April 1999 Contents

Waitangi Tribunal

Wänanga Capital Establishment Report

Other Courts and Tribunals

Court of Appeal – public works offer back

High Court – Mäori trust winding up

High Court – customary fisheries defence

High Court – fisheries settlement allocation

High Court – Electricity Corporation split up

Parliament

Ngäi Tahu Claims Settlement (Resource Management Consent Notification)
Regulations 1999 10

 

Mäori Land Court & Appellate Court

No cases reported this month

 

Waitangi Tribunal

The Wänanga Capital Establishment Report 1999

Wai 718. Judge Kearney (presiding officer), J Anderson, K Walker

This was a claim heard under urgency that three tertiary education institutions (TEIs), established as wänanga under the Education Act 1989 (as amended in 1990) were prejudiced by the system of funding for TEIs and should receive capital establishment funding.

Mäori education pre 1840

In this urgent hearing it was not possible to examine in detail, or for the Crown to reply to, points about the history of Mäori education. Nevertheless, basic conclusions could be drawn:

• Mäori have always embraced and valued knowledged and learning to enhance the quality of life;

• Knowledge was seen as power, and certain knowledge was tapu and the learning of it restricted to those of high rank through whare wänanga eg tribal whakapapa, whakairo (carving) arts of war and peace etc;

• The ancient concept of whare wänanga related to a learning process rather than a place;

• Learning was through a graduated process with individuals with specific skills passing them on to succeeding generations;

• Mäori readily sought an exchange of knowledge with Päkehä, and adapted the new knowledge around their traditions, eg use of literacy, conversion to Christianity etc.

Mäori education since 1840

Funding for mission schools was first provided in the Education Ordinance 1847 and continued in the Native Schools Act 1858. The schooling of Mäori was readily seen by the government as a means of social control and assimilation. There was a deliberate effort to make Mäori a labouring class. This continued in the government scheme of native schools beginning under the Native Schools Act 1867, to the extent that, in the early years of this century, Te Aute College was actively discouraged from preparing Mäori for university training and in 1931 the Director-General of Education declared that a Mäori aptitude for maths was interesting but not relevant to their present or future needs as agriculturalists.

Only in 1945 was school certificate offered in native district high schools. Native schools were discontinued in 1969, and specifically Mäori components were added to the curriculum in the 1950s, but these were offered within a Päkehä framework. Despite many policy changes since the 1950s to reverse Mäori underachievement, the statistics revealed only slow change.

The present situation

The tribunal examined the education system in its Te Reo Mäori Claim Report 1986 and found it wanting, and the conclusions of that report continued to apply. The most recent analyses from the Ministry of Mäori Development showed continuing underachievement and poor statistics for Mäori in education and it was not difficult to see the seeds of this in some of the past education policies.

Modern Wänanga

The Education Act 1989 (amended in 1990) gave statutory recognition to wänanga as places teaching and researching into ähuatanga Mäori (Mäori tradition) according to tikanga Mäori (Mäori custom) (s162(4)(b)(iv)). Their status was equivalent to universities, polytechnics and colleges of education. Three wänanga had been recognised under these provisions:

• Te Wänanga o Raukawa was established in 1981 and grew out of a tribal planning experiment, Whakatupuranga Rua Mano or Generation 2000. Its success and survival relied on a committed group of unpaid tutors. It was recognised as a statutory wänanga in 1993.

• Te Wänanga o Aotearoa: was established in 1984 on the site of the Te Awamutu College rubbish tip and had survived financially through remarkable sacrifices, including the mortgaging of private homes by some committed individuals. By 1988, due to the success in particular of its arts programme, it had opened campuses in Hamilton and Manukau. It was recognised as a wänanga along with Te Wänanga o Raukawa in 1993.

• Te Whare Wänanga o Awanuiarangi: was established in 1992 and was the brainchild of Professor Mead of Ngäti Awa. It initially secured funding from two existing TEIs (University of Waikato and Waiariki Polytechnic) but was recognised as a wänanga in 1997.

In 1993 the three wänanga had established an association (Te Tauihu o Nga Wänanga Association) to represent their common interests. As TEIs under the Education Act 1989, the wänanga were required to be governed by councils including representatives appointed by the Minister of Education, and had a charter of goals and purposes approved by the Minister of Education. Despite their small size, the wänanga had to fulfil and maintain the same governance structures, and associated compliance costs, as larger institutions. This included paying in excess of $10,000 for each course for which accreditation with the NZ Qualifications Authority was sought, such accreditation being a requirement of government funding and recognition. There were issues about whether the Qualifications Authority had the qualifications to audit wänanga courses.

Characteristics of wänanga not shared by other TEIs (ie universities, polytechnics or colleges of education) included:

• They were established by iwi to meet the needs of Mäori via iwi;

• Mätauranga Mäori (Mäori knowledge) and iwi tikanga governed the activities of the wänanga, and they were controlled by Mäori people;

• Most students were "second chance" learners with prior unsatisfactory experience in other education institutions;

• Learning was in a positive Mäori environment in which students felt at ease and which greatly assisted the learning process. There was a focus on multiple campuses, to reach the target Mäori population.

Although the wänanga catered for only a small proportion of Mäori tertiary students (5%), they provided an important element of diversity in education in NZ. In addition, they were open to all people, regardless of ethnicity. Their essential difference from other institutions was that knowledge was taught from a Mäori rather than Päkehä framework, in contrast to Mäori studies departments at universities.

The tribunal was most impressed that wänanga were a response of Mäori to their situation, and that they had been established and had achieved their current standing through significant Mäori efforts.

Tertiary education reform and capital funding

The 39 current TEIs (25 polytechnics, 7 universities, 4 colleges of education, 3 wänanga) are governed by the Education Act 1989 and are technically "Crown entities" for the purposes of the Finance Act 1989. Before 1990, TEIs were centrally funded for capital works via the University Grants Committee and the Department of Education, with committees deciding on bids received in each year for capital funds. This was considered a complex and highly political process. The Hawke Report on post compulsory education and training recommended in 1988 that TEIs be given greater discretion over expenditure decisions and that the funding system be revised. In particular, TEIs should receive a capital works component in their ordinary funding so that they could efficiently assess whether new buildings were more valuable than other items of expenditure.

This policy was adopted by the government in 1989, with TEIs funded by bulk grants, which included a capital works component. The level of bulk funding for each institution was determined by calculating "equivalent full time students" (EFTS) placed by the institutions and by assigning sums calculated according to those places.

In 1990 the funding system for capital works was changed in line with these proposals, with all TEIs received a government subsidy towards their costs as follows:

• Cabinet set a level of student places to be funded – to set a limit on overall national expenditure;

• Within this overall cap, initial funding was determined for each TEI on the number of previous and projected student places supplied by that institution;

• This initial calculation was boosted by a calculation involving the number of students under the "Study Right" scheme, that is, young people and long-term welfare beneficiaries who have not received 3 years of tertiary education. Many wänanga students fell outside the Study Right scheme;

• Student places in higher course costs such as doctoral and honours courses received a greater subsidy. Wänanga courses are lower cost and so attracted a lower subsidy.

The bulk grant which resulted was to be used by TEIs to meet all costs, including costs of any capital works.

Since there was a cap on the number of student places the government would fund, most institutions provide student places not covered by the funding formula, and paid for the costs of those students without government support. This impacted on smaller institutions such as wänanga more than larger institutions.

Since 1994 a base grant of $100 per EFTS, up to a total of $250,000 per institution, had been provided in recognition of the proportionately higher level of administration and infrastructure costs which small TEIs carried. However the grant was applied to all TEIs, not just smaller ones.

Special supplementary grants (for example for students with disabilities) were available. But these could not be applied to capital funding.

There was no recognition in this system of the start up costs or provision for capital establishment funding for wänanga. This contrasted with all other TEIs who had received significant capital establishment funding prior to 1990.

Government policy on wänanga

In 1994 the government was made aware of limitations in its policy to recognise wänanga. There was concern about the Crown’s financial risk if these institutions which it was funding failed, and there was concern about the number of wänanga which iwi were seeking to establish. Recognition of further wänanga was put on hold while the Ministry of Mäori Development explored various options. The ministry’s report, delivered in 1994, concluded that there was no coherent government policy on set-up and ongoing financial costs of wänanga. It was also estimated that at least 1000 students were required at each institution for them to be come self sufficient under the EFTS scheme (Te Wänanga o Raukawa had 81 funded places, Aotearoa, 200 places). While the capital costs of setting up new wänanga were noted, it had been assumed that buildings and equipment would have been created during the time that the wänanga were run as private training institutions. The ministry however argued that this was not the case and capital funding was required. Those arguments were subsumed into a further review of education in 1997 and proposed changes outlined in 1998.

From 1999 it was intended that the EFTS system would be replaced with a universal tertiary tuition allowance, which would remove the cap on the number of student places the government subsidised, meaning that high growth institutions such as the wänanga would benefit through this directly demand driven system. In addition, where there was a low level of capital funding relative to the number of students enrolled, the subsidy for each student would be increased in that institution to take that into account.

The tribunal found that while these changes might well improve the funding to wänanga, their implementation was several years away, whereas the wänanga were in need of cash injections presently.

The tribunal accepted an argument that continued underfunding might well create a culture of educational poverty. Universities had had over 100 years to develop facilities and reputations of academic excellence and could rely on private bequests. Wänanga did not have those advantages and had no realistic staffing base. There was a huge disparity in research facilities between wänanga and other TEIs. These problems could discourage individuals and staff and result in closure or inadequate functioning.

Financial state of the wänanga

Government reviews of the wänanga in 1997 indicated the need for further research on their financial situation as "at risk" institutions. An independent audit report led to discussions between the wänanga and government about their capital funding. A further audit showed that only Te Wänanga o Raukawa was in a reasonable financial situation, and this was largely due to the use of volunteer tutors, providing an estimated $750,000 savings between 1996 and 1998. The Ministry of Education expected Te Wänanga o Raukawa to continue in this fashion, but it was unwilling to do so.

On the basis of these reports, the wänanga themselves requested a report on their financial viability which confirmed the independent audits. The Ministry of Education suggested charging higher fees. However student fees were already reasonably high, and an increase could be a barrier to student entry, which the wänanga were seeking to avoid. The Crown accepted that its own reports showed that the wänanga were financially at risk.

Capital injections

The tribunal noted that there was an option to provide capital injections under the Public Finance Act 1989, which was available to all Crown entities. This was regarded by the government as a method of last resort.

The tribunal found however, that while a request for such an injection by Te Wänanga o Aotearoa had been declined in 1998 (due to a limit placed by the coalition agreement on capital spending), the government had provided significant capital funds since 1994 to several polytechnics and the NZ School of Dance and Drama.

The tribunal concluded that wänanga were in a difficult financial situation and required capital funds. It also concluded that the Education Amendment Act 1990, while it enabled the statutory establishment of Mäori based TEIs, denied the essential funding for the physical establishment and development of such institutions.

Treaty principles

This was the first claim in which the tribunal had dealt with tertiary education. Under the principle of partnership, the claimants argued that Mäori have the right to be educated in a Mäori controlled and directed environment and a right to the funding necessary for that. The Crown view was that, in recognising 3 wänanga as TEIs it had already acknowledged this Treaty obligation. The tribunal applauded the Crown for its recognition of the wänanga as peers of other TEIs but that was qualified by the failure to provide capital establishment funding. Mere recognition of wänanga as TEIs was not sufficient in Treaty terms. The 1990 amendments had given recognition, but at the same time denied access to establishment funding. The principle of partnership places a responsibility on the Crown to support wänanga adequately so they are not prejudiced in their ability to carry out a Crown appointed task.

With regard to governance and kawanatanga under Article 1, the claimants had not disputed that the allocation of limited resources is ultimately an issue for the government of the day. However, in NZ Mäori Council v A-G (broadcasting assets) [1994] 1 NZLR 513 the Privy Council commented that if a Mäori taonga were in a vulnerable state, then that was a mater to be taken into account and vigorous action might be required. The tribunal thought that vigorous action was required, where the future educational needs of many New Zealanders was at stake.

With regard to rangatiratanga guaranteed under Article 2, the Crown had in the past breached this with its education policies. Despite the Treaty guarantees, "mätauranga Mäori was systematically dismissed and erased by the English-derived education system as being worthless" and "past legislative actions of the Crown have effectively resulted in a raupatu over mätauranga Mäori" with tragic damage to Mäori society.

The 3 claimant wänanga had clearly demonstrated rangatiratanga in the inception and creation of their institutions. Rangatiratanga involves at the very least the concept of tribal self-management. The efforts of tribal groups to create and sustain these TEIs was a vital exercise of rangatiratanga. The Crown’s Treaty obligation was to foster, support and assist these efforts. And the Crown needed to ensure that wänanga were accountable to the communities that created them. In failing to financially establish the wänanga, the Crown had restricted their rangatiratanga and their ability to carry out obligations to their own iwi and to the Crown itself under the Education Act.

Wänanga as a system of learning and as a repository of mätauranga Mäori is a taonga in its own right, but does not exist in isolation from te reo and mätauranga Mäori. Modern institutions claiming to be wänanga need to demonstrate that they recognise and incorporate the values embodied by wänanga. Whether they do so is judged by the communities they serve.

Distortions occur if Mäori concepts are translated into Western terms. The government appeared to have taken a narrow approach and seen ‘wänanga’ as simply a Mäori form of university. Ironically, while wänanga could not call themselves universities, since the term is protected by legislation, universities, which run on Päkehä customary lines, were free to call themselves whare wänanga. One way in which the government could carry out its Treaty obligations would be to revisit the way the NZ Qualifications Authority audits the modern wänanga, to ensure the audit is carried out by people with expertise to measure and judge the standards and values embodied in wänanga.

With regard to the duty of active protection, despite Mäori initiatives, Mäori language is still in a perilous state, and the Crown had admitted it is a taonga requiring special protection. Wänanga are statutorily unique in being required to teach and research to maintain ähuatanga Mäori and tikanga Mäori. Mäori language and knowledge are unique to NZ and irreplaceable. Wänanga are a modern application of an ancient process responsible for the preservation and advancement of these taonga. The tribunal felt compelled to stress, "in the strongest possible terms, its belief that if wänanga fail because of undercapitalisation, then the Crown has done a disservice, not only to Mäori but to New Zealand society as a whole."

It was ‘unfair’ to except wänanga to shoulder all the responsibilities of wänanga without giving them the same pre-1990 benefits of capital funding. "Every legislative action of the Crown that affects Mäori is a Treaty issue, whether the legislation makes explicit mention of the Treaty or not." The Crown had responsibly acknowledged the unfairness inherent in the 1990 change. However for the Crown to view this as an ‘unfortunate side effect’ of a policy change, demonstrated that the Crown did not appreciate the place and role of the Treaty in tertiary education when the law was amended. While the Crown expected in 1990 that the wänanga would apply for TEI status, it was simply not prepared to provide establishment funding – at the same time as it was making one-off capital payments to other education institutions. There was a question whether the Crown had applied its own policy with consistency, let alone consistent with Treaty obligations. In addition, there had been no consultation with Mäori over the impact the 1990 changes would have on the long-established capital funding policy. While the Crown had moved actively to protect the NZ School of Dance and Drama, on the basis of the "special relationship" the Crown had with that organization, it appeared to lose sight of its special relationship with its Treaty partner.

Finally, the Tribunal did not support any argument that the confirmation of Mäori as British subjects under Article 3 placed any limits on the ability of Mäori to continue to be Mäori. It accepted the claimant argument that students attending wänanga were in danger of receiving an inadequately funded education, which might in time damage the image and role of the wänanga, forcing them to close, and thus deny New Zealanders generally of the option of a tertiary education in a Mäori context. The Crown had acted responsibly and in good faith in recognising wänanga. However if the wänanga failed, then Mäori and non-Mäori New Zealanders would be deprived of a choice in education.

Conclusions

The tribunal found that:

• The Crown had breached the principles of the Treaty in failing to honour its obligation to actively protect Mäori rights in matters relating to tertiary education, and in particular by failing to provide wänanga with capital establishment grants in a similar manner to mainstream TEIs.

• The Mäori process of teaching and learning known as wänanga is a taonga inextricably linked with Mäori language and Mäori knowledge.

• The Crown had further failed to protect and support its Treaty partner through the EFTs system of funding, which does not adequately cater for specific needs of wänanga.

• The Crown had provided capital injections to some TEIs but refused to do so for wänanga, thereby prejudicing them.

In terms of recommendations, the problems of each wänanga were unique, and accordingly, a one-off capital sum should be paid to each wänanga sufficient to cover:

• Compensation for expenditure on capital and labour invested in land, buildings, plant and equipment related to teaching programmes, accommodation and other necessary amenities for staff and students;

• The real cost of bringing buildings, plant etc up to a standard comparable to other TEIs and commensurate with existing rolls and needs over the next three years;

• The costs of preparing and presenting the claim.

 

Other courts & tribunals

Port of Gisborne Limited v Smiler

26 April 1999 Court of Appeal Wellington. President Richardson, Gault, Henry JJ

This case concerned the operation of section 40 Public Works Act 1981. The appellant Port of Gisborne owned 11,263 hectares of land, known as Tauwhareparae, located near Tolaga Bay. In the High Court it had been determined that s40 applied to the land and an offer back to the original Mäori owners or their successors was required (see Mäori LR June 1998 p4). This was on the basis that, even though the Gisborne Harbour Board (and now the Port of Gisborne) was given the land by the Crown as an endowment, the Crown had purchased the land from local Mäori with some public work in mind, and therefore an offer back to the Mäori owners was required.

Held: the appeal should be upheld. The Crown acquired the land under s34 Immigration and Public Works Act 1870 which was a broad provision enabling the government to purchase land for general purposes. This land formed part of a "land bank" available for on-sale to settlers. In August 1881 the Tauwhareparae block was proclaimed to be "waste lands of the Crown" pursuant to the Waste Lands Administration Act 1876 and the Land Act 1877 Amendment Act 1879. The Land Act 1877 s5 provided that "demesne lands of the Crown" could include lands which had not been dedicated to any public purpose, and Tauwhareparae was in that category. Consistent with this, the "offer back" provision in force at the time (s9 Public Works Act 1876 Amendment Act 1878) applied only to "Government works" which included "surveys, railways, tramways, roads, bridges, drains, harbours, docks, canals, … and every undertaking of what kind soever", in other words, something which involved some positive activity in relation to the land (s3 Public Works Act 1876). The word "undertaking" broadened the section, but was coloured by the specific list preceding it.

Therefore, between 1881 and 1884 Tauwhareparae was not held for a public work. It was not significant that in this period a local member of Parliament introduced a bill suggesting the land might be used for an endowment. Of more significance was the fact that the land was not endowed when the Gisborne Harbour Board was first established, but remained with the Crown until 1884, and this created an insurmountable obstacle to the claim that s40 requirements and entitlements attached to the land by reason of its purchase from Mäori by the Crown.

Section 26 Port Companies Act 1988 provided that the offer back provisions of s40 Public Works Act 1981 should apply to land passed to the port company. The true meaning and intent of s40 could be ascertained from its history. There was no equivalent offer back requirement when the Crown initially purchased the land under s34 Immigration and Public Works Act 1870. The 1870 Act was replaced by the Public Works Act 1876 which did provide that land no longer required for a public work must be offered back to the then title holder or in default the adjacent land holder. In 1878 the 1876 Act was amended to also require offers back of land "held" under enactments other than the Public Works Act, but a relationship to a definite government "work" was still required.

The offer back requirements of the Public Works Act 1928, which replaced this earlier legislation, still required a relationship with a definite public work in order to take effect.

The Public Works Act 1981 for the first time required the offer back to the person from whom the land was originally required. But s40 was clearly aimed at land acquired for public works and no other (certain minor amendments made in 1987 to s40(3) did not change this position). The provision was not and had no reason to be concerned with land the Crown might acquire for other purposes. The statutory intention was clear, that only where a public work was involved was there an element of compulsion and therefore fairness required an offer back if the land became surplus. There was no justification for the offer back in other cases, where transactions were commercial and at arms length. If there was no public work purpose behind the transfer of ownership, there was no cause for s40 to bite into in respect of that ownership. This intent in the legislation was confirmed by the Privy Council in AG v Horton (51/98 8 March 1999. See Mäori LR March 1999 p5).

The inquiry therefore becomes, from whom was the land acquired for a public work purpose? In this case the Crown did not acquire, nor at any time hold, the land for a public work. The first occasion that occurred was when the land was endowed to the Gisborne Harbour Board. The only person who might be entitled to an offer back was the Crown.

Even if s40 could be applied to land which was purchased without any intent to use it as a public work, this would still mean in this case that the offer back should be to the Crown and not the prior Mäori owners, since s40 required the offer back to the person from whom the land was acquired - in this case the Crown. While in Auckland Regional Council v AG (No 2) it was determined that in some circumstances intervening owners could be disregarded, that was only in situations where the original taking was for a public work, which was not the case here. The harbour board was the owner at the time the possible right to an offer back first arose under s40, and since the board acquired from the Crown, the land would need to be offered back to the Crown.

In addition, provisions of the Harbours Act 1950 (s143A) suggested that endowment lands were not intended to be subject to the offer back regime, since they were not lands "taken or acquired" under the Public Works Act 1981.

Finally, while it was not strictly necessary to determine what "successors" means under s40, the provision clearly intended that where an entire section of land is acquired, the offer back applies only to immediate beneficiaries, under a will or intestacy, of the original owner. But where part of a person’s land is taken, the successor in title is included in those who may potentially receive an offer back. The policy behind this being that, in the latter case, there is a chance for the acquired land to be re-amalgamated with the part which was not taken.

[Ed: reverses the decision reported at Mäori LR June 1998 p4. There are several important implications from the point of view of any future Mäori claims seeking the return of lands taken under public works legislation and now surplus to requirements. The most significant of these is that, in most cases, offers back are required only to immediate successors of the person from whom the land was taken. Another is that harbour board endowment land cannot generally be regarded as land taken for a public work.]

 

The Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Tribal Trust

3 March 1999 High Court New Plymouth. Master Kennedy-Grant

The Parininihi Ki Waitotara Mäori incorporation (PKW) sought to put the Ngaruahine Tribal Trust into liquidation on the basis that it had failed to pay rent on two farm properties leased from the incorporation. The trust sought relief against forfeiture of the leases in the Mäori Land Court. That application was withdrawn on the basis that the incorporation would hold a special meeting to discuss proposals from the trust. There was a dispute about that meeting which was now back before the Mäori Land Court.

In these proceedings, the trust argued that the liquidation proceeding should be put on hold on the basis that the Mäori Land Court issues needed to be determined and the trust could make a claim for improvements on the lease which could be set off against the claimed rent arrears. The incorporation in reply argued that the Mäori Land Court proceedings were irrelevant, since a fresh application for relief against forfeiture could be made in that court at any time, and that could even be done by the liquidator of the trust if it were put into liquidation. It was also argued that the improvements claimed amounted to very little and the lease and relevant legislation did not allow compensation to be claimed in any event.

Held: the law did not favour a claim to compensation. So there could be no set-off against the rent claimed. And the incorporation had correctly pointed out that the Mäori Land Court proceedings were irrelevant to these liquidation proceedings. The request for a stay in the liquidation proceedings was accordingly dismissed.

 

Harimate & Hodge v Ministry of Agriculture and Fisheries

AP1/99. 5 March 1999 High Court Rotorua. Nicholson J

This case involved appeals against convictions and sentencing for taking shellfish beyond the numbers permitted by fisheries regulations, and doing so with banned scuba gear. The appellants, who were Mäori, argued that they were collecting the shellfish for a wedding, and were exercising customary fishing rights.

The wedding was between a Mäori woman and a Dutchman. The District Court noted that while the wedding was not on a marae, it had all the characteristics of a hui and was no less a hui for that. Nevertheless, the appellants were convicted as they had not sought the approval of local Mäori, and in any event, their action took place prior to the Fisheries (Customary Fishing Conditions) Notice 1998 and was governed by regulation 27 Fisheries (Amateur Fishing ) Regulations 1986 providing that Mäori might take shellfish in excess of fishing regulations only where the taking was for the purposes of a hui, tangi or traditional non-commercial use approved by the Director-General.

Held: the approach in Manukau v MAF (HC Auckland M984/97 29 July 1998, Maori LR August 1998 p8) should be followed, namely, that in the period between the passing of s10 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the introduction of the new comprehensive customary fishing regulations, the only defence of Mäori fishing rights available to Mäori was regulation 27. That provided a defence only where the taking was for hui, tangi and other uses directly approved by the Director-General. Accordingly, the appeals should be dismissed.

The court also declined a request that the appellants be discharged without conviction pursuant to s19 Criminal Justice Act (where direct or indirect consequences of conviction are out of all proportion to the gravity of the offence), on the basis that they honestly believed that they had a right under Mäori custom to take seafood without seeking permission from anyone, and that the conviction would rob them of mana. The appellants had clearly acted in defiance of the law and the sovereignty of the Crown.

[Ed: this case is of limited relevance now that the new customary fisheries regulations are in force, apart from indicating once again that, some Mäori regard Parliamentary regulations as an unacceptable intrusion upon traditional practices.]

 

Te Waka Hi Ika O Te Arawa v Treaty of Waitangi Fisheries Commission, Te Runanganui O Te Upoko O Te Ika Association (Inc) & Others v The Treaty of Waitangi Fisheries & Others

31 March 1999 High Court Auckland. Judge Anderson

Background

The Treaty of Waitangi Fisheries Commission gave notice to interested parties in the Mäori fisheries litigation that they intended to report to the Minister of Fisheries a scheme for the allocation of fishery assets pursuant to s6(e)(iv) and s9(2)(1) Mäori Fisheries Act 1989. Those provisions provide that the commission must develop, after full consultation with Mäori:

• Proposals for a new Mäori Fisheries Act, including provision for any successor body to the commission;

• And including a scheme for identifying beneficiaries of the settlement and allocating the benefits of the settlement to them (ie allocation of pre settlement assets);

• Report to the minister on these matters and wait 30 days for any comments from the minister;

• If there are no comments, give effect to the scheme. If there are comments, adjust the scheme and report further to the minister.

Groups involved in ongoing litigation about the allocation process applied for interim orders to prevent the commission from making the intended report. Counsel for the minister informed the court that the minister abided by the decision of the court on the applications.

The scheme had been published and it proposed the distribution of inshore fishing quota on a coastline basis and deep-water quota on a split population and coastline basis. Certain company shares held by the commission would be allocated in proportion to quota tonnage, $40 million would be allocated according to census returns of iwi populations, and $10 million would be put in a development putea for the benefit of all Mäori, including those whose iwi links were unknown. The Chatham Islands would receive assets having regard to its special features.

Held: in respect of interim orders, the court has a general power under s8 Judicature Amendment Act 1972 to prohibit a respondent to an application for review from taking any further action that would be consequential upon the exercise of statutory power. The power is founded on the necessity to preserve the position of the applicant (Carlton and United Breweries Limited v Minister of Customs).

As a preliminary point, despite recent changes to High Court rules requiring an undertaking as to damages where interim relief is sought (rule 627B(2) High Court Rules), there was no mandatory requirement for an undertaking in respect to s8 applications (despite comments to the contrary in Rodley v Cuddon & Others CP3/99 Blenheim Registry 29 March 1999), although there was always an inherent power to require one as a condition of relief. That power should be exercised sparingly however, having regard to the importance in terms of the jurisprudence of public law of not encouraging fiscal barriers to possibly meritorious endeavours to review administrative decisions affecting public interests, as in this case.

Arguments for the order

The applicants advanced the following arguments:

• The responsibilities of the commission in allocating the pre settlement assets had been examined in various ways in the lengthy Mäori Fisheries litigation to date. An important preliminary question had been heard by the Privy Council and it had been remitted back to the High Court (whether distribution must be to traditional iwi. See Mäori LR August 1998 p3). That High Court judgment was currently under appeal, and the judgment must have informed the commission’s scheme for allocation of pre-settlement assets intended to be submitted to the Minister of Fisheries. If the judgment was not entirely upheld on appeal, the scheme would have been wrongly informed to the extent of any qualification to the decision.

• The process set out in s6(e)(iv) and s9(2)(1) Mäori Fisheries Act raises a real risk that an allocation scheme could become capable of being implemented 30 days after it is reported to the minister, if he did not require any reconsideration of it.

• There was a serious question whether the proposed scheme could be the subject of an individual report, or whether what was envisaged by s6(e), s9(2)(1) and s4 was a single comprehensive report.

• The substantive proceedings which groups had lodged argued that rights would be actually and potentially jeopardised by the proposed scheme. An example was the commission’s intended application of the Juridical Bay test adopted by the United Nations Conference on the Law of the Sea, which would determine that the shoreline of harbours under a certain size would not be added to coastline measurements, which would in term determine the amount of quota allocated to each iwi. This was said to have important implications for the great harbour fisheries of the West Coast of the North Island. There were also concerns about the treatment of islands and peninsulas in the coastline model.

• The level of support among Mäori for the proposed scheme was also being questioned, including the level of support from people outside traditional iwi.

• It had to be concluded that "whatever support there may be for the proposed scheme, there seems to be amongst Mäori a significant and diverse opposition or reservation about it. If this combination related to but 10% of Mäori, still tens of thousands are not convinced of the validity of the scheme. Having regard to the proportion of Mäori who did not reside in their takiwä, whether or not they cleave to urban Mäori organisations, the numbers may well be much greater than tens of thousands. These concerns are fundamental to concepts of rangatiratanga, whether in terms of historical or evolving perception." The matter should accordingly be viewed in an indigenously sensitive and not in an overly technical way.

Whether there was a necessity to preserve the position of the applicants

An interim order preventing the commission from forwarding its report to the minister was therefore necessary, both because otherwise substantive challenges to the scheme presently before the High Court might be pre-empted if the scheme became legally capable of implementation under s9(2)(1) within 30 days of it being reported to the minister, and because the validity of the proposed scheme was presently before the Court of Appeal, and that appeal might succeed. Mäori had a right to have the minister consider a scheme which was legally valid.

The challenge to the application of the juridical bay formula by the commission might fail on the basis that this was a matter of detail not reviewable by the courts. And the argument that only one report covering all matters was intended under s6(e) might also fail on the basis of standard statutory interpretation principles. Nevertheless, overall there were serious issues raised by the applicants and their position regarding them which needed to be preserved in the meantime.

Whether an order should be made

The commission argued that an order should not be made because:

• The commission had given an undertaking to give 14 days notice before allocation, and this allowed the commission to report and the minister to consider the scheme while preserving the position of those disputing the allocation;

• If there was a delay in allocation there would be fiscal implications for groups anticipating receipt of the pre settlement assets.

However, the court concluded that "To Mäori the issue of fishing rights and substitutionary entitlements is so crucial and profound that one must take great care not to rush to a mere show of justice. Too many valid grievances of Mäori have been perpetuated by systemic impatience." Everyone wished the fishing problem were resolved and those who might be entrusted with millions of dollars worth of assets hoped the particular scheme might be implemented with all deliberate speed. But for years the applicants had had to submit to the argument that their objections are premature, "… they are now entitled to say that the point has been reached when it is right for Mäori to pause and listen to each other to ensure that a legally valid scheme advances to the Minister for consideration."

The timing of the two court processes currently underway was also relevant. Firstly, the Court of Appeal’s consideration relating to iwi, and secondly the intended scheduling in the High Court of issues under appeal independent of the iwi question, meant that the proposed scheme and ministerial consideration would be conditional on the judgments in those matters.

The evidence of the possibility of fiscal loss was not sufficiently cogent to prevent an interim order. The losses would be losses arising only because the commission rather than iwi were managing the assets in the interim, the other court proceedings as currently timetabled would not be resolved before the coming fishing season anyway, and the commission itself had accepted that implementation issues would not realistically allow allocation before April 2000 in any event. The interim period could be used by Mäori to resolve representation issues by mediation or references to the Mäori Land Court. The "taking of time is not necessarily the wasting of time."

Finally, an early report under s9(2)(1) might mean that even if the courts later found the scheme of allocation flawed, the legislation might require the flawed scheme to be implemented.

An interim order would accordingly issue, without any undertakings as to damages being required.

[Ed: the commission attempted to prevent these interim orders by requiring an undertaking as to possible damages flowing from any halt to the allocation process. The court rejected this. The obvious dangers of even reporting to the minister are highlighted in the judgment.]

 

Mahuta & Another v Attorney-General & Others

31 March 1999 High Court Wellington Judge Nicholson

Background

The government passed legislation splitting up the assets of the nation’s largest electricity producer, the state enterprise Electricity Corporation of New Zealand Limited (ECNZ), and putting its assets into several new state owned enterprises. This included hydro dams and other assets along the Waikato River. The Tainui Mäori Trust Board, which had outstanding claims on the Waikato River, sought firm legal assurances from the Crown that those claims would not be affected by the split.

When those were not forthcoming to its satisfaction, the trust board applied for judicial review of a direction made by the shareholding ministers, (the Minister of Finance and the Minister of State Owned Enterprises) under s99(1) of the Electricity Industry Reform Act 1998 to the Board of ECNZ, to transfer the assets and liabilities of that company to three new State-Owned Enterprises, with effect from 1 April 1999. In these proceedings, the court considered an application for interim orders against the Attorney-General, the Minister of Finance and the Minister of State-Owned Enterprises, and ECNZ, to effectively restrain them from taking any action pursuant to that direction. After hearing the matter, Justice Nicholson concluded that Waikato Tainui should receive the interim relief sought, but gave the Crown the opportunity to reconsider its stance - that it would not give an undertaking or assurances as sought by the trust board. If those assurances was given there would be no need for any orders to be made. After consideration, counsel for the Crown indicated that it was not legally and factually open to it to make the assurances sought, and did not do so. This judgment then issued.

Jurisdiction

Interim orders may be made where it is necessary to do so for the purpose of preserving the position of the applicant (s8(1) Judicature Amendment Act 1972). Orders against the Crown can only be made by way of declaration. The Court is required to consider all the circumstances, including the strength or weakness of the claim, the public interest, and the public and private repercussions of granting relief.

Elements in the discretion include necessity for the orders to preserve the position, and whether there was a real contest between the parties and a reasonable chance of an applicant succeeding in that contest.

The causes of action

The trust board case was set out in their statement of claim, and the application for interim orders based on the statement of claim was supported by affidavits sworn by the plaintiff, who was also a member of the Tainui Mäori Trust Board. The affidavits indicated some differences in understanding of certain meetings between the trust board and the government, but it was clear from all the affidavits that Tainui were seeking consultation and negotiation prior to the proposed split up.

Turning to the three causes of action, the affidavit evidence disclosed a real contest and a reasonable chance of the appellant succeeding in relation to:

• Breach of the duty to consult

• Breach of legitimate expectation

• Breach of s9 State Owned Enterprises Act 1986 (which provides that nothing in the Act shall permit the Crown to act in a manner that is inconsistent with the Treaty of Waitangi).

A significant factor supporting the allegations was the fact that Waikato Tainui had lodged a claim with the Waitangi Tribunal with regard to land confiscated last century, and the claim had been settled by Deed of Settlement in 1995 which specifically reserved the Waikato Tainui position in respect of their claim to the river and acknowledged the existence of the claim (clause 24 of the 1995 Deed of Settlement). The Crown did not resile from the statements in the deed, but argued that the actions and direction that led to the transfer of interests of ECNZ to three other state owned enterprises were not affected.

The Attorney-General and the ministers argued that there was consultation, the legitimate expectation was satisfied, and that s9 had not been breached. It was also argued that the trust board’s position was not adversely affected by the split, it was too late to stop the split from occurring, relief should not be given, and that the statement of claim did not give rise to any tenable cause of action. These arguments were rejected. As to the argument that it was too late to stop the split, this was a situation the Crown had created, and that the court could make the appropriate orders, and the defendants would be expected to observe them. While there would obviously be significant public and private consequences of the making of the interim orders there could be an element of overstatement, and that the defendants must have implemented some contingency plans in the event of the courts not approving their actions.

In addition, in relation to the alleged transgression of s9 of the State Owned Enterprises Act, the direction of the ministers was issued under s98(3) Electricity Industry Reform Act 1998 which reads, ‘[T]he shareholding Ministers may give a direction under the section despite anything to the contrary in sections 4 to 7 of the State Owned Enterprises Act 1988 or in the Companies Act 1993 or in any other Act or rule of law.’ The omission of s9 must have been deliberate and Parliament therefore intended that s9 should apply to the directions given.

The plaintiff had attempted to gain an assurance or undertaking in the past few months that had led to the Crown closing the door upon any further negotiations. Looking at the assurance or undertaking sought by the plaintiffs, counsel for the Crown argued that the assurance sought would enhance the current legal and factual situation of Waikato Tainui, however it appeared that the plaintiff essentially wanted to maintain the status quo.

If there was a risk created by the split up of ECNZ, then the Crown should accept the risk. And as to the public and private repercussions, the balance of justice should weigh in favour of preserving the position of the plaintiffs before the direction to split up ECNZ. As to the issue of delay, the plaintiff had at all stages attempted to engage the Crown in negotiation and consultation. However, the negotiations ended, and the hope of resolution ceased, when the Crown Law Office sent to the plaintiffs the Crown’s ‘truncated’ assurance on the ECNZ split, which was clearly the last word on the matter from the Crown. It was after receiving this assurance that the plaintiff commenced the present proceedings. There had been no delay of a nature that could count against the plaintiffs. The plaintiffs had sought resolution up until the last moment, and when it became clear this was no longer possible they issued the proceedings.

Looking at the overall justice of the situation, the court took into account the strength of the arguments of Waikato Tainui for the necessity of preserving their position, and their attitude and conduct. They had initiated the consultation, while the Crown seemed to back away and displayed an unwillingness to give a meaningful assurance, while placing the risk on Waikato Tainui of any prejudicial aspect to their claim arising from the split rather than taking the risk itself as the body responsible for creating it.

There was a real concern arising from the split about the ability of the Crown to preserve its capacity to provide remedies and restore rights as sought in the river claims.

The court made orders to the affect that, pending the determination of the plaintiffs’ application for judicial review, the Crown should not take any further action towards the transfer of ECNZ interests to the new state enterprises, although this did not prevent ECNZ from entering into any operating or management agreements to enable ECNZ to continue to operate and manage its undertaking.

[Ed: an appeal was immediately lodged by the Crown and the matter was set down for an urgent hearing in the Court of Appeal the following day. However, immediately prior to the hearing, the parties advised the Court of Appeal that they had reached an understanding. The Crown appeal was therefore allowed by consent and the interim orders of the High Court discharged (CA71/99 1 April 1999).]

 

Parliament

Ngäi Tahu Claims Settlement (Resource Management Consent Notification) Regulations 1999

1999/91

These regulations come into force on the 22 April 1999 and provide for consent authorities under the Resource Management Act 1991 to forward to Te Runanga o Ngäi Tahu a summary of all applications received for resource consents for activities within or adjacent to or impacting directly on "statutory areas". Statutory areas are are over 60 places, rivers, lakes and wetlands (including 4 marine areas) for which statutory acknowledgements are set out in the Ngai Tahu Calims Settlement Act 1998.

The summary of each application must be sent to the Ngäi Tahu Head Office as soon as practical after the consent authority receives the application, and before the consent authority serves notice of the application under s93 Resource Management Act 1991 or determines not to notify the application under s94.

The regulations do not affect the discretion of a consent authority as to whether or not to notify any application under s93 or s94, nor whether or not Te Runanga o Ngäi Tahu is an affected person under those sections.

The summary of the application that Ngäi Tahu receives must contain the same information required in a notification under s93 Resource Management Act and other information as may be agreed between Te Runanga and the consent authority concerned.

Te Runanga o Ngäi Tahu may also waive, in writing, the right to receive a summary of applications for resource consents. The waiver may operate in respect to certain types of resource consents or for a specified period of time, or both. Te Runanga o Ngäi Tahu can also by writing revoke or amend a waiver made under the regulations.

The regulations are made pursuant to s207 Ngäi Tahu Claims Settlement Act 1998 which provides that the Governor-General may on the recommendation of the Minister for the Environment make regulations as contemplated by clause 12.2.2 of the Deed of settlement.

[Ed: it will be interesting to see how these regulations operate. Nationally, 95% of resource consent applications are not notified because consetn authorities deem the effects to be minor and any persons the authorities determines might be affected have given their written consent. The regulations give Ngäi Tahu the ability to make representations to the council before it exercises its discretion whether to notify or not. The regulations do not spell out what occurs if a summary is not sent to Ngäi Tahu. However the consent authority concerned would at least be open to a review for failing to follow the statutory process.]