March 1999 Contents

Mäori Land Court & Appellate Court

Application to terminate trust – notice required

Waitangi Tribunal

Radio Frequencies interim report

Whanganui River cross claim

Other Courts and Tribunals

Privy Council – Public Works Act offer back requirements

Environment Court – Mäori protocols

Environment Court – standing for Mäori

Parliament

Security Intelligence Amendment

 

Mäori Land Court & Appellate Court

Town of Hokio Land Blocks

13 Aotea ACMB 358. 12 November 1998. Spencer, Savage, Carter JJ

A meeting of beneficial owners of a land trust unanimously resolved to terminate the trust and constitute a new trust. Various applications were made to the land court from one of the beneficial owners seeking to remove the trustees. In the course of a preliminary hearing dealing with an injunction application, the land court purported to terminate the existing trust and constitute a new trust.

When the matter was appealed to the Appellate Court it indicated in a memorandum to parties that it considered that there had been a breach of natural justice and Rule 11 Mäori Land Court Rules 1994 in the failure to give notice before reaching a determination, and suggested that the matter go back to the land court for rehearing. However, the original applicant before the land court who had sought the orders terminating the trust, argued that there had not been a failure of notice and breach of natural justice because, among other matters:

• The trustees would have understood that the injunction hearing could deal with the termination of the trust even if they did not receive written notice of that;

• The land court can act of its own motion at any time and take the action it did;

• The termination of a trust is different from removal of trustees in that in the case of a termination the former trustees are no longer relevant to the new trust.

Held: if the land court acts of its own motion it must do under s37(3) Te Ture Whenua Mäori Act 1993, which requires it to act on such terms as to notice to parties as it thinks fit. The Mäori Appellate Court and High Court have consistently held that when it exercises this jurisdiction the land court must give notice to persons affected. Notice cannot be presumed, but must be proper notice.

An application before the court must state the specific provisions under which a remedy is sought. The land court cannot presume that an application can encompass all matters in relation to the land and that it may exercise any of its powers without further notice. Trustees must receive formal notice of applications vitally affecting them as legal owners of the land.

In a case such as this there would be specific notice to the trustees and notice in the Court paanui to beneficiaries (907 of them in this case). It is absolutely fundamental that before an order is made any party with an interest is given the opportunity to appear in opposition or support. There are many reasons why people might wish to appear – to challenge the procedures adopted at the meeting, or the validity of the resolution etc. The resolution of the meeting itself could not be relied upon.

 

Waitangi Tribunal

Radio Spectrum Management and Development Interim Report

Wai 776. 26 March 1999. Savage J (presiding officer), JM Anderson, Prof MPK Sorrenson

This was an interim report made after an urgent hearing on a Crown proposal to auction 35 management rights for 20 years over part of the spectrum useful for telecommunications and narrow casting, but not for broadcasting. The claim was made on the basis that Article 2 of the Treaty of Waitangi intended that Mäori had 1) a right to a fair and equitable share in the radio spectrum resource and 2) a right to a fair and equitable share in the spectrum where the Crown has an obligation to promote and protect Mäori language and culture. The claimants argued that some prior consultation and agreement with them was required before the management rights were auctioned. The tribunal was invited to report on whether the claimants had a prima facie case, and make provisional findings accordingly.

Majority determination – JM Anderson, Professor MPK Sorrenson

The principles outlined in the earlier report of the Waitangi Tribunal on radio frequencies (Report on Claims Concerning the Allocation of Radio Frequencies 1990), which dealt with a similar contested sale of frequencies, could be applied to this case. In that report the tribunal found that the principle of partnership, based on the discussion of the Crown-Mäori relation ship in NZ Mäori Council v AG [1987] 1 NZLR 641, meant that the Crown did not have unfettered legislative supremacy over resources. Similarly, Mäori had interests in access to the resource greater than those of the general public, especially where culture and language were at stake.

The Treaty is a living document (Motunui –Waitara Report 1983 p52) and Treaty principles should be interpreted to meet developing circumstances (Te Runanga o Muriwhenua Inc v AG [1990] 2 NZLR 641). This is especially so in relation to development rights arising from the Treaty (Te Ika Whenua Rivers Report 1998 p120). Development rights to fisheries have been recognised in tribunal reports on the Muriwhenua and Ngäi Tahu fisheries claims. Under Article 2, "taonga" or "other properties" can include language. The Crown and courts have been reluctant to concede a Mäori right of possession or development in properties unknown or little used in 1840. Yet when gold was discovered on Mäori land the government found it necessary to negotiate the opening of the goldfields with Mäori and they received mining licence fees. Mäori protested the passing of the Petroleum Act 1937 which declared petroleum to be the property of the Crown. So Mäori claims to properties unspecified in the Treaty are not new. In Tainui Mäori Trust Board v AG [1989] 2 NZLR 513 at 527) a possible claim by Tainui to interests in coal was noted. Rights in the ownership and development of geothermal energy have been noted by the tribunal in its Ngawha and Te Arawa geothermal reports. The comment of the Court of Appeal in Te Runanganui o Te Ika Whenua Inc v AG [1994] 2 NZLR 20 at 24 that Mäori could not enjoy a right driving from the common law or the Treaty to generate electricity from water power is "somewhat anomalous" in light of these other references. That court did recognise some rights in rivers for Mäori however. The tribunal in its Te Ika Whenua Rivers Report 1998 (p135) found that there should have been compensation for the loss of water power. Like the tribunal in that case, in this case the tribunal must take note of but is not bound by the Court of Appeal judgment since the tribunal in exercising its functions has "exclusive authority" to "determine the meaning and effect of the two texts of the Treaty" (s5(2) Treaty of Waitangi Act 1975).

The partnership principle required the parties to act in utmost good faith towards each other was breached where the Crown aggregated to itself the entire radio spectrum resource through the Radiocommunications Act and then proceeded to alienate portions of it without consultation. This gave rise to the earlier report on radio frequencies, and had provoked the claim in this case.

Other Treaty principles involved were:

• A fiduciary responsibility of the Crown (from the Preamble and Article 3) to provide protection to Mäori, and including a principle of mutual benefit – that Mäori would be benefit by access to new technologies in order to share in the benefits of settlement (spelled out in the Muriwhenua Fishing Report 1988 p195).

• The principle that kawanatanga or governance must be tempered by respect of tino rangatiratanga – requiring that the Crown negotiate at an early stage over a fair and equitable share for Mäori. The evidence showed that there had been limited communication from the Crown, which had attempted to restrict discussions to broadcasting and language issues.

A prima facie case had been made out. Consequently, the tribunal recommended that the Crown suspend the auction (planned for 29 March 1999) and negotiate with Mäori over a fair and equitable share of the rights before the auction. The claimants should arrange to undertake such negotiations in conjunction with a credible national Mäori authority. If agreement could not be reached, the claim should be returned to the tribunal for a substantive hearing and further recommendations.

Minority opinion – Judge PJ Savage

The first limb of the claim – that Mäori have a right to a fair and equitable share in the radio spectrum resource – had not been proved as well founded to a prima facie level.

The tribunal should be wary of ascribing ownership rights to either Treaty partner unless they fall within Article 2. The radio waves involved in this case could not be generated or received without technology. The claimants basic argument under this part of the claim was that if a resource exists, and the Crown is purporting to regulate it, Mäori ought to receive a share. The radio spectrum was said to be part of the "kainga" referred to in "o ratou kainga" or part of "me o ratou taonga katoa" in Article 2. The "kainga" was said to involve a spiritual construct between papatuanuku and ranginui (earth and sky). It was unquestionably right that all creation has a Mäori dimension "but it strains Treaty principles to the point of injury" to take that further and say that Treaty rights arise in that way. If the kainga referred to in Article 2 is the spiritual concept described, then it is an assertion of tino rangatiratanga over all creation. It would be odd to think that such a concept sits between a reference to whenua and taonga in Article 2. It leaves little room for the legitimate exercise of kawanataga and is not in accord with well-known translations of "kainga" by Sir Hugh Kawharu.

In one sense the radio spectrum is a taonga. The spectrum is not an entity but a description of a method of describing the electromagnetic spectrum. It is an intellectual construct.

The tribunal dealt with this issue in its 1990 report on radio frequencies by commenting that there was a hierarchy of interests in the spectrum resource, beginning with management in the wider public interest, followed by the Mäori interest then commercial and recreational interests. That tribunal also found that the radio spectrum was an "in-between" resource since neither Treaty party knew of it in 1840. That "in-between" status meant that Mäori were entitled to access to the resource as of right, beyond a general public access, and that right was only in part because the resource was so intimately bound up with language and culture.

That report focused however on protection of Mäori language, comments beyond that could be regarded as obiter, and it would be "beyond belief" to think that the tribunal in that short report intended to state a principle of wide and dramatic consequence. It would support claims to the light from stars or to the air we breath.

In any event, it could not be assumed that a prior tribunal or this one could limit the approach of a subsequent tribunal. The Treaty and Treaty principles cannot be locked into any particular time slot, any more than the Crown can hold Mäori to the Treaty compact as at 1840. Material before a latter tribunal might also be different from that before an earlier one. And no party is in any way estopped by earlier reports.

The 1990 report found that the radio spectrum is a taonga. Evidence in this case suggested it would be better to say that the capacity to generate and receive radio waves is a taonga. However, the Treaty refers to "o ratou taonga katoa". "Ratou" implies possession, so that the Treaty means that the taonga of Mäori is reserved to them. "The Treaty and Treaty principles do not state that the taonga of mankind is reserved to Mäori to the level of an appropriate share" – that is the province of Article 3 and citizenship.

As for development rights under the Treaty, they are a right to develop a right (eg an extension of inshore fishing to offshore fishing) not a bare right to develop. The latter is more a matter of social conscience, equity, politics and Article 3 and not the province of the tribunal.

The claimants argument was also in direct conflict with the Court of Appeal comment in Te Runanganui O Te Ika Whenua Inc that Mäori have no development rights in matters such as hydro electric power generation. Even in Ngäi Tahu Mäori Trust Board v DG of Conservation [1995] 3 NZLR 553 the Mäori interest in whale watching which was "akin to taonga" and was recognised there was linked back to fisheries.

The Crown did examine a number of reports from the tribunal and a report commissioned by Te Puni Kökiri on Mäori views on this issue before deciding on an auction. The duty to consult will wax and wane with the subject matter. The Crown in this case felt that the sale would not have Treaty implications given the type of spectrum involved. There were some Treaty implications but, on balance, what was done by the Crown was just adequate.

The second limb of the claim – that Mäori have a right to a fair and equitable share in the radio spectrum resource especially where there is a Crown obligation to protect and promote Mäori language and culture – had also not been proved to a prima facie level as well founded.

The limited evidence put before the urgent hearing was clear that content and not ownership or management were crucial matters in the promotion of language and culture through the use of the spectrum resource. The spectrum rights involved did not involve broadcasting, and their actual use and future development was a matter of speculation. The management rights were granted for a reasonably short time span (20 years), allowing both Treaty partners to reconsider their position in the future.

Further, the Crown currently met its obligations towards Mäori language in broadcasting through a number of other methods, namely, reserving various frequencies useful for radio and television broadcasting, and providing sums to develop Mäori broadcasting (over $30 million per annum, plus a one-off $11.3 million to establish a Mäori television channel). No evidence was received from experts in language education to contradict the Crown belief that it was honestly discharging its obligations to protect and foster the language.

There is a bill before Parliament which appears to relegate the promotion of culture by the Mäori broadcasting funding agency (Te Mangai Paho) to a position ancillary to the promotion of the language – but that was not the focus of this claim.

[Ed: although brief, this is a significant report for the Waitangi Tribunal and represents only the second time that the tribunal has split in a report (the first time was the Waiheke Island Report 1987). Judge Savage noted an additional sadness that the split should occur in a tribunal that is the first which has been constituted solely of members of Mäori descent. Apart from the split, the report is significant because of comments about the weight to be given to earlier tribunal reports by later sittings of the tribunal, and because of the sharp contrast between the minority and majority on a central issue of Treaty interpretation – how far do Treaty principles apply to the property and intellectual interests which are a peculiar creation of this century and which Mäori are vitally interested in and/or see as important to secure or safeguard their economic and social well being in the future?

In a covering note to the Minister of Mäori Affairs, the members note that they are at the "outer limits of Treaty jurisprudence as presently perceived" and that this and the lack of time has possibly contributed to the split decision. The tribunal also suggests it may be a healthy sign that such disagreement should exist.

In light of this interim report, the Crown has deferred the auction of the frequencies for 3 months and is seeking an urgent substantive hearing of the claim by the Waitangi Tribunal within that time (press release of Communications Minister M Williamson 26 March 1999).]

 

Whanganui River claims of Atihaunui and Tamahaki

Wai 167 & Wai 555. 25 March 1999. Chief Judge Durie

The Tamahaki people have traditionally had interests along the upper reaches of the Whanganui River. In 1995 they lodged a claim with the Waitangi Tribunal about their lands along the banks of the river, and also raised the issue of their interests in the part of the river which fell within their "rohe" – a term which the tribunal observed "has become popular recently to indicate the supposed boundaries of a tribal domain."

The claimants subsequently made it clear that they were making a claim to the river itself separate from other Whanganui river claimants. In 1997 they formally asked the tribunal to refrain from making findings in respect of that part of the river which they claim as theirs. In these proceedings, the tribunal considered that request and a request for their claim to be urgently heard and for research assistance.

Held: although the tribunal preferred to hear the claims of Whanganui people to the land and river together, in 1994 it agreed to an urgent hearing on the river because the Royal Forest and Bird Protection Society had applied to the Minister for the Environment for a Water Conservation Order to be placed over the river. From March to July 1994 the tribunal heard the Wai 167 Atihaunui claim which was filed on behalf of three named ancestors, said to represent all the hapü of the Whanganui River. It was lodged under the auspices of the Whanganui River Mäori Trust Board, a statutory body constituted under the Whanganui River Trust Board Act 1988 and Mäori Trust Boards Act 1955 with authority to represent and negotiate on behalf of all hapü and all Mäori of the Whanganui River.

The Tamahaki people had originally agreed to be represented by the Wai 167 claimants and the trust board, but became concerned that their interests would not be adequately represented because their ancestor, Tamahaki, was not one of the three ancestors named in the Wai 167 claim. They notified the tribunal that they wished to be independently heard at the Wai 167 hearing, and that request was granted. However a separate claim, Wai 555, was not filed for over a year after the hearing.

The tribunal chose to treat this application essentially as one to reopen the hearing on the river claim. The tribunal found that the application should be declined on the basis that, among other matters:

• Public notice of the Wai 167 hearings had been given and six hearings held at which the Tamahaki people were present and made separate submissions. They were the only group to seek an opportunity to make separate submissions. Tamahaki witnesses were cross examined.

• Tamahaki had not sought an adjournment or further time to prepare during the hearings.

• Apart from the Tamahaki people, the Crown itself had made an issue of the Tamahaki evidence, arguing that it threw into doubt on the claim of the Whanganui River people in this and earlier litigation that the river was a single entity under 3 ancestors.

• There was also evidence and cross examination of Tamahaki witnesses and others on whether the Whanganui River Trust Board represented Tamahaki as beneficiaries.

• The Tamahaki request for a separate hearing was received 3 years after hearings had closed, presenting practical difficulties in terms of tribunal resources and members.

Further inquiries and hearings may be appropriate at any time before a claim is reported, for example where "crucial material is found while auditing historical and title evidence", but in this case there was nothing new in the Tamahaki application.

It would not make sense for the tribunal to refrain from reporting on that part of the river which the Tamahaki claimants claimed was owned by their ancestor, since it was pivotal to the case of the Wai 167 claimants that their river is owned by the hapü of Whanganui as a single entity under 3 ancestors. Also, "it could be that the customary issue is resolveable without reference to the relationship between the various ancestors at all. It could be that they were merely symbolic." In any event, the tribunal would need to address the issue in order to report sensibly on the Wai 167 claim.

In general, the tribunal noted that:

"… numerous hapü, or iwi as many now call themselves, are invariably locked in what is often bitter rancour over their respective rights and interests when claims are heard. Hapü rights were considerably distorted last century when the Native Land Court substituted tribal with individual ownership. The long-standing disputes that followed, which were thought once to have died, resurfaced, or new disputes were made up when, whether because of government funding of services through tribes or because of the historic Treaty claims process, tribes were once more recognised. Invariably the associated disputes continue after claim hearings, after claim reports and even after claim settlements, as the Tribunal is only too well aware.

To deal with this problem the Tribunal does not simply hear the claim of a particular group in any one locality, but on investigating one claim will investigate others in that district that are also relevant to the claim in question, and will also hear any Mäori groups or individuals that may claim an interest, on any aspect of the claim, and whether or not they have filed a claim themselves. But there must come a point at which the hearings must terminate.

If necessary for the purposes of the claim, the various rights, interests and relationships of the respective hapü will be addressed in the Tribunal’s eventual report after any relevant material has been checked. It is not usually sensible to make determinations of hapü rights along the way as at the end it may prove that that was unnecessary. Everything depends on the circumstances of the particular case but generally such determinations are required only if the claim itself is eventually upheld and even then, only if the remedy proposed so requires. To hold otherwise would involve the Tribunal in expressing a view on a host of disputes in which it should not be involved except for some good reason. The Tribunal will not allow itself to be used as a vehicle to settle internal tribal disputes and will express a view only if that is necessary to make findings and recommendations on a claim."

[Ed: from Hansard 4 March 1994:

Rana Waitai (Independent—Te Puku o te Whenua) to the Minister in charge of Treaty of Waitangi Negotiations: Given that the Pakaitore occupation was reportedly sparked by the Minister’s comments, that "The Government does not accept that Mäori have an interest akin to ownership in rivers.", is it the Government’s intention to regard the Whanganui River claim as invalid; if so, why?

Rt Hon. Sir Douglas Graham (Minister in charge of Treaty of Waitangi Negotiations): No. The Government acknowledges that rivers have a special importance to Mäori. How that can be recognised is the subject of negotiations.

Rana Waitai: Is the Minister aware that the claims to the Whanganui River are the longest-running claims in New Zealand history, and that the Whanganui River Mäori Trust Board was set in place by the Government for the very purpose of resolving the issue; if so, why does he now wish to abrogate the board’s function?

Rt Hon. Sir Douglas Graham: The Whanganui River has already been the subject of judicial consideration in the past. The Waitangi Tribunal has already reported on two river claims: the Mohaka and Te Ika Whenua. This is the third claim on rivers, so the tribunal’s view is reasonably well known. It is also a fact that Te Ika Whenua has brought proceedings in the High Court to determine Mäori interests in rivers, and a decision is pending.

Sandra Lee: If the Government does not accept that Mäori have an interest akin to ownership in rivers, how does the Minister explain that the Arahura River is actually owned by the tangata whenua of that place, and was the Minister merely sabre-rattling to pre-empt any decisions and recommendations related to the Whanganui River claim?

Rt Hon. Sir Douglas Graham: The bed of the Arahura River, for 30 kilometres, has long been owned by Mawhera. Riverbeds and lake beds have been returned in the Ngäi Tahu settlement. …. I am not sabre-rattling at all. To say that a riverbed or a lake bed is owned by Mäori, as in the case of Waikaremoana and other lakes, is a far different thing from saying that Mäori own the whole river, including the water. That is a totally different issue. ….

Hon. Jim Sutton: Does the Minister accept that New Zealand, due to its unique history, should have two major sources of common law: British and Mäori; if so, how does this influence his stance in respect of treaty claims on both rivers and water.

Rt Hon. Sir Douglas Graham: …. English common law divides rivers and natural resources such as rivers into the adjacent banks, the subjacent bed, and the water. Mäori people see it holistically as the whole. So there has been a clash of cultures for some time in the way that that issue has been approached. It has yet to be properly resolved, although we did make a lot of progress in the Ngäi Tahu resolution. What the Crown could do to recognise the Ngäi Tahu’s interests in the rivers down there was acceptable to them. But that is not binding on other claimants, who may wish to advance further arguments. I would be happy to hear them. It is the position of the Crown that we will not be going to adjacent landowners and paying compensation to them for the proprietary loss of interest to the centre of the river under the common law principle of ad medium filum aquae. That would be an enormously expensive exercise, and would achieve very little."

 

Other courts & tribunals

Attorney-General v Horton

8 March 1999. Privy Council. Lord Hoffman

In the early 1980s the Government embarked upon large scale open cast mining at Ohinewai. By compulsory orders the Government acquired land from local farmers including 560 hectares of land belonging to trustees of the Levin Farm Settlement Trust (the trustees). Ownership of this land was vested in the Crown. Government policy changed. Firstly the mine at Ohinewai was abandoned, and secondly the Government no longer wanted to be involved in mining. As a consequence of the second decision the Government transferred all of its coal mining properties and assets to Coal Corp, a State-Owned enterprise. The Ohinewai properties were not transferred and were labeled as surplus properties, and the Crown appointed Coal Corp to be its agent to sell them, or they had the option to purchase them at market value. Coal Corp reviewed its position and wrote to most of the farmers offering them their land back. However, no such offer was made to the trustees, as Coal Corp had decided there was a possibility of small scale mining on the property. The judgment in Tainui Mäori Trust Board v Attorney General further complicated matters, as under the decision Coal Corp was obliged to safeguard the interests represented by the Tainui claim. The trustees learnt from a Tainui representative their land might be part of a Tainui claim. This knowledge prompted them to gather information about the land under the Official Information Act 1982. The trustees issued proceedings alleging that the land was no longer required by Coal Corp as a public work under s40 Public Works Act, and consequently the Crown should have offered it back.

Held: Coal Corp had come to a decision that they did not require the land, and from that moment, under s40 Public Works Act 1981 they were under an obligation to offer the land back to the original owners.

Section 40 Public Works Act 1981 states that where land is held under the Act for any public work, and the land is no longer required for a public work, the Chief Executive of the Department of Lands or the local authority shall offer to sell the land by private contract to the person from whom it was acquired, at the current market value, or at a lesser price. It must do this unless the Chief Executive or local authority considers it would be impracticable, unreasonable or unfair to do so (s40(2)(a)), or there has been a significant change in the character of the land brought about by the public work (s40(2)(b)).

Although the Government initially held all the issued share capital in Coal Corp under the State-Owned Enterprises 1986, Coal Corp was not the Crown, and consequently it could have been argued that the mere abandonment of mining as a state activity and its transfer to Coal Corp was sufficient to show that land held for mining purposes was no longer required for ‘any public work.’ This would have given rise to an obligation under s40 to offer all such land back to its original owners. However, s24(4) State Owned Enterprises Act 1986 refuted this argument as it provided that nothing in ss40-42 of the Public Works Act 1981 applied to the transfer of land to a State enterprise. For Coal Corp, the resale obligation would only arise when Coal Corp itself no longer required the land.

The High Court characterized the right to re-purchase or right of pre-emption as an inchoate right which the former owner preserves throughout the Crown’s ownership of the land and comes to fruition when the land is no longer required. It expresses the strong policy to preserve the rights of an owner subject only to the continuing needs of the state. Their Lordships characterised the right more as an option, since it arises as soon as land is no longer required and not when the Crown chooses to sell. But as a right in private law which is analogous to an option it has curious features:

• It is subject to defeasance or defeat if the conditions of s40(2)(a) apply – ie the Chief Executive or local authority considers it would be impracticable, unreasonable or unfair to offer the land back;

• The existence of the right can remain unknown to the former owner for some time, since the decision that the land is no longer required is internal to the government department or state-owned enterprise concerned.

• The Crown argued that the question of whether the land is surplus must be examined at the time the former owner asserts their private right to re-purchase – to avoid the problem that a government department might internally change its mind, and then be in the situation of having to offer the land back and then use its compulsory powers afresh to retake the land. Their Lordships however said that it was too late to argue that point, because of earlier agreements among the parties about the form the proceedings should take which had removed that as an issue. Had the point remained a live one, "the shape of the case might have been quite different."

Their Lordships agreed with the Court of Appeal that, as soon as the conditions in s40(1)(a)-(c) are fulfilled (the land is no longer required for a public work, is not required for any other public work, is not required for an exchange), there is a mandatory obligation to sell. The right of the former owner to receive an offer vests at that point and there is no room for reconsideration. The right may only be defeated by the discretion under s40(2)(a) (it is decided that it would be impracticable, unreasonable or unfair to offer the land back) or by the state of facts in s40(2)(b) (there has been a significant change in the character of the land).

Their Lordships also rejected a Crown argument that the important question was not whether Coal Corp had decided it did not require the land, but whether, viewed objectively, it was not in fact required. The Crown relied on Macfie v Callender & Oban Railway Co [1898] AC 270 where expert evidence showed that land was actually required for the purposes of a railway, notwithstanding the fact the directors of the railway company had decided otherwise. However that was in the context of a statute which contemplated a situation in which the decision of the directors could be objectively assessed and they might well be found to be wrong. In this case the question of whether land was needed for coal mining depended entirely upon the intentions of Coalcorp.

[Ed: the High Court decision on this matter was reviewed in Mäori LR April 1997 and the Court of Appeal decision is reported at [1997] 2 NZLR 180. This decision is being seen as significant for Mäori groups claiming back land taken under the Public Works Acts. This is ironic, given that the Levin Farm Settlement Trust brought this action in the first place to prevent their former land from becoming part of the Tainui land claim settlement.

The decision seems to mean that:

• As soon as a government department or state owned enterprise taking over former Crown lands which were compulsorily acquired reaches the conclusion that such land is no longer required for any public work, a right immediately vests in the former owner to receive an offer back of the land.

• Even if the government department or SOE changes its mind about the use of the land, it would be obliged to offer it back to the former owner, and then, if the former owner purchased the land, re-purchase it for a public work.

The possible implications are:

• If the Crown is retaining land compulsorily acquired from Mäori which it knew some years ago was not required for any public work, it should have offered that land back as soon as it was aware of the fact and it would now be holding the land in breach of the Public Works Act.

• The judgment may mean that land may have to be offered back at the market value pertaining at the time the offer back should have been made, and not at present day prices.

• The right to an offer back extends to a successor. While Sir Douglas Graham has stated publicly his belief that this means just one generation, the High Court has held in another case concerning s40 that it means more than one generation (Smiler v Port Gisborne CP1/98 Laurenson J p20 see Mäori LR June 1998 p5).

The decision needs to be treated with some caution. It is clear from the judgment that it was not a full exploration of all issues relating to s40, but rather a decision on a few fairly limited points. If nothing else, the decision points to the urgent need to reform the Public Works Act, something recommended by the Waitangi Tribunal in several of its reports, and something which the government has been slowly working on for some years (see Mäori LR June 1998 for the latest Waitangi Tribunal comments, February 1996 for the government proposals, and March 1996 for the response from one Mäori group). For a general historical consideration of takings under the public works acts as they have affected Mäori, see Prof A Ward National Overview Report vol II chapter 11 (Waitangi Tribunal Rangahaua Whanui Series 1997)].

 

Te Ohu O Nga Taonga v Stratford District Council & Marabella Enterprises Ltd

W110/98. 3 December 1998. Environment Court. Wellington. Judge Sheppard

The appellants, Te Ohu O Nga Taonga, appealed against a resource consent granted by the District Council to Marabella to establish a gas/oil well. The relief sought was limited, to reduce anticipated flaring, make financial contributions to the appellants to promote sustainable management, and a declaration on some inconsistencies between the regional plan and the district plan. Because the appeal would take time to hear, Marabella in these proceedings, with the support of the district council, sought to have its resource consent commence immediately (s116 RMA 1991), provided that no flaring would take place until the appeal was heard and it would comply with all the conditions in the consent which the council had insisted on. Te Ohu O Nga Taonga argued that their appeal concerned the traditional relationship with the land, and to start drilling on ancestral land without making arrangements with tangata whenua and without a welcome according to cultural protocol would be inconsistent with the Resource Management Act 1991.

Held: the application to immediately commence the work should be granted. The concerns of Te Ohu O Nga Taonga expressed in their appeal would not be affected if the work went ahead even while the appeal was outstanding. Financial contributions could be dealt with later, the company had agreed not to undertake any flaring in the meantime and the challenge to the regional and district plans would not make any difference to whether the resource consent would be issued. As to the issue of cultural protocols being observed before work commenced on the land, "the Environment Court does not have a general jurisdiction to enforce conformity with Mäori cultural protocol."

 

Arrigato Investments Ltd & Evensong Enterprises Ltd v Rodney District Council

A24/99. 22 February 1999. Environment Court Auckland. Judge Whiting

These proceedings concerned a land use consent for a proposed subdivision. The appellants and the Rodney District Council had almost reached an out of court settlement when a Mr McDonald requested to be heard under s274 Resource Management Act 1991 as a person with an interest in the proceedings.

He did so on the grounds that he was tangata whenua and had a claim before the Waitangi Tribunal which included the land in question. It was accepted that he had probably informed the Court at an early stage of his request, but that, for whatever reason, his request had been lost. Consequently, there was no issue about the lateness of his request.

However, counsel for the appellants questioned his standing under s274 firstly on the basis that whether a person is a claimant before the Waitangi Tribunal has no bearing on standing under s274, and secondly that the appellants had already reach an understanding with a Mäori trust which purported to represent tangata whenua of the area.

Held: as a representative of the tangata whenua Mr McDonald had an interest in the land that was greater than that of the general public, and as such he should be granted the right to appear before the court as an affected person under s274 Resource Management Act 1991.

While the Treaty of Waitangi Act 1975 entitles Mäori to make claims to the Waitangi Tribunal for alleged breaches of Treaty rights, this has no direct bearing on the jurisdiction of the Environment Court. The provisions of the RMA 1991 do not automatically protect Treaty rights; rather, their relationship "must be balanced against other competing interests" set out in the 1991 Act. Therefore, to the extent that Mr McDonald’s claim was based on the fact that he was a representative of the tangata whenua who had brought a claim under the Treaty of Waitangi Act did not give the Environment Court jurisdiction to admit him under s274 as a person with a right of audience before the court.

As to the claim that Mr McDonald was a representative of the tangata whenua, and as such was concerned about the effects the subdivision would have on a pa site located on the land, in that respect he was a person who had an interest that was greater than the public generally. Accordingly, he should be granted an audience under s274 Resource Management Act.

As to whether Mr McDonald was in fact a representative of the tangata whenua, this was a matter for substantive evidence. Mr McDonald was required to file within ten days a list of all the issues which he contended affected the tangata whenua in terms of Part II of the Resource Management Act and a brief of evidence substantiating his claim to be a representative of the tangata whenua.

[Ed: In relation to the proposed reforms to the Resource Management Act 1991 noted in last month’s review (Mäori LR February 1999 p8), the attention of readers is also drawn to a publication of the Office of the Parliamentary Commissioner for the Environment, Kaitiakitanga and Local Government: Tangata Whenua Participation in Environmental Management (June 1998) which reviewed the participation of tangata whenua under the RMA 1991 to date and recommended, among other matters:

• That the Minister for the Environment prepare a National Policy Statement on the application of s6(e) (relationship of Mäori with ancestral lands, waters etc), s7(a) kaitaikitanga, s8 (principles of the Treaty of Waitangi).

• That the Ministers of the Environment and Conservation co-ordinate review processes of statutes and systems for environmental and heritage management.

• That the Ministers of the Environment, Local Government and Mäori Affairs undertake a combined initiative to monitor and report on Mäori participation in environmental management, practical initiatives undertaken, and report on proposals of the Bay of Plenty Regional Council to establish a system of proportional representation for council membership.

Also, in September 1998 the Waitangi Tribunal registered a claim (Wai 741) which alleges, among other matters, that the proposed reforms of the RMA 1991 signaled by the Minister for the Environment "have the potential to severely and permanently affect the tino rangatiratanga of Mäori over their taonga." In December 1998 the Waitangi Tribunal turned down a request for an urgent hearing on that aspect of the claim, on the basis that there remained an opportunity to make submissions and suggest changes to the amendments proposed (Wai 741 doc No 2.6).]

 

Parliament

New Zealand Security Intelligence Service Amendment Act 1999

This amendment overturns the effect of Choudry v Attorney-General (CA217/98 9 December 1998), where the Court of Appeal found that entry into premises by the SIS without the consent of the owner or occupier is not authorised under the New Zealand Security Intelligence Service Act 1969. The amendment specifically permits entry without consent into "any place" under a warrant to intercept communications, and the ability to search for and seize documents etc and install or remove "any device or equipment" ie listening devices.

Nga Kaiwhakamarama I Nga Ture (Mäori Legal Service Inc) appeared before the Select Committee and sought judicial oversight of interception warrants allowing the SIS to intercept communications by entry into "any place." The legal service stated that in 1997 the houses of two Mäori lawyers advocating constitutional change were broken into at exactly the same time in different cities in the North Island and the only material disturbed in both instances were papers relating to constitutional change in New Zealand.

The legal service believed that these problems have arisen from the broad definition given to threats to "security" in the 1996 Act to include threats to "economic wellbeing", which could allow the SIS to investigate Mäori advocating changes in the New Zealand constitution.

The 1969 Act was amended in 1996 to expand the definition of "security", which had formerly been concerned with ‘espionage, sabotage, terrorism and subversion’, to include the "making of a contribution to New Zealand’s international well-being or economic well-being" (s2). Since the task of the SIS is to "obtain, correlate, and evaluate intelligence relevant to security" (s4), the potential scope of operations of the SIS was widened considerably.

The SIS may not however institute surveillance of any person or class of person by reason only of their involvement in "lawful protest or dissent in respect of any matter affecting the Constitution, laws, or Government of New Zealand" (s3(2)). But the ability for affected Mäori or the public to check whether surveillance may have breached that provision is very limited. The Legal Service laid a complaint with the Inspector-General of Intelligence and Security about alleged bugging of its own offices. However, the Inspector-General of Intelligence and Security Act 1996 s29 effectively prevents all public reporting and discussion of such a complaint outside of proceedings in Parliament. Breach of this provision can result in imprisonment or a fine of up to $10,000 for individuals and $50,000 for companies.

As a result of concerns raised before the select committee which considered the bill, the NZ SIS Amendment Bill (No 2) is now before Parliament and will clarify that NZ’s international and economic well-being are limited to foreign – or foreign influenced – capabilities, intentions or activities. The amendment includes a detailed definition of what "foreign" is – concentrating on citizenship and residency. In addition, interception warrants will be issued jointly by the PM and a retired High Court judge who will be appointed as the Commissioner of Security Warrants. The political neutrality of the SIS is spelt out, with a specific direction that the Minister in charge of the SIS may not direct surveillance of any person within NZ. The director of the SIS will regularly consult with the Leader of the Opposition about security matters. Finally, section 4(3) of the principal Act is strengthened with the addition of a clause stating that nothing in the Act limits the right of persons "to engage in lawful advocacy, protest, or dissent on any matter", and the SIS may not institute surveillance within NZ simply on the basis that such a right is being exercised.

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