August 1999 Contents

Māori Land Court & Appellate Court

Status of land – land will be more effectively managed and utilised as General land - White – Maketu A2A Lot 4 DPS 63036 (1999) 1 Waiariki Appellate MB 116

Waitangi Tribunal

Appointment of additional members

Other Courts and Tribunals

High Court – Ngāi Tahu claim boundaries

High Court – meaning of "Māori"

Environment Court – use of Māori in the Court

Parliament

Education (Te Aho Matua) Amendment Bill

Māori Purposes Bill 1999

Ngāti Türangitukua Claims Settlement Bill 1999

Hauraki Gulf Marine Park Bill 1998

Forests Amendment Bill 1999

Other

An Unsettled history. Treaty Claims in New Zealand Today

 

 

Mäori Land Court & Appellate Court

Re KG White & Maketu A2A Lot 4

Appeal 1998/18. 1 Waiariki ACMB 116. 11 May 1999. Marumaru, Carter, Isaac J

This was an appeal from an application under ss135 and 136(1) Te Ture Whenua Mäori Act 1993 to change the status of land from Mäori freehold land to General land which was declined by the Mäori Land Court. The land was 800 m2 and solely owned by the appellant. She owned an adjacent lot with her husband. Because of certain height limit restrictions in the district plan affecting the way in which she must build to take advantage of views from the land, the appellant and her husband planned to build a house extending across both areas. She sought the change in status order in order to gain finance and amalgamate the two land titles and put them in the name of herself and her husband.

Held: s136/1993 requires that, among other matters, the land court must be satisfied that land could be "managed or utilised more effectively as General land" before making an order to change its status (s136(1)(d)). The court must also bear in mind the Preamble to the 1993 Act and ss 2 & 17 which require the court to promote the retention of Mäori land. Those provisions were considered in In Re Loma Cleave, part Orakawa 3B Block 4 Taitokerau ACMB 95 where a change of status to facilitate a sale was involved. In that case the court stressed not only the importance of promoting retention, but also of applying the provisions on a case by case basis. Therefore, in this case the land court had been correct in considering the principles expressed in the Preamble, and ss2 & 17. The wording of s136(1)(d) mirrors the wording of s17(1)(b) which refers to the management of Mäori land as Mäori land. But Parliament also clearly contemplated in s136(1)(d) that there would be times, notwithstanding the principle of retention, when the status of land should be changed. Accordingly, if, after affording due consideration to the principles and objective of the Act, the court was still satisfied that the requirements of ss135-136 had been complied with, then a change of status order should issue.

The lower court was wrong to assess the application purely in "objective" terms, that is, not considering the personal wishes of the owners at all but only considering in an objective sense whether the land would be better utilised as General land, or could be built on in its own right. The wishes of the owners must form part of the consideration. Indeed, s17(2)(a) requires the court to also ascertain and give effect to the wishes of the owners where possible.

In addition, s136(1)(d) only refers to management and utilisation, not development. The proposal would allow for the better development of the land, and because the development would benefit the applicant and her family, the change of status would also provide for more effective management and utilisation of the land. The desirability of both spouses being involved in the ownership of a house is recognised by s296/1993 which allows partitions of Mäori freehold land for dwellings and the vesting of land in both spouses.

Further, the application did not seek to change the status of the land in order to sell, but rather to enable residential development. A continuing relationship of the owner with the land would be facilitated. Finally, no objections were received to the application, despite extensive public notification. An order would be made declaring the land General land.

At the outset of the hearing the court considered an application under s55(2) & (3)/1993 to introduce further evidence including land court records and a letter from the ANZ bank indicating that it preferred not to lend against Mäori freehold land. Section 55(3) specifically allows land court records to be referred to even if they were not raised at the earlier hearing. Section 55(2) provides that further evidence is allowed on appeal only where the court is of the opinion that it will enable it to reach a just decision. The provision was considered In Re Whareongaonga & Skuse (1973) 30 Gisborne ACMB 158 andDragievich v Marinovich [1969] NZLR 306 and In Re Motatau 5J2B Te Hake & Ors v Board of Mäori Affairs [1963] 1 Tokerau ACMB 182. The evidence should be allowed in this case because, there being only one party, there was no prejudice to any other party, the evidence was pertinent, and the appellant may have been discouraged from raising it by a misunderstanding of comments of the judge in the lower court that she was to restrict her evidence to non-personal issues.

 

Waitangi Tribunal

Memorandum on the appointment of an additional member to the Tribunal inquiring into the Indigenous Fauna and Flora claim

Wai 262. Doc 2.159. 4 August 1999. Durie J

In May 1999 the Chairperson issued a memorandum in which he notified an intention to appoint another member to the tribunal constituted to inquire into the Indigenous Fauna and Flora claim (Wai 262). That tribunal had commenced hearings in September 1997 and by May 1999 had heard seven weeks of evidence amounting to approximately half of the claimants’ traditional evidence. The memorandum stated that the appointment would "increase the Tribunal’s capacity to deal with the complex issues before it". The Crown opposed the further appointment. The Chairperson conducted a conference to hear the conflicting views of Crown and claimant counsel on the proposal. At the conference, the tribunal’s director also explained that, on account of his health and the likely length of the inquiry, the presiding officer sought the assistance of a further legal member to assist him.

Held: In the absence of a specific statutory provision allowing it to do so, the tribunal lacked the jurisdiction to appoint the additional member to the Wai 262 inquiry. It was not necessary to consider whether the appointment was, in the circumstances, contrary to natural justice; the issue could be determined by interpreting the proper construction of clause 5 of the Second Schedule of the Treaty of Waitangi Act 1975, which relates to the constitution and sittings of particular tribunals. The relevant parts of clause 5 were:

5. Sittings of Tribunal - (l) The persons to constitute the Tribunal for the purposes of any sitting of the Tribunal shall comprise -

(a) As presiding officer -

(i) The Chairperson; or

(ii) A Judge of the Mäori Land Court appointed by the Chairperson to act as presiding officer; or

(iii) A member of the Tribunal appointed by the Chairperson to act as presiding officer; and

(b) Such other members of the Tribunal (being not less than 2 and not more than 6) as are appointed by the Chairperson.

(4) Sittings of the Tribunal shall be held at such times and places as the Tribunal officer from time to time appoints.

(5) Any sitting of the Tribunal may be adjourned from time to time and from place to place by the Tribunal or the presiding officer.

(6) The powers conferred on the Tribunal are exercisable notwithstanding the absence from any sitting of the Tribunal of any of the persons constituting the Tribunal for the purposes of the sitting so long as -

(a) The presiding officer is present; and

(b) At least 2 of the other members constituting the Tribunal for the purposes of the sitting are present; and

(c) At least one of the members present is Mäori.

(8) The Tribunal may meet in private or in public, as the Tribunal from time to time decides. The presiding officer shall cause such notice as he or she thinks fit to be given of any public sitting of the Tribunal to persons likely to be affected thereby.

(9) Except as expressly provided in this Act, the Tribunal may regulate its procedure in such manner as it thinks fit, and in doing so may have regard to and adopt such aspects of te kawa o te marae as the Tribunal thinks appropriate in the particular case, but shall not deny any person the right to speak during the proceedings of the Tribunal on the ground of that person’s sex.

The chairperson considered that clause 5 provides a "complete code for the constitution of Tribunals for the purposes of any particular inquiry, and that any departure from the norm, as with the absence of members during the conduct of the inquiry, is only that which the legislature has specifically allowed." On this construction, the word "sitting", as it appears in clause 5, must be taken to have different meanings in different places. In clause 5(1), for example, it must refer to the sum of hearings on particular inquiries, but, in clauses 5(4), (5) and (6), the reference must be to particular hearings.

A comparison with the Te Ture Whenua Mäori Act 1993, and previous Native Land and Mäori Affairs legislation, reinforced the chairperson’s view that there must be a specific statutory provision for the addition of a member to a tribunal once hearings had started. Section 38 of Te Ture Whenua Mäori Act 1993, for example, specifically provided for proceedings to be continued by a judge or judges other than the judge or judges before whom they were commenced. The chairperson rejected any contention that the tribunal could gain a jurisdiction to appoint additional members merely by the consent of the parties. Nor did he consider that clause 5(9), which empowers the tribunal to regulate its procedure as it thinks fit, except where the Treaty of Waitangi Act 1975 specifies a particular procedure, assisted an alternative argument. The appointment of members was severable from the conduct of proceedings and the power in clause 5(9) was "not a power for the Tribunal to do that which is unfair".

[Ed: while the chairperson says clause 5 is a "complete code" for the constitution of tribunals for the purposes of any particular inquiry, his conclusion in fact means that it is a partial code in the sense that the rules of natural justice must be considered alongside clause 5.

This conclusion is based on clause 5(6) of the Second Schedule which provides for a member to be absent from a particular sitting, not for the appointment of members. It seems to place a lot of emphasis onto clause 5(6) to conclude that it demonstrates that "the legislature has actually prescribed the circumstances in which the rules of natural justice may not apply so far as the appointment of members is concerned" (italics added).

This decision is likely to create occasional, but real, practical difficulties for the Waitangi Tribunal, where, given the nature and extent of the claims involved, inquiries typically take several years to complete, and where new and difficult issues requiring particular expertise may only emerge in the course of proceedings. Recognising the difficulty, the chairperson in his decision has asked the tribunal’s director to consider proposing a legislative amendment.

However, as the chairperson noted, the tribunal has on rare occasions appointed additional members to inquiries after proceedings have started. The additional appointments have been made on the assumption that the reference to "sitting" in clause 5(1) was to any hearing in the course of a single inquiry. Should they now be cancelled or declared invalid for want of jurisdiction?]

 

Other courts & tribunals

Ngäti Apa Ki Te Waipounamu Trust v Her Majesty the Queen & Others

CP115/98 High Court, Wellington. 24 June 1999. Ellis J

This was an application to strike out an application by Ngäti Apa Ki Te Waipounamu Trust (Ngäti Apa) for judicial review of a 1990 Mäori Appellate Court decision that had determined, by way of case stated from the Waitangi Tribunal, that rights of ownership in respect of north western parts of the South Island belonged exclusively to Ngäi Tahu. The application for strike out was brought by Te Runanga O Ngäi Tahu on the grounds that:

• Ngäti Apa’s statement of claim disclosed no cause of action in that judicial review was precluded by the combined effect of the Te Runanga o Ngäi Tahu Act 1996 and the Ngäi Tahu Claims Settlement Act 1998.

• The proceeding was vexatious and an abuse of process in that it attempted to re-litigate matters that the High Court had already determined (see M Sadd and Te Runanga A Rangitane ki Wairau Inc v The Waitangi Tribunal and others in Mäori LR June 1994, p3).

• The proceeding was an abuse of the process of the Court in that it was commenced for a political purpose and Ngäti Apa had failed to progress its case since commencing the proceeding.

• It was inconceivable that relief would be granted in that Ngäti Apa was seeking to review a decision 1) eight years after it was made, 2) two years after the decision was "enshrined" in s5 of the Te Runanga o Ngäi Tahu Act 1996, which defined the takiwä (district) of Ngäi Tahu whänui, 3) two years after the deed of settlement was entered into between Ngäi Tahu and the Crown to settle Ngäi Tahu’s Treaty claims and 4) almost one year after the Ngäi Tahu Claims Settlement Act 1998 was given royal assent.

• The whole of the Ngäi Tahu settlement and subsequent legislation was predicated on established boundaries.

The Crown supported the application and further submitted that granting the relief sought would be contrary to the doctrine of Parliamentary sovereignty. The Mäori Appellate Court advised that it would abide the court’s decision.

Held: Although Te Runanga o Ngäi Tahu Act 1996 did not explicitly state that Ngäi Tahu’s takiwä was its exclusively, the Act had to be "interpreted in its factual context as understood by all concerned including Parliament at the time". The Treaty of Waitangi Amendment Act 1988 (by which the Waitangi Tribunal was empowered to refer the case stated to the Mäori Appellate Court), the Mäori Appellate Court’s decision and the report of the Waitangi Tribunal on the Ngäi Tahu claims made it "plain" that s5 of Te Runanga O Ngäi Tahu Act 1996 "means exclusive Takiwä for the purposes of Treaty claims". Similarly, while the Ngäi Tahu Claims Settlement Act 1998 did not expressly exclude claims by other tribes over the same area as the takiwä of Ngäi Tahu, the Act was "drawn and the settlement concluded on the understanding that Ngäi Tahu’s claims over its takiwä were exclusive claims and valid claims by other tribes were non-existent following the Mäori Appellate Court decision". Accordingly, Ngäti Apa’s application for judicial review must fail on account of the statutory bar and should be struck out.

However, his Honour indicated that, if he were wrong in reaching that conclusion, in his view "the settlement of just claims is of vital importance to the well-being of the people in New Zealand" and he would not strike out the cause of action on any of the other grounds set out in the application. Ngäti Apa had not been a party to the Sadd case and the court’s decision in that case was not binding or a bar to these proceedings; political purpose was not a bar to litigation if a cause of action otherwise existed; and the claim of undue delay was closely related to Ngäti Apa’s history, strength and funding but these were not matters that could be properly dealt with on an interlocutory basis in an application to strike out.

His Honour also commented:

"It seems to me that the Mäori Appellate Court’s decision on the Ngäi Tahu takiwä only related to claims made in "right of ownership" of the lands. Any other claims that Ngäti Apa might have are not affected. Nevertheless, it seems to me that all of Ngäti Apa’s claims are made in right of ownership."

[Ed: There is a chord of sympathy in this judgment for Ngäti Apa’s situation. His Honour noted, for example: "There is no doubt that if Ngäti Apa cannot have their claim before the Tribunal heard because of the Mäori Appellate Court decision, the tribe’s sense of injustice will be perpetuated."]

 

Powell v Attorney-General & Others

M1184/97. High Court, Auckland. 30 June 1999. Salmon J

This was an application by the first defendant (the Attorney-General) and the third defendant (the Honourable Douglas Graham) to strike out proceedings brought by the plaintiff as set out in his fifth amended statement of claim. The proceedings had earlier been struck out as against the second defendant, the Waitangi Tribunal.

The plaintiff, Mr Morley Powell, was said to be a member of the Te Uri O Hau Hapü and the Te Tao U Hapü of the Ngäi Haumoewharangi sub-tribe of the Ngäti Whatua iwi. He sought declarations under section 3 of the Declaratory Judgments Act 1908 that:

• The Crown by the Orakei Act 1991 has to the exclusion of the tribe alienated land over which the tribe has customary or native title.

• The tribe is not bound by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

Held: The statement of claim raised no justiciable issues and would be struck out. Section 3 of the Declaratory Judgments Act 1908 enabled the Court to make a declaratory order determining any question as to the construction or validity of a statute, but not the validity of the content of a statute (Shaw v Commissioner of Inland Revenue (CA 218/97) 19 April 1997; Hoani Te Heuheu Tukino v Aotea District Mäori Land Board [1941] NZLR 591; British Railways Board v Picken [1974] 1 All ER 609).

In terms of the reference to the Orakei Act 1991, the declaration sought was not appropriate for the grievances stated. The matter was one that appeared to be more appropriate for the Waitangi Tribunal. In terms of the reference to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Mr Powell contended that the Act was binding on Mäori, but that he represented the northern tribe, Ngäti Whatua, who are not Mäori but "technically true Tangata Whenua Tüturu that is men of the soil of local origin". This required His Honour to consider the meaning of the term "Mäori" in the 1992 Act. He concluded:

"the term ‘Mäori’ was intended to include all aboriginal people of New Zealand; or to put another way, those that were here prior to settlement by people who arrived from the late 18th century onwards. That this was the meaning intended by the legislature for the word is clear from the references in the Act to the Treaty of Waitangi, a treaty signed initially by the Northern tribes, and from the fact that the negotiators with the Crown during the period leading up to the enactment included three from the Northern tribes, and the fact that the Act brought to an end litigation by Northern tribes ...".

[Ed: this decision is of more than passing interest because the High Court was required to determine the meaning of "Mäori" in the controversial Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.]

 

Te Ohu O Nga Taonga Ngäti Manu v Stratford DC & Marabella Enterprises Limited

W74/99. Environment Court. 24 February 1999. Treadwell J, J Fitzmaurice

This was an appeal against part of a decision of the Stratford District Council to issue a land use consent to a private company to establish an oil exploration well. The appellants were concerned that a condition allowing for flaring from the well should limit that flaring to certain times, and/or that some financial contribution should be required which would be applied to sustainable resource management.

The grounds of the appeal were set out in Mäori. The court ordered that further details as to the issues under appeal be supplied. They were supplied with parts in Mäori also. Translations were not provided. The Court then ordered that the original grounds of the appeal be set out in Mäori, since there was "no right to lodge appeals in the Environment Court in the Mäori language". The appellant refused to provide a translation, on the basis that some concepts could not be described adequately in English.

Held: since no party had tried to strike the appeal out on the basis that it was lodged in Mäori, the court proceeded with the hearing, but it said that it did so with "some reluctance."

As to the issues raised, s269 Resource Management Act 1991 (Court shall recognise tikanga Mäori where appropriate) deals only with flexibility on procedural matters, such as the Court sitting on a marae. It does not have any wider significance in terms of powers and jurisdiction under the Act.

The Court could not look at whether the burning off of minerals is a wasteful use of minerals which was offensive to Mäori as a "burning of the land", because minerals are specifically excluded from the definition of sustainable management (s5(2)(a)/1991 and Winter & Clark v Taranaki Regional Council A105/98). The Court could only look at whether side-effects from the flaring such as light and noise were of concern to Mäori. And the council had no power to require a financial contribution either to offset the effects of flaring or make a contribution to a general sustainable management fund for the region.

It was apparent that a substantial body of Mäori of the area had indicated their agreement to the development on the condition that they were advised if any wähi tapu should be found (the evidence was that no such sites seemed to be involved). The appellant was very much in a minority in his opposition to the project.

The appellant listed a number of concerns, including the possibility that indigenous bats would fly into the flare, which the Court found unconvincing. One concern about nighttime glow ignored the fact that the marae of the appellant was 20 kilometres from the activity. The appellant seemed to be concerned mainly with broader sovereignty and constitutional issues and an overriding Mäori control of developments.

The proposed exploration activity would have short term effects and might provide benefits to the nation as a whole, and most Mäori of the area had no objection to it. Watercare Services v Minhinnick[1998] NZRMA 113 set out a test of whether the "reasonable person" who was properly informed would consider that a proposed activity was offensive to Mäori. Cultural wellbeing was a matter that the court could consider, but a balanced judgment was required in each case. Applying these standards, the concerns of the appellant were not reasonable, and the effects from flaring had been controlled in any event by conditions in the land use consent. This approach was consistent with TV3 Network Services v Waikato DC [1997] NZRMA 539 where it was said that not every activity involving wähi tapu or similar would be objectionable – the issue would be whether the activity was "intrinsically offensive" to established wähi tapu or other cultural considerations (see also Mason Riseborough v Matamata-Pikao DC (A143/97). The appeal was dismissed.

 

Parliament

Education (Te Aho Matua) Amendment Act 1999

No 79. 16 July 1999

This Act provides protection for the "special character" of Kura Kaupapa Mäori by providing for the drafting of a statement of the approach to teaching and learning in such schools. This statement, known as Te Aho Matua, must be adopted by schools wishing to be designated as Kura Kaupapa Mäori and they must act in accordance with it. The school may turn away students whose parents do not accept that the school will operate in accordance with Te Aho Matua. The kaitiaki or body responsible for drafting and determining the content of Te Aho Matua is named in the Act as Te Runanga Nui o Nga Kura Kaupapa Mäori o Aotearoa. No school may be designated as a Kura Kaupapa Mäori unless its principal language of instruction is Mäori, and it has adopted Te Aho Matua. Existing Kura Kaupapa Mäori may adopt Te Aho Matua. No registered school may use the term "Kura Kaupapa Mäori" in its name unless the school has been established in the manner laid out in this amendment (or used that name prior to this amendment).

[Ed: for an analysis of the Bill see Mäori LR Dec 1998/Jan 1999 p11.]

 

Mäori Purposes Bill 1999

306-1. Hon Tau Henare

This Bill makes miscellaneous amendments to Te Ture Whenua Mäori Act 1993. The Bill:

• Amends several sections of the 1993 Act dealing with leases, licences and forestry rights, to clarify that the term of the lease, licence etc also includes any term of renewal.

• Gives to the Mäori Land Court any powers conferred by the High Court under the Contracts (Privity) Act 1982 and the Contractual Remedies Act 1979 where matters relating to those Acts arise in proceedings— but not otherwise.

• Amends s25/1993, which empowers the land court to vest interests in land in persons retrospectively where they claim under a lost instrument of alienation, to clarify that the vesting may be not just in those who applied, but in any other persons the court thinks should be entitled.

• Amends s30/1993 dealing with the determination of representatives for iwi, to allow the Chief Executive of Te Puni Kökiri or the Chief Judge of the Mäori Land Court to ask the court to review the representatives it has appointed, and add or reduce the number or replace any representatives.

• Provides that the requirement under s228/1993 for a Mäori land trust to gain approval of a substantial number of owners before selling any land only applies to Mäori freehold land, not general land owned by the trust. Nor is the confirmation of the Mäori Land Court to be required for such a sale.

• Allows the land court to provide compensation to people who have made improvements to land when it makes orders aggregating landholdings.

• Extends the situations in which occupation orders can be made to cases where a house has already been built on the land.

The Bill also provides that:

• The membership of the Mäori Purposes Fund is extended to include all the members of Parliament of the Mäori electoral districts.

• The trustees of the Mäori Soldiers Trust be given the ability to direct the Mäori Trustee to invest money outside of the common fund. The standard of care for any investment decisions must be "the care, diligence, and skill that a prudent person of business would exercise in managing the affairs of others".

[Ed: at one level, it is only common sense that the land court should be able to review representatives appointed under s30. Representatives may have died, or no longer wish to be involved. But the power is very wide and there are no guidelines for the discretion which may be exercised. Can representatives be replaced for incompetence, absence etc? If a group of representatives is evenly split on an issue, should the number be reduced? The powers of the Mäori Land Court to remove trustees under s240/1993 may provide some guidance, although s30 representatives are not trustees.]

 

Ngäti Türangitukua Claims Settlement Bill 1999

No 303-1.

This bill puts into place various elements of the deed of settlement signed on the 26 September 1998 between Ngäti Türangitukua and the Crown, dealing with lands at Turangi township affected by works for hydroelectric schemes between 1964 and 1992. The report of the Waitangi Tribunal on the historical claims was reviewed in Mäori LR October 1995 pp2-5. A separate tribunal report on remedies was reviewed in Mäori LR July 1998 pp5-10. The deed of settlement was reviewed in Mäori LR February 1999 pp3-6.

The bill concerns "Ngäti Türangitukua claims", which are defined as claims by Ngäti Türangitukua people to any loss of interests in land, water, rivers, harbours, minerals, forests or any natural or physical resources caused by acts of omissions of the Crown between 31 January 1964 and 21 September 1992. Ancillary claims are also covered, being claims by any person about Crown actions during the acquisition and construction of the Turangi Township and the Tongariro Power Development Scheme. However, any claims by other hapü of Ngäti Tüwharetoa outside the Turangi township are not affected. The "Turangi Township" is to be identified by a map. The major provisions are as follows:

• The Preamble contains a lengthy statement in Mäori and English explaining the background to the legislation, including findings from the report of the Waitangi Tribunal in 1995. An apology is set out in Mäori and English.

• The Waitangi Tribunal and the courts will no longer have jurisdiction to consider claims covered by the legislation. However, the tribunal and the courts retain jurisdiction to consider claims about the interpretation and implementation of the deed of settlement, the ancillary claims deed and the settlement act.

• Any resumptive memorials on titles of current and former State enterprises land within the Turangi Township are to be cancelled.

• All necessary powers are provided to transfer properties and alter the arrangements for certain public reserves to fulfil agreements in the deed of settlement

• A separate part sets out the procedure for the creation and enforcement of protocols issued by the Minister of Conservation to Ngäti Türangitukua. The protocols will set out how the Department of Conservation will exercise its powers in relation to matters affecting Ngäti Türangitukua within and in the vicinity of Turangi Township, including how Ngäti Türangitukua will have input into future decision-making. Such protocols must be noted in public management documents of the Department of Conservation, but they may not limit powers under existing law, or government policy. If the minister "fails unreasonably" to comply with a protocol, Türangitukua Nominees Limited (a legal body representing the claimants) is given the exclusive right to bring a public law action against the minister.

[Ed: this bill has been held over until after the forthcoming general election.]

 

Hauraki Gulf Marine Park Bill 1998

No 244-2. 26/11/98, Nick Smith

This bill establishes a framework for the integrated management of the resources of the Hauraki Gulf. Integrated management is to be achieved by:

• Providing that the interrelationship between the Hauraki Gulf, its island and catchments, and the environment of the Hauraki Gulf are matters of national significance, and planning instruments notified by planning authorities and consents issued by those authorities under the RMA 1991 must be consistent with and have regard to those matters of national significance.

• Establishing a forum of the local authorities and tangata whenua which would meet regularly to formulate and implement an action plan for the integrated management of the environment of the Hauraki Gulf.

• Establishing a Hauraki Gulf Maritime Park.

The Transport and Environment Committee has reported on the Bill. It has noted a number of issues of importance to the 12 iwi of the Hauraki Gulf and has recommended changes to the legislation supporting most of those concerns. The bill now provides that:

• The historical, traditional, cultural and spiritual relationship of tangata whenua with the Hauraki Gulf is recognised, and in the management of the area, natural, historic and physical resources (including kaimoana) with which Mäori are linked are to be protected and, where appropriate, enhanced.

• The Hauraki Gulf Forum, which would be a special joint committee of local authorities under the Local Government Act 1974 (s114S), would consist of 23 people. One representative of each of the Minister of Conservation, Fisheries and Mäori Affairs, 12 representatives being one from each of the district and regional councils with lands fronting on or catchments draining to the Gulf, 2 further (non-voting) representatives of the Auckland Regional Council, and 6 representatives of tangata whenua appointed by the Minister of Conservation after consultation with the Minister of Mäori Affairs.

• The Forum would be required to have regard to the principles of the Treaty of Waitangi in carrying out its functions.

• The Minister of Conservation would be required to remunerate representatives of tangata whenua on the forum, not only for travel expenses, but also reasonable communication and consultation costs in relation to their work on the forum.

• The Hauraki Gulf Maritime park would be established and one of its purposes would be to recognise and have particular regard to the historic, traditional, cultural and spiritual relationship of tangata whenua with the resources of the park.

• Further land could be added to the park, including any land subject to a Nga Whenua Rähui kawenata under the Reserves Act 1977, taiapure-local fisheries and mätaitai reserves (these latter two may also be removed from the park where they no longer serve the purpose of the park).

• The Crown or a local authority may enter into deeds of recognition with iwi, hapü or whänau, which acknowledge a particular relationship of that group with any land, foreshore or seabed (but not waters) of the Hauraki Gulf, and identify specific opportunities for tangata whenua to contribute to the management of that area by the Crown or local authority.

• With regard to claims concerning the foreshore and seabed, the bill specifically preserves the position both with regard to Crown claims to those areas and does not limit or affect the ability of Mäori to claim or continue with claims over the Hauraki Gulf, in whatever forum and whether under the Treaty or common law.

[Ed: the ACT Party totally opposes this bill as a needless duplication of statutory powers which already exist under the Resource Management Act 1991. On its face, the bill does appear to do little more than provide a forum for discussion and co-ordination which could already be achieved under the RMA 1991. However it would allow a fully funded group of Mäori representatives to participate in the development of the policies of 12 councils at their formative stage.

On a technical matter, the description of the park now includes "all seawater within the Hauraki Gulf", with the proviso that this does not give the Crown or any other person ownership of that seawater.]

 

Forests Amendment Bill 1999

No 311-1. Hon David Carter 13/7/1999

Part IIIA of the Forests Act 1949 provides that the export of indigenous timber from NZ forests is prohibited unless they are sustainably managed. There is a specific exemption for timber from lands reserved under the South Island Landless Natives Act 1906 (SILNA lands). This exemption was recently upheld in Alan Johnston Sawmilling Ltd v G-G (CP140/97. 9 June 1999. See Mäori LR July 1999 p5). There is also an exemption for West Coast indigenous forests managed under the agreement known as the West Coast Accord.

This bill seeks to bring both these forest types (and several other exempted categories) under the sustainable management regime of the Forests Act 1949. In relation to SILNA lands, the legislation will:

• Allow timber to continue to be cut and milled from SILNA lands without a sustainable management regime being in place but;

• Remove the exemption that currently permits such indigenous timber to be exported even though those forests are not under a sustainable management regime;

• Provide a process whereby the owners of forests on SILNA lands may agree to either give up any right to mill indigenous timber, or agree to mill it under a sustainable management regime – and thus gain a right to export the timber.

[Ed: understandably, this bill has drawn sharp criticism from Ngäi Tahu. It is also strongly opposed by conservation groups, who do not want the export of timber from indigenous forests extended to forests covered by the West Coast accord, whether under a sustainable management regime or not. In August, the government advised that it will not attempt to pass the bill before the forthcoming general election. In the meantime, the adverse environmental effects of current logging operations on SILNA lands will have to be controlled by the relevant district councils and the Minister for the Environment under the Resource Management Act 1991.]

 

Other

An Unsettled history. Treaty Claims in New Zealand Today

Alan Ward (Bridget Williams Books 1999) 211pp

Professor Ward believes that the current claims process needs to be strengthened. In this book he sets out the factual background to the major historical claims and the recent settlements, in the hope that readers will appreciate the need to continue with the current approach. He rejects the ‘alarmist’ approaches of recent commentators such as K Minogue Waitangi: Morality & Reality (1998) (see Mäori LRApril 1998) and D Round Truth or Treaty? (1998) who attack the need for the claims process. He believes that the historical claims can be settled within a reasonable timeframe and that good progress has already been made in that direction and should be built upon.

In the first chapter, Ward backgrounds the signing of the Treaty, Mäori expectations and the long history of Mäori protest about what they perceived as broken promises. In the second and third chapters he outlines the modern claims process and examines the settlements which have been achieved so far. He examines how the work of the Waitangi Tribunal was given new life with the arrival of Chief Judge Durie as its chairperson in 1981 and the new retrospective jurisdiction given to the tribunal in 1985. The State enterprise lands case and Crown forestry cases are outlined. He examines the sea-fisheries settlements, the debate surrounding the fiscal envelope cap on settlements, the settlements of the major Ngäi Tahu and Tainui claims, and ongoing efforts to settle the Whakatohea, Ngäti Awa, Taranaki, Te Roroa, Muriwhenua and Turangi claims and the rivers claims affecting the Mohaka and Te Ika Whenua peoples. He argues that a comparison of the ‘benchmark’ Tainui and Ngäi Tahu settlements must leave other iwi wondering what sums they can expect in settlement. The same basic sums in compensation were paid to each tribe, yet they experienced two very different situations, Tainui suffering direct invasion, loss of life and confiscation affecting a large iwi, while Ngäi Tahu, a much smaller iwi in numbers, suffered the loss of a vast but little used land area through flawed purchases rather than direct conflict.

The second part of the book provides an overview and analysis of the events surrounding the major historical land grievances arising in claims before the Waitangi Tribunal. These major historical land grievances are:

• The Crown investigations and ratification of pre-1840 land transactions

• Large scale direct purchases made by the Crown from 1840 to 1865

• The NZ Wars and confiscation

• The operation of the Native Land Acts from 1865

• Continued purchasing under the Native Land Acts 1890-c1930.

Ward draws here on the three volume "National Overview" report which he prepared for the tribunal in 1997 and which covers the same ground in greater detail (see Mäori LR May 1997). In a concluding chapter, Ward argues that, given that the nation has embarked on "nothing less than a review of its entire colonial history" remarkable progress has been made in researching and reporting on claims. He notes a tribunal estimate that by 2005 the major work will have been done. Several major settlements are in place, including the principles to be applied in future negotiated settlements, the main one being that all sides have accepted that reparation is not to be calculated on the basis of full legal restitution which would be impossible to calculate and ruinous to the economy. In these fundamental respects a sound Treaty claims process is taking shape, which deserves the continuing support of the nation. "Far from being a ‘grievance industry’, driven by a radical Tribunal, the Treaty claims process has developed careful and constructive responses to much of the pent-up anger and frustration of the Mäori people", at a manageable cost only about $100 million year, or 0.1% of GDP, and that is offset by the social benefits expected to flow to Mäori from Treaty settlements.

However, Ward is uneasy about the size of the fiscal envelope ($1 billion), and the assumptions being made about relativities between claims and government statements that all the "big" claims have been settled or are near to settlement. He insists that, on any objective view, the historical grievances of most tribes have yet to be heard, let alone settled. Further, to regard the claims settlement process as mostly completed, when most of the money which has been set aside for settlements has already expended on a few tribes who happen to be first in the queue, may create serious new injustices for groups yet to be heard.

The overview research has demonstrated that the issue of relativities between claims may be more complicated than is currently supposed. Ngäi Tahu was not unique in losing very large areas of land in early purchases, the Hauraki tribes retain the least Mäori land of any tribe in NZ, and it is possible that Crown purchases in the 20th century (3.5 million acres between 1910 and 1930) were a worse Treaty breach than earlier purchases, because they took place at a time when the Crown was very well aware of just how little Mäori land remained.

Ward argues that the Waitangi Tribunal should therefore continue to be supported in a steady and systematic effort to deal with remaining claims. However, adjustments are required. He recommends:

• Increase the fiscal cap on claims settlements (he suggests $2 billion paid over 20 years), and replace the relativity clauses in the Tainui and Ngäi Tahu settlements (which would entitle them to double their current settlements), with a one off payment.

• Provide national guidelines for appropriate levels of reparation.

• Provide incentives for claimant groups to aggregate their claims and work together, which could include an amendment to the Treaty of Waitangi Act 1975 to force Mäori to bring claims under iwi structures.

• Strengthen the autonomy of the Waitangi Tribunal in terms of the process for appointing new members and the level of research funding.

• Develop an appropriate model for research, which avoids the need for in-depth historical accounting for each claim.