May 1999 Contents

Letters to the Editor

Mäori Land Court & Appellate Court

Roadline over Mäori Land

Land Court computer imaging project

Waitangi Tribunal

Proposal for a special Tribunal

Other Courts and Tribunals

High Court – restructuring of Mäori studies at Waikato University

High Court – valuation of Crown forest licences

High Court - valuation of Crown forest licences, Mäori participation

High Court – Fisheries, constitutional challenge

Environment Court – coastal works and kaitiakitanga

Parliament

Children, Young Persons, and Their Families Amendment

Budget initiatives

Other

Review of the Mäori Development Act 1962

Mäori women’s experiences of the law

 

Letters to the Editor

In response to comments made on the latest fishing judgment (Te Waka Hi Ika O Te Arawa v Treaty of Waitangi Fisheries Commission see Mäori LR April 1999) Robin Hapi, Chief Executive Officer for the Treaty of Waitangi Fisheries Commission writes:

"The overall impressions given by your editorial remarks are that the Commission was trying to force through its report and in doing so sought to rely upon the absence of an undertaking as to damages."

"This is wrong. No such undertaking was sought by the Commission. To the extent that an undertaking as to damages was discussed, it was in the context of the submissions by Mr Upton QC on behalf of the Treaty Tribes Coalition. Even then, the matter was not pursued with particular vigor."

 

Mäori Land Court & Appellate Court

Knausenberger and Potae and Harataunga 2B2 Block

100 Hauraki MB 128. 25 May 1999. Carter J

This case concerned a right-of-way over the Harataunga 2B2 block which provided access to a beach for members of the public. There were concerns that the public use of the right-of-way was having adverse effects on the sand dunes and beach. The history of the right-of-way was that in 1942 the Mäori Land Court cancelled all existing partitions of the Harataunga No 2 block (which had been made in 1907), to allow for a repartition of the block. At the same time, it created a roadline which ran across what became the 2B2 block. It was argued that this 1942 roadline was intended only for the benefit of the 2B2 block and one other block. However, the evidence showed that the court in 1942 intended for the roadline to provide access to a number of blocks which might subsequently be created by further partition orders. Also, since the 1942 court order did not place any restriction on rights of use of the roadline, the law provided that it could be used as if it were a public road (s416(1) Mäori Affairs Act 1953). Further to this, the court had actually recommended in 1942 that the roadline be set aside as a public road, but this recommendation had never been followed up.

After 1970, the new owner of the 2B2 block built a fence around his kiwifruit orchard which affected the roadline. An application was made at that time to the land court to determine what classes of persons could use the 1942 roadline, on the basis that it had been used for over 30 years as public access to the beach and to traditional fishing grounds and shellfish beds. The land court heard evidence on the matter and reserved its decision to allow for discussions. In 1980, at the request of the parties, it made orders cancelling the roadline and creating a right-of-way which was a variation of the roadline route.

Held: on a preliminary issue, there was a question whether the court could create the right-of-way in 1980 since the Harataunga 2B2 block had become General land by that time. The court in 1980 had full jurisdiction to make the orders. In 1980 the court had the power to cancel or vary any roadway which it had previously laid out (s423/1953). The court order laying the roadline in 1942 created a separate area of land, which remained Mäori land despite the change in status of the adjoining 2B2 land. In addition, the court had power to lay roadways over any Mäori land that ceased to be Mäori land after 15 December 1915, without the consent of the owners (s418(1)/1953).

In 1980 the court in fact made the orders under s30(1)(k)/1953. But this was a technical slip. It had full jurisdiction under s423/1953. In such circumstances the slip is not sufficient to overturn the orders since jurisdiction existed to make them (see Proprietors of Mangakino Township v Mäori Land Court & Hemi (Unreported CP252/97 5 May 1998)). The order was also made with the consent of all parties in this case.

There was also no question that the court in 1980 had the power to cancel the existing roadline and vest title to it in the owner of 2B2 (s424/1953).

As to the main issues, the order establishing the right-of-way in 1980 provided that it was created in favour of three persons but that they held the grant of the right-of-way as fiduciaries or trustees for the general public who were entitled to use the roadway. They had powers to impose conditions on the use of the right-of-way, but there must be reasonable grounds for such limitations. The right-of-way could be used by people on foot and by vehicles, but contained no provisions for parking.

Dealing with several applications to replace the existing trustees of the grant:

The proposal for several owners of land over which the right-of-way passed to be appointed as trustees because they could prevent damage to the beach and environs must be rejected. The right of way was not intended to be administered to control the general activities of the public along the beach. That was a matter for fencing of boundaries and trespass actions if need be. Use of the beach by vehicles was a matter for the relevant local authorities, as was concern about over-fishing and despoliation of shellfish beds. In addition, each of the proposed appointees faced a potential conflict of interest as landowners who would have an interest in protecting the value and benefits of their beachfront properties.

The proposal to appoint two replacement grantees for grantees who had retired or died should be accepted. These proposals came from the surviving grantees and this seemed to be in accord with the nature of the grant of the right-of-way. As to the power to make this change, the 1980 court order contained no provision for the replacement of trustees. However, under Te Ture Whenua Mäori Act 1993 the land court has jurisdiction to vary any "roadway" laid off by order of the court whether before or after the passing of that Act (s322/1993). Although the 1993 Act does not define what a "roadway" is, historically, it has a particular technical legal meaning in Mäori land parlance. Mäori land acts have over the years provided for rights of access to be created and have variously called them roadlines, roadways, or rights-of-way. The generic term for them is roadway. The Mäori Affairs Act 1953 previously defined roadway to include all land used as roadway, whether the order creating the right referred to a road, roadway, roadline, right-of-way or any other name. Accordingly, s322/1993 must be intended to cover all forms of orders providing access, whatever the status of the land is today. This avoids a difficult legal situation where land has changed in status since the roadway order was made. To hold otherwise would put such orders outside the jurisdiction of the court.

Accordingly, under s322/1993 the roadway order would be varied to appoint the new grantees. Since the grantees were akin to trustees for the public, the court could be guided by s41 Trustee Act 1956 which provides that surviving or continuing trustees were the persons who should suggest and appoint replacements. Since the remaining grantees had suggested the replacements, s41 had essentially been followed in this case, although with court oversight, having regard to suitability and acceptability. One of the replacements had raised money and undertaken maintenance of the roadway and the other was the daughter of a former grantee. There was no opposition expressed to their appointments, while there was considerable opposition expressed to the proposal to appoint the landowners over whose land the right-of-way passed.

 

Mäori Land Court Consultation on Records

May 1999

The Mäori Land Court is conducting a series of nation-wide hui to discuss proposals for the preservation of the Court’s records. Because genealogical information (whakapapa) is the basis of most of its records, the issues are especially sensitive for Mäori. A brochure published by the Court describes these issues as falling within two broad categories:

• Sensitivities about access to the information and the knowledge contained in the Court’s records;

• Sensitivities about the ownership and custody of records.

A key proposal is to electronically image the Court’s records. The brochure states that this would improve access to the records, but notes that it could also result in more conflicts between Mäori landowners given that the records contain inaccuracies.

The brochure also notes a possible conflict between the legal position (whereby it is the Government that owns the Court’s records) and what is likely to be the popular Mäori view ("that the records belong to them because it recorded their history").

The present round of consultation ends on 18 June 1999.

 

Waitangi Tribunal

Extract from speech to Mäori students’ graduation

Hon Tuariki Delamere, MP for Te Tai Rawhiti. May 1. Massey University, Albany campus, Auckland

It seems to me there are three fundamental questions that must be settled if we are to make progress in [Treaty settlements].

The first is the distribution and use of the assets of Te Ohu Kai Moana [the Treaty of Waitangi Fisheries Commission]. It is a national disgrace that hundreds of millions of dollars worth of fishing assets are still tied up and not working for the benefit of all Mäori. This is a log-jam that must be broken, and broken soon. The second is the question of the Crown’s attitude towards land that the Crown admits it took wrongly, i.e. stole, from Mäori and which the Crown still retains ownership and/or control. The third fundamental question is the role of Mäori in the ownership, control and management of New Zealand’s natural resources, mineral resources, lakes, rivers and foreshores.

In order to make decisive progress on these questions, I propose that a special Treaty of Waitangi Tribunal be established to come up with the answers. In order for those answers to be seen as credible and compelling, I propose that the Tribunal be comprised of the Chief Justice, Sian Elias; Lord Cooke of Thorndon; Justice Eddie Durie; Justice David Baragwanath and the Rt Reverend Sir Paul Reeves.

In the matter of the fishing assets of Te Ohu Kai Moana, there will never be consensus among all the competing interests. It will always end up in the Courts, and it will always result in only the lawyers winning and sharing in the distribution of our, I repeat, our, assets. The only way to resolve the impasse is to legislate a decision, yet because of party politics and iwi/hapü politics among Mäori MPs, Parliament also will never agree. Therefore I propose that the decision of the Special Waitangi Tribunal for fish would be binding upon and enacted by Parliament.

… In the case of the land that was stolen and has never been returned, I have endured a great deal of frustration in attempting to get my Government colleagues to focus on the matter. …

I have recently written to Justice Durie, as chairman of the Waitangi Tribunal, seeking special tribunal consideration of this question as a generic matter.

In that correspondence, I said: "I note you advised that you considered an investigation by the Waitangi Tribunal on this matter would be of benefit to both Mäori and the Crown. However, I also note your advice that legislation precluded the Tribunal from doing so as the Tribunal can only consider specific claims and not claims of a generic nature."

The letter went on later: "You may recall that I believe, pursuant to my understanding of the Westminster system of justice, that: 1) where any land was wrongly taken by the Crown and where some of that land is still in possession, ownership or control of the Crown, then said land should be immediately returned without condition and without cost to the original owners; and where any land wrongly taken by the Crown and since disposed of by the Crown then the Crown should enter into compensation negotiations for the loss of those lands which were disposed of."

The Special Tribunal I have proposed today would be empowered to consider the generic question and make a recommendation to Parliament.

Similarly, in the third fundamental question I proposed, the special Tribunal would consider what is the legitimate role of Mäori in the ownership, control and management of New Zealand natural resources, rivers, lakes and foreshores and make a non-binding recommendation to Parliament.

[Ed: this proposal has been rejected by Doug Graham, Minister in Charge of Treaty of Waitangi Negotiations.]

 

Other courts & tribunals

The Association of University Staff of New Zealand Incorporated v The University of Waikato

CP12/99. High Court Hamilton 31 March 1999 Hammond J

The Vice-Chancellor of Waikato University sought to restructure the university to achieve management and economic efficiencies. After some consultation with affected groups, he issued a memorandum indicating that he planned to restructure the existing seven schools of studies into four faculties of Law and Management, Science, Engineering and Computing, Arts and Social Sciences, and Education and Mäori and Pacific Development.

The Association of University Staff and several individuals, including the Mäori academic Wharehuia Milroy, filed proceedings to review the decisions of the Vice-Chancellor, and sought various declarations that his decisions were unlawful, invalid or illegal.

Held: The Education Act 1989 specifically preserves academic freedom (s161) and provides that the governing body of the university is the University Council. The Council appoints a chief executive to manage the academic and administrative affairs of the institution (s196). Duties of the Council include, in the performance of its functions and exercise of its powers, a duty to "acknowledge the principles of the Treaty of Waitangi". The Council must establish an academic board, consisting of the chief executive, members of the staff, and students, to advise it on matters relating to study or training, awards, and other academic matters (s182). It is obliged to consult with that academic board on any academic matter before taking a final decision on that matter. The Vice-Chancellor had not specifically consulted with the academic board prior to arriving at his decisions concerning restructuring.

The Education Act 1989 gave the chief executive full powers to "manage" administrative matters of the university, but not academic matters. Those rested in the first instance with the academic board, which then reported to the Council of the university. The Vice-Chancellor then managed the resulting decisions.

The University of Waikato was established in 1959. Since its inception it has been at the forefront of initiatives for Mäori. Its commitment to women’s issues, Mäori issues and social issues is distinctive.

The Vice-Chancellor presented his restructuring as essentially administrative, but it in fact had important academic implications. The structure of courses, how they are taught, what the purpose of each course is perceived to be, and how well they will be supported turns on a fundamental appreciation of the general philosophy and direction of an academic entity. Mäori and Pacific Studies were particularly affected.

The academic aspect of the restructuring was outside the powers of the Vice-Chancellor. Section 182 Education Act 1989 obliged the Council to refer that matter to the academic board for advice, and then make a decision for the Vice-Chancellor to implement.

The Court felt bound to record its "gravest reservations" about the impact of the proposals on the Mäori studies school, Te Pua Wananga Ki Te Ao. The Vice-Chancellor argued that it could be tied into studies in the School of Education. The plaintiffs argued that Mäori studies was a field of study in its own right and that the proposal was paternalistic. Thus there was an academic question raised by the proposed restructuring. The University was obliged to respect the principles of the Treaty of Waitangi, and those principles had been discussed by the Waitangi Tribunal, the Royal Commission on Social policy in 1988 and the Court of Appeal in NZ Mäori Council v AG [1987] 1 NZLR 641. There was a duty to act reasonably and in good faith. Fundamental guarantees of the Treaty included protection of culture. In light of those considerations "can it really be said that this University is observing both its Treaty and academic obligations by folding Mäori studies into a generalist academic faculty?" The mere statement of the problem strongly suggested that it was not an issue for the Vice-Chancellor to determine alone.

In determining the issue, academic commentary on what is relevant to self-determination and "standing aloneness" was relevant. This suggested that six criteria are relevant:

• That a given group has a common character, and a common culture.

• That persons growing up among members of the group will acquire the group culture.

• That membership in the group is a matter of mutual recognition.

• That membership of such groups is an important identifying feature for each about himself or herself.

• Membership of the group is a matter of belonging, not achievement.

• Such groups are anonymous, "where mutual recognition is secured by the recognition of general characteristics."

With regard to the allegation that there had been insufficient consultation, this ground had not been made out to the standard approved by the Court of Appeal in Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671, although that was not a high test. A "best practice" test would have produced a different result. Public administration practice today in government departments, local government and commerce would require a different approach to this sort of restructuring, including consideration of the process of change itself.

[Ed: this case is interesting both because it considers the issue of the Treaty in relation to education and contains a discussion of self-determination as it relates to education. The very general reference to the Treaty of Waitangi in the Education Act has been given real "teeth" in this decision. The case has implications for restructuring in other educational institutions. It also follows on the heels of the Waitangi Tribunal report which recommends better support for wänanga (see Mäori LR April 1999 p1).]

 

Carter Holt Harvey Forests Ltd v Attorney-General: Juken Nissho Ltd v Attorney-General

CL9/98 & CL17/98. High Court Auckland. 29 March 1999. Paterson J

In 1989, the Crown, the New Zealand Mäori Council and the Federation of Mäori Authorities Incorporated agreed on a regime that would allow the Government to dispose of its commercial forestry assets by selling the cutting rights in respect of the trees while ensuring the integrity of Treaty claims in respect of the land on which the trees grew. The agreement, which followed court proceedings, was given legislative effect by the enactment of the Crown Forest Assets Act 1989.

Carter Holt Harvey and Juken Nissho owned Crown forests and held Crown forest licenses (CFLs) under the Crown Forest Assets Act 1989. The CFLs were in common form and regulated the terms and condition upon which the companies managed and operated forests growing on Crown land. Both companies disputed a question of law arising out of an arbitral award and were granted leave to appeal to the High Court pursuant to Article 5(1) of the Second Schedule of the Arbitration Act 1996. The dispute centred on the interpretation of the term "Land Value" as it appears in clause 1.1.6 of the CFLs for the Onewhero forest (owned by Carter Holt Harvey) and Aupouri forest (owned by Juken Nissho).

Background

The CFLs provided for the payment of an annual licence fee in respect of each forest and for a review of the licence fees every three years. Clause 4.3, relating to the periodic review of the licence fee, stated:

"The licence fee shall be reviewed on the 31st day of October 1993 and every successive anniversary thereafter (each date being herein called a "Review Date") in accordance with the following provisions so that the yearly licence fee payable for the next three year period commencing on any Review Date will be 7% of the Land Value as at that date: ..."

Clause 1.1.6 defined "Land Value" in the following way:

‘Land Value’ in relation to the Land (as defined in Clause 1.1.5) as at any Review Date (as defined in Clause 4.3) means the sum that the Land, if unencumbered by any mortgage or other charge thereon, might be expected to realise at that Review Date if offered for sale on such reasonable terms and conditions as a bona fide seller of the Land might be expected to impose but adjusted as may be necessary to take into account the terms and conditions of this Licence."

The Court was required to determine the following issues:

• Whether Land Value in clause 1.1.6 of the CFL was the value of the absolute or pure fee simple estate in the land, or whether it is the value of the owner’s estate and interest in the land; and

• The extent to which the restrictions on sale in s35 of the 1989 Act are to be taken into account under the provision of Clause 1.1.6 which states: "but adjusted as may be necessary to take into account the terms and condition of this Licence".

Held: It was necessary to interpret the words used in their plain and ordinary meaning in the context of the document in which they appear and against the background of the CFL regime and the purpose of the Act. Accordingly, Land Value in clause 1.1.6 of the CFL was the pure or absolute fee simple in the land and not the owner’s estate or interest in it. The CFL regime and section 35 of the Act, which is a restriction that applies to the Crown only and is therefore in the nature of a personal restriction, were to be ignored in setting the value. However, the terms and conditions of the CFL (as opposed to the existence of the CFL itself) are to be taken into account and an adjustment to the Land Value is to be made, if necessary, to compensate the licensee for any adverse terms and conditions of the CFL. In the case of a licence fee fixed on the basis of a specified percentage of the Land Value, this is done by reducing the Land Value by an appropriate amount.

[This is one of two cases, reported in this issue, that deals with aspects of the pro forma Crown forest licences. The licences allow for a review of the licence fee every three years (the focus of this case) and for a review of the basis for fixing the licence fee once every nine years (the focus of the following case).]

 

Te Runanga O Ngäti Awa v Attorney-General & Others

CP73/99. High Court Wellington. 21 April 1999. Goddard J

On 21 December 1998, Te Runanga O Ngäti Awa, a Mäori Trust Board affiliated to the New Zealand Mäori Council, signed on behalf of Ngäti Awa iwi a Heads of Agreement with the Crown for the settlement of Ngäti Awa’s Treaty of Waitangi claims. A key element of the agreement was the return to Ngäti Awa of blocks of land in the Rotoehu and Kaingaroa forests, subject to a number of conditions. Both forests were subject to standard Crown forest licences, held by the second defendants Forestry Corporation of New Zealand Limited and Citic New Zealand Limited. Section 4.7 of the licences provided for a general review of the basis for fixing the licence fee every nine years. In July 1998, the Crown and the second defendants invoked the prescribed review procedure but were unable to reach an agreement under its dispute resolution process and ultimately the High Court appointed an umpire – the third defendant, a Mr Gribble – in December 1998 under the provisions of the Arbitration Act 1996, which imposes a requirement for confidentiality. The umpire’s decision would be final and binding.

The Runanga sought interim orders staying the review process. It submitted that the process provided for in section 4.7 was not an arbitration within the meaning of the Arbitration Act 1996 and, therefore, the appointment of the umpire under that Act was unlawful and amounted to a variation of the licences to which the Runanga had not agreed when the licences were originally prepared. Given its special relationship with the Crown, as evidenced by the Heads of Agreement to settle Ngäti Awa’s Treaty claims, the Runanga had a legitimate expectation that it would be consulted and have input into matters affecting the value of the forest blocks and the licence fees in respect of them. Alternatively, the Runanga pleaded that it should participate in its own right in the review of the licences so as to protect its interests in them.

As the first defendant, the Crown argued that no reviewable statutory powers were being exercised, that there was no serious question to be tried, that the Runanga had no legitimate expectation in relation to the review and that the dispute resolution process contained in section 4.7 of the licences was an arbitration as a matter of law. The second defendants provided evidence of an excellent relationship with Ngäti Awa and did not object to the Runanga having "some input into the Crown’s role in the arbitration". However, they did object to the contention that they should treat Ngäti Awa as if it were a licensor or co-licensor for the purposes of the review procedure. The Crown had given notice that the level of licence fees would increase by almost $5 million per year. The second defendants submitted that further delaying the completion of the review process would strain them financially, particularly given their view that the current fees were already "excessively high".

Held: The process provided for in section 4.7 of the Crown forest licences was essentially arbitral in nature and in form. Therefore, there was no serious issue for determination in relation to the meaning and purpose of section 4.7. The exercise of the review provisions in the licences by the Crown was the exercise of a statutory power amenable to review. However, while Ngäti Awa enjoyed a special position in relation to matters affecting the forest blocks by virtue of the Heads of Agreement it had signed with the Crown, that position and the Runanga’s interest in the review of the licence fees did not in the circumstances amount in law to a legitimate expectation that it participate in the process to review the basis for fixing the licence fees. There was no evidence of any economic loss that might prejudice the Runanga, whereas there was evidence of tangible commercial prejudice to the second defendants if the interim relief were granted. Further, the Court faced a difficulty in setting the parameters of the participation that the Runanga was seeking. The matter in issue was really one that needed to be worked out by the Runanga and the Crown themselves, as Treaty partners. The plaintiff’s applications were declined.

[Ed: In fact, as the judgment records, the Runanga was not shut out of the review process. Since the proceedings were instituted, the Crown had accepted a Ngäti Awa representative as an expert adviser within its review team, and the second defendants were not opposed to the inclusion of representatives. The outstanding issue was the scope of the representative’s role within the Crown’s team and the extent of the consultation and participation that the Runanga should enjoy.

The case is interesting for the Judge’s reliance on the obiter comments of President Cooke (as he then was) in the 1989 case that gave rise to the Crown forest licensing regime: "We think it right to say that the good faith owed to each other by the parties to the Treaty must extend to consultation on truly major issues" New Zealand Mäori Council v Attorney-General [1989] 1 NZLR 142.

In coming to her conclusion that the Runanga did not have a legitimate expectation to participate in the review, her Honour did not believe the review of the basis for fixing the licences was such a truly major issue. Rather, these were purely contractual matters in relation to which the Runanga had no standing as a party. However, her Honour accepted that that position would alter if ownership of the land were transferred to Ngäti Awa.]

 

The Confederation of Chiefs of the United Tribes of Nu Tireni (New Zealand) & Hikuwai & Another v Director-General of Fisheries & The Attorney-General

M298-SD/99. High Court Auckland. 29 April 1999. Anderson J

The Confederation of Chiefs of the United Tribes of Nu Tireni claimed to be recognised by Mäori as kaitiaki or guardians of the north of New Zealand. They issued instructions to Hikuwai and others to undertake customary fishing operations. The consequence was that Hikuwai and others were charged with offences under the Fisheries Act 1983 for taking fish by "commercial fishing", which included every method of offering fish for some valuable consideration, including barter.

Since the passing of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, customary fishing rights had been restricted to those recognised by regulations. The Fisheries (Amateur Fishing) Regulations 1986 which were in force when the fishing was undertaken provided that fish could be taken in breach of amateur fishing regulations provided it was for hui, tangi or other traditional non-commercial purposes. Such taking had to be approved by the Ministry of Fisheries, or the Ministry could delegate the power to various Mäori bodies, including "kaitaiki of the tangata whenua". The Confederation believed that that all of these provisions invalidly restricted their traditional fishing rights, or in the alternative, sought status under the provisions. Consequently, they sought, among other matters:

• A declaration that they be recognised as kaitiaki or guardians of Mäori of northern New Zealand in accordance with Mäori custom. They had previously sought such recognition from the Minister of Fisheries so that they could authorise takings under regulation 27, but had received no reply;

• An order that any constitutional change should include the protections extended to Mäori law, customs and usages by s71 of the New Zealand Constitution Act 1852 (the laws, customs and usages of the aboriginal inhabitants of NZ in all their relations with one another to be maintained so far as they were not repugnant to the general principles of humanity). It was alleged that the Constitution Act 1986 was contrary to the 1852 legislation, and was not an Act for the peace, order and good government of New Zealand. It was also alleged that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 was challenged on the basis that it did not conform to terms of the Deed of Settlement between Mäori and the Crown which preceded the Settlement Act 1992.

• Damages of $250,000 were also sought.

In these proceedings the confederation and others asked the High Court for interim relief in the form of declarations that the Ministry of Fisheries should not proceed further with any prosecutions affecting Mäori fishing rights until these larger issues were fully argued before the courts.

Held: the interim relief could not be granted. Interim relief could only be given if the position of the confederation and others would somehow be worsened if the prosecutions proceeded while they awaited a hearing on these larger issues.

With regard to the declaration the confederation was seeking which would confer status on them as kaitiaki. Putting aside the fact that the prosecutions were for offences under the Fisheries Act itself and not under regulation 27, the confederation was seeking to attain through its declaration a new position by being recognised as kaitiaki. Their current standing would not be affected in the meantime. Therefore it was not necessary to put the fisheries prosecutions on hold until that matter was argued.

With regard to the challenges to the commercial fishing legislation on constitutional grounds, including the grounds that the Fisheries Settlement Act 1992 and other legislation was invalid because it failed to comply with the Constitution Act 1852. Those were matters on which the courts had no power to make rulings in any event. The Court of Appeal considered a similar attempt to apply the Constitution Act 1852 in R v Knowles (CA146/98 12 October 1998. See Mäori LR Dec 1998/Jan 1999 p1). It found that, since Parliament was given full law making powers in 1947, and the Constitution Act 1852 was fully repealed in 1986, the courts were obliged to give effect to those statutes, and could not challenge the law making power of Parliament. Accordingly, since the full case could not possibly succeed, there was no need to put the fisheries prosecutions on hold until that full case was argued.

 

Parata & Others v Northland Regional Council & Whangarei District Council

A53/99. Environment Court. 7 May 1999 Shepphard J (presiding) PA Catchpole, F Easdale

The Northland Port Corporation (NZ) Ltd, a port company under the Port Companies Act 1988, applied for various consents to establish a deep water port in the Whangarei Harbour. The proposal required consents both from the district and regional councils as well as consents for restricted coastal activities from the Minister of Conservation. A joint hearing committee decided to grant all consents required from the regional and district councils, and recommended that the Minister of Conservation grant all necessary consents for the matters under his control. Various appeals were filed, including an appeal from Mr Parata concerning the relationship of Mäori with sites in the area (s6(e)), kaitiakitanga (s7(a)) and the application of the Treaty of Waitangi and the adequacy of consultation (s8). There was also an appeal from a local iwi group (Patuharakeke) raising similar matters. Mr Parata was associated with two local hapü of the area (Ngätikorora and Ngätitaka of Ngätiwai iwi), and was a vice-chairman of, and the resource management convenor for, the local iwi trust board (Ngätiwai Trust Board). His appeal was not brought on behalf of the iwi or hapü, however, but on behalf of his brothers, sisters and grandchildren.

On the first day of hearing of the appeals, it was announced that all appeals, with the exception of Mr Parata, had been settled. Mr Parata sought an adjournment of the hearing for several months, which was considered the following day because of protest action outside the court which disrupted proceedings. His request was refused (parties had been notified 3 months in advance of the hearing date for the appeals). He was instead given several days to prepare his submission to the court. In the next two days the court visited the site of the proposal and made various consent orders concerning the appeals which were settled.

When Mr Parata was then called, and he again sought an adjournment, which was again refused. His legal counsel made opening submissions stating that Mr Parata did not oppose the resource consents, but wanted conditions imposed on the port company to pay various sums towards the establishment of a forum or "kaitiaki structure" to allow tangata whenua to raise issues as the development progressed. He also sought $10,000 in consultation fees for time already spent discussing the proposal with the port company.

He was cross examined on these issues. The following day, Mr Parata dismissed his legal counsel, stated that he was absolutely opposed to the development and left the court. In his absence, the court heard from various witnesses addressing the issues which he had raised. The Port Company proposed a minor amendment to the conditions to address his concerns. The only other person the court heard in opposition was a submitter under s271A/1991 who raised various technical issues. At the end of the hearing Mr Parata unsuccessfully sought to file several statements of evidence.

Held: none of the matters raised by Mr Parata could be upheld. With regard to consultation, extensive discussions with local Mäori had been held. The port company had agreed to an extension to the time for iwi to lodge submissions which was double the period prescribed under the RMA 1991. Meetings had been held with the Ngätiwai Trust Board at which Mr Parata had been present. A consultant for the port company on Mäori issues noted that there was a potential for conflict between Ngätiwai and Patuharakeke with regard to their respective roles in the harbour area, but considered that the issues raised by Mr Parata during consultation had been adequately addressed, including involvement by Ngätiwai in monitoring and restoration works and in membership of a community liaison group and kaumätua group. The port company had provided, among other things, a specialist Mäori planner to assist local groups with their submissions. The issue of kaitakitanga had been isolated as a key issue in consultations, but there was no evidence to support Mr Parata’s contentions that there had been inadequate consultation.

With regard to Mäori relationships with the lands, waters, sites, waahi tapu and other taonga of the area (s6(e)/1991), the court did not have any authority to consider issues relating to the aboriginal title to the foreshore and bed of the Whangarei Harbour, and the grant of a resource consent does not imply any judgment on those matters. Mr Parata raised concerns about accidental discharges, the destruction of middens and scientific studies of the health of the harbour, which were answered by various witnesses for the port company. The company was already required by conditions on the consents to pay sums larger than those sought by Mr Parata towards scientific studies and liaison with local Mäori.

With regard to kaitiakitanga (s7(a)), it was argued that the community liaison group which was proposed with the project would usurp the customary kaitiaiki role undertaken by hapü of Ngätiwai. However, conditions on the consents already provided for a kaitiaiki group to be established. It would not demean the status of kaitiaki or their importance to have other members of the community commenting on the same water quality and environment issues which kaitiaki would be asked to comment on.

None of the grounds advanced by Mr Parata (including a contention that one technical study was based on northern hemisphere data which failed to allow for the "plughole effect" in the southern hemisphere) were made out and his appeal should be dismissed.

The Court then considered (and rejected) various technical points raised by the only other objector (not covered here) and confirmed the consents and recommendations subject to changes agreed between the parties. The court specifically reserved for a later hearing the question of the costs to be paid by Mr Parata.

 

Parliament

Children, Young Persons, and Their Families Amendment Bill (No 2) 1999

287-1

Background

In June 1998, the Waitangi Tribunal issued its report on the Te Whänau o Waipareira claim (Wai 414) (see Mäori LR July 1998 p1). One of the issues in the claim had centred on section 396 of the Children, Young Persons, and Their Families Act 1989 which allows the Director-General of Social Welfare to approve any incorporated body established by an iwi as an "iwi social service" and any incorporated body established by one or more cultural groups that are not iwi as a "cultural social service". The Family Court can then award sole guardianship of a child or young person to an approved iwi social service or cultural social service.

The Department of Social Welfare, through the Community Funding Agency, has applied the 1989 Act in such a way that non-kin based Mäori organisations (such as Te Whänau o Waipareira) are not regarded as iwi social services and consequently cannot obtain sole guardianship of children. Instead, the Department’s policy has been to categorise such organisations as child and family support services, which ordinarily can only be appointed as an additional guardian to an existing or other guardian.

In its report, however, the Waitangi Tribunal expressed its view that:

"children needing care and protection should be placed with the communities where they are most comfortable and where the best care can be provided. That may well be with kin, but not necessarily, for it is always the welfare of the child that should be paramount."

The proposed amendment

As signalled by its long title, this Bill is a direct response to the Waitangi Tribunal’s recommendation that section 396 be amended by substituting the term "Mäori social services" for the term "iwi social service", with consequential amendments to other relevant provisions. However, rather than replacing "iwi social service", the Bill adds the term "Mäori social service" to the Act on the ground that the Tribunal’s recommendation could be perceived as undermining the status of iwi.

The Bill provides that a Mäori social service is any incorporated body that acts for the benefit of a Mäori community in New Zealand (not being an iwi) in a manner that reflects Mäori cultural values and promotes the welfare of that community, holds itself accountable to that community and is recognised and supported by that community. It defines a Mäori community as "1 or more groups of Mäori defined by reference to a geographical area, a community of interest or both".

[Ed: As the explanatory note to the Bill states, this change would not affect the Family Court’s obligation, when making a guardianship order, to have regard to the principles of the Children, Young Persons, and Their Families Act 1989. Among other things, these principles emphasise that where practicable, a child’s or young person’s ties with his or her family, whänau, hapü, iwi and family group should be maintained and strengthened.]

 

From the Budget Speech

Treasurer Hon Bill Birch. May 1999

Improving Outcomes for Mäori People

"Mäori health, education and employment are a national priority. No nation can afford to leave significant numbers of its people lagging behind the rest of the population as a result of historical disadvantage. The Budget builds on many of the proposals developed by the Mäori Commission. It allocates additional resources and improves the focus of existing spending to make further progress in these areas. A sample of these initiatives will give an idea of the approach taken.

Land and business development

The Budget provides $8.2 million over three years for a new special-purpose vehicle, complementing the Ministry of Commerce BIZ scheme, for pre-commercial facilitation for Mäori landowners and potential entrepreneurs.

Improved training and employment

A new Mäori industry-based training programme, piloted in two areas over the next two years, will place unemployed Mäori in permanent jobs using a wage subsidy. The Government, Mäori organisations and employers will share the costs involved in employment and training contracts designed to ensure that the promise of better trade training is secured.

New education and language initiatives

The Government consults closely with Mäori people in developing strategies to make schools responsive to their needs and accountable for delivering improved outcomes. This Budget funds, for example, $6.5 million more over three years for Mäori language materials for immersion classes; an extra $8.1 million to promote Mäori language and develop the first Mäori-only dictionary; and a campaign to raise Mäori expectation about the potential of their children in school.

Health initiatives

Giving Mäori communities the resources and responsibility to respond to their own health needs is a key strategy in improving Mäori health. Next year, the Health Funding Authority will spend about $47 million on health services for Mäori by Mäori, in addition to services from mainstream providers.

Improvements include:

• Regular home health visits for up to 30% of Mäori children and their whänau, and funding to reduce paediatric waiting times. These services are already being developed in 18 locations.

• Work to develop Mäori dental health services (Oranga Niho) including a pilot community-based service from July 1999, and work with the Mäori Health Commission over the next year on proposals for a Mäori primary mental health care programme (Kaimahi Awhina)."

 

Other

Discussion Paper on the Review of the Mäori Development Act 1962

Te Puni Kökiri 12 April 1999

Te Puni Kökiri has released a discussion paper on the review of the Mäori Community Development Act 1962. The Act, which grew out of earlier legislation enacted in 1945, provides for the establishment and powers of the Mäori Association, which comprises Mäori Committees, Executive Mäori Committees, District Mäori Councils and, at a national level, the New Zealand Mäori Council. It also governs the appointment and role of Mäori Wardens.

The discussion paper details a number of the issues affecting the operation of the Act and makes a number of specific proposals and recommendations for reform relating to the New Zealand Mäori Council structures, Mäori communities and Mäori wardens. Underpinning these is an acceptance that legislation is still required for the development of Mäori communities but that any reforms should be based on the Treaty of Waitangi "to reflect the relationship between Mäori and the Crown".

The New Zealand Mäori Council structures

The paper acknowledges that the New Zealand Mäori Council "has been a major contributor to the changing political and social environment", but it respectfully concludes that "the structure has not functioned properly for some time" and that the ability of its members "to operate within the present changing environment is now limited". It states that while Mäori generally have a good knowledge of the Council system, "in most areas it operates poorly or not at all".

The paper recommends substantial modification of the New Zealand Mäori Council "so that it is better able to meet the current and future expectations and needs of Mäori communities on those issues requiring national attention". The new organisation would be subservient to the parent Mäori communities, promoting issues on their behalf that need to be progressed at a national level or a national response based on the views of the communities. The paper suggests that the new organisation be established along similar lines of the Electoral Commission, acting independently of the Crown but required to meet the financial reporting requirements of the Public Finance Act 1989.

Mäori Communities

The paper recognises that the legislation cannot be confined to marae communities only, but needs to recognise that other types of communities, such as that of Waipareira in West Auckland, exist. Accordingly, it recommends that:

"Marae communities or Mäori organisations that perform a similar function to marae, be recognised in the reformed legislation as the basis of Mäori community development."

Mäori Wardens

The paper finds that the country’s 1,164 Mäori Wardens are an important part of Mäori communities, though they operate under legislation that has become outdated, and often without the support of fully functioning Mäori Committees or District Mäori Councils. The paper recommends a name change from Mäori Warden to Kaiawhina and that the wardens’ duties be re-focussed to relate directly to their communities. It suggests that local communities nominate Kaiawhina, who would be appointed by the national body for Mäori Wardens be responsible for their appointment. Currently, District Mäori Councils make nominations for Mäori Wardens and the Minister of Mäori Affairs makes the appointments.

Members of the public have been able to make submissions on the paper and its proposals and recommendations have yet to be considered by Cabinet. Legislation to amend the Mäori Community Development Act 1962 is expected to be introduced into Parliament in September 1999.

[Ed: Although the recommendations are broadly phrased, they are fleshed out in more detail in the body of the paper. The details include proposals for a constitution to govern the relationship between the new national organisation and Mäori communities and how communities would be represented on it.

The paper sensibly acknowledges that Mäori communities are many and varied and that it would be inappropriate for the amended legislation to determine the characteristics that a Mäori community should have. This stance appears to take cognisance of the Waitangi Tribunal’s report on the Te Whänau o Waipareira claim in which the Tribunal found that urban, non kin-based tribal communities may exercise rangatiratanga in particular circumstances (see Mäori LR July 1998 p1).

The paper also proposes the repeal of sections 30 to 36 of the 1962 Act. These are quite remarkable provisions that create a number of offences for unruly behaviour or drunkenness by Mäori and give Mäori Wardens certain powers to deal with Mäori who are drunk or unruly. Section 30(1)(a), for example, creates the following offence for riotous behaviour where any Mäori:

"Disturbs any congregation assembled for public worship, or any public meeting, or any meeting for any lecture, concert, or entertainment, or any audience at any theatre, whether or not a charge for admission has been made, or interferes with the conduct of any religious service in any church, chapel, burial ground, or other public building or place."

Perhaps the most surprising provision is that which empowers a Mäori Warden to retain the car keys of any person "in or in the vicinity of a meeting place, or any other place where a gathering of Mäoris is assembled for any lawful purpose" who is in charge of a motor vehicle but who is incapable of driving.

The Act seems to promote a semblance of marae justice in that it allows a Mäori Committee, if it is satisfied that an offence has taken place, to:

"authorise proceedings to be taken in a summary manner under the Summary Proceedings Act 1957 in respect of the offence or it may, in its discretion, impose on the offender a penalty in respect thereof of such amount as it thinks fit, not exceeding [$20]. (see section 36)"

According to Te Puni Kökiri’s discussion paper, "very few" Mäori Wardens undertake these policing functions today.]

 

Justice: The Experiences of Mäori Women. Te Tikanga o Te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tenei

Law Commission. Report 53. April 1999

In this report the Law Commission deals with the experiences of Mäori women in the New Zealand justice system. Concluding that the system has failed to meet the needs of Mäori women, the Commission explores the background to this situation and suggests "strategies based on the Treaty of Waitangi by which state agencies may best promote justice for Mäori women". It advocates three key Treaty principles to guide change in the justice sector: the principles of partnership (working co-operatively to achieve the best outcomes for Mäori women), participation (empowering Mäori communities to achieve their aspirations), and options (providing Mäori women with a choice of services).

Background

Before the Treaty of Waitangi was signed, Mäori women had access to, and exercised powerful social and political roles. Mäori women were significant as the nurturers and organisers of whänau and hapü, and they could carry rank within a tribe. Mäori women could also have use-rights over land and resources. These rights would not become her husband’s property if she married, and she could hand them on to any or all of her children.

The traditional role of Mäori women was inconsistent with the colonial culture in which power and authority vested in the Victorian male. As Mäori began to internalise colonial values, or these values were imposed, the position of Mäori women was undermined. Exposure to land alienation, disease and Christianity also led to the subordination of Mäori women in society.

The raft of Native land legislation from 1865 onwards destroyed the collective whänau/hapü unit and consequently undermined the values of family and tribal history, language skills and mutual caring and support that maintained it. Marriage, adoption and guardianship laws have all "directly or indirectly ignored Mäori values relating to the structure and constitution of the family". Despite some developments in both statutory and case law that take account of Mäori customs and values, it cannot be said that Mäori cultural identity is secure, or that there is agreement on either the place of a Mäori dimension in the New Zealand legal system.

Mäori women’s experiences

Mäori women with whom the Commission consulted reported a general dissatisfaction with justice services. At a systemic level, there are a number of barriers to justice, including a lack of Mäori personnel in the legal system, ineffective services, and a general disregard for Mäori values such as Mäori language, whakapapa (genealogy) and whänaungatanga (all relationships based on descent and marriage). The low socio-economic status of Mäori women exacerbates these barriers and is a barrier in its own right.

Strategies for Change

The Law Commission’s strategies for change involve:

• Co-ordinating existing services (such as the Strengthening Families Strategy, which involves 11 government departments).

• Developing – and adequately resourcing – new and existing programmes for Mäori women, especially those who are young and "at risk".

• Promoting interagency and community co-operation.

• Ensuring that the performance of justice sector agencies is monitored and assessed.

The Commission considers these strategies to be the minimum requirements to encourage the participation of Mäori women in the justice sector and to ensure the effectiveness of services. It has identified three measures, derived from the Treaty principles, to test their effectiveness:

• Participation by Mäori women at all levels of the justice sector workforce and as voluntary users of justice services.

• Increased autonomy of Mäori women.

• Cultural endorsement.

The Commission observes that this appeared to be the first research that has specifically focused on Mäori women as clients or users of justice sector social services. It notes that many of the issues it identified could equally apply to Mäori men.

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