February 1999 Contents

Mäori Land Court & Appellate Court

Succession – application of the 1993 Act

Waitangi Tribunal

New members appointed

Other Courts and Tribunals

High Court - hapü representation in settlement negotiations

Other

Turangi Deed of Settlement

Crown policy re rivers, lakes & geothermal claims

Proposed changes to Resource Management Act 1991

 

Mäori Land Court & Appellate Court

Re Tautau & Anaura Block

1998/21 Tairawhiti ACMB 18 February 1999 Deputy CJ Smith, Carter, Savage JJ

This was an appeal from a succession order, vesting shares in a Mäori incorporation in two daughters of the deceased, according to the instructions left in her will. The deceased had been left the shares by her father. His will had not provided for any distribution of the shares to his other children. The appellant, a brother of the deceased, claimed that, according to tikanga, the court should now make some provision for himself and his brothers and sisters.

Held: s100(2) Te Ture Whenua Mäori Act 1993 provides that persons dying before the 1st July 1994, leaving a will executed before 1 July 1993 (the commencement date of the 1993 Act) shall have their interests determined as if the 1993 Act had not been passed. The deceased died in March 1994, and executed her will in April 1993. Consequently, the provisions of the will must stand unaltered by the provisions of the 1993 Act. The phrase "as if the Act had not been passed" also prevents the Mäori Land Court from applying the general principles of the 1993 Act regarding tikanga and retention of land etc contained in the Preamble and ss 2 and 17.

In addition, even if the land court had jurisdiction to consider the issues raised in the appeal, there was no doubt that the daughters were entitled to succeed and no question of interpretation which would require the application of the principles in the Preamble, and ss2 and 17 arose. The appeal should be dismissed.

 

Waitangi Tribunal

New member appointments

Dr Pita Sharples: of Ngati Kahungunu descent, he is the chair of Hoani Waititi marae. He pioneered the first kura kaupapa Mäori, which was started at that marae. He is possibly best know nationally as creator of the Mäori welcome at the opening of the 1990 Commonwealth Games. He is currently a Professor of Education at Auckland University in the International Research Institute for Mäori and Indigenous Education. He is a member of the Mäori Education Commission.

Rangitihi Rangiwaiata Tahuparae: a tohunga and kaumätua who holds regular wananga (traditional teaching) in Whanganui and Wellington and has links with Taranaki, Te Arawa, Ngäti Tuwharetoa, Ngäti Maniapoto and Whanganui iwi. He is an adviser to Te Puni Kokiri, the Governor-General and the Wellington District Council. He has also trained in martial arts in China and has founded Rangataua O Aotearoa Mäori Martial Arts and Cultural Crafts Association which has 800 members in clubs in New Zealand and Australia.

 

Other courts & tribunals

Kai Tohu Tohu O Puketapu Hapü Inc v Attorney-General & Te Atiawa Iwi Authority

CP344/97. High Court Wellington. 5 February 1999. Doogue J

The Te Atiawa Iwi Authority Incorporated (TAIA) was involved in negotiations with the Minister of Treaty of Waitangi Negotiations over the settlement of claims in Taranaki. The constitution of TAIA provided for membership from the six hapü making up Te Atiawa. However, one of these hapü, the Puketapu hapü, had refused to join TAIA or give TAIA authority to represent it in negotiations. In these proceedings it sought declarations and injunctions challenging the decision of the Minister to negotiate with TAIA over the settlement of Te Atiawa claims, and challenging the power of TAIA to be involved in negotiations on its behalf.

Held: The court reviewed the sequence of events leading to the decision to commence negotiations:

• In 1995 the Minister wrote to the iwi of Taranaki, expressing a preference for dealing with iwi rather than sub-iwi groups in any settlement negotiations.

• In the same year Te Atiawa people voted to establish TAIA and voted on its draft constitution. Representatives for the Puketapu hapü were involved in the working group on the draft constitution and the proposal to incorporate.

• However, during 1995, the relationship changed, so that Puketapu hapü were not formally represented at the hui confirming the decision to incorporate, although individuals of the hapü were present.

• In November 1995 TAIA was incorporated to represent the six hapü of Te Atiawa in settlement negotiations. The Court found that, given the extent of Puketapu involvement in the formation of TAIA, it was an "inevitable inference" that the hapü did not object to being named as a member of TAIA, even if it had not subsequently participated in or recognised the authority of TAIA.

• TAIA then voted to co-ordinate its negotiation efforts with other iwi of northern Taranaki via a "Claim Progression Team" (CPT).

• In June 1996 the Waitangi Tribunal released its report on Taranaki claims and recommended negotiations for a settlement be undertaken with the main groupings of hapü. This included Te Atiawa in the northern Taranaki or Tokomaru region. (see Mäori LR June 1996 p1).

• TAIA then lodged with the minister a formal "deed of mandate" on behalf of 5 of the six hapü. The Puketapu hapü indicated that it wished to pursue a claim settlement separately. The Minister wrote to the hapü expressing his preference for dealing with iwi rather than hapü.

• In response to the TAIA deed of mandate, the minister indicated that he could not proceed with negotiations with TAIA while the split remained, but made it clear that it would be impossible for the Crown to conduct negotiations with separate hapü.

• In July 1997 the Puketapu hapü indicated that they would be prepared to negotiate as part of Te Atiawa, provided a structure for the representation of hapü within Te Atiawa was worked out which was satisfactory to the Puketapu hapü. The court noted that this was a "change in position" of the hapü.

• This change resulted in officials giving advice to the minister that he might proceed by accepting the mandate of TAIA to negotiate on behalf of all Te Atiawa hapü on condition that TAIA continue to provide for representation on behalf of the Puketapu hapü, should they wish to take it up, and keep the Puketapu hapü informed of progress with the negotiations. This was on the basis that 1) TAIA had a constitution which allowed it to adequately represent all Te Atiawa interests including even those of disaffected hapü, 2) it had significant support within the Te Atiawa community, 3) no good case had been made for keeping the interests of the Puketapu hapü separate, and 4) since more than a year had passed since the Waitangi Tribunal report, some guidance from the Crown was reasonable.

• In August 1997 the Minister advised that he would accept the TAIA mandate to act for all Te Atiawa on this conditional basis.

• In October 1997, after receiving a positive response, the minister wrote to TAIA advising that he would now negotiate the settlement via the Claims Progression Team on the basis that TAIA was the appropriate representative of Te Atiawa. This acceptance of a mandate was conditional on the constitutional provisions to include the Puketapu hapü remaining in place, Puketapu and other hapü being kept informed of progress, and the other 5 hapü continuing to support TAIA. Mediation assistance was offered to resolve internal issues.

• In late 1997 the Puketapu hapü submitted its own deed of mandate, which was rejected by the minister.

• In 1998 formal non-binding negotiations for a settlement commenced.

Counsel for the minister argued that the minister had exercised no statutory power in taking the course which he had, but rather made a policy and political decision, and that negotiations would not result in any binding arrangement on Puketapu. Even if they did, the courts would not intervene where legislation was contemplated to give effect to a settlement, as demonstrated in Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301, 309; Greensill & Ors v Tainui Mäori Trust Board (M117/95 HC Hamilton 17 May 1995 Hammond J); Te Runanga O Wharekauri Rekohu Inc v Treaty of Waitangi Fisheries Commission (CP297/95 HC Wellington 11 September 1997 McGechan J); Te Ngai Tuahuriri Runanga & Ors v Te Runanga O Ngai Tahu & AG (CP187/87 HC Christchurch 13 May 1998 Master Venning); Waitaha Taiwhenua O Waitaki v Te Runanga o Ngai Tahu (CP41/98 HC Christchurch 17 June 1998 Panckhurst J).

Counsel for TAIA likewise argued that, while actions of the incorporation were potentially reviewable under the Judicature Amendment Act 1972, it had made no statutory power of decision. The negotiations were without prejudice and non-binding until ratified by iwi, the constitution allowed TAIA to negotiate a settlement, and it did not purport to bind the Puketapu hapü, which would still have to approve the settlement. It was also argued that the other 5 hapü would be prejudiced in their negotiations if this action were to succeed.

The Court agreed that the plaintiffs had not established any statutory power of decision either in relation to the decision of the Minister or TAIA which the court could review. There was no suggestion of any statutory right in respect of claims, nor any rights at common law. Claims are considered by the Crown as part of a political and not legal process. This was shown in the cases cited by counsel for the Crown. Nor had there been any error in the process undertaken by the Minister in reaching his decision. It was a political not a legal process, and bad faith, fraud or breach of a fiduciary duty had not been argued. Nor was there any basis for a view that the minister’s approach was so flawed that no minister could reasonably have reached the decision he had. This was particularly so where the process would not even lead to an enforceable decision.

Even if jurisdiction existed, the facts did not show any problem with the process to date. This was a case where the Minister, "extremely experienced in claims of this kind", had acted entirely within his powers for proper purposes and had taken in account all relevant considerations and ignored irrelevant ones.

TAAI was entitled to enter into negotiations in a situation where it was taking no decision on behalf of the Puketapu hapü and was specifically representing the other 5 hapü only. Such action feel within its constitution. A "clear distinction" can be drawn between representing the interests of the iwi and representing the individual hapü. This is particularly so where the claims of the Puketapu hapü were of the "same general nature" as those of the other 5 hapü and the Puketapu hapü agreed that the claim could be pursued on an iwi basis. The Puketapu hapü was arguing that claims are hapü based and that, unless TAIA had the agreement of all hapü in the iwi, it could not purport to represent the whole iwi. That however confused representation of iwi interests with the settlement of individual hapü claims. TAIA would require the authority of each hapü to settle hapü claims.

"Puketapu hapü seems to think the Minister and TAIA are dictating to it to settle its claim through TAIA. The obverse side of that is that the Puketapu hapü can be seen as trying to dictate to the Minister and the other Te Atiawa hapü how the claims of the Te Atiawa hapü as a whole are to be determined. TAIA, created with Puketapu involvement, is an obvious vehicle for furthering the claims. It provides for Puketapu hapü representation and involvement. Hopefully differences between the Te Atiawa hapü can be resolved."

[Ed: the implications of this case for the approach to mandates for claim settlements are quite important. The key points appear to be 1) that decisions of the minister to accept a mandate will not in most cases be reviewable, since they will not usually involve a statutory power of decision 2) the approach of the Crown to date, insisting on iwi based settlements, and proceeding on that basis after giving groups within iwi some time to settle their differences, and ensuring that minority interests will be catered for by the majority grouping, is an approach which will be acceptable to the courts. The "clear distinction" between iwi interests and the interests of individual hapü may not be such a clear distinction in other parts of the country however, where one hapü may have historically dominated within an iwi, or several iwi groups seek to combine to achieve a claim settlement. The fluidity of iwi and hapü concepts historically is well known, and has recently been highlighted in Angela Ballara’s Iwi. The dynamics of Mäori tribal organisation c. 1769 to c. 1945.

In terms of the minister’s general approach, one is reminded of the balancing act required by the Mäori Land Court in determining disputes between shareholders, "to protect minority interests … against an oppressive majority, and to protect majority interests … against an unreasonable minority" - s17 Te Ture Whenua Mäori Act 1993.]

 

Other

Deed of Settlement between the Queen in right of NZ and Ngäti Türangitukua.

26 September 1998 (Waitangi Tribunal record Wai 84 # E26)

The background to this settlement, including the Waitangi Tribunal reports and recommendations about the taking of land at Turangi for hydro electric power developments in the 1960s, are recorded at Mäori LR October 1995 p4 and July 1998 p5.

The Crown apology

The Crown acknowledges that in the construction of the Turangi township, it failed:

• To act towards Ngäti Türangitukua (NTT) in a manner consistent with the principles of the Treaty and actively protect the interests of the hapü.

• To consult adequately over the construction and accordingly failed to accord due respect to the mana of NTT and in particular to kaumätua.

• To honour assurances and undertakings given to NTT as landowners on the basis of which they made their land available for the township.

• To protect waahi tapu, to the detriment of NTT’s spiritual and cultural wellbeing.

The Crown acknowledges these failures, and also that, although it paid compensation in accordance with statutory requirements, it did not adequately mitigate NTT’s "trauma, loss and adverse social repercussions" caused by the construction and the "rapid transition from a rural to urban community". The Crown also acknowledges the significant contribution which NTT land has made to the public benefit.

The settlement does not diminish or in any way affect the Treaty or any rights under it, or the ongoing relationship between NTT and the Crown.

Payments by the Crown

The settlement totals $5 million, made up of:

• $104,299.05 paid in September 1998; $200,000.00 to be paid within 5 days of the deed being signed; the remainder – due on the settlement date, minus the transfer values of some properties passed over under the settlement; and some interest on these amounts, also due on the settlement date.

Ngäti Türangitukua agreements

The deed and associated settlement legislation settle "NTT Claims" which are all rights and interests, arising under the Treaty, common law, statute, aboriginal title, fiduciary duties or otherwise which arise from the loss of interests in land or water any other natural resources caused by actions or omissions of the Crown under legislation between 31 January 1964 and 21 September 1992. Losses suffered by other hapü of Ngäti Tuwharetoa are excluded from the settlement.

NTT acknowledge that the Crown has acted honorably and reasonably in relation to the settlement, that the settlement is "fair, final and durable", and the settlement benefits are intended for the present and future members of NTT, ie the hapü, and not particular whanau or individuals.

NTT agree that the settlement legislation which is to be passed will declare that the settlement is final, and prevent any court or tribunal, including the Waitangi Tribunal, from considering the NTT claims, the validity of the Deed of Settlement, the adequacy of the redress provided, or the settlement legislation (apart from its implementation).

NTT agrees to appear with the Crown before the tribunal to advise it of the settlement and ask the tribunal to cancel its interim recommendations for return of land – ie seek orders under ss8B(5) and 8(B)(6) Treaty of Waitangi Act 1975.

While some provisions of the deed became binding when it was executed, the major agreements rely on the Crown introducing and passing the required settlement legislation within 12 months, or a longer agreed period.

Transfer of Properties

The Crown is to transfer properties to NTT as follows:

• Turangitukua House – title to be passed, without payment, to Ngäti Türangitukua.

• Charitable Trust (TTCT).

• Three Properties currently used by the Crown – title to be passed to TTCT for a sum determined by a previously agreed valuation method. These properties will then be leased back to the various Crown agencies involved, namely Department of Conservation, Police, and Education.

• Two Landcorp properties – title to be passed to TTCT for a sum determined by a previously agreed valuation method. Landcorp must provide all relevant information relating to valuation under a due diligence disclosure requirement.

No property is to be transferred until any offer back requirements under s40 PWA 1981 have been complied with. P4-5

Rights of first refusal

An entity known as Türangitukua Nominees Ltd (TTNL), shall execute 5 deeds of grant which give NTT a right of first refusal over:

• 13 Crown Commercial properties (currently owned by Corrections, Crown Forestry Management, Department of Conservation, Education, and Land Information NZ and the Office of Treaty Settlements);

• 35 Crown residential properties (currently owned by Corrections, Department of Conservation, Education, and Land Information NZ and the Office of Treaty Settlements and the Police);

• One ECNZ commercial property and several ECNZ residential properties

• One NZ Post property;

• 45 Housing NZ properties.

The Deeds of Grant require the owner of the properties to notify TTNL when they wish to sell the property, making an offer to sell specifying the price, and give TTNL a period in which to determine whether to buy the property. If the offer is refused, the property must be sold at the price stated in the offer to NTT. This right of first refusal is however in each case subject to any prior offer back requirements under s40 PWA 1981.

Protocols

NTT and the Crown are to agree and issue two protocols which deal with the way in which LINZ manages its s40 PWA offer back process, and how the Department of Conservation deals with matters around the Turangi township.

The protocol with LINZ provides that, where records indicate that land was acquired from members of NTT hapü, the NTT Mäori Committee will be contacted and provide advice on any other persons who should be approached about the offer back, whether and where a meeting of potential offerees should be called, the names of persons or organisations who might be suitable trustees or representatives to deal with the statutory right of repurchase or any applications which might be required to the land court to determine the identity of former owners.

Where LINZ has identified the former owners and makes an offer back, it is deciding whether former Mäori freehold land should be revested as Mäori freehold land (s41 PWA 1981), it agrees under the protocol to take into account as a relevant factor the wishes of the offeree.

The protocol with the Department of Conservation provides that the department will:

• Give NTT an opportunity to review the Tongariro/Taupo Conservation Management Strategy, which is being undertaken with Ngäti Tuwharetoa.

• Meet quarterly with the NTT Environment Committee and annually at Hirangi marae, to discuss issues of concern and review the performance of the department.

• Consult with the committee over various specified management plans, and identify departmental landholdings – to allow the committee to identify NTT cultural interests in those areas.

• Consult over visitor information and where practicable incorporate NTT approved names for places and flora and fauna in departmental signs and visitor information.

• Give written notice to NTT of any concessions which the department proposes to issue, and ensure concessionaires are informed of NTT values and concerns.

• Provide NTT with access to "cultural materials" (plants, feathers, furs etc) consistent with legislation and advise the hapü of any materials which become available as a result of track maintenance, culling etc.

• Advise NTT of any resource consents which the department may be seeking which affect the interests identified by the environment committee.

• Train its staff in the protocol, and consider the environment committee as a possible provider of consultancy services, including information or training.

A monitoring process will be established to ensure that the protocol is implemented and the outcomes sought are achieved.

Non-commercial assets

The deed states that a number of reserves in Turangi are to have their status as reserves revoked and the land vested in Ngäti Türangitukua Charitable Trust (TTCT):

Three reserves at Kutai St;

• Two recreation reserves vested in the Crown, managed by the district council;

• Various reserves vested in the district council for recreation and waterworks, some of which were granted to the council by the Crown, but others whose title does not derive form the Crown.

The Crown reserves and district council reserves will be managed by the council under s38(1) Reserves Act 1977. The assets on those reserves (utilities, buildings etc) will not pass to NTT, and will be maintained and improved at the discretion of the district council. Rights of public access will also remain undisturbed on those reserves.

Ancillary claims

The deed also sets out a process for dealing with 38 minor claims which came to light during the hearing of the Turangi Township Claim, which concern particular properties which were diminished in value of otherwise directly affected by the Tongariro hydro electric power scheme. A separate deed of settlement for these claims will be drafted which will provide that the Crown and claimants in each claim will either agree whether there is some liability, or have that issue settled by arbitration. Parties will bear their own costs if arbitration is required.

Miscellaneous

The deed provides for several matters over which the Crown has no direct control:

• Changing names of some streets in Turangi Township. The deed simply notes a letter of the local community board agreeing to set up a meeting to give the issue serious consideration. The Crown will however, change the name of one reserve under its control.

• Waahi tapu: the deed notes a letter from the district council promising assistance in preserving and providing access to waahi tapu sites and other matters, including suggestions that all planning issues concerning Mäori freehold land be delegated to Mäori, and where any development proposal affects local Mäori, they may nominate one of the commissioners who sits to hear the application for a resource consent.

• Regional resource management issues: the deed notes a letter from the regional council inviting discussions on particular environmental issues of concern.

To give these last two promises some ‘teeth’, the deed also notes that Ministry for the Environment will report annually on the performance of the regional and district councils on the promises made in the deed in as far as they fall under the statutory requirement for councils to have regard to the Treaty in resource management. In addition, the Ministry will seek feedback from NTT on the progress being made with the councils, and on environmental issues generally.

[Ed: this settlement, which is the first to be reached in a situation where final binding recommendations of the Waitangi Tribunal were pending, involves several interesting features. While many of the properties may not be returned to the claimants until the s40 offer back procedure has been gone through, the protocol with LINZ means that the claimants will be active participants in the offer back process for many of the properties. The protocol suggests a standard procedure which might be adopted in any case involving an offer back of former Mäori freehold land. The Waitangi Tribunal has on numerous occasions criticised the offer back procedures of the PWA 1981 as they affect Mäori land, and called for their amendment, most recently in the Turangi Township Report 1995 (see Mäori LR October 1995 p4). This protocol could be the template for such amendments and reforms.

It is also interesting to note that the settlement directly involves assets held by the district council, both reserves granted by the Crown, and reserves which the council acquired privately.

Finally, the way in which the settlement enforces obligations on the district and regional councils is worthy of note. The intent of the councils is simply noted in the deed, but the Ministry for the Environment undertakes to use its monitoring powers to ensure that the councils at least follow up on their promises to seriously discuss with NTT resource management issues and changes to current practice.]

 

Extract from letter of the Director of the Office of Treaty Settlements to claimants

4 February 1999

"Most historical research claims involve one or more of the following types of land loss:

i. purchases before 1865

ii. confiscation; and

iii. Native Land Court transactions.

Over the last eight years a great deal of historical research has been done by claimants, the Crown and the Waitangi Tribunal into these three types of claim. In particular, the Waitangi Tribunal’s Ngai Tahu and Muriwhenua reports dealt with early purchases, the Taranaki report addressed confiscation and the Rangahaua Whanui National Overview Report prepared by Professor Alan Ward summarised research on Native Land Court transactions.

As a result of all this research, the Government now has a good understanding of the types of claim in every area of the country and the amount of land that was lost.

The Government acknowledges that the confiscation of land was in breach of the Treaty of Waitangi. The Government now also acknowledges that in many cases the Crown breached the Treaty when it purchased Mäori land between 1840 and 1865, and that in many cases the operation of the Native Land Court after 1865 constituted a Treaty breach.

The main effect of this decision is that negotiations can begin immediately on claims which fall into these three categories, if claimants wish. Claimants will still have to show how they were hurt or damaged as a result of Crown action, but for most claimants, this will be relatively easy.

However, the Government does not accept that the same amount of redress should be available for each category of claim. It is of the view that the seriousness of each breach is different. But that is a matter for negotiation.

The Crown continues to have a strong preference for negotiating at the iwi level and to negotiate all the claims of an iwi at the same time. Iwi level negotiations mean that both sides save on the time and cost of negotiating piecemeal settlements. They allow the Crown and claimants to develop a total redress package of significant size and scope. Iwi level negotiations also help to manage overlapping or cross claim interests. It is possible to deal with special hapü or whanau interests within iwi level negotiations. This was done with the Ngäti Tahu settlement.

There is also no change to the Crown’s policy on mandating for negotiations. Before negotiations can begin, the negotiators must have a mandate from the groups whose claims are to be settled, and the Crown must be satisfied that the mandate is secure. This is a different process from gaining a mandate to submit a claim to the Waitangi Tribunal. …

Rivers, lakes and geothermal resources

The Government has also made a policy decision that relates to the complex issues surrounding claims to rivers, lakes and geothermal resources. …

The Government recognises the special importance of rivers, lakes and the geothermal resource to Mäori. …. The Government wishes to recognise these interests in settlements. Recent settlements provide examples of the types of redress that the Crown considers appropriate to recognise Mäori interests. These include:

i. some Crown owned beds have been returned;

ii. steps have been taken to ensure local iwi are consulted and involved in management of the rivers;

iii. Mäori have been given more involvement in the management of fish and plants supported by rivers; and

iv. Mäori have been provided with greater access to the resources of a river through nohoanga reserves.

There may be other ways to recognise these interests. However, the Crown must retain the ability to act in the interests of all New Zealanders. It does not accept that Mäori own rivers, as water is free from ownership by anyone. Nor will the Government pay compensation for hydro electricity generation."

[Ed: Cabinet papers associated with this policy state that "There is some uncertainty as to whether Mäori could successfully assert claims based on aboriginal title to rivers and lakes. The issue remains a live one. There is currently an application before the Mäori Land Court for a declaration that a stretch of the Waikato River bed between Hamilton and Taupo is held in customary title. The issues have some similarity to those being argued in the Malborough Sounds litigation. …. The Crown Law Office is of the view that within the New Zealand context, the combination of the natural resources legislation, substantial Mäori land alienation and the inability of Mäori to be able to establish no adverse dominion, means that it is unlikely that there could be successful Mäori claims to rivers and lakes based on aboriginal title" (CAB (98) M47/36).

The papers go on to set out the principles developed and applied in the negotiations for redress Ngai Tahu, namely:

• Redress must be a meaningful reflection of the relationship of the claimants with the site.

• It must not "place the Crown in a position of uncertainty or result in a loss of control over its functions or powers" and therefore should not provide iwi with veto powers or have the effect of "substantially fettering" decision making powers, nor should it "enhance the ability of an iwi to claim aboriginal title, customary rights, or other common law rights". It should be certain in its effect and "define the scope and limits of Crown obligations that flow from any recognition of cultural values."

• Redress must have "minimal impact" on public and commercial access and rights. The ability to influence public behaviour must remain with the Crown.

• Redress must not intrude on powers and functions of local government.

• The Crown will not provide redress over things it does not own.

Rivers and lakes

On this basis, The Crown is prepared to consider as redress for river and lakes claims:

• Statutory acknowledgments over rivers and lakes and deeds of recognition or protocols over Crown owned/managed riverbeds and lakebeds.

• Recognition of the interests in species that are supported by rivers and lakes through protocols, statutory acknowledgments and statutory advisory roles to the relevant Minister of the Crown.

• Improved access for the lawful customary gathering of fish and other natural resources through the provision of nohoanga entitlements on Crown land set back from marginal strips.

• In some "exceptional circumstances", transfer of the fee simple title in Crown owned river and lakebeds that are particularly significant to claimants, subject to existing encumbrances and lawful rights and uses (the bed of the Arahura river and Te Waihora (Lake Ellesmere) to Ngai Tahu are cited as examples). Such transfers are however complex transactions because of the number of constraints on the title to allow third party rights to continue, which also creates practical difficulties in the transfer.

The Crown will seek to avoid redress which creates uncertainty over the rights of claimants or the rights of other recreational or commercial users where that would compromise the Crown’s ability to "protect important conservation interests, or rights of central and local government to regulate, allocate and manage the use of water in lakes or rivers."

Geothermal resources

The redress available will be:

• Statutory acknowledgment and deed of recognition or topuni-type instruments over Crown land containing geothermal sites.

• Transfer of title of Crown owned land containing spiritually significant geothermal sites. This will give Mäori access to the geothermal resources, subject to the requirements of the Resource management Act 1991

• Provision for access over Crown land to geothermal sites for customary use.

Again, redress which creates uncertainty will be avoided.

Te Puni Kokiri is to convene a group to report on an issue which it has raised, that the principles to guide redress "may not … be sufficient to manage claimant expectations that redress will give effect to, or provide for, or restore their tino rangatiratanga over rivers, lakes, water or geothermal resources" and that the redress options "may not be sufficient for those claims where dominion over rivers and lakes have formed a large part of the claimants historical experience." TPK are also concerned that the current management regime for natural resources may not provide sufficient flexibility for redress, including the ability of claimants to directly participate in the management of resources. Options for self-management and regulation of resources by iwi are to be examined (a report to be completed by the end of January 1990).

It is clear from these papers that the Crown is not ruling out the return of the legal title to parts of river beds in some cases. It has however ruled out any compensation for the use of rivers for hydro electric purposes. On this score, the government can rest on the statement of the Court of Appeal in Te Runanganui o Te Ika Whenua [1994] 2 NZLR 20, 24 that, "however liberally Mäori customary title and treaty rights may be construed, one cannot think that they were ever conceived as including the right to generate electricity by harnessing water power." Although the report of the Waitangi Tribunal on the Te Ika Whenua claim attempted to sidestep or "read-down" that judgment (see Mäori LR September 1998 p5), the Crown Law Office has advised the government that the tribunal’s analysis of Te Ika Whenua’s development rights "is plainly inconsistent" with the Court of Appeal judgment (Cabinet papers STR(98) 298 1 December 1998).

But the law is less clear on whether there might be other legal rights in rivers arising from aboriginal title which might require compensation and/or recognition. In adopting the general rivers policy which it has, the Crown may be concerned about comments in the Ika Whenua case suggesting that the courts might listen to an argument that a river is a taonaga or treasure which is to be viewed as a "whole and indivisible entity" ([1994] 2 NZLR 20, 26). This raises the spectre of a ‘holistic’ river claim which might upset the existing statutory regime for resource management. The Whanganui River claim is due to be reported by the Waitangi Tribunal this year. In closing submissions for that claim, counsel for the claimants, Sian Elias (now Judge Elias), made the suggestion that the holistic way in which the claimants viewed the river might be recognised by giving the river itself a legal personality which would have rights and could sue to uphold them.

The government approach also does not allow for alternative methods of recognising mana and rangatiratanga such as those used for some significant sites in Australia (eg Kakadu Park, Uluru (Ayers Rock), where the indigenous group have ownership of the land, lease it back to the Crown for 99 years, and manage it jointly with the government, while retaining a right of veto in that management. Management plans must however, be laid before Parliament for any comments and debate before being finalised.]

 

Review of the Resource Management Act 1991

Report of the Minister for the Environment’s Reference Group September 1998

In the reference group report the issue of "iwi consultation" was discussed. The basic concern being that: "A number of development proposals have been characterised by lengthy and costly delays, brought about by protracted debate and/or litigation in respect of tangata whenua concerns, aspirations, mandate to represent iwi and issues relating to the scale and timing of consultation." Various amendments are therefore suggested in dealing with the "overarching" requirements to have regard to Mäori interests in planning and in the issuing of resource consents. These requirements are contained in:

• S6(e): the relationship of Mäori with ancestral lands and waters is a matter of "national importance".

• S7(a) and 7(aa): kaitiakitanga or Mäori guardianship of resources in an area is a matter to have "particular regard" to.

• S8: all persons exercising powers under the Act are to "take into account" the principles of the Treaty of Waitangi.

The report suggests that there should be a clear distinction between duties owed to Mäori by consent authorities and those owed by landowners and resource users.

The report rejects the following options:

• Do nothing.

• Remove sections 6(e), 7(a) and (aa), and 8 entirely.

• Limit the scope of section 8 to exclude consideration of Treaty or ownership issues.

• The report identifies the following options for further investigation:

• Combine sections 6, 7 and 8 into "matters to have regard to" – this would place all Mäori concerns within a common set of concerns, and a not give Mäori concerns an elevated status (as they current receive in 6(e) and 8).

• Remove sections 6(e), 7(a) and (aa) from Part II and add them to section 104: this would mean that, in considering an application for a resource consent, the relationship of Mäori and their culture and traditions with their ancestral lands, waters, sites, waahi tapu and other taonga, would be weighed alongside other effects on the environment, and not be given the elevated status that is currently afforded them by Part II.

• Limit the scope of section 6(e) to sites and resources owned by Mäori and the Crown and address private land in general heritage provisions: this would in effect reverse the decision in RFBPS v Habgood Ltd (1987) 12 NZTPA 76 (HC) and EDS v Mangonui CC [1989] 13 NZTPA 197 (CA) where it was held that "ancestral land" is not confined to land currently held in ownership by Mäori, but includes other land that has been owned by ancestors where there is some factor or connection with the culture and traditions of the Mäori and the land in question. A development proposed by a private property owner would not be subject to recognising and providing for Mäori land and taonga as a matter of national importance, but the applicant would still be required to consider Mäori issues generally in their Assessment of Environmental Effects, given the wide definitions of "effect" and "environment". Mäori heritage sites located on private property could be dealt with by giving them similar status to other "heritage" sites within a district.

• Remove sections 6(e), 7(a) and (aa), and 8 from Part II and include them as mandatory requirements of plans and policy statements:

• Establish a representation procedure for iwi: "There may be the ability to establish an iwi representation mechanism to aid identification of the appropriate party to consult with, and for this to be established within policy and plan documents."

• Establish a limited notification procedure.

• Require the preparation of iwi management plans: "The preparation of mandatory iwi management plans by District and/or Regional Councils, in partnership with iwi, could be a useful mechanism by which certainty could be added to the resource consent process to the benefit of developers and Mäori alike."

• Limit the use of section 92 notices: regional and territorial authorities often use section 92 to require further information from applicants on the consultation undertaken with tangata whenua. It is suggested that this goes beyond what was intended by s92 and is a practice which should be stopped.

• National policy statement: to clarify and improve the tangata whenua provisions within the RMA. The other report recommends their greater use and a streamlined process.

• Changes in the Constituency of local authorities: establishing a Mäori constituency, that would allow Mäori to vote for representatives on regional and district councils. The report notes arguments for and against this approach.

[Ed: The report on the Proposals for Amendment to the Resource Management Act (Ministry for the Environment Nov 1998 p9) states: "An assessment of the Treaty of Waitangi implications of the proposals is being undertaken. Mäori organisations and Mäori with expertise in local government and resource management are being asked specifically to comment ..." There are currently no proposals to amend ss6(e), 7(a) & 8 directly, but they would be affected, for eg, by the proposal to remove any direct consideration of Part II requirements when assessing applications for resource consents. This makes recent comments by K Chanwai and Dr B Richardson, that the RMA requires an amendment to provide a stronger mandate for the incorporation of iwi plans in councils plans and policies, very pertinent ("Iwi Management Plans and the Resource Management Act" (1999) 3 BRMB 3). It is also unclear how the proposals might impact on existing and future claim settlements, especially where claimants have reached settlements on the basis that the existing regime, which gives priority to Maori interests, will remain substantially intact. See for eg, the Turangi Settlement deed (above).]

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