon Sir Douglas Graham. Minister in Charge of Treaty of Waitangi Negotiations to the Annual Conference of Australian and New Zealand Agricultural and Resource Economics Societies at the Christchurch Convention Centre

Progress with settlements

… From a geographical perspective about half of the country is now covered by settlements. We have appropriated in the budgets the necessary funding for the settlements and about half of the total has been expended - about $600m. Many of the claims filed can be amalgamated for negotiations and I estimate there will be about 10 to 12 further major negotiations still to be held and concluded. The Crown requires the tribe to establish a fully accountable structure to hold the assets following a settlement but there are no conditions placed on how the assets are to be used. That is for the tribe. To date those that have settled appear to be applying the assets, as we would have hoped ie in educational scholarships, health care, and grants to each marae for building amenities. Over time I have no doubt the tribes will regain their lost strength and there is already a new sense of purpose apparent. They now have considerable economic, and therefore political clout and the tribes are becoming major players in their respective communities.

There have been positive signs that local government are now taking their local tribes much more seriously than in the past. I expect from time to time some will make poor investments but who doesn’t? And the relationship between Mäori and the government is far more constructive than before. It has to be worked on however. The settlements are a new beginning - not something to conclude and then ignore.

Relativity between settlements

…. There is a relativity between the settlements by which I mean that the size and content of each settlement will inevitably be compared to the first settlements successfully negotiated. This means that they must be fair by comparison with those settlements in light of the nature and level of the Crown wrongdoing. There is no other way. So if one tribe seeks to reopen the settlement the government of the day would be faced with adjusting all the settlements if it were to agree, and I think that very unlikely indeed.

Shortcutting historical evidence

… in most of the land claims the same issues arise in claim after claim. It seems pointless to expect the claimants to go to the cost of proving the historical facts all over again. Delays in receiving justice at last are incurred and many professional advisors have earned large amounts of money where that is unnecessary. Moreover, as the fiscal cost of a settlement is often only a fraction of the loss suffered, endless research going into enormous detail is often superfluous. … Cabinet has agreed that the settlements process has now established a sufficient framework for negotiations to take place on all claims involving the early purchases, the confiscations or the Native Land Court transactions. As a result claimants wishing to negotiate with the Crown on these issues will no longer be required to prepare a detailed illustration of the way that each particular transaction was a breach of the Crown’s obligations. They will still need to show how the Crown’s actions or omissions caused them prejudice but I suspect for most that will not be a matter of great difficulty. My officials will shortly be communicating this decision to claimants waiting in the queue. I am confident this new development will speed up the process in a major and constructive way.

Ownership of water and waterways

… The Tribunal has considered the difficult issue of rivers, lakes and geothermal resources in a number of reports. In the Te Ika Whenua report it stated that it considered Mäori had interests akin to ownership in these rivers even though the adjacent lands had been sold many years ago and may now be in private ownership. There is no doubt these natural resources are of great cultural importance to Mäori. Some rivers represent the tribe’s ancestors. There is a natural concern when the rivers become polluted. And of course they have provided food from fishing for generations. The construction of hydro electric dams which interfere with the fish spawning cycles or otherwise impact on fishing activities create serious and valid concerns. The Tribunal also recommended that compensation was due to Mäori for the interference caused by the dams. These findings and recommendations require a Crown response and Cabinet has also carefully considered this issue. The government does not accept that Mäori have an interest akin to ownership in rivers. The water is free from ownership by anybody. Nor does the Crown own all the river or lakebeds. Where that is the case in law the owner of the adjacent land owns the riverbed to the centre of the river. The government accepts that Mäori have a special interest in these resources and any settlement where this is an issue will take that into account in a meaningful way. The Ngäi Tahu settlement provides precedents to follow here. … the Crown must retain the ability to act in the best interests of all New Zealanders at all times. Nor is the Crown prepared to pay compensation for any past interference with rivers for electricity generation purposes. It will however endeavour to look to assist with the restoration of fisheries and matters of that kind. ….

The nature of settlements in NZ

… we are convinced that once the final settlement is concluded we will be able to enhance race relations for the future generations. If we do not finish the course the future indeed is rather bleak. In New Zealand Mäori do not live on reservations as in Canada and the United States and we do not have an outback. We all live together with much interaction and intermarriage. Can we leave 15% of our population with grievances that are the burden of successive generations and can become an excuse for failure? No, we cannot. But nor can any of us, and particularly Mäori, return to what is perceived to be a rather utopian Arcadian pre European era. The challenge of the new millennium is upon us all, Mäori included, and we must together face this challenge. We are not making grants to Mäori. Rather we are returning at least some of their own property that was wrongly taken from them. They are entitled to it and justice demands it. After all Mäori are citizens with citizens’ rights. But Mäori have Treaty obligations too. They must act fairly and honestly in their dealings with the Crown and some of the more radical proposals by one or two that there should be a separate state within the state are simply unrealistic. The Treaty envisaged Mäori and non-Mäori living and sharing together – not separately. We are too small and too integrated for any notion of separatism.

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